DEX 9

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November 5, 2021

Lieutenant Colonel Peter Schmick, USAF

Chief, Space Enterprise Operations Division

Headquarters, Space Operations Command

Peterson Air Force Base, CO 80914

Subject: Letter of Admonishment ICO Major Jace Yarbrough, USAFR

Dear Lieutenant Colonel Schmick:

First Liberty Institute represents Major (Maj.) Jace Yarbrough, USAFR, in this matter. 

Please direct all correspondence related to this matter to me. For the reasons set forth herein, we 

respectfully request you rescind the Letter of Admonishment (the “Letter”) you issued to Maj. 

Yarbrough on August 25, 2021.

Background

In early 2021, Senior Master Sergeant (SMSgt) Fish, USAF (Ret), invited Maj. Yarbrough 

to deliver a speech at his retirement ceremony aboard the Battleship Missouri Memorial, in Pearl 

Harbor, Hawaii. Maj. Yarbrough agreed to do so and delivered remarks in uniform at SMSgt Fish’s 

retirement ceremony on June 11, 2021. Due to regulations in place because of COVID-19, total 

attendance at the ceremony was restricted to twenty-five attendees.

The U.S. Air Force did not activate Maj. Yarbrough or issue him orders to attend SMSgt 

Fish’s retirement ceremony. Maj. Yarbrough did not request and the Air Force did not authorize 

Maj. Yarbrough to participate in the retirement ceremony in his official capacity. The Air Force did 

not pay Maj. Yarbrough or compensate him in any way, nor did it fund his travel from Texas to 

Hawaii and back. Instead, Maj. Yarbrough—a reservist—took time off from his civilian job, made 

his own travel arrangements, and paid personally for his airfare, rental car, hotel, and meals. 

SMSgt Fish’s retirement ceremony did not take place aboard a military installation. The 

USS Missouri was decommissioned in 1992, and in 1998 its ownership was transferred to the USS 

Missouri Memorial Association, a private entity, whereby it became the Battleship Missouri 

Memorial. Ownership remains with the USS Missouri Memorial Association to this day.

Based on these facts, Maj. Yarbrough traveled to, attended, and spoke at SMSgt Fish’s 

retirement ceremony in his capacity as a friend and private citizen. 

Legal Analysis

The Air Force lacks jurisdiction over Maj. Yarbrough

In order to issue a Letter of Admonishment to Maj. Yarbrough, the Air Force must have

military jurisdiction over him at the time of his alleged misconduct. In this case, as discussed below, 

Maj. Yarbrough was not in a status that subjected him to Air Force jurisdiction. Therefore, the Air 

Force has no authority to issue a Letter of Admonishment to Maj. Yarbrough for conduct that 

occurred on private property while he was not in a military status.

Articles 2(a) and 2(c) of the Uniform Code of Military Justice (UCMJ) define military 

jurisdiction. Article 2(a) applies only when the Department of Defense either calls or orders the

member to active duty status, or while the member is in an inactive-duty training (IDT) status. The 

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military’s highest court describes this as an “all-or-nothing condition” for Article 2(a) jurisdiction 

to apply to a service member’s conduct. Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986). “Simply 

being a member of a reserve component” is insufficient to confer jurisdiction. United States v. 

Hale, 78 M.J. 268, 271 (C.A.A.F. 2019); see also United States v. Morita, 74 M.J. 116 (C.A.A.F. 

2015). 

Under Article 2(c), a person is subject to military jurisdiction if he satisfies the following 

four-part test: (1) he submitted voluntarily to military authority; (2) he was mentally competent at 

the time he voluntarily submitted to military authority; (3) he received military pay and allowances; 

and (4) he performed military duties. 10 U.S.C. § 802(c).

The Air Force lacked jurisdiction over Maj. Yarbrough on June 11, 2021, because none of 

the conditions required under Articles 2(a) or 2(c), UCMJ, are satisfied. For example, the Air Force 

had neither ordered Maj. Yarbrough to active duty nor ordered him to conduct IDT drills on that 

date, nor did he receive any form of military pay or allowances whatsoever. Setting aside the issue 

of whether Maj. Yarbrough’s conduct on June 11, 2021, was prohibited under the UCMJ—which it 

was not—the Air Force would have had no authority to arrest or detain Maj. Yarbrough because he 

was speaking as a private citizen while on private property not under U.S. Government control. See 

Morita, 74 M.J. at 121 (no jurisdiction over reservist while that reservist was not in an official status 

even when reservist forged official orders). The Air Force should rescind the Letter on this basis 

alone.

Maj. Yarbrough’s speech is protected under the First Amendment

The Air Force should rescind the Letter not only because it did not have jurisdiction over 

Maj. Yarbrough, but also because he engaged in speech protected by the First Amendment to the 

U.S. Constitution during the retirement ceremony. Service members do not forfeit their First 

Amendment rights by virtue of their military service. And even under circumstances during which 

service members’ right of speech and expression may be abridged, the government cannot censor 

such speech in an arbitrary and capricious manner.

The military may restrict certain speech if the restrictions are “reasonable and ‘not an effort 

to suppress expression merely because public officials oppose the speaker’s view.’” Nieto v. Flatau, 

715 F. Supp. 2d 650, 655 (E.D.N.C. 2010) (quoting Perry Educ. Ass’n v. Perry Local Educators’ 

Ass’n, 460 U.S. 37, 46 (1983)). And while the military may have the limited ability to regulate some

speech and expressive activity by service members, it may not do so in a manner that discriminates 

against a particular viewpoint. Nieto, 715 F. Supp. 2d. at 656. Such selective enforcement amounts 

to viewpoint discrimination, which the Constitution forbids.

There can be no doubt that the military has recently permitted service members to engage 

in political speech and expressive conduct while on active duty and in uniform.1 

1. In 2019, the military permitted service members in uniform to lead a political parade, 

whose purpose was in part “to show opposition to the Trump Administration’s ban on transgender 

troops.”2 In support of this political parade, the California Guard’s 144th Fighter Wing conducted 

a four-ship, F-15 flyover, and military members conducted a public re-enlistment ceremony that, 

according to the parade organizer, was intended to “sen[d] the clear message, ‘We are done with 

Trump’s anti-transgender rhetoric.’” 3 According to media reports, approximately 250,000 

spectators were present at the parade.4

1 The following is by no means an exhaustive list of permitted (or even explicitly approved) political speech 

and expressive conduct by service members.

2 https://www.nbcsandiego.com/news/local/san-diego-unites-for-pride-parade-2019/132618/

3

Id.

4

Id.

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2. In March of this year, Sergeant Major of the Army Michael Grinston used his Twitter 

account to publicly criticize conservative political commentator Tucker Carlson by name.5 As of the 

date of this writing, Sergeant Major Grinston has roughly 44,400 Twitter followers, and his political 

message was retweeted over 3,500 times and received some 13,900 likes.6

3. Also in March of this year, the Department of Defense used its official website to promote 

and celebrate that Pentagon Press Secretary John F. Kirby “[s]mite[d]” Carlson over some of 

Carlson’s political comments.7

4. Finally, in June 2020, the Army chose not to punish members of the Army National Guard 

who knelt while in uniform and on duty as part of political protests.

8 When speaking of the 

incident, then-Secretary of the Army Ryan McCarthy acknowledged these uniformed members 

were “protest[ing] in uniform”, and that “[w]e’re not allowed really to [do that].”9

On information and belief, no adverse administrative action has been taken against any of the 

uniformed members mentioned above.

The military permitted active duty service members to publicly express their political 

opposition to the then-Commander in Chief, supported that opposition with an F-15 flyover, 

refused to punish members who it acknowledged engaged in political protest in uniform on duty, 

and used its official accounts to engage in political speech, reaching hundreds of thousands of 

viewers with political messages. It has no grounds to punish a reservist for private speech delivered 

while not on orders or performing IDTs at a retirement ceremony on private property before 25 

guests. If the Air Force were to censor Maj. Yarbrough’s speech while allowing other forms of 

expression on matters of public concern to go unchecked, it would constitute unconstitutional 

viewpoint discrimination. The Air Force should rescind the Letter on this basis alone.

