Wednesday, October 13, 2004
Was Kerry's original discharge less than honorable?
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As part of a reorganization of the relevant portions of Title 10, sections 1162 and 1163 were repealed effective December 1, 1994, and because their text no longer appears in the current United States Code, they're somewhat hard to locate.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.
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.
Other weblog posts, if any, whose authors have linked to Was Kerry's original discharge less than honorable? and sent a trackback ping are listed here:
» Was Kerry's Original Discharge Less Than Honorable? from Capital Ideas
Tracked on Oct 13, 2004 12:25:38 PM
» A TROUBLED PAST, A QUESTIONABLE FUTURE from BIRD
Tracked on Oct 13, 2004 12:40:22 PM
» Questions about Kerry's Honorable Discharge from Pajama Pundits
Tracked on Oct 13, 2004 12:47:32 PM
» sKerry's Discharge? from Bob's Place
Tracked on Oct 13, 2004 12:49:22 PM
» I think we are missing the point of this election. from The Pink Flamingo Bar Grill
Tracked on Oct 13, 2004 3:15:41 PM
» Yellowish discharge from The Slithery D
Tracked on Oct 13, 2004 3:53:02 PM
» Less Than Honorable Discharge? from I-Magery: A Family Blog
Tracked on Oct 13, 2004 3:53:09 PM
» Political Wandering from Iraq to Magic Cell Phones from bLogicus
Tracked on Oct 13, 2004 5:23:06 PM
» Mystery Surrounds Kerry’s Navy Discharge from Cabal of Doom
Tracked on Oct 13, 2004 5:59:53 PM
» Kerry's Discharge from QandO
Tracked on Oct 13, 2004 7:16:47 PM
» Was Kerry dishonorably discharged? from Media Lies
Tracked on Oct 13, 2004 8:10:59 PM
» Noted in Passing from Stromata Blog
Tracked on Oct 13, 2004 11:50:33 PM
» No more debates from Fingertoe.com
Tracked on Oct 14, 2004 12:23:55 AM
» Come clean already! from The Untergeek
Tracked on Oct 14, 2004 2:53:27 PM
» Did Kerry Receive a "Less Than Honorable" Discharge? from Les Jones's Blog
Tracked on Oct 29, 2004 4:56:28 PM
» Questions about Kerry's Honorable Discharge from Pajama Pundits
Tracked on Oct 29, 2004 7:37:00 PM
» Was Kerry's Original Discharge Less Than Honorable? from Perfect Strike!
Tracked on Oct 30, 2004 6:09:25 PM
» Mystery Surrounds Kerrys Navy Discharge from Cabal of Doom
Tracked on Feb 1, 2005 7:54:41 AM
» A Pen Has Been Found... from E u p h o r i c R e a l i t y
Tracked on May 1, 2005 1:31:53 PM
» Kerry’s 180: Silence Is Golden, But… from TMH's Bacon Bits
Tracked on Jul 12, 2005 6:15:01 AM
(1) wannabe made the following comment | Oct 13, 2004 11:00:48 AM | Permalink
I was already aware of some of this issues which is so neatly summarized by Mr. Lipscombe but this was most fascinating:
"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."
That pesky third citation of the Silver Star is still puzzling given that the Navy is in fact investigating that at least since John Lehman, the Former Secretary of the Navy, declared publicly he never wrote nor signed that citation. Given he is a Democrat, amazing he was so candid or I'm sure the Navy wouldn't be bothering with that investigation either.
But I was struck by something else yesterday - I happened upon the infamous Harvard Crimson Tide interview of Kerry in February 1970
and imagine my surprise after reading this article to note this:
"Kerry has the most explicit stand against the Vietnam War and although his youth is a plus, the fact that he is a political unknown does not help him. Now 26, he was honorably discharged from the Navy last month but has been laying the groundwork for the race ever since November. "
Now where would the author get the impression that Kerry was honourably discharged as of January 1970 when the records at Kerry's own web site state differently and in fact since Kerry's commitment ran until 1972, it would have been impossible to get an honourable discharge before 1972. Three guesses.
The article itself is fascinating as I'd never read it before in its entirety, especially the section where Kerry admits to disobeying a direct order in Vietnam combat - could that action have prompted a less than honourable discharge?
