General John D. Lavelle, USAF 1916 – 1979

Application for Correction of Military Record Under the Provisions of

Title 10; U.S. Code, Section 1552, John Daniel Lavelle

APPLICATION FORCORRECTION

OF AN INJUSTICE ANDMILITARY RECORD

UNDERTHE PROVISIONS OFTITLE 10, U.S. CODE,

SECTION 1552

JOHN DANIEL LAVELLE

APPLICATION FOR CORRECTION OF MILITARY RECORD OMB No. 0704-0003UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, SECTION 1552 OMB approval expires

(Please read instructions on reverse side BEFORE completing this application.) Jun30, 2009The public reporting burden for this collection of infonnation is estimated to average 30 minutes per response, including the lime for reviewing instructions, searching existing data sources, gatheringand maintaining the data needed, and completing and reviewing the collection of infonnation. Send comments regarding this burden estimate or any other aspect of this collection of Infonnatlon,including suggestions for reducing the burden, to the Department of Defense, Executive Services Directorate, Infonnation Management Division, 1155 Defense Pentagon, Washington, DC 20301-1155(0704-0003). Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply With a colleCtion of Infonnatlon If It does notdisplay a currenliy valid OMS control number.

PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE ABOVE ORGANIZATION. RETURN COMPLETED FORM TO THEAPPROPRIATE ADDRESS ON THE BACK OF THIS PAGE.

PRIVACY ACT STATEMENTAUTHORITY: Title 10 US Code 1552, EO 9397. ROUTINE USE(S): None.

PRINCIPAL PURPOSE: To initiate an application for correction of DISCLOSURE: Voluntary; however, failure to provide identifyingmilitary record. The form is used by Board members for review of information may impede processing of this application. The request forpertinent information in making a determination of relief through Social Security number is strictly to assure proper identification of thecorrection of a military record. individual and appropriate records.

1. APPLICANT DATA (The person whose record you are requesting to be corrected.)

a. BRANCH OF SERVICE (X one) IARMY INAVY " AIR FORCE IMARINE CORPS I ICOAST GUARD

b. NAME (Print - Last, First, Middle Initial) c. PRESENT OR LAST d. SERVICE NUMBER (If applicable) e. SSN

Lavelle, John, D.PAY GRADE

FR4359 284-05-8789102. PRESENT STATUS WITH RESPECT TO THE 3. TYPE OF DlSCHARGE(lfby court-martial, state 4. DATE OF DISCHARGE OR RELEASE

ARMED SERVICES (Active Duty, Reserve, the type of court.) FROM ACTIVE DUTY (YYYYMMDD)National Guard, Retired, Discharged, Deceased)

Honorable 19720406Deceased5. I REQUEST THE FOLLOWING ERROR OR INJUSTICE IN THE RECORD BE CORRECTED: (Entry required)

Please see attached.

6. I BELIEVE THE RECORD TO BE IN ERROR OR UNJUST FOR THE FOLLOWING REASONS: (Entry required)

Please see attached.

7. ORGANIZATION AND APPROXIMATE DATE (YYYYMMDD) AT THE TIME THE ALLEGED ERROR OR INJUSTICE IN THE RECORDOCCURRED(Entry reqUired) March through October 1972

8. DISCOVERY OF ALLEGED ERROR OR INJUSTICE

a. DATE OF DISCOVERY b. IF MORE THAN THREE YEARS SINCE THE ALLEGED ERROR OR INJUSTICE WAS DISCOVERED, STATE WHY THE(YYYYMMDD) BOARD SHOULD FIND IT IN THE INTEREST OF JUSTICE TO CONSIDER THE APPLICATION.

20070201 Please see attached.

9. IN SUPPORT OF THIS APPLICATION, I SUBMIT AS EVIDENCE THE FOLLOWING ATTACHED DOCUMENTS: (If military documents or medicalrecords are pertinent to your case, please send copies. If Veterans Affairs records are pertinent, give regional office location and claim number.)

Please see attached.

10. I DESIRE TO APPEAR BEFORE THE BOARD IN WASHINGTON, I "IrES. THE BOARD WILL INO. CONSIDER MY APPLICATIOND.C. (At no expense to the Government) (X one) DETERMINE IF WARRANTED. BASED ON RECORDS AND EVIDENCE.

11.a. COUNSEL (If any) NAME (Last, First, Middle Initialj and ADDRESS (Include ZIP Code) b. TELEPHONE (Include Area Code) 570-342-6100Casey, Patrick, A. c. E-MAIL ADDRESSMyers, Brier & Kelly, LLP

pcasey@mbklaw.com425 Spruce Street, Suite 200Scranton, PA 18503 d. FAX NUMBER (Include Area Code) 570-342-6147

12. APPLICANT MUST SIGN IN ITEM 15 BELOW. If the record in question is that of a deceased or incompetent person, LE(2AL PROOF OFDEATH OR INCOMPETENCY MUST ACCOMPANY THE APPLICATION. If the application is signed by other than the applicant, indicatethe name (print) and relationship by marking one box below.

h SPOUSE r "l WIDOW l WIDOWER 1NEXT OF KIN r 1LEGAL REPRESENTATIVE n OTHER (Specify)

13.a. COMPLETE CURRENT ADDRESS (Include ZIP Code) OF APPLICANT OR PERSON b. TELEPHONE (Include Area Code)I~ IIEM ~~ ABOVE (Forward notification of all changes of address.) c. E-MAIL ADDRESSMary 0 ave e

Edgeworth Farm, 6254 Leeds Manor Road enloe@crosslink.netMarshall, VA 20115 d. FAX NUMBER (Include Area Code)

14. I MAKE THE FOREGOING STATEMENTS, AS PART OF MY CLAIM, WITH FULL KNOWLEDGE OF THE CASE NUMBERPENALTIES INVOLVED FOR WILLFULLY MAKING A FALSE STATEMENT OR CLAIM. (US. Code, Title 18, (Do not write in this space.)

Sections 287 and 1001, provide that an individual shall be fined under this title or imprisoned not more than 5 years, or both.)

1~"Gl~R~7:77~ A~JgJe~16. DATE SIGNED

;:;JMJ; :J. 00 t,"" -1-,,~.. '7'l

DD FORM 149. SEP 2"007 PREVIOUS EDITION IS OBSOLETE. , Adobe Designer 7.0

INSTRUCTIONS

1. All information should be typed or printed. Complete all applicable items. If the item is not applicable, enter "None."

2. If space is insufficient on the front of the form, use the "Remarks" box below for additional information or attach an additional sheet.

3. List all attachments and enclosures in item 9. Do not send original documents. Send clear, legible copies. Send copies of military documentsand orders related to your request, if you have them available. Do not assume that they are all in your military record.

4. The applicant must exhaust all administrative remedies, such as corrective procedures and appeals provided in regulations, before applying tothe Board of Corrections.

5. ITEM 5. State the specific correction of record desired. If possible, identify exactly what document or information in your record you believe to beerroneous or unjust and indicate what correction you want made to the document or information.

6. ITEM 6. In order to justify correction of a military record, it is necessary for you to show to the satisfaction of the Board by the evidence that yousupply, or it must otherwise satisfactorily appear in the record, that the alleged entry or omission in the record was in error or unjust. Evidence, inaddition to documents, may include affidavits or signed testimony of witnesses, executed under oath, and a brief of arguments supporting theapplication. All evidence not already included in your record must be submitted by you. The responsibility of securing evidence rests with you.

7. ITEM 8. U.S. Code, Title 10, Section 1552b, prOVides that no correction may be made unless a request is made within three years after thediscovery of the error or injustice, but that the Board may excuse failure to file within three years after discovery if it finds it to be in the interest ofjustice.

8. ITEM 10. Personal appearance before the Board by you and your witnesses or representation by counsel is not required to ensure full andimpartial consideration of your application. If the Board determines that a personal appearance is warranted and grants approval, appearance andrepresentation are permitted before the Board at no expense to the government.

9. ITEM 11. Various veterans and service organizations furnish counsel without charge. These organizations prefer that arrangements forrepresentation be made through local posts or chapters.

10. ITEM 12. The person whose record correction is being requested must sign the application. If that person is deceased or incompetent to sign,the application may be signed by a spouse, widow, widower, next of kin (son, daughter, mother, father, brother, or sister), or a legal representativethat has been given power of attorney. Other persons may be authorized to sign for the applicant. Proof of death, incompetency, or power ofattorney must accompany the application. Former spouses may apply in cases of Survivor Benefit Plan (SBP) issues.

11. For detailed information on application and Board procedures, see: Army Regulation 15-185 and www arba.army.pentagon mil;Navy - SECNAVINST.5420.193 and www.hg.navy.millbcnr/bcnr.htm; Air Force Instruction 36-2603, Air Force Pamphlet 36-2607, andwww.afpc.randolph.af.mil/safmrbr; Coast Guard - Code of Federal Regulations, Title 33, Part 52.

MAIL COMPLETED APPLICATIONS TO APPROPRIATE ADDRESS BELOW

ARMY(For Active Duty Personnel)

Army Board for Correction of Military Records1901 South Bell Street, 2nd FloorArlington, VA 22202-4508

(For Other than Active Duty Personnel)Army Review Boards AgencySupport Division, St. Louis9700 Page AvenueSt. Louis, MO 63132-5200

AIR FORCE

Board for Correction of Air Force RecordsSAF/MRBR550-C Street West, Suite 40Randolph AFB, TX 78150-4742

17. REMARKS

DD FORM 149 (BACK), SEP 2007

NAVY AND MARINE CORPS

Board for Correction of Naval Records2 Navy AnnexWashington, DC 20370-5100

COAST GUARD

Board for Correction of Military Records245 Murray LaneRoom 5126, Mail Stop #0900Washington, DC 20528

APPLICATION FOR CORRECTIONOF INJUSTICE

JOHN D. LAYELLE

AIR FORCE BOARDFOR CORRECTION OFMILITARY RECORDS

Continuation Sheetto Application for Correction of Military Record

DD Form 149

Continuation to Application for Correction of Military Record DD Form 149Table of Contents

I. Statement of Case 1A. Application 1B. New Opinion Evidence 1

1. Secretary of Defense Melvin R. Laird 12. General Cou,nsel to the United States Senate R. James Woolsey 23. Congressman Otis G. Pike 2

C. Summary of Relevant Dates 3D. Brief Biography of General Lavelle 4

II. Rules of Engagement in North Vietnam: Brief History 5A. ROE: 1968-1970 5B. ROE: January - July 1971 6C. ROE: August 1971 7

III. Battlefield Enhancements of the Enemy 7

IV. Political Environment .;.8

v. "Unauthorized" Strikes 9A. Authorization for Lavelle 9B. List of "Unauthorized" Strikes 10C. List of Participants and Their Assignments 11D. Evidence of Authority Strike-By-Strike 11

1. Strike One: November 7,1971 112. Strike Two: November 8, 1971 13

a. November 21,1971: Adm, McCain Expresses "DeepConcern" About the Enemy Integrated Air DefenseSystem 14

b. December 4-5,1971: Honolulu Conference Called bythe Joint Chiefs - "Not Being Aggressive Enough" 14

c. December 8, 1971: Secretary Laird: "LiberalInterpretation" 15

d. December 26-30, 1971: Limited Duration Strikes 15e. January 1972 16

3. Strike Three: January 23, 1972 16a. "Liberal Interpretation" of the Rules of Engagement 16b. Facts of the Strike on Jan. 23, 1972 17

4. Strikes Four, Five and Six: January 25 and 31, 1972 185. Strikes Seven Through Twenty Four: Feb. 16-Mar. 9, 1972 19

a. February 3, 1972, Thursday: President OrdersStrikes 20

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i. Oval Office at 10:53 a.m 20

E. March 8, 1972: Letter From Sergeant Lonnie Franks .................• 221. Sergeant Franks Letter 222. Inspector General Investigation 23

F. Removal from Command and Retirement in the Grade ofMajor General 231. April 6, 1972, General Lavelle Retired; General Vogt

Assumes Command 242. Congressman Otis G. Pike Calls for an Investigation ..•..•...... 253. May 19, 1972, DVD Oval Office Conversation:

President, Vice President Agnew, Dr. Kissinger andAdmiral Moorer 25

4. June 12, 1972, House Armed Services CommitteeHearing into "Unauthorized Bombing of MilitaryTargets in North Vietnam" 25

5. June 14, 1972, Wednesday; DVD ConversationBetween President Nixon, Secretary Rogers and Dr. Kissinger ..•. 27

6. June 14, 1972; DVD Conversation Between PresidentNixon and Dr. Kissinger 27

7. June 22, 1972, Admiral Moorer's ConfirmationHearing for a Second Term as Chairman of theJoint Chiefs of Staff 29

8. United States Senate: Hearings Sept. 11-15,18-19,22 and 29, 1972 30

9. Suspension ofthe Nominations of Admiral McCain, Admiral Moorer,General Abrams and General Haig ......................•.... 30a. Admiral Moorer 30b. Admiral McCain """"""""" 30c. General Abrams " "". """"""""""""""""""".. """.. "31d. General Ryan ".""""""."""""""""."""""""""""""."""""" 31e. Lavelle Hearing: Survival of the fittest 31

10. General Lavelle - Sept. 11, 1972 3211. General Abrams - Sept. 13, 1972 3312. Sept. 15, 1972; DVD, Private Meeting Between President

Nixon and Major General Haig in the Old Executive

Office (DVD) """""""""""""""". """""". """""""". "" . " .. """" . ""3313. General Ryan, Sept. 19, 1972 3414. General Lavelle's Written Summation, Sept. 26,1972 3415. Admiral Moorer, Sept. 29, 1972 •.........•................... 3416. Admiral McCain, Sept. 29, 1972 ..•...•....................... 3517. Oct. 6, 1972, Senate Vote .•.. '.' ...................•.......... 35

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18. "He Alone is Guilty, Says Senate Committee,"New York Times 35

19. Oct. 23, 1972, President and General Haig in the OldExecutive Office (DVD) 36

20. Conclusion 37

VI. False Reports 38

VII. Legal Authority to Correct a Record and/or an Injustice 39A. Statutory Authority, Title 10 U.S.C. § 1552 39B. Common Law Authority 39

1. Broad Authority 392. Standard of Proof: Probable Material Error 40

VIII. Timeliness 40A. Three Years from the 2007 Date of Discovery 40

1. Discovery Begins on Discharge AbsentAffirmative Concealment of Facts 40

B. Rationale for Failure to File Within Three Years .......••......•...... 42

IX. Loss of Income 43

x. Conclusion 44

XI. Exhibits 50A. DVD - Nixon White House TapesB. Letter - Secretary Melvin R. LairdC. Letter - Dir. R. James WoolseyD. Letter - Congressman Otis G. PikeE. 2/3/72 Oval Office transcript - Ambassador Ellsworth BunkerF. 4/6/72 Oval Office transcript - General John W. VogtG. 6/14/72 Oval Office transcript - Secretary William P. RogersH. 6/14/72 Oval Office transcript - Dr. Henry A. KissingerI. 9/15/72 Oval Office transcript - General Alexander M. Haig, Jr.J. 10/23/72 Oval Office transcript - General Alexander M. Haig, Jr.K. "Unauthorized Bombing" December 15, 1972L. Inspector General Report, March 20, 1972M. Mrs. John D. Lavelle letter to Secretary of Air Force, May 28, 2007N. Personnel Record of Major General John D. LavelleO. Non-Prosecution Memorandum of Major General John D. Lavelle to

Secretary SeamansP. Declaration of Geraldine Lavelle Enloe

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I. Statement of Case

A. Application

"Well, let me ask you about Lavelle. I was, I had it on my list this morning. I justdon't want him to be made a goat, goddamnit."