Maj. Yarbrough’s speech to which the Letter appears to object was apolitical

The Letter appears to admonish Maj. Yarbrough because certain portions of his speech did 

not “remain apolitical.” For example, the Letter cites Maj. Yarbrough’s charge that the audience 

“‘let the lie come, but not through me.’” This is, as Maj. Yarbrough’s speech made clear, a direct 

quote from the work of Aleksandr Solzhenitsyn, in which he admonishes his readers to refuse to lie 

or participate in false or dishonest conduct. Integrity is the Air Force’s first and arguably “most 

important core value.”10 Simply put, encouraging integrity cannot be a punishable violation of the 

UCMJ.

As another example, the Letter appears to admonish Maj. Yarbrough for stating that he 

“fear[ed] . . . ‘radical political factions’” influencing the military. Warning against politicizing the 

military is utterly consistent with American military tradition and doctrine, even when such 

warnings are delivered in the context of and in direct response to recent political events for the 

purpose of disseminating those warnings to the American public.

11

 Warning against the 

politicization of the military does not violate the UCMJ.

5 https://bit.ly/3D6TBtK

6

Id.; https://twitter.com/16thSMA

7 https://www.defense.gov/News/News-Stories/Article/Article/2534159/press-secretary-smites-fox-hostthat-dissed-diversity-in-us-military/

8 https://www.military.com/daily-news/2020/06/08/guard-wont-punish-soldiers-who-took-kneeprotests.html

9

Id.

10 https://www.jbcharleston.jb.mil/News/Commentaries/Display/Article/860665/integrity-our-mostimportant-core-value/

11 https://edition.cnn.com/2020/06/11/politics/milley-trump-appearance-mistake/index.html

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Conclusion

A Letter of Admonishment is improper under these circumstances. Maj. Yarbrough was 

not subject to the Air Force’s jurisdiction on June 11, 2021. Moreover, any attempt to punish or 

take adverse action against him for his speech constitutes unlawful viewpoint discrimination, 

especially when that speech is fundamentally consistent with American military tradition, doctrine, 

and recent practice.

For the reasons stated herein, we request you rescind the Letter and take no further action 

against Maj. Yarbrough. Thank you for your consideration in this matter. Please contact me if 

necessary to discuss any aspect of this request.

Sincerely,

Michael Berry 

General Counsel, First Liberty Institute 

2001 W. Plano Pkwy, Ste 1600 

Plano, TX 75075 

(972) 941-4400

Copy to:

Colonel Todd Pennington, USAF

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DEPARTMENT OF THE AIR FORCE 

UNITED STATES SPACE FORCE

HEADQUARTERS SPACE OPERATIONS COMMAND

.

17 December 2021

Lt Col Andrea M. Hall

Acting as the Staff Judge Advocate

HQ SpOC/JA

150 Vandenberg Street, Suite 1150

Peterson AFB CO 80914-4020

Mr. Michael Berry

General Counsel

First Liberty Institute

2001 W. Plano Pkwy, Suite 1600

Plano, TX 75075

Dear Mr. Berry,

Thank you for your letter regarding your client Maj Jace Yarbrough in response 

to the Letter of Admonishment he received from Lt Col Schmick. We ensured your 

letter and analysis was considered as part of Maj Yarbrough’s response. Regarding 

Department of the Air Force jurisdiction in this matter, please reference Air Force 

Instruction 36-2907, Adverse Administrative Actions, 22 May 2020, paragraph 2.1:

Use of Administrative Counselings, Admonishments, and Reprimands. 

General officers, commanders, first sergeants, supervisors, and other 

individuals in the member’s administrative or operational chain of 

command can issue administrative actions. This includes issuing 

administrative counseling, admonishment, and reprimands to ARC 

Airmen who commit an offense while in civilian status.

ARC Airmen refers to members of the Air Reserve Component. 

Thank you again for your letter. We appreciate the early opportunity to 

engage on matters of legal concern.

Sincerely

ANDREA M. HALL, Lt Col, USAF

Acting as the Staff Judge Advocate

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January 26, 2022

Colonel James T. Horne, USSF

Deputy Director, Launch and Range Operations

Space Systems Command

Patrick Space Force Base, Florida

Subject: Letter of Admonishment ICO Major Jace Yarbrough, USAFR

Dear Colonel Horne:

First Liberty Institute represents Major (Maj) Jace Yarbrough, USAFR, in this 

matter. Please direct all correspondence related to this matter to me. This letter is 

submitted in response to Lieutenant Colonel (Lt Col) Andrea Hall’s letter of December 17, 

2021, rejecting our initial request that you rescind the Letter of Admonishment (LOA),

and to Lt Col Peter Schmick’s decision to sustain that LOA, issued to Maj Yarbrough on 

August 25, 2021. 

For the reasons set forth herein and in our letter of November 5, 2021, we again 

respectfully request you rescind the LOA. The Air Force had no jurisdiction over Maj 

Yarbrough at the time of the alleged incident, and the events in question do not amount to 

misconduct.

Background

In early 2021, Senior Master Sergeant (SMSgt) Fish, USAF (Ret), invited Maj 

Yarbrough to deliver a speech at his retirement ceremony aboard the Battleship Missouri 

Memorial, in Pearl Harbor, Hawaii. Maj Yarbrough agreed to do so and delivered remarks 

in uniform at SMSgt Fish’s retirement ceremony on June 11, 2021. Due to regulations in 

place because of COVID-19, total attendance at the ceremony was restricted to twenty-five 

attendees.

The U.S. Air Force did not activate Maj Yarbrough or issue him orders to attend 

SMSgt Fish’s retirement ceremony. Maj Yarbrough did not request and the Air Force did 

not authorize Maj. Yarbrough to participate in the retirement ceremony in his official 

capacity. The Air Force did not pay Maj Yarbrough or compensate him in any way, nor 

did it fund his travel from Texas to Hawaii and back. Instead, Maj Yarbrough—a 

reservist—took time off from his civilian job, made his own travel arrangements, and paid 

personally for his airfare, rental car, hotel, and meals. 

SMSgt Fish’s retirement ceremony did not take place aboard a military installation. 

The government decommissioned the USS Missouri in 1992, and in 1998 transferred its 

ownership to a private entity, the USS Missouri Memorial Association, whereby it became 

the Battleship Missouri Memorial. Ownership remains with the USS Missouri Memorial 

Association to this day.

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Based on these facts, Maj Yarbrough traveled to, attended, and spoke at SMSgt 

Fish’s retirement ceremony in his capacity as a private citizen. Both as a private citizen 

and as a reserve officer, Maj Yarbrough retains his First Amendment rights, and it is 

entirely inappropriate to limit his rights merely because someone who heard his remarks 

expressed disapproval or disagreement with them.

Legal Analysis

1. The Air Force did not have jurisdiction over Maj Yarbrough at the time he made 

his speech.

In her letter, Lt Col Hall cited paragraph 2.1 of AFI 36-2907, Adverse 

Administrative Actions, as the basis for jurisdiction over Maj Yarbrough. But her reliance 

on that Instruction is misplaced. As a reservist who was not in a duty status at the time of 

the speech, Maj Yarbrough was not subject to Air Force jurisdiction. In accordance with 

Article 2, UCMJ, 10 U.S.C. § 802, there are only two ways a reserve member can be subject 

to Air Force jurisdiction: 1) he is on active duty orders; or 2) he is in an inactive-duty 

training status. The Air Force cannot expand its jurisdiction beyond these statutory 

limitations. 

The Judge Advocate General (TJAG) of the Air Force agrees. In OpJAGAF 2019-

21, AIR NATIONAL GUARD, the TJAG recognizes the principles set forth in 10 U.S.C. 

§ 802:

“A Title 10 commander generally may not take disciplinary and/or 

administrative action against an ANG member in Title 32 status for 

misconduct that took place while the ANG member was on Title 32 orders.” 

[Emphasis added]

 

OpJAGAF 2019-21 cites United States v. Hale, 78 M.J. 268 (C.A.A.F. 2019) for support. 

As explained in our November 5, 2021 letter, in Hale the nation’s highest military court

held that the Air Force does not have jurisdiction over offenses that occurred while a 

reservist was not in an active military status. 