"One time Kerry was ordered to destroy a Viet Cong village but disobeyed orders and suggested that the Navy Command simply send in a Psychological Warfare team to be friend the villagers with food, hospital supplies, and better educational facilities"
Ah just sign that Form 180 Kerry.
Excellent analysis. Consider yourself blogrolled.
At http://www.freerepublic.com/focus/f-news/1243687/posts, I posted an analysis based on the current versions of the US Code, which does not differ significantly from the old version on the substantive question of removal by a board which could be honorable.
In short, if Kerry remained in the inactive or standby reserve past the end of his obligated service, the Navy could have removed him for a couple of reasons: 1) he was passed over for promotion a second time; or 2) he was no longer needed in the reserves.
This happens all the time, and was very common during the late 1970s post Vietnam drawdown of the military, in which many officers who wanted to stay on active duty were RIF'd (RIF=Reduction in Force) out of the service.
I agree Kerry needs to sign the Form 180, but I don't think this will be the smoking gun in his files.
(4) Howard Johnson made the following comment | Oct 13, 2004 11:14:24 AM | Permalink
There may well be nothing to investigate if my own 30+ year memories are accurate.
During the Vietnam era, commissioning of officers (reserve or regular) essentially entailed a 20-year service contract which contained a series of minimum requirements with terms for early termination according to the needs of the service and the desires of the individual. Kerry graduated from the Navy's Officer Candidate School (OCS) which probably carried a minimum commitment of 4-years active duty plus a stint in the ready reserve (regular monthly drills with an assigned unit plus some extended duty in the summer) that completed the 6-year obligation owed by all physically fit males of the period.
My Air Force commission (1964-Officer Training School) carried such a commitment. I served 6-years of active duty, so I owed no ready reserve time after release from active duty (DD 214). Kerry would have had 2+ years of ready reserve duty remaining when he left the active Navy. Once that obligation was completed reservists were routinely transferred to the inactive pool, subject to individual recall (what the Democrats are calling "the back-door draft"). I held my commission until I resigned it some years later, in response to a letter from USAFR asking me to attach myself to a unit and rejoin the ready reserve or resign my commission.
There was a glut of post-Vietnam officers "on-the-books" but useless to the service in the early 1970s. Failing a resignation or a resumption of reserve training, the service would have undertaken administrative procedures to terminate the commission (under honorable conditions). All such actions would have been "by order of the President." Kerry likely followed a path similar to mine.
Of more significance, Kerry would (should) have been on ready reserve status (and a commissioned officer) at the time of his Senate testimony and his visits with the Vietnamese Communist's negotiators in Paris - the latter a very real violation of the UCMJ.
(5) Jack Else made the following comment | Oct 13, 2004 12:12:34 PM | Permalink
Don't know if this comment has been made, too damn many to read them all. Bear with me if someone has already contributed. I am former USAF, began my career has a pilot but spent the last 10 years as a JAG. I hold law licenses in Texas, Arkansas and Iowa.
A Bad Conduct Discharge (BCD) or a Dishonorable Discharge (DD) are only authorized following a courts-martial and they are not authorized for an officer. The equivalent for an officer convicted by courts-martial would be Dismissal which would be interpreted as a Dishonorable Discharge. BCDs and DDs cannot be given administratively. Courts-martial are courts of record and other than redacting information because of security requirements they are subject to public review just as any court record in the US is subject to public review.
General-Under Honorable Conditions (General) or Under Other Than Honorable Conditions (UOTHC) are only administrative discharges. These discharge certificates cannot be given via courts-martial.
If the service member had more than four years of service they would be entitled to an Administrative Hearing Board prior to being given an UOTHC. Of course the service member can always waive the Administrative Hearing to expedite his departure from the service. Administrative Hearings are subject to the Privacy Act and are not subject to public review.
From what I know of military discharges, my knowledge of military jurisprudence and based upon my knowledge of the various military services' Boards of Military Records Review and President Carter's amnesty program it is my opinion that Senator Kerry probably received a UOTHC and later applied for a discharge certificate upgrade through the US Navy's Board of Military Records Review.
