A group of former Air Force majors, forced out this summer by a noncontinuation board, plans to file a lawsuit claiming the service had no right to separate them simply to meet end-strength numbers set by Congress.
More than 10 of the 157 dismissed majors are banding together to challenge the move in court, seeking either reinstatement or early retirement pay. All 157 had been twice passed over for promotion and were within six years of retirement.
Air Force officials responded to a request for comment by repeating what they had said in July: The Air Force coordinated closely with DoD and in accordance with the instruction when they made the decision to release the majors.
The majors have obtained pro-bono legal counsel from lawyers at the Chapman University Institute for Military Personnel, Veterans, Human Rights and International Law in Orange, Calif.
Lawyers there say the Air Force was out of line in firing the majors because language in the Defense Department instruction regarding officer promotions says that majors who are twice passed over for promotion “shall normally” be continued to retirement.
No ‘derogatory’ records “And the ‘shall normally’ language is qualified by only one thing: Derogatory information in your record, whether it’s bad marks, a DUI; something bad,” said Josh Flynn-Brown, an attorney working on the case.
“Our clients don’t have any derogatory information, so they don’t fall into that area where the Air Force can simply refuse to abide by the DoD instruction,” he said.
The governing regulation says service secretaries — in this case, Air Force Secretary Michael Donley — can deny officers continuation in “unusual circumstances” and cites derogatory information as one example.
Flynn-Brown argues that there were no unusual circumstances in his clients’ case. He argues that Air Force statutes prohibit involuntary separations at this level, unless there has been a decrease in overall end strength and a decrease in the grade-by-grade end strength.
“By the plain language of the statute, you can’t separate anyone because the numbers are increasing, not decreasing,” he said.
The number of majors has increased each of the past three years — from 14,045 in 2009 to 14,524 in 2011. All other officer ranks, except general officers and first lieutenants, ended fiscal 2011 with fewer people than in 2010 and 2009. At the same time, the Air Force’s congressionally mandated end strength has increased slightly, though the service is struggling to meet the 332,800 set for 2012 because of record-high retention rates.
Flynn-Brown said force management is not a valid reason to invoke the involuntary separation of majors within six years of retirement.
“Force management has been going on since the creation of the armed forces by the United States Constitution,” he said. “Therefore, because this has been going on since the inception of our republic, it can’t be an unusual circumstance. It happens every single year.”
The institute, which functions as a legal clinic for AMVETS, will be filing suit within months, Flynn-Brown said, as soon as all of its “ducks are in a row.”
The controversy surrounding the fired majors began in July, when they were informed via letters that they had not been selected for continuation and would not be given early retirement.
In early June, the records of 6,438 majors — 3,033 in or above zone — went before the promotions board for majors and lieutenant colonels; 1,054 majors in or above zone were selected for promotion. The records of the 245 majors twice passed over then went before a selective continuation board; 157 got the boot, and 88 — many of them pilots — will get to retire.
The Air Force said the majors should have seen this coming. They each received a letter after they were passed over the first time that clearly states continuation is not a right, according personnel officials.
“If the Air Force offers you selective continuation,” the letter said, “mandatory separation will not be required; however, it is important to note that there is no guarantee a selective continuation board will be authorized.”
Air Force spokesman Todd Spitler said in an email that the record retention was an unusual circumstance and that the service had made every effort to avoid using the measure but that the circumstance had warranted it.
“The Department attempted to reduce its end-strength in 2010 through a series of voluntary separation measures,” he wrote. “Unfortunately, these measures proved insufficient to generate a higher number of separations and retirements, and the Air Force needed to resort to involuntary measures. This included a more limited selective continuation policy for Air Force majors who had twice failed promotion to the next higher grade.
“Though painful for all involved, these involuntary reductions were necessary for the Air Force to properly manage its force.”
Then, in February, Chief of Staff Gen. Norton Schwartz sent an email to every airman laying out the Air Force’s force-shaping measures. The message points out the “over strength situation is such that offers of selective continuation for twice deferred officers may be limited” but promises more information would be communicated at the base level and through support centers.
“If I was supposed to infer from a blurb that I was in trouble, I didn’t,” a C-130 navigator told Air Force Times in July, adding that he received no further instructions.