User talk:Morinao/Archive 2

Honorary Promotions

Initial discussion on Doolittle/Eaker (including Hopper and Chennault)

I'm writing an article that benefits from some of your work here--it's about the evolution of tombstone promotions from blanket promotions to the more honorary individual type, which seems to have transitioned from early attempts to promote Billy Mitchell posthumously in the 1930s and 1940s (his promotion eventually passed Congress in 2004, but was never acted on). Anyway, I'm looking at your section on the appointment clause promotion authority, and I'm curious if you know of any other cases other than Bulkeley and Smith who were promoted this way into or in retirement (and how can you tell they were promoted that way--I assume from the fact they were confirmed by the Senate just prior?). The problem is that for those already retired, 10 USC 601 clearly states that they must be on active duty to be confirmed, and as of 2000 Congress codified the honorary promotion route under 10 USC 1563, which until recently clearly required a bill passing both chambers. I'm trying to figure out if anyone else was elevated via appointment clause authority, particularly if already retired. — Preceding unsigned comment added by Foxtrot5151 (talk • contribs) 03:39, 25 September 2022 (UTC)

Morinao rarely answers queries on his talk page anymore - if you need an immediate answer you can try asking Neovu79. As for me, I don't have an immediate answer on other cases besides Bulkeley and Smith. SuperWIKI (talk) 04:35, 25 September 2022 (UTC)

Foxtrot5151 while an officer can be approved for promotion per 10 U.S.C. § 624, the secretary of military service, must still issue a date of rank for an officer to assume rank under 10 U.S.C. § 741(d). If the secretary doesn't issue a date-of-rank. Then the officer is administratively not promoted and cannot assume the rank. 741 was effective as of 1981, so I couldn't tell you too much about honorary ranks prior to that date. I do know that the military still issues, honorary ranks, ie Richard Dean Anderson and Bill Cosby. If a retired officer receives an honorary appointment to a higher rank, they are entitled wear the rank, but are not allowed any of the financial benefits of the higher rank. 10 U.S.C. § 1563 doesn't say that the secretary of defense or the secretaries of a military service, requires the explicit approval of Congress to issue an honorary rank. Only that they need to submit to them justification for issuing said rank, only that they are required to wait 60 days after submitting the justification to Congress, to issue the honorary rank. That doesn't mean Congress doesn't have oversight and cannot block it, as the U.S. Constitution grants them that power, it just means that it is extremely rare for that to occur, since honorary ranks, as stated above, has no effect on the person's pay, which means it has no effect John and Jane taxpayer. I hope this helps a little. Neovu79 (talk) 05:27, 25 September 2022 (UTC)

Thanks. I will grapple with this. Yes, 10 USC 1563 is now delegated to the secretary of defense's discretion, but between 2000 and 2021 it required a bill, which you can see from the original authorization in 2000 (and in practice, all of the honorary promotions in the interim were packaged into the defense bill). That legislative route had been going on a while, but was only sporadically used. Eight Army general officers from WWII were issued tombstone promotions that were strictly honorary in 1954, and then Gen. Claire Chennault was advanced in 1958 (all of those cases had no pay or benefit provisos attached--the honorary promotions are apparently only honorary because of the proviso normally included in those bills saying no pay or benefit implications). I'm curious if other individualized promotions via bill or the unilateral route had that interpretation. For example, General Geiger and Admiral McCain both received posthumous promotions in the 1940s, but there was no proviso about pay or benefits, so I assume they were both actually promoted? — Preceding unsigned comment added by Foxtrot5151 (talk • contribs) 19:35, 25 September 2022 (UTC)

Still looking at this closely. There's a few provisions that clearly prohibit the Senate confirmation promotion route for retirees per 10 USC 601a (requiring them to be presently "serving on active duty") or anyone above O-10 who doesn't meet the time in grade requirements by law under 10 USC 1370. Since there is no alternative to these requirements, my read is that prior to last year the executive could not promote someone without a bill of relief releasing them from the public law requirements (now they could just do it with the DoD notice and 60 day waiting requirement, however). Foxtrot5151 (talk) 14:52, 3 October 2022 (UTC) Ah, just looked at 10 USC 1370 and see it was only codified last year. Anyone know what predated this, as it must have been under another section of law?

You can identify Appointment Clause appointments by inspecting the wording of an officer's nomination on congress.gov. For example, Bulkeley's nomination says:

The following named officer to be placed on the retired list in the grade indicated under the provisions of Article II, Section 2, Clause 2, United States Constitution.

For a full list of Appointment Clause appointments going back to 1981, just search for "Clause 2". Examples include:

• Ira C. Eaker and James H. Doolittle, retired lieutenant generals promoted to general on the retired list in 1985. The Senate unanimously passed the usual joint resolution to promote them, but its sponsor, Barry Goldwater, took offense when House members tried to bargain with him and convinced President Reagan to instead nominate them directly (Doolittle, James H.; Glines, Carroll V. (1991). I Could Never Be So Lucky Again. New York City, New York: Bantam Books. p. ix.).
• Richard H. Truly, a rear admiral retired as a vice admiral to become NASA Administrator in 1989.
• John D. Lavelle, nominated unsuccessfully for posthumous promotion to his former four-star grade in 2009.

Maybe the cleanest reference for Appointment Clause appointments is a 1998 Military Law Review article reviewing options to promote Husband E. Kimmel posthumously to four-star admiral (Scott, Roger D. "Kimmel, Short, McVay: Case Studies in Executive Authority, Law, and the Individual Rights of Military Commanders". Military Law Review. 56 (June 1998): 118–120.):

Currently, there is no statute under which Rear Admiral Kimmel may be posthumously advanced....The only avenue now available for the posthumous advancement of Rear Admiral Kimmel is a direct Presidential appointment, with advice and consent of the Senate, under article 2 of the Constitution....Such constitutional appointments do not create military entitlements [as the GAO ruled in 1986]. (Lieutenant General Ira Eaker and Lieutenant General James Doolittle were advanced to grade of General on the retired list in April 1985--military pay entitlements, however, depend on statutory authority)

In 1998, Congress authorized the President to advance retired lieutenant general Benjamin O. Davis Jr. to general on the retired list, without requiring Senate confirmation. A Pentagon spokesman made the following claim (Graham, Bradley (December 10, 1998). "A Fourth Star For A Fighter". The Washington Post.):

While the United States has honored other retired senior officers with advancement in rank, the action has been limited to 10 since the end of World War II -- three each in the Air Force and Army, four in the Navy, according to a Pentagon spokesman.

Not sure if that means 10 retired senior officers total, or 10 actions to promote retired senior officers (e.g. the 1954 act that promoted 11 retired or dead Army lieutenant generals).

- Morinao (talk) 05:54, 5 October 2022 (UTC)

Thanks, a few observations from what I've pulled. Benjamin Davis received a bill of relief in the defense bill (112 Stat. 2035), which is what later became standardized by 2000 when they codified that process into Title 10.

I think the first modern attempt for an individual honorary promotion with no pay and benefit implications was Billy Mitchell, which was advanced repeatedly in the 1940s and 1950s, but didn't actually pass Congress until 2004 (and then wasn't actually promoted b/c of being too controversial). I think Mitchell's bill got the pay and benefit proviso because this was a way of making it less controversial, and some of the tombstone promotions in the 1930s and 1950s had this also, for the same reason (no cost to the gov't is always less of a fight in passing a bill). Because they were trying to promote Claire Chennault in 1958, I think they transcribed the proviso from Mitchell's legislation into his bill, which passed immediately. He had terminal cancer and they were trying to promote him before he died.

I pulled the files on Doolittle and Eaker, and it's completely bizarre--the USAF Chief of Staff and Deputy CoS for Manpower & Personnel both said it would require a bill per the Chennault precedent, because it would otherwise violate title 10 provisions and be unlawful. Then they ran into the House resistance, and did it by Constitutional appointment authority instead, even though this contradicted their earlier judgment. Then the Comptroller General ruled this was unlawful for pay purposed in 1986, which I see you already found. So I think there's a good argument that the advancement itself is also statutory, simply because Title 10 implements that provision of the Constitution (no different than many other areas of law). At least that's what the USAF seemed to think, but it appears they were overruled by Goldwater, who was a personal friend of Doolittle and a retired USAF Reserve MG himself--it's pretty clear he didn't care how it was accomplished, although as SASC chairman he should have been pushing against this.

The Kimmel article is interesting and I'll take a look. Kimmel and the other Pearl Harbor officer (Short?) were both advanced in the defense bill in 2001 (114 Stat. 1654A-119).

Thanks again for the references. Foxtrot5151 (talk) 14:58, 5 October 2022 (UTC)

Just took a look at the article. So that's the exact argument made by the USAF leadership in 1984 leading up to the Doolittle & Eaker promotions, that 10 USC 601 wouldn't allow it. But that statute is the implementing legislation for Constitutional appointment authority--the appointment clause doesn't supersede the statute, so long as it's lawfully implementing it. So my read is that the article is wrong, evidenced by the fact that they didn't advance Kimmel and Short that way--they eventually used the legislative route, which became standardized by that time. If the appointment clause authority really did trump all statutes that seemingly narrowed it, then it would also supersede all statutes enacted, such as 10 USC 1563. And I think that's incorrect, clearly. I'm going to recommend going back and fixing the Doolittle and Eaker promotions, which would require a bill of relief, since Title 10 currently only delegates authority for the honorary promotions up through major general (so inapplicable to these two officers). Foxtrot5151 (talk) 15:22, 5 October 2022 (UTC)

Ok, still working through this. I pulled the Attorney General's ruling cited in footnote 262 of that Navy JAG article you sent. The citation is wrong, incidentally--it's actually 41 Op. Att'y Gen 291, and concerns whether the President has to adhere to statutory restrictions on appointment of brigadier generals (the statute required acting per a promotion board, so the legal question is whether the president could just promote a GO directly under the appointment clause and not act through a board). The answer was no, the President could bypass the board because that's an impermissible restriction on constitutional authority, because it effectively subordinates the president's judgment to a board of officers. But the Atty Gen says that Congress may place valid restrictions on appointment clause authority, and specifically points out prior rulings such as "Congress may point out the general class of individuals from which an appointment may be made" (29 Op. Att'y Gen. 256), and generally that "the unquestioned right of Congress to create offices implies a right to prescribe qualifications for them," so long as they are "leaving scope for the judgment and will of the person or body in whom the Constitution vest the power of appointment." It's a safe bet that restricting regular appointment clause nominations to presently serving officers is a permissible restriction, given that honorary promotion is functionally meaningless (this never would have entered into the minds of the framers, because of course the appointment clause is meant to allow appointment of actual functionaries, not trivial honorary promotions for people not actually serving in that grade). 131.252.136.222 (talk) 18:47, 5 October 2022 (UTC)

There's a whole string of Op. Att'y Gen. opinions on this, although they're quite old. But I do think that statutory restriction is valid for reasons described above. I imagine the calculus to violate that sort of statutory restriction was influenced by the fact that this was merely an honorary promotion and not likely to generate much blowback--consider, even if HASC or someone else objected, what might they be able to do about it? I mean, they could craft a simple or joint resolution condemning the promotion, but to the extent that the controversy was the methodology and not the promotee, that would probably look bad. No private citizen would have standing to object to it, so the legislature would have to address it directly. Also checked on Commander Scott, but unfortunately he passed away in 2012, so I won't be able to solicit his opinion. His own citation militates against his argument, since the attorney general in no way said that the appointment clause could override any statutory restriction. 131.252.136.222 (talk) 19:43, 5 October 2022 (UTC)

There is at least one case where the President nominated officers without legislative authority, but the promotions stuck because the Senate voted to confirm them anyway. During WWII, the Navy had permanent legislation authorizing up to 4 admirals and 12 vice admirals, and emergency legislation authorizing temporary grades but only up to rear admiral (Act of July 24, 1941, 55 Stat. 603). By March 1942, all 12 permanently authorized vice admirals had been appointed, so the President started nominating temporary vice admirals and admirals even though the statute authorized only temporary rear admirals, including the four-star promotions for Halsey and Spruance. Apparently people grudgingly agreed that if the Senate confirmed the President's nomination, the appointment was valid:

The CHAIRMAN. How many vice admirals have been made?

Admiral JACOBS. We have had a total of 14.

The CHAIRMAN. You are permitted to have three over?

Admiral JACOBS. We had 3 by the Act of 1917 which was increased by 9 additional in 1941.

The CHAIRMAN. We have three over.

Admiral JACOBS. Yes, sir; that is 12.

The CHAIRMAN. How do you get 14?

Admiral JACOBS. Under the temporary promotion bill, the President nominated them and they were confirmed by the Senate.

Mr. MAAS. There is no provision of law authorizing the President to make those nominations. We have placed a limit on the number of vice admirals. Congress, in its wisdom, placed a limit on the number, to which the Navy Department agreed. The temporary promotion bill stopped them at rear admiral.

The CHAIRMAN. Under the Department's suggestion, they did not want the temporary rank to go above that of lieutenant commander and lieutenant.

Commander HOPWOOD. Yes, sir; that is true.

The CHAIRMAN. Now, as a result of the decision of the committee and of the Congress, we have included admirals and vice admirals.

Commander HOPWOOD. Yes, sir.

Regarding the pay and benefit proviso, most tombstone promotions before the 1920s did include additional pay because they were incentives to request early retirement, since officers were hard to retire involuntarily before the statutory age of 62 or 64. After WWI, the Navy instituted a strict age-in-grade policy that involuntarily retired decorated captains who convinced Congress to authorize tombstone promotions for combat citations as a consolation prize, but without additional pay since their purpose was not to hasten retirements but purely honorary.

Since the hundreds of tombstone promotions for WWII combat citations until 1959 were the honorary promotions that most members of Congress were familiar with, post-WWII legislation to promote retired or deceased officers followed the same no-additional-pay template. Examples include 11 Army lieutenant generals (1954, 68 Stat. 492), MacNider (1956, 70 Stat. A201), Chennault (1958, 72 Stat. A67), and McCutcheon (1971, 85 Stat. 833). Geiger (1947, 61 Stat. 978) and McCain (1949, 63 Stat. 1171) were promoted posthumously because they were entitled to a combat citation tombstone promotion but died before retiring, and Walker (1951, 64 Stat. A271) supposedly was up for promotion when he died in the Korean combat theater. I guess you could also count Washington (to General of the Armies in 1976) and the current attempt to promote Grant, whose laws do not include no-additional-pay clauses because it is so obvious.

Other examples include unsuccessful attempts to promote Mitchell, MacArthur (to General of the Armies in 1955 and 1964), Wayne E. Meyer (to vice admiral in 2008), and Chuck Yeager (to major general in 1995, 2004, 2008). Yeager is interesting because the 2005 NDAA actually authorized his promotion one section before Mitchell's, but the President never made the nomination (despite several fansites claiming a 2005 promotion). The House version of the 2009 NDAA tried to force Yeager's promotion by making him entitled to hold the rank of major general on the retired list (as opposed to Meyer, who was authorized to be appointed on the retired list to vice admiral), but the Senate dropped that provision along with Meyer's.

Kimmel and Short are also interesting because the 2001 NDAA simply requested that the President advance them on the retired list without additional authorization, presumably under the Appointments Clause, but no President has been willing to overrule the original decision not to promote them, especially this long after the fact. The President was willing to nominate Lavelle under the Appointments Clause in 2010, after new evidence surfaced in his case, but SASC never scheduled a vote.

I agree that Doolittle and Eaker were a definite break in precedent, which had previously required special legislation. Interesting to hear what the Air Force thought at the time, thanks for pulling their files. At that point Goldwater was already halfway through his last term, and going out in a blaze of glory (Goldwater-Nichols, etc.), so I guess was willing to torch traditions. Presumably Doolittle-Eaker was the precedent for Reagan to invoke the Appointments Clause in 1988 to nominate Bulkeley, who was basically the Doolittle of the Navy.

I actually don't know how Levering Smith got advanced to vice admiral on the retired list when he left active duty in 1977. I just lumped him under the Appointments Clause section for lack of a better place. Now that you mention him, I feel like he must have had a private law, or a section in an appropriation bill like Rickover, but I was never able to find one or the text of his nomination.

- Morinao (talk) 23:56, 5 October 2022 (UTC)

I think the problem with the WWII example is that if the authorization is the prerogative of the entire legislature, absence of House consent is another separation of powers issue. It's worse, obviously, if they're using that pathway precisely because it avoids House oversight. I'm going to check and see if I can find any caselaw on this. The litigation normally only comes up in cases of removal rather than promotion, because then a private citizen has the standing and compelling reason to sue over it.

Yes, I caught the link between the blanket tombstone promotions having the no pay proviso, such as with the Army generals (thanks largely to the info on the Wiki), and suggested that this practice morphed into the individual promotions in the 1950s timeframe. I did look into several of the individual cases you listed (e.g. MacNider, Geiger, and McCain), but noted that few of them had the no pay proviso included in their bills, with the exception of Chennault, which I found confusing--I'm going to check and see if I can find any Comptroller General adjudications on the legality of those, since a bill would theoretically make them compliant with pay legislation, unlike Doolittle & Eaker). I wasn't aware Yeager hadn't been acted on, as well as Kimmel and Short (which make more sense given the controversy).

In re: the difference between authorization and entitlement, it's no coincidence that the same Att'y Gen. opinion I quoted above also said "Congress may not, in connection with military appointments or promotions to higher offices, control the President's discretion to the extent of compelling him to commission or promote a designated individual" (41 Op. Att'y Gen. 292). The distinction between authorization and adjudication (as well as what even what makes a bill ripe for executive action) has clearly confused many officials on these promotions. This was the reason the AF started mistakenly claiming Mitchell was promoted as of the late 1950s--the director of the AF Records Center put an official summary in his personnel file that alleged he had already been promoted in 1947, based on a bill that had only passed the Senate. So they obviously didn't understand how laws even pass Congress, much less that they didn't automatically result in Mitchell's promotion. That exact date and claim ended up on the modern AF MoH website (https://www.af.mil/Medal-of-Honor/Mitchell/), which presently claims he was promoted to MG, and also that he has a MoH.

The AF web bios also mischaracterize the authorization for Doolittle and Eaker's promotions, although it seems nobody really understood that one except Goldwater and the AF leadership, who just stayed quiet about it for the most part. I just pulled Goldwater's private correspondence, and he boasted to a friend that he pushed that through despite the prohibition on promoting reservists past two-star general. He also wrote Doolittle about the same, saying House passage was a prerequisite, and then reversing himself and saying he just asked Reagan to fix it. Curiously, the AF contemporaneously claimed it was their idea (a mere LTC's brainchild with no legal staffing?), but either way the basis is dubious. There are 84 pages of executive communications in Doolittle's OMPF, which is pretty unusual (at least based on most OMPFs I have seen). I think a staffer or archivist may have hoped that a historian would find those eventually, because that would explain it better than some sort of mistake.

Incidentally, I started chasing this because the Wikipedia page for Jimmy Stewart was claiming Reagan promoted him to MG in retirement in 1985. I quickly debunked this by searching for a bill and pulling the records from the Reagan Library, but discovered that Stewart had a history of allowing Reagan to introduce him as a MG on the campaign trail, which he didn't correct until someone introduced him as a BG and Reagan corrected the staffer. In 2013 the Wikipedia claim about Stewart's promotion was picked up by the AF Reserve recruiting center, who made a recruiting video claiming Stewart had been promoted to MG: https://www.youtube.com/watch?v=_U1lLf3DhK4&t=1s. The AF Magazine also repeated the claim during that period. Then, in typical fashion, the Wikipedia page cited both of them as having verified the claim, which is a case-study of circular attribution. When I started pulling records on Stewart, I discovered that Stewart had actually initiated the lobbying effort to promote Doolittle (by sending a telegram directly to Reagan), and that the media had actually confused the Doolittle promotion with Stewart at one point, apparently because they both go by "Jimmy," and possibly because Stewart was involved in a lobbying capacity.

Anyway, have written a scholarly article for Air & Space Power Journal and a popular version for Air & Space Forces Magazine. I am waiting on more records from NARA's center for legislative archives--they already pulled the docket for Goldwater's resolution, which doesn't have much, but I'm digging to see if there's anything else from when the resolution hit HASC (where it stalled). I would like to give you some sort of attribution, but have no idea how to do that. Do you have an email or some contact method that isn't personally identifiable? Foxtrot5151 (talk) 17:18, 6 October 2022 (UTC)

I was able to active an old anonymous email: Email me there if you want to get in contact directly. Foxtrot5151 (talk) 21:21, 6 October 2022 (UTC)

Oh, don't worry about giving me any credit, although I appreciate the offer. If you plan to recount the Wikipedia circular attribution story in your article anyway, then maybe you can balance it by thanking helpful discussions with the Wikipedia editor community or something -- after all, I only have this information at my fingertips now because SuperWIKI prodded me to look into four-star legislative histories a few months ago. Otherwise I wouldn't bother, since mentioning Wikipedia could only detract from the credibility of your article. Anyway, I am not a real domain expert, just an amateur lead generator like the rest of Wikipedia, and you are doing the actual hard work of researching and writing a professional publication. Just please drop a note here when your articles become available so we can all enjoy them.

Circular attribution can be a real pain. At least the Jimmy Stewart story (which is really interesting, thanks for digging into it) seems to have originated off-site. A couple years ago, I had to rewrite the General of the Armies article from scratch after discovering two similar cases. In the first case, a serial fabricator inserted a claim that MacArthur was up for promotion to six-star general to lead the invasion of Japan in 1945, and that spread to other websites. In the second case, someone extrapolated from Pershing's official chief of staff painting that his four-star insignia was gold instead of silver to distinguish his higher rank from other four-star generals, and inserted that speculation in the Pershing article in 2007, which was embellished by a self-published book on U.S. Army uniforms in 2009 that was cited by a WWI encyclopedia in 2014, and from there infected academic publications along with a bunch of post-2007 news articles.

Totally agree that the WWII example is sketchy as hell. It took me a long time to convince myself that actually happened. If I hadn't found that hearing transcript I would still be looking for the authorization for temporary three- and four-star admirals.

Regarding the prohibition on promoting reservists past two-star general, you might be interested in Robert Colglazier's senior officer oral history, if you haven't already seen it. The Officer Personnel Act authorized temporary three- and four-star appointments from any component of the Army of the United States -- regular, reserve, or retired (e.g. Hershey) -- but made no provision to retire reservists with a permanent grade higher than two stars, so Colglazier needed a private law (80 Stat. 1666) to retire as a lieutenant general. The PDF from the Army War College website seems to have disappeared again, so let me transcribe the relevant section (Tape C-181, Side 2, pp. 316-318).

Colglazier oral history

I retired in January of 1966. About that time, the deputy for personnel, acting for the Chief and the Secretary, wrote me and said that there was no provision in the code or in law that would permit them to retire me as a lieutenant general as would have been the case if I had been a Regular officer. My commitment was that I would be retired at the highest rank held. They had researched the thing, and had the JAG research it, and there were no provisions. They had never before had to cope with a Reserve officer becoming a lieutenant general in peacetime. I guess I had reached a rank that no other Reserve officer had ever reached in peacetime in the Army. The Secretary wanted to assure me that they would do everything they could. They would sponsor a bill with the Administration's blessing. In the meantime, they would retire me as a major general and, as soon as the bill passed, they would put me on the retired rolls as a lieutenant general. This bill went to the Congress and went through the Senate very promptly. It then hit a snag in the House Armed Services Committee. A South Carolinian chaired that committee, and he contended that the bill would set a bad precedent. The Army pointed out to him that I probably had served longer as a lieutenant general on active duty than many Regular Army officers. It might have been a pretty good precedent to establish. Remember our discussion about the Congressional staff? It was the staff in the House committee that held it up. I don't know why. I must have stepped on one of their toes sometime back. Remember I told you that unlike most Regular officers, I had sort of a local power base. I had a fellow Aggie and a very good friend, by the name of Tiger Teague, from College Station. Teague, somehow or another, found out about my situation. I was up in Washington on another matter, and I talked to Tiger Teague about a number of things. He was then Chairman of the House Veterans Committee, and a very powerful man. He said, "You mean to say that they did this to you?" I said, "Yes." Well, he called the chairman of the committee, who was an old friend of his, and gave him a pretty bad time. I was sitting there. The chairman said he didn't know that I had served on active duty as a lieutenant general, had been an Army commander, and had been the DCSLOG. He said he didn't know about that. Evidently he had never been told this before. Well, after that, the bill went through just like that. I was then promoted to lieutenant general again, about six or seven months later, and am now carried on the rolls as a lieutenant general. I had a lot of friends who were very incensed about this. General Wheeler, for example, went to bat for me. The Secretary of the Army couldn't understand it. They did everything they could. The Administration was lukewarm, but that's understandable. But, it took Congressional people to put it through.

When evaluating whether no-pay provisos were standard in individual promotion laws, I think it's important not to overweight posthumous promotions like Geiger or McCain, or loophole corrections like Colglazier. After the first combat citation promotion law included a no-pay proviso in 1925, individual promotion laws can be sorted as follows.

Non-honorary promotion laws don't have no-pay provisos, because they correct quirks in the law preventing standard promotions.

• Active officers needing special legislation to be promoted -- Vandenberg/Doolittle/McLain/LeMay/Norstad (1946, 60 Stat. 56), Beightler (1946, 60 Stat. 936), Bradley (1950, 64 Stat. A225).
• Retired officers needing special legislation to be promoted while on active duty -- Byrd (1925, 43 Stat. 821; 1927, 44 Stat. 933), Hart (1942, 56 Stat. 370), Land (1944, 58 Stat. 1011), Rickover (1973, 87 Stat. 621).
• Retired officers needing special legislation to retire with their highest active-duty grade -- Smith (1955, 69 Stat. A33), Colglazier (1966, 80 Stat. 1666).
• Retired officers needing special legislation to correct the mechanism of their retirement -- Nicholson (1926, 44 Stat. 1608).
• Reappointment on retired list of officers who resigned to accept civil office -- Quesada (1959, 73 Stat. A77), Eisenhower (1961, 75 Stat. 5).

Posthumous promotion laws don't have no-pay provisos, because dead officers don't draw retired pay.

• Dead officers -- Geiger (1947, 61 Stat. 978), McCain (1949, 63 Stat. 1171), Walker (1951, 64 Stat. A271), Cox (1952, 66 Stat. A144), Washington (1976, 90 Stat. 2078). Geiger, McCain, and Walker all had widows, but promotions above two stars did not increase retired pay or survivor benefits until O-9 and O-10 grades were created in 1958.

Certain honorary promotion laws don't have no-pay provisos, because they are meant to increase retired pay.

• Active officers awarded full active-duty pay in retirement -- five-stars/Vandegrift/Waesche (1946, 60 Stat. 59), Bradley/Spaatz/Spruance (1948, 62 Stat. 1052).
• Retired officers promoted to a higher permanent grade -- Groves (1948, 62 Stat. 1393).
• Retired/resigned officers promoted to rear admiral based on the Peary precedent (1911, 36 Stat. 1346) -- Byrd (1929, 46 Stat. 1633), Hobson (1934, 48 Stat. 1379). In Hobson's case, there was no increase in pay because at the time a captain had the same pay as a lower-half rear admiral.

Other honorary promotion laws do have no-pay provisos after 1925.

• Retired officers who never served in the higher grade on active duty -- combat citation promotions (1925, 43 Stat. 1279), Belknap (1927, 43 Stat. 1354), certain Army colonels (1927, 44 Stat. 1249), Hines (1940, 54 Stat. 1286), MacMillan (1954, 68 Stat. A88), 11 Army LTGs (1954, 68 Stat. 492), MacNider (1956, 70 Stat. A201), Chennault (1958, 72 Stat. A67), McCutcheon (1971, 85 Stat. 833), Davis (1998, 102 Stat. 2035), Mitchell/Yeager (2004, 118 Stat. 1918). Exception: Dismukes (1925, 43 Stat. 1279).
• Retired officers advanced to their highest active-duty grade -- WWI officers (1930, 46 Stat. 793), former admirals/vice admirals (1942, 56 Stat. 370).

Honorary promotions under the Appointments Clause -- no law so no proviso.

• Retired officers not on active duty -- Doolittle/Eaker (1986) were not entitled to higher retired pay. Presumably the same logic applies to Levering Smith (1977) and Bulkeley (1988), but apparently the question never came up before the Doolittle/Eaker GAO ruling?
• Retired officers on active duty -- Burkley (1965) and Calver (1966) were advanced to vice admiral on the retired list while serving as physicians to Congress and the White House, not sure if that entitled them to higher pay. Their promotions under the Appointments Clause surfaced when the Navy Department researched a response to a question raised during the hearing on the law authorizing Rickover's four-star promotion in 1973, which had been thought to need special legislation because retired Navy officers were ineligible for Officer Personnel Act appointments to three- or four-star grades. This seems relevant to the debate about Doolittle/Eaker.

- Morinao (talk) 12:55, 8 October 2022 (UTC)

In re: Colglazier inteview, is it the one where he's interviewed by COL William M. Kearney? Their catalog is a mess, but I think this is it: https://emu.usahec.org/alma/multimedia/335867/20182051MN000012.pdf

That must be it--I see it's discussing the promotion of a reservist above MG. That's precisely what the USAF was hung up about in 1984, which they referenced as violating Chapter 837 of Title 10. I think by implication they meant section 8373, which has since been recodified, but you can see it here: https://law.justia.com/codes/us/1995/title10/subtitled/partii/chap837/sec8373/

Interestingly, that's also what Goldwater was hung up over. He wanted to promote Doolittle without establishing a precedent for others to do the same (a strange and contradictory position). So he wrote to USAF chief of staff Gabriel asking if they could somehow restrict it by regulation so nobody else could be similarly elevated. He also told President Reagan that it was impermissible for this reason, or at least he boasted to friends about this afterward.

Ok, thanks for the pay implication explanation. I assumed there was a structural difference for the posthumous vs. simply retired promotions, but didn't realize that death was the limiting factor. Interestingly, when the USAF advanced the Doolittle/Eaker promotions by appointment clause in 1985, the officer said specifically that it would elevate their pay because of the lack of a proviso if they didn't use legislation (as a bonus, he thought). So obviously it just never got any real staffing, because that would certainly have come out if it were reviewed by the general counsel (and that likely would have killed the effort, since it would have also raised the other statutory barriers).

Will keep going through this over the weekend, but the framework makes sense now. Thanks. Foxtrot5151 (talk) 16:49, 8 October 2022 (UTC)

I was too flippant about dead officers not needing a no-pay proviso, since Mitchell (2004) is of course a posthumous promotion law with a no-pay proviso -- which was your original interest! But the principle is that purely honorary promotions are meant to be cost-free to the government, unless otherwise specified (e.g. five-stars). For Geiger/McCain/Walker, two things kept their posthumous promotions cost-free at the time, even without an explicit no-pay proviso. First, even living officers received no increase in retired pay from a three- or four-star promotion since the highest retired pay was O-8 until 1958. Second, from 1917 to 1956, military widows all received the same flat rate survivor benefit regardless of their husband's rank. From 1956, survivor benefits scaled with basic pay again, so at that point no-increased-benefits provisos should have become boilerplate in posthumous promotion laws, if they weren't already.

Yes, that's the right Colglazier interview. It reminds me that I forgot to mention my absolute favorite individual promotion law: Robert Scurlark Moore. Bobby Moore was a Regular Army Finance Corps officer who served continuously as a congressional liaison officer for 28 years(!), including all of World War II. Because the Senate was so understaffed at the time, he effectively became a full-time staff member of the Appropriations Committee and its mole in the Pentagon, much to the frustration of the Army, whose repeated attempts to relieve and retire him were foiled by the powerful senators holding its purse strings. By 1961, even McNamara couldn't get rid of him, and he finally retired in 1968 after 50+ years of service. I first read about this guy in the oral history of Herbert Powell, who rants hilariously how "Colonel Bobby So and So, Finance Corps" wrote special promotions for himself to brigadier general and then major general in successive defense appropriations bills, but I couldn't track down his name until Colglazier mentioned the incident in the Kearney interview (pp. 207-208).

- Morinao (talk) 21:26, 8 October 2022 (UTC)

Thanks, I just realized that you added significantly more names with statutory citations above. I'm unable to trace the history to anywhere near that extent, in part because the Air & Space Power Journal has a very restrictive max word-count of only 6,500 (including notes--which aren't insignificant with mostly legislative or archival citations). But, it's still very interesting, and I am planning to send a draft to the committee staffers I'm in touch with. I don't think that they are much invested in the honorary promotions any longer simply because they just delegated most of this authority to DoD, but that happened recently enough that they probably dove into at least the last 20 years of the honorary promotions statute. Also, I think the history is still important in the event someone tries to get around the current delegation for only one and two star promotions. So maybe it ends up in a folder somewhere and they pull it when it becomes germane to an executive attempt to push through an appointment clause promotion.

I've not found other pertinent Comptroller General rulings, although they're not easily searchable that far back. I think when I checked govinfo.gov they were not retroactively digitized very far. Many of them are on Lexis (and probably Westlaw and Hein), but I didn't find a particular section allowing me to search only those rulings (making it difficult to filter, because I was finding all sorts of extraneous caselaw and other adjudications that were merely citing comptroller general opinions). I'm fairly certain there are no other attorney general opinions any more pertinent than what that Navy JAG cited from 1956 (many of the more recent ones rely on totally different factors and are not for promotions), but I may dig into that again. Again, they are scooped up by proprietary databases, but don't seem to be readily available to the public in electronic format (but they are on the shelves at FDLP libraries, where I picked mine up). They are not as persuasive, as say, a SCOTUS decision, or even lower level caselaw in some cases, but they do represent an administrative precedent, since the Attorney General is usually faithfully trying to find balance and not merely paving the way for the executive in a pretextual manner (which that 1956 opinion does very well, IMO). That same barrier of access seems to have prevented the AF / Reagan Admin from discovering that decision, since it was directly on point with the Doolittle/Eaker promotions (and not particularly old at that time). The difficulty with relying on older determinations like that one is that executive authority has grown considerably in the last century, meaning you cannot treat it as merely a static construct. Thus, a ruling in 1956 isn't necessarily equally applicable to present day understanding of executive authority, although I suspect that it hasn't changed too much in this case. After all, there doesn't seem to have been a sea change in promoting via that method, and Congress arguably reasserted its authority to govern promotions in 2000 when they codified the Title 10 honorary promotion pathway. Foxtrot5151 (talk) 17:35, 11 October 2022 (UTC)

Ok, scholarly article submitted to Air & Space Power Journal. ASU's special collections sent me several files from Goldwater's papers, which are simply different versions of the story about taking the appointment clause idea to Reagan personally. Goldwater boasted that he told Reagan that the "reserve rules" prohibited the promotion, but that he had the authority to supersede this as commander and chief. It's notable that he kept referring to these statutory restrictions as mere "rules," perhaps because he'd grown so jaded that he didn't really see them as binding? Also, his advice to Reagan was wrong, obviously, since the President arguably doesn't have the authority to override a permissible statutory restriction. I'm doing another pull because there is a separate folder for correspondence with the AF Chief of Staff, Gabriel, but not sure it will be more illuminating. I'm hoping there may be something postdating the promotion to explain why the AF leadership so quickly flip-flopped, when they'd already identified the correct posture that only legislation would waive the statutory restrictions. Another strange finding that I didn't notice before is that weeks after the promotion, at the end of April, SASC incorporated Goldwater's promotion resolution into an early version of the defense bill. Evidently nobody had told the SASC staffers that Goldwater had already superseded the legislation by going around them, but they obviously got word eventually, because that provision was removed from later versions of the bill. That's pretty odd considering that Goldwater chaired that same committee, but I think it probably speaks to how the promotion wasn't planned and was simply something Goldwater seized on immediately. Foxtrot5151 (talk) 23:55, 13 October 2022 (UTC)

Max word count is the mercy rule of publication, isn't it -- for both the writer and the reader! But for better or worse, Wikipedia has no such constraint, so I will continue to rattle on about precedents available to promote Doolittle and Eaker in 1985, when there were two established vehicles to promote officers outside the existing statutes: special legislation and the Appointments Clause.