Every state bar association has its own review of fitness. Senator Kerry’s conduct, which may have resulted in a “bad paper” discharge, was his anti-Vietnam War activity. It is possible that one exists but I am aware of no state bar association which would deny an applicant a law license based upon anti-war activity as this would be probably be deemed to be nothing more than an individual expressing his constitutionally protected right of freedom of speech. Additionally I believe a Board of Bar Examiners would feel that he had been punished sufficiently by his “bad paper” discharge.
Cedar Rapids, Iowa
W/r/t to the refusal to obey an order to destroy a village, keep in mind that all military personnel are under command to refuse to obey an unlawful order. E.g. even if you're ordered by a direct superior to shoot an unarmed child, you are required to not only disobey that order, but also to report the person issuing the unlawful order to someone higher in the chain of command.
So, Kerry may have been on extraodinarily legitimate grounds to refuse that order. Or he may have not. Depends on a lot of externalities.
(7) Cecil Turner made the following comment | Oct 13, 2004 12:18:01 PM | Permalink
I'm also not convinced there's anything here. It seems to me if there was a change in discharge characterization, it'd be mentioned in the letter (with different references).
BTW, I think BUPERSMAN stands for (Navy) Bureau of Personnel Manual.
He may not have had a discharge at all, until Carter allowed him to apply for one in 1978.
Kerry's obligation was for six years. The contract is up on his website, it calls for him to serve 3 years active duty, 2 years ready reserve with 48 drills per year, plus a two week summer camp, finally one year in standby reserve. He would have been eligible for discharge in late 1972.
But he didn't meet his commitments. He did his three years active duty by January 1970, but there's no evidenc he served even one day of his ready reserve duty. Indeed, as another noted, he told the Harvard Crimson he'd been discharged in 1970. And the haircut he was sporting on Dick Cavett in 1971 tells me he wasn't serving in the ready reserve.
So, come December '72, he's not met the conditions to be discharged. Why would he be? The draft ends in 1973, so he wouldn't be subjected to what used to be the consequences of missing your monthly drill. Then, when Carter is elected and declares an amnesty, Kerry takes care of unfinished business and applies for a discharge.
I'm intrigued as well, but I think I have to agree with Hugh Hewitt that it may be too late at this point to have a positive impact. Those who will support the President are going to vote regardless of what happens with this story. Some still-on-the-fence lukewarm Kerry supporters may view this as an October Surprise smear campaign - certainly the Kerry folks will paint it as such.
I just don't see a win here unless there's a real smoking gun. Too bad this didn't surface in July. Or did it?
(10) jackson white made the following comment | Oct 13, 2004 12:21:45 PM | Permalink
The timing of the discharge is indeed troublesome. As others have written, this could indicate nothing more than Sen. Kerry was "Rif'd." Yet this would imply a determination to stay in the Navy Reserves, something the senator plainly showed no desire to do unless I have missed something.
Again, although there may be an innocent explanation, former Pres. Carter has acted quite strangely in going above and beyond his support of a fellow Democrat. Carter may think he deserves a payback.
Finally, Beldar, I agree with you about a less than honorable discharge being an impediment to Bar admission. Generally, state Supreme Courts look at this in the context of whether it rises to the level of a felony or could be construed as unfitness. Given the climate of the Seventies this would have been quite unlikely, particularly in Boston.
Final analysis: the senator certainly needs to sign the Form 180 now more than ever.
(11) Geek, Esq. made the following comment | Oct 13, 2004 12:47:18 PM | Permalink
What's the mystery?
Kerry entered the Inactive Reserve in 1972.
In 1978, with the Vietnam war having ended, the Pentagon cleared its ranks of inactive officers, thus discharging them honorably.
(12) chads made the following comment | Oct 13, 2004 12:51:25 PM | Permalink
Given all the undue press given to Pres. Bush's gaurd service, which turned out to all be legitimate, don't the media think Kerry should be subjected to the same amount of investigation. This is especially true considering the President did sign the form 180 and the Senator consistently fails to and won't even mention it. The Democrats treatment of this, especially in light of the CBS forged documents, is hypocritical in the extreme.
