October 27, 2021

Fired majors plan to sue for reinstatement

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.

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  • General John R. Allen-U.S. Marines Commander International Security Assistance Force [ISAF] (Nov 2012)
  • Major General Ralph Baker (2 Star)-U.S. Army Commander of the Combined Joint Task Force Horn in Africa (April 2013)
  • Major General Michael Carey (2 Star)-U.S. Air Force Commander of the 20th US Air Force in charge of 9,600 people and 450 Intercontinental Ballistic Missiles (Oct 2013)
  • Colonel James Christmas-U.S. Marines Commander 22nd Marine Expeditionary Unit & Commander Special-Purpose Marine Air-Ground Task Force Crisis Response Unit (July 2013)
  • Major General Peter Fuller-U.S. Army Commander in Afghanistan (May 2011)
  • Major General Charles M.M. Gurganus-U.S. Marine Corps Regional Commander of SW and I Marine Expeditionary Force in Afghanistan (Oct 2013)
  • General Carter F. Ham-U.S. Army African Command (Oct 2013)
  • Lieutenant General David H. Huntoon (3 Star), Jr.-U.S. Army 58th Superintendent of the US Military Academy at West Point , NY (2013)
  • Command Sergeant Major Don B Jordan-U.S. Army 143rd Expeditionary Sustainment Command (suspended Oct 2013)
  • General James Mattis-U.S. Marines Chief of CentCom (May 2013)
  • Colonel Daren Margolin-U.S. Marine in charge of Quantico ’s Security Battalion (Oct 2013)
  • General Stanley McChrystal-U.S. Army Commander Afghanistan (June 2010)
  • General David D. McKiernan-U.S. Army Commander Afghanistan (2009)
  • General David Petraeus-Director of CIA from September 2011 to November 2012 & U.S. Army Commander International Security Assistance Force [ISAF] and Commander U.S. Forces Afghanistan [USFOR-A] (Nov 2012)
  • Brigadier General Bryan Roberts-U.S. Army Commander 2nd Brigade (May 2013)
  • Major General Gregg A. Sturdevant-U.S. Marine Corps Director of Strategic Planning and Policy for the U.S. Pacific Command & Commander of Aviation Wing at Camp Bastion, Afghanistan (Sept 2013)
  • Colonel Eric Tilley-U.S. Army Commander of Garrison Japan (Nov 2013)
  • Brigadier General Bryan Wampler-U.S. Army Commanding General of 143rd Expeditionary Sustainment Command of the 1st Theater Sustainment Command [TSC] (suspended Oct 2013)

Commanding Admirals fired:

  • Rear Admiral Charles Gaouette-U.S. Navy Commander John C. Stennis Carrier Strike Group Three (Oct 2012)
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Naval Officers fired: (All in 2011)

  • Captain David Geisler-U.S. Navy Commander Task Force 53 in Bahrain (Oct 2011)
  • Commander Laredo Bell-U.S. Navy Commander Naval Support Activity Saratoga Springs , NY (Aug 2011)
  • Lieutenant Commander Kurt Boenisch-Executive Officer amphibious transport dock Ponce (Apr 2011)
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  • Captain Robert Gamberg-Executive Officer carrier Dwight D. Eisenhower (Jun 2011)
  • Captain Rex Guinn-U.S. Navy Commander Navy Legal Service office Japan (Feb 2011)
  • Commander Kevin Harms- U.S. Navy Commander Strike Fighter Squadron 137 aboard the aircraft carrier Abraham Lincoln (Mar 2011)
  • Lieutenant Commander Martin Holguin-U.S. Navy Commander mine countermeasures Fearless (Oct 2011)
  • Captain Owen Honors-U.S. Navy Commander aircraft carrier USS Enterprise (Jan 2011)
  • Captain Donald Hornbeck-U.S. Navy Commander Destroyer Squadron 1 San Diego (Apr 2011)
  • Rear Admiral Ron Horton-U.S. Navy Commander Logistics Group, Western Pacific (Mar 2011)
  • Commander Etta Jones-U.S. Navy Commander amphibious transport dock Ponce (Apr 2011)
  • Commander Ralph Jones-Executive Officer amphibious transport dock Green Bay (Jul 2011)
  • Commander Jonathan Jackson-U.S. Navy Commander Electronic Attack Squadron 134, deployed aboard carrier Carl Vinson (Dec 2011)
  • Captain Eric Merrill-U.S. Navy Commander submarine Emory S. Land (Jul 2011)
  • Captain William Mosk-U.S. Navy Commander Naval Station Rota , U.S. Navy Commander Naval Activities Spain (Apr 2011)
  • Commander Timothy Murphy-U.S. Navy Commander Electronic Attack Squadron 129 at Naval Air Station Whidbey Island , WA (Apr 2011)
  • Commander Joseph Nosse-U.S. Navy Commander ballistic-missile submarine Kentucky (Oct 2011)
  • Commander Mark Olson-U.S. Navy Commander destroyer The Sullivans FL (Sep 2011)
  • Commander John Pethel-Executive Officer amphibious transport dock New York (Dec 2011)
  • Commander Karl Pugh-U.S. Navy Commander Electronic Attack Squadron 141 Whidbey Island , WA (Jul 2011)
  • Commander Jason Strength-U.S. Navy Commander of Navy Recruiting District Nashville , TN (Jul 2011)
  • Captain Greg Thomas-U.S. Navy Commander Norfolk Naval Shipyard (May 2011)
  • Commander Mike Varney-U.S. Navy Commander attack submarine Connecticut (Jun 2011)
  • Commander Jay Wylie-U.S. Navy Commander destroyer Momsen (Apr 2011)

Naval Officers fired: (All in 2012):

