RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-03977

  							COUNSEL:  

APPLICANTS:  FAMILY 			HEARING DESIRED:  YES

APPLICANTS REQUEST THAT:

The deceased service member’s dates of service be corrected to show he served on active duty as the Seventh Air Force Commander (7th AF/CC) from 29 Jul 71 to 29 Jul 74 and that the previous Board recommendation to the Secretary of the Air Force (SECAF) to nominate him for advancement on the retired list to the grade of general be renewed.  

By amendment, in response to a SAF/GCI advisory opinion rendered in this case, the applicants, through counsel, modified the original request and now request the decedent’s records be corrected to reflect that he was continued in his assignment as the 7th AF/CC until 31 Jan 73, or the last date on which the Air Force retained the authority to approve his disability retirement without Secretary of Defense (SECDEF) approval.  

APPLICANTS CONTEND THAT:

Given what is known today, it is certain that the decedent would have continued to serve as the 7th AF/CC and remained on active duty until the end of his normal tour of duty in Vietnam.  The entire focus of the press and Congress would have been on the Nixon administration, as it should have been, rather than on the decedent.  The AFBCMR correctly assessed the decedent’s role in this unfortunate episode, greatly influenced by the politics of the day, and recommended that he be recommended for advancement on the retired list to the grade of general (O-10), instead of major general (O-8).  

The Webster Report, without any consideration of his overall performance or any discussion of the significance of any shortcoming on his part, jumped to the conclusion that the decedent’s performance in the grade of general (O-10) was unsatisfactory.  This conclusion is based solely on the decedent’s alleged lack of foresight in anticipating that his interpretation of the Rules of Engagement (ROE) might cause reporting problems for his subordinates.  While the findings are consistent with and supportive of the Board's original findings when it recommended the decedent be advanced on the retired list to the grade of general (O-10), the Webster Report’s recommendation (retired in the grade of lieutenant general (O-9) is not.  The Webster Report recommendation would simply perpetuate the injustice done to the decedent in 1972 and the stigma to his name has suffered ever since.  

The Webster Report specifically recognized that North Vietnamese changes in acquisition and targeting of US aircraft (the netting of Ground Controlled Interception (GCI) radar with missile launch radar) justified changes in the interpretation and application of the ROE for airstrikes prosecuted.  This radar netting, coupled with encouragement from his superiors to interpret the ROE "liberally," formed the basis for his belief, as supported by the Webster Report's conclusion that he was acting with authority.

Where the Webster Report falls down is in its recommendation.  Unfamiliar with the correction of records, the Report fails to recognize, consider or appreciate the factors that go into fashioning appropriate relief.  The facts of this application cry out for full correction of the record.  This includes recognizing that the decedent was wrongfully and mistakenly removed from his position and forced to retire.  His overall performance as the 7th AF/CC has never been criticized or questioned.  By all accounts, he was accomplishing the 7th AF mission and was following the President and his superiors' directions at a critical juncture in the Vietnam War.  The injustice done to him should not be perpetuated by half measures.  The record should be corrected to show that he served out a full assignment as the 7th AF/CC and he should be posthumously advanced on the retired list to the grade of general.  

In support of the appeal, counsel provides a copy of the corrected Independent Review, dated 28 May 15; a copy of the Secretary of the Air Force General Counsel (SAF/GCI) memo, dated 1 Jul 15; a copy of the AFBCMR Record of Proceedings, dated 30 Oct 09; a copy of the SECAF’s Directive, dated 29 Oct 09; a copy of a declaration from the former General Counsel to the U.S. Senate Committee on Armed Services, dated 11 Jun 08; comments in response to the Webster Report; and various other supporting documents.  

The applicants’ complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The decedent initially entered the Army Air Corps on 21 Jun 40.  

On 1 Aug 71, the decedent was appointed to the (temporary) grade of general and assigned as the 7th AF/CC.  

Based on allegations that he conducted unauthorized raids against North Vietnam between Nov 71 and Mar 72, in violation of the 1968 ROE and that he had authorized the falsification of reports, the Air Force Chief of Staff (CSAF) offered him the option of reassignment at his permanent grade (major general) or retirement.  On 31 Mar 72, the decedent applied for retirement.