• Special legislation was used for honorary promotions initiated by Congress before 2000, going back to at least the Civil War. This was how Congress gave Army and Air Force officers post-WWII tombstone promotions (e.g. MacNider, Chennault), and therefore the most obvious path for a legislator like Goldwater to get Doolittle/Eaker promoted, especially since the law could include a clause stating why the officer deserved the honor -- not quite the Thanks of Congress or Congressional Gold Medal, but classier than an impersonal Title 10 or even Appointments Clause promotion.

I wouldn't say Congress reasserted its promotion authority in 2000, almost the opposite, if anything. 10 USC 1563 creates a third promotion vehicle by letting the Secretary of Defense make honorary promotions up to O-8 administratively, if requested by Congress (2000) or on the Secretary's own initiative (2021), without the hassle of the Senate vote required by normal Title 10 or Appointments Clause promotions. But this doesn't restrict further promotions by special legislation or Appointments Clause. Presumably Congress reverted to legislation for Mitchell/Yeager in 2004 because a post-2000 honorary promotion request was declined.

• The Appointments Clause continues to be used for non-statutory promotions initiated by the President, typically substantive promotions not explicitly authorized by any law. From 1965 to 1994, its most frequent use was to promote military astronauts one grade after their first space flight. More relevant to Doolittle, and his eligibility as a retired reservist for promotion to four stars, was the use of the Appointments Clause to evade pre-DOPMA statutes precluding three- and four-star promotions for retired Navy officers.

In 1965, LBJ used the Appointments Clause to promote presidential physician George Burkley to vice admiral, since Burkley was a retired Navy doctor recalled to active duty but the Officer Personnel Act of 1947 only authorized three- and four-star appointments for Navy officers on the active list. It was invoked again in 1966 to promote George Calver to vice admiral on the retired list two weeks before the 77-year-old doctor left active duty after 37 years as Congressional physician, setting a precedent for similar tombstone promotions for Smith (1977) and Bulkeley (1988). Given these precedents, even Rickover's four-star promotion in 1973 could have been done under the Appointments Clause, had his promotion not originated in Congress, which probably preferred to honor him with special legislation anyway.

Note that despite being non-statutory, Appointments Clause promotions were substantive, not honorary. Officers who served on active duty in their Appointments Clause grade qualified for its pay, as the Comptroller General confirmed in 1962 (44 Comp. Gen. 93) after Burkley's Appointments Clause promotion to rear admiral. (Burkley's rear admiral nomination made no mention of the Appointments Clause or any other statute, but the Comptroller General interpreted it as an Appointments Clause promotion anyway. Interpreting the non-statutory WWII nominations of temporary vice admirals and admirals, which had a similar format, as likewise being Appointments Clause promotions would explain why they stuck.)

Appointments Clause nominees

Trawling through Appointments Clause nominations shows the following pattern: Active-duty officers in specialty assignments not suitable for selection boards: Physician to the President (Burkley, 1962, 1965, 1969; Hutton, 1989; Mariano, 2000; Tubb, 2005; Ronny Jackson, 2016, 2018, 2019), attending physician to Congress (Calver, 1966; Krasner, 1990; Eisold, 1994; Monahan, 2009); Air Force One chief pilot (Tillman, 2007, 2008); Marine Drum and Bugle Corps director (Crawford, 1982, 1989, 1994; Harrison, 2002, 2006); U.S. Navy Band leader (Stauffer, 1969). The chief prosecutor and defense counsel for Guantanamo Bay military commissions are required to have the same grade (Baker, 2015; Thompson, 2021; Rugh, 2022). Meritorious promotions of astronauts after a successful space flight: Schirra/Young, 1965; many others; Hughes-Fulford, 1994. Posthumous promotions: Arthur D. Nicholson, 1985, shot by Soviet guard in Germany; Michael J. Smith, 1986, Challenger astronaut; John J. Canney, 1996, KIA Korean War; John D. Lavelle, 2010. Retired officers: Hopper, 1983; Eaker/Doolittle, 1985; Bulkeley, 1988; Truly, 1989; and Edward White Rawlins, 1986, who spent 4 decades in Congress and the courts trying to reverse a decision not to promote him to captain during WWII, and died 5 months after his Appointments Clause promotion, presumably content. One-off promotions by John Lehman: Robert Ballard, Joe Satrapa, 1987. Officers affected by changes or gaps in statutes: USMA dean (Lambkin, 1995), regular BG instead of BG in Nurse Corps (Adams-Ender, 1992), reappointment as CDR in MSC (Boland/Glick/Holdredge, 1990). Officers who apparently were on a selection list but not promoted due to terminal illness (Moon/Knowlton, 1989) or death (5 Army personnel on Arrow Air Flight 1285R, 1985). 207 Army Reserve colonels, for some reason.

Appointments Clause promotions on the active list

Astronaut promotions, 1965-1994 In June 1965, LBJ arbitrarily promoted two Air Force astronauts to lieutenant colonel for their successful Gemini IV flight, after which a policy provided military astronauts a single one-grade promotion under the Appointments Clause, no higher than O-6, after their first space flight (later amended to permit a second Appointments Clause promotion after a lunar space flight). By 1975, astronaut promotions were the canonical example of non-statutory military promotions under the Appointments Clause. Air Force JAG, 29 September 1983 (OpJAGAF 1983/75) In 1983 the Air Force JAG affirmed the legality of post-DOPMA promotions of active-duty military astronauts under the Appointments Clause: We have considered the question of whether the President has the authority to promote astronauts (or any officer on the Active Duty List) outside the provisions of the Defense Officer Personnel Management Act (DOPMA)....We are aware of the post-DOPMA promotions of flag officers wherein the Navy Department has directly cited Article II, Section 2, Clause 2, as the authority for the President to act. [Citing Edward S. Corwin (1940)]: "The Constitution distinguishes three stages in appointments by the President with the advice and consent of the Senate. The first is "nomination," which is by the President alone; the second is the assent of the Senate to the "appointment"; and the third is the final appointment and commissioning of the appointee by the President." There are no other constitutional limitations on the President's freedom of choice in nominating or appointing to office....Historically, the Congress determines the grades to which appointments may be made and lays down the qualifications of appointees. In other words, it may create a class of eligibles but not dictate the designation of an individual....We believe that any promotions made by the President depend on what grades exist at the time of promotion. Such maximalist logic easily justified Appointments Clause promotions for Eaker and Hopper, since regular O-10 and reserve O-7 grades certainly existed. For Doolittle, like Colglazier, the question would have been whether there existed reserve grades higher than O-8. Air Force JAG, 23 June 1997 (OpJAGAF 1997/76) In 1997 the Air Force JAG called the Appointments Clause the only promotion vehicle outside DOPMA, when advising how to promote the deans of the service academies after they lost their statutory mandate for O-7 grades. There are two ways to promote an officer [to brigadier general]: as the result of a selection board convened pursuant to DOPMA...or as the result of a Presidential appointment pursuant to his authority under Article II, Section 2, Clause 2 of the Constitution....[If a DOPMA promotion board is not convened] the only other vehicle available to promote the officer outside of the DOPMA promotion process is a Presidential appointment under his constitutional power to make appointments. Air Force JAG, 22 October 1998 (OpJAGAF 1998/108) In 1998 the Air Force JAG suggested that even the Secretary of the Air Force (or maybe Defense) could appoint a brigadier general under the Appointments Clause. There are two ways to promote an officer [to brigadier general]: as the result of a selection board convened pursuant to DOPMA...or as the result of a Secretarial appointment pursuant to Article II, Section 2, Clause 2 of the Constitution, under which Congress may by law vest the appointments of inferior officers, as they think proper, in the heads of departments....However, we are not aware of any situation where a Secretarial appointment to the regular grade of brigadier general has been used in lieu of the established promotion board process. While it is possible, we are uncomfortable with circumventing the DOPMA promotion process, which results in a Presidential appointment, by and with the advice and consent of the Senate.

Pulling all this together is the most direct precedent for Doolittle/Eaker: the Appointments Clause promotion of Grace Hopper two years earlier. In 1983 special legislation was introduced to promote Hopper to commodore on the retired list, but (contrary to most of her biographies) Congress never passed it, having been preempted by the Secretary of the Navy's announcement that he was recommending the President promote her. Like Rickover, Hopper was a retired Navy officer promoted while recalled to active duty; like Doolittle/Eaker, her bill never passed Congress and she was promoted on the retired list by the Appointments Clause instead; and like Doolittle/Colglazier, Hopper was a retired reservist. But unlike Doolittle/Colglazier, there was no question that there existed a reserve O-7 grade to which to be promoted.

Also unlike Doolittle/Eaker, the Comptroller General ruled in 1986 (65 Comp. Gen. 774 (B-222860)) that Hopper was entitled to recompute her retired pay based on post-retirement years of service and promotions, including her Appointments Clause promotion to O-7. Hopper and Doolittle were both reservists promoted on the retired list under the Appointments Clause post-DOPMA. The only difference is that Hopper served on active duty in her Appointments Clause grade for longer than 6 months, so there was a statute that qualified her to recompute her retired pay.

Three months after the Hopper ruling, the Comptroller General decision (B-224142) against Doolittle and Eaker specifically cited the absence of any statutory basis to recalculate retired pay using their new grade. Had they been recalled to active duty as O-10s for 6 months, presumably they too could have recomputed their retired pay under the same statute as Hopper -- but not if they had been promoted by Goldwater's bill, which had the usual no-pay proviso (the bonus according to that USAF officer). So the honorary nature of the Doolittle/Eaker promotion was mainly due to lack of service in grade, not the Appointments Clause mechanism itself.

- Morinao (talk) 04:45, 14 October 2022 (UTC)

Regarding the President's ability to supersede reserve rules preventing a four-star promotion for Doolittle -- was there a statute explicitly barring an Air Force reservist from being promoted above O-8? Or was there just no statute authorizing it? Going back to Rickover, the Secretary of the Navy testified before Congress that special legislation was the only way to give him a fourth star, because only officers on the active list could be appointed to three- and four-star grades under Title 10 -- i.e. "retired rules" prohibited the promotion. But this was merely the absence of authority to promote retired officers to higher grades, which the Appointments Clause could bridge, as the Navy Department belatedly remembered when they cited Burkley and Calver in their reply for the record.

Not sure what Chapter 837 looked like post-DOPMA, but the 1976 edition just seems to authorize the same permanent promotions for reserve officers up to O-8 as for regular officers in other chapters. These chapters don't authorize promotions above O-8 for regular or reserve officers, since O-9 and O-10 appointments are covered separately. But neither do they prevent reservists from being appointed to those grades under another chapter, which is why Colglazier could receive an active-duty appointment as lieutenant general.

The Army decided Colglazier needed special legislation to retire at O-9 in February 1966 because the law only authorized regular officers to retire in that grade. But it didn't prohibit reservists from being retired in that grade some other way, so if he had retired after Calver set the precedent of an Appointments Clause promotion of a retired Navy officer to O-9 in September 1966, perhaps Colglazier could also have gotten away with an Appointments Clause promotion of a reservist to O-9 on the retired list.

- Morinao (talk) 06:15, 14 October 2022 (UTC)

Thanks, the other comptroller general opinions are helpful, and I agree, it looks like was clearly possible to promote reservists to these grades via the appointment clause--the main difference was simply being on active duty or the grade they were seeking (and whether there was a statutory restriction). The statute the AF identified wasn't a bar, per se, so much as a de facto cap (how they described it), because the statute didn't actually say their promotions were not possible above O-8, but rather only said reservists could fill O-7 and O-8 billets. I think this is it: https://law.justia.com/codes/us/1995/title10/subtitled/partii/chap837/sec8373/ The AF DCS for manpower and personnel said that the reserve statute barred Doolittle's promotion but that the primary impediment was both officers being retired and not on duty, which he said clearly needed a legislative waiver.

On 10 USC 1563, it didn't delegate the promotion authority in 2000--that was per an amendment in 2021 (evidently the committee got tired of it). Otherwise that whole post-2000 string of promotions in the defense bill would've simply been notifications rather than statutes. In 2000 it merely codified that legislation was a requirement for honorary promotions, at least by implication, because the statute didn't actually describe the authorization so much as required the same recommendations on the promotion's merit to the committee--the main difference is it didn't give the SecDef or anyone else the authority to make the promotion. Foxtrot5151 (talk) 14:53, 14 October 2022 (UTC)

See, for example, 10 USC 1563 as it appeared in 2019: https://law.justia.com/codes/us/2019/title-10/subtitle-a/part-ii/chapter-80/sec-1563/ Foxtrot5151 (talk) 14:58, 14 October 2022 (UTC)

That's what I get for being lazy and not looking up the original law (114 Stat. 1654A-115). Thanks, that makes a lot more sense. Yes, that is Congress saying, "stop blowing off our mail or we will micromanage you like this," which is pretty funny. But look at the four possible responses spelled out in 2000:

1. "does not warrant approval on the merits."
2. "warrants approval and authorization by law for the promotion or appointment is recommended."
3. "warrants approval on the merits and has been recommended to the President as an exception to policy."
4. "warrants approval on the merits and authorization by law for the promotion or appointment is required but is not recommended."

The first three recommendations correspond to "don't promote", "promote by special legislation", and "promote by Appointments Clause". So no change to the status quo for honorary promotion options. The fourth is "should promote by special legislation, but don't do it". I guess that means the officer merits promotion in isolation, but not in the context of some broader policy (e.g. to not relitigate history)? Is that the answer Mitchell/Yeager got, and Congress pushed through special legislation anyway?

Retired regular vs. reserve officers

Military Law Review (1969): Congress has provided that reserve officers, while not on active duty, are not by reason of their status as such officers, persons holding any office under or in connection with any department of the Federal Government....[It] is recognized that the status of [retired reservists] is essentially different from the status of an officer or enlisted man on the retired list of the Regular Army or Regular Navy. Puglisi v. United States (1977): A regular officer who has retired remains a member of the regular armed services....A retired reserve officer's status is different - he can be ordered to active duty only in time of war or national emergency after all active reservists have been called....A retired regular officer, therefore, continues at all times to hold an office in the military - he is already a federal office holder. Navy General Counsel letter (1989): [Considering whether Oliver North, a retired regular officer, was enough of an officeholder to forfeit his retirement when convicted under a specific statute.] Review of decisions which have considered the status of retired service members indicates that regular retired officers are considered to still be members of the armed forces, while retired reserve officers are not. Navy General Counsel letter (1990): A very small number of reserve and Guard officers actually complete 20 years of active service and do not serve in reserve units. These members are retired under...the same statute under which regular officers are retired after 20 years of service. Presumably, these reserve and Guard officers would be subject to any forfeiture provisions which might apply to a regular officer retired under [that statute].

Interesting that the AF hangup about Doolittle/Eaker was that they were both retired and not on duty. The DCS was probably wrong about Eaker, since retired regular officers continue to hold offices subject to the Foreign Emoluments Clause, so the Appointments Clause would likewise apply. But he had more of a point about Doolittle, since retired reserve officers do not hold offices when not on duty (before 1993, anyway; not sure if ROPMA changed anything).

One possible loophole -- if Doolittle retired with pay under the same statute as a regular officer, he might be considered to hold the same office as a retired regular officer. Don't think he did, though.

- Morinao (talk) 01:25, 15 October 2022 (UTC)

Well, option three could also be interpreted as barred by regulation/policy, meaning not restricted by statute but otherwise permissible if the policy is waived because the executive promulgated the policy (although admittedly I cannot think of a scenario offhand that would apply in that way). So I'm not sure that means appointment clause automatically, but possibly if under one of those scenarios where it would be permissible.

Requested the ASU pulls today, and also reached the former AF head of legislative liaison by phone. He said that it was all the agency of Goldwater and his MA, Gerry Smith, who was a retired AF legislative liaison himself. He didn't recall the precise method that was used for the promotion, but I sent him the files in the hopes it might refresh his memory. He agreed with my theory of how the promotion went down, which is that the AF theorized it might be possible, this proposal got passed to Goldwater because they were already backchanneling to both him and his staff, and then he just ran with it without appropriate staffing (which is why the promotions happened overnight, were unplanned, and also apparently were not staffed with the normal legal scrutiny that would accompany something going to the White House). It's the simplest explanation because the AF claimed to have thought of this on the same day that Goldwater took it to the WH, and there's simply no way that they both came up with the idea at the same time independently.

Doolittle's entire OMPF was digitized by NARA, so I can look up what authority he retired under if that's listed on the retirement order. Foxtrot5151 (talk) 02:28, 15 October 2022 (UTC)

Here's the workup from the DSC for personnel, LTG Cassidy: https://catalog.archives.gov/id/57283842?objectPage=492 Foxtrot5151 (talk) 02:36, 15 October 2022 (UTC)

This appears to be the retirement order. Authority is 10 USC 1331. https://catalog.archives.gov/id/57283842?objectPage=416 Foxtrot5151 (talk) 02:39, 15 October 2022 (UTC)

Retirement pay authority is a different section, 10 USC 1401: https://catalog.archives.gov/id/57283842?objectPage=417 Foxtrot5151 (talk) 02:41, 15 October 2022 (UTC)

Here's the actual orders--apparently the earlier copy was just the request: https://catalog.archives.gov/id/57283842?objectPage=419 Foxtrot5151 (talk) 02:42, 15 October 2022 (UTC)

Oh, what an amazing resource! Thanks so much for pointing me to that. Clearly I've been way overthinking whether retired reservists qualify for Appointments Clause promotions -- the question never even came up. That lieutenant colonel tells the whole story:

Since we could find no authority under Title 10, we proposed to Senator Goldwater that such advancement should be effected through legislation. With Senator Goldwater's proposed legislation meeting resistance in the House, the White House asked if some more expeditious method existed. OSD and SAF General Counsels believe that Lt Generals Eaker and Doolittle could be advanced in their retired grade pursuant to the appointment power of the President contained in Article II, Section 2, Clause 2 of the US Constitution.

The Appointments Clause wasn't even on the radar of USAF personnel staff, who kept thinking inside their box of Title 10 personnel laws and Air Force precedents (Chennault). Their counterparts in the Navy could have told them about Hopper and other Navy precedents (Burkley), but maybe service staffs were too siloed in those days. (LeMay: "The Soviets are an adversary. Our enemy is the Navy.") It wasn't until the White House applied pressure that they finally consulted the civilian lawyers in OSD and SAF, who promptly suggested the Appointments Clause.

(Also love this postscript from an 88-year-old Doolittle to the Air Force chief of staff: "You very flatteringly said "your busy schedule". Being neither alert mentally nor physically I have no busy schedule. Sometimes I sit and think and sometimes just sit.")

- Morinao (talk) 05:04, 15 October 2022 (UTC)

@Morinao and Foxtrot5151: Here's another source for the both of you on promotions of reserve officers to general or flag officer rank, if not there already. SuperWIKI (talk) 06:47, 15 October 2022 (UTC)

Thanks, do you know if they followed up with a later report? I assume that retired regulars and retired reserve are both not considered "active duty" for the purposes of the statute in this case study (which would make no sense, unless they are actually called up again in some capacity). Otherwise, that term seemingly has no meaning. Foxtrot5151 (talk) 22:54, 15 October 2022 (UTC)

That 1960 report, highlighting the inconsistent promotion standards for reserve GOFOs in the 1950s, points us to Goldwater's actual hangup about higher reserve grades -- he was unimpressed with the quality and quantity of his fellow reserve MGs, and didn't think most of them could handle a third star. So he consistently opposed any three-star reserve grade, such as a 1970 attempt to legislate a third star for the chief of the National Guard Bureau that would have retired CNGB in that reserve grade:

The highest grade you can achieve in the Reserve is major general. I do not want to see that upset. We have one lieutenant general that I know of in the Reserve and that is General Doolittle....I think once you open this door by making this mandatory or even permissive, that we will see a flood of lieutenant generals in the Reserve ranks. As I say, I feel, having served 37 years in the Reserve and the Guard, that there are very few men that have been able to apply enough time in the course of that length of time to make themselves eligible or equipped to occupy the three star rank...I don't know when the law was passed putting the limit on major generals, but we have a lot of major generals in the Reserves.

Hence his 1984 letter to Gabriel:

The one fear I've had is that by accommodating Jimmy with four [stars]...we're going to sort of open the lid to three star National Guard officers and three star Reserve officers, which I totally and absolutely oppose.

Now if you can come up with some way of regulation that can be made solid and permanent, placing an absolute limit on two stars as the ultimate rank of a Reservist or a National Guardsman and make that well known, then I don't think we will have the opposition that we might encounter if we tried to gather the extra stars for [Doolittle and Eaker].

And Gabriel's reply:

This action should not open the door for such promotions to reservists and guardsmen, because the governing law...states specifically that officers must be on active duty to be eligible for three- and four-star promotions. Therefore, special legislation will be required to get Ira and Jimmy their fourth stars.

(Goldwater had already lost his fight against a three-star National Guardsman when CNGB was designated a three-star position under Title 10 in 1979, but reserve chiefs had to wait until 2001.)

- Morinao (talk) 06:17, 16 October 2022 (UTC)

Since the 2008 National Defense Authorization Act further elevated the CNGB to four-star grade, with the VCNGB being considered in last year's and this year's NDAAs for elevation to four-star grade as well, Goldwater has suffered even harder losses posthumously. Not to mention a growing trend towards earmarking reserve and national guard positions for three-star and four-star grade (see 122 Stat. 501 for an example with the deputy commander of NORTHCOM).

Maryanne Miller in particular has definitively broken the convention of higher-ranked reserve and arguably National Guard officers being locked into specified career tracks (head of the service reserve command i.e. Air Force Reserve Command), by being promoted to general commanding an active USAF major command. It stands to reason that more may follow in the coming years, and that even currently ludicrous ideas, say the CNGB being recalled to non-reserve active duty to serve as CSA, CSAF or even CJCS, may be on the table. SuperWIKI (talk) 07:25, 16 October 2022 (UTC)

Yes, well, it's clear the USAF wasn't sold on it until that reversal. What I find odd is that the final memo on that doesn't seem to have been staffed other than through the legislative liaison (and no legal memos are attached)--they should actually have solicited formal opinions from those attorneys. Of course that could have happened separately, but I wonder if it was actually investigated properly? Does the appointment clause route actually allow this if Title 10 does not? I'm not convinced yet, particularly with Goldwater's comments about overriding the restrictions. Foxtrot5151 (talk) 16:50, 15 October 2022 (UTC)

At the iron major level, I'm not sure DCS/Manpower and Personnel staff were ever sold on the Doolittle promotion, period. They laid down their preferred line in snooty replies to the public:

Historically, the Services have not honorarily promoted any retired General Officers. Promotion policy has been and will continue to be based on the Nation's present and future needs, known military requirements and, most importantly, the individual's potential to serve in a higher grade.

Senators and deputy assistants to the President needed softer soap, so the next line of stonewalling was fairness: "many would contend that General Eaker had greater responsibilities during World War II." (It's hilarious how that argument backfired. Public: "Promote Doolittle!" USAF: "Unfair to promote Doolittle and not Eaker." Public: "Promote Doolittle AND Eaker! Anyone else you want to mention?" USAF: "...no.")

But the CSAF turned over in 1982, and Goldwater got the new boss to take an interest in the promotion in 1984, so then the Air Staff had to get on board. That's when they forwarded the relevant laws to Goldwater's staff (Title 10 three/four-stars, Chennault, Chapter 837 1, 2, 3) and finally suggested the Chennault solution, passing the buck to Goldwater.

Then when the Air Staff solution got hung up in the House, Goldwater went over everyone's heads to Reagan, apparently sending the action to a more cooperative office with the imagination or experience to suggest the Appointments Clause, presumably OSD/SAF General Counsel. The final Pelak memo seems to be memorializing for the record a decision imposed on DCS/M&P by that other office, who would have done any staffing, and all that was left for DCS/M&P to do was roll over and assemble a nomination package for SecAF to forward to OSD. (Unfortunately, MG Pelak passed away last year, but if he had a story to tell here, maybe he shared it with his family?)

Many Appointments Clause invocations do seem to originate this way, when the President or political appointee like John Lehman short-circuits the normal staffing process to promote someone arbitrarily, and the bureaucracy has to scramble to rationalize the promotion after the fact. For example, LBJ just handed silver oak leaves to the Gemini IV astronauts at their welcome-back ceremony, without consulting OSD or NASA, which then had to invent a policy to promote returning astronauts using the Appointments Clause.

- Morinao (talk) 07:37, 16 October 2022 (UTC)

Thanks, agree, it's quite possible it was imposed on them--the fact that Gabriel and Cassidy had already gone on record saying legislation was required supports that view (and they never changed their tune, at least in writing, although the Pelak memo did get routed through Gabriel). But the Pelak memo also made incorrect claims about Doolittle & Eaker being eligible for higher retirement pay, which also suggests it wasn't studied very closely (at least by DCS/M&P). I could be wrong, but I think Goldwater just ran with this, possibly based only on hearing a suggestion that hadn't been staffed. His own writings seem to suggest this also. Anyway, have spoken to two of the legislative liaison folks from that period, including the major general who actually drafted SJ Res 14 (the legislation that stalled), and they think that theory is plausible. I'm not sure I'll ever be able to backtrace it completely, but the folders I've requested from the Goldwater papers may be the best shot (docket for SJ Res 14 and also private correspondence with Gabriel). Gabriel's XO is also still around, so I've reached out to him to see if he knows anything else. Yes, I noted that Pelak was recently deceased, but I've identified at least four people who are not--including several general officers and a few civilians who were at equivalent levels, so I hope that will be enough. It occurred to me that these files really don't belong in an OMPF at all (84 pages of mostly executive communications?), and I wonder if someone stuck them in there just to get the record corrected eventually. I mean, the promotion order and the comptroller general decision are germane, but not the rest of it. NARA certainly only digitized what was already there--to include extra research would be well beyond their mandate, I think.

If DoD/AF GCs were involved, they may still have a copy of the workup that isn't archival. I've had some success in the past getting around the confidentiality of legal advisories--this was an important part of my effort to amend a title 10 statute in 2013, because I was able to document by FOIA requests that OSD had drawn policy from the wrong law, in spite of legal advisories that told them what they had done was unlawful (it led to over 25 years of unlawful policy). It turns out that any waiver of a legal opinion's privilege is permanent, so if you can prove that it's ever been released outside of the government, that's a slam dunk. Also, material amendment of the governing statute also waives the privilege in most cases (because it precludes the possibility of litigation, since the law no longer exists in that form). I do wonder if I might use that as the basis of a request here.

Yes, the response by bundling of the Eaker & Doolittle promotions wasn't lost on me--I simply noted that they eventually incorporated Eaker "to avoid embarrassing him," which I think is fair. Goldwater claimed that this was done at Doolittle's insistence, and perhaps it was, but I think he was likely reacting to the known rebuttals from the AF that were already out there, since they had been using that excuse from the very beginning of the lobbying effort in 1981. One of the private citizens lobbying for the promotion said it was making Doolittle extremely angry. He was grateful for the promotion at the end, I think, but apparently disliked that all of these people were trying to say he alone deserved special recognition.

In re: CNGB, I actually know GEN Hokanson, so I may tell him this story the next time we correspond. I think the deputy commander of Northcom amendment may also have been aimed at him, because he previously held that position (although not until 2015, per this website: https://www.nationalguard.mil/portals/31/Features/ngbgomo/bio/2/2295.html). Maybe they were just looking ahead? Foxtrot5151 (talk) 16:30, 16 October 2022 (UTC)

Really? I thought the Jan. 2008 provision was meant to lay the groundwork for H. Steven Blum to become NORTHCOM deputy in 2009, as recognition for his unusually long term as CNGB (which was evidently extended by Congressional vote). The long term, presumably, was to allow for the paperwork and politicking to make the CNGB a four-star run its course. SuperWIKI (talk) 02:47, 17 October 2022 (UTC)

I'm sure you're right, I was just reflecting that Hokanson was in Northcom for several assignments also (not consecutively--I think he was there as a brigadier from 2010 to 2012. Foxtrot5151 (talk) 06:23, 17 October 2022 (UTC)

Just took a look at the Pelak memo again. Interestingly, it does have the Air Force GC's signature, Eugene Sullivan. I should have noticed that. It wasn't yet staffed through Secretary Orr, however, which is interesting (perhaps it had already been preempted because the promotion was already in the works?). Foxtrot5151 (talk) 18:14, 16 October 2022 (UTC)

Wondering how quickly this all went down at the end. Do you know when Goldwater appealed to Reagan? "I refused to trade these promotions for my vote on the boondoggling projects of a bunch of rookie congressmen....I marched up Pennsylvania Avenue to the White House and asked President Reagan to make a formal request of the Senate for the promotions." I don't see any individual meetings with Goldwater in Reagan's official diary between Feb 25 (when S.J.Res. 14 went to the House) and Apr 3 (Pelak memo), although Goldwater left a message with Reagan's secretary on Apr 4, perhaps a thank you call or a prod to keep the nomination moving through the White House staff. But I don't know how complete that diary really is, even for days when Reagan was at the White House. I do see a budget meeting with Congressional leaders the morning of Apr 3, which Goldwater would have attended. If the "boondoggling projects" were related to the budget (e.g. base closures), then Doolittle/Eaker might have been germane enough for Goldwater to raise at that meeting, which would dramatically escalate the promotion's political saliency since he was a key player in the big budget fight that year. Then that would explain why the staffing suddenly seems so rushed later that day.

And I wouldn't be too hard on Goldwater not sweating the details -- he had the fundamental principle down, which is that the President has the Constitutional authority to make this promotion under the Appointments Clause, and the rest could (and, at Goldwater's level, should) be left to the staff to sort out. Even Pelak's comment about retirement pay, however incomplete, isn't exactly wrong. Doolittle/Eaker probably could have been authorized increased retirement pay under Title 10 if they met the statutory requirements by being recalled to active duty for 6 months like Hopper. However unlikely that scenario, Goldwater's bill would have explicitly precluded it. Perhaps better staff work would have turned up Colglazier's private law, which eliminated this ambiguity for Colglazier by affirming he was "entitled to all the benefits of retirement in the grade of lieutenant general", but I doubt it, given that they had already had 4 years to discover that precedent.

- Morinao (talk) 12:48, 17 October 2022 (UTC)

Maybe it really was about base closures:

In April [1985], Senator Barry Goldwater, [SASC chairman], released an unofficial list of 22 bases that he said were candidates for closure....Mr. Goldwater said the list was not official because the Administration was worried that lawmakers threatened with the loss of a facility would "hold pro-Administration votes on other matters as hostage to later concessions by the Administration on base closures."

- Morinao (talk) 18:23, 17 October 2022 (UTC)

Yes, Goldwater says that he appealed to Reagan in person the day prior to the promotions dropping in the Senate, meaning the same day that Pelak produced that memo, 3 April. Obviously the Goldwater action was already in the works, so if he got the idea from the AF it probably was passed to him a day or two earlier, hard to say for sure. I kind of doubt he could just walk into the oval office without an appointment (I mean, this wasn't the Trump WH!). But what's interesting is that Secretary Orr never actually signed the Pelak memo, which is telling--perhaps it simply was preempted by the time it got to him. Also, we know that at least some staffers in SASC probably weren't aware of what Goldwater did, because they kept pushing the SJ Res 14 and incorporated it into the Senate version of the NDAA, which was released at the end of April. I mean, with all legislation of that size, who knows when they actually wrote all of that (it says legislative day 14 April, but still, well after 4 April when the promotions were confirmed). But I think that speaks to the spontaneity of Goldwater's actions--I imagine he got word of this and just acted as soon as possible.

So I got through to GEN Eberhart, who was Gabriel's XO at this time, and he says he remembers this whole affair and will talk with me on Wednesday. Also connected with Eugene Sullivan, the former SAF/GC who signed the Pelak memo--he replied and said he remembers this as well, but we haven't set up a time to talk yet. So I imagine I'll get some clarity between those two interviews.

I think the fundamental question remains--did the president's authority really supersede lawful regulation from Congress? I agree that it would be entirely different if Doolittle and Eaker had been "recalled" to duty, however nominal, but of course that didn't happen. It's an interesting question because there isn't any litigation of this particular problem at all, so the courts have never answered this one. You'd never be able to litigate failure to promote under either channel here, because it would fall to either the president not nominating you (and he has that discretion unambiguously), or Congress not authorizing a bill (which cannot be contested either). So in theory any redress would fall to the House--they would have to protest an action that the Senate was complicit in as we have here (which itself is bizarre, and only because of the conflict of interest of Goldwater's). But what would that look like? A simple resolution condemning the promotion? A referral to someone? I mean, that all seems ridiculous for an honorary promotion, which is probably why nobody so much as publicly protested. But it does raise questions about the promotion's validity, and perhaps ones that cannot be answered with any certainty. Foxtrot5151 (talk) 05:36, 18 October 2022 (UTC)

Makes one wonder about how many more supposedly "ordinary" promotions actually were a total zoo behind the scenes. These days, the climate's shifted from "do we promote this distinguished officer" to "do we promote the position" à la CNGB. What other little known case studies do you have besides the ones we've already discussed? SuperWIKI (talk) 07:25, 18 October 2022 (UTC)

I only looked into this one because I was trying to disprove the claims about Jimmy Stewart's promotion. After I got on the phone with the EIC of Air & Space Magazine (who had published one of the Stewart claims), he suggested looking into these promotions as legitimate counterexamples. So I checked for legislation, and noticed that the bill had stalled but that the AF historical records incorrectly said they had passed. So I'm stringing together Mitchell, Chennault, and Doolittle/Eaker to show the progression. All AF cases and all peppered with historical inaccuracies. Foxtrot5151 (talk) 14:55, 18 October 2022 (UTC)

If Goldwater met with Reagan on April 3, then I think it has to have been that meeting in the Cabinet Room from 9:35 to 10:25 between the President and Republican Congressional leadership to discuss budget and tax reform. There's no other window in Reagan's schedule before he retired to the Residence that afternoon. I can't confirm Goldwater's attendance -- Reagan's diary lists attendees in an Appendix A that I can't find, and I don't have institutional access to the CQ Weekly Report article (April 6 - Reagan, Senate GOP Reach '86 Budget Accord) that seems to be the only possible writeup (unless someone like Regan, Dole, or Dominici took notes). But as SASC chairman whose committee was drafting defense budget cuts, Goldwater was right in the middle of the budget negotiations. He was also a notoriously loose cannon who had recently upset everyone by forcing Weinberger to compile a list of the 22 most closable military bases, and then publishing it a week after the Doolittle/Eaker bill went to the House (an incident that eventually led to BRAC). So if Goldwater went to that morning budget meeting at the White House and complained to Reagan that he was being shaken down in the House over Doolittle/Eaker, then Don Regan, the administration's point man on the negotiations, might have seen indulging Goldwater's hobbyhorse as an easy and cost-free way to help keep the cantankerous old man onside, and directed the White House staff to immediately unblock the promotion, and from there the urgency rolled downhill to the Pentagon.

