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Report to Congressional Committees:

United States General Accounting Office:

GAO:

December 2003:

Military Personnel:

Information on Selected National Guard Management Issues:

GAO-04-258:

GAO Highlights:

Highlights of GAO-04-258, a report to congressional committees 

Why GAO Did This Study:

In the past few years, the nation’s media have focused public 
attention on a series of misconduct and mismanagement issues within 
the Army National Guard and the Air National Guard. 

As part of the Bob Stump National Defense Authorization Act for fiscal 
year 2003, Congress directed GAO to examine four issues related to the 
management of the National Guard. In this report, GAO assesses the 
effectiveness of the (1) procedures that the Army National Guard and 
the Air National Guard have established and implemented to deal with 
service members who stop attending required training; (2) procedures 
that the National Guard uses for federally recognizing state 
promotions of senior National Guard officers; (3) process that the 
National Guard uses for disciplining senior officers (colonels and 
generals) who are guilty of misconduct; and (4) federal protections 
for National Guard members or civilian federal employees who report 
allegations of waste, fraud, abuse, or mismanagement (whistleblowers) 
and the extent to which disciplinary action is taken against those in 
the National Guard who retaliate against whistleblowers.

What GAO Found:

The Army National Guard and the Air National Guard have effective 
systems in place for identifying and removing non-participating 
members when appropriate. By placing greater attention on the accuracy 
of end-strength reports the Army National Guard has reduced the number 
of nonparticipating soldiers (so-called “ghost soldiers”) on its rolls 
to less than 1 percent of end strength. The Air National Guard has not 
placed the same degree of command emphasis on the issue, but under 
existing procedures the guard had a nonparticipation rate of 1.6 
percent as of July 30, 2003.

The Federal Recognition Examination process has an effective set of 
checks and balances that provide a reasonable assurance that senior 
National Guard officers who are promoted by their state are federally 
qualified for their grade and position, and moreover, that any 
significant issues relating to their leadership potential or moral 
character are disclosed. Our analysis of past board examinations 
showed that about 7 percent of Army National Guard officers and about 
3 percent of Air National Guard officers examined for recognition as 
generals were denied recognition because they were found not qualified 
or had conduct issues. This would seem to indicate that information 
relating to the officers’ leadership potential or moral character is 
disclosed.

The Army National Guard and the Air National Guard have established 
effective processes for taking action against senior National Guard 
officers (colonels and generals) involved in misconduct cases. 
Specifically, most officers found guilty of misconduct are punished. 
For example, 57 of 76 officers in our review received some 
administrative action ranging from a letter of reprimand to verbal 
counseling; 3 resigned or retired at the request of their commanders; 
and only 6 had no action taken against them. The remaining 10 cases 
were closed under special Army procedures used primarily in cases 
involving inconsequential allegations in which the officers involved 
had already retired.

The effectiveness of the federal protection for military and National 
Guard whistleblowers rests principally on a two-stage process of 
investigation and administrative review. The first stage involves a 
service or guard Inspector General’s investigation of the specific 
facts and interpretation of issues associated with a reprisal 
allegation. In the second stage of the investigation/administrative 
review process, the Defense Department’s Inspector General reviews and 
approves the findings of the service or guard Inspectors General. For 
the reprisal allegations that GAO reviewed, the military services took 
some disciplinary action against most guard management officials who 
had retaliated against guard members. However, federal whistleblower 
protection does not meaningfully apply to civilian federal employees 
(“technicians”) of the guard.

DOD concurred with our report.

www.gao.gov/cgi-bin/getrpt?GAO-04-258.

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Derek B. Stewart at 
(202) 512-5559 or stewartd@gao.gov .

[End of section]

Contents:

Letter:

Results in Brief:

Agency Comments and Our Evaluation:

Appendix I: Scope and Methodology:

Appendix II: National Guard and Reserve Components Personnel Strengths:

Appendix III: Federal Recognition Process for Recently Promoted Senior 
Officers:

Appendix IV: National Guard Senior Officer Misconduct Cases:

Appendix V: Federal Protections for National Guard Whistleblowers:

Appendix VI: Comments from the Department of Defense:

Tables:

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

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

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

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

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

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

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

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

Abbreviations:

DOD: Department of Defense:

GAO: General Accounting Office:

United States General Accounting Office:

Washington, DC 20548:

December 2, 2003:

Congressional Committees:

In the past few years, the nation's media have focused public attention 
on a series of misconduct and mismanagement issues within the Army 
National Guard and the Air National Guard. Among these issues are 
allegations that the National Guard has inflated guard member strengths 
with absent or so-called "ghost" soldiers;[Footnote 1] has promoted 
unfit officers; has been reluctant to punish senior National Guard 
officers[Footnote 2] for misconduct; and has condoned retaliation 
against guard members who report wrongdoing (whistleblowers). The 
Department of Defense's (DOD) ability to take action in these matters 
is complicated by the fact that the National Guard has a dual state-
federal status. Under state status, the National Guards in each of the 
50 states, the District of Columbia, and three territories (Puerto 
Rico, Guam, and Virgin Islands) provide emergency relief support during 
natural disasters, search and rescue operations, and civil defense 
crises, among other missions. In each jurisdiction, the guard is under 
the command of the governor of the state and the governor's principal 
deputy for guard administration--the state adjutant general.[Footnote 
3] When guard members are conducting state operations, they are under 
state authority. Under federal status,[Footnote 4] the National Guard's 
mission is to maintain well-trained, well-equipped units that can be 
mobilized promptly during national emergencies and wartime. During 
these times, guard members are under federal authority. This dual 
status sometimes creates jurisdiction and control issues.

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

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

Results in Brief:

The Army National Guard and the Air National Guard have systems in 
place that are effective in identifying and removing nonparticipating 
members when appropriate. The Army National Guard is paying greater 
attention to the accuracy of personnel strength reports than it did 
when we reported 2 years ago, and by using existing administrative 
procedures, it has reduced the number of nonparticipating soldiers (so-
called "ghost soldiers") on its rolls to less than 1 percent.[Footnote 
6] The existing procedures involve identifying soldiers who have not 
been paid for the previous 3 months of training and encouraging unit 
managers to resolve their status in a timely manner. The Air National 
Guard has not placed the same degree of command emphasis on the problem 
as the Army National Guard has but, in general, the routine 
administrative procedures that the Air Guard uses to process 
nonparticipating members appear effective. As of July 30, 2003, the Air 
National Guard had a non-participation rate of 1.6 percent. According 
to Air Guard personnel officials, the Air Guard is currently over 
strength, so units have little motivation to retain members who do not 
attend required training. A detailed discussion of this issue is 
presented in appendix II.

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

The Army National Guard and the Air National Guard have established 
effective processes for taking action against senior National Guard 
officers (colonels and generals) involved in misconduct cases. We 
judged the effectiveness of the Army National Guard's and the Air 
National Guard's processes for taking action against senior National 
Guard officers involved in misconduct cases by whether administrative 
action was taken against the officers involved. In the majority of 
cases some action was taken. From January 1997 through December 2001, 
the DOD, Army, and Air Force Inspectors General substantiated 
wrongdoing by 80 senior National Guard officers, and we were able to 
determine the actions taken for 76 of the 80 officers. We found that 
the investigative files for 66 of the 76 officers were sent to the 
officer's immediate commander for a decision and that 57 (75 percent) 
officers had an administrative action imposed, ranging from a letter of 
reprimand to verbal counseling; 3 officers (4 percent) resigned or 
retired at the request of their commander; and 6 officers (8 percent) 
had no administrative action taken against them. Ten officers (13 
percent) did not have their investigative file sent to their immediate 
commander. All 10 were Army officers whose cases were closed under 
special Army procedures for processing cases involving minor 
violations. For seven of the officers, the procedures were used in part 
because the officer had already retired before the investigation was 
started. Detailed information on this issue is presented in appendix 
IV.

The effectiveness of the federal protection for military and National 
Guard whistleblowers rests principally on a two-stage process of 
investigation and administrative review.[Footnote 7] The first stage 
involves a service's or guard's Inspector General's investigation of 
the specific facts and interpretation of issues associated with a 
reprisal allegation. In our review of 122 allegations (60 
investigations) that covered the period 1997 to 2002, we found that 
Inspectors General did not substantiate 98 of these allegations (80 
percent). Inspectors General were unable to substantiate many of these 
allegations because they did not meet certain required criteria; for 
example, the communication was not protected or there was not an 
unfavorable personnel action. In the second stage of the investigation/
administrative review process, the DOD Inspector General reviews and 
approves the findings of the service's or guard's Inspectors General. 
This review offers assurance that the findings and recommendations are 
substantiated and legally sufficient. In a review of 19 allegations (8 
of the 60 investigations), we found that the DOD Inspector General did 
not agree with the other Inspectors General's interpretation of certain 
issues, such as the role of the chain of command, the sufficiency of 
the evidence, and the quality of the investigation. As an overall 
observation, under this process, Inspectors General interpret issues 
associated with whistleblowing on an allegation-by-allegation basis 
without relying on established guidance from past similar allegations 
and decisions. In contrast, decisions made under the civilian 
whistleblower protection statutes rely on case law.[Footnote 8] For the 
reprisal allegations we reviewed, the military services took some 
disciplinary action against most guard management officials who had 
retaliated against guard members. Federal civilian employees of the 
National Guard ("technicians"), however, are not protected by the 
military protection statute because, as civilians, it does not apply to 
them, nor are they well protected by civilian whistleblower statutes. 
Detailed information on these issues is in appendix V.

GAO is making no recommendations in this report.

