The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Brigadier General Terryl J. Schwalier served in the United States Air Force for nearly 30 years. In December 1995, former President William Jefferson Clinton nominated Brigadier General Schwalier for a promotion to major general and the Senate confirmed his nomination. Before Brigadier General Schwalier was promoted, however, President Clinton removed his name from the promotion list. Years later, Brigadier General Schwalier sought his promotion from the Air Force Board for the Correction of Military Records (the "Board"), arguing that the removal of his name from the promotion list was politically motivated and was ineffective because the promotion had occurred by operation of law one month before President Clinton removed his name. The Board agreed and recommended that Brigadier General Schwalier's military records be corrected to show him retiring as a Major General (two star) rather than a Brigadier General (one star). Shortly thereafter, the Department of Defense ("DoD") became involved and stated that the Board's decision was legally incorrect and ultra vires and that the Air Force could not, therefore, retroactively promote Brigadier General Schwalier to major general. Brigadier General Schwalier petitions this Court to find that the DoD's actions were arbitrary and capricious and that the Air Force's decision to correct his military records is final and binding on all officers of the United States.
Brigadier General Schwalier reported to King Abdulaziz Airbase in Saudi Arabia in July 1995 to assume command of the 4404th Wing (provisional). The Wing provided aircraft to enforce the "no-fly zone" then in effect over southern Iraq. Many of the Wing's personnel lived in Khobar Towers, a large high-rise apartment complex close to the airbase. On June 25, 1996, Hezbollah detonated a truck bomb at the Khobar Towers near the living quarters of the Wing's Air Force personnel. The blast from the bomb killed 19 airmen and injured hundreds of others.
More than six months prior to the bombing, on December 2, 1995, President Clinton nominated Brigadier General Schwalier for a promotion to major general. The Senate confirmed this nomination on March 14, 1996, and Brigadier General Schwalier was scheduled to receive his promotion on either January 1, 1997 or February 1, 1997.*fn1 On December 20, 1996, General Thomas Moore, Vice Chief of Staff of the Air Force, called Brigadier General Schwalier at his home to indicate that his promotion would be delayed. General Moore followed this phone call with a letter to Brigadier General Schwalier on January 28, 1997. The letter stated that General Moore was recommending that Brigadier General Schwalier's promotion be delayed for up to six months to complete "the investigation of the circumstances surrounding the bombing of the Khobar Towers . . . while . . . [Brigadier General Schwalier] . . . [was] Commander, 4404th Wing (Provisional)." Administrative Record ("AR") 117. The Secretary of the Air Force, Sheila Widnall, approved General Moore's recommendation to delay the promotion on February 22, 1997.
A total of four investigations were conducted into the Khobar Towers bombing: one by the House National Security Committee; one by a retired Army general officer appointed by the Secretary of Defense; and two by generals appointed by the Secretary of the Air Force and Vice Chair Secretary of the Air Force. While the two investigations ordered by the Secretary of the Air Force concluded that Brigadier General Schwalier acted reasonably and prudently given what he knew at the time before the bombing, the DoD investigation was unfavorable to him. After the DoD investigation concluded, Secretary of Defense William Cohen determined that Brigadier General Schwalier did not "adequately assess the implication of the possible attack [on Khobar Towers]" and recommended that President Clinton remove Brigadier General Schwalier's name from the major general promotion list. AR 7. On the same day that President Clinton received Secretary Cohen's recommendation, July 31, 1997, the President removed Brigadier General Schwalier's name from the major general promotion list.
When Brigadier General Schwalier learned that the Secretary of Defense planned to recommend that his name be removed from the promotion list, he immediately applied for voluntary retirement. His retirement was effective on September 1, 1997. Nearly six years later, on April 7, 2003, Brigadier General Schwalier filed an application to correct his military records with the Air Force Board for the Correction of Military Records. He argued that his projected promotion date was January 1, 1997 and that, pursuant to 10 U.S.C. § 624(d)(4), the promotion delay lasted at most six months. Because the promotion delay thereby ended on June 30, 1997, Brigadier General Schwalier argued that he was promoted, by operation of law, no later than July 1, 1997. As a result, according to Brigadier General Schwalier, President Clinton did not remove his name from the promotion list prior to his promotion and that the "removal" was therefore ineffective. The Board agreed and recommended that Brigadier General Schwalier's military records be corrected to reflect that: 1) he was promoted "by operation of law" to the grade of major general effective January 1, 1997, and 2) he applied for and was approved for retirement as a major general on February 1, 2000.