OpJAGAF 2019-21 also accords with the National Guard Bureau’s position in 

recent litigation. In Kennedy v. Austin, No. 21-cv-00772 (D. Co., Mar. 17, 2021), the 

National Guard Bureau improperly reprimanded a Colorado National Guard member for 

his off-duty attendance at a Black Lives Matter (BLM) protest that unexpectedly resulted 

in violence. After being reprimanded for attending the BLM protest, the National Guard 

member sued, alleging the reprimand was improper. The National Guard Bureau 

thereafter rescinded the reprimand, acknowledging that jurisdiction is only available 

when a member is in Title 10 status. 

Because Maj Yarbrough was neither on active duty orders, nor in an inactive-duty 

training status, the Air Force lacked jurisdiction over him. He acted as a private citizen, 

and engaged in private speech on private property. The LOA must be rescinded on this

basis alone.

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2. Maj Yarbrough’s speech is protected by the First Amendment and is not subject 

to adverse action.

Maj Yarbrough gave his speech in his capacity as a private citizen, which alone 

warrants rescinding the LOA. In addition, even if he had given the speech while in an active 

status, it would be fully protected by the First Amendment to the Constitution, which also 

requires rescission of the LOA.

While the “military is a specialized organization, one whose efficiency may at times 

be vital to the national interest,” this interest must be reconciled “with the First 

Amendment rights of the participants.” Stolte v. Laird, 353 F. Supp. 1392, 1403 (D.D.C. 

1972). Military members do not relinquish their constitutional rights and freedoms by 

virtue of wearing the uniform. In fact, “[m]ilitary personnel retain their basic rights and 

freedoms as American citizens, subject only to those limitations necessary in the interests 

of good order and discipline, the unique components of their specialized environment.” 

Id. at 1402-03. 

In Stolte, the Army assigned two active duty members to a basic training 

installation during the Vietnam War. Id. at 1393. The Army charged both soldiers with 

violating Uniform Code of Military Justice (UCMJ) Articles 134 and 81 for distributing 150 

copies of leaflets on the installation expressing their disapproval of the war. Id. at 1393-

94. The Army viewed such action as a publicly uttered statement “disloyal to the United 

States with design to promote disloyalty and disaffection among the troops and civilian 

populace.” Id. at 1394. As a result, the Army sentenced the soldiers to dishonorable 

discharges, forfeiture of all pay and allowances, and confinement at hard labor for three 

years. The district court, however, reversed the Army’s decision, holding that the 

convictions violated the soldiers’ constitutional rights.

Importantly, the Stolte court held that “[t]o justify restrictions on military 

personnel that do not apply to civilians, it would be necessary to show a peculiar harm to 

morale and discipline specially resulting from the fact that anti-war views were expressed 

by a soldier rather than a civilian.” Id. at 1403. And even though the soldiers made the 

statements at issue on a military installation, the court was compelled by the fact that 

“[t]here was easy access and communication to the civilian world, where anti-war dissent 

was common and increasingly vehement at the times involved [therein].” Id. at 1404. In 

fact, the court noted that, “[j]ust as ‘[c]onduct that annoys some people does not annoy 

others,’ so also that which is disloyalty to some may seem to others the highest form of 

patriotism.” Id. at 1398-99.

Similarly, the subjects Maj Yarbrough addressed continue to be widely and 

commonly debated in the both the military and civilian communities. “[M]ilitary 

authorities [cannot], therefore, punish all statements deemed to adversely affect 

‘motivation’ or ‘morale’ in a general sense. For this would render meaningless even that 

limited freedom of speech recognized by the military as a soldier’s constitutional right.” 

Stolte at 1403. 

3. Punishing Maj Yarbrough for his speech is unlawful viewpoint discrimination.

Finally, not only is Maj Yarbrough’s speech protected by the First Amendment, but 

taking any action against him because of his speech is unlawful. The Air Force may only 

restrict certain speech if the restrictions are “reasonable and ‘not an effort to suppress 

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expression merely because public officials oppose the speaker’s view.’” Nieto v. Flatau, 

715 F. Supp. 2d 650, 655 (E.D.N.C. 2010) (quoting Perry Educ. Ass’n v. Perry Local 

Educators’ Ass’n, 460 U.S. 37, 46 (1983)). And while the Air Force may have the limited 

ability to regulate some speech and expressive activity by service members, it may not do 

so in a manner that discriminates against a particular viewpoint. Nieto, 715 F. Supp. 2d. 

at 656. As explained in our November 5, 2021 letter, the Department of Defense continues 

to permit and even encourage expressive conduct by service members on many 

controversial topics. It cannot do so while prohibiting different viewpoints on those same 

topics. The Constitution forbids such selective enforcement against Maj Yarbrough while 

others are free to express views on controversial topics simply because those views 

represent the Air Force’s preferred viewpoint. 

Conclusion

For the reasons set forth in herein and in our November 5, 2021 letter, we 

respectfully request that you rescind the LOA and take no further action against Maj 

Yarbrough. While we hope to resolve this matter quickly and amicably, we are prepared 

to take the necessary legal action to vindicate Maj Yarbrough’s rights.

Thank you for your consideration in this matter. Please contact me if necessary to 

discuss any aspect of this request.

Sincerely,

Michael Berry

General Counsel, First Liberty Institute

2001 W. Plano Pkwy, Ste 1600

Plano, TX 75075

(972) 941-4400

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DEPARTMENT OF THE AIR FORCE 

UNITED STATES SPACE FORCE

HEADQUARTERS SPACE OPERATIONS COMMAND

.

Semper Supra

4 February 2022

Colonel Ted Richard

Staff Judge Advocate

HQ SpOC/JA

150 Vandenberg Street, Suite 1150

Peterson SFB CO 80914-4020

Mr. Michael Berry 

General Counsel

First Liberty Institue

2001 W. Plano Pkwy, Suite 1600

Plano, TX 75075

Dear Mr. Berry,

Thank you for your letter regarding your client Maj Jace Yarbrough in response to 

Lt Col Hall’s letter. You cited OpJAGAF 2019-21, however, the current version of AFI 36-

2907 was published on 22 May 2020. Paragraph 2.1 specifically states: “General officers, 

commanders, first sergeants, supervisors, and other individuals in the member’s 

administrative or operational chain of command can issue administrative actions. This 

includes issuing administrative counseling, admonishment, and reprimands to ARC Airman

who commit an offense while in civilian status.”

Additionally, your letter makes multiple references to issues of criminal jurisdiction. 

The LOA that was issued to Maj Yarbrough is an administrative matter. See Williams v. 

Roche, 468 F. Supp 2d 836, 849 (2007) “in the military context, administrative discharge 

hearings are not criminal procedures...” 

Finally, your letter argues the issuance of the LOA was a violation of Maj Yarbrough’s 

right to free speech. While servicemembers are protected by the First Amendment, 

courts have historically been quick to reiterate that servicemembers’ rights are not the 

same as their civilian counterparts. OpJAGAF 2013-3 citing United States v. Zimmerman, 

43 MJ 782, 785 (ACCA 1996) (citing United States v. Priest, 45 C.M.R. 338 (CMA 1972).

Thank you again for your letter but we remain convinced the LOA was both lawful an 

appropriate. 

THEODORE T. RICHARD, Colonel, USAF

Staff Judge Advocate

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April 12, 2022 

Brigadier General Douglas A. Schiess, USSF

Deputy Commanding General, Operations 

Headquarters, Space Operations Command 

Peterson Air Force Base, CO 80914 

Re: Appeal of Letter of Admonishment ICO Major Jace Yarbrough, USAFR 

Dear Brigadier General Schiess, 

First Liberty Institute represents Major (Maj) Jace Yarbrough, USAFR, in this 

matter. Please direct all correspondence related to this matter to me. This letter is submitted in 

response to Colonel Theodore T. Richard’s letter of February 4, 2022. 

For the reasons set forth herein and in our letters of November 5, 2021, and January 26, 

2022, we again respectfully request you rescind the Letter of Admonishment. The Air Force 

lacked jurisdiction over Maj Yarbrough at the time of the alleged incident, and the events in 

question do not amount to misconduct. 

Background

In early 2021, Senior Master Sergeant (SMSgt) Fish, USAF (Ret), invited Maj Yarbrough 

to deliver a speech at his June 11, 2021 retirement ceremony aboard the Battleship 

Missouri Memorial, in Pearl Harbor, Hawaii. Maj Yarbrough agreed to recognize SMSgt Fish’s 

honorable service and delivered his remarks in uniform. Due to Covid-19 regulations at that 

time, total attendance at the ceremony was restricted to twenty-five attendees. 