But I am just speculating here. Much better to ask someone who was actually there. Looking forward to hearing how your interviews with GEN Eberhart and Mr. Sullivan turn out.

Was this actually legal in retrospect? I don't think it's a question of the President's authority superseding lawful regulation from Congress. The absence of any statute positively authorizing retired reservists to be appointed to O-9/O-10 grades does not imply that Congress forbade it. It just means the Air Force could not use Title 10 for the appointment, and had to appeal to alternate authority from Congress (special legislation) or the President (Appointments Clause). The current ineligibility of retired reservists for promotion dates only to 1989 (103 Stat. 1461), and arguably applies only to Title 10 promotions.

In a similar case, the Air Force JAG in 1983 (OpJAGAF 1983/75) argued that it was legal to use the Appointments Clause to promote astronauts without convening the board required by Title 10, because a Title 10 promotion board was just one method of promoting an officer to an existing grade. "The language of [this law] dictates a very specific procedure for individuals promoted '...under this Chapter.' It does not describe qualifications for the office....We believe that any promotions made by the President depend on what grades exist at the time of promotion." The reserve O-10 grade had existed at least since the Armed Forces Reserve Act of 1952 (66 Stat. 487, "an individual shall be appointed as a Reserve commissioned officer...in a grade corresponding to one of the grades of the Regular component of that Armed Force") under which Doolittle was nominated to be a lieutenant general in the Air Force Reserve.

It might be different if the reserve grade of general either never existed or had been abolished (e.g. termination of general grade at Sheridan's death) or explicitly disqualified retirees from being appointed (e.g. laws requiring Secretary of Defense and FAA Administrator to be civilians), and the Senate confirmed the President's nomination anyway. Then the House might be able to claim standing based on nullification of its Article I, Section 8 power to regulate the military. But the same logic would apply a fortiori to all of the astronaut promotions since they all evaded Title 10 promotion board laws passed by the House, and even got paid at the higher grade, unlike Doolittle/Eaker. Even if the House had standing, the courts would almost certainly dismiss a direct clash between Article I, Section 8, and Article II, Section 2, over a cost-free honorary promotion as a nonjudiciable political question, as in the TEFRA case.

- Morinao (talk) 00:07, 19 October 2022 (UTC)

Eberhart remembered this but didn't have anything to add other than my theory seemed plausible, and that Gabriel and Goldwater were very close. He said the way it eventually was worked out was most certainly a back room deal--"smoke filled," evidently. I just sent the files to Sullivan but we haven't worked out a time to discuss--I sent him the whole enchilada because I wanted him to see everything (which is a lot, unfortunately).

In re: legal, but what about 10 USC 601? That's the larger issue, because that statute expressly regulates how the president appoints and fills those ranks, and it clearly is regulating who the president may appoint via this method-- it says that the nominee must be "serving on active duty" as a prerequisite for nomination. Am I understanding this wrong?

The Attorney General opinion I quoted from in 1956 actually struck down a promotion board statutory prerequisite as impermissible because it unduly narrowed the President's options and gave that discretion to his own executive branch subordinates. So I think there is precedent for overruling cases like that. I'll take a look at the JAG opinion. Foxtrot5151 (talk) 02:57, 20 October 2022 (UTC)

Just read that opinion, which is very similar to the 1956 Opp Atty Gen ruling. It makes almost all of the same points, so I'm actually surprised they didn't cite it. My sense is that Section 601 does describe qualifications for the office as the opinion admits: Congress "may create a class of eligibles but not dictate the designation of an individual," and goes on to describe qualifications like age, citizenship, experience in the military, etc. Here, the requirement to be serving on active duty encompasses several of these--they were unable to hold the office due to both age and probably almost 40 years of perishability of experience and cognitive ability. It closes by arguing that the constitution does not permit restrictions on "the grade, circumstances, number or timing," but the active duty requirement wouldn't fall into these, would it? Foxtrot5151 (talk) 03:32, 20 October 2022 (UTC)

Another pertinent quotation. The statutory restriction "does not preclude the selection of others who meet the qualifications of the office." But Eaker and Doolittle (and really any retirees so far past their prime) wouldn't meet the qualifications of the office for a variety of reasons, some of them statutory, some practical. Otherwise, just recall them and that problem is solved. Foxtrot5151 (talk) 03:36, 20 October 2022 (UTC)

Emailed the Reagan Library about the purported meeting on 3 April. Interestingly, Goldwater was a scheduled attendee for the 3 April meeting with congressional leadership at 9:30am, but bowed out (he's on the "regrets" list). It was attended by Dole, Thurmond, Simpson, Chafee, Cochran, Heinz, Domenici, and Packwood (and a bunch of House members also). I asked them to go back and check on the two days prior, if possible. It looks like Goldwater was writing about this months later (November is the letter he wrote to Gen. Knobloch, a former Doolittle Raider), so obviously his memory wasn't great. He also wrote to Doolittle's biographer that "I can't swear to this, but I have a feeling that Ira had passed on before he could receive his star." That was in 1990, but the promotion was only five years earlier! Perhaps he was having cognitive issues? Foxtrot5151 (talk) 19:00, 20 October 2022 (UTC)

Also digging for more administrative precedents, but not finding much. I did find that the DOJ's office of legal counsel was citing the 1956 Atty Gen opinion on the appointment clause as recently as 1996, as a way of evidencing the president's authority to supersede statutory restrictions in the case of acting or interim appointments. They used the parenthetical (President has the constitutional authority to appoint “key military personnel to positions of high responsibility” without following statutory procedures). But that's not really an accurate summary of that opinion! It very clearly was subject to the caveat that it was only in "exceptional" circumstances, and only when encroaching on the president's constitutional authority or judgment. Citation is 20 OLJ 162. The opinion in question was by Walter Dellinger, the Asst. Atty. Gen. Foxtrot5151 (talk) 19:17, 20 October 2022 (UTC)

Ok, Goldwater's only appearance in the presidential diary in April is on the 4th itself, at 12:08pm. A phone call. If that was the interaction, then the whole affair didn't go down the way he claimed, but I guess that would technically predate the confirmation happening. Foxtrot5151 (talk) 19:20, 20 October 2022 (UTC)

Senate opened at noon that day and the nominations hadn't yet been received--Sen. Dole mentioned them and said they were expected. It looks like the nominations were their last order of business, and they voted and then adjourned at 2:29pm. So I guess it's possible that the phone call led to the nominations being transmitted immediately, although that seems very unlikely to me. Foxtrot5151 (talk) 20:03, 20 October 2022 (UTC)

Oh interesting, thanks for following up on that. Maybe we shouldn't be taking Goldwater too literally, then. "I marched up Pennsylvania Avenue..." could just be literary license to jazz up and compress some esoteric legal maneuvers into a readable anecdote. And the 12:08 call could be Goldwater saying, "Hey, Senate just opened, where's my nomination?" and Reagan's secretary assuring him, "It's en route, the courier just left the White House." I don't want to make too many excuses for Goldwater being confused about Eaker, since he did have early Alzheimer's by the end, but Eaker had his fourth star pinned on by his wife and Gabriel at the Pentagon at the end of April, and Doolittle by Reagan and Goldwater at the White House in May, so is it possible Goldwater missed Eaker's ceremony and later wasn't sure he ever got one?

For 10 USC 601, the key word is "method". That statute defines a method to appoint a three- or four-star general on the retired list by designating a position to carry the grade ex officio, to be filled, with Senate consent, by an officer on active duty above the grade of colonel, thereby qualifying that officer to retire with that grade personally. But nowhere does it forbid other methods to achieve the same outcome.

Before DOPMA, for example, the 1976 edition of the U.S. Code had several independent methods to appoint a three- or four-star general in the Air Force:

1. 10 USC 8034/8531: Appoint, with Senate consent, any general officer to four-star grade while serving as Chief of Staff of the Air Force, or Chief of Staff to the President (three/four-star grades also authorized for JCS Chairman, Surgeon General, Senior Military Representative to UN).
2. 10 USC 8066: Appoint, with Senate consent, any officer on active duty above the grade of brigadier general to a position designated to carry that grade (precursor to 10 USC 601). Every reassignment to a different three- or four-star position had to be confirmed by the Senate, and the officer reverted to his permanent two-star grade while transitioning between assignments.
3. 10 USC 8442/8447: Appoint, with Senate consent, any regular officer, or reserve officer on active duty, to that temporary grade, which persisted until vacated by the President. Only the initial appointment needed Senate confirmation, not subsequent reassignments within the same grade, so for convenience the Air Force (and Army) used this statute instead of 10 USC 8066 to appoint three- and four-star officers, from 1953 until temporary grades were abolished by DOPMA in 1981.
4. 10 USC 8445/8447: Appoint, with Senate consent, in time of war, anyone to any temporary grade, which persisted until vacated by the President no later than six months after the end of the war if not a regular officer (successor to WWII law under which Knudsen jumped straight from civilian to temporary lieutenant general).
5. Special legislation (72 Stat. A67): Appoint Claire L. Chennault to three-star grade on the retired list with no increase in pay, without submitting a formal nomination from the President for the Senate to confirm. This only works if we construe the Senate's vote to pass the bill and subsequent signature and commissioning by the President as just another way to organize an appointment by the President with the advice and consent of the Senate, per the Appointments Clause.
6. Appointments Clause: Appoint, with Senate consent, anyone to any existing grade. All of the above are really just different processes for exercising this underlying Constitutional authority.

Okay, if the Appointments Clause is so unlimited, why doesn't the President just nominate anyone to anything, and ignore all the statutes? Because the Senate can also reject any nomination for any reason! And violating a statute they passed is a great way to provoke them to block an appointment.

Conversely, no one can force the President to make any appointment, and no one can force the Senate to confirm it. So it doesn't really matter how an appointment is structured, or which statute it invokes, or whether that statute has a qualification clause limiting the President's choice to a single name, or whether there is no statute at all, just a deal in a smoke-filled back room. Once both the President and Senate sign off on an appointment, its validity under the Appointments Clause can't be challenged by anything less than a conflict with some other part of the Constitution, like the Ineligibility Clause.

- Morinao (talk) 06:23, 21 October 2022 (UTC)

Ok, thanks for the explanation. Yes, I had realized that Senate confirmation (or lack thereof) is the only effective check there. And arguably it was compromised by Goldwater, who probably didn't openly disclose his own motives (at least to the rest of the Senate). Senate confirmation doesn't necessarily mean it was lawful, but of course there's an argument both ways that will never be resolved. There is caselaw on the inability to force the president to make an appointment (relying on those Atty Gen advisories). From memory, an officer had sued over a nomination that apparently was confirmed by the Senate, but didn't result in an appointment for some inadvertent reason (per the court, all three are a requirement, tracing back to Marbury v. Madison case, I think).

I actually thought about mentioning the ineligibility clause in passing because of Goldwater's contemporaneous service as both senator and reserve general for about a decade prior to retirement from the AF, which was part of the problem here. I have always disagreed with that practice (can you imagine Goldwater or Lindsey Graham being "assigned" some reserve duty by an effectively junior AF officer?). Having hosted some VIPs in my lifetime, it's pretty obvious that having a SASC senator "report for duty" within the military would just be like some sort of command inspection drill, and would be far more of a distraction than produce any meaningful duties or work product. But, since Congress is the judge of its own members' eligibility, it's unlikely to end anytime soon. I found a case years ago where Graham had been appointed, rather unwisely, as an appellate judge ruling on some enlisted member's conviction. Case is here: https://www.armfor.uscourts.gov/newcaaf/opinions/2006Term/05-0260.pdf The convicted member appealed on the grounds that Graham was violating the ineligibility clause, and the court found that Graham was in violation and remanded the case.

Ran across one AF Civil Law opinion from the 1990s that said AF JAG was uncomfortable going around DOPMA to advance the head of USAF Dentists to an O-7 billet. It was on Google Books and not open access (which is weird), but I'll see if I can pull it up on Lexis. I did not write it down, unfortunately, and am not certain it is on point. 131.252.55.137 (talk) 18:23, 21 October 2022 (UTC)

Ok, the AF civil law opinion is in OpJAGAF 1997-2000, pp.423-44. For some reason it's only offering a limited preview, but seems to be an interesting case where JAG is saying an appointment could in theory be made outside of DOPMA but shouldn't be! https://www.google.com/books/edition/Civil_Law/dPLkAKjtJYkC?hl=en&gbpv=1&dq=%22promotion%22+%22article+II,+section+2,+clause+2%22&pg=PT439&printsec=frontcover 131.252.55.137 (talk) 19:14, 21 October 2022 (UTC)

I actually linked that last civil law opinion in the "Appointments Clause promotions on the active list" box above, although it's long since buried in the giant walls of text, and I guess it wasn't a very informative box title anyway. But there are actually two very similar civil law opinions in that volume. The first one (OpJAGAF 1997/76) uses almost identical language to say a direct Presidential appointment under the Appointments Clause is the only alternative to make an O-7 appointment outside of DOPMA. The second one, about the dentist (OpJAGAF 1998/108), says that O-7 might even be junior enough to be considered an inferior officer under the Appointments Clause whose appointment can be delegated to the Secretary without involving the President or Senate, but this is a bad idea. So the JAG endorses using the Appointments Clause to appoint general officers outside DOPMA with Senate-confirmed Presidential appointments, but not with unilateral Secretarial appointments.

There are a couple recent cases of a confirmed nominee suing over an appointment the President refused to complete (Dysart v. United States (2004), Schwalier v. Hagel (2015)), notably Terry Schwalier, whose promotion to major general was canceled after Khobar Towers, and alternately reinstated and withdrawn.

Completely agree that it's poor form for sitting members of Congress to maintain active reserve commissions, especially members of the Armed Services Committees who oversee their own military chains of command. It's always funny when someone calls out their conflict of interest in public, they are completely unamused.

- Morinao (talk) 06:37, 22 October 2022 (UTC)

For the benefit of others reading this talk page, this is my understanding. In the aforementioned SASC meeting, Senators Strom Thurmond and Barry Goldwater are taking personal offence that Senator Joseph S. Clark Jr. is questioning the objectivity of reserve military officers with active commissions to serve in Congress.

This refers to a 1930 statute from Congress that means, in a congressional context, that only a reserve officer on an extended period of active duty, for instance in times of war or emergency, is considered an executive branch employee and must resign from Congress. Weekend training exercises (as is standard for National Guardsmen) does not require a Congressperson with a commission to resign. Today, this means that Trent Kelly, commander of the Mississippi Army National Guard can still be a sitting U.S. Representative, with Steve Stivers as another modern example. Senator Clark opines that the above statute is unconstitutional, and Thurmond responds with a charge that he and others in similar circumstances are being personally dishonoured.

In addition to Morinao's point above, it's obvious to me that separation of powers is threatened when lawmakers are de facto serving as executive branch employees paid for every day they serve (unless there's a separate law preventing that for reserve military Congresspeople). The original source subtly mentions the "separation of powers" problem as well, but not explicitly. SuperWIKI (talk) 08:08, 22 October 2022 (UTC)

Goldwater: "I seriously resist the charge of conflict of interest. I see no conflict of interest at all." Definitely quotable. I called Goldwater out for his obvious conflicts of interest, so I may go back to that one! I wasn't aware of the 1930 statute, but you can't really put lipstick on that pig--it's just facially unconstitutional per the plain language of the ineligibility clause. I rather doubt the clause was intended to apply only after a 10 second rule kicks in. "Oh, oh, not extended yet--you're still in the legislative branch!"

Yes, I was just reading about Schwalier because of the Fogleman resignation connected to this (I was told that Fogleman was a scholar of Doolittle, leading me to look up his master's thesis in history from Duke, and also read several other articles and interviews). Fogleman replied that he had only interviewed Doolittle once, I think while teaching history at USAFA as a major, and didn't know about this whole affair. Interesting that the BCMR corrected Schwalier's record and then had to undo the correction due to legal deficiency. Sounds like their legal advisor was out to lunch.

It's quite a coincidence, but I had also submitted a BCMR case that very year (2007) to award a military decoration, which they denied via form letter that I later proved was copied verbatim from a denial authored at least 20 years earlier (it matched the others in the FOIA reading room except for some text in a different font and even different color). Among other defects, that meant that they had recycled the legal merits from the mid 1980s, which made the statutory authority outdated, because it had subsequently been amended in the FY1990 NDAA on that very point. I wrote to the AF General counsel who had authored the outdated legal opinion--he wrote me a complete retraction and supported my case, saying the BCMR had clearly and materially erred. But the BCMR staff would not reconsider the case per their review boards legal advisor (a retired AF JAG LTC), who said it was not new and relevant evidence because I should have raised it the first time. He just kept interpreting the statute in absurd ways that couldn't possibly have been the intent of the legislature, because his interpretations rendered the amendment inapplicable to anyone. Apparently he was personally embarrassed that some non-lawyer like me would try to offer alternatives that conflicted with his legal opinions. So I dug into the OLC FOIA exceptions and figured out that I could request any legal opinions that had ever been released to BCMR applicants, due to the permanent waiver of attorney client privilege. This issue had resulted in probably 50+ BCMR cases, so many legal opinions were cited in the FOIA cases, and they sent me many of these legal reviews from both the review board attorney and the AFPC's own counsel, all of which were based on outdated law. This led me to FOIA records from OSD, which led to the discovery that the policy proponent for the medal had based DoD policy on the wrong law, which I was able to prove because multiple Navy TJAG opinions had informed them of this, and I found the actual policy drafted prior to the change of law, making it unlawful for several decades. But I couldn't convince anyone to fix it, and being in uniform actually was unhelpful, because officials could rebuke me even if they weren't in my chain of command (which they did, even though I wasn't even in the AF). That led me to ask a former AF General Counsel (actual) to assist me, and she circulated my research to SecAF (acting) Fanning and the chief of staff (Gen. Welsh), leading to their support of an amendment in the FY2013 NDAA. Anyway, not at all surprised that the BCMR screwed up the legal merits of a case in 2007. That body was a joke, at least at that time, and I rather doubt it has changed much in the interim. Foxtrot5151 (talk) 15:54, 22 October 2022 (UTC)

Update: Air & Space Operations Review (recently renamed) accepted the article pending some minor revisions. The reviewers found it compelling both in terms of general history and particularly the theme of misinformation, which seems to be a very relevant theme right now. Air & Space Forces Magazine wants to publish a condensed version also (and offered to run it by the AF for queries and factual correction of the errors beforehand), so long as Air & Space Operations doesn't object. So I'm going to try and deconflict if the EICs don't have a problem with articles on the same general topic. One of my informal reviewers offered to pass to the AF Chief of Staff, but it now appears that it's on too fast of a publication track to get that feedback. I need to revise by next week for Air & Space Operations Review, but have out for informal review from about a half dozen JAGs, so hopefully will get some substantive criticism by then. Thanks again for the help in locating sources and in pushing me to wrap my brain around this--it's not really a topic I've grappled with before, at least on the legal side. I'm still ambivalent about whether Article II is truly an independent route around DOPMA, etc., but at least I understand the thrust of the arguments both ways. 131.252.137.208 (talk) 20:19, 26 October 2022 (UTC)

Wow, congratulations! I'm glad there's so much interest in this story, which does seem very timely the way you've framed it. Thanks for prompting such a fun deep dive, I really enjoyed thinking this through. Please do come back and update us as your articles move forward!

- Morinao (talk) 16:51, 2 November 2022 (UTC)

Thanks. I'm waiting on feedback from several informal JAG reviewers before submitting the revisions (it might delay publication, but the EIC is fine with it, and I'd rather be in a later issue than be off-base). I've circulated among several JAGs already but have yet to get any substantive feedback on the Doolittle & Eaker promotion, probably because it was such an esoteric case and perhaps singular in the exact way it went down. Have already beefed up some of the article in terms of case study biographies, which was one of the conditions a reviewer requested. For example, it's interesting that Chennault was disliked by most of his contemporaries and virtually all of his superiors--even his biographer called him a deeply flawed man who was nearly a pathological liar, but that this was never an impediment to the promotion consensus. One historian speculated that his image was very much propped-up by hagiographic popular media, which is an interesting observation (and may well apply equally to Doolittle, who enjoyed quite the popular legacy as well). I also took the opportunity to look up the Doolittle / Eaker relationship, which I had not explored. Of course, the promotion was complicated by the fact that Eaker had actually been replaced by Doolittle as head of the Eighth AF in 1944, which was interpreted by virtually everyone as a loss of confidence from Hap Arnold. Doolittle wrote on it in his autobiography, saying that he was glad he had proven himself among the Army and USAAF leadership, but was also sensitive to Eaker's feelings. That dynamic apparently survived through to the promotion, which perhaps is why Doolittle insisted that Eaker be promoted first.

I was also called by the former SAF/GC yesterday. He obviously remembered the promotions, but not the mechanism (or he would've been able to explain that, I imagine). It was not very fruitful because he was not receptive to the possibility of error (foreseeable, but still unfortunate). We got hung up discussing the Pelak memo, which I brought up because it was the only proof he had touched the issue at all--I pointed out that he had signed it but that it hadn't gone through SecAF, and he claimed it must have been an oral briefing. As for validity, he said it was presumptively fully lawful because he had signed it and he wouldn't have signed it if it weren't lawful, and he was the highest AF legal authority by statute (which of course was not convincing to me). I think it's also likely that they never fully staffed it because Goldwater had preempted them a week or so earlier, and probably just misremembered or embellished the dates. Anyway, the GC didn't seem to know that there were statutes that they ran afoul of, and speculated that perhaps they were retroactively amended to grandfather this case (I doubt it, and the active status requirement has never been changed, which I told him). I told him about the Comptroller General rebuke, and he didn't seem fazed by that, saying that was their ball to run with but didn't impact the validity (which I agree with). I had sent him a copy of the Comp. Gen. ruling for advance review, so evidently he read through it. We discussed the non-judiciability briefly, and he said it could make it into court if someone disputed, say, the Eaker / Doolittle Comp. Gen. ruling in the Court of Claims. As for why they did it that precise way, he said it was the most efficient way to accomplish the promotions, and it need to be done because they were American heroes. I agree with the general motive to recognize both men, but I don't think the outcome justifies any method, which seemed to be his argument. This may be a fairly innocuous issue that had few ripple effects, but the same mechanism could be very problematic if used to bypass the House on a more substantive issue. So he gave me much material for possible quotation, but I doubt I will use it--my goal is to shed light on the history and start a discussion about information literacy in the service. Many of the recent issues have addressed misinformation/disinformation as a strategic vulnerability, both in terms of domestic politics and the radicalization of the military, as well as in information warfare with great power adversaries. It may be that the misinformation issues I've identified are attributable more to lack of fluency with legal terminology and processes than anything else, but the services do have legal and historical experts who are capable of figuring this out (presumably they simply weren't consulted). 131.252.55.20 (talk) 20:34, 2 November 2022 (UTC)

Was called by a former Army prosecutor today (retired O-6 JAG) who has advised me before. He thought the article should be expanded into a military history journal, but I told him it's already accepted and my reasons for steering to the USAF. He was interested in the fact that the Army apparently didn't try to advance anyone in this precise way at that time (is that correct?), which he suggested might mean they disagreed, since they would obviously have been aware of it. He agreed that it seemed incorrect to allow Article II authority as a way to completely circumvent DOPMA. I went back and looked at the OpJAGAF opinions again, and that Sept. 1983 astronaut ruling explicitly says that they got the idea from the Navy's recent post-DOPMA appointment clause promotions (which must be a reference to ADM Hopper and possibly someone else?, based on what you wrote above). The key difference there, again, is that Hopper clearly was recalled to duty. That seems to me a very substantive difference that separates Eaker/Doolittle from virtually all of the other post-DOPMA appointment clause promotions of that period. It worked for the astronauts, of course, since they were on duty. But it's still a very expansive reading (and the citation of Corwin is, frankly, pretty mischaracterized--Corwin in no way says that there is no limitation whatsoever on appointment authority, at least not how they're reading it). The mere absence of a Constitutional limitation doesn't mean that no regulation of appointment authority is possible, and I think that's a clear misunderstanding.

I pulled a few of the other promotees and would-be-promotees--Hopper, Kimmel, and Short. Hopper's advancement papers are in there, at least the oath of office she took upon promotion to Commodore in 1983, dated 8 Nov 1983, which doesn't align with the date on Wikipedia (and Wikipedia also says she was promoted by bill of relief, I think?). She took it again with RADM as the rank in 1986. Wikipedia even links to the alleged bill, which clearly did not pass.

Short is interesting because of the protracted dispute to posthumously promote him from his son, who was also an Army officer. He initiated a BCMR case that recommended advancing him to LTG, but then the deputy assistant secretary over the review board declined to act on it (evidently leading to the later effort to promote by bill of relief). DAJA-AL did a legal opinion on the proposed promotion in 1990, and it says very clearly that only the tombstone promotion act of 1947 could be used to advance him--they said "there currently exists no legal basis for advancement on the retired list other than the authorities cited by COL Short," meaning the 1947 act. Foxtrot5151 (talk) 05:01, 5 November 2022 (UTC)

Ugh, the confusion also contaminated at least one of the recent books on Hopper. This author claimed that she was promoted by virtue of a bill only passed by the House, in conjunction with a "special appointment." This is just bonkers. Grace Hopper and the Invention of the Information Age: https://www.google.com/books/edition/Grace_Hopper_and_the_Invention_of_the_In/dr34DwAAQBAJ?hl=en&gbpv=1&bsq=commodore Foxtrot5151 (talk) 16:39, 5 November 2022 (UTC)

"Among the millions of people who saw the 60 Minutes interview was U.S. Representative Philip Crane (R-Illinois). He promptly initiated a bill to have the contributions of this extraordinary woman properly recognized. The bill, passed by the House of Representatives, promoted Captain Grace Hopper by special appointment to the lofty rank of Commodore." Foxtrot5151 (talk) 17:08, 5 November 2022 (UTC)

I just wrote to the author, who is a USNA grad with a PhD--he teaches at UC Berkeley's school of business. Foxtrot5151 (talk) 17:19, 5 November 2022 (UTC)

Chennault's promotion probably benefited from the timing of his death, since he was the face of the China lobby which was still near the peak of its influence in the late 1950s. It might not have been so easy a decade or two later.

The fact that the Army did not use the Appointments Clause for honorary promotions in the Doolittle/Eaker timeframe was probably more about a lack of candidates than any opinion about the validity of the Appointments Clause for this purpose. Ridgway and Van Fleet had already won their fourth stars in the Korean War, every other Army lieutenant general with the stature of Doolittle/Eaker got an honorary fourth star in 1954, and Bradley even had a fifth star. Who was left to promote? Groves? Gavin? The Army did use the Appointments Clause to evade DOPMA for other promotions: astronauts Stewart (1984) and Spring (1986); 207 Army Reserve colonels (1985); posthumous promotion for Nicholson (1985), two months after the major was shot by Soviets in Germany; posthumous promotions for five of the 248 Army personnel killed in the crash of Arrow Air Flight 1285R (1985). The Appointments Clause seems to have been the "break glass in case of emergency" authority for promotions not otherwise covered by DOPMA.

It's not surprising that all of the Appointments Clause promotion precedents originate in the Navy, rather than the Army or Air Force. Before DOPMA, the Army and Air Force had less incentive to innovate than the Navy, since the Officer Personnel Act gave them much broader promotion authority. Whereas the Army could use temporary grades to appoint any officer, active or retired, to three or four stars, the Navy could only appoint officers on the active list to those grades, which is why they had to invoke the Appointments Clause to accommodate LBJ's desire to promote White House physician Burkley (retired officer on active duty) to vice admiral. The distinction between being on the active list or retired list (Burkley) seems at least as significant as being on active duty or not (Hopper/Doolittle/Eaker). In both cases, there was an eligibility requirement that was evaded by invoking the Appointments Clause.

The Hopper case really does line up with Doolittle/Eaker remarkably well, right down to the misunderstandings about her promotion in all her book-length biographies. If SAF GC staff used Hopper as a precedent for Doolittle/Eaker, that could explain how it was able to move through their office so quickly, since they could just refer to her package. Although it does seem like these offices didn't really talk -- Hopper should have been the obvious precedent for Doolittle/Eaker, but that was in the Navy; Doolittle/Eaker should have been the obvious precedent for Short, but that was in the Air Force. I do think that successive administrations just didn't want to promote Short and Kimmel, and the legal issue was only an excuse. If they really wanted to promote Short, they could have used the Appointments Clause like for Lavelle in 2010. Then again, Lavelle's nomination did fail, so it would be interesting to know if the Appointments Clause was an issue in his case, or if SASC had other reasons not to promote him.

It does seem like there might be an interesting story about why the Appointments Clause was invoked for Hopper at all. The 60 Minutes interview first aired in March 1983, and Crane presumably saw it on rerun since his joint resolution wasn't introduced until August 2. Lehman announced he was recommending her for promotion on August 29, preempting the legislation and triggering her Appointments Clause nomination on October 21, which was confirmed by the Senate on November 4. Then she had a promotion ceremony in the White House on December 15. So why did Lehman intervene? Did Crane's bill get stuck in the House, like Doolittle/Eaker? Or, after finally managing to fire Rickover, was Lehman wary of letting another retired naval officer on active duty receive promotions directly from Congress?

- Morinao (talk) 11:03, 6 November 2022 (UTC)

Thanks, yes, you may be right about the China background with Chennault, which hadn't occurred to me. Perhaps that was another thumb on the scale.

I assumed the Army had used the authority for astronaut promotions, but wasn't sure. Using it for all of the posthumous promotions is a little more surprising. I thought there was already some authority for posthumous promotion at the secretary's discretion, but perhaps that's only in cases where they're already in a promotable status?

In re: eligibility requirement that was waived, I'm reading 10 USC 601 as only requiring "serving on active duty" in any grade above O-6. In my view, whether recalled/retired, regular active, active reserve, etc., the duty status isn't being waived if they are in fact on duty. I'm seeing that as discernible from the binary construct of active/retired list, because Hopper and Burkley were clearly in an active status in spite of nominal retirement, correct?

Yes, in re: Short/Kimmel, agreed, they just didn't want to do it, which is probably why an appointment or bill of relief was never suggested even if they knew about it. I read the entire BCMR case for Short, and the Army was recommending to his son that it go to the BCMR, probably because they expected it to be an obvious denial that they could just rubber stamp (meaning, in bad faith). Then, when the BCMR unexpectedly recommended approval, it put the Army in a bad position (that overturned recommendation was cited in the law that later passed authorizing the promotions). I called a former DoD GC (actual) and SECNAV last year about the Army forcing a case I was helping with to the BCMR (another military award), which the Army kept claiming was the proper place for it to go (it wasn't--the Army had never sent the case to SecArmy, which was the sole approval authority, and that meant they had never exhausted administrative remedies). He advised me to never let it get there because "it's a graveyard where cases are sent to die." But, of course, the BCMR is a secretarial board, so they can claim it acts for the Secretary, but with the caveat that it doesn't have professionally trained staffers, and they won't conduct a thorough investigation into the merits of a case like, say, one that's routed up from an assistant secretary's office. So, we filed complaints to the IG and the armed services committee, and both came back rebuking the Army, including two defense bill directives, so G-1 retracted their "offer" to send the case to the BCMR, and sent it directly to SecArmy, who approved it. I think they knew the whole time that the BCMR would just reject the case automatically. If interested, DAJA-AL opinion on Short is here: https://web.archive.org/web/20221130160525/https://s3.amazonaws.com/NARAprodstorage/lz/st-louis/rg-319/299741/Mixed01/299741_006/299741_006_0010.jpg

In re: Hopper, yes, it looks like this could be an entire book. I cannot fit it into this article, unfortunately, but it's still interesting to trace where this all came from. I think the legal piggybacking may also explain why the USAF didn't fully comprehend the methodology, because borrowing that framework apparently meant that they didn't see fit to conduct much due diligence. I imagine that the issue with Hopper was probably failure to be recommended by a promotion board--I don't know the complexities of the Navy's promotion system, but her status was unusual enough that it may have precluded regular consideration for promotion. Being subordinated to a promotion board recommendation is precisely the same issue that the Attorney Gen. weighed-in on in 1956--whether or not the President can be forced to have his choice of nominee subordinated to a lesser official in the executive. So that falls under executive discretion, which is why they were permitted to go around the statute. But the caveat is that this was only permitted because the officer was already eligible for promotion, and Congress was still deemed to have the final authority to define who was eligible, but not to determine who was the selectee. That seems to be the common thread in most of these advancements--officers who are otherwise eligible, but not through the regular promotion boards. Interestingly, in the case of Hopper, it doesn't seem that her resolution really went anywhere--I found it once in the Congressional Record when introduced, but it never left committee, received a report, etc. Crane died some years ago, unfortunately, and I don't see any papers he left behind. I was disappointed that Hopper's OMPF didn't have any of that paperwork. One point is that Hopper was not retiring contemporaneously (she continued in that role through 1986, I think), which meant that her unscheduled promotion probably counted against the number of flag officers the Navy was capped at, right? Perhaps that explains the resistance? Foxtrot5151 (talk) 16:25, 6 November 2022 (UTC)

Also curious about the Army's posthumous promotions, since they would apparently run afoul of some of the same statutory restrictions. Foxtrot5151 (talk) 17:45, 6 November 2022 (UTC)

It looks like 10 USC 1521 covers posthumous promotions where the appointment or recommendation for appointment was issued prior to death. So apparently the Army was trying to honor folks that fell outside of those parameters, but without the work of passing a bill of relief. Foxtrot5151 (talk) 23:20, 6 November 2022 (UTC)

Astronauts (part 1), Scobee, etc.

I am also reading the Corwin text that the AFJAG cited in the 1983 astronaut opinion. Think I have a slightly later version because the pagination is slightly different. It seems a mischaracterization to me. Yes, Corwin says that the Constitution only has a textual limitation on appointment in the form of the ineligibility clause. But two pages later he says "By far the most important limitation on presidential autonomy in this field of power is, however, that which results from the fact that, in creating an office, Congress may stipulate the qualifications of appointees thereto. First and last, legislation of this sort has laid down a vast variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, political, industrial, or religious affiliations, and so on and so forth. It has even confined the President's selection to a small number of persons to be named by others. Indeed, it has contrived at times, by particularity of description, to designate a definite eligible, thereby, to all intents and purposes, usurping the appointing power. For the proposition is universally conceded that some choice, however small, must be left the appointing authority . . . .

