[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                                     
 
                         [H.A.S.C. No. 117-61]

                      JURISDICTION, INVESTIGATION,

                           AND PROSECUTION OF

                     SEXUAL ASSAULT AND HARASSMENT

                         IN THE NATIONAL GUARD

                               __________

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON MILITARY PERSONNEL

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                            JANUARY 19, 2022
                            


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]          
 


                                     
                        ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
47-357               WASHINGTON : 2022 
  


                   SUBCOMMITTEE ON MILITARY PERSONNEL

                 JACKIE SPEIER, California, Chairwoman

ANDY KIM, New Jersey                 MIKE GALLAGHER, Wisconsin
CHRISSY HOULAHAN, Pennsylvania       STEPHANIE I. BICE, Oklahoma
VERONICA ESCOBAR, Texas, Vice Chair  LISA C. McCLAIN, Michigan
SARA JACOBS, California              RONNY JACKSON, Texas
MARILYN STRICKLAND, Washington       JERRY L. CARL, Alabama
MARC A. VEASEY, Texas                PAT FALLON, Texas

                        Hannah Kaufman, Counsel
                       Forrest McConnell, Counsel
                           Sidney Faix, Clerk
                           
                            C O N T E N T S

                              ----------                              
                                                                   Page

              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Gallagher, Hon. Mike, a Representative from Wisconsin, Ranking 
  Member, Subcommittee on Military Personnel.....................     3
Speier, Hon. Jackie, a Representative from California, 
  Chairwoman, Subcommittee on Military Personnel.................     1

                               WITNESSES

Hokanson, GEN Daniel R., USA, Chief, National Guard Bureau.......     5
Walker, Brig Gen Charles M., USAF, Director, Office of Complex 
  Investigations.................................................     4

                                APPENDIX

Prepared Statements:

    Hokanson, GEN Daniel R.; joint with by Brig Gen Charles M. 
      Walker.....................................................    31
    Speier, Hon. Jackie..........................................    29

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    Ms. Houlahan.................................................    45
    Ms. Speier...................................................    45

Questions Submitted by Members Post Hearing:

    Ms. Jacobs...................................................    51
    Mr. Kim......................................................    50
    Ms. Speier...................................................    49
    
              JURISDICTION, INVESTIGATION, AND PROSECUTION

                    OF SEXUAL ASSAULT AND HARASSMENT

                         IN THE NATIONAL GUARD

                              ----------                              

                  House of Representatives,
                       Committee on Armed Services,
                        Subcommittee on Military Personnel,
                       Washington, DC, Wednesday, January 19, 2022.
    The subcommittee met, pursuant to call, at 2:03 p.m., in 
room 2118, Rayburn House Office Building, Hon. Jackie Speier 
(chairwoman of the subcommittee) presiding.

OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM 
   CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL

    Ms. Speier. Good afternoon everyone. The hearing will now 
come to order.
    I want to welcome everyone to this hybrid hearing on the 
Jurisdiction, Investigation, and Prosecution of Sexual 
Harassment and Sexual Assault in the National Guard.
    We will have one panel today with General Daniel Hokanson, 
Chief of the National Guard Bureau, and Brigadier General 
Charles Walker, Director of the Office of Complex 
Investigations [OCI]. Both will discuss the jurisdiction of the 
National Guard Bureau, the Army National Guard, and the Air 
Force National Guard over guardsmen in their varying statuses 
who commit sexual harassment and sexual assault or other 
criminal acts. They will also address what services and 
benefits are available to National Guard personnel who are 
victims of these egregious crimes.
    Brigadier General Walker will also discuss the Office of 
Complex Investigations and their role in filling a gap for the 
State adjutant generals when local law enforcement authorities 
and or Federal agencies are unable or unwilling to investigate.
    I am also looking forward to hearing from them, their 
response to the findings of the Independent Review Committee 
[IRC] and how the National Guard Bureau intends to implement 
the IRC's recommendations. The morale, the readiness, and every 
aspect of service is poisoned each time a servicemember is 
sexually assaulted or sexually harassed in our military.
    The National Guard is no different. Guard personnel have 
fought in the wars in Iraq, in Afghanistan, aided countless 
civilians in natural disasters, and are providing essential 
healthcare and support to fight the current COVID-19 pandemic. 
Yet, they suffer from a convoluted and understaffed system of 
sexual assault and sexual harassment prevention programs, 
complex and cumbersome reporting processes, and a lack of 
justice.
    The numbers are staggering, yet the data is lacking. 
According to the DOD 2019 annual report on the sexual assault 
in the military, the number of reported sexual assaults in the 
Guard jumped nationwide from 173 in 2009 to 607 in 2019, more 
than a 300 percent increase. Beyond that, little data exists.
    I have been advocating for progress for more than 10 years. 
Those numbers don't tell even a fraction of the story.
    The individual stories of Guard personnel caught in a web 
of confusing bureaucracy are harrowing. Stories like the West 
Virginia Army National Guard officer, then Lieutenant Colonel 
Teresa James, who was raped in her hotel room by a superior 
officer. Consistently disbelieved and retaliated against until 
the National Guard Bureau investigators finally found that the 
perpetrator, quote, used intimidation and fear to sexually 
assault her, resulting in nonconsensual intercourse, unquote.
    To make matters worse and because she reported her superior 
officer for rape, the victim was given an uncharacteristically 
low evaluation and retained in the Guard for 1 year, instead of 
the standard 2 years. Three years later, the DOD Inspector 
General found that the, quote, the West Virginia Guard 
retaliated against her for reporting that she was raped, 
unquote.
    Her perpetrator faced no charges and was allowed to go on 
to endanger other guardsmen. Lieutenant Colonel James waited 
years to be relieved, and then was medically discharged from 
the service for PTSD resulting from her sexual trauma.
    Stories like this one are all too common across the 
National Guard. Extensive reporting by journalists has 
uncovered problems with sexual assault and sexual harassment in 
the National Guard in many States, including Florida, 
Minnesota, Pennsylvania, Vermont, and Wisconsin. Many involving 
botched investigations and failure to report sex crimes to 
police.
    We are here today to pull back the curtain that has allowed 
this insidious rot that threatens our national security and 
countless lives to go unchecked, and in the worst cases, made 
the threat even more dire. No longer can the National Guard 
hide behind their unique status.
    To the National Guard, the spotlight of Congress is on you. 
Take care of your soldiers. Take care of your airmen. Stamp out 
sexual harassment and assault. Stop the retaliation. We are 
watching.
    To all the soldiers and airmen of the National Guard, we 
have not forgotten you. My pledge to all the survivors of 
military sexual violence, to those who reported and were 
ostracized, to those who reported and faced retaliation, and to 
all those who are afraid to report and may be suffering alone, 
we are on your team.
    And the National Guard is on notice. Sexual assault and 
harassment will not be tolerated. We pay your bills. We fund 
you. The game is over.
    Ranking Member Gallagher, you are now recognized for your 
opening remarks.
    [The prepared statement of Ms. Speier can be found in the 
Appendix on page 29.]

    STATEMENT OF HON. MIKE GALLAGHER, A REPRESENTATIVE FROM 
 WISCONSIN, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL

    Mr. Gallagher. Thank you, Madam Chair.
    Before we begin, I would like to say I look forward to 
working with you through this upcoming NDAA [National Defense 
Authorization Act] cycle. Last year was a whirlwind, but I hope 
we continue to attack our military personnel challenges in a 
bipartisan fashion. And I want to thank the witnesses for 
joining us.
    I agree that sexual assault and harassment are a blight on 
our Armed Forces, be they Active, Reserve, or Guard. So this is 
a very important hearing about the National Guard Bureau's 
effort to coordinate with States and bring Federal resources to 
bear on tough cases.
    Now, the National Guard sits in a very interesting position 
which makes this a complex issue. Very few Guard members are in 
a Federal service status and subject to the military justice 
system. At any time, given--unless they are actually activated 
under Title 10 orders. They are in their communities doing 
civilian jobs and are thus subject to the same laws as everyone 
else. So for the overwhelming majority of Guard members, these 
legal distinctions never cause any issue.
    But criminal conduct or conduct unbecoming a member of our 
Armed Forces does happen, often entirely outside of any Federal 
jurisdiction. And Guard members live under 54 different sets of 
State or territorial laws.
    Now, Congress has charged the National Guard Bureau and the 
Office of Complex Investigations with assisting the adjutants 
general in cases where local law enforcement can't or won't 
address a Guard-related crime. And since 2012, OCI has helped 
fill the gap between State and local law enforcement criminal 
investigations and the high standards that we apply to our 
servicemembers. These cases often deal with complex legal 
issues, and OCI has worked very hard to find solutions over the 
last 10 years.
    As always, there is more we could do to improve 
accountability and integrity in our Armed Forces. And I look 
forward to hearing from the witnesses about what tools would 
actually improve the handling of sexual assault cases at OCI, 
and how exactly the Guard Bureau can better provide crime 
prevention resources to the States.
    Thank you. I yield back.
    Ms. Speier. [Inaudible] Forgive me, I will start again.
    After General Hokanson's remarks, each member will have an 
opportunity to question the witnesses for 5 minutes. We 
respectfully ask the witnesses to summarize their testimony in 
5 minutes. Your written comments and statements will be made 
part of the hearing record.
    Let's begin and welcome our panel, General Daniel Hokanson, 
Chief of the National Guard Bureau and Brigadier General 
Charles Walker, the Director of Office of Complex 
Investigations. Thank you both for being here today. And we 
look forward to hearing from you.
    Please begin, General Hokanson.
    You may have to unmute yourself.
    General Hokanson. [Inaudible.]
    Ms. Speier. Can you hear us, General? Can you give us a 
thumbs up if you can hear us? Okay. But we can't hear you, so--
why don't we move on to Brigadier General Charles Walker and 
maybe in the interim you can get your technology figured out 
there. Have someone on your staff help you. All right.
    Brigadier General Walker.

