RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER: BC-2008-03624
                                             INDEX CODE: 100.00
      XXXX (DECEASED)
                                             COUNSEL:    XXXX

                                             HEARING DESIRED: YES



________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to reflect the  Secretaries  of  the
Air Force and Department of Defense (DoD) recommended to  the  President  of
the United States that he be posthumously nominated to the grade of  general
(O-10).

________________________________________________________________

APPLICANT CONTENDS THAT:

The decision to not advance her late husband to the grade of general on  the
retired list for ordering North Vietnam bombing  missions  contrary  to  the
Rules of Engagement (ROE) was based on woefully incomplete  evidence,  as  a
result of the DoD withholding evidence from the Senate  during  an  election
year for political reasons.

Recently obtained evidence, i.e., White  House  tapes,  confirms  he  was  a
“scapegoat,” and in fact had acted within the  authority  expressly  granted
to  him  by  the  President  and  communicated  to  him  through  classified
communications between the  Chief  of  Pacific  Command,  the  Secretary  of
Defense, and others.

After reviewing the White House  tapes,  the  former  Secretary  of  Defense
(SecDef) during the period in question  stated  in  an  Air  Force  Magazine
article that, “General XXXX  (JCS  until  1970),  Admiral  XXXX  (JCS  after
1970), and General  XXXX  (Commander  Military  Assistance  Command  Vietnam
(MACV))  all  agreed  with  the  liberal  interpretation  of  my  order   on
“protective reactions.”  The  new  orders  permitted  hitting  anti-aircraft
installations and other dangerous targets  if  spotted  on  their  missions,
whether they were activated or not.”







The Former General Counsel  to  the  United  States  Senate  Armed  Services
Committee reviewed pertinent portions of  the  new  evidence  and  indicated
that, “Had I understood this  in  1972  I  would  have  recommended  to  the
Committee that [applicant] should have been advanced on the retired list  to
his full grade.  I feel confident that  such  a  recommendation  would  have
been approved by the Committee.”

A  former  Congressional  member  of  the  House  Armed  Services  Committee
reviewed the new evidence and indicated, “If I had the White House tapes  at
the time I would have been even angrier at the President  and  Secretary  of
State for turning [applicant] loose and then  hanging  him  out  to  dry  by
denying they had done so.”

Applicant’s complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The member was commissioned a second lieutenant in the Army Air Corps on  21
June 1940.  He was integrated into the Air Force upon its creation  in  1947
and was progressively promoted to the permanent grade of  major  general  on
10 February 1966 and to the temporary grade of lieutenant general on  29 May
1968.

Under the 1968 Rules of Engagement (ROE), planes  could  not  open  fire  or
drop  their  bombs  unless  they  were:  1)  fired  upon  by   anti-aircraft
emplacements, 2) engaged by MiG fighters in the air,  or  3)  threatened  by
surface-to-air (SAM) missiles. Pilots could readily tell when they  were  in
danger  from  SAMs  because  an  indicator  on  their  control  panel  would
automatically light-up  when  a  SAM'S  tracking  radar  locked  onto  their
planes. Any of these three conditions entitled pilots  to  take  “protective
reactions” and to use their ordnance against the enemy.

For years Hanoi had utilized a nationwide Ground Controlled Intercept  (GCI)
system, which when working properly  could  detect  most  U.S.  planes  long
before crossing the De-Militarized  Zone  (DMZ).  However,  in  mid-December
1971, Hanoi began "netting" the radar into the lock-on radar  capability  of
each local SAM site; thereby, alerting the SAM crews when a U.S.  plane  was
coming within range.  As a result, the general system guided missiles  could
destroy U.S. aircraft without the SAM sites using  their  own  radar,  which
provided no warning to U.S. aircrews.

On 1 August 1971, the member was  appointed  to  the  grade  of  (temporary)
general and was assigned as the Commander, Seventh Air  Force,  and   Deputy
Commander for Air Operations, MACV, at Tan Son Nhut  Airfield,  Republic  of
Vietnam.

