XPost: talk.politics.guns, sac.politics, alt.fan.rush-limbaugh
XPost: talk.politics.guns
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1162 and 1163 were repealed effective December 1, 1994, and because their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
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