Nearly 250Coast Guardmembers who were unlawfully forced into retirement under the guise of a force reduction could be entitled to millions of dollars in backpay and benefits, according to a federal court decision.
The U.S. Court of Appeals for the Federal Circuitin March upheld a lower court’s 2021 decision that theCoast Guard’suse of what it called performance-based panels to thin the upper enlisted ranks violated federal law and the due-process afforded troops when separated from the service. TheCoast Guardhad until Thursday to appeal to theSupreme Courtbut did not, saidNathan Mammen, the attorney who filed the suit in 2018.
“We’re supposed to trust our leadership to do the right thing, and if they don’t do the right thing, they need to be held accountable,” saidMike Bumgardner, a retired master chief named in the lawsuit.
Now theCoast Guardmust provide backpay and benefits to Bumgardner and five other retired service members named in the suit. Mammen said he plans to ask the court to ensure the other 237 members who signed onto the lawsuit receive the same.
Most were serving on enlistment contracts with no end date, so it’s unclear exactly how the Coast Guard will determine what each individual is owed, he said.
The Coast Guard referred comment on the lawsuit to the Justice Department, which provided attorneys for the case. The Justice Department also declined comment.
The lawsuit stemmed from a Coast Guard decision in 2010 to rebalance the force, according to court documents. At the time, senior enlisted members could reenlist indefinitely and many were sticking around for a full 30-year career. Service leaders felt this limited promotion opportunities for lower enlisted members, so the Coast Guard held Active Duty Enlisted Career Retention Screening Panels from 2010-14 and removed more than 800 members as a “reduction in force.”
Going this route to retire people saved theCoast Guardmoney and avoided some administrative hurdles, saidMarc Lippman, a master chief petty officer forced to retire in 2015.
“I get the axe, and I don’t know why. I can’t appeal it. I can’t know the charges against me. None of those protections,” he said. “They said the reason for this is because there was a reduction in force. But I know there wasn’t a reduction in force.”
Lippman filed the first lawsuit against theCoast Guardabout the panels in 2015 and settled in 2018, setting the groundwork for the class action lawsuit later that year.
In July 2021, the U.S. Court of Federal Claims ruled the panels were not a reduction in force because no job positions were eliminated. Instead, members were moved out of those positions to make way for others.
“It really tore a part of my soul from me,” saidJason Boop, a retired chief petty officer who has joined the lawsuit. “It’s almost like you’re wearing a scarlet letter like you’ve done something bad in your career to make theCoast Guardboot you out.”
Outwardly, Coast Guard leaders told these service members that the panels were performance and conduct-based and those removed by them were no longer good enough to serve, Mammen said.
The panels stopped short of saying these service members had committed some form of misconduct because that would trigger a process in which the Coast Guard is required to provide service members legal representation to fight the allegations.
When Boop found out in 2013 he was being forced to retire, he said he was serving as a commanding officer in Portsmouth, feeling about as happy as he had in more than 20 years of service. He was aiming to become a warrant officer. Instead, he has worked in insurance for the past decade.
“Had I stayed in all that time, I wouldn’t need a second job. My wife wouldn’t need a second job. We’re both working our butts off,” Boop said. “There’s a lot of these repercussions that come every day that I think about it, and so I’d like to let go of the past because I have two beautiful children.”
The lawsuit ending is one step toward that closure, he said.
In the five years that the Coast Guard ran the panels, it retired 832 enlisted members, according to court documents. However, only those retired between 2012-14 were eligible to sue in 2018 because of the statute of limitations.
Brian Schenk, an attorney who has been following the case, said he hopes the retirees who could not join the lawsuit can get their military records corrected.
Previous efforts to appeal to the board had not been successful, he said.
In Lippman’s settlement, the Coast Guard increased his years of service from 23 years to 27 because that’s how long he’d been fighting the service in court. He got backpay of about $200,000 and now gets retirement checks for the increased years of service.
If theCoast Guardwere to offer a similar settlement to all 243 members of the class action lawsuit, it could cost the service roughly $45 million, Lippman said.
“People who instituted this program need to be called in front of a congressional committee,” he said.
For Bumgardner, he’s looking more for an apology.
“I think theCoast Guardneeds to admit that it failed and that it was wrong in the way they went about the process,” he said. “When all this went down there was a feeling in the workforce that the people who were subjected to this were dirtbags. It had all kinds of negative connotations to it. It was difficult.”
