The Chapman University of Military Law and its associated AMVETS Legal Clinic are blowing the whistle on what they say is an injustice set to be perpetrated on 157 Air Force majors on the last day of November.
“The Obama administration has ordered massive reductions in forces, resulting in many officers who are near retirement being involuntarily separated without retirement or medical benefits,” explained institute director Maj. Kyndra Rotunda.
The Department of Defense specifies that service members within six years of retirement normally would be retained and allowed to retire on time with benefits, unless extenuating circumstances exist such as disciplinary issues.
According to lawyers at Chapman and the AMVETS Legal Clinic, the Air Force has deviated from the six-year protection “without any legal authority.”
“At the heart of the matter, is whether the Secretary of the Air Force [Michael Donley] can ignore protections that exist in governing regulations,” Rotunda told The Daily Caller. “The Air Force position is that yes, he may. Our position is that nobody is above the law.”
Air Force spokesman Michael Dickerson explained to TheDC that “selective continuation” is the process which has resulted in the premature separation of these 157 majors. According to Dickerson, officers who fail to get a promotion two times in a row are subject to involuntary discharge — unless they are within two years of qualifying for retirement. Officers subject to discharge can be retained if tapped for continuation by a selection board — it is at these selection boards where officers six years to retirement normally are retained.
“If a continuation board is held, under DoD policy, a commissioned officer on the Active Duty List in the grade of O-4 shall normally be selected for continuation if the officer will qualify for retirement within six years of the date of continuation,” Dickerson wrote in an email to TheDC. “The Secretary of the Military Department, however, may deviate from the DoD policy upon notification to the Under Secretary of Defense for Personnel and Readiness based on the needs of the service.”
The Air Force Times reported that last December Air Force Secretary Donley told Defense Secretary Robert Gates that some officers within the six year protective window would be terminated.
“Due to efforts to manage our officer corps and to size and shape the force to meet congressionally mandated end-strength, the Secretary of the Air Force notified USD (P&R) of his intent to exercise his authority not to selectively continue large pools of twice-deferred officers who would otherwise qualify for retirement within six years,” Dickerson added.
Despite the Air Forces’ assertion that the dismissals have been kosher, Rotunda noted that based on the Defense Department’s Instruction 1320.08, “derogatory information” is the only reason officers should be terminated, and that budget shortfalls are not one of the instances.
“The Air Force cites budgetary short falls as the reason to terminate them. But that rationale is nowhere mentioned in the regulation,” Rotunda told TheDC. “In this instant, the officers being separated are within six years of retirement and their records do not contain derogatory information. Thus, they should be allowed to remain in service and retire. The defense department’s own regulation does not authorize what the defense department is doing. The Airmen relied on the law when they entered service and now the Secretary wants to change that law, without authority.”
Based on reporting from the AFT, this kind of termination is indeed unusual.
“In my 18-year affiliation with the Air Force — including ROTC — I didn’t know of anyone who wasn’t selected for continuation — unless they had a quality indicator such as an Article 15 or [drunken driving] charge,” an Airborne Warning and Control System crew member told the AFT. “That was the standing context; that was my entire experience; that was the expectation.”
The AFT further reported in July that Maj. Gen. Sharon Dunbar, the Air Force’s top force management officer, has articulated the possibility of more cuts to twice-deferred majors due to mandated reductions.
“Our flexibility in selectively continuing officers will likely remain limited until we reach our funded end strength level,” Dunbar said in a statement. (SEE ALSO: Legislation aims to remove rape accusations from military ‘chain of command’)
Chapman University has taken up the cause of several terminated majors. Major Kale Mosley, a combat pilot who has served for six months shy of 20 years, is one of their clients. Mosley has served in 13 combat zones and was recently deployed to Libya with only 30 hours notice. Shortly thereafter he was sent to Iraq.
“It was on the same day of this Iraq deployment that the Air Force gave him a pink slip,” said Rotunda.
“The issues of military personnel are more pertinent than ever with increased combat zones worldwide, from Libya and Uganda to Afghanistan and Iraq,” said Josh Flynn-Brown, a Post-Doctoral Clinical Fellow at the Military Institute, who is handling Mosely’s case. “It is a time to honor our heroes, the men and women who drop everything to fight for our country. We honor them not by handing them a pink slip as they are shipped off to combat.”
The advocates are calling on members of Congress to institute a Temporary Early Retirement Program, as they did during the draw-down in the 1990s to offer “pro-rated benefits for those officers who, for one reason or another, fall shy of 20 years in service.”
Chapman also has requested that the Air Force push back the final termination dates until after the holidays. According to Chapman, the Air Force has refused. Mosley and the 156 other majors will be terminated on Nov. 30 unless the Air Force reverses its decision or Congress steps in.