(13) Lorraine Richardelli made the following comment | Oct 13, 2004 12:58:49 PM | Permalink
My feelings toward John Kerry are he is nufit to commend. After reading these documents, it solidfies my original thought. Mr Kerry and his NASTY Wife are a disgrace to our great country. Where does he get his nerve to run for president. He and his wife should go live in another country, maybe South Africa. This country is to good for the likes of them. John Kerry should be in jail for treason. Never in my life have I had such a strong dislike for a presidental canidate.
(14) Claire made the following comment | Oct 13, 2004 12:59:57 PM | Permalink
What might give us more info is if someone were to pose questions to Jimmy Carter, on camera. Carter is NOT a very good liar, and he always gives himself away when he even tries. Based on Carter's response, you'd then know whether there was fire or only smoke on this one.
(15) James Lederer made the following comment | Oct 13, 2004 1:04:39 PM | Permalink
Beldar has BUPERSMAN 3830630 incorrectly read from the Kerry PDF. If you magnify it you find that it is actually BUPERSMAN 3830300.
BUPERSMAN 3830300 is from an obsolete numbering system. The modern day equivalent is MILPERSMAN 1920-160.
Here is the conversion table.
Here is MILPERSMAN 1920-160.
As you can see MILPERSMAN 1920-160 just points you to a new document called SECNAVINST 1920.6a.
Here is SECNAVINST 1920.6a.
As you can see, it is the relevant document but is very lengthy and complicated. Hopefully someone can come up with something from it.
(16) conelrad made the following comment | Oct 13, 2004 1:05:15 PM | Permalink
jackson white: the senator certainly needs to sign the Form 180 now more than ever.
The time frame has closed. If Kerry signs the 180 today, there's 12 or so business days until the election.
No way the Navy or National Personnel Records Center in St Louis would produce much before Nov 2.
I think if Kerry's pressed on this, he will sign the 180 and signing it will be his October surprise.
(18) Geek, Esq. made the following comment | Oct 13, 2004 1:15:36 PM | Permalink
Upon closer reading, this piece of hack work is even worse than I thought:
Hack Lipscomb writes:
"It describes Mr. Kerry's discharge as being subsequent to the review of "a board of officers." This in it self is unusual. There is nothing about an ordinary honorable discharge action in the Navy that requires a review by a board of officers."
The STATUTE says:
(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 . . .
(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
Hack writer Lipscomb writes:
"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 FACTS state that Kerry entered the inactive reserve for an indefinite period of time in 1972: link.
This is crap.
"Hack writer" Lipscomb also blunders in that officers do not accpet six year tours
"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."
Once an officer completes his obligation he stays until he either resigns or requests discharge (as Bush did) or he his passed over for promtion a second time. A Promotion Board for Officers is called by the Secretary every year and given specific directions each year.
Officers who are passed over are usually discharged at the direction of that Board of Officers.
It happens _all_ the time.
(20) Hunter made the following comment | Oct 13, 2004 1:43:52 PM | Permalink
- Geek ...whats crap and lame thinking is that anyone running for public office, let alone the presidency, is going to be able to tap dance fast enough to avoid disclosure of the simplist, most common documetation, his discharge. The reason his copy as well as the copy normally lept in the Navy files have gone MIA is obvious. All modifications mist be listed as a part of his service records. Its the law. Thats the real reason for the missing discharge and his evasions in signing that form 180. You and everyone else know that. So give it a rest.....
- After listening to the insufferable constant yammering of Kerry's "war hero" litany for this entire election cycle, I find it comical that you and other leftwing nuts get heartburn every time his actual record starts to surface.
- It is encouraging to see many others finally start to take serious interest in Kerry's "records in the mist"....
(21) tarpon made the following comment | Oct 13, 2004 1:45:52 PM | Permalink
Here is a thread where someone cross references the BUPERSMAN document
(22) Geek, Esq. made the following comment | Oct 13, 2004 1:48:12 PM | Permalink
Kerry did get an honorable discharge. That has been released.
There is no other discharge documentation. You are imagining things. As are a bunch of other people who are smarter than this nonsense.
Lipscomb should have run this by someone who knows how to read a statute before writing this crap.
This was an administrative discharge. Plain to anyone not drinking the Bush Kool Aid.
