DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

JRE
Docket No. 01180-07
26 March 2007

 

 

 

This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United

States Code, section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 15 March 2007. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies. In addition, the Board considered evidence from
cases filed under docket numbers 9117-04 and 7638-05, that
pertain to two former members of the crew of the USS Liberty (the
Liberty). The petitioner in docket number 7638-05 was
represented before the Board by your attorney,  ,éiiiiiiiibiaawy. who
also represents that, petitioner in an action filed in the United
States Court of Federal Claims. The panel also considered “Acute
and Delayed Posttraumatic Stress Disorders: A History and Some
Issues”, American Journal of Psychiatry, volume 161, pp. 1321-
1323, August 2004; “Adverse Outcomes Associated With Personality
Disorder Not Otherwise Specified in a Community Sample”, American
Journal of Psychiatry, volume 162, pp.1926-1932, October 2005;
“Stressed Out Vets”, The Weekly Standard, 21/28 August 2006; “The
Liberty Incident, Gag Orders Debunked”, by retired Federal
District Court. Judge A. Jay Cristol with referenced documents,
available on-line at http: //thelibertyincident .com/gag-orders-
debunked.html,; a statement by Bryce Lockwood dated 8 November
1995; correspondence provided by Rear Admiral gayi
Judge Advocate General’s Corps, US Navy, Retired, in his capacity
as an official of the USS Liberty Alliance, an advocacy group
which wants the United States government to reopen’ the
investigation of the Liberty attack, with the apparent goal of
establishing that military forces of the State of Israel
intentionally attacked the Liberty pursuant to the orders of
officials of the government of Israel; and “The Assault on the
Liberty: The True Story of the Israeli Attack on an American
Intelligence Ship”, James M. Ennes, Jr., 1979. The Board was
unable to obtain an updated copy of your VA claims folder from

the VA, despite multiple requests for those records.

For ease of reference, the staff of the Board made photocopies of
your Navy service and health records, which are marked as S1-S250

and H1-H130, respectively.

As a preliminary matter, the Board found, contrary to what you
led the United States Court of Federal Claims (the Court) to
believe, you did not raise the issue of an alleged silencing
order in your initial application for correction of your naval

record. In this regard, the Board noted that that ™@@—iinAes
admitted in paragraph 5 of his letter to the Executive Director,

BCNR, dated 17 October 2006, that he did not raise that issue in
your initial application, and you made a similar admission in
paragraph 13 of your supplemental affidavit dated 2 November

2006.

As you know, Secretary of the Navy Instruction (SECNAVINST)

5420.193, enclosure (1), Procedures of the Board for Correction
of Naval Records (32 CFR 723), section 9, Reconsideration,
provides, in part, that after final adjudication, further

consideration will be granted only upon presentation by the
applicant of new and material evidence or other matter not
previously considered by the Board. New evidence is defined as
evidence not previously considered by the Board and not
reasonably available to the applicant at the time of the previous
application. As you failed to raise the issue of the silencing
order in your first application, evidence concerning that issue
is not “new evidence or other matter” as those terms are defined
in SECNAVINST 5420.193, and does not provide a basis for
reconsidering your request for corrective action. Similarly, the
medical evidence and affidavits you submitted in support of your
request for further consideration of your application are not
new, because such evidence was reasonably available to you when

you submitted your initial application.
After careful and conscientious consideration of the entire
record the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice in your naval record. Specifically, the panel
of the Board that considered your case was not persuaded you were
issued the silencing order described in your application, that
you suffered from posttraumatic stress disorder while serving on
active duty in the Navy, or that you were unfit to reasonably
perform the duties of your office, grade, rank or rating by
reason of physical disability prior to your separation from the

Navy.
The Board made the following additional findings:

Dr. Estrov’s findings and opinion do not demonstrate that you
suffered from posttraumatic stress disorder at any time during
the 1967-1973 period. Although he apparently believes, as you
do, that most or all of the problems you encountered during your
service in the Navy are related to the effects of undiagnosed and
untreated posttraumatic stress disorder, Dr. Estrov’s findings do
not substantiate those beliefs. As indicated below, Dr. Estrov
glossed over, failed to consider, and/or ignored many significant
aspects of your personal history that might have caused or
contributed to the development of those problems. Particularly,
that you were raised by a single mother in economically deprived
circumstances. Further, you stated that you saw your father
twice during your childhood, once when he gave you “a nickel”,
and a second time when you saw his body in a casket. It also
appears that you did not receive adequate medical or dental care
as a child, as you suffered from rheumatic fever, which generally
develops from untreated or under-treated strep throat infections.
You also had a correctable defect of your mandible which
interfered with your ability to close your mouth and chew food,
and may have been disfiguring, and at least ten of your teeth
were extracted during the first few weeks of your enlistment in

the Navy (H54). You dropped out of high school in the 10°
grade, and had no significant employment until you entered the
Navy in 1964 (S61). You began drinking alcoholic beverages at

age 15, and were rejected for enlistment in 1963 because of
immaturity and a history of bedwetting that continued beyond your
16° birthday. When you were being evaluated for alcohol abuse by
Dr. Cole in August 1972, you admitted that you would drink to
intoxication on some evenings in port on sea tours prior to your
marriage in 1968 (H2). You contracted gonorrhea on at least two
occasions while overseas prior to 8 June 1967, which presumably
resulted from contact with prostitutes while your judgment may
have been impaired by alcohol. When you married your first wife
on 5 July 1968 (S28) at age 22, you became financially
responsible for her and her two children from a previous
marriage. In addition, she was about five months pregnant with
your son Harold, who was born on 24 October 1968. On 11 June 1968
(S219) you requested accelerated payment of your reenlistment
bonus so that you could “pay off” a new car, and pay for dental
care your wife needed before her pregnancy had progressed too
far.

Additionally, Dr. Estrov did not discuss an electronic message
dated 10 July 1972, that is filed in your Navy service record
(S125). As the message is difficult to read, the staff of the
Board prepared the attached typed copy. The following sentences
from the message are particularly significant concerning the loss
of your security clearance and your ultimate discharge:

“DOCUMENTED PROBLEMS AND REPUTATION OF PETTY OFFICER SIX
AND HIS SPOUSE INCLUDE $2661.32 INDEBTEDNESS, ACTIVE
PARTICIPATION IN DISREPUTABLE INCIDENTS AT EM CLUB AT SAN
MIGUEL, EXCESSIVE DRINKING, MUTUAL PHYSICAL ABUSE,
HARASSMENT OF MARINE SENTRY AND ALLEDGED ADULTRY [SIC] OF
SPOUSE ..POTENTIAL FOR SUCCESS IS DEPENDENT UPON ASSIGNMENT
WHICH DOES NOT ENSURE PROXIMITY TO SPOUSE. HIS SERVICE
REPUTATION IS GOOD AND REFLECTS APPLICATION TO ASSIGNMENT
ONLY WHEN PHYSICALLY SEPARATED FROM SPOUSE... MRS. SIX’S
PROMISCUOUS REPUTATION IS WELL KNOW AND IS HAVING A
DELETERIOUS EFFECT UPON THE MORALE OF MARRIED NEIGHBORS AND
BACHELOR ENLISTED ALIKE. HER BEHAVIOR AND HER HUSBAND'S
REACTIONS CANNOT BE TOLERATED IN THE SMALL ISOLATED
COMMUNITY ENVIRONMENT AT SAN MIGUEL.”

