Military Personnel: Information on Selected National Guard
Management Issues (02-DEC-03, GAO-04-258).
In the past few years, the nation's media have focused public
attention on a series of misconduct and mismanagement issues
within the Army National Guard and the Air National Guard. As
part of the Bob Stump National Defense Authorization Act for
fiscal year 2003, Congress directed GAO to examine four issues
related to the management of the National Guard. In this report,
GAO assesses the effectiveness of the (1) procedures that the
Army National Guard and the Air National Guard have established
and implemented to deal with service members who stop attending
required training; (2) procedures that the National Guard uses
for federally recognizing state promotions of senior National
Guard officers; (3) process that the National Guard uses for
disciplining senior officers (colonels and generals) who are
guilty of misconduct; and (4) federal protections for National
Guard members or civilian federal employees who report
allegations of waste, fraud, abuse, or mismanagement
(whistleblowers) and the extent to which disciplinary action is
taken against those in the National Guard who retaliate against
whistleblowers.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-04-258
ACCNO: A08968
TITLE: Military Personnel: Information on Selected National
Guard Management Issues
DATE: 12/02/2003
SUBJECT: Military personnel
National Guard
Reporting requirements
Whistleblowers
Military officers
Military training
Employee promotions
Internal controls
Policy evaluation
Policies and procedures
******************************************************************
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GAO-04-258
United States General Accounting Office
GAO
Report to Congressional Committees
December 2003
MILITARY PERSONNEL
Information on Selected National Guard Management Issues
GAO-04-258
Highlights of GAO-04-258, a report to congressional committees
In the past few years, the nation's media have focused public attention on
a series of misconduct and mismanagement issues within the Army National
Guard and the Air National Guard.
As part of the Bob Stump National Defense Authorization Act for fiscal
year 2003, Congress directed GAO to examine four issues related to the
management of the National Guard. In this report, GAO assesses the
effectiveness of the (1) procedures that the Army National Guard and the
Air National Guard have established and implemented to deal with service
members who stop attending required training; (2) procedures that the
National Guard uses for federally recognizing state promotions of senior
National Guard officers; (3) process that the National Guard uses for
disciplining senior officers (colonels and generals) who are guilty of
misconduct; and (4) federal protections for National Guard members or
civilian federal employees who report allegations of waste, fraud, abuse,
or mismanagement (whistleblowers) and the extent to which disciplinary
action is taken against those in the National Guard who retaliate against
whistleblowers.
www.gao.gov/cgi-bin/getrpt?GAO-04-258.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Derek B. Stewart at (202)
512-5559 or [email protected] .
December 2003
MILITARY PERSONNEL
Information on Selected National Guard Management Issues
The Army National Guard and the Air National Guard have effective systems
in place for identifying and removing nonparticipating members when
appropriate. By placing greater attention on the accuracy of end-strength
reports the Army National Guard has reduced the number of nonparticipating
soldiers (so-called "ghost soldiers") on its rolls to less than 1 percent
of end strength. The Air National Guard has not placed the same degree of
command emphasis on the issue, but under existing procedures the guard had
a nonparticipation rate of 1.6 percent as of July 30, 2003.
The Federal Recognition Examination process has an effective set of checks
and balances that provide a reasonable assurance that senior National
Guard officers who are promoted by their state are federally qualified for
their grade and position, and moreover, that any significant issues
relating to their leadership potential or moral character are disclosed.
Our analysis of past board examinations showed that about 7 percent of
Army National Guard officers and about 3 percent of Air National Guard
officers examined for recognition as generals were denied recognition
because they were found not qualified or had conduct issues. This would
seem to indicate that information relating to the officers' leadership
potential or moral character is disclosed.
The Army National Guard and the Air National Guard have established
effective processes for taking action against senior National Guard
officers (colonels and generals) involved in misconduct cases.
Specifically, most officers found guilty of misconduct are punished. For
example, 57 of 76 officers in our review received some administrative
action ranging from a letter of reprimand to verbal counseling; 3 resigned
or retired at the request of their commanders; and only 6 had no action
taken against them. The remaining 10 cases were closed under special Army
procedures used primarily in cases involving inconsequential allegations
in which the officers involved had already retired.
The effectiveness of the federal protection for military and National
Guard whistleblowers rests principally on a two-stage process of
investigation and administrative review. The first stage involves a
service or guard Inspector General's investigation of the specific facts
and interpretation of issues associated with a reprisal allegation. In the
second stage of the investigation/administrative review process, the
Defense Department's Inspector General reviews and approves the findings
of the service or guard Inspectors General. For the reprisal allegations
that GAO reviewed, the military services took some disciplinary action
against most guard management officials who had retaliated against guard
members. However, federal whistleblower protection does not meaningfully
apply to civilian federal employees ("technicians") of the guard.
DOD concurred with our report.
Contents
Letter 1
Results in Brief 2
Agency Comments and Our Evaluation 5
Appendix I Scope and Methodology
Appendix II National Guard and Reserve Components Personnel
Strengths
Appendix III Federal Recognition Process for Recently Promoted Senior
Officers
Appendix IV National Guard Senior Officer Misconduct Cases
Appendix V Federal Protections for National Guard Whistleblowers
Appendix VI Comments from the Department of Defense
Tables
Table 1: Assigned Army National Guard Members Not Paid for Inactive Duty
Training for 3 and 7 Months, September 30, 2000-July 30, 2003 13
Table 2: Number of Reserve Component Members Not Paid for 7 or More
Months, July 2003 15 Table 3: Examples of Eligibility Requirements for
Appointment as a General Officer in the Army and Air National Guards 17
Table 4: Disposition of Applicants (Promotion to General and Colonel)
Reviewed by Army and Air National Guard Federal Recognition Boards 20
Table 5: Number of Senior Officers Involved in Substantiated Cases
of Misconduct in the Army and Air National Guards, by
Officer Category, from January 1997 through December
2001 23 Table 6: Number of Substantiated Misconduct in Army and Air
National Guard Investigations, by Type of Misconduct,
Closed from January 1997 through December 2001 24 Table 7: Number of
Actions Taken in Senior National Guard Officer
Misconduct Incidents, by Type of Action, Closed from
January 1997 through December 2001 25 Table 8: Summary of Inspector
General Investigations Involving
Substantiated Allegations of Wrongdoing by Senior
Officers, January 1, 1997, through December 31, 2001 26
Abbreviations
DOD Department of Defense GAO General Accounting Office
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
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copyright holder may be necessary if you wish to reproduce this material
separately.
United States General Accounting Office Washington, DC 20548
December 2, 2003
Congressional Committees
In the past few years, the nation's media have focused public attention on
a series of misconduct and mismanagement issues within the Army National
Guard and the Air National Guard. Among these issues are allegations that
the National Guard has inflated guard member strengths with absent or
so-called "ghost" soldiers;1 has promoted unfit officers; has been
reluctant to punish senior National Guard officers2 for misconduct; and
has condoned retaliation against guard members who report wrongdoing
(whistleblowers). The Department of Defense's (DOD) ability to take action
in these matters is complicated by the fact that the National Guard has a
dual state-federal status. Under state status, the National Guards in each
of the 50 states, the District of Columbia, and three territories (Puerto
Rico, Guam, and Virgin Islands) provide emergency relief support during
natural disasters, search and rescue operations, and civil defense crises,
among other missions. In each jurisdiction, the guard is under the command
of the governor of the state and the governor's principal deputy for guard
administration-the state adjutant general.3 When guard members are
conducting state operations, they are under state authority. Under federal
status,4 the National Guard's mission is to maintain well-trained,
well-equipped units that can be mobilized promptly during national
emergencies and wartime. During these times, guard members are under
federal authority. This dual status sometimes creates jurisdiction and
control issues.
1We identified problems with the Army National Guard's personnel strength
reporting in U.S. General Accounting Office, Military Personnel Strengths
in the Army National Guard, GAO-02-540R (Washington, D.C.: Mar. 12, 2002).
2Senior officers are defined as those at the rank of colonel and general.
3Adjutants General are appointed by their respective governors (but are
elected by popular vote in South Carolina, elected by the legislature in
Vermont, and appointed by the President in the District of Columbia).
4The U.S. Constitution, article I, section 8, provides Congress with the
power to organize, arm, discipline, and govern (when in federal status)
the National Guard and reserves to the states the appointment of officers
and the authority to train the guard according to the discipline
prescribed by Congress.
As part of the Bob Stump National Defense Authorization Act for Fiscal
Year 2003,5 Congress directed us to examine four issues related to the
management of the National Guard. In this report, we assess the
effectiveness of (1) the procedures that the Army National Guard and the
Air National Guard have established and implemented to deal with service
members who stop attending required training (information on
nonparticipation rates in the reserve components is also provided in
appendix II); (2) the procedures that the National Guard uses for
federally recognizing state promotions of senior National Guard officers;
(3) the process that the National Guard uses for disciplining senior
officers who are guilty of misconduct; and (4) the federal protections for
National Guard members or employees who report allegations of waste,
fraud, abuse, or mismanagement (whistleblowers) and the extent to which
disciplinary action is taken against those in the National Guard who
retaliate against whistleblowers.
To conduct our reviews of the four issues, we interviewed officials from a
variety of military offices, including the National Guard Bureau, the Army
National Guard, the Air National Guard, the Army and Air Force Chiefs of
Staff, and the DOD, Army, and Air Force Inspectors General. We also
examined relevant guidance, regulations, instructions, and legal
decisions, and we collected and analyzed quantitative data for the
sections on nonparticipation rates within the guard, senior officer
misconduct, and whistleblower protections. A detailed description of our
scope and methodology for the four issues is presented in appendix I. We
conducted our review from May through December 2003 in accordance with
generally accepted government auditing standards.
Results in Brief
The Army National Guard and the Air National Guard have systems in place
that are effective in identifying and removing nonparticipating members
when appropriate. The Army National Guard is paying greater attention to
the accuracy of personnel strength reports than it did when we reported 2
years ago, and by using existing administrative procedures, it has reduced
the number of nonparticipating soldiers (so-called "ghost soldiers") on
its rolls to less than 1 percent.6 The existing procedures involve
identifying soldiers who have not been paid for the previous 3 months of
training and encouraging unit managers to resolve their status
5Pub. L. No. 107-314, S: 511(a), 116 Stat. 2458, 2536-37. 6See
GAO-02-540R.
in a timely manner. The Air National Guard has not placed the same degree
of command emphasis on the problem as the Army National Guard has but, in
general, the routine administrative procedures that the Air Guard uses to
process nonparticipating members appear effective. As of July 30, 2003,
the Air National Guard had a nonparticipation rate of 1.6 percent.
According to Air Guard personnel officials, the Air Guard is currently
over strength, so units have little motivation to retain members who do
not attend required training. A detailed discussion of this issue is
presented in appendix II.