Based on allegations that he had conducted unauthorized raids against  North
Vietnam between November 1971 and March  1972,  in  violation  of  the  1968
Rules of Engagement (ROE), and had authorized the falsification of  reports,
the Air Force Chief of Staff (CSAF) summoned him to the Pentagon to  discuss
the irregularities.  He reported to the CSAF  that  Seventh  Air  Force  had
conducted a relatively small number of strikes under “protective  reaction,”
and that aircrews were advised to report the  activation  of  hostile  enemy
radar  as  an  enemy  reaction.   The  CSAF  offered  him  the   option   of
reassignment at his permanent grade  (lieutenant  general),  or  retirement.
On 31 March 1972, the member applied for retirement.

A Medical Evaluation Board (MEB) convened on 5 April 1972 based on  multiple
complaints, to include early warning signs of coronary  artery  disease  and
progressively more severe limitation due to pain and stiffness in the  lower
back and right hip.  The  MEB  recommended  the  member  be  referred  to  a
Physical Evaluation Board (PEB) based on the following  diagnoses;  moderate
coronary  artery  disease  associated   with   probable   angina   pectoris,
degenerative disc disease of two levels of lumbar spine,  chronic  recurrent
degenerative osteoarthritis with pain  and  limitation  of  motion,  chronic
progressive  painful  limitation  of  motion  in  right  hip,  mild   aortic
stenosis, sub-acute medial epicondylitis of left elbow,  moderate  pulmonary
obstructive  defect,  severe   high   frequency   hearing   loss,   cervical
degenerative disc disease, multiple tendinitis of both shoulders  and  right
elbow, decreased visions, and  mild  degenerative  osteoarthritis  of  right
knee, both feet, both shoulders and elbows.

On 6 April 1972, a PEB recommended that he be permanently retired by  reason
of physical disability, with a 70 percent compensable rating, based  on  the
diagnoses of arteriosclerotic  heart  disease,  degenerative  disc  disease,
neuritis, degenerative arthritis of the right hip, and  chronic  bronchitis.
The member concurred with the recommended findings of the PEB.

On 6 April 1972, the Air Force Personnel Board concurred with  the  findings
and recommendations.  On that same date, the  Secretary  of  the  Air  Force
Personnel Council announced the decision of the Secretary of the  Air  Force
to approve the recommendation of  the  PRC  and  to  retire  him  under  the
provisions of 10 USC 1201, effective 7 April 1972.

On 15 May 1972, the Air Force publicly announced the member was retired  for
personal and health reasons, and  that  he  had  been  relieved  of  command
because of irregularities in the conduct of his command responsibilities.





On 12 June 1972, the  Armed  Services  Investigating  Subcommittee  for  the
Committee on Armed Services House of  Representatives,  held  a  hearing  to
investigate the specific “irregularities.”  The CSAF  and  the  member  were
the only witnesses.  The subcommittee noted the  DoD  did  not  comply  with
their request for a copy of the summary of the pertinent ROE.

Although nominated for retirement in the grade of lieutenant general  (O-9),
in a vote of 14 to 2, the Senate Armed Services  Committee  (SASC)  declined
to retire him in that grade.

He retired by reason of physical disability in the grade  of  major  general
(O-8) effective 7 April 1972, under Title 10, United  States  Code,  Section
1201 and Air Force Manual 35-7.   He  completed  a  total  of  32  years,  6
months, and 14 days of active service.

