Military Personnel
Information on Selected National Guard Management Issues
Gao ID: GAO-04-258 December 2, 2003
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.
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.
GAO-04-258, Military Personnel: Information on Selected National Guard Management Issues
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Report to Congressional Committees:
United States General Accounting Office:
GAO:
December 2003:
Military Personnel:
Information on Selected National Guard Management Issues:
GAO-04-258:
GAO Highlights:
Highlights of GAO-04-258, a report to congressional committees
Why GAO Did This Study:
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.
What GAO Found:
The Army National Guard and the Air National Guard have effective
systems in place for identifying and removing non-participating
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.
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 stewartd@gao.gov .
[End of section]
Contents:
Letter:
Results in Brief:
Agency Comments and Our Evaluation:
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:
Table 2: Number of Reserve Component Members Not Paid for 7 or More
Months, July 2003:
Table 3: Examples of Eligibility Requirements for Appointment as a
General Officer in the Army and Air National Guards:
Table 4: Disposition of Applicants (Promotion to General and Colonel)
Reviewed by Army and Air National Guard Federal Recognition Boards:
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:
Table 6: Number of Substantiated Misconduct in Army and Air National
Guard Investigations, by Type of Misconduct, Closed from January 1997
through December 2001:
Table 7: Number of Actions Taken in Senior National Guard Officer
Misconduct Incidents, by Type of Action, Closed from January 1997
through December 2001:
Table 8: Summary of Inspector General Investigations Involving
Substantiated Allegations of Wrongdoing by Senior Officers, January 1,
1997, through December 31, 2001:
Abbreviations:
DOD: Department of Defense:
GAO: General Accounting Office:
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;[Footnote 1] has promoted
unfit officers; has been reluctant to punish senior National Guard
officers[Footnote 2] 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.[Footnote
3] When guard members are conducting state operations, they are under
state authority. Under federal status,[Footnote 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.
As part of the Bob Stump National Defense Authorization Act for Fiscal
Year 2003,[Footnote 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.[Footnote
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 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 non-participation 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.[Footnote 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 protection statutes rely on case law.[Footnote 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.
Agency Comments and Our Evaluation:
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.
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:
Signed by Derek B. Stewart:
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:
[End of section]
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 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 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 timeframe 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' 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.
[End of section]
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 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.
The Army National Guard and the Air National Guard Have Effective
Procedures for Removing Ghost Soldiers from Rolls:
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.
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.[Footnote 9] In our recent discussions
with Army National Guard officials, they described these steps for
improving end-strength 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 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:
Date: September 2000; Total number assigned: 301,140; Number not paid
for previous 3 months: 11,025; Percent not paid for previous 3 months:
3.7; Number not paid for previous 7 months: 4,048; Percent not paid for
previous 7 months: 1.3.
Date: September 2001; Total number assigned: 296,430; Number not paid
for previous 3 months: 8,701; Percent not paid for previous 3 months:
2.9; Number not paid for previous 7 months: 4,254; Percent not paid for
previous 7 months: 1.4.
Date: September 2002; Total number assigned: 296,248; Number not paid
for previous 3 months: 4,248; Percent not paid for previous 3 months:
1.4; Number not paid for previous 7 months: 1,481; Percent not paid for
previous 7 months: .5.
Date: July 2003; Total number assigned: 294,012; Number not paid for
previous 3 months: 1,526; Percent not paid for previous 3 months: .5;
Number not paid for previous 7 months: 3,094; Percent not paid for
previous 7 months: 1.0.
Sources: DOD (data); GAO (analysis).
[End of table]
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, 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 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.
The Reserve Components Nonparticipation Rates Are Slightly Higher Than
the Guard's:
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.
Table 2: Number of Reserve Component Members Not Paid for 7 or More
Months, July 2003:
Component: Army Reserve; Total number assigned: 174,617; Number not
paid for previous 7 months: 5,162; Percent not paid for previous 7
months: 3.0.
Component: Air Force Reserve; Total number assigned: 55,762; Number not
paid for previous 7 months: 1,501; Percent not paid for previous 7
months: 2.7.
Component: Marine Corps Reserve; Total number assigned: 32,399; Number
not paid for previous 7 months: 1,502; Percent not paid for previous 7
months: 4.6.