Corwin also has entire pages of citations of examples under that paragraph, most apparently from Justice Brandeis's dissent in Myers v. United States, 272 US, 52, 264-74. From all of this it appears that Corwin has only concluded that Congress cannot limit executive discretion in appointment to the point of forcing appointment of a given eligible. He doesn't seem to be arguing at all that other statutory restrictions on the appointment qualifications are invalid simply by narrowing the field of eligibles, which is what the OpJAGAF opinion clearly said. So it seems they were either mischaracterizing that work, or otherwise failed to read it. They said that "Any attempt to constrict the President's judgment would be constitutionally impermissible." I mean, that may be true in this context, but can't really be attributed to Corwin. 131.252.143.28 (talk) 20:49, 7 November 2022 (UTC)

Trying to find more documentation of the astronaut policy. Here is a memo in Alan Shepard's OMPF, saying that they only did it up to O-6 (why stop there?). https://catalog.archives.gov/id/74880569?objectPage=400 Foxtrot5151 (talk) 03:26, 8 November 2022 (UTC)

Interesting that under that policy Shephard apparently went through a board for RADM selection: https://catalog.archives.gov/id/74880569?objectPage=402 Foxtrot5151 (talk) 03:28, 8 November 2022 (UTC)

Folks trying to force the promotion anyway: https://catalog.archives.gov/id/74880569?objectPage=396 Foxtrot5151 (talk) 03:32, 8 November 2022 (UTC)

Another Navy pushback: https://catalog.archives.gov/id/74880569?objectPage=394 Foxtrot5151 (talk) 03:33, 8 November 2022 (UTC)

So it appears a private citizen wrote to his Senator as a constituent, asking him to appeal for Shepard's promotion despite no standing to do so? That's just a waste of time--do they really have nothing better to do? https://catalog.archives.gov/id/74880569?objectPage=394 Foxtrot5151 (talk) 03:35, 8 November 2022 (UTC)

Ok, this almost got out of hand. A Medal of Honor? https://catalog.archives.gov/id/74880569?objectPage=376 Foxtrot5151 (talk) 03:39, 8 November 2022 (UTC)

I still don't think active-duty status is any more or less significant than the other eligibility criteria in the various promotion statutes. For example, under DOPMA, Title 10 promotions up to O-8 require selection by a promotion board. Officers not selected by a promotion board are not authorized to be promoted by that statute, so promoting astronauts without a board requires the Appointments Clause. That is just as legitimate or illegitimate as invoking the Appointments Clause to promote an officer not on active duty to O-10 because he can't qualify for a Title 10 promotion under DOPMA. Narrowing the field of eligibles just tells you when a particular statute is in play. It doesn't rule out alternate promotion authorities.

The astronaut promotion policy was instituted by NASA and DoD in 1965:

The matter of meritorious promotions for astronauts after successful space flights came to a head when President Johnson, in the course of a speech at the Manned Spacecraft Center (MSC), Houston, Texas, in July 1965 and without prior mention to the Secretary of Defense nor the Administrator, announced that he was promoting Astronauts James A. McDivitt, USAF, and Edward H. White, II, USAF, for their successful flight in Gemini IV. Shortly thereafter, the President arranged accelerated promotions for Astronauts Virgil I. Grissom, USAF, and John W. Young, USN, who had flown in Gemini III and who were then on promotion lists awaiting actual promotions under normal procedures....I discussed this matter with the Deputies for Personnel in Navy and Air Force Headquarters, and we agreed that it would be preferable that meritorious promotions be awarded in accordance with an established policy rather than on a spur-of-the-moment basis....Each military astronaut would receive a one-grade promotion as a direct result of a successful space flight, but not beyond the grade of Colonel in the Air Force and Marine Corps or Captain in the Navy. (There was to be only one meritorious promotion given to any individual military astronaut.)

This is a pattern with Appointments Clause promotions: the President makes a decision, and the bureaucracy finds a way to rationalize it. In the 1970s, there seems to have been a general sense, both in Congress and the services, that the President could legitimately direct out-of-process promotions, even if people were fuzzy on the mechanism:

Mrs. HOLT: The President can remove the name of an officer from a promotion list. Can he add a name? Has this been done? There is nothing in DOPMA about it.

Admiral WATKINS: I don't believe that he can, no.

Mr. McCULLEN: We could check that.

Mr. FORD: Would you check that and put it in the record later? I believe that he can. The President has the right to nominate an officer subject to the advice of the Senate. I think that President Roosevelt did on one or two occasions.

[Response provided for the record states that the President cannot add a name to a promotion list, but can invoke the Appointments Clause, as for astronaut promotions.]

General McLENNAN: We have an indication that the President can direct a promotion. I am not able to cite the specific authority.

For example, President Reagan directed the posthumous promotion of Nicholson in part to keep pressure on the Soviets for an apology and compensation for his family:

The [Appointments Clause nomination], submitted Friday, is highly unusual because Nicholson's name did not appear on the Army's promotion list. It marks only the second time in history a president has asked for the promotion of an officer not on the list, an Army spokeswoman said. In the first instance, Lt. Col. Charles Ray, a defense attache at the U.S. Embassy in Paris killed by a terrorist in 1982, was promoted posthumously to colonel, she said.

For Hopper, Lehman is the best source, if he still remembers, since he was the one who decided to intervene, especially if it really was the kind of power play he was notorious for. Crane's bill was racking up more cosponsors every week, until it was preempted by Lehman's announcement on October 29. The flag officer grade caps did apply to all active-duty officers including Hopper, but don't seem to have driven resistance to her promotion from the Navy, since SecNav chose to endorse it. But I imagine they were a factor in the eventual decision to take her off active duty.

Lehman invoked the Appointments Clause again a few years later to recall legendary fighter pilot Joe Satrapa to active duty as a Top Gun instructor with the promotion to full commander that Satrapa demanded. Satrapa had retired after being passed over by a promotion board, and helped inspire Tom Cruise's character in the original Top Gun movie. People wonder how Maverick could possibly still be on active duty as a captain in the new movie -- well, maybe Iceman finagled a secretarial Appointments Clause promotion for him, too.

- Morinao (talk) 08:16, 9 November 2022 (UTC)

You make a compelling case, and you have solid evidence, so obviously I cannot argue with the actual practice--your statement that "the President makes a decision, and the bureaucracy finds a way to rationalize it" seems correct. I guess it just comes down to the strength of the particular rationalization, since they're not all equally compelling. I still think it's most problematic to use this pathway as a way to circumvent the legislature (Eaker/Doolittle), and obviously less problematic when nobody would or did object to the practice, such as with a deceased soldier. In the latter case, it's curious that it needed to happen this way with deceased servicemembers, since one would think that the legislature could easily expand one of the existing statutory authorizations to encompass more subjective situations.

The astronaut promotions are interesting and yet rub me the wrong way--having been around several folks who were selected or mulling selection, and having met a few active duty astronauts still in the military, I think wearing the blue flight suit is its own reward. In one sense, it probably is impractical to have them going through a promotion board--their evaluation reports are basically written by civilians not even in DoD, and they are essentially on extended loan from DoD themselves (with DoD footing the bill). The astronaut program has this lend-lease policy where you are detailed to try out for the program on a probationary basis after passing through test pilot school, but after that they should probably make these guys resign their commissions and just pay them out of NASA's budget. I mean, they really don't do anything for the service any longer unless they somehow leave the program and then go out to a regular command again (and that seems unlikely for most of them--their career path is about as narrow as one can get).

Any idea why the Army promoted those several hundred reserve colonels via the appointment clause? I ran some of this by a retired JAG who was one of the only people who published a detailed article in Military Law Review that focused on promotions. He speculated that they might have used the appointment clause to allow promotions of reservists who were overlooked for promotion, which led them to establish a BCMR led "RELOOK" process to attempt to cure the defect. That made me wonder if those promotions were attributable to this board process. Foxtrot5151 (talk) 15:55, 9 November 2022 (UTC)

In re: the board justification, I was focusing on that one because of the 1956 Op Atty Gen and 1983 Op JAG AF opinions both saying that the board requirement basically interfered with executive discretion, but they still claimed Congress can set the parameters of the office's qualifications. On the other hand, if all they were doing was finding a colorable justification for the promotions in those particular cases, then all of the efforts to draw an internal line are mostly meaningless, because they're not really enforceable the next time around, when they'll just find another justification upon presentation of a case that's non-conforming.

I do think, if looking to draw a distinction between the various appointment clause rationalizations, that the non-duty status (for honorary purposes) and particularly deceased officer promotions are particularly problematic. From an originalist perspective, there's really no argument that this practice never even entered the minds of the framers--obviously this appointment pathway was never intended to confirm nominees for the sake of not actually holding the office. So while you can also rationalize the practice on the grounds that there's no tangible harm in most cases other than perhaps the cost of the government having to process the nominal appointments (which is probably why it's gone on), it's pretty obviously not what this provision was intended to accomplish. If we're talking about qualifications for actual serving officers intended to fill actual positions, then that's squarely within the intent of the provision, and I think more debatable because the exact parameters of the legislature and executive's authority aren't set in stone. 131.252.57.70 (talk) 17:44, 9 November 2022 (UTC)

Ok, found contact info. for Lehman, so I'll see if he can explain it. I cannot include it in the article at this point, but it might be helpful to pass to the author of Hopper's book, in the event he ever issues an updated version. 131.252.57.70 (talk) 17:55, 9 November 2022 (UTC)

In re: Hopper, her file actually says she requested her own voluntary retirement, although I guess it might have been suggested as an alternative to forcing it. She eventually passed in 1992 (at age 85), only some 6 years later. 131.252.57.70 (talk) 19:59, 9 November 2022 (UTC)

In re: Satrapa, that's interesting. They really should've used that as the explanation for 60-year-old Tom Cruise being brought out of mothballs for Top Gun in the recent sequel--the appointment clause would be a better explanation than the implication that he just kept being busted down like he was junior enlisted or something (I mean, it's an up or out system, isn't it?). But on Satrapa, it's interesting how he was able to dictate the conditions of his own employment in a way that's virtually unheard of within the military. Anecdotally, the only case I ever ran into that seems similar was a pilot who was nominally under my administrative command (and I do mean nominally). He had previously retired as a military pilot and taken a job at a major airline, and then got furloughed, so he somehow struck a sweetheart deal to come back as a limited-duty officer for a specified period (I don't really know what to call it because nobody ever used a technical term--he still wore the uniform, but was somehow exempted from most everything, or so I was told). The deal forbade the service from giving him a PT test, or deploying him, and I don't think he even went up for promotions or had evaluation reports. I actually asked my CO if these restrictions were real, because I didn't believe it at first, and sometimes really lazy officers would just exempt themselves from those sorts of requirements (without authority) if they could get away with it. Evidently it was all real, and apparently he just went back to the airline after this contractual period of service ended. 131.252.57.70 (talk) 20:17, 9 November 2022 (UTC)

Also in re: Satrapa, apparently the toe-to-hand transplant is real. Sorry, I had to verify this! https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4536818/#:~:text=The%20toe%20to%20hand%20transplantation,accepted%20option%20for%20the%20thumb. 131.252.57.70 (talk) 20:34, 9 November 2022 (UTC)

In re: astronauts, thanks for the NASA link. I see I was wrong, and that NASA actually reimburses their pay. That's as it should be. I still don't see this continued fiction that they are actually in the military in any functional way as necessary--they should just resign from the military after acceptance into the space program. I previously pulled Grissom's OMPF and noted that at least one of his promotions looked funky (very few on people on the order, special promotion order, etc.) but didn't see any obvious signs of external influence documented. Curious if the "meritorious promotions" have continued in the present-day reality of either riding a Russian rocket or using Musk's reusable spacecraft to get into orbit--after all, either way they'd just be a passenger, so does that really deserve the same type of treatment? 131.252.183.149 (talk) 22:47, 9 November 2022 (UTC)

Already received a reply on the Lehman query: "Unfortunately, Dr. Lehman does not recall the details regarding Grace Hopper’s promotion to Commodore in 1983." They suggested checking with the Naval History Command. Foxtrot5151 (talk) 17:18, 10 November 2022 (UTC)

Wow, it's great that you were able to get a response from Lehman so quickly, although I guess it was a long shot that he would remember that kind of detail four decades later.

Hopper's retirement was not as voluntary as the record implies. According to this biography (p. 191):

Early press reports in August 1986 reported Hopper's retirement as involuntary. The Navy Times, however, quoted a spokesman for navy secretary John Lehman as saying that Hopper was not being forced out. "It was her choice. She sent in a letter requesting voluntary retirement." Hopper herself denied that, telling the Navy Times that she had not planned on retirement. "I would have loved to stay in the navy and I wasn't ready to leave," she said. "But it's all about numbers and I guess they needed mine."

The rest of the story is in this PhD thesis (which has some priceless anecdotes from her Navy aide: "[Hopper's boss, Admiral] Sutherland wanted someone with Hopper in case something happened to her on one of these trips. And, one time I really thought she had died. I came to get her to take her to dinner or something and knocked on her door. I got no response and I kept knocking harder, and thought, 'Please don't die on my watch.' Finally, I heard her say, 'Just a minute, just a minute.'...And it hits you this little old lady should be at home and not doing all this travelling, but that is what she lived for."):

By this time, Hopper was seventy-nine years old and beginning to travel less frequently. She had fallen in Dulles Airport, breaking her arm, and the Navy, which had allowed Hopper to remain past retirement age by annual review, decided Hopper should retire again.

Admiral Paul Sutherland, still the commanding officer of the Naval Data Automation Command, recalled that when the time came for Hopper to be retired, "people didn't have the courage to tell her." He said that someone of Hopper's status and notoriety should have been asked to retire by the Secretary of the Navy or the Chief of Naval Personnel, and "then she would have accepted it." However, Sutherland was given the duty of telling Hopper that the Navy thought she was too old again. "I knew that she was not going to be happy to hear this and would want to talk to the Chief of Naval Personnel and the Secretary. Well, I made all her appointments for her, and she finally accepted the fact of her retirement. But she was like Rickover, she was certain that the Navy couldn't really do without her."

I haven't been able to track down the story behind the 207 reserve colonel promotions, but it's probably something along the lines of what your retired JAG friend suggests. One-off defect cures pending permanent legislative fixes are a good theory for some of the other Appointments Clause promotions from this decade, especially after DOPMA consolidated so many of the previous promotion authorities. For example, Moon and Knowlton (1989) appear to be Navy staff corps officers who were on a selection list but not promoted due to terminal illness; perhaps DOPMA had unintentionally left a gap in Title 10 that let line officers be promoted under these circumstances but not staff corps officers.

The meritorious astronaut promotion policy ended after Challenger, but Appointments Clause promotions continued into the 1990s for astronauts already in the pipeline. Interestingly, Kevin Chilton, the only four-star astronaut, was one of the first military astronauts not to receive a promotion for his first spaceflight on STS-49 in 1992, while the Air Force astronaut on the shuttle flight before, Brian Duffy, was one of the last to receive one; Duffy was in NASA Astronaut Group 11 but Chilton was in NASA Astronaut Group 12. (Susan Helms and Ron Sega were in NASA Astronaut Group 13.) According to Duffy:

There used to be a policy that when you flew the first time, you got what we called a flight promotion, where you would, say, if you launched as a lieutenant colonel, you would land as a colonel, essentially, that kind of thing; you’d get a one-rank promotion....After Challenger, the DoD [U.S. Department of Defense] had cancelled the policy. My group, because we had been selected prior to Challenger, was grandfathered. So we were going to be the last of the group where a military member would get a one-rank promotion, one-grade promotion, when you flew....So I ended up, I guess, being the last person to get a flight promotion, because I was the last person in my group to fly.

It's true that most military astronauts never return to their services, and those that do return typically remain siloed within their service's space program, and the height of that silo limits their military careers. For example, the Army reserves its major space command (Strategic Defense Command) for an air defense artillery three-star, so astronaut Robert L. Stewart got stuck at one-star deputy commander, whereas Stafford and Helms had a much higher ceiling in the Air Force's space and systems commands. Chilton and Charles Bolden are the exceptions that prove the rule, since they immediately jumped back into mainstream jobs.

(The Johnson Space Center has some great stories in its oral history collection, including some interesting anecdotes about military career management. SuperWIKI, you might be interested in Bolden's story about his withdrawn nomination to be deputy NASA administrator as an active-duty Marine lieutenant general.)

JSC oral histories

Air Force astronaut Jim McDivitt (who retired four months after being promoted to brigadier general while serving as Apollo spacecraft program manager): So, I was a Captain for a long time....I came up for consideration for a promotion to Major, below the zone. And I’d made all these other things below the zone. And I didn’t make it. I thought, “Hmm, that’s really odd,” because I knew what my officer efficiency reporting for ratings were. They were all as good as you can get. And so, then the next year came up and I didn’t get promoted again. [Air Force astronaut Ed White’s father asked the Secretary of the Air Force why his son wasn't being promoted.] And the Secretary...called Ed’s dad back and said, “You know, there’s a whole mass of Air Force officers who are out to drive all these guys out of the Air Force because they think they’re traitors.”...General White called in and said, “You know, the Air Force is out to get you guys...you’ve pretty much had it.” So, I submitted my resignation from the Air Force and into NASA [but pulled it until after Gemini IV]. [After Gemini IV, President Johnson visited Houston.]...I’d made Major, like, a couple of weeks before the flight. So, I walk up there and he says, “Jim, I’ve got a surprise for you.” He says, “You know, I think you boys are doing a hell of a good job here. And I’m the Commander-in-Chief of this outfit. And,” he says, “I decided that I’m going to promote you all. And you’re now a Lieutenant Colonel!” He gave me my silver oak leaves, and I was only a Major for a couple of months. I never did get my Major’s on my shoulders. He called Ed up, promoted Ed right there. And then he says—I don’t remember whether Gus [Grissom] was there or not. He says, “I got one for Gus.” Those were the first Presidential promotions. Well, when that happened, I think the attitude in the Air Force changed. And what it—what really was happening was that the Second Lieutenants, First Lieutenants, and Captains were—they usually thought being an astronaut would be great. I think the Generals did, too. But these middle guys—the Majors, Lieutenant Colonels, and the Colonels—were doing the day-to-day battling over rules and missions. They hated our guts! But I think the President turned that around. And so, ultimately, I ended up becoming a General. Navy astronaut Ken Mattingly (who returned to the Navy and was promoted to one-star admiral heading a SPAWAR division): I went up to pay courtesy calls to the navy after we got back [from Apollo 16], and John Warner was then Secretary of the Navy, and we made a courtesy call to him. He was all enthusiastic. He says, “You Navy guys need to come back, and we'll give you any job you want. You pick it. Whatever you'd like. You want a squadron? You want to do this? Just tell me. It's yours.” Boy, my eyes lit up, and I thought, “Wow.” One of my escort officers was a captain in the Pentagon. He went back and told his boss, who was the Chief of Naval Aviation, what Warner had said, and very quickly I had an introduction to the Chief of Naval Aviation, who made sure that I understood that despite what the Secretary had said, in the environment we were in, I was not going to come in and take over his squadron. He'd find a place for me, he'd give me a useful job, but don't think that with the Vietnam War going on and people earning their positions the hard way, that I was going to walk in there and do that. He says, “The Secretary means well, but we run the show.” Marine Corps astronaut Charles Bolden (who was passed over for promotion to brigadier general until he found a mainstream colonel's job at USNA as deputy commandant of midshipmen, and was a major general when asked to return to NASA as deputy administrator): At the time, I was actually in my first year as the Commanding General of the 3rd Marine Aircraft Wing out in California and loving what I was doing, flying all the time, having fun....And I went back and I talked to [NASA Administrator] Sean [O'Keefe], and we talked about how long, and I explained to him that I was not ready to leave the Marine Corps, that I enjoyed what I was doing and that I would be willing to come if I could just finish my tour. And he said, “Well, I don't think that’s possible, but we can guarantee that you won’t have to get out of the Marine Corps. You can stay on active duty, and there’ll be a promotion,” and this kind of stuff. And so I said, “Okay, what the heck. I’ll try it.” And so we started the proceedings for the nomination, and I got word. In fact, the Commandant announced it this time of year, back then. In a forum of all the general officers in the Marine Corps, he brought my wife and me up and announced that I was being nominated by the President to be the Deputy NASA Administrator and I was going to be a lieutenant general and stay on active duty and all this kind of stuff. Shocked me, but I said, “Okay.” ...Ironically, everything in NASA is handled through the Senate Commerce Committee, so it was Senator [Fritz] Hollings was the ranking member, he was the Democrat, and Senator John McCain was the committee chairman for the Commerce Committee. So that was the committee to approve me, confirm me, to be the Deputy Administrator....It was through Senator Hollings that I learned that there was about to be a hiccup. He...shared with me a letter that had been sent to the Office of the General Counsel in the White House, from Senator [Carl] Levin, who was the ranking member, the Democratic ranking member, and Senator [John] Warner, the Chairman of the Senate Armed Services Committee. It had, I think, three or four questions for the President, through the General Counsel, and they were essentially, “You’re going to take a guy that’s an active duty military person at a time like this, when we’re engaged in the war on terrorism, and you’re going to make him the Deputy Administrator at NASA. Do you really want to do that?” Question number two. “We don’t have anything against this guy, but why him? Why do you particularly want him? Do we want to set the precedent of taking a high-ranking military official and making him the Deputy at a civilian organization?” We’ve got some things in the past, Admiral Truly did it, but he retired and stayed on as the NASA Administrator once he became the NASA Administrator, and blah, blah, blah, blah, blah. And I forget what question number three was. It was something again like “Why him?” or something, I don’t know. So Senator Hollings said, “I wouldn’t worry about it. We’ve got it. I’ve already talked to John McCain, I’ve already talked to Levin and Warner and everybody, and we’re happy. So we’ll see you tomorrow.” ...So I went down to Mr. O’Keefe’s office, and he said, “Hey, this is gotten to be too difficult. We’ve talked with the White House and everybody else, and we think the best thing to do is withdraw the nomination.” I said, “Sounds good to me.” And he said, “You know, I could fight it, but I don’t think it would do you any good if you want to stay in the Marine Corps. I could go talk to [Donald H.] Rumsfeld, but I don’t think it’s good for any of us. So we’re just going to back off.” To this day, I have no idea what really happened. I don’t know whether the White House just didn’t want to answer the questions that came from the Armed Services Committee, whether Secretary Rumsfeld said, “No way,” or what. All I know is that the word was that he wasn’t aware that I had been nominated, which I found flabbergasting that the Secretary of Defense would not be aware that the President had nominated one of his general officers. But I believe what people tell me; I take them at their word.

- Morinao (talk) 07:52, 12 November 2022 (UTC)

Under what law would the President be appointing Bolden as NASA deputy administrator? If there was a law in 2002 that explicitly forbade a military officer from being nominated as NASA deputy administrator (let alone as a lieutenant general, which requires Senate confirmation on its own), President Bush could have appointed Bolden under the Appointments Clause; aside from controversy in the Senate (like Senator Levin), I see little reason why the President couldn't do so. We've discussed at length about whether the Appointments Clause as a constitutional provision can override in totality other federal statutes; it can in theory but almost always steps on the heads of Congress who could swiftly deny confirmation. The nomination itself gives no clue under which law Bolden is being promoted under.

51 U.S.C. § 20111, instituted in 2010 (though I'm unsure if it existed in a similar form before), states that the deputy NASA administrator "is appointed from civilian life". Could this have been codified in response to the nomination of Bolden as an active-duty officer, assuming it didn't exist in some form before? More sources on the Bolden affair might add some clarity to both questions.

I guess we have Senator Rockefeller to partially thank that Bolden got the top job at NASA from 2009 to 2017. SuperWIKI (talk) 14:35, 12 November 2022 (UTC)

Here's Hopper's retirement request (voluntold, apparently?): https://catalog.archives.gov/OpaAPI/media/57288961/content/st-louis/military/rg-024/299693/300_Hopper_Grace_01_Page_162.jpg

Her file has many of those one year extension requests, for obvious reasons.

Thanks for the info on the termination of the NASA flight promotions--I wasn't aware of that, but it makes sense. Why was Challenger the impetus--did any of those astronauts get it? I took a look at a few of their bios, and it looks like they were posthumously awarded the Space Medal of Honor and/or Defense Distinguished Service Medal, but that's all I'm seeing. Foxtrot5151 (talk) 16:49, 12 November 2022 (UTC)

I'm thinking about the Catch-22 that the Challenger disaster posed--technically they hadn't completed a space flight, but of course had sacrificed much more than most astronauts, so I imagine that this paradox was obvious to officials. An added problem was that the entire crew wasn't military. That same problem of living/posthumous recognition plagued the early MoH--except for some cases where awards were already put in channels, the Army had an unofficial and then official policy against awarding the MoH posthumously. Later in the nineteenth century (1890s?), in reaction to the hundreds of former soldiers petitioning for their own medals, the TJAG opined dubiously that the statute contemplated a personal presentation and therefore couldn't be awarded posthumously, but this ran afoul of the award's evolution toward altruistic sacrifice by the end of the nineteenth century (because, of course, dying for altruistic reasons was even more of a sacrifice than doing something that simply risked death). The policy was finally repealed in 1918 when the president expanded the award system by executive order.

Interestingly, it appears that at least some of the Challenger astronauts were promoted posthumously by bills of relief. I didn't search exhaustively, but LTC Onizuka was promoted here: https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3350.pdf. Not sure about the others, but I couldn't find a bill for Scobee. Very interesting timing here, because this was the same session of Congress as the Doolittle/Eaker promotions, and they chose to do the waiver rather than the appointment clause (which had already been used on astronauts and evidently deceased soldiers). Foxtrot5151 (talk) 18:37, 12 November 2022 (UTC)

The NASA administrator and deputy administrator have always been required to be "appointed from civilian life" (72 Stat. 429), but a supplemental appropriations bill (115 Stat. 2301) waived this requirement during FY2002 to let an active-duty officer be appointed deputy NASA administrator under the same terms as the director or deputy director of central intelligence -- pay reimbursed by the non-DoD agency, and exempt from grade caps. A previous military astronaut, Richard Truly, received a Congressional waiver (103 Stat. 136) to serve as NASA administrator as an active-duty rear admiral pending retirement, and a separate Appointments Clause promotion to vice admiral on the retired list. Bolden already had his Congressional waiver and presumably could have received a separate Appointments Clause promotion to lieutenant general, following the Truly precedent, but it sounds like O'Keefe, a former SecNav, cleared Bolden's appointment with the Senate but not Rumsfeld.

Bolden would have needed another Congressional waiver to be appointed NASA administrator in 2009, even as a retired officer, but Rockefeller solicited legal opinions from CRS and OLC eliminating this requirement, despite several precedents of Congress having to waive the "civilian life" clause to let a retired officer serve as NASA or FAA administrator (McKee, Engen, Busey, Truly, Curry, Richards). Elwood Quesada, a retired lieutenant general, even had to resign his Air Force commission to serve as the first FAA administrator, with the promise that when he left office he would be reappointed to his former grade on the Air Force retired list. Another retired Air Force general, William McKee, was not as wealthy as Quesada and could not afford to give up his retired pay in order to be FAA administrator, so Congress passed a waiver modeled after the one that let Marshall serve as secretary of defense, which was meant to be a one-off but set a precedent for future military appointments.

Not sure why the Challenger incident stopped astronaut promotions, but the policy had been in abeyance from 1974 until Reagan revived it in February 1984, so shuttle astronauts had only been eligible for two years. Maybe its repeal just happened to coincide with Challenger.

Only two of the Challenger astronauts were active-duty military (Onizuka and Smith), since Scobee had retired from the Air Force as a major before the flight. Scobee's tombstone lists his rank as lieutenant colonel, but I can't find a nomination or legislation for that promotion, and the Air Force disavowed it in at least one contemporary news article: "Although the tombstone listed his rank as lieutenant colonel, the Air Force said its records listed him one rank lower as a retired major." Smith received his posthumous spaceflight promotion to captain via the Appointments Clause, but Onizuka had already received his spaceflight promotion the year before (I can't find it now, but I could have sworn I saw a White House memo telling Reagan to promote Smith after Challenger but not Onizuka, for this reason).

There is something funny going on with Onizuka's promotions. When he flew his first spaceflight in 1985 as an Air Force major on STS-51-C (January 24-27), he had already been selected for a Title 10 promotion to lieutenant colonel (nominated February 5, confirmed February 23). Then all four first-time military astronauts on STS-51-C were nominated for an Appointments Clause promotion to colonel (nominated February 19, confirmed February 28) even though two of them were still majors when they flew: Onizuka and Payton. But Onizuka was a lieutenant colonel for the Challenger flight a year later, and Payton was nominated for a Title 10 promotion to colonel in 1987, suggesting that regardless of the grade listed in their nomination on congress.gov, their spaceflight promotion was construed as a one-grade advance to lieutenant colonel -- which Onizuka was about to receive anyway. If so, this was bad luck for Onizuka, and perhaps explains why Duffy was willing to manipulate his own flight schedule to collect his free promotion.

It was to my advantage, actually, not to fly too early, because of the way things were working....I happened to know the way my promotions were falling in time, and so I had talked to Dan [Brandenstein, chief of the Astronaut Office] just to tell him, “Much as I want to fly right away, if it fits in your plan, it’s to my advantage to fly a little later.”

Duffy received his Title 10 promotion to lieutenant colonel in 1990 (nominated March 8, confirmed April 27) and his Appointments Clause promotion to colonel for his first spaceflight on STS-45 in 1992. The month before Duffy was nominated for lieutenant colonel, Pierre Thuot became the first member of his astronaut group to fly, receiving an Appointments Clause promotion for STS-36 (nominated May 10, confirmed May 25). If Duffy had flown on STS-36 in February/March 1990, the timing of his promotions would have put him in the same boat as Onizuka in 1985.

- Morinao (talk) 03:30, 14 November 2022 (UTC)

The Quesada example is reminiscent of Eisenhower--I recall reading that he resigned his commission when elected President, and then requested reinstatement after he left office. Reportedly he preferred being called general over president, and I guess that makes sense given that his military accolades were his path to the WH.

Wrote to NASA history office and received a reply. They sent me a grouping on Brian Duffy (misidentified as Duff?) along with LBJ's original promotion policy from Aug. 1965. Here's the substantive portion: "Each military astronaut will receive a one grade promotion as a direct result of the first successful space flight, but not beyond the grade of Colonel in the Air Force and Marine Corps or Captain in the Navy. Promotions to General Officer rank will be accomplished through usual military selection board process."

I went through Scobee's OMPF, and it appears you're correct about his rank. How bizarre, they appear to have misidentified him on the tombstone--ANC has clear vetting requirements for that sort of thing, but it appears to be a mistake. Curious how that happened--seems very unlikely that his widow didn't know his correct rank (military spouses are very, very aware of this, because this own status among wives sort of vicariously flows from the rank of their husbands). Maybe that was the same period where ANC lost track of where the actual graves were located, and started randomly recording the incorrect locations? I just reported it on the ANC website, and called and reported it verbally also. They said they would refer it to the appropriate department.

Retirement request says major (effective 1980): https://catalog.archives.gov/id/74880367?objectPage=61

Retirement order says major: https://catalog.archives.gov/id/74880367?objectPage=64

DD214 says major: https://catalog.archives.gov/id/74880367?objectPage=69

Statement of service says major: https://catalog.archives.gov/id/74880367?objectPage=71

Interesting about Onizuka--evidently they didn't want to invoke the appointment clause twice to avoid setting an adverse precedent? 131.252.63.146 (talk) 18:07, 14 November 2022 (UTC)

Continue to be impressed at how quickly you are able to pull these really interesting records from the various history offices. I agree that the Scobee tombstone is really odd, which was even noticed at the time, since the Washington Post reporter attending his Arlington burial actually followed up with the Air Force afterward. All I can think is that since he never received a spaceflight promotion, having retired before the policy was revived in 1984, maybe the family was given informal assurances that he would receive one posthumously, like Smith, so put the anticipated rank on his tombstone? And then no one followed up with legislation (Onizuka) or Appointments Clause (Smith), but people still think Scobee is at least a lieutenant colonel -- there even appears to be a "Colonel Dick Scobee Leadership Award" for top OTS graduates.

I still don't understand Onizuka and Payton, unless the grades in their joint STS-51-C Appointments Clause nomination were transcribed incorrectly on the congress.gov website. Onizuka's Title 10 promotion to lieutenant colonel was executed, but not his simultaneously confirmed Appointments Clause promotion to colonel. Maybe the Air Force banked it for later, because of time-in-grade or years-of-service considerations, and then wound up needing legislation to do it posthumously? But that doesn't explain why Payton would be confirmed a second time for colonel via Title 10.

There were several Apollo-era precedents for a second Appointments Clause promotion after a spaceflight. In November 1969, five months after being promoted to commander, Alan Bean flew his first spaceflight on Apollo 12, qualifying him for an Appointments Clause promotion to captain. But this would jump him over the other two Apollo 12 astronauts, Conrad and Gordon, who had already received their one spaceflight promotion under the policy hammered out by NASA and DoD for LBJ. As usual, when it comes to astronaut promotion policy, the bureaucracy proposes and the President disposes.

Conrad and Bean, having been upped from lieutenant commander to commander after [Gemini 5 and Gemini 11], were ineligible for another promotion. Rookie Bean was. But should Bean be promoted over the heads of his seniors? Hang the policy, said President Nixon, and promoted all three.

Now Bean was the youngest captain on active duty. But this was unfair to Apollo 10 astronauts Cernan and Young, who had not been promoted a second time for their flight even though they had the same spaceflight promotion to commander as Conrad and Gordon. The policy was amended to provide a second promotion for a lunar or interplanetary flight, and Nixon belatedly promoted Cernan and Young to captain in 1970. Nixon even wanted to give Young a third spaceflight promotion, to rear admiral, for Apollo 16 in 1972, but the Navy finally put its foot down.

Wasn't it Eisenhower who had some quote like "I prefer 'General' to 'Mr. President' because it took me longer to earn that title"? Or am I paraphrasing someone else? Trying to think of other cases of reinstatement after resigning a commission. The precedent for Eisenhower was Grant (who had a much harder time getting reinstated). Doolittle resigned after the Air Force refused to approve his retirement so soon after commissioning him a Regular brigadier general, and was reappointed in the Reserve. Edwin Walker.

And two retired Air Force officers resigned their commissions because the law requiring the FAA administrator to be a civilian was interpreted so strictly. Quesada was reappointed by special legislation after leaving office. But Alexander Butterfield, the Nixon aide who accidentally revealed the existence of the White House tapes, had to resign his commission as a retired Air Force colonel after Congress declined to waive the civilian requirement like they had for McKee, but was informally assured that he could be reappointed afterward, like Quesada. And then the Senate voted down his reappointment by 5 votes, after which every subsequent retired officer nominated for FAA or NASA administrator understandably insisted on a McKee-style waiver as a condition of their appointment. But in 2009, OLC and CRS ruled that Bolden didn't need a waiver or resignation to be appointed NASA administrator because a retired officer counted as a civilian under that law after all, and always had! I wonder what Butterfield must have thought of that?

- Morinao (talk) 03:35, 16 November 2022 (UTC)

Yes, but the ANC protocol would require a DD-214 with that rank, no exceptions, so I cannot fathom how that happened without some major protocol violations. I'm going to send this to a friend at the VA's NCA, which doesn't run ANC (that one is still Army controlled), but they do run most of the others. NASA's bio of him is also wrong on the same point: https://www.nasa.gov/sites/default/files/atoms/files/scobee_francis.pdf. I informed both offices and asked them to respectfully fix it, if such a thing is possible. In the larger scheme, the whole point of a posthumous promotion after an unexpected death is to honor what the SM would've likely been had he/she lived. And since Scobee was long since retired, that doesn't really make sense--if he'd wanted to be a LTC, he likely would've been one by that time anyway. I assume he just got tired of the extra admin hurdles that being dual-hatted entailed, and he probably made a joint decision with his spouse to punch out because it wouldn't really change anything for the worse. So why would the family then want him promoted, simply out of equity?

Yes, pulled the book with the Nixon double promotion yesterday--so two of them got appointment clause promotions twice, apparently. I wrote to LBJ Library, Nixon Library, and Reagan Library. It looks like the LBJ is probably going to be the most accessible--they have a whole box on astronaut promotions, although they take many months to digitize anything (I ordered a grouping with them last year on a colonel who was abducted by Cuban terrorists in Caracas). Nixon Library wrote a sad reply saying they don't have the staff to even look at the material, so it would likely cost thousands to digitize the entire Outer Space (OS) file, or I'd have to hire a researcher (are they suffering from funding or something?). Reagan Library replied and said I would have to make a FOIA request, since the record is in the Counsel to the President files and is presently restricted. So I did that, and we'll see what happens. NASA wrote back again and said they will help me look for records, so perhaps they have some of the backstory. I imagine if the policy is defunct then it's probably not as incendiary as it once was.

