by Robert Coram
At last he knew what God had been saving him for.
He had what he thought was his final mission.
He would sue the Clinton administration on behalf of his comrades.
He would file the suit pro se, that is, he would be the plaintiff.
And he would go into battle the way Mistys always go into battle . . . alone.
THE next morning he got up and told Doris he was going to the office to catch up on some paperwork. All day Saturday and Sunday he spent drawing up the complaint. On Monday, July 16, 1996, he drove forty miles to Pensacola and filed suit against the secretary of defense. It was a shotgun attack with a half dozen allegations. Little Tucker was his big gun, but he also said there had been “an illegal taking” under the Fifth Amendment. He wanted damages for breach of contract.
Bill Kaczor, the longtime Associated Press reporter in Pensa-cola, heard about the suit. Kaczor had opened the AP bureau in 1984 and over the years found that his superiors in Miami had a very narrow interest in stories coming from the panhandle: hurricanes, shark attacks, and the bombing of abortion clinics — that was about it. This story was no different. Kaczor read the pleadings and said to himself, “It is obvious these guys have a case.” He filed his piece and sent it to Miami, where it was put on the “Florida wire.” This meant the story ran in the relatively small dailies in the panhandle and in a few papers in Georgia and Alabama.
Day came back to his office in Fort Walton Beach, walked into Doris’s corner office, and said, “Well, Mama, I filed that complaint against the government.”
For a moment she was speechless. Then she said, “Bud, you are nuts.”
He smiled and shrugged. “Well, maybe.”
“You are not only nuts, you are absolutely nuts.”
He smiled and walked down the hall to his office. He was in the Pack. He had penetrated enemy airspace and the AAA could start anytime.
IT is a safe generalization to say most national media either do not understand military issues or do not think those issues are relevant, interesting, or newsworthy. As a result, what was to become one of the most poignant stories of the decade, a story that — at a fundamental life-affecting level — deeply touched some two million Amer-icans, was overlooked by the media. One or two pieces would later appear in the national media, but the big story, the dramatic story of how America’s most decorated warrior went into battle with his government, was overlooked. It was then and remains today largely unknown to the general public, overshadowed by what seemed to reporters to be a much bigger and much more important saga that was beginning to unfold in Washington — a story that, over the next three years, seemed at every turn to flare up and overshadow Bud Day’s lawsuit. A young woman named Monica Lewinsky had come to work at the White House as an unpaid intern and had begun a sexual relationship with President Bill Clinton. In early 1996 Lewinsky was transferred to the Pentagon, where she met a career government worker named Linda Tripp. In the summer of 1996, Lewinsky began to tell Tripp of her relationship with Clinton. Shortly thereafter, Tripp began taping the conversations. In October 1997, just three months after Day filed his suit, Tripp met with Michael Isikoff of Newsweek and played the tapes for him. In December 1997, Lewinsky would be subpoenaed by lawyers for Paula Jones, a woman who was suing Clinton on sexual harassment charges. That same month, Lewinsky went to the White House for the last time, met privately with Clinton, and later said he encouraged her to be “-evasive” when she answered questions from Jones’s lawyers.
As the sordid tale of Bill Clinton, Paula Jones, and Monica Lewinsky became the top news story in America, and as everything Bud Day did on behalf of several million retirees was ignored, Bud Day became incensed: this not only was an affirmation to him of how Clinton had disgraced the White House but was an affirmation of how the media was so profoundly out of tune with the world of the military.
SOMETIMES the nightmares were so strong that they overrode the pills, and when dawn came Bud was so tired he would stay in bed a half hour or so longer than usual. So it was on Wednesday morning, two days after the suit was filed and the day after Kaczor’s story appeared. At about 8:30 a.m. his secretary called and said, “Colonel Day, the office is full of men wanting to see you, and the answering machine is filled up with messages. I wish you would come on down here. I don’t know anything about this lawsuit.”
“What men? What do they want?”
“They are upset. They want to know why you didn’t put out the word on this lawsuit. They are here to volunteer to help you.”
Day arrived at his office to find the parking lot full. Inside, several dozen old men were jammed into the front office and were filling the halls. They were all talking at the top of their voices. They were from as far west as Pensacola and from as far east as Panama City. They came down from Alabama and Georgia, and they came independently of one another. There was no organized campaign where one person phoned or sent an e-mail to another. It was spontaneous. They read the story on Tuesday in their local newspaper, looked up the address of Bud Day’s law office, and Wednesday morning got in their cars and started driving. When they arrived, they found the others there.
The men recognized Bud Day when he entered and descended upon him, clapping him on the back and thanking him for filing the lawsuit on their behalf. But most of all, they wanted to know what they could do to help. They were in their late sixties, their seventies and eighties. Among them were men who were mentally quick and sharp, men who knew how to organize people and issues as only military people can.