Component: Naval Reserve; Total number assigned: 60,468; Number not
paid for previous 7 months: 1,223; Percent not paid for previous 7
months: 2.0.
Sources: DOD Defense Manpower Data Center and U.S. Army Reserve Non-
Validation of Pay Reports.
[End of table]
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.
[End of section]
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.[Footnote 10]
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.[Footnote 11] 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.
Table 3: Examples of Eligibility Requirements for Appointment as a
General Officer in the Army and Air National Guards:
* Complete a minimum number of years of service at the lower grade;
* Be a citizen of the United States;
* Possess a security clearance;
* Meet specified height and weight standards;
* Meet specified military professional education requirements;
* Meet specified civilian education requirements;
* Meet specified experience requirements;
* Possess good moral character.
Sources: National Guard Regulation (Air Force) 36-1 and National Guard
Regulation (Army) 600-100.
[End of table]
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.
Federal Recognition Examination Process Contains Reasonable Checks and
Balances:
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 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.[Footnote 12]
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.[Footnote 13] 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. 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.[Footnote 14] 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.
Table 4: Disposition of Applicants (Promotion to General and Colonel)
Reviewed by Army and Air National Guard Federal Recognition Boards:
Promotion to General:
Army National Guard[A]; Number of cases reviewed: 347; Number of cases
denied: Not fully qualified: 16; Number of cases denied: Conduct: 8;
Percent of cases denied: 6.9.
Air National Guard[B]; Number of cases reviewed: 307; Number of cases
denied: Not fully qualified: 0; Number of cases denied: Conduct: 10;
Percent of cases denied: 3.3.
Promotion to Colonel:
Army National Guard; Number of cases reviewed: N.A.
Air National Guard[C]; Number of cases reviewed: 859; Number of cases
denied: Not fully qualified: 3; Number of cases denied: Conduct: 0;
Percent of cases denied: 0.3.
Sources: DOD (data); GAO (analysis).
Legend:
N.A. = not available.
[A] Data for 4.5-year-period--June 1998 through December 2002.
[B] Data for 10-year-period--January 1991 through December 2000.
[C] Data for 4-year period--March 1998 through October 2002.
[End of table]
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.
[End of section]
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.[Footnote 15]
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.[Footnote 16] 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.[Footnote 17] The nature of the allegation largely determines
which Inspector General office or level of command conducts the
investigation. The Army 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.[Footnote 18] 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.
Most Officers Found Guilty of Misconduct Are Punished:
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 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:
Senior officer category: Generals; Army National Guard: 26; Air
National Guard: 9; Total: 34.
Senior officer category: Colonels; Army National Guard: 20; Air
National Guard: 20; Total: 41.
Senior officer category: Total; Army National Guard: 46; Air National
Guard: 29; Total: 75.
Sources: DOD (data); GAO (analysis).
[End of table]
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.
Table 6: Number of Substantiated Misconduct in Army and Air National
Guard Investigations, by Type of Misconduct, Closed from January 1997
through December 2001:
Type of misconduct: Reprisal; Army National Guard colonels and
generals: 5; Air National Guard colonels and generals: 4; Total: 9.
Type of misconduct: Fraud, waste, or abuse; Army National Guard
colonels and generals: 9; Air National Guard colonels and generals: 4;
Total: 13.
Type of misconduct: Improper relationship; Army National Guard colonels
and generals: 3; Air National Guard colonels and generals: 2; Total: 5.
Type of misconduct: Ethics; Army National Guard colonels and generals:
0; Air National Guard colonels and generals: 2; Total: 2.
Type of misconduct: Abuse of authority/poor judgment; Army National
Guard colonels and generals: 33; Air National Guard colonels and
generals: 18; Total: 51.
Type of misconduct: Total; Army National Guard colonels and generals:
50; Air National Guard colonels and generals: 30; Total: 80.
Sources: DOD (data); GAO (analysis).
[End of table]
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.
Table 7: Number of Actions Taken in Senior National Guard Officer
Misconduct Incidents, by Type of Action, Closed from January 1997
through December 2001:
Type of action: Cases forwarded for a decision:
Type of action: Letter/memorandum of reprimand; Army National Guard
colonels and generals: 18; Air National Guard colonels and generals: 4;
Total: 22.
