oversight

Military Personnel: Information on Selected National Guard Management Issues

Published by the Government Accountability Office on 2003-12-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States General Accounting Office

GAO             Report to Congressional Committees




December 2003
                MILITARY
                PERSONNEL
                Information on
                Selected National
                Guard Management
                Issues




GAO-04-258
                                                December 2003


                                                MILITARY PERSONNEL

                                                Information on Selected National Guard
Highlights of GAO-04-258, a report to           Management Issues
congressional committees




In the past few years, the nation’s             The Army National Guard and the Air National Guard have effective systems
media have focused public                       in place for identifying and removing nonparticipating members when
attention on a series of misconduct             appropriate. By placing greater attention on the accuracy of end-strength
and mismanagement issues within                 reports the Army National Guard has reduced the number of
the Army National Guard and the                 nonparticipating soldiers (so-called “ghost soldiers”) on its rolls to less than
Air National Guard.
                                                1 percent of end strength. The Air National Guard has not placed the same
As part of the Bob Stump National               degree of command emphasis on the issue, but under existing procedures
Defense Authorization Act for                   the guard had a nonparticipation rate of 1.6 percent as of July 30, 2003.
fiscal year 2003, Congress directed
GAO to examine four issues related              The Federal Recognition Examination process has an effective set of checks
to the management of the National               and balances that provide a reasonable assurance that senior National Guard
Guard. In this report, GAO                      officers who are promoted by their state are federally qualified for their
assesses the effectiveness of the               grade and position, and moreover, that any significant issues relating to their
(1) procedures that the Army                    leadership potential or moral character are disclosed. Our analysis of past
National Guard and the Air                      board examinations showed that about 7 percent of Army National Guard
National Guard have established                 officers and about 3 percent of Air National Guard officers examined for
and implemented to deal with
service members who stop
                                                recognition as generals were denied recognition because they were found
attending required training; (2)                not qualified or had conduct issues. This would seem to indicate that
procedures that the National Guard              information relating to the officers’ leadership potential or moral character
uses for federally recognizing state            is disclosed.
promotions of senior National
Guard officers; (3) process that the            The Army National Guard and the Air National Guard have established
National Guard uses for                         effective processes for taking action against senior National Guard officers
disciplining senior officers                    (colonels and generals) involved in misconduct cases. Specifically, most
(colonels and generals) who are                 officers found guilty of misconduct are punished. For example, 57 of 76
guilty of misconduct; and (4)                   officers in our review received some administrative action ranging from a
federal protections for National                letter of reprimand to verbal counseling; 3 resigned or retired at the request
Guard members or civilian federal
employees who report allegations
                                                of their commanders; and only 6 had no action taken against them. The
of waste, fraud, abuse, or                      remaining 10 cases were closed under special Army procedures used
mismanagement (whistleblowers)                  primarily in cases involving inconsequential allegations in which the officers
and the extent to which                         involved had already retired.
disciplinary action is taken against
those in the National Guard who                 The effectiveness of the federal protection for military and National Guard
retaliate against whistleblowers.               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,
www.gao.gov/cgi-bin/getrpt?GAO-04-258.
                                                federal whistleblower protection does not meaningfully apply to civilian
To view the full product, including the scope   federal employees (“technicians”) of the guard.
and methodology, click on the link above.
For more information, contact Derek B.
Stewart at (202) 512-5559 or
                                                DOD concurred with our report.
stewartd@gao.gov .
Contents


Letter                                                                                    1
               Results in Brief                                                           2
               Agency Comments and Our Evaluation                                         5

Appendix I     Scope and Methodology                                                      7



Appendix II    National Guard and Reserve Components Personnel
               Strengths                                                                11



Appendix III   Federal Recognition Process for Recently Promoted
               Senior Officers                                                          16



Appendix IV    National Guard Senior Officer Misconduct Cases                           21



Appendix V     Federal Protections for National Guard
               Whistleblowers                                                           31



Appendix VI    Comments from the Department of Defense                                  43



Tables
               Table 1: Assigned Army National Guard Members Not Paid for
                        Inactive Duty Training for 3 and 7 Months, September 30,
                        2000-July 30, 2003                                              13
               Table 2: Number of Reserve Component Members Not Paid for 7 or
                        More Months, July 2003                                          15
               Table 3: Examples of Eligibility Requirements for Appointment as a
                        General Officer in the Army and Air National Guards             17
               Table 4: Disposition of Applicants (Promotion to General and
                        Colonel) Reviewed by Army and Air National Guard
                        Federal Recognition Boards                                      20




               Page i                                         GAO-04-258 Military Personnel
Table 5: Number of Senior Officers Involved in Substantiated Cases
         of Misconduct in the Army and Air National Guards, by
         Officer Category, from January 1997 through December
         2001                                                                             23
Table 6: Number of Substantiated Misconduct in Army and Air
         National Guard Investigations, by Type of Misconduct,
         Closed from January 1997 through December 2001                                   24
Table 7: Number of Actions Taken in Senior National Guard Officer
         Misconduct Incidents, by Type of Action, Closed from
         January 1997 through December 2001                                               25
Table 8: Summary of Inspector General Investigations Involving
         Substantiated Allegations of Wrongdoing by Senior
         Officers, January 1, 1997, through December 31, 2001                             26




Abbreviations

DOD               Department of Defense
GAO               General Accounting Office


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Page ii                                                   GAO-04-258 Military Personnel
United States General Accounting Office
Washington, DC 20548




                                   December 2, 2003

                                   Congressional Committees

                                   In the past few years, the nation’s media have focused public attention on
                                   a series of misconduct and mismanagement issues within the Army
                                   National Guard and the Air National Guard. Among these issues are
                                   allegations that the National Guard has inflated guard member strengths
                                   with absent or so-called “ghost” soldiers;1 has promoted unfit officers; has
                                   been reluctant to punish senior National Guard officers2 for misconduct;
                                   and has condoned retaliation against guard members who report
                                   wrongdoing (whistleblowers). The Department of Defense’s (DOD) ability
                                   to take action in these matters is complicated by the fact that the National
                                   Guard has a dual state-federal status. Under state status, the National
                                   Guards in each of the 50 states, the District of Columbia, and three
                                   territories (Puerto Rico, Guam, and Virgin Islands) provide emergency
                                   relief support during natural disasters, search and rescue operations, and
                                   civil defense crises, among other missions. In each jurisdiction, the guard
                                   is under the command of the governor of the state and the governor’s
                                   principal deputy for guard administration—the state adjutant general.3
                                   When guard members are conducting state operations, they are under
                                   state authority. Under federal status,4 the National Guard’s mission is to
                                   maintain well-trained, well-equipped units that can be mobilized promptly
                                   during national emergencies and wartime. During these times, guard
                                   members are under federal authority. This dual status sometimes creates
                                   jurisdiction and control issues.




                                   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.



                                   Page 1                                                      GAO-04-258 Military Personnel
                   As part of the Bob Stump National Defense Authorization Act for Fiscal
                   Year 2003,5 Congress directed us to examine four issues related to the
                   management of the National Guard. In this report, we assess the
                   effectiveness of (1) the procedures that the Army National Guard and the
                   Air National Guard have established and implemented to deal with service
                   members who stop attending required training (information on
                   nonparticipation rates in the reserve components is also provided in
                   appendix II); (2) the procedures that the National Guard uses for federally
                   recognizing state promotions of senior National Guard officers; (3) the
                   process that the National Guard uses for disciplining senior officers who
                   are guilty of misconduct; and (4) the federal protections for National
                   Guard members or employees who report allegations of waste, fraud,
                   abuse, or mismanagement (whistleblowers) and the extent to which
                   disciplinary action is taken against those in the National Guard who
                   retaliate against whistleblowers.

                   To conduct our reviews of the four issues, we interviewed officials from a
                   variety of military offices, including the National Guard Bureau, the Army
                   National Guard, the Air National Guard, the Army and Air Force Chiefs of
                   Staff, and the DOD, Army, and Air Force Inspectors General. We also
                   examined relevant guidance, regulations, instructions, and legal decisions,
                   and we collected and analyzed quantitative data for the sections on
                   nonparticipation rates within the guard, senior officer misconduct, and
                   whistleblower protections. A detailed description of our scope and
                   methodology for the four issues is presented in appendix I. We conducted
                   our review from May through December 2003 in accordance with generally
                   accepted government auditing standards.


                   The Army National Guard and the Air National Guard have systems in
Results in Brief   place that are effective in identifying and removing nonparticipating
                   members when appropriate. The Army National Guard is paying greater
                   attention to the accuracy of personnel strength reports than it did when
                   we reported 2 years ago, and by using existing administrative procedures,
                   it has reduced the number of nonparticipating soldiers (so-called “ghost
                   soldiers”) on its rolls to less than 1 percent.6 The existing procedures
                   involve identifying soldiers who have not been paid for the previous 3
                   months of training and encouraging unit managers to resolve their status


                   5
                   Pub. L. No. 107-314, § 511(a), 116 Stat. 2458, 2536-37.
                   6
                   See GAO-02-540R.




