II. THE PERSONNEL ACTIONS
This Section addresses three personnel actions affecting Admiral Kimmel
and General Short: relief from their Pearl Harbor commands in December
1941; their retirements in February and March 1942; and the decisions
not to advance them on the retired list.
RELIEF FROM COMMAND 
On February 1, 1941, Rear Admiral Husband E. Kimmel succeeded Admiral J.
O. Richardson as Commander in Chief, Pacific Fleet and Commander in
Chief, United States Fleet.  Incident to assuming these positions of
command, Rear Admiral Kimmel also assumed the temporary rank of four-
star Admiral.  At the time, the highest permanent grade that officers
of the armed forces could hold was Rear Admiral or Major General (O-8).
 Immediately after the Japanese attack: on Pearl Harbor on December
7, 1941, Secretary of the Navy Frank Knox flew to Pearl Harbor on
December 8 to conduct a preliminary investigation. Following Secretary
Knox's report to the President on December 14, Admiral Kimmel was
relieved of command and reverted to his permanent grade of Rear Admiral.
Similarly, Major General Short replaced Major General Herron as
Commander of the Army's Hawaiian Department, and assumed the temporary
rank of Lieutenant General. General Short was also relieved of command
on December 16, 1941, and reverted to his permanent grade of Major
 Typically, relief and retirement of the most senior officers from
the highest commands are handled personally and orally, and confirmed by
very brief memoranda which do not give the reasons for the actions.
 Franklin D. Roosevelt letter Nav-3-D of January 7, 1941 to Rear
Admiral Husband E Kimmel: "In accordance with the provisions of an Act
of Congress approved May 22, 1917, you are hereby designated as
Commander in Chief, Pacific fleet, with additional duty as Commander in
Chief, United Slates Fleet, with the rank of admiral, effective on the
date of your taking over the command of the Pacific Fleet. In accordance
with this designation you will assume the rank and hoist the flag of
admiral on the above mentioned date." Documents in Rear Admiral Kimmel's
service record indicate that he assumed duties as CincPac and CominCh on
February 1, 1941.
 Rear Admiral Kimmel's temporary designation as a four star admiral
was made under the provisions of existing law which allowed the
President to designate six officers as Commanders of Fleets or
subdivisions thereof with the rank of admiral or vice Admiral. Act of
May 22, 1917, 65th Cong., 1st Sess., Ch. 20, 18, 40 Stat. 89. Such
advancements to the rank of admiral or vice admiral were to be in effect
only during the incumbency of the designated flag officer. Id. (". . .
when an officer with the rank of admiral or vice admiral is detached
from the command of a fleet or subdivision thereof . . . he shall return
to his regular rank in the list of officers of the Navy ....").
 This had long been the case. For example, Admiral Charles Frederick
Hughes, the Chief of Naval Operations from 1927-1930, retired in his
permanent grade of rear admiral. William R. Braisted, 'Charles Frederick
Hughes', in "The Chiefs of Naval Operations" (Robert William Love, Jr.,
ed. 1980), p. 66. It is still the case today that retirement in a higher
grade than O-8 requires nomination by the President and confirmation by
 Secretary of the Navy Knox directed the relief of Admiral Kimmel on
l6 December 1941 (PHA 5:2430), confirmed by SECNAV ltr 14358 of 3
 PHA, 3:1529.
For reasons both legal and practical, command in the United States Armed
Forces has a special character. That character is distinct from rank.
The need to maintain good order and discipline at all levels of command
when lives are at stake creates an environment unique to the command of
military units. As the Supreme Court has noted, "no military
organization can function without strict discipline and regulation that
would be unacceptable in a civilian setting"  and that "the rights of
men in the armed forces must perforce be conditioned to meet certain
overriding demands of discipline and duty ..." 
There is no entitlement or right to command. No one in the military has
a right to any particular assignment or position, and any military
member may be reassigned to a position of greater or lesser
responsibility by senior officials in the chain of command at their
discretion.  This authority flows from the President's constitutional
powers as Commander-in-Chief,  and is so well established that no
court has ever recognized a right to "due process" review of military
personnel assignment decisions. The authority to make such changes
remains a key constitutional prerogative of the President, and the
practical necessity for such authority in the unique context of the
military remains central to the accomplishment of the military mission.
