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Kentucky Mudslinging: Accusations Without Evidence

GOP Rep. Lewis accuses his opponent of "disgraceful conduct" even though multiple investigations cleared him years ago.

October 22, 2006

Modified: October 22, 2006

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Summary

Republican Rep. Ron Lewis of Kentucky attacks his opponent, retired Army Col. Mike Weaver, with an ad saying the Democrat is "not fit for duty in Congress" because of a National Guard pay-for-promotion scandal that goes back 14 years. The ad accuses Weaver of "disgraceful conduct," and Lewis even said at a campaign stop that Weaver "broke the law."

But Lewis offers no proof. In fact, multiple investigations by the FBI and the Army Inspector General's office  resulted in criminal convictions of two Kentucky National Guard officials but never accused or implicated Weaver, who was the only career Army officer on a three-man National Guard board charged with recommending veteran officers for retention or retirement. Furthermore, a review by the Kentucky Department of Military Affairs concluded that Weaver specifically "took no part in the fund-raising or other political activities" that were involved in the scandal.

Analysis

When Rep. Lewis announced this ad in an Oct. 13 news conference he called for Weaver to drop out of the race saying he "shouldn't be elected dogcatcher." As evidence, however, he offered reporters only a fistful of old newspaper clips, none of which even suggested Weaver had engaged in anything illegal or unethical.

 Ron Lewis for Congress: "Not Fit for Duty"

Announcer: The pay for promotion scandal. Kentucky National Guardsmen up for promotion are forced to make political contributions.
Twenty-four Guardsmen refuse . . .

(On screen: Apparent newspaper headlines: "Ex-Guard officer gets probation." "Guard colonel admits illegal fund raising.")
Announcer: . . . then Mike Weaver's retention board recommends the dismissal of these Guardsmen.
(On screen: Two more apparent newspaper headlines layered on the first ones: "Probe continues into contributions by Guard members," "Politics seeped into Guard's ranks.")

Announcer:
The FBI is called in to investigate.
(On screen: Weaver's Retention Board Recommends Dismissal of Guardsmen next to stark black and white photo of Weaver)
Announcer: Weaver's superiors go to jail and Weaver admits he was instrumental in firing the Guardsmen.
(On screen: Weaver 'Instrumental' in Firing Guardsmen next to black and white photo of Weaver)
Announcer: Col. Weaver, disgraceful conduct, not fit for duty in Congress.
(On screen: Colonel Weaver -- Disgraceful Conduct next to black and white photo of Weaver talking)
Lewis: I'm Ron Lewis and I approve this message.
(On screen: Color shot of Lewis with apparent veterans)
(Paid for by Ron Lewis for Congress)

Scandal in the Guard

Weaver was the only career Army man on a three-man "Selective Retention Board" (SRB), there as the US Army's senior adviser to the State of Kentucky . His two colleagues were selected by the commander of the state National Guard. The board recommended 32 National Guard officers be forced to retire to make way for younger personnel, more than had been listed in previous years. Some of those forced out complained that they were being punished for not contributing to the campaign of Brereton Jones, a Democrat who had been elected governor in November 1991.

What followed were three investigations, one by the Army Inspector General which resulted in no action, another by the Federal  Bureau of Investigation, and yet another by the Army I.G. A National Guard colonel named Clifford Childers pleaded guilty in federal court to promising career-enhancing opportunities to a fellow officer in exchange for a $500 campaign contribution for Jones. And Robert DeZarn, who was Kentucky's Adjutant General (commander of the state's National Guard) when the 1992 SRB met, was convicted of perjury in connection with the first Army probe. However, none of those investigations produced any public showing that Weaver acted improperly. The  FBI showed no interest in him. He wasn't even interviewed, he said.

"I was the one"

The attack ad is correct when it says Weaver stated that he was "instrumental" in firing the Guardsmen. However, there's no evidence that Weaver was motivated by politics. His job was to clear out the weakest officers to allow promotion of younger or more competent officers, and he says he did that with vigor.  In 1995, Weaver told the Courier-Journal that "I was the one pushing the hardest" to remove the 32 officers. But he also said that politics played no part in his own decisions, and we've seen no evidence that would contradict him. Weaver had good reason to look critically at officer performance. In the Gulf War the previous year, some units of the National Guard were criticized for their lack of combat readiness, a failing that was laid at the feet of the Guard's officers.

The Army IG's second probe relied in great part on the FBI's investigative work and information that came to light as a result of Childers' cooperation with authorities and DeZarn's trial. The Army IG eventually concluded that several state Guard officials, besides the two who were convicted, had engaged in misconduct as part of a fundraising effort for Gov. Jones, and that some had given false information in an attempt to cover up their deeds. But the Army investigation didn't find any wrongdoing by the SRB on which Weaver sat:

Army IG Report: Testimony/evidence gained as a result of the FBI investigation and subsequent Federal grand jury trial [sic] did not corroborate a connection between soliciation/collection of campaign contributions and the results of the SRB.

Notwithstanding the findings of all these investigations, 15 of the officers who had been forced to retire applied to the Army Board for Correction of Military Records for reinstatement, back pay and other relief. The Correction Board did not conduct its own investigation, but simply reviewed material that was submitted by the aggrieved applicants. In 1999, it found in the case of one of the applicants that the Kentucky National Guard leadership's "entanglement of partisan politics, official military duties, and obstruction [of the first IG's] investigation into the relationship between those illegal political activities and the 1992 Selective Retention Board constitutes grounds for a loss of confidence in the fairness of the administration of the 1992 [Kentucky National Guard] SRB." The Correction Board found in favor of 14 of the applicants.

