In article <XnsAE59E69AA8843JF72A@0.0.0.1>
BMC Bush <bmcbush@navy.mil> wrote:
>
> In a front-page article in today's New York Sun entitled "Mystery
> Surrounds Kerry's Navy Discharge," reporter Thomas Lipscomb asserts that
> in all probability, Sen. John F. Kerry originally received a less-than-
> honorable discharge from the United States Naval Reserve � a discharge
> that was only upgraded to honorable after President Carter's 1977
> executive order proclaiming a presidential amnesty for Vietnam War
> resisters.
>
> My purpose in this post is to provide links to and more extended quotes
> from the documents that Mr. Lipscomb's article references for those who
> are interested in assessing this assertion, and of course my own
> admittedly tentative take on these issues. [Update: Be sure to read
> through to my 5:25pm update below for a speculative, innocuous scenario
> possibly involving section 1163(a) � Beldar.]
> I. The Claytor document
> Mr. Lipscomb's assertion begins with this document from John Kerry's
> website, described there as Kerry's "Honorable Discharge From Reserve."
> Dated February 16, 1978, and issued in the name of Carter administration
> Secretary of the Navy W. Graham Claytor, it provides:
>
> Subj: Honorable Discharge from the U.S. Naval Reserve
> Ref: (a) Title 10, U.S. Code, Section 1162
> (b) Title 10, U.S. Code, Section 1163
> (c) BUPERSMAN 3830380
> Encl: (1) Honorable Discharge Certificate
> 1. By direction of the President, and pursuant to reference (a), you are
> hereby honorably discharged from the U.S. Naval Reserve effective this
> date.
>
> 2. This action is taken in accordance with the approved recommendations
> of a board of officers convened under authority of reference (b) to
> examine the official records of officers of the Naval Reserve on inactive
> duty and determine whether they should be retained on the records of the
> Reserve Component or separated from the naval service pursuant to
> Secretarial Instructions promulgated in reference (c).
>
> 3. The Navy Department at this time expresses its appreciation of your
> past services and trusts that you will continue your interest in the naval
> service.
>
> There's another 1978 document on the Kerry website, labeled "Acceptance of
> Discharge Naval Reserve," that as best I can tell simply reflects Sen.
> Kerry's acceptance of the Claytor letter.
>
> II. Former sections 1162 and 1163 of
> Title 10 of the United States Code
> As part of a reorganization of the relevant portions of Title 10, sections
> 1162 and 1163 were repealed effective December 1, 1994, and because their
> text no longer appears in the current United States Code, they're somewhat
> hard to locate. However, with some digging using Lexis/Nexis, one can
> determine that as in effect from 1956 through 1994, 10 U.S.C. � 1162 read:
>
> (a) Subject to the other provisions of this title, reserve commissioned
> officers may be discharged at the pleasure of the President. Other
> Reserves may be discharged under regulations prescribed by the Secretary
> concerned.
>
> (b) Under regulations to be prescribed by the Secretary of Defense, a
> Reserve who becomes a regular or ordained minister of religion is entitled
> upon his request to a discharge from his reserve enlistment or
> appointment.
>
> Since Kerry was not a regular or ordained minister, section 1162(b) can't
> have applied. Rather, the first sentence of section 1162(a), pertaining
> to "reserve commissioned officers," was what the first numbered paragraph
> in the Claytor document must be referencing, and stands for nothing more
> than the unremarkable proposition that the President has authority to
> discharge reserve commissioned officers.
>
> Where things get interesting, however, is the second numbered paragraph of
> the Claytor document quoted above, and in particular its reference to the
> "approved recommendations of a board of officers convened under authority
> of [section 1163] to examine the official records of officers of the Naval
> Reserve on inactive duty and determine whether they should be retained on
> the records of the Reserve Component or separated from the naval service
> ...." As in effect from 1956 through 1994, 10 U.S.C. � 1163 read:
>
> (a) An officer of a reserve component who has at least three years of
> service as a commissioned officer may not be separated from that component
> without his consent except under an approved recommendation of a board of
> officers convened by an authority designated by the Secretary concerned,
> or by the approved sentence of a court-martial. This subsection does not
> apply to a separation under subsection (b) of this section or under
> section 1003 of this title, to a dismissal under section 1161 (a) of this
> title, or to a transfer under section 3352 or 8352 of this title.
