BUSH’S BETRAYAL OF AMERICA’S
NATIONAL SECURITY
PART II: BUSH’S OBLIGATIONS REFINED---
The Code of Federal Regulations and Bush’s Obligation to America’s National Security as a Member of the Armed Forces
[Note: Links to full text scanned versions of the Code of Federal Regulations (as well as relevant provisions from the US Statutes and Air Force policy manuals) cited in this article can be found on the Source Documents page.]
United States Statutory law set the baseline requirements for members of the Air National Guard, while allowing the President, the Secretary of Defense, and other officials to “prescribe regulations” which define, refine, and provide exceptions for the requirements found in the statutes. These regulations are promulgated through such devices as Executive Orders or Department of Defense Directives. The most important of these regulations go through a review/vetting process that results in their inclusion in the Code of Federal Regulations (CFR). Once a regulation is published in the CFR, it effectively becomes part of the law of the land.
In addition to providing greater specificity to the provisions found in the Statutes, the regulations found in the CFRs also endeavor to consolidate the various statutory provisions on any one subject, and resolve any ambiguity or possible contradictory provisions found in the Statutes. .
The regulations to which Bush was subject were found primarily in CFR Title 32, Armed Forces[1]. It should be noted that not all Air National Guardsmen were subject to the requirements as outlined below. The Guard had more flexibility in what it could absolutely require of members who had completed their Military Service Obligation, or had served on active duty for 24 months, or who had served in combat for 30 days. Consistent with the wording and intent of the Statutes, however, the regulations provided relatively little flexibility when it came to those who (like Bush) had yet to complete their statutorily prescribed term of service, had not served on active duty for 24 months, or not served in combat.
TRAINING PARTICIPATION
REQUIREMENTS
CFR 101 reiterates the attendance requirements for members of the Air National Guard, i.e. members are required to “[a]ssemble for drill and instruction at least forty-eight (48) times a year, and participate in training at encampment, maneuvers, or other exercises at leat fifteen (15 days a year.”
SATISFACTORY PARTICIPATION
EXPECTED
Air Force National Guard members were “expected to “participate and perform satisfactorily…in fulfillment of their obligation…and in accordance with the standards prescribed.”
PURPOSE OF REQUIREMENT FOR SATISFACTORY
PARTICIPATION.
The CFR also makes it clear that the purpose of requiring satisfactory participation was to “maintain the proficiency of the unit and the skill of the individual.” (This is comparable to the Statutory provision which states that the purpose of training is to provide “trained units and qualified individuals.”)
SATISFACTORY PARTICIPATION
REQUIRED
But members were not merely expected to participate satisfactorily, they were required to do so. The CFR itself prescribes that the regulations “require individuals to meet the standards of satisfactory performance…in order to continue in a draft-deferred status.”
LIMITATIONS TO EXCEPTIONS
FOR MANDATORY TRAINING
The CFR allows the “Secretaries of the Military Departments” to “grant exceptions” to the mandatory training requirement, but sets an absolute minimum requirement beyond which these exceptions cannot go.
Although members were require to either attend mandatory training sessions or perform substitute training, commanders were permitted to make exceptions if the circumstances warranted. There was an absolute minimum participation requirement of attendance at 44 training periods or substitute training (“provided the unexcused absence does not exceed 10 percent of scheduled drills or training periods.”)
The regulations also make it clear that missing a scheduled drill could only be excused if the drill was missed for a very good reason (“because of sickness, injury, or some other circumstances beyond the individual’s control.”) Even more importantly, there was no such thing as an “excused absence” that was not “made up” (“all other situations are considered unexcused absences”.) Commanders were not permitted, under the law, to allow people like Bush to miss more than four drills per year that were not made up.
UNSATISFACTORY
PARTICIPATION DEFINED
As noted in the article on Bush’s Statutory-based obligations, he was required to be part of the Ready Reserve for six years. This meant that if Bush failed “to meet the standards as prescribed by the Military Departments concerned for attendance at training drills” or failed to “fulfill his individual obligation or agreement to be a member of a unit of the Ready Reserve” his participation was defined as “unsatisfactory.”
CONSEQUENCES OF FAILURE TO SATISFACTORILY
PARTICIPATE
The primary means of enforcement of the regulations concerning satisfactory participation was a compulsory order to involuntary active duty (“will be ordered to active duty”) for up to 24 months. (It should be noted that the term of “up to 24 months” is limited to the number of days that would be required for a member to accumulate 24 months of active duty. At the time that Bush stopped showing up for drills, he was still 113 days short of the 24 months of active duty. Members who had served 24 months would be ordered to a maximum of 45 days of active duty for “unsatisfactory participation.”)
Failure to satisfactory participate could also result in a loss of draft deferment with immediate induction through the Selective Service System, and the loss of “federal recognition” as a member of the Air National Guard. Such provisions, however, were used only in extreme cases, such as when a member was called to active duty for failure to “satisfactorily participate” and could not be located (e.g. had deserted).
“PERSONAL HARDSHIP” EXCEPTION
If an order to active duty would have resulted in “extreme personal hardship” would not be compelled to perform that duty. But “extreme personal hardship” was defined as far more than an inconvenience. It required that active duty service would result in an “extreme personal hardship to his dependents.” It also required that this hardship claim be “initiated by the reservist, and must be supported by documentary evidence”
In other words, Bush was not qualified under any “personal hardship” exemption that would have allowed his superior officers in the Texas Air National Guard to ignore Bush’s “unsatisfactory performance” as defined under United States Law.