- President Richard M. NixonJune 14, 1972

Now, thirty six years later, General Lavelle's 90 year old widow proudly comes beforethis Board to respectfully seek the correction of the manifest injustice that was visited upon herhusband in October, 1972 despite President Nixon's protestation. Mrs. Lavelle submits that theUnited States decision to not advance General Lavelle to the grade of General on the retired list,resulting in his retirement in his permanent grade ofMajor General, was based on woefullyincomplete evidence. The record now clearly shows that the Executive Department in generaland the Department of Defense in particular withheld evidence from the Senate during anelection year for political purposes.

Recently obtained evidence confirms that General Lavelle was in fact scapegoated. Hewas falsely accused ofviolating the Rules ofEngagement in North Vietnam and concealing theviolations. President Nixon, as Commander in Chief, was aware that General Lavelle had actedwithin the authority granted to him because the authority was expressly granted by PresidentNixon and communicated to General Lavelle through classified communications betweenAdmiral John S. McCain, Jr., Chief of Pacific Command, Secretary of Defense Melvin R. Lairdand others. The previously classified documents and recorded conversations of President Nixon,which are submitted in support of this Application, finally prove that General Lavelle, consistentwith his 32-year career in the United States Air Force, discharged his responsibilitiesconscientiously and faithfully within the Rules of Engagement. The declassified evidence andthe release of the White House tapes recorded during the Nixon Presidency show that GeneralLavelle suffered from these errors of omission by the Executive and from its refusal to furnishthe Senate with the relevant evidence.

B. New opinion evidence

1. Secretary of Defense Melvin R. Laird

Former Secretary ofDefense Melvin R. Laird, after reviewing "Lavelle, Nixon and theWhite House Tapes" wrote a letter to the editor of the Air Force Magazine and said, in part, thefollowing:

"General Bus Wheeler, Admiral Tom Moorer, and General Abrams allagreed with the liberal interpretation on my order on protective reaction. The new

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orders permitted hitting anti-aircraft installations and other dangerous targets ifspotted on their missions, whether they were activated or not." (App. 1211)(emphasis added)

2. General Counsel to the United States Senate, R. James Woolsey

Former General Counsel to the United States Senate Armed Services Committee, R.James Woolsey, reviewed pertinent portions of the new evidence and he concluded as follows:

"Had I understood this in 1972 I would have recommended to theCommittee that General Lavelle should have been advanced on the retired list tohis full grade. I feel confident that such a recommendation would have beenapproved by the Committee." (App. 1497)

3. Congressman Otis G. Pike

Former Congressman Otis G. Pike, a then-member of the House Armed ServicesCommittee reviewed the new evidence and said the following:

"If I had had the White House tapes at the time I would have been evenangrier at President Nixon and Secretary Kissinger for turning General Lavelleloose and then hanging him out to dry by denying they had done so." (App. 1205)

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C. Summary ofrelevant dates

March 6, 1972 A complaint alleging unauthorized protectivereaction strikes from a sergeant within 7th AirForce is received by the United States Senate.

March 20, 1972 An inspector general investigation is concluded onMarch 20, 1972. The investigation concludes thatGeneral Lavelle violated the Rules ofEngagementand issued an order to conceal the violation.

March 26, 1972 General Ryan, Chief of the Air Force, gaveGeneral Lavelle an ultimatum-retire as a three-stargeneral or suffer reassignment to a two-starposition.

April 6, 1972 General Lavelle was removed from command,retired and discharged. Shortly thereafter he wasnominated for retirement in the grade ofLieutenant General.

June 12, 1972 House Armed Services Committee hearing into"Unauthorized Bombing" into North Vietnam;testimony of General Ryan and General Lavelle

September 11- Senate Armed Services Committee hearing into29, 1972 "Unauthorized Bombing in North Vietnam" and

Admiral McCain's retirement, General Abrams'nom. to Army Chief and General Lavelle's nom.for retirement to Lt. General.

October 6, 1972 Senate vote not to advance General Lavelle to thegrade of General on the retired list, resulting in hisretirement at the permanent grade of MajorGeneral.

February 1, "Lavelle, Nixon and the White House Tapes"2007 published in the Air Force Magazine. First

connection between General Lavelle and thepolitics of the White House.

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D. Brie/biography a/General Lavelle

John Lavelle was born in 1916. He attended Cathedral Latin High School, and graduatedfrom John Carroll University in Columbus, Ohio in 1938. He enlisted as an aviation cadet in theArmy Air Corps, and received his wings as a second lieutenant on June 21, 1940. The next day,June 22, he married Mary Josephine McEllin. He was director of flying at Waco, Texas. InMarch, 1945, he was assigned to Europe to fly tactical combat missions in the P-47 and P-38with the 412 Fighter Squadron. (App. 1184-85)

In 1946, General Lavelle was assigned to Headquarters Air Materiel Command at WrightField, Ohio, as Deputy Chief of Statistical Services. When the U.S. Air Force was established asa separate Service in 1947, he was one of the two Air Force officers who negotiated with allseven Army Technical Services and wrote the agreements for the division of assets to the newAir Force and the operating procedures to be effected during the Air Force buildup.

In 1962, General Lavelle was assigned to NATO Tactical Air Command, and in 1966 wasassigned as the commander of combat-ready jets with nuclear, conventional and air-to-aircapabilities. (App. 1090, 1192-1093; See generally, General Lavelle's military recordreproduced in total and attached hereto as exhibit "0.")

Over the course of his career, he assumed several management positions in thereorganization of supply systems, improving control procedures for the Weapons Board, andimproved overall defense communications. During their 32-year career in the Army Air forcesand then the Air Force the Applicant, Mrs. Lavelle, and General Lavelle raised sevenchildren-Barbara, Geraldine, John, Patricia, Michael, Timothy, and Dennis.

In September 1964, General Lavelle was assigned to Headquarters U.S. Air Force as theDirector ofAerospace Programs, Deputy Chief of Staff for Programs and Resources. AsDirector, he was the principal backup witness in presenting and defending Air Force programs toCongress after such programs had been approved by the secretary of the Air Force and thesecretary of defense.

General Lavelle earned a reputation for being a very hard-working, honest and principledAir Force officer.! In September 1970, Lieutenant General Lavelle was assigned as ViceCommander in Chief ofPacific Air Forces (PACAF).

!House of Representatives, Committee on Armed Services, Ninety-Second Congress, SecondSession, Dec. 15, 1972, "Unauthorized Bombing of Military Targets in North Vietnam", p. 7 ("Anyexamination of these air strikes must consider General Lavelle's record ofmore than 32 years as an AirForce officer. It is replete with advancements earned by diligent application of his talents within themilitary system. That he lived 'by the book' is an inescapable conclusion, and there is nothing in thisrecord which would cast the slightest shadow on his integrity or doubt on his ability.") (emphasis inoriginal)

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On August 1, 1971, at age 55, John Lavelle was promoted to General officer and wasassigned to command the Seventh Air Force as the Deputy Commander for Air Operations,Military Assistance Command Vietnam, Tan Son Nhut Airfield, Republic of Vietnam. (App.1095) The commander was General Creighton W. Abrams, Military Assistance CommandVietnam (MACV).

II. Rules of Engagement in North Vietnam: Brief history

As this Board is aware, the rules of engagement (ROE) are a set of specific limitationswithin which combat aircraft must operate.2 These rules were collected in a three-ring binder in7th Air Force. They were subject to change depending on changes in the battlefield and theobjectives of the commander in chief. The rules applicable to North Vietnam were particularlycomplex and restrictive. A brief history is warranted.

A. ROE: 1968-1970

On November 1, 1968, the Johnson administration suspended all bombing in NorthVietnam as an inducement to bring the Communists to the negotiation table. (App. 1018) TheUnited States reserved the right, however, to conduct reconnaissance flights over North Vietnam.At that time, the Rules ofEngagement required that the U.S. aircraft be fired upon before theaircraft could fire back.

Over the course of two years the enemy established an effective air defense system. By1970, the Joint Chiefs of Staff found it necessary on a number of occasions to suspend this generalRule of Engagement and authorize preplanned air strikes into North Vietnam?

2"The Rules of Engagement (ROE) are the controls governing the conduct of all U.S. militaryoperations in Southeast Asia (SEA). On the grand scale, they represent the operational interpretations ofU.S. policies and goals with respect to the limited SEA conflict. On the operational level, they are adetailed set of rules to be followed closely by all commanders, air planners, control personnel, andcombat crewmembers in the actual planning and flying of combat missions." See, Project CHECOSoutheast Asia Report, Rules of Engagement, November 1969 - September 1972. (App. 1012)

3In March 1970, the Joint Chiefs of Staff (JCS) authorized a preplanned attack on occupied SAMsites in North Vietnam. (App. 1020) Later that month, however, the JCS advised that Jh Air Forcepreplanned attacks could not be made unless a SAM site fired at U.S. forces during the course of normalU.S. operations. (App. 1020) Strikes were permitted in May 1970. (App. 1021) In November 1970, JCSauthorized additional strikes against SAM sites. These strikes were identified for the first time as"protective reaction strikes." (App. 1021, 1023)

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B. ROE: January-July 1971

Preplanned strikes were authorized in 1971 as wel1.4 The Chainnan ofthe Joint Chiefs ofStaff, Admiral Thomas H. Moorer, speaking on behalf of the field commanders, evenrecommended to the Secretary of Defense that the Rules of Engagement be changed to a standingorder pennitting attacks on MIGs below 20 degrees north. Secretary Laird disapproved therequest stating that he believed existing authorities were adequate to handle the North Vietnameseair defense threat. (App. 1026) Over the course of 1971, the North Vietnamese became betterequipped and more aggressive towards U.S. Air Force overflights. As a result, combatcommanders, under the pressure of enemy SAMs, AAA and MIGs, repeatedly requested authorityto conduct preplanned strikes. Secretary Laird denied requests for additional authority to bomb onMay 15, 1971, May 19, 1971 and June 17, 1971. He insisted that existing authorities wereadequate. Throughout the spring and summer of 1971 the Secretary of Defense disapproved allsuch requests.

Although Admiral Moorer passed the denials on, he urged the Pacific commander,Admiral John S. McCain, Jr., and the combat commanders in Vietnam to "take full advantage ofcurrent authorities." (App. 1026) (emphasis added)

In passing on to the field commanders the Secretary's denial of additional authority,Admiral McCain sent a message that expanded the existing authority. It goes without saying thatthere was little reason to urge commanders to take "full advantage" of "current authorities" unlessAdmiral McCain believed that current authorities contained more authority than the commanderswere exercising. On July 25, 1971, Admiral McCain sent a top secret message to GeneralCreighton W. Abrams, Commander, U.S. Military Assistance Command Vietnam (MACV) whichreads, in part, as follows:

"The current air operating authority allows immediate protective reactionstrikes upon any SAM or AAA site which fires at, or is activated against, ouraircraft. I urge you to make maximum use ofthis existing authority for immediatereaction to SAMs and AAA in NVN, as our requests for retaliatory strike authorityhas consistently been denied."s (App. 1027) (emphasis added)

4These strikes authorized under the code name, "Louisville Slugger", permitted Jh Air Force todestroy SAMs and SAM associated equipment without first being fired upon if directed by Louisvillemissions. (App. 1023) The strikes continued on a case-by-case basis until February 1971. There wereadditional preplanned protective reaction strikes in 1971. In March Fracture Cross struck NorthVietnamese air defenses, in September Prize Bull struck military and logistic targets and in December1971 U.S. forces under the code name "Proud Deep" struck SAM and radar sites. (App. 1023-1024)

SMsg (TS), CINCPAC to COMUSMACV, 251345Z Jul71 cited in Protective Reaction Strikeauthority p. 3. (App. 1037)

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C. ROE: August 1971

On August 1, 1971, John Lavelle was assigned to the command of all air operations inVietnam and was promoted to four-star general. Within three days of assuming command,General Abrams instructed General Lavelle to make the armed escorts of "sufficient force level"to protect U.S. aircraft and to achieve the impact desired for fully punitive response to the enemyair defense tactics under the current authorities. (App. 1027) General Abrams expressed in nouncertain terms the threat netted enemy radar posed to American crews:

"Interlocking and mutually supporting NVN air defenses constitute anunacceptable hazard to air crews attempting to identify a particular SAM!AAAfiring site" and that it was "considered appropriate for escort forces to directimmediate protective reaction strikes against any identifiable element of thefiring/activated air defense complex."6 (App. 1027) (emphasis added)

Thus, from the day General Lavelle arrived, he received written and oral directives to beaggressive with the existing Rules of Engagement.

III. Battlefield enhancements of the enemy

Significant changes in the battlefield environment occurred between 1968 (suspension ofbombing) and 1971 (Lavelle's arrival). The unilateral bombing suspension provided a safe havenfor the enemy to build up its forces. During this period, the enemy greatly enhanced its airdefenses.

In 1968, the enemy tracked US aircraft with radars directly connected to surface-to-airmissiles (SAMs). When the radars "locked on" to US aircraft, the American pilot was alertedimmediately to the imminent hazard with a cockpit-mounted alarm. This enabled U.S. pilots totake evasive actions to avoid the incoming missiles.

By 1971, Hanoi had learned to "net" its long-range search or ground control and intercept(GCI) radars with the missile sites. Because GCI did not trigger an alarm in U.S. aircraft, theseadditional sources of radar allowed North Vietnam to wait to turn on SAM radar at the lastsecond, denying U.S. crews virtually any time to take evasive action? (App. 1074) Further, the

6Mgs (TS), COMUSMACV to CDR, 7AF, 01 0940Z Aug 71, cited in Protective Reaction Strikeauthority p. 3. (App. 1037)

7See, Project CHECO Southeast Asia Report, Rules of Engagement, November 1969 - September1972. (App. 1028) ("In addition to using their GCI radars to guide MIGs on intercepts ofD.S. aircraft,the North Vietnamese had linked the GCI radars with the lock-on radar capability of SAM sites. Sincefew U.S. aircraft were equipped to detect GCI tracking as they were SAM tracking, the enemy aimedSAMs undetected until the instant affiring." (emphasis added»; see also, House ofRepresentatives,

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enemy significantly grew its air defenses during 1971. From November 1971 to February 1972,there were 72 MIG incursions compared to just four in the same period the previous year. Also,there were over 200 surface-to-air missiles fired at U.S. aircraft. It had become clear to allmilitary analysts that the North Vietnamese had amassed the largest build up of the entire war inanticipation of a massive attack on the South. (App. 922)

Despite the menacing growth of the North Vietnam forces and jeopardy posed to U.S.flyers, the Washington policymakers were unwilling to make public changes to the Rules ofEngagement.

IV. Political environment

President Nixon was running for re-election in the spring of 1972. He had assured theAmerican public, when he was elected in 1968, that he had a plan to end the war. Though he hadgreatly reduced the number of American service women and men on the ground, the warcontinued on without a clear end in sight. The conflict had divided the American public andcaused chronic nation-wide demonstrations. An expansion of the Rules to allow bombing inNorth Vietnam would not be well received by the American electorate.