The effectiveness of the Federal Recognition Examination process rests on
a system of checks and balances that provide a reasonable assurance that
senior National Guard officers who are promoted by their state are
federally qualified for their grade and position and, moreover, that any
significant issues relating to their leadership potential or moral
character are disclosed. These checks and balances include (1) an
examination by a senior-level review board that is independent of the
guard organization that submitted the nomination, (2) a stringent
background investigation for those nominated to Army and Air National
Guard general officer and Air Guard colonel positions, (3) a DOD policy
that requires the relevant military department to disclose any adverse
information uncovered on general officer nominees during presidential
approval and Senate confirmation proceedings, and (4) active management of
the process by the National Guard Bureau and the offices of the Army and
Air Force Chiefs of Staff. While we did not examine specific judgments
reached by the boards, Army and Air Force data show that these checks and
balances ensure that pertinent information on each candidate is available
to the board. For example, our examination of past board proceedings found
that about 7 percent of Army Guard general officer candidates were found
to be not qualified by experience or conduct and about 3 percent of Air
Guard general officer candidates were found to be not qualified by
experience or conduct. Detailed information on this issue is presented in
appendix III.
The Army National Guard and the Air National Guard have established
effective processes for taking action against senior National Guard
officers (colonels and generals) involved in misconduct cases. We judged
the effectiveness of the Army National Guard's and the Air National
Guard's processes for taking action against senior National Guard officers
involved in misconduct cases by whether administrative action was taken
against the officers involved. In the majority of cases some action was
taken. From January 1997 through December 2001, the DOD, Army, and Air
Force Inspectors General substantiated wrongdoing by 80 senior National
Guard
officers, and we were able to determine the actions taken for 76 of the 80
officers. We found that the investigative files for 66 of the 76 officers
were sent to the officer's immediate commander for a decision and that 57
(75 percent) officers had an administrative action imposed, ranging from a
letter of reprimand to verbal counseling; 3 officers (4 percent) resigned
or retired at the request of their commander; and 6 officers (8 percent)
had no administrative action taken against them. Ten officers (13 percent)
did not have their investigative file sent to their immediate commander.
All 10 were Army officers whose cases were closed under special Army
procedures for processing cases involving minor violations. For seven of
the officers, the procedures were used in part because the officer had
already retired before the investigation was started. Detailed information
on this issue is presented in appendix IV.
The effectiveness of the federal protection for military and National
Guard whistleblowers rests principally on a two-stage process of
investigation and administrative review.7 The first stage involves a
service's or guard`s Inspector General's investigation of the specific
facts and interpretation of issues associated with a reprisal allegation.
In our review of 122 allegations (60 investigations) that covered the
period 1997 to 2002, we found that Inspectors General did not substantiate
98 of these allegations (80 percent). Inspectors General were unable to
substantiate many of these allegations because they did not meet certain
required criteria; for example, the communication was not protected or
there was not an unfavorable personnel action. In the second stage of the
investigation/administrative review process, the DOD Inspector General
reviews and approves the findings of the service's or guard's Inspectors
General. This review offers assurance that the findings and
recommendations are substantiated and legally sufficient. In a review of
19 allegations (8 of the 60 investigations), we found that the DOD
Inspector General did not agree with the other Inspectors General's
interpretation of certain issues, such as the role of the chain of
command, the sufficiency of the evidence, and the quality of the
investigation. As an overall observation, under this process, Inspectors
General interpret issues associated with whistleblowing on an
allegation-by-allegation basis without relying on established guidance
from past similar allegations and decisions. In contrast, decisions made
under the civilian whistleblower
7We last reviewed federal protections for military whistleblowers in U.S.
General Accounting Office, Whistleblower Protection: Continuing
Impediments to Protection of Military Members (GAO/NSIAD-95-23, Feb. 2,
1995).
protection statutes rely on case law.8 For the reprisal allegations we
reviewed, the military services took some disciplinary action against most
guard management officials who had retaliated against guard members.
Federal civilian employees of the National Guard ("technicians"), however,
are not protected by the military protection statute because, as
civilians, it does not apply to them, nor are they well protected by
civilian whistleblower statutes. Detailed information on these issues is
in
appendix V.
GAO is making no recommendations in this report.
In commenting on a draft of this report, the Assistant Secretary of
Defense (Reserve Affairs), concurred with the report as written. DOD also
provided technical changes that we made where appropriate. The
department's written comments are incorporated in their entirety in
appendix VI.
Agency Comments
and Our Evaluation
We are sending copies of this report to the Secretary of Defense; the
Secretaries of the Army, the Air Force, the Navy, and the Commandant of
the Marine Corps; the Director of the Office of Management and Budget;
and other interested congressional committees. We will also make copies
available to others upon request. In addition, the report will be
available at
no charge on the GAO Web site at http://www.gao.gov.
Please contact me on (202) 512-5559 if you or your staffs have any
questions concerning this report.
Derek B. Stewart, Director
Defense Capabilities and Management
8See 5 U.S.C. chapters 12 and 23. We reviewed the government's processing
of whistleblower reprisal complaints under these statutes in U.S. General
Accounting Office,
Whistleblower Protection: Determining Whether Reprisal Occurred Remains
Difficult
(GAO/GGD-93-3, Oct. 27, 1992).
List of Congressional Committees
The Honorable John W. Warner
Chairman
The Honorable Carl Levin
Ranking Minority Member
Committee on Armed Services
United States Senate
The Honorable Duncan Hunter
Chairman
The Honorable Ike Skelton
Ranking Minority Member
Committee on Armed Services
House of Representatives
Appendix I: Scope and Methodology
In conducting our reviews of our four objectives (see p. 2), we visited a
number of National Guard and other military offices, examined a variety of
documents, and collected and analyzed different datasets. Although we used
Department of Defense (DOD) data in our analysis we did not independently
test it for reliability.
To assess the effectiveness of the processes used by the Army National
Guard and the Air National Guard for taking action against members who
stop attending required training, we determined whether the services
identified nonparticipating individuals and took action to resolve their
status. There is no guidance on when guard commanders must take action to
remove members who stop attending training. However, DOD officials agreed
that it was reasonable to expect commanders to adjust unit strength if an
individual had not been paid for training for at least 7 months. To
determine if unpaid individuals remain on units' rolls for more than 7
months, we obtained Non-Validation of Pay reports from the Army National
Guard that identify unpaid soldiers. These reports are not available to
the Air Guard, so we used data from the Defense Manpower Data Center to
make this determination. We also interviewed senior officials at the Army
National Guard, Air National Guard, and National Guard Bureau
headquarters, all located in Arlington, Virginia, to discuss the policies
and procedures used for processing service members who were not attending
required training and obtained copies of pertinent instructions,
directives, and regulations. Finally, to observe procedures used by the
Army National Guard for identifying and processing nonparticipating
service members, we visited the headquarters of the Alabama Army National
Guard, Montgomery; the Georgia Army National Guard, Atlanta; and the
Louisiana Army National Guard, Jackson Barracks, New Orleans. To identify
the procedures used by Air National Guard units, we sent questionnaires
and conducted phone interviews with officials in the 190th Mission Support
Flight, Kansas Air National Guard, Forbes Field; the 109th Mission Support
Flight, New York Air National Guard, Schenectady; and Detachment 1,
Headquarters, Washington (state) Air National Guard, Camp Murray. Also as
required by the act, we collected similar information for the reserve
components. To determine the procedures that the reserve components use
for processing members who stop attending required training, we visited
the Army Reserve Command, Fort McPherson, Georgia; the Air Force Reserve
Command, Robbins Air Reserve Base, Georgia; and the Naval Reserve Forces
and Marine Corps Reserve Forces in New Orleans, Louisiana. Because the
Naval Reserve, Marine Corps Reserve, and Air Force Reserve did not have
data on nonparticipants, we obtained and analyzed data from the Defense
Manpower Data Center, Monterey, California, which identified members
Appendix I: Scope and Methodology
who had not been paid for the previous 7 months of training. To observe
how reserve units process nonparticipants, we visited the 427th Medical
Logistics Battalion, U.S. Army Reserve, Fort Gillam, Georgia; the 94th
Airlift Group, U.S. Air Force Reserve; and the Marine Air Group 42, U.S.
Marine Corps Reserve, both at Dobbins Air Base, Georgia; and Naval Reserve
units in New Orleans, Louisiana.
To assess the effectiveness of the federal recognition
processes/procedures that the Army National Guard and the Air National
Guard use to ensure that state-promoted officers also meet federal
promotion requirements, we examined the checks and balances in the system
to determine if they contribute to a fair and balanced analysis.
Specifically, we examined the membership of federal recognition boards,
the information available to those boards, the scope of their examination
to determine the veracity of the boards' examinations, and the
recommendations made by the boards. To do this we obtained and analyzed
the DOD guidance on federal recognition and each service's implementing
regulations and procedures that govern the process, federal recognition
applications that show the information that applicants provide, and
documentation detailing federal recognition examination board proceedings.
We then interviewed officials in the offices of the Army Chief of Staff,
the Air Force Chief of Staff, and the National Guard Bureau-all located in
Arlington, Virginia-who are responsible for managing the federal
recognition process for officers seeking federal recognition within the
general officer grades to determine how they verify each applicant's
qualifications and to ensure that their procedures are in accordance with
the applicable instructions and regulations. We also met with service
officials in the offices of the Personnel Directorate, Army National
Guard, Arlington, Virginia; and the Personnel Directorate, Air National
Guard, Arlington, Virginia, who are responsible for managing the process
for officers seeking federal recognition as colonels to determine how they
verify each applicants qualifications and to ensure their procedures were
in accordance with the applicable instructions and regulations. Finally,
we obtained historical data from (1) the Air National Guard on the
decisions of past federal recognition examination boards for general
officers for calendar years 1991 through 2000 and past federal recognition
examination boards for colonels for calendar years 1998 through 2002 and
(2) the Army National Guard on the decisions of past federal recognition
examination boards for general officers for the period June 1998 through
December 2002. Historical data on the decisions of past federal
recognition boards for Army colonels was not available. These data were
used to verify that federal recognition examination boards examine the
qualifications and background of federal recognition applicants and
Appendix I: Scope and Methodology
use that information in reaching a judgment. We did not examine the
specific judgments reached by prior federal recognition boards.
