The Supreme Court has refused to hear the case of a retired one-star general who claims his name was illegally taken off the promotion list for major general following the 1996 attack on the Khobar Towers housing complex in Saudi Arabia.
For retired Brig. Gen. Terryl Schwalier, the court's decision marks the end of a 12-year journey to reclaim the second star he feels was unjustly taken from him.
In 2007, it looked like Schwalier had succeeded when the Air Force concluded that he had become a two-star general as of January 1997, but the service rescinded the promotion the following year when the Defense Department's General Counsel's office persuaded the Air Force that there was no legal basis to make Schwalier a two-star general.
Schwalier kept fighting. In March, he filed an appeal with the Supreme Court, but on Monday the court announced it had denied his request to review the matter. The Supreme Court did not include an explanation about why it had decided not to hear the case.
On Monday, Schwalier said he was disappointed by the Supreme Court's decision and that he had no further legal options available to him.
"I think we've exhausted the legal system," Schwalier told Air Force Times. "I've fought this battle for over 12 years now. I can't think of any other real opportunity right now to keep fighting this."
Still, Schwalier contends his argument has been on firm footing, because the secretary of the Air Force has the authority to correct records, as happened in 2007.
"OSD [office of the secretary of defense] lawyers have said, 'You can't make that decision," Schwalier said. "That's scary. I think military secretaries ought to be able to run their own departments, not staff lawyers.
Schwalier was commander of the 4404th Wing at King Abdul Aziz Air Base, Saudi Arabia, when a truck bomb exploded the eight-story Khobar Towers housing complex on June 25, 1996. Nineteen airmen were killed and hundreds more were injured.
Two Air Force investigations determined that Schwalier had taken appropriate security precautions, but a separate Defense Department investigation faulted Schwalier for not moving the blast walls further from the housing complex and not reinforcing the complex' windows to make them more resistant to explosions.
In 2006, Schwalier told Air Force Times that the Saudi government had objected to moving the blast walls and work to reinforce the complex' windows had already been approved but work had not yet started.
"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."
Even though Schwalier's promotion had already been approved by the Senate and he was due to pin on his second star in January or February 1997, President Bill Clinton removed his name from the promotion list at the recommendation of then Defense Secretary William Cohen. Schwalier retired as a one-star general in 1997.
Schwalier began a campaign to overturn Clinton's decision in 2003. In 2011, he filed a lawsuit against the Defense Department and Air Force secretaries, but in January, the U.S. Court of Appeals for the Federal Circuit ruled that military officers cannot be promoted unless they are appointed by the president, even if the Senate has already confirmed them.
The court also disagreed with Schwalier that the Air Force had overridden Clinton's decision by promoting him in 2007, finding that Schwalier's argument "would effectively allow Congress to compel the President to appoint senior officers of the United States."
On Monday, Schwalier thanked all of his supporters for their help over the years, including pro-bono attorneys who have taken his case.. He also said the Supreme Court's decision will have reverberations for other commanders, who have to worry that if something goes wrong, they're bosses are "going to take the political way out."
"I think it's going to force our commanders to think more about checking their 6, I think, than looking ahead and trying to fight a battle," Schwalier said. "That's tragic."