Friday, September 22, 2023
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Slighted General Must Take Appeal Elsewhere

WASHINGTON (CN) - The D.C. Circuit turned down an appeal from a retired general who wants retroactive application of the promotion he was denied after a terrorist attack.

Retired Brig. Gen. Terryl 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 President Bill Clinton, but the president 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."

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.

Schwalier then sued the Defense Department and the Air Force for acquiescing to the Pentagon's directive.

A federal judge in Washington threw out Schwalier's petition for review in March 2012.

"[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 wrote at the time.

Schwalier appealed to the D.C. Circuit, but a three-judge panel found last week that the case should go to the Federal Circuit.

"Because the jurisdiction of the district court was based, at least in part, on the Little Tucker Act, we conclude that the Federal Circuit possesses exclusive jurisdiction over this appeal, and we therefore transfer Schwalier's appeal to that court," Senior Judge David Sentelle wrote for the court.

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