Interesting history for the FAA and NASA heads. Curious what the future is for NASA with the Space Force being propped up now, and the private sector pushing for launch proponency at the same time.

Submitted my article with revisions, and they want me to get rid of all ibids per Chicago 17th Ed. So now I have to figure out how to shorten a bunch of repeat archival citations--ugh. But it will be out in Winter edition. Foxtrot5151 (talk) 05:05, 16 November 2022 (UTC)

Wow, over 400 pages of files at LBJ (about $100 to digitize, they estimated). I'll have to ponder this, as I think I'll have to chart the entire history of the policy to do it justice (which may be tough with the Nixon and Reagan records). But it's clear nobody has focused just on this issue--only lip service in passing through generalized literature. 131.252.59.90 (talk) 19:34, 16 November 2022 (UTC)

Glad to hear your article is moving through the process so quickly. Don't know what else to say about Scobee, other than to note that he was unusually old when selected for astronaut, due to his prior enlisted service, which maybe drove his retirement decision. Sorry to hear the Nixon papers are so inaccessible, since it sounds like there was some good stuff in there before they moved to Yorba Linda:

I am at the very front end of my research, and have found documents that would be very fun to post here (such as Presidential promotion approvals of various Apollo and Skylab astronauts), but alas are not germane to my required research....I spent all day yesterday at the National Archives in College Park, and inhaled the entire Nixon White Central Files dealing with Outer Space - 13 boxes....Suffice to say it was enlightening to see the promotion papers of various Apollo astronauts, some of them denied, and there are several documents in the file dealing with the personal aspects of some, you know, that some are more personable than others, many liked to play the stock market, or were "boisterous".

I thought the astronaut promotion policy was defunct, but it's still listed in the current Marine Corps officer promotion manual (MCO P1400.31C W/CH 1):

8002. PRESIDENTIAL PROMOTION POLICY FOR ASTRONAUTS

1. Historically, Presidential policy provides that astronauts may receive a one grade promotion up to the rank of colonel as a direct result of lunar or interplanetary space flight.

2. The President reserves the prerogative to promote those who demonstrate the exceptional qualities of skill, ability, and knowledge while participating in any space flight. Also, astronauts participating on flights that are unusual, unique, dangerous or significantly more difficult will be considered for promotion on a case-by-case basis.

It occurs to me that astronaut promotions make a lot more sense in the context of previous military explorers and pioneers. Specifically, the polar explorers and Charles Lindbergh. (I thought maybe some early western explorers might also fall into this category, like Lewis and Clark, Pike, or Fremont, but apparently none of them received a military promotion for a successful expedition. Then I looked at maritime explorers, but the closest I found was Captain Cook.)

• In 1884, the seven survivors of the Lady Franklin Bay Expedition were to be promoted one rank, although its commander, Lieutenant Adolphus W. Greely, declined to be promoted early to captain (but later became a major general), and only first sergeant David L. Brainard seems to have received a promotion for the expedition, being commissioned a second lieutenant and eventually rising to brigadier general. In 1935, Congress awarded Greely a Medal of Honor for lifetime achievement.
• In 1911, polar explorer Robert Peary received the Thanks of Congress and a promotion by special legislation from captain to rear admiral on the retired list, for his expedition to the North Pole.
• In 1926, after their flight to the North Pole, special legislation awarded Richard E. Byrd and Floyd Bennett promotions to commander on the retired list and machinist, respectively, along with the Medal of Honor. After his first Antarctic expedition in 1929, Byrd received a second promotion by special legislation, to rear admiral on the retired list.
• In 1927, after his transatlantic flight, Charles Lindbergh was promoted by the governor of Missouri from captain to colonel in the Missouri National Guard (whose uniform the Army Air Corps planned to deliver by dropping it from a blimp onto the cruiser bringing him home from France), and by President Coolidge from captain to colonel in the Air Corps Reserve. Special legislation awarded Lindbergh the Medal of Honor later that year, a precedent cited by Marshall to justify awarding MacArthur the Medal of Honor for escaping the Philippines in 1942.
• In 1954, polar explorer Donald B. MacMillan was promoted by special legislation from commander to rear admiral on the retired list, shortly before the 80-year-old embarked on another Arctic trip.
• In 1965, astronauts McDivitt and White received the first Appointments Clause promotions for a successful spaceflight.
• In 1987, undersea explorer Robert Ballard received an Appointments Clause promotion to commander.

So if an active-duty Marine ever becomes the first astronaut to land on Mars, a promotion for that milestone would be in the grand tradition of honoring American military pioneers. Also, given the non-combat Medals of Honor for polar explorers Byrd and Bennett (1926), aviator Lindbergh (1927), and Arctic explorer Greely (1935) -- as well as MacArthur (1942) and Mitchell (1946) -- the Medal of Honor proposal you found for Shepard (1961) might not have been as unreasonable as it now seems.

- Morinao (talk) 09:58, 17 November 2022 (UTC)

Ha, so that final point on Mitchell has been known by the USAF history office to be mistaken for some time: Roger Miller, Billy Mitchell: “Stormy Petrel of the Air” (Washington, D.C.: Office of Air Force History, 2004), 55. I put that in the article, in fact, because the same USAF website that says Mitchell was promoted to MG also erroneously says he's a MoH recipient: https://www.af.mil/Medal-of-Honor/Mitchell/#:~:text=MITCHELL%2C%20William&text=In%20recognition%20of%20his%20outstanding,a%20colonel%2C%20United%20States%20Army.

What happened is the bill's sponsor either didn't know the difference between the Congressional Gold Medal and the MoH, or didn't care--the exact same problem that came up later with Alan Shepard's MoH vs Gold Medal, in fact. The House Committee on Military Affairs, however, caught the mistake in Mitchell's bill and removed the "medal of honor," changing it to "gold medal," and even issuing a report to the effect that “the legislation under consideration does not authorize an award of the Congressional Medal of Honor.” See Committee on Military Affairs, Authorizing the Award of a Medal to William Mitchell, H.R. Rept. No. 2625 at 2 (1946)--it's included in the serial set. Apparently the Committee neglected to amend the title of the bill, however, so it remained An Act Authorizing the President of the United States to Award Posthumously in the Name of Congress a Medal of Honor to William Mitchell, Priv. L. 79-884, 60 Stat. 1319 (1946). Titling errors don't control legislation when the substantive part is clear, and there's caselaw on this from SCOTUS. The House lists it as a Gold Medal here: https://history.house.gov/Institution/Gold-Medal/Gold-Medal-Recipients/. In any event, the USAF knew very well that this was a gold medal, because they actually formed a committee of officers to help design it, and currently retain the bronze version that was issued, which is currently at the National USAF Museum: https://www.nationalmuseum.af.mil/Visit/Museum-Exhibits/Fact-Sheets/Display/Article/198456/gen-billy-mitchells-congressional-gold-medal/. OMSA also did a feature on it: http://www.omsa.org/files/jomsa_arch/Splits/1966/57164_JOMSA_Vol17_3_01.pdf.

I've traced the mistaken promotion claim in Mitchell's records to errors by the USAF Records Center, who made the original promotion mistake based on apparently not knowing the difference between legislation that's merely introduced vs passed Congress vs acted on (the promotion bill had only passed one chamber when the mistaken career summary cited his promotion to MG in the 1950s). The MoH error appears to surface from a historical study published by the Historical Division of Air University in 1953: US Air Force Historical Study No. 91, Biographical Data on Air Force General Officers, 1917-1952: see p.125 of https://www.afhra.af.mil/Portals/16/documents/Studies/51-100/AFD-090601-135.pdf. From there it infected the AFHSO, and even was picked up by the Army's Center of Military History listing of MoH recipients (now defunct), as well as the master listing of MoH recipients compiled by the US Senate in the late 1970s (which also contained several other mistakes). There was no stopping it then, and the USAF has maintained that Mitchell is a MoH recipient ever since, even after this was retracted by the AFHO.

Unrelated, except for a crossover with MoH terminology confusion, Scobee's widow donated his Congressional Space MoH to the MoH Heritage Center earlier this year: http://www.collectspace.com/news/news-030822a-scobee-challenger-space-medal-honor.html. This is very obviously due to confusion by both the family and museum that Scobee received an actual MoH. In fact, the Congressional Space MoH isn't strictly a military award, and is only a meritorious achievement medal that happens to parrot the name MoH. Completely understandable that the family would confuse this, but a MoH Museum? I mean, that's bonkers, and if they put that one in an exhibit it will only confuse the public to no end. The Committee on Armed Services just amended the USAF MoH eligibility statute in title 10 the other year to make Space Force guardians eligible for the MoH, but no astronaut has ever received the MoH to my knowledge.

Thanks for the posting about the Nixon records. I'll see if I can reach out to that grad student (hopefully post doc now). Foxtrot5151 (talk) 17:41, 17 November 2022 (UTC)

In re: Marshall citing the Lindbergh precedent, you're absolutely right that he cited it that way, but he obviously misunderstood the precedent, because he was citing Lindbergh to justify awarding the MoH to MacArthur without special legislation (it had already been introduced, but he was looking for a way to do it without a bill of relief because he thought it would dilute the public's perception of the award). Evidently he didn't realize that Lindbergh's medal flowed from a bill of relief itself, which of course doesn't establish an administrative precedent for ignoring the statutory provisions on awarding the MoH for combat, risk of life, non-duty driven action, etc. I pulled the entire grouping from the archives, and later correspondence with FDR from the FDR library. Marshall admitted that MacArthur didn't meet regulations at the time, and later justified the award as being necessary to counter propaganda about MacArthur fleeing the Philippines. In 1945, the War Dept. listed the medal as "questionable" under regulations, apparently due to a review that FDR directed to see if they were awarding the medal too leniently. Foxtrot5151 (talk) 18:01, 17 November 2022 (UTC)

Just wrote to the author of that Air University Review article. I'm curious about the claim that Mitchell appears as a MoH recipient at both the Pentagon's hall of heroes as well as the USAFA. I imagine the Pentagon removed him, since he's not on the DoD database for MoH recipients, but completely believe he is probably still up at USAFA. I think the dining hall is named after him (which itself is a little weird--what does that translate to?). Foxtrot5151 (talk) 17:38, 18 November 2022 (UTC)

Connected with the command historian at USAFA. There is a monument to Mitchell with a plaque stating he's a MoH recipient: https://www.flickr.com/photos/wallyg/6227194474 Apparently installed in 1989, so it couldn't be what the article referenced. I tried in vain to locate a listing of the people on the Hall of Heroes wall, but none appears online. I imagine it's now standardized to match the DoD's valor website (which doesn't include Mitchell). The article made it clear he was there, so that means they probably removed his name in the last decade or so (the database was stood up at the suggestion of one of the justices in the Alvarez ruling that struck down the Stolen Valor Act--which was in 2011 I think). I wrote to the Pentagon information office and asked them to check the Hall of Heroes listing, and also whether they had modified it to remove Mitchell's name. Curious if they will own up to that, but it's a safe bet that happened recently. Foxtrot5151 (talk) 17:25, 19 November 2022 (UTC)

Fascinating history on Mitchell's gold medal, thanks for the references. (Apparently the Senate Veterans Affairs Committee was still confused about Mitchell's medal as late as 1979.)

Although, looking at the reports (SR 79-202 (April 24, 1945), HR 79-2625 (July 22, 1946)) and hearing (May 31, 1945) on Mitchell's medal, I don't know that I would say the House committee was merely correcting a technical error in the original bill. Rather, they made a policy decision that Mitchell should receive a Congressional Gold Medal instead of the Medal of Honor, following the War Department's strong preference to lock in the 1918 policy reserving the Medal of Honor for actual combat, an argument it deployed again to try to insert the Gold Medal language ("special Congressional Medal") into the 1947 Medal of Honor proposals for MacArthur (again), Eisenhower, and Patton. But an actual Medal of Honor was very much on the table up to that point, based on either Mitchell's WWI combat record or the explorer/pioneer track laid down by Byrd and Lindbergh, who both received non-combat Medals of Honor by special legislation and later also got Congressional Gold Medals.

And as the first American in space, Shepard (or maybe Glenn) could easily have been legislated a dual Medal of Honor and Congressional Gold Medal at the whim of Congress, just like Lindbergh. In fact, the Congressional Space Medal of Honor was created specifically to divert this impulse into a more appropriate channel:

Mr. TEAGUE: Up until now space exploration, although hazardous, has not been considered an appropriate basis for that award because, for one reason, the Congressional Medal of Honor requires the act of the recipient to have been performed in combat. Now it is true that in some few instances the Congress, by special act, have awarded the Congressional Medal of Honor to a person for acts of heroism performed not in combat. The most famous example is the act of Congress which awarded the Congressional Medal of Honor to Col. Charles A. Lindbergh....I think it particularly appropriate that the medal be called the Congressional Space Medal of Honor to place it on the same level as the Congressional Medal of Honor....

So I think it's a losing battle to complain that the public conflates the Congressional Space Medal of Honor with the military medal -- that was basically the intention. Beyond the deliberate name change from "Congressional Space Medal", the Army Institute of Heraldry designed the medal to look just like the Army version, and the only real difference is the ribbon. Also the diamond in the middle, which made it the most expensive medal to manufacture in 1972: $833.33 for a Congressional Space Medal of Honor (12 medals cost $10,000), as opposed to $32.50 for an Army Medal of Honor, $12.75 for a Legion of Merit, and 45 cents for a Bronze Star.

Interesting to catch up on more recent Medal of Honor activity. I had no idea that Teddy Roosevelt finally got a posthumous Medal for San Juan Hill in 2001.

- Morinao (talk) 18:31, 21 November 2022 (UTC)

You may be right that they were just going a different direction--it's not always clear. MoCs are often confused about the difference between those medals, and the informal "congressional" that people often put in front of the MoH doesn't help with that. There was an extended debate about what to award FDR around that same time, and the MoC wanted it to be a MoH, and then listed all these people who he thought received the MoH, and they were substantially Gold Medal recipients. It seems like malpractice to me to introduce a bill and debate it on the floor without checking on something like that, but obviously the average educational pedigree for MoCs has declined precipitously in recent years!

I made a last-minute correction to the article just prior to the proofs. Realized belatedly that the 1930 tombstone promotion law actually does allow Mitchell to "bear the official title" of his highest wartime rank despite not being advanced at all for lack of any retirement (I had not thoroughly read the second section of the bill, and am glad I went back to it!). So he could be called a brig. gen. without being advanced, which is certainly an anomalous outcome (to my knowledge, he'd be the only ex-WWI flag officer in this position, since the bill advanced all retired officers and even those officers who died and were not formally retired). Obviously that second part of the bill was targeting temporary officers who weren't careerists and didn't stay in after the war. It leaves Mitchell in the strange position of being able to call himself a general without being one on paper any longer. I am just leaving my own reference to him alone (I explain that he can be called a brig. gen., but I'm calling him a colonel since that was his grade when he resigned).

Yes, it's a good thing that Congress didn't formally give the Congressional Space Medal of Honor parity with the real MoH (which they could have easily done, but they would've had to materially water down all the criteria to make any astronauts eligible). Formally adding Congressional to that award is interesting, because there was a debate about this in the early 1970s with the MoH also. The Congressional Medal of Honor Society has always felt at odds with the medal because it was named prior to most people dropping "Congressional" from the medal, so they tried to formally rename the medal itself to match the society's name in 1972-- see House Rept. 92-1393, Designating the Medal of Honor Awarded for Military Heroism as the "Congressional Medal of Honor," Sept. 12, 1972, 92d Cong., 2d Sess. That didn't pass obviously, which is probably the best evidence that Congressional shouldn't be in front of the name. Now they claim the "Congressional" means that Congress chartered them, but of course that's not the real reason.

In re: the Congressional Space MoH cost, that makes me wonder if they fall under the Stolen Valor Act's prohibition on selling a MoH?! I mean, that's no small sum.

I noticed when looking at the awards of the Congressional Space MoH that the Challenger crew didn't get them until after the Columbia crew in 2004, and the timing suggests that they did it because it would've been inequitable to do otherwise. I wonder if there was a story behind the failure to award it previously? It had already been awarded posthumously to Grissom in 1978 (but not to his fellow deceased astronauts White and Chaffee until 1997, which frankly is really odd).

I've read that Byrd and Bennett didn't actually get to the N. Pole, based on Bennett donating his notations and someone discovering that he'd erased and corrected coordinates that would have put them well short of the goal. Since the authorization was for reaching the pole, that would theoretically allow invalidation of the award on the grounds of fraud (were someone to ever reopen it, which will never happen).

In re: Teddy, yes, that was a bizarre outcome and I think stands for what shouldn't happen. Teddy's own lobbying for the medal was disgraceful--an archivist wrote a decent article about it in Prologue. If the Army and Congress had followed 10 USC 1130, which had recently been enacted at that time, it should have settled the matter in the negative, because SecArmy had already declined to award him the medal based on a senior Army decorations board ruling in the 1990s. Then after political pressure, Louis Caldera reversed the board ruling, and of course Clinton awarded it because he was a huge Teddy fan. It's a really regrettable outcome and I think sets a terrible precedent. I actually wrote to Caldera about it (since I wrote about it), and we emailed back and forth a few times, but he claimed to not remember anything. I rather doubt that's true, but I gave him the benefit of the doubt. Foxtrot5151 (talk) 20:48, 21 November 2022 (UTC)

I bet every modern President is a fan of TR, who sounds like every chief executive's wish fulfillment fantasy. Hard to believe that guy's not fictional. But yes, that kind of award is like posthumously promoting Washington to General of the Armies in 1976 -- it just makes everyone look ridiculous.

Regarding former WWI generals, just as Mitchell received a recess appointment as Assistant to the Chief of the Air Service with rank of brigadier general in July 1920, after the armistice but before the official end of the war in July 1921, Alexander Elliot Williams (USMA 1898) received a recess appointment as Assistant to the Quartermaster General with rank of brigadier general in November 1920. A decade after Mitchell's court-martial, Williams was court-martialed, convicted, and cashiered for accepting kickbacks and bribes after the war. Presumably his wartime service still qualified him to keep calling himself a general, the same as Mitchell. (I ran across this guy while trying to compile a list of courts-martial of general and flag officers, serving, former, and future.)

The Congressional Space Medal of Honor wasn't really meant to honor deaths on space missions until McDivitt and White in 1997. Presumably that set the precedent for the Columbia and, belatedly, Challenger astronauts in 2004. Reviewing the list of awardees, usually only the commander of a mission received the medal. So it went to Armstrong but not Aldrin and Collins, and to Grissom but not McDivitt and White.

Wondering when and why the word "Congressional" got attached and then detached from the Medal of Honor. It was already being called the Congressional Medal of Honor by the end of the nineteenth century, and was the official Army term by 1919. The 1918 law that restricted it to actual combat authorized the President "to present, in the name of the Congress, a medal of honor" and also "to present, but not in the name of Congress, a distinguished-service cross [and distinguished-service medal]". So it's not like the usage came out of nowhere. And attaching the word "Presidential" to the WWII-era Medal of Freedom in 1963 was clearly meant to balance the word "Congressional" on the Medal of Honor. (Incidentally, the Institute of Heraldry floated some truly terrible candidate names for the Medal of Freedom: Presidential Award of Honor, Presidential Emblem of Oak, Presidential Laurel, Presidential Constellation Award, Presidential Society of Distinction, Presidential Accolade, Presidential Award for Achievement, Presidential Emblem of Distinction, Presidential Liberty Award, Presidential Society of Merit, Presidential Commendation Award, Presidential Laurel of Acclaim.)

I'm actually quite surprised the word wasn't officially attached in 1972, given how astonished the Congressmen were that it wasn't already part of the name, and how skeptical they were of the DoD argument against.

- Morinao (talk) 03:49, 22 November 2022 (UTC)

In re: TR, yes I agree, he certainly stands for the polar end of the spectrum of executive authority. I taught a foreign relations course based on a primary source reader, and I remember well the quotations of TR when he ushered in the compromise between the Russians and the Japanese that earned him the Nobel Prize--he said he wanted to knock their heads together like coconuts! Around that time I had the occasion to visit the Museum of Natural History in NY (about a decade ago), and was shocked at how openly the depictions of TR portrayed him as a father figure ushering the Native Americans into civilization (apparently some of that is being removed now: https://www.nytimes.com/2020/06/21/arts/design/roosevelt-statue-to-be-removed-from-museum-of-natural-history.html). Evidently he shot virtually every big game animal in that museum, as well as a fair number of the animals in the Smithsonian holdings.

In re: Williams, thanks, I'd wondered if there was anyone else. So there were at least two GOs in that situation--I almost speculated that Mitchell was the sole person who fit that description, but ultimately refrained from doing so because I had no idea if anyone else of that rank was court martialed during or after the war (I've never heard of any serious misconduct from GOs during the war's active phase, but I'm no expert, and of course the US role in that war wasn't all that long).

In re: use of Congressional for the MoH, it had mostly ceased from the Army's official releases by the 1948 publication of the Army's treatise: The Medal of Honor of the United States Army (where that wasn't used at all). Interestingly, however, they still used the term "won" rather than "earned" at that time, which is definitely taboo now. I'm seeing Congressional included in the Army's lists going up to the eve of WWII, although it's notable that many of those pubs were probably just reprints of earlier versions that had been updated: https://www.google.com/books/edition/American_Decorations/R8m4AAAAIAAJ. I have much of the War Dept's internal precedent files going back to the turn of the twentieth century, and the policy proponents generally only referred to it as "MoH" for most of that time. The Army regulations made the shift right around then also. 1901 Army Regs use both MoH and CMoH, but by 1904 the regs had completely been sanitized of all "congressional" references. I just checked the earliest regs that were broken into decoration specific areas after WWI (1922 version of AR 600-45 was the first, I think), and they consistently use only MoH as well. So it appears to have come from the Army, and specifically the part of the AGO handling the decorations. That tracks with the Army's push to professionalize the medal, because they were getting requests to revoke the 865 MoHs awarded to the 27th Maine Regt. by that time (ultimately revoked under authority of a 1916 act of Congress), which was blocked by the TJAG in 1904 on the grounds that the Army couldn't unilaterally rescind a medal under that day's version of the doctrine of administrative finality (or administrative res judicata). The Army had convened a board in 1902 to come up with definitive precedents for the medal (see GOs No. 125, Dec. 11, 1902, published in the 1902 version of General Orders and Circulars, AGO--members were HC Corbin, SBM Young, Wallace Randolph, John Tweedale, and HA Greene). The board selected earlier precedents that became the above and beyond the call of duty requirement, as well as prohibiting MoH for a leadership action--notably they only called the Medal the MoH also. Those requirements all appeared in the 1904 regulations, and basically became the basis for what Congress codified in 1918, so that's possibly the defining moment which simply took a few decades to standardize in all official pubs. Foxtrot5151 (talk) 18:34, 22 November 2022 (UTC)

Also, in re: names for the Presidential MoF, that's reminiscent of the Congress tying themselves in knots over what to call the president himself without using terms of royalty: https://www.mountvernon.org/george-washington/facts/washington-stories/a-president-by-any-other-name/. I vaguely recall this being covered in the John Adams miniseries. Foxtrot5151 (talk) 18:43, 22 November 2022 (UTC)

Here's the TR quotation I remembered (minus the coconuts): https://www.google.com/books/edition/From_Colony_to_Superpower/fODT-qOVoiIC?hl=en&gbpv=1&dq=%27%27is+to+give+utterance+to+whoops+of+rage+and+jump+up+and+knock+their+heads+together.%22&pg=PA361&printsec=frontcover Foxtrot5151 (talk) 22:33, 22 November 2022 (UTC)

Did more digging on the Scobee rank issue. Noted that the Onizuka promotion bill was introduced by none other than Rep. Bill Nelson (now the NASA administrator). He said on the floor that he was introducing the bill on behalf of the Armed Services Committee, so evidently this was all coordinated as I assumed. I don't imagine Nelson has any memory of why they did what for given astronauts, but I'm sure that the administration and committee decided on the bill of relief because of the single promotion policy for flights (which would explain the Smith / Onizuka difference in method). Wrote to the Reagan Library and asked if they had any materials on the memorialization of the crew--I found a box on correspondence for honoring the crew, as well as another box under the Counsel to the President files (both are open). 131.252.60.141 (talk) 21:05, 23 November 2022 (UTC)

Also located the LBJ speech that started this whole promotion policy: https://www.presidency.ucsb.edu/documents/remarks-houston-the-nasa-manned-spacecraft-center 131.252.63.200 (talk) 17:53, 28 November 2022 (UTC)

Have also been digging into the Congressional Space MoH. So very notably, the military doesn't seem to recognize it at all in any formal sense, as I found no reference to it in the military awards manuals. They must just informally allow military astronauts to wear it (if the Wikipedia article is accurate), although I wasn't able to find any authority for that claim. Since it's a pendant worn like the MoH, it would clearly be confusing if someone were to wear it in uniform--my read of the regulations is that the absence of authorization is not dispositive. Found the Army reg, DA Pam 670-1, which has a complete list of authorized awards, including one from NASA, but not this one (see p.260 for nonmilitary decorations authorized): https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30948-PAM_670-1-000-WEB-1.pdf. It says the list of nonmilitary decorations is not all-inclusive, and allows other medals to be worn also so long as they were awarded by at least a federal agency. Anyway, clearly the Army doesn't care at all about this, probably because they have no recipients of that medal? Also checked the Air Force AFI for awards and decorations, and it doesn't address non-military awards at all. The DoD regulation merely says it's up to the service secretary whether it's permitted, and that you wear it behind than everything military.

The medal's statute and policy also makes no claim as to precedence, and so it doesn't appear to have any official relationship to other awards, military or otherwise. Also weird is that the Federal Register publication for the medal's policy dates to Apr. 1978, which is well after it was authorized by law in Sep. 1969: https://archives.federalregister.gov/issue_slice/1978/4/14/15622-15625.pdf. The first awards also date to later that year (October 1978). Seems like they just sat on the authorization until an administration had the inclination to award it, at which point they had to come up with something? The policy adds almost nothing to the authorizing law, and doesn't say anything about heroism whatsoever--leaving me to conclude it's just a meritorious achievement medal with no teeth at all (meaning it can be awarded for virtually any reason whatsoever). 131.252.183.149 (talk) 19:56, 28 November 2022 (UTC)

Ah, I just found an interesting regulation from DoDI 1343.33, Section 3, para 3.1 (a)(2): https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/134833p.pdf. It says SMs "must be recognized for acts of valor with a military decoration for valor. Service members are not authorized to wear non-military decorations or awards specifically intended to recognize valorous actions on their military uniform." Also a prohibition on wearing non-military service or campaign medals. So if the CSMoH were for valor, it would actually be prohibited for wear. But of course it isn't for valor. DoD lists NASA awards as authorized for possible wear so long as not for valor or service, per Section 11 (e). 131.252.240.95 (talk) 20:24, 28 November 2022 (UTC)

Apparently the bill to officially name it "Congressional Medal of Honor" actually did pass the House in 1972 (H.R. 11035), but died in committee when reintroduced in the House the following year, and in both the House and Senate in 1975. And then the name snuck into statute anyway in 1994--in Title 18, not Title 10--when Congress enhanced the penalty for buying or selling a Congressional Medal of Honor, where "As used in this subsection, 'Congressional Medal of Honor' means a medal awarded under section 3741 of title 10." (108 Stat. 2113).

Another random observation: the law authorizing a Congressional Silver Medal for Chuck Yeager calls it "equivalent to a noncombat Medal of Honor". Also, I skimmed through Mears (2018), who turns out to have already written up quite nicely a lot of the legislative history we just covered (bills of relief, Lindbergh, MacArthur, Mitchell, etc.).

Now I'm curious when "won" became taboo when discussing combat awards. It seems to have been acceptable style during and after World War II. In 1965 the president of the Medal of Honor Society could still say, "Wearing the Medal of Honor can be harder than winning it." But by 1972 he was insisting, "We don't win the Medal of Honor. We are not in the Olympics." It seems like the tipping point was somewhere around the Vietnam War.

Interesting that non-military valor awards are prohibited for wear. Looking for examples, the Marine embassy guards taken hostage in Tehran received the State Department Award for Valor three months after being freed, but all the photos of them in uniform I found were taken before that award ceremony. And Air Force BG Dennis Sullivan received an Intelligence Star--CIA equivalent of a Silver Star--and indeed seems not to have worn that ribbon. Marine Corps uniform regulations do list the Congressional Space Medal of Honor for wear (as did the 2002 revision of the Navy and Marine Corps award manual) -- but not valor awards like the Intelligence Star or Distinguished Intelligence Cross.

It seems like the blanket prohibition on non-military valor awards is recent -- it is in the current revision of the Navy and Marine Corps award manual, but not the 2002 revision. The current rules would not have let those Marines accept the Award for Valor from the State Department.

- Morinao (talk) 09:43, 30 November 2022 (UTC)

Interesting, didn't realize that the renaming bill had passed the House, although I probably checked the statutes at large to make sure it didn't become law (though this could already be inferred because the terminology didn't change). I have learned not to trust those bill histories on ProQuest, which I've found don't always align with the actual legislative history (probably because they rely on someone to build them manually?). Interesting that the Tile 18 statute defines CMoH as "a medal of honor," which is kind of circular on that point because it seemingly admits that the very statutes it references don't use the CMoH terminology.

Yes, I wouldn't be surprised if the "won" terminology ended around that time, although leadership of the society was probably WWII or Korean War vets around that period. I just did a workup for SASC on the interesting evolution of recognition for POWs (whether valor awards or just service medals), which had a problematic path that changed by Vietnam. There's a provision in the House version of the NDAA this year that would change the statutory criteria, apparently based on the belief that a POW might not be eligible since POWs are noncombatants at the point of capture, and thus not legally fighting an enemy or opposing foreign force as required by statute for valor decoration eligibility. I'm not sure why this is an issue, since it obviously hasn't been a barrier for some time, but it could still be interpreted as having denied recognition in select cases, particularly before Vietnam. Originally the Army and then DoD were against recognizing POWs in any way because they did not want to incentivize surrender, and then only handed out valor decorations to ex-POWs who escaped or went to great lengths to attempt it (starting in WWI, as I recall). Vietnam was basically the turning point where DoD approved Medals of Honor for POWs for actions other than escape while a POW (resisting torture, defiance, etc.), and so it produced some of the most visible and traumatic MoH and service cross awards of that conflict (Bud Day, Jim Stockdale, Donald Cook, Lance Sijan, Rocky Versace, etc.). Not sure if that has anything to do with the "won" vs. "earned" terminology, but it squares with this shift when SMs earned the medal through extreme sacrifice of some type (it makes little sense to say won in that context, because of course it would probably be far better to not endure that kind of experience, making the medal something many members would rather not have earned).

In re: valor medal prohibition, I'm not sure when that was introduced, but I agree it may have been recent. Notably, they do a terrible job of updating some of those regs, so outdated policy provisions sometimes hang out in the manuals for decades. I asked WHS to digitize the DoD awards manual going all the way back to the early 1990s as part of auditing the POW Medal policy that ran off the rails, so I could check those versions. Notably there's a difference between the manual and the instruction (the manual has three volumes now!). As for the Iran hostages, yes, that probably wasn't policy at that time, and it's also notable that DoD didn't approve any valor awards as far as I'm aware (probably just a defense service medal for most of the hostages, with the exception of Joe Subic, who was expelled from the Army for collaborating with the Iranians). The POW Medal was not authorized for noncombat captives until a 1989 amendment, and the Iran hostages were expressly mentioned as intended beneficiaries, despite technically running afoul of the Coolidge-era executive order that prohibits more than one award for the same discrete action or period of service. Most of the captive officers and NCOs other than the marine guards somehow had not received POW Medals until after I petitioned DoD to award it to them in 2011, although two of the soldiers had already petitioned the Army BCMR to award it independently. The Navy didn't send them out until something like 2016. All of the services had approved the medals in the 2002/2003 timeframe, and then OSD got involved and bungled it by instructing the services to temporarily withhold the awards to avoid the perception of disparity between the different services--they wanted a blanket ceremony because the services were processing the awards at different times, which would have put the awards some six months apart or more. But OSD then forgot about it and no ceremony meant no notification or even approvals in the members' OMPFs, even though Army, AF, and Navy had all processed the awards through the secretarial level. A true disaster and a sad reflection on the state of the bureaucracy. I also had a formal complaint lodged against me for helping them, sent by an AF attorney to my staff judge advocate--I collaborated with one of the AF Colonels at the embassy, and wrote an entire history of the DoD policy mistakes that basically documented the policy had been unlawful for over 20 years. I was in an academic posting, so my boss made the complaint go away, fortunately.

The book on the MoH is actually mine, which you may have already guessed based on my writing style and content overlap. I signed an adhesion contract with the press that gives me only a 5% royalty, which is standard for new authors. So I'm not going to be independently wealthy based on that book, but that's no surprise, particularly with the content being competitive with sleep-aids for most people! I wrote the entire book during law school (not the best time management decision), in reaction to the mostly unscholarly works in this field. The distortion of much of the MoH's history is probably a result of the selection bias among most of the authors, virtually all of whom are military veterans without academic backgrounds. For better or worse, most MoH books are the coffee table variety.

Spoke at length with the former NASA historian, who was aware of the flight promotions at some level, but not the adverse effects or the issues with the Challenger promotions (or non-promotion, in the case of Scobee). He encouraged me to write the NASA administrator because of his own role in the Onizuka bill of relief, so I did that today. NASA has now written to Arlington asking for an official position on Scobee's rank, and they have an open case file on it, so I think it will be resolved eventually. I truly have no desire to unsettle this matter for the family, but I do think it's an issue of public trust to leave a mistake like this uncorrected, especially given the history of protocol lapses at Arlington. 131.252.63.41 (talk) 19:33, 30 November 2022 (UTC)

Convinced a former classmate of mine to walk upstairs and check the Pentagon's Hall of Heroes tomorrow, so I should know if they have the Mitchell claim. I contacted the Air University Review article author (retired colonel) who wrote about the Hall of Heroes and USAFA depictions of Mitchell, and he says it was definitely there at that time (in 1980), and had a physical depiction of the Army's MoH (used by the Air Force until the 1960s). The USAFA command historian wrote back and said he'll check the mess hall and Mitchell monument tomorrow, so I should get clarity on that also. Here's the article, When Honor Conflicts with Duty, by George M. Hall: https://www.google.com/books/edition/Air_University_Review/wKI1AAAAIAAJ 131.252.183.149 (talk) 00:11, 1 December 2022 (UTC)

The colonel I spoke to earlier also speculated that Pershing may have received an Appointments Clause promotion in 1906, when TR advanced him from Captain to Brig. Gen. via nomination (p.209): https://www.congress.gov/bound-congressional-record/1906/12/10/41/senate-section/article/184-212?q=%7B%22search%22%3A%5B%22%5C%22john+j.+pershing%5C%22%22%2C%22%5C%22john%22%2C%22j.%22%2C%22pershing%5C%22%22%5D%7D&s=3&r=2 I cannot tell if this was accomplished under the Art. II, Sec. 2, Clause 2 authority, but it seems likely. 131.252.183.149 (talk) 00:45, 1 December 2022 (UTC)

Reading this article on the TR promotions (also for other officers as well). I think they are talking about Appointments Clause advancement, although it never is referred to in precisely that way. Courage, Careers, and Comrades: Theodore Roosevelt and the United States Army Officer Corps by Matthew Oyos: https://www.jstor.org/stable/23046622#metadata_info_tab_contents 131.252.183.149 (talk) 00:53, 1 December 2022 (UTC)

The Hall of Heroes no longer has Mitchell listed (there's a separate pillar just for special legislation awards, which is where it would be), but the other colonel says he was there before--his recall was excellent, and he could even describe the Army version of the MoH, so I'm convinced it was removed after the DoD valor database went up. I'm not putting it on my list for the AF because I don't see any point. Foxtrot5151 (talk) 04:57, 2 December 2022 (UTC)

Arlington wrote me an email saying they have launched an official investigation and will correct the Scobee headstone if they determine there was an error. Received a call from a NASA historian suggesting I write a formal letter to the administrator and later publish on this in Quest (I had sent an email to the administrator earlier this week, and evidently it confused the bureaucrats who screen that account). Foxtrot5151 (talk) 00:02, 3 December 2022 (UTC)

Well, now I'm glad I shelled out for the hardcover from Amazon! Hope that's enough to buy you a cup of coffee. I do quite like the book, it is magisterial in historical scope but still quite readable for a layperson despite being an enjoyably (at least to me) rigorous reference. Its structure of a historical narrative, followed by topical deep-dive chapters, is very effective. As you say, I am not sure how large the audience is for this sort of thing, but it is really right up my alley.