STATEMENT OF BRIG GEN CHARLES M. WALKER, USAF, DIRECTOR, OFFICE 
                   OF COMPLEX INVESTIGATIONS

    General Walker. Chair Speier, Ranking Member Gallagher, and 
all distinguished members of the subcommittee, it is my 
pleasure to be here today and offer testimony with respect to 
what the Office of Complex Investigations brings to this.
    As Chair Speier points out, it is a poison within our 
ranks, and the National Guard at all levels is committed to 
eradicating sexual violence against all servicemembers.
    Today, we hope to testify about the unique, particular 
aspects of National Guard Service, which at times may create 
gaps in our ability to handle criminal activity within our 
military service, but also to reinforce the fact that these 
matters are being taken serious in the avenues that are 
available for military justice. And I will use that, not as the 
term of our military justice, but the fact that Guards, men and 
women who are serving in a nonfederalized capacity, are serving 
as citizen soldiers and airmen, which entitles them to the same 
protections as any other citizen within their community, which 
is why local law enforcement and local prosecutors are our 
avenue for handling criminal activity in the National Guard.
    Certainly, General Hokanson's opening statement covers the 
gamut of activities and situations within the Guard that are 
subject to this hearing, and I hope that he will be on shortly 
so that he can elaborate on those things.
    My limited scope is as director of the Office of Complex 
Investigations, which, if this is the appropriate time, I can 
go into the details about the Office of Complex Investigation 
in the hopes that General Hokanson can come on board and give 
the opening statement that does justice to exactly where the 
National Guard is coming to you today on these issues.
    But as has already been pointed out in Ranking Member 
Gallagher's opening, the Office of Complex Investigation began 
in 2012. It is a direct outgrowth of the last time that 
Congress was intimately involved with the military and the 
issues of sexual assault. Back in 2012, there were a number of 
cases in which military members had complained, and rightfully 
so, about the handling of the investigations and the lack of 
results with prosecutions related to their sexual assault 
cases.
    As a result of that, DOD instructions and DOD guidance was 
promulgated, which required that commanders no longer use their 
indigenous or organic resources to investigate sexual assaults, 
and that all sexual assault allegations would be referred to 
military criminal investigative organizations, such as the 
Office of Special Investigation for the Active Duty Air Force, 
or CID, the Criminal Investigation Division for the Army.
    But unlike those Active and Reserve components that serve 
under Title 10, guardsmen and women do not have access to that 
due to their service in nonfederalized status. So to fill that 
gap, we created the Office of Complex Investigation, which 
would help in instances where local law enforcement, which is 
our first line of defense against sexual violence allegations, 
is either unwilling or unable to investigate thoroughly those 
allegations.
    In those limited instances, the Office of Complex 
Investigation steps in and provides an investigative tool for 
the 54 adjutants general. These investigations include only 
sexual assault allegations, but we are using the Department of 
Defense definition for sexual assault, which is very broad and 
encompassing everything from a groping all the way towards a 
penetrative sexual assault.
    We in the Office of Complex Investigation are a centralized 
asset primarily based out of Andrews Air Force Base. We provide 
investigative capacity which will allow us to provide, one, a 
consistent ability and a--an ability to provide a fair and 
balanced report back to the State adjutant general for 
administrative action. And that is a nuance that I have to 
point out. We are not a criminal investigative organization. We 
provide administrative investigations as a backstop, so that 
victims and the National Guard will have an opportunity to 
address sexual violence against its members and to remove those 
within our ranks who may be perpetrators in an administrative 
context.
    What we are not is a criminal context, which, as you know, 
in a criminal setting there is jail time potentially, there is 
sexual registries, and other controls that our society has 
deemed appropriate for these type of crimes. So OCI is not the 
default for the National Guard. It is merely the avenue that we 
resort to when local law enforcement is unable or unwilling, 
for a variety of circumstances, to adequately investigate those 
instances of sexual violence.
    And at this time, I will end my statements in hopes that 
General Hokanson can carry forward with his more broad opening 
statement which encompasses all aspects of what the National 
Guard is doing with respect to eradicating sexual violence 
within our force.
    [The joint prepared statement of General Walker and General 
Hokanson can be found in the Appendix on page 31.]
    Ms. Speier. Thank you, Brigadier General.
    General Hokanson, are you live now?
    General Hokanson. Chair Speier, can you hear me now?
    Ms. Speier. We certainly can.
    General Hokanson. Outstanding. Thank you.

