Posted on 10/13/2004 6:31:04 AM PDT by CatoRenasci
Is the Kerry Discharge Question a Red Herring?
On another thread there is a long discussion of the New York Sun story about the Kerry 1978 discharge from the Navy by Thomas Lipscomb.
Reviewing the US Code Sections, I am concerned this may be a non-issue story. Before we make a big deal of it we must eliminate an important possible explanation:
The US Code Sections cited, 10 USC 1162 and 1163 are no longer in effect, having been repealed in 1994. The replacement sections are 10 USC 12681-12683. The relevant section is 12683, which provides in relevant part:
(a) An officer of a reserve component who has at least five years of service as a commissioned officer may not be separated from that component without his consent except -
(1) under an approved recommendation of a board of officers convened by an authority designated by the Secretary concerned; or
(2) by the approved sentence of a court-martial.
Under 10 USC 14513, an officer who is not selected for promotion may be (among other things) discharged from his appointment:
Section 14513. Failure of selection for promotion: transfer, retirement, or discharge
Each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 [NB - failure of promotion] of this title shall (unless the officer's separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections -
(1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer's armed force;
(2) be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or
(3) if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer's reserve appointment.
And, under 10 USC 14516, that separation would be involuntary:
Section 14516. Separation to be considered involuntary
The separation of an officer pursuant to section 14513, 14514, or 14515 of this title shall be considered to be an involuntary separation for purposes of any other provision of law.
Thus, it is quite possible that Kerry simply did nothing with respect to his reserve obligations and, after several years, finally came up before a promotion board from Lieutenant JG to full Lieutenant in the reserves for the second time, and (having done nothing) was found not qualified for promotion. As a result, as shown above, he could be separated from the service involuntarily. This separation would not result in a less than honorable discharge.
People, be very carefule with this one, it could be a sucker punch by the sKerry people to take the wind out of all of the Kerry military stories!!!
Kerry can clear it all up by releasing all his records.
http://news.findlaw.com/hdocs/docs/jkerry/rqsthistserv.pdf
http://news.findlaw.com/hdocs/docs/jkerry/trnsfr2stndyrsrv.pdf
http://news.findlaw.com/hdocs/docs/jkerry/hondisres.pdf
I'm not Tom, I'm the one who suggested this might be a nonstory. Your experience demonstrates exactly the point I was making. Thank you.
That was the point. I sent this to Tom Lipscomb this morning after reading his article. I have been corresponding with him over the past few months.
Thanks for clarifying that. I didn't realize your post was an e-mail to Lipscomb.
You mean he will sign the 180?
If Kerry takes any cheap shots at Bush's National Guard service tonight, Bush should respond in kind.
IF all this is true, that's fine and dandy. However, in order for it to be boiled down to soundbites there's going to have to be a black and white argument. As the argument stands, it's too complicated for the electorate, and because it's complicated it will not get legs.
Yes, you are right that it's an issue for the Viet Nam vets.
I can hope you are right that others would feel the same if the issue gets more play. I'm not convinced, but would like to be.
bump
I resigned my commission in 1972 as an O-3 and was placed in the Standby Reserves. I received my Honorable Discharge on Feb 16, 1978 (same date and letter as Kerry) with no action for or against on my part and I was listed as an O-4 (LCDR). I doubt that Kerry was discharged because he was passed over. He, like myself, just went through the normal reserve administrative process, which transitions officers out of the service.
Not to worry, if uncle Ho had given skerry the communist medal of freedom there would be not a twitter from the MSM. Rest assured, neither rain, sleet, nor snow will deter the MSM from their appointed rounds of protecting and promoting treason boy.
In any event, before the boys and girls who weren't even born then go charging off with this one, these possibilities need to be examined and eliminated, unless true, in which case we should all shut up about Kerry's discharge.
I was an Army prosecutor, and I think this is way off. First of all, the repealing of 10 USC 1162 and 1163 in 1994 would obviously have no impact on anything that happened in 1972. Whatever replaced them in 1994 is totally irrelevant. What's important is whether 1162 and 1163 were in effect in 1972.
Second of all, Kerry was promoted from LTJG to full LT on Jan. 1, 1970. He asked to be released to the inactive reserve two days later. He still held a reserve commission until being discharged in 1972, and would not have come up for promotion to LCDR for at least a few years. The 1972 DD214, the smoking gun, if you will, is conspicuously absent from Kerry's website.
Third, officers are all commissioned by the President, and thus officer separations are governed by explicit USC provisions -- but these provisions are codified and fleshed out in service regulations. I'd want to see the Navy reg on officer separations before I would consider any other federal law. Nothing here is inconsistent with a 1972 OTH anyway.
Finally, involuntary separations always result in a less than honorable discharge, either a general or an OTH.
Kerry was likely asked to resign in lieu of court-martial, discharged with an OTH, then spent six years fighting with the Board of Military Corrections and Appeals to get his discharge characterization changed, accounting for the 1978 honorable discharge that was in memo format rather than on a DD214.
"Kerry was likely asked to resign in lieu of court-martial, discharged with an OTH, then spent six years fighting with the Board of Military Corrections and Appeals to get his discharge characterization changed, accounting for the 1978 honorable discharge that was in memo format rather than on a DD214."
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Makes sense. And he would want to hide this at all costs...hence no form 180.
This is simply not true. See the original post. The earlier equivalent provisions were posted in the thread. Substantively, they're the same on reservists being involuntarily separated honorably.
Correct. Kerry was a line officer and I was a Supply Officer. I had a regular commission versus Kerry's Reserve commission. Medical Officers were retained beyond the six year period. The Navy and all services were drawing down their end strength, active and reserves, after Vietnam. In fact, there was an involuntary RIF of naval officers in the early 1970s.
I agree with you that we need to be careful about running with this one. Kerry can easily knock this one out of the park and use it to discredit legitimate charges. Kerry is vulnerable in the area of his antiwar activities while still an officer in the Naval Reserves subject to recall. The revisions to his website and how he describes his service are indications that he is trying to hide his reserve status during the period 1970-2,
My point is that before this story gets ridden for all it's worth, the possibilities need to be eliminated. See kabar's posts in this thread and see the posts and www.polipundit.com
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