>
> (b) The President or the Secretary concerned may drop from the rolls of
> the armed force concerned any Reserve (1) who has been absent without
> authority for at least three months, or (2) who is sentenced to
> confinement in a Federal or State penitentiary or correctional institution
> after having been found guilty of
> an offense by a court other than a court-martial or other military court,
> and whose sentence has become final.
>
> (c) A member of a reserve component who is separated therefrom for cause,
> except under subsection (b), is entitled to a discharge under honorable
> conditions unless �
>
> (1) he is discharged under conditions other than honorable under an
> approved sentence of a court-martial or under the approved findings of a
> board of officers convened by an authority designated by the Secretary
> concerned; or
>
> (2) he consents to a discharge under conditions other than honorable with
> a waiver of proceedings of a court-martial or a board.
>
> (d) Under regulations to be prescribed by the Secretary concerned, which
> shall be as uniform as practicable, a member of a reserve component who is
> on active duty (other than for training) and is within two years of
> becoming eligible for retired pay or retainer pay under a purely military
> retirement
> system, may not be involuntarily released from that duty before he becomes
> eligible for that pay, unless his release is approved by the Secretary.
>
> Unfortunately, I've been unable to locate the text of the third reference
> from the Claytor document, "BUPERSMAN 3830380," which I presume to have
> been a Bureau of Personnel Manual regulation. [Update: see James
> Lederer's and Cecil Turner's helpful comments and links below, which I've
> edited this text to conform to � Beldar]
>
> III. Mr. Lipscomb's arguments from the Claytor
> document and sections 1162 and 1163
> Here's Mr. Lipscomb's analysis of how the Claytor document and the two
> relevant statutes lead to inferences about Sen. Kerry's original discharge
> and possible later upgrade:
>
> An official Navy document on Senator Kerry's campaign Web site listed as
> Mr. Kerry's "Honorable Discharge from the Reserves" opens a door on a well
> kept secret about his military service.
>
> The document is a form cover letter in the name of the Carter
> administration's secretary of the Navy, W. Graham Claytor. It describes
> Mr. Kerry's discharge as being subsequent to the review of "a board of
> officers." This in itself is unusual. There is nothing about an ordinary
> honorable discharge action in the Navy that requires a review by a board
> of officers.
>
> According to the secretary of the Navy's document, the "authority of
> reference" this board was using in considering Mr. Kerry's record was
> "Title 10, U.S. Code Section 1162 and 1163." This section refers to the
> grounds for involuntary separation from the service. What was being
> reviewed, then, was Mr. Kerry's involuntary separation from the service.
> And it couldn't have been an honorable discharge, or there would have been
> no point in any review at all. The review was likely held to improve Mr.
> Kerry's status of discharge from a less than honorable discharge to an
> honorable discharge.
>
> After noting that the Kerry campaign had not replied to his inquiry about
> "whether Mr. Kerry had ever been a victim of an attempt to deny him an
> honorable discharge," Mr. Lipscomb discusses how a less-than-honorable
> discharge � one that would need further processing in 1978 to be upgraded
> to honorable � might have come about in the first place:
>
> The document is dated February 16, 1978. But Mr. Kerry's military
> commitment began with his six-year enlistment contract with the Navy on
> February 18, 1966. His commitment should have terminated in 1972. It is
> highly unlikely that either the man who at that time was a Vietnam
> Veterans Against the War leader, John Kerry, requested or the Navy
> accepted an additional six year reserve commitment. And the Claytor
> document indicates proceedings to reverse a less than honorable discharge
> that took place sometime prior to February 1978.
>
> The most routine time for Mr. Kerry's discharge would have been at the end
> of his six-year obligation, in 1972. But how was it most likely to have
> come about?
>
> NBC's release this March of some of the Nixon White House tapes about Mr.
