Text 5186, 200 rader
Skriven 2007-10-01 17:04:09 av John Massey (1:123/789.0)
     Kommentar till en text av BOB KLAHN (1:123/140)
Ärende: Dan Rathergate!
=======================
Citation 3, like Citations 1 and 2, is undated.  But, again, we can narrow the
time frame, since it was signed by John Lehman as Secretary of the Navy. 
Lehman served from February1981 to April 1987--long after Kerry left Vietnam,
long after he was separated from service, and during Kerry's tenure as a United
States Senator.

While it is not difficult to understand why Kerry apparently sought and
obtained a sanitized second version of his Silver Star citation, at first
glance it is not so easy to surmise why Kerry went after yet a third citation,
this time from Lehman (especially because the third citation is word-for-word,
in every important respect, the same as the second).  One theory dovetails with
what may well have motivated him, at least in part, to prefer Hyland's
imprimatur over Zumwald's.  Kerry, now a senator, may have been trying to
upgrade his award, issued by a couple of "mere" admirals, to one issued by the
Secretary of the Navy.

Correction of military records

Whatever the reason--and only Kerry and the Navy Department, and perhaps
Kennedy, know the truth--Hyland's Citation 2 and Lehman's Citation 3 would have
had to satisfy the requirement of Title 10, Section 1552, of the United States
Code, subsection (a) (1), which provides that "The Secretary of a military
department may correct any military record of the Secretary's department when
the Secretary considers it necessary to correct an error or remove an
injustice."  Subsection (b) provides that "No correction may be made . . .
unless the claimant . . .  files a request for the correction within three
years after he discovers the error or injustice.  However, a board . . . may
excuse a failure to file within three years after discovery if it finds it to
be in the interest of justice."(Emphasis added).

This means that in order to obtain Citation 2, Kerry would have had to prove
that there was an "error" in Citation 1 and/or that the existence of that
citation somehow constituted an "injustice."  Was the error in Citation 1 that
he had shot the enemy soldier in the back, or that it was somehow an injustice
to Kerry for the citation to say so?

As to obtaining Citation 3, there are two problems for Kerry.  First, since it
is virtually identical with Citation 2, there could be no error or injustice. 
Second, even if arguably there were, since the three-year statute of
limitations had passed by the time Lehman was in office, in order for Kerry to
obtain the correction, he would have had to prove that correcting Citation 2
was "in the interest of justice."

An Army officer formerly in the Pentagon's "awards and decorations" hierarchy
for many years, explains the amendment process for military citations this way:

In the Army, and up until the 1980's, decorations for valor and heroism as well
as service and achievement were published on general orders by the commander
vested with the approval authority to act in finality on a recommendation.  * *
*  The general orders contained a citation (reason) for the award. The
recipient of the decoration also received a certificate which contained the
citation or a certificate and a separate citation. The wording of the citation
whether it was on the certificate or a separate document was lifted or copied
from the general order.

The approved method of changing or correcting a general order once it had been
issued was in the form of an amendment and there was a prescribed format for
issuing an amendment on a later general order. The method voiding a previously
issued general order was through a revocation and it too had a prescribed
format. Most amendments were issued to correct personal data or dates on the
original general order, but seldom were amendments issued to correct the
citation or reason for the award. If the citation or reason for the decoration
as it appeared in the original general order required a change or correction,
it was accomplished through the issuance of an amendment. In this unlikely
event (amendment of the citation/reason), a new certificate containing the
corrected citation or a separate document containing the corrected
citation/reason would be issued to the recipient. Amendatory general orders
were almost always issued by the headquarters who issued the original general
orders, however, amendments could also be issued by a higher headquarters; most
often by Headquarters Department of the Army. This was especially true of
revocations.

It is difficult to comprehend the basis for administratively amending a
citation other than for correcting misspellings or transpositions of service
numbers or erroneous grades, but it could be done. But the citation/reason and
its factual content formed the basis for approval of that level of decoration.
Changing or correcting the factual content infers that the level of recognition
might have been in error, necessitates a review and calls into question the
original decision, so that is why changing or correcting a citation/reason is
almost never done.  (Emphasis added).

Questions for John Kerry

John Kerry is a lawyer, so he should be familiar with an important and useful
discovery tool: written interrogatories.  Here are some for him:

Citation 1

Who was asked to prepare the "Personal Award Recommendation," who prepared it,
when was it prepared, to whom and when was it submitted, and will candidate
Kerry either make the document available or authorize its release?