 

Dr. Estrov also failed to note that your performance of duty was
slightly better after the attack on Liberty than before the
attack, as measured by your Enlisted Performance Record. Prior
to the attack, your evaluation mark averages in the trait areas
of professional performance, military behavior, leadership and
supervisory ability, military appearance, and adaptability were
3.26, 3.40, 3.50, 3.36, 3.46, respectively (S72). After the
attack, the averages were 3.43, 3.36, 3.36, 3.48, 3.48, even
though you held more responsible positions in higher pay grades
(S26). These numerical scores were derived from entries in the
“Report([s] of Enlisted Performance Evaluation” covering the
periods in question, and those evaluations had a possible
numerical range of from 4.0 to 2.2, in increments of .2. For
example, ratings in the area of Professional Performance ranged
from “Extremely effective and reliable. Works well on his own”,
left block, 4.0, to “Inadequate. Needs constant supervision”,
right blocks, 2.2. Only those ratings that were below 2.6 were
per se adverse/unsatisfactory and required additional written

comments to justify the ratings.)

Dr. Estrov’s discussion of the diagnostic impression recorded by
Dr. Cole is misleading, because immature personality disorder is
a recognized mental disorder. Such a disorder is listed in the
current edition of the International Classification of Diseases
(ICD) (World Health Organization) under code F60.8, Other Specific
Personality Disorders. It was also listed in the edition of the
ICD that was in effect in 1972, as well as in the Diagnostic and
Statistical Manual of Mental Disorders, second edition (DSM-ITI),
American Psychiatric Association (1968) that was in effect when
you were evaluated by Dr. Cole. DSM-III (1980) includes code
301.89, for “Atypical, Mixed, or Other Personality Disorder”.
DSM-IV (1994) includes code 301.9, for to “Personality Disorder
Not Otherwise Specified”. The instructions following those codes
in the DSM-III and DSM-IV provide that the codes were applicable
in those cases where a clinician judged that a specific
personality disorder not included in the DSM was appropriate.
Under that guidance, if a clinician were to determine that you
suffer from an immature personality disorder, ICD-10 code F60.8,
a code of 301.9 would be assigned to that disorder in accordance

with DSM-IV.

Dr. Estrov’s report that you had been arrested “three times for
drunk driving..His last arrest was in 1975” could not be
substantiated. A criminal records check disclosed that you were
arrested for misdemeanor drunk driving on a highway on 7 April
1976. That charge was ultimately dismissed and you pleaded guilty
to a charge of reckless driving. On 29 September 1989, you were
arrested for fraud to obtain aid in an amount less than $400.00.

Dr. Estrov did not comment on the fact that you lied to Dr. Cole
about your use of alcohol(which you recently admitted), and that
Dr. Cole was therefore unable to give you a diagnosis of alcohol
abuse or dependence or refer you for treatment. Dr. Estrov’s
statement that Dr. Cole did not comment on your affect is
erroneous, as Dr. Cole wrote that your affect was “happy”.

The reports that an unidentified lieutenant commander and/or
other officers visited multiple survivors of the Liberty attack
at various locations around the world and informed them that they
were never to speak of the attack to anyone without first
obtaining his permission, or the permission of the former
commanding officer of the Liberty, and that failure to follow
that order would result in court-martial, are not credible. Two
other survivors of the Liberty attack have applied for correction
of their naval records to show that they were retired from the
Navy by reason of physical disability because of the effects of
posttraumatic stress disorder and other conditions. The first
petitioner submitted applications that were assigned docket
numbers 8610-98 and 9117-04. He did not raise the issue of the
silencing order in the initial application, docket number 8610-
98. In that application, he blamed the Department of the Navy
for failing to recognize and treat the posttraumatic stress
disorder from which he suffered while on active duty in the

Marine Corps. In a statement submitted in support of his
application, he admitted that he had discussed the Liberty
incident with a number of his fellow Marines. His file indicates

that his primary focus was his anger over the fact that he had
been awarded the Silver Star for his actions on 8 June 1967,
rather than the Medal of Honor. He was also angered about what
perceived to be the contemptuous attitude of other service
members toward him and the other members of the crew of the
Liberty. The Board rejected his contentions and denied his
application. He raised the issue of the silencing order in his
second application, and made claims very similar to those you
made in your second application. The Board did not consider him
to be a credible historian, and denied his application.

