APPLICATION FOR ACTIVE DUTY DETERMINATION FOR MEMBERS OF THE AMERICAN MERCHANT MARINE WHO SERVED IN THE KOREAN AND VIETNAM CONFLICTS

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Clifford Gilbert
5 years ago
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1 APPLICATION FOR ACTIVE DUTY DETERMINATION FOR MEMBERS OF THE AMERICAN MERCHANT MARINE WHO SERVED IN THE KOREAN AND VIETNAM CONFLICTS

2 Department of the Air Force September 25, 2013 DoD C/MSRB SAF Personnel Council 1500 West Perimeter Road, Suite 3700 Joint Base Andrews NAF MD Subject: Application for Active Duty Determination DOD Directive I am proud to submit this application for active duty determination under the cited directive for members of the American Merchant Marine who actively served in the Korean and Vietnam Conflicts and who certainly deserve this recognition. The service of those brave men in Korea and Vietnam mirrors in almost all circumstances the American Merchant Marine service approved for WWII service. That WWII service was earlier recognized as equivalent active military service. I had previously written about that lack of recognition issue, so now I am also asking that the Department of Defense give proper recognition to the members of the American Merchant Marine who so valiantly served their country in Korea and Vietnam as well? I am preparing this application not only as a veteran of American Merchant Marine WWII service but also as a member of the American Merchant Marine Veterans (AMMV) Organization. This application has no effect on benefits accrued to myself as a USAF Retiree. I am submitting it at the request of AMMV President Morris Harvey and the 5000 seamen exposed to Agent Orange who need specialized VA medical treatment. We strongly believe that it is an issue of fundamental fairness since there is no clear distinction, other than exposure to Agent Orange, between American Merchant Mariners service in WWII, Korea and Vietnam. Veterans who were exposed to Agent Orange or other herbicides during service in these combat zones deserve veteran status for professional medical treatment. Agent Orange is a blend of tactical herbicide the US military sprayed in the jungles of Vietnam and around the Korean militarized zone to remove trees and dense tropical foliage that provided the enemy coverage. Also, it has become apparent in preparing this application that all of the enumerated items of evidence required make compliance with the directive practically impossible. Consultation with some who have legal experience with such matters leads to the inescapable conclusion that the directive itself, and it s impossible requirements are arbitrary and capricious. While we do not fault you personally for this situation, it is apparent that should this application be rejected, as one must conclude it will be, the next step must be litigation to have the directive thrown out. It must be our argument that impossibility of compliance by an applicant is at least as onerous as having no standards at all. In compliance with instructions received from the Executive Secretary the following information is respectfully submitted: FOR WHOM IS THE APPLICATION BEING SUBMITTED? This is the second and possibly the last application submitted by this office for approximately 5000 seamen exposed to Agent Orange. Individual members of the American Merchant Marine who can establish their service during the period designated as the duration of the Korean and Vietnam conflicts. A subsequent class action application will be filed judiciously for the estimated declining number of seamen, similar to the successful case in 1988.