________________________________________________________________

AIR FORCE EVALUATION:

AF/JAA opines the weight of the evidence  supports  restoring  the  member’s
retired grade to the highest  grade  served  (general),  since  his  retired
grade was the result of both error and injustice.  The application is  based
largely on revelations contained  in  recently-released  Nixon  White  House
tapes and wartime military message traffic.  This  evidence  indicates  that
President Nixon personally told  the  National  Security  Advisor  and  U.S.
Ambassador to Vietnam to relay to the combatant  commander  in  Vietnam  his
approval to strike any Surface-to-Air Missile (SAM) site, whether or not  it
had locked on, and to characterize these strikes as  “protective  reactions”
and the SecDef personally told the member to liberally  interpret  the  ROE.
The former SecDef confirmed, after reading the Air  Force  Magazine  article
that all the senior commanders “…agreed with the liberal  interpretation  on
my order on “protective reactions.” The new orders permitted  hitting  anti-
aircraft installations and other  dangerous  targets  …  whether  they  were
activated or not.”

During the intense Congressional and media scrutiny of the member’s  alleged
usurpation of civilian control of the military, President  Nixon  repeatedly
told his senior staff that he did not want the member to be "made the  goat"
for doing what he had been ordered  to  do.  Nevertheless,  President  Nixon
ultimately did nothing to follow through or intervene in what was  happening
to  the  member.   The  information  contained  in  the  White  House  tapes
corroborated what the member had maintained all along,  i.e.,  that  he  had
been authorized to bomb the targets and to instruct Air Force crews to  file
post-mission reports characterizing the attacks as they did.


Perhaps the most telling piece of evidence in  support  of  the  application
other than the White House tape transcripts is an  extraordinary  memorandum
from the SASC General Counsel at the time of the member’s  confirmation.  In
this memorandum, the former SASC General  Counsel  flatly  and  persuasively
opines that had the information revealed  in  the  White  House  tapes  been
available to the SASC, the confirmation outcome would have  been  different.
The evidence suggests  the  lower  retired  grade  recommendation  may  have
reflected politically-based decisions relative to  keeping  matters  out  of
public awareness at a time when the Vietnam  War  was  problematic  for  the
administration. It is also  abundantly  clear  that  whatever  process  took
place, senior Air Force and DoD leadership relied on inaccurate  information
in recommending the member retire in a lower grade.  Whether  they  knew  it
was inaccurate and possibly flatly untrue is not particularly  relevant.  If
they did, that simply exacerbated the error  or  injustice.  It  is  unclear
from the evidence whether the member was afforded any kind of  due  process,
e.g., an opportunity to rebut the decision to recommend his retirement at  a
lower grade than highest served, or whether  he  simply  acquiesced  to  the
least repugnant of the alternatives.

Normally, their analysis would recite the  “presumption  of  regularity”  as
limiting  the  validation  of  the  retired  grade  recommendation  and   as
therefore limiting to lieutenant general the maximum retired grade to  which
his grade should be corrected. Here,  however,  the  evidence  suggests  the
presumption has been rebutted, for at least two related reasons.  First,  it
is reasonable to conclude that separate  agendas  (political,  professional,
and personal)  of  the  Executive  branch  officials  involved  tainted  his
removal from command, the process by which  the  recommended  retired  grade
was determined, and the Senate confirmation process.  Second,  that  retired
grade recommendation effectively limited the Senate's  ability  to  consider
retiring him in a higher grade.

The applicant has clearly met her burden of demonstrating the  existence  of
an  injustice  that  almost  certainly  adversely  affected  her   husband's
retirement grade. Even if one concludes that  her  husband's  retired  grade
would not likely have been different, there is no  escaping  the  conclusion
the processes by which he was judged were  deficient  in  that  highly--even
critically--relevant information was unknown  or  ignored  by,  or  withheld
from, decision-makers. Both the House and the Senate  requested  information
in possession  of  the  DoD  that  could  have  been  critical  to,  if  not
dispositive of, the issues underlying consideration of the  grade  at  which
he would be retired. That information was not released.