Type of action: Letter/memorandum of censure or concern; Army National
Guard colonels and generals: 13; Air National Guard colonels and
generals: 5; Total: 18.
Type of action: Letter/memorandum of admonishment; Army National Guard
colonels and generals: 1; Air National Guard colonels and generals: 3;
Total: 4.
Type of action: Verbal counseling/reprimand; Army National Guard
colonels and generals: 2; Air National Guard colonels and generals: 11;
Total: 13.
Type of action: Total; Army National Guard colonels and generals: 34;
Air National Guard colonels and generals: 23; Total: 57.
Type of action: Forced resignation or retirement; Army National Guard
colonels and generals: 1; Air National Guard colonels and generals: 2;
Total: 3.
Type of action: Decision made to take no action; Army National Guard
colonels and generals: 3; Air National Guard colonels and generals: 3;
Total: 6.
Type of action: Total; Army National Guard colonels and generals: 38;
Air National Guard colonels and generals: 28; Total: 66.
Type of action: Cases not forwarded for a decision:
Type of action: Case dropped as inconsequential; Army National Guard
colonels and generals: 10; Air National Guard colonels and generals: 0;
Total: 10.
Type of action: Total; Army National Guard colonels and generals: 10;
Air National Guard colonels and generals: 0; Total: 10.
Type of action: Total cases; Army National Guard colonels and generals:
48; Air National Guard colonels and generals: 28; Total: 76.
Sources: DOD (data); GAO (analysis).
[End of table]
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.
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: Reprised against a subordinate
with an improper referral for a mental health evaluation and an
adverse officer efficiency report; Action taken: Relieved of command
and left the National Guard.
Substantiated allegation of reprisal: Reprised against an individual
by initiating an administrative separation and suspending individual's
security clearance; Action taken: Verbal counseling.
Substantiated allegation of reprisal: Reprised against an individual
with an improper referral for a mental health examination; Action
taken: Letter of reprimand from the state Adjutant General.
Substantiated allegation of reprisal: Reprisal against complainants;
abused authority; unprofessional conduct; Action taken: Verbal
reprimand by the Adjutant General.
Substantiated allegation of fraud, waste, or abuse: Condoned the
backdating and falsification of transfer and promotion orders; Action
taken: Verbal counseling by the state Governor.
Substantiated allegation of fraud, waste, or abuse: Made false
statements to government officials; Action taken: Letter of
admonishment from the state Adjutant General.
Substantiated allegation of fraud, waste, or abuse: Misused military
aircraft; also, trip was scheduled for the individual's personal gain;
Action taken: Verbal reprimand from the state Adjutant General.
Substantiated allegation of fraud, waste, or abuse: Falsified time and
another person's initials on a pay log; Action taken: Verbal
counseling.
Substantiated allegation of unprofessional relationship: Adultery,
unprofessional relationships, and false testimony; Action taken:
Retired at the request of the state Adjutant General and removed from
the promotion list.
Substantiated allegation of unprofessional relationship: Engaged in an
unprofessional relationship with a subordinate; Action taken: Verbal
counseling by the state Governor.
Substantiated allegation of ethics violation: Accepted gift in excess
of limit in ethics regulation; Action taken: Letter of admonishment
from the state Adjutant General and reimbursed cost of the gift.
Substantiated allegation of ethics violation: Accepted gift in excess
of limit in ethics regulation; Action taken: Letter of admonishment
from the state Adjutant General and reimbursed cost of the gift.
Substantiated allegation of abuse of authority: Abused authority by
assisting son's promotion; Action taken: Letter of reprimand
from the state Adjutant General.
Substantiated allegation of abuse of authority: Improperly
administered annual leave policy; Action taken: No adverse action
taken. Problem was administratively corrected.
Substantiated allegation of abuse of authority: Improperly
administered annual leave policy; Action taken: No adverse action
taken. Problem was administratively corrected.
Substantiated allegation of abuse of authority: Improperly
administered annual leave policy; Action taken: No adverse action
taken. Problem was administratively corrected.
Substantiated allegation of abuse of authority: Abused authority;
Action taken: Unknown.
Substantiated allegation of abuse of authority: Failed to provide a
complainant's legal rights; Action taken: abused authority by
ordering the complainant to leave the workplace; Action taken: Letter
of concern from the state Adjutant General.
