Stolen Valor Act, good intentions, bad result.

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I hope you all know that the purchase, sale, transportation of, wearing of, etc. of U.S. medals is prohibited in the U.S. effective December 21, 2006. The Stolen Valor Act forgot to leave the exception for collectors. Check the OMSA website. There is no exception for the age of the medal as of yet. Even if you are 18 years old and re-enacting at the local aerodrome, you are technically breaking the law if you have any medals, insignia, etc. and can be prosecuted, spend up to 1 year in jail, and fined. Only outside the U.S. is it legal now. Go figure.

THE STOLEN VALOR ACT: WHAT DOES IT MEAN?

On December 6, 2006 the House of Representatives passed their version of the Stolen Valor Act. On December 21, 2006 President Bush signed it into law. Together with a previous comparable action by the Senate, the law governing U.S. military decorations and medals now reads as follows (with the changes in bold type):

Title 18, United States Code, Section 704

(a) In General. - Whoever knowingly wears, purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt, manufactures, or sells, attempts to sell, advertises for sale, trades, barters or exchanges for anything of value any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. (italics added)

(b) False Claims About Receipt of Military Medals. - Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the member of such forces, or the ribbon button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof shall be fined under this title for imprisoned not more than six months, or both,

(c) Congressional Medal of Honor. -

(1) In general. - If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both.

(2) Definitions. -

(A) As used in subsection (a) with respect to a Congressional Medal of Honor, “sells” includes trades, barters, or exchanges for anything of value.

(B) As used in this subsection, “Congressional Medal of Honor” means -

(i) a medal of honor awarded under section 3741, 6241, or 8741 of title 10 or section 491 of title 14;

(ii) a duplicate medal of honor issued under section 3754, 6256, or 8754 of title 10 or section 504 of title 14; or

(iii) a replacement of a medal of honor provided under section 3747, 6253, or 8747 of title 10 or section 501 of title 14.

(d) Other Medals - If a decoration or medal involved in an offense under subsection (a) or (b) is a Distinguished Service Cross awarded under Section 3742 of Title 10, an Air Force Cross awarded under Section 8742 of Title 10, a Navy Cross awarded under section 6242 of Title 10, a Silver Star awarded under Section3746, 6244, or 8746 of Title 10, or a Purple Heart awarded under Section 1129 of Title 10, or any replacement or duplicate medal as authorized by statute, in lieu of the punishment provided in that subsection, the offender shall be find under this title, imprisoned not more than 1 year or both.

The Relationship Between 32 CFR §507 and 18 USC §704

To understand the meaning and impact of the law, it cannot be read alone: it has be reviewed in conjunction with 32 CFR §507.7 and §507.8 because the parenthetic statement “except when authorized under regulations made pursuant to law” refers to and is elaborated on by Parts 507.7 and 507.8 of Title 32 of the Code of Federal Regulations, which quoted in full below:

32 CFR §507.8:

(a). The articles listed in paragraphs (a) (1) through (10) of this section are authorized for manufacture and sale when made in accordance with approved specifications, purchase descriptions or drawings.

(1). All authorized insignia (AR 670-1 and AFI 36-2903)

(2). Appurtenances and devices for decorations, medals, and ribbons such as oak leaf cluster, service stars, arrowheads, V-devices, and clasps.

(3). Combat, special skill, occupational and qualification badges and bars.

(4). Identification badges.

(5). Fourrageres and lanyards

(6). Lapel buttons.

(7). Decorations, service medals, and ribbons, except for the Medal of Honor

(8). Replicas of decorations and service medals for grave markers. Replicas are to be at least twice the size prescribed for decorations and service medals.

(9). Service ribbons for decorations, service medals, and unit awards.

(10). Rosettes.

(11). Army emblem and branch of service plaques.

(b) Variations from the prescribed specifications for the items listed in paragraph (a) of this section are not permitted without prior approval, in writing, by the Institute of Heraldry.

The actual title of Part 507 is important: Manufacture and Sale of Decorations, Medals, Badges, Insignia, Commercial use of Heraldic Designs and Heraldic Quality Control Program. This suggests that the intent of Part 507 is to regulate the commercial manufacturing and sale of these items. The Heraldic Quality Control Program was established to maintain high standards in the manufacturing of medals and decorations purchased by the Government and to ensure that they are uniform in how they are made and are of high quality. The only items which may not be manufactured or sold are:

• The Medal of Honor

• The service ribbon for the Medal of Honor

• The Rosette for the Medal of Honor

• Service flags

• The Army seal

• Commercial articles for public sale that incorporate designs or likenesses of decorations, service medals, and service ribbons; and,

• Commercial articles for public sale that incorporate designs or likenesses of designs of insignia listed in 32 CFR 507.8, except when authorized by the Service concerned.