With regard to the issue of decorations awarded to Liberty
survivors, it is important to keep in mind that the criteria for
combat awards provide that the heroic achievement or wound that
justifies the award must have occurred while the recipient was
engaged in (1) an action against an enemy of the United States;
(2) military operations involving conflict with an opposing
foreign force; or (3) while serving with friendly foreign forces
engaged in an armed conflict against an opposing armed force in
which the United States is not a belligerent party. An
additional criteria for the Purple Heart was that the wound was
the result of an act of an (1) “enemy” or (2) a “hostile foreign
force”. The Combat Action Ribbon required that the recipient come
under “enemy fire”. It does not appear that the Liberty incident
met general criteria (1) or (3), or the “enemy fire” requirement
for the Combat Action Ribbon, or criterion (1) for the Purple
Heart. It is arguable that it met general criterion (2) and
Purple Heart criterion (2). Finally, at that time in question,
the Purple Heart was not authorized for wounds caused by friendly
fire.

The subject of docket number 7638-05 did not raise the issue of
the silencing order in his application for corrective action, but
there is a references to the silencing order in his VA Claims
folder. On 12 March 1968, the VA awarded him substantial
disability ratings for residuals of the physical injuries he
sustained in the Liberty attack. He did not request a disability
rating for a mental disorder in 1967 or 1968. In 1990, he applied
for service connection for posttraumatic stress disorder. He
underwent psychiatric evaluation on 22 May 1990. He did not
mention the silencing order during the course of the evaluation.
He was given a diagnosis of posttraumatic stress disorder, and
granted a disability rating for that disorder effective 25
January 1990. In 1994, he applied for an increased rating for
posttraumatic stress disorder, and raised the issue of the
Silencing order during psychological evaluations that he
underwent on 6 June and 25 July 1994. The panel of the Board that
considered his application did not find him to a reliable
historian, and denied his application. The panel noted that his
file contained a letter dated 21 August 1968 from an attorney to
VA officials, in which the attorney states that he represented
the former Liberty crewmember in connection with his claim
against the State of Israel “..on account of personal injuries
which he sustained in the Israeli attack on the U.S.S. Liberty in
the Mediterranean off the coast of Israel on June 8, 1967”, which
would appear to violate the alleged silencing order. The panel
also noted that the petitioner claimed that he had waited more
than thirty years to submit his application for correction of his
record because he was not aware of the Board’s existence.
Contrary to that assertion, his Navy record contains a letter
dated 24 February 1969 from the Surgeon General of the Navy to
the applicant’s representative in Congress, in which he advised
the congressman that the petitioner had the right to submit an
application for correction of his naval record to the Board. A
Form 149, Application for Correction of Military of Naval Record,
-was enclosed in the letter. The petitioner was a member of the
USS Liberty Alliance and although he was released from active
duty in 1967, and never transferred to the retired list, he is
identified as a retired seaman, US Navy, on the uss Liberty
Alliance’s letterhead.

You recently acknowledged that your record had not been sanitized
by the removal of all references to the Liberty incident, as you
had previously alleged. There are multiple references to the
Liberty attack in your record. Among the more significant are a
message dated 9 June 1967 entitled Status Report USS Liberty

Casualties (S227-230), and a Presidential Unit Citation which
contains details of the attack on the Liberty (S209, copy
attached). Your health record also contains a copy of a letter

to your commanding officer dated 29 January 1969, in which the
Chief, Bureau of Medicine and Surgery, requested, on behalf of
to right leg + rt hand Meditterian [sic]Area. Combat injury.
Flesh wound only. 1967. hospitalized USS America 8 days

transferred to Naples, Italy - was hospitalized 14 days.” It is
clear that the entry is based on what you told the physician,
rather that his review of your health record. All of the

conditions he mentions in the clinical record, beginning with
“mumps, measles, rheumatic fever, T+A in childhood, Sinusitis...”
and ending with the entry in item 30 concerning your wounds,
follow the same sequence as the do the entries you made in the
Report of Medical History.