An officer may be relieved of command if a superior decides the officer
has failed to exercise sound judgment.  Moreover, an officer may be
relieved of command simply because of an entirely subjective loss of
confidence by superiors in the chain of command.  The grounds for
detachment of an officer in command reflect the critical importance of
trust and confidence in the
 Chappell v. Wallace. 462 U.S. 296, 300 (l983).
 Ibid., quoting Burns v. Wilson, 346 U S. 137, 140 (1953).
 Over the years many officer relieved of command have challenged the
discretion of senior officials in the chain of command to relieve and
reassign them. In such cases the relieved officer have claimed a right
to "due process" under the Fifth Amendment of the U.S. Constitution,
which states, in pertinent part, that "nor shall life, liberty or
property be deprived without due process of law." The federal courts,
however, have consistently refused to invade the unreviewable discretion
of senior officials to assign and reassign military personnel, noting
that service members have no protected "liberty" or "property" interest
in their assignments. See, e. g., Orloff v. Willoughby, 345 U.S. 83
(1953)(Army physician's assignment as laboratory technician not
reviewable); Sebra v. Neville, 801 F.2d 1135, 1141 ("The policy behind
the rule is clear, the military would grind to a halt if every transfer
was open to legal challenge."); Covington v. Anderson, 487 F.2d 660, 665
(9th Cir. 1973)(military duty assignments are unreviewable because
"[a]ny attempt of the federal courts . . . to take over review of
military duty assignments . . . would obviously be fraught with
practical difficulties for both the armed faces and the courts."
(quoting Arnheiter v. Ignatious, 292 F. Supp. 911, 921 (N. D. Cal.
1968), aff'd, 435 F.2d 691 (9th Cir. 1970)). See also Crenshaw v. United
States, 134 U.S. 99 (1890)(no right to appointment) and United States ex
rel. Edwards v. Root, 22 App DC 419, aff'd 195 U.S. 626 (1903)(no right
to promotion). The President and subordinate officials in the chain of
command have primary authority to remove and replace subordinate
commanders. See Mullan v. United States, 140 US. 240 (1891); Wallace v.
United States, 257 U.S. 541 (1922). This authority is essential to the
efficient functioning of a military organization.
 U. S. Constitution., Article II, Section 2.
 Naval Military Personnel Manual (MILPERSMAN) 3410105.7a
 MILPERSMAN 3410105.3. Other bases for detachment for cause of any
officer include misconduct, unsatisfactory performance involving one or
more significant events resulting from gross negligence or where
complete disregard of duty is involved, and unsatisfactory performance
of duty over an extended period of time.
chain of command, and the highly discretionary nature of decisions to
relieve officers in command. The guidance in 1941 was much like today's:
"The unique position of trust and responsibility an officer in command
possesses; his or her role in shaping morale, good order, and discipline
within the command; and his or her influence on mission requirements and
command readiness make it imperative that immediate superiors have full
confidence in the officer's judgment and ability to command. "
In sum, relief does not require a finding of misconduct or
unsatisfactory performance -- merely of loss of confidence with regard
to the specific command in question. Given the scope of the defeat at
Pearl Harbor and the need to reform the forces in the Pacific for the
conduct of the war, it follows that the relief of Admiral Kimmel and
General Short was consistent with military practice. Their relief also
was reasonable because the Roberts Commission investigation, which began
at that time, would detract their time and attention from war activities
The standard for relieving an officer in command is not whether he or
she has objectively committed some misconduct that warrants such relief,
but whether senior officials subjectively conclude that he or she can
continue to command effectively under all circumstances. Service in
positions of command is a privilege, not a right. Relief of an officer
in command may cause embarrassment or injury to reputation, but that is
a risk inherent in the nature of command itself, as should have been
evident to Admiral Kimmel in particular when he succeeded Admiral
Richardson, who had been summarily relieved by President Roosevelt. 
Concerns about "fairness" must yield to the needs of the country and the
armed forces. Consequently, it is difficult to argue that relief of
Admiral Kimmel and General Short was "unfair," given the magnitude of
the disaster at Pearl Harbor and their positions in direct command of
the defeated forces. Moreover, the Chief of Naval Operations was also
relieved shortly thereafter, although he was reassigned to another four-
 MILPERSMAN 3410105.3d.