Because the Board's recommendation would "affect an appointment or promotion requiring confirmation by the Senate," the Board forwarded its recommendation to Joe Lineberger, Director, Air Force Review Boards Agency. 32 C.F.R. § 865.4(l)(2). Director Lineberger adopted the Board's recommendation and, on October 6, 2004, directed the Chief of Staff of the Air Force to correct Brigadier General Schwalier's military records. DoD, however, disagreed with the Board's legal analysis and conclusions. In a memorandum dated February 7, 2005,*fn2 the DoD's Deputy General Counsel advised the Deputy General Counsel of the Air Force that the two Court of Claims cases upon which the Board had relied to find that Brigadier General Schwalier was promoted by operation of law had recently been overturned by the Federal Circuit in Dysart v. United States, 369 F. 3d 1303 (Fed. Cir. 2004). AR 267. DoD's Deputy General Counsel asked the Air Force to review Dysart and respond in writing.
The Air Force Office of General Counsel responded to the DoD on February 18, 2005. The Air Force distinguished Dysart factually from Brigadier General Schwalier's case and opined that Brigadier General Schwalier was promoted to major general before the President removed him from the list and that the Board's decision was therefore correct. AR 282. The General Counsel for the DoD, however, remained unconvinced. In a memorandum dated March 24, 2005, DoD General Counsel William Haynes wrote to the Acting Secretary of the Air Force and stated that no "public act" had occurred to effectuate Brigadier General Schwalier's promotion before President Clinton removed him from the promotion list. He opined that, in the absence of a public act, Brigadier General Schwalier's promotion was not effective and the Board's recommendation to promote him retroactively was "ultra vires and without legal effect." AR 271. In response, Mr. Lineberger, the Director of the Board, advised Brigadier General Schwalier's attorney that "given the DoD General Counsel's role as the final legal authority for the DoD, his determination is binding upon the Air Force. In view of this and since you are not seeking a correction of records that is within the purview of the [Board], we are not in a position to take further action on your client's request. This is the final Air force decision on your client's application." AR 300.
On September 24, 2007, Brigadier General Schwalier submitted a request for reconsideration to the Board. On November 19, 2007, the Board unanimously recommended that Brigadier General Schwalier's request be granted. Although the Board expressed concern over DoD's General Counsel effectively overruling its prior decision, it chose not to address whether the DoD or the Secretary of the Air Force had the ultimate authority to correct military records. Instead, the Board focused on whether a correction was warranted to "remove an injustice." 10 U.S.C. § 1522 (a)(1).*fn3 The Board held that, "after reviewing [Brigadier General Schwalier's] complete original submission to the Board, his current submission, and additional classified material referenced by the applicant . . . we conclude that the decision to remove the applicant's name from the CY 95 Major General promotion list caused an injustice. " AR 136.
In finding that an injustice occurred, the Board was troubled by the disparity between the treatment accorded Brigadier General Schwalier and that accorded to other military leaders who were in command during terrorist attacks in the 1970s, on the United States Marine Corps' barracks in Lebanon, on the USS Cole, and on the Pentagon on 9/11. The Board found it unjust to prevent Brigadier General Schwalier's promotion while no action was taken against other commanders. Moreover, the Board noted that it had additional information that DoD did not know when the latter issued its unfavorable investigative report. The additional evidence suggested that the United States had intelligence regarding a possible attack on the Khobar Towers but failed to relay that intelligence to Brigadier General Schwalier in an actionable form before the attack occurred. The Board "simply [did] not find in any of the voluminous amount of information reviewed . . . evidence of a failure of performance by [Brigadier General Schwalier] warranting the action taken against him." AR 137. Accordingly, the Board again recommended that Brigadier General Schwalier's military records be corrected.
As with the prior recommendation, Mr. Lineberger, Director of the Board, adopted the Board's 2007 recommendation. He then issued a directive to the Chief of Staff, United States Air Force to implement the recommendation. He also published a Special Order appointing Brigadier General Schwalier to the grade of major general, effective January 1, 1997. Shortly thereafter, on January 18, 2008, DoD emailed the Defense Finance and Accounting Service instructing the latter to withhold payments to Brigadier General Schwalier based upon the Air Force's correction to his military records. The Acting General Counsel of DoD also contacted Michael Wynne, Secretary of the Air Force. Based upon that correspondence, Secretary Wynne instructed Mr. Lineberger to rescind the correction to Brigadier General Schwalier's records. According to Secretary Wynne, the Acting General Counsel of the DoD, the Department of Justice, and the Secretary of Defense all agreed that the Board's decision was incorrect and that "all actions taken in implementation of [the Board's recommendation] are void." AR 3. At Secretary Wynne's direction, Mr. Lineberger, on April 3, 2008, rescinded his December 20, 2007 directive.
Brigadier General Schwalier asks that this Court to hold that the Board's decision to correct his military records is final and conclusive and that DoD and the Secretary of the Air Force acted arbitrarily and capriciously when they overturned Mr. Lineberger's order ...