> Kerry show a great deal of interest in Mr. Kerry by Nixon and his
> executive staff, including, perhaps most importantly, Nixon's special
> counsel, Charles Colson. In a meeting the day after Mr. Kerry's Senate
> testimony, April 23, 1971, Mr. Colson attacks Mr. Kerry as a "complete
> opportunist...We'll keep hitting him, Mr. President."
>
> Mr. Colson was still on the case two months later, according to a memo he
> wrote on June 15,1971, that was brought to the surface by the Houston
> Chronicle. "Let's destroy this young demagogue before he becomes another
> Ralph Nader." Nixon had been a naval officer in World War II. Mr. Colson
> was a former Marine captain. Mr. Colson had been prodded to find "dirt" on
> Mr. Kerry, but reported that he couldn't find any.
>
> The Nixon administration ran FBI surveillance on Mr. Kerry from September
> 1970 until August 1972. Finding grounds for an other than honorable
> discharge, however, for a leader of the Vietnam Veterans Against the War,
> given his numerous activities while still a reserve officer of the Navy,
> was easier than finding "dirt."
>
> For example, while America was still at war, Mr. Kerry had met with the
> North Vietnamese and Viet Cong delegation to the Paris Peace talks in May
> 1970 and then held a demonstration in July 1971 in Washington to try to
> get Congress to accept the enemy's seven point peace proposal without a
> single change. Woodrow Wilson threw Eugene Debs, a former presidential
> candidate, in prison just for demonstrating for peace negotiations with
> Germany during World War I. No court overturned his imprisonment. He had
> to receive a pardon from President Harding.
>
> Mr. Colson refused to answer any questions about his activities regarding
> Mr. Kerry during his time in the Nixon White House. The secretary of the
> Navy at the time during the Nixon presidency is the current chairman of
> the Senate Armed Services Committee, Senator Warner. A spokesman for the
> senator, John Ullyot, said, "Senator Warner has no recollection that would
> either confirm or challenge any representation that Senator Kerry received
> a less than honorable discharge."
>
> Mr. Lipscomb next explains how the amnesty issued by President Carter may
> have facilitated an upgrade in 1978 if indeed Sen. Kerry's original
> discharge was less than honorable:
>
> The "board of officers" review reported in the Claytor document is even
> more extraordinary because it came about "by direction of the President."
> No normal honorable discharge requires the direction of the president. The
> president at that time was James Carter. This adds another twist to the
> story of Mr. Kerry's hidden military records.
>
> Mr. Carter's first act as president was a general amnesty for draft
> dodgers and other war protesters. Less than an hour after his inauguration
> on January 21, 1977, while still in the Capitol building, Mr. Carter
> signed Executive Order 4483 empowering it. By the time it became a
> directive from the Defense Department in March 1977 it had been expanded
> to include other offenders who may have had general, bad conduct,
> dishonorable discharges, and any other discharge or sentence with negative
> effect on military records. In those cases the directive outlined a
> procedure for appeal on a case by case basis before a board of officers. A
> satisfactory appeal would result in an improvement of discharge status or
> an honorable discharge....
>
> There are a number of categories of discharges besides honorable. There
> are general discharges, medical discharges, bad conduct discharges, as
> well as other than honorable and dishonorable discharges. There is one odd
> coincidence that gives some weight to the possibility that Mr. Kerry was
> dishonorably discharged. Mr. Kerry has claimed that he lost his medal
> certificates and that is why he asked that they be reissued. But when a
> dishonorable discharge is issued, all pay benefits, and allowances, and
> all medals and honors are revoked as well. And five months after Mr. Kerry
> joined the U.S. Senate in 1985, on one single day, June 4, all of Mr.
> Kerry's medals were reissued.
>
> Mr. Lipscomb also notes that to confirm or refute his chain of inferences,
> one would need Sen. Kerry's 1972-era records that could be expected to
> give details on whatever it was that the 1978 board proceedings were
> reviewing:
>
> Mr. Kerry has repeatedly refused to sign Standard Form 180, which would
> allow the release of all his military records. And some of his various
> spokesmen have claimed that all his records are already posted on his Web
> site. But the Washington Post already noted that the Naval Personnel
> Office admitted that they were still withholding about 100 pages of files.