Maj Yarbrough participated in the ceremony in his personal, civilian capacity. The 

Department of the Air Force did not activate Maj Yarbrough or issue him orders to attend SMSgt 

Fish’s retirement ceremony. Maj Yarbrough did not request and the Air Force did not 

authorize Maj Yarbrough to participate in the retirement ceremony in his official capacity. The 

Air Force did not pay Maj Yarbrough or compensate him in any way, nor did it fund his travel 

from Texas to Hawaii and back. Instead, Maj Yarbrough—a reservist—took time off from his 

civilian job, made his own travel arrangements, and paid personally for his airfare, rental car, 

hotel, and meals. 

Maj Yarbrough delivered his remarks on private property—not a military installation. The 

USS Missouri was decommissioned in 1992, and in 1998 its ownership was transferred to the USS 

Missouri Memorial Association, a private entity, whereby it became the Battleship Missouri 

Memorial. Ownership remains with the USS Missouri Memorial Association to this day. 

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Maj J. Yarbrough

April 12, 2022 

www.FIRSTLIBERTY.org

Page 2

Based on these facts, Maj Yarbrough traveled to, attended, and spoke at SMSgt Fish’s 

retirement ceremony in his capacity as a friend and private citizen. Nevertheless, the Air Force 

issued Maj Yarbrough a Letter of Admonishment (LOA) on August 25, 2021, after certain military 

members present at the ceremony complained about the content of Maj Yarbrough’s speech. 

On November 5, 2021, Maj Yarbrough, through counsel, submitted a response to the LOA. 

On December 17, 2021, the Air Force replied stating, “[w]e ensured your letter and analysis was 

considered as part of Maj Yarbrough’s response.” However, like the LOA, the reply improperly 

relied on paragraph 2.1 in AFI 36-2907, Adverse Administrative Actions, May 22, 2020 as the basis 

for the Air Force having jurisdiction over Maj Yarbrough and failed to address our legal concerns 

over the speech being protected and mischaracterized as misconduct. On January 26, 2022, Maj 

Yarbrough appealed the December 17, 2021 decision. 

On February 4, 2022, the Air Force responded and once again improperly relied upon 

paragraph 2.1 in AFI 36-2907 as the basis for jurisdiction while also suggesting that Maj 

Yarbrough’s reference to OpJAGAF 2019-21, 30 April 2019, AIR NATIONAL GUARD in 

support of our jurisdictional argument was somehow incorrect. To be clear, the legal rationale in 

OpJAGAF 2019-21 is relevant and applicable in light of the May 22, 2020 update to AFI 36-2907

because 10 U.S.C. § 802 is still the only statutory authority available for SECAF to exercise 

military jurisdiction over reservist Airmen who are subject to adverse administrative action. 

Congress did not grant SECAF the authority to expand the Air Force’s jurisdictional reach to

reservists in a civilian status. See 10 U.S.C. § 9013.

1

Legal Analysis

1. The Air Force did not have jurisdiction over Maj Yarbrough at the time he made his

speech.

Maj Yarbrough was not subject to military jurisdiction at the time of his alleged 

misconduct. Articles 2(a) and 2(c) of the Uniform Code of Military Justice (UCMJ) define the 

relevant instances where military jurisdiction applies.

Article 2(a) applies when the Department of Defense either calls or orders the member to 

active duty status, or while the member is in an inactive-duty training status. 10 U.S.C. § 802(a). 

The military’s highest court describes this as an “all-or-nothing condition” for Article 2(a) 

1 Specifically, pursuant to 10 U.S.C. § 9013(g),

“The Secretary of the Air Force may--

(1) assign, detail, and prescribe the duties of members of the Air Force, members of the Space Force, and civilian

personnel of the Department of the Air Force;

(2) change the title of any officer or activity of the Department of the Air Force not prescribed by law; and

(3) prescribe regulations to carry out his functions, powers, and duties under this title.” (emphasis added).

There is no evidence, either in the text of this Code provision or its legislative history, to support the Air Force’s 

position that Congress intended to grant SECAF the authority to expand the Air Force’s jurisdictional reach over 

reservists in a civilian status.

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jurisdiction to apply to a service member’s conduct. Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 

1986). “Simply being a member of a reserve component” is insufficient to confer jurisdiction. 

United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019); see also United States v. Morita, 74 M.J. 

116 (C.A.A.F. 2015).

Article 2(c) determines jurisdiction based on the following four-part test: the person 

serving (1) submitted voluntarily to military authority; (2) was mentally competent at the time he 

voluntarily submitted to military authority; (3) received military pay and allowances; and (4) 

performed military duties. 10 U.S.C. § 802(c).

Because Maj Yarbrough was never ordered to active duty status and was not in an inactiveduty training status at the time he gave his speech, he was not subject to Article 2(a) jurisdiction. 

He also was not subject to Article 2(c) jurisdiction because he did not (1) submit to military 

authority, (2) receive military pay and allowances, or (3) perform military duties at the time of his 

speech. For these reasons, and because there is no sound statutory or legal basis for SECAF’s

unilateral and unauthorized expansion of military jurisdiction beyond 10 U.S.C. § 802 by way of 

AFI 36-29072, the Air Force improperly issued an LOA to Maj Yarbrough for his protected speech 

on June 11, 2021. Therefore, the LOA should be rescinded.

2. Maj Yarbrough’s speech is protected by the First Amendment and is not subject to

adverse action.

The Air Force should also rescind the LOA because Maj Yarbrough engaged in speech 

protected by the First Amendment to the U.S. Constitution during SMSgt Fish’s retirement 

ceremony. Service members do not forfeit their First Amendment rights by virtue of their military 

service. And even under circumstances during which service members’ right of speech and 

expression may be abridged, the government cannot censor such speech in an arbitrary and 

capricious manner.

The LOA appears to admonish Maj Yarbrough because certain portions of his speech did 

not “remain apolitical.” For example, the LOA cites Maj Yarbrough’s charge that the audience 

“‘let the lie come, but not through me.’” This is, as Maj Yarbrough’s speech made clear, a direct 

quote from the work of Aleksandr Solzhenitsyn, an outspoken critic of communism, in which he 

admonishes his readers to refuse to lie or participate in false or dishonest conduct. Integrity is the 

Air Force’s first and arguably “most important core value.”3 Simply put, encouraging integrity 

cannot be a punishable violation of the UCMJ. 

2 SECAF’s general authority to “prescribe regulations to carry out his functions, powers, and duties” under 10 

U.S.C. § 9013 does not provide SECAF with the specific authority to unilaterally expand the Air Force’s 

jurisdictional reach to reservists in a civilian status by way of an Air Force instruction, specifically AFI 36-2907, 

which allows “individuals in the member’s administrative or operational chain of command” to issue an 

“administrative counseling, admonishment, and reprimands to ARC Airmen who commit an offense while in civilian 

status.” Para. 2.1. (emphasis added). If SECAF seeks such authority, it must be granted by Congress. 3 https://www.jbcharleston.jb.mil/News/Commentaries/Display/Article/860665/integrity-our-most-important-corevalue/

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As another example, the LOA appears to admonish Maj Yarbrough for stating that he 

“fear[ed] . . . ‘radical political factions’” influencing the military. Warning against politicizing the 

military is utterly consistent with American military tradition and doctrine, even when such 

warnings are delivered in the context of and in direct response to recent political events and for 

the purpose of disseminating those warnings to the American public.4 Warning against the 

politicization of the military does not qualify as “political speech” and does not violate the UCMJ.

“It is axiomatic that the government may not regulate speech based on its substantive 

content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 

828 (1995) (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972)). This constitutional 

rule applies to the military with equal force. Nieto v. Flatau, 715 F. Supp. 2d 650, 655 (E.D.N.C. 

2010) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). 

“[R]egulations that ‘selectively grant[ ] safe passage to speech of which [officials] approve 

while curbing speech of which they disapprove’ are impermissible, even in the military.” Nieto, 

715 F.Supp at 655. This is particularly true when the speech is made in a public employee’s

capacity as a private citizen on a matter of public concern, even if it may be critical in tone.

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968); see also Cortright v. 

