Report to Congressional Committees 

United States General Accounting Office 

GAO 

December 2003 MILITARY 

PERSONNEL 

Information on 

Selected National 

Guard Management 

Issues 

GAO-04-258 
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 . 

Highlights of GAO-04-258, a report to 

congressional committees 

December 2003

MILITARY PERSONNEL

Information on Selected National Guard 

Management Issues 

The Army National Guard and the Air National Guard have effective systems 

in place for identifying and removing nonparticipating members when 

appropriate. By placing greater attention on the accuracy of end-strength 

reports the Army National Guard has reduced the number of 

nonparticipating soldiers (so-called “ghost soldiers”) on its rolls to less than 

1 percent of end strength. The Air National Guard has not placed the same 

degree of command emphasis on the issue, but under existing procedures 

the guard had a nonparticipation rate of 1.6 percent as of July 30, 2003. 

The Federal Recognition Examination process has an effective set of checks 

and balances that provide a reasonable assurance that senior National Guard 

officers who are promoted by their state are federally qualified for their 

grade and position, and moreover, that any significant issues relating to their 

leadership potential or moral character are disclosed. Our analysis of past 

board examinations showed that about 7 percent of Army National Guard 

officers and about 3 percent of Air National Guard officers examined for 

recognition as generals were denied recognition because they were found 

not qualified or had conduct issues. This would seem to indicate that 

information relating to the officers’ leadership potential or moral character 

is disclosed. 

The Army National Guard and the Air National Guard have established 

effective processes for taking action against senior National Guard officers 

(colonels and generals) involved in misconduct cases. Specifically, most 

officers found guilty of misconduct are punished. For example, 57 of 76 

officers in our review received some administrative action ranging from a 

letter of reprimand to verbal counseling; 3 resigned or retired at the request 

of their commanders; and only 6 had no action taken against them. The 

remaining 10 cases were closed under special Army procedures used 

primarily in cases involving inconsequential allegations in which the officers 

involved had already retired. 

The effectiveness of the federal protection for military and National Guard 

whistleblowers rests principally on a two-stage process of investigation and 

administrative review. The first stage involves a service or guard Inspector 

General’s investigation of the specific facts and interpretation of issues 

associated with a reprisal allegation. In the second stage of the 

investigation/administrative review process, the Defense Department’s 

Inspector General reviews and approves the findings of the service or guard 

Inspectors General. For the reprisal allegations that GAO reviewed, the 

military services took some disciplinary action against most guard 

management officials who had retaliated against guard members. However, 

federal whistleblower protection does not meaningfully apply to civilian 

federal employees (“technicians”) of the guard. 

DOD concurred with our report. 

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. 
Page i GAO-04-258 Military Personnel 

Letter 1

Results in Brief 2

Agency Comments and Our Evaluation 5

Appendix I Scope and Methodology 7 

Appendix II National Guard and Reserve Components Personnel 

Strengths 11 

Appendix III Federal Recognition Process for Recently Promoted 

Senior Officers 16 

Appendix IV National Guard Senior Officer Misconduct Cases 21 

Appendix V Federal Protections for National Guard 

Whistleblowers 31 

Appendix VI Comments from the Department of Defense 43 

Tables 

Table 1: Assigned Army National Guard Members Not Paid for 

Inactive Duty Training for 3 and 7 Months, September 30, 

2000-July 30, 2003 13

Table 2: Number of Reserve Component Members Not Paid for 7 or 

More Months, July 2003 15

Table 3: Examples of Eligibility Requirements for Appointment as a 

General Officer in the Army and Air National Guards 17

Table 4: Disposition of Applicants (Promotion to General and 

Colonel) Reviewed by Army and Air National Guard 

Federal Recognition Boards 20

Contents 
Page ii GAO-04-258 Military Personnel 

Table 5: Number of Senior Officers Involved in Substantiated Cases 

of Misconduct in the Army and Air National Guards, by 

Officer Category, from January 1997 through December 

2001 23

Table 6: Number of Substantiated Misconduct in Army and Air 

National Guard Investigations, by Type of Misconduct, 

Closed from January 1997 through December 2001 24

Table 7: Number of Actions Taken in Senior National Guard Officer 

Misconduct Incidents, by Type of Action, Closed from 

January 1997 through December 2001 25

Table 8: Summary of Inspector General Investigations Involving 

Substantiated Allegations of Wrongdoing by Senior 

Officers, January 1, 1997, through December 31, 2001 26

Abbreviations 

DOD Department of Defense 

GAO General Accounting Office 

This is a work of the U.S. government and is not subject to copyright protection in the 

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Page 1 GAO-04-258 Military Personnel 