On 5 Apr 72, a Medical Evaluation Board (MEB) was convened based on decedent’s health concerns; the MEB then referred the decedent to the Physical Evaluation Board (PEB).  

On 6 Apr 72, the PEB recommended he be permanently retired with a 70 percent compensable rating, and on the same date, the Air Force Personnel Board concurred with the findings and recommendations.  

Although nominated by the President for retirement in the grade of lieutenant general (0-9), in a vote of 14 to 2, the Senate Armed Services Committee (SASC) declined to retire him in that grade.

The decedent retired by reason of physical disability in the grade of major general (O-8) effective 7 Apr 72, under Title 10, United States Code, Section 1201 and completed a total of 32 years, 6 months, and 14 days of active service.

On 6 Dec 72, the SECDEF notified the Service Secretaries that through collaboration with the Surgeon General, the Assistant Secretary of Defense, Health and Education, would closely monitor and assure that guidelines and eligibility for fitness for duty determination be clearly stated and properly promulgated.

On 17 Sep 08, the applicant, through counsel, submitted an application to the Air Force Board for Correction of Military Records (AFBCMR) to have the decedent posthumously nominated to the grade of general (0-10).  

On 30 Oct 09, after a thorough review of the evidence of record, including an affirmative recommendation from AF/JAA, the AFBCMR recommended to the SECAF that the decedent be nominated for advancement on the retired list to the grade of general.  

In Aug 10, the President nominated the decedent for advancement on the retired list to the grade of general.

In Dec 10, the Senate failed to vote the nomination out of committee prior to adjournment and returned the nomination to the President.  

On 20 Dec 10, the Senate Armed Services Committee (SASC) chairman and ranking member asked the Secretary of Defense (SECDEF) to consider additional information not considered by the AFBMCR before the SASC would act on the nomination.  The Under Secretary of Defense (Personnel & Readiness) (USD(P&R)) referred the matter to the SECAF requesting his recommendation concerning the matters presented by the SASC.  

In its letter to the SECDEF, the SASC specifically noted that they had reviewed the Board's decision and believed that additional work needed to be done to assemble a complete, historically accurate record regarding the decedent's authority under the ROE in effect in 1972 to conduct preplanned air strikes, his culpability for falsified official reports, the justification for his relief from command and ultimate retirement in the grade of major general, and to reconcile apparent factual conflicts.

On 24 Jun 11, the SECAF appointed the Honorable William H. Webster to conduct an independent review of the available evidence and to investigate the justification for the decedent’s relief from command and retirement in the grade of major general.  Ultimately, the report was to provide a recommendation on whether to support the posthumous nomination of the decedent to the grade of general.

On 28 May 15, Judge Webster submitted his report.  The report found that, on 5 Apr 72, the SECAF determined the decedent should be retired at the grade of lieutenant general rather than his last grade, general, for three reasons: (a) his eight months as a general fell short of the two year time-in-grade requirement established by Air Force policy; (b) his service as a general was not satisfactory; and (c) his performance as a lieutenant general was outstanding.  Pursuant to the relevant statutes in effect in 1972, a general or lieutenant general could be retired at that grade only at “the discretion of the President…by and with the advice and consent of the Senate.”

Judge Webster, after reviewing the historical record, the ROE and statutes in effect in 1971-1972, the documentation and other information provided by the decedent’s family during several in-person meetings, determined: (1) Most, if not all of the air strikes at issue were at least likely orally and implicitly authorized by the decedent’s superiors, even though arguably not in accordance with the published ROE on some occasions; (2) The decedent’s statements likely caused reports from personnel under his command to be falsified, but he was not legally culpable for the falsified reports; nonetheless he bore some responsibility for the falsified reports; and (3) The decedent was removed from command and retired in a reduced grade because senior Air Force officials believed he exceeded his authority in ordering the airstrikes and that his actions triggered the falsified reports.  

The decisions made in 1972 by the Air Force and Senate, in particular, regarding the decedent’s nomination were not informed by the more complete historical record available today.  With the benefit of the more complete historical record, Judge Webster recommended that the decedent should be retired in the grade of lieutenant general because of his responsibility for serving as the impetus of the false reporting (See the complete Webster Report at Exhibit B).