Who was asked to prepare the citation, who prepared it, when was it prepared,
and to whom and when was it submitted?  Is the version reproduced above the
only version?  If not, provide all details of prior versions.  Will candidate
Kerry either make all versions of Citation 1, and its accompanying orders,
available, or authorize their release?

Citation 2

Was there contact between Kennedy (or members of his staff, or others) with
Admiral Hyland (or members of his staff, or others) concerning the citation
prior to the latter's issuance of it?  If there was, provide details of all
such contacts.

Who was asked to prepare the citation, who prepared it, when was it prepared,
and to whom and when was it submitted?  Is the version reproduced above the
only version?  If not, provide all details of prior versions.  Will candidate
Kerry either make all versions of Citation 2, and its accompanying orders,
available, or authorize their release?

When Kerry applied for the corrected citation, what error or errors did he
claim existed in Citation 1, and what injustice did he cite?

Citation 3

Was there contact between Kerry (or members of his staff, or others) with
then-Secretary of the Navy John Lehman (or members of his staff, or others)
concerning the citation prior to the latter's issuance of it? If there was,
provide details of all such contacts.

Was there contact between Kennedy (or members of his staff, or others) with
then-Secretary of the Navy John Lehman (or members of his staff, or others)
concerning the citation prior to the latter's issuance of it? If there was,
provide details of all such contacts.

Who was asked to prepare the citation, who prepared it, when was it prepared,
and to whom and when was it submitted?  Is the version reproduced above the
only version?  If not, provide all details of prior versions.  Will candidate
Kerry either make all versions of Citation 3, and its accompanying orders,
available, or authorize their release?

When Kerry applied for the corrected citation, what error or errors did he
claim existed in Citation 3 and what injustice did he cite?

When Kerry applied for the corrected citation, in order to surmount the
three-year statute of limitations, what evidence did he produce to prove
correction was in the interest of justice?

Did Lehman sign Citation 3 himself, or does the document contain a machine
signature?

Miscellaneous

Did any other crewmen on Kerry's boat at the time of the Silver Star incident
receive any award(s) for that engagement?  If any did, set forth the
recipient's name(s), the award(s), the conduct justifying the award(s), who was
asked to prepare the "Personal Award Recommendation(s)," who prepared it, when
was it prepared, to whom and when was it submitted, and will such recipient(s)
either make the document(s) available or authorize its release?

If any other crewmen on Kerry's boat at the time of the Silver Star incident
received any award(s) for that engagement, who was asked to prepare the
citation(s), who prepared it, when was it prepared, and to whom and when was it
submitted?  Will such recipient(s) either make the document(s) available or
authorize its release?

Will Kerry request Tommy Belodeau, Mike Medeiros, Del Sandusky, Fred Short and
Gene Thorson to reveal, regarding their own awards for the Silver Star
incident, the conduct justifying the award(s), who was asked to prepare the
"Personal Award Recommendation(s)," who prepared it, when was it prepared, to
whom and when was it submitted, and ask such recipient(s) either to make the
document(s) available or authorize its release?

Will Kerry request Tommy Belodeau, Mike Medeiros, Del Sandusky, Fred Short and
Gene Thorson to reveal, regarding their own awards for the Silver Star
incident, who was asked to prepare the citation(s), who prepared it, when was
it prepared, and to whom and when was it submitted, and ask such recipient(s)
either to make the document(s) available or authorize its release?   Will Kerry
authorize former Navy Secretary John Lehman to disclose fully the facts and
circumstances surrounding his participation in the granting of Citation 3?

In obtaining Citations 2 and 3, did Kerry in any manner utilize Department of
the Navy procedures for the correction of records?  If so, provide all details
and copies of all documents submitted.  As to the documents, set forth who
prepared them, when they were prepared, and when and to whom they were
submitted.

*          *          *

Not one of these questions is beyond the ability of John Kerry to answer.  But
their existence places him on the horns of a dilemma.  If he stalls, or
obfuscates, or refuses to answer, continuing a pattern he has employed about
some of his more important records, the only reasonable conclusion is that he
has something to hide.  If he does answer, it is difficult to believe, given
what is already known, that he will answer fully and truthfully.

Either way, John Kerry may soon learn that three citations for a single Silver
Star is two too many.



Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, specializes in
federal appeals.  Erika Holzer, a lawyer and novelist, is co-author, with
Professor Holzer, of Fake Warriors: Identifying, Exposing and Punishing Those
Who Falsify Their Military Service.  A second edition is forthcoming with a new
preface entitled "John Kerry: The Ultimate Fake Warrior."

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