National Security Adviser to the President, Dr. Henry A. Kissinger, was actively involvedin two major foreign policy efforts. First, he was engaged in negotiating with the Soviet Unionthe Strategic Arms Limitations Agreement (SALT I). The Soviet Union was considered to beNorth Vietnam's closest ally. Secondly, Dr. Kissinger was vigorously pursuing diplomaticrelations with Communist China for the first time since 1949. This effort would come to fruitionwith President Nixon's visit to China in February 1972. North Vietnam bordered China.Consequently, bombing in North Vietnam-an ally of one superpower and a neighbor ofanother-would have had a negative impact on these foreign policy efforts.

Secretary of Defense Melvin R. Laird had staked his reputation on the success of"Vietnamization"- a policy which proposed that the United States could equip and train the SouthVietnamese to defend themselves thereby enabling the U.S. to leave the theater of combat. In1968, there were 545,000 American service members in Vietnam. That number had been reducedto 156,800 by the fall of 1971, and the administration committed to a reduction to 64,500 in May1972. Bombing in North Vietnam would have suggested that the South Vietnamese were notdeveloping the ability to defend themselves and reveal signs of collapse of the Vietnamizationpolicy.

Thus, expansion of the authority to bomb in North Vietnam was viewed by the White

Committee on Armed Services, Ninety-Second Congress, Second Session, Dec. 15, 1972, "UnauthorizedBombing of Military Targets in North Vietnam", p. 8-9 ("However, by late 1971, through hisintegrated radar system, the enemy was able to launch his missiles without alerting the U.S.aircraft radar warning gear, thereby depriving the U.S. pilot of any warning of the threat.")

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House and Pentagon as likely to give the impression that the President was reneging on a promiseto reduce the American commitment, that the United States was double-dealing the otherSuperpowers, and that the Vietnamization program was showing signs of failure.

v. "Unauthorized" strikes

A. Authorization for Lavelle

The basis of General Lavelle's firing and his subsequent retirement in the grade of majorgeneral was premised upon a perception by the United States Senate that General Lavelle hadordered bombing missions contrary to the Rules of Engagement which had been issued by thePresident and adopted and passed down the chain of command by the Secretary of Defense andthe Joint Chiefs of Staff. The Air Force would, in the summer of 1972, claim that General Lavelleexceeded his authority in ordering 248 unauthorized bombing missions into North Vietnam.

The Applicant will refute this conclusion by providing strike-by-strike authority. Theevidence will show that General Lavelle acted at all times within the Rules of Engagement.

To simplify the issue of authority, the evidence shows that there are three periods of 80­

called "unauthorized" missions: (1) November 1971, (2) January 1972, and (3) February-March1972. During the ''November 1971 strikes", General Lavelle was directly authorized by theChairman of the Joint Chiefs of Staff who was present for, and consulted about, both strikes. The"January 1971 strikes", were authorized by the Secretary of Defense, the Director of the JointChiefs of Staff and the commander in Vietnam. The "February-March 1972 strikes" were orderedby the President of the United States.

8The actual number of strikes deemed "unauthorized" shifted several times. Indeed, three daysbefore General Lavelle's September 1972 testimony, he was presented with a new list. Initially it wasalleged that there were "28" unauthorized strikes. (App.479-480) This number was reduced to "23"unauthorized strikes purportedly confirmed by the I.G. on July 7, 1972. (App. 477-478) The September18, 1972 Senate testimony identified "24" unauthorized strikes with several different strikes from thepreviously "confirmed strikes." (App.760). For the purposes of clarity, the Applicant uses the strikesidentified in the Senate testimony as the relevant group of strikes. During the period from November1971 to March 1972, the 7th Air Force flew approximately 25,000 sorties. (App. 759).

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B. List of "Unauthorized" Strikes

The 24 "unauthorized" strikes9 Authority

1.) Nov. 7, 1971

2.) Nov. 8, 19713.) Jan. 23, 1972

4.) Jan. 25, 19725.) Jan. 31, 19726.) Jan. 31, 19727.) Feb. 16, 1972

8.) Feb. 17, 19729.) Feb. 18, 197210.) Feb. 21, 197211.) Feb. 22, 197212.) Feb. 25, 197213.) Feb. 25, 197214.) Feb. 25, 197215.) Mar. 2, 197216.) Mar. 3, 197217.) Mar. 4, 197218.) Mar. 4, 197219.) Mar. 6, 197220.) Mar. 7, 197221.) Mar. 7, 197222.) Mar. 8, 197223.) Mar. 8, 197224.) Mar. 9, 1972

Admiral Moorer, Chairman, JCS, the Joint Chiefs ofStaff, and General Abrams, Commander MACVunder a protective reaction strike.Ibid.Secretary of Defense Laird, the Joint Chiefs of Staffthrough its Director Lt. General Vogt, JCS messages,and General Abrams, Commander MACV under a"liberal interpretation" of the Rules ofEngagement.Ibid.Ibid.Ibid.President Nixon, Secretary Laird, the Joint Chiefs ofStaff, Admiral McCain, Ambassador Bunker andGeneral Abrams conveying orders from theCommander-in-Chiefto bomb in North Vietnamwithout the precondition of enemy reaction.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.

9The finallist of strikes is found in the United States Senate Record, September 18, 1972, p. 281(App.760)

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C. List ofparticipants and their assignments

Creighton W. Abrams, General, Commander Military Assistance Command Vietnam(CMACV), Saigon, Vietnam

Ellsworth Bunker, Ambassador to Vietnam (Ambassador), Saigon, VietnamAlexander M. Haig, Jr., Major General (General), Deputy Assistant to the President for

National Security Affairs, White House, Washington D.C.Henry A. Kissinger, Dr., National Security Adviser to the President, White House,

Washington D.C.John D. Lavelle, General, Commander, 7th Air Force (7thAF), Saigon, VietnamJohn S. McCain, Jr., Admiral, Commander-in-Chief, Pacific Command (CINCPAC),

Honolulu, HawaiiRichard M. Nixon, President of the United States, White House, Washington D.C.John D. Ryan, General, Chief of the Air Force (CAF), Pentagon, Washington D.C.John W. Vogt, Lieutenant General, Director of the Joint Chiefs of Staff (Dir. JCS),

Pentagon, Washington, D.C.Louis L. Wilson, Jr., Lieutenant General, Inspector General (IG), Pentagon, Washington

D.C.

D. Evidence ofauthority strike-by-strike

1. STRIKE ONE: November 7, 1971

AUTHORITY:

STRIKE LOCATION:

Admiral Thomas H. Moorer, Chairman, JCS, theJoint Chiefs of Staff, and General Creighton W.Abrams, Commander MACV.

Airfield at Dong Hoi, North Vietnam.

Admiral Thomas H. Moorer, as Chairman of the Joint Chiefs of Staff, visited SouthVietnam with Secretary ofDefense Melvin R. Laird in November 1971 to assess the battlefieldand the progress ofVietnamization. (App. 922-923) Admiral Moorer met with General Lavelleand discussed the "business of the MIG-21's coming down into these four airfields-that is BaiPhong, Quang Lang, Vinh, and Dong Hoi." (App.923) Contemporaneous notes of the November6th

, 1971 meeting between Admiral Moorer and General Lavelle were kept on behalf ofAdmiralMorrer by an aide. The notes say, "General Lavelle opened the discussions with a brief update forme on [deleted] Dong Hoi Airfield on Saturday, 6 November. He stated that he had discussionswith Abrams and they had decided to run a reconnaissance flight with five escort aircraft overDong Hoi on Sunday, 7 November, to determine whether or not there were any MIG's on theairfield. The reconnaissance mission was flown on the 7th and reacted to by the enemy's AAAand as a result, the escort aircraft had expended ordnance of the AAA site around Dong HoiAirfield. Lavelle said that none of the U.S. aircraft were hit and all recovered safely, Lavelle and Iagreed that there was a requirement to determine whether or not there were any MIG's at the

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airfield at Dong Hoi." (App. 946; 928) (emphasis added)

It was General Abrams who requested the strike: "A MIG at Dong Hoi was important tome, because with the GCI that they had. . .. * * * ... I requested a photo mission ofthe 7 h

Air Force over Dong Hoi to confirm the presence ofa MIG."lo (App. 586) (emphasis added)General Abrams said that General Lavelle fully briefed him of the details of the strike: "GeneralLavelle did talk with me about it. * * * He talked with me about it, the amount of support hewas going-the amount of escort he was going to put with it-and generally how they were going todo it. As I recall, he even went into the distance between the photo plane and the lead escort andthat sort ofthing." (App. 586-587) (emphasis added) General Lavelle accurately reported thepost mission results to his commander: "... [A]fter the mission was over I believe he called me. ** * But anyway he reported to me that the mission was complete; all planes were out; they hadfired on the aircraft and the escort reacted." General Abrams viewed this mission which includedenemy fire upon the escort aircraft as "within the rules of engagement." (App. 602)

General Lavelle described the basis of his authority to execute the Dong Hoi strike (Nov.7) and the Quan Lang strike (Nov. 8): "These strikes and the rationale for them were discussedwith the Chairman ofthe JCS. My interpretation of our discussion was that he encouraged me torun a protective reaction mission to attempt to get the MIG or MIG's on Quang Lang. He tookcare ofNavy clearance into their area, and he was shown the post strike photographs the followingday. Subsequently I received a call and a message from General Clay at PACAF, in which heindicated Washington dissatisfaction with the poor results of the Quang Lang strike. It was not awell executed strike, due principally to poor planning and bombing under heavy fire." (App. 579)(emphasis added)

Therefore, is it clear that before ordering the Dong Hoi strike, General Lavelle obtainedapproval from his immediate superior, as well as, the most senior military official in the chain ofcommand. Both of them urged General Lavelle to execute it. The strike was conducted and theresults were reviewed with the over-all commander in Vietnam and the Chairman of the JointChiefs of Staff. The only concern expressed was about the effectiveness of the strikes. Had thestrikes been unauthorized, surely higher command would have called it to General Lavelle'sattention. General Lavelle had every reason to believe throughout this time that he wasconducting authorized strikes and his belief was being reinforced by the reaction of higherauthority to them. Thus, General Lavelle had authority to order this strike.

lOThis is supported by Admiral McCain's top secret message on November 7, 1971,"Accordingly, I strongly recommend that authority be granted now to strike Dong Hoi and QuangLang Airfields and their associated defenses." (App. 16)

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2. STRIKE TWO: November 8, 1971

AUTHORITY: Admiral Thomas H. Moorer, Chairman, JCS, the JointChiefs of Staff, and General Creighton W. Abrams,Commander MACV.

STRIKE LOCATION: Airfield at Quan Lang, North Vietnam.

The authority for the attack on Quan Lang was a mirror image of that for the Dong Hoiattack which was conducted the day before. Again, Admiral Moorer's contemporaneous notesprovide the picture of a diligent Air Force commander who carefully followed the chain ofcommand before authorizing the strike.

The Chairman said, "General Lavelle told me that he intended to conduct a photoreconnaissance mission over Quan Lang Airfield on 8 November 1971. I agreed with the conceptsince we were anxious to obtain more photographic intelligence ofthe deployment ofMIGs to thesouthern airfields. He requested permission to coordinate with the Navy since Quan Lang was inthe Navy area. I told him to go right ahead and coordinate it." (App.928) Admiral Moorer saidthat he and General Lavelle "determined that there was a clear requirement to run similarphotographic reconnaissance over the airfields at Vinh and Quan Lang [deleted] to determine if,in fact, they were present." (App. 946) (emphasis added) Admiral Moorer conceded that he gaveGeneral Lavelle authority to execute this mission: "All right, sir; let me say I didn't discourage .him in any way. I encouraged him to go ahead and make the mission as long as he coordinatedwith the Navy." (App. 935; App. 530YI (emphasis added)

Finally, after the mission the Chief of the Air Force, General John D. Ryan, communicatedto General Lavelle that the bomb damage results were poorY General Ryan and General LuciusClay, PACAF commander, communicated directly to General Lavelle their displeasure that therewas not more damage to the enemy airfield. General Lavelle "resolved then [that] if we were

II See also, ("If General Lavelle meant that I told him that there was no objection, that I had noobjection to it, in that sense that I gave him permission, then alright. I gave him permission." (App.935)(emphasis added))

12Colonel Charles A. Gabriel later referenced this strike when explaining to the Inspector Generalthat he believed all the protective reaction missions were properly authorized. ("Planned/directed strikesin North Vietnam ... began with the 8 Nov 71 strike on Quan Lang Airfield. The 432nd was directed bythe 7AF to expend on this mission with a reinforced fighter escort of four aircraft in lieu of the ususaltwo escorts. During a subsequent visit to Udorn, the ChiefofStaffdiscussed this strike with the 432nd

key operational personnel, including the flight leader involved. Members of the 432nd have inferredfromthis incident that all our planned and directedprotective reaction strikes have been cleared at least ashigh as the Chiefofstafflevel andprobably at the JCS level since our Chief received some criticism inthe JCS over the poor BDA resulting from this air raid." (App. 307); see, I.G. Report attached heretoand marked exhibit "L."

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going back to any more of these, ... we had to plan them more precisely to be sure that we did doa good job."

General Lavelle sought and obtained authority from his commander and from theChairman of the Joint Chiefs. The strikes were within the Rules ofEngagement. Both Dong Hoiand Quan Lang strikes received enemy fire. 13 General Lavelle had authority for the Quan Langstrike.

a. November 21, 1971: Admiral McCain expresses "deep concern"about the enemy integrated air defense system

The intensity of the enemy attacks on the slower moving B-52s caused considerable alarmwithin the Vietnam command. Admiral McCain sent a message to Admiral Moorer saying, "I amdeeply concerned over the mounting threat that the enemy's integrated air defense network hasposed against the B-52 force...." (App. 28) Admiral McCain's request for additional authority tobomb was denied. (App. 35-36) On November 21, 1971, Admiral McCain sent another stronglyworded message. This came after a MIG-21 attack on a B-52 cell. (App. 51-54) Admiral McCainexplained that in spite of the November 8 and 9 strikes on Dong Hoi and Quan Lang airfields, theMIGs continue to deploy which "gives strong evidence that the existing authorities are notadequate to deter the enemy from continuing his attacks against our B-52 aircraft." (App. 53)(emphasis added)

The concern over the possibility of enemy aircraft shooting down a B-52 ultimately causedan order to "stand down" B-52 missions engaged in operation Arc Light over Laos. The halt in B­52 missions was a jolt to the Joint Chiefs. In response, JCS ordered a commanders conference(referred to as the "Arc Light Conference") to deal with the threat.

b. December 4-5, 1971 Honolulu Conference called bythe Joint Chiefs-"Not being aggressive enough"

Admiral Moorer sent Lieutenant General John W. Vogt, Director of the Joint Chiefs ofStaff, as the "representative from the Joint Chiefs" to the commander's conference called onDecember 4-5, 1971. The issue before the commanders was the "continued buildup of the enemythreat in terms of surface-to-air missiles, antiaircraft missiles, and Migs." (App. 925) The JointChiefs sent very specific instructions to the combat commanders. The JCS directed thecommanders to "increase in the frequency of flights" and "double the number of aircraft...."(App.925) Admiral McCain was present and understood the message from the JCS. (App. 529;976) Admiral Moorer told Admiral McCain that "it was impossible to get authority that he hadrequested and that he would have to continue to use the authority that he already had." (App. 928)General Abrams and General Lavelle both sent representatives to the Honolulu conference.