We'd note that even the Correction Board's review of evidence handpicked by the officers who felt they'd been wronged did not conclude there had been misconduct by the members of the SRB, though it did say there was grounds for a "loss of confidence" in its work.

The Kentucky National Guard, as it turned out, had not even been notified that the Correction Board was doing a review. When it was informed of the results, the new Adjutant General, Brig. Gen. D. Allen Youngman, ordered a review of all the evidence available from all the investigations. His office, Kentucky's Department of Military Affairs, produced a 2002 memo refuting the Correction Board's results.

The Department of Military Affairs memo noted that:

DMA Memo: Applicants were unsuccessful in convincing the FBI or the [Inspector General] of a connection between the obvious criminal misconduct that occurred in the 1990-91 fund-raising and the 1992 SRB. As the [Inspector General] concluded in its 28 January 1999 final report to the Vice Chief of Staff, Army, "the preponderance of evidence did not support the allegations that senior officials of the [Kentucky National Guard] had acted improperly in conductiing the 1992 SRB."

The memo also stated that "there were valid reasons for the non-retention of each of the Applicants and....their right to fair treatment was in no way violated."

And regarding Weaver specifically, the memo said that:

DMA Memo: [W]hile Applicants may argue (despite the lack of supporting evidence) that one or both of the other two members were improperly influenced by political matters, no such accusation can be made concerning Colonel Weaver who took no part in the fund-raising or other political activities. It is equally clear that he took seriously his responsibility as Senior Regular Army Advisor to assist the Kentucky Army National guard in maintaining the best possible officer corps.

The memo also said that "clearing out deadwood," which is what Weaver told another officer he wanted to do on the SRB, was "the precise purpose of the Selective Retention Program," and didn't indicate any improper motives on Weaver's part.

In fact, FactCheck's analysis of numbers provided in the Department of Military Affairs' memo shows no pattern of promoting donors and punishing non-donors. One hundred and forty three officers, all of whom had served for twenty or more years, were considered by the 1992 SRB. Our calculations show that of the 111 who were recommended for retention, about 9 percent had donated to Brereton. Of the 32 who were recommended for non-retention, about 9.4 percent had given. Numbers are only part of the story, but these don't support a conclusion that those who gave financial support to Brereton were rewarded and those who didn't were punished.

Other Errors

There are other problems with the ad. For instance, it's incorrect to call the SRB "Weaver's retention board." Weaver was no more powerful than the two other members of the panel. As for the sentence "Weaver's superiors go to jail and Weaver admits he was instrumental in firing the Guardsman," the implication – that Weaver is 'fessing up to something having to do with the conduct that sent others to jail – is simply false.

The reference to officers' non-retention, which is what it's called in the military, as "dismissal" and "firing" would make many a Guardsman bristle. Technically, an officer who is non-retained must either retire or transfer to the Army's Individual Ready Reserve.

In addition, while DeZarn and Childers held higher rank than Weaver, they weren't his "superiors" in that they didn't have authority over him, since they were part of the National Guard and he was in the regular Army. And only DeZarn went to prison, as far as we have been able to discern. Childers received home detention, community service and a fine.

Pressing the Point

Lewis, who has said that he began pursuing this issue after he was contacted by one of the officers who was non-retained in 1992, held a press conference when he released the ad, calling for Weaver to withdraw from the race. "That was dirty politics that Mr. Weaver was participating in," Lewis said. "It was illegal politics." A couple of days later, Lewis said that because of the scandal, Weaver "shouldn't be elected dogcatcher."

According to a story in the Owensboro, KY News-Enterprise  about the incumbent's news conference, Lewis provided scant information relevant to Weaver's role.

News-Enterprise: Information provided by the Lewis campaign Friday included 17 photocopied pages of newspaper articles detailing the charges, investigation and conviction of DeZarn and Childress. Weaver is mentioned in only one story in which he calls himself "the independent member of the board" who had no political stake in the outcome

In a campaign stop on Oct. 16, Lewis said Weaver "broke the law" and he "broke his oath," according to a newspaper report. But there's no evidence that Weaver was involved in any dirty politics, nor that he did anything illegal, and Lewis couldn't name what laws he might have broken, according to newspaper accounts.

"Disgraceful conduct?" "Not fit for duty in Congress?" We repeat: Evidence of misconduct by Weaver in this matter isn't thin, it's nonexistent. The only  "disgraceful conduct" we see here is the ad itself.

- by Viveca Novak

Sources

Maj. Gen. Raymond R. Rees, Memorandum to Under Secretary of the Army and Transmittal of Request from the Adjutant General, Kentucky, 24 October 2002

Adjutant General D. Allen Youngman, Memorandum in support of request by the Kentucky Army National Guard to review and amend the actions of the Army Board for Correction of Military Records, 16 October 2002

Stamper, John and Ryan Alessi "Lewis calls on Weaver to leave race: Cites 1991 guard officer firing scandal," The Lexington Herald-Leader, 14 October 2006.

Alessi, Ryan, "Weaver fires back at ad's personnel claims," The Lexington Herald Leader, 15 October 2006

Lawrence, Keith, "Lewis, Weaver trade barbs: Challenger says he's closing gap," Messenger-Inquirer, 17 October 2006

Sheroan, Ben, "Lewis raises issue from Weaver's past," Elizabethtown News-Enterprise, 14 October 2006

Loftus, Tom, "Guard colonel admits illegal fund raising," The Courier-Journal, 20 September 1996

Loftus, Tom, "Probe continues into contributions by Guard members," The Courier-Journal, 20 November 1995

Wolfe, Charles, "Former Guard officer sentenced in money-for-promotions scandal," The Associated Press as published by The Courier-Journal, 18 December 1996