WASHINGTON (CN) - A retired brigadier general cannot retroactively take a promotion that was suspended after Hezbollah bombed the Khobar Towers, an apartment complex occupied by U.S. Air Force personnel in Saudi Arabia, a federal judge ruled.
Retired Brig. Gen. Terryl Schwalier sued the Pentagon and the Air Force, which initially found that he should get the promotion, for acquiescing to a Pentagon decision to deny his request.
"[The Department of Defense] did not act arbitrarily or capriciously in making this decision, and the Air Force did not act arbitrarily or capriciously in accepting it," U.S. District Judge Rosemary Collyer ruled.
Schwalier reported to King Abdulaziz Airbase in Saudi Arabia in July 1995 to assume command of the 4404th Wing, which provided aircraft to enforce the no-fly zone then in effect over southern Iraq.
The Khobar Towers, a large high-rise apartment complex that many Wing personnel called home, was hit by a Hezbollah truck bomb in June 1996. The blast killed 19 airmen and injured hundreds.
Schwalier had been scheduled to receive a promotion to major general in the coming weeks, as ordered by the president, but he took the general's name off the list after Secretary of Defense William Cohen determined that Schwalier did not "adequately assess the implication of the possible attack."
Clinton had nominated Schwalier for a promotion to major general before the bombing, but the promotion was delayed for an investigation into the bombing. After Secretary of Defense William Cohen determined that Schwalier did not "adequately assess the implication of the possible attack," Clinton took the general's name off the promotion list.
Schwalier immediately filed for voluntary retirement, and six years later applied to have his military records corrected to reflect his promotion. He argued that the president could not remove his name from the nomination list because he had, in effect, already been promoted.
The Air Force Board for the Correction of Military Records agreed and recommended correcting Schwalier's military records and approving his retirement as a major general, but the Pentagon overturned this decision.
Collyer threw out Schwalier's petition for review Wednesday.
"Because the secretary of the Air Force acts under the authority of and subject to the 'direction [and] control' of the secretary of defense and because the DOD general counsel is the 'chief legal officer' charged with resolving legal disputes within the Department, the DOD did not violate the law or abuse its discretion when it got involved in Brigadier General Schwalier's application process and resolved a legal disagreement between the Air Force and the DOD," Collyer wrote.
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