December 2, 2003 

Congressional Committees 

In the past few years, the nation’s media have focused public attention on 

a series of misconduct and mismanagement issues within the Army 

National Guard and the Air National Guard. Among these issues are 

allegations that the National Guard has inflated guard member strengths 

with absent or so-called “ghost” soldiers;1

 has promoted unfit officers; has 

been reluctant to punish senior National Guard officers2

 for misconduct; 

and has condoned retaliation against guard members who report 

wrongdoing (whistleblowers). The Department of Defense’s (DOD) ability 

to take action in these matters is complicated by the fact that the National 

Guard has a dual state-federal status. Under state status, the National 

Guards in each of the 50 states, the District of Columbia, and three 

territories (Puerto Rico, Guam, and Virgin Islands) provide emergency 

relief support during natural disasters, search and rescue operations, and 

civil defense crises, among other missions. In each jurisdiction, the guard 

is under the command of the governor of the state and the governor’s 

principal deputy for guard administration—the state adjutant general.3

When guard members are conducting state operations, they are under 

state authority. Under federal status,4

 the National Guard’s mission is to 

maintain well-trained, well-equipped units that can be mobilized promptly 

during national emergencies and wartime. During these times, guard 

members are under federal authority. This dual status sometimes creates 

jurisdiction and control issues. 

 1

We identified problems with the Army National Guard’s personnel strength reporting in 

U.S. General Accounting Office, Military Personnel Strengths in the Army National 

Guard, GAO-02-540R (Washington, D.C.: Mar. 12, 2002). 

2

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

3

Adjutants General are appointed by their respective governors (but are elected by popular 

vote in South Carolina, elected by the legislature in Vermont, and appointed by the 

President in the District of Columbia). 

4

The U.S. Constitution, article I, section 8, provides Congress with the power to organize, 

arm, discipline, and govern (when in federal status) the National Guard and reserves to the 

states the appointment of officers and the authority to train the guard according to the 

discipline prescribed by Congress. 

United States General Accounting Office

Washington, DC 20548 
Page 2 GAO-04-258 Military Personnel 

As part of the Bob Stump National Defense Authorization Act for Fiscal 

Year 2003,5

 Congress directed us to examine four issues related to the 

management of the National Guard. In this report, we assess the 

effectiveness of (1) the procedures that the Army National Guard and the 

Air National Guard have established and implemented to deal with service 

members who stop attending required training (information on 

nonparticipation rates in the reserve components is also provided in 

appendix II); (2) the procedures that the National Guard uses for federally 

recognizing state promotions of senior National Guard officers; (3) the 

process that the National Guard uses for disciplining senior officers who 

are guilty of misconduct; and (4) the federal protections for National 

Guard members or employees who report allegations of waste, fraud, 

abuse, or mismanagement (whistleblowers) and the extent to which 

disciplinary action is taken against those in the National Guard who 

retaliate against whistleblowers. 

To conduct our reviews of the four issues, we interviewed officials from a 

variety of military offices, including the National Guard Bureau, the Army 

National Guard, the Air National Guard, the Army and Air Force Chiefs of 

Staff, and the DOD, Army, and Air Force Inspectors General. We also 

examined relevant guidance, regulations, instructions, and legal decisions, 

and we collected and analyzed quantitative data for the sections on 

nonparticipation rates within the guard, senior officer misconduct, and 

whistleblower protections. A detailed description of our scope and 

methodology for the four issues is presented in appendix I. We conducted 

our review from May through December 2003 in accordance with generally 

accepted government auditing standards. 

The Army National Guard and the Air National Guard have systems in 

place that are effective in identifying and removing nonparticipating 

members when appropriate. The Army National Guard is paying greater 

attention to the accuracy of personnel strength reports than it did when 

we reported 2 years ago, and by using existing administrative procedures, 

it has reduced the number of nonparticipating soldiers (so-called “ghost 

soldiers”) on its rolls to less than 1 percent.6

 The existing procedures 

involve identifying soldiers who have not been paid for the previous 3 

months of training and encouraging unit managers to resolve their status 

 5

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

6

See GAO-02-540R. 

Results in Brief 
Page 3 GAO-04-258 Military Personnel 

in a timely manner. The Air National Guard has not placed the same 

degree of command emphasis on the problem as the Army National Guard 

has but, in general, the routine administrative procedures that the Air 

Guard uses to process nonparticipating members appear effective. As of 

July 30, 2003, the Air National Guard had a nonparticipation rate of 1.6 

percent. According to Air Guard personnel officials, the Air Guard is 

currently over strength, so units have little motivation to retain members 

who do not attend required training. A detailed discussion of this issue is 

presented in appendix II. 