On 15 Aug 15, the decedent’s family, through counsel submitted a request for consideration to the BCMR to correct the decedent’s dates of service to show that he served on active duty as the 7thAF/CC from 29 Jul 71 to 29 Jul 74 and for reconsideration that the previous Board recommendation to the SECAF to nominate him for advancement on the retired list to the grade of general be renewed.  In their request, the applicants called into question much of the Webster Report’s findings related to the amount of relief (advancement on the retired list to lieutenant general (O-9) versus general (O-10)) that is appropriate given the injustice suffered by the decedent.  

On 23 Dec 15, a military member from AF/JA and the Air Force Senior Historian, who were assigned to the Judge Webster independent review, provided a point-by-point analysis of the decedent’s family response to the Webster Report.  Noting the details discussed clearly indicate the family's criticisms of Judge Webster's Independent Review and their objections are based on assumptions that go far beyond the existing evidence and call for the Review to speculate on how major players at the time would have reacted if they would have had the benefit of hindsight and the perspective that the White House transcripts (unavailable in l972) provided on President Nixon's behind-the-scenes conversations.  However, the analysis also indicates that none of the family's objections negate the factual accuracy and objectivity of the Independent Review (See the complete analysis at Exhibit B).

On 3 Feb 16, the SECAF accepted the Webster Report and correspondence received from the applicant, dated 15 Aug and 28 Aug 15, and the Air Force Analysis, dated 23 Dec 15.  

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.

AIR FORCE EVALUATION:

The Secretary of the Air Force General Counsel (SAF/GCI) did not provide a recommendation to the Board.  However, they did provide information relevant to the specific questions pertinent to the issues of the applicant’s request.  

Pursuant to the Board’s request, SAF/GCI noted the SECAF has accepted the Webster Report.  The applicants have characterized the report as new evidence.  Even if the Board does not conclude that the report includes new evidence, SAF/GCI is satisfied that the Webster Report is a "military record" as the term is defined in 10 U.S.C., §1552(h) and may entertain an application to correct it or use the report as relevant information to support correction of the decedent’s records otherwise (e.g., his dates of service).

To better understand the advisory on these threshold questions, the Board will need to reach its own conclusions about the nature of the report and their use of it.  Furthermore, SAF/GCI concludes that the Board may consider the report as accepted by the Secretary; however, SAF/GCI states that they see nothing new in the Webster Report to inform a decision on the appropriate dates of service (and the issue and circumstances of his removal are not new) and notes given Judge Webster's recommendation, it is not clear why the applicants would invite the AFBCMR to reconsider its earlier recommendation.  Additionally, SAF/GCI felt the Board could consider the application as either a reconsideration request or as a new request for correction of a military record.  SAF/GCI also clarified the SECAF is not acting further, in the sense of taking an action, on the decedent's nomination, rather the Secretary is answering an open inquiry initiated by the SASC, presented to the Air Force by USD(P&R), which she would do whether there was another AFBCMR application or not.  If the Board were to act on the current application, it would not preempt the SECAF from providing further recommendations on the nomination now pending.  SECAF has deferred further action on the decedent's nomination until the Board has acted on the request for reconsideration.  Therefore, in providing this advisory, SAF/GCI also recommend that the AFBCMR proceed as expeditiously as possible in considering the reconsideration request.

A complete copy of the SAF/GCI evaluation is at Exhibit C.

AFHRA/DR recommends denial of the applicant’s request that “the AFBCMR amend the decedent’s service record to show that he served on active duty as Commander [Seventh] Air Force from July 29, 1971 to July 29, 1974.”  AFHRA/DR notes that the decedent served as the 7th AF/CC from 29 Jul 71 until 7 Apr 72, when General John W. Vogt, Jr., assumed command.  Lieutenant General Timothy F. O’Keefe replaced General Vogt on 1 Oct 73 and served until 30 Jun 75.  As the Air Force General Counsel notes in Item b(3) cited above, “if the AFBCMR were to correct the decedent’s record as requested, it should consider that he could not have served as the 7th  AF/CC and retained the grade of general after 30 Sep 73.”  Furthermore, to amend the record to show that the decedent served as the 7th AF/CC at any point after 7 Apr 72, when General Vogt replaced him, would call into question the legality of any command decisions or actions, such as those pertaining to the Uniform Code of Military Justice (UCMJ), made by General Vogt and Lieutenant General O’Keefe.