Resor, 447 F.2d 245, 256 (2d Cir. 1971) (Oakes, C.J., dissenting) (“Soldiers must be held to have 

basic civil rights, including those of petitioning the Government for a redress of grievances and 

speaking freely off-duty. The Government here, as has been said, doesn’t really argue that soldiers 

don’t have these basic rights, at least off-duty, but this is still the fundamental question. It must be 

answered in the affirmative for the safety of the country: a Specialist Cortright and a General Gavin 

must equally be permitted to persuade the public, the Congress or the Executive that, for example, 

a given course of military-diplomatic action or foreign policy is wrong.”).

In the Air Force’s letter of 4 February 2022, Col Richard asserts that “[w]hile 

servicemembers are protected by the First Amendment, courts have historically been quick to 

reiterate that servicemembers’ rights are not the same as their civilian counterparts. OpJAGAF 

2013-3, citing United States v. Zimmerman, 43 M.J. 782, 785 (A.C.C.A. 1996) (citing United 

States v. Priest, 45 C.M.R. 338 (C.M.A. 1972)).” While this may be true, reliance on this assertion

as an appropriate justification for issuing the LOA incorrectly assumes that the Air Force had 

UCMJ jurisdiction over Maj Yarbrough at the time he made his speech, which Col Richard agrees 

was not the case5

. Furthermore, even if the Air Force had UCMJ jurisdiction over Maj Yarbrough,

the facts and holding in Zimmerman are entirely misplaced. (“Evidence that appellant was 

motivated by white supremacist views when he wrongfully disposed of stolen military munitions 

to what he believed was a white supremacist group constitutes aggravating circumstances that 

directly relate to the offense. R.C.M. 1001(b)(4).” Zimmerman, 43 M.J. at 786).

4 See, e.g., https://edition.cnn.com/2020/06/11/politics/milley-trump-appearance-mistake/index.html 5 “Additionally, your letter makes multiple references to issues of criminal jurisdiction. The LOA that was issued to 

Maj Yarbrough is an administrative matter. See Williams v. Roche, 468 F. Supp 2d 836, 849 (2007) ‘in the military 

context, administrative discharge hearings are not criminal procedures...’” Letter from Col Ted Richard to Mr. 

Michael Berry dated 4 February 2022.

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Simply because military members expressed displeasure with Maj Yarbrough’s speech at 

SMSgt Fish’s retirement ceremony does not make it worthy of restriction or adverse action. In 

fact, by restricting Maj Yarbrough’s June 11, 2021 speech, the Air Force violated the First 

Amendment. Because Maj Yarbrough was speaking in his capacity as a private citizen, not on 

orders, on a matter of public concern, the Air Force has no legal basis to restrict such speech and

the LOA should be rescinded.

Conclusion

For the reasons set forth in our letters of November 5, 2021, January 26, 2022, and herein, 

and there being no jurisdictional or substantive basis for issuing adverse action against Maj 

Yarbrough for his June 11, 2021 protected speech, it is respectfully requested that the LOA be 

immediately rescinded to avoid the need for further action. 

Thank you for your consideration in this matter. Please contact me if necessary to discuss 

any aspect of this request.

Sincerely,

Michael Berry 

Director of Military Affairs, 

First Liberty Institute 

2001 W. Plano Pkwy, Ste 1600 

Plano, TX 75075 

(972) 941-4400

Attachments:

1. August 25, 2021 USAF Letter of Admonishment

2. November 5, 2021 First Liberty Institute Response on Behalf of Maj Jace Yarbrough, USAFR

3. December 17, 2021 USAF Response

4. January 26, 2022 First Liberty Institute Appeal on Behalf of Maj Jace Yarbrough, USAFR

5. February 4, 2022 USAF Response

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2001 WEST PLANO PARKWAY. SUITE 1600 • PLANO, TX 75075 • PHONE: 972-941-4444 • FIRSTLIBERTY.ORG

July 20, 2022 

Lieutenant General Stephen N. Whiting

Commander, Space Operations Command

Headquarters, Space Operations Command

Peterson Air Force Base, CO 80914

Sent via email 

Re: Appeal of Letter of Admonishment ICO Major Jace Yarbrough, USAFR

Dear Lieutenant General Whiting,

First Liberty Institute represents Major (Maj) Jace Yarbrough, USAFR, in this matter. This 

letter is submitted in response to Brigadier General Douglas A. Scheiss’s letter of April 18, 2022. 

For the reasons set forth herein and in our letters of November 5, 2021, January 26, 2022, 

and April 12, 2022, we again respectfully request that the Air Force rescind the Letter of 

Admonishment (LOA) issued to Maj Yarbrough on August 25, 2021. The Air Force lacked

jurisdiction over Maj Yarbrough at the time of the alleged incident, and the events in question do 

not amount to misconduct.

Background

In early 2021, Senior Master Sergeant (SMSgt) Fish, USAF (Ret), invited Maj Yarbrough 

to participate at his June 11, 2021 retirement ceremony aboard the Battleship Missouri Memorial, 

in Pearl Harbor, Hawaii. Maj Yarbrough agreed to recognize SMSgt Fish’s honorable service and 

delivered his remarks in uniform. Due to COVID-19 regulations at that time, total attendance at 

the ceremony was restricted to twenty-five attendees.

Maj Yarbrough participated in the ceremony in his personal, civilian capacity. The 

Department of the Air Force did not activate Maj Yarbrough or issue him orders to attend SMSgt 

Fish’s retirement ceremony. Maj Yarbrough did not request and the Air Force did not authorize 

Maj Yarbrough to participate in the retirement ceremony in his official capacity. The Air Force 

did not pay Maj Yarbrough or compensate him in any way, nor did it fund his travel from Texas 

to Hawaii and back. Instead, Maj Yarbrough—a reservist—took time off from his civilian job, 

made his own travel arrangements, and paid personally for his airfare, rental car, hotel, and meals.

Maj Yarbrough delivered his remarks on private property—not a military installation. The 

Navy decommissioned the USS Missouri in 1992, and in 1998 transferred its ownership to the 

USS Missouri Memorial Association, a private entity, whereby it became the Battleship Missouri 

Memorial. Ownership remains with the USS Missouri Memorial Association to this day. 

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Based on these facts, Maj Yarbrough traveled to, attended, and spoke at SMSgt Fish’s 

retirement ceremony in his capacity as a friend and private citizen. Nevertheless, the Air Force 

issued Maj Yarbrough a LOA on August 25, 2021, after certain military members present at the 

ceremony complained about the content of Maj Yarbrough’s speech. 

On November 5, 2021, Maj Yarbrough, through First Liberty Institute as counsel,

submitted a response to the LOA. On December 17, 2021, the Air Force replied stating, “[w]e 

ensured your letter and analysis was considered as part of Maj Yarbrough’s response.” However, 

like the LOA, the reply improperly relied on paragraph 2.1 in AFI 36-2907, Adverse Administrative 

Actions, May 22, 2020, as the basis for the Air Force having jurisdiction over Maj Yarbrough and 

failed to address Maj Yarbrough’s position that his speech was fully protected by the First 

Amendment to the United States Constitution and mischaracterized by the Air Force as 

misconduct. On January 26, 2022, Maj Yarbrough appealed the December 17, 2021 decision. 

On February 4, 2022, the Air Force responded and once again improperly relied upon 

paragraph 2.1 in AFI 36-2907 as the basis for jurisdiction while also suggesting that Maj 

Yarbrough’s reference to OpJAGAF 2019-21, 30 April 2019, AIR NATIONAL GUARD in 

support of his jurisdictional argument was somehow incorrect. To be clear, the legal rationale in 

OpJAGAF 2019-21 is relevant and applicable despite the May 22, 2020 update to AFI 36-2907

because 10 U.S.C. § 802 is still the only statutory authority available for SECAF to exercise 

military jurisdiction over reservist Airmen who are subject to adverse administrative action. 

Congress did not grant SECAF the authority to expand the Air Force’s jurisdictional reach to

reservists in a civilian status. See 10 U.S.C. § 9013.

1

On April 12, 2022, Maj Yarbrough appealed the decision to uphold the LOA, which was 

then upheld by the Air Force in a letter dated April 18, 2022. This letter now serves as Maj 

Yarbrough’s fourth appeal of the LOA.

1 Specifically, pursuant to 10 U.S.C. § 9013(g):

“The Secretary of the Air Force may--

(1) assign, detail, and prescribe the duties of members of the Air Force, members of the Space Force, and civilian

personnel of the Department of the Air Force;

(2) change the title of any officer or activity of the Department of the Air Force not prescribed by law; and

(3) prescribe regulations to carry out his functions, powers, and duties under this title.” (emphasis added).