 Secretary Stimson explained that relief "avoids a situation where
officials charged with the responsibility for the future security of the
vital naval base would otherwise in this critical hour also be involved
in the searching investigation ordered yesterday by the President,"
quoted in Prange, Gordon W., "At Dawn We Slept", New York, McGraw-Hill,
1981, p. 588.
 Husband E. Kimmel, "Admiral Kimmel's Own Story of Pearl Harbor",
U.S. News and World Report, Dec. 10, 1954, p. 69 ("His [Admiral
Richardson's] summary removal was my first concern. I was informed that
Richardson had been removed from command because he hurt Mr. Roosevelt's
feelings by some forceful recommendations ....") .
Following their relief from the Hawaiian commands, Admiral Kimmel and
General Short reverted to their permanent ranks and were given temporary
assignments. Both Admiral Kimmel and General Short sought new commands
commensurate with their former ranks that would contribute to the war
Such assignments were not immediately forthcoming. Eventually, General
Short submitted retirement papers. Although he hoped that his
application for retirement would not be accepted,  it was, and he
retired on February 28, 1942.
Admiral Kimmel learned that General Short had submitted his retirement
papers, and interpreted that as a signal that he should do so as well.
 He did, and retired on March 1, 1942. Under the laws in effect at
the time, both officers retired at their permanent two-star grades.
It has been asserted in several venues that Admiral Kimmel and General
Short were "forced into retirement". There is no evidence to support
that claim. Rather, it appears that new assignments were not immediately
forthcoming, and General Short initiated a chain of events that were
accepted at face value, to the disappointment of both him and Admiral
Kimmel. These events give rise to two questions: (1) should Admiral
Kimmel and General Short have been given new assignments, and (2) should
the retirement offers have been accepted?
Three- and four-star positions are lofty and few. In the Navy in 1941,
for example, there were only six.  It is neither surprising nor
inappropriate that leaders of the time, having relieved Admiral Kimmel
and General Short of their Hawaiian commands and, faced with the Roberts
report findings of dereliction of duty,  did not immediately find
other positions of comparable rank for them.
It is important to remember that the state of the Allied cause in both
the Atlantic and the Pacific was extremely perilous in the dark days of
early 1942. The greatest national need at the time was to prosecute the
global war against both Germany and Japan. Anything that distracted
command energies from that cause could have been unwise. Under those
circumstances, it would have been surprising indeed if the leaders of
the time declined the opportunity to accept the retirement of the
officers most visibly associated with the disaster at Pearl Harbor, and
thus to put that debacle behind them.
 In part as a courtesy to the officers, retirement of the most
senior officers from lofty commands usually is handled personally and
orally, and confirmed by very brief memoranda which do not give the
reasons for the actions.
 Prange, p. 606-607
 PHA, 17:2728.
 Act of May 22, 1917, 40 Stat. 89 (authorizing the appointment of
six admirals and vice admirals).
 PHA, 7:3285-3300.
Again, concerns about "fairness" must yield to the needs of the country
and the armed forces. Nevertheless, it is difficult to conclude that
accepting the offers of retirement was unfair at the time. Two-star rank
is very prestigious; it is hardly ignominious.
Although post-war legislative reforms eliminated the distinction between
permanent and temporary grades at two-star levels and below, today
three- and four-star ranks remain in a special category. Indeed, under
current law  positions occupied by lieutenant generals, vice
admirals, generals and admirals are positions of "importance and
responsibility." An officer may be assigned to such a position only if
nominated by the President and confirmed by the Senate. The entire
process must be repeated if a serving three- or four-star officer is
transferred to another position at the same rank. Similarly, occupants
of such positions may retire in those grades only if the President once
again nominates them and the Senate confirms them to retire in those
grades. Otherwise, an officer automatically retires at the permanent
grade of two-star or below. In recent years, the Services have declined
to seek nomination of several serving three-star officers for retirement
at that grade, and the Senate has declined to confirm at least one
other, all for what by most standards would be considered administrative
oversights, personal indiscretions, or errors of judgment -- none
involving loss of life.
ADVANCEMENT ON THE RETIRED LIST
The Armed Forces were governed throughout the war by laws which
distinguished between permanent and temporary ranks.  The vast
expansion of all ranks during the war created significant disparities
between permanent ranks and those far higher ranks in which many
officers had fought during much of the war. Recognizing that this
disparity had a significant effect on retired ranks, Congress enacted
the Officer Personnel Act of 1947,  intended among other things to
permit officers to be advanced on the retired list to the highest rank
held while on active service during the war. 
