I'm doing a legal case discussion for an MBA class of mine, and have decided to do it on this case. 10 or so majors are suing the AF claiming they were wrongfully terminated.

Doing some research, I've found the guidance on separation that applies, DODI 1320.08 Section 6.3:

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A commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge according to section 632 of Reference (d) shall normally be selected for continuation if the officer will qualify for retirement according to section 3911, 6323, or 8911 of Reference (d) within 6 years of the date of continuation. The Secretary of the Military Department concerned may, in unusual circumstances such as when an officer’s official personnel record contains derogatory information, discharge an officer involuntarily in accordance with section 632 of Reference (d). When the Secretary of the
Military Department concerned intends not to continue larger pools of officers in the grade of O-4 who would qualify for retirement within 6 years of the date of a continuation, the Secretary shall notify the USD(P&R) of the proposed course of action.

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Seems some or all of these majors were within that 6 years to retirement window, so they couldn't be released. I've heard that the AF got approval (not sure from whom) to waive the 6 years to retirement requirement. Does anyone know where this information would be? TIA

No case. Can't sue the federal government as a current or former employee.

How many times can an officer be passed over for promotion before he or she is politely booted ?

Have heard promotions can become very, very finite as to who makes (or who does not make) the cut.

[This message has been edited by BeBopAg (edited 2/14/2012 7:25p).]

I've seen passed-over Majors milk it to 20. Some may have been prior enlisted, buy I recall one that wasn't.

How about under the Federal Tort Claims Act or Federal Employees Compensation Act? I'm no lawyer, so I'm really just trying to find out all the facts in the case right now.

I'm not sure if a federal employee can sue the federal government, but I'm not covering that (yet, I may later).

I'm just focused on the DODI that says you can't be fired withing 6 years of your retirement date except for "unusual circumstances." Most of my arguement is going to be what constitutes unusual circumstances.

Air Force Instruction (AFI) 36-2501 deals with Air Force officer promotions. It may help. The 36- series deals with personnel in general.

The DoDI is issued under the authority of the SecDef. It's his authority to decide what constitutes "unusual" and the courts don't really get to second guess that. When Congress directs that the services cut their active duty strength that is an example of an unusual circumstance. That's a budgetary direction from the legislative branch that must be acted upon by the executive branch. The plaintiffs have no legal leg on which to stand. Take the severence pay, join the reserves, move on.

Email me and I can give you some anecdotal info about some O6s that were serb'd awhile back. Gordonwhite at g mail. OATS!

You can search for Air Force Instructions at http://www.e-publishing.af.mil/.

Use the search tool and search for the "36-3202," which is Air Force Instruction 36-3202, Admin Discharge Procedures for Commissioned Officers.

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Can't sue the federal government as a current or former employee.

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This statement is based in fact, but it isn't entirely correct. Federal employees (and military members, specifically) can sue the government, but there are a couple legal hurdles. The plaintiff needs to comply with the Federal Tort Claims Act (FTCA). Also, check out Feres v. United States, which held that the US is not liable under the FTCA for injuries to members of the armed forces sustained while on active duty, even if the government was negligent. In other words, I can't sue the government for medical malpractice committed on me while I receive medical treatment in a military health care facility, even if the doctor's negligence was blatant. I COULD sue if the doc commits malpractice against my wife, because Feres only applies to injuries to military members.

Note: that was a bit of a tangent, based on a comment from someone else. Feres isn't really applicable to the original question.

There is also a whole area of constitutional law on suing the feds for civil rights violations. Google "Bivens Action."

That's how I remember it off the top of my head. Look up the sources yourself to make sure you get the nuances right.

RIFs happen. It's regrettable when it happens to good guys.

Much of it is just timing.

I know an 0-4 who got passed over multiple times,yet was continued, who had an Article 15 in his jacket FOR SHOPLIFTING at the Ft Bragg PX.

dp

[This message has been edited by Hey Nav (edited 2/15/2012 10:09a).]

AG Law: One more caveat, you can sue the gov't, you just can't ask for money. ie, if I screw up a patient, the sm can sue to have a negative mark made on my npi file. Obviously, this doesn't happen often as there is little incentive.


...or something like that.

Thanks everyone for the responses. What I found interesting is that DODI 1320.8 (superseded by 1320.08) has this little provision:

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The Secretaries of the Military Departments concerned may, in unusual circumstances, discharge involuntarily such officers in accordance with Section 632 of reference (b) after notifying the Secretary of Defense of the rationale for this action. The involuntary discharge shall not be used to circumvent legal proceedings, show-cause procedures, or release an affected officer who is within two years of qualifying for retirement under Section 3911, 6323, or 8911 of reference (b).

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Interesting isn't it? 1320.08 eliminated this section.

That said, I concluded that the majors weren't unlawfully released. But I'm no lawyer. Should be interesting to see how this pans out. As someone who's been through 1.5 RIFs (it's a long story), I always wondered what would happen if you tried to sue. There have been several cases of service members suing their services after they got the ax, mostly because of reverse discrimination.