STATEMENT OF GEN DANIEL R. HOKANSON, USA, CHIEF, NATIONAL GUARD 
                             BUREAU

    General Hokanson. Good afternoon, Chair Speier, Ranking 
Member Gallagher, and honorable members of the subcommittee. 
Thank you for inviting General Walker and I to testify before 
you today.
    In case you have not heard it directly from me already, I 
want to make it clear, there is no place for sexual assault or 
sexual harassment in our Nation's Armed Forces or anywhere 
else, for that matter. There is no act more heinous than 
violating the trust and well-being of a fellow soldier, airman, 
or anyone.
    The women and men who serve in our formations raised their 
right hand, took an oath to the Constitution, and stepped 
forward to fight our Nation's wars and serve our communities in 
times of crisis. We owe them strong leadership at every level, 
and we owe them a workplace free from the violence of assault 
and harassment.
    This is a serious problem, and we recognize it as such. 
That is why shortly after becoming the Chief of the National 
Guard Bureau, I met with our team, because despite all our 
efforts, we didn't seem to be making a difference. As a result, 
I ordered the formation of a task force composed of National 
Guard Bureau leaders and representatives from our 54 States, 
territories, and D.C. to focus on preventing sexual assault and 
suicide within our ranks.
    Over the course of the next 6 months, as a result of the 
task force's in-depth examination, we identified 19 
recommendations to improve our guardsmen's safety. These 
recommendations fall into six strategic areas: leader 
education, growing a healthy culture, resource distribution and 
communication, partnerships, standardization of efforts, and 
effective measurement.
    Upon review of their recommendations, I accepted all of 
them. Taken together, they mean one thing above all: We need a 
greater focus on prevention to eliminate sexual assault and 
harassment in our formations.
    In addition, we are strongly engaged in the implementation 
of Secretary Austin's Independent Review Commission 
recommendations to help improve our prevention programs taken 
through the National Guard's unique operating environment and 
continue to enhance victim care and support.
    It was evident from our task force that prevention starts 
with creating a culture of trust. Our guardsmen and their 
families must have confidence in their chain of command. They 
need to have confidence in our victim advocacy and response 
services. They need to have confidence in the offices that 
investigate sexual assault, and they need to have confidence 
that offenders will be held accountable.
    We have to earn that confidence by establishing and 
maintaining a culture of trust in every State, territory, and 
DC, and at every level of leadership.
    We are taking action on building that culture of trust and 
preventing sexual assaults and harassment in our ranks. We are 
working on ways to help stage with better guidance, and 
resources, and analyzing data that focuses on risk factors so 
we can directly effect those risk factors.
    In addition to the sexual assault and suicide task force, I 
also made changes to our Office of Complex Investigations, or 
OCI. These changes included moving OCI from under our general 
counsel office and making it a separate, stand-alone 
directorate. I also placed a general officer in charge. And as 
we often do in the National Guard, we are leveraging General 
Chuck Walker's civilian experience as a Federal judge in that 
capacity.
    In addition, we worked together with our adjutants general 
to increase the number of OCI investigators by 60 percent, 
which helped us substantially reduce their case backlog and 
helped survivors get results.
    We are also working with the adjutants general to hire 
violence prevention integrators as resources become available. 
These officers are responsible for assessing their State Guard 
sexual assault response programs. Having a properly trained, 
professionalized force focused on addressing this issue helps 
demonstrate our commitment to eliminating sexual assault and 
harassment in the National Guard.
    We are also improving prevention training for Guard members 
and leaders at every level in our organization. In addition to 
better training, we are also finding ways to hold leaders 
accountable for the culture they create and oversee.
    We know the work of preventing sexual assault and 
harassment is a challenging process, but it is of the utmost 
importance. When we eliminate sexual assault and harassment, we 
create a safe environment where soldiers and airmen can focus 
on their jobs, which improves our readiness and with it our 
ability to fight and win America's wars.
    Our commitment to preventing sexual assault and harassment 
in the National Guard is fundamental to taking care of our 
soldiers, airmen, and their families, and is a requirement for 
the National Guard to keep its promise to be always ready, 
always there.
    Members of the subcommittee, thank you for your time. I 
look forward to your questions.
    Ms. Speier. Thank you, General.
    Let me start off by asking you, General Hokanson, what part 
of the Independent Review Commission's recommendations have you 
not implemented?
    General Hokanson. Chair Speier, we actually have not 
implemented any at this time. We are working very closely with 
the services, both the Army and the Air Force, to look at the 
implementation guidance and what is required to implement each 
of those.
    When you look at the over 80 recommendations for our 
analysis so far, over 50 of those apply directly to the 
National Guard, and many of those do require resources that we 
currently don't have to implement. So we are working at 
implementing guidance with our services, both the Army and the 
Air Force, to identify those resources so we can implement them 
as soon as possible.
    Ms. Speier. Let me ask you this: Is there any process by 
which you are informed when a sexual harassment or sexual 
assault case complaint has been filed within the State National 
Guard?
    General Hokanson. Yes, ma'am. So if you look at our 
directors of the Army Guard and the Army National Guard, they 
are required to be notified within 24 hours of a case. And if I 
can really just take a step back to look at what the unit 
commander's responsibility is. And so they already have to be 
notified within the first 24 hours of a sexual assault within 
the organization, and they immediately link that individual up 
with a victim advocate to ensure that they get the care and 
help that they need.
    Ms. Speier. All right. Let me ask you this. Lieutenant 
Colonel James, who was raped by her superior in the West 
Virginia Guard, she was retaliated against. The inspector 
general was able to determine that. She ended up leaving after 
1 year. And she had post-traumatic stress disorder. According 
to the IG [Inspector General] report, her assailant was never 
charged and continued to serve. Do you know who this person is, 
and is he still serving?
    General Hokanson. No, Chair Speier, I do not know that. But 
I can get with our staff to make sure that we get a full 
accounting from the State of West Virginia.
    Ms. Speier. All right. So you are going to report back to 
the committee about the status of the perpetrator and what 
happened?
    General Hokanson. Yes, Chair. Absolutely.
    [The information referred to can be found in the Appendix 
on page 45.]
    Ms. Speier. Let me ask, Brigadier General. Do you have--you 
have seen an increase in the number of cases that have come to 
your attention recently. Do you have enough staff to respond to 
those cases?
    General Walker. Thank you, Chair Speier. And, again, every 
year it seems to be a moving target on the number of cases. 
Obviously, with the renewed and enhanced ability to actually 
intake cases, we have seen a jump in cases, particularly this 
fiscal year. We are running definitely ahead of what we had 
historically in any year already. We do have enough staff to 
investigate these cases.
    The problem----
    Ms. Speier. How many staff members do you have?
    General Walker. We have 29 dedicated investigators that are 
either resident at Joint Base Andrews or residing within--in 
their home States as remote investigators, all of whom we pair 
in teams of two to go out and investigate any allegation that 
we receive from an adjutant general. So----
    Ms. Speier. And how many cases did you have filed last 
year?
    General Walker. Last year, I believe we had a total of 140, 
145 cases that OCI inves--or that we opened as OCI 
investigations.
    Ms. Speier. Do you track the serial offenders?
    General Walker. We absolutely do. We track all perpetrators 
within our database, so that if we get indications from any new 
cases of any repeat offenders, we are able to identify those 
and report back to the States, and then do further analytics on 
why, in fact, someone would be a serial offender given our 
current system which allows us to investigate sexual assaults 
at least administratively.
    So we are tracking statistically those demographic----
    Ms. Speier. Would you please provide the committee with 
that, how many serial predators you have?
    General Walker. Absolutely.
    [The information referred to can be found in the Appendix 
on page 45.]
    Ms. Speier. All right. My understanding is, through news 
reports, that the Guard has undertaken a number of changes to 
address its handling of incidents of sexual assault, including 
better training, increased transparency, and more emphasis on 
prevention. Among the changes to better support local units, 
train people, and hold leaders accountable, the Bureau's Office 
of Complex Investigations was reorganized.
    However, a basic internet search for information on OCI 
provides no publicly available information about the office, 
its purposes, and how to contact OCI officials. So how does OCI 
ensure that members of the National Guard, including those 
involved in or conducting investigations, are aware of the 
office's existence?
    General Walker. Well, Chair Speier, the adjutants general, 
and that is what triggers an Office of Complex Investigation, 
is a request from----
    Ms. Speier. No. We went to make sure the victims know that 
there is somewhere to go. And there is no place that they can 
Google on the internet to find out about your office.
    General Walker. Well--and, again, our office is not the 
primary focus. If a crime has been committed and a sexual 
assault allegation, the first line of contact is with local law 
enforcement. And that is one of those nuances. The Office of 
Complex Investigation does not get involved until local law 
enforcement has either declined or is unable to investigate. 
Then, the determination of whether an OCI investigation is 
appropriate is done with a request from the adjutant general, 
of which we coordinate with the State, and then open a case for 
investigation.
    So for victims to contact----
    Ms. Speier. Did you investigate Lieutenant Colonel James' 
complaint?
    General Walker. No, we did not, to my knowledge.
    Ms. Speier. And why not?
    General Walker. Based on the timing, I am not sure that the 
office was available at that time as a resource. So I can 
verify that, but obviously I am unaware at this time 
specifically if her case was investigated by our office. Based 
on the fact that I have read some in the press about her 
situation, the timing of her case may have been outside the OCI 
window in which that would have been an avenue for her. And, 
again, we would only do an administrative investigation.
    No matter when that case was filed, it would have been 
subject to a local criminal investigation and a prosecution 
outside of military channels. So I can get all the background 
information on that and we will report back on all those 
details.
    [The information referred to can be found in the Appendix 
on page 45.]
    Ms. Speier. Great. Thank you.
    My time has expired, substantially.
    Mr. Gallagher, you are recognized for an additional 2 
minutes of----
    Mr. Gallagher. Okay.
    General Hokanson, what is the sort of day-to-day reality of 
your communication and cooperation with the TAGs, the adjutants 
general, on this issue? Do you think most of them understand 
the importance of these cases?
    General Hokanson. Congressman Gallagher, and I would say 
that all of our adjutants general understand the importance of 
this across the entire formation. And when you look at my 
communications with the adjutants general since I became the 
chief, I have a call with them every single week where we 
discuss any issues across the organization. And previously, 
some of those related to this have been the education and 
training of our SAPR [Sexual Assault Prevention and Response] 
and SHARP [Sexual Harassment Assault Response and Prevention] 
personnel. And we are able to address that right away through 
our personnel branch and training.
    And so I have a touch point every single week with the 
adjutants general. And then three times a year we all get 
together as a group, usually in person, although virtually the 
last couple of times, and have a Guard senior leader 
conference, which our staff gets updates. And part of that 
usually includes a sexual assault and sexual harassment 
programs.
    And in addition to that, throughout the year, I go to 
specific regions so we can meet in a smaller group and have 
conversations about regional issues that TAGs are facing. And 
any time that something like that, we will make sure that we 
have representatives to address any sexual assault or sexual 
harassment issues.
    And lastly, on a daily basis, the National Guard Bureau 
staff and both the Director of the Army Guard and the Air Guard 
are in constant communication with the 54 States, territories, 
and DC. And specifically, when I tell the adjutants general, I 
respond by email or phone call within 24 hours any time one of 
them reaches out to me, to ensure that there is no delay in any 
support or any concerns that they may have in any way that we 
can provide support.
    Mr. Gallagher. Thank you.
    As I read your testimony, sir, I think the biggest theme or 
takeaway I have from it is this emphasis on prevention, how 
prevention is key.
    Just based on your experience with this issue, what lines 