                   Page 2                                                    GAO-04-258 Military Personnel
in a timely manner. The Air National Guard has not placed the same
degree of command emphasis on the problem as the Army National Guard
has but, in general, the routine administrative procedures that the Air
Guard uses to process nonparticipating members appear effective. As of
July 30, 2003, the Air National Guard had a nonparticipation rate of 1.6
percent. According to Air Guard personnel officials, the Air Guard is
currently over strength, so units have little motivation to retain members
who do not attend required training. A detailed discussion of this issue is
presented in appendix II.

The effectiveness of the Federal Recognition Examination process rests
on a system of checks and balances that provide a reasonable assurance
that senior National Guard officers who are promoted by their state are
federally qualified for their grade and position and, moreover, that any
significant issues relating to their leadership potential or moral character
are disclosed. These checks and balances include (1) an examination by a
senior-level review board that is independent of the guard organization
that submitted the nomination, (2) a stringent background investigation
for those nominated to Army and Air National Guard general officer and
Air Guard colonel positions, (3) a DOD policy that requires the relevant
military department to disclose any adverse information uncovered on
general officer nominees during presidential approval and Senate
confirmation proceedings, and (4) active management of the process by
the National Guard Bureau and the offices of the Army and Air Force
Chiefs of Staff. While we did not examine specific judgments reached by
the boards, Army and Air Force data show that these checks and balances
ensure that pertinent information on each candidate is available to the
board. For example, our examination of past board proceedings found that
about 7 percent of Army Guard general officer candidates were found to
be not qualified by experience or conduct and about 3 percent of Air
Guard general officer candidates were found to be not qualified by
experience or conduct. Detailed information on this issue is presented in
appendix III.

The Army National Guard and the Air National Guard have established
effective processes for taking action against senior National Guard officers
(colonels and generals) involved in misconduct cases. We judged the
effectiveness of the Army National Guard’s and the Air National Guard’s
processes for taking action against senior National Guard officers involved
in misconduct cases by whether administrative action was taken against
the officers involved. In the majority of cases some action was taken.
From January 1997 through December 2001, the DOD, Army, and Air Force
Inspectors General substantiated wrongdoing by 80 senior National Guard


Page 3                                           GAO-04-258 Military Personnel
officers, and we were able to determine the actions taken for 76 of the 80
officers. We found that the investigative files for 66 of the 76 officers were
sent to the officer’s immediate commander for a decision and that 57 (75
percent) officers had an administrative action imposed, ranging from a
letter of reprimand to verbal counseling; 3 officers (4 percent) resigned or
retired at the request of their commander; and 6 officers (8 percent) had
no administrative action taken against them. Ten officers (13 percent) did
not have their investigative file sent to their immediate commander. All 10
were Army officers whose cases were closed under special Army
procedures for processing cases involving minor violations. For seven of
the officers, the procedures were used in part because the officer had
already retired before the investigation was started. Detailed information
on this issue is presented in appendix IV.

The effectiveness of the federal protection for military and National Guard
whistleblowers rests principally on a two-stage process of investigation
and administrative review.7 The first stage involves a service’s or guard‘s
Inspector General’s investigation of the specific facts and interpretation of
issues associated with a reprisal allegation. In our review of 122
allegations (60 investigations) that covered the period 1997 to 2002, we
found that Inspectors General did not substantiate 98 of these allegations
(80 percent). Inspectors General were unable to substantiate many of
these allegations because they did not meet certain required criteria; for
example, the communication was not protected or there was not an
unfavorable personnel action. In the second stage of the
investigation/administrative review process, the DOD Inspector General
reviews and approves the findings of the service’s or guard’s Inspectors
General. This review offers assurance that the findings and
recommendations are substantiated and legally sufficient. In a review of 19
allegations (8 of the 60 investigations), we found that the DOD Inspector
General did not agree with the other Inspectors General’s interpretation of
certain issues, such as the role of the chain of command, the sufficiency of
the evidence, and the quality of the investigation. As an overall
observation, under this process, Inspectors General interpret issues
associated with whistleblowing on an allegation-by-allegation basis
without relying on established guidance from past similar allegations and
decisions. In contrast, decisions made under the civilian whistleblower



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).




Page 4                                                  GAO-04-258 Military Personnel
                     protection statutes rely on case law.8 For the reprisal allegations we
                     reviewed, the military services took some disciplinary action against most
                     guard management officials who had retaliated against guard members.
                     Federal civilian employees of the National Guard (“technicians”),
                     however, are not protected by the military protection statute because, as
                     civilians, it does not apply to them, nor are they well protected by civilian
                     whistleblower statutes. Detailed information on these issues is in
                      appendix V.

                     GAO is making no recommendations in this report.


                     In commenting on a draft of this report, the Assistant Secretary of Defense
Agency Comments      (Reserve Affairs), concurred with the report as written. DOD also
and Our Evaluation   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




                     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).




                     Page 5                                                    GAO-04-258 Military Personnel
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




Page 6                             GAO-04-258 Military Personnel
             Appendix I: Scope and Methodology
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


             Page 7                                         GAO-04-258 Military Personnel
Appendix I: Scope and Methodology




who had not been paid for the previous 7 months of training. To observe
how reserve units process nonparticipants, we visited the 427th Medical
Logistics Battalion, U.S. Army Reserve, Fort Gillam, Georgia; the 94th
Airlift Group, U.S. Air Force Reserve; and the Marine Air Group 42, U.S.
Marine Corps Reserve, both at Dobbins Air Base, Georgia; and Naval
Reserve units in New Orleans, Louisiana.

To assess the effectiveness of the federal recognition
processes/procedures that the Army National Guard and the Air National
Guard use to ensure that state-promoted officers also meet federal
promotion requirements, we examined the checks and balances in the
system to determine if they contribute to a fair and balanced analysis.
Specifically, we examined the membership of federal recognition boards,
the information available to those boards, the scope of their examination
to determine the veracity of the boards’ examinations, and the
recommendations made by the boards. To do this we obtained and
analyzed the DOD guidance on federal recognition and each service’s
implementing regulations and procedures that govern the process, federal
recognition applications that show the information that applicants
provide, and documentation detailing federal recognition examination
board proceedings. We then interviewed officials in the offices of the
Army Chief of Staff, the Air Force Chief of Staff, and the National Guard
Bureau—all located in Arlington, Virginia—who are responsible for
managing the federal recognition process for officers seeking federal
recognition within the general officer grades to determine how they verify
each applicant’s qualifications and to ensure that their procedures are in
accordance with the applicable instructions and regulations. We also met
with service officials in the offices of the Personnel Directorate, Army
National Guard, Arlington, Virginia; and the Personnel Directorate, Air
National Guard, Arlington, Virginia, who are responsible for managing the
process for officers seeking federal recognition as colonels to determine
how they verify each applicants qualifications and to ensure their
procedures were in accordance with the applicable instructions and
regulations. Finally, we obtained historical data from (1) the Air National
Guard on the decisions of past federal recognition examination boards for
general officers for calendar years 1991 through 2000 and past federal
recognition examination boards for colonels for calendar years 1998
through 2002 and (2) the Army National Guard on the decisions of past
federal recognition examination boards for general officers for the period
June 1998 through December 2002. Historical data on the decisions of past
federal recognition boards for Army colonels was not available. These data
were used to verify that federal recognition examination boards examine
the qualifications and background of federal recognition applicants and


Page 8                                          GAO-04-258 Military Personnel
Appendix I: Scope and Methodology




use that information in reaching a judgment. We did not examine the
specific judgments reached by prior federal recognition boards.

To assess the effectiveness of the processes used by the National Guard
for determining administrative action when Inspectors General
substantiate misconduct by senior National Guard officers, we determined
if an administrative action was taken against senior officers with
substantiated misconduct. To do this, we analyzed all cases of
substantiated wrongdoing involving senior officers that were closed by the
DOD and service Inspectors General from January 1997 through December
2001, to determine if a disciplinary action was imposed. This time frame
was used because congressional Members requesting this report asked in
January 2002 for an analysis of all cases closed in the previous 5 years.
Where case outcomes were not available in the files, we either worked
with the appropriate service General Counsel or the Adjutant General of
the state involved to determine how the case was resolved. We also
interviewed senior officials in the offices of the Chief of Staff of the Army,
the Chief of Staff of the Air Force, the National Guard Bureau, the office of
the DOD Inspector General, the Army Inspector General, and the Air Force
Inspector General who are responsible for managing senior officer
misconduct cases to identify their administrative processes and
adjudication procedures. We did not assess the adequacy of the
investigations conducted by the Inspectors General, nor did we make any
judgment on the appropriateness of the disciplinary action taken.