There were also men with crutches, walkers, and canes. They were palsied, wore hearing aids, were a bit gimpy, and sometimes their senior moments lasted more than a moment. Their history was in their eyes, and their sacrifices in their scars. There had been many overseas deployments that separated them from their families. Countless times they had to uproot their families and move to another base, often to substandard quarters that were always too hot or too cold. Their children grew up not knowing where home was. They had suffered financially because of their service to America. Their youth was a distant memory, and their future held little promise.
But they were still warriors. Their hearts beat as resolutely as when they stormed the beaches on Pacific islands, as when they fought across Europe, and as when they tried to stay warm in the snows of Korea. They were ready to march.
Some of them were financially comfortable. But others lived on retirement pay and Social Security. Paying the Medicare supplement was a big hit in their wallets. For some retired enlisted personnel, the choice was stark: food or medicine. Every man present knew of retirees who were devastated by the actions of the Clinton administration.
Now Bud Day had sounded the call to arms. And Bud Day was a man they would follow. They were ready to do battle one more time, but this time against the government to which they had devoted their most productive years, the government for which they had shed their blood, the government for which they had sacrificed so much. They were about to go to war with Uncle Sam.
And it broke their hearts.
DAY took charge of the meeting and said there was not enough room for everyone in his office. He arbitrarily picked a half dozen men, sent the others home, and told them to stand by.
“This thing is bigger than we are,” he said to those who remained. “We need to get organized. We need to qualify the people who are involved. We need phones. We need computers. We need everything.”
He gave the north wing of his office building to the retirees. He said he would install additional phone lines and a computer.
Several of the men Day picked to stay for the first meeting would play a crucial role in what followed. One was Robert Geas-land, a West Point graduate and retired Air Force colonel with a gift for organizing and writing. He also had access to lists of West Point and Naval Academy graduates going back decades. It was Geasland who said the retirees were a class act group of guys and should be called the “Class Act Group,” or “CAG.” It wa
s also he who said of Day, “He is, by nature, incapable of allowing injustice to go unchallenged.”
Jim Bahl, a retired Air Force officer, would be the bean counter, the man in charge of keeping track of money. Tom Pentecost, a former Marine, would be the computer wizard; he would be in charge of putting names and data into computers and keeping everything current. Within a few months, Pentecost would have a database that included the names of some thirty thousand retirees.
But the two men who would become symbolic of CAG were William O. Schism and Robert Reinlie. It would be difficult to find two men more representative of the “greatest generation,” two better poster boys for the life experiences of those affected by the government’s broken promise.
Schism enlisted in the Navy in 1943 and served a flying tour in a combat zone. After the war was over, he went to college, then joined the Air Force as an officer. He flew combat missions in Vietnam. In 1995 his free military-hospital care was terminated by the Clinton administration. Now Medicare cost him $525.60 per year, plus that same amount for his wife. The Medicare supplement policy cost him and his wife $3,335.85 per year.
Reinlie had joined the Army Air Forces in 1942 when things were going very badly for America. He flew thirty combat missions over Europe in a B-17. When the war was over, he went into the Air Force Reserves and was recalled to active duty in 1951, when the Korean War began.
Both men had received free medical care until 1995.
On advice of the Florida Bar, Day decided to change his pleadings. He removed himself as the plaintiff and, on December 11, 1996, amended the pleadings to make Schism and Reinlie the plaintiffs.
Every morning when Day arrived at the office, he found a dozen old warhorses pawing the pavement, anxious to go to work. Inside, every telephone answering machine was loaded to capacity. His office e-mail, his personal e-mail, and the CAG e-mail contained hundreds of messages. The daily mail brought dozens of letters from men who wanted to become involved. Most letters contained checks. The phone rang all day long. Word was out beyond the Southeast. Retirees were calling from all over the country.
Day was building up a war chest for the looming battle. But he had faced the government before and knew he could never match the Department of Justice when it came to expert witnesses and resources and people. He told CAG that he would accept only expenses, that he would not bill his comrades for his legal services unless or until they won something. He gave them keys to his office and put them on shifts to enter names on the computer, to return phone calls and e-mails, to answer the mail, and to screen potential CAG members. To qualify, a person had to have joined the military before 1956, served at least twenty years, and been honorably discharged.
On March 6, 1997, Bud Day faced off with a U.S. government lawyer at the federal courthouse in Pensacola. The courtroom was packed with retirees. The government was represented by Martha Hirschfield, a young woman who, Geasland later wrote, “was crawling around in heavy diapers” during the Vietnam War and thus knew nothing about values and practices of the Vietnam era, much less those of World War II. (When military people are criticized, the first thing they want to know is the service record of the person doing the criticizing. Their thinking, and this is almost universal, is that if you haven’t been there, if you haven’t worn the uniform, if you haven’t been shot at, then you don’t know what you are talking about, so sit down and be quiet. This argument is specious and irrelevant. Nevertheless, it holds great weight with those who served.)
Judge Roger Vinson asked Hirschfield if there were any precedents, any U.S. statutes that controlled the case; she said no. The judge took the case under advisement.
When Day left the courthouse, several hundred retirees were waiting. They gathered around him, cheering, shaking his hand, and thanking him.