Agency Comments and Our Evaluation:

In commenting on a draft of this report, the Assistant Secretary of 
Defense (Reserve Affairs), concurred with the report as written. DOD 
also provided technical changes that we made where appropriate. The 
department's written comments are incorporated in their entirety in 
appendix VI.

We are sending copies of this report to the Secretary of Defense; the 
Secretaries of the Army, the Air Force, the Navy, and the Commandant of 
the Marine Corps; the Director of the Office of Management and Budget; 
and other interested congressional committees. We will also make copies 
available to others upon request. In addition, the report will be 
available at no charge on the GAO Web site at http://www.gao.gov:

Please contact me on (202) 512-5559 if you or your staffs have any 
questions concerning this report.

Derek B. Stewart, 
Director: 
Defense Capabilities and Management:

Signed by Derek B. Stewart: 

List of Congressional Committees:

The Honorable John W. Warner: 
Chairman: 
The Honorable Carl Levin: 
Ranking Minority Member: 
Committee on Armed Services: 
United States Senate:

The Honorable Duncan Hunter: 
Chairman: 
The Honorable Ike Skelton: 
Ranking Minority Member: 
Committee on Armed Services: 
House of Representatives:

[End of section]

Appendix I: Scope and Methodology:

In conducting our reviews of our four objectives (see p.2), we visited 
a number of National Guard and other military offices, examined a 
variety of documents, and collected and analyzed different datasets. 
Although we used Department of Defense (DOD) data in our analysis we 
did not independently test it for reliability.

To assess the effectiveness of the processes used by the Army National 
Guard and the Air National Guard for taking action against members who 
stop attending required training, we determined whether the services 
identified nonparticipating individuals and took action to resolve 
their status. There is no guidance on when guard commanders must take 
action to remove members who stop attending training. However, DOD 
officials agreed that it was reasonable to expect commanders to adjust 
unit strength if an individual had not been paid for training for at 
least 7 months. To determine if unpaid individuals remain on units' 
rolls for more than 7 months, we obtained Non-Validation of Pay reports 
from the Army National Guard that identify unpaid soldiers. These 
reports are not available to the Air Guard, so we used data from the 
Defense Manpower Data Center to make this determination. We also 
interviewed senior officials at the Army National Guard, Air National 
Guard, and National Guard Bureau headquarters, all located in 
Arlington, Virginia, to discuss the policies and procedures used for 
processing service members who were not attending required training and 
obtained copies of pertinent instructions, directives, and regulations. 
Finally, to observe procedures used by the Army National Guard for 
identifying and processing nonparticipating service members, we visited 
the headquarters of the Alabama Army National Guard, Montgomery; the 
Georgia Army National Guard, Atlanta; and the Louisiana Army National 
Guard, Jackson Barracks, New Orleans. To identify the procedures used 
by Air National Guard units, we sent questionnaires and conducted phone 
interviews with officials in the 190th Mission Support Flight, Kansas 
Air National Guard, Forbes Field; the 109th Mission Support Flight, New 
York Air National Guard, Schenectady; and Detachment 1, Headquarters, 
Washington (state) Air National Guard, Camp Murray. Also as required by 
the act, we collected similar information for the reserve components. 
To determine the procedures that the reserve components use for 
processing members who stop attending required training, we visited the 
Army Reserve Command, Fort McPherson, Georgia; the Air Force Reserve 
Command, Robbins Air Reserve Base, Georgia; and the Naval Reserve 
Forces and Marine Corps Reserve Forces in New Orleans, Louisiana. 
Because the Naval Reserve, Marine Corps Reserve, and Air Force Reserve 
did not have data on nonparticipants, we obtained and analyzed data 
from the Defense Manpower Data Center, Monterey, California, which 
identified members who had not been paid for the previous 7 months of 
training. To observe how reserve units process nonparticipants, we 
visited the 427th Medical Logistics Battalion, U.S. Army Reserve, Fort 
Gillam, Georgia; the 94th Airlift Group, U.S. Air Force Reserve; and 
the Marine Air Group 42, U.S. Marine Corps Reserve, both at Dobbins Air 
Base, Georgia; and Naval Reserve units in New Orleans, Louisiana.

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

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

To examine the effectiveness of whistleblower protections, we reviewed 
(1) Inspectors General's interpretation of issues associated with 
reprisal allegations and (2) the DOD Inspector General's review and 
interpretation of reprisal-related decisions by other Inspectors 
General. In order to do the first part of this examination, we 
collected information on 122 reprisal allegations that were part of 60 
investigations conducted by Inspectors General during the period 1997 
to 2002. Generally, these allegations included those made against 
senior guard officers accused of misconduct that we discuss in appendix 
IV and all allegations that were investigated during 2001 and 2002. We 
reviewed the interpretation of issues in terms of the criteria that 
Inspectors General used to determine whether to substantiate a reprisal 
allegation. We did not evaluate the appropriateness of the decisions 
made. In order to place the interpretation of issues associated with 
these allegations in a broader context, we reviewed decisions by the 
Merit Systems Protection Board and U.S. Court of Appeals for the 
Federal Circuit that applied to federal civilian employees who claimed 
whistleblower protection. While we did not formally compare these 
decisions with those made by the DOD and services' Inspectors General, 
they were used to help us make our overall observation. We also did not 
examine the broadly analogous appeals process available to military and 
guard whistleblowers, including recommendations of service boards for 
the correction of military records. In order to do the second part of 
this determination, we examined selected issues over which the DOD 
Inspector General and other Inspectors General disagreed. Issues 
associated with 19 allegations in 8 of the 60 investigations we 
reviewed formed the basis of this examination. We did not evaluate the 
resolution of these disagreements. We also examined issues associated 
with administrative action taken against those who retaliated against 
guard whistleblowers. Eleven of the 60 investigations we reviewed had 
at least one substantiated allegation of reprisal. The administrative 
actions taken as a consequence of these investigations, plus decisions 
by the Merit Systems Protection Board and U.S. Court of Appeals for the 
Federal Circuit on an additional case involving a federal civilian 
employee of the National Guard formed the basis of this examination. We 
did not evaluate the appropriateness of the administrative actions 
taken.

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

[End of section]

Appendix II: National Guard and Reserve Components Personnel Strengths:

Background:

In March 2002 we reported that the Army National Guard had overstated 
its personnel strength for fiscal years 2000 and 2001 by including 
soldiers on its roll who were no longer participating in training (so-
called "ghost soldiers") and who should have been removed from guard 
rolls. For example, on September 30, 2000, the guard had about 4,048 
soldiers, or 1.3 percent of its 301,140 drilling members, who had not 
been paid for 7 months or more, and on September 30, 2001, the guard 
had about 4,254 soldiers, or 1.4 percent of its 296,430 drilling 
members, who had not been paid for 7 months or more. This occurred 
because commanders did not take timely action to remove soldiers from 
the rolls when they stopped attending drill and training. We also 
reported that the guard was taking steps to improve its end strength 
accounting.

The requirements for participation in training vary slightly between 
the National Guard and reserve components. According to a DOD 
Directive, Army and Air National Guard members must participate in 48 
drills and 15 days of training annually, and reserve component members 
must participate in a minimum of 48 drills and 14 days of training each 
year. A drill is a 4-hour training period, and according to service 
officials the typical "one weekend per month" of reserve training 
generally consists of two drill periods on a Saturday and two drill 
periods on a Sunday. Attendance is verified during unit formations held 
at the beginning and the end of each drill period.

DOD has set up procedures to follow when a guard or reserve member 
fails to participate in training. When a guard or reserve member misses 
a regularly scheduled drill period or training day, the absence may be 
excused or unexcused. Excused absence includes failure to attend 
scheduled assemblies or training periods because of unforeseen 
emergency situations. Unit commanders are responsible for determining 
whether an absence is excused, and they have some flexibility in making 
this determination. Excused absences may be made up with pay at a later 
time. According to DOD Instruction 1215.18, if a guard or reserve 
member has nine unexcused absences from scheduled training within a 12-
month period, he or she is considered not to be meeting the 
participation requirements of the organization. The instruction spells 
out the actions that may be taken against nonparticipating members. The 
actions are imposed at the discretion of the Secretary of the military 
service concerned and vary depending on the member's rank and whether 
the member has fulfilled his or her military service obligation. 
According to the instruction, some of the actions that may be taken 
against an individual include (1) ordering the individual to active 
duty, (2) ordering the individual to active duty for training for a 
period of not more than 45 days, (3) reclassifying the individual to a 
nondrilling status, and (4) discharging the individual.

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

The Army National Guard and the Air National Guard Have Effective 
Procedures for Removing Ghost Soldiers from Rolls:

Increased attention by the Office of the Secretary of Defense and the 
Army National Guard on improving the accuracy of personnel strength 
reports, coupled with existing procedures for resolving the status of 
members who stop attending required training, has reduced the 
nonparticipation rates in the Army National Guard. By comparison, the 
Air National Guard has not placed the same degree of command attention 
on lowering the number of nonparticipants on its rolls; instead, the 
Air Guard's existing administrative procedures appear to be effective 
in maintaining low rates.