The effectiveness of the Federal Recognition Examination process rests 

on a system of checks and balances that provide a reasonable assurance 

that senior National Guard officers who are promoted by their state are 

federally qualified for their grade and position and, moreover, that any 

significant issues relating to their leadership potential or moral character 

are disclosed. These checks and balances include (1) an examination by a 

senior-level review board that is independent of the guard organization 

that submitted the nomination, (2) a stringent background investigation 

for those nominated to Army and Air National Guard general officer and 

Air Guard colonel positions, (3) a DOD policy that requires the relevant 

military department to disclose any adverse information uncovered on 

general officer nominees during presidential approval and Senate 

confirmation proceedings, and (4) active management of the process by 

the National Guard Bureau and the offices of the Army and Air Force 

Chiefs of Staff. While we did not examine specific judgments reached by 

the boards, Army and Air Force data show that these checks and balances 

ensure that pertinent information on each candidate is available to the 

board. For example, our examination of past board proceedings found that 

about 7 percent of Army Guard general officer candidates were found to 

be not qualified by experience or conduct and about 3 percent of Air 

Guard general officer candidates were found to be not qualified by 

experience or conduct. Detailed information on this issue is presented in 

appendix III. 

The Army National Guard and the Air National Guard have established 

effective processes for taking action against senior National Guard officers 

(colonels and generals) involved in misconduct cases. We judged the 

effectiveness of the Army National Guard’s and the Air National Guard’s 

processes for taking action against senior National Guard officers involved 

in misconduct cases by whether administrative action was taken against 

the officers involved. In the majority of cases some action was taken. 

From January 1997 through December 2001, the DOD, Army, and Air Force 

Inspectors General substantiated wrongdoing by 80 senior National Guard 
Page 4 GAO-04-258 Military Personnel 

officers, and we were able to determine the actions taken for 76 of the 80 

officers. We found that the investigative files for 66 of the 76 officers were 

sent to the officer’s immediate commander for a decision and that 57 (75 

percent) officers had an administrative action imposed, ranging from a 

letter of reprimand to verbal counseling; 3 officers (4 percent) resigned or 

retired at the request of their commander; and 6 officers (8 percent) had 

no administrative action taken against them. Ten officers (13 percent) did 

not have their investigative file sent to their immediate commander. All 10 

were Army officers whose cases were closed under special Army 

procedures for processing cases involving minor violations. For seven of 

the officers, the procedures were used in part because the officer had 

already retired before the investigation was started. Detailed information 

on this issue is presented in appendix IV. 

The effectiveness of the federal protection for military and National Guard 

whistleblowers rests principally on a two-stage process of investigation 

and administrative review.7

 The first stage involves a service’s or guard‘s 

Inspector General’s investigation of the specific facts and interpretation of 

issues associated with a reprisal allegation. In our review of 122 

allegations (60 investigations) that covered the period 1997 to 2002, we 

found that Inspectors General did not substantiate 98 of these allegations 

(80 percent). Inspectors General were unable to substantiate many of 

these allegations because they did not meet certain required criteria; for 

example, the communication was not protected or there was not an 

unfavorable personnel action. In the second stage of the 

investigation/administrative review process, the DOD Inspector General 

reviews and approves the findings of the service’s or guard’s Inspectors 

General. This review offers assurance that the findings and 

recommendations are substantiated and legally sufficient. In a review of 19 

allegations (8 of the 60 investigations), we found that the DOD Inspector 

General did not agree with the other Inspectors General’s interpretation of 

certain issues, such as the role of the chain of command, the sufficiency of 

the evidence, and the quality of the investigation. As an overall 

observation, under this process, Inspectors General interpret issues 

associated with whistleblowing on an allegation-by-allegation basis 

without relying on established guidance from past similar allegations and 

decisions. In contrast, decisions made under the civilian whistleblower 

 7

We last reviewed federal protections for military whistleblowers in U.S. General 

Accounting Office, Whistleblower Protection: Continuing Impediments to Protection of 

Military Members (GAO/NSIAD-95-23, Feb. 2, 1995). 
Page 5 GAO-04-258 Military Personnel 

protection statutes rely on case law.8 For the reprisal allegations we 

reviewed, the military services took some disciplinary action against most 

guard management officials who had retaliated against guard members. 

Federal civilian employees of the National Guard (“technicians”), 

however, are not protected by the military protection statute because, as 

civilians, it does not apply to them, nor are they well protected by civilian 

whistleblower statutes. Detailed information on these issues is in 

 appendix V. 

GAO is making no recommendations in this report. 

In commenting on a draft of this report, the Assistant Secretary of Defense 

(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 

 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). 