Substantiated allegation of abuse of authority: Undue command
influence; abused authority; derelict in duty; Action taken: Verbal
counseling by the Governor.
Substantiated allegation of abuse of authority: Directed that an
individual be detailed to another unit in excess of the limits
prescribed in the regulations; Action taken: Verbal counseling by the
commander.
Substantiated allegation of abuse of authority: Allowed use of
government property for other than authorized purposes;
directed or requested subordinates to use official time for
unauthorized purposes; Action taken: Memorandum of censure from the
state Adjutant General.
Substantiated allegation of abuse of authority: Placed an individual
in a controlled grade position without requiring the individual to
perform any of the duties associated with the position; Action taken:
Verbal counseling from the state Adjutant General.
Substantiated allegation of poor judgment: Failed to take action when
notified of a sexual harassment allegation and did not give honest
testimony to an Inspector General; Action taken: Letter of counseling
from the Secretary of the Air Force.
Substantiated allegation of poor judgment: Failed to ensure a
complainants legal rights were protected; abused his authority; Action
taken: Letter of concern from the state Adjutant General.
Substantiated allegation of poor judgment: Failed to carry out his
responsibilities as an Inspector General; Action taken: Letter of
concern from the state Adjutant General.
Substantiated allegation of poor judgment: Swore at private
contractors; did not get approval for passenger on aircraft; misused
government aircraft; Action taken: Letter of reprimand from the
state Adjutant General.
Substantiated allegation of poor judgment: Misused aircraft; Action
taken: Letter of reprimand from the state Adjutant General.
Substantiated allegation of poor judgment: Public intoxication; Action
taken: Verbal counseling.
Substantiated allegation of poor judgment: Exercised during duty
hours; Action taken: Unknown (case file destroyed).
Substantiated allegation of poor judgment: Used government equipment
and time to send e-mail information to others that was political in
nature; Action taken: Verbal reprimand by the Commander.
Army investigations:
Substantiated allegation of reprisal: Reprised against a fellow
officer with an adverse efficiency report; initiated an investigation
to discredit an individual; used 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; Action taken: Received two letters of reprimand from the Vice
Chief of Staff of the Army; both filed in official military personnel
file.
Substantiated allegation of reprisal: Reprised against a fellow
officer with an adverse efficiency report and signed a false official
document; Action taken: Letter of reprimand from the Vice Chief of
Staff of the Army filed in official military personnel file.
Substantiated allegation of reprisal: Reprised against an individual
by improperly forcing a mental health examination; Action taken:
Memorandum of reprimand from the Vice Chief of Staff of the Army filed
in official military personnel file.
Substantiated allegation of reprisal: Reprised against a fellow
officer; illegal political support; Action taken: Memorandum of
reprimand from the Vice Chief of Staff of the Army filed in official
military personnel file.
Substantiated allegation of reprisal: Reprised against a subordinate;
Action taken: Memorandum of concern from the Vice Chief of Staff of
the Army.
Substantiated allegation of fraud, waste, or abuse: Provided false
information in medical history; Action taken: Memorandum of concern
from the Vice Chief of Staff of the Army.
Substantiated allegation of fraud, waste, or abuse: Scheduled
government trips for own personal gain; misused state postage stamps
for personal gain; sexually harassed females; improperly tried to
influence an Inspector General investigation; Action taken: Memorandum
of reprimand from the Vice Chief of Staff of the Army filed in
official military personnel file.
Substantiated allegation of fraud, waste, or abuse: Improperly
upgraded his airline travel and conducted a circuitous travel route
during a trip; Action taken: Retired. Case closed under noncredible/
inconsequential procedures.
Substantiated allegation of fraud, waste, or abuse: Received payment
and retirement point credit for duty not performed; failed to carry
out duty as a noncommissioned officer evaluation report reviewer;
Action taken: Memorandum of reprimand from the Vice Chief of Staff of
the Army filed in official personnel file.
Substantiated allegation of fraud, waste, or abuse: Received pay and
retirement point credit for duty not performed; Action taken: Retired.
Case closed under noncredible/inconsequential procedures.
Substantiated allegation of fraud, waste, or abuse: Failed to ensure
that an officer was properly rated; mistreated subordinates; falsified
physical fitness test results; Action taken: Memorandum of concern
from the Vice Chief of Staff of the Army.
