EVIDENCE MOUNTS THAT KERRY DISCHARGE WAS
OTHER THAN HONORABLE
ANALYSIS FROM TWO FORMER NAVAL ATTORNEYS AFTER EXTENSIVE
RESEARCH
Veterans’ groups and especially former POWs are highly skeptical that
Senator John Kerry has posted a part of his naval service records which
indicates that he received an honorable discharge but he continues to refuse
to execute the release form that would allow public review of over 100
pages of other records. To these Vietnam Veterans, it is simply
inconceivable that Kerry could have received the same discharge that they
did after his 1970 – 1971 grandstanding as a lead propagandist against his
fellow Americans serving in combat in a “shooting war. It is a basic rule of
debate and of litigation (Federal Rules of Evidence, Rule 107) that, that
when a party relies on a part of a document as Kerry has done with his
service record, fairness and the pursuit of the truth dictates that he produce
all of the document (or, in this case, at least the non-medical performance-related documents.) Similarly, when a party in an argument or in litigation
conceals or holds back something that he could readily produce for
inspection, the inference is an adverse one, namely: that the concealed
matter would, if produced, be contrary to that party’s interests.
These adverse inferences come squarely to mind in the case of the Kerry
campaign naval service records since the key document, Senator Kerry’s
honorable discharge, is dated 1978 in the midst of the wholesale correction
of military and protestor-related records that occurred at the outset of the
Carter Administration. On the very first day following Jimmy Carter’s
inauguration, he issued the first of a series of amnesties and pardons that
initially extended to draft evaders who did not serve and ultimately
extended even to service members if their conduct had been the topic of
certain counter-intelligence surveillance.
The records posted by Senator Kerry reflect that he enlisted in the Naval
Reserve as an officer candidate on February 18, 1966. He was a reservist on
inactive duty until August 20, 1966, when he began Officer Candidate School.
Kerry was commissioned as an Ensign, the entry level for naval officers on
December 15, 1966, and remained on active duty for three (3) years and
eighteen (18) days until January 3, 1970. Under the “Universal Military
Training & Service Act;” 10 U.S. Code § 651(a), and under his enlistment
contract, Kerry was obligated to serve a total of for six (6) years, including
both active and reserve time. In keeping with this statute, at the conclusion
of his three (3) years of active duty, Kerry was not issued a Discharge
Certificate but was transferred to the Naval Reserve. Having served in
Vietnam, Kerry was permitted, but was not required to drill.
Lieutenant Kerry did not drill, and was placed in the “Standby Reserve Active
(USNR – S1),” also known as the “Individual Ready Reserve.” As a matter of
law, contractual commitment and long-standing custom, Kerry was not just
like civilian activist, Jane Fonda and other war protestors. He was still a
naval officer (with a Top Secret security clearance) who was subject to call-up when, in 1970 and 1971, he engaged in his leadership role in Vietnam
Veterans Against the War ("VVAW") and in the fraud-ridden Winter Soldier
Investigation in Detroit which featured fakes and phonies as alleged G.I.
barbarians admitting atrocities in Vietnam. Per Kerry’s records, no adverse
action was taken against him administratively and, on March 1, 1972, after
completing his six (6) years of mandatory service, Kerry was transferred to
the “Standby Reserve – Inactive (USNR-S2).” The Kerry records reflect an
adjustment of that transfer date to July, 1972, which may reflect a retention
in an active status for some now omitted administrative action. However, it
also may reflect an adjustment to comply with the six year mandatory
service law, adding back the months of “inactive duty” in 1966 between
Kerry’s enlistment and his reporting to Officer Candidate School.
Taking the Kerry campaign at its word that nothing material has been
omitted from the posted records, the provocative nature of Kerry’s protest
activities presents an obvious question: why was no action taken against
Kerry while he was a reservist in an active status? Several explanations
come to the forefront. The first involves a bit of legal history. During the
period from 1969 until it was overruled in1987, the military services were
constrained in their exercise of court-martial jurisdiction by the then-new,
radical departure from tradition stated in O’Callahan v. Parker, 395 U.S. 258
(1969), an opinion by Justice William O. Douglas that is one of the very last
opinions of the “Earl Warren Court.” Under O’Callahan, the significance of
one’s status as a soldier or sailor, let alone the traditionally more demanding
status of being an officer (and a gentleman), became secondary to whether
one’s criminal or subversive conduct occurred on duty or off duty. This was a
difficult rule to apply to reservists and the military services exercised great
restraint in asserting court-martial criminal jurisdiction, particularly in the
case of reservists. The uncertain limits of the application to a reserve officer
of the rule in O’Callahan would alone explain the lack of any punitive action
against Senator Kerry for his VVAW and Winter Soldier Investigation
excesses.