There is no support, either in the text of this Code provision or its legislative history, for the Air Force’s position that 

Congress intended to grant SECAF the authority to expand the Air Force’s jurisdictional reach over reservists in a 

civilian status.

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Legal Analysis

1. The Air Force lacked jurisdiction over Maj Yarbrough at the time of his protected

speech.

Maj Yarbrough was not subject to military jurisdiction when, in civilian status and on a 

personal trip, he engaged in speech fully protected by the First Amendment. Articles 2(a) and 2(c) 

of the Uniform Code of Military Justice (UCMJ) define when the Department of Defense has 

jurisdiction over a service member. 

Article 2(a) applies when the Department of Defense either calls or orders the member to 

active duty status, or while the member is in an inactive-duty training status. 10 U.S.C. § 802(a). 

The military’s highest court describes this as an “all-or-nothing condition” for Article 2(a) 

jurisdiction to apply to a service member’s conduct. Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 

1986). “Simply being a member of a reserve component” is insufficient to confer jurisdiction. 

United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019); see also United States v. Morita, 74 M.J. 

116 (C.A.A.F. 2015). 

Article 2(c) determines jurisdiction based on the following four-part test: the person 

serving (1) submitted voluntarily to military authority; (2) was mentally competent at the time he 

voluntarily submitted to military authority; (3) received military pay and allowances; and (4) 

performed military duties. 10 U.S.C. § 802(c). 

Because Maj Yarbrough was never ordered to active duty status and was not in an inactiveduty training status at the time he gave his speech, he was not subject to Article 2(a) jurisdiction. 

He also was not subject to Article 2(c) jurisdiction because he did not (1) submit to military 

authority, (2) receive military pay and allowances, or (3) perform military duties at the time of his 

speech. For these reasons, and because there is no sound statutory or legal basis for SECAF’s 

unilateral and unauthorized expansion of military jurisdiction beyond 10 U.S.C. § 802 by way of 

AFI 36-29072, the Air Force improperly issued a LOA to Maj Yarbrough for his protected 

speech on June 11, 2021. Therefore, the LOA should be rescinded. 

2. Maj Yarbrough’s speech is protected by the First Amendment and is not subject to

adverse action.

The Air Force should also rescind the LOA because Maj Yarbrough engaged in speech 

protected by the First Amendment to the U.S. Constitution during SMSgt Fish’s retirement 

ceremony. Service members do not forfeit their First Amendment rights by virtue of their military 

service. And even under circumstances during which service members’ right of speech and 

2 SECAF’s general authority to “prescribe regulations to carry out his functions, powers, and duties” under 10 U.S.C.

§ 9013 does not provide SECAF with the specific authority to unilaterally expand the Air Force’s jurisdictional reach

to reservists in a civilian status by way of an Air Force instruction, specifically AFI 36-2907, which allows “individuals

in the member’s administrative or operational chain of command” to issue an “administrative counseling,

admonishment, and reprimands to ARC Airmen who commit an offense while in civilian status.” Para. 2.1. (emphasis

added). If SECAF seeks such authority, it must be granted by Congress.

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expression may be abridged, the government cannot censor such speech in an arbitrary and 

capricious manner. 

“It is axiomatic that the government may not regulate speech based on its substantive 

content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 

828 (1995) (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972)). This constitutional 

rule applies to the military with equal force. Nieto v. Flatau, 715 F. Supp. 2d 650, 655 (E.D.N.C. 

2010) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). 

“[R]egulations that ‘selectively grant[ ] safe passage to speech of which [officials] approve 

while curbing speech of which they disapprove’ are impermissible, even in the military.” Nieto, 

715 F. Supp at 655. This is particularly true when the speech is made in a public employee’s 

capacity as a private citizen on a matter of public concern, even if it may be critical in tone. 

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). 

While the “military is a specialized organization, one whose efficiency may at times be 

vital to the national interest,” this interest must be reconciled “with the First Amendment rights of 

the participants.” Stolte v. Laird, 353 F. Supp. 1392, 1403 (D.D.C. 1972). Military members do 

not dispose of their Constitutional rights and freedoms by virtue of wearing the uniform. In fact, 

“[m]ilitary personnel retain their basic rights and freedoms as American citizens, subject only to 

those limitations necessary in the interests of good order and discipline, the unique components 

of their specialized environment.” Id. at 1402-03. And, as the Supreme Court determined on 

June 27, 2022 in Kennedy v. Bremerton School District, No. 21-418, 2022 WL 2295034, at *26 

(2022), “[b]ut learning how to tolerate speech or prayer of all kinds is ‘part of learning how to 

live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” (citation 

omitted). 

The Air Force’s issuance of a LOA to Maj Yarbrough for his off-duty speech as a private 

citizen on a matter of public concern is nothing less than a discriminatory double standard intended 

to punish certain viewpoints. Indeed, the military has recently permitted service members to 

engage in a wide variety of expression even while on active duty and in uniform. In the wake of 

George Floyd’s death, on June 3, 2020, General Joseph L. Lengyel, Chief of the National Guard 

Bureau, issued a letter on official letterhead that stated, in part, “[e]veryone who wears the uniform 

of our country takes an oath to uphold the Constitution and everything for which it stands. If we 

are to fulfill our obligation as service members, as Americans, and as decent human beings, we 

have to take our oath seriously. We cannot tolerate racism, discrimination, or casual violence. We 

cannot abide divisiveness and hate. We cannot stand by and watch. We ask for the intercession 

of what Abraham Lincoln called ‘the better angels of our nature.’”3 To our knowledge, no adverse 

action was taken against Gen Lengyel for his speech, nor was it deemed insubordinate, 

disrespectful, or unbecoming for an officer in the military. 

3 https://www.marinecorpstimes.com/2020/06/03/army-navy-leaders-latest-to-speak-out-about-racism-in-wake-ofgeorge-floyds-death-in-police-custody/

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Again in 2019, the military permitted service members in uniform to participate in a 

political parade “to show opposition to the Trump Administration’s ban on transgender troops.”4 

In support of this parade, the California Guard’s 144th Fighter Wing conducted a four-ship, F-15 

flyover, and military members conducted a public re-enlistment ceremony that, according to the 

parade organizer, was intended to “sen[d] the clear message, ‘We are done with Trump’s antitransgender rhetoric.”5 According to media reports, approximately 250,000 spectators were present 

at the parade, 6 and to our knowledge, no disciplinary action was taken against the participating 

service members.

Furthermore, the LOA is arbitrary and capricious because it appears to admonish Maj 

Yarbrough because certain portions of his speech did not “remain apolitical.” 5 U.S.C. §706, 

Lewis v. Marsh, 672 F.Supp. 14 (D.D.C. 1987). For example, the LOA cites Maj Yarbrough’s 

charge that the audience “‘let the lie come, but not through me.’” This is, as Maj Yarbrough’s 

speech made clear, a direct quote from the work of Aleksandr Solzhenitsyn, an outspoken critic of 

communism who wrote on the topic through the lens of a faithful Christian, in which he 

admonishes his readers to refuse to lie or participate in false or dishonest conduct. Integrity is the 

Air Force’s first and arguably “most important core value.”7 Simply put, encouraging integrity 

cannot be a punishable violation of the UCMJ. 

As another example, the LOA appears to admonish Maj Yarbrough for stating that he 

“fear[ed] . . . ‘radical political factions’” influencing the military. Warning against politicizing the 

military is utterly consistent with American military tradition and doctrine, even when such 

warnings are delivered in the context of and in direct response to recent political events and for 

the purpose of disseminating those warnings to the American public.8 Warning against the 

politicization of the military does not qualify as “political speech” and does not violate the UCMJ.

By restricting Maj Yarbrough’s June 11, 2021 speech as a private citizen, not on orders, on 

a matter of public concern, the Air Force has acted in an arbitrary and capricious manner and in 

violation of the First Amendment. Simply because military members expressed displeasure with 

Maj Yarbrough’s speech at SMSgt Fish’s retirement ceremony does not make it worthy of 

restriction or adverse action. For these reasons, the Air Force has no legal basis to restrict such 

speech and the LOA should be rescinded. 