To examine the effectiveness of whistleblower protections, we reviewed
(1) Inspectors General’s interpretation of issues associated with reprisal
allegations and (2) the DOD Inspector General’s review and interpretation
of reprisal-related decisions by other Inspectors General. In order to do
the first part of this examination, we collected information on 122 reprisal
allegations that were part of 60 investigations conducted by Inspectors
General during the period 1997 to 2002. Generally, these allegations
included those made against senior guard officers accused of misconduct
that we discuss in appendix IV and all allegations that were investigated
during 2001 and 2002. We reviewed the interpretation of issues in terms of
the criteria that Inspectors General used to determine whether to
substantiate a reprisal allegation. We did not evaluate the appropriateness
of the decisions made. In order to place the interpretation of issues
associated with these allegations in a broader context, we reviewed
decisions by the Merit Systems Protection Board and U.S. Court of
Appeals for the Federal Circuit that applied to federal civilian employees
who claimed whistleblower protection. While we did not formally
compare these decisions with those made by the DOD and services’


Page 9                                            GAO-04-258 Military Personnel
Appendix I: Scope and Methodology




Inspectors General, they were used to help us make our overall
observation. We also did not examine the broadly analogous appeals
process available to military and guard whistleblowers, including
recommendations of service boards for the correction of military records.
In order to do the second part of this determination, we examined selected
issues over which the DOD Inspector General and other Inspectors
General disagreed. Issues associated with 19 allegations in 8 of the 60
investigations we reviewed formed the basis of this examination. We did
not evaluate the resolution of these disagreements. We also examined
issues associated with administrative action taken against those who
retaliated against guard whistleblowers. Eleven of the 60 investigations we
reviewed had at least one substantiated allegation of reprisal. The
administrative actions taken as a consequence of these investigations, plus
decisions by the Merit Systems Protection Board and U.S. Court of
Appeals for the Federal Circuit on an additional case involving a federal
civilian employee of the National Guard formed the basis of this
examination. We did not evaluate the appropriateness of the
administrative actions taken.

We performed our work from May through December 2003 in accordance
with generally accepted government auditing standards.




Page 10                                         GAO-04-258 Military Personnel
              Appendix II: National Guard and Reserve
Appendix II: National Guard and Reserve
              Components Personnel Strengths



Components Personnel Strengths

              In March 2002 we reported that the Army National Guard had overstated
Background    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


              Page 11                                          GAO-04-258 Military Personnel
                          Appendix II: National Guard and Reserve
                          Components Personnel Strengths




                          days, (3) reclassifying the individual to a nondrilling status, and (4)
                          discharging the individual.

                          To determine whether the Army National Guard, Air National Guard and
                          reserve components are resolving the status of members who stop
                          attending required training, DOD monitors pay data on individuals who
                          have not been paid for the previous 3 and 7 months. A 3-month period
                          represents 12 drills, and 9 consecutive absences represent 2-1/4 months of
                          missed training. Thus, an individual who has not been paid for 3 months
                          should have the attention of his/her commander. However, the 3-month
                          period is not always a good indicator of unsatisfactory participation
                          because there are numerous reasons why an individual might not have
                          been paid for 3 months but still be listed on unit rolls. These reasons
                          include the transfer of an individual from one unit to another, the inability
                          to train for medical reasons, and being paid late for training. The 7-month
                          period is a better indicator because, as DOD officials agreed, it would be
                          reasonable to expect unit commanders to adjust unit strength if an
                          individual has not been paid for at least 7 months or more.


                          Increased attention by the Office of the Secretary of Defense and the Army
The Army National         National Guard on improving the accuracy of personnel strength reports,
Guard and the Air         coupled with existing procedures for resolving the status of members who
                          stop attending required training, has reduced the nonparticipation rates in
National Guard Have       the Army National Guard. By comparison, the Air National Guard has not
Effective Procedures      placed the same degree of command attention on lowering the number of
                          nonparticipants on its rolls; instead, the Air Guard’s existing
for Removing Ghost        administrative procedures appear to be effective in maintaining low rates.
Soldiers from Rolls
Focused Attention by      In March 2002 we reported that although the Army National Guard’s
Army National Guard Has   personnel strength was overstated because it contained large numbers of
Helped Reduce End         soldiers who were no longer attending drill, the guard was taking steps to
                          correct these overstatements.1 In our recent discussions with Army
Strength Inflation        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


                          1
                          See GAO-02-540R.




                          Page 12                                            GAO-04-258 Military Personnel
                                                      Appendix II: National Guard and Reserve
                                                      Components Personnel Strengths




                                                      attention, the Army National Guard uses a tool known as the nonvalidation
                                                      of pay report. This report identifies soldiers who are required to drill but
                                                      have not received pay for the previous 3 months. Unit commanders are
                                                      urged to review the status of soldiers in this report and determine if they
                                                      should be removed from, or reclassified to a nondrilling status in the Army
                                                      National Guard’s end-strength report. The Army National Guard’s goal is to
                                                      reduce the number of soldiers who have not been paid for the previous 3
                                                      months to less than 2 percent of the force. By taking early action to
                                                      resolve the status of soldiers when they first start missing drills, Army
                                                      National Guard officials believe they can minimize the number of ghost
                                                      soldiers on its rolls.

                                                      Table 1 shows the results of the Army National Guard’s efforts to reduce
                                                      the number of nonparticipating soldiers on its rolls. As shown in the table,
                                                      between September 2000, and July 30, 2003, the Army Guard reduced the
                                                      number of soldiers not paid for the previous 3 months from 3.7 percent of
                                                      the force to 0.5 percent of the force, and the number not paid for the
                                                      previous 7 months from 1.3 percent of the force to 1.0 percent of the force.

Table 1: Assigned Army National Guard Members Not Paid for Inactive Duty Training for 3 and 7 Months, September 30, 2000-
July 30, 2003

                                       Total number Number not paid for Percent not paid for Number not paid for Percent not paid for
 Date                                      assigned previous 3 months previous 3 months previous 7 months previous 7 months
 September 2000                             301,140                11,025                       3.7        4,048                   1.3
 September 2001                             296,430                 8,701                       2.9        4,254                   1.4
 September 2002                             296,248                 4,248                       1.4        1,481                    .5
 July 2003                                  294,012                 1,526                        .5        3,094                   1.0
Sources: DOD (data); GAO (analysis).



                                                      Our visits to Army National Guard headquarters in Louisiana, Alabama,
                                                      and Georgia confirmed that significant management attention is being paid
                                                      to resolving the status of potential nonparticipating soldiers. In each state,
                                                      headquarters personnel officials acknowledged that they are placing an
                                                      emphasis on resolving the status of potential nonparticipants. Although
                                                      the specific procedures that each state uses to manage nonparticipation
                                                      vary, in general, they all encourage subordinate units to work with soldiers
                                                      to return them to drill status, and they authorize units to discharge
                                                      individuals they deem will not be returning. Each of the three state
                                                      headquarters monitors its subordinate units, and if a unit fails to take
                                                      action, the headquarters steps in and discharges the individual. However,
                                                      the point at which the headquarters takes action varies. For example,



                                                      Page 13                                           GAO-04-258 Military Personnel
                            Appendix II: National Guard and Reserve
                            Components Personnel Strengths




                            Georgia took action if a unit had not resolved a soldier’s status after 7
                            months without pay, while Alabama National Guard officials took action if
                            a unit had not resolved a soldier’s status after 12 months without pay.
                            However, as table 1 indicates, the status of most soldiers is resolved in 3 to
                            7 months.


Air National Guard Relies   The Air National Guard has not placed the same level of command
Primarily on Existing       emphasis on reducing the number of nonparticipants on its rolls. Instead,
Administrative Procedures   it relies on existing administrative procedures to process members whose
                            performance is unsatisfactory. Air Force Instruction 36-3209 gives unit
                            commanders the discretion to separate individuals whose participation is
                            unsatisfactory (nine unexcused absences) if the individual has no potential
                            for useful service. The Air Force cannot monitor attendance above the unit
                            level because its personnel and financial data systems are incompatible.
                            However, data from the Defense Manpower Data Center show that as of
                            July 30, 2003, the Air National Guard had 1,415 members out of an
                            assigned strength of 91,217 that had not been paid for the previous 7
                            months. This is a nonparticipation rate of 1.6 percent. Air National Guard
                            officials report that they are currently over their authorized strength, so
                            units have little motivation to retain members that stop attending required
                            training.


                            As shown in table 2, as of July 2003, the percentage of individuals in the
The Reserve                 reserve components who had not been paid for the previous 7 months
Components                  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
Nonparticipation            guidance for managing nonparticipation. According to a DOD official,
Rates Are Slightly          nonparticipation in the Air Force Reserve, Marine Corps Reserve, and
                            Naval Reserve averages about 23 to 28 individuals per state and territory
Higher Than the             and those numbers do not indicate a problem in those components.
Guard’s                     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.




                            Page 14                                           GAO-04-258 Military Personnel
Appendix II: National Guard and Reserve
Components Personnel Strengths




Table 2: Number of Reserve Component Members Not Paid for 7 or More Months,
July 2003

                                                                     Number not paid             Percent not paid
                                            Total number               for previous 7              for previous 7
 Component                                      assigned                      months                      months
 Army Reserve                                        174,617                          5,162                   3.0
 Air Force Reserve                                     55,762                         1,501                   2.7
 Marine Corps Reserve                                  32,399                         1,502                   4.6
 Naval Reserve                                         60,468                         1,223                   2.0
Sources: DOD Defense Manpower Data Center and U.S. Army Reserve Non-Validation of Pay Reports.