Officers at other ranks, including one- and two-star generals and
admirals (some of whom had been reduced in rank when relieved), were
advanced under the provisions of that Act. However,
 10 USC 601.
 E.g., Act of May 22, 1917, 40 Stat. 89 (Navy); Act of Aug. 5, 1939,
53 Stat. 1214 (Army).
 Officer Personnel Act of 1947, second 414, 61 Stat. 795.
 The rapid expansion of the Armed Forces in World War II led to the
promotion of many officers to temporary grades, often significantly
higher in rank than their permanent grades. Because of wartime
exigencies, a large number of such promotions or "appointments" to a
higher grade were made without the advice and consent of the Senate.
Consequently, al the end of World War II, an officer might have a
permanent rank of Captain, but be serving as a colonel because of a
temporary appointment. Congress recognized that it was unjust to those
who had served in a higher grade, albeit without the advice and consent
of the Senate, not to be able to retire in that higher grade. This
recognition was a principal reason behind the enactment of the Officer
Personnel Act of 1947 provisions relating to advancement on the retired
list to the highest rank held.
leaders at the time declined to advance Admiral Kimmel and General Short
under the Act.  There is little in the record to indicate why those
decisions were reached.
By the time of those decisions, the war was over and the full record of
the Joint Congressional Committee hearings on the Pearl Harbor attack
(including the decoded Japanese messages which have been the basis of
much subsequent debate) was publicly available. It follows that those
decisions must have been informed decisions. Clearly, the decisions were
within the discretion of the decisionmakers at the time. Further, those
decisions have been reviewed on numerous occasions at the highest levels
in several Administrations, and in each case decisionmakers have
declined to propose advancement. 
Presumably decisions not to advance Admiral Kimmel and General Short
were based on review of their performance at Pearl Harbor. Thus,
determining whether these decisions were fair requires examination of
that performance. The final findings by the Services and by the Joint
Congressional Committee on the Pearl Harbor Attack were that Admiral
Kimmel and General Short were not guilty of offenses worthy of courts-
martial, but that they had committed "errors of judgment". Furthermore,
the Secretary of the Navy made explicit his determination of the career
implications of such errors in the case of Admiral Kimmel: that he had
"failed to demonstrate the superior judgment necessary for exercising
command commensurate with [his] rank and assigned duties" and therefore
the Secretary considered that "appropriate action should be taken to
insure that [Admiral Kimmel not] be recalled to active duty in the
future for any position in which the exercise of superior judgment is
Advancement is a privilege, not a right, and must be based on
performance. Admiral Trost, then the Chief of Naval Operations, wrote in
connection with this issue, "there is a vast difference between a degree
of fault which does not warrant a punitive action and a level of
performance which would warrant bestowal of a privilege."  Thus, if
the findings of the JCC with regard to the performance of these officers
were and remain valid, advancement is not warranted. The next Section of
this review addresses those findings.
 Notice that the 1947 Act does not provide for "restoration" of the
highest grade or rank held, a term used by the Kimmel family.
"Restoration" implies the resumption or a right or entitlement, an
individualized "property" interest in a rank or grade that has been
taken away. Service in three- or four-star grade had always been a
temporary privilege. The 1947 law provided for the discretionary grant
of that privileged status de novo to members of that class of officers
who had enjoyed it previously, should the President and the Senate so
 See, for example, letters from Secretary Richard Cheney, October
23, 1989; President George Bush, December 2; 1991; Secretary William J.
Perry, September 7, 1994, and from President William Clinton, December
 PHA 16:2429, SECNAV Forrestal's Fourth Endorsement of the 1944
Court of Inquiry. (James Forrestal became Secretary of the Navy after
the death of Secretary Knox in April, 1944.)
 CNO First Endorsement on DIRNAVHIST memo of 5 Jan 88, CNO Ser
00/8U5000015 of 19 Jan 88, to SECNAV. Although he declined to do so in
this January 1988 letter, Admiral Trost later recommended consideration
of advancement of Admiral Kimmel on the retired list. His distinction
between punitive action and privileges, however, is still apt.
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