4 https://www.nbcsandiego.com/news/local/san-diego-unites-for-pride-parade-2019/132618/ 5 Id.

6 Id.

7 https://www.jbcharleston.jb.mil/News/Commentaries/Display/Article/860665/integrity-our-most-important-corevalue/

8 See, e.g., https://edition.cnn.com/2020/06/11/politics/milley-trump-appearance-mistake/index.html

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Conclusion 

For the reasons set forth in our letters of November 5, 2021, January 26, 2022, April 12, 

2022, and herein, and there being no jurisdictional or substantive basis for issuing adverse action 

against Maj Yarbrough for his June 11, 2021 protected speech, we respectfully request that you 

immediately rescind the LOA to avoid the need for further action. 

Thank you for your consideration in this matter. Please contact us if necessary to discuss 

any aspect of this request. 

Sincerely, 

Michael Berry 

Director of Military Affairs 

Danielle A. Runyan 

Of Counsel 

First Liberty Institute 

2001 W. Plano Pkwy, Ste 1600 

Plano, TX 75075 

(972) 941-4400

Attachments: 

1. April 12, 2022 First Liberty Institute Appeal on Behalf of Maj Jace Yarbrough, USAFR

(with attachments)

2. April 18, 2022 USAF Response

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December 9, 2022 

General B. Chance Saltzman

Chief of Space Operations 

United States Space Force 

2020 U.S. Space Force Pentagon 

STE 4E858 

Washington, D.C. 20330-2000 

Sent via email 

Re: Appeal of Letter of Admonishment ICO Major Jace Yarbrough, USAFR 

Dear General Saltzman, 

First Liberty Institute represents Major (Maj) Jace Yarbrough, USAFR, in this matter. This 

letter is submitted in response to Lieutenant General Stephen N. Whiting’s letter of July 29, 2022. 

For the reasons set forth herein and in our letters of November 5, 2021, January 26, 2022, 

April 12, 2022, and July 20, 2022, we again respectfully request that the Air Force rescind the 

Letter of Admonishment (LOA) issued to Maj Yarbrough on August 25, 2021. The Air Force 

lacked jurisdiction over Maj Yarbrough at the time of the alleged incident, and the events in 

question do not amount to misconduct. 

Background 

In early 2021, Senior Master Sergeant (SMSgt) Fish, USAF (Ret), invited Maj Yarbrough 

to participate at his June 11, 2021, retirement ceremony aboard the Battleship Missouri 

Memorial, in Pearl Harbor, Hawaii. Maj Yarbrough agreed to recognize SMSgt Fish’s honorable 

service and delivered his remarks in uniform. Due to COVID-19 regulations at that time, total 

attendance at the ceremony was restricted to twenty-five attendees. 

Maj Yarbrough participated in the ceremony in his personal, civilian capacity. The 

Department of the Air Force did not activate Maj Yarbrough or issue him orders to attend SMSgt 

2001 WEST PLANO PARKWAY. SUITE 1600 • PLANO, TX 75075 • PHONE: 972-941-4444 • FIRSTLIBERTY.ORG 

Case 4:23-cv-00876-ALM Document 23-10 Filed 02/01/24 Page 25 of 31 PageID #: 436
2001 WEST PLANO PARKWAY. SUITE 1600 • PLANO, TX 75075 • PHONE: 972-941-4444 • FIRSTLIBERTY.ORG

Page 2 

Maj J. Yarbrough

December 9, 2022 

Fish’s retirement ceremony. Maj Yarbrough did not request and the Air Force did not authorize 

Maj Yarbrough to participate in the retirement ceremony in his official capacity. The Air Force 

did not pay Maj Yarbrough or compensate him in any way, nor did it fund his travel from Texas 

to Hawaii and back. Instead, Maj Yarbrough—a reservist—took time off from his civilian job, 

made his own travel arrangements, and paid personally for his airfare, rental car, hotel, and meals. 

Maj Yarbrough delivered his remarks on private property—not a military installation. The 

Navy decommissioned the USS Missouri in 1992, and in 1998 transferred its ownership to the 

USS Missouri Memorial Association, a private entity, whereby it became the Battleship Missouri 

Memorial. Ownership remains with the USS Missouri Memorial Association to this day. 

Based on these facts, Maj Yarbrough traveled to, attended, and spoke at SMSgt Fish’s 

retirement ceremony in his capacity as a friend and private citizen. Nevertheless, the Air Force 

issued Maj Yarbrough a LOA on August 25, 2021, after certain military members present at the 

ceremony complained about the content of Maj Yarbrough’s speech. 

On November 5, 2021, Maj Yarbrough, through First Liberty Institute as counsel, 

submitted a response to the LOA. On December 17, 2021, the Air Force replied stating, “We 

ensured your letter and analysis was considered as part of Maj Yarbrough’s response.” However, 

like the LOA, the reply improperly relied on paragraph 2.1 in AFI 36-2907, Adverse Administrative 

Actions, May 22, 2020, as the basis for the Air Force having jurisdiction over Maj Yarbrough. The 

reply also failed to address Maj Yarbrough’s position that his speech was fully protected by the 

First Amendment to the United States Constitution and mischaracterized by the Air Force as 

misconduct. On January 26, 2022, Maj Yarbrough appealed the December 17, 2021, decision. 

On February 4, 2022, the Air Force responded and once again improperly relied upon 

paragraph 2.1 in AFI 36-2907 as the basis for jurisdiction, while also suggesting that Maj 

Yarbrough’s reference to OpJAGAF 2019-21, 30 April 2019, AIR NATIONAL GUARD in 

support of his jurisdictional argument was somehow incorrect. To be clear, the legal rationale in 

OpJAGAF 2019-21 is relevant and applicable despite the May 22, 2020, update to AFI 36-2907 

because 10 U.S.C. § 802 is still the only statutory authority available for SECAF to exercise 

military jurisdiction over reservist Airmen who are subject to adverse administrative action. 

Congress did not grant SECAF the authority to expand the Air Force’s jurisdictional reach to

reservists in a civilian status. See 10 U.S.C. § 9013.1 

1 Specifically, pursuant to 10 U.S.C. § 9013(g): 

“The Secretary of the Air Force may--

(1) assign, detail, and prescribe the duties of members of the Air Force, members of the Space Force, and civilian

personnel of the Department of the Air Force;

(2) change the title of any officer or activity of the Department of the Air Force not prescribed by law; and

(3) prescribe regulations to carry out his functions, powers, and duties under this title.” (emphasis added).

There is no support, either in the text of this Code provision or its legislative history, for the Air Force’s position that 

Congress intended to grant SECAF the authority to expand the Air Force’s jurisdictional reach over reservists in a 

civilian status.

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Maj J. Yarbrough

December 9, 2022

On April 12, 2022, Maj Yarbrough appealed the decision to uphold the LOA, which was 

upheld by the Air Force in a letter dated April 18, 2022. He then appealed that decision on July 

20, 2022. This letter now serves as Maj Yarbrough’s fifth appeal of the LOA. 

Legal Analysis

1. The Air Force lacked jurisdiction over Maj Yarbrough at the time of his protected

speech.

Maj Yarbrough was not subject to military jurisdiction when, in civilian status and on a 

personal trip, he engaged in speech fully protected by the First Amendment. Articles 2(a) and 2(c) 

of the Uniform Code of Military Justice (UCMJ) define when the Department of Defense has 

jurisdiction over a service member. 

Article 2(a) applies when the Department of Defense either calls or orders the member to 

active duty status, or while the member is in an inactive-duty training status. 10 U.S.C. § 802(a). 

The military’s highest court describes this as an “all-or-nothing condition” for Article 2(a) 

jurisdiction to apply to a service member’s conduct. Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 

1986). “Simply being a member of a reserve component” is insufficient to confer jurisdiction. 

United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019); see also United States v. Morita, 74 M.J. 

116 (C.A.A.F. 2015). 

Article 2(c) determines jurisdiction based on the following four-part test: the person 

serving (1) submitted voluntarily to military authority; (2) was mentally competent at the time he 

voluntarily submitted to military authority; (3) received military pay and allowances; and (4) 

performed military duties. 10 U.S.C. § 802(c). 

Because Maj Yarbrough was never ordered to active duty status and was not in an inactiveduty training status at the time he gave his speech, he was not subject to Article 2(a) jurisdiction. 

