The Chapman University of Military Law and the AMVETS Legal Clinic have notified the U.S. Air Force of their intent to sue over what they say was an illegal termination of 157 Air Force majors.
According to Chapman, on November 30 the officers, none more than six years from retirement, were terminated without “just compensation” despite Department of Defense guidelines stating that service members within six years of retirement normally are retained and allowed to retire on time unless their files contain disciplinary problems or other “derogatory” information.
The Air Force, however, says it acted in accordance with the guidelines — DoD Instruction 1320.08 — working closely with DoD in the process to follow 1320.08.
According to the Air Force, it has been working for two years to address a high retention rate that caused it to “exceed its congressionally authorized end-strength.” Because attempts to come in line with the authorization were insufficient, the service says, it had to implement another series of “involuntary separations” this year. Those included “Air Force majors who had twice failed promotion to the next higher grade,” including those that have Chapman and AMVETS threatening to sue.
“While a difficult choice to make, these involuntary reductions were necessary for the Air Force to effectively balance its force to meet congressionally authorized end-strength since, in Fiscal Year 2011 alone, the Air Force projected to have 1400 officers excess to programmed requirements,” Lt. Col John L. Dorrian wrote in an email to TheDC.
Chapman and AMVETS contend that reason and manner the majors were terminated constituted an “abuse” by the Air Force.
“The governing regulation quite clearly specifies that only in ‘unusual circumstance’ will an officer within six years of retirement be terminated,” wrote Military Law and Policy Institute director Maj. Kyndra Rotunda and Institute fellow Josh Flynn-Brown in a letter to Air Force attorney Lt. Col. Antony Kolenc.
“We believe this violated our clients’ rights and deprived our clients, and their spouses and families, of retirement and health benefits that were nearly vested. In failing to follow the Department of Defense governing regulation, Secretary [of the Air Force Michael] Donley violated our clients’ Constitutional procedural due process protections.”
Dorrian explained, however, that the majors did receive benefits with their termination.
“Each of the 157 officers are entitled to, and will receive, separation pay in accordance with 10 U.S.C. § 1174(d),” his email stated. “This statute affords these officers compensation in the amount of 10 percent of the product of (A) years of active service and (B) 12 times the final monthly basic pay. … In addition to this separation pay, the 157 officers are receiving post-separation transition benefits and services.”
Rotunda and Flynn-Brown claim the Air Force created an “expectation” that the majors would be able to continue their careers through retirement — provided they avoided black marks on their records — and that these officers were harmed in relying on that promise.
“Additionally, the Air Force failed to give our clients proper notice of their terminations by, in some case, notifying them while they were deployed, or as they were deploying,” they added. “This deprived our clients of a reasonable opportunity to respond and to prepare for the transition to civilian life.”
The Air Force said the majors received ample notification in the form of emails, articles, and posted updates.
“The Air Force routinely posted articles and updates addressing force management on multiple Air Force websites including the official AF.mil and AFPC websites. Other communication mediums included MAJCOM VTC slides, 4-star e-mails, Congressional engagement and Force Management Spread the Word briefings that referenced selective continuation as part of the overall Force Management strategy for sizing and shaping the force,” Dorrian added.
In their letter, the groups request that the Air Force preserve all the documents and records “relevant to the pending litigation.”
This story was updated to reflect information that the U.S. Air Force supplied after publication. The Air Force did not respond to TheDC’s initial requests for information clarifying the specific points upon which it provided subsequent corrections.