But please, expend your efforts on crap like this and Kerry's magic pen.
(23) Walter made the following comment | Oct 13, 2004 1:48:45 PM | Permalink
I've spent a little bit of time looking at this and reading the statutes and the regulation, and I've about decided that there's nothing here. It appears that Kerry wasn't discharged at all in the early 70s. He just went onto some kind of incredibly inactive status. If you read the cover letter that has everyone so excited, it refers to a process by which to determine whether "officers" should be discharged. In other words, the cover letter was not specific to Kerry, but was a form letter.
Bottom line, at least for me. We need to let this go. The best angle to take is that Kerry was still a commissioned officer while he did all of his bad stuff during 70-72. This should have been enough to get him canned, but it doesn't appear that it did. If he had received a less than honorable discharge, certainly somebody involved would remember it.
(24) Hunter made the following comment | Oct 13, 2004 1:53:31 PM | Permalink
- Geek ... You may have your tin-foil hat on crooked enough to believe your privaricating candidate ... an yet:
No DD214 ... and that form 180 hangs like a turd over Kerry's head....
- So rant on.....
(25) Todd made the following comment | Oct 13, 2004 1:57:37 PM | Permalink
Walter, I don't disagree with you, but what's driving this is Kerry's refusal to release all of his records. If he had released them all, then all of this speculation would be pointless. Instead, he acts like a man with something to hide. It's natural to wonder whether he, in fact, is hiding something.
(26) Geek, Esq. made the following comment | Oct 13, 2004 2:03:34 PM | Permalink
Text of honorable discharge:
"This action is taken in accordance with the approved board of officers convened under the 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 ROLLS OF THE RESERVE COMPONENT OR SEPARATED FROM THE NAVAL SERVICE . . ."
Why didn't Lipscomb see this? The man is either incompetent or a LIAR.
(27) Cecil Turner made the following comment | Oct 13, 2004 2:07:07 PM | Permalink
He may be hiding something (in fact, that's a reasonable conclusion based on the refusal to release records), but this doesn't appear to be it. It looks like the initial discharge, and it's honorable. I think it would be very unwise to try to make hay out of this.
(28) conelrad made the following comment | Oct 13, 2004 2:11:50 PM | Permalink
Walter: some kind of incredibly inactive status
I agree with the need to let this go, but just want to point out that it wasn't 'incredibly inactive'.
Kerry was brown water Navy, and there was no need for someone who was OIC of a shallow water inshore fast tactical boat in the mid to late 1970s Navy.
Going strictly on memory now, but when he was on the Gridley, I think he was public affairs officer, and left before qualifying for OOD(U), a good indication that he had no interest in the Navy at all.
My recollection is that the Kerry website had originally noted he was discharged in 1970 and then a ruckus ensued and it was corrected to 1978 later, I believe to match the discharge document. The reason for the ruckus slips my mind at the moment, it might have just been the discharge document.
If the Lipscomb article is accurate, Kerry has lied twice to hide the first discharge record. In addition, why lie using the 1970 in the first place if he'd have to 1978 later. Could there be something in the public domain in 1972 that exposes the problem?
There's nothing better to keep opponents busy than leading them on wild goose chases. Nothing better, that is, than nuancing them to death.
(30) Todd made the following comment | Oct 13, 2004 2:31:23 PM | Permalink
Cecil, I agree with you to a point, but I'm a bit confused by something else I read (can't remember where) about Kerry receiving an honorable discharge on March 12, 2001. Does anyone know anything about that?
As a general matter, I think that Kerry's opponents have gotten about all they are going to get out of driving his negatives up with the constant bashing of his war record. Kerry's already getting creamed among vets and active status military, and I doubt that there's many out there who can still be convinced to change their vote because of his military record if they haven't already been persuaded.
It's true that Kerry has gotten away with a lot, particulary because of the MSM's refusal to look seriously into his record, but that's the way that it is and his critics are going to have to accept it.