Substantiated allegation of fraud, waste, or abuse: Directed personnel
to falsify personal strength accounting by delaying discharge
processing; provided false testimony to an Inspector General; Action
taken: Memorandum of reprimand from the Vice Chief of Staff of the
Army filed in official military personnel file.
Substantiated allegation of fraud, waste, or abuse: Authorized,
approved, and participated in non-mission essential temporary duty;
improper relationships; tolerated misconduct; Memorandum of reprimand
from the Vice Chief of Staff of the Army.
Substantiated allegation of fraud, waste, or abuse: Signed a
subordinate's efficiency report knowing it contained false
information; Action taken: Memorandum of concern from the Vice Chief
of Staff of the Army.
Substantiated allegation of unprofessional relationship: Engaged in an
adulterous affair; Action taken: Forced resignation, unfavorable
evaluation report, and Memorandum of Reprimand from the Vice Chief of
Staff of the Army filed in official military personnel file.
Substantiated allegation of unprofessional relationship: Improper
relationship with a subordinate; Action taken: Memorandum of concern
from the Vice Chief of Staff of the Army.
Substantiated allegation of abuse of authority: Gave preferential
treatment to a subordinate; Action taken: Letter of reprimand from the
Vice Chief of Staff of the Army filed in official military personnel
file.
Substantiated allegation of abuse of authority: Improperly used a
government vehicle, personnel, and equipment; improperly accepted and
retained an active duty identification card; scheduled unnecessary
temporary duty travel; Action taken: Memorandum of reprimand from the
Vice Chief of Staff of the Army.
Substantiated allegation of abuse of authority: Improperly authorized
time off awards for a subordinate; Action taken: Memorandum of concern
from the Vice Chief of Staff of the Army.
Substantiated allegation of abuse of authority: Ordered the promotion
of subordinates; Action taken: Retired before the investigation took
place. Case closed under noncredible/ inconsequential procedures.
Substantiated allegation of abuse of authority: Ordered the promotion
of subordinates, and attempted to influence the results of a promotion
board; Action taken: Retired before the investigation took place. Case
closed under noncredible/inconsequential procedures.
Substantiated allegation of abuse of authority: Improperly directed a
soldier's removal from unit training; Action taken: Memorandum of
admonition from Vice Chief of Staff of the Army.
Substantiated allegation of abuse of authority: Misused aircraft for
personal business; failed physical fitness test; abused subordinates;
Action taken: Memorandum of reprimand from the Vice Chief of Staff of
the Army filed in official military personnel file. Individual never
received federal recognition.
Substantiated allegation of abuse of authority: Improperly directed an
officer's relief from command and coerced individual into resigning;
Action taken: Letter of reprimand from the state Adjutant General.
Substantiated allegation of abuse of authority: Improperly directed an
officer's relief from command and coerced individual into resigning;
Action taken: Letter of reprimand from the state Adjutant General.
Substantiated allegation of abuse of authority: Failed to take a
required physical fitness test; diverted an aircraft from its flight
plan for personal business; Memorandum of reprimand from the Vice
Chief of Staff of the Army filed in official military personnel file.
Substantiated allegation of poor judgment: Failed to take a required
physical fitness test, and did not verify the accuracy of the height
and weight entries on efficiency report; Memorandum of concern from
the Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Failed to comply with
physical fitness test requirements; Action taken: Memorandum of
reprimand from the Vice Chief of Staff of the Army filed in official
military personnel file.
Substantiated allegation of poor judgment: Conduct disrespectful
toward a superior officer; Action taken: Retired. Case closed under
noncredible/inconsequential procedures.
Substantiated allegation of poor judgment: Used guard employees to
support a community project; Action taken: Case disposed of in
accordance with noncredible/inconsequential procedures.
Substantiated allegation of poor judgment: Used National Guard unit
patch in a commercial endeavor; Action taken: Memorandum of concern
from the Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Failed to take a required
physical fitness test; Action taken: Memorandum of concern from the
Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Drunk in a public place;
operated a vehicle in a drunken and reckless manner; Action taken:
Memorandum of reprimand from the Vice Chief of Staff of the Army filed
in official military personnel file.
Substantiated allegation of poor judgment: Used military aircraft for
travel in violation of DOD and Army guidance; Action taken: Retired.