3 See the GI Bill Improvement Act of 1977(PL ) and for before 1977 PL See TAB 1 and Agent Orange Photos. The regulations concerning the designation of active duty status have undergone revision over the years. Changes and clarification to the regulations implemented in 1989 stem from a Federal Court determination (Schumacher v. Aldridge) that the Department of Defense had failed to clarify factors and criteria in their implementing directive concerning P.L The 1989 regulations remain in effect. See Congressional Research Service Report of Jan, 2012 TAB 2. WHAT IS THE SERVICE THAT WILL ESTABLISH A PRESUMPTIVE ENTITLEMENT TO DESIG- NATION THAT THE SERVICE RENDERED WAS IN ESTABLISHED RESPECTS, THE EQUIVALENT TO ACTIVE DUTY SERVICE IN THE MILITARY? The Military Sea Transport Service (US Army) and the United States Military Sealift Command (US NAVY) has the responsibility for providing sealift and ocean transportation for all US military services as well as for other government agencies. All merchant ships with war material traveled under Sealed Military Orders. See Military Sealift Command TAB 3 and THE JONES ACT TAB 4. WHERE WAS THE SERVICE RENDERED? The very nature of the Merchant Mariners service makes this a difficult question to answer. They served on ships that sailed the seven seas, so to speak, picking up and delivering war material from and to wherever the national command authority directed. Military Service in and around combat areas will also be developed, under conditions that were strikingly similar to combat as the ships utilized were under constant attack on numerous occasions from the invasion of Inchon Harbor in Korea and as US Air Force storage vessels under fire in the rivers of Vietnam. See highlighted portions of TABS 5, 7, 8, & 9. And Military Command Orders and Military Field Correspondence Papers attached. WHEN WAS THE SERVICE RENDERED? 38 Code of Federal Regulations (CFR) Part 2, Periods of War, provides in sub-paragraph (e) that the period of the Korean conflict to be June 27, 1950 through January 31, 1955, inclusive. In sub-paragraph (f) the Viet Nam era is defined as the period beginning February 28, 1961, and ending on May 7, 1975, inclusive in the case of a veteran who served in the Republic of Viet Nam during that period. The various TABS attached provide numerous examples of Merchant Marine personnel KIA or wounded serving in Harms Way during these time periods. The individual applying for benefits should this application be approved, would be required to establish their service at a time and place that would establish their eligibility for approval. WHY WERE THE SERVICES OF THE MERCHANT MARINERS UTILIZED BY THE NATIONAL COMMAND AUTHORITY? By Law, in times of National Interest, Merchant Shipping Command became the sixth military force in support of the armed forces. The most extensive and concise treatment of this issue is in the Wikipedia Encyclopedia Military Sealift Command TAB 3. Although the answer is obvious to anyone with a military background, this article is a great summary. See also TABS 6, 7 and 9. The following information is submitted in support of the requirements of DOD Directive (herein after referred to as the directive): Subparagraph INCIDENTS FAVORING EQUIVALENCY: Sub-paragraph UNIGUENNESS OF SERVICE; The members of the American Merchant Marine were in large degree comprised of military trained Americans who were rejected by military recruiters as too young to serve in active military, those who were physically unqualified as determined by military medical personnel for service and those spirited great men too old to qualify for active service. Sub-paragraph The American Merchant Marine Foundation is the Jones Act, Section 27 of the Merchant Marine Act, 1920, as amended, 46 App. U.S.C See the summary that was pub-

4 lished in the SUMMER 2012 issue of the AMMV News Magazine, TABS 4 & 7. Sub-paragraph COMPARATIVE GROUP IN SERVICE: In this case the merchant seamen did not have a comparative group other than previously approved mariners. The question is whether the service clearly provided in Korea and Vietnam combat zones is to be recognized as equivalent to active duty service? In support of the argument see TAB 9. Sub-paragraph ORGANIZATIONAL AUTHORITY OVER THE GROUP: A good faith attempt was made to meet this requirement, however, conclusive documents that would provide evidence of the Merchant Marine being subject to military command authority and to what degree, are still classified. Several Military Combat Area and Port Authority Orders are included to add credibility to the assumption that all men, equipment and service operations were under military command. It is assumed that the movement of merchant marine vessels to meet the needs of the military in combat is not something the government wants revealed. Operational principles and methods are the normal facts protected. However, there is sufficient individual documentation to draw a positive conclusion military command over ships and crew was always present. Please see the exploits of M Nottingham in Korea at TAB 5. Also TAB 7 is an interesting narrative of the exploits of RADM J Robert Lunney, NYMM (Ret). See also TABS 9 and 10. Sub-paragraph INTEGRATING INTO THE MILITARY ORGANIZATION? Transporting military personnel and supplies under Naval Sailing Orders and assignment of US Army port positioning and unloading orders were by military command. Numerous pages of Military Command Orders are presented including the ships and crews of the US Merchant Marine. See appointment by General Order Number 1, of Merchant Mariners by Military Commanders? Sub-paragraph SIMPLE EXAMPLES: See TABS 7 & 8. Military Command Dispatches. Sub-paragraph EXCHANGING MILITARY CORTESIES: Military Courtesy in Korea and Vietnam left a lot to be desired and was difficult by all services to constrain. However, maritime crews were disciplined and if violated were necessarily punished by Captain s Mast. Other Incidents of charges filed by the combined Military Commander and Maritime Service under the UCMJ similar to active duty members are a matter of record. Sub-paragraph WEARING MILITARY CLOTHING, INSIGNA AND DEVICES: Merchant Mariners were in uniform and wore the military style clothing issued to them. Sub-paragraph ASSIMILATING THE GROUP INTO AN ORGANIZED MILITARY UNIT OR STRUCTURE: This begins with USMM Academy, Coast Guard Boot Camps, State Merchant Marine Academy s, various boot camps and military training that continued throughout seamen s career. See TABS 5 and 6. Sub-paragraph EMOLUMENTS ASSOCIATED WITH MILITARY PERSONNEL: Use of Area Commissaries, Exchanges and Membership in Military Clubs were authorized by the Zone Combat Commander. See attached TAB 10 for documented proof. Sub-paragraph INTEGRATED INTO THE MILITARY WOULD GIVE THE IMPRES- SION THE GROUP WAS MILITARY EXCEPT PAID AS CIVILIANS? See TAB 7. Active Merchant Marine Crews in combat areas received their operating orders by the ships Captain as received from the local military commander and or otherwise were allowed to volunteer their participation in combat situations. IE: Replacing downed security guards or wounded gun position crew members. Sub-paragraph EXPECTATION THAT THE GROUP WOULD IMMINENTLY BE REC- OGNIZED AS ACTIVE MILITARY SERVICE: Uniformed Seamen accepted the combat conditions presented with fellow members of the armed forces and received both verbal and written awards for their steadfast support position from the Military Organization the seamen stood shoulder with in combat.