Focused Attention by Army National Guard Has Helped Reduce End Strength 
Inflation:

In March 2002 we reported that although the Army National Guard's 
personnel strength was overstated because it contained large numbers of 
soldiers who were no longer attending drill, the guard was taking steps 
to correct these overstatements.[Footnote 9] In our recent discussions 
with Army National Guard officials, they described these steps for 
improving end-strength accounting as a "top down, educational 
approach." They stated that the National Guard Bureau has no authority 
to regulate the states in removing soldiers who stop participating, but 
by focusing attention on the matter, they have gained the cooperation 
of the states. In addition to more attention, the Army National Guard 
uses a tool known as the nonvalidation of pay report. This report 
identifies soldiers who are required to drill but have not received pay 
for the previous 3 months. Unit commanders are urged to review the 
status of soldiers in this report and determine if they should be 
removed from, or reclassified to a nondrilling status in the Army 
National Guard's end-strength report. The Army National Guard's goal is 
to reduce the number of soldiers who have not been paid for the 
previous 3 months to less than 2 percent of the force. By taking early 
action to resolve the status of soldiers when they first start missing 
drills, Army National Guard officials believe they can minimize the 
number of ghost soldiers on its rolls.

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

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

Date: September 2000; Total number assigned: 301,140; Number not paid 
for previous 3 months: 11,025; Percent not paid for previous 3 months: 
3.7; Number not paid for previous 7 months: 4,048; Percent not paid for 
previous 7 months: 1.3.

Date: September 2001; Total number assigned: 296,430; Number not paid 
for previous 3 months: 8,701; Percent not paid for previous 3 months: 
2.9; Number not paid for previous 7 months: 4,254; Percent not paid for 
previous 7 months: 1.4.

Date: September 2002; Total number assigned: 296,248; Number not paid 
for previous 3 months: 4,248; Percent not paid for previous 3 months: 
1.4; Number not paid for previous 7 months: 1,481; Percent not paid for 
previous 7 months: .5.

Date: July 2003; Total number assigned: 294,012; Number not paid for 
previous 3 months: 1,526; Percent not paid for previous 3 months: .5; 
Number not paid for previous 7 months: 3,094; Percent not paid for 
previous 7 months: 1.0.

Sources: DOD (data); GAO (analysis).

[End of table]

Our visits to Army National Guard headquarters in Louisiana, Alabama, 
and Georgia confirmed that significant management attention is being 
paid to resolving the status of potential nonparticipating soldiers. In 
each state, headquarters personnel officials acknowledged that they are 
placing an emphasis on resolving the status of potential 
nonparticipants. Although the specific procedures that each state uses 
to manage nonparticipation vary, in general, they all encourage 
subordinate units to work with soldiers to return them to drill status, 
and they authorize units to discharge individuals they deem will not be 
returning. Each of the three state headquarters monitors its 
subordinate units, and if a unit fails to take action, the headquarters 
steps in and discharges the individual. However, the point at which the 
headquarters takes action varies. For example, Georgia took action if a 
unit had not resolved a soldier's status after 7 months without pay, 
while Alabama National Guard officials took action if a unit had not 
resolved a soldier's status after 12 months without pay. However, as 
table 1 indicates, the status of most soldiers is resolved in 3 to 7 
months.

Air National Guard Relies Primarily on Existing Administrative 
Procedures:

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

The Reserve Components Nonparticipation Rates Are Slightly Higher Than 
the Guard's:

As shown in table 2, as of July 2003, the percentage of individuals in 
the reserve components who had not been paid for the previous 7 months 
ranged from 2.0 percent in the Naval Reserve to 4.6 percent in the 
Marine Corps Reserve. DOD has not provided the reserve components with 
guidance for managing nonparticipation. According to a DOD official, 
nonparticipation in the Air Force Reserve, Marine Corps Reserve, and 
Naval Reserve averages about 23 to 28 individuals per state and 
territory and those numbers do not indicate a problem in those 
components. Nonparticipation in the Army Reserve, however, averages 
about 100 soldiers per state and territory. The Army Reserve is taking 
aggressive action to reduce this number and, according to its Chief, 
has established control procedures that include a goal of reducing 
potential nonparticipants (3 months without pay) to less than 1 percent 
of end strength, approval by a general officer before any soldier can 
accrue more than 12 months without pay, and an expedited review to 
resolve the status of all soldiers currently on the rolls that have not 
been paid for the previous 12 months.

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

Component: Army Reserve; Total number assigned: 174,617; Number not 
paid for previous 7 months: 5,162; Percent not paid for previous 7 
months: 3.0.

Component: Air Force Reserve; Total number assigned: 55,762; Number not 
paid for previous 7 months: 1,501; Percent not paid for previous 7 
months: 2.7.

Component: Marine Corps Reserve; Total number assigned: 32,399; Number 
not paid for previous 7 months: 1,502; Percent not paid for previous 7 
months: 4.6.

Component: Naval Reserve; Total number assigned: 60,468; Number not 
paid for previous 7 months: 1,223; Percent not paid for previous 7 
months: 2.0.

Sources: DOD Defense Manpower Data Center and U.S. Army Reserve Non-
Validation of Pay Reports.

[End of table]

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

[End of section]

Appendix III: Federal Recognition Process for Recently Promoted Senior 
Officers:

Background:

According to the U.S. Constitution, states have the authority to 
appoint officers in their state National Guard units.[Footnote 10] 
However, because National Guard officers also have a federal status, 
state-promoted officers must go through a second review process--the 
Federal Recognition Examination--to ensure that they meet federal 
promotion requirements. The Chief of the National Guard Bureau is 
responsible for federally recognizing state promotions under 
regulations prescribed by the Secretaries of the Army and the Air 
Force.[Footnote 11] Officers who are federally recognized in a 
particular grade are tendered an appointment at the same grade as 
reserve commissioned officers of the Army or Air Force. Officers who 
are appointed to a higher grade by the states, but have not been 
federally recognized in that grade, are not permitted to wear the 
uniform or insignia of the grade until the National Guard Bureau has 
federally recognized the promotion. One exception to this provision is 
that an adjutant general may wear the insignia of the next higher 
grade, up to that of a major general, than his/her federally recognized 
grade. Federal recognition of a state promotion authorizes federal pay 
and benefits at that grade. Adjutants general do not have to be 
federally recognized unless such recognition is required by the state 
code. Adjutant generals, for the most part, serve at the pleasure of 
the governor of their state.

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

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

* Complete a minimum number of years of service at the lower grade; 
* Be a citizen of the United States; 
* Possess a security clearance; 
* Meet specified height and weight standards; 
* Meet specified military professional education requirements; 
* Meet specified civilian education requirements; 
* Meet specified experience requirements; 
* Possess good moral character.

Sources: National Guard Regulation (Air Force) 36-1 and National Guard 
Regulation (Army) 600-100.

[End of table]

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

Federal Recognition Examination Process Contains Reasonable Checks and 
Balances:

While we did not examine specific cases, our examination of the checks 
and balances built into the federal recognition examination process 
indicates that they provide reasonable assurance that state-promoted 
officers meet federal promotion standards and that adverse information 
relating to their leadership potential or moral character will be 
disclosed. These checks and balances include (1) an examination by a 
senior-level review board comprising officers who are independent of 
the guard organization that submitted the nomination, (2) a stringent 
background investigation for those nominated to Army National Guard and 
Air National Guard general officer positions, and Air Guard colonel 
positions, (3) a DOD policy that requires that the department disclose 
any adverse information uncovered on general officer nominees during 
presidential approval and Senate confirmation proceedings, and (4) 
active management of the process by the National Guard Bureau and the 
Offices of the Chiefs of Staff of the Army and Air Force.

Army and Air Force data show that some senior National Guard officers 
with evidence of misconduct in their record have been federally 
recognized. However, the procedures suggest that the adverse 
information was known or available to those who were responsible for 
approving or confirming the promotion.

Senior Guard Officers Must Pass Federal Recognition Examination:

A key check and balance is the composition of federal recognition 
examination boards. The U.S. Code states that to be eligible for 
federal recognition as an officer of the National Guard, a person must 
pass an examination for physical, moral, and professional fitness to be 
prescribed by the President, conducted by a board of three commissioned 
officers designated by the respective service secretary from members of 
the regular service, the National Guard, or both, and subscribe to an 
oath of office. The implementing service regulations add other 
requirements for the three-person federal recognition review boards. 
The members are to be appointed by the Secretary of the military 
service concerned. Both the Army and Air Force require that the members 
be at least one grade senior to the officer who is to be examined and 
that one or more members come from the active-duty ranks.[Footnote 12] 
The inclusion of active-duty officers provides a measure of 
independence from the state guard organization that originated the 
nomination.

Another important check and balance is that DOD requires, by 
instruction, background investigations for officers nominated to be 
general officers.[Footnote 13] The instruction requires the services to 
examine all systems of records maintained by DOD for any adverse 
information that may exist on a nominee. According to service 
officials, this examination would include files in the offices of the 
state and service Inspectors General, the Judge Advocate General, the 
General Counsel, the Equal Employment Opportunity Office, and the 
appropriate service criminal investigation agency. If adverse 
information emerges during the process, there are established processes 
for the disclosure of that information to the review boards. If an 
allegation emerges during the process, the nomination is held in 
abeyance until necessary investigations are completed. If no adverse 
information is found, the service must provide a certificate stating 
so. DOD Instructions require that adverse information on officers below 
general officer grades be reported only if, in the judgment of the 
Secretary of the military service concerned, it is appropriate. 
Nonetheless, the Air National Guard checks state files for adverse 
information on all individuals nominated for promotion to colonel. The 
Army National Guard conducts no additional checks on individuals 
nominated for promotion to colonel.

A third check and balance is that the nominations of individuals being 
promoted to, or within, the general officer rank must be approved by 
the Secretary of Defense and the President and confirmed by the Senate. 
It is DOD's policy to fully inform these parties of any adverse 
information known about a nominee.[Footnote 14] Thus, even if a federal 
recognition board elects to overlook some misconduct in a nominee's 
past, the Secretary of Defense, the President, and the Senate must all 
agree with the decision.

