RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

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

								HEARING DESIRED: YES 

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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).

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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.

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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.

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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 White House tapes and wartime military message traffic.  This evidence indicates that President 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 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 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 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.

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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.

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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 ---- 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.

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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.

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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.

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 APPLICANT, 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.