Much weight is given to the statement from the former SASC  General  Counsel
that had the information been released, the outcome  for  the  member  would
almost certainly have been different. A member of the House  Armed  Services
Committee (HASC) who took part  in  the  House  investigation  characterized
President Nixon and the Secretary of State as having “…turned  [the  member]
loose and then hanging him out to dry  …”  after  he  became  aware  of  the
contents of the White  House  tapes.  Reasonable  minds  might,  of  course,
disagree about the significance of details of isolated  individual  missions
and after-action  reports.  These  are  marginal,  rather  than  dispositive
considerations, in their  opinion.  They  do  exist,  however,  but  do  not
override  the  error  or  injustice  resulting  from  the   withholding   of
significant information favorable to the member available at the time.

Although the applicant  asserts  that  an  AFBCMR  correction  automatically
triggers entitlement to compensation under 10 U.S.C.  Section  1552(c),  she
will only be entitled to financial adjustments if, and to the  extent  that,
a records correction in her favor warrants such  compensation  in  order  to
make her late husband’s record whole.  For  example,  restoration  of  grade
via records correction might generate restoration  of  pay,  but  here,  any
grade restoration would  require  additional  action  external  to  the  Air
Force,  specifically,  Presidential  nomination,  Senate  confirmation,  and
(posthumous) appointment.

Should the AFBCMR conclude the applicant's  husband  suffered  an  error  or
injustice, corrective action is warranted  as  the  Board  is  obligated  to
correct any error or injustice it finds. One alternative is to  correct  the
records to reflect restoration of either the highest  grade  held  (general)
or retired grade for  which  he  was  nominated  (lieutenant  general).  The
better (i.e., more pragmatic) alternative, they believe, would  be  for  the
AFBCMR to correct the records to  show  the  applicant's  late  husband  was
nominated for retirement in  the  grade  of  general  (assuming  the  AFBCMR
concludes, as they do, the retired grade recommended in 1972 was  a  product
of error or  injustice).  In  either  case,  nomination,  confirmation,  and
(posthumous) appointment are required in order  to  make  the  correction  a
reality and it would be prudent for the AFBCMR  to  recognize  that  in  any
correction that involves restoration of a higher retired grade.

The AF/JAA evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel completely agrees with the advisory opinion and is pleased with  the
conclusion reached in it.  As such, counsel provides no  rebuttal  comments.
However, he questions the  reference  to  Laos,  as  the  propriety  of  the
member’s actions was questioned only as to  bombing  in  North  Vietnam  and
wonder if its inclusion is inadvertent.

Counsel’s complete response is at Exhibit E.