AFHRA/DR recommends granting the applicant’s additional request “that the AFBCMR renew its recommendation to the SECAF that the decedent be nominated for advancement on the retired list to the grade of general and such other relief as is necessary and appropriate to correct the record.” 

AFHRA/DR notes the “renewal” the applicant requests is based on the Board’s 2009 decision.  Based on their review of that decision, the Air Force General Counsel’s comment in its 10 Mar 16 memorandum to the AFBCMR that, had this request not included the 7th AF/CC issue, [SAF/GCI] “would have advised the AFBCMR that it should not revisit its recommendation the decedent be nominated to retire in the grade of general,” his advancement on the retired list to the grade of general (O-10) is an appropriate course of action.  Given the evidence that 1) the decedent had implicit authorization to order the air strikes in question and 2) that he did not explicitly direct his subordinates to falsify reports and, in fact, ordered the falsification to cease when he learned of it, AFHRA/DR does not concur with Judge Webster's statement that the “grade of lieutenant general was the highest grade in which the decedent served satisfactorily.”

A complete copy of the AFHRA/DR evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 27 Jun 16 response to the advisory, counsel requests the decedent’s son and daughter be substituted for the applicant and personal representative on the application.

In a 112 page brief, dated 29 Jun 16, under Enclosure A, counsel notes under General comments, in regards to the Air Force Analysis, that it appears the authors had taken the family’s response to the Webster Report personally, perhaps as criticism of their own advice or performance, since they were the legal and historical advisors to Judge Webster.

Second, the response expressed disappointment with a report that took nearly four years to complete, but which developed scant new evidence; failed to answer the SASC's specific requirements in an organized fashion; contained no interviews of living witnesses, as specifically requested; and added little to the Board's 2009 findings.  It took Judge Webster over 41 months to arrive at the same conclusions the Board and the Secretary of the Air Force reached in 13 and a half months.  

On the two critical issues; the authority for the questioned missions and the alleged falsification of the OPREP-4 reports, the family, the Board (in its 2009 recommendation), and Judge Webster appear to be in substantial agreement that the decedent had authority to order the questioned missions and he did not direct or condone the falsification of any reports.  Much of the evidence supporting these findings is contained in the Nixon White House tapes, documents declassified long after 1972, the Wilson IG Report and the ROE, none of which were made available to the Senate when it acted upon the decedent's retirement grade in 1972.  Counsel states the failure to provide such critical information to the Senate (not to mention the House of Representatives, the press and the public) constituted a grave injustice to the decedent.  It is the remedy – the grade to which the decedent should be advanced on the retirement list, and the dates of his service - that remains to be determined.

The family questions whether Judge Webster made full use of the evidence to draw logical and permissible inferences to establish the magnitude of the injustice suffered by the decedent and the proper equitable remedy.  When all the facts and circumstances are considered, to include the White House conversations dealing with the decedent’s matter, the decedent's reputation and honor were sacrificed for political expediency.  The Administration’s decisions to withhold the truth destroyed the decedent.  The remedy, which cannot be done in half measures, needs to fully restore his honor and reputation.  It is clear the decedent never ordered, intended or condoned inaccurate reporting.  Viewed, not as a cover up to unauthorized bombing, as they were in 1972, the OPREP-4s had little, if any, significance to the war effort.  In proper context, the false reports (if any) that occurred were the result of shortcomings in a computer input form, the OPREP-4.

In addressing Judge Webster's recommendation, the analysis begins with a concession; Judge Webster did not consider that the decedent's subordinates never brought to his attention the data input problem caused by the OPREP-4's format.  Never having seen an OPREP-4, the decedent was unaware of the problem.  To have complete, real time mission data, special action reports (SPECATS), containing correct mission information were prepared, forwarded and disseminated.  SPECATS were forwarded up the chain of command and ultimately to the White House.  To the extent he did not consider all facts and circumstances; Judge Webster's recommendation is incomplete and flawed.  Furthermore, the Webster Report contains no analysis of OPREP-4 importance or purpose.  The forms took on significance in 1972 because they were viewed as an attempt to "cover up" strikes outside the ROE.  But, under the circumstances as now known, there were no unauthorized missions and thus there was nothing to "cover up."  Neither the Webster Report nor the analysis mentions the OPREP-4 inaccuracies ever mislead anyone up the chain of command or influenced any internal decision within the command.  

