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BECAUSE NO PAPER TRAIL EXISTS
by Walter Francis Fitzpatrick, III
(Dec. 1, 2013) — I was in Washington, DC in March 2001, and I went to the office of J.L. Roth on the 9th. His position was LCDR JAG, head of the Freedom of Information Act/Privacy Act branch of the Administrative Law division of the Judge Advocate General.
When I walked in, he was sitting at his desk. I was standing there in his office, and I said, “I want all of the records from my court-martial, everything,” and he smiled in a kind of maddening, sardonic, sly way and said, “Walt, I’m using your records as a footrest. They’re right here under my desk.” He told me, “I have everything right there,” but he wouldn’t show me anything.
But now I was in Crystal City in Roth’s office. He wouldn’t give me anything or let me look at anything. He could have said, “Here’s the box, Walt; , the copy machine…knock yourself out.” He never stood up; we didn’t shake hands. It was a very adversarial encounter. I looked him in the eye and said, “You do not deserve the respect of wearing that uniform, sir.” There was nothing but obstruction in not letting me see documents which were available to me…I was standing in the same room with them as they existed in the box that day, and he refused to let me look at any of them.
I had been denied so many documents already that I went to his office. I was in DC; I was trying to track down the documents. It was nothing but serendipity that I happened to walk into his office unannounced, without an appointment, and say, “My name is CDR Walt Fitzpatrick. I want these documents; where are they?” and he said, “I’m using them for a footstool under my desk.” I couldn’t see them because there were names and dates on those documents that were incriminating.
His explanation was, “We have to review these documents before we let you see them.”
Then I left and returned to Washington State. At the end of that month, Roth followed up with a letter which stated, “I closed our completed indexes of the records held by the office of the Navy Judge Advocate General relating to your special court-martial consisting of 28 pages.” Some of these pages are only half-filled; a couple have only one or two sentences, but most of them are full pages of writing. It’s a lot of information: hundreds and hundreds of records. And he said, “Highlight what you want and then we’ll send that to you.”
I sent him a list of things I wanted, and this was the data dump that I got on 28 July 2001. Some of the documents I requested were refused to me. But I have the index here, and it’s been marked up and highlighted.
I went to this because we talked about the issue of endorsements.
Let’s say that you’re working in a business and you have several layers of management above you. You come up with an idea about a change in policy. Because of your view of the world, you have an idea as to how things should be changed. So you put together a memorandum and submit it to your immediate superior. Your boss isn’t the owner/operator of the business, so he is going to look at it and say, “This is a good idea,” or “It is not a good idea,” or “I’m adding my two cents’-worth,” and then that person gives it to the next individual in the food chain until it gets to the top. Each person who receives it says, “OK, I got it this day; I’m sending it out that day” and it goes to the top. It’s climbing the ladder in the organization.
In the military, you do that a lot. Many official documents and processes in the military require that it go up the chain of command. Each level of the chain of command stamps it “Received, endorsed and forwarded,” or “Do not concur.” Either way, it has a comment made by that level of the chain of command. That comment and the dates that are assigned to it is called an “endorsement.”
For example, Bitoff’s Letter of Reprimand was created and signed on 7 June 1990. It was then delivered to Kevin Anderson on 11 June. At the bottom of that document is a first endorsement. It’s Anderson endorsing it and saying, “It was delivered to me on the 11th of June.” There are links in a chain, like a chain of custody for the document.
So Anderson got it as of the 11th and acknowledged receipt and, according to his report, delivered it to me on the 7th of July. That was his endorsement.
But that didn’t happen, and Anderson lied.
Here’s the question that is begged: the delivery to me started a clock ticking. I had 15 days from the date of delivery, which Anderson picked as the 7th of July, to return something back. You have to either submit a response or decline to respond, but you have to respond within 15 days.
The letter was given to Anderson and it was endorsed going down the chain of command. Anderson acknowledged receipt, then he supposedly delivered it to me and sent the delivery notice to John Bitoff. In returning that endorsement to Bitoff saying, “I delivered this, Admiral,” he was saying, “It’s been delivered; I did my job” and “Oh, by the way, Admiral, start your stopwatch ticking, and when you get to 15 days, stop it.” In other words, there was a time limit. There was a fuse starting on a response back.
What this means is that there should be records of endorsement of my turning it back in. So if it had gotten to me and I had written whatever I had wanted to respond with, I needed to have it witnessed. There had to be somebody aware that I had turned it back in on time. So there should be a record of endorsement of my turning it back in to Bitoff.
If it came to me via my attorney, then it’s logical to say that I would have given my response to the same attorney and the attorney would have given it back to Bitoff. It goes back the same path as it was delivered to me. If it had gone back on the same path, then Anderson should have received it on a certain day and acknowledged it, then he should have endorsed it and delivered it back to Bitoff on a certain day and time and witnessed it as having been turned back in on time. But there’s no endorsement package; there’s no record of it ever having been returned at all. The letter just shows up.