of effort for prevention do you think are most promising? Where 
do you think would be smart for us to invest more in terms of 
prevention activities?
    General Hokanson. Well, Congressman, I think one of the 
best ways is to make sure that we have the resources, to have 
the trained personnel at the right level to really train and 
work with our leadership at every level, from the lowest level 
to the highest level. And part of that is making sure that our 
training actually has an impact where we are not just talking 
to people but it is interactive. And we need the intent of what 
that education is intended to do.
    And, frankly, it is not just making sure that we follow the 
rules, but teaching others that respect is both ways. We have 
to have, basically, an environment which flourishes with 
dignity and respect, and it has got to be safe. And we have to 
encourage anyone that is there, whether in the chain of command 
or not, and we call this bystander intervention. Everyone needs 
to be aware what sexual assault and harassment is. And we want 
to encourage everyone to take action if they see this occurring 
at any time.
    Mr. Gallagher. I appreciate that.
    Sort of a related question for Brigadier General Walker. 
You know, now that we have a decade of experience with OCI, 
what are your resource constraints? Do you feel like you have 
enough investigators to meet the demand from States right now?
    General Walker. Thank you. Really, the resource issue has 
ironically taken care of itself to some extent in the recent 
amendments to the NDAA, which historically OCI had operated 
with members who are on what in essence is temporary duty at 
OCI, which were limited in the number of years in which they 
could serve outside of their States. We have just gotten relief 
from that in that we can now have members up to 5 years. And we 
are implementing that as policy now within the Guard Bureau, 
waiting for service direction on that. And that will go a long 
way to us keeping our trained investigators. The more trained 
an investigator is, the higher volume of cases they can 
investigate. So it is obviously advantageous to keep people 
there longer.
    In addition to that, one of the things that General 
Hokanson also has done is now we have civilian resources. So we 
have hired four full-time civilian investigators and plan to 
hire several more such that we will have what I will call a 
backbone of experienced investigators that will be the 
continuity within our organization to either train new people 
or provide that leadership base that we need as people rotate 
in and out for their tours at OCI on the military side.
    So from a resource perspective, in the last year that 
General Hokanson has been on board, we have made great strides 
into ensuring that this is an enduring mission, it is 
sustainable, without absolutely relying on merely volunteers 
from the field who are here for a limited period of time.
    So as I sit here today, with the caseload that we have, we 
can meet the investigative burden that we have. However, that 
again is a moving target depending on the number of cases we 
get, if there were to be some significant change in the volume. 
But as of today, OCI is meeting demand based off the personnel 
that we have.
    Mr. Gallagher. Well, my time has expired. But it is good to 
note what sounds like sort of cautious optimism that you are 
moving in the right direction, because I think in the February 
2017 GAO [Government Accountability Office] report, in the 2018 
Guard report to Congress, and then a 2018 GAO report on OCI, 
timeliness came out as an issue. The timeliness of the 
investigations wasn't where we needed it to be.
    And so I think we are interested in making sure you have 
the resources you need to do these investigations in a timely 
manner.
    And, with that, I yield back.
    Ms. Speier. The gentleman yields back.
    The gentlewoman from Pennsylvania, Ms. Houlahan is 
recognized for 5 minutes.
    Ms. Houlahan. Thank you, Madam Chair. And thank you so much 
for the opportunity to talk to both of you today. And I will 
actually be following up on the questions about timeliness.
    General Hokanson, my questions sort of follow up as well on 
the conversations that you and I had yesterday. I appreciate 
the chance to have spoken to you yesterday to go over some very 
serious concerns that I have had with ongoing investigations of 
sexual harassment allegations, as you know, at Horsham Air 
National Guard Base.
    Horsham is in my colleague Representative Madeleine Dean's 
district. And I have been working very closely with her office 
since June of 2020 speaking to timeliness--we are now, as we 
all know, in 2022--after receiving an outpouring of rightful 
concern from my constituents. This case has been plagued by 
repeated delays, as we talked about in our conversations, and 
incomplete reporting. And it has been leading many, 
unfortunately, to conclude that is simply being slow-rolled to 
the point where demands for any accountability disappear.
    So I know that you share my commitment to eradicating 
sexual harassment and assault from the National Guard, sir, and 
I just wanted to hear your commitment that you will look into 
the Horsham investigation and make sure that there is proper 
oversight, and that the investigation itself is concluded 
without any further and undue delay, sir.
    General Hokanson. Yes, Congresswoman. And actually, I will 
reach out directly to Major General Mark Schindler, the 
adjutant general for Pennsylvania, to get the most current 
information and get back to your staff immediately.
    [The information referred to can be found in the Appendix 
on page 45.]
    Ms. Houlahan. All right.
    General Hokanson. Obviously, time is always of the essence.
    Ms. Houlahan. Yeah. I very much appreciate it because, as 
you know, memories fade and people, you know, change places and 
they are no longer available for people to ask questions of 
them.
    And, sir, once the investigation is concluded, would you 
also please commit to me that you would review the report of 
investigation as well?
    General Hokanson. Yes, ma'am. Absolutely.
    Ms. Houlahan. Thank you.
    And my next question is also related, and it is for General 
Walker as well. I was very interested in your opening statement 
and your testimony when you spoke quite extensively about the 
purpose of OCI and the origins of OCI. And so to the extent 
that you are able to share, I would like to understand a little 
bit more about OCI's process for initiating an investigation, 
because, again, in August of 2020, Representative Dean sent a 
request to OCI to have them look into the complaints at 
Horsham. And the OCI responded and said that after reviewing 
the request, that they had determined that the most appropriate 
avenue for the investigation was the Pennsylvania National 
Guard, even though there were very high-ranking officers within 
the Pennsylvania National Guard who were named in many of these 
complaints.
    So the denial from OCI didn't really offer us very much 
detail, and I was hoping you might be able to offer any 
insights as to why OCI declined to take up the Horsham case.
    General Walker. Well, thank you, Congresswoman.
    And, again, OCI has a very limited portfolio. We deal with 
sexual assault cases only. The information, as I know--and, of 
course, I was not there, I did not read the initial request, 
but as best I can tell, it would be a request that would not be 
within our ability to investigate, because we only do sexual 
assault. The allegations at Horsham were more of the harassment 
type.
    And just to back up a little bit to your question about OCI 
and how we intake and kind of the process that evolved. We--as 
I said, we only deal with sexual assault. If there are other 
issues going on--and oftentimes there are other areas of 
misconduct happening--the States are--often run concurrent 
investigations with an OCI investigation. We are limited to 
just the sexual assault aspect. If there is other aspects, such 
as harassment, that delves into the process that is already 
established that starts within the States.
    And so I think there was some confusion initially. OCI is 
very limited. At that time, OCI was about to be broken off into 
a separate directorate. And one of the things that OCI had been 
credited with were comprehensive assessments such as what 
happened in Wisconsin, which you may be aware of.
    Ms. Houlahan. And, sir, if it is okay, if I might 
interrupt, because I know I have very limited time. And I sort 
of anticipated that that might be what was the qualifier there. 
And you mentioned in your remarks that OCI is not a criminal 
but, rather, an investigative group. And you mentioned that it 
was only responsible for sexual assault rather than harassment.
    But interestingly enough, every time we have been talking 
about the issues of this hearing, we have talked about assault 
and harassment together. And so it seems as though there really 
is kind of a gap in coverage that is going on, possibly in 
OCI's mandate. And I am wondering whether or not it might make 
sense to investigate whether we should be broadening the 
purview of OCI so that there also is that sort of sexual 
assault and harassment. Because it seems as though all of our 
training is encompassing of all of that, all of the casework 
tends to be encompassing of all that, and it just seems like 
that there may be a gap in coverage there.
    General Walker. Well, Congresswoman, it is not a gap in 
coverage. Historically, harassment and assault within the 
military had gone down two separate tracks. Harassment was 
never a criminal offense, whereas assault was always a criminal 
offense. So over the years, they have developed in separate 
tracks. As you know, the Active Force under Title 10, the UCMJ 
[Uniform Code of Military Justice] is undergoing changes that 
will make harassment probably a criminal act as well.
    So the National Guard----
    Ms. Speier. Actually, the gentlewoman's time has expired.
    Ms. Houlahan. Yes, I know. I apologize, Madam Chair. I will 
yield back. My time has expired. And I look forward to 
continuing this conversation with you. And thank you so much 
for the time.
    Ms. Speier. So, Brigadier General, just for your 
edification, it was in the NDAA. It is now an offense under the 
UCMJ, sexual harassment.
    The gentleman from Texas is now recognized for 5 minutes, 
Mr. Jackson.
    Dr. Jackson. Thank you, Chairwoman Speier and Ranking 
Member Gallagher, for holding this hearing today. I also want 
to thank General Hokanson and General Walker for testifying.
    I believe this is the first hearing in this subcommittee 
since the chairwoman announced her retirement. I want to extend 
a warm congratulations to Chairwoman Speier for her dedication 
to this subcommittee, and wish her all the best in her next 
endeavor.
    We are here to have an important discussion regarding the 
prevention and response to sexual assault in the military. I 
have a bill, the Servicemember Safety and Security Improvement 
Act. It was signed into law last month as part of the fiscal 
year 2022 NDAA. Incidents of sexual harassment are not 
necessarily isolated incidents. If not addressed, they can lead 
to other serious and sometimes deadly outcomes. Sometimes they 
start with the servicemember going missing.
    The Servicemember Safety and Security Improvement Act will 
help address this issue by requiring military installations to 
review and improve policies and procedures for reporting 
servicemembers missing. This includes partnering with local and 
Federal law enforcement to promote information sharing, to 
ensure all persons in organizations on a military installation 
are accounted for.
    General Hokanson, one area where I want to work with you is 
to find a way to implement some of the best practices--some of 
these best practices for information sharing with local and 
Federal law enforcement for the National Guard. The NDAA 
required a report from the Department on the flexibility--on 
the feasibility, excuse me, of implementing this legislation 
with regards to facilities of the National Guard.
    General Hokanson, what are your thoughts on implementing 
this type of legislation with respect to the National Guard? 
And when do you expect that this committee will receive this 
report?
    General Hokanson. I strongly support that. Anytime any of 
our guardsmen--although, you know, obviously we see them on our 
drill weekend or at annual training or additional training 
periods. Anytime we don't have accountability for any of them, 
it is a significant concern for us. So anything that we can do 
to have resources available to track down or find out really 
the health and welfare of these individuals as quickly as 
possible is something that we would absolutely support.
    Dr. Jackson. Thank you, sir. I hope we see the report on 
that in the near future. I look forward to working with you on 
this.
    And, with that, Madam Chair, I yield back.
    Ms. Speier. The gentleman yields back.
    The gentlewoman from Texas, Ms. Escobar, is recognized for 
5 minutes.
    Ms. Escobar. Thank you, Madam Chair. And many thanks to our 
panelists here today.
    To our panelists, I want to give you some perspective on 
the questions I am about to be asking. I am the proud 
representative for Fort Bliss, Texas, here in Congress. And I 
am also the proud representative of the safe and secure 
community of El Paso, which is right on the U.S.-Mexico border. 
And this is the first hearing that we have been able to have 
with the National Guard since some really alarming reports have 
been made public.
    And I know that our subcommittee's focus for the hearing 
today is around sexual assault/sexual harassment. And I am very 
proud of the work that we have done under the chairwoman's 
leadership to place and prioritize the safety and welfare of 
our servicemembers, really making it paramount for this 
committee. And it is with that same perspective in mind that I 
would like to ask our National Guard leadership some questions 
about this, because I know we are all committed to the 
readiness of our servicemembers.
    There have been some deeply alarming reports coming out of 
Texas. We have a deployment of Texas National Guard through an 
operation called Operation Lone Star headed by Texas Governor 