To assess the effectiveness of the processes used by the National Guard
for determining administrative action when Inspectors General substantiate
misconduct by senior National Guard officers, we determined if an
administrative action was taken against senior officers with substantiated
misconduct. To do this, we analyzed all cases of substantiated wrongdoing
involving senior officers that were closed by the DOD and service
Inspectors General from January 1997 through December 2001, to determine
if a disciplinary action was imposed. This time frame was used because
congressional Members requesting this report asked in January 2002 for an
analysis of all cases closed in the previous 5 years. Where case outcomes
were not available in the files, we either worked with the appropriate
service General Counsel or the Adjutant General of the state involved to
determine how the case was resolved. We also interviewed senior officials
in the offices of the Chief of Staff of the Army, the Chief of Staff of
the Air Force, the National Guard Bureau, the office of the DOD Inspector
General, the Army Inspector General, and the Air Force Inspector General
who are responsible for managing senior officer misconduct cases to
identify their administrative processes and adjudication procedures. We
did not assess the adequacy of the investigations conducted by the
Inspectors General, nor did we make any judgment on the appropriateness of
the disciplinary action taken.
To examine the effectiveness of whistleblower protections, we reviewed (1)
Inspectors General's interpretation of issues associated with reprisal
allegations and (2) the DOD Inspector General's review and interpretation
of reprisal-related decisions by other Inspectors General. In order to do
the first part of this examination, we collected information on 122
reprisal allegations that were part of 60 investigations conducted by
Inspectors General during the period 1997 to 2002. Generally, these
allegations included those made against senior guard officers accused of
misconduct that we discuss in appendix IV and all allegations that were
investigated during 2001 and 2002. We reviewed the interpretation of
issues in terms of the criteria that Inspectors General used to determine
whether to substantiate a reprisal allegation. We did not evaluate the
appropriateness of the decisions made. In order to place the
interpretation of issues associated with these allegations in a broader
context, we reviewed decisions by the Merit Systems Protection Board and
U.S. Court of Appeals for the Federal Circuit that applied to federal
civilian employees who claimed whistleblower protection. While we did not
formally compare these decisions with those made by the DOD and services'
Appendix I: Scope and Methodology
Inspectors General, they were used to help us make our overall
observation. We also did not examine the broadly analogous appeals process
available to military and guard whistleblowers, including recommendations
of service boards for the correction of military records. In order to do
the second part of this determination, we examined selected issues over
which the DOD Inspector General and other Inspectors General disagreed.
Issues associated with 19 allegations in 8 of the 60 investigations we
reviewed formed the basis of this examination. We did not evaluate the
resolution of these disagreements. We also examined issues associated with
administrative action taken against those who retaliated against guard
whistleblowers. Eleven of the 60 investigations we reviewed had at least
one substantiated allegation of reprisal. The administrative actions taken
as a consequence of these investigations, plus decisions by the Merit
Systems Protection Board and U.S. Court of Appeals for the Federal Circuit
on an additional case involving a federal civilian employee of the
National Guard formed the basis of this examination. We did not evaluate
the appropriateness of the administrative actions taken.
We performed our work from May through December 2003 in accordance with
generally accepted government auditing standards.
Appendix II: National Guard and Reserve Components Personnel Strengths
Background In March 2002 we reported that the Army National Guard had
overstated its personnel strength for fiscal years 2000 and 2001 by
including soldiers on its roll who were no longer participating in
training (so-called "ghost soldiers") and who should have been removed
from guard rolls. For example, on September 30, 2000, the guard had about
4,048 soldiers, or 1.3 percent of its 301,140 drilling members, who had
not been paid for 7 months or more, and on September 30, 2001, the guard
had about 4,254 soldiers, or 1.4 percent of its 296,430 drilling members,
who had not been paid for 7 months or more. This occurred because
commanders did not take timely action to remove soldiers from the rolls
when they stopped attending drill and training. We also reported that the
guard was taking steps to improve its end strength accounting.
The requirements for participation in training vary slightly between the
National Guard and reserve components. According to a DOD Directive, Army
and Air National Guard members must participate in 48 drills and 15 days
of training annually, and reserve component members must participate in a
minimum of 48 drills and 14 days of training each year. A drill is a
4-hour training period, and according to service officials the typical
"one weekend per month" of reserve training generally consists of two
drill periods on a Saturday and two drill periods on a Sunday. Attendance
is verified during unit formations held at the beginning and the end of
each drill period.
DOD has set up procedures to follow when a guard or reserve member fails
to participate in training. When a guard or reserve member misses a
regularly scheduled drill period or training day, the absence may be
excused or unexcused. Excused absence includes failure to attend scheduled
assemblies or training periods because of unforeseen emergency situations.
Unit commanders are responsible for determining whether an absence is
excused, and they have some flexibility in making this determination.
Excused absences may be made up with pay at a later time. According to DOD
Instruction 1215.18, if a guard or reserve member has nine unexcused
absences from scheduled training within a 12-month period, he or she is
considered not to be meeting the participation requirements of the
organization. The instruction spells out the actions that may be taken
against nonparticipating members. The actions are imposed at the
discretion of the Secretary of the military service concerned and vary
depending on the member's rank and whether the member has fulfilled his or
her military service obligation. According to the instruction, some of the
actions that may be taken against an individual include (1) ordering the
individual to active duty, (2) ordering the individual to active duty for
training for a period of not more than 45
Appendix II: National Guard and Reserve Components Personnel Strengths
days, (3) reclassifying the individual to a nondrilling status, and (4)
discharging the individual.
To determine whether the Army National Guard, Air National Guard and
reserve components are resolving the status of members who stop attending
required training, DOD monitors pay data on individuals who have not been
paid for the previous 3 and 7 months. A 3-month period represents 12
drills, and 9 consecutive absences represent 2-1/4 months of missed
training. Thus, an individual who has not been paid for 3 months should
have the attention of his/her commander. However, the 3-month period is
not always a good indicator of unsatisfactory participation because there
are numerous reasons why an individual might not have been paid for 3
months but still be listed on unit rolls. These reasons include the
transfer of an individual from one unit to another, the inability to train
for medical reasons, and being paid late for training. The 7-month period
is a better indicator because, as DOD officials agreed, it would be
reasonable to expect unit commanders to adjust unit strength if an
individual has not been paid for at least 7 months or more.
Increased attention by the Office of the Secretary of Defense and the Army
National Guard on improving the accuracy of personnel strength reports,
coupled with existing procedures for resolving the status of members who
stop attending required training, has reduced the nonparticipation rates
in the Army National Guard. By comparison, the Air National Guard has not
placed the same degree of command attention on lowering the number of
nonparticipants on its rolls; instead, the Air Guard's existing
administrative procedures appear to be effective in maintaining low rates.
The Army National Guard and the Air National Guard Have Effective Procedures
for Removing Ghost Soldiers from Rolls
Focused Attention by Army National Guard Has Helped Reduce End Strength
Inflation
In March 2002 we reported that although the Army National Guard's
personnel strength was overstated because it contained large numbers of
soldiers who were no longer attending drill, the guard was taking steps to
correct these overstatements.1 In our recent discussions with Army
National Guard officials, they described these steps for improving
endstrength accounting as a "top down, educational approach." They stated
that the National Guard Bureau has no authority to regulate the states in
removing soldiers who stop participating, but by focusing attention on the
matter, they have gained the cooperation of the states. In addition to
more
1See GAO-02-540R.
Appendix II: National Guard and Reserve Components Personnel Strengths
attention, the Army National Guard uses a tool known as the nonvalidation
of pay report. This report identifies soldiers who are required to drill
but have not received pay for the previous 3 months. Unit commanders are
urged to review the status of soldiers in this report and determine if
they should be removed from, or reclassified to a nondrilling status in
the Army National Guard's end-strength report. The Army National Guard's
goal is to reduce the number of soldiers who have not been paid for the
previous 3 months to less than 2 percent of the force. By taking early
action to resolve the status of soldiers when they first start missing
drills, Army National Guard officials believe they can minimize the number
of ghost soldiers on its rolls.
Table 1 shows the results of the Army National Guard's efforts to reduce
the number of nonparticipating soldiers on its rolls. As shown in the
table, between September 2000, and July 30, 2003, the Army Guard reduced
the number of soldiers not paid for the previous 3 months from 3.7 percent
of the force to 0.5 percent of the force, and the number not paid for the
previous 7 months from 1.3 percent of the force to 1.0 percent of the
force.
Table 1: Assigned Army National Guard Members Not Paid for Inactive Duty
Training for 3 and 7 Months, September 30, 2000-July 30, 2003
Total number Number not paid for Percent not paid for Number not paid for
Percent not paid for Date assigned previous 3 months previous 3 months
previous 7 months previous 7 months
September 2000 301,140 11,025 3.7 4,048
September 2001 296,430 8,701 2.9 4,254
September 2002 296,248 4,248 1.4 1,481
July 2003 294,012 1,526 .5 3,094
Sources: DOD (data); GAO (analysis).
Our visits to Army National Guard headquarters in Louisiana, Alabama, and
Georgia confirmed that significant management attention is being paid to
resolving the status of potential nonparticipating soldiers. In each
state, headquarters personnel officials acknowledged that they are placing
an emphasis on resolving the status of potential nonparticipants. Although
the specific procedures that each state uses to manage nonparticipation
vary, in general, they all encourage subordinate units to work with
soldiers to return them to drill status, and they authorize units to
discharge individuals they deem will not be returning. Each of the three
state headquarters monitors its subordinate units, and if a unit fails to
take action, the headquarters steps in and discharges the individual.
However, the point at which the headquarters takes action varies. For
example,
Appendix II: National Guard and Reserve Components Personnel Strengths
Georgia took action if a unit had not resolved a soldier's status after 7
months without pay, while Alabama National Guard officials took action if
a unit had not resolved a soldier's status after 12 months without pay.
However, as table 1 indicates, the status of most soldiers is resolved in
3 to 7 months.
Air National Guard Relies Primarily on Existing Administrative Procedures
The Reserve Components Nonparticipation Rates Are Slightly Higher Than the
Guard's
The Air National Guard has not placed the same level of command emphasis
on reducing the number of nonparticipants on its rolls. Instead, it relies
on existing administrative procedures to process members whose performance
is unsatisfactory. Air Force Instruction 36-3209 gives unit commanders the
discretion to separate individuals whose participation is unsatisfactory
(nine unexcused absences) if the individual has no potential for useful
service. The Air Force cannot monitor attendance above the unit level
because its personnel and financial data systems are incompatible.
However, data from the Defense Manpower Data Center show that as of July
30, 2003, the Air National Guard had 1,415 members out of an assigned
strength of 91,217 that had not been paid for the previous 7 months. This
is a nonparticipation rate of 1.6 percent. Air National Guard officials
report that they are currently over their authorized strength, so units
have little motivation to retain members that stop attending required
training.