>
> Mr. Lipscomb's reference here is most likely to Michael Dobb's August 22nd
> WaPo article, which reported:
>
> Although Kerry campaign officials insist that they have published Kerry's
> full military records on their Web site (with the exception of medical
> records shown briefly to reporters earlier this year), they have not
> permitted independent access to his original Navy records. A Freedom of
> Information Act request by The Post for Kerry's records produced six pages
> of information. A spokesman for the Navy Personnel Command, Mike
> McClellan, said he was not authorized to release the full file, which
> consists of at least a hundred pages.
>
> The Navy Department also confirmed that it has unreleased records that
> aren't on the Kerry website in response to the Judicial Watch complaint.
>
> IV. Beldar's take on Mr. Lipscomb's article
> Rumors, supposition, and yes, inuendo about whether Sen. Kerry may have
> received a less-than-honorable discharge have swirled through the
> blogosphere at least since August, when the SwiftVets' ad campaign kicked
> off. However, in previous articles published by the New York Sun and the
> Chicago Sun Times, Mr. Lipscomb has previously provided serious original
> investigative reporting on, for example, Sen. Kerry's documented
> attendance at VVAW meetings where assassinations of American political
> figures were seriously discussed, Sen. Kerry's re-issued Silver Star
> citation, the Navy Department's consideration of the Judicial Watch
> complaint, and the likely authorship of the 13Mar39 after-action report
> that likely was the basis for Kerry's Bronze Star and third Purple Heart.
> His latest effort is another serious attempt to probe the mysteries of
> Kerry's military record that most reporters, and certainly that Kerry-
> friend biographers like Doug Brinkley, have persistently ignored.
>
> Are the inferences Mr. Lipscomb makes in this latest article justified?
> Quite frankly, I lack the personal military background, and the
> familiarity with either the normal or unusual workings of military
> separation proceedings, to draw a confident conclusion or argue it here.
>
> But I'm certainly intrigued � indeed, that's too mild a word � by Mr.
> Lipscomb's reporting. And there's no doubt that the Kerry campaign and
> Sen. Kerry himself are stonewalling. If there is a contrary explanation
> for the odd timing of Sen. Kerry's honorable discharge, and documents to
> support that explanation, Sen. Kerry should come forward with them. As
> Mr. Lipscomb's article points out, if indeed Sen. Kerry received a less-
> than-honorable discharge as the result of his antiwar activities while
> still a commissioned officer in the Naval Reserve, "one might have
> expected him to wear it like a badge of honor" � although that spin would
> certainly be questioned by others who remain unpersuaded by the rationales
> that prompted President Carter's blanket amnesty in 1977 and, possibly,
> the upgrading of Sen. Kerry's discharge to honorable status in 1978 if in
> fact that's what happened. And others who agreed with President Carter's
> actions may still, in weighing Sen. Kerry's overall military record, find
> it significant if in fact Sen. Kerry's original discharge needed
> upgrading; the fact that one's since been forgiven by an act of
> presidential grace doesn't necessarily block the original transgression
> and punishment from consideration for purposes of determining fitness now
> to be the nation's commander in chief.
>
> PoliPundit (hat-tip InstaPundit) has printed an email from a reader with
> some military and legal credentials who suggests that if Sen. Kerry's
> discharge was for "other than honorable" conditions, "bad conduct," or
> "dishonorable," that might have interfered with his admission to the
> Massachusetts bar in 1976. With due respect, however, I'm entirely
> unpersuaded by that particular suggestion. There were zillions of lawyers
> admitted to practice in the mid- and late-1970s despite convictions for
> protesting and minor drug offenses. Expungements of convictions under the
> Federal Youth Corrections Act, for example, wiped clean the records of
> even felony convictions, clearing the way for a great many folks to become
> lawyers who'd otherwise have been disqualified, and I'm quite confident
> that most states' bars include members with worse records than what's
> being hypothesized here for Kerry. If Kerry's original discharge was
> "general-honorable conditions," for example � the next rung down from an
> unqualified honorable discharge � I doubt that the Board of Bar Examiners
> would have blinked an eye, much less done any serious investigation or
> raised any serious reservations. And even a lower-level discharge might
> very well have been forgiven for someone with Kerry's connections,
> background, and other military credentials.