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

Some National Guard Officers Are Denied Federal Recognition:

A review of Federal Recognition Examination Board recommendations shows 
that boards find some applicants not qualified for federal recognition 
on the basis of experience or conduct. As table 4 shows, of 347 Army 
National Guard officers who were reviewed for promotion to a general 
officer grade from June 1998 through December 2002, 24, or 6.9 percent, 
were denied federal recognition because of performance, experience, or 
conduct issues. A smaller percentage of officers (3.3 percent) who were 
considered for promotion to a general officer grade in the Air National 
Guard were denied federal recognition because of similar issues. The 
percentages are lower among officers who were considered for federal 
recognition as colonels. In the Air National Guard, less than 1 percent 
were denied federal recognition because of performance, experience, or 
conduct issues. The Army National Guard did not have data on numbers of 
colonel nominees denied federal recognition.

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

Promotion to General: 

Army National Guard[A]; Number of cases reviewed: 347; Number of cases 
denied: Not fully qualified: 16; Number of cases denied: Conduct: 8; 
Percent of cases denied: 6.9.

Air National Guard[B]; Number of cases reviewed: 307; Number of cases 
denied: Not fully qualified: 0; Number of cases denied: Conduct: 10; 
Percent of cases denied: 3.3.

Promotion to Colonel: 

Army National Guard; Number of cases reviewed: N.A.

Air National Guard[C]; Number of cases reviewed: 859; Number of cases 
denied: Not fully qualified: 3; Number of cases denied: Conduct: 0; 
Percent of cases denied: 0.3.

Sources: DOD (data); GAO (analysis).

Legend:

N.A. = not available.

[A] Data for 4.5-year-period--June 1998 through December 2002.

[B] Data for 10-year-period--January 1991 through December 2000.

[C] Data for 4-year period--March 1998 through October 2002.

[End of table]

Some National Guard Officers with Substantiated Misconduct Have Been 
Federally Recognized:

Using data from our review of National Guard misconduct, we found that 
a small number of senior officers with substantiated misconduct were 
later federally recognized. Service officials told us that federal 
recognition boards do not have a "zero defects" mentality. They said 
that if an officer whose career has otherwise been exemplary has made a 
mistake and recognizes that mistake, the officer should not 
automatically be precluded from promotion or from the federal 
recognition process. Because all of the promotions were at the general-
officer grade, if the process were followed, the information on the 
officer's misconduct would have been known or available to those 
responsible for approving or confirming federal recognition of the 
promotion.

[End of section]

Appendix IV: National Guard Senior Officer Misconduct Cases:

Background:

The National Guard is a state instrumentality under the command of the 
governor of the state, and the governor's principal deputy for the 
guard's administration is the state adjutant general. Only when called 
or ordered into federal service is the National Guard subject to the 
authority of the President, the Secretary of Defense and other civilian 
and military authorities of the federal defense establishment. Thus, 
under federal law, federal officials do not have direct control over 
the actions taken by state officials in administering the guard when it 
is in a state status.[Footnote 15]

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

DOD's Inspector General maintains oversight and, in some cases, 
investigative authority over cases involving general officers in the 
National Guard.[Footnote 16] Generally, the DOD Inspector General 
investigates only cases that have broad ramifications for the 
department: cases that involve generals in the two highest grades 
(lieutenant generals and full generals), cases that include officers in 
multiple services; and reprisal cases. Cases without a broad 
ramification are generally referred back to the individual service's 
Inspector General's office for investigation, which conducts about 90 
percent of the investigations involving general officers and colonels 
being considered for the rank of general officer.

Each service's Inspector General maintains oversight and investigative 
authority over cases involving National Guard officers at the rank of 
colonel.[Footnote 17] The nature of the allegation largely determines 
which Inspector General office or level of command conducts the 
investigation. The Army and Air Force Inspectors General investigate 
allegations involving colonels selected for promotion to general and 
forward inquiries involving colonels not selected for promotion to the 
states for investigation.

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

Commanders, supervisors, and superiors have several administrative 
actions available to them in correcting officers who have been found 
guilty in noncriminal misconduct cases. According to service guidance, 
these actions are intended to be corrective rather than 
punitive.[Footnote 18] They include "reprimands," which carry a strong 
implication of official censure; "admonishments," which are similar to 
reprimands but carry a lesser degree of severity and censure; verbal 
reprimands, which are used in less severe situations; and no action. 
Administrative actions may or may not be filed in an officer's records 
at the discretion of the individual imposing the action, usually the 
officer's commander.

Most Officers Found Guilty of Misconduct Are Punished:

In the majority of cases that we examined, the senior Army National 
Guard and Air National Guard officers found guilty of noncriminal 
misconduct received some type of administrative action. In our review 
of all DOD, Army, and Air Force Inspector General investigations that 
were completed from January 1, 1997 to December 31, 2001, we identified 
75 senior National Guard officers with substantiated acts of 
wrongdoing. Five of these officers had two substantiated acts of 
wrongdoing, which brought the total number of incidents to 80. The 
incidents involved 46 Army officers and 29 Air Force officers. Four 
Army officers and 1 Air Force officer had two misconduct incidents 
each. Because the Army and Air Force have different processes for 
adjudicating cases involving senior officers, we have arranged our data 
in table 5 to show the number of officers with substantiated misconduct 
in each of the services to better illustrate the nature and extent of 
the actions.

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

Senior officer category: Generals; Army National Guard: 26; Air 
National Guard: 9; Total: 34.

Senior officer category: Colonels; Army National Guard: 20; Air 
National Guard: 20; Total: 41.

Senior officer category: Total; Army National Guard: 46; Air National 
Guard: 29; Total: 75.

Sources: DOD (data); GAO (analysis).

[End of table]

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

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

Type of misconduct: Reprisal; Army National Guard colonels and 
generals: 5; Air National Guard colonels and generals: 4; Total: 9.

Type of misconduct: Fraud, waste, or abuse; Army National Guard 
colonels and generals: 9; Air National Guard colonels and generals: 4; 
Total: 13.

Type of misconduct: Improper relationship; Army National Guard colonels 
and generals: 3; Air National Guard colonels and generals: 2; Total: 5.

Type of misconduct: Ethics; Army National Guard colonels and generals: 
0; Air National Guard colonels and generals: 2; Total: 2.

Type of misconduct: Abuse of authority/poor judgment; Army National 
Guard colonels and generals: 33; Air National Guard colonels and 
generals: 18; Total: 51.

Type of misconduct: Total; Army National Guard colonels and generals: 
50; Air National Guard colonels and generals: 30; Total: 80.

Sources: DOD (data); GAO (analysis).

[End of table]

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

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

Type of action: Cases forwarded for a decision: 

Type of action: Letter/memorandum of reprimand; Army National Guard 
colonels and generals: 18; Air National Guard colonels and generals: 4; 
Total: 22.

Type of action: Letter/memorandum of censure or concern; Army National 
Guard colonels and generals: 13; Air National Guard colonels and 
generals: 5; Total: 18.

Type of action: Letter/memorandum of admonishment; Army National Guard 
colonels and generals: 1; Air National Guard colonels and generals: 3; 
Total: 4.

Type of action: Verbal counseling/reprimand; Army National Guard 
colonels and generals: 2; Air National Guard colonels and generals: 11; 
Total: 13.

Type of action: Total; Army National Guard colonels and generals: 34; 
Air National Guard colonels and generals: 23; Total: 57.

Type of action: Forced resignation or retirement; Army National Guard 
colonels and generals: 1; Air National Guard colonels and generals: 2; 
Total: 3.

Type of action: Decision made to take no action; Army National Guard 
colonels and generals: 3; Air National Guard colonels and generals: 3; 
Total: 6.

Type of action: Total; Army National Guard colonels and generals: 38; 
Air National Guard colonels and generals: 28; Total: 66.

Type of action: Cases not forwarded for a decision: 

Type of action: Case dropped as inconsequential; Army National Guard 
colonels and generals: 10; Air National Guard colonels and generals: 0; 
Total: 10.

Type of action: Total; Army National Guard colonels and generals: 10; 
Air National Guard colonels and generals: 0; Total: 10.

Type of action: Total cases; Army National Guard colonels and generals: 
48; Air National Guard colonels and generals: 28; Total: 76.

Sources: DOD (data); GAO (analysis).

[End of table]

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

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

Air Force Investigations.

Substantiated allegation of reprisal: Reprised against a subordinate 
with an improper referral for a mental health evaluation and an 
adverse officer efficiency report; Action taken: Relieved of command 
and left the National Guard.

Substantiated allegation of reprisal: Reprised against an individual 
by initiating an administrative separation and suspending individual's 
security clearance; Action taken: Verbal counseling.

Substantiated allegation of reprisal: Reprised against an individual 
with an improper referral for a mental health examination; Action 
taken: Letter of reprimand from the state Adjutant General.

Substantiated allegation of reprisal: Reprisal against complainants; 
abused authority; unprofessional conduct; Action taken: Verbal 
reprimand by the Adjutant General.

Substantiated allegation of fraud, waste, or abuse: Condoned the 
backdating and falsification of transfer and promotion orders; Action 
taken: Verbal counseling by the state Governor.

Substantiated allegation of fraud, waste, or abuse: Made false 
statements to government officials; Action taken: Letter of 
admonishment from the state Adjutant General.

Substantiated allegation of fraud, waste, or abuse: Misused military 
aircraft; also, trip was scheduled for the individual's personal gain; 
Action taken: Verbal reprimand from the state Adjutant General.