As shown in table 2, as of July 2003, the percentage of individuals in the
reserve components who had not been paid for the previous 7 months ranged
from 2.0 percent in the Naval Reserve to 4.6 percent in the Marine Corps
Reserve. DOD has not provided the reserve components with guidance for
managing nonparticipation. According to a DOD official, nonparticipation
in the Air Force Reserve, Marine Corps Reserve, and Naval Reserve averages
about 23 to 28 individuals per state and territory and those numbers do
not indicate a problem in those components. Nonparticipation in the Army
Reserve, however, averages about 100 soldiers per state and territory. The
Army Reserve is taking aggressive action to reduce this number and,
according to its Chief, has established control procedures that include a
goal of reducing potential nonparticipants (3 months without pay) to less
than 1 percent of end strength, approval by a general officer before any
soldier can accrue more than 12 months without pay, and an expedited
review to resolve the status of all soldiers currently on the rolls that
have not been paid for the previous 12 months.
Appendix II: National Guard and Reserve Components Personnel Strengths
Table 2: Number of Reserve Component Members Not Paid for 7 or More
Months, July 2003
Number not paid Percent not paid
Total number for previous 7 for previous 7
Component assigned months months
Army Reserve 174,617 5,162
Air Force Reserve 55,762 1,501
Marine Corps Reserve 32,399 1,502
Naval Reserve 60,468 1,223
Sources: DOD Defense Manpower Data Center and U.S. Army Reserve
Non-Validation of Pay Reports.
Visits to each of the reserve component headquarters and a small number of
units within each component confirmed that in most cases timely action was
being taken to resolve the status of individuals who miss training. Each
component requires unit commanders to take action when a member's
participation becomes unsatisfactory. In general, commanders are required
to attempt to contact the members by telephone or by registered mail, with
an emphasis on retaining the member and returning the member to a
satisfactory status. Units typically work with an individual for several
months before initiating separation paperwork, which can take several
additional months to process. Our visits to the reserve component units
found that delays in processing separation paperwork accounted for many of
the nonparticipants. We also noted that members remain on the rolls (and
on the nonparticipation list) until the separation paperwork is completed
and that separation paperwork was in process for many individuals
identified as nonparticipants. For example, at the time of our visit to
Marine Corps Reserve Headquarters discharge packages were in process for
about 400 Marines who had not been attending drill.
Appendix III: Federal Recognition Process for Recently Promoted Senior Officers
Background According to the U.S. Constitution, states have the authority
to appoint officers in their state National Guard units.1 However, because
National Guard officers also have a federal status, state-promoted
officers must go through a second review process-the Federal Recognition
Examination-to ensure that they meet federal promotion requirements. The
Chief of the National Guard Bureau is responsible for federally
recognizing state promotions under regulations prescribed by the
Secretaries of the Army and the Air Force.2 Officers who are federally
recognized in a particular grade are tendered an appointment at the same
grade as reserve commissioned officers of the Army or Air Force. Officers
who are appointed to a higher grade by the states, but have not been
federally recognized in that grade, are not permitted to wear the uniform
or insignia of the grade until the National Guard Bureau has federally
recognized the promotion. One exception to this provision is that an
adjutant general may wear the insignia of the next higher grade, up to
that of a major general, than his/her federally recognized grade. Federal
recognition of a state promotion authorizes federal pay and benefits at
that grade. Adjutants general do not have to be federally recognized
unless such recognition is required by the state code. Adjutant generals,
for the most part, serve at the pleasure of the governor of their state.
The implementing service regulations, along with memoranda of instructions
to review boards, identify the criteria that are to be used for the
examination. Some examples of these criteria are shown in table 3. Some
criteria are defined very specifically in the regulations, such as
military and civilian education requirements, years of required service
for promotion, and medical fitness standards. Other more
difficult-to-define criteria, such as experience, integrity, and
character, are identified but with less specificity.
1The Constitution specifies the appointment of officers in the militia.
The National Guard is that component of the militia trained by the states.
10 U.S.C. S: S: 101(c); 311; and 10107.
2The National Guard Bureau is both a staff and operating agency that
administers the federal functions of the Army and the Air National Guard.
Appendix III: Federal Recognition Process for Recently Promoted Senior Officers
Table 3: Examples of Eligibility Requirements for Appointment as a General
Officer in the Army and Air National Guards
o Complete a minimum number of years of o Be a citizen of the United
States service at the lower grade
o Possess a security clearance o Meet specified height and weight
standards
o Meet specified military professional o Meet specified civilian
education education requirements requirements
o Meet specified experience requirements o Possess good moral character
Federal Recognition Examination Process Contains Reasonable Checks and
Balances
Sources: National Guard Regulation (Air Force) 36-1 and National Guard
Regulation (Army) 600-100.
The federal recognition process for individuals promoted to or within the
rank of general officer is managed and overseen by general officer
management offices located within the National Guard Bureau and the
Offices of the Chiefs of Staff of the Army and Air Force. These offices
review the files of nominated officers and confirm that they meet all
objective promotion criteria before the nominations are sent to the
federal recognition board for review. They also ensure that the required
background checks are conducted in order to identify any adverse
information about an individual.
While we did not examine specific cases, our examination of the checks and
balances built into the federal recognition examination process indicates
that they provide reasonable assurance that state-promoted officers meet
federal promotion standards and that adverse information relating to their
leadership potential or moral character will be disclosed. These checks
and balances include (1) an examination by a senior-level review board
comprising officers who are independent of the guard organization that
submitted the nomination, (2) a stringent background investigation for
those nominated to Army National Guard and Air National Guard general
officer positions, and Air Guard colonel positions, (3) a DOD policy that
requires that the department disclose any adverse information uncovered on
general officer nominees during presidential approval and Senate
confirmation proceedings, and (4) active management of the process by the
National Guard Bureau and the Offices of the Chiefs of Staff of the Army
and Air Force.
Army and Air Force data show that some senior National Guard officers with
evidence of misconduct in their record have been federally recognized.
However, the procedures suggest that the adverse information
Appendix III: Federal Recognition Process for Recently Promoted Senior Officers
was known or available to those who were responsible for approving or
confirming the promotion.
Senior Guard Officers Must Pass Federal Recognition Examination
A key check and balance is the composition of federal recognition
examination boards. The U.S. Code states that to be eligible for federal
recognition as an officer of the National Guard, a person must pass an
examination for physical, moral, and professional fitness to be prescribed
by the President, conducted by a board of three commissioned officers
designated by the respective service Secretary from members of the regular
service, the National Guard, or both, and subscribe to an oath of office.
The implementing service regulations add other requirements for the
three-person federal recognition review boards. The members are to be
appointed by the Secretary of the military service concerned. Both the
Army and Air Force require that the members be at least one grade senior
to the officer who is to be examined and that one or more members come
from the active-duty ranks.3 The inclusion of active-duty officers
provides a measure of independence from the state guard organization that
originated the nomination.
Another important check and balance is that DOD requires, by instruction,
background investigations for officers nominated to be general officers.4
The instruction requires the services to examine all systems of records
maintained by DOD for any adverse information that may exist on a nominee.
According to service officials, this examination would include files in
the offices of the state and service Inspectors General, the Judge
Advocate General, the General Counsel, the Equal Employment Opportunity
Office, and the appropriate service criminal investigation agency. If
adverse information emerges during the process, there are established
processes for the disclosure of that information to the review boards. If
an allegation emerges during the process, the nomination is held in
abeyance until necessary investigations are completed. If no adverse
information is found, the service must provide a certificate stating so.
3National Guard Regulation (AR) 600-100; Commissioned Officers-Federal
Recognition and Related Personnel Actions, Apr. 15, 1994; National Guard
Regulation (AF) 36-1; Federal Recognition of General Officer Appointments
and Promotion in the Air National Guard of the United States and as a
Reserve of the Air Force, Mar. 8, 1993; and National Guard Regulation (AF)
36-3; Federal Recognition Boards for Appointment or Promotion in the Air
National Guard below General Officer, May 28, 1993.
4DOD Instruction 1320.4; Military Officer Actions Requiring Approval of
the Secretary of Defense or the President, or Confirmation by the Senate,
Mar. 14, 1995.
Appendix III: Federal Recognition Process for Recently Promoted Senior
Officers
DOD Instructions require that adverse information on officers below
general officer grades be reported only if, in the judgment of the
Secretary of the military service concerned, it is appropriate.
Nonetheless, the Air National Guard checks state files for adverse
information on all individuals nominated for promotion to colonel. The
Army National Guard conducts no additional checks on individuals nominated
for promotion to colonel.
A third check and balance is that the nominations of individuals being
promoted to, or within, the general officer rank must be approved by the
Secretary of Defense and the President and confirmed by the Senate. It is
DOD's policy to fully inform these parties of any adverse information
known about a nominee.5 Thus, even if a federal recognition board elects
to overlook some misconduct in a nominee's past, the Secretary of Defense,
the President, and the Senate must all agree with the decision.
Finally, general officer management offices within the National Guard
Bureau, and the offices of the Chiefs of Staff of the Army and Air Force
manage the general officer promotion process, and personnel offices within
the Army National Guard and the Air National Guard manage the promotion
process for colonels. These offices provide an important level of
oversight for the entire process.
Some National Guard Officers Are Denied Federal Recognition
A review of Federal Recognition Examination Board recommendations shows
that boards find some applicants not qualified for federal recognition on
the basis of experience or conduct. As table 4 shows, of 347 Army National
Guard officers who were reviewed for promotion to a general officer grade
from June 1998 through December 2002, 24, or 6.9 percent, were denied
federal recognition because of performance, experience, or conduct issues.
A smaller percentage of officers (3.3 percent) who were considered for
promotion to a general officer grade in the Air National Guard were denied
federal recognition because of similar issues. The percentages are lower
among officers who were considered for federal recognition as colonels. In
the Air National Guard, less than 1 percent were denied federal
recognition because of performance, experience, or conduct issues. The
Army National Guard did not have data on numbers of colonel nominees
denied federal recognition.
5DOD Instruction 1320.4; Military Officer Actions Requiring Approval of
the Secretary of Defense or the President, or Confirmation by the Senate,
Mar. 14, 1995.
Appendix III: Federal Recognition Process for Recently Promoted Senior
Officers
Table 4: Disposition of Applicants (Promotion to General and Colonel)
Reviewed by Army and Air National Guard Federal Recognition Boards
Number of cases denied
Number of Not fully Percent of cases reviewed qualified Conduct cases
denied
Promotion to General
Army National Guarda 347 16 8
Air National Guardb 307 0 10
Promotion to Colonel
Army National Guard N.A. N.A. N.A.
Air National Guardc 859 3 0
Sources: DOD (data); GAO (analysis).
Legend
N.A. = not available.
aData for 4.5-year-period-June 1998 through December 2002.
bData for 10-year-period-January 1991 through December 2000.
cData for 4-year period-March 1998 through October 2002.
Some National Guard Officers with Substantiated Misconduct Have Been
Federally Recognized
Using data from our review of National Guard misconduct, we found that a
small number of senior officers with substantiated misconduct were later
federally recognized. Service officials told us that federal recognition
boards do not have a "zero defects" mentality. They said that if an
officer whose career has otherwise been exemplary has made a mistake and
recognizes that mistake, the officer should not automatically be precluded
from promotion or from the federal recognition process. Because all of the
promotions were at the general-officer grade, if the process were
followed, the information on the officer's misconduct would have been
known or available to those responsible for approving or confirming
federal recognition of the promotion.