13The official Air Force record indicates that "... subsequent crew interviews establish ratherconclusively that both missions did in fact receive enemy AAA fire prior to any expenditure ofordnance." (App.761)

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General Abrams understood from the meeting that "we should use the authority ofprotectivereaction more frequently and this is borne out by other messages where we asked for authority tostrike airfields, and this was denied but we were encouraged to use the authority we had." (App.609) (emphasis added) .

General Lavelle got the same message: "I knew that in Washington they wanted us to bemore aggressive, to make the best use we could of our interpretation of the rules." (App. 562) "Atthat conference the Director ofthe Joint Staffstated that field commanders were not aggressiveenough; we should be more aggressive; we should be more aggressive in using the authoritiesthat were available to us. . .. * * * I assumed I should take the rules that I had and interpretthem as fully as I could to operate under them and be more aggressive." (App. 528-529; 566)(emphasis added)

The Joint Chiefs of Staff said that "field commanders had not been flexible enough in theuse of existing authorities", that "fighter escorts for reconnaissance should be increased to 8, 18 ormore if necessary, to insure adequate damage on protective reaction strikes" and that fieldcommanders "could expect full backing from JCS." (App. 531)

c. December 8, 1971 Secretary Laird: "Liberal interpretation"

Shortly after the Honolulu conference, Secretary Laird visited Southeast Asia. He went onDecember 8, 1971.14 (App. 569) General Lavelle met with Secretary Laird at AmbassadorEllsworth Bunker's residence for a dinner given in the Secretary's honor. (App.569) SecretaryLaird and General Lavelle met privately. (App.569). They discussed the build up of missiles andM1Gs in North Vietnam and "new aggressiveness of the North Vietnamese." (App.570)Secretary Laird directly addressed the authority he provided to General Lavelle: "It was certainlytrue that in my meetings with General John Lavelle I told him that my order on 'protectivereaction' should be viewed liberally. I invented the term 'protective reaction.' Prior to my order,there was no authorization (under McNamara or Clifford) to destroy dangerous targets exceptwhen fired upon without special permission. General Bus Wheeler, Admiral Tom Moorer, andGeneral Abrams all agreed with the liberal interpretation on my order on protective reaction.The new orders permitted hitting anti-aircraft installations and other dangerous targets if spottedon their missions, whether they were activated or not." (App. 1211) (emphasis added) GeneralLavelle said that "Mr. Laird told me it was not the proper time to come in and ask for newauthorities, but to take whatever action I could, the best I could, with the authorities we had, to dowhat I could to stop this. * * * ... make the maximum use ofthe authorities we had and hewould support us in Washington." (App. 531) (emphasis added)

d. December 26-30, 1971: Limited Duration Strikes

The Rules ofEngagement were publicly suspended for five days at the end of December1971. The 7th Air Force flew mass raids on North Vietnam. The strikes were described as

14See, Air Force Magazine,"Lavelle" by John T. Correll in the November 2006 issue.-15-

"Limited Duration Strikes." From December 2eh to December 30th, 1971 the Air Force flew1,100 preplanned strikes into North Vietnam.

e. January 1972

In spite of the Limited Duration Strikes, the enemy's air defense in North Vietnamcontinued to grow and present a serious threat to American aircrews. Based upon the sheeramount ofAAA fire, it was determined statistically that U.S. aircraft were flying into the mostheavily defended airspace since World War II Berlin. By January 1972, the number ofAAA sitesin North Vietnam were estimated at 194,200. MIG and SAM alerts between January and March1972 for the 432nd Tactical Reconnaissance Wing, which handled most of the protective reactionmissions, totaled 1,197.

General Abrams described the difficulty of flying reconnaissance into North Vietnam:"But, in the time I have been there, 1967 until June [1972], it was by far the most intense airdefense environment that the air operated in, and a very sophisticated, very well-integrated, verywell controlled." (App. 610) "The environment was stiff. [Deleted]. It was heavy; theantiaircraft and air defense buildup, in Quang Binh Province, the southern part ofNorth Vietnam,was intense and I didn't feel we could fly anything in there without it getting shot at." (App.609)He said, "[w]e were encouraged to do these protective reaction strikes. The response to eachmessage for authority to strike the way we wanted to was to use the authorities you have, and wedid that." (App.631)

Consequently, at the start of 1972 General Lavelle was presented with an increasinglydangerous enemy air defense system. He had been urged on multiple occasions by his superiors,who were at the very top of the military pyramid, to become more aggressive by employing aflexible or "liberal" interpretation of the Rules of Engagement.

3. STRIKE THREE: January 23,1972

AUTHORITY: Secretary of Defense Laird, the Joint Chiefs of Staff throughits Director Lt. General Vogt, JCS messages, and GeneralAbrams, Commander MACV under a "liberal interpretation"of the Rilles of Engagement.

STRIKE LOCATION: Airfield at Dong Hoi, North Vietnam.

a. "Liberal interpretation" of the Rules of Engagement

The technological development of networking GCI was confinued in January 1972. Thisfundamentally altered the battlefield tactics on both sides. Between 1968 and 1971, U.S. pilotswere alerted to a SAM firing by virtue of the SAM radar, Fan Song, "locking on" to the U.S.aircraft. When a SAM radar "locked on" to the American aircraft, the cockpit alarm (RHAW)sounded, and enabled the crew to take evasive action to avoid the SAM. A separate radar system,

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general search radar (GCl), was always activated but did not acquire targeting information.

By January 1972, the number of near misses of U.S. aircraft caused pilots to believe thatthey were getting no warning of SAM firings. (App. 600) The technical staffs of both GeneralAbrams and General Lavelle analyzed the concern and concluded that, indeed, the enemy generalsearch radars, GCl had been netted with the SAM, Fan Song, radars. (App. 624, 586) GCl radarsfed precise tracking information to SAMs which allow the Communists to fire SAMs with nowarning to US pilots. (App. 624, 586) General Abrams had "many discussions" with GeneralLavelle about the netting of the GCl radar with the SAMs. (App. 585-586) "...General Abramswas well aware that the system was netted and that the crews in flying through these [deleted]missiles sites over there no longer got any warning. We assumed that the system was activatedagainst us at all times." (App. 565; 600)

General Lavelle was directed to respond to this technological advancement withoutadjustment to the existing Rules of Engagement. Thus, he developed a counter plan called "QuickCheck Reconnaissance." This plan required U.S. aircraft to be poised, around the clock, torespond immediately to the notice of any threat. General Lavelle explained the plan to GeneralAbrams. He said that the "netting together of the radar ... no longer gave us warning and thatwhen the pilot flew in there, because the air defense system was always on him, we could, ineffect, consider that he was always under observation from a radar that could trigger a missile."(App.526) Both generals agreed "that the system was activated against us and that crews thatwere going in there had to be protected and couldn't just stand around and wait until somebodyshot one down before we could attack.,,15 (App. 507; see also, App. 515) General Abrams"concurred" in the counter plan. (App. 518) Both General Lavelle and General Abrams believedthat the counter plan "was well within our interpretation of our authority." Based upon thestatements of Secretary Laird, Admiral Moorer and Admiral McCain's message, General Lavelleunderstandably concluded that no further authority from Washington was necessary. (App.493)

b. Facts of the strike on Jan. 23, 1972

With near misses on an RC-135 intelligence aircraft and a B-52, on January 23, 1971General Lavelle "ordered Quick Check Recce flight to launch with the objective of cutting theDong Hoi runway." (App.490) "The strike was so successful that the strike aircraft pulled offthe target and out of the threat area without receiving enemy fire. The lead pilot reported [deleted]that he had struck Dong Hoi airfield, expended all ordnance, the mission was successful and noenemy reaction." (App.490) Under the pressure of nearly losing an RC-135 intelligence aircraftand a B-52, General Lavelle curtly instructed his Director of Operations, "you can't report 'noenemy reaction.'" (App. 490, 513, 545) General Lavelle expected aircrews to report "hostileradar" ifthere were no actual enemy fire observed. He failed to clarify his intention with his

15General Lavelle did not refine these issues into a new form of authority: "Yes, we did discussthe air defense, how tough it had gotten, that it was netted, that the Gel radars were now painting andcontrolling the missiles. I cannot say to you that I then said, therefore, under this interpretation weshould consider the system activated against us." (App. 507)

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director of operations. As a result, his order was passed down the chain of commandliterally-"You can't report 'no reaction.'" General Lavelle was unaware that the order caused adetailed follow-on report to falsely indicate "heavy AAA fire" instead of indicating "hostileradar." This mistake would be repeated on at least two other reports of subsequent missions. Itwas not discovered by General Lavelle until the Inspector General addressed it two months later.(App.490) Nonetheless, General Lavelle honorably assumed responsibility for this error. (App.545)

The authority utilized by General Lavelle in the Jan. 23rd attack on Dong Hoi wasdescribed as a "liberal interpretation"16 of the Rules of Engagement and he believed hisinterpretation was "within complete tolerance of' the Rules. (App. 564, 576) This was the firstmission in which the "liberal interpretation" of the Rules ofEngagement was used. This samebasis was used by him for the next three strikes. (App. 545)

4. STRIKES FOUR, FIVE AND SIX: January 25 and 31, 1972

AUTHORITY: Secretary of Defense Laird, the Joint Chiefs of Staff throughits Director Lt. General Vogt and JCS messages, andGeneral Abrams, Commander MACV under a "liberalinterpretation" of the Rules of Engagement.

STRIKE LOCATION: SAM site, and two AAA sites.17

The next three strikes, one on January 25th and two on January 31st, were conducted underthe "liberal interpretation" of the Rules of Engagement as described in the January 23rd strike.Importantly, all of these strikes were reviewed by General Abrams before and after the strikes. Bythis point, General Abrams was meeting daily with General Lavelle to discuss these special airstrikes. (Ap. 604) At the time bomb damage results were being reported up the chain of commandto Admiral McCain in Hawaii and Admiral Moorer at the Joint Chiefs in Washington. Again,neither Admiral McCain nor Admiral Moorer expressed concern about the authorization for thestrikes.

16He relied on several sources to derive this authority. First, upon Admiral McCain's July 25,1971 top secret message to General Abrams. As Pacific Commander, Admiral McCain wrote: "Thecurrent air operating authority allows immediate protective reaction strikes upon any SAM or AAA sitewhich fires at, or is activated against, our aircraft. I urge you to make maximum use ofthis existingauthorityfor immediate reaction to SAMs and AAA in NVN, as our requests for retaliatory strikeauthority have consistently been denied." (App. 504) (emphasis added) The technological advancementof the internetting of the GCI (which was always on) with the SAM radar fulfilled the requirement of"activation against." General Lavelle believed that based upon the exhortations of his superiors, thespecific wording of the message traffic and the technological advancement of the enemy's radar, hisinterpretation was "within complete tolerance of' the Rules of Engagement. (App. 564; see also 576)

17See generally, App. 325-393.-18-

On the January 25th, mission the reconnaissance aircraft and escorts were fired upon, butthe escorting aircraft had already crossed the border into South Vietnam. The escorts turnedaround over the border and went back to strike. (App.552) General Lavelle believed that thestrike was within the liberal Rules of Engagement.

On January 31st, the 7th Air Force had photos of SAM missiles on trucks. (App. 548)These had fired four previous times at American gun ships. (App. 548) General Lavelle took thepictures of the SAMs to General Abrams and said that "we just morally could not sit there and letthem come into Laos when the weather got bad and shoot down an airplane...." (App.548)General Abrams "agreed" with General Lavelle's recommendation of a protective reaction striketo hit the SAMs. General Lavelle said that he would never have hit these targets had GeneralAbrams not approved the mission. (App. 549) These two missions on January 31 were the secondand third missions under the "liberal interpretation" of the Rules ofEngagement-the first missionto strike SAMs. (App. 548)

General Abrams was expressly aware of all of these strikes. Moreover, the Joint Chiefs ofStaff received accurate reports (Specat) of the bomb damage result of each mission. No one ofauthority questioned General Lavelle's or General Abrams' authority to order these missions.

5.

STRIKES

STRIKES SEVEN THROUGH TWENTY FOUR:February 16, 17, 18,21,22,25; March 3, 4, 6, 7, 8 and 9, 1972

AUTHORITY

7.) Feb. 16, 1972

8.) Feb. 17, 19729.) Feb. 18, 197210.) Feb. 21, 197211.) Feb. 22, 197212.) Feb. 25, 197213.) Feb. 25, 197214.) Feb. 25, 197215.) Mar. 2, 197216.) Mar. 3, 197217.) Mar. 4, 197218.) Mar. 4, 197219.) Mar. 6, 197220.) Mar. 7, 197221.) Mar. 7, 197222.) Mar. 8, 1972

President Nixon, Secretary Laird, the Joint Chiefs ofStaff, Admiral McCain, Ambassador Bunker andGeneral Abrams conveying orders from theCommander-in-Chiefto bomb in North Vietnamwithout the precondition of enemy reaction.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.Ibid.

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23.) Mar. 8, 197224.) Mar. 9, 1972

STRIKE LOCATIONS: SAM sites and AAA sites in North Vietnam.18

Authority for these seventeen missions arises from a historic conversation in the WhiteHouse. Exhibit "A" is an audio recording of a February 3, 1972 conversation in the Oval Office.The DVD has a rolling transcript to assist the Board in reviewing the conversation. The recordedconversation is between the President of the United States, Richard M. Nixon, National SecurityAdviser, Dr. Henry A. Kissinger and Ambassador to Vietnam, Ellsworth Bunker.

a. February 3, 1972, Thursday: President Orders Strikes

In February 1972, the Ambassador to Vietnam, Ellsworth Bunker, returned to WashingtonD.C. He had been appointed by President Johnson in 1967. President Nixon had re-nominatedhim to the position. Ambassador Bunker's confirmation hearing was scheduled for the followingweek. He was meeting the President and Dr. Kissingner in order to prepare for a thoroughexamination by Senators regarding American foreign policy in Southeast Asia.

1. Oval Office at 10:53 a.m.

An extensive discussion began regarding the war and its progress. The discussion movedto protecting American B-52s from SAM attack. Ambassador Bunker told the President that heand General Abrams desired to "get authority to, to bomb these SAM sites." (DVD conversation2/3/72; see also, App. 1498) He explained that the current policy ofpermitting the U.S. to bombonly when an the "radar's locked on" is too "late to start attacking." (App. 1498) Dr. Kissingeragreed, "that's very restrictive because that means that the plane which is in trouble also has tofire." (App. 1499)

President Nixon was supportive and said, "protective reaction should include preventative[sic] reaction." (App. 1498) The President was genuinely concerned, "I would never forgivemyself for not knocking those sites out." (App. 1501) Finally the President said:

"I am simply saying that we expand the definition ofprotective reaction tomean preventive reaction where a SAM site is concerned. And I think that, that, tobe sure that anything that goes down there is just to call it ordinary protectivereaction. Who the hell's gonna say they didn't fire?" (App. 1500) (emphasisadded)

Dr. Kissinger then counseled the President that this expansive change in the Rules ofEngagement be done secretly: ''Now, could they stop from blabbing it at every bloody briefing?"(App. 1500) In response, the President ordered Ambassador Bunker: "I want you to tell Abrams

18See generally, Inspector General Report, Exhibit "L" (App. 325-393).-20-

when you get back that he is to tell the military not to put out extensive briefings with regard toour military activities from now on until we get back from China." Mr. Nixon issued a clearinstruction: "Do it, but don't say anything." (App. 1500) (emphasis added)

The President then summarized the new authority to strike: "He can hit SAM sitesperiod." (App. 1501) (emphasis added) "But he is not to do it with a public declaration, alright.And if it does get out, if it does, he says it's a protective reaction strike. He is to describe it as aprotective reaction. And he doesn't have to spell it out, ifthey strike, that's all he needs is a SAMsite, a protective reaction strike against a SAM site." (App. 1501)

The next seventeen missions were flown without any questions or negative commentsfrom the Joint Chiefs. Following this express Presidential approval, the strikes went from fivemissions in three months to a mission nearly every other day.19 Seventy percent of the allegedly"unauthorized" missions that resulted in Lavelle's reduction in grade were flown in the following35 days.