Greg Abbott. I am hoping for a separate hearing around some of 
the really alarming reports about increased suicides, 
deplorable living conditions, lack of full pay, et cetera. And 
it is my hope that this subcommittee and our committee as a 
whole approaches these issues in the same bipartisan manner 
that we have approached sexual harassment and sexual assault.
    With that, General Hokanson, I would like to ask you a 
couple of questions just to clarify. Can you please describe 
the relationship the Bureau and the National Guards of each 
State have? And in what ways does that relationship hinder the 
Bureau's ability to exercise full oversight investigations and 
prosecutions?
    General Hokanson. Congresswoman, when we look at our 
relationship, so we work very closely with all of the 54 and 
communicate, as I mentioned before, on a very regular basis to 
make sure that they are in compliance with all of the service 
requirements, both within the Army and the Air Force. And when 
there is a gap, we try and fill that through Chief of National 
Guard Bureau instructions or also policies.
    And so when we look at the States almost as subordinate--
well, they are commanders of their National Guards responsible 
for them. And what we do is we stay in constant communications 
to help identify any issues or concerns they have and see if we 
could help them address those.
    In addition, because we work with all 54, if we see best 
practices in one State, we try and share those across the 
entire organization so that we can make the organization better 
and learn from others as we go forward. But, ultimately, we 
work with them to make sure that they are in compliance with 
everything that needs to be done with respect to the services. 
And then we assist them in any way that we can on literally a 
daily basis.
    Ms. Escobar. Thank you very much, General.
    The National Guard troops deployed on Governor Greg 
Abbott's Operation Lone Star are operating primarily under 
State Active Duty status. And while those reports of what is 
known are really deeply alarming, I am also concerned about 
what is not yet known, what may not be public, including 
concerns that I have around conditions that might further 
sexual harassment and sexual assault as well.
    Are there mechanisms that the Bureau can use to conduct 
investigations, oversight, and prosecutions of these missions 
when our servicemembers have been subjected to really alarming 
and shocking conditions such as those under Operation Lone 
Star?
    General Hokanson. So, Congresswoman, in this case, when we 
hear reports like that, we take every single one very 
seriously. And we reach out to the leadership within that State 
to ask if they need help with anything or where they are 
finding shortcomings. And we always try to do everything we can 
to support them.
    Specifically to that, though, I would like to hand it over 
to General Walker to add some potential legal implications on 
what they can do to help.
    General Walker. Thank you, sir.
    And so this is one of those issues where I think the 
National Guard, we have to be very specific. And, obviously, 
the status of each member is important in how and when the 
National Guard intervenes and at what levels. And that I think 
is the threshold issue that we run into every time there is an 
issue with guardsmen and how and what the Bureau can do.
    With respect to sexual assault and sexual harassment, we 
are constantly looking to inform the States and inform 
leadership on those things that are specifically triggering the 
environment which makes sexual assaults most likely to happen. 
And through analytics and basic information that we are 
gleaning from our reports, we are actively passing that 
information on to the adjutants general, such that when we 
deploy, if that is a trigger, we can address those situations 
where leadership can remove those things from the environment 
so that we can hopefully reduce and mitigate those factors that 
contribute to sexual assault.
    So every time we have an incident now, we are taking great 
pains to pull data and to analyze those facts so that we can 
replicate best practices across the 54, particularly in 
situations that are common to us, such as deployments. And 
other endeavors in which----
    Ms. Speier. The gentlewoman's time has expired. Can you 
wrap up your comments, please?
    Ms. Escobar. General, my office will circle back with you.
    I want to sound the alarm, Madam Chair, and to our 
panelists, and to my colleagues. And it is my hope that we can 
address all of this in the same bipartisan spirit that we have 
worked in in the past in our subcommittee.
    Thank you all so much. I yield back.
    Ms. Speier. The gentlewoman's time has expired.
    The gentlewoman from Michigan, Ms. McClain, is recognized 
for 5 minutes.
    Mrs. McClain. Thank you, Madam Chairwoman.
    I want to thank you all for being here today. As a member 
of this committee who has a National Guard base in their 
district, it really saddens me that sexual assault is all too 
common in our National Guard. And I want to assure all of you, 
and to all of my colleagues on this committee, that I am 
committed to rooting out this problem. We have to address it. 
We have to put systems and processes in place to do better.
    My question, General Hokanson, while I am dedicated to 
ensuring our National Guard provides a safe and secure way for 
victims to come forward, which is critical, so we can catch and 
prosecute the perpetrators of sexual violence, the only concern 
that I really have is that we create--that we are not creating 
a system that is guilty until proven innocent. So I want to 
make sure that, you know, the pendulum doesn't swing too far 
the other way.
    And while I appreciate the Independent Review Committee's 
recommendation for the Guard, the recommendations seem to be 
heavily focused on prevention rather than any for actual 
processing or investigation of potential crimes. And there is a 
very important piece--prevention, yes, is critical and is 
extremely important, but we also have to have an actual process 
for investigation.
    Can you explain to me how the process for both the victim 
and the accused will navigate through the IRC's proposed 
systems?
    General Hokanson. Congresswoman, thank you. And our process 
right now--so, obviously, the default is immediately to go to 
local law enforcement to determine whether or not they will 
take the case, do the investigation, or prosecute. And once 
that is determined, if it stays in local law enforcement, it 
stays with them. If they for some reason do not take the case, 
that is where we provide an additional avenue for those 
individuals to pursue through administrative means through OCI.
    And so, when I look at the victim, obviously the first 
thing that--and I will just take it from the role of the 
commander--is to make sure that they report this immediately 
within 24 hours and they get a victim advocate for the victim. 
And from there, the commander has various tools at his or her 
disposal. A couple of those are, is to do an expedited transfer 
of the member out of that organization. They can also do a 
civilian or military protective order, and they can also 
initiate a flag on the accused's personnel file just so that 
folks are aware that there is an ongoing investigation. But we 
are very clear that we want to make sure that everyone is given 
due process throughout this process.
    And what I would like to do now is hand it over to General 
Walker to talk about the specifics of that, because many of the 
time it rolls into his purview from there.
    So, Chuck.
    General Walker. Thank you, sir.
    So, again, the National Guard, without military criminal 
investigative organizations to initiate a criminal 
investigation, we immediately refer that to local law 
enforcement. After the local law enforcement investigation is 
complete, and if it is appropriate, we will conduct an 
administrative investigation. And I think it is important--you 
know, oftentimes we see in the media and other accounts where 
people are not happy with the results of an administrative 
investigation, because we have very limited remedies for 
criminal activities. We can discharge a member, but there is no 
incarceration, there is no registry as a sex offender, there is 
none of the other institutional controls that our society deems 
important for sex crimes.
    Mrs. McClain. Can I back up for one second?
    General Walker. Yes.
    Mrs. McClain. Is there a show--when you turn it over to the 
local law enforcement agencies, there is a--I am trying to 
think of the word and it is escaping me--there is a for cause 
hearing. Correct?
    General Walker. Well, it depends on the jurisdiction. So 
the process, again, is for, unlike under a uniformed process 
under the UCMJ, each jurisdiction is going to determine exactly 
how that investigation and ultimate prosecution of that case, 
if it makes it there, will happen. So we have no visibility on 
what happens once we turn it over, which is part of what is the 
intent on Active Duty, take it out of the hands of commanders 
to an unbiased entity----
    Mrs. McClain. So, sir, in the interest of time, it would 
follow the normal chain--the normal prosecution as a normal 
civilian would?
    General Walker. Correct.
    Mrs. McClain. Because so you are taking it out----
    Okay. Thank you, sir. I have one second, so I appreciate 
your time.
    And I yield back.
    Ms. Speier. The gentlewoman yields back.
    The gentlewoman from California, Ms. Jacobs, is recognized 
for 5 minutes.
    Ms. Jacobs. Well, thank you, Madam Chair. And thank you to 
the witnesses for being here.
    General Hokanson, I was pretty alarmed to hear that you had 
not fully implemented even one of the recommendations the IRC 
report highlighted. In light of that, I wanted to follow up on 
another report, a 2017 GAO report. That report recommended the 
Chief of the National Guard Bureau reassess the Office of 
Complex Administrative Investigations' timeliness and resources 
to determine how to improve the timeliness of processing sexual 
assault investigations involving members of the Army National 
Guard, and to provide the resources needed to improve the 
timeliness of these investigations.
    Has such a deliberate and thorough reassessment happened? 
And, if so, what has been done to improve the speed of OCI 
investigations?
    I bring this up because my colleague, Ms. Houlahan, brought 
up the importance of timeliness about a specific case. But it 
seems, at least according to GAO, this is a broader issue that 
has plagued OCI for some time.
    General Hokanson. Congresswoman, thank you.
    And so when I became the Chief of the National Guard Bureau 
in late 2020, one of the first things I did was sit down with 
our general counsel and look at OCI. And this kind of goes back 
to my opening statement that I, like many others, was 
frustrated. We seemed to put a lot of time and effort into 
this, but it never really seems to move the needle in a 
positive direction.
    And so when I spoke with the adjutants general, and this 
really goes to them understanding just how important of an 
issue this is, I told them, I said, look, we have a backlog. 
The way to address that backlog is we need more investigators 
so that we can get more folks out to the field to complete 
these investigations.
    And working with them, as General Walker mentioned, I was 
able to increase the number of investigators by 60 percent, and 
that was through the adjutants general identifying folks within 
their formations that have the capability to serve as 
investigators. And that allowed us really to get at this 
backlog, because it is really unacceptable for extended 
timelines. And part of that, we were able to resolve. And 
General Walker, frankly, has done admirable work related to 
that.
    The other thing that we found when I looked at OCI is, 
under the general counsel's office, it was really a subordinate 
organization. And I felt one way to show the entire National 
Guard just how important this is is to create a stand-alone 
organization and put a general officer in charge. And, 
thankfully, we have folks in our formations, like General 
Walker who was also a Federal judge, who really took that 
organization, looked at the entire process, streamlined it, and 
then was able to get investigators, not just here in DC but 
regionally, so they could travel quicker to all of these 
locations.
    And I don't want to steal General Walker's thunder, but, 
Chuck, if you would like to add a lot of the great work that 
you have done for the team to help.
    General Walker. Well, thank you, sir. And, really, I think 
General Hokanson has hit the essence. Attention to the problem 
is what General Hokanson has brought to the Office of Complex 
Investigations.
    And I will tell you, everyone talks of time limits, but I 
want us to think about the National Guard and what we are 
doing. We have got a force that is 75 to 80 percent part time. 
We are a full-time investigative capability, but we also depend 
on the victim's counsel, the defense counsel, and the State to 
have the witnesses available when we do an investigation.
    Oftentimes, we are limited to drill periods which happen 
once a month. So for National Guard, 3 days is actually 45 days 
equivalent, given the availability of our witnesses and the 
availability of us to get on site and do investigations.
    So it is inherent in what we do that our timelines don't 
match what you may see on Active Duty or elsewhere in the 
military because of the unique nature of National Guard 
service, which we may not have control over individuals that we 
need to question until we show up for drill. And so one of the 
factors that we will never be able to fully address is how long 
it takes, in some instances, to start an investigation.
    And, secondarily, those resources, either victim's counsel 
or defense counsel, are limited as well. So we have to 
coordinate all these other stakeholders with each 
investigation. And so I have to point that out that it is not 
as easy as us just saying, we are going to leave tomorrow and 
do an investigation. It is incredible what our investigators do 
in order to coordinate these trips. And then, oh, by the way, 
we are in a pandemic and COVID, airline issues.
