A federal court in California has ruled that a former Marine can wear service medals he did not earn, saying that displaying them was a form of free speech.
The case involving Elven Joe Swisher, an Idaho man who enlisted in the Marines after the Korean War, touched on a sensitive issue that has wound through Congress and the courts, and has been scrutinized by groups dedicated to confirming when people, either motivated by profit or status, claim to be military heroes but are not.
On Monday, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that Mr. Swisher, who was honorably discharged from the Marines in 1957, had the right to wear the medals, including the Purple Heart and the Silver Star, even though he had not been awarded them.
It tossed out a previous conviction of Mr. Swisher, saying that iconic symbols, such as flags or other emblems, were intended as a “short cut from mind to mind” when conveying ideas, and that “wearing a medal has no purpose other than to communicate a message.”
The case highlighted a timeline of court actions and laws that have tried to address similar instances, and it has drawn the attention of organizations devoted to keeping battlefield credit where it is due.
There were more than 33,000 deaths in battle and about 100,000 wounded in the Korean War, which ran from 1950 to 1953.
Larry C. Kinard, the national president of the Korean War Veterans Association, refers to himself as “lucky” he did not get the Purple Heart, which is awarded to the wounded or dead. He said it was increasingly important to veterans organizations to confirm the claims of those who say they served or were decorated.
He said bogus claims were an affront to those like his friend, a former Korean War Marine who lost a leg and an eye.
“It is very important that those who wear any kind of decoration earned what they wear,” said Mr. Kinard, who was deployed in an infantry division north of Seoul in 1952. “All the organizations do the best they can within the realm of the privacy act to verify that.”
One of the most extensive treatments on the subject is in the book “Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History.” A co-author of the 1998 book, B. G. Burkett, has said he helped expose the fictitious military stories of about 1,800 people.
The website Guardian of Valor, also known as Stolen Valor on Facebook, also tracks and investigates such cases, posting some of them on YouTube.
This week it included portions of a narrative that Mr. Swisher had filed in 2001 when seeking disability payments, in which he wrote that he and about 130 other Marines “came under heavy enemy gunfire” on a hill during a combat mission.
The California court’s judgment this week referred to that narrative, saying that in 2001, more than 40 years after his 1957 discharge, Mr. Swisher filed the disability claim saying he had post-traumatic stress syndrome from serving in the secret combat mission in North Korea.
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His narrative as quoted in the court document described a hospital bedside visit from a captain who presented him with a Purple Heart and who said he had earned several other medals and ribbons, the court document said.
In 2004, the government began paying Mr. Swisher’s benefits for post-traumatic stress. But the next year, in an unrelated twist, he wore a Purple Heart during a trial of a man accused of soliciting a murder, apparently to use it to bolster his credibility as a witness.
In 2006, the government stopped making his disability payments after it received information that Mr. Swisher’s claims about earning the medals were fraudulent. In 2007, Mr. Swisher was convicted of violating the Stolen Valor Act, which made it a misdemeanor to falsely claim military accomplishments.
Since then, the Stolen Valor Act has gone through several changes. In 2012, a case that arose from a man who claimed to be a Medal of Honor recipient was addressed by the Supreme Court, which overturned a portion of the act, saying it infringed on free speech. In 2013, Congress removed a provision that made it illegal to wear a medal.
Monday’s court decision set aside Mr. Swisher’s 2007 conviction, which had gone through several motions and appeals, his lawyer, Joseph T. Horras, said. “His conviction could not be overturned just because the statute was amended,” he said.
Mr. Swisher, now in his late 70s, lives in northern Idaho, retired from work that Mr. Horras said made him a “jack-of-all-trades.”
Asked why Mr. Swisher wore medals he did not earn, Mr. Horras said, “There is a narrative that he wrote and that is essentially his position.”