If that letter had been signed out by me and that was my real signature, I would have turned it in to Anderson with a piece of paper on top of it. Anderson would have dated it, put the time on it, endorsed it as “received,” and the next line on the cover sheet would have said, “Forwarded.” Then Anderson would have signed it out and turned it in to Bitoff. Then Bitoff would have acknowledged receipt.
I know exactly where I was and what I was doing on July 6, 7 and 8. My youngest child was born on Friday, July 6, and mother and baby came home on Sunday, July 8. I was not going to work during that time; I didn’t have a job. I remember those days. I was not involved in responding to that Letter of Reprimand in the days after my youngest child was born. The last time I had had any connection with Kevin Anderson on my case directly was on the 5th of April 1990, the last day of the court-martial. I had no contact with him or anyone except for my detailer in Washington in trying to find a new job.
After April 5, 1990, the next time I saw Kevin Anderson was a number of years later after I had moved to the Pacific Northwest. I was living in Bremerton. I happened to walk through an office in Bremerton, and there was Lt. Janet Lutzenberger sitting at a desk. She was the commanding officer for enlisted personnel at the Puget Sound Naval Shipyard, and she was talking to Kevin Anderson, who was in civilian clothes, in a suit and tie. He had left the Marine Corps and at that time, was an attorney in private practice. He was talking to Janet Lutzenberger about some case dealing with one of the enlisted guys or gals at the Naval Shipyard.
I just walked through the office and kept on walking. We made eye contact but didn’t speak. He was there on business; I didn’t expect to see him, but there he was. At that particular moment in time, I didn’t suspect that Anderson was the forger. I didn’t know it was Anderson until I got a call from NCIS Special Agent Richard Allen on 5 September 1997.
I was never, ever supposed to know that the forgery was in the record, so Anderson wouldn’t have been concerned with tracking it back with an endorsement process. The forgery was put in the record and I was never supposed to know about it.
Zlatoper used the Letter of Reprimand against me, but there is no record of the Letter of Reprimand having been sent to me.
If I had signed the Response to Letter of Reprimand, there would have been a witness’s signature on it. Then there would be endorsement letters returning it back to the admiral certifying that it had been returned on time. The admiral would have had to acknowledge the fact that it was returned on time. There is no endorsement package forwarding that letter and getting it back to John Bitoff. So the question becomes, “How did John Bitoff get it?”
Anderson has tied himself to the document in two ways: the police report in Port Orchard, WA and the letter that he wrote to Ray Dupree when he said that he was the person who “created” the document. He’s the only person who ever said he’s had his hands on it.
There needs to be in place an endorsement record of this Response to Letter of Reprimand going from me back to Bitoff. But this document is suggested to have traveled in one direction. We get it as far as Anderson, but there’s no record of Anderson delivering it to me. He says it was delivered, but he can’t explain how it happened.
Anderson said he helped me prepare the response and printed it out, but he didn’t say that to the NCIS when they asked him in 1998, and the reason would be because of this exact type of question: “OK, Capt. Anderson, you helped him write it; you printed it out. What happened then?” Instead of going through that kind of inquiry, Anderson said, “I don’t have any recollection of this.”
A letter written to me by Barbara Pope shows what an endorsement is. She sent it from her desk to the commanding officer of the U.S.S. Carl Vinson, which was Capt. Borchers at the time. He endorsed it and said, “Delivered.”
That’s Capt. Borchers saying to the Assistant Secretary of the Navy for Manpower and Reserve Affairs, “I delivered it to Fitzpatrick on this day” and then he returned that endorsement saying, “I got it; I gave it to Fitzpatrick.”
An endorsement is also copied to others. If there had been anybody else in the chain of command between Barbara Pope and my commanding officer, their endorsements would have appeared there, too. There would be a paper trail. There’s nothing like that kind of paper trail showing that the Response to Letter of Reprimand ever existed or ever came back from me. There’s no record that it was ever received by John Bitoff or Kevin Anderson because they typed it up, Anderson forged my name to it…and there is a return endorsement gap.
My name would have to appear someplace else as well as a witness’s signature on the actual response. I would have had a witness co-sign that with me, and that probably would have been Kevin Anderson had I been working with him in the day. But there’s no countersign. There has to be a record of when John Bitoff got it back, not just because the admiral set a time limit also, but to protect me to show that if I did respond, I did so in the proper time frame. That doesn’t exist, which is a major gap.
Getting back to the 28-page list of documents that Robb sent me back in March 2001, there are several endorsement records from different periods of time that exist, and these endorsements are part of the paperwork record that is being denied me today. There is a submission of a document or package which goes up the chain of command, and as it climbs the ladder, there is, in fact, an endorsement record. I know that these endorsements exist because Robb listed them on his index. But I don’t have them. I don’t have any of these endorsements at all.
In speaking with the Office of the Inspector General to show him that there are documents still missing and being kept from me, this is just but one example. We are up against very powerful forces; they don’t want us to know what they have. And there are so many bombshells in that document package that they can’t afford to let it out. But we certainly have enough of it; we know more about what exists, but they’re not giving it to us.