Posted on 10/13/2004 7:22:59 PM PDT by DoorGunner
[This is the 10 USC 1163 and 1162, cited on Kerry's "Discharge." It is no longer in force, and probably slightly different, in wording, in 1978.]
-CITE-
10 USC Sec. 1163
-EXPCITE-
TITLE 10
Subtitle A
PART II
CHAPTER 59
-HEAD-
Sec. 1163. Reserve components: members; limitations on separation
-STATUTE-
(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.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 89; Sept. 7, 1962, Pub. L.
87-651, title I, Sec. 106(a), 76 Stat. 508; Dec. 30, 1987, Pub. L.
100-224, Sec. 4, 101 Stat. 1538.)
-CITE-
10 USC Sec. 1162
-EXPCITE-
TITLE 10
Subtitle A
PART II
CHAPTER 59
-HEAD-
Sec. 1162. Reserves: discharge
-STATUTE-
(a) Subject to 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.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 89; Sept. 2, 1958, Pub. L.
85-861, Sec. 1(27), 72 Stat. 1450.)
Bold within body of text, mine.
Section 1162 says that Reserve officers "may be discharged...[by]...the President.
Section 1163 (a) says that a Reserve officer cannot be "separated" "without his consent," EXCEPT by a "board of officers" or "a court martial."
Subsection (b) excepts [from subsection (a)] those AWOL for 3 months, and those "sentenced" to a Federal or State penitentiary (note, it says "sentenced," not "confined.") By a civilian court.
Subsection (c) says that those "separated...for cause," (fired) gets an "Honorable" discharge unless discharged by "a court-martial" or a "board of officers;" OR, if he cops a plea, to avoid a trial.
ANALYSIS: These sections have to do with Reservist Officers being fired--involuntarily separated. Since they were explicitly cited as authority for Kerry's discharge, the only conclusion which can be drawn is that Kerry was FIRED by the Navy.
It does not seem either reasonable or likely that Kerry actually remained in the Reserves until 1978, a reasonable conclusion is that Kerry was discharged at an earlier date. If we accept that conclusion, then the issue of "separation" is moot. On the other hand, IF Kerry had been discharged by a court-martial, or a board of officers, with a "less than honorable" discharge, it would make sense for him to want to have that discharge upgraded.
There ae undoubtedly documents which show exactly what happened, between 1970 and 1978, if only Kerry would release them.
DG
p.s. I am still looking for the BU PERS Manual.
http://buperscd.technology.navy.mil/bup_updt/508/milpers/conversionCharts/milpersConvChart.htm
I found a chart which gave the NEW MILPERSMAN number for the OLD BUPERSMAN Articles.
The NEW number for 3830300 is SSIC #1920-160:
[Here, in its entirety]
1920-160
22 Aug 2002
Page 1 of 1
MILPERSMAN 1920-160
SEPARATION OF NAVAL RESERVE OFFICERS ON INACTIVE
DUTY
Responsible
Office
NAVPERSCOM
(PERS-91)
Phone: DSN 882-4482
COM (901) 874-4482
FAX 882-2753
Governing Directive SECNAVINST 1920.6A
1. Policy and Procedures. Policy and procedures pertaining to
this subject are contained in detail in the governing directive.
Here, we have found the correct document, but it contains NO information, other than telling us we should be looking at Secretary of the Navy Instruction. Below is a link to that document. Please note that this Instruction was promulgated in 1983, roughly five years after Kerry's 1978 DD214. Thus, it IS NOT the document under which the "Board of Officers" was convened. It is an 82 page PDF file.
http://dont.stanford.edu/regulations/secnav.pdf
Notwithstanding the fact that SECNAVINST 1920.6A is NOT the actual governing Instruction, I have included the following passages regarding Characterization of service:
GUIDELINES ON CHARACTERIZATION OF SERVICE
2. Characterization of Service
c. Other than Honorable. This characterization is
appropriate when the officer's conduct or performance of duty,
particularly the acts or omissions that give rise to reasons for
separation, constitute a significant departure from that
required of an officer of the naval service.
Examples of such
conduct or performance include acts or omissions which under
military law are punishable by confinement for six months or
more; abuse of a special position of trust; an act or acts which
bring discredit upon the armed services; disregard by a superior
of customary superior-subordinate relationships; acts or
omissions that adversely affect the ability of the military unit
or the organization to maintain discipline, good order and
morale or endanger the security of the United States or the
health and welfare of other members of the Armed Forces; and
deliberate acts or omissions that seriously endanger the
capability, security, or safety of the military unit or health
and safety of other persons.
[ Emphasis mine. I believe that Kerry's KNOWN actions with VVAW meet the above two criteria.]
d. Limitations
(1) Service will be characterized as Honorable when the
grounds for separation are based solely on preservice activities.
(2) Service will be characterized as Honorable when the
sole reason for discharge is personal abuse of drugs, as defined
in reference (f), and the evidence of the unlawful drug
involvement is developed as a result of the officer's
volunteering for treatment under a self-referral program for
treatment of drug abuse in accordance with reference (f).
(3) Conduct in the civilian community of a member of a
Reserve component who is not on active duty or on active duty
for training and was not wearing the military uniform at the
time of such conduct giving rise to separation may form the
basis for characterization of service as Other Than Honorable
only if the conduct directly affects the performance of military
duties and the conduct has an adverse impact on the overall
effectiveness of the service, including military morale and
efficiency.
[Kerry WAS a "member of a Reserve component," AND he WAS "not on active duty, but he WAS "wearing the military uniform at the time of such conduct." You will recall that Kerry was wearing castoff fatigues during the protests, medal toss, and his [perjured] sworn testimony to congress.]
At first blush, this case seems to be a certainty. Unfortunately, Kerry obtained an Ivy League LAW degree. Thus, it is not impossible that Kerry successfully argued that he had NOT been "in uniform."
I do not know whether Army type fatigues were a legitimate Navy uniform, at that time. Further, Kerry was not wearing any apparent symbols of rank or unit. He WAS, however wearing a set of "ribbons" (in lieu of medals) on his fatigues. Any of these could be used to claim that Kerry was "not in uniform," and therefore, was entitled to an "Honorable" discharge.
But, this is merely fact based speculation.
DG
From BUPERSINST 1001.39D dated 20 FEB 2001 (Enclosure (1) 1-5)(This instruction replaced the cited BUPERSMAN).
"Officers with fewer than 20 years of qualifying service may normally remain in the USNR-S2 for 1 to 3 years. After that time members will be screened and considered for discharge unless they:
(1) execute a Ready Reserve Service Agreement, if eligible.
(2) request transfer to the Retired Reserve, if eligible.
(3) are offered the option to remain on the Inactive Status List for an additional period of time.
(and a couple other unrelated reasons that I've edited out).
So what happened to Kerry was that he was in an inactive status and he didn't do anything (such as request resignation of his commission or to stay in the Reserves), so he was routinely processed out. It is a standard procedure that happens unless the officer in question request otherwise. (my background: Executive Officer of a Naval Reserve Center, Commanding Officer of 2 Reserve Centers and Personnel Director at a reserve regional command (covered all 17 reserve centers in 4 states)).
(Kerry) didn't do anything...
so he was routinely processed out. It is a standard procedure that happens unless the officer in question request otherwise. Understood. Do you have any idea: 1. Does this standard procedure commonly use a "Board of Officers," to give approval? 2. Any reason why this routine procedure was not performed in 1972, when Kerry's 6 year commitment was completed? (It was done in 1978) Thanks. DG
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