Prior to undergoing surgery on your mandible in 1972, you were
interviewed by a surgeon. You disclosed to him that you had
undergone a surgical procedure for the repair of lacerations
“following shrapnel injury” (H72), and that you had sustained
“Shrapnel injury (1967) R middle finger, R elbow and R lower leg”
( H69-73).

Given your disclosures concerning the attack on the Liberty, your
participation in combat action, and your wounds, as well as the
multiple entries in your record concerning the attack, your
contention to the effect that that you did not report alleged
symptoms such as insomnia, nightmares, and depression or
excessive worry because you feared you might violate the
silencing order, is not considered credible.

The statements, declarations and affidavits you submitted in
support of your contentions concerning the silencing order are
not probative of the existence of material error or injustice in
your Navy record. Specifically, the statement by Captain Boston
to the effect that he was told by Admiral Kidd that the admiral
had been ordered to “put the lid” on everything having to do with
the attack on USS Liberty, that they were “never to speak of it”,
and that they were to “caution everyone else involved that they
could never speak of it again”, is self-contradictory, and does
address the consequences of discussing the attack. Captain
Boston’s statement is colored by his obvious contempt toward
those whom he considers to be “apologists” for Israel, such as
Judge Cristol.

Admiral Samii: statement pertains to his abortive attempt to
conduct a legal review of the report of the Court of Inquiry.
The statement does not address the silencing order.

Captain al, whose name is also listed on the letterhead of
the USS Liberty Alliance, recently submitted several lengthy
statements in your behalf concerning the Liberty attack and the
“Silencing Order”. It is clear that he considers the silencing
order one of the most important issues for Liberty survivors, to
include himself; however, he did not mention the silencing order
in two earlier statements he submitted in your behalf, dated 15
February 1996 and 20 August 1997. Those statements, which he made
in support of your claim for service connection and disability
compensation for residuals of alleged shrapnel wounds to your
face, raise a serious concern about his credibility as a witness.
Specifically, he stated that he had personally treated you for

“multiple mini-fragment facial injuries”. Entries in your Navy
health record shows that you sustained shrapnel wounds to your
right leg, hand and arm. There are no entries concerning mini-

fragment facial injuries. The VA accepted Dr. sQQQ§MMMs report as
true, and granted your request for service connection for

residuals of those alleged facial injuries. It is also
Significant that’ in the 15 February 1996 statement, he claimed
that he understood that you suffered from “Post Traumatic”
neurologist syndrome. You maintain, -however, that you learned
from him that you suffered from that condition.

LCDR Giese description of the nature and effect of the alleged
silencing order in the declaration he submitted in support of
your application is very similar to your description; however, he
did not make similar claims in his book, The Assault on the
Liberty. He devoted a chapter of that book to the alleged cover-
up of the incident, but he did not use the term “silencing

order”, or mention the alleged visits from an unidentified
officer who conveyed the silencing order, and threatened
sanctions for violating its terms. LCDR jill contended that

although discussing the incident had been officially authorized
following the completion of the Court of Inquiry, such
discussions were strongly discouraged in private by his superiors
at that time and for years thereafter. He related a preposterous
anecdote (p184) from an unidentified source that is to the effect
that two survivors of the Liberty attack were drugged and
questioned by a “therapist” who was not trained in psychology or
psychiatry, and threatened with electroshock therapy, and that as
a condition of their release from a hospital where they were
confined, they were required to promise in writing “never to
discuss the Liberty attack or the hospital episode.” LCDR Ennes
did not disclose why those individuals were singled out, or why
other survivors did not have to make similar written promises.