>
> In any event, Sen. Kerry needs to end the stonewall, before the election.
> If � as seems entirely possible, and now perhaps even probable � there are
> still-hidden facts about his separation from the Naval Reserve, then those
> facts should be revealed, and voters should be entitled to make their own
> value judgments about those facts. Sen. Kerry's refusal to address these
> issues squarely is in itself a strong basis for drawing inferences that
> reflect poorly on him.
>
> ----------------------
>
> Update (Wed Oct 13 @ 11:00am): Power Line's post promises an update with
> comments from the SwiftVets. Democracy Project has a post up, as do
> VodkaPundit, Milblog, Just One Minute, Little Green Footballs (also here,
> thanks for the link, Charles!), Wizbang!, PajamaPundits, Cranial Cavity,
> Posse Incitatas, Jawa Report, Dr. Zhibloggo, Michelle Malkin, Chasing the
> Wind, Travelling Shoes, Secure Liberty, INDC Journal, Ace of Spades, Media
> Lies, California Yankee, Pink Flamingo, Commonwealth Conservative,
> Political Junkie, QandO, and Captain's Quarters. [Continuing to update
> this list as I find new posts; see also the trackbacks below � Beldar]
>
> Commenter Roland at CQ provides an interesting link to a current
> regulation, 32 C.F.R. � 70.9(b)(4)(ii), which provides that
>
> A General Discharge for an inactive reservist can only be based upon
> civilian misconduct found to have had an adverse impact on the overall
> effectiveness of the military, including military morale and efficiency.
>
> I haven't done the digging to confirm it, but I suspect that this or
> something very similar would have been effect in 1972-1978.
>
> "Navy Chief" apparently did some of the background digging that may have
> gone into Mr. Lipscomb's story; there's a thread on this story on the
> SwiftVets' forum that's picking up lots of comment.
>
> Human Events has a reprint of Mr. Lipscomb's article if you have any
> trouble accessing it on the New York Sun's website.
>
> ----------------------
>
> Update (Wed Oct 13 @ 4:30pm): This update started out as a comment from
> me in response to other comments, but I've "promoted" it to text here.
>
> If, as initially issued, Sen. Kerry's discharge was a normal, fully
> honorable one after completion of his full active-duty and reserve
> obligations, then why would a board of officers � one convened and acting
> specifically under section 1163 � ever have been involved?
>
> As I understand it, Mr. Lipscomb's point is that section 1163 wouldn't
> have been cited in the Claytor letter, nor would that letter have referred
> to "a board of officers convened under authority of [that section]," if
> Sen. Kerry already had, or was entitled to get, an honorable discharge
> without such a board of officers' intervention. I'll try here to make
> what I understand his argument to be, with more specific reference to the
> specific language and subsections of section 1163.
>
> Only subsections (a) and (c) of section 1163 refer to such a board:
>
> Subsection (a) involves separations from the Reserves without the
> separating officer's consent, and says that can only be accomplished
> pursuant to either an approved board of officers' recommendation or a
> court martial sentence.
> Subsection (c) says if an officer is separated from the Reserves "for
> cause" � a key term which normally roughly equates to being fired for
> screwing up and/or breaking the rules � then he's nonetheless entitled to
> an honorable discharge except in two situations. The first situation, per
> subsection (c)(1), is if the discharge is under conditions other than
> honorable as per either a court martial sentence or the approved
> recommendations of a board of officers. The second situation is if the
> officer consents to the discharge being under conditions other than
> honorable, and waives the right he would otherwise have to accept such a
> lesser discharge only after a court martial or board finding.
> We don't have any reason to believe that only subsection 1163(a) was
> involved. That subsection would keep the DoD from booting somone who has
> more than three years' service and doesn't want to be discharged even with
> an honorable discharge (e.g., because he wants to stick around to qualify
> for greater benefits). [Update: But see my 5:25pm update below for a
> speculative, innocuous scenario possibly involving section 1163(a) �
> Beldar.]
