The Coast Guard Cutters Tybee, Sanibeland Hammerhead idle together near Nobska Lighthouse in Falmouth, Mass., in 2023. (Petty Officer 2nd Class Ryan Noel/U.S. Coast Guard photo )
Veterans who were found by a judge to have been illegally retired from the Coast Guard have now accused the service of using a process to determine their backpay and retirement benefits that shortchanges how much is owed to them, according to federal court documents.
Jenn Rehberg was forced to retire in 2014 after 22 years in the Coast Guard and said the service’s method of calculating her backpay and new retirement benefits is about $400,000 less than she expected.
“It was almost like being stabbed in the back again,” the 53-year-old said Thursday. “As if the first time wasn’t enough for me and my shipmates.”
A federal court decision finalized in May determined the Coast Guard’s use 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. The use of the panels began in 2010.
At the time, senior enlisted members could reenlist indefinitely, and many were planning to stay in the service 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 to 2014 and removed more than 800 members as a “reduction in force,” according to court documents.
Attorney Nathan Mammen filed the suit in 2018 on behalf of Rehberg and five other veterans named in the litigation. An additional 237 veterans signed onto the lawsuit and Judge David Tapp with the Court of Federal Claims ordered all of them should receive backpay and benefits as determined by the Coast Guard.
Most of those veterans were on indefinite orders and determining how long each member theoretically would have continued to serve on active duty has created disagreement in calculating how much is owed to them.
The Coast Guard used a regulation known as high-year tenure to calculate payments, according to court documents filed last month. The regulation means service members must move up in rank within a certain time or leave the service.
Of the 243 veterans in the lawsuit, the regulation was used on 232, according to court documents. Eleven of the veterans were master chiefs and exempt from high year tenure. Eight were given retroactive promotions that they had earned prior to their forced retirement.
“We are disappointed to see the government continuing to injure plaintiffs by trying to retroactively use high-year tenure to replace the illegal Career Retention Screening Panels,” Mammen said. “This shortchanges plaintiffs from what they are owed.”
The Coast Guard said in a statement Friday that it is working with the Justice Department, which will respond to the court concerning the application of high-year tenure.
However, during a November hearing, Douglas Edelschick, an attorney for the Justice Department, told the judge that the Coast Guard has set up a team to address the court’s order that has “gone above and beyond” to do everything it can.
“What the plaintiffs are asking for is that a regulation, which applied to every single member who wore that uniform, should not apply to them,” he said.
When service members are faced with high-year tenure while on active duty, there is a process available to waive the requirement, according to court documents. Denying that appeal for a waiver is again forcing a retirement process onto these troops that is cutting their service short of what was possible, the veterans argued in court documents. The process assumes each veteran would not have promoted upward within appropriate timelines or had their waiver denied, if requested.
For Rehberg, high-year tenure changes her years of service to 24 instead of 22, so she received about $112,000 after taxes.
She was a chief petty officer and had been twice named sailor of the year when she learned she was on the list to be forced into retirement. She was on an indefinite enlistment and fully expected to reach master chief and 30 years of service before her career ended.
“Based on my record, based on my performance, there was nothing that should have been assumed that I wouldn’t have reached my 30-year goal,” Rehberg said.
If the Coast Guard used the 30-year marker for Rehberg, she said her payment would have been about $500,000.
“It was never about the backpay or the allowances, or any of that. It was for me, about validation,” she said. “I need you to tell me, ‘I’m sorry. I’m sorry, thank you for everything you did for us, but I’m sorry that we did this to you.’ Unfortunately, that is not something that we have yet received.”
As a sixth-grader living in Corpus Christi, Texas, Rehberg said she went out to South Padre Island with her parents and saw a Coast Guard patrol boat doing training maneuvers with a helicopter.
“I just thought it was the neatest and coolest looking thing,” she said.
Enlistment became her dream, and she did so right out of high school. She married a fellow Coast Guard member and “loved every minute” of her military service.
When she got the call that she was being forced to retire, it shattered her life plans and her sense of who she was. She attended therapy to work through the various stages of grief the retirement triggered, particularly the anger she felt for having no say or control of the matter. Rehberg didn’t even tell her parents about it until the lawsuit seemed to be going in favor of the veterans.
“This process has been unfair to us. Every time we go to court, and we hear what they say about us, or try to twist and turn the case to put themselves in a good light. There’s a lot of us just shaking our heads and the anger just comes rushing back,” she said.
Tapp, the judge on the case, asked an attorney for the Justice Department during a November hearing if there was any intention of issuing an apology to the veterans wronged by the service.
“There’s never anything which prevents the United States of America, when they have violated a statute, a rule, to the detriment of its citizens, from saying we messed up and I’m sorry. And maybe that wouldn’t make a bit of difference for the nickels and dimes that we’re going to be focused on ultimately in a judgment,” Tapp said. “It is helpful. It goes a long way, many times, in assuaging the sense of hurt that plaintiffs feel.”
Edelschick, from the Justice Department, responded the Coast Guard was fulfilling its court-ordered obligation to set new retirement dates for all veterans in the lawsuit and begin paying out backpay.
“So it is exactly what’s required and nothing more, correct?” Tapp said.
“Your honor, I’m not in the apology business,” Edelschick said.