To summarize, the OPREP-4s took on significance only if one believed them to be tied to a cover up of the questioned missions.  Everyone now agrees that there was authority for the missions.  The decedent's statement to report reaction was an exhortation to correctly report missions based on his interpretation of the ROE.  At the time he made the statement, and until the IG showed him an OPREP-4, he had no knowledge of the form's existence or any problems associated with them.  Until 10 Mar 72, when the IG told the decedent there was a problem with OPREP-4s, there was no reason for the decedent to have anticipated a reporting issue or a need for further explanation of his interpretation of the ROE.  Everything the decedent saw was reported correctly and forwarded up the chain of command.  Judge Webster's view of reasonableness is one of hindsight (the decedent's later Congressional testimony) driving a result, when the reasonableness of the decedent's actions should be assessed based on what he knew in the period between 23 Jan 72 and the IG's 10 Mar 72, briefing.  

The decedent’s acceptance of responsibility was the traditional acceptance of responsibility - I accept responsibility for everything that takes place in my command.  The decedent was a traditional officer.  Although he probably would have done so in any event, at the time he testified he had to have been acting under the pressure of General Ryan's threat to take action against his subordinates.  He consistently maintained that he never intended that false reports be filed.  In fact, his 23 Jan 72 statement in the operations center was to make certain the facts surrounding that mission were reported accurately and consistent with his interpretation of the ROE.  His acceptance of responsibility was the traditional acceptance of responsibility of a commander, not personal acceptance of responsibility.  Moreover, removal from command and demotion from general to major general was a greatly disproportional reaction and not based on the true facts.

Under Enclosure B, counsel notes that they agree with the SAF/GCI’s initial conclusion that the applicant’s submission may be considered as a request for reconsideration or a new application; however, they note two statements that need further clarification.

In regards to the nomination, the advisory statement that the nomination is on hold is inaccurate, because, (1) when the 111th Congress adjourned and the Senate returned the nomination to the President, that ended the nomination; (2) the SAF/GCI advisory implies that action on the nomination is dependent on the SECDEF’s response to the SASC; however, more accurately, the SECAF should respond to the SECDEF and make a recommendation based on the Webster Report and the Board’s recommendation.  Undoubtedly, the Board's recommendations to the SECAF, and the rationale it expresses for a new nomination and the grade to which the decedent should be advanced, will be critical to the initiation of a new nomination process.

Counsel notes subsequent to the applicant’s submission to the Board, a National War College professor, published a monograph and asks the Board to consider the monograph, not necessarily for its conclusions, which are consistent with the Webster Report and the Board's 2009 findings, but because of its identification of new evidence that was not reasonably available to the applicant.  In addition, the submission specifically addresses the decedent's dates of service.  Given the truth, full and fair relief calls for an extension of his dates of service.  This would correct the historical record and more fully restore the decedent to the place in history he deserves.  The extension of service dates is one of the few corrections that can be implemented internal to the Air Force.  No one knows what the SECDEF, President or Senate will decide in regard to the decedent's retired grade.  While the Board can only recommend corrections to his retired grade, extension of service dates is a correction within the SECAF's authority.

The advisory expresses concern that, if the decedent's service dates are changed, there "could be an adverse impact" to the decedent’s widow.  The advisory sets out two concerns.  

	1)  The approval rules for general officer disability retirements were changed, as a matter of DoD policy in 1973, to require SECDEF approval upon the recommendation of OSD Health Affairs.  

2)  The advisory points out that, in Sep 73, the 7th AF/CC position reverted to a three star position.  The potential for a detrimental impact to the decedent’s widow would be if the decedent's dates of service were extended and he was not retired for disability on the later date, potentially affecting the computation of the decedent's retired pay and his widow’s survivors benefit plan (SBP) payments.