Substantiated allegation of fraud, waste, or abuse: Falsified time and 
another person's initials on a pay log; Action taken: Verbal 
counseling.

Substantiated allegation of unprofessional relationship: Adultery, 
unprofessional relationships, and false testimony; Action taken: 
Retired at the request of the state Adjutant General and removed from 
the promotion list.

Substantiated allegation of unprofessional relationship: Engaged in an 
unprofessional relationship with a subordinate; Action taken: Verbal 
counseling by the state Governor.

Substantiated allegation of ethics violation: Accepted gift in excess 
of limit in ethics regulation; Action taken: Letter of admonishment 
from the state Adjutant General and reimbursed cost of the gift.

Substantiated allegation of ethics violation: Accepted gift in excess 
of limit in ethics regulation; Action taken: Letter of admonishment 
from the state Adjutant General and reimbursed cost of the gift.

Substantiated allegation of abuse of authority: Abused authority by 
assisting son's promotion; Action taken: Letter of reprimand 
from the state Adjutant General.

Substantiated allegation of abuse of authority: Improperly 
administered annual leave policy; Action taken: No adverse action 
taken. Problem was administratively corrected.

Substantiated allegation of abuse of authority: Improperly 
administered annual leave policy; Action taken: No adverse action 
taken. Problem was administratively corrected.

Substantiated allegation of abuse of authority: Improperly 
administered annual leave policy; Action taken: No adverse action 
taken. Problem was administratively corrected.

Substantiated allegation of abuse of authority: Abused authority; 
Action taken: Unknown.

Substantiated allegation of abuse of authority: Failed to provide a 
complainant's legal rights; Action taken: abused authority by 
ordering the complainant to leave the workplace; Action taken: Letter 
of concern from the state Adjutant General.

Substantiated allegation of abuse of authority: Undue command 
influence; abused authority; derelict in duty; Action taken: Verbal 
counseling by the Governor.

Substantiated allegation of abuse of authority: Directed that an 
individual be detailed to another unit in excess of the limits 
prescribed in the regulations; Action taken: Verbal counseling by the 
commander.

Substantiated allegation of abuse of authority: Allowed use of 
government property for other than authorized purposes; 
directed or requested subordinates to use official time for 
unauthorized purposes; Action taken: Memorandum of censure from the 
state Adjutant General.

Substantiated allegation of abuse of authority: Placed an individual 
in a controlled grade position without requiring the individual to 
perform any of the duties associated with the position; Action taken: 
Verbal counseling from the state Adjutant General.

Substantiated allegation of poor judgment: Failed to take action when 
notified of a sexual harassment allegation and did not give honest 
testimony to an Inspector General; Action taken: Letter of counseling 
from the Secretary of the Air Force.

Substantiated allegation of poor judgment: Failed to ensure a 
complainants legal rights were protected; abused his authority; Action 
taken: Letter of concern from the state Adjutant General.

Substantiated allegation of poor judgment: Failed to carry out his 
responsibilities as an Inspector General; Action taken: Letter of 
concern from the state Adjutant General.

Substantiated allegation of poor judgment: Swore at private 
contractors; did not get approval for passenger on aircraft; misused 
government aircraft; Action taken: Letter of reprimand from the 
state Adjutant General.

Substantiated allegation of poor judgment: Misused aircraft; Action 
taken: Letter of reprimand from the state Adjutant General.

Substantiated allegation of poor judgment: Public intoxication; Action 
taken: Verbal counseling.

Substantiated allegation of poor judgment: Exercised during duty 
hours; Action taken: Unknown (case file destroyed).

Substantiated allegation of poor judgment: Used government equipment 
and time to send e-mail information to others that was political in 
nature; Action taken: Verbal reprimand by the Commander.

Army investigations: 

Substantiated allegation of reprisal: Reprised against a fellow 
officer with an adverse efficiency report; initiated an investigation 
to discredit an individual; used government equipment for personal 
use; gave preferential treatment to an individual; and threatened an 
individual's right to make statements to the press and the Inspector 
General; Action taken: Received two letters of reprimand from the Vice 
Chief of Staff of the Army; both filed in official military personnel 
file.

Substantiated allegation of reprisal: Reprised against a fellow 
officer with an adverse efficiency report and signed a false official 
document; Action taken: Letter of reprimand from the Vice Chief of 
Staff of the Army filed in official military personnel file.

Substantiated allegation of reprisal: Reprised against an individual 
by improperly forcing a mental health examination; Action taken: 
Memorandum of reprimand from the Vice Chief of Staff of the Army filed 
in official military personnel file.

Substantiated allegation of reprisal: Reprised against a fellow 
officer; illegal political support; Action taken: Memorandum of 
reprimand from the Vice Chief of Staff of the Army filed in official 
military personnel file.

Substantiated allegation of reprisal: Reprised against a subordinate; 
Action taken: Memorandum of concern from the Vice Chief of Staff of 
the Army.

Substantiated allegation of fraud, waste, or abuse: Provided false 
information in medical history; Action taken: Memorandum of concern 
from the Vice Chief of Staff of the Army.

Substantiated allegation of fraud, waste, or abuse: Scheduled 
government trips for own personal gain; misused state postage stamps 
for personal gain; sexually harassed females; improperly tried to 
influence an Inspector General investigation; Action taken: Memorandum 
of reprimand from the Vice Chief of Staff of the Army filed in 
official military personnel file.

Substantiated allegation of fraud, waste, or abuse: Improperly 
upgraded his airline travel and conducted a circuitous travel route 
during a trip; Action taken: Retired. Case closed under noncredible/
inconsequential procedures.

Substantiated allegation of fraud, waste, or abuse: Received payment 
and retirement point credit for duty not performed; failed to carry 
out duty as a noncommissioned officer evaluation report reviewer; 
Action taken: Memorandum of reprimand from the Vice Chief of Staff of 
the Army filed in official personnel file.

Substantiated allegation of fraud, waste, or abuse: Received pay and 
retirement point credit for duty not performed; Action taken: Retired.
Case closed under noncredible/inconsequential procedures.

Substantiated allegation of fraud, waste, or abuse: Failed to ensure 
that an officer was properly rated; mistreated subordinates; falsified 
physical fitness test results; Action taken: Memorandum of concern 
from the Vice Chief of Staff of the Army.

Substantiated allegation of fraud, waste, or abuse: Directed personnel 
to falsify personal strength accounting by delaying discharge 
processing; provided false testimony to an Inspector General; Action 
taken: Memorandum of reprimand from the Vice Chief of Staff of the 
Army filed in official military personnel file.

Substantiated allegation of fraud, waste, or abuse: Authorized, 
approved, and participated in non-mission essential temporary duty; 
improper relationships; tolerated misconduct; Memorandum of reprimand 
from the Vice Chief of Staff of the Army.

Substantiated allegation of fraud, waste, or abuse: Signed a 
subordinate's efficiency report knowing it contained false 
information; Action taken: Memorandum of concern from the Vice Chief 
of Staff of the Army.

Substantiated allegation of unprofessional relationship: Engaged in an 
adulterous affair; Action taken: Forced resignation, unfavorable 
evaluation report, and Memorandum of Reprimand from the Vice Chief of 
Staff of the Army filed in official military personnel file.

Substantiated allegation of unprofessional relationship: Improper 
relationship with a subordinate; Action taken: Memorandum of concern 
from the Vice Chief of Staff of the Army.

Substantiated allegation of abuse of authority: Gave preferential 
treatment to a subordinate; Action taken: Letter of reprimand from the 
Vice Chief of Staff of the Army filed in official military personnel 
file.

Substantiated allegation of abuse of authority: Improperly used a 
government vehicle, personnel, and equipment; improperly accepted and 
retained an active duty identification card; scheduled unnecessary 
temporary duty travel; Action taken: Memorandum of reprimand from the 
Vice Chief of Staff of the Army.

Substantiated allegation of abuse of authority: Improperly authorized 
time off awards for a subordinate; Action taken: Memorandum of concern 
from the Vice Chief of Staff of the Army.

Substantiated allegation of abuse of authority: Ordered the promotion 
of subordinates; Action taken: Retired before the investigation took 
place. Case closed under noncredible/ inconsequential procedures.

Substantiated allegation of abuse of authority: Ordered the promotion 
of subordinates, and attempted to influence the results of a promotion 
board; Action taken: Retired before the investigation took place. Case 
closed under noncredible/inconsequential procedures.

Substantiated allegation of abuse of authority: Improperly directed a 
soldier's removal from unit training; Action taken: Memorandum of 
admonition from Vice Chief of Staff of the Army.

Substantiated allegation of abuse of authority: Misused aircraft for 
personal business; failed physical fitness test; abused subordinates; 
Action taken: Memorandum of reprimand from the Vice Chief of Staff of 
the Army filed in official military personnel file. Individual never 
received federal recognition.

Substantiated allegation of abuse of authority: Improperly directed an 
officer's relief from command and coerced individual into resigning; 
Action taken: Letter of reprimand from the state Adjutant General.

Substantiated allegation of abuse of authority: Improperly directed an 
officer's relief from command and coerced individual into resigning; 
Action taken: Letter of reprimand from the state Adjutant General.

Substantiated allegation of abuse of authority: Failed to take a 
required physical fitness test; diverted an aircraft from its flight 
plan for personal business; Memorandum of reprimand from the Vice 
Chief of Staff of the Army filed in official military personnel file.

Substantiated allegation of poor judgment: Failed to take a required 
physical fitness test, and did not verify the accuracy of the height 
and weight entries on efficiency report; Memorandum of concern from 
the Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Failed to comply with 
physical fitness test requirements; Action taken: Memorandum of 
reprimand from the Vice Chief of Staff of the Army filed in official 
military personnel file.