However, the criminal jurisdiction limitations of O’Callahan did not apply to
administrative actions, raising the further provocative question why the
Nixon Administration’s Secretary of the Navy did not, at a minimum, proceed
with administrative separation of Kerry based on the obvious grounds of his
ineligibility to hold a security clearance. As any officer or former officer
knows, personal reliability sufficient to warrant the retention of a security
clearance is a basic requirement for any officer, active or reserve. Faced
with a choice between: (1) the Nixon Administration supposedly “not being
concerned” about the conduct of Fonda and Kerry, or (2) there being some
other overriding issue or concern, the second choice is the far more likely
option. The recent, highly-publicized revelations of then-Lieutenant Kerry
apparently meeting with and coordinating anti-war activities with
representatives of the North Vietnamese government presents a compelling
reason for the Department of the Navy to have elected not to have taken
disciplinary action against Kerry.
In a series of highly publicized hearings in the 1970s that reached their
climax in the Carter years, Senator Frank Church (D.-Id.) and Congressman
Otis Pike (D.-N.Y.) severely criticized the Nixon Administration for “spying on
U.S. civilians” who engaged in protest activities less inimical to the interests
of the United States than coordinating protest activities with the enemy.
Assuming that there must have been such surveillance of VVAW and the
“Winter Soldier Investigation,” it is a fair assumption that the interest of
maintaining the investigative “cover,” in and of itself, would have militated
against taking any disciplinary action. At the insistence of the Church
Committee and Carter Administration, the Department of Defense formed the
Defense Investigative Review Council which reviewed all such “spying” on
civilians, purging the offending files and, where they affected military
personnel, correcting personnel records tainted thereby. Thus, if adverse
action had been taken against Lieutenant Kerry based on any such
surveillance, it would have been a prime candidate for “correction.”
This then brings the analyst of the Kerry service records to the most
intriguing documents on the Kerry campaign web page: (1) the issuance of
an honorable discharge certificate effective February 18, 1978, and (2) the
Silver Star Medal citation executed by Ronald Reagan’s Secretary of the
Navy, John Lehman, seven or eight years after the alleged honorable
discharge and over fifteen years after the incident for which the medal was
awarded. 1
Taking the Kerry campaign at its word that nothing material has been
omitted from the posted records, the significant item begging for an
explanation is the gap between Kerry’s 1972 transfer to “Standby Reserve-Inactive
(USNR-S2)” and the issuance of the posted honorable discharge six
years later. A naval reservist in this inactive status cannot drill, cannot be
promoted and is merely in a manpower pool. Under clear regulatory
authority, including the Bureau of Personnel Manual article referenced in the
February 18, 1978 letter that forwarded Kerry’s honorable discharge
(BUPERSMAN 3830300), Kerry should have been discharged no later than
1975, three years after the transfer to Standby Reserve-Inactive (USNR-S2),
if not earlier.
The absence of the discharge that should be in the record in 1975 cannot be
readily explained by blaming “bureaucracy.” The military services faced
significant force reductions in 1972 and again in 1974, making slow-rolling of
separations unlikely. Under the law then in effect, 10 U.S. Code section
1163, Lieutenant Kerry would have been entitled not to be separated without
his consent or, in the absence thereof, with review of the Secretary of the
Navy’s action by a board of officers. Separation based on “conduct
unbecoming an officer” or on commission of an offense (whether or not
prosecuted criminally) of even misdemeanor level severity from the
perspective of a civilian (i.e., an offense that could be punished by
confinement of 6 months) would alone be enough to result in a discharge
under conditions other than honorable. The current allegations that
Lieutenant Kerry collaborated with North Vietnamese representatives would
be a patent violation of the Logan Act, 18 U.S. Code section 953, and as such
would easily meet this threshhold.
Unlike enlisted members, officers do not receive “other than honorable” or
“dishonorable” certificates of discharge. To the contrary, the rule is that no
certificate will be awarded to an officer separated wherever the
circumstances prompting separation “are not deemed consonant with
traditional naval concepts of ‘honor’.” The absence of an honorable discharge
certificate for a separated naval officer is, therefore, a harsh and severe
sanction and is, in fact, the treatment given officers who are dismissed after
a general court-martial.
Accordingly, in the absence of an explanation for the exceptionally late
issuance of the honorable discharge on the Kerry campaign web site, the
unmistakable inference is that the separation really occurred when it should
have, i.e., in 1975, and that the discharge certificate was a mere “general
discharge” which was removed from the service record or, if the campaign is
telling the truth that there was no other certificate, that it was a discharge
under circumstances not deemed consonant with traditional naval concepts
of honor.
The inference of a discharge under such other than honorable circumstances
is heightened by the odd and unexplained late re-issuance of Senator Kerry’s
silver star. Records of personal decorations are items subject to a 75-year
retention by the Department of the Navy. Under SECNAVINST 1650.1G, the
NAVY AND MARINE CORPS AWARDS MANUAL, a medal may be revoked if the
service after issuance has not been honorable.
____________________
1 VetsforBush.NET Note: Regarding alleged signature of Navy
Secretary Lehman on the reported Silver Star for Kerry, as reported in
the “Chicago Sun-Times” on August 28, 2004, former Secretary
Lehman categorically denied signing such a citation.
( http://www.suntimes.com/output/elect/cst-nws-lips28.html )
As noted by other researchers, Lehman was not Secretary of the Navy
when Kerry was in Vietnam.
( http://worldnetdaily.com/news/article.asp?ARTICLE_ID=40149 )