The advisory fails to mention that the Board could recommend that the decedent be retired on a later date for disability and that his retirement be forwarded to SECDEF (through OSD Health Affairs), and if approved, would more than likely eliminate any adverse monetary impact.  If there is monetary impact, there is a provision for waiver of debts in deserving cases.  If the decedent is ultimately advanced to the grade of general, even if he is not retired for disability, the adverse impact would be minimal.  The problem with these remedies is that they depend on the actions of others: nomination and confirmation in a higher grade, SECDEF approval of a disability retirement after 31 Jan 73 and waiver of erroneous payments, the approval authority for which could range from the SECAF to the Director of OMB, depending on the amount at issue.

To moot the issues raised in the advisory and to eliminate the need for approvals outside the SECAF's purview, the decedent’s widow consents to modify her submission to extend the decedent's dates of service as 7th AF/CC to 31 Jan 73, or the last date on which the Air Force retained the authority to approve his disability retirement without SECDEF approval.  This would eliminate the potential adverse impact to the decedent’s widow and place the decedent's service within the time during which 7th AF/CC was designated as a position of importance and responsibility requiring an officer in the grade of general.  At the same time, it would correct the wrongful forced retirement of the decedent as a result of the untrue allegations against him.  This is important to the decedent’s widow as it helps to restore the decedent's honor and eliminate the stigma she and the other members of the family have borne for over 40 years.

In addition, counsel provides comments on each of the questions addressed in the SAF/GCI advisory.  They specifically addresses the conclusion reached in the advisory that the decedent was not relieved of command of 7th AF until his retirement, on 7 Apr 72.  Had the decedent been relieved of command prior to his disability retirement, he could not legally have been retired with the retired pay of a general (0-10).  It was the provisions of the disability retirement statute that allowed him to be paid in retirement in the grade of general, the grade he held on the date of his retirement.  When asked whether he retired for health reasons or the threat of reassignment and demotion, the decedent testified repeatedly that he retired because of General Ryan's intent to remove him from command and demote him, not voluntarily for health reasons.  It is also clear that the decedent viewed General Ryan's threats as out of proportion to the allegations and unfair.  While counsel agrees with the advisory that General Ryan lacked the authority to relieve the decedent from his position of importance and responsibility, they differ as to whether Secretary Laird possessed the authority to do so.  However, because the decedent was not technically relieved of command until his retirement, the difference of opinion is of no consequence.  

In addition, counsel notes that it is not unusual for previously undiagnosed or undertreated medical conditions to be discovered during separation physicals.  Had the decedent not undergone a retirement physical he would have returned to 7th AF.  

In Enclosure C, counsel disagreed with the AFHRA’s first opinion that the decedent’s service dates should not be changed noting the Services’ Boards frequently change service dates to make corrections or remove injustices; however, counsel agreed with the ARHRA’s second opinion that the decedent be nominated for advancement on the retired list to the grade of general, contrary to the Judge Webster finding.  

In conclusion, counsel notes that they are in general agreement with the advisory except as noted.

Complete copies of the applicants’ rebuttals, with attachments, are at Exhibit F.  

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  The instant application could be viewed as either a new filing or a request for reconsideration.  In light of Judge Webster’s report, which can be can be construed as “newly discovered relevant evidence” per Paragraph 6 of AFI 36-2603, the instant application will be deemed a reconsideration request of the previous filing (BC-2008-03624). 

4.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting partial relief.  After a thorough review of the complete evidence of record, we remain convinced the decedent should be posthumously advanced on the retired list to the grade of general (O-10) in accordance with our original recommendation.  The Senate Armed Services Committee (SASC) declined to act on the decedent’s nomination, noting their view that this Board did not have the benefit of a complete historical record when making its original recommendation.  