>
> So it seems more likely that subsection 1163(c), or both it and subsection
> 1163(a), were involved. Again, note that subsection 1163(c) deals only
> with separations "for cause." In most legal contexts, "for cause" means
> being fired for breaking the rules � it's being shown the door, not just
> asking and having it opened for you voluntarily.
>
> Geek, Esq.'s suggestion in the comments below, working backwards from the
> Claytor letter's language, presumes that a board of officers must always
> be convened in order to determine whether someone should be retained on
> the rolls of the Reserves, and that this was the normal method of
> separation for everyone dropped from the rolls with an honorable discharge
> when they're no longer needed. But that's certainly not what the statute
> says; and if there's a different statute or regulation which says that, I
> haven't seen it yet.
>
> Rather, the board of officers referenced in section 1163(c) would only
> seem to come into operation if at least at some point the discharge
> involved was both less than honorable and without the officer's consent.
>
> The only discharge we've seen, from 1978, is indeed honorable. But
> there's nothing in section 1163 to suggest that a board would be involved
> in approving a top-quality, consented-to (and indeed welcomed) honorable
> discharge that was unmixed with any prior complications.
>
> By contrast, the reference in 1978 to a "board of officers" acting
> pursuant to section 1163 would be explained in either of two
> circumstances. First, Kerry could have consented to a less-than-honorable
> discharge back in, say, 1972, in which case no section 1163(c) board would
> have been involved then. Second, Kerry could have refused to have
> accepted a less-than-honorable discharge back in, say, 1972, in which case
> the Navy Department couldn't have imposed it on him without an approved
> finding pursuant to section 1163(c). But in either of those events, the
> statute could reasonably be read to require such a finding of an officers'
> board for an upgrade of a less-than-honorable discharge in 1978. And � to
> repeat � I don't see any other explanation for why an officers' board
> acting pursuant to any part of section 1163 would otherwise have been
> involved in 1978, or referenced in the Claytor letter.
>
> I'll also repeat this important point: I don't have the personal military
> experience to confidently argue that the fact that there was a board
> somehow involved necessarily means that there was a less-than-honorable
> discharge involved at some point along the line. But if there's another
> explanation for a "board of officers" acting pursuant to section 1163
> being involved, I haven't seen or heard it yet. [Update: But see my
> 5:25pm update below for a speculative, innocuous scenario possibly
> involving section 1163(a) � Beldar.] With due respect � and I have no idea
> if "Geek, Esq." is indeed even a lawyer, and by his own admission he
> jumped to a conclusion before he'd even read Lipscomb's article closely,
> and now continues to defend that conclusion without bringing any new
> source material to the table � I rather doubt that Geek has those
> qualifications either. Indeed, as stated in my introduction to this post,
> the reason I put this post up to begin with was to provide wider access to
> the relevant statutes (which are otherwise very hard to track down), and
> to solicit and encourage the exchange of further pertinent information.
>
> ----------------------
>
> Update (Wed Oct 13 @ 5:25pm): Okay, lots going on in the comments. I
> want to thank, and commend, everyone who's commented or emailed me,
> definitely including the skeptics.
>
> Since my previous update, one speculative but innocuous scenario has
> occurred to me that I ought to mention here, rather than just in comments.
> Perhaps in 1978, the DoD or the Navy Department was doing a mass review of
> its reserves rolls trying to winnow out those who'd been completely
> inactive for a long time. It is conceivable, I suppose, that they'd have
> convened a board of officers for the purpose of approving unconsented-to
> honorable discharges of officers with more than three years' service,
> which section 1163(a) would seem to require absent specific consent from
> the affected individuals. That's obviously speculation, but it might
> explain a reference in the Claytor letter to section 1163 that would not
> necessarily imply a previous involuntary discharge on a less-than-
> honorable basis.
>
> Again, however, it seems that the cleanest way for all this to be cleared
> up would be for Sen. Kerry to sign Standard Form 180.
>
> https://beldar.blogs.com/beldarblog/2004/10/was_kerrys_orig.html