A retired Air Force one-star general faulted by the Defense Department for not doing enough to protect his airmen prior to the 1996 attack on Khobar Towers, Saudi Arabia, has lost a court battle over whether he was illegally denied his second star.
Brig. Gen. Terryl Schwalier was commander of the 4404th Wing at the King Abdulaziz Airbase in Saudi Arabia when terrorists attacked the Khobar Towers housing complex on June 25, 1996, killing 19 airmen and injuring hundreds more.
The Senate had already confirmed Schwalier's promotion to major general, and he was due to pin on his second star in January or February 1997, but a Defense Department investigation found that Schwalier had not taken appropriate security precautions prior to the Khobar Towers attack.
As a result, President Bill Clinton removed Schwalier's his name from the promotion list at the recommendation suggestion of then-Defense Secretary William Cohen. Schwalier retired as a one-star general in 1997.
Schwalier is considering appealing to the U.S. Supreme Court, said his attorney David Sheldon. He has 90 days from the appeal's court Jan. 8 decision to do so.
"This case presents important separation of powers issues and important federal question issues," Sheldon told Air Force Times in a Jan. 14 interview. "The decision also, we believe, undermines the statutory construction for the board for correction of military records and it adversely impacts on virtually every service member."
Schwalier could not be reached for comment. In 2006, he told Air Force Times that he had to balance security concerns with the constant need to accommodate the Saudi government, which objected to the U.S. moving barrier walls further from Khobar Towers to better protect the complex.
Work to reinforce the Khobar Towers' windows had been approved, but it was expected to be carried out as part of the base's long-term budget plan. Had those windows been stronger at the time of the attack, it could have saved lives, the Defense Department investigation into the incident found.
"If I had some specific information, I wouldn't have thought about it twice," Schwalier told Air Force Times in the 2006 interview. "Hindsight is great."
Since 2003, Schwalier has attempted to overturn Clinton's decision not to promote him. His case has had many twists and turns. Twice, the Air Force Board for Correction of Military Records sided with him, and in 2007, the Air Force declared he had become a two-star general in January 1997.
But the Defense Department's General Counsel's office has successfully argued that there is no legal basis for Schwalier to be promoted, ultimately prompting the Air Force to rescind its decision in April 2008.
In 2011, Schwalier filed a lawsuit against the DoD defense and Air Force secretaries that made its way to the U.S. Court of Appeals for the Federal Circuit, which decided on Jan. 8 that military officers cannot be promoted unless they are appointed by the president, even if they have already been nominated and confirmed.
"Here, the President chose not to exercise his appointment power by removing Mr. Schwalier's name from the promotion list in 1997," according to the court's decision. "Accordingly, the third and final act for an appointment is missing altogether in this case."
The court was not persuaded by Schwalier's argument that when the Air Force retroactively promoted him in 2007, it overrode Clinton's earlier decision to take his name off the promotion list. That interpretation of the law "would effectively allow Congress to compel the President to appoint senior officers of the United States," the court found.
