Skip to comments.Schwalier Files Lawsuit
Posted on 02/15/2011 8:17:16 PM PST by Excuse_My_Bellicosity
Feb. 14, 2011Retired Brig. Gen. Terryl Schwalier has filed suit in US District Court in a bid to reverse a punishment he received after the 1996 Khobar Towers bombing. Named as defendants in their official capacities are Defense Secretary Robert Gates and Air Force Secretary Michael Donley.
Schwalier was commander of the 4404th Wing (Provisional) at Dhahran, Saudi Arabia, when terrorists attacked base housing at Khobar Towers on June 25, 1996. Nineteen airmen died and 240 more were injured in a massive truck bomb blast.
Three Air Force investigations found Schwalier had significantly improved base security during his tenure as wing commander and absolved him of any blame. However, then-Defense Secretary William Cohen took punitive action a year after the attack and rescinded Schwaliers previously approved promotion to major general.
Schwalier twice petitioned the Air Force Board for Correction of Military Records to correct his rank on the retired rolls. In both 2004 and 2007, the AFBCMR sided with Schwalier, but was overruled by the Office of the Secretary of Defense both times. Schwalier is suing now because he has "exhausted all other alternatives" and because a group of private individuals has come forward to help with expenses, he told the Daily Report. He added, "It was a hard decision to make."
The case charges DOD overstepped its authority by interfering with the Air Force Board for Correction of Military Records. Under the Administrative Procedures Act passed by Congress, AFBCMR decisions are final.
In 2007, AFBCMR voted unanimously to "correct an injustice" and restore Schwalier to the rank of major general, retired. However, a letter from then-Air Force Secretary Michael Wynne on March 28, 2008, rescinded the change. Wynne told the Daily Report that he "was directed by the OSD general counsel to write the letter and they stated they were acting on direct orders from Secretary Gates."
"I'm suing the SECDEF because his office illegally interfered with the BCMR process and compelled the SECAF to overturn what is supposed to be a final and conclusive decision," Schwalier said. He continued, "I'm suing the SECAF because his office let that happenbecause he yielded his Congressionally given authority to an OSD lawyer."
"A number of supporters said, 'You need to keep fighting this battle,'" said Schwalier. According to his attorney Edward Rodriguez, a group of about 25 private individuals contributed to attorneys' fees for the case. Schwalier said he was "humbled by the response."
"It is a novel and unusual case," said lead plaintiff's attorney David Sheldon. "Congress said decisions on this statute are final," so the Defense Department cannot "be arbitrary and capricious" by attempting to overturn decisions. "I have never seen this in 20 years of practice," said Sheldon, an expert in military appeals.
Schwalier's legal team says his case "is the first and only time" DOD has interfered with this sort of Air Force records correction, and also "the first time DOD has interfered with a Secretarial records corrections decision based on a board for correction of military records recommendation by any department."
According to Wynne, Schwalier was made a scapegoat "in an era where the US was simply denying we were targets of terrorists."
Schwalier filed the suit on Jan. 20. The case has been assigned to Judge Rosemary Collier. The defendants have until March 20 to respond. An OSD spokeswoman said she would not comment on active litigation.
Regarding the Air Force's two previous decisions to promote Schwalier to major general on the retired rolls, Sheldon said USAF "has acted in a thoughtful way, and but for OSD's unlawful influence, they reached the right decision."
(For background on the Schwalier case, read Death in the Desert and The Second Sacking of Terryl Schwalier and this collection of articles from Air Force Magazine and Daily Report archives)
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