I hadn't connected the change from "won" to "earned" with the Vietnam POWs, but it does make sense that it would coincide with a shift in emphasis to sacrifice from a nineteenth-century concept of glory. I also hadn't thought about military hostages qualifying for a POW Medal (great article, BTW -- I started reading it and was surprised at how comprehensive it is, then looked up the page history to see who wrote it). How odd that the Army thought it incentivized the undesirable behavior of getting captured, since the same logic would apply to the Purple Heart.

I do agree that it's unavoidably distressing to reopen the Scobee case. Although on the topic of correcting ranks on Arlington tombstones, I have been wondering for years about Joseph T. Dickman, who died in 1927 as a major general, the rank on his tombstone. I am almost positive he qualified for posthumous promotion to lieutenant general under the law that promoted James G. Harbord and William Mason Wright to that rank in 1942. That law advances one grade on the retired list any officer who received the MoH, DSM, or DSC, and was officially recommended in writing during WWI for promotion a rank he did not attain (54 Stat. 382, 56 Stat. 655), and says that "any such officer...who died or may die prior to the approval of this Act...shall upon application in his behalf be advanced one grade as of date of death." Dickman received the DSM and was reported by the Army to have "exercised the command of a lieutenant general in commanding the 3d Army in the occupation of Germany." Similarly, James W. McAndrew, Harbord's successor as Pershing's chief of staff, also died and was buried at Arlington as a major general in 1922, and also received the DSM and was recommended by Pershing for promotion to lieutenant general along with Harbord and Dickman in 1919. I am not sure who would have standing to apply on their behalf at this late date, but if Harbord and Wright qualified, then so should McAndrew and Dickman.

Most general officer promotions before 1916 were Appointments Clause promotions, at least in the line. Pershing's jump from captain to brigadier general stands out because it violated norms of selection by seniority, not any actual law. In fact, TR could only promote Pershing out of order by jumping him directly to general officer, since the law required promotions below the grade of brigadier general to be by seniority (26 Stat. 562). But a brigadier general could be promoted from any grade (or civil life), until Congress required brigadier generals of the line to be selected from colonels of the line in 1916 (39 Stat. 167), or sufficiently tenured lieutenant colonels in 1940 (54 Stat. 381), a requirement that had to be waived via special legislation for Doolittle, McLain, Vandenberg, LeMay, and Norstad in 1945.

- Morinao (talk) 11:29, 2 December 2022 (UTC)

Thanks, probably depends on whether it's a Starbucks or generic coffee! If I hit the 1,000 sold mark, then I get a 10% royalty (maybe a burger then?). The press almost went insolvent last year, and fortunately it was bailed out (I think they operate from the university's funding, which I imagine is subsidized by state funding). There's an awkward phase early on with publication where the big purchasers (like Barnes & Noble) order a bunch of them, but they have agreements with the publishers to return any unsold copies. So you initially get a nice check up front along with a healthy balance sold, and then a huge minus on the tally at whatever point they ship the unsold copies back (about a year or so later in my case). Some publishers actually seek to recoup money from the author in cases like that, particularly if they issue an advance. I think that's more common with the regular presses, not the academic variety, who probably don't normally issue advances as a matter of policy.

In re: tombstones, I noted in checking that Onizuka's was never updated from Lt Col to Col, at least per all of the photos I've seen. He was interred at the National Cemetery of the Pacific in June 1986, and the bill authorizing promotion to Col didn't pass until November, and in fact wasn't introduced by Nelson until October. I don't know if that merits a no-cost upgrade, since of course it was the correct rank at the time. I may mention that in my letter to Nelson--I haven't had a chance to draft it yet. Also unable to verify if the promotion was actually carried out, and unsure how to do that in the absence of having the OMPF access (but I imagine this one was--why would anyone object to it?). I also posted an update to my thread above, since I received an email yesterday from Arlington's quality assurance department saying that they must update an erroneous headstone if it's discovered to be incorrect.

In re: Dickman, considering the confusion swirling around many of these promotions, I'm sure it was just an oversight, and probably it would take a NoK to petition for any sort of change in a case like that one. Didn't know that the earlier promotions were mostly Appointments Clause. The article said Leonard Wood also received one. I did a deep dive into his MoH in a Journal of Military History article last year--what's interesting is that the War Department concluded later that he was ineligible for the medal by virtue of being only an acting assistant surgeon (meaning, a contracted civilian). He also saw no combat, which by then was a requirement for the MoH. But his sponsor, LTG Miles, just rammed it through anyway, and then ensured that his medal wasn't revoked in the purge of 1917 (despite revoking Mary Walker's for an identical defect, which is rather ironic). I talked about some of this in the book, but went into greater detail on the contract surgeons in the article. Foxtrot5151 (talk) 21:35, 4 December 2022 (UTC)

In re: the military having a warped sense of what the PH / POW Medal might incentivize, I've reflected on that a while. There is evidently scholarship on how the Code of Conduct itself was based on the military's misperception that they had a crisis on their hands, and that servicemembers were being brainwashed or turned by the enemy (in N. Korea) in far greater numbers than in actuality. The PH is has also been ideologically contested in recent decades. There was already authority via a 1984 Reagan executive order to award it for wounds stemming from internationally motivated terrorism, but somehow the Army still denied the awards for the Ft. Hood and Little Rock recruiting center shootings. Apparently because GEN Casey was concerned that it would be problematic to award the PH for the actions of another military member (Maj Hasan), which Casey considered "workplace violence," even if Hasan was clearly motivated by terrorist ideology. I read the IG report on Hasan, and it was shocking and very sad--his superiors should have failed him in his residency, and he'd even been reported as a potential terrorist, but somehow his bosses just passed him through because nobody wanted the paperwork hassle of failing him. He'd even presented a terrorist-apology lecture as his grand rounds presentation to other residents. Just bizarre. Anyway, because the Army denied the medals, it effectively cut all of the disability of the survivors in half. When Congress came up with Combat Related Special Compensation as an alternative for the old concurrent receipt bar (which prevented retired members from collecting both disability and military retired pay), the PH was one of the exceptions that qualified someone for CRSC outside of combat injuries. So for lack of the PH, it basically screwed all of those Army vets. The PH denial was almost indefensible for that reason, but the Army still fought that losing battle until they were overruled by Congress, which is why there's now a statutory provision on the PH. I didn't get into the weeds on that medal in my book, because it isn't a valor decoration at all, but I did discuss how MacArthur chose to "revive" it as a way of claiming they didn't need a statute to authorize it in 1932. They did something very similar when turning the Silver Star into a full medal, by keeping the device that Congress had authorized in 1918 in the middle of the decoration. 131.252.58.30 (talk) 18:58, 5 December 2022 (UTC)

Well, here it is. Not the complete story, but it's a start. Thanks again for your input on this. https://www.airuniversity.af.edu/Portals/10/ASOR/Journals/Volume-1_Number-4/Mears.pdf Foxtrot5151 (talk) 03:36, 10 December 2022 (UTC)

Much appreciated! Loved reading it and hope you get a chance to create a more lengthy piece on the subject in the future! SuperWIKI (talk) 09:24, 11 December 2022 (UTC)

Oh, and almost forgot to mention that the posthumous promotion of Grant to General of the Armies was included in the NDAA compromise last week. They crafted the language in such a way to simply make him equal to Pershing (which keeps Washington above both, since Washington already is above Pershing by legislation). The POW provision that sought to amend the MoH eligibility criteria was dropped, as was the provision to revoke Wounded Knee Medals of Honor. Foxtrot5151 (talk) 04:32, 12 December 2022 (UTC)

This is a really solid article, congratulations! It seems like you just started this project in September, did you really go from idea to proofs in only three months? Starting to see how you managed to crank out an entire book while in law school. Interesting anecdote about Reagan's speechwriters initially giving Skelton partial credit. But given how abruptly and unexpectedly they switched from legislative to executive authority midstream, I guess it's understandable that so many people were confused when describing the Doolittle/Eaker (and Hopper) promotion after the fact.

For Dickman and McAndrew, yes, I imagine it would be hard to go through the normal ABCMR process, since a century later they have no surviving spouse or legal representative and any children are likely long dead. It's easy to see how any next-of-kin missed the passage of the law at the time, since all it does is remove a grade limit on a previous law. It seems like a fluke that Wright even found out he was eligible -- he wasn't on the original list of seven generals compiled by the War Department. I can't imagine trying to keep up with this sort of thing before the Internet.

I guess I would be surprised but not shocked if Onizuka's promotion was never formally executed, despite being authorized. This was only a decade after Washington's 1976 promotion law which the Army didn't get around to executing until a four-star general started asking questions two years later. I'd be less surprised if Onizuka was promoted but the cemetery didn't follow up. Lesley McNair was posthumously promoted to general in 1954, but ABMC didn't update his gravestone until 2010.

I'm kind of amazed that the Grant promotion seems to be sailing through so uncontroversially. Even 15 years ago I feel like Congress might still have had enough Lost Cause remnants to stifle it, but I guess this is nothing compared to renaming Army bases. Still, what an odd way to do it -- same rank and precedence as Pershing (1919), rather than Washington (1976) with a later date of rank, which was the original proposal. Does this reinforce the interpretation (which confuses everybody) of there being separate 1919 and 1976 grades with the same name, the 1976 grade outranking the 1919 grade? Surely this isn't meant to be the 1976 grade with a 1919 date of rank, because on its face that would give Pershing and Grant precedence over Washington's 1976 date of rank.

- Morinao (talk) 05:13, 12 December 2022 (UTC)

Thanks. Yes, the timeline was crazy. I've only published in history and law journals, and those normally take at least six months for the peer review and revisions (or in the case of history journals, more like 1 to 1.5 years!). So I submitted this one thinking I had at least several months to revise, and then the peer review came back in about two weeks, with a deadline of the following week for the Winter edition. Since it's not a law journal, I didn't receive legal feedback--both reviewers liked it, probably several AF colonels with PhDs (I imagine), but their only feedback was to be more critical of the AF and give some more biographical context for the case studies. So I farmed it out to several of the JAGs and a couple of civilians. I did belatedly get some interesting feedback from a civilian professor who has published on the Appointments Clause (but not this precise issue). He noted that you could argue that in cases of honorary or posthumous Appointments Clause promotions, that a real office isn't actually created, and thus you could rationalize getting around the statutes in that way. But of course, now that posthumous and honorary promotion are clearly codified, it's still a weak argument because Congress has spoken on those precise issues.

In re: Reagan's speechwriters, that file is amazing. Hundreds of pages of source material, something to back up every factual claim in the speech, and several different drafts checking every single word. It reminded me of source checking articles in law school, except this version was far more interesting (normally law review articles are just citing cases, and many professors just leave the citations incomplete because they know the students will just fill them in anyway). But it was a great example of proper due diligence, and of course they caught and corrected the mistake because they were so thorough.

In re: Onizuka, it's impossible to say without checking his OMPF. I didn't know that Washington's promotion execution was delayed, perhaps they just thought it was self-executing? I really wouldn't be surprised, given how convoluted this is. I'm not really sure if the VA is obligated to update a headstone in the case of a later rank change (I mean, it cannot be cheap, so it would actually make sense if that cost were passed on to the NoK). I encountered a similar situation the other year when I inquired online about an AF MoH recipient, William Pitsenbarger, because I noted that his headstone had both the Air Force Cross and MoH (and obviously they had upgraded the AFC to the MH, so he didn't have both). I was surprised when his son, who was clearly annoyed, replied directly and said that they had buried him with just the AFC back in the 1960s, and there was no way they were going to replace the entire headstone for sentimental reasons. So the easiest solution was just to have a MoH carved into it right after the AFC. Obviously with rank that solution wouldn't be feasible. Incidentally, most living MoH recipients wear both a ribbon and the MoH itself on the pendant at the same time, even though this is clearly against regulations because they're basically wearing two versions of the same medal (but most of these guys are retired, and even the saltiest sergeant major probably wouldn't try to make them to take it off).

In re: Grant, perhaps it's partly due to his association with reconstruction and the recent efforts to reconcile with that history, but I'm not really familiar with where the legislative push originated. Obviously his administration was tainted with major scandals, but of course the last administration was certainly far worse in that regard! West Point just erected a statue of him in 2019 (the first one at that location, although they previously had a barracks named after him). There were already existing statutes of several GOs: Eisenhower, MacArthur, Patton, Thayer, and Sedgwick. On the interpretation of separate grades for General of the Army, I have no idea, and probably the conference managers don't either! Foxtrot5151 (talk) 16:27, 12 December 2022 (UTC)

Correction: the headstone I recalled was Etchberger's, not Pitsenbarger. I remembered it wrong. You can see what I mean with the headstone here: https://www.findagrave.com/memorial/112748828/rodney-a-etchberger Foxtrot5151 (talk) 17:03, 12 December 2022 (UTC)

Received a reply from Gen Fogleman, who read the article and asked if this was exclusively an AF problem. I replied no, and sent him the way to search the Appointments Clause nominations on Congress.gov (none were made during his time as CSAF, incidentally). I said that anecdotally, the issue I've observed is the AF not being willing to correct mistaken claims, and told him I'd tried with zero success on both the Stewart and Mitchell claims (which I couldn't even get a reply about, after many attempts through several channels, contacting historians directly, and even making FOIA requests.

Incidentally, I also heard back from the command historian at the AFRC today, who wrote me for the first time in response to the article (I contacted him some months back asking if the Stewart claims could be corrected). He obviously doesn't see this as his job, and said: "many up and coming AF officers love to try their hand at the historical writing process with oftentimes disappointing results. Rarely do they send their work to HO for scrubbing. Moreover, PA greenlights those efforts without any consultation with AF History. These stovepipes have consequences that, to this point, have not been resolved." So my takeaway is if it didn't come from them, then it isn't their problem to resolve (unless it's command directed, I guess). Foxtrot5151 (talk) 00:32, 15 December 2022 (UTC)

I imagine command historians don't have much leverage even within their own organization to compel other people to spend any effort to change the status quo of an already published article whose nuances they don't understand. Especially once the original author has moved on, it's a lot of work to even understand the proposed change, let alone do the homework to validate it. And there's no reward for fixing an existing document other than personal satisfaction. But this lack of incentive is probably universal -- it's certainly not just an AF or even government pathology.

Those Wiener articles in Army on Pershing's rank are another example of this sort of casually bad history being very difficult to correct. He was trying to refute the notion that Pershing was a six-star general, apparently triggered in part by "two plaques on a Pentagon wall, which not only perpetuate the thus distorted if treasured fiction, but which further mistakenly assert in its support -- overlooking a controlling act of Congress -- that the Civil War trio of Grant, Sherman, and Sheridan enjoyed the five-star grade ultimately conferred on the World War II leaders." He went so far as to propose new wording for both plaques, but I would be very surprised if anyone bothered to change them.

- Morinao (talk) 07:00, 16 December 2022 (UTC)

My focus with the AFRC was trying to correct their YouTube commercial on Stewart: https://www.youtube.com/watch?v=_U1lLf3DhK4&t=3s which was apparently drawn from Wikipedia. I noticed that the account hasn't posted since two years ago, so perhaps it's been abandoned? Anyway, the historian seemed really uninterested in doing anything unless it came from his boss. If the Air & Space Forces Magazine plan works, that's what will happen with at least some of these claims. Foxtrot5151 (talk) 23:02, 20 December 2022 (UTC)

Went through Onizuka's OMPF. There is a form he had to sign upon being selected for lieutenant colonel, acknowledging that accepting the promotion incurred an additional three-year service commitment. Interestingly, he signed and dated the form on February 5, 1985 -- less than two weeks after his first spaceflight on STS-51-C and the same day he was nominated for his Title 10 promotion -- but he didn't check either of the boxes to accept or decline the promotion! Perhaps he knew the Title 10 promotion would be superseded by an imminent spaceflight promotion? He and Payton both received an Appointments Clause promotion to lieutenant colonel a month later, on March 5, but with only a two-year service commitment.

He was promoted to colonel on January 30, 1987, effective January 28, 1986. Apparently his special bill passed Congress on November 3, 1986, but there was a delay in printing the final copy, which wasn't delivered to the Air Force until late January. Directed to send a copy of the promotion order to the family, Air Force personnel staff revised the cover letter to imply that the delay wasn't their fault: "What say we rewrite [letter] to reflect based on "recent congressional action" etc -- taking this action. Then it doesn't look like we are a year late."

- Morinao (talk) 09:03, 8 January 2023 (UTC)

Archives

@Foxtrot5151: Would like to make a comment here. I have contacted NARA for research purposes as well, in order to source official portraits for lists similar to what Morinao has created. However, they always tell me that what I'm looking for likely hasn't been digitized yet and that I should either head to Adelphi Park myself or hire an independent researcher to do it for me. Seeing as I, one, live in Asia and two, have only just reached working age (hence no money, and I'd imagine hiring researchers is expensive), both are pretty much impossible. Here's hoping you have better luck with NARA's legislative archives. I must say, as a fellow enthusiast of military promotions myself (I work on the same kind of pages Morinao does), I'm very impressed and hopeful to see further research of yours. SuperWIKI (talk) 01:13, 7 October 2022 (UTC)

That's generally true (the inaccessibility of the archives), if you're talking about regular reading room content. But the legislative archives are generally not very busy, so those archivists will search a limited amount and send you scans for free (which they've done for me probably a dozen times, and have already done in this particular case). Legislative records are easy to locate because they are filed by session of congress and then under the docket for the bill/resolution you're interested in, which only takes them a few minutes even with records not yet digitized. Committee files are more difficult--the Senate nomination records are sealed for something like 60 years because of all the dirt that comes out in those hearings, and House records I think are something like 35 or 40 years. Legislative folks are sitting on their hands most of the time, because almost nobody ever makes requests there.

Most special collections will send you records for free as well, or at least they will take a look before asking to charge you something, as they know that most web queries aren't local and cannot realistically just visit the reading room. I've only incurred one $1.70 fee so far with this research thread, because the University of TX charges 10 cents per digitized page for all of the Goldwater correspondence. A lot of papers are donated and available at the Library of Congress (they also have great finding aids). While LOC archivists are government employees, they will absolutely pull and scan content for free--they did this for me just the other week and sent records from the Eaker papers. College Park and the DC Archives do have lists of researchers who work as independent contractors and post stuff in a dropbox folder for you. That's useful if you have a known location and quantity, but isn't very feasible for an open-ended record search. Presidential Libraries are also auxiliaries of NARA, but more like private/public hybrids because they rely on different funding streams. The Reagan archivists already sent me records for free, including all of the speech drafts crediting Goldwater and Ike Skelton--credited in the border as "initiators of legislation," but they eventually removed Skelton because they ran a legislative trace of the resolution and realized it had nothing to do with the promotion. A lot of the presidential libraries will post anything already scanned in a prior pull, so for an administration that's old enough you can expect to have a lot of accessible folders already available online (unlike regular collections they are all public records, so they have more of a mission to make them publicly accessible rather than to keep them under lock and key). That's the catch though--it takes a few decades for them to sort out the classified and other privacy protected records, so for a while most presidential libraries don't have their collections available at all. I tried to get some Reagan Library records in the 2008-2010 timeframe because I was pushing an amendment through the Armed Services Committee (which passed in the FY2013 NDAA) and virtually nothing was available back then.

Anyway, I hear you, but there are ways around the regular archives when you're talking about some categories of records: in this case legislative material and files on people who were basically celebrities. Foxtrot5151 (talk) 01:40, 7 October 2022 (UTC)

The best I can hope for to find official U.S. military portraits is hope that they can digitize the physical records (at least the ones I'm looking for) on their own; last I heard, the Still Pictures Branch still has years of material to scan into their digital catalogue. Looking forward to working and speaking with you further if I ever encounter a snag in my U.S. officer list research! SuperWIKI (talk) 02:30, 7 October 2022 (UTC)

OMPRs and five-star grades

Thanks to Foxtrot's mention of "celebrities" having fully-digitised and public OMPRs (official military personnel files), I've added a set from the NARA catalogue to my reading list. Starting with GEN Ridgway (racing through 2000 pages is surprisingly easy when most of it is travel authorisations), there's some information I found that is pertinent to this discussion.

• Ridgway's retirement request for the retired pay as a full general (his highest temporary rank) as opposed to retired pay as a major general (his permanent rank) under Public Law 84-547 was denied due to Ridgway receiving "the maximum benefits currently authorized" per the reply by the Army ; Army pay tables at the time only provided (in the context of active-duty pay being computed for retired pay) for pay up to the maximum afforded a major general. I understand the gist of it, but I'm interested in knowing the deeper context behind this. Unsure if Ridgway got this solved or not. SuperWIKI (talk) 16:13, 30 November 2022 (UTC)

I also find it rather hilarious that Ridgway's form applying for retired pay got buried in a deluge of related requests and thus required a second apology-denial from Army secretary Wilbur M. Brucker the following month (14 December 1956). Wonder how many high-ranking Cold War officers went through this kind of quagmire in retirement? SuperWIKI (talk) 16:13, 30 November 2022 (UTC)

• The second is relating to multiple public requests that Ridgway be promoted to the rank of general of the Army. The 82nd Airborne Division Association made several overtures directly to President Reagan (the manner of their request implies they know how the Appointments Clause works) for the promotion of Ridgway to general of the Army in an honorary capacity with no effect on retired pay, and making sure to emphasise the lack of cost. Army secretary John O. Marsh Jr., LTG Yerks and LTG Elton, both deputy chiefs of staff for personnel, all cited multiple times (including, at some point, a White House inquiry) DA policy of denying honorary promotion requests and the typical "we assign ranks based on needs, positions and how competent the nominee is". SuperWIKI (talk) 16:58, 30 November 2022 (UTC)

The effort dragged from 1981 to 1986 by which time the Doolittle-Eaker affair presumably upped the ante on DOD, especially when Representative Tony P. Hall got into the mix. I mention the Doolittle-Eaker thing because there is no way that didn't generate more interest in the right circles for a five-star promotion for Ridgway. 1989 requests (yes, this lasted into the H.W. Bush era) that Ridgway receive the permanent rank of general of the Army (with accompanying lifetime active duty pay) from veterans are even more egregious, more so that some were endorsed by Senator John Heinz, himself an Air Force reservist. Those veterans in the latter case clearly wanted a Chennault "please promote Ridgway before he dies" thing to happen. SuperWIKI (talk) 16:58, 30 November 2022 (UTC)

Thus, is there any legal, statutory or constitutional capacity where a five-star rank of general of the Army/Air Force or fleet admiral could be conferred in an honorary capacity with no effect on active or retired pay? How would it work if say, the Ridgway request got through? SuperWIKI (talk) 16:58, 30 November 2022 (UTC)

Well, I presume if it was done via statutory waiver with a no pay or benefit proviso like many of the modern honorary promotions, then that would be the way to make that clear. The only modern precedent for advancement to that rank in honorary capacity is probably George Washington in 1976: https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg2078.pdf No proviso was necessary there because obviously nobody is collecting benefits that might flow from it. But even if they'd done it via Appointments Clause, it likely would have resulted in the same refusal to pay out that happened to Eaker/Doolittle, for running afoul of statutory provisions on retired pay (in that case having actual service in the grade, which would probably require a more particularized waiver to circumvent). My understanding is that five star officers are never actually retired and draw full pay for life (with the exception of when they temporarily resign, like Eisenhower), so that's an interesting rank with more significant pay implications for getting it wrong. 131.252.183.149 (talk) 00:35, 1 December 2022 (UTC)

Speaking of pay implications... the date of rank, which (among other options, but these are the most plausible) could either be backdated to the date Ridgway retired (June 30, 1955) or a theoretical period in which the public request(s) for five-star rank would have been approved (sometime in 1989). It would either be enacted via special legislation like with George Washington or the Appointments Clause like with Eaker and Doolittle. Coming off the heels of Eaker-Doolittle where the clause would still be on DOD's mind, the latter seems to be more plausible assuming Sam Nunn was willing to confirm him and President Bush was willing.

Making a general of the Army an honorary rank with no pay implications in Ridgway's case would dilute its importance, "hollow stars" to say the least. Making it a substantive promotion but not permitting lifetime active duty pay would dilute its importance. A substantive promotion with all criteria of a five-star one would raise the question of how much back pay Ridgway is owed, if at all. Does Ridgway receive back pay from his retirement date, especially if the date of rank as a five-star is the same as the retirement date? Or is there none, and the full active duty pay starts from Ridgway's actual date of appointment?

That's not even considering the optics of promoting to five-star without a major war going on or another five-star who needed to be outranked (Bradley). SuperWIKI (talk) 09:13, 2 December 2022 (UTC)

Thanks for digging those records up! Regarding Ridgway's retired pay, basically a 1948 law advanced Army and Air Force officers on the retired list to their highest temporary grade during WWII, including its retired pay. Then a 1956 law expanded eligibility beyond WWII, so the Adjutant General's Office included a form with every retired officer's paycheck one month, inviting all officers receiving retired pay below their highest temporary grade to apply for advancement. Ridgway dutifully filled out the application, as he had been promoted to temporary general after WWII and was receiving the retired pay of a major general, which was the highest possible at the time, since the O-9 and O-10 grades were not created until 1958. I don't think he got more than one reply -- it looks like the Adjutant General's Office went through several drafts of a response and finally sent the most tactful version that apologized for sending Ridgway a form that didn't apply to him. (The other two replies are struck through with "Not used" in red pencil.)

Ridgway probably had the best case for a five-star promotion after Bradley. In addition to his singular battlefield accomplishments, especially in Korea, which elevated him above his peers, he directly succeeded two five-star generals--MacArthur as SCAP and Eisenhower as SACEUR--and was speculated at the time to be up for a fifth star of his own. A fifth star for Schwarzkopf and Powell after Desert Storm would certainly have put him back in the running. Conversely, awarding him the Congressional Gold Medal in 1990, in lieu of a fifth star, may have made it easier to limit Schwarzkopf and Powell to the same reward a few months later.

Moreover, the five-star grade was specifically honorific, not functional like the four-star grade. The private law that promoted Bradley stated explicitly that his fifth star was "because of the many distinguished services which [he] has rendered to his country (but not because of the position he holds as Chairman of the Joint Chiefs of Staff)".

Like Foxtrot said, it would have been easy to include a no-extra-benefits proviso in the statute to keep it zero cost. I don't even think it would have gotten tangled with previous five-star legislation, since Congress typically referred to five-star grades by their enacting acts, for example when excluding them from the pay act that created the O-9/10 pay grades (72 Stat. 130: the Act of March 23, 1946, means the WWII five-stars, and the Act of September 18, 1950, means Bradley).

- Morinao (talk) 11:29, 2 December 2022 (UTC)

While the exalted nature of the rank and five stars has stayed the same since 1945, I realise now that all other privileges e.g. lifetime full pay and permanent active duty can change drastically. The "enacting act" reference would mean that every time a general of the Army is appointed, the rank is established anew and the rules that come with it too. Up until now, I never actually paid attention to the fact that general of the Army/fleet admiral/general of the Air Force was a special grade with few formal obligations to adhere to. Mark W. Clark had his own share of requests to be general of the Army.

Out of curiosity, who would you think are potential post-WW2 candidates for fleet admiral and general of the Air Force? SuperWIKI (talk) 13:53, 2 December 2022 (UTC)

Interesting question, with three ways to answer. There really weren't any opportunities for Navy or Air Force officers to earn five-star grades after WWII, unless the grades remained functional.

1. Without counterfactuals: Spruance was the runner up for the Navy's last five-star grade that went to Halsey after the war. Nimitz kept trying to get Spruance promoted all through the 1950s, citing Bradley, but was blocked by Vinson. In the Army, five-star promotions were seriously considered for Schwarzkopf and Powell after Desert Storm. Ridgway was probably the next most viable candidate, despite Korea being the "forgotten war". Maybe Westmoreland and Petraeus, if their wars and postwars had gone completely differently. Clark and Patton were too controversial in Congress -- the Texas delegation in particular hated Clark for Rapido River, one reason he was never a serious candidate for Army chief of staff.
2. Suppose the effort to promote MacArthur to six-star General of the Armies in 1955 had succeeded. That would have triggered six-star promotions for the equivalent Pacific theater commander, Nimitz; the European theater commander and WWII Pershing equivalent, Eisenhower, when he was reappointed to the Army retired list post-presidency; and possibly the five-star JCS members, Leahy, Marshall, King, and Arnold. But not Bradley or Halsey, who were one echelon lower and received their fifth stars after the war. Then Spruance would certainly get his fifth star, since he and Halsey alternated four-star fleet command during WWII, and so might Devers, who was the other four-star army group commander besides Bradley. And once the Army and Navy each had two five-stars, the Air Force would probably ask for Spaatz and Kenney. Starting in the 1980s it might become possible to promote some of the more famous retired or dead four-stars, like Ridgway, Clark, Patton, LeMay (but not if he still ran on Wallace's ticket), maybe even Rickover (post-relief) and Schriever, definitely Schwarzkopf and Powell, and possibly Petraeus and Abrams (posthumously) if the counterinsurgency narrative held power long enough.
3. Suppose five-star grades remained functional instead of honorific. This could only happen if some external rank had to be matched, as with the British members of the Combined Chiefs of Staff during WWII, whose five-star grades were the motivation for equivalent American grades. For example, Bradley's belated promotion while CJCS was obviously about balancing MacArthur's fifth star, since the Korean War might hold MacArthur in theater indefinitely, as during WWII. The language in the private law about it specifically not being for his position as CJCS was because Congress was suspicious of anything that smacked of a "man on a white horse", so the office of CJCS could not justify a fifth star in its own right.

But suppose it was decided that SACEUR needed five stars to command a multi-national coalition of four-stars. This would have to be matched by a fifth star for CJCS. Then Ridgway could have been the second five-star SACEUR, in succession to Eisenhower, and Radford the second five-star CJCS, in succession to Bradley. Since Gruenther lacked the prestige to directly succeed Eisenhower as SACEUR, hence Ridgway, he and Norstad might not have been able to succeed Ridgway as SACEUR once it came with a fifth star. So the SACEUR succession might have been quite different. Maybe Clay gets recalled to active duty as five-star SACEUR. But eventually five-star CJCS and SACEUR appointments become routine, at least until the end of the Cold War, when SACEUR probably drops a star and maybe also CJCS.

- Morinao (talk) 06:06, 3 December 2022 (UTC)

A comment on possibility #3. Most of the hopefuls pre-1985 would not be subject to the Goldwater-Nichols Act which definitively removed the service chiefs from the chain of command between the secretary of defense and CINCs. Hence, there could be informal pushback from the service chiefs who would feel undermined by a five-star SACEUR whose rank made him structurally immune to influence. This discounts the SACEUR's own personal service biases.

Such service chiefs (especially the more outspoken ones like LeMay) would probably lobby to have the service chiefs have five-star rank. Perhaps not the commandant of the Marine Corps, but the Army, Navy, Air Force.... possibly. SuperWIKI (talk) 06:33, 3 December 2022 (UTC)

I don't think the usual rivalries between service chiefs and CINCs really applied to SACEUR during the Cold War (although they certainly did by Kosovo). SACEUR was the only job prestigious to be filled by a former CJCS or service chief or Alexander Haig, making it the only real candidate for a fifth star. And NATO was outside the national chain of command, so broke a lot of the usual norms of appointment and tenure. For example, Gorman was forced to retire after only 2 years at SOUTHCOM, because DoD policy was to not grant exemptions from the 35 and 5 rule. But at the same time Rogers was continually receiving two-year extensions as SACEUR, even past the point where he should have run out of retirement deferrals.

- Morinao (talk) 05:24, 12 December 2022 (UTC)

Grant promotion

Also was just ruminating on the Grant promotion implications. Since he raises the same issue as Eisenhower (inability to hold that office and the office of president contemporaneously). But since the bill apparently just puts him into Pershing's shoes, then evidently his date of rank would be the same as Pershing's? That's weird, since of course he died in 1885, but I guess that's a trivial detail! Foxtrot5151 (talk) 17:40, 12 December 2022 (UTC)

Picture the overall seniority list. Obviously #1 is Washington, but then what? If Grant is equal to Pershing, do we just divide the #2 spot into #2a and #2b for Pershing and Grant respectively, with different dates of rank? If we are to keep the whole "equal to Pershing" thing, that would have been preferable to this mess, especially when it allows Congress to give Grant a more exclusive date of rank, e.g. April 9, 2022 (anniversary of the Civil War victory at Appomattox) or April 27, 2022 (200th birthday anniversary, would have been the DOR had the original resolution passed in time). We disregarded the date of rank once to establish Washington's seniority over Pershing (July 4, 1976 vs. September 3, 1919), why not here and conflate the two establishments of General of the Armies into the same rank, explicitly merging them into one after the fact? Then #1 Washington, #2 Grant, #3 Pershing or #1 Washington, #2a Pershing, #2b Grant (if Pershing and Grant are still to be equal) on the seniority list.

I may be underestimating the importance or nature of seniority here, so feedback is appreciated. SuperWIKI (talk) 01:01, 13 December 2022 (UTC)

Grant had a fascinatingly fraught road to reappointment as general on the retired list in 1885. Like Eisenhower, he resigned his commission to become President, and was later restored to his former grade by an act of Congress. But Grant's reappointment was much more controversial. Not only did it create an unprecedented pension for an ex-President (who did not receive one until 1953), but some proposals gave him the right to resume command of the Army in an emergency! When Grant returned from his post-presidential world tour as the frontrunner for the 1880 Republican nomination, there were even attempts to lure him out of partisan politics by appointing him to a new grade of captain general of the Army, superseding Sherman (who was not amused). The ball didn't really get rolling on Grant's reappointment until he was publicly bankrupted by his business partner's Ponzi scheme in 1884 and revealed to be terminally ill in 1885. Even then, the bill had to be revised to not mention him by name, which President Arthur viewed as unconstitutionally limiting his appointment authority, having recently vetoed a similar bill to reappoint Fitz John Porter.