Appendix IV: National Guard Senior Officer Misconduct Cases
Background The National Guard is a state instrumentality under the
command of the governor of the state, and the governor's principal deputy
for the guard's administration is the state adjutant general. Only when
called or ordered into federal service is the National Guard subject to
the authority of the President, the Secretary of Defense and other
civilian and military authorities of the federal defense establishment.
Thus, under federal law, federal officials do not have direct control over
the actions taken by state officials in administering the guard when it is
in a state status.1
The Uniform Code of Military Justice, codified in title 10 of the United
States Code, is the legal foundation for maintaining discipline in the
military services. However, National Guard members are subject to the
federal code only when they are performing federal duty. If they are in
state status or in title 32 U.S.C. status, they are subject to the state's
Uniform Code of Military Justice. The state codes generally follow the
federal code for traditional military offenses, but they rely on state
criminal statutes for other offenses. The National Guard Bureau is
currently working with the states to standardize the states' Uniform Code
of Military Justice.
DOD's Inspector General maintains oversight and, in some cases,
investigative authority over cases involving general officers in the
National Guard.2 Generally, the DOD Inspector General investigates only
cases that have broad ramifications for the department: cases that involve
generals in the two highest grades (lieutenant generals and full
generals), cases that include officers in multiple services; and reprisal
cases. Cases without a broad ramification are generally referred back to
the individual service's Inspector General's office for investigation,
which conducts about 90 percent of the investigations involving general
officers and colonels being considered for the rank of general officer.
Each service's Inspector General maintains oversight and investigative
authority over cases involving National Guard officers at the rank of
colonel.3 The nature of the allegation largely determines which Inspector
General office or level of command conducts the investigation. The Army
1See generally Solorio v. U.S., 483 U.S. 435 (1987); 10 U.S.C. S: 12405.
2See DOD Directive 5505.6, Investigations of Allegations Against Senior
Officials of the Department of Defense, July 12, 1991.
3Air Force Instruction 90-301, Inspector General Complaints, Jan. 30,
2001, and Army Regulation 20-1, Inspector General Activities and
Procedures, Mar. 29, 2002.
Appendix IV: National Guard Senior Officer Misconduct Cases
and Air Force Inspectors General investigate allegations involving
colonels selected for promotion to general and forward inquiries involving
colonels not selected for promotion to the states for investigation.
Although they conduct the investigations, DOD's and the services'
Inspectors General play no role in imposing discipline, nor do they
recommend disciplinary action, in misconduct cases. The Air Force
Inspector General refers all substantiated cases of misconduct involving
Air National Guard personnel to the Chief of the National Guard Bureau who
notifies the appropriate state authority for corrective action. Title 10
U.S.C. establishes the National Guard Bureau as the channel of
communication between the services and the states. The Army Inspector
General handles substantiated allegations of wrongdoing somewhat
differently. While it refers cases that involve colonels back to state
Army National Guard authorities, it refers cases that involve generals and
colonels who have been selected for promotion to general to the Army Vice
Chief of Staff. An Army legal official stated that the Army's authority to
administratively reprimand an officer for misconduct derives from the
officers underlying federal status.
Commanders, supervisors, and superiors have several administrative actions
available to them in correcting officers who have been found guilty in
noncriminal misconduct cases. According to service guidance, these actions
are intended to be corrective rather than punitive.4 They include
"reprimands," which carry a strong implication of official censure;
"admonishments," which are similar to reprimands but carry a lesser degree
of severity and censure; verbal reprimands, which are used in less severe
situations; and no action. Administrative actions may or may not be filed
in an officer's records at the discretion of the individual imposing the
action, usually the officer's commander.
In the majority of cases that we examined, the senior Army National Guard
and Air National Guard officers found guilty of noncriminal misconduct
received some type of administrative action. In our review of all DOD,
Army, and Air Force Inspector General investigations that were completed
from January 1, 1997, to December 31, 2001, we identified 75 senior
National Guard officers with substantiated acts of wrongdoing. Five of
4Army Regulation 27-10, Military Justice, Sept. 6, 2002; and Air Force
Instruction 36-2907, Unfavorable Information File Program, May 1, 1997.
Most Officers Found Guilty of Misconduct Are Punished
Appendix IV: National Guard Senior Officer Misconduct Cases
these officers had two substantiated acts of wrongdoing, which brought the
total number of incidents to 80. The incidents involved 46 Army officers
and 29 Air Force officers. Four Army officers and 1 Air Force officer had
two misconduct incidents each. Because the Army and Air Force have
different processes for adjudicating cases involving senior officers, we
have arranged our data in table 5 to show the number of officers with
substantiated misconduct in each of the services to better illustrate the
nature and extent of the actions.
Table 5: Number of Senior Officers Involved in Substantiated Cases of
Misconduct in the Army and Air National Guards, by Officer Category, from
January 1997 through December 2001
Army Air
Senior officer category National Guard National Guard Total
Generals 26 9
Colonels 20 20
Total 46 29
Sources: DOD (data); GAO (analysis).
The substantiated allegations against the 75 officers consisted of
noncriminal administrative violations, such as smoking in a military
vehicle or a reprisal against an individual. In some cases, the Inspectors
General substantiated more than one violation. To provide a clearer
understanding of the cases, we categorized the wrongdoings into five types
on the basis of what we considered to be the most serious violation in
each case. The categories are (1) reprisal, (2) noncriminal fraud, waste,
or abuse; (3) improper relationship; (4) violation of ethics regulations;
and (5) abuse of authority or poor judgment. As table 6 shows, the most
common wrongdoing category is abuse of authority or poor judgment.
Appendix IV: National Guard Senior Officer Misconduct Cases
Table 6: Number of Substantiated Misconduct in Army and Air National Guard
Investigations, by Type of Misconduct, Closed from January 1997 through
December 2001
Army National Guard Air National Guard
Type of misconduct colonels and colonels and Total
generals generals
Reprisal 5 4
Fraud, waste, or abuse 9 4
Improper relationship 3 2
Ethics 0 2
Abuse of authority/poor 33 18
judgment
Total 50 30
Sources: DOD (data); GAO (analysis).
We reviewed Inspector General investigation files and determined the
outcome for 76 of the 80 incidents. (See table 7.) We could not determine
the outcome for four incidents. In 66 of the incidents, the officers
involved went through a decision process, in which an individual, senior
to the officer and with the authority to impose a punishment, reviewed the
case and determined what administrative sanction should be imposed. Our
review found that 57officers (75 percent) had some administrative action
imposed on them, ranging from verbal counseling to a letter of reprimand
placed in the officer's official military personnel file. Three officers
(4 percent) resigned or retired and no further action was taken. In the
other six incidents (8 percent) a decision was made to take no action
against the officers involved. These incidents generally involved lesser
offenses, such as improperly administering an annual leave policy, or
failing to take a physical fitness test.
Appendix IV: National Guard Senior Officer Misconduct Cases
Table 7: Number of Actions Taken in Senior National Guard Officer
Misconduct Incidents, by Type of Action, Closed from January 1997 through
December 2001
Army National Air National Guard colonels and Guard colonels Type of
action generals and generals Total
Cases forwarded for a decision
Letter/memorandum of reprimand 18 4
Letter/memorandum of censure or 13 5
concern
Letter/memorandum of 1 3
admonishment
Verbal counseling/reprimand 2 11
Total 34 23
Forced resignation or retirement 1 2
Decision made to take no action 3 3
Total 38 28
Cases not forwarded for a decision
Case dropped as inconsequential 10 0
Total 10 0
Total cases 48 28
Sources: DOD (data); GAO (analysis).
Ten officers (13 percent) did not have their cases forwarded to their
immediate commander for a decision. These cases were closed under Army
procedures for cases involving inconsequential allegations. An
inconsequential allegation is misconduct that is minor and has no
lingering adverse effect upon the Army or any other organization or
person. Before an incident can be processed as inconsequential, the Army
requires that the officer involved confirm the validity of the allegation,
or be deceased or retired, and that the office of the Army Inspector
General, the office of the General Counsel, and the office of the Army
Judge Advocate General all approve the classification decision. In 7 of
the 10 cases the officer involved had retired before the investigation was
conducted. Table 8 contains summaries of the misconduct and the actions
taken.
Appendix IV: National Guard Senior Officer Misconduct Cases
Table 8: Summary of Inspector General Investigations Involving
Substantiated Allegations of Wrongdoing by Senior Officers, January 1,
1997, through December 31, 2001
Air Force Investigations
Substantiated allegation of reprisal Action taken
Reprised against a subordinate with an improper referral for a Relieved of
command and left the National Guard. mental health evaluation and an
adverse officer efficiency report.
Reprised against an individual by initiating an administrative Verbal
counseling. separation and suspending individual's security clearance.
Reprised against an individual with an improper referral for a Letter of
reprimand from the state Adjutant General. mental health examination.
Reprisal against complainants; abused authority; unprofessional Verbal
reprimand by the Adjutant General. conduct.
Substantiated allegation of fraud, waste, or abuse Action taken
Condoned the backdating and falsification of transfer and Verbal
counseling by the state Governor. promotion orders.
Made false statements to government officials. Letter of admonishment from the
state Adjutant General.
Misused military aircraft; also, trip was scheduled for the Verbal
reprimand from the state Adjutant General. individual's personal gain.
Falsified time and another person's initials on a pay log. Verbal
counseling.
Substantiated allegation of unprofessional relationship Action taken
Adultery, unprofessional relationships, and false testimony. Retired at
the request of the state Adjutant General and removed from the promotion
list.
Engaged in an unprofessional relationship with a subordinate. Verbal
counseling by the state Governor.
Substantiated allegation of ethics violation Action taken
Accepted gift in excess of limit in ethics regulation. Letter of
admonishment from the state Adjutant General and reimbursed cost of the
gift.
Accepted gift in excess of limit in ethics regulation. Letter of
admonishment from the state Adjutant General and reimbursed cost of the
gift.
Substantiated allegation of abuse of authority Action taken
Abused authority by assisting son's promotion. Letter of reprimand from
the state Adjutant General.
Improperly administered annual leave policy. No adverse action taken.
Problem was administratively corrected.
Improperly administered annual leave policy. No adverse action taken.
Problem was administratively corrected.
Improperly administered annual leave policy. No adverse action taken.
Problem was administratively corrected.
Abused authority. Unknown.
Failed to provide a complainant's legal rights; abused authority Letter of
concern from the state Adjutant General. by ordering the complainant to
leave the workplace.