Case closed under noncredible/inconsequential procedures.
Substantiated allegation of poor judgment: Used names and addresses of
guard members in an advertising campaign; Action taken: Memorandum of
concern from the Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Wore uniform after
retiring; Action taken: Retired. Case closed under noncredible/
inconsequential procedures.
Substantiated allegation of poor judgment: Misused government
resources for a private social function; Action taken: Memorandum of
concern from the Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Failed to take a required
physical fitness test; Action taken: Retired. Case closed under
noncredible/inconsequential procedures.
Substantiated allegation of poor judgment: Coerced guard members to
join the National Guard Association; Action taken: Memorandum of
concern from the Vice Chief of Staff of the Army.
Substantiated allegation of poor judgment: Used position to facilitate
employment of a family member by a civilian contractor supporting a
DOD contract; Action taken: Verbal counseling by the state Assistant
Adjutant General.
Substantiated allegation of poor judgment: Allowed smoking in a
federal building; Action taken: Unknown.
Substantiated allegation of poor judgment: Failed to meet height,
weight, and fitness standards; Action taken: Unknown.
Substantiated allegation of poor judgment: Wore uniform of a brigadier
general when only a lieutenant colonel. Individual had been appointed
as Deputy Adjutant General but had not been federally recognized;
Action taken: Case closed under noncredible/inconsequential procedures.
Substantiated allegation of poor judgment: Coerced guard members to
join the National Guard Association; Action taken: Memorandum of
concern from the state Adjutant General.
Substantiated allegation of poor judgment: Smoked in a military
vehicle; conduct unbecoming an officer; false statements to an
Inspector General; Action taken: Letter of reprimand from the
Director, Army National Guard.
Substantiated allegation of poor judgment: Failed to take a required
physical fitness test; Action taken: No action taken.
Substantiated allegation of poor judgment: Improperly administered the
Army weight control and physical fitness test programs; Action taken:
No action taken.
Coerced guard members to join the National Guard Association; Action
taken: Verbal counseling from the state Adjutant General. Counseling
not recorded in official military personnel files.
Substantiated allegation of poor judgment: Condoned the promotion of
one soldier over another who was in a higher position on the
promotion list; Action taken: No action taken.
Substantiated allegation of poor judgment: Improper relationships with
subordinate civilian employees, military officers, and noncommissioned
officers; Action taken: Retired and name removed from promotion list.
Sources: DOD (data) GAO (analysis).
[End of table]
[End of section]
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. §
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:
* prohibiting the use of mental health evaluations as reprisals against
whistleblowers that make protected disclosures (1992);
* 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);
* 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).
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,[Footnote 19] 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,[Footnote 20] (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.[Footnote 21]
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.[Footnote 22] Such disclosures can be made only
to any of the following: [Footnote 23] 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 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.":
Personnel Actions Were Not Unfavorable:
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.
Unfavorable Personnel Actions Were Made Before a Protected Disclosure:
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.[Footnote 24]
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.
Guard Management Did Not Know about a Protected Disclosure Before
Taking an Unfavorable Personnel Action:
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 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.
Guard Management Would Have Taken the Same Course of Action in the
Absence of a Protected Disclosure:
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:[Footnote 25]
* Reason(s) stated by guard management for taking, withholding, or
threatening the action.
* Reasonableness of the action(s) taken, withheld, or threatened
considering a guard member's performance and conduct.
* Consistency of guard management's actions with past practice.
* Motive of guard management for deciding, taking, or withholding a
personnel action.
* Procedural correctness of the action.
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 Approval of Whistleblower Reprisal Investigations
by DOD's Inspector General:
The military whistleblower protection statute provides whistleblowers
with a guarantee that the findings of a reprisal investigation will be
reviewed and approved by the DOD Inspector General. Specifically, the
statute requires the DOD Inspector General to (1) review a military
service's Inspector General's decision to terminate a reprisal inquiry
for lack of sufficient evidence[Footnote 26] and (2) approve of the
results of all whistleblower investigations, regardless of who
conducted the investigation.[Footnote 27]
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.[Footnote 28] 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.[Footnote 29] In particular, eight reprisal allegations in three
investigations underscore the significant differences between
Inspectors General in their interpretations of certain issues.