On June 10, 1997, Judge Vinson agreed to let the case go forward, and the proceedings moved into “discovery” — the process by which the plaintiff and the defendant provide whatever evidence they have to each other so that when the case comes to trial, the court can weigh all the evidence and make a decision.
Those who have never entered a courtroom tend to think of legal proceedings as dry and plodding, even boring and of little consequence. Nothing could be further from the truth. All the drama of the human experience, from birth to death, is played out in the courtroom. And if one can hear the underlying harmonies, then one knows the courtroom can be a bloody arena with enormous stakes. It helps to have the law on your side, but that does not always ensure victory. The almost universal presence in the courtroom, or somewhere on the exterior of the courthouse, of a blindfolded woman holding the scales of justice is misleading in the extreme. Justice is not blind, and courtrooms are not about justice. Being an advocate is like being an old Western gunfighter who stands in the middle of the street and takes on all comers. The winner is the fastest and most skillful gun.
ON March 14, 1997, Air Force chief of staff Ronald Fogleman presided over the dedication of the new Colonel George E. “Bud” Day Academic Building at the Air Force Survival School at Fair-child AFB near Spokane. The building was named for Day because, after his escape in Vietnam, he evaded capture longer than any other graduate in the history of the survival school.
The event was significant in a number of respects, the most important of which is the Air Force regulation that says buildings will be numbered, not named. On those rare times when the Air Force does name a building after a person, that person usually is long dead. The Air Force’s naming a building after a living officer had few precedents. But General Fogleman said waiving the regulations in this instance was one of the easiest decisions he ever made.
WITHOUT getting bogged down in what became months of legal maneuvering, of motions and countermotions, suffice it to say that Bud Day did not believe the government was entirely forthcoming in its presentation. Day knew the government had old manuals and recruiting material that would prove his case. But he could not find them. He filed interrogatories, part of the discovery process in which the plaintiff asks the defendant questions about the case. The government responded by saying the discovery motions were burdensome and onerous and would take too much manpower and be prohibitively expensive. On September 17, 1997, Judge Vinson issued an order saying the burden and expense to the government of discovery outweighed the benefits. He said the government did not have to respond to the interrogatories. Day offered the services of CAG members, retired military officers who would be delighted to help out the Justice Department. The offer was refused.
The government position was that no one in the military had the authority to bind the government to a promise of free lifetime medical care. This argument implied that all military recruiters were rogue agents who made promises without the authority of the government. Of course, few organizations are as rule-bound as is the U.S. military. It is a crime for an officer to make a false official statement. Yet the government’s position implied that hundreds, perhaps thousands, of recruiting officials had, over the decades, done precisely that.
Day pointed out in one of his motions that the government claimed it was not bound by promises of lifetime medical care to retirees while at the same time military recruiters continued to use “this extremely valuable retirement benefit as a key recruiting tool.” Indeed, as Veterans Day approached in November, Bill Kaczor noted in a story that on an Internet Web site, the U.S. Army was continuing to make promises of free medical care while at the same time government attorneys were asserting in court that no such guarantee existed.
(A few months later, U.S. military recruiters stopped telling enlistees, potential reenlistees, and officers of free lifetime medical care. Recruiting films and brochures and anything containing references to free lifetime medical care were tossed out and replaced with material that did not contain the promise.)
Day’s trepidation about fighting the government was proving to be well founded. But in late 1997 he sent an e-mail to all members of CAG saying that “defeat is not
an option” and that he was pressing forward with all the forces at his command. As a military man, he knew that multiple thrusts are a proven strategy. He did not want to put the fate of the retirees entirely on the judicial approach. As a backup, he also would go the legislative route.
Mississippi was proving to be a ripe recruiting ground for CAG. Then congressman Ronnie Shows attended a CAG meeting in his Mississippi district. He told Day about his father, who was a disabled World War II veteran, and said, “I will do whatever I can to help you get a bill passed. But I am a freshman congressman. I have no clout. You need someone in the Senate who can help.”
While Shows prepared and introduced a House bill to restore benefits, Day talked to Senator Tim Johnson of South Dakota, who agreed to support the legislation in the upper chamber. McCain, for reasons that are unclear, was reluctant to lend his support until Day called him for a heart-to-heart. Neither man will reveal the content of the conversation, but whatever it was finally convinced McCain to support the legislation.
The bill began making its way through Congress.
IN February 1998, Day filed a motion in federal court in Pensacola, charging that the government was withholding crucial evidence. Both Day and the government asked for summary judgment in their behalf.
Day came to feel increasingly isolated during the months of court proceedings. The judge called Day “Mr. Day” while he called the government lawyers by their first names and was fraternal, almost jocular, with them. Day showed respect toward the judge but not the obeisance shown by the government lawyer. And sometimes his indignation toward the government’s position was palpable while the government lawyer was cool and almost clinical. Occasionally when Day sat down and crossed his legs, his socks were not in harmony with his suit. The government lawyer dressed like a Washington lawyer.