UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

No. 6:22-cv-0049-H 

JOINT SUPPLEMENTAL REPORT

Pursuant to the Court’s July 27, 2023 Order, ECF Nos. 128 and 130, the parties submit the 

following Joint Supplemental Report.

1

Plaintiffs’ submission: 

1. Mr. Chrisman elects to proceed in this Court on his RFRA claim, does not believe that 

exhaustion, administrative or otherwise, under a separate statutory scheme, is a 

requirement under RFRA under U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 346 (5th

Cir. 2022) (“it is likely that, following RFRA's enactment, abstention based on the 

Mindes test is no longer permissible.”) and Doster v. Kendall, 54 F.4th 398, 410-415 

(6th Cir. 2022), and in any event, does not elect to pursue such a futile and timeconsuming military record correction process from the very officials who determined 

to characterize his discharge as general (rather than honorable).

1 Due to the parties’ protracted negotiations attempting to resolve the disputes herein, in addition 

to preparing declarations from working Army personnel, the parties were not able to exchange 

positions until immediately before filing and could not respond directly to each other’s written

positions.

ROBERT SCHELSKE, et al., 

Plaintiffs, 

v. 

LLOYD J. AUSTIN, III, 

United States Secretary of Defense, et al., 

Defendants. 

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2. Plaintiffs Costroff, Schelske, and Galloway have had their enlisted record briefs (that 

had adverse information) completely removed from the iPERMS system by Defendants 

in their effort at providing partial relief. (Dec. Schelske, Costroff, Galloway, Appx. 1-

7). Each now provides a supplemental declaration that the absence of the record will 

cause them harm, as all of them are pursuing warrant officer selection. (Dec. Schelske, 

Costroff, Galloway, Appx. 1-7). Plaintiffs offered corrective records to replace these 

ERB’s to Defendants, but they declined to make the corrective effort. (Dec. Wiest, 

Appx. 14-16). Defendants did so, because, Defendants contend, these adverse records 

are no longer used. Id. at 14. Plaintiffs have attached Mil-Per 23-210, in the appendix 

to this filing, which indicates that: (i) record briefs, to include the enlisted record briefs,

were archived on 9 November, 2022 (i.e. old records would continue to be used) (Id. at 

p. 1 of the guidance, Appx. 9); (ii) there is a four phased approach to implementing a 

new personnel system that ultimately will result (but has not yet resulted) in the 

discontinuation of these records (Id. at p. 2 of the guidance, Appx. 10); and, for future 

boards, the regulation states that “[i]n FY24, the Army plans to transition away from 

legacy formats,” demonstrating that this transition has not yet occurred, and, as was the 

case throughout the current fiscal year, legacy records continue to be used until that 

transition occurs, with no projection for the details of when that transition may occur. 

(Id. at Appx. 12). As reflected in the declarations of Schelske, Costroff, and Galloway, 

warrant officer selection boards specifically require submission of these records that 

the Army claims are obsolete. (Dec. Schelske, Costroff, Galloway, Appx. 1-7). 

Plaintiffs believe Defendants’ representation(s) otherwise reflect, at best, a misleading 

stance about future intentions for records and systems, that have not yet occurred.

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3. The Court has asked whether there are additional adverse actions that remain of record 

for the (remaining) Plaintiffs, and the Plaintiffs’ answer is: yes. Plaintiffs Costroff, 

Schelske, and Gallow continue to have adverse materials in their records concerning 

their religious objections to the COVID-19 vaccination mandate that is career 

destroying. (Dec. Schelske, Costroff, Galloway, Appx. 1-7). And the complete 

removal of a necessary record does not alleviate the harm. Id. The past status update 

concerning Plaintiff Bufkin and Chrisman likewise remains true (see Doc. 123, Doc. 

124).

Defendants’ Response:

The Army confirms that it has removed all flags or other adverse action related to COVID19 vaccination for Plaintiffs Costroff, Galloway, and Schelske from both its current personnel 

management system—the Integrated Personnel and Pay System (IPPS-A) which houses the new 

Soldier Talent Profile (STP)—and its legacy personnel system, the Electronic Military Personnel 

Office system (eMILPO), which housed the now defunct Enlisted Record Briefs (ERB). Plaintiffs 

do not contend that any COVID-19-related adverse action is included in the STPs of Plaintiffs 

Costroff, Galloway, and Schelske. Plaintiffs also do not dispute that the legacy ERBs, the only 

documents that contained any reference to COVID-19-related adverse actions, were removed from 

the legacy recordkeeping system after the Court’s prior conference. The only remaining dispute is 

over the method the Army has employed to remove the adverse action from the legacy 

recordkeeping system. The Army offered Plaintiffs two methods: 1) remove the legacy ERBs 

entirely from the legacy record-keeping system because they no longer have any use for these 

Plaintiffs (the Army has already taken this action); and 2) restore the legacy ERBs to the legacy 

recordkeeping system redacting the adverse information using a black redaction tool consistent 

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with the Army’s practice of making records corrections in other cases. However, Plaintiffs insist 

on the adverse material being “scrubbed,” i.e. altering the legacy record in a manner which would 

disguise that it was altered, akin to using a white redaction tool, a method which is inconsistent 

with the Army’s practice for making all types of record corrections. Defendants further state:

1. Following the conference between the Court and the parties on July 21, 2023, 

Defendants confirmed to Plaintiffs that the Army had switched over its ERB system to the 

new STP system and that no flags or other adverse action related to COVID-19 vaccination 

for Plaintiffs Costroff, Galloway, and Schelske were included in this new system. See 

Defs.’ App’x A135, Declaration of Nathan L. May at ¶ 7, 10-11. However, Plaintiffs 

indicated concern that they were still able to access their old ERBs through a separate folder 

in the Interactive Personnel Electronic Records Management System (iPERMS). 