Undue command influence; abused authority; derelict in duty. Verbal
counseling by the Governor.
Directed that an individual be detailed to another unit in excess Verbal
counseling by the commander.
of the limits prescribed in the regulations.
Appendix IV: National Guard Senior Officer Misconduct Cases
Substantiated allegation of abuse of authority (cont.) Action taken
Allowed use of government property for other than authorized Memorandum of
censure from the state Adjutant General.
purposes; directed or requested subordinates to use official time
for unauthorized purposes.
Placed an individual in a controlled grade position without Verbal
counseling from the state Adjutant General.
requiring the individual to perform any of the duties associated
with the position.
Substantiated allegation of poor judgment Action taken
Failed to take action when notified of a sexual harassment Letter of
counseling from the Secretary of the Air Force.
allegation and did not give honest testimony to an Inspector
General.
Failed to ensure a complainants legal rights were protected; Letter of
concern from the state Adjutant General. abused his authority.
Failed to carry out his responsibilities as an Inspector General. Letter
of concern from the state Adjutant General.
Swore at private contractors; did not get approval for passenger Letter of
reprimand from the state Adjutant General. on aircraft; misused government
aircraft
Misused aircraft. Letter of reprimand from the state Adjutant General.
Public intoxication. Verbal counseling.
Exercised during duty hours. Unknown (case file destroyed).
Used government equipment and time to send e-mail information Verbal
reprimand by the Commander. to others that was political in nature.
Army investigations Substantiated allegation of reprisal Action taken
Reprised against a fellow officer with an adverse efficiency Received two
letters of reprimand from the Vice Chief of Staff of
report; initiated an investigation to discredit an individual; used the
Army; both filed in official military personnel file.
government equipment for personal use; gave preferential
treatment to an individual; and threatened an individual's right to
make statements to the press and the Inspector General.
Reprised against a fellow officer with an adverse efficiency report Letter
of reprimand from the Vice Chief of Staff of the Army filed in and signed
a false official document. official military personnel file.
Reprised against an individual by improperly forcing a mental Memorandum
of reprimand from the Vice Chief of Staff of the Army health examination.
filed in official military personnel file.
Reprised against a fellow officer; illegal political support. Memorandum
of reprimand from the Vice Chief of Staff of the Army filed in official
military personnel file.
Reprised against a subordinate. Memorandum of concern from the Vice Chief
of Staff of the Army.
Substantiated allegation of fraud, waste, or abuse Action taken
Provided false information in medical history. Memorandum of concern from
the Vice Chief of Staff of the Army.
Scheduled government trips for own personal gain; misused Memorandum of
reprimand from the Vice Chief of Staff of the Army
state postage stamps for personal gain; sexually harassed filed in
official military personnel file.
females; improperly tried to influence an Inspector General
investigation.
Improperly upgraded his airline travel and conducted a circuitous Retired.
Case closed under noncredible/inconsequential
travel route during a trip. procedures.
Appendix IV: National Guard Senior Officer Misconduct Cases
Substantiated allegation of fraud, waste, or abuse (cont.) Action taken
Received payment and retirement point credit for duty not Memorandum of
reprimand from the Vice Chief of Staff of the Army
performed; failed to carry out duty as a noncommissioned officer filed in
official personnel file.
evaluation report reviewer.
Received pay and retirement point credit for duty not performed. Retired.
Case closed under noncredible/inconsequential procedures.
Failed to ensure that an officer was properly rated; mistreated Memorandum
of concern from the Vice Chief of Staff of the Army. subordinates;
falsified physical fitness test results.
Directed personnel to falsify personal strength accounting by Memorandum
of reprimand from the Vice Chief of Staff of the Army
delaying discharge processing; provided false testimony to an filed in
official military personnel file.
Inspector General.
Authorized, approved, and participated in non-mission-essential Memorandum
of reprimand from the Vice Chief of Staff of the temporary duty; improper
relationships; tolerated misconduct. Army.
Signed a subordinate's efficiency report knowing it contained Memorandum
of concern from the Vice Chief of Staff of the Army. false information.
Substantiated allegation of unprofessional relationship Action taken
Engaged in an adulterous affair. Forced resignation, unfavorable
evaluation report, and Memorandum of Reprimand from the Vice Chief of
Staff of the Army filed in official military personnel file.
Improper relationship with a subordinate. Memorandum of concern from the Vice
Chief of Staff of the Army.
Substantiated allegation of abuse of authority Action taken
Gave preferential treatment to a subordinate. Letter of reprimand from the
Vice Chief of Staff of the Army filed in official military personnel file.
Improperly used a government vehicle, personnel, and equipment; improperly
accepted and retained an active duty identification card; scheduled
unnecessary temporary duty travel.
Memorandum of reprimand from the Vice Chief of Staff of the Army.
Improperly authorized time off awards for a subordinate. Memorandum of
concern from the Vice Chief of Staff of the Army.
Ordered the promotion of subordinates. Retired before the investigation
took place. Case closed under noncredible/inconsequential procedures.
Ordered the promotion of subordinates, and attempted to Retired before the
investigation took place. Case closed under influence the results of a
promotion board. noncredible/inconsequential procedures.
Improperly directed a soldier's removal from unit training. Memorandum of
admonition from Vice Chief of Staff of the Army.
Misused aircraft for personal business; failed physical fitness Memorandum
of reprimand from the Vice Chief of Staff of the Army test; abused
subordinates. filed in official military personnel file. Individual never
received federal recognition.
Improperly directed an officer's relief from command and Letter of
reprimand from the state Adjutant General. coerced individual into
resigning.
Improperly directed an officer's relief from command and Letter of
reprimand from the state Adjutant General. coerced individual into
resigning.
Failed to take a required physical fitness test; diverted an Memorandum of
reprimand from the Vice Chief of Staff of the Army aircraft from its
flight plan for personal business. filed in official military personnel
file.
Appendix IV: National Guard Senior Officer Misconduct Cases
Substantiated allegation of poor judgment Action taken
Failed to take a required physical fitness test, and did not verify
Memorandum of concern from the Vice Chief of Staff of the Army.
the accuracy of the height and weight entries on efficiency
report.
Failed to comply with physical fitness test requirements. Memorandum of
reprimand from the Vice Chief of Staff of the Army filed in official
military personnel file.
Conduct disrespectful toward a superior officer. Retired. Case closed
under noncredible/inconsequential procedures.
Used guard employees to support a community project. Case disposed of in
accordance with noncredible/inconsequential procedures.
Used National Guard unit patch in a commercial endeavor. Memorandum of concern
from the Vice Chief of Staff of the Army. Failed to take a required physical
fitness test. Memorandum of concern from the Vice Chief of Staff of the Army.
Drunk in a public place; operated a vehicle in a drunken and Memorandum of
reprimand from the Vice Chief of Staff of the Army reckless manner. filed
in official military personnel file.
Used military aircraft for travel in violation of DOD and Army Retired.
Case closed under noncredible/inconsequential guidance. procedures.
Used names and addresses of guard members in an advertising Memorandum of
concern from the Vice Chief of Staff of the Army. campaign.
Wore uniform after retiring. Retired. Case closed under noncredible/
inconsequential procedures.
Misused government resources for a private social function. Memorandum of
concern from the Vice Chief of Staff of the Army.
Failed to take a required physical fitness test. Retired. Case closed
under noncredible/ inconsequential procedures.
Coerced guard members to join the National Guard Association. Memorandum
of concern from the Vice Chief of Staff of the Army.
Used position to facilitate employment of a family member by a Verbal
counseling by the state Assistant Adjutant General civilian contractor
supporting a DOD contract.
Allowed smoking in a federal building. Unknown.
Failed to meet height, weight, and fitness standards. Unknown.
Wore uniform of a brigadier general when only a lieutenant Case closed
under noncredible/inconsequential procedures.
colonel. Individual had been appointed as Deputy Adjutant
General but had not been federally recognized.
Coerced guard members to join the National Guard Memorandum of concern
from the state Adjutant General. Association.
Smoked in a military vehicle; conduct unbecoming an officer; Letter of
reprimand from the Director, Army National Guard. false statements to an
Inspector General.
Failed to take a required physical fitness test. No action taken.
Improperly administered the Army weight control and physical No action
taken. fitness test programs.
Coerced guard members to join the National Guard Association. Verbal
counseling from the state Adjutant General. Counseling not recorded in
official military personnel files.
Appendix IV: National Guard Senior Officer Misconduct Cases
Substantiated allegation of poor judgment (cont.) Action taken
Condoned the promotion of one soldier over another who was No action
taken. in a higher position on the promotion list.
Improper relationships with subordinate civilian employees, Retired and
name removed from promotion list. military officers, and noncommissioned
officers.
Sources: DOD (data) GAO (analysis).
Appendix V: Federal Protections for National Guard Whistleblowers
Background Federal protections for National Guard whistleblowers are
limited by the dual federal-state status of the guard. Federal protections
apply only to guard members who are in federal duty or training status;
these protections derive from the military whistleblower statute (10
U.S.C. S: 1034), DOD directives, and Inspector General guidance. Federal
protections do not apply to guard members who are in state active duty
status; their protections, if any, derive from state law.
The military whistleblower protection statute requires the DOD Inspector
General to expeditiously investigate a whistleblower's allegations of
reprisal that it receives within 60 days of the service member's initial
awareness of an adverse action. If an investigation cannot be completed
within 90 days of the receipt of the allegation the Inspector General is
to notify the Secretary of Defense and the member about the reason and the
expected date of the report. The Inspector General then submits the
results of an investigation to the Secretary of Defense, the service
Secretary, and the service member.
The law also allows the service Board for the Correction of Military
Records to review the results of the investigation in considering a
service member's request for correction of records. Furthermore, the law
permits the service member to appeal to the Secretary of Defense the final
disposition of the service Secretary's decision concerning the correction
of records.
Since 1988, Congress has strengthened military whistleblower protections
by
o prohibiting the use of mental health evaluations as reprisals against
whistleblowers that make protected disclosures (1992);
o protecting communications not only to a Member of Congress or an
Inspector General but also to a member of a DOD audit, inspection,
investigation, or law enforcement organization, and certain other
designated persons; and requiring the DOD Inspector General to ensure that
the investigating service Inspector General is outside the immediate chain
of command of both the whistleblower and the individual alleged to have
taken the retaliatory action; and incorporating under the protection act
allegations of sexual harassment and unlawful discrimination (1994);
o extending authority to services' Inspector General to grant
whistleblower protection for reprisal allegations presented directly to
them by service members (service members were no longer required to submit
allegations directly with the DOD Inspector General) (1998).