________________________________________________________________
THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error and injustice.  After thoroughly reviewing  the  evidence
of record  and  noting  the  applicant’s  contentions,  we  find  sufficient
evidence the retirement grade in which the  member  was  nominated  was  the
result of material error – an incomplete record.  In this respect,  we  note
the member was relieved of his command and retired in  the  grade  of  major
general  based  on  the  results  of  an   Air   Force   Inspector   General
investigation which concluded that he had authorized pilots to bomb  targets
in North Vietnam contrary to the standing ROE and to  falsify  their  after-
action reports.  However, based on recently obtained  documentation,  it  is
clear the White House, the Department of Defense, and the  Joint  Chiefs  of
Staff  (JCS)  all  possessed  evidence  which,  if  released,   would   have
exonerated him.  This evidence indicates the  bombing  missions  into  North
Vietnam  were  authorized  by  then  President  Nixon  who  personally  told
National Security Advisor Kissinger and U.S. Ambassador  to  Vietnam  Bunker
to relay to the combatant commander in Vietnam that,  “…protective  reaction
should include preventative [sic] reaction…” and that “He can hit SAM  sites
period.”  The evidence indicates that on 8 November 1971,  the  Chairman  of
the JCS personally approved the member’s request to attack the MiG  airfield
at Dong Hong and reviewed the bomb damage assessments (BDAs) the day of  the
attack.  There is no evidence of any concerns by the JCS.  To the  contrary,
they simply suggested more careful planning.  Later  that  same  month,  the
Commander, United States Pacific Command voiced his  deep  concerns  to  the
Chairman of the JCS concerning the protection of the  B-52  force  based  on
the mounting threat of the  integrated  “netted”  air  defense  network  the
North  Vietnamese  had  begun  employing,  which  virtually  eliminated  any
earlier warning of attack upon  U.S.  aircraft;  however,  his  request  was
denied.  The following month the SecDef met with the member and he was  told
to liberally interpret the ROE and he would back him up.  He spoke with  the
Commander of MACV who agreed with the SecDef.  In view  of  this  and  given
strong evidence the North Vietnamese were preparing a  massive  conventional
attack on the south, he directed a pre-planned “protective reaction”  strike
after sustaining losses of two AC-130 gunships and an RF-4C fighter  due  to
ground fire and MiG  attack.   The  documentation  before  us  contains  two
pieces of substantial evidence upon  which  we  place  great  weight  -  the
statements from the former SecDef and former General Counsel  to  the  SASC.
In his letter to Air Force magazine, the former SecDef states that  he  told
the member to liberally interpret his order  on  “protective  reactions”  to
permit hitting anti-aircraft  installations  and  other  dangerous  targets,
whether they were activated or not; and General XXXX (the  Chairman  of  the
JCS prior to 1970), Admiral XXXX (Chairman  of  the  JCS  after  1970),  and
General XXXX (MACV) all agreed with the liberal interpretation.  The  Former
General Counsel to the SASC has reviewed the pertinent portions of  the  new
evidence and indicates that had he been aware of this in 1972 he would  have
recommended the Committee advance the member on  the  retired  list  to  his
full grade and feels confident that such a recommendation  would  have  been
approved.  In adjudicating this case a number of troublesome issues came  to
light, i.e., (1) why did they not prefer court-martial charges  against  the
member?; (2) did the Air Force Chief of Staff (CSAF)  know  the  member  had
obtained prior approval from the President?; and, (3)  why  was  the  member
punished but not other officers?  Based on  the  totality  of  the  evidence
presented, it would appear the decision to not prefer court-martial  charges
against the member may have been based on a finding the  charges  would  not
have passed the “beyond a reasonable doubt” standard of the court; or,  that
evidence existed which sustained his innocence.   It  also  appears  General
XXXX (CSAF) may not have known the member was  acting  on  orders  from  the
President and SecDef, or if he did,  simply  chose  to  ignore  these  facts
during  his  testimony  before  Congress.    The   Congressional   testimony
indicates the CSAF never discussed the ROE with the member or had even  seen
the ROE.  With respect to any punishment  of  other  officers,  we  find  no
evidence that other personnel involved were ever punished after  the  member
stepped forward and accepted  full  responsibility.   In  fact,  during  his
testimony before Congress he stated,  “…these  are  hard-working,  wonderful
Air Force people, who made their interpretation  of  what  they  thought  we
wanted.”  Based on the evidence of record, it is clear the decision  to  not
revise the ROE to authorize bombing missions into North  Vietnam  was  based
on political reasons, rather than operational  requirements.   Although  the
President had previously authorized the bombings,  it  appears  he  too  did
nothing to intervene in the member’s behalf since it was  an  election  year
and he would soon be embarking on his historic trip to the Peoples  Republic
of China – the first such visit for an American  president.   Therefore,  we
find the member did act on a lawful order from the  Commander-in-Chief.   As
such, the  only  remaining  issue  before  us  is  the  allegation  that  he
authorized the falsification of after-action reports.  Although he did  tell
his personnel they could not report “no enemy action,” the  evidence  before
us indicates that  he  was  referring  to  the  fact  the  North  Vietnamese
integrated “netted” air defense network constituted an automatic  activation
against U.S. aircraft; thus, complying with the ROE.  There is  no  evidence
he caused, either directly or indirectly, the falsification of  records,  or
that he was even aware of their existence.  To the  contrary,  once  it  was
brought to his attention, he immediately took action to insure the  practice
was  discontinued  and  took  full  responsibility,  stating  that  as   the
commander he should have known.  Moreover, there is absolutely  no  evidence
that he ever participated in any cover-up or impeded  the  investigation  in
anyway.  We also find it most important to note that it is  obvious  he  was
prescient in carrying-out the President’s orders as evidenced  by  the  fact
that shortly after his retirement, bombing of North Vietnam returned  on  an
un-restricted basis,  without  the  pre-condition  of  enemy  reaction.   In
arriving at our decision, we are keenly aware  the  courts  have  long  held
this Board has an  abiding  moral  sanction  to  determine,  in  so  far  as
necessary, the true nature and impact of the error or injustice and to  take
appropriate steps to insure the record is corrected and full  and  effective
relief is granted; and, that when we fail to correct  an  injustice  clearly
presented in the record before  us,  we  are  acting  in  violation  of  our
mandate.  In view of the above and based  on  a  totality  of  the  evidence
presented, we  agree  with  the  comprehensive  comments  of  the  Director,
Administrative Law (AF/JAA) and believe  the  applicant  has  sustained  her
burden of establishing the existence of an error and  an  injustice  in  her
late husband’s records.  Therefore, we recommend  the  member’s  records  be
corrected to the extent indicated below.  However, as indicated  by  AF/JAA,
monetary award through the correction of records process  is  not  automatic
and the applicant will only be entitled to such  financial  adjustments  if,
as a  result  of  the  corrections  to  her  late  husband’s  records,  such
compensation is warranted in order to make her late husband’s record  whole.
 We also note our decision will consist  of  two  parts  which  reflect  the
limits of the authority of the Secretary of the  Air  Force  to  effect  the
record correction we have determined is necessary.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to MEMBER, be corrected  to  show  that  the  Secretary  of  the  Air  Force
recommended that the President nominate him to be retired in  the  grade  of
general (O-10) and that action be initiated to obtain Senate confirmation.