As a result, then Secretary of the Air Force, Secretary Donley, asked the Honorable William H. Webster to conduct an independent review into the facts and circumstances surrounding the decedent’s relief from command and retirement, including an analysis of his authority to conduct pre-planned airstrikes under the rules of engagement (ROE) between Nov 71 and Mar 72, and his culpability for falsified official reports.  While the Board noted that in the Senate Armed Services Committee letter to SECDEF on 20 Dec 10 requested the Department establish procedures to ensure living witnesses to the events were afforded the opportunity to provide evidence and comment, the Board determined Judge Webster’s review was sufficiently comprehensive as it was supported by Air Force-appointed legal advisors and historians and the review relied upon all available relevant information from the historical records (e.g., testimony, official records, and taped conversations), which included the full AFBCMR case file, all documentation considered by the House and Senate Armed Services Committees in connection with the decedent’s nomination prior to his retirement, all official testimony concerning this issue before the HASC and SASC in 1972, relevant Air Force historical documents, and relevant documentation in possession of the decedent’s family.  

After a thorough review of the tome of available evidence, Judge Webster concluded the well-settled rules of engagement (ROE) did not accurately capture the complete scope of the decedent’s authority to conduct the airstrikes in question as the airstrikes in question were at least likely orally and implicitly authorized by his superiors.  After a thorough review of Judge Webster’s Report, the decedent’s family response thereto, the Air Force Analysis of said response, and the advisory opinion from the Air Force Historical Research Agency (AFHRA), we agree.  We note Part II of Judge Webster’s report regarding the timeframes of the specific airstrikes in question and the evidence supporting the decedent’s belief that the respective strikes were proper under the ROE or otherwise authorized.  In our view, these findings support this Board’s previous conclusion that the circumstances and events which led to the decedent’s removal from command and subsequent retirement were based on an incomplete record.  

With that, what remains unsettled is what constitutes full and fitting relief in this case.  We have reviewed the evidence as presented in this case and while we note the Webster Report recommends the decedent’s records be corrected to reflect he retired at the grade of lieutenant general (O-9), we are not convinced the decedent did not serve satisfactorily in the grade of general (O-10).  In this respect, we note that Judge Webster found the decedent was not culpable in the falsification of reports in the aftermath of the airstrikes in question.  While Judge Webster found that the decedent bore some responsibility in the falsification of said reports, we are not convinced it is reasonable to expect that the decedent should have anticipated his subordinates would chose to falsify reports to fit the published ROE, rather than seek clarification of his intent through the chain of command.  Additionally, after being briefed by the Air Force Inspector General, the decedent took swift actions to correct the misinterpretation of his instructions which led to the false reporting.  In view of the above and based on a totality of the evidence presented, while it appears the falsification of the mission reports is the basis for the Webster Reports recommendation for retirement in the grade of lieutenant general (O-9), we agree with the opinion and recommendation of the AFHRA and adopt its rationale as the basis for our conclusion the decedent served honorably in the grade of general (O-10). This is consistent with the former AFBCMR decision and we believe the applicants have sustained their burden of establishing the existence of an error and an injustice in the decedent's records.  Therefore, we recommend the decedent’s records be corrected to the extent indicated below.  However, as noted in the previous application, monetary award through the correction of records process is not automatic and the applicants will only be entitled to such financial adjustments if, as a result of the corrections to the decedent's records, such compensation is warranted in order to make the decedent'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.

With regard to the applicants’ request to correct the decedent’s dates of service, we agree with the AFHRA recommendation and furthermore conclude the decedent’s record confirms that his disability retirement date was entirely proper as he had a medical condition that rendered him unfit for continued service at the time of his retirement, regardless of whether or not the decedent felt compelled to retire at that time.  Therefore, we found no new evidence to reflect the decedent’s disability retirement date was an injustice or an error.  Accordingly, we believe the relief described above is full and fitting and recommend the decedent’s records be corrected to the extent indicated below.  

5.  The applicants’ 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 the DECEDENT 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 disability retired as the 7th Air Force Commander 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-2015-03977 in Executive Session on 24 Oct 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03977 was considered:

	Exhibit A.  DD Form 149, dated 15 Aug 15, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Records,
  			  the Webster Report, and supporting documents.
	Exhibit C.  Memorandum, SAF/GCI, dated 10 Mar 16.
	Exhibit D.  Memorandum, AFHRA/DR, dated 4 May 16.
	Exhibit E.  Letter, AFBCMR, dated 11 May 16.
	Exhibit F.  Applicants’ Rebuttals, dated 27 and 29 Jun 16.