Two days after the Nixon-Bunker-Kissinger Oval Office conversation, the Joint Chiefs ofStaff, for the first time since 1968, began to forecast the imminent issuance of a standing ordersuspending all restrictions on tactical air.20 Admiral Moorer, sent a message to Admiral McCainrequiring General Abrams to submit a "daily report" in order for the JCS to give the President adaily update from the battlefield.21 The "daily report" was sent from General Abrams in Vietnamto Admiral McCain in Hawaii who immediately forwarded it to the Joint Chiefs of Staff at thePentagon. The Joint Chiefs "monitored everything that was going on." (App. 997) The Air Force

19Feb. 16, 17, 18, Feb. 21, Feb. 22, Feb. 25, Feb. 25, Feb. 25, Mar. 2, Mar. 3, Mar 4, Mar. 6,Mar. 7, Mar. 7, Mar. 8, Mar. 8, and Mar. 9, 1972. (App. 760)

20"3. IN ADDITION, THE FIRST OF THE WEEK I EXPECT YOU WILL RECEIVEDIRECTIVES SETTING FORTH THE FOLLOWING: * * * E. REMOVAL OF ALL EXISTINGSORTIE RESTRICTIONS FOR BOTH B52 AND TACTICAL AIR MISSIONS UNTIL FURTHERNOTICE." (App. 263-265); See also, Msg (TS) 072153Z Feb 72 which contains an actual Rule change,"... YOU ARE AUTHORIZED TO CONDUCT TACTICAL AIR STRIKES INTO THE NORTHERNPORTION OF THE DMZ WHENEVER COMUSMACV DETERMINES...." (App. 271-272)

21 5 February 1972,2334 Zulu, "AS YOU ARE NO DOUBT AWARE, IDGHEST AUTHORITY[President Nixon] IS FOLLOWING THE SOUTHEAST ASIAN SITUATION VERY CLOSELY. INTillS REGARD, I HAVE BEEN ASKED TO PROVIDE A DAILY REPORT OF THE SITUATION TOINCLUDE A PERSONAL ASSESSMENT. IT WOULD BE MOST HELPFUL IF ABE COULDPROVIDE ME, ON A DAILY BASIS, IDS VERY BRIEF PERSONAL ASSESSMENT ON THEFRIENDLY-ENEMY SITUATION TO INCLUDE ANY SIGNIFICANT ITEMS WIDCH WOULD BEOF INTEREST TO THE COMMANDER IN CIDEF. I WILL NEED TillS REPORT INWASHINGTON NLT 1200Z DAILY, BEGINNING 7 FEBRUARY." (App. 266)

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Chief, General Ryan and Admiral Moorer were receiving this daily report?2 The JCS expressedno disapproval of the almost daily "protective reaction" missions into North Vietnam?3

E. March 8, 1972: Letter from Sergeant Lonnie Franks

In the first week ofMarch 1972 Senator Harold Hughes, D-IA, received a letter from aconstituent who was serving in the Air Force in South Vietnam. Senator Hughes forwarded theletter to the former Secretary of the Air Force, then U.S. Senator, Stuart Syminington. On March8, 1972, Senator Symington forwarded a letter from Sergeant Lonnie D. Franks to the Secretary ofthe Air Force Robert C. Seamans. (App. 299)

1. Sergeant Franks Letter

The Franks letter was addressed to Senator Harold Hughes of Iowa. Sergeant Franks said,"I am an intelligence specialist with the 432 Technical Reconnaissance Wing at Udom Thai AirForce Base, Thailand." (App. 300) "I and other members of the Wing ... have been falsifyingclassified reports for missions into North Viet Nam. That is, we have been reporting that ourplanes have received hostile reaction such as AAA and SAM firings whether they have or not."(App. 300) See, exhibit "L."

Air Force Chief of Staff General John D. Ryan initiated an Inspector Generalinvestigation. (App. 292-393) Lieutenant General Louis L. Wilson, Jr., Inspector General,traveled to Vietnam and began an investigation. The investigation spanned from March 11 to the16th

, 1972. (App. 292) General Lavelle fully cooperated with the investigation by submitting tointerviews on March 11, 12 and 15, 1972. (App. 301) General Wilson applied the publicly-knownRules of Engagement as the criteria for his investigation, and rejected General Lavelle's.

22See, Admiral Moorer before the Senate Armed Services Committee during his re-confirmationas Chairman of the Joint Chiefs of Staff testified as follows, "I can assure you, Mr. Chairman and SenatorSmith, that I watch these reports very carefully in order to evaluate what has taken place, the results ofthe operations and, of course, from that we develop recommendations...." (App. 1422)

230n the contrary, at times the JCS congratulated the Jh Air Force regarding protective reactionstrikes. On 17 February 1972, 1718 Zulu in a top secret message in response to a report of the bombdamage assessment Admiral Moorer sent the following message to Admiral McCain, General Abrams,General Lavelle and others: "REFERENCE REPORTED APPRAISAL OF TACAlR STRIKESAGAINST ENEMY 130MM ARTILLERY AND OTHER ENEMY LONG-RANGEARTILLERY/ROCKET SITES IN THE DMZ REGION. 2. ON BEHALF OF THE JOINT CHIEFS OFSTAFF PLEASE EXTEND OUR HEARTIEST CONGRATULATIONS TO ALL COMMANDERS,AIR CREWS AND GROUND CREWS FOR A JOB WELL DONE." (App. 285-286). (Compare, theJCS inquiry on January 5, 1972 at Moe Chau, General Abrams: "Actually, the mission was flown on the5th of January 1972, against the GCI site [delete]. JCS challenged it on the 5th

; we replied on the 6th andon the 7th they told us we could not do it." (App. 585»

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2. Inspector General Investigation

The Inspector General report using the publicly-known Rules of Engagement concludedthat General Lavelle had authorized strikes "assuming enemy reaction whether there is or not" and"to cover the true nature of these missions, reports normally show strikes are against AAA, evenwhen they are not." (App.295) The Report was finalized by Lt. General Wilson on March 20,1972, and General Lavelle was informed of the results. (App. 292) General Lavelle was accusedof violating the Rules ofEngagement and of ordering false reports to conceal the violations.

General Lavelle strongly objected to the Report's findings and urged Generals Wilson andRyan to reconsider their conclusions. (App. 294) General Wilson said that General Lavelleexplained that his interpretation was "based on 'reaction' not 'enemy fire.' In other words, therewould always be an enemy reaction on the radars - we just wouldn't always be able to detect it."(App. 396) He explained the miscommunication with his director of operations on the January 23Dong Hoi strike, and explained that he "didn't realize that he was, in effect, causing hissubordinates to have to falsify reports. He did indicate to me he recognized that he wasresponsible, however." (App.396) These explanations by General Lavelle were rejected byGeneral Wilson and General Ryan. Thus, the report was received by General Ryan as aconfirmation that General Lavelle violated the Rules ofEngagement and that he had caused falsereports to be prepared in order to conceal the violations. The IG recommended disciplinary actionfor General Lavelle. (App. 296)

Two days later, March 30, 1972, the North Vietnamese launched a full-scale attack onSouth Vietnam. The North Vietnamese poured over the DMZ in massive numbers supported byartillery and armored vehicles. Within thirty days all restraints on bombing in North Vietnamwere removed.

F. Removal from Command and Retirement in the Grade ofMajor General

General Lavelle was ordered to return Washington and report immediately to the personalquarters of the Chief of the Air Force on Sunday, March 26, 1972. (App.510) General Lavellewas presented two choices: Retire as a three-star or take a two-star position. General Lavellerejected these "face-saving" choices and insisted on the opportunity to explain himself personallyto the Secretary of the Air Force or the Secretary ofDefense.

General Lavelle appeared at the Pentagon the next day. He waited all day to meetSecretary Laird or Secretary Seamans. They were "unavailable" to meet with him. GeneralLavelle returned to the Pentagon each ofthe next four days (March 28-31, 1972) asking to speakto Secretary Laird or Secretary Seamans. The Secretaries refused to meet with him. Ultimately,when told by General Ryan that his pursuit of this issue could result in other officers in hiscommand suffering an adverse fate, General Lavelle relented and accepted retirement at therecommended grade of Lieutenant General. On Monday, April 3, 1972, General Lavelle wasexamined by a flight surgeon (App. 1160-1164), and on Tuesday, April 5, 1972, the MedicalBoard Report determined that he had "moderate coronary artery disease", as well as, other

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aliments. (App. 1160)

1. April 6, 1972, General Lavelle Retired; General Vogt Assumes Command

On Thursday, April 6, 1972, General Ryan officially relieved General Lavelle of commandand discharged him from the United States Air Force after 32 years, six months and fourteen daysof service. (App. 402-403; 1151-1152, 1157)

Rapidly and quietly arrangements were made for Lt. General John Vogt to take over thecommand of the 7th Air Force. He appeared in the Oval Office the same morning that GeneralLavelle was discharged. (App.397-401) Incredible as it seems now, the President was stillunaware of the allegations of unauthorized strikes. He did not know General Lavelle had beenfired and discharged.24 A review of the transcript of the April 6th discussion reveals that thePresident was never informed of General Lavelle's harsh treatment by the Department of Defense.(App.397-401) ChiefofStaffH.R. Haldeman told President Nixon that General Vogt"volunteered" for the position.25 General Vogt had an extended meeting during which he askedthe President to elevate the Air Force position to that of air commander from MACV air deputy.(App.399)

General Ryan issued a press release on April 7, 1972 stating that General Lavelle retiredfor "personal and health reasons" and Lt. General John W. Vogt was reassigned to the r AirForce command. No mention was made of General Lavelle's removal from command orreduction in grade. (App. 994)

24See, White House, Oval Office transcript, April 6, 1972, of the meeting between Lt. GeneralJohn W. Vogt, President Richard M. Nixon and Dr. Henry A. Kissinger (~, there is no mention ofGeneral Lavelle at all.) (App. 397-401); See also, DVD, conversation of June 14, 1972 between PresidentNixon and Dr. Kissinger, (App. 1508-1509) RN: "Why did he even remove him?" (App. 1509); RN:"Why'd he even remove 'em?" * * * HK: "Lavelle was removed at the end of March." RN: "Becauseof this?" HK: "Yea." RN: "Why the hell did this happen!? A decision of that magnitude without? Ishould have known about it Henry, ...." (App. 1511) (emphasis added). This supports the view thatthe President was not informed of the Lavelle firing in March 1972 until his meeting with Dr.Kissingner on June 14, 1972.

25 See, H.R. Haldeman: "You got a guy volunteering for the assignment because he know's itsfucked up out there." RN: "He volunteered?" HH: "Yea. He came to Henry and said, 'I'll give up myfourth star ... ifyou'll let me go out to Vietnam.... '" (App.400) See also, The Haldeman Diaries,Inside the Nixon White House, Haldeman, H.R, Berkley, (1995), pp. 530-531. ("The P had me stay whenHenry brought General Vogt in to discuss his show. The background of this is that in a briefing the otherday, Vogt mentioned to Henry that he was terribly distressed with the way the military and particularlythe Air Force were handling the Vietnam situation, .... Vogt made the comment to K that he would liketo give up his 4th star that he was about to get for going over to NATO and be assigned to Vietnam andget the thing straightened out. As a result of this, K suggested exactly that to the P and he bought theidea. Vogt is being transferred to Vietnam, although he's still getting his 4th star and he's going to go outthis weekend.")

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2. Congressman Otis G. Pike Calls for an Investigation

On Thursday, April 27, 1972, Congressman Otis G. Pike wrote to the chief counsel for theHouse Armed Services Committee requesting information on the retirement of General Lavelle.Congressman Pike's request was rebuffed by the Air Force. (App. 404) On May 4, 1972,Congressman Pike wrote to the Chairman of the Armed Services Committee requesting an"investigation" saying that there was "far more here than a retirement for personal and healthreasons." (App. 404-05; 994) On May 16, 1972, he alleged that the leadership of the U.S. AirForce was not being truthful. (App.405) This speech began a national debate. The firestorm offront-page articles in national newspapers and on national TV continued throughout the remainderof the year?6 A House Armed Services Committee inquiry was scheduled for June 12, 1972.

3. May 19, 1972, DVD Oval Office Conversation: President,Vice President Agnew, Dr. Kissinger and Admiral Moorer

On May 19, 1972, the President met with the Vice President Spiro T. Agnew who hadrecently returned from touring Vietnam. (See, DVD; see also transcript of meeting (App. 1503­1505)) While discussing with Admiral Moorer the bombing in Vietnam, the President expresseddissatisfaction with the Chief of the Air Force: "Ryan has got to get off his goddamn ass or he'sout." President Nixon said: "And I own the military issue. Or there is going to be a new chief ofstaff all up and down the line here. * * * Now get offyour ass. Now I want you to get thatson of a bitch Ryan on the phone, I want you to get McCain on the phone. * * * Tell them todo the job. * * * Ryan is going to have a resignation on this desk. I'll fire his ass out ofthereunless he gets some discipline in that outfit." (App. 1504-1505)

4. June 12, 1972, House Armed Services Committee Hearinginto "Unauthorized Bombing of Military Targets in NorthVietnam,,27

The House Armed Services Committee held a hearing looking into the "irregularities"

26See, Appendix 1041-1078; 1226-1483; note that research was limited the New York Times, forMay, June and September 1972.

270n June 13, 1972, the New York Times published a front-page story by Seymour M. Hershcaptioned, "General Testifies He Made 20 Raids Without Orders." (App. 1044) A second page-1 storyby Seymour M. Hersh on June 13 was published by the New York Times entitled "Airman Says RaidReports Were Falsified on Orders." (App. 1149-1150) A third article in the New York Times ran onJune 13 on page 20 entitled "A Businesslike General." (App. 1231) On June 14, the New York Timesran "Behind the Lavelle Incident, Weak Links in the Chain of Command." (App. 1047) In the same newspaper a Seymour Hersh, page-I, article was published under the title, '''Reaction' Strikes Called Cover­Up." (App. 1052)

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asserted by General Ryan. (App. 994J8 The Committee took two witnesses: General Lavelle andGeneral Ryan.

General Lavelle testified that he believed that his strikes were authorized under a liberalinterpretation of the Rules of Engagement, an interpretation he had been urged by highercommand to take and an interpretation that resulted in air strikes accurately reported to highercommand that had not been questioned by higher command. Consequently, he reasonablybelieved he was carrying out his duties as directed by the President and encouraged by hissuperiors. He fully explained what occurred regarding the misunderstanding which caused theinaccurate reporting of some missions. Although he had requested portions of the Rules ofEngagement in order to defend himself, he was denied access to any messages by the Departmentof Defense.

