Was Kerry's original discharge less than honorable?

In a front-page article in today's New York Sun entitled "Mystery Surrounds Kerry's Navy Discharge," 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.  [Update: Be sure to read through to my 5:25pm update below for a speculative, innocuous scenario possibly involving section 1163(a) — Beldar.]

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 3830380
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As part of a reorganization of the relevant portions of Title 10, sections 1162 and 1163 were repealed effective December 1, 1994, and because their text no longer appears in the current United States Code, they're somewhat hard to locate.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 3830380," which I presume to have been a Bureau of Personnel Manual  regulation.  [Update: see James Lederer's and Cecil Turner's helpful comments and links below, which I've edited this text to conform to — Beldar]

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 lead to inferences about Sen. Kerry's original discharge and possible later upgrade:

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 itself 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.

IV. 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 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 significant 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.

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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, Just One Minute, Little Green Footballs (also here, thanks for the link, Charles!), Wizbang!, PajamaPundits, Cranial Cavity, Posse Incitatas, Jawa Report, Dr. Zhibloggo, Michelle Malkin, Chasing the Wind, Travelling Shoes, Secure Liberty, INDC Journal, Ace of Spades, Media Lies, California Yankee, Pink Flamingo, Commonwealth Conservative, Political Junkie, QandO, and Captain's Quarters.  [Continuing to update this list as I find new posts; see also the trackbacks below — Beldar]

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.

"Navy Chief" apparently did some of the background digging that may have gone into Mr. Lipscomb's story; there's a thread on this story on the SwiftVets' forum that's picking up lots of comment.

Human Events has a reprint of Mr. Lipscomb's article if you have any trouble accessing it on the New York Sun's website.

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Update (Wed Oct 13 @ 4:30pm):  This update started out as a comment from me in response to other comments, but I've "promoted" it to text here.

If, as initially issued, Sen. Kerry's discharge was a normal, fully honorable one after completion of his full active-duty and reserve obligations, then why would a board of officers — one convened and acting specifically under section 1163 — ever have been involved?

As I understand it, Mr. Lipscomb's point is that section 1163 wouldn't have been cited in the Claytor letter, nor would that letter have referred to "a board of officers convened under authority of [that section]," if Sen. Kerry already had, or was entitled to get, an honorable discharge without such a board of officers' intervention.  I'll try here to make what I understand his argument to be, with more specific reference to the specific language and subsections of section 1163.

Only subsections (a) and (c) of section 1163 refer to such a board: 

• Subsection (a) involves separations from the Reserves without the separating officer's consent, and says that can only be accomplished pursuant to either an approved board of officers' recommendation or a court martial sentence. 
• Subsection (c) says if an officer is separated from the Reserves "for cause" — a key term which normally roughly equates to being fired for screwing up and/or breaking the rules — then he's nonetheless entitled to an honorable discharge except in two situations.  The first situation, per subsection (c)(1), is if the discharge is under conditions other than honorable as per either a court martial sentence or the approved recommendations of a board of officers.  The second situation is if the officer consents to the discharge being under conditions other than honorable, and waives the right he would otherwise have to accept such a lesser discharge only after a court martial or board finding.

We don't have any reason to believe that only subsection 1163(a) was involved.  That subsection would keep the DoD from booting somone who has more than three years' service and doesn't want to be discharged even with an honorable discharge (e.g., because he wants to stick around to qualify for greater benefits).  [Update: But see my 5:25pm update below for a speculative, innocuous scenario possibly involving section 1163(a) — Beldar.]

So it seems more likely that subsection 1163(c), or both it and subsection 1163(a), were involved.  Again, note that subsection 1163(c) deals only with separations "for cause."  In most legal contexts, "for cause" means being fired for breaking the rules — it's being shown the door, not just asking and having it opened for you voluntarily.

Geek, Esq.'s suggestion in the comments below, working backwards from the Claytor letter's language, presumes that a board of officers must always be convened in order to determine whether someone should be retained on the rolls of the Reserves, and that this was the normal method of separation for everyone dropped from the rolls with an honorable discharge when they're no longer needed.  But that's certainly not what the statute says; and if there's a different statute or regulation which says that, I haven't seen it yet.

Rather, the board of officers referenced in section 1163(c) would only seem to come into operation if at least at some point the discharge involved was both less than honorable and without the officer's consent.

The only discharge we've seen, from 1978, is indeed honorable.  But there's nothing in section 1163 to suggest that a board would be involved in approving a top-quality, consented-to (and indeed welcomed) honorable discharge that was unmixed with any prior complications.

By contrast, the reference in 1978 to a "board of officers" acting pursuant to section 1163 would be explained in either of two circumstances.  First, Kerry could have consented to a less-than-honorable discharge back in, say, 1972, in which case no section 1163(c) board would have been involved then.  Second, Kerry could have refused to have accepted a less-than-honorable discharge back in, say, 1972, in which case the Navy Department couldn't have imposed it on him without an approved finding pursuant to section 1163(c).  But in either of those events, the statute could reasonably be read to require such a finding of an officers' board for an upgrade of a less-than-honorable discharge in 1978.  And — to repeat — I don't see any other explanation for why an officers' board acting pursuant to any part of section 1163 would otherwise have been involved in 1978, or referenced in the Claytor letter.

I'll also repeat this important point:  I don't have the personal military experience to confidently argue that the fact that there was a board somehow involved necessarily means that there was a less-than-honorable discharge involved at some point along the line.  But if there's another explanation for a "board of officers" acting pursuant to section 1163 being involved, I haven't seen or heard it yet.  [Update: But see my 5:25pm update below for a speculative, innocuous scenario possibly involving section 1163(a) — Beldar.] With due respect — and I have no idea if "Geek, Esq." is indeed even a lawyer, and by his own admission he jumped to a conclusion before he'd even read Lipscomb's article closely, and now continues to defend that conclusion without bringing any new source material to the table — I rather doubt that Geek has those qualifications either.  Indeed, as stated in my introduction to this post, the reason I put this post up to begin with was to provide wider access to the relevant statutes (which are otherwise very hard to track down), and to solicit and encourage the exchange of further pertinent information. 

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Update (Wed Oct 13 @ 5:25pm):  Okay, lots going on in the comments.  I want to thank, and commend, everyone who's commented or emailed me, definitely including the skeptics.

Since my previous update, one speculative but innocuous scenario has occurred to me that I ought to mention here, rather than just in comments.  Perhaps in 1978, the DoD or the Navy Department was doing a mass review of its reserves rolls trying to winnow out those who'd been completely inactive for a long time.  It is conceivable, I suppose, that they'd have convened a board of officers for the purpose of approving unconsented-to honorable discharges of officers with more than three years' service, which section 1163(a) would seem to require absent specific consent from the affected individuals.  That's obviously speculation, but it might explain a reference in the Claytor letter to section 1163 that would not necessarily imply a previous involuntary discharge on a less-than-honorable basis.

Again, however, it seems that the cleanest way for all this to be cleared up would be for Sen. Kerry to sign Standard Form 180.