Substantiated allegation of poor judgment: Conduct disrespectful 
toward a superior officer; Action taken: Retired. Case closed under 
noncredible/inconsequential procedures.

Substantiated allegation of poor judgment: Used guard employees to 
support a community project; Action taken: Case disposed of in 
accordance with noncredible/inconsequential procedures.

Substantiated allegation of poor judgment: Used National Guard unit 
patch in a commercial endeavor; Action taken: Memorandum of concern 
from the Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Failed to take a required 
physical fitness test; Action taken: Memorandum of concern from the 
Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Drunk in a public place; 
operated a vehicle in a drunken and reckless manner; Action taken: 
Memorandum of reprimand from the Vice Chief of Staff of the Army filed 
in official military personnel file.

Substantiated allegation of poor judgment: Used military aircraft for 
travel in violation of DOD and Army guidance; Action taken: Retired. 
Case closed under noncredible/inconsequential procedures.

Substantiated allegation of poor judgment: Used names and addresses of 
guard members in an advertising campaign; Action taken: Memorandum of 
concern from the Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Wore uniform after 
retiring; Action taken: Retired. Case closed under noncredible/
inconsequential procedures.

Substantiated allegation of poor judgment: Misused government 
resources for a private social function; Action taken: Memorandum of 
concern from the Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Failed to take a required 
physical fitness test; Action taken: Retired. Case closed under 
noncredible/inconsequential procedures.

Substantiated allegation of poor judgment: Coerced guard members to 
join the National Guard Association; Action taken: Memorandum of 
concern from the Vice Chief of Staff of the Army.

Substantiated allegation of poor judgment: Used position to facilitate 
employment of a family member by a civilian contractor supporting a 
DOD contract; Action taken: Verbal counseling by the state Assistant 
Adjutant General.

Substantiated allegation of poor judgment: Allowed smoking in a 
federal building; Action taken: Unknown.

Substantiated allegation of poor judgment: Failed to meet height, 
weight, and fitness standards; Action taken: Unknown.

Substantiated allegation of poor judgment: Wore uniform of a brigadier 
general when only a lieutenant colonel. Individual had been appointed 
as Deputy Adjutant General but had not been federally recognized;
Action taken: Case closed under noncredible/inconsequential procedures.

Substantiated allegation of poor judgment: Coerced guard members to 
join the National Guard Association; Action taken: Memorandum of 
concern from the state Adjutant General.

Substantiated allegation of poor judgment: Smoked in a military 
vehicle; conduct unbecoming an officer; false statements to an 
Inspector General; Action taken: Letter of reprimand from the 
Director, Army National Guard.

Substantiated allegation of poor judgment: Failed to take a required 
physical fitness test; Action taken: No action taken.

Substantiated allegation of poor judgment: Improperly administered the 
Army weight control and physical fitness test programs; Action taken: 
No action taken.

Coerced guard members to join the National Guard Association; Action 
taken: Verbal counseling from the state Adjutant General. Counseling 
not recorded in official military personnel files.

Substantiated allegation of poor judgment: Condoned the promotion of 
one soldier over another who was in a higher position on the 
promotion list; Action taken: No action taken.

Substantiated allegation of poor judgment: Improper relationships with 
subordinate civilian employees, military officers, and noncommissioned 
officers; Action taken: Retired and name removed from promotion list. 

Sources: DOD (data) GAO (analysis).

[End of table]

[End of section]

Appendix V: Federal Protections for National Guard Whistleblowers:

Background:

Federal protections for National Guard whistleblowers are limited by 
the dual federal-state status of the guard. Federal protections apply 
only to guard members who are in federal duty or training status; these 
protections derive from the military whistleblower statute (10 U.S.C. § 
1034), DOD directives, and Inspector General guidance. Federal 
protections do not apply to guard members who are in state active duty 
status; their protections, if any, derive from state law.

The military whistleblower protection statute requires the DOD 
Inspector General to expeditiously investigate a whistleblower's 
allegations of reprisal that it receives within 60 days of the service 
member's initial awareness of an adverse action. If an investigation 
cannot be completed within 90 days of the receipt of the allegation the 
Inspector General is to notify the Secretary of Defense and the member 
about the reason and the expected date of the report. The Inspector 
General then submits the results of an investigation to the Secretary 
of Defense, the service secretary, and the service member.

The law also allows the service Board for the Correction of Military 
Records to review the results of the investigation in considering a 
service member's request for correction of records. Furthermore, the 
law permits the service member to appeal to the Secretary of Defense 
the final disposition of the service secretary's decision concerning 
the correction of records.

Since 1988, Congress has strengthened military whistleblower 
protections by:

* prohibiting the use of mental health evaluations as reprisals against 
whistleblowers that make protected disclosures (1992);

* protecting communications not only to a Member of Congress or an 
Inspector General but also to a member of a DOD audit, inspection, 
investigation, or law enforcement organization, and certain other 
designated persons; and requiring the DOD Inspector General to ensure 
that the investigating service Inspector General is outside the 
immediate chain of command of both the whistleblower and the individual 
alleged to have taken the retaliatory action; and incorporating under 
the protection act allegations of sexual harassment and unlawful 
discrimination (1994);

* extending authority to services' Inspector General to grant 
whistleblower protection for reprisal allegations presented directly to 
them by service members (service members were no longer required to 
submit allegations directly with the DOD Inspector General) (1998).

Effectiveness of Federal Protection for Guard Whistleblowers Rests on 
Two-Stage Investigation and Approval Process by DOD Inspector General:

The effectiveness of the federal protection for military and guard 
whistleblowers rests principally on a two-stage process of 
investigation and administrative review. The first stage involves a 
DOD, service, or guard Inspector General's investigation of the 
specific facts and interpretation of issues associated with a reprisal 
allegation. In the second stage of the investigation/administrative 
review process, the DOD Inspector General reviews and approves the 
findings of the service or guard Inspectors General. This review offers 
assurance that the findings and recommendations were made in compliance 
with applicable investigatory guideless and legally sufficient. As an 
overall observation, under this process, Inspectors General interpret 
issues associated with whistleblowing on an allegation-by allegation 
basis without relying on published guidance from past similar 
allegations and decisions. In contrast, decisions made under the 
civilian whistleblower protection statutes rely on published case law.

Stage One: Inspectors General's Investigation and Interpretation of 
Issues:

Every reprisal allegation made by a guard member is examined and, if 
warranted,[Footnote 19] investigated by an Inspector 
General.Investigations are conducted to determine the validity of a 
reprisal allegation. To be valid, the allegation must meet the 
following criteria: (1) the communication was protected, (2) the 
personnel action was unfavorable, (3) the personnel action occurred 
after the protected communication took place,[Footnote 20] (4) 
management knew about the protected communication before taking action, 
and (5) management would not have taken the personnel action in the 
absence of a protected communication. In our review of 122 allegations 
that covered the period 1997 to 2002, we found that Inspectors General 
did not substantiate 98 of the allegations (80 percent). Below, we 
discuss variances to the five criteria that raised interpretative 
issues for Inspectors General, guard whistleblowers and guard 
management in some of the investigations we reviewed.[Footnote 21]

Communications Were Not Protected:

Our review showed that Inspectors General did not substantiate four 
National Guard members' reprisal allegations, at least in part, because 
investigators found that their disclosures were not protected by 
statute. The military whistle-blower protection statute recognizes two 
types of protected communications. First, a protected communication is 
any lawful communication to a Member of Congress or an Inspector 
General; it does not have to disclose wrongdoing. Second, a protected 
communication also is a disclosure that a member of the military 
reasonably believes constitutes evidence of a violation of law or 
regulation, including a law or regulation prohibiting sexual harassment 
or unlawful discrimination; gross mismanagement; a gross waste of 
funds; an abuse of authority; or a substantial and specific danger to 
public health or safety.[Footnote 22] Such disclosures can be made only 
to any of the following: [Footnote 23] a Member of Congress; an 
Inspector General; a member of a DOD audit, inspection, investigation, 
or law enforcement organization; or any other person or organization, 
including any person in the chain of command designated under 
regulations or established administrative procedures to receive such 
communications.

In some of the allegations we examined, guard members made disclosures 
that were not protected for a variety of reasons. For example, in one 
situation a guard member made a disclosure to the "officer in charge," 
but this officer was outside the chain of command. In other words, he 
did not have administrative, disciplinary or mission responsibility 
associated with command, and he was not designated under regulations to 
receive protected communications. In another example, a guard member 
alleged wrongdoing in testimony before the Merit Systems Protection 
Board (a federal civilian agency that, among other functions, 
adjudicates whistleblower cases), and subsequently alleged reprisal for 
having done so. However, because of the military whistleblower 
statute's limitation on who can receive a protected disclosure, a 
disclosure in a federal civilian investigation is not protected. In a 
third example, a guard member alleged wrongdoing to a state ethics 
board, but disclosure to a state agency is also not protected by the 
military whistleblower protection act. And in a fourth example, an 
Inspector General rejected the argument by a guard whistleblower that 
audit work, by itself, is a protected disclosure. The Inspector General 
noted "we do not consider every document prepared by a DOD auditor . . 
. . to constitute a protected communication even if such work should 
contain disclosures of wrongdoing." The inspector further noted that 
the military whistleblower protection statute "was not intended to 
shield members of a DOD audit organization from the unfavorable 
personnel actions that might legitimately be taken because of deficient 
performance.":

Personnel Actions Were Not Unfavorable:

Our review also showed that at least four reprisal allegations were not 
substantiated because an Inspector General did not consider the 
personnel action that was being contested to be unfavorable. The DOD 
directive on military whistleblower protection describes an unfavorable 
personnel action as "any action taken on a member of the Armed Forces 
that affects or has the potential to affect that military member's 
current position or career." For some of the cases we reviewed, 
unfavorable personnel actions included suspension of a security 
clearance, withdrawal of a promotion nomination, a letter of reprimand, 
an adverse officer evaluation report, improper restriction of flying 
hours, improper referral for mental health evaluation, and involuntary 
retirement.