Visits to each of the reserve component headquarters and a small number
of units within each component confirmed that in most cases timely action
was being taken to resolve the status of individuals who miss training.
Each component requires unit commanders to take action when a
member’s participation becomes unsatisfactory. In general, commanders
are required to attempt to contact the members by telephone or by
registered mail, with an emphasis on retaining the member and returning
the member to a satisfactory status. Units typically work with an
individual for several months before initiating separation paperwork,
which can take several additional months to process. Our visits to the
reserve component units found that delays in processing separation
paperwork accounted for many of the nonparticipants. We also noted that
members remain on the rolls (and on the nonparticipation list) until the
separation paperwork is completed and that separation paperwork was in
process for many individuals identified as nonparticipants. For example, at
the time of our visit to Marine Corps Reserve Headquarters discharge
packages were in process for about 400 Marines who had not been
attending drill.




Page 15                                                                        GAO-04-258 Military Personnel
              Appendix III: Federal Recognition Process for
Appendix III: Federal Recognition Process
              Recently Promoted Senior Officers



for Recently Promoted Senior Officers

              According to the U.S. Constitution, states have the authority to appoint
Background    officers in their state National Guard units.1 However, because National
              Guard officers also have a federal status, state-promoted officers must go
              through a second review process—the Federal Recognition
              Examination—to ensure that they meet federal promotion requirements.
              The Chief of the National Guard Bureau is responsible for federally
              recognizing state promotions under regulations prescribed by the
              Secretaries of the Army and the Air Force.2 Officers who are federally
              recognized in a particular grade are tendered an appointment at the same
              grade as reserve commissioned officers of the Army or Air Force. Officers
              who are appointed to a higher grade by the states, but have not been
              federally recognized in that grade, are not permitted to wear the uniform
              or insignia of the grade until the National Guard Bureau has federally
              recognized the promotion. One exception to this provision is that an
              adjutant general may wear the insignia of the next higher grade, up to that
              of a major general, than his/her federally recognized grade. Federal
              recognition of a state promotion authorizes federal pay and benefits at that
              grade. Adjutants general do not have to be federally recognized unless
              such recognition is required by the state code. Adjutant generals, for the
              most part, serve at the pleasure of the governor of their state.

              The implementing service regulations, along with memoranda of
              instructions to review boards, identify the criteria that are to be used for
              the examination. Some examples of these criteria are shown in table 3.
              Some criteria are defined very specifically in the regulations, such as
              military and civilian education requirements, years of required service for
              promotion, and medical fitness standards. Other more difficult-to-define
              criteria, such as experience, integrity, and character, are identified but
              with less specificity.




              1
               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.
              2
               The National Guard Bureau is both a staff and operating agency that administers the
              federal functions of the Army and the Air National Guard.




              Page 16                                                     GAO-04-258 Military Personnel
                      Appendix III: Federal Recognition Process for
                      Recently Promoted Senior Officers




                      Table 3: Examples of Eligibility Requirements for Appointment as a General Officer
                      in the Army and Air National Guards

                       •   Complete a minimum number of years of                        •   Be a citizen of the United States
                           service at the lower grade
                       •   Possess a security clearance                                 •   Meet specified height and weight
                                                                                            standards
                       •   Meet specified military professional                         •   Meet specified civilian education
                           education requirements                                           requirements
                       •   Meet specified experience requirements                       •   Possess good moral character
                      Sources: National Guard Regulation (Air Force) 36-1 and National Guard Regulation (Army) 600-100.



                      The federal recognition process for individuals promoted to or within the
                      rank of general officer is managed and overseen by general officer
                      management offices located within the National Guard Bureau and the
                      Offices of the Chiefs of Staff of the Army and Air Force. These offices
                      review the files of nominated officers and confirm that they meet all
                      objective promotion criteria before the nominations are sent to the federal
                      recognition board for review. They also ensure that the required
                      background checks are conducted in order to identify any adverse
                      information about an individual.


                      While we did not examine specific cases, our examination of the checks
Federal Recognition   and balances built into the federal recognition examination process
Examination Process   indicates that they provide reasonable assurance that state-promoted
                      officers meet federal promotion standards and that adverse information
Contains Reasonable   relating to their leadership potential or moral character will be disclosed.
Checks and Balances   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




                      Page 17                                                                            GAO-04-258 Military Personnel
                          Appendix III: Federal Recognition Process for
                          Recently Promoted Senior Officers




                          was known or available to those who were responsible for approving or
                          confirming the promotion.


Senior Guard Officers     A key check and balance is the composition of federal recognition
Must Pass Federal         examination boards. The U.S. Code states that to be eligible for federal
Recognition Examination   recognition as an officer of the National Guard, a person must pass an
                          examination for physical, moral, and professional fitness to be prescribed
                          by the President, conducted by a board of three commissioned officers
                          designated by the respective service Secretary from members of the
                          regular service, the National Guard, or both, and subscribe to an oath of
                          office. The implementing service regulations add other requirements for
                          the three-person federal recognition review boards. The members are to
                          be appointed by the Secretary of the military service concerned. Both the
                          Army and Air Force require that the members be at least one grade senior
                          to the officer who is to be examined and that one or more members come
                          from the active-duty ranks.3 The inclusion of active-duty officers provides
                          a measure of independence from the state guard organization that
                          originated the nomination.

                          Another important check and balance is that DOD requires, by instruction,
                          background investigations for officers nominated to be general officers.4
                          The instruction requires the services to examine all systems of records
                          maintained by DOD for any adverse information that may exist on a
                          nominee. According to service officials, this examination would include
                          files in the offices of the state and service Inspectors General, the Judge
                          Advocate General, the General Counsel, the Equal Employment
                          Opportunity Office, and the appropriate service criminal investigation
                          agency. If adverse information emerges during the process, there are
                          established processes for the disclosure of that information to the review
                          boards. If an allegation emerges during the process, the nomination is held
                          in abeyance until necessary investigations are completed. If no adverse
                          information is found, the service must provide a certificate stating so.


                          3
                           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.
                          4
                          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.




                          Page 18                                                   GAO-04-258 Military Personnel
                      Appendix III: Federal Recognition Process for
                      Recently Promoted Senior Officers




                      DOD Instructions require that adverse information on officers below
                      general officer grades be reported only if, in the judgment of the Secretary
                      of the military service concerned, it is appropriate. Nonetheless, the Air
                      National Guard checks state files for adverse information on all
                      individuals nominated for promotion to colonel. The Army National Guard
                      conducts no additional checks on individuals nominated for promotion to
                      colonel.

                      A third check and balance is that the nominations of individuals being
                      promoted to, or within, the general officer rank must be approved by the
                      Secretary of Defense and the President and confirmed by the Senate. It is
                      DOD’s policy to fully inform these parties of any adverse information
                      known about a nominee.5 Thus, even if a federal recognition board elects
                      to overlook some misconduct in a nominee’s past, the Secretary of
                      Defense, the President, and the Senate must all agree with the decision.

                      Finally, general officer management offices within the National Guard
                      Bureau, and the offices of the Chiefs of Staff of the Army and Air Force
                      manage the general officer promotion process, and personnel offices
                      within the Army National Guard and the Air National Guard manage the
                      promotion process for colonels. These offices provide an important level
                      of oversight for the entire process.


Some National Guard   A review of Federal Recognition Examination Board recommendations
Officers Are Denied   shows that boards find some applicants not qualified for federal
Federal Recognition   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.



                      5
                      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.




                      Page 19                                                   GAO-04-258 Military Personnel
                           Appendix III: Federal Recognition Process for
                           Recently Promoted Senior Officers




                           Table 4: Disposition of Applicants (Promotion to General and Colonel) Reviewed by
                           Army and Air National Guard Federal Recognition Boards

                                                                                   Number of cases denied
                                                                      Number of        Not fully                  Percent of
                                                                  cases reviewed       qualified   Conduct      cases denied
                               Promotion to General
                               Army National Guarda                         347              16             8             6.9
                               Air National Guardb                          307               0           10              3.3
                               Promotion to Colonel
                               Army National Guard                          N.A.           N.A.         N.A.
                                                      c
                               Air National Guard                           859               3             0             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.




Some National Guard        Using data from our review of National Guard misconduct, we found that a
Officers with              small number of senior officers with substantiated misconduct were later
Substantiated Misconduct   federally recognized. Service officials told us that federal recognition
                           boards do not have a “zero defects” mentality. They said that if an officer
Have Been Federally        whose career has otherwise been exemplary has made a mistake and
Recognized                 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.