(31) Cecil Turner made the following comment | Oct 13, 2004 2:42:07 PM | Permalink
Okay, digging through the manual, the most likely section is the part about separating reservists (on page 27):
"12. Separation of Reserve officers not on active duty for lack of mobilization potential
a. The Secretary of the Navy shall, when necessary, convene a board to screen Reserve officers not on active duty and who have completed the obligated service referred to in paragraph 4a of enclosure (2), for their potential and availability for mobilization to active duty. Such screening will include, but is not limited to, officers in the following categories:
(1) The officer has been on the Inactive Status List (Standby Reserve) for at least 3 years. . . . [several other possibilities]
d. The Chief of Naval Personnel or the Commandant of the Marine Corps, upon recommendation of the Board that an officer referred to in this paragraph should be separated for lack of mobilization potential, shall take the following action: [. . .]
(3) Recommend to the Secretary that the officer be Honorably discharged from the Naval or Marine Corps Reserve."
On the point of earlier discharges, I have three: one from OCS (technically an enlisted rank) when accepting a commission, one from the reserves when accepting a regular commission, and one when I retired. Again, an earlier discharge with a less than honorable rating ought to've been referenced in the letter--this one says "hereby." This all looks pretty administrative to me.
(32) markm made the following comment | Oct 13, 2004 2:48:14 PM | Permalink
The comment by Jack Else above is likely correct, based on my memory of the UCMJ if Kerry were an enlisted man, but I don't think it applies to a commissioned officer in the same way. An officer not courts martialed would be dismissed under less than honorable conditions. That is probably what happened. This dismissal is a discharge. To get an honorable discharge later, he would likely have to have been reinstated and discharged. It all sounds a bit strange. I would love to know what they're hiding.
On the off chance the stars do not continue to align in the direction they are headed and Kerry should get elected, I will still want to know the details of his discharge.
Though I'm hardly a Kerry supporter (see evidence of that here), I have to take some issue with your statement that:
"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."
This is precisely the type of argument that the Left and the mainstream press has used over and over again as an excuse for continuing to flog the non-story about President Bush's TANG service. Those of us on the right rejected the argument that if the President had nothing to hide, he should just refute the story, in part because no amount of evidence to the contrary (nor the lack of evidence supporting the story) was sufficient to satisfy the President's critics.
Granted, the evidence is a lot clearer that Kerry is stonewalling, but I don't think it's entirely reasonable to hold Kerry to a different standard of truth. Right now, there isn't sufficient compelling evidence to state with any confidence that Kerry's discharge was anything other than honorable. While it's certainly worth investigating, and while it's true that the investigation could be next to impossible if Kerry is sitting on relevant records, I just don't think it's reasonable to suggest that Kerry "should come forward" to explain the situation. When there's more evidence to support the notion that Kerry may have originally been discharged dishonorably, I'm all for slamming him with it. Until then, I don't think it serves anyone particularly well to hype the story, or make demands of Kerry that he plainly won't fulfill.
(35) Roofer made the following comment | Oct 13, 2004 3:24:03 PM | Permalink
The question of whether or not someone who aspires to be commander-in-chief ever received a less-than-honorable discharge from the armed forces is certainly relevant, IMHO.
If the MSM won't ask the question, I suggest that we do. Spend a few minutes and a dollar or two calling the national Kerry campaign HQ or the DNC, and ask this question: "Has Senator Kerry ever received a less-than-honorable discharge from the U.S. Navy or the U.S. Navy Reserve?"
A "no" answer puts this to rest immediately. Anything else would be quite telling.
(36) Lee Shore made the following comment | Oct 13, 2004 3:46:33 PM | Permalink
Walter 01:48 PM ...
An OTH discharge is qualitatively different from the Swifties' accusations. They are not issuing an official government document. That sort of discharge would be understood by most voters.
This could wake up a lot of people to Kerry's character.
John Heinz-Kerry has sailed close to the wind all his life; this could be the gust that takes his candidacy all aback. /salty talk
The biggest question I have:
Why did the Navy allow Kerry to transfer to the Standby Reserves in the first place? The transfer took place after his Winter Soldier testimony to Congress, after he had attended the VVAW meeting where the assasination plot was discussed and after he met with the Viet Cong in Paris.
(38) Walter made the following comment | Oct 13, 2004 4:01:57 PM | Permalink
I agree that had evidence that Kerry originally had an OTH discharge would be explosive. It would end the election, for all intents and purposes. My point is that the simplest explanation is the Kerry's discharge in 1978 came as a result of a Navy clean-up of commissioned officers who were no longer needed in the post-Vietnam Navy. I tend to apply Occam's Razor in situations like this.