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Analysis: As noted above, the purpose of 32 CFR §507 is to implement that portion of 18 USC §704 that responds to the phrase, except when authorized under regulations made pursuant to law, and to provide the requirements of the Heraldic Quality Control program of the Army’s Institute of Heraldry. Its goals include maintaining the high standard of military medals and decorations by setting specific requirements on the commercial firms that are authorized to manufacture and sell them. When this was first written, it was intended to apply to companies that manufacture and sell medals to the Federal Government, not to the public. In fact, 32 CFR §507.6 specifically addresses the authority to manufacture these items and requires that authorized manufacturers must be certified by the Institute of Heraldry. It was not written to address the sale of medals and decorations by and among private individuals or dealers; however 32 CFR §507.7 does provide that, “No certificate of manufacture is required to sell articles listed in §507.8 … however sellers are responsible for insuring that any article they sell is manufactured in accordance with Government specifications using government furnished tools, bears a hallmark assigned by TIOH, and that the manufacturer has received a certification to manufacture that specific item.” The thrust of all of this is to make sure that medals and decorations may only be made by authorized manufacturers and commercial outlets may only sell medals and decorations that have been made by those authorized manufacturers. Nothing in these provisions speaks specifically to private individuals, one way or another.

The limitation on the Medal of Honor was added after a scandal in which Lordship Industries, an authorized manufacturer, was convicted of selling a large number of Medals of Honor “out the back door.” With this change a major shift in the law enforcement approach also took place: private individuals caught selling Medals of Honor were arrested and charged with violating 18 USC §407. This effort was spearheaded by an FBI Special Agent by the name of Tom Cottone. This new emphasis raised some very important questions that are yet to be answered.

First, what is a lawfully owned Medal of Honor? Can (or should) the law distinguish between an awarded Medal of Honor and one that was illegally manufactured and sold out the back door? The FBI apparently does not make that distinction. Second, can Congress prohibit the sale of an item of personal property without declaring that property to be contraband? Under common law, the owner of an item of personal property has the unrestricted right to dispose of it in any manner he or she sees fit. The new enforcement approach, in effect, denies a person lawfully possessing a Medal of Honor the right to dispose of it by selling it (and now by mailing it, etc, etc) thereby establishing a “taking” by the Federal Government. Although there have been several arrests for selling Medals of Honor, the legal basis for doing so has not been challenged at the appellate level and thus remains an open question.

Since the criminal law (18 USC §704) and the administrative law (32 CFR §507.7 and §507.8) are no longer in synch, the meaning of the criminal law is no longer moderated by the administrative law. This can have a broad impact on collectors and veterans who simply wish to replace lost or damaged medals by going to commercial sources. Moreover, the addition of the new wording in part (a), “purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt … attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value….” is highly problematic. That wording was added by Special Agent Cottone and is not addressed anywhere in 32 CFR §507. Although this wording will give the FBI greater authority to track down, arrest, and prosecute impersonators, it also opens a very real possibility that the law can be “interpreted” at the working level as opening the door for enforcement action against collectors and commercial firms because it can be read to prohibit buying and selling a large proportion of the military’s medals and decorations.

Finally, the new subsection (d) seems to place the Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, and the Purple Heart on a par with the Medal of Honor as items that cannot be sold, purchased, mailed, etc., etc. Since the Current 32 CFR §507 is silent on that issue, and therefore does not provide clarification, at least for the time being I must conclude that those medals are now prohibited items within the meaning of 18 USC §704. It doesn’t make any difference if my interpretation is contrary to Mr. Cottone’s intent (and the intentions of those who crafted the change to facilitate the prosecution of imposters), the law says what it says, and it is not clarified by 32 CFR §507. Finally, if the sole intent of the changes was to facilitate the prosecution of impostors, that could have been accomplished more effectively and easily by simply adding the words “with intent to defraud” in subsections (a) or (d). The failure to do so suggests that Mr. Cottone’s actual goal may extend beyond the role of impostors and include collectors and dealers.

A final note: 32 CFR §507 “prescribes the Department of the Army and Air Force policy governing the manufacture, sale, reproduction, possession, and wearing of military decorations, [and] medals….” It is not binding on the Department of Defense, the Navy, the Marine Corps, or the Coast Guard. Since 32 CFR §507.7 and §507.8 does not (and cannot) authorize the sale of DoD, Navy, Marine Corps, or Coast Guard medals and decorations, the very explicit wording of 18 USC §704 clearly prohibits their sale. Simply because the law has not been enforced in that respect that does not make it null and void. Thus, my interpretation of the law as it now stands is that dealers and collectors may not purchase, attempt to purchase, solicit for purchase, mail, ship, import, export, produce blank certificates of receipt, attempt to sell, advertise for sale, trade, barter or exchange for anything of value any of the following:

• Any Medal of Honor
• Any Distinguished Service Cross
• Any Air Force Cross
• Any Silver Star
• Any Purple Heart
• All Department of Defense military decorations and ribbons
• All U.S. Navy (including USMC) medals, decorations, and ribbons
• All U.S. Coast Guard medals, decorations, and ribbons

Where Do We Go From Here?

It is unlikely Congress will change the law because it “feels good” - its main thrust is to deal with impostors (hence the name Stolen Valor). As a result, the answer lies in changing the CFR, which the Institute of Heraldry must now do in any case. Our best hope is that in doing so the Institute of Heraldry will speak to the issues I have raised and offer a policy that enables the Government to vigorously prosecute impostors, protect personal properly that has been lawfully obtained, and that will clarify the roles and responsibilities of who can buy and sell what items. I am confident this will happen, because the law as it is now modified will have an enormous adverse impact on a large number of honest and well-meaning people.