“It was a constitutional matter rather than a factual matter,” Mr. Horras said, referring to the case. “It was regardless of what he was saying, whether someone has the right to wear the medal, whether they earned it or not.”
http://www.nytimes.com/2016/01/14/u...-speech.html&eventName=Watching-article-click
The case involving Elven Joe Swisher, an Idaho man who enlisted in the Marines after the Korean War, touched on a sensitive issue that has wound through Congress and the courts, and has been scrutinized by groups dedicated to confirming when people, either motivated by profit or status, claim to be military heroes but are not.
On Monday, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that Mr. Swisher, who was honorably discharged from the Marines in 1957, had the right to wear the medals, including the Purple Heart and the Silver Star, even though he had not been awarded them.
It tossed out a previous conviction of Mr. Swisher, saying that iconic symbols, such as flags or other emblems, were intended as a “short cut from mind to mind” when conveying ideas, and that “wearing a medal has no purpose other than to communicate a message.”
The case highlighted a timeline of court actions and laws that have tried to address similar instances, and it has drawn the attention of organizations devoted to keeping battlefield credit where it is due.
There were more than 33,000 deaths in battle and about 100,000 wounded in the Korean War, which ran from 1950 to 1953.
Larry C. Kinard, the national president of the Korean War Veterans Association, refers to himself as “lucky” he did not get the Purple Heart, which is awarded to the wounded or dead. He said it was increasingly important to veterans organizations to confirm the claims of those who say they served or were decorated.
He said bogus claims were an affront to those like his friend, a former Korean War Marine who lost a leg and an eye.
“It is very important that those who wear any kind of decoration earned what they wear,” said Mr. Kinard, who was deployed in an infantry division north of Seoul in 1952. “All the organizations do the best they can within the realm of the privacy act to verify that.”
One of the most extensive treatments on the subject is in the book “Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History.” A co-author of the 1998 book, B. G. Burkett, has said he helped expose the fictitious military stories of about 1,800 people.
The website Guardian of Valor, also known as Stolen Valor on Facebook, also tracks and investigates such cases, posting some of them on YouTube.
This week it included portions of a narrative that Mr. Swisher had filed in 2001 when seeking disability payments, in which he wrote that he and about 130 other Marines “came under heavy enemy gunfire” on a hill during a combat mission.
The California court’s judgment this week referred to that narrative, saying that in 2001, more than 40 years after his 1957 discharge, Mr. Swisher filed the disability claim saying he had post-traumatic stress syndrome from serving in the secret combat mission in North Korea.
Advertisement
Continue reading the main story
Advertisement
Continue reading the main story
His narrative as quoted in the court document described a hospital bedside visit from a captain who presented him with a Purple Heart and who said he had earned several other medals and ribbons, the court document said.
In 2004, the government began paying Mr. Swisher’s benefits for post-traumatic stress. But the next year, in an unrelated twist, he wore a Purple Heart during a trial of a man accused of soliciting a murder, apparently to use it to bolster his credibility as a witness.
In 2006, the government stopped making his disability payments after it received information that Mr. Swisher’s claims about earning the medals were fraudulent. In 2007, Mr. Swisher was convicted of violating the Stolen Valor Act, which made it a misdemeanor to falsely claim military accomplishments.
Since then, the Stolen Valor Act has gone through several changes. In 2012, a case that arose from a man who claimed to be a Medal of Honor recipient was addressed by the Supreme Court, which overturned a portion of the act, saying it infringed on free speech. In 2013, Congress removed a provision that made it illegal to wear a medal.
Monday’s court decision set aside Mr. Swisher’s 2007 conviction, which had gone through several motions and appeals, his lawyer, Joseph T. Horras, said. “His conviction could not be overturned just because the statute was amended,” he said.
Mr. Swisher, now in his late 70s, lives in northern Idaho, retired from work that Mr. Horras said made him a “jack-of-all-trades.”
Asked why Mr. Swisher wore medals he did not earn, Mr. Horras said, “There is a narrative that he wrote and that is essentially his position.”
“It was a constitutional matter rather than a factual matter,” Mr. Horras said, referring to the case. “It was regardless of what he was saying, whether someone has the right to wear the medal, whether they earned it or not.”
http://www.nytimes.com/2016/01/14/u...-speech.html&eventName=Watching-article-click