That being said, they are unquestionably hiding something in his service records. And, I'm afraid, they have gotten away with it.
Geek: Lipscomb did see that part of the document. But the fact remains that you don't get a panel of officers together for a hearing if it is an ordinary, run of the mill, discharge. You only do that in the case of an involuntary discharge.
Kerry was getting booted out, he was not retiring.
What I originally posted as a comment here turned out to be long and substantive enough that I've "promoted" it to an update to the original post, above.
Finally (for now), Mr. Duthie argues in his comment above that it's wrong to insist that Sen. Kerry come forward with an explanation and all relevant documents. Again with due respect, I don't think there's even a remote parallel to the Bush/TANG situation here. Kerry's never offered any detailed explanation of the circumstances of his discharge, and we know that the Navy Department has documents that he's refused to release himself or permit them to release to the press. Bush, by contrast, has explained about a zillion times, in person and through spokesmen, about the circumstances of his departure from the TANG, and every document he and/or the Department of Defense has been able to find, they've released.
(41) Ishmael made the following comment | Oct 13, 2004 4:16:53 PM | Permalink
I am a retired navy master chief who did a tour of duty in the Naval Military Personnel Command in Washington DC. As such, I worked closely with the Board for Correction of Naval Records (BCNR). One of the many matters the BCNR works on are requests for upgrading discharge characterizations.
Regarding Kerry's discharge, he could very well have received an other-than-honorable (OTH) discharge based on his anti-war activities, especially his meetings with the Viet Cong and North Vietnamese delegations in Paris.
Normally an individual subject to an OTH discharge is entitled to an administrative review board, but it is commonly waived by those who just want to terminate their service.
The quote in the NY Sun story of his discharge being subject to review by a "board of officers" could indicate that he had requested the characterization of his discharge be upgraded via the BCNR.
But I guess we may never know the truth, because he sure doesn't seem to want anyone to see those missing 100 pages of his military service record.
If this story gets legs, maybe the Kerry will finally authorize release of his records.
Of course, Terry McAuliffe may not allow him to do so.
I don't understand why Kerry can't be forced to open those records. He's running for PRESIDENT OF THE UNITED STATES.Why would anyone be allowed to keep something like this secret if they're running for the highest office in the land?
Of course if this was a Republican the MSM would be screaming incessantly until they were produced.
(43) Geek, Esq. made the following comment | Oct 13, 2004 4:30:12 PM | Permalink
I am a practicing attorney. I can forward you the appropriate credentials and a published article if you have any doubt.
Kerry was discharged administratively without his consent. What does this mean about John Kerry? Nothing.
After the Vietnam war, there were a lot more inactive officers with indefinite commitments in the reserve than were necessary.
As the discharge form stated, there was a board convened to review all of these reservists and determine whether to keep them or discharge them.
This board reviewed Kerry's record and decided to honorably discharge him.
In a sense, they unilaterally "fired" him without asking him if he wanted to stay on. They found that they had no need for his services, and cut him loose. Hence the "without his consent" part. Note that his honorable discharge was not an offer--it was a declaration.
Your reading of the statute is in plain error (you used the word "certainly"--almost as big a giveaway as "clearly). The statute states that if someone in Kerry's position is going to be involuntarily discharged, there has to be a board hearing.
Dropping someone in Kerry's position from the service and determining that they are no longer needed, and thus discharging them, is a discharge without their consent and was required by the language of the statute.
You also state that:
"Rather, the board of officers referenced in section 1163(a) & (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."
That is not a reasonable interpretation of the statute. It says that nowhere.
10 U.S.C. 1163(a) states that:
"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"
There is no "less than honorable" requirement in the language. Moreover, under your interpretation, officers with good records could be "fired" without a hearing but officers with poor records could not. That does not make sense.
(44) Cecil Turner made the following comment | Oct 13, 2004 4:39:06 PM | Permalink
"But if there's another explanation for a "section 1163 board of officers" being involved, I haven't seen or heard it yet."