* 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).
* 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 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.
* 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 basis for amending the civilian whistleblower protection
statutes. For example, congressional reaction to so-called "judicially
created exceptions" [Footnote 30] 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.
Military Services Took Administrative Action in Most Substantiated
Whistleblower Reprisal Investigations:
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 officials after completing seven of these
investigations.[Footnote 31] 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) [Footnote 32] 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.[Footnote 33] 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 an effective remedy even in the
instance of a federal employee who can prevail on the merits of a
civilian whistleblower protection act claim.
[End of section]
Appendix VI: Comments from the Department of Defense:
RESERVE AFFAIRS:
ASSISTANT SECRETARY OF DEFENSE 1500 DEFENSE PENTAGON WASHINGTON, DC
20301-1500:
Mr. Derek B. Stewart:
Director, Defense Capabilities Management U. S. General Accounting
Office Washington, D. C. 20548:
Dear Mr. Stewart:
This is the Department of Defense (DoD) response to the GAO draft
report GAO-04-258, "MILITARY PERSONNEL: Information on Selected
National Guard Management Issues," GAO Code 350378 (formally GAO Codes
350221, 350242, 350284 and 350285). I appreciate
the opportunity to review and comment on the draft GAO report.
We concur with the GAO report as written. We have no specific comments/
concerns on recommendations, since GAO made no specific recommendations
in the report.
Technical changes that were identified by reviewers will be forwarded
to the GAO staff separately.
Signed for:
T. F. Hall
[End of section]
FOOTNOTES
[1] We 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).
[2] Senior officers are defined as those at the rank of colonel and
general.
[3] Adjutants 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).
[4] The 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.
[5] Pub. L. No. 107-314, § 511(a), 116 Stat. 2458, 2536-37.
[6] See GAO-02-540R.
[7] We 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).
[8] See 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).
[9] See GAO-02-540R.
[10] The 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. § § 101(c); 311; and 10107.
[11] The National Guard Bureau is both a staff and operating agency
that administers the federal functions of the Army and the Air National
Guard.
[12] National 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.
[13] DOD Instruction 1320.4; Military Officer Actions Requiring
Approval of the Secretary of Defense or the President, or Confirmation
by the Senate. Mar. 14, 1995.
[14] DOD Instruction 1320.4; Military Officer Actions Requiring
Approval of the Secretary of Defense or the President, or Confirmation
by the Senate. Mar. 14, 1995.
[15] See generally Solorio v. U.S., 483 U.S. 435 (1987); 10 U.S.C. §
12405.
[16] See DOD Directive 5505.6, Investigations of Allegations Against
Senior Officials of the Department of Defense, July 12, 1991.
[17] Air Force Instruction 90-301, Inspector General Complaints, Jan.
30, 2001, and Army Regulation 20-1, Inspector General Activities and
Procedures, Mar. 29, 2002.
[18] Army Regulation 27-10, Military Justice, Sept. 6, 2002; and Air
Force Instruction 36-2907, Unfavorable Information File Program, May 1,
1997.
[19] As 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.
[20] The DOD Inspector General's guidance to investigators does not
make this a separate criterion, but investigators determine the timing
of a protected communication.
[21] In 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.
[22] Some of the subjects of a protected disclosure are substantially
the same as those in the civilian whistleblower protection statute [5
U.S.C. § 1213 (a) (1)].
[23] 10 U.S.C. § 1034 (b)(1)(A) and (B).
[24] The 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.
[25] In 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.
[26] 10 U.S.C. § 1034 (c)(3)(C).
[27] 10 U.S.C. § 1034 (c)(3)(E).
[28] In 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. §
1034(f) and (g)]. Title 5 U.S.C. § 7703, on the other hand, provides
authority for a civilian whistleblower to appeal adverse decisions by
the Merit Systems Protection Board to federal court.
[29] These 19 allegations were in 8 of the 60 investigations we
reviewed.
[30] As termed by Sen. Daniel K. Akaka, who introduced an amendment to
the civilian whistleblower protection statute [S. 995, 107th Cong.
(2001)].
[31] The DOD Inspector General considers one investigation as "open"
and was not able to provide information on two investigations.
[32] A technician's employment, use, and status are defined by 32
U.S.C. § 709.
[33] The 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."
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