                           Page 20                                                             GAO-04-258 Military Personnel
              Appendix IV: National Guard Senior Officer
Appendix IV: National Guard Senior Officer
              Misconduct Cases



Misconduct Cases

              The National Guard is a state instrumentality under the command of the
Background    governor of the state, and the governor’s principal deputy for the guard’s
              administration is the state adjutant general. Only when called or ordered
              into federal service is the National Guard subject to the authority of the
              President, the Secretary of Defense and other civilian and military
              authorities of the federal defense establishment. Thus, under federal law,
              federal officials do not have direct control over the actions taken by state
              officials in administering the guard when it is in a state status.1

              The Uniform Code of Military Justice, codified in title 10 of the United
              States Code, is the legal foundation for maintaining discipline in the
              military services. However, National Guard members are subject to the
              federal code only when they are performing federal duty. If they are in
              state status or in title 32 U.S.C. status, they are subject to the state’s
              Uniform Code of Military Justice. The state codes generally follow the
              federal code for traditional military offenses, but they rely on state
              criminal statutes for other offenses. The National Guard Bureau is
              currently working with the states to standardize the states’ Uniform Code
              of Military Justice.

              DOD’s Inspector General maintains oversight and, in some cases,
              investigative authority over cases involving general officers in the National
              Guard.2 Generally, the DOD Inspector General investigates only cases that
              have broad ramifications for the department: cases that involve generals in
              the two highest grades (lieutenant generals and full generals), cases that
              include officers in multiple services; and reprisal cases. Cases without a
              broad ramification are generally referred back to the individual service’s
              Inspector General’s office for investigation, which conducts about 90
              percent of the investigations involving general officers and colonels being
              considered for the rank of general officer.

              Each service’s Inspector General maintains oversight and investigative
              authority over cases involving National Guard officers at the rank of
              colonel.3 The nature of the allegation largely determines which Inspector
              General office or level of command conducts the investigation. The Army


              1
              See generally Solorio v. U.S., 483 U.S. 435 (1987); 10 U.S.C. § 12405.
              2
              See DOD Directive 5505.6, Investigations of Allegations Against Senior Officials of the
              Department of Defense, July 12, 1991.
              3
              Air Force Instruction 90-301, Inspector General Complaints, Jan. 30, 2001, and Army
              Regulation 20-1, Inspector General Activities and Procedures, Mar. 29, 2002.




              Page 21                                                     GAO-04-258 Military Personnel
                       Appendix IV: National Guard Senior Officer
                       Misconduct Cases




                       and Air Force Inspectors General investigate allegations involving colonels
                       selected for promotion to general and forward inquiries involving colonels
                       not selected for promotion to the states for investigation.

                       Although they conduct the investigations, DOD’s and the services’
                       Inspectors General play no role in imposing discipline, nor do they
                       recommend disciplinary action, in misconduct cases. The Air Force
                       Inspector General refers all substantiated cases of misconduct involving
                       Air National Guard personnel to the Chief of the National Guard Bureau
                       who notifies the appropriate state authority for corrective action. Title 10
                       U.S.C. establishes the National Guard Bureau as the channel of
                       communication between the services and the states. The Army Inspector
                       General handles substantiated allegations of wrongdoing somewhat
                       differently. While it refers cases that involve colonels back to state Army
                       National Guard authorities, it refers cases that involve generals and
                       colonels who have been selected for promotion to general to the Army
                       Vice Chief of Staff. An Army legal official stated that the Army’s authority
                       to administratively reprimand an officer for misconduct derives from the
                       officers underlying federal status.

                       Commanders, supervisors, and superiors have several administrative
                       actions available to them in correcting officers who have been found guilty
                       in noncriminal misconduct cases. According to service guidance, these
                       actions are intended to be corrective rather than punitive.4 They include
                       “reprimands,” which carry a strong implication of official censure;
                       “admonishments,” which are similar to reprimands but carry a lesser
                       degree of severity and censure; verbal reprimands, which are used in less
                       severe situations; and no action. Administrative actions may or may not be
                       filed in an officer’s records at the discretion of the individual imposing the
                       action, usually the officer’s commander.


                       In the majority of cases that we examined, the senior Army National Guard
Most Officers Found    and Air National Guard officers found guilty of noncriminal misconduct
Guilty of Misconduct   received some type of administrative action. In our review of all DOD,
                       Army, and Air Force Inspector General investigations that were completed
Are Punished           from January 1, 1997, to December 31, 2001, we identified 75 senior
                       National Guard officers with substantiated acts of wrongdoing. Five of



                       4
                       Army Regulation 27-10, Military Justice, Sept. 6, 2002; and Air Force Instruction 36-2907,
                       Unfavorable Information File Program, May 1, 1997.




                       Page 22                                                    GAO-04-258 Military Personnel
Appendix IV: National Guard Senior Officer
Misconduct Cases




these officers had two substantiated acts of wrongdoing, which brought
the total number of incidents to 80. The incidents involved 46 Army
officers and 29 Air Force officers. Four Army officers and 1 Air Force
officer had two misconduct incidents each. Because the Army and Air
Force have different processes for adjudicating cases involving senior
officers, we have arranged our data in table 5 to show the number of
officers with substantiated misconduct in each of the services to better
illustrate the nature and extent of the actions.

Table 5: Number of Senior Officers Involved in Substantiated Cases of Misconduct
in the Army and Air National Guards, by Officer Category, from January 1997
through December 2001

                                                 Army              Air
 Senior officer category               National Guard   National Guard          Total
 Generals                                         26                  9           34
 Colonels                                         20                 20           41
 Total                                            46                 29           75
Sources: DOD (data); GAO (analysis).



The substantiated allegations against the 75 officers consisted of
noncriminal administrative violations, such as smoking in a military
vehicle or a reprisal against an individual. In some cases, the Inspectors
General substantiated more than one violation. To provide a clearer
understanding of the cases, we categorized the wrongdoings into five
types on the basis of what we considered to be the most serious violation
in each case. The categories are (1) reprisal, (2) noncriminal fraud, waste,
or abuse; (3) improper relationship; (4) violation of ethics regulations; and
(5) abuse of authority or poor judgment. As table 6 shows, the most
common wrongdoing category is abuse of authority or poor judgment.




Page 23                                                 GAO-04-258 Military Personnel
Appendix IV: National Guard Senior Officer
Misconduct Cases




Table 6: Number of Substantiated Misconduct in Army and Air National Guard
Investigations, by Type of Misconduct, Closed from January 1997 through
December 2001

                                        Army National Guard       Air National Guard
 Type of misconduct                    colonels and generals   colonels and generals   Total
 Reprisal                                                 5                        4       9
 Fraud, waste, or abuse                                   9                        4      13
 Improper relationship                                    3                        2       5
 Ethics                                                   0                        2       2
 Abuse of authority/poor                                 33                       18      51
 judgment
 Total                                                   50                       30      80
Sources: DOD (data); GAO (analysis).



We reviewed Inspector General investigation files and determined the
outcome for 76 of the 80 incidents. (See table 7.) We could not determine
the outcome for four incidents. In 66 of the incidents, the officers involved
went through a decision process, in which an individual, senior to the
officer and with the authority to impose a punishment, reviewed the case
and determined what administrative sanction should be imposed. Our
review found that 57officers (75 percent) had some administrative action
imposed on them, ranging from verbal counseling to a letter of reprimand
placed in the officer’s official military personnel file. Three officers (4
percent) resigned or retired and no further action was taken. In the other
six incidents (8 percent) a decision was made to take no action against the
officers involved. These incidents generally involved lesser offenses, such
as improperly administering an annual leave policy, or failing to take a
physical fitness test.




Page 24                                                        GAO-04-258 Military Personnel
Appendix IV: National Guard Senior Officer
Misconduct Cases




Table 7: Number of Actions Taken in Senior National Guard Officer Misconduct
Incidents, by Type of Action, Closed from January 1997 through December 2001

                                           Army National         Air National
                                       Guard colonels and     Guard colonels
 Type of action                                  generals       and generals    Total
 Cases forwarded for a decision
 Letter/memorandum of reprimand                       18                    4     22
 Letter/memorandum of censure or                      13                    5     18
 concern
 Letter/memorandum of                                  1                    3      4
 admonishment
 Verbal counseling/reprimand                           2                   11     13
 Total                                                34                   23     57
 Forced resignation or retirement                      1                    2      3
 Decision made to take no action                       3                    3      6
 Total                                                38                   28     66
 Cases not forwarded for a
 decision
 Case dropped as inconsequential                      10                    0     10
 Total                                                10                    0     10
 Total cases                                          48                   28     76
Sources: DOD (data); GAO (analysis).



Ten officers (13 percent) did not have their cases forwarded to their
immediate commander for a decision. These cases were closed under
Army procedures for cases involving inconsequential allegations. An
inconsequential allegation is misconduct that is minor and has no lingering
adverse effect upon the Army or any other organization or person. Before
an incident can be processed as inconsequential, the Army requires that
the officer involved confirm the validity of the allegation, or be deceased
or retired, and that the office of the Army Inspector General, the office of
the General Counsel, and the office of the Army Judge Advocate General
all approve the classification decision. In 7 of the 10 cases the officer
involved had retired before the investigation was conducted. Table 8
contains summaries of the misconduct and the actions taken.