You need to re-read that section I posted. It follows perfectly, and it's the most logical explanation.
"(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 . . ."
"12. Separation of Reserve officers . . . a. The Secretary of the Navy shall, when necessary, convene a board to screen Reserve officers not on active duty . . . [when] (1) The officer has been on the Inactive Status List (Standby Reserve) for at least 3 years. . . [d] (3) Recommend to the Secretary that the officer be Honorably discharged from the Naval or Marine Corps Reserve."
So Kerry could be involuntarily separated merely for being inactive for 3 years--and he could've been inactive for a couple more than that. (And all the above is perfectly honorable.)
Mr. Turner, I appreciate the response, but it doesn't make sense to me.
Why would Kerry not consent?
If he did consent, no board under section 1163(a) would be needed.
You're also presuming that the board of officers referenced in the BUPERSMAN is the same thing as a board of officers convened under section 1163. Is there a basis for that presumption?
(46) Geek, Esq. made the following comment | Oct 13, 2004 4:44:22 PM | Permalink
I agree completely, Cecil.
The 1163(a) board was authorized in cases where there was no "less than honorable" conduct. The only trigger is that the discharge is involuntary.
Involuntary does not mean "less than honorable."
In short, the 1163(a) board is in no way evidence of a "less than honorable" discharge.
Thanks for posting the statutes, btw, Beldar!
(47) Chief made the following comment | Oct 13, 2004 4:49:20 PM | Permalink
Regarding the DD 214's posted at the Kerry web site:
There are two of them (combined in one pdf). One appears to be when he was discharged from enlisted service to take a commission. This is routine.
The second one is when he left active duty and was sent to the Naval Reserve. Also routine, though a continuation sheet mentioned in the medals section is missing, though probably unimportant (containing low-level, "I was there" medals).
There also is a DD 215 (separate pdf), which corrects the second 214 with regards to medals, issued in 2001. Also common.
The question is: where is the final 214 when he was discharged from the Reserve (which would answer the question brought up by the article)? Does it exist?
If it exists and it was an honorable discharge, presumably Kerry would want to have the 215 would refer to that one since it should have all the medals mentioned in earlier 214s and you would want to correct your last 214, since that's the important one.
If it exists and it was an OTH discharge, it makes sense that he correct the second 214 and bury the last one.
If it doesn't exist, which I find hard to believe since a 214 establishes what benefits you're entitled to, and that memo is all that exists for the discharge, then it doesn't matter.
All in all, it's very intriguing.
(48) Geek, Esq. made the following comment | Oct 13, 2004 4:50:19 PM | Permalink
You're assuming that the Pentagon ASKED Kerry for his consent.
It seems, rather, that the Pentagon didn't feel compelled to ask these guys whether they wanted to stay as reservists or not. Rather, they concluded that they weren't needed and cut them loose.
(49) Cecil Turner made the following comment | Oct 13, 2004 4:51:15 PM | Permalink
Beldar, they might not even have asked him. Or he might not have understood the letter, or have simply thrown it away. It wasn't going to have a big effect on his life, anyway.
From the Navy's point of view, it's probably easier to convene a board, decide who you want to keep, and send everyone else a form letter. Which may well be what happened.
But this has all the earmarks of an impersonal personnel screening action (which BUPERS is famous for). And this looks like standard boilerplate. If it'd been a special circumstance (e.g., the result of disciplinary action), it would have said so--and been a lot more personal.
I agree, Geek, that "involuntary" does not necessarily mean "less than honorable." That's the whole point of section 1163(a), as I understand it after you've "vested," so to speak, by virtue of three years service as a commissioned officer, they can't just boot you out even with an honorable discharge if you're objecting, but instead the DoD would have to convene a board of officers or court-martial you.
Indeed, further to my comment in response to Mr. Turner's comment, it would make complete sense for a non-section 1163 board of officers to do the normal combing through and winnowing for discharges that were both honorable and with consent, and that could be done without ever involving section 1163.
But I think that the reference to section 1163 does, as Mr. Lipscomb argued (at less length than I have) that an "involuntary" discharge was involved at some point along the line. And why would it have been "involuntary" unless Sen. Kerry was at some point along the line objecting to the level of the discharge?
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