The panel did not accept your contention to the effect that you
suffered from untreated posttraumatic stress disorder that caused
you to develop a death wish, which in turn led you to volunteer
for two tours of duty in Vietnam. Although you served on

10
the Judge Advocate General, that information be provided
regarding the treatment of the injuries you sustained in the
Liberty attack, presumably for inclusion in a claim for damages
to be submitted to the State of Israel (H7). (See also S8, §S
193,S223-230, H41, H42, and H46.)

You apparently misled officials of the Los Angeles Police
Department (LAPD) in your application for employment as a jail
guard, as it is unlikely that you would have been hired had you
disclosed your history of alcohol related problems, or your
continuing financial and marital difficulties. Records you
obtained from the State of California Department of Corrections
at the request of the staff of the Board suggest that when you
applied for employment as a prison guard, you were not truthful
about the circumstances of your discharge from employment with
LAPD.

There are several entries in your Navy service and health records
which would have been considered violations of the silencing
order had you actually received such an order. For example, on 26
May 1970, you wrote a letter via your commanding officer to the
Chief of Naval Personnel, in which you requested that you be
issued the Combat Action Ribbon, and stated “[o]n that date, the

ship came under heavy attack by Israeli jets and torpedo boats,
receiving a torpedo hit on the starboard side which caused

considerable damage and the loss of many lives. I have been
awarded a Purple Heart for wounds received from torpedo
shrapnel” (S194). During the course of the flight physical

examination you underwent on 21 October 1971, you completed a
Report of Medical History in which you disclosed a history of
wounds to your lower right leg and a finger of your right hand.
In addition, you falsely reported that you did not have a history
of bed wetting, and denied a history of frequent or terrifying
nightmares, depression or excessive worry, loss of memory or

amnesia, and nervous trouble of any sort. You crossed out
questions on the form that pertained to a drug or narcotic habit,
excessive drinking and “homosexual tendencies”. It appears that

you were instructed to do so because answers to those questions
were no longer required, and the questions were removed from
later editions of the form that superseded the form you completed
on 21 Octobr 1971. Your contention to the effect that you crossed
out those entries to ensure that you did not violate the
silencing order does not appear to have any basis in fact. The
physician who conducted the flight physical interviewed you about
your disclosures in the Report of Medical History, and prepared a
“Clinical Record, Continuation of S.F. 88”, which contains, in
part, the following entry: “patient received scrapnel [sic]wound
temporary additional duty (TAD) in Vietnam on two occasions, the
periods of duty were not lengthy, and there is no indication in
available records that you participated directly in offensive
combat operations or that you came under enemy fire. During your
first period of TAD in Vietnam, you served as an analyst/reporter
from 29 December 1970 to 1 April 1971, with responsibility for
technical direction of procedures to be followed in processing,
analysis, filing, and disseminating data. During your second TAD
period, from 19 September to 6 November 1971, you monitored and
analyzed communications while aboard an aircraft operating in
support of combat operations in the Gulf of Tonkin area. You
received highly complementary performance reports during each of
those periods, when you were apart from your spouse.

Finally, the silencing order, as you have related it, was not
absolute since you could have requested an exception to the order
from the officer who gave you the order or from the former
commander of the Liberty. You failed to do so, even though you
faced the loss of your security clearance and opportunity to
remain in your chosen occupational field because of the disabling

effects of your service on the Liberty.

In view of the foregoing, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request. It is regretted that the circumstances of your case
are such that favorable action cannot be taken. You are entitled
to have the Board reconsider its decision upon submission of new
and material evidence or other matter not previously considered

by the Board. In this regard, it is important to keep in mind
that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an

official naval record, the burden is on the applicant to
demonstrate the existence of probable material error or
injustice.

Sincerely,

Li)

W. DEAN PF
Executive D

   
  

Enclosure

11