Page 25                                                GAO-04-258 Military Personnel
                                               Appendix IV: National Guard Senior Officer
                                               Misconduct Cases




Table 8: Summary of Inspector General Investigations Involving Substantiated Allegations of Wrongdoing by Senior Officers,
January 1, 1997, through December 31, 2001

Air Force Investigations
Substantiated allegation of reprisal                                  Action taken
Reprised against a subordinate with an improper referral for a        Relieved of command and left the National Guard.
mental health evaluation and an adverse officer efficiency report.
Reprised against an individual by initiating an administrative        Verbal counseling.
separation and suspending individual’s security clearance.
Reprised against an individual with an improper referral for a        Letter of reprimand from the state Adjutant General.
mental health examination.
Reprisal against complainants; abused authority; unprofessional       Verbal reprimand by the Adjutant General.
conduct.
Substantiated allegation of fraud, waste, or abuse                    Action taken
Condoned the backdating and falsification of transfer and             Verbal counseling by the state Governor.
promotion orders.
Made false statements to government officials.                        Letter of admonishment from the state Adjutant General.
Misused military aircraft; also, trip was scheduled for the           Verbal reprimand from the state Adjutant General.
individual’s personal gain.
Falsified time and another person’s initials on a pay log.            Verbal counseling.
Substantiated allegation of unprofessional relationship               Action taken
Adultery, unprofessional relationships, and false testimony.          Retired at the request of the state Adjutant General and removed
                                                                      from the promotion list.
Engaged in an unprofessional relationship with a subordinate.         Verbal counseling by the state Governor.
Substantiated allegation of ethics violation                          Action taken
Accepted gift in excess of limit in ethics regulation.                Letter of admonishment from the state Adjutant General and
                                                                      reimbursed cost of the gift.
Accepted gift in excess of limit in ethics regulation.                Letter of admonishment from the state Adjutant General and
                                                                      reimbursed cost of the gift.
Substantiated allegation of abuse of authority                        Action taken
Abused authority by assisting son’s promotion.                        Letter of reprimand from the state Adjutant General.
Improperly administered annual leave policy.                          No adverse action taken. Problem was administratively corrected.
Improperly administered annual leave policy.                          No adverse action taken. Problem was administratively corrected.
Improperly administered annual leave policy.                          No adverse action taken. Problem was administratively corrected.
Abused authority.                                                     Unknown.
Failed to provide a complainant’s legal rights; abused authority      Letter of concern from the state Adjutant General.
by ordering the complainant to leave the workplace.
Undue command influence; abused authority; derelict in duty.          Verbal counseling by the Governor.
Directed that an individual be detailed to another unit in excess     Verbal counseling by the commander.
of the limits prescribed in the regulations.




                                               Page 26                                                  GAO-04-258 Military Personnel
                                               Appendix IV: National Guard Senior Officer
                                               Misconduct Cases




Substantiated allegation of abuse of authority (cont.)                Action taken
Allowed use of government property for other than authorized          Memorandum of censure from the state Adjutant General.
purposes; directed or requested subordinates to use official time
for unauthorized purposes.
Placed an individual in a controlled grade position without           Verbal counseling from the state Adjutant General.
requiring the individual to perform any of the duties associated
with the position.
Substantiated allegation of poor judgment                             Action taken
Failed to take action when notified of a sexual harassment            Letter of counseling from the Secretary of the Air Force.
allegation and did not give honest testimony to an Inspector
General.
Failed to ensure a complainants legal rights were protected;          Letter of concern from the state Adjutant General.
abused his authority.
Failed to carry out his responsibilities as an Inspector General.     Letter of concern from the state Adjutant General.
Swore at private contractors; did not get approval for passenger      Letter of reprimand from the state Adjutant General.
on aircraft; misused government aircraft
Misused aircraft.                                                     Letter of reprimand from the state Adjutant General.
Public intoxication.                                                  Verbal counseling.
Exercised during duty hours.                                          Unknown (case file destroyed).
Used government equipment and time to send e-mail information         Verbal reprimand by the Commander.
to others that was political in nature.
Army investigations
Substantiated allegation of reprisal                                  Action taken
Reprised against a fellow officer with an adverse efficiency          Received two letters of reprimand from the Vice Chief of Staff of
report; initiated an investigation to discredit an individual; used   the Army; both filed in official military personnel file.
government equipment for personal use; gave preferential
treatment to an individual; and threatened an individual’s right to
make statements to the press and the Inspector General.
Reprised against a fellow officer with an adverse efficiency report   Letter of reprimand from the Vice Chief of Staff of the Army filed in
and signed a false official document.                                 official military personnel file.
Reprised against an individual by improperly forcing a mental         Memorandum of reprimand from the Vice Chief of Staff of the Army
health examination.                                                   filed in official military personnel file.
Reprised against a fellow officer; illegal political support.         Memorandum of reprimand from the Vice Chief of Staff of the Army
                                                                      filed in official military personnel file.
Reprised against a subordinate.                                       Memorandum of concern from the Vice Chief of Staff of the Army.
Substantiated allegation of fraud, waste, or abuse                    Action taken
Provided false information in medical history.                        Memorandum of concern from the Vice Chief of Staff of the Army.
Scheduled government trips for own personal gain; misused             Memorandum of reprimand from the Vice Chief of Staff of the Army
state postage stamps for personal gain; sexually harassed             filed in official military personnel file.
females; improperly tried to influence an Inspector General
investigation.
Improperly upgraded his airline travel and conducted a circuitous     Retired. Case closed under noncredible/inconsequential
travel route during a trip.                                           procedures.




                                               Page 27                                                    GAO-04-258 Military Personnel
                                              Appendix IV: National Guard Senior Officer
                                              Misconduct Cases




Substantiated allegation of fraud, waste, or abuse (cont.)           Action taken
Received payment and retirement point credit for duty not            Memorandum of reprimand from the Vice Chief of Staff of the Army
performed; failed to carry out duty as a noncommissioned officer     filed in official personnel file.
evaluation report reviewer.
Received pay and retirement point credit for duty not performed.     Retired. Case closed under noncredible/inconsequential
                                                                     procedures.
Failed to ensure that an officer was properly rated; mistreated      Memorandum of concern from the Vice Chief of Staff of the Army.
subordinates; falsified physical fitness test results.
Directed personnel to falsify personal strength accounting by        Memorandum of reprimand from the Vice Chief of Staff of the Army
delaying discharge processing; provided false testimony to an        filed in official military personnel file.
Inspector General.
Authorized, approved, and participated in non-mission-essential      Memorandum of reprimand from the Vice Chief of Staff of the
temporary duty; improper relationships; tolerated misconduct.        Army.
Signed a subordinate’s efficiency report knowing it contained        Memorandum of concern from the Vice Chief of Staff of the Army.
false information.
Substantiated allegation of unprofessional relationship              Action taken
Engaged in an adulterous affair.                                     Forced resignation, unfavorable evaluation report, and
                                                                     Memorandum of Reprimand from the Vice Chief of Staff of the
                                                                     Army filed in official military personnel file.
Improper relationship with a subordinate.                            Memorandum of concern from the Vice Chief of Staff of the Army.
Substantiated allegation of abuse of authority                       Action taken
Gave preferential treatment to a subordinate.                        Letter of reprimand from the Vice Chief of Staff of the Army filed in
                                                                     official military personnel file.
Improperly used a government vehicle, personnel, and                 Memorandum of reprimand from the Vice Chief of Staff of the
equipment; improperly accepted and retained an active duty           Army.
identification card; scheduled unnecessary temporary duty
travel.
Improperly authorized time off awards for a subordinate.             Memorandum of concern from the Vice Chief of Staff of the Army.
Ordered the promotion of subordinates.                               Retired before the investigation took place. Case closed under
                                                                     noncredible/inconsequential procedures.
Ordered the promotion of subordinates, and attempted to              Retired before the investigation took place. Case closed under
influence the results of a promotion board.                          noncredible/inconsequential procedures.
Improperly directed a soldier’s removal from unit training.          Memorandum of admonition from Vice Chief of Staff of the Army.
Misused aircraft for personal business; failed physical fitness      Memorandum of reprimand from the Vice Chief of Staff of the Army
test; abused subordinates.                                           filed in official military personnel file. Individual never received
                                                                     federal recognition.
Improperly directed an officer’s relief from command and             Letter of reprimand from the state Adjutant General.
coerced individual into resigning.
Improperly directed an officer’s relief from command and             Letter of reprimand from the state Adjutant General.
coerced individual into resigning.
Failed to take a required physical fitness test; diverted an         Memorandum of reprimand from the Vice Chief of Staff of the Army
aircraft from its flight plan for personal business.                 filed in official military personnel file.