In the first example, an Inspector General concluded that being placed 
on paid administrative leave (nonduty status with pay) was not an 
adverse personnel action: the whistleblower's personnel record would 
not reflect nonduty status, and this action would not have any future 
impact on promotion or reassignment. In the second example, an 
Inspector General found that reassignment was not per se an unfavorable 
personnel action: Guard management was well within its authority to 
move personnel for the needs of the organization and the morale and 
welfare of a group, such reassignments are "not uncommon." A guard 
whistleblower alleged in the third example that guard management had 
retaliated against him by restricting him in writing to using the chain 
of command to make a protected communication. An Inspector General 
dismissed the allegation: the guard management's letter had not 
actually restricted the guard member to using the chain of command, but 
had only suggested that he do so when management wrote to the member, 
"Let me encourage you to express your interests and concerns through 
your direct chain of command . . . .always do your best to try to find 
solutions within your unit of assignment." In the fourth example, an 
Inspector General found that a "satisfactory" personnel evaluation is 
not per se unfavorable, but the Judge Advocate General who reviewed 
this finding for legal sufficiency disagreed, noting that a 
satisfactory rating that followed "excellent" and "superior" ratings 
ought to be considered an unfavorable personnel action.

Unfavorable Personnel Actions Were Made Before a Protected Disclosure:

We reviewed 10 guard cases in which an Inspector General did not 
substantiate a reprisal allegation, in whole or in part, because guard 
management was in a variety of ways preparing to take or had initiated 
an unfavorable personnel action before a guard member's protected 
disclosure was made. Logically, if guard management took an unfavorable 
personnel action against a guard member before the member made a 
protected disclosure, management could not be found to have retaliated 
against the member. At issue, however, is when management first 
considered, contemplated, or decided to take an unfavorable personnel 
action and whether that has the same legal meaning as actually "taking" 
such an action.[Footnote 24]

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

Guard Management Did Not Know about a Protected Disclosure Before 
Taking an Unfavorable Personnel Action:

We reviewed four cases (seven reprisal allegations) in which guard 
management did not know about a guard member's protected disclosure 
before taking an unfavorable personnel action against that individual. 
The DOD Inspector General's guidance cautions investigators, "if the 
evidence is insufficient to determine who knew what and when, give the 
benefit of the doubt to the complainant and proceed with the 
investigation." The guidance also notes that suspicion, belief, or 
knowledge of rumors of a protected communication by a responsible 
management official are sufficient for proceeding with the 
investigation. In general, the deciding factor in these four cases was 
whether whistleblowers could provide sufficient evidence in support of 
their assertion that management knew about a disclosure before taking 
an unfavorable personnel action.

Whether management knew about a protected disclosure cannot always be 
easily established. In one example of this issue, investigators decided 
that guard management knew that someone had made a protected disclosure 
and that management "had reason to believe" that a specific guard 
member made one, thus giving the benefit of the doubt to the 
whistleblower. However, the Inspector General did not substantiate the 
reprisal allegation on other grounds; guard management had determined 
to take a personnel action "well in advance" of the whistleblower's 
protected communication.

Guard Management Would Have Taken the Same Course of Action in the 
Absence of a Protected Disclosure:

While the first four criteria are associated with a guard 
whistleblower's reprisal allegation, for the fifth criterion guard 
management must establish by a preponderance of evidence that it would 
have taken the action it did even if the whistleblower had not made or 
prepared a protected communication.

Inspectors General consider five variables when assessing the validity 
of management's assertion:[Footnote 25]

* Reason(s) stated by guard management for taking, withholding, or 
threatening the action.

* Reasonableness of the action(s) taken, withheld, or threatened 
considering a guard member's performance and conduct.

* Consistency of guard management's actions with past practice.

* Motive of guard management for deciding, taking, or withholding a 
personnel action.

* Procedural correctness of the action.

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

Stage Two: Review and Approval of Whistleblower Reprisal Investigations 
by DOD's Inspector General:

The military whistleblower protection statute provides whistleblowers 
with a guarantee that the findings of a reprisal investigation will be 
reviewed and approved by the DOD Inspector General. Specifically, the 
statute requires the DOD Inspector General to (1) review a military 
service's Inspector General's decision to terminate a reprisal inquiry 
for lack of sufficient evidence[Footnote 26] and (2) approve of the 
results of all whistleblower investigations, regardless of who 
conducted the investigation.[Footnote 27]

The DOD Inspector General's review and approval of all investigation 
results is an important protection because a military whistleblower, 
including a National Guard member, cannot appeal on the same basis as a 
civilian complainant to a federal appeals court under the military 
whistleblower protection statute.[Footnote 28] In order to gauge the 
significance of this protection, we reviewed 19 allegations in which 
Inspectors General disagreed with each other on a variety of 
issues.[Footnote 29] In particular, eight reprisal allegations in three 
investigations underscore the significant differences between 
Inspectors General in their interpretations of certain issues.

* Sanctity of chain of command--In one example, the Army Inspector 
General preliminarily found that guard management (brigadier general) 
did not retaliate against a guard whistleblower. The DOD Inspector 
General disagreed, stating that its investigation "clearly determined" 
that the guard whistleblower was reprised against "to a degree rarely 
seen in our years of conducting this form of investigation." The Army 
countered, stating that the guard whistleblower "was seeking refuge 
under the [military whistleblower protection statute] to avoid being 
disciplined by a chain of command not satisfied with his performance . 
. . ." Senior Army management concurred with the DOD Inspector General 
and gave the brigadier general a letter of reprimand reminding him that 
"your concern for a member of your staff 'jumping' the chain of command 
is inappropriate in this situation and indicates a lack of knowledge on 
the use and role of the [Inspector General] system" (i.e., any 
disclosure made to an Inspector General, no matter its content, is 
protected by statute).

* Interpretation of evidence--In a second example, a state National 
Guard Inspector General substantiated six reprisal allegations by a 
guard whistleblower, including an improper referral for a mental health 
examination. However, the Air Force Inspector General ruled that there 
was insufficient evidence to substantiate the allegations, and the DOD 
Inspector General concurred. The state Inspector General discounted the 
whistleblowers' health issues (treatment for alcoholism and depression) 
because they were "common knowledge" to the individual's "local 
supervisors," and substantiated the mental health reprisal allegation 
because evidence showed guard management was increasingly exasperated 
with dealing with someone who complained a lot. In contrast, the Air 
Force noted that the "evidence is overwhelming" that the guard 
whistleblower's "mental state [mood swings] had so deteriorated" that 
"any reasonable commander" would have made a mental health referral.

* Quality of investigation--In a third example, a state National Guard 
Inspector General did not substantiate a guard whistleblower's three 
reprisal allegations, but the Army Inspector General considered the 
original and subsequent amended investigation deficient, although it 
too did not substantiate the allegations. The DOD Inspector General 
reviewed the investigation and informed the Army that the state 
Inspector General had not properly framed the reprisal allegations; 
interviews with responsible management officials were "leading and 
superficial" and "worthless as credible evidence;" and the investigator 
"did not obtain a preponderance of evidence" to support the finding 
that "responsible management officials did not take the unfavorable 
actions in reprisal." The DOD Inspector General first requested and 
then withdrew its request that the case be reinvestigated, deciding 
instead to "complete the additional investigation and ensure" that the 
guard whistle-blower's "allegations are fully addressed." The DOD 
Inspector General subsequently substantiated two of the three reprisal 
allegations.

Inspectors General Have Not Compiled an Authoritative Record of their 
Interpretations of Whistleblower Issues:

Unlike the military, the civilian whistleblower process has developed 
and published a body of authoritative interpretation of issues. For 
example, in response to reprisal allegations by civilian federal 
employees, the civilian process (the Merit System Protection Board and 
the U.S. Court of Appeals for the Federal Circuit) has considered the 
question, "When is a disclosure protected by statute?" As an answer, 
the Federal Circuit determined that certain disclosures may not be 
protected if they are directed at the alleged wrongdoer [Horton v. 
Department of Navy, 66 F. 3d 279 (Fed Cir. 1995)]; made to a supervisor 
as part of the performance on one's job duties [Willis v. Department of 
Agriculture, 141 F. 3d 1139 (Fed Cir. 1998)]; and made about 
information that is "publicly known" [Meuwissen v. Department of 
Interior, 234 F. 3d 9 (Fed. Cir. 2000)].

An advantage of a publicly documented record of interpretation of 
issues, such as the meaning of a protected disclosure, is that it can 
serve as the basis for amending the civilian whistleblower protection 
statutes. For example, congressional reaction to so-called "judicially 
created exceptions" [Footnote 30] formed the basis of an unsuccessful 
attempt in the 107th Congress to amend the civilian statute. The 
amendment, if enacted, would have covered the disclosure of information 
"without restriction to time, place, form, motive or context, or prior 
disclosure made to any person by an employee or applicant, including a 
disclosure made in the ordinary course of an employee's duties . . . 
.":

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

Military Services Took Administrative Action in Most Substantiated 
Whistleblower Reprisal Investigations:

The limited jurisdiction of the federal government over National Guard 
officials means that it cannot order the state Adjutant General to take 
administrative action against guard management officials who retaliate, 
or take corrective action on behalf of whistleblowers. However, the 
Army and Air Force can take administrative action against military 
members of the guard, and service boards for the correction of military 
records can recommend to service secretaries corrective action for 
guard whistleblowers. None of the whistleblower protection statutes 
meaningfully apply to civilian federal employees of the guard.