5 Sub-paragraph SUBJECT TO MILITARY DISCIPLINE: Examples See TAB 8. Merchant Seamen subjected to the Uniform Code of Military Justice seems dispositive of the issue. Of those cases on record, one case of Trial by UCMJ was subsequently overruled by a higher military authority as is becoming customary in the armed forces. Sub-paragraph COMPLYING WITH MILITARY COMMAND CURFEW:.1 Merchant Crews complied with and respected all local military curfews..2 Which Includes ordering crews to work extended unusual shifts;.3 Exchanging military guard duty assignments;.4 Restricting shore leave and travel to and from, and;.5 Imposed military shore leave dress codes and grooming standards. Sub-paragraph CONSEQUENCES: May include loss of privilege, brig or military confinement, dismissal, Captain s Mast or trial by Military Law under the UCMJ. Sub-paragraph SUBJECTION TO MILITARY JUSTICE; See TAB 8 and Military Command Orders: Sub-paragraph PROHIBITION AGAINST JOINING THE ARMED FORCES: This type of honorable patriotism was previously stated, however, it is worth repeating; Under aged or draft aged kids deferred until needed in the military who couldn t wait to get into the action or infirm individuals along with old men who were rejected from entering the Armed Forces. This was covered in Sub-paragraph above. Sub-paragraph MILITARY TRAINING: Military training in weaponry, survival and supplementing gun crew positions was continually provided by the US Navy and US Coast Guard. Sub-paragraph INCIDENTS NOT FAVORING EQUIVALENCE: This application does not apply to Merchant Mariners whose only service was seaside duty in the US. Sub-paragraph SUBMISSION TO THE US FOR PROTECTION: American Ships are self-sovereign, armed and merchant mariners serve in secondary Armed Guard positions. All others were protected by the US under contract. Sub-paragraph ARMED BY THE US FOR DEFENSIVE PURPOSES: (My note: Consider for the moment how stupid this is. If you were provided arms by the military and use them to defend a ship from attack, you are out!) Seamen defended their ship along with US Army Security Personnel stationed onboard, from swimmers planting explosives, receiving fire from shorelines and others from attack individually and while supplementing Armed Guard Crew fighting positions. Sub-paragraph MERCHANT SHIPS WITH WAR MATERIAL CARGO WERE ROUT- ED BY THE US MILITARY TO AVOID THE ENEMY: As previously stated all ships with war materials were armed and sailing with Sealed Naval Orders. Sub-paragraph INSTRUCTED BY THE US FOR DEFENSE: Again, as previously stated all crew members received armament training in USMMA, Boot Camps and frequent boat gun drills. Each ship was armed and each gun placement had a merchant crew manning the gun. Sub-paragraph OTHERWISE SUBMITTED TO THE US FOR SUBSTENANCE AND PROTECTION: I have to question how this applies to this application. Our US ships were the Super Markets, if you will, protected independently by and for all military and civilians assigned onboard during these conflicts! Sub-paragraph PERMITTED TO RESIGN: According to maritime policy and agreement, Merchant Seamen logged on at their home port and were only permitted to Log Off when host ship returned to home port. The only exception that I know of would be when charges under the UCMJ were pending

in the combat area. Sub-paragraph 4.2.2.3 PRIOR RECOGNITION OF GROUP SERVICE: 3.1 Merchant Seamen, BLOCKSHIPS WWII 1985 US ARMY 3.2 Merchant Seamen, Oceangoing, WWII JAN 1988 US COAST GUARD 3.