    To get an investigation to go from start to finish is a 
complicated process. So we are doing everything we can to 
remove those barriers through cross-functional communication, 
and we are seeing dramatic decreases in the timeliness. But we 
will never be as fast as we want to be just by nature of the 
National Guard.
    Ms. Jacobs. And, General Walker, I appreciate that. In my 5 
seconds remaining, I just want to say it brings up an important 
point that, I don't believe National Guard servicemembers get 
the same level of care as Active Duty servicemembers, in part, 
because of these limitations of immediate transfer. So just 
want to make sure we are giving our National Guard members the 
care that they deserve.
    And, Madam Chair, I yield back.
    Ms. Speier. The gentlewoman yields back.
    I see Mr. Fallon is somewhere.
    Mr. Fallon. Yes, ma'am.
    Ms. Speier. You are next on the agenda if you are inclined 
to ask questions. You are recognized for 5 minutes.
    Mr. Fallon. Thank you. Thank you so much and very gracious 
of you. I appreciate it.
    My question is for General Hokanson. How do we reconcile a 
State's Code of Military Justice with the UCMJ?
    General Hokanson. So, Congressman, we look at that because 
there are changes to the Uniform Code of Military Justice. Each 
of the States that have a State Code of Military Justice may or 
may not make changes as quickly as those adjust. And so we 
really rely on our OCI as they go out to investigate to really 
look at the State Code of Military Justice and how it applies.
    So if we go back to the administrative investigations, 
there are some States that will utilize that as the means to 
start potentially a court martial, but not all States are like 
that. And so we really rely on Chuck and his team when they go 
to a State to do an investigation to make sure that they are 
aware of that State's specific code so that they know what the 
leadership, what options they have once they receive the 
results of that investigation.
    Mr. Fallon. General, I am sorry for interrupting. Are there 
any discrepancies which you think need to be addressed?
    General Hokanson. Congressman, I am not sure I can answer 
that specifically because of the--basically, the rate at which 
some of these change. For us, if we have concerns, and as 
mentioned previously, if an article comes up or there is an 
accusation, we try and reach out to that State immediately to 
see, hey, is there anything we can help, any resources that you 
need or guidance that you are lacking to help make sure we fill 
gaps in any areas to make sure that we are doing the right 
thing for our guardsmen and women.
    Mr. Fallon. Well, General, I have another question, but 
before I get to that, I just want to make sure. I would be 
remiss if I didn't mention that I think your leadership is 
really helping dramatically address this problem, and it is 
very much appreciated.
    And to what my colleague just before me mentioned, we want 
to ensure that our Guard troops aren't treated as second-class 
soldiers in any regard. And that is upon us and that is 
incumbent on us to do what we can from our level. That is why I 
supported the equity in hazardous pay for National Guard 
troops.
    But another question real quickly. The SHARP program, 
obviously, as you know, is an annual training requirement for 
the National Guard soldiers. But with so few drill weekends, 
how do we ensure that this is a substantive event instead more 
of checking the box kind of thing?
    General Hokanson. So, Congressman, thank you for that 
question, because one of the things that we came up with with 
our joint task force that looked at this is a lot of the 
training that they receive is really focused on Title 10, but 
almost all of our work is done in a title 32 condition, and 
that is where we get involved. And so what we have been trying 
to do is look at ways, and one of the proposals is to create 
our own course for the National Guard to be taught at our 
Professional Education Center in Arkansas and some of our 
regional training institutes.
    And I actually yesterday saw the 6-day program under which 
they really want to tailor that training so that it is 
universal for both Army and Air Guard, but really addresses the 
unique Title 32 characteristics of the environment that we 
operate in, to your point, to make sure that when they are 
there on those limited times, their soldiers and airmen, that 
they get taught specifically to the environment that they are 
operating.
    Mr. Fallon. And, General, in the time I have remaining, can 
you give us some examples of maybe some best practices that you 
have seen from some States addressing the sexual assault 
problem?
    General Hokanson. Yes, Congressman. So when I looked at a 
recent--actually, an assistance visit we gave to the State of 
Wisconsin, and so this was a result of issues that were 
identified there a few years ago. And so one of the things that 
we did is set up, really, a roadmap in coordination with the 
State on key indicators and things that they think that they 
could do to get to the point where they had really addressed 
all of those, and these went from looking at a risk assessment 
of individual events.
    One of the things that came up from another State as well 
is really looking at a risk assessment of anytime alcohol is at 
a unit function, and are all the things in place there to help 
identify and mitigate the potential causes or an environment 
where sexual assault or sexual harassment may occur.
    Now, we also identified that there is something in the Army 
with their [inaudible] indicators where it is in the Army 
National Guard but not the Air National Guard. And so one of 
our proposals is to share that with the Air National Guard as 
well, because it really provides an anonymous ability for 
individuals to provide input and identify things that they may 
see that may cause these risk factors to be present.
    Mr. Fallon. Thank you, General.
    Madam Chair, I yield back.
    Ms. Speier. The gentleman yields back.
    To follow up on Mr. Fallon's question, General Hokanson, 
the Wisconsin National Guard had 33 sexual assault cases. Those 
cases were chosen not to be undertaken by the local district 
attorney. No action was taken, and an investigation within 
Wisconsin found that the victims didn't get any resources. And 
Wisconsin has now updated its State military law as it was 
expected to do.
    Now, the U.S. Government provides $26 billion a year to 
National Guards across this country; $26 billion. My 
understanding is that your authority is one of encouraging, 
cajoling, subtly hoping that they will do the right thing. But 
outside of giving them money, we don't have any hook to get 
them to do what they should do.
    So in the case of Wisconsin, where they haven't even 
changed their military code, when they were required to do so, 
and there are 33 cases over the course of 5 to 6 years, some 
very current, that were not pursued, and OCI has this kind of 
bizarre function, and there is not accountability, what do 
you--what should we do?
    Doesn't sound like you have anything but persuasion on your 
side. At what point do we freeze the money, or at what point do 
we say, you need to follow the UCMJ or you won't get the money?
    General Hokanson. Chair Speier, in this case, when you look 
at Wisconsin and the accusations that were made, and the 
Governor did make leadership changes when these were identified 
within their organizations. And we provided an assistant team--
assistance team for Wisconsin to really take a look at every 
aspect of what occurred.
    Ms. Speier. Excuse me, General. I am asking you a very 
specific question. Do you have any power?
    General Hokanson. Chair Speier, I think I have all the 
authorities I need to work with the States to make sure that 
they follow the service guidance that they are given.
    Ms. Speier. But if they don't, it is up to the Governor in 
a State. And in the State of Wisconsin, but for the journalists 
who brought these cases to the attention of the public, I don't 
know that anything would be done. And I think all of us here 
want to make sure that our National Guard servicemembers have 
the same protections under the law. So if--and they become 
federalized in time of war or when needed. So I really think 
that we have more work to do here.
    Let me ask you about the issue with alcohol. So I guess 
there is no prohibition of using alcohol on those exercise 
weekends. Is that right?
    General Hokanson. Usually, ma'am, not during training. 
These would be in unit functions after hours.
    Ms. Speier. All right. How do you ensure that each State 
TAG is properly investigating sexual harassment and sexual 
assault?
    General Hokanson. So with respect to sexual assault, ma'am, 
they would actually not be able to do the investigations 
because commanders are permitted from using their resources to 
do that, and so they are really reliant on both the law 
enforcement to do those investigations. And as we mentioned 
before, if local law enforcement decides for some reason not to 
do that, then OCI is the administrative avenue that we have to 
help support the States to do those investigations.
    Ms. Speier. Yeah. But if the TAG does not refer it, it 
doesn't get investigated. Is that correct?
    General Hokanson. Yes, ma'am.
    Ms. Speier. All right. So there is a huge problem here. 
And, in many respects, what is going on in the National Guard 
is what went on in the military when it was up to the chain of 
command to make a determination as to whether or not to pursue 
a sexual assault case. And we found out that, for a number of 
reasons, they chose not to do that. And a TAG who has a number 
of sexual assault cases that occur under their command become 
loath to report them or seek assistance of OCI for fear that it 
might reflect poorly on them, and sometimes they are the 
assaulter.
    So I have got some serious concerns. It is $26 billion that 
we dole out every year to these States, and we have no control, 
no authority to protect those National Guard servicemembers if 
the State chooses not too.
    I will now yield to Mr. Gallagher if he has further 
questions.
    Mr. Gallagher. I have no further questions.
    Ms. Speier. Let's see. Who is next? Ms. Houlahan is no 
longer here.
    Ms. Escobar, you are recognized.
    Ms. Escobar. Thank you, Madam Chair.
    You know, I would just--I would like to circle back with 
General Walker, because General Hokanson had asked that General 
Walker respond to what legal options the National Guard Bureau 
would have in the cases such as those I have outlined under 
Operation Lone Star and those cases that the chair has outlined 
also as an example.
    If there is a Governor who continues to ignore the health, 
safety, and welfare of the National Guard specifically, and has 
not rectified the situation--and I am talking about lots of 
different egregious offenses that we have seen in Texas--what 
are the--to General Walker, what are the legal options 
available to the National Guard Bureau?
    General Walker. Well, Congresswoman, let me start with kind 
of addressing what happens when a sexual assault is reported, 
that that----
    Ms. Escobar. And, General Walker, let me interrupt you. My 
apologies. But I am not talking about sexual assault, sexual 
harassment in particular. This is a much more general question.
    General Walker. So, Congresswoman, to address that general 
question would definitely exceed the scope of why I am here 
today. I can tell you that in order for the National Guard to 
exert control over the State in a nonfederalized status is an 
ongoing issue of debate. And as you have seen in other areas 
that are going on right now, it is a subject of actual 
litigation as to what the National Guard's authorities are.
    You know, and the reality is that we work with the States 
wherever we can to address issues when they are brought to our 
attention. And from a--you know, as someone who came from the 
field, so that is a nuance. I have only been in Guard Bureau 
for a year in this role, but I was a State guardsman in 
leadership in a State. And I can tell you that the intent 
always is to comply with the service directives and to work 
with National Guard Bureau in the role of assistance in order 
to meet those requirements.
    The actual legalities of what we can do, those are 
questions well above my scope here. But I can tell you that the 
issues, when they are brought to attention, we sit down and, as 
I have seen when I was on the other side, Guard Bureau, General 
Hokanson, and staff work with the States to find solutions to 
these hard problems.
    And, again, everything that we address starts with an 
impartial investigation, from my standpoint, in OCI. If we are 
bringing it back down to sexual assault, then we provide that 
information to the States. They take it, and then they use it 
in order to make the charges.
    So I know we have problems. I know there are issues. But 
the working relationship between Guard Bureau and the States is 
quite positive. And under General Hokanson's leadership, I 
think it is the best it has been in a long time. So these 
problems, there are solutions, and it is called collaboration 
and working through some of the problems as far as authorities, 
by cooperating with each other because we all have the same 
good intent, to solve these problems and let----
    Ms. Escobar. Thank you, General Walker. I have one last 
question for you before my time expires. Is the Office of 
Complex Investigations aware of the conditions of the guardsmen 
deployed at our southern border?
    General Walker. Well, Congresswoman, that would totally be 
beyond our scope. Again, we only come into play when an 
adjutant general requests an investigation. We don't actively 
seek information outside of that role of investigating specific 
cases.
    Ms. Escobar. Okay. Thank you. Madam Chair, I yield back.
    Ms. Speier. The gentlewoman yields back.
    Are there any further questions?
    Seeing none, we thank General Hokanson and Brigadier 
General Walker for your time and attention today.
    There were a number of requests we have made. We look 
forward to receiving your answers in due time. Thank you.
    The subcommittee is adjourned.
    [Whereupon, at 3:19 p.m., the subcommittee was adjourned.]



