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Kerry used the Judiciary to upgrade his Discharge??

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SBD
Admiral

Joined: 19 Aug 2004
Posts: 1022

Posted: Sat Jun 18, 2005 5:05 pm Post subject: Kerry used the Judiciary to upgrade his Discharge??

I followed the steps below to reach the conclusion that it quite possible that Kerry used the Judiciary to upgrade his Discharge!!

SBD

Quote:

Department of Defense DIRECTIVE NUMBER 1332.16 March 10, 1970
SUBJECT: Dropping Retired Military Personnel from the Rolls of the Armed Forces

References:
(a) DoD Directive 1332.16, subject as above, March 26, 1960 (hereby canceled)
(b) Sections 1161(b), and 6408(b) of title 10, U.S.C.
(c) Subchapter II, Chapter 83 of title 5, U.S.C.
(d) DoD Instruction 1320.4, Military Officer Actions Requiring Presidential, Congressional, or Secretary of Defense Approval," May 29, 1968

Department of Defense INSTRUCTION NUMBER 1320.4 March 14, 1995
SUBJECT: Military Officer Actions Requiring Approval of the Secretary of Defense or the President, or Confirmation by the Senate
References:
(a) DoD Instruction 1320.4, "Military Officer Actions Requiring Approval of the President or Secretary of Defense or Confirmation by the
Senate," October 29, 1981 (hereby canceled)
(b) Title 10, United States Code
(c) United States Constitution, Article, Section II, Clause l and Clause 2
(d) DoD Directive 1320.12, "Defense Officer Promotion Program," February 4, 1992

SUPREME COURT OF THE UNITED STATES
No. 98-347
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. JAMES T. GOLDSMITH
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES [May 17, 1999]

Respondent argues nonetheless that seeking BCMR review in his case would have been futile (especially in light of his life-threatening illness) since BCMR’s lack authority to declare statutes unconstitu-tional, cannot consider records of courts-martial and related administrative records (with two inapplicable exceptions), and are generally “ ‘unresponsive, bureaucratic extensions of the uniformed services,’ ” Brief for Respondent 16 (quoting H. R. Conf. Rep. No. 104-450, p. 798 (1996)).

American Law Reports Federal
© 1989 The Lawyers Co-operative Publishing Company
© 2004 West Group - Updated September 2001
Annotation
JUDICIAL REVIEW OF MILITARY ACTION WITH RESPECT TO
TYPE OF DISCHARGE GIVEN MEMBER OF ARMED FORCES
Colleen R. Courtade, J.D.
92 A.L.R. Fed. 333

The Navy could not issue a discharge under conditions other than honorable to an inactive reservist for alleged subversive conduct engaged in while on inactive status without affording the reservist the opportunity to confront the witnesses against him, as the constitutional provisions which partially exempt the military from the procedural requirements of the Bill of Rights are neither arbitrary nor total, and the exigencies of military life did not, under the circumstances, warrant such action, the court held in Bland v Connally (1961) 110 App DC 375, 293 F2d 852.
A reservist, separated from active Navy duty under honorable conditions, was charged with being a member of the Communist Party and other allegedly subversive groups. Following a hearing at which the Navy offered no evidence in support of its allegations, a local security board recommended discharge under conditions other than honorable. The board's findings and recommendations were reviewed and affirmed without material change by the Bureau of Naval Personnel Security Review Board, and the discharge was issued. Both the Navy Discharge Review Board and the Navy Board for Correction of Naval Records declined to change the character of the discharge to honorable. Initially noting that no statute expressly vests in the Secretary of the Navy authority to issue punitive discharges to inactive reservists on the basis of secret information relating to his associations subsequent to separation from active duty, and assuming the Navy's right to separate any member for any cause and without hearing through a nonderogatory "honorable" discharge, the court explained that what was challenged in the instant suit was the right of the service to introduce the element of punishment or labeling into the involuntary separation, by characterizing the discharge derogatorily. Where governmental action seriously injures an individual, and the reasonableness of that action depends on factual findings, those findings must be disclosed to the individual so that he is afforded an opportunity to prove them untrue, the court said.