It's impressive how well organized the campaign to promote Grant has been. Organizers (Grant Monument Association?) recruited Congressional sponsors from both parties in each of the states he lived in: a red state (MO), blue state (NY), and swing state (OH). Presumably they will be savvy enough to follow up with the Army to execute the promotion, once authorized, so it doesn't fall through the cracks like Washington in 1976.

Rank and precedence has always been a mess for General of the Armies. Pershing's 1919 law (41 Stat. 283) says "the office of General of the Armies of the United States is hereby revived...and any provision of existing law that would enable any other officer of the Army to take rank and precedence over said officer is hereby repealed." The Comptroller General interpreted this as being the same grade created for Washington in 1799 and revived for Grant (and Sherman and Sheridan) in 1866. But it was never clear that this grade outranked the later five-star grades. Washington's 1976 law (90 Stat. 2078) says "the grade of General of the Armies of the United States is established" -- not revived -- "such grade to have rank and precedence over all other grades of the Army, past or present." Since it assigns him an effective promotion date of July 4, 1976, decades after Pershing's 1919 date of rank, it seems like the only way to make Washington outrank Pershing is to interpret his grade as separate and higher. The Congressional sponsors took this path in their letter to the secretary of defense, claiming that Washington's law was "effectively lowering the grade to which Grant was appointed in 1866." (The same argument would support a posthumous promotion of Farragut to Admiral of the Navy. But I don't think he is popular enough.)

The original Grant promotion bill was relatively easy to understand: a later date of rank (April 27, 2022) within the same grade as Washington (July 4, 1976), which ranks above Grant's original grade that Pershing held (September 3, 1919). So precedence would be 1) Washington, 2) Grant, 3) Pershing. The current bill gives Grant "the grade of General of the Armies of the United States, equal to the rank and precedence held by General John J. Pershing pursuant to [Pershing's 1919 law]." Presumably the intent is that a bill to promote Grant should not change Washington and Pershing's rank relative to each other, meaning Washington should still outrank Pershing. So the order is 1) Washington, 2) Pershing/Grant, with precedence established by statute instead of the out-of-order dates of rank.

But I wonder if invoking the 1919 law reactivates that clause about "any provision of existing law that would enable any other officer of the Army to take rank and precedence over said officer is hereby repealed." If so, that would make it 1) Pershing/Grant, 2) Washington, which was certainly not the intention.

- Morinao (talk) 05:18, 13 December 2022 (UTC)

With the significant differences between the House, Senate and reconciled versions of the bill, is it notable enough for inclusion in the General of the Armies page? SuperWIKI (talk) 00:10, 14 December 2022 (UTC)

Yes, I actually corresponded with one of the SASC staffers who likely wrote the provision (I sent him the article, and he asked me what I thought of the Grant promotion language). How you just explained it is how he meant it to read: that Washington superseded Pershing's precedence, and that by assigning Grant to equal Pershing, they aren't implementing the precedence provision from Pershing's law again, since it doesn't actually say to do this (merely to make Grant equal). So that provision remains stale and superseded. I don't know that the Washington date of rank matters, since the act made him superior to everyone. Perhaps they should've made it a 1776 date of rank instead of 1976, just to make that all clear. Foxtrot5151 (talk) 03:43, 14 December 2022 (UTC)

Another thought--while the Washington promotion act gives an effective appointment date, which would normally set the date of rank, obviously the rank and precedence provision changes that. Meaning, that if it's truly the same grade and not a higher one, then the effective DoR is earlier than Pershing's and Grant's. Curious if they did something like that on the actual promotion order. Foxtrot5151 (talk) 03:47, 14 December 2022 (UTC)

Ok, I'm digging for it. Here's the file from the Ford Library. Doesn't answer the question, unfortunately. https://www.fordlibrarymuseum.gov/library/document/0055/1669598.pdf Foxtrot5151 (talk) 03:51, 14 December 2022 (UTC)

Here's the order: https://commons.wikimedia.org/wiki/File:Orders_31-3.jpg Weird, just the effective date of 1776. Maybe that's as much as we can expect from the bureaucrats--they were probably happy enough with themselves simply to have discovered they needed to execute it! Foxtrot5151 (talk) 03:54, 14 December 2022 (UTC)

What's funny is that there might be a way to read the current language that actually demotes Grant instead of promoting him.

Let's assume that Frederick Bernays Wiener is correct that Pershing holds the same four-star grade created for Washington in 1799 and revived in 1886 for Grant, Sherman, and Sheridan. This was his argument in the pair of Army articles -- "How Many Stars for Pershing" (December 1970), "Five is Higher Than Six When Fact and Legend Clash" (January 1971) -- that clearly influenced the confusion in 1976 over whether Pershing was a four- or six-star general, and motivated the Washington promotion language. Basically, Grant's 1866 promotion law "revived" the 1799 grade created but never held by Washington, so the Comptroller General ruled (4 Comp. Gen. 317) that the 1799, 1866, and 1919 General of the Armies/Army grades were all the same, which let Pershing retire at full pay and allowances like Sherman, instead of the three-quarters pay of a major general received by other four-star generals during his lifetime. Wiener further concludes that the 1799/1866/1919 four-star grade is outranked by the 1944 five-star grade. That's shakier ground, but the point is that Grant/Sherman/Sheridan/Pershing are all the same grade, so what changes with Grant's promotion is his rank within that grade.

Now, what is the actual scope of Pershing's 1919 precedence clause? The marginalia of 41 Stat. 283 specifically cite 40 Stat. 46 as the provision being repealed. This was a 1917 law that gave the major general serving as chief of staff precedence over all the other major generals in the army during the WWI emergency ("for the period of the existing emergency...rank and precedence over all other officers of the Army"), regardless of seniority in grade. Pershing's precedence clause was inserted solely to implement President Wilson's request to make Pershing and March both permanent generals, but in a way that made Pershing outrank March, who would otherwise have precedence as the serving chief of staff (House Reports 185, 186).

So the question is, did Pershing's clause also apply to dead officers? If so (and ignoring five-star officers, who are either all above or all below everyone but Washington), the current order is 1) Washington, 2) Pershing, 3) Sherman, 4) Grant, 5) Sheridan. Grant ranks after Sherman because his final commission dated from his reappointment in 1885, not the original 1866 promotion. In this case, giving him the same rank and precedence as Pershing gives the desired 1) Washington, 2) Pershing/Grant, 3) Sherman, 4) Sheridan.

But suppose the only effect of Pershing's clause is to repeal the chief of staff provision in 40 Stat. 46, which was the original intent. Then the current order is 1) Washington, 2) Sherman, 3) Grant, 4) Sheridan, 5) Pershing, and this "promotion" would move Grant down in rank to 1) Washington, 2) Sherman, 3) Sheridan, 4) Pershing/Grant!

- Morinao (talk) 01:23, 15 December 2022 (UTC)

Interesting, I was only peripherally aware of some of this. I won't pass it on to SASC, as I have no desire to cause a heart attack! Fortunately, it's all academic for now, or at least until they decide to again appoint someone living to that grade.

Received a reply from Gen Fogleman as well as the reserve center historical office director today--I posted at the end of the above section by accident. Foxtrot5151 (talk) 03:45, 15 December 2022 (UTC)

Yes, it's certainly too late to change now that they've voted on it. But the more I think about it, the less coherent it seems, and I wonder how the promotion will be executed. The current language appoints Grant to the grade of General of the Armies with no mention of either reviving or establishing the grade like in the previous laws. So it has to be an existing grade, either the 1799/1866/1919 Pershing grade or the 1976 Washington grade, where the 1976 grade outranks the 1799/1866/1919 grade.

If this law appoints Grant to the 1799/1866/1919 grade under Pershing's 1919 law instead of Grant's 1885 reappointment law, then this law just shuffles his rank within the grade he already holds, as argued above. It certainly doesn't move him up to Washington's grade, which was the original proposal.

If this law appoints Grant to the 1976 grade, which seems like the more obvious reading, then it's not clear how the 1919 law even applies, since Pershing never held the 1976 grade. The only rank and precedence Pershing holds pursuant to the 1919 law (given that its precedence provision is obsolete) is his 1919 date of rank in the 1799/1866/1919 grade. So is Grant appointed to the 1976 grade with a 1919 date of rank? Remember that although the 1976 law says its purpose is to make Washington outrank everyone, all it actually does is create a grade that outranks every other grade, and make Washington the sole appointment to that grade with a 1976 date of rank. Any appointment to that grade with an earlier date of rank would have precedence over Washington, so a 1919 date of rank for Grant flips the order to 1) Grant, 2) Washington, 3) Pershing.

I think the Grant team was trying to bypass the Pershing controversy entirely by referencing only Washington and Grant in their original proposal, which gave them a clean solution -- promote Grant to the 1976 grade with a 2022 date of rank junior to Washington's. The question of Pershing's seniority would be as unanswerable as ever, but at least Washington and Grant would be clear. But this seems to have backfired when SASC said "what about Pershing?" Entangling Grant with Pershing has somehow made the situation even more confusing than before, which is a real achievement for this topic.

- Morinao (talk) 07:53, 16 December 2022 (UTC)

Astronauts (part 2)

Got the first grouping of files from the LBJ Library--only $86. It's fragmented, but consistent with the history that LBJ did this without telling anyone, since the preparatory files leading up to that speech in Houston mention only awarding medals. The grouping includes several letters from James McDivitt and Ed White (the promotees), who both expressed surprise. McDivitt wrote LBJ saying it was "the biggest surprise of my life--my promotion to Lieutenant Colonel." White also wrote saying it was a "surprise promotion to Lieutenant Colonel." It appears that the promotion idea actually came from a suggestion from Senator Yarborough to promote John Glenn to USMC Colonel in September 1964. LBJ wrote to Yarborough saying that he would normally use 10 USC 5789 to accomplish the promotion (this allowed a one grade promotion to a Navy or USMC officer if they "receive[d] the thanks of Congress for highly distinguished conduct in conflict with the enemy or for extraordinary heroism in the line of his profession"), but that there was inadequate time to get it done in that session of Congress, and that Glenn was just about to retire. So it follows that they seem to have researched other options for unilateral promotion.

There is a flurry of action later to figure out what the policy would be, and also to give parity to other military astronauts. Interestingly, the administrator of the time (James Webb) insisted that "no mention be made in this policy with respect to civilian astronauts." They set no standard policy on military awards for "exceptionally heroic actions, an act in the face of great danger, well above normal space flight expectations" other than to say that this would be coordinated with the SecDef. Later, in 1966, the civilian promotion disparity came up again with Neil Armstrong, so Webb decided to give him a "meritorious achievement" promotion, which they called "in-step grade promotion." Armstrong was a GS-16 step 4 at that time on a $21,653 annual salary, which they called "comparable to a General or flag officer," so Joe Califano wrote to LBJ saying that he was too high of a grade to promote because he was already basically a flag officer. So they decided to give him a "quality increase" instead, amounting to a $700-a-year raise.

After the June 1965 unscheduled promotions, the administration almost immediately submitted promotions for Walter Schirra and John Young (both Navy officers). The administration spent a bunch of time on promotions for Navy Lt. Charles Conrad and USAF LTC Gordon Cooper--apparently they got their wires crossed with Cooper and promoted him via the first successful spaceflight policy just prior to a pending board promotion (only about six weeks before he'd have been promoted anyway). This was somehow unknown to them at the time because of a misunderstanding by Joe Califano, so for the sake of equity LBJ decided to go back and promote Cooper again out of fairness. Evidently this didn't happen for everyone (ex: Alan Shepard), although the administration represented to the press that they had gone back and promoted all of the earlier astronauts for their first flights, and specifically claimed that this included Shepard.

The administration held a press conference on Aug. 31, 1965 outlining the new promotion policy. According to Bill Moyers, "in the past the policy has been ambiguous and uncertain, and this just formalizes the policy." Of course they didn't admit that just months prior there really was no policy at all. They dug into the requirement that the mission be "successful" as a prerequisite, and Moyers clarified that this meant they had to first complete the mission, in his words: "what NASA would determine as a successful mission." That's something I already speculated would've been a problem for the Challenger astronauts, assuming that the policy was basically the same under Reagan. Of course, policy can just be changed on the fly if it has no basis in legislation, and in that case it makes sense why the Challenger disaster was both an exception and its death knell.

Also notable that these files are all mixed in with coordination for foreign goodwill ambassador tours by all of the astronauts, who apparently had much greater celebrity status abroad than our astronauts do in modern times. It's very clear to me why the politicians wanted to maximize their public relations value, and the rank and other accolades were clearly tied into this--it's basically the same justification as frocking officers who serve in diplomatic posts. — Preceding unsigned comment added by Foxtrot5151 (talk • contribs) 17:23, 23 December 2022 (UTC)

Also found an interesting memo from the acting NASA administrator in 1968, about a planned ceremony for Apollo 7 astronauts. He says the military planned their own ceremony for military awards at the Pentagon, due to longstanding belief "that military award ceremonies and civilian space award ceremonies should not be combined." That seemingly reflects that the Pentagon didn't like the bleedover between the NASA and military awards. Captain Schirra was due to receive a DSM and LTC Eisele a DFC. NASA was already presenting them with Exceptional Service Awards for the same flight. That's interesting, because my understanding is that President Coolidge's 1927 executive order applied not only to military awards, but to all forms of federal decorations: "Not more than one of the several decorations authorized by Federal law will be awarded for the same act of heroism or extraordinary achievement." See https://www.presidency.ucsb.edu/documents/executive-order-4601-distinguished-flying-cross Foxtrot5151 (talk) 18:32, 23 December 2022 (UTC)

Interesting find about the Glenn promotion. It does seem to be the first Appointments Clause promotion for a spaceflight. From his autobiography (same story told at his promotion ceremony):

In July I wrote a letter to the commandant of the Marine Corps reiterating my intention to retire. I was on the list to be considered for promotion to full colonel, but I asked to be removed. Marine Corps promotions are based on both past performance and future promise, but only so many candidates would make the grade, and I knew that if I was promoted, another candidate would be passed over. I didn't think it was fair to make somebody else wait another year when I was going to retire anyway....President Johnson, meanwhile, had proposed a plan to promote me separately, without passing over another eligible lieutenant colonel, and Congress approved it. I received my promotion at a White House ceremony after Johnson's overwhelming election victory.

It seems that Glenn's promotion had two components. First, the President nominated him for an Appointments Clause promotion on September 29 and gave him a recess appointment as colonel on October 27. I assume the Senate eventually confirmed it before he retired in January? Second, the Secretary of the Navy ordered the number of Marine colonels increased from 605 to 606, so Glenn could be added as an extra number that would not delay the promotion of another Marine. So all the mechanisms for a spaceflight promotion were still fresh in LBJ's mind when McDivitt and White rolled around a few months later, except for a formal policy.

It's fascinating to me that the Thanks of Congress path was still live for Glenn -- that statute dates all the way back to 1862 (12 Stat. 584) and remained on the books I guess until DOPMA. The only comparable resurrection of a Civil War-era statute for a 20th-century promotion that I can think of is the brevet promotion of Tasker Bliss to four-star general during WWI. Was a Marine ever voted the Thanks of Congress by name? The closest I found was Daniel Carmick for the War of 1812. I was trying to figure out which military figures were voted the Thanks of Congress (as opposed to Congressional Gold Medal) after the Civil War, and all I came up with were Dewey in 1898, Albert Cushing Read in 1928 (with advance in rank), and Marshall and King in 1946.

Glenn was voted the "congratulations and warm good wishes" of Congress right after his February 1962 spaceflight, but not the Thanks of Congress. MacArthur was voted the "thanks and appreciation of the Congress" in July 1962, but by concurrent resolution instead of joint resolution, which I think might not have qualified him for the Thanks of Congress promotion even if he had been in the Navy or Marine Corps.

- Morinao (talk) 22:26, 24 December 2022 (UTC)

Thanks for your thoughts and digging on Glenn. That's interesting. There may be more in his public papers (haven't checked for those yet). My assumption was that I'd have to pull several administrations to tell this story, but perhaps there's enough just for LBJ? Maybe the presidential physician promotions could be rolled into it... Foxtrot5151 (talk) 23:36, 26 December 2022 (UTC)

Also checked on section 5789, and yes, it was still there as of the 1976 publication of the US Code:

§ 5789. Officers receiving thanks of Congress

<a> An officer in the line of the Navy or an officer

of the Marine Corps may be advanced one

grade if, upon recommendation of the President

by name, he receives the thanks of Congress

for highly distinguished conduct in conflict

with the enemy or for extraordinary heroism

in the line of his profession.

b> An officer may be promoted under this

section even though there are no vacancies in

the higher grade. He shall be carried as an additional

number in that grade until the actual

number of officers in that grade falls below the

prescribed number.

<Aug. 10, 1956, ch. 1041, 70A Stat. 367.> Foxtrot5151 (talk) 05:05, 27 December 2022 (UTC)

Going through the Glenn trail now. I see several mentions of the September 1964 nomination in the congressional record--they basically mirror the language you located, saying receipt of the nomination, and referral to the committee on armed services. But no record of confirmation that I can locate. Very strange. I'm going to follow up with his papers at Ohio State, who appear to have a folder just on that promotion. Also, I agree from the LBJ papers that it was clearly an appointments clause nomination, since he expressly said it was outside of a promotion board. But how can you tell from the nomination itself? The language doesn't make that clear at all. Foxtrot5151 (talk) 18:33, 28 December 2022 (UTC)

So the NYT wrote this upon recording the promotion ceremony in October: "Because the Senate adjourned before confirming the promotion, the new rank is, in effect, a recess appointment, subject to confirmation by the Senate before it is permanent." But I cannot find a confirmation in the next Congress, and how in the world could you retire at a rank subject to Senate confirmation that hasn't happened yet? I mean, that seems impossible to justify. If this isn't legitimate then I guess it's appropriate, considering that it was the first of several botched promotions. Foxtrot5151 (talk) 19:00, 28 December 2022 (UTC)

Identified the promotion and retirement folders in the John Glenn papers, and sent in a query. Also sent a query to the archivist helping me at the LBJ Library. I'll get to the bottom of this, but I think there's a good chance they just closed the book after the promotion ceremony. Foxtrot5151 (talk) 19:06, 28 December 2022 (UTC)

Also notable that at Glenn's promotion ceremony, LBJ claims that he had consulted Congress and "we were all unanimous." But obviously they weren't unanimous in any meaningful way, since they hadn't voted. That seems a clear misrepresentation to me. Foxtrot5151 (talk) 19:15, 28 December 2022 (UTC)

So I looked through all the executive calendars. Looks like the session ended early that year, on Oct 3, 1964. There were some recess appointments on the executive calendar for Jan. 1965, but nothing for Glenn. I searched several months and gave up. And that would also appear in the congressional record, I'm almost certain (checked both). So he was never confirmed, and in any event, should not have been retired in that grade if it was conditional on confirmation that obviously hadn't occurred. Glenn's autobiography says that "President Johnson, meanwhile, had proposed a plan to promote me separately, without passing over another eligible lieutenant colonel, and Congress approved it. I received my promotion at a White House ceremony after Johnson's overwhelming election victory." So, evidently, he misunderstood this also, and thought that the mere nomination meant approval? It looks like LBJ misrepresented this to everyone, and the Senate never even put it on the calendar. Foxtrot5151 (talk) 00:04, 29 December 2022 (UTC)

By the 1960s military nominations were pretty good about citing authorizing statutes, at least for general/flag officers, so I tend to assume the absence of a statute is an implicit fallback to the Appointments Clause. This is mainly based on George Burkley's 1962 nomination for rear admiral, which cited no statute and was later revealed to have been an Appointments Clause nomination.

But I guess this isn't a great assumption, now that you mention it, because nomination formats do seem to vary significantly between services. In particular, the nomination of Marine Corps colonels on September 8 is pretty vague about its authorization despite clearly being a selection board slate (perhaps the same board that Glenn opted out of): "the following-named officers of the Marine Corps for temporary appointment to the grade of colonel, subject to qualification therefor as provided by law". And another nomination on February 24 says only: "The following-named officers of the Marine Corps for permanent appointment to the grade of colonel". Again, clearly a Title 10 nomination. By contrast, Army (and Air Force) nominations cite chapter and verse: "The following-named officers for promotion in the Regular Army of the United States, under the provisions of title 10, United States Code, sections 3284 and 3305: To be colonel".

I think "Now I went to the Congress with this matter....And we were all unanimous...." just means that LBJ made the rounds of the Senate and SASC leaders he needed to sign off on promoting Glenn out of process -- Mansfield, Humphrey, possibly Dirksen, certainly Russell, and maybe Stennis -- and got them all on board. So he doesn't mean the entire Congress was unanimous, just everyone who mattered (in a Robert Caro "Master of the Senate" sense). And LBJ would have needed SASC approval for Nitze to arbitrarily increase the number of Marine colonels, given how touchy they were about confirming senior officers in excess of grade limits.

Now that I think about it, did anyone actually say Glenn had a recess appointment, or was that just a reasonable inference by the New York Times? If the Senate was already out of session and would not be able to confirm Glenn before he retired in January, then LBJ could have resorted to the other type of Appointments Clause appointment which lets Congress delegate appointments of inferior officers to the President alone, without further Senate confirmation. He would certainly have needed Russell's prior approval for that, to avoid SASC retaliation against future nominees, and probably Mansfield and Dirksen as well.

I wouldn't blame Glenn for assuming his promotion worked the way he was told, especially once the President handed him a signed commission. At that point anyone would assume that everything was in order, and not think to question it unless retired pay came in lower than expected.

- Morinao (talk) 02:53, 29 December 2022 (UTC)

I went back and looked at LBJ's reply to Sen. Yarborough, and he did explicitly say "notwithstanding my preference for action by Joint Resolution, I have concluded that it would be in Colonel Glenn's interest to promote him under Article II, Section 2, of the Constitution with the advice and consent of the Senate" (emphasis on that last part!). He said in that letter he was sending the nomination to Congress that day (26 Sept 1964), but obviously it didn't get there until the 29th. So it's a safe bet that was the authority, plus some of the newspaper articles say Glenn wasn't on the promotion lists or otherwise eligible, so there wouldn't be another nomination pathway that I'm aware of.

In re: LBJ's "unanimous" consent, yes, it must just have been a sense of the Senate's view from informally floating it. But obviously Glenn didn't take it that way, since he recorded that Congress approved it beforehand (and no, I don't blame him--there's no LTC on earth who would question a promotion personally officiated by the president). If my theory is correct, the SecNav or someone else forced the personnel folks to pencil-whip a promotion order with some alleged authority--now that I've seen a few I know what to look for, and the Glenn Papers have a folder just on this subject. The Doolittle/Eaker order expressly cites "by direction of the President and with the advice and consent of the Senate," and then lists "per Article II, Section 2, Clause 2 of the Constitution." So what would Glenn's promotion and retirement orders say? Presumptively a falsified version of the same, because they have to say something if they aren't otherwise eligible by law. My guess is that a recess appointment/promotion would be perfectly lawful if retroactively confirmed, but in the absence of confirmation would have no greater authority than frocking. I've thought through this a bit, and my guess is that the Senate just never added it to the calendar after he retired because he'd no longer be eligible for promotion if he was no longer in the marines. I mean, it's a bit of a catch-22, but I can see how they might have viewed the matter as moot if it postdated his retirement.

In re: the recess appointments claim, I've found several articles that said the same, so evidently it was widely known. Several of these, including the NY Times, list UPI as their source, so evidently that's why they were in synch. The 10 Oct edition of Kingsport News says "John H Glenn's promotion to full colonel, recommended by President Johnson, was one of 1,121 nominations left without action when Congress adjourned . . . The Senate didn't act on most of the nominations because they were received too later for committee action. Glenn's promotion, along with 19 Army, 792 Navy and 106 Coast Guard promotions, is expected to be cleared early next year." The 28 Oct edition of Twin Falls Times-News said "Because the senate adjourned before confirming Glenn's promotion, his new rank was in effect a recess appointment. He will get a colonel's pay, but the promotion still must be confirmed by the senate before it is permanent." I searched the next half year of the executive calendar in 1965, and nothing was there for Glenn, although they did clear the rest of those pending nominations, I think.

Thanks for mentioning the possibility that they switched to a secretarial appointment--I wasn't even aware that was an option. I've written to LOC (who have the Nitze Papers), Ohio State (Glenn Papers), the Glenn Museum in Ohio, the LBJ Library, and NARA's Center for Legislative Archives. I'm sure I will get a definitive answer from at least one of those. I just checked the nomination withholding period at NARA, and there's good news on the timing: "any unpublished records concerning executive nominations will remain closed for 50 years pursuant to Senate Resolution 474." Foxtrot5151 (talk) 18:01, 29 December 2022 (UTC)

Already heard back from NARA's legislative archives. So far she's found only a referral to SASC on 29 Sep 1964, and said she is searching for the minutes to rule out other action. Foxtrot5151 (talk) 18:40, 30 December 2022 (UTC)

LOC also checked the Nitze Papers, and they have nothing exception a mention of Glenn in his appointment book. Foxtrot5151 (talk) 23:31, 30 December 2022 (UTC)

Connected with the author of the 2020 Glenn biography (a history PhD). She says she has a few files on the 1964 promotion, but nothing that she thinks answers the confirmation question. Foxtrot5151 (talk) 17:11, 1 January 2023 (UTC)

Glenn's longtime chief of staff called me this morning--he said he's been answering questions about Glenn for 40 years, and this is the first time he's fielded this one. No knowledge of it at all, and he believes Glenn would've addressed the matter if he'd known about it--he said the senator was perhaps the most scrupulously honest person he'd ever encountered in politics. He thought Glenn had remained in the service in a reserve capacity for several more years, but that seems at odds with a formal retirement as reported at the time (the service records in his papers should resolve that question). Foxtrot5151 (talk) 22:05, 2 January 2023 (UTC)

So I am now checking for the nominations for Maj Edward H. White and Maj James A. McDivitt to Lt Col. Both were apparently promoted in 1965 in that June 7 ceremony that LBJ didn't tell anyone about beforehand (so logically I thought the nomination might have been delayed). I searched the entire 89th session, and nothing in the Congressional Record about any nominations. White and McDivitt's proper ranks appear to have confused the chambers--in the June 17 congressional record for the House, the Speaker of the House introduces them and refers to them both as "lieutenant colonel nominee" and they are still called majors in the record. But a day earlier the House daily digest refers to them as Lt Cols. One 17 June in the Senate's congressional record the vice president introduces them both as Lt Cols. Noted that White is one of NARA's designated persons of exceptional prominence (but his ompf has not yet been digitized), so I wrote to St Louis requesting a quotation for copying his ompf. McDivitt actually just died in October 2022, so I just missed asking him.

Then turned to Cmdr. Walter M. Schirra, and Lt. Cmdr. John W. Young. Unlike the other two astronauts, I actually have LBJ's nomination request for them from the LBJ library grouping--he wrote to the SecNav submitting the nomination on 18 June 1965. And sure enough, it appears in the Congressional Record on June 22 for both men. On July 15 the Senate reported favorable executive reports of committees on both nominations. On July 16 both were confirmed, under this language: "The following-named officers for permanent appointment to the grade indicated in the Navy, in accordance with article II, section 2, clause 2, of the Constitution." Interestingly, that list also included vice admiral Goldthwaite, who apparently received a tombstone promotion, because it said "when retired, for appointment to the grade indicated."

So evidently Schirra and Young were actually the first confirmed astronauts promoted under the Appointments Clause. Not sure what to make of the others--failures due to having no policy? Logically, promoting a Lt. Cmdr. in the Navy is no different than promoting a major in the USAF, unless there was some difference under the statutes at that time. Foxtrot5151 (talk) 04:58, 3 January 2023 (UTC)

Ok, went back to the LBJ Library files, and located a NASA promotion spreadsheet I had previously overlooked, clearly intended to figure out who they had to promote, had already promoted, etc. It was apparently produced in late July or early August 1965--July 21, 1965 was the latest date for promotion already having already occurred, and the mission for 19 August 1965 was still forthcoming. It's informative, and evidently incorrect in some areas. It lists Glenn as having been promoted "Normal Selection Colonel," which presumably is wrong, because of course they wouldn't have had to nominate him if he'd been selected normally. It lists Cmdr. Schirra and Lt. Cmdr. Young as "Presidential to Captain / Commander," which shows that they were referring to the appointments clause promotions as "Presidential" promotions. But interestingly, both McDivitt and White are listed as "Presidential to L/Col," suggesting that they somehow botched these ones, because those would ostensibly require nominations/confirmations as well. A separate addendum to the spreadsheet lists "promotion status future flights," charting projected space flights in Aug, Oct, Dec/Jan (1965), and ending in Mar 1966. Evidently NASA had realized by this time that they needed to track already existing regular promotions in order to deconflict them, because some say this (ex: Frank Borman says "selected to L/C awaiting promotion (secondary zone - SZ)"). Most of the astronauts already had earlier flight promotions, which are indicated--evidently they were just tracking them to ensure they didn't miss one. Some, like Cooper, Stafford, Grissom, Lovell, and White, merely say "Accelerated Promotion," so apparently those are cases where the presidential advancement had or were projected to speed up an already scheduled promotion in the same year. Foxtrot5151 (talk) 17:47, 3 January 2023 (UTC)

Looking at this again because I wondered if it might be possible that Glenn was somehow added back to the promotion board list. But given the timeline with LBJ nominating him under the appointments clause, that seems impossible, because of course they wouldn't have had to nominate him individually if he'd been selected normally. Further, there would be no way to change Glenn’s promotion to a regular selection while Congress was adjourned (a promotion board promotion still requires a nomination), and of course Glenn had retired in the meantime. So it appears NASA was overwhelmed by the sheer complexity of all this, and of course it was driven by LBJ and not them. So much of this was attempting to pick up the pieces afterward, and likely without adequate coordination with either the administration or DoD. I think NASA clearly misunderstood the first few promotion attempts, which simply lacked any real authority (evidently they incorrectly assumed the administration wouldn’t act this irresponsibly). In context, by the time they put this spreadsheet together, Glenn had already been retired for about seven months, so they obviously weren’t focused on the way forward rather than digging into a stale case. Foxtrot5151 (talk) 18:37, 3 January 2023 (UTC)

From McDivitt's oral history interview https://historycollection.jsc.nasa.gov/JSCHistoryPortal/history/oral_histories/McDivittJA/McDivittJA_6-29-99.htm

"And he gets all through with the formal stuff, and finally he says, “Jim, come up here.” So, I walk—oh, by then I’d made Major. I’d made Major, like, a couple of weeks before the flight. So, I walk up there and he says, “Jim, I’ve got a surprise for you.” He says, “You know, I think you boys are doing a hell of a good job here. And I’m the Commander-in-Chief of this outfit. And,” he says, “I decided that I’m going to promote you all. And you’re now a Lieutenant Colonel!” He gave me my silver oak leaves, and I was only a Major for a couple of months. I never did get my Major’s on my shoulders. He called Ed up, promoted Ed right there. And then he says—I don’t remember whether Gus was there or not. He says, “I got one for Gus.” Those were the first Presidential promotions." Foxtrot5151 (talk) 20:21, 3 January 2023 (UTC)

Ok, I figured some of this out. I found a common promotion order in Grissom's OMPF, dated 15 July 1965, which includes Cooper, Grissom, McDivitt, and White. All promoted to LTC as of that date. Not under Appointments Clause, but rather temporary wartime promotion authority under 10 USC 8444. That statute required a period of emergency declared by the President or Congress, and in a time of war, and allowed appointment of "any qualified person, include a person who is not a Regular or Reserve, in any temporary commissioned grade." So obviously it was based on the Korean War, even though the armistice was July 1953. It would've drawn on Truman's proclamation of the existence of a national emergency, Dec. 16, 1950, which apparently was never formally ended. Seems pretty thin to me, although at least arguably lawful. Looks like this type of appointment lasts only for the duration of the emergency or war, and expires six months afterward. This was clearly a way around appointment, and it makes me wonder if they did the same for Glenn? Interestingly, they obviously decided to shift to the appointments clause immediately after this, probably because it wasn't contingent on a war or later confirmation. That's telling, because I think they would've continued with the same promotions if they were more defensible--it's certainly easier to not have to ask Congress. Foxtrot5151 (talk) 21:31, 3 January 2023 (UTC)

No, of course it would've been the Gulf of Tonkin resolution. For some reason I was misremembering what date that passed: Aug 10, 1964. Foxtrot5151 (talk) 23:26, 3 January 2023 (UTC)

The national emergency really was the Korean War emergency of December 16, 1950, which was finally terminated on September 14, 1978, by the National Emergencies Act. Among the emergency powers the military had been leaning on for decades was the use of 10 USC 8444:

To provide the authority of the President as Commander in Chief to grant temporary appointments to exceptional officers of the Army and Air Force. An example is the promotion of the Air Force astronauts.

The Army/Air Force promotion statutes prior to DOPMA were completely different from the Navy/Marine Corps. Army/Air Force had a dual-track system requiring separate selection boards for temporary and permanent promotions, whereas Navy/Marine Corps had a unified system that automatically converted temporary promotions to permanent promotions without a second board. The Army/Air Force temporary promotion track turned out to have almost no statutory limits during a national emergency, as Congress was surprised to discover after the Korean War emergency was declared, motivating the Officer Grade Limitation Act of 1954. But the single-track Navy/Marine Corps system was much stricter, and had no equivalent to 10 USC 8444.

(Incidentally, Goldthwaite didn't get a tombstone promotion -- he had reverted to his permanent two-star grade after leaving his last three-star command for a sunset tour commanding Fleet Air Jacksonville, and was reappointed on the retired list to his highest active-duty grade, including its retired pay.)

For Glenn, a Baltimore Sun article (Oct 28, 1964) claims:

A recess nomination normally requires the formal approval of Congress at the first opportunity. That requirement is academic, however, for Colonel Glenn is to retire from active duty with full retirement pay and privileges before Congress reassembles at has a chance to consider the matter.

Apparently if you retire out of a recess appointment before Congress has a chance to vote on it, that is considered your grade at the time of retirement. This seems like a big loophole, but it traces back to a case before WWI where an Army colonel received a recess appointment to brigadier general but reached the statutory retirement age of 64 before Congress resumed. The Attorney General opined (29 Op.Atty.-Gen. 598, reaffirmed by Army JAG):

It must be taken as true that all such recess appointments, while they continue in force, confer an absolute title to the office named and to the rank thereof, and that such appointments do continue until rejected by the Senate or the Congress adjourns without any action being taken thereon. This being so, if, on December 29, 1912, when Gen. McClernand reaches the age of retirement, the Senate has not rejected his nomination and Congress has not adjourned, his recess appointment will be in full force, conferring an absolute title to the office and rank thereof, and that will be the only office which he will then hold; hence, if then retired, such appointment will determine the rank at which he shall be retired.

The Assistant Comptroller of the Treasury made a similar ruling in 1905 about officers who died during a recess appointment.

So because Glenn retired before Congress had a chance to approve or revoke his recess appointment, he was entitled to treat it as his retirement grade without further Senate action, as "the highest grade, permanent or temporary, in which he served satisfactorily on active duty as determined by the Secretary of the Navy." (72 Stat. 1509).

- Morinao (talk) 19:07, 4 January 2023 (UTC)

Wow, thanks. In re: Glenn, I wasn't aware of much of this, and surprised I didn't see anything in the media reports about Glenn's nomination not needing confirmation if he retired (presumably because most didn't realize he would retire that quickly?). I pulled at least 10 articles. I agree, retiring at a grade without confirmation makes very little legal sense--the rank and office are clearly inchoate if they depend entirely on confirmation (per the constitution, no less). How has this not come up in more modern times? It seems like it would fall under the purview of the Comptroller General, particularly if it resulted in higher pay and benefits.