      
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                            A P P E N D I X

                          January 19 25, 2022

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              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                            January 19, 2022

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              WITNESS RESPONSES TO QUESTIONS ASKED DURING

                              THE HEARING

                            January 19, 2022

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             RESPONSES TO QUESTIONS SUBMITTED BY MS. SPEIER

    General Hokanson. Yes, I can tell you that in this specific case 
our Office of Complex Investigations substantiated the allegation and 
the assailant is no longer in the National Guard. The identity of this 
individual is known, and he is no longer serving in the military. In 
December 2012, at the request of the West Virginia Adjutant General, 
the NGB Office of Complex Investigations investigated Ms. James' 
allegation of sexual assault against this individual. OCI substantiated 
Ms. James' allegation. Beginning in 2011 and continuing through the 
time of the OCI investigation, this individual was participating in a 
lengthy military medical evaluation process to determine whether he was 
medically fit for continued military service. After the OCI 
investigation was complete, the individual received a General Officer 
Letter/Memorandum of Reprimand, he resigned from his full-time position 
in the West Virginia National Guard, and he was medically retired from 
military service.   [See page 8.]
    General Walker. Absolutely. I can tell you that a review of OCI 
records revealed no cases wherein any state was aware of a 
substantiated allegation against any reported perpetrator, failed to 
act, and a reported perpetrator reoffended. National Guard victims 
filing a restricted report are informed by their Sexual Assault 
Response Coordinator or Sexual Assault Prevention and Response victim 
advocate how to anonymously submit suspect information to help the DOD 
identify serial offenders. Victims decide the level of involvement in 
the CATCH [Catch a Serial Offender] Program to participate at any time, 
even after being informed that there is a match to information they 
provided in CATCH.   [See page 8.]
    General Walker. Yes, we did. The Adjutant General of West Virginia 
requested an OCI investigation in November 2012, and the investigation 
was closed in January 2013 with LTC [Lieutenant Colonel] James' 
allegations substantiated.   [See page 9.]
                                 ______
                                 
            RESPONSES TO QUESTIONS SUBMITTED BY MS. HOULAHAN
    General Hokanson. Yes, Congresswoman, specific to the sexual 
harassment allegations at Horsham Air National Guard Base, our staff 
has talked to the Pennsylvania National Guard Leadership, and I can 
tell you that the state is committed to finding the appropriate 
resolutions to the complaints, as quickly as possible. I can understand 
your frustration at the delay, but it's my understanding additional 
complaints have been filed which could have impacted the resolution of 
the investigation. You have my commitment that I will do what is within 
my authority to ensure the investigation is complete without undue 
delay.   [See page 12.]



      
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              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                            January 19, 2022

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                   QUESTIONS SUBMITTED BY MS. SPEIER