                                              Page 28                                                    GAO-04-258 Military Personnel
                                              Appendix IV: National Guard Senior Officer
                                              Misconduct Cases




Substantiated allegation of poor judgment                             Action taken
Failed to take a required physical fitness test, and did not verify   Memorandum of concern from the Vice Chief of Staff of the Army.
the accuracy of the height and weight entries on efficiency
report.
Failed to comply with physical fitness test requirements.             Memorandum of reprimand from the Vice Chief of Staff of the Army
                                                                      filed in official military personnel file.
Conduct disrespectful toward a superior officer.                      Retired. Case closed under noncredible/inconsequential
                                                                      procedures.
Used guard employees to support a community project.                  Case disposed of in accordance with noncredible/inconsequential
                                                                      procedures.
Used National Guard unit patch in a commercial endeavor.              Memorandum of concern from the Vice Chief of Staff of the Army.
Failed to take a required physical fitness test.                      Memorandum of concern from the Vice Chief of Staff of the Army.
Drunk in a public place; operated a vehicle in a drunken and          Memorandum of reprimand from the Vice Chief of Staff of the Army
reckless manner.                                                      filed in official military personnel file.
Used military aircraft for travel in violation of DOD and Army        Retired. Case closed under noncredible/inconsequential
guidance.                                                             procedures.
Used names and addresses of guard members in an advertising           Memorandum of concern from the Vice Chief of Staff of the Army.
campaign.
Wore uniform after retiring.                                          Retired. Case closed under noncredible/ inconsequential
                                                                      procedures.
Misused government resources for a private social function.           Memorandum of concern from the Vice Chief of Staff of the Army.
Failed to take a required physical fitness test.                      Retired. Case closed under noncredible/ inconsequential
                                                                      procedures.
Coerced guard members to join the National Guard Association.         Memorandum of concern from the Vice Chief of Staff of the
                                                                      Army.
Used position to facilitate employment of a family member by a        Verbal counseling by the state Assistant Adjutant General
civilian contractor supporting a DOD contract.
Allowed smoking in a federal building.                                Unknown.
Failed to meet height, weight, and fitness standards.                 Unknown.
Wore uniform of a brigadier general when only a lieutenant            Case closed under noncredible/inconsequential procedures.
colonel. Individual had been appointed as Deputy Adjutant
General but had not been federally recognized.
Coerced guard members to join the National Guard                      Memorandum of concern from the state Adjutant General.
Association.
Smoked in a military vehicle; conduct unbecoming an officer;          Letter of reprimand from the Director, Army National Guard.
false statements to an Inspector General.
Failed to take a required physical fitness test.                      No action taken.
Improperly administered the Army weight control and physical          No action taken.
fitness test programs.
Coerced guard members to join the National Guard Association.         Verbal counseling from the state Adjutant General. Counseling
                                                                      not recorded in official military personnel files.




                                              Page 29                                                   GAO-04-258 Military Personnel
                                            Appendix IV: National Guard Senior Officer
                                            Misconduct Cases




 Substantiated allegation of poor judgment (cont.)                 Action taken
 Condoned the promotion of one soldier over another who was        No action taken.
 in a higher position on the promotion list.
 Improper relationships with subordinate civilian employees,       Retired and name removed from promotion list.
 military officers, and noncommissioned officers.
Sources: DOD (data) GAO (analysis).




                                            Page 30                                                GAO-04-258 Military Personnel
              Appendix V: Federal Protections for National
Appendix V: Federal Protections for National
              Guard Whistleblowers



Guard Whistleblowers

              Federal protections for National Guard whistleblowers are limited by the
Background    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).



              Page 31                                          GAO-04-258 Military Personnel
                              Appendix V: Federal Protections for National
                              Guard Whistleblowers




                              The effectiveness of the federal protection for military and guard
Effectiveness of              whistleblowers rests principally on a two-stage process of investigation
Federal Protection for        and administrative review. The first stage involves a DOD, service, or
                              guard Inspector General’s investigation of the specific facts and
Guard Whistleblowers          interpretation of issues associated with a reprisal allegation. In the second
Rests on Two-Stage            stage of the investigation/ administrative review process, the DOD
                              Inspector General reviews and approves the findings of the service or
Investigation and             guard Inspectors General. This review offers assurance that the findings
Approval Process by           and recommendations were made in compliance with applicable
DOD Inspector                 investigatory guideless and legally sufficient. As an overall observation,
                              under this process, Inspectors General interpret issues associated with
General                       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         Every reprisal allegation made by a guard member is examined and, if
General’s Investigation and   warranted,1 investigated by an Inspector General. Investigations are
Interpretation of Issues      conducted to determine the validity of a reprisal allegation. To be valid,
                              the allegation must meet the following criteria: (1) the communication was
                              protected, (2) the personnel action was unfavorable, (3) the personnel
                              action occurred after the protected communication took place,2 (4)
                              management knew about the protected communication before taking
                              action, and (5) management would not have taken the personnel action in
                              the absence of a protected communication. In our review of 122
                              allegations that covered the period 1997 to 2002, we found that Inspectors
                              General did not substantiate 98 of the allegations (80 percent). Below, we
                              discuss variances to the five criteria that raised interpretative issues for
                              Inspectors General, guard whistleblowers and guard management in some
                              of the investigations we reviewed.3



                              1
                               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.
                              2
                               The DOD Inspector General’s guidance to investigators does not make this a separate
                              criterion, but investigators determine the timing of a protected communication.
                              3
                               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.




                              Page 32                                                   GAO-04-258 Military Personnel
                          Appendix V: Federal Protections for National
                          Guard Whistleblowers




Communications Were Not   Our review showed that Inspectors General did not substantiate four
Protected                 National Guard members’ reprisal allegations, at least in part, because
                          investigators found that their disclosures were not protected by statute.
                          The military whistle-blower protection statute recognizes two types of
                          protected communications. First, a protected communication is any lawful
                          communication to a Member of Congress or an Inspector General; it does
                          not have to disclose wrongdoing. Second, a protected communication also
                          is a disclosure that a member of the military reasonably believes
                          constitutes evidence of a violation of law or regulation, including a law or
                          regulation prohibiting sexual harassment or unlawful discrimination; gross
                          mismanagement; a gross waste of funds; an abuse of authority; or a
                          substantial and specific danger to public health or safety.4 Such
                          disclosures can be made only to any of the following: 5 a Member of
                          Congress; an Inspector General; a member of a DOD audit, inspection,
                          investigation, or law enforcement organization; or any other person or
                          organization, including any person in the chain of command designated
                          under regulations or established administrative procedures to receive such
                          communications.

                          In some of the allegations we examined, guard members made disclosures
                          that were not protected for a variety of reasons. For example, in one
                          situation a guard member made a disclosure to the “officer in charge,” but
                          this officer was outside the chain of command. In other words, he did not
                          have administrative, disciplinary or mission responsibility associated with
                          command, and he was not designated under regulations to receive
                          protected communications. In another example, a guard member alleged
                          wrongdoing in testimony before the Merit Systems Protection Board (a
                          federal civilian agency that, among other functions, adjudicates
                          whistleblower cases), and subsequently alleged reprisal for having done
                          so. However, because of the military whistleblower statute’s limitation on
                          who can receive a protected disclosure, a disclosure in a federal civilian
                          investigation is not protected. In a third example, a guard member alleged
                          wrongdoing to a state ethics board, but disclosure to a state agency is also
                          not protected by the military whistleblower protection act. And in a fourth
                          example, an Inspector General rejected the argument by a guard
                          whistleblower that audit work, by itself, is a protected disclosure. The
                          Inspector General noted “we do not consider every document prepared by


                          4
                           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)].
                          5
                          10 U.S.C. § 1034 (b)(1)(A) and (B).




                          Page 33                                                     GAO-04-258 Military Personnel
                             Appendix V: Federal Protections for National
                             Guard Whistleblowers




                             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   Our review also showed that at least four reprisal allegations were not
Unfavorable                  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.




                             Page 34                                          GAO-04-258 Military Personnel
                                Appendix V: Federal Protections for National
                                Guard Whistleblowers




Unfavorable Personnel Actions   We reviewed 10 guard cases in which an Inspector General did not
Were Made Before a Protected    substantiate a reprisal allegation, in whole or in part, because guard
Disclosure                      management was in a variety of ways preparing to take or had initiated an
                                unfavorable personnel action before a guard member’s protected
                                disclosure was made. Logically, if guard management took an unfavorable
                                personnel action against a guard member before the member made a
                                protected disclosure, management could not be found to have retaliated
                                against the member. At issue, however, is when management first
                                considered, contemplated, or decided to take an unfavorable personnel
                                action and whether that has the same legal meaning as actually “taking”
                                such an action.6

                                In one example of this timing issue, an Inspector General declined to
                                investigate a reprisal allegation because documented “events” (guard
                                whistleblower’s disruptive behavior) leading to an unfavorable personnel
                                action occurred before he made a protected communication. In a more
                                complex example, guard management initiated formal action to separate a
                                guard member from the guard for misconduct. The paperwork associated
                                with the separation action was apparently misplaced and the member
                                subsequently made a protected disclosure. Upon learning of the
                                disclosure, guard management promptly resubmitted the paperwork, but
                                the Inspector General determined that the second submission was made in
                                retaliation for the disclosure, deciding, in effect, that there were two
                                personnel actions separated by a disclosure rather than one action that
                                was first initiated prior to a disclosure, and then reinitiated after the
                                disclosure had been made. The Inspector General noted that had guard
                                management followed through on the first personnel action the
                                whistleblower “would have no basis to claim reprisal.