General Ryan testified that the Rules of Engagement had been constant since 1968. Heasserted that fighter planes and escorting reconnaissance aircraft would have to be fired on beforetaking offensive action against a SAM site. (App. 996) He added that the authority was limited toimmediate reaction and did not allow for subsequent retaliation. (App. 996) General Ryanasserted that General Lavelle violated the Rules of Engagement.

The Committee expressed skepticism of the Department of Defense refusal to disclose theapplicable Rules of Engagement to the House. See generally, Report of Dec. 15, 1972,"Unauthorized Bombing of Military Targets in North Vietnam", p. 7, exhibit "K." (App. 990­1005) General Ryan told the Committee that they were classified and could not be provided. TheSubcommittee made the following observations:

At the outset of our inquiry, DOD would not even divulge the whereaboutsof General Lavelle and thus temporarily prevented us from interviewing him.After several days, however, this ridiculous situation was finally resolved in ourfavor. Thereafter we requested copies of certain basic documents which areessential to the understanding of the case. These documents included the pertinentRules of Engagement in effect at the time the first alleged incident took place,together with all subsequent modifications or changes to the Rules, plus a list of allalleged unauthorized bombings involved, indicating the date, time and place ofeach incident, with a brief description of the results. We also request copies of allafter-action reports filed in each case. These documents have been denied to theSubcommittee. Instead, we have been given a short paraphrase of the OperatingAuthorities, so general in nature that it is of little or no value for our purposes.(App. 1000-100l)

280n June 10, 1972, the New York Times published a front-page story by Seymour M. Hershcaptioned, "General Bombed in North Before President's Order." (App. 1229) On June 12th

, 1972, theNew York Times published a front-page story by Seymour M. Hersh captioned, "Pike Charges a Cover­Up Over General's Dismissal."

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* * *It has been suggested by DOD that, at least initially, the secrecy which it

imposed in this case was imposed to protect General Lavelle from embarrassment.But having just summarily relieved him of his command, reduced him in grade,and caused him to retire, it is difficult to understand how either the Air Force orDOD could have added to the General's embarrassment. Therefore, one might beexcused for entertaining an uneasy feeling that someone other than General Lavellecould be receiving the benefits of this secrecy. (App. 1000)

The House Subcommittee concluded that General Lavelle was justified in the steps hetook in the discharge of his command.29 Several U.S. senators viewed General Lavelle'stestimony as contrary to the principle of civilian control of the military. Senate hearings werescheduled for September 1972.

5. June 14, 1972, Wednesday; DVD conversation betweenPresident Nixon, Secretary Rogers, and Dr. Kissinger

Two days after the House hearing, on June 14, 1972, President Nixon met in the morningwith Secretary of State William P. Rogers and National Security Adviser Henry A. Kissinger.(See, DVD; see also, transcript (App. 1506-1507)) Secretary Rogers alarmed the President withnews of the Lavelle hearing by saying, "that damn general is going to cause you a lot of trouble,that Lavelle." (App. 1506) The President does not express concern about the political fallout,instead he reacts with concern for General Lavelle asking three times, "is he being made a goat?"(App. 1506-1507)

6. June 14, 1972; DVD conversation between President Nixon and Dr.Kissinger

Later that day, the President and Dr. Kissinger engage in the conversation which inevitablydooms General Lavelle. This is a crucial piece of evidence supporting the Applicant's claim of aninjustice.

The President expressed personal concern for the welfare of General Lavelle and solicitedfrom Dr. Kissinger a process to correct the obvious false impression Congress received from theDepartment of Defense. "Well, let me ask you about Lavelle. I was, I had it on my list thismorning. I just don't want him to be made a goat, goddamnit." (See, DVD; see also, transcript(App. 1540))

29Exhibit "K", (App. 1002) (... [T]he total abolition of those conditions [ROErequirement of enemy reaction] two months later clearly demonstrated that General Lavelle'sefforts to give his pilots a fighting chance against the improved enemy system were not onlyproper, but essential." (emphasis added))

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Dr. Kissinger confirms that the White House ordered General Lavelle to do what theDepartment of Defense is now representing to Congress he had no authority to do. Dr. Kissinger:"What happened with Lavelle was he had reason to believe that we wanted him to take aggressivesteps." (emphasis added) The President clearly agrees that General Lavelle was justified toexecute these missions: "That's right, that's right." (App. 1540) (emphasis added)

Dr. Kissinger explains that when Sergeant Franks' letter landed in Washington, SecretaryLaird rapidly fired, demoted and discharged General Lavelle. Dr. Kissinger: "A, then he did it.And then suddenly Laird came down on him like a ton of bricks." (App. 1541)

The President now recognizes that an innocent man is being falsely accused of illegallyordering strikes. Stunned, President Nixon, asks why General Lavelle was removed by theSecretary ofDefense: "Why did he even remove him? You, you destroy a man's career." (App.1541) (emphasis added)

The President now realizes that Secretary Laird does not want to disclose the secret changein the ROE and he is now offended. He learns that General Lavelle was fired, reduced in gradeand now will be pilloried in the press as a renegade. The President expresses anger at not havingbeen consulted on the Lavelle removal: "Why the hell did this happen!? A decision of thatmagnitude without? I should have known about it Henry...." (App. 1543) Dr. Kissingerexplains that Secretary Laird removed him before Dr. Kissinger was informed of it. (App. 1543)

President Nixon realizes that the Department of Defense is withholding the actualauthority it gave to General Abrams and General Lavelle: "Because this is something we told.You remember we, we, we told Laird keep the pressure on there in March!,,30 (App. 1543)

The President in this conversation on several occasions asks Dr. Kissinger to come back tothe issue of General Lavelle.3! The President is furious about the obvious damning of an innocentman: "But, come back to Lavelle, I don't want a man persecuted for doing what he thought wasright. Ijust don't want it done. * * * Now, what is the situation? Is this, this, this, thissounds, connects the feelings with making the guy a goat now. It'sjust not right!" (App.1542)(emphasis added)

The President realizes that his advisers are not recommending a public correction. Finally

30Msg (TS), JCS to CINCPAC, 052334Z Feb 72, [App. 266], ("DAILY REPORT" for thePresident). Thus, the President received daily reports from February through March and was keenlyaware of the strikes.

3!When asked about General Lavelle, Dr. Kissinger changed the topic several times: (1) "I'mgonna tell you Mr. President. Laird is getting to be almost unbearable for this government." (App. 1541);(2) "When I ordered Moorer yesterday to stop bombing for three days....." (App. 1542); (3) "What Ithink now, today, we've got that China announcement. ..." (App. 1544); (4) "You know yesterday forexample I called Moorer about getting the raids called off." (App. 1545)

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the President relented: "In other words, how do we handle it public relations wise? Bill seemed tobe very concerned about it. What do you think?" (App. 1543)

Dr. Kissinger suggests the issue will "go away" and suggests that the Administration spinthe issue by claiming to have acted righteously: "I think this will go away. I think we should justsay a ... after all we took corrective steps. We could have easily hidden it. I think you might aswell make a virtue of a necessity." The President is still troubled by the idea of condemning aninnocent man: "It's just a hell ofa damn. And it's a bad rap for him Henry." (App.1543)

The President, apparently feeling boxed in, expresses frustration toward Secretary Laird.The President also confirms that he discussed this change in the ROE with Secretary Laird: "Wellyou see, deep down, the thing I'm gettin' at is this. That a, with Laird, I just don't like him tomake a goat of this fella. Because Laird knows goddamn well, that a, I told him, I said it'sprotective reaction. He winks, he says, 'oh, I understand.'" (App. 1547)

Though very troubled by what is the equivalent of a false conviction, President Nixonultimately allowed it. The public storm in the media continued to build until September when ittouched down with tornado-velocity with the Senate Armed Services Committee hearings.32

7. June 22, 1972, Admiral Moorer's Confirmation Hearing fora Second Term as Chairman of the Joint Chiefs of Staff

Admiral Moorer's first term as Chairman of the Joint Chiefs expired at the end of June1972.33 His re-confirmation hearing was taken on June 22,23 and 29, 1971. Admiral Moorertestified before the Senate Armed Services Committee, and was asked a number of directquestions about the Lavelle matter. (App. 1414-1419; 1420-1436) He took the position thatGeneral Lavelle had violated the Rules of Engagement. He said, "[i]n other words, the authorityclearly states that before these aircraft can take action against either the missile or any antiaircraftthat fires at them, that there must be evidence that they have in fact been fired upon. This hasbeen the authority and I think it is crystal clear." (App. 1423) The Chairman went on to say that

320n June 15, 1972, the New York Times published the opinion entitled, "... but Who's inCharge?" (App. 1051); June 16th a New York Times article by Mr. Hersh read, "Ex-Airmen Tell of20Planned Raids a Month in '70-71." (App. 1054); June 18th Tom Wicker wrote, ''that the Pentagon hassaid no further 'active investigations' are being made." (App. 1056) On June 19th

, Mr. Hersh published astory captioned, "Unauthorized Raids Attributed to Eased White House Control." (App.·1 057); on June21 the New York Times ran, "Aides to Abrams Silent on Raids" and the article noted that there may beimplications for General Creighton W. Abams who "has been nominated to be Army Chief of Staff."(App. 1058); on June 22, 1972 the New York Times published an article by Seymour Hersh entitled,"Young Air Officer Accuses Lavelle of Misconduct for Raids on North." (App. 1059).

33There was some question as to whether the President would re-nominate Admiral Moorer. InThe Atlantic, April 2002, ''Nixon and the Chiefs" there is some evidence that the President considered acriminal inquiry into the purported surveillance by agents of the Joint Chiefs of Staff of Dr. Kissinger'sactivities.

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the Rules of Engagement have remained essentially the same since 1968. (App. 1430)During a news conference on June 23, President Nixon, in answer to a question about the

fIring of General Lavelle said, "[t]he Secretary ofDefense has stated his view on that, has made adecision on it. I think it was an appropriate decision. I will not go beyond that." (App. 1061)Three days later, in the Oval offIce, Chief of Staff H. R. Haldeman suggested General Lavelle haddisobeyed Presidential orders, and recommended that the White House should maximize itpolitically as President Harry Truman did with General Douglas MacArthur. The Presidentresponded to Mr. Haldeman's suggestion with one word: "bullshit." [App. 476]

On June 29, 1972, Senator Stennis, Chairman of the Senate Armed Services Committeeordered a full hearing on the "unauthorized" strikes and General Lavelle's retirement at the gradeofLieutenant Genera1.34 On June 30th, in a press conference, the President said that AdmiralMoorer said the strikes were unauthorized but were "directed against only those military targetswhich were the areas being used for fIring on American airplanes. But he did exceedauthorization, it was proper for him to be relieved and retired. And I think it was the properaction to take, and I believe that will assure that kind of activity may not occur in the future."(App.l068)

8. United States Senate: Hearings Sept. 11-15, 18-19,22 and 29, 1972

The controversy over General Lavelle's authority to bomb now involved the entire upperechelon of the United States military. Admiral Moorer was thoroughly examined about theLavelle matter by Senators at his June re-confIrmation hearing; however, he was re-summonedbefore the Senate in the Lavelle hearings. Senator Hughes expressed dissatisfaction with AdmiralMoorer's failure to acknowledge conferring with General Lavelle regarding the November raids.

9. Suspension of the nominations of Admiral McCain, Admiral Moorer,General Abrams, and General Haig

a. Admiral Moorer

Admiral Moorer's testimony during his confIrmation hearing did not quell the call forfurther investigation. On the contrary, on the last day ofAdmiral Moorer's testimony, SenatorStennis ordered a full hearing into the authorization for the so-called "unauthorized" strikes.

b. Admiral McCain

The Armed Services Committee took the extraordinary step of suspending action on all

340n June 29, 1972 the New York Times published an article written by Mr. Hersh captioned"Confronted with New Testimony, Stennis Orders Full Hearing on Lavelle." Congressman Otis Pike wasquoted: "I don't see any way in the world that the Senate can demote General Lavelle at the same time itpromotes General Abrams." (App. 1065)

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nominations. This directly impacted Admiral John McCain who had been nominated by thePresident to be retired at the grade of four-star admiral. As over-all commander in the Pacific, theArmed Services Committee deemed him a pivotal witness to the issue of authority. He would besummoned before the Armed Services Committee.

c. General Abrams

The general suspension also affected the US Army. General Westmoreland, the formerChief, had retired. Thus, the Army was operating without a permanent Chief. General Abrams'presidential-nomination for the position of Chief of the Army was suspended until resolution ofthe Lavelle issue.

d. General Ryan

It was clear from the White House Oval Office meeting on May 19, 1972 between thePresident, Vice President, Dr. Kissinger and Admiral Moorer that the President was consideringfiring General Ryan.

e. Lavelle Hearings: Survival of the fittest

The so-called "Lavelle hearing" was no longer a simple "up" or "down" vote on GeneralLavelle's retirement grade. The vortex of media attention combined with the Department ofDefense's inconsistent explanations of what General Lavelle did wrong put into serious questionthe credibility and professional careers of Secretary Laird, General Ryan, General Abrams,Admiral McCain, and Admiral Moorer.35 Everyone's career was at stake. All of these flagofficers had seen what the civilian leadership lead by Secretary Laird had done to General Lavelle.Thus, had any of them attempted to provide evidence in support of General Lavelle, theconsequences could have been career-altering. Thus, General Lavalle's contemporaries in themilitary provided the evidence described below.

35See, June 23, 1972, the New York Times ran an opinion which was entitled "The LavelleCase" which said: "General Lavelle intimated that higher officials have been aware ofwhat he wasdoing. In light ofthis possibility, Lieutenant Terrill has called on Secretary ofDefense Laird to convenea court of inquiry 'concerning the propriety of the conduct' of four of General Lavelle'ssuperiors-General John D. Ryan, Air Force Chief of Staff; General Creighton W. Abrams, the newlydesignated Army Chief of Staff; Admiral John S. McCain, chief of the Pacific command, and AdmiralThomas H Moorer, chairman of the Joint Chiefs of Staff. Without such a review, there could belingering suspicion that General Lavelle, like Lieutenant Calley in the My Lai affair, was being solelyaccountable for a fault more widely shared." (emphasis added) (App. 1060); see also, June 23rd NewYork Times article quoting Senator William Proxmire as threatening to oppose General Abrams'nomination to Army Chief over the issue of the Lavelle Raids. (App. 1062) Even the nomination ofMajor General Alexander M. Haig, Jr., was suspended pending his being questioned about theLavelle raids. (App. 7846)

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Indeed the title of the hearings was, "John D. Lavelle for appointment as LieutenantGeneral on retired list of U.S. Air Force and matters relating to authority for certain bombingmissions in North Vietnam between November 1971 and March 1972; General Creighton W.Abrams for appointment as ChiefofStaff, Us. Army; Admiral John S. McCain for Appointmentas Admiral on the retired list ofus. Navy." (App. 481) (emphasis added)

On September 11, 1972, the Senate hearings began and finished 18 days later. Several factwitnesses testified. The primary witnesses regarding the issue ofthe authority to bomb were thefollowing: General Lavelle - September 11 and 12, 197236; General Creighton W. Abrams­September 13, 1972; General John D. Ryan - September 19, 1972; Admiral Thomas H. Moorer­September 29, 1972, and Admiral John S. McCain, Jr. on September 29, 1972. (App. 481-987)

10. General Lavelle, Sept. 11, 1972

General Lavelle rejected the assertion that he had exceeded his authority, and said that hehad applied the Rules ofEngagement as he had been urged to do by senior military officers in theJoint Chiefs of Staff. He explained his understanding of the Rules of Engagement, and the beliefthat he was justified in considering the netted radar system as enemy reaction. "In the face of thenew tactics, however, a more logical judgment appeared to be that since U.S. aircraft were underconstant surveillance by the air defense radars netted with the missile units, the system wasconstantly activated against us. In a relatively few instances, certain selected high priority targetswere struck under the latter interpretation which I consider was reasonable though possibly aliberal interpretation of a 1968 rules of engagement." (App. 489)

General Lavelle consistently asserted his earnestness in taking the actions he took. Hesaid, "all ofmy judgments were made as a field commander acutely mindful of my oftenanguishing responsibility for the protection of the lives and safety of thousands of courageousyoung airmen in my command." (App. 486)

He underscored his respect for the constitutional structure of civilian control of the armedforces. "No one knows better than I that the operations of our military forces must be responsiveto national objectives and that one of the primary cornerstones of our Constitution is the conceptof firm civilian control of the military establishment." (App. 492)

He explained the mistake of January 23, 1972 which caused inaccurate reports to beprepared. He persistently claimed responsibility for these reports because he personally feltresponsible and because he believed in the axiom that a commander is always responsible for theconsequences of actions of those under his command who follow his orders. "The young menwho made these reports were daily risking their lives for their country; they had been asked tofight an onerous war under morale-shattering handicaps which, as fighting men, they founddifficult to understand. Under these circumstances I could not and would not recommend that

360n September 11, the New York Times ran a story, "General Lavelle Now Asserts He'Committed No Wrong.'''