  • Commander Alan C. Aber-Executive Officer Helicopter Maritime Strike Squadron 71 (July 2012)
  • Commander Derick Armstrong- U.S. Navy Commander missile destroyer USS The Sullivans (May 2012)
  • Commander Martin Arriola- U.S. Navy Commander destroyer USS Porter (Aug 2012)
  • Captain Antonio Cardoso- U.S. Navy Commander Training Support Center San Diego (Sep 2012)
  • Captain James CoBell- U.S. Navy Commander Oceana Naval Air Station’s Fleet Readiness Center Mid-Atlantic (Sep 2012)
  • Captain Joseph E. Darlak- U.S. Navy Commander frigate USS Vandegrift (Nov 2012)
  • Captain Daniel Dusek-U.S. Navy Commander USS Bonhomme
  • Commander David Faught-Executive Officer destroyer Chung-Hoon (Sep 2012)
  • Commander Franklin Fernandez- U.S. Navy Commander Naval Mobile Construction Battalion 24 (Aug 2012)
  • Commander Ray Hartman- U.S. Navy Commander Amphibious dock-landing ship Fort McHenry (Nov 2012)
  • Commander Shelly Hakspiel-Executive Officer Navy Drug Screening Lab San Diego (May 2012)
  • Commander Jon Haydel- U.S. Navy Commander USS San Diego (Mar 2012)
  • Commander Diego Hernandez- U.S. Navy Commander ballistic-missile submarine USS Wyoming (Feb 2012)
  • Commander Lee Hoey- U.S. Navy Commander Drug Screening Laboratory, San Diego (May 2012)
  • Commander Ivan Jimenez-Executive Officer frigate Vandegrift (Nov 2012)
  • Commander Dennis Klein- U.S. Navy Commander submarine USS Columbia (May 2012)
  • Captain Chuck Litchfield- U.S. Navy Commander assault ship USS Essex (Jun 2012)
  • Captain Marcia Kim Lyons- U.S. Navy Commander Naval Health Clinic New England (Apr 2012)
  • Captain Robert Marin- U.S. Navy Commander cruiser USS Cowpens (Feb 2012)
  • Captain Sean McDonell- U.S. Navy Commander Seabee reserve unit Naval Mobile Construction Battalion 14 FL (Nov 2012)
  • Commander Corrine Parker- U.S. Navy Commander Fleet Logistics Support Squadron 1 (Apr 2012)
  • Captain Liza Raimondo- U.S. Navy Commander Naval Health Clinic Patuxent River , MD (Jun 2012)
  • Captain Jeffrey Riedel- Program manager, Littoral Combat Ship program (Jan 2012)
  • Commander Sara Santoski- U.S. Navy Commander Helicopter Mine Countermeasures Squadron 15 (Sep 2012)
  • Commander Kyle G. Strudthoff-Executive Officer Helicopter Sea Combat Squadron 25 (Sep 2012)
  • Commander Sheryl Tannahill- U.S. Navy Commander Navy Operational Support Center [NOSC] Nashville , TN (Sep 2012)
  • Commander Michael Ward- U.S. Navy Commander submarine USS Pittsburgh (Aug 2012)
  • Captain Michael Wiegand- U.S. Navy Commander Southwest Regional Maintenance Center (Nov 2012)
  • Captain Ted Williams- U.S. Navy Commander amphibious command ship Mount Whitney (Nov 2012)
  • Commander Jeffrey Wissel- U.S. Navy Commander of Fleet Air Reconnaissance Squadron 1 (Feb 2012)

Naval Officers fired: (All in 2013):

  • Lieutenant Commander Lauren Allen-Executive Officer submarine Jacksonville (Feb 2013)
  • Reserve Captain Jay Bowman-U.S. Navy Commander Navy Operational Support Center [NOSC] Fort Dix , NJ (Mar 2013)
  • Captain William Cogar-U.S. Navy Commander hospital ship Mercy’s medical treatment facility (Sept 2013)
  • Commander Steve Fuller-Executive Officer frigate Kauffman (Mar 2013)
  • Captain Shawn Hendricks-Program Manager for naval enterprise IT networks (June 2013)
  • Captain David Hunter-U.S. Navy Commander of Maritime Expeditionary Security Squadron 12 & Coastal Riverine Group 2 (Feb 2013)
  • Captain Eric Johnson-U.S. Navy Chief of Military Entrance Processing Command at Great Lakes Naval Training Center, IL (2013)
  • Captain Devon Jones-U.S. Navy Commander Naval Air Facility El Centro , CA (July 2013)
  • Captain Kevin Knoop-U.S. Navy Commander hospital ship Comfort’s medical treatment facility (Aug 2013)
  • Lieutenant Commander Jack O’Neill-U.S. Navy Commander Operational Support Center Rock Island , IL (Mar 2013)
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  • Commander Luis Molina-U.S. Navy Commander submarine Pasadena (Jan 2013)
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  • Commander Michael Runkle-U.S. Navy Commander of Mobile Diving and Salvage Unit 2 (May 2013)
  • Commander Jason Stapleton-Executive Office Patrol Squadron 4 in Hawaii (Mar 2013)
  • Commander Nathan Sukols-U.S. Navy Commander submarine Jacksonville (Feb 2013)
  • Lieutenant Daniel Tyler-Executive Officer Mine Countermeasures ship Guardian (Apr 2013)
  • Commander Edward White-U.S. Navy Commander Strike Fighter Squadron 106 (Aug 2013)
  • Captain Jeffrey Winter-U.S. Navy Commander of Carrier Air Wing 17 (Sept 2013)
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157 [ONE HUNDRED FIFTY-SEVEN] Air Force majors forced into early terminations, no retirement or benefits.

 

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