In re: 10 USC 8444, I initially took it to require both a declaration emergency "and" in a time of war (since they used and instead of or), but reading the statute again convinced me that they seem to mean either are sufficient independently. I gravitated to the Korean War emergency first because that was the closest declared emergency. I'm surprised they made the argument that astronaut promotion was an intended us of this-- I mean, the astronauts are clearly in the military, but about the furthest from warfare that you can get, so the exigency justification seems rather weak. Ostensibly, the whole point of suspending confirmation during an emergency or war is to preclude the President from having to wait on Congress to fill a needed vacancy while troops are in combat (exigency). The "alien doctors" justification makes far more sense, in contrast. Now I'm curious, why did LBJ not initially use this pathway for Glenn, and why did he not use it for the subsequent presidential astronaut promotions of Schirra & Young? I mean, I could be wrong, but it seems he wasn't initially aware of it, since he was throwing whatever might work against the wall to see what stuck (evidenced by that earlier idea to use the "thanks of Congress" route). Foxtrot5151 (talk) 22:28, 4 January 2023 (UTC)

Heard back from the Ohio State archivist this morning, and she says she'll look at the Glenn papers before Thursday. That should provide an answer of sorts. Foxtrot5151 (talk) 04:59, 5 January 2023 (UTC)

I would imagine that since the services typically hew closely to time-in-grade requirements, a recess appointment just isn't made so close to an expected retirement, which is why this is so uncommon. Although apparently it was well known enough that no one apparently saw the need to challenge it, or solicit a Comptroller General opinion? If not in the military, I wonder if there had been more recent precedents in the civil or diplomatic service?

As an Air Force statute, 10 USC 8444 (70A Stat. 522), and the corresponding temporary wartime promotion law for the Army, 10 USC 3444 (70A Stat. 196), did not apply to Navy and Marine Corps officers like Glenn, Schirra, and Young, who were governed by the Navy statute, 10 USC 5787 (70A Stat. 366). The Navy law required even wartime temporary promotions to be executed through a special selection board that operated the same way as a statutory selection board, including separating officers who were passed over. Moreover, only certain provisions in the Navy law could be suspended during an emergency, which did not include 10 USC 5787. So the Appointments Clause was probably the cleanest mechanism for spaceflight promotions in the Navy and Marine Corps.

By contrast, the Army and Air Force laws were identical, and derived from the Army's WWII temporary promotion law which provided blanket authority to promote any qualified person to any temporary grade, without a selection board or any other restriction (which is how William S. Knudsen got promoted directly from civilian to temporary lieutenant general). Every Army and Air Force provision in the Officer Personnel Act could also be suspended during an emergency, making it easy to promote Air Force astronauts under 10 USC 8444.

Such substantive differences between legacy personnel systems inherited from the prewar Army and Navy were a strong motivator for the eventual DOPMA unification.

- Morinao (talk) 01:35, 6 January 2023 (UTC)

Thanks for the explanation--I completely missed the distinction between the services, although I probably would have figured it out eventually once I created a spreadsheet for all of the astronauts promoted under LBJ (haven't done that yet--might make an interesting infographic). Curious why such a substantive difference existed. Was it based on the perception that vacancies needing emergency backfill were more likely to occur in the Army? I mean, WWII was no picnic for the Navy (although Korea was very different, so perhaps that played a role?). Foxtrot5151 (talk) 03:39, 6 January 2023 (UTC)

I'm looking at the disputes over this matter in the early 1900s. Interestingly, it seems that the Comptroller initially ruled against pay being lawful for a recess appointment prior to confirmation (apparently in 1904): https://www.google.com/books/edition/The_United_States_Army_and_Navy_Journal/I1PcxRJnMfAC?hl=en&gbpv=1&dq=%22recess+appointment%22+%22pay+of+retired+officers+promoted%22&pg=PA1058&printsec=frontcover It appears that the Attorney General then ruled on the matter in 1905, and evidently the same Comptroller reversed himself and adopted the AG's opinion, and the 1904 ruling wasn't published in the digest. It's apparently a different case, but almost precisely the same underlying issue (an Army major was retired at the higher grade of lieutenant colonel under the act of April 23, 1904, but during a recess, so couldn't be confirmed by the Senate as required by the act). He said "if the act did not create an office and a vacancy to be filled by a recess appointment, then Major Fuller cannot become entitled to receive the higher pay until he has been confirmed by teh Senate, because it requires the joint action of the President and the Senate to vest in Major Fuller the right to hold the higher rank and draw the higher pay." Thus, "inasmuch as the right to receive the higher pay is dependent upon confirmation, and that pay cannot be drawn by Major Fuller until he is confirmed, there is no present pay to be paid..." I think this makes far more sense than the ruling that prevailed, because it otherwise overrides the Senate entirely. Foxtrot5151 (talk) 17:47, 6 January 2023 (UTC)

Ohio State came through--they graciously said they will scan up to 100 pages for free. Promotion order is not in there, but a memo for record from the USMC commandant (Greene), dated 16 Oct 64, effectively seems to function as the order. Says "Pursuant to the authority contained in reference (a), the President of the United States hereby appoints you a colonel in the U.S. Marine Corps, to rank from the sixteenth day of October 1964." Reference a: "U.S. Constitution, Art. II, Sec. 2, Cl. 2," and says it is a "Commission (Ad Interim)." Says "increased pay and allowances under this appointment accrue from 16 October 1964." On the recess implications, says only "This commission is issued during a recess of the Senate of the United States and will continue in force during the pleasure of the President for the time being, and until the end of the next session of the Senate." Makes me wonder if they even knew the full implications--Glenn had already written Greene asking to be removed from promotion board consideration due to pending retirement, but it's unclear if an exact date was discussed. Foxtrot5151 (talk) 19:21, 6 January 2023 (UTC)

The difference between the Army/Air Force and Navy/Marine Corps temporary promotion laws is somewhat path dependent. The Navy had managed to switch from promotion by seniority to promotion by selection in 1916, including the corollary requirement of separation of non-selectees. This was a hugely traumatic and difficult shift, but the Navy saw it as the only way to avoid the postwar humps that had clogged senior grades with aging officers after the Civil War. Even during WWII, the Navy was much more parsimonious with flag officer promotions than the Army, knowing that most of them would have to be eliminated in the anticipated postwar drawdown. And after thirty years of selection boards, the Navy thought it understood them, so it wanted to use the same mechanism for temporary promotions, even -- or especially -- wartime promotions.

By contrast, the Army only switched from seniority to selection boards in 1947, largely copying the Navy's approach. Because the system was so new to them, the Army wanted more relief valves, which is why their provisions of the Officer Personnel Act could all be suspended if they turned out not to work in an actual emergency.

Went looking for post-WWI retirements out of recess appointments, which are hard to identify. Perhaps Charles W. Pickering in 2004, depending on the mechanics of his retirement from the judiciary. Supposedly Ralph Van Deman received a recess appointment to major general in 1929 but retired without Senate confirmation:

Draft Nomination Submission, Sept. 4, 1929, Box 5, Nomination & Senate Confirmations Relating To Promotions Of Brigadier Generals And Other General Officers, 1914-51, Records of the Adjutant General's Office, Record Group 407, NACP (bearing handwritten notations that Van Deman was recess appointed, but that he then retired and was never nominated).

Better examples are the permanent four-star promotions of Carl Spaatz and Raymond Spruance in 1948. Congress passed a law authorizing one officer in the Army, Air Force, and Navy to be appointed to permanent four-star grade on the active list and retire at full pay (62 Stat. 1052). The law was drafted so that it could only refer to Spaatz, Spruance, and Omar Bradley (whose permanent four-star appointment became moot when he was promoted to permanent five-star general two years later).

(The bill actually got the constraints wrong, having been drafted by a Congressman without consulting the services, who were caught by surprise. But the intent of Congress was so clear in the Congressional Record, which identified Spaatz, Bradley, and Spruance by name as the intended beneficiaries, that it was decided that such inaccuracies didn't matter.)

The bill passed on June 26, 1948, only four days before Spaatz was scheduled to retire on June 30. Because the bill specified that officers had to be on the active list of the Regular Army, Air Force, or Navy, the Air Force hastily secured Spaatz a recess appointment to permanent general on June 28 so that he could retire in that grade.

Once Spaatz retired, an MFR on August 3 records that Army and Air Judge Advocates both recommended against submitting his recess appointment to Congress for confirmation, perhaps based on recent experience with the thousands of recess appointments made the previous year in the Army and Air Force to comply with a statutory deadline imposed by the Officer Personnel Act of 1947:

The Air Judge Advocate's Office...supported by the Army Judge Advocate, said the recess appointment of General Spaatz should not be sent to the Senate. All appointments requiring confirmation of the Senate made as recess appointments and having the officer subsequently retired during the same recess are not submitted to the Senate. In fact, the JAG stated that submission of such an appointment might result in a necessity for recalling to active duty such an officer in order to effect his retirement. Supposedly thinking behind this is, the President has the power to appoint an officer during the recess of the Senate and he also has the power to retire an officer. The appointment stays in effect therefore without being submitted to the Senate.

Spruance retired on July 1. I couldn't find his OMPF, but presumably he received a recess appointment to permanent admiral for the same reason. A nomination was submitted to the Senate on August 6, but the Senate adjourned only a day later, leaving it unconfirmed.

In late December, all three services coordinated nominations to appoint Bradley, who was still on the active list, and confirm existing appointments of Spaatz and Spruance, both retired. The DCS/Personnel assured Spaatz that this was an unnecessary formality:

This was not necessary in your case, but to be sure that there would be no hitches whatsoever and to have your appointment made a matter of record for Congress, we submitted your nomination for confirmation.

The nominations were submitted on January 13 and confirmed on January 27. Bradley was appointed permanent general on January 31.

- Morinao (talk) 09:12, 8 January 2023 (UTC)

Thanks, interesting story on Spaatz & Spruance. I'm not surprised that the JAGs didn't want to set a precedent with asking for confirmation if not needed. Applied to my case study, that suggests that LBJ was actually looking to confirm Glenn at the time the nomination was submitted, then knowingly switched to recess appointment and failed to inform Glenn of the precise mechanism.

I actually pulled some of Spaatz's papers at the LOC over a decade ago, but never got into this part of his career. Did you know that he actually changed his name at one point (adding an "a") to try and get people to say it correctly with an "aaah" pronunciation? I was only after a few specific events in the Spaatz papers, and I didn't have unlimited time. The first was the announcement by Hap Arnold in mid 1944 that the neutral landings were some form of cowardice, which Spaatz reacted strongly to--he actually called it "base slander." Then, after multiple bombings of Switzerland (by accident) which had already resulted in apologies and promises of reparations, George Marshall ordered Spaatz to travel to Switzerland in person to apologize to their defense minister, and this incident also resulted in a court martial of a lead pilot and bombardier (Balides & Sincock--there's an interesting book on this by Jackson Graholm, who was assisting the defense as an expert witness I think: https://www.amazon.com/Day-We-Bombed-Switzerland-Flying/dp/1840371358 ). Interestingly, the presiding officer was none other than Col Jimmy Stewart. Both men were acquitted of the charges. Foxtrot5151 (talk) 16:22, 8 January 2023 (UTC)

Finally got around to pulling that promotion law that applied to Spaatz and the others. Interesting for several reasons. First, the whole issue of never consulting the services and having the command dates wrong (for everyone involved, if I understood correctly) is mind-boggling. I'm not sure that I agree that the mere mention of the intended targets on the floor is dispositive, because the bill took great pains to define the eligibles only by command. It's been a while since I pulled a treatise on statutory interpretation, but I don't think that's a compelling argument they made. Perhaps, given that they had to resubmit for Senate approval, that the real question was simply whether Congress would balk or not, and if they really had intended the promotion of those individuals, then there would be no objection (which is what happened).

On the subsequent decision to submit a nomination after first intentionally bypassing, the timing is also interesting. Did you notice that it took until late January 1949 to actually confirm? As memory serves, that's probably the very end of the six month backside that you have to get a recess appointment confirmed within in order to cure it retroactively. If I'm right about that, then they barely got him in under the short suspense for his original promotion in June 1948, and then barely got it confirmed in January 1949. I think the real reason for the reversal is in the law itself, which isn't a typical authorization--it says "The President is further authorized, by and with the advice and consent of the Senate . . ." for each would-be promotee. So it's only a conditional authorization, because it expressly repeats the Senate confirmation requirement rather than simply a blanket authorization. My guess is that DoD lawyers figured that bypassing the Senate might invalidate the promotions if the law expressly stipulated that requirement. What's interesting is that of course that's nothing new, because it's always been in the Constitution, but repeating it verbatim in the law arguably invalidates the method DoD was using to bypass confirmation. Foxtrot5151 (talk) 15:58, 11 January 2023 (UTC)

Oops, was thinking about that emergency appointment authority with the six month backside on confirmation. Just looked up the regular backside, and it looks like the end of the subsequent session of Congress per the Constitution itself: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." So the Spaatz confirmation wasn't at the end of the window--they were probably just ruminating about it for several months. It's very interesting that Spaatz was told this wasn't necessary, since obviously they wouldn't have gone through with confirmation if they really believed this. Foxtrot5151 (talk) 16:19, 12 January 2023 (UTC)

I wonder if the rest of the story is in Spruance's OMPF (which apparently hasn't been digitized yet, although it is on the list)? Spaatz's nomination explicitly notes that he held a recess appointment, but not Spruance's. Did the Navy actually run the same fire drill as the Air Force to secure a recess appointment for Spruance less than a week before he retired? Or did they think they could just nominate him afterward as they did on August 6, not realizing the law required him to still be on the active list? It almost seems like a fluke that the Air Force even found out that the law had passed, so maybe the Navy didn't catch it in time.

It seems clear that the January 1949 nominations were driven by the other services, probably the Navy, since the Air Force didn't think Spaatz needed one. Either the Navy lawyers reached a different opinion than the Army/Air Force lawyers on the necessity of confirming a recess appointment, or else Spruance hadn't had a recess appointment and they were trying to slip him in anyway. It would be interesting to know when Spruance started drawing higher retired pay under the law -- in July 1948 when he retired, or January 1949 when he was confirmed? It sounds like Navy lawyers reached out to the other services when they prepared to renew Spruance's expired nomination in December. The Army was going to nominate Bradley anyway, having been able to wait for the new session since he was still on the active list. So maybe the Air Force thought it was better not to raise questions about why they thought the third officer covered by the law didn't need the advice and consent of the Senate like the other two, and figured that nominating Spaatz would be redundant but harmless.

I agree that LBJ probably tried to nominate Glenn the normal way, but submitted the nomination too close to the end of session, and had to fall back on a recess appointment instead. The Navy submitting Spruance's nomination the day before the end of session reminds me of a student emailing a teacher out of the blue for a letter of recommendation the day before it is due -- it's not surprising that Congress ignored it.

(I had heard about the Spatz/Spaatz name change, but not about bombing Switzerland! Thanks for the book recommendation, I'll have to look that up.)

- Morinao (talk) 21:25, 13 January 2023 (UTC)

Agreed, the joint nominations probably were driven by the Navy, which would've dragged the USAF to the finish line. That also indicates a spectrum of interpretation of recess appointment retirements generally, or at least as they related to that pinpoint legislation. Also curious how NARA decides to prioritize who is on the POEP list, and then who gets digitized. I read the fine print that the OMPFs are archival after 62 years, but there must be exceptions, because several for those deceased astronauts ended up there on a more expedited timeline (ex: Dick Scobee). On the nomination timeline, the astronauts who later received confirmations took about a month for the executive committee to report back and then to schedule a vote, so that's apparently a more realistic timeframe.

The Swiss reparations were a huge mess--the USAAF clearly just considered this unavoidable collateral damage, but it was getting embarrassing that they couldn't stop it. And it did impact Swiss policies, and probably led to some of their antiaircraft units shooting down US bombers when they didn't have to (as reciprocity). It later took an act of Congress in 1947 to settle all the open claims, which made for some really interesting reading. A crippled B-24 actually crashed into the ICRC president Max Huber's own residence (Schloss Wyden, as I recall), destroying it almost completely, which ended up being one of the largest individual claims. Foxtrot5151 (talk) 22:57, 13 January 2023 (UTC)

Found some modern photos of Schloss Wyden, completely rebuilt. There are some photos at the bottom that I recognize from the claims commission investigation: http://www.swisscastles.ch/Zurich/schloss/wyden.html Foxtrot5151 (talk) 23:04, 13 January 2023 (UTC)

Hershey

I've been reading the OMPR of General Hershey and it's astonishing - yet another promotion contrived to award an individual out of turn by the politicians. Hershey, as a retired officer on active duty like ADM Rickover (let's call them "The Old Geezers"), spent nearly 30 years as director of the Selective Service System with the rank of lieutenant general before being promoted to four-star general to serve as Presidential Advisor on Manpower Mobilization from 1970 to 1973. The reassignment was probably due to controversy regarding the Hershey Directive.

Unlike the affair with LBJ, it seems Hershey's promotion to GEN (initially a de facto tombstone promotion with a retired pay increase) was successfully toned down to resemble a by-the-books promotion i.e. normal promotion followed by retirement in grade and retired pay commensurate with highest grade achieved. Opposition to Hershey's retirement promotion by special legislation from the Department of the Army (the usual objections about singling out one man for promotion) seems to have made the final promotion specifically tailored to achieve what the special legislation would have anyway.

Here's the rundown of events:

• Initial memorandum to Special Assistant to SecDef, Mr. Joseph A. Califano from SecArmy Stephen Ailes (after Mar. 1965) - page 1, page 2
• Reply & memorandum to the CSA on special legislation to promote Hershey (7/4/1965) - memorandum
• BONUS: Statement of support for retirement promotion from California state senator - letter
• Memorandum for the White House (28/3/1959) - version 1, version 2
• First mention of a special four-star office for Hershey (8/10/1969) - memorandum. The six-month tenure was likely to give Hershey a statutory basis to recompute his retired pay to that of a four-star general, which was one goal of the special legislation avenue.
• Paperwork nominating Hershey for promotion through standard channels (circa Oct. 1969) - recommendation to President, nomination sent to Senate, public release
• Process within Senate Armed Services Committee (circa. Oct/Nov 1969) - notification to Senator Stennis, nomination reported favourably out of committee, confirmation by Senate on Congressional Record
• Execution of promotion by White House, backdating of DOR (circa Dec. 1969) - public announcement, memorandum(s) on delay, memorandum on promotion options. The intent here presumably was to link Hershey's promotion with actual assignment to his new position, rather than make the Selective Service System director a four-star for a short length of time.
• Actual promotion (between 1969 and 1970) - Department of the Army special orders with decided DOR, memorandum on final decision by White House, presidential order, reassignment orders
• Fact sheet on release of Hershey from duty to Special Assistant to SecDef Carl Wallace (circa Jan. 1973) - page 1, page 2, another page 1 (page 3 only explains his staff and privileges), another page 2
• Retirement process within military (circa Jan to Feb 1973) - memorandum to CSA, letter to DCSPER on recommendation that Hershey be retired as general, formal recommendation by Department of the Army, formal recommendation by SecDef, computation of retired pay
• Actual retirement nomination and execution (circa Mar to Apr 1973) - memorandum to CSA on White House announcing Hershey's retirement nomination, presidential memorandum sent to CINCs, formal retirement orders by Department of the Army

Hoping for discussion on these events, especially how they relate to the controversy surrounding the Hershey Directive. Here's some correspondence on how Hershey could have been promoted to LTG as early as 1945, had it not been nixed for the usual reason. Here's something similar from Hershey's home state of Indiana.

Interesting that there were some rumblings in 1961 calls to replace him with an Air Force colonel. More so that they came from Senator Stuart Symington, who was the first secretary of the Air Force (because there's no such thing as service biases [always has been]). Here's some additional documentation discussing the downgrade of the Selective Service director to major general. SuperWIKI (talk) 13:28, 2 January 2023 (UTC)

I went digging awhile back for the story behind the Hershey promotion, which was quite an outlier. It's amazing, he was so entrenched with Congress that he was able to extort a fourth star from the administration as his price for not making trouble when they fired him.

Burke, Bob; Thompson, Ralph G. (2000). Bryce Harlow: Mr. Integrity. Oklahoma City, Oklahoma: Oklahoma Heritage Association. p. 197:

Although Nixon was on record favoring an all volunteer army, reform of the draft was one of his highest priorities. The President proposed, and the Congress followed with swift approval, a draft lottery. Special presidential assistant Jonathan C. Rose was given White House oversight of the new lottery's implementation.

General Lewis Hershey, for three decades director of America's Selective Service System, hated the lottery and undermined Nixon's efforts to implement the plan. When Rose approached Harlow with the problem, Harlow's answer was straight and to the point, telling Rose, "It's very simple, you just remove Hershey." Rose believed the firing of Hershey was as remote as removing J. Edgar Hoover as head of the FBI. However, Rose passed Harlow's solution on to Haldeman, who said, "Great, I'll clear Hershey's firing with the President and we'll get Bryce to do it."

Harlow began a series of lengthy meetings with Hershey, finally negotiating a compromise that allowed Hershey to resign as head of the Selective Service System in exchange for a promotion to four-star general and appointment to the new post of Presidential Adviser on Military Manpower Mobilization. Harlow's most difficult task in the negotiations was to smooth over the elevation of Hershey to four stars with Defense Secretary Melvin Laird who did not perceive Hershey in the same category with other four-star generals such as Lucius Clay and George Patton.

Van Atta, Dale (2008), The Laird Legacy: A Biography of Melvin R. Laird. Marshfield, Wisconsin: Marshfield Clinic. pp. 347-348, 351:

The president suspected Hershey of actively working behind the scenes against the lottery legislation. Laird considered Hershey a friend, but he had not kept up with the times. "He was a fine man, but the time had come for a younger person in there," Laird recalled. "Most importantly, we needed someone who would get behind the lottery and the all-volunteer force. Hershey didn't think either of them would work. It was at my instigation that he was replaced."

In September Nixon tasked Bryce Harlow with the sensitive assignment of moving the obdurate seventy-six-year-old out of his job. It was a difficult thing for Harlow, who had worked with Hershey since the Eisenhower administration, and he was not happy with his friend Laird, who seemed to have foisted this firing on Harlow. Hershey failed to take the hint that it was time to leave, so Harlow began a series of tough meetings with him to explore how his resignation could be accomplished amicably. The old general was adamant; he would not voluntarily retire. Harlow knew that to many in Congress Hershey was a sacred cow, and an untimely fight would ensue if Hershey did not go quietly.

As the days wore on, though, Hershey saw the handwriting on the wall and decided to cut the best deal possible for himself. Though he might stand down from the Selective Service System, he said he must be given another related job of stature. Harlow proposed that he be presidential advisor on military manpower mobilization, a position created just for him; Hershey agreed. Hershey also insisted that he must be promoted from three-star to four-star general. That was trickier, and Harlow knew the only man who could pull that off was Laird. The army was likely to balk because there were only so many four-star slots in the force. Laird disliked Hershey's terms. Hershey had never served in a combat leadership role and was not on a par with the heroic four-star generals such as Dwight Eisenhower, Omar Bradley, Douglas MacArthur, George Patton, and Lucius Clay. But ever the pragmatist, Laird said that if that was what it took to remove the Hershey obstacle, then so be it. Laird was sure he could get the necessary approvals from the army and the Senate.

...

As presidential advisor, Hershey was frustrated that Nixon seldom called on him for draft-related advice. When he failed to win the president's ear, Hershey sent his former legislative liaison chief, Bernard Franck, to meet with members of Congress to urge them to oppose draft reform. Considering what an obstacle Hershey was, Tarr asked two White House aides why they just couldn't get rid of him once and for all. Both said it would be impossible to retire Hershey because he would raise a ruckus. "They agreed that they would continue General Hershey in his position until the Army clamored for the four-star slot that he occupies," Tarr recorded. When the army finally did that in April, 1973, seventy-nine-year-old Hershey still refused to resign, so he was involuntarily retired from the service; the only four-star army general in American history ever to have received that rank without having served in a combat role.

Flynn, George Q. (1985). Lewis B. Hershey, Mr. Selective Service. Chapel Hill, North Carolina: University of North Carolina Press. pp. 280, 299-300:

Many members of the White House team, including Bryce Harlow, Peter Flanigan, and Secretary of Defense Laird, hoped that Hershey would voluntarily retire after several strong hints. Hershey had no intention of making things easy. The job was his life, and he felt a responsibility to his descendants in Vietnam. As he wrote to his granddaughter, "I do not intend to offer a resignation for no other reason perhaps than a feeling that these are not the times that citizens of the United States ask to be relieved of difficult assignments."

Faced with this attitude, Flanigan and Harlow finally visited Hershey and explained that the president wished him to assume a new assignment. Hershey agreed to abide by the president's wishes. On 10 October he slipped into a side entrance at the White House, avoiding the press, and spent fifty minutes chatting with Nixon. True to form, not once did the president raise the distasteful topic of removal. Instead, the two men spoke of the general condition of the nation. With the interview over, Hershey again disappeared without confronting the press. He learned the details of his removal from a news release issued a few hours later by presidential press secretary Ron Ziegler....Hershey would remain at Selective Service until 16 February 1970, the fifty-ninth anniversary of his enlistment in the National Guard. In addition, he would be promoted to the rank of full general before assuming his role as presidential advisor.

...

With inductions ended, the time had come to clear Hershey out of his office. He had received his fourth star and been given a two-year grace period. With the press now concerned with other problems, including the Watergate scandals, Hershey's retirement was expected to receive little notice. On 25 January 1973, after the second Nixon inauguration and on the night of Lyndon Johnson's funeral, a White House staff member called Hershey and told him his job was ended. General Creighton Abrams, the chief of staff, assumed the responsibility for pushing Hershey into retirement. Undersecretary of the Army Kenneth E. Belieu arranged for an exchange of formal letters between Hershey and the president.

...

Almost a month passed before Hershey formally retired. He took a physical at Walter Reed Hospital which concluded that he was suffering from 90 percent disability and was unfit for further duty. A special bill was introduced in the Senate to insure that he would retire with the rank and pay of a full general. Finally, on 26 March 1973, a reception was held at Fort McNair so that he could bid farewell to his many friends in and out of Congress. The next morning he appeared in full dress uniform for a ceremony on the steps of the Pentagon....The ceremony over, Hershey retired to an obscure office in the Pentagon to await Senate approval of the special bill. The official date of his retirement was 10 April 1973. He had concluded sixty-two years of active military duty.

- Morinao (talk) 09:15, 5 January 2023 (UTC)

Daniel James Jr.

It says here that General Daniel James Jr. served as a special assistant to the chief of staff of the Air Force from Dec. 1977 to Feb. 1978. Do we have any confirmation that he served in the role while a four-star general, similar to Michael J. Dugan (if it is true he served as a special assistant to the secretary of the Air Force at four-star grade, per the four-star generals list)? Pertinent to List of United States Air Force four-star generals. SuperWIKI (talk) 00:43, 21 October 2022 (UTC)

The second link you provided says he retired from the Air Force on 1 February 1978 due to health reasons. It stand to good reason that he was in uniform while serving. So yes, the assignment should be added to the list. Neovu79 (talk) 05:04, 21 October 2022 (UTC)

Was concerned that James could've been reverted to major general upon relinquishing NORAD. SuperWIKI (talk) 05:10, 21 October 2022 (UTC)

James was serving as special assistant while awaiting retirement per congressional communication on 25 January 1978. On 1 February 1978, the day of his retirement, Congress passed a resolution to honor him. Both the House (H.Res.1053) and the Senate (S.Res.406) passed resolutions of his death. All communications use his four-star rank. Even though 10 U.S.C. § 601 did not become effective until 15 September 1981, prior to that, a four-star officer could still hold onto their rank while awaiting retirement, or up to 60 days, while in transition to their next four-star assignment. Neovu79 (talk) 06:14, 21 October 2022 (UTC)

Right. Thanks! SuperWIKI (talk) 06:18, 21 October 2022 (UTC)

James wouldn't have reverted to two stars even after relief from NORAD. Before DOPMA abolished temporary grades in 1981, the Army and Air Force appointed three- and four-star officers to temporary personal grades that persisted until vacated by the President, so only their initial promotions had to be confirmed by the Senate, not subsequent reassignments within that grade, and they also didn't have to revert to a lower permanent grade while transitioning between assignments (unlike the Navy and Marine Corps, who didn't have this authority). This explains why Abrams kept his four stars for months between his relief as COMUSMACV and confirmation as CSA, Sam Walker in a do-nothing job while waiting to retire, and Chappie James when he had to give up NORAD after his heart attack.

- Morinao (talk) 06:36, 21 October 2022 (UTC)

20th PSC

China's 20th Politburo Standing Committee was unveiled today. I've updated the graph on the PSC Wikipedia page for you. SuperWIKI (talk) 05:40, 23 October 2022 (UTC)

Thanks for updating that. It's a really interesting, and maybe not unexpected outcome, although not necessarily as permanent as it might seem. It actually reminds me of the election of Benedict XVI, when everyone assumed he would pack the College of Cardinals with enough like-minded electors to lock in conservative successors in perpetuity. And then he abdicated and they elected Francis.

It would be nice to have a timeline of the full Politburo, which has only had a couple hundred members, so on the same order as one of the four-star officer lists. I did this once for the Soviet Politburo, but it ran afowl of a since-blocked article owner who insisted on separate lists for each decade, and I didn't care enough to contest it (and the version you are working on seems richer in detail anyway). But it was possible to find published lists of all the Soviet Politburo members and tenures, and I haven't been able to find a comparable English-language source for the Chinese Politburo.

Since age is such an important criterion for PSC eligibility and above (at least until this year), it would be interesting to plot the lifetimes of each member overlaid with their tenures on the Politburo. Then the anointed successors really pop out (Hu Jintao, Xi Jinping, Li Keqiang), especially when the succession fails (Wang Hongwen, Hu Chunhua, Sun Zhengcai).

- Morinao (talk) 20:31, 2 November 2022 (UTC)

Goldwater-Nichols hearings

@Morinao, Foxtrot5151, and Neovu79: Pinging all who have some general experience with promotions, Department of Defense structuring and military experience. Due to Foxtrot's in-depth research into the promotions of General Ira C. Eaker and Jimmy Doolittle, I have almost completed watching relevant C-SPAN hearings by the Senate Armed Services Committee on the drafting of the Goldwater-Nichols Act. I have only watched the ones with Secretary of Defense Caspar Weinberger, the service chiefs (Wickham, Watkins, Kelley, Gabriel), CJCS William J. Crowe (10 weeks into his term) and USCINCEUR/SACEUR Bernard W. Rogers. I've also begun reading the Congressional Record covering these hearings.

Some fun observations, this is the first time I've heard Senator Barry Goldwater, SASC chairman, as well as ranking member (and future chairman) Sam Nunn, speak at length. Senator Strom Thurmond often speaks first at these hearings up to the late 1990s, probably by virtue of being president pro tempore.

Mainly, I want to discuss how change-resistant the Department of Defense is being and how that mentality could still apply today, as well as some universal points:

• The immediate cause of Goldwater-Nichols, Operation Eagle Claw, was mentioned surprisingly little.
• The service chiefs are universally against a strong vice/deputy chairman of the Joint Chiefs of Staff and want to retain their status as rotating acting chairmen, partly for the sake of joint experience. GEN Rogers, representing the CINCs, supports a strong VJCS.
• If GEN Rogers is any indication, combatant commanders and service secretaries are diametrically opposed in that the former want to weaken or eliminate the service secretaries while the latter want to strengthen their own offices.
• Some related criticism that the OSD is peanuts compared to the Joint Staff in duplication of duties rings true, even today.

I start the discussion this way. What are your thoughts? SuperWIKI (talk) 15:15, 4 November 2022 (UTC)

I agree with all of your observations and the background for Goldwater-Nichols, but don't really have much to add, unfortunately. Foxtrot5151 (talk) 17:12, 5 November 2022 (UTC)

Bureaucracies resist any encroachment on their territory from new players. So the service chiefs were always going to oppose the creation of a strong vice chairman as a competing power center. Organizations also prefer incremental change as less disruptive to ongoing operations, so will naturally resist drastic overhauls on the scale of Goldwater-Nichols, which typically have to be imposed from outside. The creation of the Space Force is probably the best recent example.

There is also Miles' Law: "Where you stand depends on where you sit." Rogers may have supported a strong joint organization as a CINC, but I bet he was singing a different tune as CSA. Even in the 1980s the service chiefs were still nostalgic for the pre-1958 days when the CNO could directly order ships to sail.

- Morinao (talk) 22:20, 5 November 2022 (UTC)

Colin Powell nomination hearing

If you and @Foxtrot5151: are interested, I've obtained a digital copy of Colin Powell's nomination hearing testimony to be chairman of the Joint Chiefs of Staff from the NARA legislative archives. Surprisingly, that hearing, or the overall document it's part of, doesn't have a freely-accessible digitised document on any website yet, including subscription-based ones according to the employee who responded to me. For Foxtrot, I can send it to that "old anonymous email" you mentioned a while back. SuperWIKI (talk) 13:10, 22 November 2022 (UTC)

Sorry, I missed your message until now (this page has quite a bit of content as of late). Sure, I would take a look. I'm ambivalent about Powell, as I think he had some strong core principles, but ultimately will always be known as the person who became the administration's tool to justify the invasion of Iraq. Ironic, because he's the guy who came up with the so-called Powell doctrine. Foxtrot5151 (talk) 00:08, 3 December 2022 (UTC)

You have that anonymous email on standby? SuperWIKI (talk) 00:50, 3 December 2022 (UTC)

Here it is: cadet1.geo@yahoo.com Foxtrot5151 (talk) 03:20, 5 December 2022 (UTC)

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Questions about requesting Army general officer portraits

Currently looking for, among other things, high-definition versions of Trevor J. Bredenkamp's portrait and Patrick E. Matlock's portrait. These portraits were sourced from the General Officer Management Office's website, which has a distinct lack of high-definition official portraits. Have had no response from Army Public Affairs, GOMO's public affairs branch. I have not yet contacted DVIDS (the Defense Visual Information Distribution Service) for them (they are mentioned in the photo metadata). I have contacted their parent agency DIMOC (the Defense Imagery Management Operations Centre) for portraits before but they usually refer me to NARA, which only archives photos which are taken before 1982.

My other option is the various Army, Navy, Marine Corps, Air Force and Space Force portrait studios. The most prevalent source of general and flag officer portraits is the Army portrait studio in the Pentagon. My question is, aside from the Pentagon's public affairs department, who I will contact shortly, is it advisable to directly email Richard K. Osburn, Chief, Army Photography Division Army Multimedia and Visual Information Directorate (AMVID), or directly email William Pratt and Leonard Fitzgerald, the Army portrait studio photographers? Their names and emails are in the image metadata. SuperWIKI (talk) 01:06, 15 December 2022 (UTC)

P.S. This question is because you and Foxtrot have, if I'm correct, some experience contacting government entities and thus may have knowledge of proper decorum. Not many people I can consult on this matter. SuperWIKI (talk) 03:58, 15 December 2022 (UTC)

Unfortunately I generally have not made the effort to contact government agencies directly, usually working from public libraries and similar resources, so I can't offer any advice on how to work this system.

- Morinao (talk) 07:02, 16 December 2022 (UTC)