Defendants explained that legacy ERBs were stored in the record review folder as a data 

loss backstop during the system migration to IPPS-A. Id. at ¶ 12. Defendants further 

explained that when ERB and STP information is used to populate records for Selection 

Boards, certain information including the existence of flags or other adverse action is not 

included and was not included in prior boards for Plaintiffs Costroff, Galloway, and 

Schelske. See Id. at ¶¶ 9, 11-12; see also infra ¶ 6.

2. In the interests of resolving Plaintiffs’ concern, Defendants removed the legacy 

ERBs from the legacy recordkeeping system and there are no remaining records accessible 

to anyone reflecting flags or other adverse action related to COVID-19 vaccination for 

Plaintiffs Costroff, Galloway, and Schelske. See Defs.’ Appx. A139, May Decl. ¶ 16.

3. Plaintiffs subsequently stated that they believed removing the legacy ERBs from 

their records would put Plaintiffs Costroff, Galloway, and Schelske at a disadvantage based 

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on a statement in MILPER 23-210 that legacy ERBs would populate the Selection Board 

Briefs during the data transition. Plaintiffs misunderstand the applicability of that policy. 

None of these Plaintiffs have the potential to appear before any future Selection Board that 

may rely on information from legacy ERBs, so there is no possible harm that could come 

to them from the removal of these records from that system. Id. at ¶¶ 13-15. Plaintiffs do 

not dispute that their record information is now contained in STPs.

4. However, in the interest of reaching resolution on this issue, the Army offered to 

redact, using black redactions, any adverse information related to COVID-19 vaccination 

from Plaintiffs’ legacy ERBs and return the redacted files to the legacy recordkeeping 

system. 

5. Plaintiffs have rejected this offer and request that the Army fully remove any 

COVID-19 vaccination related information (and any indication that there was ever other 

information in the record) from their legacy ERB's and return them to the legacy 

recordkeeping system. The Army cannot agree to this particular method of redaction as it 

is inconsistent with its practice of making record corrections in all other cases. 

6. As further support for Defendants’ submission in the previous Joint Supplemental 

Notice that Plaintiffs Costroff and Schelske’s 2023 evaluations by the Staff Sergeant 

Evaluation Board did not include consideration of any flags or other adverse information 

related to COVID-19 vaccination, ECF No. 123, Defs.’ Resp. ¶ 5, Defendants respectfully 

submit those Plaintiffs’ Board Records. Defs.’ Appx. A001 (Costroff); A074 (Schelske). 

Defendants are moving concurrently to file these documents under seal due to the 

personally identifying information contained therein.

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7. In response to Plaintiffs’ submission of the Declaration of Zakai Bufkin in support 

of their position in the previous Joint Supplemental Notice, ECF No. 124, Pls.’ Appx. 

A023-26, Defendants respectfully submit Plaintiff Bufkin’s Academic Separation Packet 

from the United States Military Academy, including Plaintiff Bufkin’s personal statement 

concerning the reasons for his academic performance. Defs.’ Appx. A128. Defendants are 

moving concurrently to file these documents under seal due to the personally identifying 

information contained therein.

Dated: July 31, 2023 

Respectfully submitted, 

 

/s/ Aaron Siri . BRIAN M. BOYNTON 

Aaron Siri (Admitted Pro Hac Vice) Principal Deputy Assistant Attorney General 

Elizabeth A. Brehm 

(Admitted Pro Hac Vice) ALEXANDER K. HAAS 

Wendy Cox (TX 24090162) Branch Director 

Dana Smith (Admitted Pro Hac Vice) 

SIRI | GLIMSTAD LLP JOSHUA E. GARDNER 

745 Fifth Avenue, Suite 500 

New York, NY 10151 

Special Counsel 

(212) 532-1091 (v) /s/ Keri L. Berman

(646) 417-5967 (f) KERI L. BERMAN 

aaron@sirillp.com Trial Attorney 

ebrehm@sirillp.com United States Department of Justice 

wcox@sirillp.com Civil Division, Federal Programs Branch 

dstone@sirillp.com 1100 L Street NW, Rm. 11206 

Washington, DC 20530 

/s/Christopher Wiest Tel.: (202) 514-3183 / Fax: (202) 305-7538 

Christopher Wiest (Admitted Pro Hac Vice) Email: keri.l.berman@usdoj.gov 

Chris Wiest, Atty at Law, PLLC Counsel for Defendants

25 Town Center Boulevard, Suite 104 

Crestview Hills, KY 41017 

(513) 257-1895 (vc) (859) 

495-0803 (f) 

chris@cwiestlaw.com 

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Thomas Bruns (Admitted Pro Hac Vice) 

Bruns, Connell, Vollmar & Armstrong, LLC 

4555 Lake Forest Drive, Suite 330 

Cincinnati, OH 45242 (513) 

312-9890 (vt) 

tbruns@bcvalaw.com 

John C. Sullivan 

S|L LAW PLLC 

Texas Bar Number: 24083920 

610 Uptown Boulevard, Suite 2000 

Cedar Hill, Texas 75104 

(469) 523–1351 (v) (469) 

613-0891 (f) 

john.sullivan@the-sl-lawfirm.com 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

I hereby certify that on July 31, 2023, a true and correct copy of the foregoing was served 

by CM/ECF on all counsel or parties of record. 

/s/ Christopher Wiest 

 Christopher Wiest

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