Guard Management Did Not        We reviewed four cases (seven reprisal allegations) in which guard
Know about a Protected          management did not know about a guard member’s protected disclosure
Disclosure Before Taking an     before taking an unfavorable personnel action against that individual. The
Unfavorable Personnel Action    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


                                6
                                 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.




                                Page 35                                                   GAO-04-258 Military Personnel
                                Appendix V: Federal Protections for National
                                Guard Whistleblowers




                                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          While the first four criteria are associated with a guard whistleblower’s
Have Taken the Same Course      reprisal allegation, for the fifth criterion guard management must establish
of Action in the Absence of a   by a preponderance of evidence that it would have taken the action it did
Protected Disclosure            even if the whistleblower had not made or prepared a protected
                                communication.

                                Inspectors General consider five variables when assessing the validity of
                                management’s assertion:7

                                •   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.


                                7
                                 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.




                                Page 36                                                    GAO-04-258 Military Personnel
                             Appendix V: Federal Protections for National
                             Guard Whistleblowers




                             For most of the reprisal allegations we reviewed, guard management
                             demonstrated to the satisfaction of an Inspector General that it would
                             have taken the same course of action in the absence of a protected
                             disclosure. We also reviewed 24 allegations where guard management
                             failed to demonstrate this. The most frequently cited reason for this failure
                             was that the personnel action was inconsistent with similar past
                             circumstances or that it was not reasonable. One form of inconsistency
                             occurred when a guard whistleblower was singled out for retaliation for
                             actions that others also engaged in but who were not similarly punished. A
                             lack of reasonableness occurred when a rater gave a whistleblower good
                             marks on an evaluation report but the senior rater made adverse remarks
                             that he could not explain and that were not preceded by a counseling
                             session. In another example, an Inspector General questioned the
                             consistency of guard management’s actions to separate a whistleblower
                             from a state National Guard because he criticized the performance,
                             integrity, competence and leadership of three senior guard officials. These
                             senior officials all had substantiated allegations of misuse of government
                             funds against them from previous Inspector General investigations
                             initiated by the whistleblower and others. None of the senior officials were
                             processed for administrative discharge, and two of the three officials had
                             their letters of counseling reduced to verbal counseling. Guard
                             management in this example was so unaware of the military whistleblower
                             protection statute that it actually cited the whistleblower’s protected
                             communication as a reason for his discharge from the guard. Guard
                             management did not note poor performance or document moral or
                             professional dereliction as reasons for its actions.


Stage Two: Review and        The military whistleblower protection statute provides whistleblowers
Approval of Whistleblower    with a guarantee that the findings of a reprisal investigation will be
Reprisal Investigations by   reviewed and approved by the DOD Inspector General. Specifically, the
                             statute requires the DOD Inspector General to (1) review a military
DOD’s Inspector General      service’s Inspector General’s decision to terminate a reprisal inquiry for
                             lack of sufficient evidence8 and (2) approve of the results of all
                             whistleblower investigations, regardless of who conducted the
                             investigation.9




                             8
                             10 U.S.C. § 1034 (c)(3)(C).
                             9
                             10 U.S.C. § 1034 (c)(3)(E).




                             Page 37                                          GAO-04-258 Military Personnel
Appendix V: Federal Protections for National
Guard Whistleblowers




The DOD Inspector General’s review and approval of all investigation
results is an important protection because a military whistleblower,
including a National Guard member, cannot appeal on the same basis as a
civilian complainant to a federal appeals court under the military
whistleblower protection statute.10 In order to gauge the significance of
this protection, we reviewed 19 allegations in which Inspectors General
disagreed with each other on a variety of issues.11 In particular, eight
reprisal allegations in three investigations underscore the significant
differences between Inspectors General in their interpretations of certain
issues.

•     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


10
  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.
11
    These 19 allegations were in 8 of the 60 investigations we reviewed.




Page 38                                                       GAO-04-258 Military Personnel
                           Appendix V: Federal Protections for National
                           Guard Whistleblowers




                               discounted the whistleblowers’ health issues (treatment for alcoholism
                               and depression) because they were “common knowledge” to the
                               individual’s “local supervisors,” and substantiated the mental health
                               reprisal allegation because evidence showed guard management was
                               increasingly exasperated with dealing with someone who complained a
                               lot. In contrast, the Air Force noted that the “evidence is
                               overwhelming” that the guard whistleblower’s “mental state [mood
                               swings] had so deteriorated” that “any reasonable commander” would
                               have made a mental health referral.

                           •   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    Unlike the military, the civilian whistleblower process has developed and
Not Compiled an            published a body of authoritative interpretation of issues. For example, in
Authoritative Record of    response to reprisal allegations by civilian federal employees, the civilian
                           process (the Merit System Protection Board and the U.S. Court of Appeals
their Interpretations of   for the Federal Circuit) has considered the question, “When is a disclosure
Whistleblower Issues       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


                           Page 39                                          GAO-04-258 Military Personnel
                         Appendix V: Federal Protections for National
                         Guard Whistleblowers




                         basis for amending the civilian whistleblower protection statutes. For
                         example, congressional reaction to so-called “judicially created
                         exceptions” 12 formed the basis of an unsuccessful attempt in the 107th
                         Congress to amend the civilian statute. The amendment, if enacted, would
                         have covered the disclosure of information “without restriction to time,
                         place, form, motive or context, or prior disclosure made to any person by
                         an employee or applicant, including a disclosure made in the ordinary
                         course of an employee’s duties . . . .”

                         A similar procedure to codify a body of authoritative interpretations of
                         whistleblower issues has not been developed for military personnel. The
                         examination of a whistleblower’s reprisal allegation by Inspectors General
                         is done largely in isolation of other cases. Their decisions (to substantiate
                         or not substantiate a reprisal allegation) rely on experience, including
                         continuing guidance and training to ensure consistent interpretation of
                         issues, but are made without explicit reference to other associated
                         decisions, and the decisions are not readily available to the public or
                         Congress. DOD Inspector General officials told us they would like to see a
                         codification of issues associated with whistleblower decisions made by
                         Inspectors General; in short, a DOD organization similar to the Merit
                         Systems Protection Board which would render and publish decisions on
                         the interpretation of the military whistleblower statute.


                         The limited jurisdiction of the federal government over National Guard
Military Services Took   officials means that it cannot order the state Adjutant General to take
Administrative Action    administrative action against guard management officials who retaliate, or
                         take corrective action on behalf of whistleblowers. However, the Army
in Most Substantiated    and Air Force can take administrative action against military members of
Whistleblower            the guard, and service boards for the correction of military records can
                         recommend to service Secretaries corrective action for guard
Reprisal                 whistleblowers. None of the whistleblower protection statutes
Investigations           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




                         12
                          As termed by Sen. Daniel K. Akaka, who introduced an amendment to the civilian
                         whistleblower protection statute [S. 995, 107th Cong. (2001)].




                         Page 40                                                 GAO-04-258 Military Personnel
Appendix V: Federal Protections for National
Guard Whistleblowers




officials after completing seven of these investigations.13 In one
investigation, the Army declined to take action against two guard officials
who retaliated against a guard member by including unfavorable
comments on the individual’s evaluation report, even though the rating
itself was favorable. In five investigations, a military service or state guard
issued letters of reprimand. In one investigation, a guard official was
verbally counseled, and in another investigation, a guard management
official was removed from consideration for promotion, and two officials
were “given an opportunity to retire.”

Among all National Guard whistleblowers, federal civilian employees of
the National Guard (technicians) 14 face the most difficult jurisdictional
and corrective action issues. They are not protected from reprisal by the
military whistleblower protection statute because, as civilians, it does not
apply to them.

Civilian guard technicians who allege reprisal for making a protected
disclosure face at least two “severe and significant restrictions” according
to a decision by the U.S. Court of Appeals for the Federal Circuit
[Singleton v. Merit Systems Protection Board, 244 F. 3d 1331 (Fed. Cir.
2001)]. First, some adverse actions (for example, suspension, furlough
without pay, reduction in rank, or compensation) against civilian
technicians cannot be appealed to the Merit Systems Protection Board.15
Second, adverse actions not covered by the guard technicians act can be
appealed to the Merit Systems Protection Board, but the appeal is
meaningless because of the board’s limited enforcement powers. The
board has determined that its orders are not enforceable against state
National Guards, and for that reason, the board is without power to supply




13
 The DOD Inspector General considers one investigation as “open” and was not able to
provide information on two investigations.
14
 A technician’s employment, use, and status are defined by 32 U.S.C. § 709.
15
  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.”




Page 41                                                     GAO-04-258 Military Personnel
Appendix V: Federal Protections for National
Guard Whistleblowers




an effective remedy even in the instance of a federal employee who can
prevail on the merits of a civilian whistleblower protection act claim.




Page 42                                         GAO-04-258 Military Personnel
Appendix VI: Comments from the
Department of Defense




(350378)
           Page 43         GAO-04-258 Military Personnel
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