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they be disciplined and, as their commander, I have never suggested that the responsibility wasother than my own." (App. 487)

General Lavelle was thoroughly examined by the Committee regarding the strikes. Heemphasized that at no time did he mislead his superiors. (App. 487)37

11. General Abrams Sept. 13, 1972

General Abrams testified on September 13, 1972 that General Lavelle "acted against therules" of engagement. (App. 590) This opinion was based entirely upon the inspector generalreport which he never read. (App. 602; 611) General Abrams claimed to have "no personalknowledge" of any violations by General Lavelle. (App. 602) He went on to say, "rules havebeen our way of life out there. If I or any other commander of similar grade picks and choosesamong the rules, his subordinates are then going to pick and choose among the rules that he gives.There is no way to stop it and as long as this is the way the mission must be performed, you mustadhere to it or it will unravel in a way that you will never be able to control." (App. 589)However, when asked what was different between the raid Abrams approved (Moe Chau onJanuary 5th

), and the raids which Lavelle approved, General Abrams said that they did notaccurately report the Lavelle raids. He did not explain how the authority was any different. (App.591)

12. Sept. 15, 1972; DVD, Private meeting between PresidentNixon and Major General Haig in the Old Executive Office(DVD)

As the hearings were progressing, they received front-page attention. In the privacy of theOld Executive Office Building, on September 15, 1972, the President met with Major GeneralHaig, Deputy Assistant to the President for National Security Affairs. (See, DVD; see also, App.1518)

The President can be heard saying, "We've got to be able to do something on this a, thisLavelle."38 General Haig, "I don't think so sir. I've been watchin' it." The President againconfirms that Secretary Laird was fully aware of the secret change in the Rules of Engagement.He also expresses frustration with what the Department ofDefense is doing to General Lavelle:"We know damn well of course... We told Laird that if your guy Moorer if he isn't sure if it isprotective-reaction for him to protect himself if he wants to go back ..." General Haigacknowledged that General Lavelle was indeed encouraged to execute the strikes: "Well, we told

370n September 12, the New York Times, front page story was, "Lavelle Is Reported to TellSenators Abrams and Moorer Approved Raids." [App. 1234]

38The quality of audio tapes from the Old Executive Office Building is greatly inferior to that ofthe Oval Office conversations.

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them that. * * * Boy the guy make a mistake, made a hell of a mistake, wasn't it? He falsifiedreports. And it just wasn't necessary." The President was not impressed with the evidence ofGeneral Lavelle ordering false reports: "He didn't shred evidence." (App. 1518)

13. General Ryan, Sept. 19, 1972

The Senate hearing resumed with the Chief of the Air Force, General John D. Ryan,testifying on September 19, 1972. (App. 721) General Ryan testified that the Rules ofEngagement were given by President Nixon in a public address on November" 10, 1970: "If ourplanes are fired upon, I will not only order that they return the fire, but I will order that the missilesite be destroyed and that the military complex around that site which supports it also bedestroyed by bombing." (App. 760) General Ryan testified that unless there was an enemyreaction against the reconnaissance aircraft or its escort prior to the expenditure of ordnance, thenthe mission violated the Rules ofEngagement. (App. 760) He testified that there were only twotimes when these rules were suspended-December 26-31, 1971 and February 16-17, 1972. (App.761) General Ryan was asked whether General Lavelle received encouragement or impliedauthority by superior officers to make a liberal interpretation of the Rules of Engagement whichwould legitimize the strikes. General Ryan replied under oath: "I can unequivocally say I nevergave him the authority." (App. 727)

14. General Lavelle's written summation, Sept. 26, 1972

The Senate asked General Lavelle to supply additional information. General Lavelleprovided a written statement which closed, "Mr. Chairman it is not pleasant to contemplateending a long and distinguished military career with a catastrophic blemish on my record-ablemish for conscientiously doing the job I believe I was expected to do, and doing it with aminimum loss of American lives." (Letter of General John D. Lavelle to Chairman Stennissubmitted Sept. 26, 1972)

15. Admiral Moorer, Sept. 29, 1972

Admiral Moorer testified on September 29, 1972 that the Rule was, ''that the aircraft flyingover North Vietnam could not attack a ground target unless they were fired uponfirst." (App. 929)(emphasis added) He acknowledged that interpretation to say that there was authority to fire ifthe aircraft had been locked-on by radar. (App. 929) He said that whenever he spoke to GeneralLavelle about conducting any raids he assumed that mission would fire only if fired at. AdmiralMoorer described General Lavelle's wrongful conduct: "But I think where General Lavelle madehis mistake was to give that direct order to release the weapons regardless of whether they werefired upon or not. That was the rule. Without discussing the merits of the rule or the demerits ofthe rule, that is what the rule said." (App. 968)39

390n October 5, 1972, New York Times reporter Seymour Hersh published an article entitled"Lavelle Says Joint Chiefs Pledged Backing on Raids." (App. 1468)

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16. Admiral McCain, Sept. 29, 1972

Admiral McCain was the last witness to tesitify. While Pacific Commander, he visitedSaigon at least once a month, and "monitored everything that was going on." (App. 973, 976)His explanation of the Rules ofEngagement was simply that the enemy had to "take action first"before the U.S. planes could strike. (App.975) Admiral McCain said, ".... during the time thatI had command out there the enemy had to take action first." (App.975) Admiral McCain,however, never mentioned his July 25, 1971 top secret communication to General Abramsauthorizing U.S. planes to strike when the enemy radar "is activated against, our aircraft." (App.1027) Moreover, Admiral McCain asserted that he never said anything to General Lavelle "toencourage him to enlarge on those directives or to give a liberal interpretation to them or toexpand them in any way." (App.973) This public position was contrary from his top secretinstruction: "I urge you to make maximum use of this existing authority for immediate reaction toSAMs and AAA in NVN." (App. 1027)40 '

17. Oct. 6, 1972, Senate Vote

On October 6, 1972, the United States Senate voted 14-2 not to act on the nomination ofJohn D. Lavelle to the grade ofLieutenant General. Thus, he was retired at his permanent gradeofMajor General. (App. 1469)

18. "He Alone is Guilty, Says Senate Committee", New York Times

On October 8, 1972, the New York Times published an article entitled "He Alone isGuilty, Says Senate Committee" which said that on the basis of evidence accumulated duringmonths of investigation and weeks of hearings, the committee decided that Lieutenant GeneralJohn D. Lavelle was solely responsible for ordering and covering up some 20 or moreunauthorized bombing attacks on North Vietnam. (App. 1469t1 The formal reduction in grade

40See also, on October 8, 1971, Admiral McCain said, "To offset this threat I know that you willtake all possible measures to protect our aircrews...." (App. 6); on December 10, 1971, he said,"Restructure the reconnaissance aircraft escort package to give an increased protective reaction capabilityagainst the NVN threat. Support packages for these missions should be appropriately augmented toinsure punitive results from immediate protective reaction strikes in the event the unarmedreconnaissance aircraft is fired upon or activate against." (App. 89)

41In an opinion column in the New Yark Times on October 9th, 1972, it said: "The hearings by

the Senate Armed Services Committee in the case ofLieutenant General John D. Lavelle have ... all theearmarks of a coverup. Making one officer the scapegoat for more widespread wrongdoing would be aninjustice in any case...." The article said, "If the Joint Chiefs, on the other hand, acted in concert withcivilian authority to pursue one military policy while publicly proclaiming another, then the AmericanGovernment would stand exposed of an attempt to deceive its own people. . .. The case of GeneralLavelle cannot be allowed to rest until all the facts have been placed before the public. If the worstsuspicions are borne out by those facts, the entire executive and military leadership of this Governmentwill have to defend and explain its actions before the ultimate court of the American people." (App.

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for General Lavelle occurred on October 20, 1972 when General Ryan, Chief, ordered anamendment to General Lavelle's retirement order "to reflect in item 5A, Grade Retired In: 'MajorGeneral'." (App. 1150)

General Abrams was ultimately confirmed as Army Chief. Admiral McCain was retired asa four-star admiral. Admiral Moorer, Secretary Laird and General Ryan continued withoutinterruption in their positions. General Haig was confirmed as a four-star general.42

19. Oct. 23, 1972, President and General Haig in the Old Executive Office(DVD)

On 23, October 1972, at 8:34 a.m. in the Old Executive Office Building President Nixonand General Haig met. (See, DVD; see also (App. 1519-1520)) Although the hearings were over,President Nixon was still disturbed about the unfairness to General Lavelle: "All this goddamncrap about Lavelle! I feel sorry for the fellow because you and I know we did approve to Laird of'Protective Reaction' as being very generally." Once again, the President confirmed that GeneralLavelle was given authority to execute the strikes. General Haig responded, "Very liberal." "Ya,very liberally, very liberally," said the President. And, once again, the President confirms thatSecretary Laird was told directly by him about the change in the Rules of Engagement:"Remember I said it was, if they hit there, go back and hit it again. Go back and do it right. Youdon't have to wait till theyfire before youfire back Remember I told Laird that. And I meant it,"said the President. (App. 1519) (emphasis added) Mr. Nixon, "Now Lavelle apparently knew thatand received that at some time." (App. 1519)

General Haig reminds the President that General Lavelle was accused of falsifying reportsas well: "He did. The real bad part was that he falsified reports. Frankly, if he hadn't done that. .

" (App. 1519)

The President said the he and the Secretary of Defense both believed that General Lavellewas not responsible for the creation of false reports: "Hey, Laird agrees with me." (App. 1519)

General Haig, appeared surprised that the Secretary ofDefense agreed with the President'svelW: "What do you mean?" (App. 1519)

The President said in a forceful tone: "There wouldn't be any crap at all if we hadn'tstopped the bombing. If you look back, all he did was hit the goddamn SAM sites and militarytargets!" (App. 1519-1520) The President clearly recognizes that the reports were inaccurate

1470).

42Alexander M. Haig, Jr., was promoted from a two-star general to a four-star general the sameday General Lavelle went from a four star to a two-star-oct. 6, 1972. General Haig attended aconfirmation hearing was asked several questions about the Lavelle case. He responded by denyingknowing much about the matter, and by asserting executive privilege. (App. 1439-1464, 1448-1449)

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because he had ordered that all of the strikes be described as protective reaction whether theyactually were or not. Mr. Nixon is now clearly upset by the public humiliation that GeneralLavelle is suffering: "What in the name of God are you talking about? So what does Lavelleguilty of here about falsifying records? He would have never, he wouldn't have ever had to falsifythe records unless there'd been an order out there that weren't bombing the North!" (App. 1520)

20. Conclusion

General Lavelle was the subject of two sets of court-martial charges. (App. 1070-1078)

In summary, the charges preferred against General Lavelle were willful disobedience of alawful order of General John D. Ryan, and making a false statement to General CreightonAbrams with the intent to deceive.

In a memorandum to the Secretary of the Air Force, prepared after the Senate hearings, ananalysis was conducted of General Lavelle's potential defenses to the charges. The memorandumacknowledges that General Lavelle's liberal interpretation is technically correct. Although the"activated against" rule envisioned application to the Fan Song radar, "the rules did not specifythe type of radar." (App. 1074) The writer suggested that General Lavelle would put before thecourt (1) the SAM threat, (2) the fact that when he asked for authority to strike he was urged to"be more aggressive" using the authority he had; (3) he used his liberal interpretation on SAMsmoving into positions, (4) no air crews were lost, and (5) "His interpretation complied technicallywith the ROE's." The writer concluded, "I am convinced that after hearing such testimony a courtwould be inclined to either accept his technical defense-i.e., that he had complied with the ROE's,as written...." (App. 1075) Thus, the writer concluded, "[i]n my opinion, ....a charged ofdereliction based upon General Lavelle's interpretation of the ROE's is not warranted.Examination of the evidence reveals that there is ample room for disagreement as to their intentand for interpretation in their application." (App. 1076). The Secretary of the Air Forcedismissed the charges.43

The fact that General Lavelle was authorized to conduct these air strikes was not known bythe public until February 2007 with the publication of "Lavelle, Nixon and the White HouseTapes" in the Air Force Magazine. (App. 1247-1251)

General Lavelle was asked by Senator Byrd: "Do you feel, General, that the actions takenagainst you by the Air Force constitute punishment?" General Lavelle responded: "I don't thinkthey were fair. Yes, I think they constitute punishment, very definitely." (App.512)

The removal, reduction in grade and retirement of General Lavelle was an injustice. The

43"The Air Force announced today the dismissal of court-martial charges filed against MajorGeneral John D. Lavelle...." See, New York Times, October 24, 1972. (App. 1481) Senator Hughescalled the Air Force decision "in effect, a slap on the wrist for flagrant violations of orders." See, NewYork Times, October 25,1972. (App. 1480)

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Senate Committee on Armed services relied on the Department of Defense representations toconclude that General Lavelle had violated the Rules of Engagement. Based upon a morecomplete record, it is now clear that this is not true.

VI. False Reports

The second step in the injustice was the accusation that General Lavelle had intentionallycaused false reports to be prepared for the purported purpose of concealing the alleged violation ofthe Rules of Engagement.