The Secretary of the Army lacked the authority to issue a reservist a less-than-honorable discharge for refusing to discuss alleged derogatory remarks made about the United States Army and Government while on active duty, at least without permitting the reservist the opportunity to confront his accusers, the court held in Davis v Stahr (1961) 110 App DC 383, 293 F2d 860. A serviceman honorably separated from active duty and transferred to the Army reserve was issued a less-than-honorable discharge after being charged with subversive activity. Upon being informed of the charges, the serviceman demanded a hearing before a Field Board of Inquiry, with confrontation of any and all persons whose testimony or statements might be used against him. The board was convened, but the government presented no witnesses, and the serviceman was issued an undesirable discharge. The serviceman sought relief in the federal court after his applications to the Army Discharge Review Board and the Army Board for Correction of Military Records for an honorable discharge were denied. After eliminating as legitimate grounds for the less-than-honorable discharge the serviceman's alleged associations prior to induction into the service and, concurrently, alleged failure to disclose such conduct, the court noted that all that remained to support the discharge was the allegation that the serviceman made derogatory remarks about the Army and government while on active duty, and that he failed to discuss those remarks when questioned about them during an interrogation held after his transfer to the inactive reserve. That ground was not a proper one on which to base the discharge, at least without permitting the serviceman to confront his accusers, the court said. In a case such as the instant case, the court said, where the denial of the right of confrontation can be so prejudicial, any cancellation of that right must come from Congress and must be explicit.

Read the entire document and see how the Judiciary has ultimate say, even over the Secretary of the Navy and has granted lots of upgraded discharges claiming ultimate jusisdiction.
92 A.L.R. Fed. 333

A third avenue open to former service members wishing to avoid or upgrade other than honorable discharges is
judicial review. It has been judicially recognized that, under certain circumstances, neither the statutory provision
making court-martial determinations final (10 U.S.C.A. § 876) nor the provision making administrative review
boards' determinations final (10 U.S.C.A. § 1552) precludes judicial relief ( §§ 3 and 4 ). Service persons
seeking to avoid or upgrade less-than-honorable discharges have thus brought suit in federal court, premising
claims on the violation of various constitutional rights, such as the right to effective assistance of counsel ( §
10 ), the right to confront witnesses ( § 11 ), the right to a hearing ( § 12 ), and assorted other alleged
constitutional violations ( § 13 ). In addition, suits for relief have been based on claims that a particular branch
of the armed services, in issuing the disputed discharge, failed to comply with applicable statutes or regulations (
§ 14 ), that the administrative review boards' actions were arbitrary or capricious ( § 15 ), that the disputed
discharge was based on material beyond the service person's military record ( § 16 ), or that various other
nonconstitutional errors were committed ( § 17 ).

Last edited by SBD on Tue Jun 21, 2005 9:54 am; edited 1 time in total

The bandit
Commander

Joined: 15 May 2004
Posts: 349

Posted: Sun Jun 19, 2005 10:51 pm Post subject:

Last thing Kerry would want is to draw attention to his less then honorable discharge by requesting judicial review since that leaves him vulnerable to prying eyes!

Guest

Posted: Mon Jun 20, 2005 3:53 am Post subject:

The bandit wrote:

Last thing Kerry would want is to draw attention to his less then honorable discharge by requesting judicial review since that leaves him vulnerable to prying eyes!

Exactly, but that is what I would love to happen to that treasonous traitor. It just seems so wrong that he should be allowed to get away with all he has done, but so far, that is exactly what has happened for thirty years plus. Well, well, it will catch up to him and I pray long before he is on his death bed. This has gone unresolved for too long. Great information SBD! Wink

SBD
Admiral

Joined: 19 Aug 2004
Posts: 1022

Posted: Mon Jun 20, 2005 11:53 am Post subject:

The bandit wrote:

Last thing Kerry would want is to draw attention to his less then honorable discharge by requesting judicial review since that leaves him vulnerable to prying eyes!

You are assuming the case was in Kerry's name which obviously he would not do. We all know Kerry very well at this point and we know he doesn't do anything out of the goodness of his heart since he has none. So, why would Kerry become Co-Founder of Vietnam Veterans of America??

Well for one thing, it puts a barrier between "Kerry" and any lawsuit filed on behalf of Vietnam Veterans. There are numerous Lawsuits with Vietnam Veterans of America filed during that time. The only problem is I need to know the reason he received his dishonorable discharge.