MEDICAL EXAMINATION AND CERTIFICATION REQUIREMENTS
All members of the Ready Reserve were required to get a physical examination at least once every four years, and to certify their fitness to serve annually. (The “annual physical for pilots” provision to which Bush was subject was not specifically outlined in the CFR, but fell under the “or more often as the Secretary concerned considers necessary” provision.)
Members who failed to comply with this provision were subject to a special call to active duty in order to compel a physical examination.
It should be noted that, according to journalists who examined Bush’s medical records, those records only went through 1971. This strongly suggests that Bush did not merely fail to get his pilots physical, he also failed to submit the necessary annual certification of fitness to serve required of every member of the Air National Guard, including those who were not required to get an annual physical to maintain their “flying status.”
DISCUSSION
The regulations found in the CFR fulfill the intent of the statutory provisions on which they are based. In addition to reiterating and refining the training requirements found in the statutes, these regulations set reinforce the sense that those who had entered the National Guard as a means of avoiding the draft were subject to a different, and much stricter, set of expectations than those who had entered before the Vietnam War, or those that had served in combat.
The CFR also makes it clear that the “50 points standard” on which the White House bases its claims could not exist[2], and that Albert Lloyd’s statement that Bush “completed his military obligation in a satisfactory manner” is not merely false, but an unambiguous lie. Bush’s “military obligation” was his six year “Military Service Obligation”, and “satisfactory participation” is specifically defined in the CFR as requiring attendance (or performance of substitute training for) at least 90% of mandatory unit-based training,
Lloyd denies that the requirements found in the Statutes and CFRs are relevant. In a phone conversation in April, 2004, Lloyd specifically denied that the laws that governed Bush’s participation in the US military had any bearing on Bush’s obligations. Lloyd acknowledged that he was aware that Bush had an unfulfilled “Military Service Obligation” at the time he examined the Bush military records. Lloyd was even read the relevant regulations verbatim, and asked to cite some overriding regulation, and refused to do so.
Prior to Lloyd’s refusal to address the implication of United
States law, there remained a possibility that the errors found in his
memo were the result of an inattention to detail. But given Lloyd’s
refusal to acknowledge the relevant of United States law, these “errors” must
be considered part of a coverup of Bush’s record of contempt for America’s
national security.
1) Lloyd misstated the number of points that Bush could have acquired for his last “retirement year”, claiming that Bush had received 56 points when the numbers he cited (19 points for “active” duty”, 16 points for “inactive training” and 15 “membership points”) added up only to 50.
2) Lloyd lied about the dates on the last “points summary”, claiming that it was for the period “May 73-May 74”. Lloyd acknowledged in the phone call that the document that he examined was the one released to the media on February 10, 2004. That document covers the period May 27, 1973 to September 15, 1973.
3) Lloyd lied about the total number of points reflected in that document, claiming that Bush “accumulated…15 points for his guard/reserve membership.” The document shows that Bush received only 5 points for “membership”, adding up to only 40 total points.
4) Lloyd had to lie about what the document showed in order to maintain the applicability of his own mythical standard. Lloyd’s “standard” required that Bush have a “satisfactory year for retirement/retention”. Not all “points” earned are applicable to establishing a good “retirement year”, and Bush received only 38 points toward a good “retirement year.” Because the maximum number of additional “membership” points Bush could have received after September 15, 1973 would have been 10, even under Lloyd’s own standard, Bush would have failed to qualify for a “satisfactory year for retirement/retention.”
Lloyd also “forgot” to mention the single most damning
fact disclosed by the Bush files. After
examining Bush’s record of service, the Air Force itself placed Bush on
“inactive status” as a result of his failure to “satisfactorily participate” as
a member of the United States Armed Forces.
Part III examines the specific policies and procedures of the Air Force to which Bush was subject, including the policies that state specifically that the only way Bush could have been placed on inactive status was as a result of punitive action taken by the Air Force.
APPENDIX I
Part
50 of Title 32 of the CFR deals with “Fulfilling the Military Service
Obligation”. It begins by reiterating
the statutory basis of the Military Service Obligation…
…then
goes on to state that those with an MSO will not be discharged for failure to
“satisfactorily participate, but will be subject to being called to active
duty. This is a key passage, because
Bush was placed in an “inactive status” by the Air Force, something which,
under Air Force Policy, could only occur if the member were being “completely
severed” from military status, or had been designated as a “non-locatee.”
Part
102.3 establishes “Uniform Training Categories” for all Reservists, including
members of the National Guard.
(Note that “Category G”, which was the training category of the Air Reserve Squadron that Bush attempted to join in May, 1972, was for “Members of Congress and other key federal employees, and that this category has no training requirements.)
CFR
102 establishes that all “active status” members of the Air National Guard were
in Training Category “A”. (Chapter 5 of 32 USC
requires 48 inactive unit-based drill periods and 15 days of active duty per
year. Training Category “A” requires
the same number of inactive drills, and no less than 14 days of active duty.)
CFR
102 also reiterates the purpose of the Reserves and National Guard, e.g. “to
insure that trainined units and qualified individuals are available for active
duty in time of war or national emergency.”
And
here is the only provision in the CFR that mentions a “50 point rule”. Note that it is applicable only to those who
are “qualified for retirement” (e.g. those that already have been credited with
20 years of service toward retirement.)