The Non-Prosecution Memorandum prepared for the Secretary of the Air Force made clearthat General Lavelle was innocent of any allegation of ordering false reports. The Memorandumspecifically addressed the allegation related to false reporting as follows:

9. . . . There is also evidence that subordinates falsified, in one type of report(the OPREP-4) the targets struck. ... However, there is no evidence that this typeoffalsification was caused, directly or indirectly, by anything General Lavellesaid, and, although he was shown the accurate "specat" reports, there is noindication that he was shown or was personally aware ofthe false reports in theOPREP--4. (App. 1072-1073) (emphasis added)

* * *

19. There is no indication in any of the evidence that General Lavelle himselfmade afalse report. ... (emphasis added)(App. 1075)

20. Evidence is clear that General Lavelle was not personally aware ofthedetailedfalse reporting (in the OPREP-4) that occurred as a result of his statement.Evidence is also clear that he did not instigate the false reporting in the OPREP-4concerning targets struck. (emphasis added) (App. 1075-1076)

General Lavelle consistently assumed responsibility for his order to the director ofoperations on January 23, 1972 which was that U.S. pilots could "not report 'no reaction.'" It wasthis poorly articulated order that was linked to the creation of inaccurate reports. Former GeneralCounsel to the United States Senate in the Lavelle hearings, R. James Woolsey, wrote to theBoard as follows: "But it is important to understand that the only offense of which GeneralLavelle was in fact guilty was not being sufficiently informed about the format of some computerdata forms. He was in fact reporting the pre-planned strikes accurately in the specats, and he wasnot stretching the authority given him verbally to conduct the pre-planned strikes by the President(via Ambassador Bunker) and the Secretary ofDefense." (App. 1497)

The injustice was that General Lavelle suffered removal, retirement and grade reduction,in part, because it was believed that he ordered false reports in an intentional effort to violate theRules of Engagement. Based upon a more complete record it is now clear that this is not true.

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VII. Legal Authority to Correct a Record and/or an Injustice

A. Statutory authority, Title 10 USc. § 1552

Title 10 U.S.C. § 1552 (a)(I) states, in part, as follows:

The Secretary of a military department may correct any military record ofthe Secretary's department when the Secretary considers it necessary to correct anerror or remove an injustice.

B. Common law authority

In Porter v. United States, 163 F.3d 1304, 1310 (Fed.Cir. 1998), the court considered"questions of statutory interpretation of the law that provides for the creation and empowermentof civilian boards for the correction of military records, 10 U.S.c. § 1552 (1994)...."

1. Broad authority

"Section 1552 of title 10 conveys broad authority to the corrections boards regarding howthey may exercise their statutory responsibilities, and contains no prescriptions on how they mayfulfill their statutory charge." Id., 163 F.3d at 1324 (emphasis added).

"The Air Board is authorized by section 1552 and the regulations promulgated there underto receive and pass upon applications form current and past Air Force military personnel for thecorrection of their military records. This authority extends to all military records, and theauthority of the Air Board to recommend corrections to the Secretary is unfettered. According tothe government, the Air Board is empowered to use its authority with sound discretion." Id., 163F.3d at 1321. (emphasis added).

"Section 1552 does not limit the kind ofmilitary record subject to correction.Consequently, a corrections board may entertain any kind of application for correction, rangingfrom changing the terms of a discharge, [cite omitted], to correction of error in citation of awardsreceived, [cite omitted], to amending records of Porter in this case, which include OERs, passover(or nonselect) decisions by promotion boards and SSBs, and discharge orders." Id., 163 F.3d at1311.

"Without deciding, we might speculate that other kinds of error would qualify for an AirBoard Conclusion that the demonstrated error vitiates the initial passovers. Matters such asimpermissible consideration ofrace, sex or religion, or instances of an illegally composedselection board (one thus incapable ofproducing a legal result) corne to mind. For such matters,the civilians on the Air Board possess the competence and confidence to make a correct decisionand recommendation without judging the competing qualities of specific military experiencerecords." Id., 163 F.3d at 1321. (emphasis added) Though the case at bar does not involve aselection board per se, the Senate's consideration of inaccurate and false information calls into

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question the competence of the decision to retire John Daniel Lavelle at the grade of MajorGeneral instead of General. The Air Board must be able to act in the event material errors ofaprocedural, factual, or compositional nature infect the Special Selection Board. Id., 163 F.3d at1323.

"Civilian corrections boards retain their full powers to correct military records in order toinsure that the promotion system is operated fairly and according to governing statutes andregulations. Even without the harmless error construct, corrections boards have ample authorityand responsibility to guarantee that an officer's record will be substantially complete and fairwhen presented to selection boards, and that the processes of selection boards, including SSBs,

, will not be arbitrary, capricious or contrary to law." Id., 163 F.3d at 1324. (emphasis added).

Section 1552 conveys broad authority, as well as, significant responsibility to correcterrors and injustices when discovered.

2. Standard of proof: Probable material error

"Nevertheless, on June 9, 1983 the ABCMR [Army Board of Correction of MilitaryRecords] denied plaintiffs request for reconsideration due to 'insufficient relevant evidence todemonstrate the existence ofprobable material error or injustice. '" Collins v. United States, 14Cl.Ct. 746, 749 (May 19, 1988)(emphasis added). The claimant must provide sufficient relevantevidence to demonstrate the existence of probable material error or injustice.

It is respectfully submitted that the Applicant has provided sufficient relevant evidence inher demonstration of a probable material error and injustice in the handling of General Lavelle'sremoval, retirement, discharge and demotion.

VIII. Timeliness

Title 10 U.S.C. § 1552 (b) states, in part, as follows:

No correction may be made under subsection (a)(l) unless the claimant orhis heir or legal representative files a request for the correction within three yearsafter he discovers the error or injustice. However, a board established undersubsection (a)(l) may excuse a failure to file within three years after discovery if itfinds it to be in the interests ofjustice.

A. Three years from the 2007 date ofdiscovery

The ABCMR allows claims to be filed within three years after a claimant discovers theerror or injustice, 10 U.S.C. § 1552. Collins v. United States, 14 Cl.Ct. 746, 751 (May 19, 1988).

1. Discovery begins on Discharge absent affirmativeconcealment of facts

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The statute begins to run in a wrongful discharge case on the date of the discharge, absentaffInnative concealment of facts. Wilcox v. United States, 3 Cl.Ct. 83, 84-85 (1983), aff'd, 769F.2d 743 (Fed.Cir. 1985); Monningh v. United States, 1 Cl.Ct. 427, 429 (1983). Collins v. UnitedStates, 14 Cl.Ct. 746, 751 (May 19, 1988).44 The Department ofDefense and the executivebranch affinnatively concealed the fact that General Lavelle was authorized. The House Reportissued after General Lavelle's grade reduction demonstrates the existence ofaffInnativeconcealment of the discovery of the error or injustice. The Report states as follows:

"An interpretation of this protective reaction authorization is the crux ofthis controversy. An examination of the Rules is essential for any definitiveresolution of the matter. Unfortunately, however, the Department ofDefenserefused to comply with the Subcommittee's request for a copy of the pertinentRules." (App. 995)

* * *

"How much of that evidence might still be available is questionable, for theincredible secrecy with which some DOD representatives have surrounded thiscase suggests that the files may have been thoroughly sanitized by this time."(App.1000)

* * *

"Thereafter we requested copies of certain basic documents which are essential tothe understanding of the case. These documents included the pertinent Rules ofEngagement in effect at the time the first alleged incident took place, together withall subsequent modifications or changes to the Rules, plus a list of all allegedunauthorized bombings involved, indicating the date, the time and place of eachincident, with a brief description of the results. We also requested copies of theafter-action reports filed in each case. These documents have been denied to theSubcommittee. Instead, we have been given a short paraphrase of the OperatingAuthorities, so general in nature that it is oflittle or no value for our purposes."(App. 1001) (emphasis added)

Additionally, the June 14, 1972 discussion between President Nixon and Dr. Kissinger inwhich it is decided that the United States government might as well "make a virtue of a necessity"by asserting that General Lavelle did not have authority and "after all we took corrective steps" isan affinnative concealment of facts which precluded discovery for 35 years. The executive

44A nonselection for promotion or a discharge results in an immediate injury. "The injuryresulting from a termination of employment is obviously 'knowable.'" Braude v. United States, 218Ct.Cl. 270, 274, 585 F.2d 1049, 1051-52 (1978); Willcox, 3 Ct.C!. at 85. Collins v. United States, 14Cl.Ct. 746, 752 (May 19, 1988)

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branch asserted that the information requested by General Lavelle, the House and the Senate was"classified."

Congressman Pike noted, "... the Pentagon wouldn't produce the rules of engagement...." (App. 1205) He recalled the, "Chairman of the Armed Services Committee, coming up to me aswe walked back from the floor and telling me that the Secretary ofDefense (Mel Laird) was in hisoffice and wanted to talk to me. Questions I was asking about General Lavelle, said Hebert, couldaffect the next [presidential] election." (App. 1205-1206) "Mel Laird, in Mr. Hebert's office, toldme he would give me all the details on the Lavelle case if I would promise not to talk about itanymore. I declined." (App. 1205-1206)

Lieutenant General Aloysius G. Casey affirmed that the "first disclosure to a third party ofthe contents" of the message traffic which confirmed the accuracy of General Lavelle's testimony"was to the Air Force Magazine in November 2006 for the purposes of publishing an article onthe topic." (App. 1488) The first public disclosure of the information regarding the injusticeoccurred with the publication of "Lavelle, Nixon and the White House Tapes" in the Air ForceMagazine in February 2007. Likewise, General Lavelle's daughter, Geraldine (Lavelle) Enloe,declared that she and her family were unaware of the exculpatory evidence until the publication ofthe article: "The first time we became aware of proof of this injustice was February 2007 uponreading 'Lavelle, Nixon and the White House Tapes' in the Air Force Magazine." (App. 1531);see also, Exhibit "P."

B. Rationale for failure to file within three years

The Board may "in the interest ofjustice" review and correct any military record, nomatter how long ago the alleged error or injustice occurred. 10 U.S.C. § 1552(d) (1982); see, M,.,

Ballenger v. Marsh, 708 F.2d 349 (8th Cir. 1983). Thus, even if the Board were unpersuaded bythe arguments above, it is within the statutory authority of this Board to consider the instant mattereven if it were filed out of time. Consideration of the instant application would avoidcompounding the significant injustice already suffered by General Lavelle, his wife and theirseven children.

The facts of this case establish the paradigm example of why it would be "in the interest ofjustice for the Board to waive the time limits." The facts in support are the following:

1. John D. Lavelle was wrongfully accused and incorrectly found to have violated theRules of Engagement.

2. The White House, Department of Defense, and Joint Chiefs of Staff possessedevidence which would have exonerated General Lavelle.

3. The White House, Department of Defense and Joint Chiefs of Staff provided anincomplete and inaccurate record to the United States House of Representativesand the United States Senate regarding the Rules of Engagement.

4. John D. Lavelle and his lawyer made repeated demands in 1972 upon theDepartment ofDefense, the United States Air Force and the Joint Chiefs of Staff

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for these very records which would have evidenced authorization from hissuperiors; however, each request denied on a Department of Defense claim of"national security."

5. The information sought by General Lavelle was classified "top secret" and notaccessible through the civil courts.

Out of a sense of equity, the Applicant respectfully asks this Board to consider the instantApplication as "timely filed."

IX. Loss of income45

Title 10 U.S.C. § 1552 (c) states, in part, as follows:

The Secretary concerned may pay, from applicable current appropriations, aclaim for the loss of pay, allowances, compensation, emoluments, or otherpecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result ofcorrecting a record under this section, the amount is found to be due the claimanton account of his or another's service in the ... Air Force ..., as the case may be,or on account of his or another's service as a civilian employee. If the claimant isdead, the money shall be paid, upon demand, to his legal representative. However,if no demand for payment is made by a legal representative, the money shall bepaid-(l) to the surviving spouse, heir, or beneficiaries, in the order prescribed bythe law applicable to that kind of payment. ..

A major reason for allowing a cause of action to be based on an initial favorableadministrative determination, that would otherwise be barred by limitations, is that once anadministrative body decides relief is proper on the claim and presentation then made, it should notbe free to illegally or arbitrarily award less relief than that requested by the claimant in thatproceeding. In the context of the correction of a military record, this means that once adiscretionary decision is made to correct a record, the grant ofappropriate monetary relief is notdiscretionary but automatic.

The Applicant seeks the restoration of her husband's rightful grade of Four Star General.The Board may also deem other relief appropriate. Thus, the Applicant pleads to the Board totake all steps appropriate to correct the injustice and error described above, and award theApplicant that which the Board deems appropriate. Ray v. United States, 197 Ct. Cl. 1,453 F.2d754 (1972). Collins v. United States, 14 Cl.Ct. 746, 752 (May 19, 1988).

45See generally, The Lavelle Case: Crisis in Integrity, by Gordon A. Ginsburg, p. 59 whereGeneral Lavelle's retirement circumstances are analyzed.

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X. Conclusion

R. James Woolsey served as General Counsel to the Senate Committee on ArmedServices in 1972. Since then he has served the United States government as Under Secretary ofNavy and as Director of Central Intelligence.

In the capacity of General Counsel, he was tasked to conduct an investigation of theLavelle issue. He not only took deposition testimony, but also examined the key witnesses. Afterreviewing some of the new evidence, Mr. Woolsey wrote to the Board:

"The tapes and Secretary Laird's letter, however, make quite clearsomething of central importance to the Committee's decision about GeneralLavelle that was unknown at the time to me, and to the best of my knowledge tothe entire Committee: General Lavelle was given explicit authorization by thechain of command, from the President on down, to interpret the then-current Rulesof Engagement (ROE) for "protective reaction strikes", in Secretary Laird's word"liberally". Secretary Laird goes further and stresses in his letter that "[t]he neworders permitted hitting antiaircraft installations and other dangerous targets ifspotted on their missions, whether they were activated or not."

* * *But if it had been known by the Committee that his allegedly unilateral

decision to order pre-planned strikes of this sort had been verbally approved by theSecretary of Defense and the President, I feel quite confident that the Committeewould not have judged General Lavelle as it did.

* * *"I strongly urge that the injustice done to General Lavelle finally be

corrected."-R. James Woolsey

See, exhibit "B", (App. 1494-1497)

Mrs. Lavelle, in her 90th year, respectfully requests this Honorable Board exercise its fullstatutory and common law authority to correct this long-standing injustice.

Specifically, she requests that the Board make a recommendation to the Secretary of the

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Air Force, Secretary of Defense, and the President of the United States to posthumously nominateMajor General John D. Lavelle to the corrected rank of General officer.

Respectfully submitted,

Counsel Signature Page

The undersigned counsel respectfully request this Honorable Board grant the relief

requested by Applicant, Mrs. John D. Lavelle.

Daniel T. Brier

Counsel for Applicant,Mrs. John D. Lavelle

Myers, Brier & Kelly, LLP425 Spruce Street, Suite 200

P.O. Box 551Scranton, PA 18501

3o~fZ(J0'8Counsel for Applicant,Mrs. John D. Lavelle

Myers, Brier & Kelly, LLP425 Spruce Street, Suite 200

P.O. Box 551Scranton, PA 18501

Counsel for Applicant,Mrs. John D. Lavelle

Myers, Brier & Kelly, LLP425 Spruce Street, Suite 200

P.O. Box 551Scranton, PA 18501

Co-Counsel Signature Page

The undersigned counsel respectfully requests this Honorable Board grant the

relief requested by Applicant, Mrs. John D. Lavelle.

Counsel for Applicant,Mrs. John D. Lavelle

Co-Counsel Signature Page

The undersigned counsel respectfully requests this Honorable Board grant the

relief requested by Applicant, Mrs. John D. Lavelle.

Edward F. Rodriguez, JrAttorney at Law

Counsel for Applicant,Mrs. John D. Lavelle

Certificate of Service and Acknowledgment

It is acknowledged that the following people assisted in the submission of records

or participated in the preparation of the foregoing submission:

Beth A. SmithCarol A. KelleherFrances R. Towers

Col. Donald W. Brewer