Appendix V: Federal Protections for National Guard Whistleblowers
Effectiveness of Federal Protection for Guard Whistleblowers Rests on
Two-Stage Investigation and Approval Process by DOD Inspector General
The effectiveness of the federal protection for military and guard
whistleblowers rests principally on a two-stage process of investigation
and administrative review. The first stage involves a DOD, service, or
guard Inspector General's investigation of the specific facts and
interpretation of issues associated with a reprisal allegation. In the
second stage of the investigation/ administrative review process, the DOD
Inspector General reviews and approves the findings of the service or
guard Inspectors General. This review offers assurance that the findings
and recommendations were made in compliance with applicable investigatory
guideless and legally sufficient. As an overall observation, under this
process, Inspectors General interpret issues associated with
whistleblowing on an allegation-by-allegation basis without relying on
published guidance from past similar allegations and decisions. In
contrast, decisions made under the civilian whistleblower protection
statutes rely on published case law.
Stage One: Inspectors General's Investigation and Interpretation of Issues
Every reprisal allegation made by a guard member is examined and, if
warranted,1 investigated by an Inspector General.Investigations are
conducted to determine the validity of a reprisal allegation. To be valid,
the allegation must meet the following criteria: (1) the communication was
protected, (2) the personnel action was unfavorable, (3) the personnel
action occurred after the protected communication took place,2 (4)
management knew about the protected communication before taking action,
and (5) management would not have taken the personnel action in the
absence of a protected communication. In our review of 122 allegations
that covered the period 1997 to 2002, we found that Inspectors General did
not substantiate 98 of the allegations (80 percent). Below, we discuss
variances to the five criteria that raised interpretative issues for
Inspectors General, guard whistleblowers and guard management in some of
the investigations we reviewed.3
1As noted, no investigation is required when a complaint is made to an
Inspector General more than 60 days after a member of the military became
aware of the personnel action at issue. According to a DOD Inspector
General official, the Inspector General extends the filing deadline to 120
days in most cases.
2The DOD Inspector General's guidance to investigators does not make this
a separate criterion, but investigators determine the timing of a
protected communication.
3In military whistleblower investigations the evidentiary standard is
preponderance of evidence, which means that the evidence that the
investigator must determine is of greater weight or more convincing than
the evidence presented in opposition to it.
Appendix V: Federal Protections for National Guard Whistleblowers
Communications Were Not Protected
Our review showed that Inspectors General did not substantiate four
National Guard members' reprisal allegations, at least in part, because
investigators found that their disclosures were not protected by statute.
The military whistle-blower protection statute recognizes two types of
protected communications. First, a protected communication is any lawful
communication to a Member of Congress or an Inspector General; it does not
have to disclose wrongdoing. Second, a protected communication also is a
disclosure that a member of the military reasonably believes constitutes
evidence of a violation of law or regulation, including a law or
regulation prohibiting sexual harassment or unlawful discrimination; gross
mismanagement; a gross waste of funds; an abuse of authority; or a
substantial and specific danger to public health or safety.4 Such
disclosures can be made only to any of the following: 5 a Member of
Congress; an Inspector General; a member of a DOD audit, inspection,
investigation, or law enforcement organization; or any other person or
organization, including any person in the chain of command designated
under regulations or established administrative procedures to receive such
communications.
In some of the allegations we examined, guard members made disclosures
that were not protected for a variety of reasons. For example, in one
situation a guard member made a disclosure to the "officer in charge," but
this officer was outside the chain of command. In other words, he did not
have administrative, disciplinary or mission responsibility associated
with command, and he was not designated under regulations to receive
protected communications. In another example, a guard member alleged
wrongdoing in testimony before the Merit Systems Protection Board (a
federal civilian agency that, among other functions, adjudicates
whistleblower cases), and subsequently alleged reprisal for having done
so. However, because of the military whistleblower statute's limitation on
who can receive a protected disclosure, a disclosure in a federal civilian
investigation is not protected. In a third example, a guard member alleged
wrongdoing to a state ethics board, but disclosure to a state agency is
also not protected by the military whistleblower protection act. And in a
fourth example, an Inspector General rejected the argument by a guard
whistleblower that audit work, by itself, is a protected disclosure. The
Inspector General noted "we do not consider every document prepared by
4Some of the subjects of a protected disclosure are substantially the same
as those in the civilian whistleblower protection statute [5 U.S.C. S:
1213 (a) (1)].
510 U.S.C. S: 1034 (b)(1)(A) and (B).
Appendix V: Federal Protections for National Guard Whistleblowers
Personnel Actions Were Not Unfavorable
a DOD auditor . . . to constitute a protected communication even if such
work should contain disclosures of wrongdoing." The inspector further
noted that the military whistleblower protection statute "was not intended
to shield members of a DOD audit organization from the unfavorable
personnel actions that might legitimately be taken because of deficient
performance."
Our review also showed that at least four reprisal allegations were not
substantiated because an Inspector General did not consider the personnel
action that was being contested to be unfavorable. The DOD directive on
military whistleblower protection describes an unfavorable personnel
action as "any action taken on a member of the Armed Forces that affects
or has the potential to affect that military member's current position or
career." For some of the cases we reviewed, unfavorable personnel actions
included suspension of a security clearance, withdrawal of a promotion
nomination, a letter of reprimand, an adverse officer evaluation report,
improper restriction of flying hours, improper referral for mental health
evaluation, and involuntary retirement.
In the first example, an Inspector General concluded that being placed on
paid administrative leave (nonduty status with pay) was not an adverse
personnel action: the whistleblower's personnel record would not reflect
nonduty status, and this action would not have any future impact on
promotion or reassignment. In the second example, an Inspector General
found that reassignment was not per se an unfavorable personnel action:
Guard management was well within its authority to move personnel for the
needs of the organization and the morale and welfare of a group, such
reassignments are "not uncommon." A guard whistleblower alleged in the
third example that guard management had retaliated against him by
restricting him in writing to using the chain of command to make a
protected communication. An Inspector General dismissed the allegation:
the guard management's letter had not actually restricted the guard member
to using the chain of command, but had only suggested that he do so when
management wrote to the member, "Let me encourage you to express your
interests and concerns through your direct chain of command . . . always
do your best to try to find solutions within your unit of assignment." In
the fourth example, an Inspector General found that a "satisfactory"
personnel evaluation is not per se unfavorable, but the Judge Advocate
General who reviewed this finding for legal sufficiency disagreed, noting
that a satisfactory rating that followed "excellent" and "superior"
ratings ought to be considered an unfavorable personnel action.
Appendix V: Federal Protections for National Guard Whistleblowers
Unfavorable Personnel Actions Were Made Before a Protected Disclosure
Guard Management Did Not Know about a Protected Disclosure Before Taking
an Unfavorable Personnel Action
We reviewed 10 guard cases in which an Inspector General did not
substantiate a reprisal allegation, in whole or in part, because guard
management was in a variety of ways preparing to take or had initiated an
unfavorable personnel action before a guard member's protected disclosure
was made. Logically, if guard management took an unfavorable personnel
action against a guard member before the member made a protected
disclosure, management could not be found to have retaliated against the
member. At issue, however, is when management first considered,
contemplated, or decided to take an unfavorable personnel action and
whether that has the same legal meaning as actually "taking" such an
action.6
In one example of this timing issue, an Inspector General declined to
investigate a reprisal allegation because documented "events" (guard
whistleblower's disruptive behavior) leading to an unfavorable personnel
action occurred before he made a protected communication. In a more
complex example, guard management initiated formal action to separate a
guard member from the guard for misconduct. The paperwork associated with
the separation action was apparently misplaced and the member subsequently
made a protected disclosure. Upon learning of the disclosure, guard
management promptly resubmitted the paperwork, but the Inspector General
determined that the second submission was made in retaliation for the
disclosure, deciding, in effect, that there were two personnel actions
separated by a disclosure rather than one action that was first initiated
prior to a disclosure, and then reinitiated after the disclosure had been
made. The Inspector General noted that had guard management followed
through on the first personnel action the whistleblower "would have no
basis to claim reprisal.
We reviewed four cases (seven reprisal allegations) in which guard
management did not know about a guard member's protected disclosure before
taking an unfavorable personnel action against that individual. The DOD
Inspector General's guidance cautions investigators, "if the evidence is
insufficient to determine who knew what and when, give the benefit of the
doubt to the complainant and proceed with the investigation." The guidance
also notes that suspicion, belief, or knowledge of rumors of a
6The DOD Inspector General's guidance instructs investigators to verify
the date the "responsible management official first contemplated taking
the action or decided to take, withhold, or threaten the personnel
action." According to DOD Inspector General officials, the mere
contemplation of action before a disclosure, without collaboration, should
not stop a reprisal allegation from being further investigated.
Appendix V: Federal Protections for National Guard Whistleblowers
Guard Management Would Have Taken the Same Course of Action in the Absence
of a Protected Disclosure
protected communication by a responsible management official are
sufficient for proceeding with the investigation. In general, the deciding
factor in these four cases was whether whistleblowers could provide
sufficient evidence in support of their assertion that management knew
about a disclosure before taking an unfavorable personnel action.
Whether management knew about a protected disclosure cannot always be
easily established. In one example of this issue, investigators decided
that guard management knew that someone had made a protected disclosure
and that management "had reason to believe" that a specific guard member
made one, thus giving the benefit of the doubt to the whistleblower.
However, the Inspector General did not substantiate the reprisal
allegation on other grounds; guard management had determined to take a
personnel action "well in advance" of the whistleblower's protected
communication.
While the first four criteria are associated with a guard whistleblower's
reprisal allegation, for the fifth criterion guard management must
establish by a preponderance of evidence that it would have taken the
action it did even if the whistleblower had not made or prepared a
protected communication.
Inspectors General consider five variables when assessing the validity of
management's assertion:7
o Reason(s) stated by guard management for taking, withholding, or
threatening the action.
o Reasonableness of the action(s) taken, withheld, or threatened
considering a guard member's performance and conduct.
o Consistency of guard management's actions with past practice.
o Motive of guard management for deciding, taking, or withholding a
personnel action.
o Procedural correctness of the action.
7In cases involving federal civilian employees, the Merit Systems
Protection Board has considered similar variables: (1) strength of
evidence in support of personnel action; (2) existence and strength of any
motive to retaliate; and (3) evidence that agency takes similar actions
against employees who are not whistleblowers, but who are otherwise
similarly situated. (Yunus v. Department of Veterans Affairs, Merit
Systems Protection Board, 84 M.S.P.B. 78, 1999). In civilian cases,
management must prove by clear and convincing evidence that it would have
taken a personnel action regardless of a protected disclosure. Clear and
convincing evidence requires a degree of proof more demanding than
preponderance but less than the "beyond a reasonable doubt" required in
criminal cases.