He also was not subject to Article 2(c) jurisdiction because he did not (1) submit to military 

authority, (2) receive military pay and allowances, or (3) perform military duties at the time of his 

speech. For these reasons, and because there is no sound statutory or legal basis for SECAF’s 

unilateral and unauthorized expansion of military jurisdiction beyond 10 U.S.C. § 802 by way of 

AFI 36-2907,2 the Air Force improperly issued an LOA to Maj Yarbrough for his protected speech 

2 SECAF’s general authority to “prescribe regulations to carry out his functions, powers, and duties” under 10 U.S.C.

§ 9013 does not provide SECAF with the specific authority to unilaterally expand the Air Force’s jurisdictional reach

to reservists in a civilian status by way of an Air Force instruction, specifically AFI 36-2907, which allows “individuals

in the member’s administrative or operational chain of command” to issue an “administrative counseling,

admonishment, and reprimands to ARC Airmen who commit an offense while in civilian status.” Para. 2.1. (emphasis

added). If SECAF seeks such authority, it must be granted by Congress.

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on June 11, 2021. Therefore, the LOA should be rescinded because the Air Force’s actions are 

unconstitutional.3

2. Maj Yarbrough’s speech is protected by the First Amendment and is not subject to

adverse action.

The Air Force should also rescind the LOA because Maj Yarbrough engaged in speech 

protected by the First Amendment to the U.S. Constitution during SMSgt Fish’s retirement 

ceremony. Service members do not forfeit their First Amendment rights by virtue of their military 

service. And even under circumstances during which service members’ rights of speech and 

expression may be abridged, the government cannot censor such speech in an arbitrary and 

capricious manner. 

“It is axiomatic that the government may not regulate speech based on its substantive 

content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 

828 (1995) (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972)). This constitutional 

rule applies to the military with equal force. Nieto v. Flatau, 715 F. Supp. 2d 650, 655 (E.D.N.C. 

2010) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). 

“[R]egulations that ‘selectively grant[ ] safe passage to speech of which [officials] approve 

while curbing speech of which they disapprove’ are impermissible, even in the military.” Nieto, 

715 F. Supp at 655. This is particularly true when the speech is made in a public employee’s 

capacity as a private citizen on a matter of public concern, even if it may be critical in tone. 

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). “But learning how to 

tolerate speech . . . of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of 

character essential to ‘a tolerant citizenry.’” Kennedy v. Bremerton School District, 142 S.Ct. 2407, 

2430 (2022). 

The Air Force’s issuance of an LOA to Maj Yarbrough for his off-duty speech as a private 

citizen on a matter of public concern is nothing less than a discriminatory double standard intended 

to punish certain viewpoints. Indeed, the military has recently permitted service members to 

engage in a wide variety of expression even while on active duty and in uniform. In 2019, the 

military permitted service members in uniform to participate in a political parade “to show 

opposition to the Trump Administration’s ban on transgender troops.”4 In support of this parade, 

the California Guard’s 144th Fighter Wing conducted a four-ship, F-15 flyover, and military 

3 Acknowledging these statutory limitations on military jurisdiction, the Department of the Army Suitability 

Evaluation Board (DASEB) recently found that the Army had engaged in jurisdictional overreach after a National 

Guard service member, Captain Alan Kennedy, was disciplined for his participation in a Black Lives Matter protest 

in his off-duty status. On January 3, 2022, the DASEB retracted the General Officer Memorandum of Record 

(GOMOR) that was issued to Captain Kennedy in 2020, citing his violation of Department of Defense Instruction 

1325.06, Handling Protest, Extremist, and Criminal Gang Activities Among Members of the Armed Forces. Because 

Captain Kennedy was not in a Title 10 duty status at the time he engaged in protest activities, the DASEB removed 

the GOMOR from Captain Kennedy’s military records. 

https://coloradonewsline.com/wp-content/uploads/2022/01/Kennedy_DASEB_Decision_03JAN22_redacted-1.pdf 4 https://www.nbcsandiego.com/news/local/san-diego-unites-for-pride-parade-2019/132618

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members conducted a public re-enlistment ceremony that, according to the parade organizer, was 

intended to “sen[d] the clear message, ‘We are done with Trump’s anti-transgender rhetoric.’”5

According to media reports, approximately 250,000 spectators were present at the parade,6 and to 

our knowledge, no disciplinary action was taken against the participating service members. 

Furthermore, the LOA is arbitrary and capricious because it appears to admonish Maj 

Yarbrough because certain portions of his speech did not “remain apolitical.” 5 U.S.C. §706, Lewis 

v. Marsh, 672 F. Supp. 14 (D.D.C. 1987). For example, the LOA cites Maj Yarbrough’s charge

that the audience “‘let the lie come, but not through me.’” This is, as Maj Yarbrough’s speech

made clear, a direct quote from the work of Aleksandr Solzhenitsyn, an outspoken critic of

communism who wrote on the topic through the lens of a faithful Christian, in which he

admonishes his readers to refuse to lie or participate in false or dishonest conduct. Integrity is the

Air Force’s first and arguably “most important core value.”7 Simply put, encouraging integrity

cannot be a punishable violation of the UCMJ.

As another example, the LOA appears to admonish Maj Yarbrough for stating that he 

“fear[ed] . . . ‘radical political factions’” influencing the military. Warning against politicizing the 

military is utterly consistent with American military tradition and doctrine, even when such 

warnings are delivered in the context of and in direct response to recent political events and for 

the purpose of disseminating those warnings to the American public.8

 Warning against the 

politicization of the military does not qualify as “political speech” and does not violate the UCMJ. 

By restricting Maj Yarbrough’s June 11, 2021, speech as a private citizen, not on orders, 

on a matter of public concern, the Air Force has acted in an arbitrary and capricious manner and 

in violation of the First Amendment. Simply because military members expressed displeasure with 

Maj Yarbrough’s speech at SMSgt Fish’s retirement ceremony does not make it worthy of 

restriction or adverse action. For these reasons, the Air Force has no legal basis to restrict such 

speech and the LOA should be rescinded. 

5 Id. 6 Id. 7 https://www.jbcharleston.jb.mil/News/Commentaries/Display/Article/860665/integrity-our-most-important-corevalue/

8 See, e.g., https://edition.cnn.com/2020/06/11/politics/milley-trump-appearance-mistake/index.html

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Maj J. Yarbrough 

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Conclusion 

For the reasons set forth in our letters of November 5, 2021, January 26, 2022, April 12, 

2022, July 20, 2022, and herein, and there being no jurisdictional or substantive basis for issuing 

adverse action against Maj Yarbrough for his June 11, 2021, protected speech, we respectfully 

request that you immediately rescind the LOA to avoid the need for further action. 

Thank you for your consideration in this matter. Please contact us if necessary to discuss 

any aspect of this request. 

Sincerely, 

Michael Berry 

Director of Military Affairs 

Danielle A. Runyan 

Senior Counsel 

Antony B. Kolenc 

Associate Clinical Professor of Law 

Ave Maria School of Law 

Attachments: 

1. July 20, 2022 First Liberty Institute Response on Behalf of Maj Jace Yarbrough, USAFR, with

attachments

9. July 29, 2022 USAF Response

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DEPARTMENT OF THE AIR FORCE

OFFICE OF THE JUDGE ADVOCATE GENERAL

MILITARY JUSTICE AND DISCIPLINE

 December 16, 2022 

Brigadier General Gail E. Crawford

Director, Military Justice and Discipline

1500 West Perimeter Road, Suite 1330 

Joint Base Andrews Naval Air Facility Washington, MD 20762 

Mr. Michael Berry 

General Counsel

First Liberty Institute

2001 W. Plano Pkwy, Suite 1600 

Plano, TX 75075 

Dear Mr. Berry,

I am writing on behalf of General B. Chance Saltzman, in response to your December 9, 

2022 letter to him regarding your client, Major Jace Yarbrough. In your correspondence, you 

have requested rescission of a Letter of Admonishment (LOA) issued to Maj Yarbrough, on 

August 25, 2021. General Saltzman is not taking any action to rescind the LOA or any other 

actions regarding Maj Yarbrough. This letter serves as my final action on your client’s request 

to rescind the LOA. 

 Sincerely, 

 GAIL E. CRAWFORD

 Brigadier General, USAF

 Director 

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