Was Kerry's original discharge less than honorable?
Beldar blog
In a front-page article in today's New York Sun, 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.
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 3830630
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As part of a reorganization of the relevant portions of Title 10, sections 1162 and 1163 were repealed effective December 1, 1994, and because their text no longer appears in the current United States Code, they're somewhat hard to locate.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 3830630," which I presume to have been a Bureau of Personnel Management regulation.
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:
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 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.
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.
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 have 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 significance 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, and Captain's Quarters. 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.
beldar.blogs.com |