Appendix V: Federal Protections for National Guard Whistleblowers
For most of the reprisal allegations we reviewed, guard management
demonstrated to the satisfaction of an Inspector General that it would
have taken the same course of action in the absence of a protected
disclosure. We also reviewed 24 allegations where guard management failed
to demonstrate this. The most frequently cited reason for this failure was
that the personnel action was inconsistent with similar past circumstances
or that it was not reasonable. One form of inconsistency occurred when a
guard whistleblower was singled out for retaliation for actions that
others also engaged in but who were not similarly punished. A lack of
reasonableness occurred when a rater gave a whistleblower good marks on an
evaluation report but the senior rater made adverse remarks that he could
not explain and that were not preceded by a counseling session. In another
example, an Inspector General questioned the consistency of guard
management's actions to separate a whistleblower from a state National
Guard because he criticized the performance, integrity, competence and
leadership of three senior guard officials. These senior officials all had
substantiated allegations of misuse of government funds against them from
previous Inspector General investigations initiated by the whistleblower
and others. None of the senior officials were processed for administrative
discharge, and two of the three officials had their letters of counseling
reduced to verbal counseling. Guard management in this example was so
unaware of the military whistleblower protection statute that it actually
cited the whistleblower's protected communication as a reason for his
discharge from the guard. Guard management did not note poor performance
or document moral or professional dereliction as reasons for its actions.
Stage Two: Review and The military whistleblower protection statute
provides whistleblowers Approval of Whistleblower with a guarantee that
the findings of a reprisal investigation will be Reprisal Investigations
by reviewed and approved by the DOD Inspector General. Specifically, the
statute requires the DOD Inspector General to (1) review a military
DOD's Inspector General service's Inspector General's decision to
terminate a reprisal inquiry for lack of sufficient evidence8 and (2)
approve of the results of all whistleblower investigations, regardless of
who conducted the investigation.9
810 U.S.C. S: 1034 (c)(3)(C). 910 U.S.C. S: 1034 (c)(3)(E).
Appendix V: Federal Protections for National Guard Whistleblowers
The DOD Inspector General's review and approval of all investigation
results is an important protection because a military whistleblower,
including a National Guard member, cannot appeal on the same basis as a
civilian complainant to a federal appeals court under the military
whistleblower protection statute.10 In order to gauge the significance of
this protection, we reviewed 19 allegations in which Inspectors General
disagreed with each other on a variety of issues.11 In particular, eight
reprisal allegations in three investigations underscore the significant
differences between Inspectors General in their interpretations of certain
issues.
o Sanctity of chain of command-In one example, the Army Inspector
General preliminarily found that guard management (brigadier general) did
not retaliate against a guard whistleblower. The DOD Inspector General
disagreed, stating that its investigation "clearly determined" that the
guard whistleblower was reprised against "to a degree rarely seen in our
years of conducting this form of investigation." The Army countered,
stating that the guard whistleblower "was seeking refuge under the
[military whistleblower protection statute] to avoid being disciplined by
a chain of command not satisfied with his performance . . . ." Senior Army
management concurred with the DOD Inspector General and gave the brigadier
general a letter of reprimand reminding him that "your concern for a
member of your staff `jumping' the chain of command is inappropriate in
this situation and indicates a lack of knowledge on the use and role of
the [Inspector General] system" (i.e., any disclosure made to an Inspector
General, no matter its content, is protected by statute).
o Interpretation of evidence-In a second example, a state National Guard
Inspector General substantiated six reprisal allegations by a guard
whistleblower, including an improper referral for a mental health
examination. However, the Air Force Inspector General ruled that there was
insufficient evidence to substantiate the allegations, and the DOD
Inspector General concurred. The state Inspector General
10In Acquisto v. United States, 70 F. 3d 1010 (8th Cir. 1995), the court
decided that the military whistleblower protection statute provides
strictly administrative remedies and therefore does not afford plaintiffs
an independent cause of action. A Guard member could appeal an Inspector
General's finding to a service board for the correction of military
records, and finally to the Secretary of Defense [10 U.S.C. S: 1034(f) and
(g)]. Title 5 U.S.C. S: 7703, on the other hand, provides authority for a
civilian whistleblower to appeal adverse decisions by the Merit Systems
Protection Board to federal court.
11These 19 allegations were in 8 of the 60 investigations we reviewed.
Appendix V: Federal Protections for National Guard Whistleblowers
discounted the whistleblowers' health issues (treatment for alcoholism and
depression) because they were "common knowledge" to the individual's
"local supervisors," and substantiated the mental health reprisal
allegation because evidence showed guard management was increasingly
exasperated with dealing with someone who complained a lot. In contrast,
the Air Force noted that the "evidence is overwhelming" that the guard
whistleblower's "mental state [mood swings] had so deteriorated" that "any
reasonable commander" would have made a mental health referral.
o Quality of investigation-In a third example, a state National Guard
Inspector General did not substantiate a guard whistleblower's three
reprisal allegations, but the Army Inspector General considered the
original and subsequent amended investigation deficient, although it too
did not substantiate the allegations. The DOD Inspector General reviewed
the investigation and informed the Army that the state Inspector General
had not properly framed the reprisal allegations; interviews with
responsible management officials were "leading and superficial" and
"worthless as credible evidence;" and the investigator "did not obtain a
preponderance of evidence" to support the finding that "responsible
management officials did not take the unfavorable actions in reprisal."
The DOD Inspector General first requested and then withdrew its request
that the case be reinvestigated, deciding instead to "complete the
additional investigation and ensure" that the guard whistle-blower's
"allegations are fully addressed." The DOD Inspector General subsequently
substantiated two of the three reprisal allegations.
Inspectors General Have Not Compiled an Authoritative Record of their
Interpretations of Whistleblower Issues
Unlike the military, the civilian whistleblower process has developed and
published a body of authoritative interpretation of issues. For example,
in response to reprisal allegations by civilian federal employees, the
civilian process (the Merit System Protection Board and the U.S. Court of
Appeals for the Federal Circuit) has considered the question, "When is a
disclosure protected by statute?" As an answer, the Federal Circuit
determined that certain disclosures may not be protected if they are
directed at the alleged wrongdoer [Horton v. Department of Navy, 66 F. 3d
279 (Fed Cir. 1995)]; made to a supervisor as part of the performance on
one's job duties [Willis v. Department of Agriculture, 141 F. 3d 1139 (Fed
Cir. 1998)]; and made about information that is "publicly known"
[Meuwissen
v. Department of Interior, 234 F. 3d 9 (Fed. Cir. 2000)].
An advantage of a publicly documented record of interpretation of issues,
such as the meaning of a protected disclosure, is that it can serve as the
Appendix V: Federal Protections for National Guard Whistleblowers
basis for amending the civilian whistleblower protection statutes. For
example, congressional reaction to so-called "judicially created
exceptions" 12 formed the basis of an unsuccessful attempt in the 107th
Congress to amend the civilian statute. The amendment, if enacted, would
have covered the disclosure of information "without restriction to time,
place, form, motive or context, or prior disclosure made to any person by
an employee or applicant, including a disclosure made in the ordinary
course of an employee's duties . . . ."
A similar procedure to codify a body of authoritative interpretations of
whistleblower issues has not been developed for military personnel. The
examination of a whistleblower's reprisal allegation by Inspectors General
is done largely in isolation of other cases. Their decisions (to
substantiate or not substantiate a reprisal allegation) rely on
experience, including continuing guidance and training to ensure
consistent interpretation of issues, but are made without explicit
reference to other associated decisions, and the decisions are not readily
available to the public or Congress. DOD Inspector General officials told
us they would like to see a codification of issues associated with
whistleblower decisions made by Inspectors General; in short, a DOD
organization similar to the Merit Systems Protection Board which would
render and publish decisions on the interpretation of the military
whistleblower statute.
The limited jurisdiction of the federal government over National Guard
officials means that it cannot order the state Adjutant General to take
administrative action against guard management officials who retaliate, or
take corrective action on behalf of whistleblowers. However, the Army and
Air Force can take administrative action against military members of the
guard, and service boards for the correction of military records can
recommend to service Secretaries corrective action for guard
whistleblowers. None of the whistleblower protection statutes meaningfully
apply to civilian federal employees of the guard.
Eleven of the 60 investigations we reviewed resulted in at least one
substantiated allegation of reprisal. We determined that the military
services or state National Guard took administrative action against guard
Military Services Took Administrative Action in Most Substantiated
Whistleblower Reprisal Investigations
12As termed by Sen. Daniel K. Akaka, who introduced an amendment to the
civilian whistleblower protection statute [S. 995, 107th Cong. (2001)].
Appendix V: Federal Protections for National Guard Whistleblowers
officials after completing seven of these investigations.13 In one
investigation, the Army declined to take action against two guard
officials who retaliated against a guard member by including unfavorable
comments on the individual's evaluation report, even though the rating
itself was favorable. In five investigations, a military service or state
guard issued letters of reprimand. In one investigation, a guard official
was verbally counseled, and in another investigation, a guard management
official was removed from consideration for promotion, and two officials
were "given an opportunity to retire."
Among all National Guard whistleblowers, federal civilian employees of the
National Guard (technicians) 14 face the most difficult jurisdictional and
corrective action issues. They are not protected from reprisal by the
military whistleblower protection statute because, as civilians, it does
not apply to them.
Civilian guard technicians who allege reprisal for making a protected
disclosure face at least two "severe and significant restrictions"
according to a decision by the U.S. Court of Appeals for the Federal
Circuit [Singleton v. Merit Systems Protection Board, 244 F. 3d 1331 (Fed.
Cir. 2001)]. First, some adverse actions (for example, suspension,
furlough without pay, reduction in rank, or compensation) against civilian
technicians cannot be appealed to the Merit Systems Protection Board.15
Second, adverse actions not covered by the guard technicians act can be
appealed to the Merit Systems Protection Board, but the appeal is
meaningless because of the board's limited enforcement powers. The board
has determined that its orders are not enforceable against state National
Guards, and for that reason, the board is without power to supply
13The DOD Inspector General considers one investigation as "open" and was
not able to provide information on two investigations.
14A technician's employment, use, and status are defined by 32 U.S.C. S:
709.
15The Federal Circuit noted in Singleton, that the guard technicians act
provides, "notwithstanding any other provision of law" (including the
civilian whistleblower protection statutes), a technician's right of
appeal to an adverse personnel action, as enumerated in the technicians
act, "shall not extend beyond the adjutant general of the jurisdiction
concerned." Consequently, the Federal Circuit observed "when it comes to
protection under the [civilian whistleblower protection statutes] the
[guard technicians act] by its clear terms bars a technician from federal
appeal rights under [the civilian whistleblower protection statutes] when
the adverse action is one of those enumerated in the [guard technicians]
statute."
Appendix V: Federal Protections for National Guard Whistleblowers
an effective remedy even in the instance of a federal employee who can
prevail on the merits of a civilian whistleblower protection act claim.
Appendix VI: Comments from the Department of Defense
(350378) Page 43 GAO-04-258 Military Personnel
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