More on Kerry's Questionable discharge

I have been working with two retired Navy Captain Judge Advocate General Corps [attorneys for my non-military friends & colleagues] who have put exhaustive research into the circumstances surrounding Kerry's separation from the Naval Reserve after it was discovered that he was meeting with senior officials of an enemy government in time of war while he was still a naval officer. These two guys, Don Nelson and Mark Sullivan, have both put many MANY hundreds of hours of research into this effort and have produced the attached 4 page document of FACTS that all point towards an Other Than Honorable Discharge for Kerry--------- what makes it all the more credible is that both CAPT's Sullivan and Nelson were in active service when all this was going on and Sullivan was serving in a Pentagon action office that was taking action on these matters, including his being present to disgustingly watch the Carter Administration actions to give deserters and other traitors who had abandoned their units in time of war Honorable Discharges for their dishonorable service.

I've shared this information with everyone that I know in the news media, but if you have some contacts that might want to see it, feel free to forward the attachment on to them. While all this could be resolved with Kerry signing a standard form 180 to release ALL OF HIS MILITARY RECORDS, it's pretty obvious at this point that it's not going to happen------- and it is my concern that if Kerry is elected and the facts about this covered up discharge status are ever learned, the reaction of many in our nation will be much larger and more repulsive than the Jimmy Carter "malaise in America" disgust that most still attach to that administration.

Let us hope that all this will all be considered a moot point on Wednesday, but no matter what happens, I thought you would like to know about all the facts and details in the following 4 page document. And for my fellow Vietnam Vets, I know it will never be a moot point with us.

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 (1Cool 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..

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 unmistakeable 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.

The bottom line is that he was pardoned (by Carter) and eventually given an honorable discharge. Thus there are no legal repurcussions. This is just information that should be available to the voter prior to making a decision. However, if you read the article, an inference is not proof, and they have presented no concrete proof or corroborating witnesses.

There is no way this gets out in the media without absolute proof. Perhaps Lipscomb has gotten the then Secretary of Navy to come forward, and will be publishing a story tomorrow. If not, this is going nowhere.

United States Code TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 44 - FIREARMS

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person - (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) has been adjudicated as a mental defective or has been committed to any mental institution; (5) who, being an alien - (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who (FOOTNOTE 1) has been discharged from the Armed Forces under dishonorable conditions; (FOOTNOTE 1) So in original. The word ''who'' probably should not appear. (7) who, having been a citizen of the United States, has renounced his citizenship; (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) has been convicted in any court of a misdemeanor crime of domestic violence.

I really find it amazong that a Man who might be able to become the next President of the USA, would be allowed to assume that office without a credible background inspection. Especially one who we all know participated in demonstratitons against the foreign policy of the United States and who is suspect of the highest crime in the land next to murder.

It is totally unreasonable to ask a country to accept this or his legal claim to Senator let alone the Presidency of the USA and in the time of WAR no less. There must be some legal vehicle that that is available to the Congress, to demand that this information be brought to light, before the election.

I don't care if it doesn't come out until after the election, personally. I just want it to come out. Mainly so I can take satisfaction in all the kool-aid drinkers seeing who they really voted for.

I believe it is true. I also believe that any 'october' surprise feel to this will rebound against President Bush. I want this man taken down, my brother was wounded at Con Thien, he came back to be a police officer and be spit on and tripped by the 'peace protestors' he had to protect in their marches, so this is personal. But, I do NOT want anything to rebound and put this man into the presidency. He will emasculate this country.

Though it's hard, we/I have waited 30 years, I can wait another few months to make sure ALL the evidence is there and not just conjecture. If it goes out as speculation based on 'the history' of the time, then I would rather work to get all the information. I believe that sooner or later through the law we WILL get the documents. And, when we do, we will take down not only Kerry, but also the MEDIA whose job it was to do this, especially Dan Rather who spent 5 years on the National Guard Story and refused to do that same research on this one.

If he has an OTH (Other Than Honorable) discharge, will he be allowed to have a TOP SECRET Clearance?

Presidents automatically get a much higher clearance than that. Whether SCI or codeword, I don't know.

Congresspeople get TS by default, regardless of what the background turns up.

Remember Ron Dellums? Scary, isn't it?

Now I have posting remorse :)
I was in the USN from '70-'74, there were a lot of BCDs given out back then. People just wanting out, not thinking ahead. It was the days of anything goes. Also back then I got to know quite a few 0-3s and below standing watch in CIC with them. Nobody got out 11 months early to run for congress. Even after the downsizing of the USN in Vietnam we were still fighting a cold war in the Atlantic.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.