For example, we have all heard that Kerry admitted he smoked pot at that time. Is it possible that he was discharged for that reason which would have been easily proven with a drug test?

If so, then he would have been part of the "Class" that would have had their dishonorable discharges to "honorable" by the decision in "Vietnam Veterans of America" vs "Secretary of the Navy".

VIETNAM VETERANS OF AMERICA, et al., Plaintiffs, v. SECRETARY OF THE NAVY, Defendants

Civil Action No. 85-3208

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

1986 U.S. Dist. LEXIS 18546

October 24, 1986, Decided; October 27, 1986, Filed

CORE TERMS: regulation, Federal Rules of Civil Procedure, class certification, motion to certify, class action, class member, upgrade

COUNSEL: [*1]

Michael J. McDonald, Esq., Sidley & Austin, Washington, D.C.

Barton F. Stichman, Esq., David F. Addlestone, Esq., Vietnam Veterans of America Legal Services, Washington, D.C.

Michael L. Martinez, Esq., Assistant United States Attorney, Washington, D.C.

OPINIONBY: REVERCOMB

OPINION: ORDER

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

Upon consideration of plaintiffs' motion to certify this case as a class action, defendant's opposition thereto, and the entire record herein, it it this 24th day of October, 1986,

ORDERED that plaintiffs' motion to certify this case as a class action is granted; and it is further

ORDERED that the class certified under Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure shall consist of all former U.S. Navy and Marine Corps personnel (1) who were separated or in the process of being separated from service before July 7, 1971, pursuant to a regulation authorizing discharge for use or possession of drugs or pursuant to a sentence of a court-martial for the offense of use or possession of drugs, (2) who currently possess a less than fully Honorable Discharge, and (3) who are currently eligible to apply to the Naval Discharge Review Board [*2] (NDRB) or the Board for Correction of Naval Records (BCNR) for a determination whether they merit an upgrade in the characterization of their discharge pursuant to the Laird Memoranda or whose application to the NDRB or BCNR for an upgrade in discharge did not result in a fully Honorable Discharge by Board decision issued at any time after October 8, 1979; and it is further

ORDERED that within thirty (30) days of the date of this Order, defendant's NDRB and BCNR shall publish an amendment to their regulations defining the class and specifying that all class members who may apply to the DRB and BCMR in the future shall have their discharges upgraded to at least General (Under Honorable Conditions), unless the DRB or BCNR finds that the applicant's use or possession of drugs was not for personal use; and it is further

ORDERED that within ninety (90) days of the date of this Order, defendant shall identify each class member whose application to the NDRB or BCNR did not result in a fully Honorable Discharge by Board decision issued at any time after October 8, 1979; and it is further

ORDERED that within one hundred eighty (180) days of the date of this Order, defendant shall review [*3] the application of each of the class members so identified under the standard specified in the amended regulation and this Court's Memorandum Opinion of June 6, 1986, after providing the class member an opportunity to participate in this review proceeding.

The Court concluded that defendant's practice of denying recharacterization of discharges falling within the parameters of the Laird memoranda (as defined by the Court's Memorandum Opinion of June 6, 1986), was unlawful. This ruling inherently extends to defendant's practice with respect to all members of the proposed class, regardless of whether class certification is procedurely proper.

Nevertheless, the Court concludes class certification is proper. Plaintiffs meet the four prerequisites of certification enumerated in Rule 23 of the Federal Rules of Civil Procedure. Additionally, the Court finds the claims of the individual plaintiffs are not moot, as they still retain an interest in the outcome of the litigation. Plaintiffs presently are contesting the government's appeal of this matter. Furthermore, the individual plaintiffs arguably retain an economic interest in having the costs of litigation shared by other members of the [*4] class. See Deposit National Bank v. Roper, 445 U.S. 326, at 333.

Alternativelty, the Court could allow a substitution of individual plaintiffs whose claims the Court had not considered independently.

SO ORDERED

SBD

Me#1You#10
Site Admin

Joined: 06 May 2004
Posts: 6503

Posted: Mon Jun 20, 2005 3:48 pm Post subject:

Admin note: As this topic relates to conjecture, I am moving it to the R&R Forum. Thanks

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