    Ms. Speier. What are the requirements for National Guard units to 
report sexual assault to the National Guard Bureau? What are the 
requirements for National Guard units to report sexual harassment to 
the National Guard Bureau? How does the NGB ensure compliance with 
those requirements? What is the consequence for not complying with the 
reporting requirements?
    General Hokanson. National Guard units report each restricted and 
unrestricted sexual assaults to the National Guard Bureau's Sexual 
Assault Prevention and Response (NGB-J1-SAPR) Division by submitting a 
victims report within 24 hours. The Sexual Assault Response Coordinator 
enters the victim's case into the Defense Sexual Assault Incident 
Database within 48 hours of receiving the victim's report. An 8-day 
Sexual Assault Incident Response Oversight [SAIRO] is reported to NGB-
J1-SAPR within eight days from commander's notification of a sexual 
assault. Commander also submit critical information requirements 
reports on sexual assault incidents that meet one of the Secretary of 
Defense's qualifying categories to NGB-J1-SAPR. Once a State Service 
Member (Army National Guard or Air National Guard) complaint of sexual 
harassment is made, the State must forward the allegations to NGB-EO-
CMA and obtain a tracking number in order for NGB to monitor the 
complaint in accordance with CNGBM [Chief National Guard Bureau 
Manuals] 9601.01, Enclosure A, Paragraph 1b. Additionally, after a 
member accepts, withdraws or submits the Formal Resolution Request 
[FRR], the State will submit the FRR for preliminary review with NGB 
DEI [National Guard Bureau Office of Diversity, Equity, and Inclusion] 
Complaints Management and Adjudication Branch [CMA]. NGB-J1-SAPR and 
NGB DEI are collaborating on building processes and policy timed with 
release of service guidance affording sexual harassment complainants 
access to Sexual Assault Prevention and Response Victim Advocacy 
services. There are two processes for Sexual Harassment complaints and 
Anti-Harassment (A-H) Inquiries for State civilians. Once 
inappropriate/unprofessional behavior (NOT unlawful; could be FIRST 
instance) complaint is made, the State works with Supervisor to 
initiate an inquiry within two business days to stop the harassing 
behavior. If not resolved, the State provides an alternate dispute 
resolution [ADR] or any mitigation of harassing behavior(s) and 
Prevention Plan after report submission. The State reviews the inquiry 
report and proposed resolution to determine if occurred; if inquiry 
indicates that there are more issues than original allegation then an 
investigation can be initiated. Once the State Civilian member 
complaint of sexual harassment is made, the State provides possible 
resolution and alternate dispute resolution and Notice of Right to File 
issued. States must conduct the final interview and issue the Notice of 
Right to File a Discrimination Complaint. State Adjutant Generals 
accepts or rejects complaint on behalf of the State. Civilian sexual 
harassment investigations are conducted by DOD Investigations and 
Resolutions Directorate. The Equal Employment Opportunity Commission 
conducts a hearing or makes final decision. The policies, instructions 
and guidance for these processes are being reviewed, updated and will 
be published based on NG Sexual Assault Prevention Task Force and IRC 
Recommendations and NGB and States Self Assessments. J1-SAPR and DEI 
are creating the process and policy allowing sexual harassment 
complainants to receive access to Sexual Assault Prevention and 
Response Victim Advocacy services. NGB-J1-SAPR relies on relationships, 
communication and transparency to maintain compliance within our SAPR 
program. If compliance is not being met, NGB-J1-SAPR will discuss 
compliance with the State SARCs and SAPR VAs with escalation to the 
Adjutants General by NGB senior leaders if necessary.
    Ms. Speier. Do the NGB or the services provide oversight into the 
handling of sexual assault and sexual harassment allegations beyond the 
local National Guard unit?
    General Hokanson. NGB-J1-SAPR provides oversight of sexual assault 
allegations within the National Guard however, oversight into the local 
communities of law enforcement and investigation is not overseen by 
NGB-J1-SAPR. State SARCs work to establish Memorandum of 
Understandings/Memorandum of Agreements to ensure collaboration and 
standardization of victim care/services within the victim's community. 
Staff Judge Advocates and/or Provost Marshalls liaise with local law 
enforcement to obtain investigation updates presented at the monthly 
Case Management Group meetings.
    Ms. Speier. Is there a required discharge or retention decision for 
members of the National Guard following a substantiated allegation of 
sexual assault or sexual harassment?
    General Hokanson. CNGBI 1300.01 states commanders will process 
National Guard Service members not discharged for a conviction of: 
rape, sexual assault, forcible sodomy, or an attempt to commit one of 
these crimes, for administrative separation for misconduct in 
accordance with DoDI 6495.02, ``Sexual Assault Prevention and Response 
Program Procedures'', DoDI 1332.14, ``Enlisted Administrative 
Separations'', and DoDI 1332.30, ``Commissioned Officer Administrative 
Separations''. Convictions are determined by local jurisdictions.
    Ms. Speier. Do you track compliance with SAPR training 
requirements, and how? If so, which states are in compliance, and which 
are not?
    General Hokanson. NGB-J1-SAPR tracks compliance with SAPR annual 
training requirements through the Army National Guard (ARNG) Digital 
Training Management System and the Air National Guard (ANG) Attached 
Resource Computer Network (ARCNET). At this time, all States are in 
compliance meeting annual training requirements. NGB-J1-SAPR provides a 
quarterly status of SAPR annual training to the state SARCs.
    Ms. Speier. If a state is not in compliance with SAPR requirements 
or, even if technically in compliance, is not effectively preventing 
and responding to sexual harassment and sexual assault and is not 
making sufficient effort to address this problem, what authorities and 
options does the National Guard Bureau have to compel states to act?
    General Hokanson. Congress provided the Services and National Guard 
Bureau the authority to issue regulations regarding the SAPR program 
and it is our experience that Adjutants General are quite diligent and 
conscientious in making every effort to implement and execute these 
SAPR programs in their non- federalized National Guards. The National 
Guard Bureau works closely with the states to assist them with any 
problem or concern that may arise in the execution of their SAPR 
programs and this has proven to be an effective way of emphasizing the 
importance of a well-functioning SAPR program within the states. As the 
statutory channel of communications, the National Guard Bureau does not 
have Title-10 command authority over the non-federalized National 
Guard. Service and National Guard Bureau policies are designed to 
facilitate and assist National Guard forces in complying with federal 
military regulations, and federal inspections and reporting 
requirements are used to assess National Guard readiness and compliance 
with these federal standards. The National Guard members or units that 
fail to meet those standards are held accountable through 
administrative processes, which are designed to facilitate compliance 
on an individual level and ultimately on a unit level. In worst-case 
scenarios where federal standards are not met, administrative due 
process is provided but ultimately the penalties may include loss of a 
unit or member's federal recognition. Ultimately, loss of federal 
recognition equals loss of all federal military status and benefits. 
Additionally, through 32 U.S.C. Sec. 108, Congress also provided the 
President the authority to withhold federal funding from a state's 
National Guard if the state refuses to comply with a regulation issued 
under the authority granted in Title-32.
    Ms. Speier. Are National Guard units required to field the DEOCS 
[Defense Organizational Climate Survey] or other, similar climate 
surveys? Does the NGB or the services have visibility into the results 
of such surveys, if conducted?
    General Hokanson. Yes, NG Commanders with 50 or more personnel are 
required to conduct a DEOCs within 180 days of Assumption of Command 
and every 24 months thereafter. All members are given the opportunity 
to take the survey with smaller units combined together to ensure 
anonymity. Yes, the NGB has visibility of DEOCS results across the NG 
via the DEOCS Portal.
                                 ______
                                 
                     QUESTIONS SUBMITTED BY MR. KIM
    Mr. Kim. I believe that no one that serves our country should be 
worried about whether they can afford health care and I would assert 
that this statement should extend to services needed by survivors of 
sexual assault, including mental health services. What services would 
be available if a member of the National Guard is a victim of sexual 
assault but does not have health insurance? How would that situation 
play out based on various duty statuses, or compared to their active 
duty counterparts in the services?
    General Hokanson. The National Guard relies on referrals to local 
community providers and networks to support victims. National Guard 
members can elect Tricare Reserve Select. Uninsured Service members are 
required to pay out-of-pocket for sexual assault medical care and 
counseling, unless an independent determination that the assault 
occurred in a covered status is made by the Department of Veterans 
Affairs. In that case, the National Guard member may receive free 
medical care and counseling for the Military Sexual Trauma through the 
Department of Veterans Affairs. Further, if the National Guard 
determines that the military sexual trauma occurred in the line of 
duty, the National Guard member will receive free medical care for the 
military sexual trauma through the National Guard. The Service members 
are eligible for military medical and mental health care if they are in 
an active military status (T10, T32 Active Guard Reserve--AGR or in 
Full-time National Guard duty status). Our traditional National Guard 
members in a Title 32 status (AT/IDT) are eligible for medical benefit 
if the sexual assault occurs in a duty status, through line of duty 
benefits. However, our traditional guardsmen not in any status would 
not be eligible for military medical or mental health care benefits and 
would rely on their private insurance or care from local community 
providers. If a National Guard Service member is on State Active Duty 
orders they must file for workers compensation or equivalent state-
funded health insurance. To receive care for Military Sexual Trauma 
from the Department of Veterans Affairs (VA), VA will make an 
independent service connection determination. If VA finds the Military 
Sexual Trauma service connected, the National Guard member is eligible 
for medical treatment for the Military Sexual Trauma at no cost through 
VA.
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MS. JACOBS
    Ms. Jacobs. Do you believe that civil suits against perpetrators of 
sexual assault should be pulled out from the Feres Doctrine? I know 
there has been a great deal of resistance from DOD to opening up Feres, 
but given the continued systemic breakdowns in reporting, it seems 
something needs to change. We talk about the need to ``change the 
culture'', but the best way to do that is hold perpetrators 
accountable, which currently is limited because of Feres.
    General Hokanson. I do not believe any modification is necessary 
because the Feres doctrine would not apply to civil suits against 
perpetrators of sexual assault. The Feres doctrine bars service members 
from pursuing Federal Torts Claims Act (FTCA) suits against the United 
States for in-service injuries. A civil suit against the perpetrators 
of sexual assault would be analyzed under 28 U.S.C. Sec. 2679. This 
provision provides that, for any claim against federal employees 
(including service members) who were acting in the course and scope of 
their federal employment, the exclusive remedy is against the United 
States government. If the United States Attorney certifies that the 
federal employee was acting in the scope and course of their federal 
employment, the employee is removed and replaced by the United States 
in the suit. Since perpetration of sexual assault is a crime in all 
jurisdictions, it would be considered to be outside of the scope of a 
service member's employment under the FTCA. Since it is outside the 
scope of employment, the United States Attorney would be precluded from 
substituting the United States into any federal court action in lieu of 
the service member, thus allowing civil suits to continue against the 
individual perpetrators. Further, even if the United States were a 
named party, the commission of a sexual assault would be barred under 
the intentional tort exception under 28 U.S.C. Sec. 2680(h).
    Ms. Jacobs. Do you believe that civil suits against perpetrators of 
sexual assault should be pulled out from the Feres Doctrine? I know 
there has been a great deal of resistance from DOD to opening up Feres, 
but given the continued systemic breakdowns in reporting, it seems 
something needs to change. We talk about the need to ``change the 
culture'', but the best way to do that is hold perpetrators 
accountable, which currently is limited because of Feres.
    General Walker. I do not believe any modification is necessary 
because the Feres doctrine would not apply to civil suits against 
perpetrators of sexual assault. The Feres doctrine bars service members 
from pursuing Federal Torts Claims Act (FTCA) suits against the United 
States for in-service injuries. A civil suit against the perpetrators 
of sexual assault would be analyzed under 28 U.S.C. Sec. 2679. This 
provision provides that, for any claim against federal employees 
(including service members) who were acting in the course and scope of 
their federal employment, the exclusive remedy is against the United 
States government. If the United States Attorney certifies that the 
federal employee was acting in the scope and course of their federal 
employment, the employee is removed and replaced by the United States 
in the suit. Since perpetration of sexual assault is a crime in all 
jurisdictions, it would be considered to be outside of the scope of a 
service member's employment under the FTCA. Since it is outside the 
scope of employment, the United States Attorney would be precluded from 
substituting the United States into any federal court action in lieu of 
the service member, thus allowing civil suits to continue against the 
individual perpetrators. Further, even if the United States were a 
named party, the commission of a sexual assault would be barred under 
the intentional tort exception under 28 U.S.C. Sec. 2680(h).