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.
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