It is further recommended that such a recommendation  be  forwarded  to  the
Secretary of Defense, together with a copy of the record of  the  Air  Force
Board for Correction of Military Records, and that all other actions  within
the authority of the Air  Force  be  taken  with  a  view  to  securing  his
nomination, confirmation and appointment to the grade of general.

It is further recommended that should he be advanced on the retired list  to
the grade of general by appointment of the President, his records should  be
corrected to show that he was retired in the grade of general,  effective  7
April 1972, under the provisions of Section 1201, Title  10,  United  States
Code.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2008-
03624 in Executive Session on 10 April 2009, under the provisions of AFI 36-
2603:

            Panel Chair
            Member
            Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence of BC-2008-03624 was considered:

     Exhibit A.  DD Form 149, dated 7 Sep 08, w/atchs.
     Exhibit B.  Member's Master Personnel Records.
     Exhibit C.  Memorandum, Hq USAF/JAA, dated 20 Mar 09.
     Exhibit D.  Letter, SAF/MRBR, dated 25 Mar 09.
     Exhibit E.  Letter, Counsel, 27 Mar 09.





                                   Panel Chair


AFBCMR BC-2008-03624




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXX, be corrected to show that the Secretary of the Air
Force recommended that the President nominate him to be retired in the
grade of general (O-10) and that action be initiated to obtain Senate
confirmation.

      It is further directed that such a recommendation be forwarded to the
Secretary of Defense, together with a copy of the record of the Air Force
Board for Correction of Military Records, and that all other actions within
the authority of the Air Force be taken with a view to securing his
nomination, confirmation and appointment to the grade of general.

      It is further directed that should he be advanced on the retired list
to the grade of general by appointment of the President, his records should
be corrected to show that he was retired in the grade of general, effective
7 April 1972, under the provisions of Section 1201, Title 10, United States
Code.