Eleven of the 60 investigations we reviewed resulted in at least one 
substantiated allegation of reprisal. We determined that the military 
services or state National Guard took administrative action against 
guard officials after completing seven of these 
investigations.[Footnote 31] In one investigation, the Army declined to 
take action against two guard officials who retaliated against a guard 
member by including unfavorable comments on the individual's evaluation 
report, even though the rating itself was favorable. In five 
investigations, a military service or state guard issued letters of 
reprimand. In one investigation, a guard official was verbally 
counseled, and in another investigation, a guard management official 
was removed from consideration for promotion, and two officials were 
"given an opportunity to retire.":

Among all National Guard whistleblowers, federal civilian employees of 
the National Guard (technicians) [Footnote 32] face the most difficult 
jurisdictional and corrective action issues. They are not protected 
from reprisal by the military whistleblower protection statute because, 
as civilians, it does not apply to them.

Civilian guard technicians who allege reprisal for making a protected 
disclosure face at least two "severe and significant restrictions" 
according to a decision by the U.S. Court of Appeals for the Federal 
Circuit [Singleton v. Merit Systems Protection Board, 244 F. 3d 1331 
(Fed. Cir. 2001)]. First, some adverse actions (for example, 
suspension, furlough without pay, reduction in rank, or compensation) 
against civilian technicians cannot be appealed to the Merit Systems 
Protection Board.[Footnote 33] Second, adverse actions not covered by 
the guard technicians act can be appealed to the Merit Systems 
Protection Board, but the appeal is meaningless because of the board's 
limited enforcement powers. The Board has determined that its orders 
are not enforceable against state National Guards, and for that reason, 
the Board is without power to supply an effective remedy even in the 
instance of a federal employee who can prevail on the merits of a 
civilian whistleblower protection act claim.

[End of section]

Appendix VI: Comments from the Department of Defense:

RESERVE AFFAIRS:

ASSISTANT SECRETARY OF DEFENSE 1500 DEFENSE PENTAGON WASHINGTON, DC 
20301-1500:

Mr. Derek B. Stewart:

Director, Defense Capabilities Management U. S. General Accounting 
Office Washington, D. C. 20548:

Dear Mr. Stewart:

This is the Department of Defense (DoD) response to the GAO draft 
report GAO-04-258, "MILITARY PERSONNEL: Information on Selected 
National Guard Management Issues," GAO Code 350378 (formally GAO Codes 
350221, 350242, 350284 and 350285). I appreciate 
the opportunity to review and comment on the draft GAO report.

We concur with the GAO report as written. We have no specific comments/
concerns on recommendations, since GAO made no specific recommendations 
in the report.

Technical changes that were identified by reviewers will be forwarded 
to the GAO staff separately.

Signed for: 

T. F. Hall

[End of section]

FOOTNOTES

[1] We identified problems with the Army National Guard's personnel 
strength reporting in U.S. General Accounting Office, Military 
Personnel Strengths in the Army National Guard, GAO-02-540R 
(Washington, D.C.: Mar. 12, 2002).

[2] Senior officers are defined as those at the rank of colonel and 
general.

[3] Adjutants General are appointed by their respective governors (but 
are elected by popular vote in South Carolina, elected by the 
legislature in Vermont, and appointed by the President in the District 
of Columbia).

[4] The U.S. Constitution, article I, section 8, provides Congress with 
the power to organize, arm, discipline, and govern (when in federal 
status) the National Guard and reserves to the states the appointment 
of officers and the authority to train the guard according to the 
discipline prescribed by Congress. 

[5] Pub. L. No. 107-314, § 511(a), 116 Stat. 2458, 2536-37.

[6] See GAO-02-540R.

[7] We last reviewed federal protections for military whistleblowers in 
U.S. General Accounting Office, Whistleblower Protection: Continuing 
Impediments to Protection of Military Members (GAO/NSIAD-95-23, Feb. 2, 
1995). 

[8] See 5 U.S.C. chapters 12 and 23. We reviewed the government's 
processing of whistleblower reprisal complaints under these statutes in 
U.S. General Accounting Office, Whistleblower Protection: Determining 
Whether Reprisal Occurred Remains Difficult (GAO/GGD-93-3, Oct. 27, 
1992).

[9] See GAO-02-540R.

[10] The Constitution specifies the appointment of officers in the 
militia. The National Guard is that component of the militia trained by 
the states. 10 U.S.C. § § 101(c); 311; and 10107.

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

[12] National Guard Regulation (AR) 600-100; Commissioned Officers-
Federal Recognition and Related Personnel Actions, Apr. 15, 1994; 
National Guard Regulation (AF) 36-1; Federal Recognition of General 
Officer Appointments and Promotion in the Air National Guard of the 
United States and as a Reserve of the Air Force, Mar. 8, 1993; and 
National Guard Regulation (AF) 36-3; Federal Recognition Boards for 
Appointment or Promotion in the Air National Guard below General 
Officer, May 28, 1993.

[13] DOD Instruction 1320.4; Military Officer Actions Requiring 
Approval of the Secretary of Defense or the President, or Confirmation 
by the Senate. Mar. 14, 1995.

[14] DOD Instruction 1320.4; Military Officer Actions Requiring 
Approval of the Secretary of Defense or the President, or Confirmation 
by the Senate. Mar. 14, 1995.

[15] See generally Solorio v. U.S., 483 U.S. 435 (1987); 10 U.S.C. § 
12405.

[16] See DOD Directive 5505.6, Investigations of Allegations Against 
Senior Officials of the Department of Defense, July 12, 1991.

[17] Air Force Instruction 90-301, Inspector General Complaints, Jan. 
30, 2001, and Army Regulation 20-1, Inspector General Activities and 
Procedures, Mar. 29, 2002.

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

[19] As noted, no investigation is required when a complaint is made to 
an Inspector General more than 60 days after a member of the military 
became aware of the personnel action at issue. According to a DOD 
Inspector General official, the Inspector General extends the filing 
deadline to 120 days in most cases.

[20] The DOD Inspector General's guidance to investigators does not 
make this a separate criterion, but investigators determine the timing 
of a protected communication.

[21] In military whistleblower investigations the evidentiary standard 
is preponderance of evidence, which means that the evidence that the 
investigator must determine is of greater weight or more convincing 
than the evidence presented in opposition to it.

[22] Some of the subjects of a protected disclosure are substantially 
the same as those in the civilian whistleblower protection statute [5 
U.S.C. § 1213 (a) (1)].

[23] 10 U.S.C. § 1034 (b)(1)(A) and (B). 

[24] The DOD Inspector General's guidance instructs investigators to 
verify the date the "responsible management official first contemplated 
taking the action or decided to take, withhold, or threaten the 
personnel action." According to DOD Inspector General officials, the 
mere contemplation of action before a disclosure, without 
collaboration, should not stop a reprisal allegation from being further 
investigated.

[25] In cases involving federal civilian employees, the Merit Systems 
Protection Board has considered similar variables: (1) strength of 
evidence in support of personnel action; (2) existence and strength of 
any motive to retaliate; and (3) evidence that agency takes similar 
actions against employees who are not whistleblowers, but who are 
otherwise similarly situated. (Yunus v. Department of Veterans Affairs, 
Merit Systems Protection Board, 84 M.S.P.B. 78, 1999). In civilian 
cases, management must prove by clear and convincing evidence that it 
would have taken a personnel action regardless of a protected 
disclosure. Clear and convincing evidence requires a degree of proof 
more demanding than preponderance but less than the "beyond a 
reasonable doubt" required in criminal cases.

[26] 10 U.S.C. § 1034 (c)(3)(C).

[27] 10 U.S.C. § 1034 (c)(3)(E).

[28] In Acquisto v. United States, 70 F. 3d 1010 (8th Cir. 1995), the 
court decided that the military whistleblower protection statute 
provides strictly administrative remedies and therefore does not afford 
plaintiffs an independent cause of action. A Guard member could appeal 
an Inspector General's finding to a service board for the correction of 
military records, and finally to the Secretary of Defense [10 U.S.C. § 
1034(f) and (g)]. Title 5 U.S.C. § 7703, on the other hand, provides 
authority for a civilian whistleblower to appeal adverse decisions by 
the Merit Systems Protection Board to federal court.

[29] These 19 allegations were in 8 of the 60 investigations we 
reviewed.

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

[31] The DOD Inspector General considers one investigation as "open" 
and was not able to provide information on two investigations.

[32] A technician's employment, use, and status are defined by 32 
U.S.C. § 709. 

[33] The Federal Circuit noted in Singleton, that the guard technicians 
act provides, "notwithstanding any other provision of law" (including 
the civilian whistleblower protection statutes), a technician's right 
of appeal to an adverse personnel action, as enumerated in the 
technicians act, "shall not extend beyond the adjutant general of the 
jurisdiction concerned." Consequently, the Federal Circuit observed 
"when it comes to protection under the [civilian whistleblower 
protection statutes] the [Guard technicians act] by its clear terms 
bars a technician from federal appeal rights under [the civilian 
whistleblower protection statutes] when the adverse action is one of 
those enumerated in the [Guard technicians] statute." 

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