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The Army broke its silence; the charges against Barnes and Franklin had finally been dismissed for insufficient evidence to warrant courts-martial. The dispute spilled into the open. A five-page summary of L'Affaire Herbert was released by Pentagon officials. The report notes that Herbert did not bring up his war-crime allegations until a year and a half after he had been relieved of his command, and only after his third review to reverse the bad efficiency rating had been turned down. Nowhere in the written record of hearings held in Viet Nam after losing his command nor in the appeals that followed, the Army said, did Herbert raise the issue of war crimes. Herbert's reply: he had been prevented from attending four of the five days of hearings; he had been unable to cross-examine witnesses about the alleged atrocities and had been prohibited from entering the charges in his testimony. After returning to the U.S., Herbert claimed he had been advised by Army lawyers to keep the war-crime allegations and his efficiency-rating appeal separate. Thus he had not included the charges in his requests for a review of his case. It was only after he became concerned that the statute of limitations would expire that he filed formal charges.
Clearly the Worst. With the investigation over, officers who had served with him made their first critical statements since the case began. Major General Barnes said that he had given Herbert a command position despite advice against the assignment. Said Barnes; "Fifty-eight days later, I had had Herbert up to here. I have commanded 20 battalion commanders in my time, and Herbert was clearly the worst. He also is the only one I ever relieved."
Former Captain Mike Plantz, Herbert's helicopter pilot in Viet Nam, told the Arizona Republic that Herbert had once beaten and kicked an unarmed Vietnamese woodcutter, then stood by while his men beat five or six other civilians. An Army chaplain reported a conversation with Herbert: "He made a very imprudent public statement that 'I'll lie about anything to get what I want.'" Three lieutenant colonels requested an appearance on the Dick Cavett Show to refute Herbert's allegations of unfair treatment, and were turned down. One of them, Lieut. Colonel Ken Accousti, former operations officer of the 173rd Airborne Brigade, questioned Herbert's truthfulness: "I got so that I couldn't believe anything Herbert reported from the field. I finally started following him around physically. I never heard anything about war crimes, and they would have filtered up to me."
Regardless of the outcome of the charges and countercharges last week, the battle between Herbert and the Army is certain to damage both. Officers have become pitted against each other in bitter debate over war crimes at a time when the Army is struggling to retain what public confidence is left in the shadow of My Lai.