3 STATUS OF GROUP IN INTERNATIONAL LAW: It has been previously adjudicated that the attached JONES ACT clearly outlines how Merchant Marine responsibilities change from peacetime to wartime active

6 in the combat area. Sub-paragraph PRIOR RECOGNITION OF GROUP SERVICE: 3.1 Merchant Seamen, BLOCKSHIPS WWII 1985 US ARMY 3.2 Merchant Seamen, Oceangoing, WWII JAN 1988 US COAST GUARD 3.3 Army Transport Services, WWII JAN 1988 US ARMY (ATS) Sub-paragraph STATUS OF GROUP IN INTERNATIONAL LAW: It has been previously adjudicated that the attached JONES ACT clearly outlines how Merchant Marine responsibilities change from peacetime to wartime active duty in times of National Security. *This concludes our Second Formal Veteran Status Application for American Merchant Mariners who seek approval for active duty and recognition for their military services in Korea and Vietnam. The service of all personnel acting in defense of our country is appreciated. Thank you for your indulgence in this matter and request you acknowledge receipt of this application in letter form and subsequent delays, approval/disapproval by certified mail. Kindly direct your questions and comments to AMMV Veterans Status Task Force Leader Dr. Kerkow. Sincerely, APPROVED: DR. LAWRENCE W. KERKOW MORRIS HARVEY, NATIONAL PRESIDENT AMMV Veterans Status Task Force Leader AMERICAN MERCHANT MARINE VETERANS 201 Trudy Lane 8055 Dacca Terrace Universal City, Texas Dunnellon, FL PH: Cell: PH: FAX:

7 INDEX OF TABS ON APPLICATION OF MERCHANT MARINERS FOR RECOGNITION OF ACTIVE DUTY EQUIVALENT SERVICE TAB 1 TAB 2 TAB 3 TAB 4 TAB 5 TAB 6 TAB 7 TAB 8 TAB 9 TAB 10 TAB 11 TAB 12 TAB 13 CRS Report for Congress, Congressional Research Service, Subject: Veterans Benefits: Merchant Seamen December 23, CRS Report for Congress, Congressional Research Service, Subject Who is a Veteran? Basic Eligibility for Veterans Benefits, January 23, Wikipedia Fee Encyclopedia, subject: Military Sealift Command, 8/7/2012. Pages 1 thru 13. AMMV NEWS MAGAZINE, Summer 2012, page 19. The Jones Act- The Foundation of the Merchant Marine. Case file on Commander M. Nottingham, Merchant Mariner during Korea Conflict, various dates, beginning with Special Order No. 1, Military Advisory Group. US Merchant Mariners in the Korean War. Milton G. Nottingham, Jr., August 2, This summary is separated from the documents in TAB 5 as it is a summary. Copy of speech by J. Robert Luney, RADM, NYMM (Ret) with forwarding , November 5, 2012, Subject: SS Meredith Victory. American Merchant Marine at War, U.S. Merchant Marine Military Sea Transportation Service and Military Sealift Command in Vietnam. American Merchant Marine at War, US Merchant Marine, Military Sea Transportation Service, and Military Sealift Command in Vietnam. American Merchant Marine at War, Merchant Ships used in the Korean War. President Truman Praises Merchant Marine. American Merchant Marine at War, Korea: The First Shot. Military Sea Transportation Service in Korea War by Salvatore R. Mercogliano. Memorandum from Radio Operator John Chow undated with attachment. Military credits to Merchant Marine Officers. Miscellaneous

8 USNS Antares TAB 1

23 USNS Bob Hope TAB 2

32 USNS Observation Island TAB 3

35 SS Petersburg TAB 4

37 USNS Red Cloud TAB 5

40 MV Cape Trinity TAB 6

44 MV TSgt John A. Chapman TAB 7

51 USS Shasta TAB 8

82 USNS Comfort TAB 9

93 TAB 10 USNS Able

96 MV Maj. Bernard F. Fisher TAB 11

100

101

102 USS New York TAB 12

103

104

105

106 USNS Carl Brashear TAB 13

107

108

109

110

DEPARTMENT OF HOMELAND SECURITY BOARD FOR CORRECTION OF MILITARY RECORDS

DEPARTMENT OF HOMELAND SECURITY BOARD FOR CORRECTION OF MILITARY RECORDS Application for Correction of Coast Guard Record of: BCMR Docket No. 2002-094 FINAL DECISION Ulmer, Chair: This is a proceeding