Agency Comments 

and Our Evaluation 
Page 6 GAO-04-258 Military Personnel 

List of Congressional Committees 

The Honorable John W. Warner 

Chairman 

The Honorable Carl Levin 

Ranking Minority Member 

Committee on Armed Services 

United States Senate 

The Honorable Duncan Hunter 

Chairman 

The Honorable Ike Skelton 

Ranking Minority Member 

Committee on Armed Services 

House of Representatives 
Appendix I: Scope and Methodology 

Page 7 GAO-04-258 Military Personnel 

In conducting our reviews of our four objectives (see p. 2), we visited a 

number of National Guard and other military offices, examined a variety of 

documents, and collected and analyzed different datasets. Although we 

used Department of Defense (DOD) data in our analysis we did not 

independently test it for reliability. 

To assess the effectiveness of the processes used by the Army National 

Guard and the Air National Guard for taking action against members who 

stop attending required training, we determined whether the services 

identified nonparticipating individuals and took action to resolve their 

status. There is no guidance on when guard commanders must take action 

to remove members who stop attending training. However, DOD officials 

agreed that it was reasonable to expect commanders to adjust unit 

strength if an individual had not been paid for training for at least 7 

months. To determine if unpaid individuals remain on units’ rolls for more 

than 7 months, we obtained Non-Validation of Pay reports from the Army 

National Guard that identify unpaid soldiers. These reports are not 

available to the Air Guard, so we used data from the Defense Manpower 

Data Center to make this determination. We also interviewed senior 

officials at the Army National Guard, Air National Guard, and National 

Guard Bureau headquarters, all located in Arlington, Virginia, to discuss 

the policies and procedures used for processing service members who 

were not attending required training and obtained copies of pertinent 

instructions, directives, and regulations. Finally, to observe procedures 

used by the Army National Guard for identifying and processing 

nonparticipating service members, we visited the headquarters of the 

Alabama Army National Guard, Montgomery; the Georgia Army National 

Guard, Atlanta; and the Louisiana Army National Guard, Jackson Barracks, 

New Orleans. To identify the procedures used by Air National Guard units, 

we sent questionnaires and conducted phone interviews with officials in 

the 190th Mission Support Flight, Kansas Air National Guard, Forbes Field; 

the 109th Mission Support Flight, New York Air National Guard, 

Schenectady; and Detachment 1, Headquarters, Washington (state) Air 

National Guard, Camp Murray. Also as required by the act, we collected 

similar information for the reserve components. To determine the 

procedures that the reserve components use for processing members who 

stop attending required training, we visited the Army Reserve Command, 

Fort McPherson, Georgia; the Air Force Reserve Command, Robbins Air 

Reserve Base, Georgia; and the Naval Reserve Forces and Marine Corps 

Reserve Forces in New Orleans, Louisiana. Because the Naval Reserve, 

Marine Corps Reserve, and Air Force Reserve did not have data on 

nonparticipants, we obtained and analyzed data from the Defense 

Manpower Data Center, Monterey, California, which identified members 

Appendix I: Scope and Methodology 
Appendix I: Scope and Methodology 

Page 8 GAO-04-258 Military Personnel 

who had not been paid for the previous 7 months of training. To observe 

how reserve units process nonparticipants, we visited the 427th Medical 

Logistics Battalion, U.S. Army Reserve, Fort Gillam, Georgia; the 94th 

Airlift Group, U.S. Air Force Reserve; and the Marine Air Group 42, U.S. 

Marine Corps Reserve, both at Dobbins Air Base, Georgia; and Naval 

Reserve units in New Orleans, Louisiana. 

To assess the effectiveness of the federal recognition 

processes/procedures that the Army National Guard and the Air National 

Guard use to ensure that state-promoted officers also meet federal 

promotion requirements, we examined the checks and balances in the 

system to determine if they contribute to a fair and balanced analysis. 

Specifically, we examined the membership of federal recognition boards, 

the information available to those boards, the scope of their examination 

to determine the veracity of the boards’ examinations, and the 

recommendations made by the boards. To do this we obtained and 

analyzed the DOD guidance on federal recognition and each service’s 

implementing regulations and procedures that govern the process, federal 

recognition applications that show the information that applicants 

provide, and documentation detailing federal recognition examination 

board proceedings. We then interviewed officials in the offices of the 

Army Chief of Staff, the Air Force Chief of Staff, and the National Guard 

Bureau—all located in Arlington, Virginia—who are responsible for 

managing the federal recognition process for officers seeking federal 

recognition within the general officer grades to determine how they verify 

each applicant’s qualifications and to ensure that their procedures are in 

accordance with the applicable instructions and regulations. We also met 

with service officials in the offices of the Personnel Directorate, Army 

National Guard, Arlington, Virginia; and the Personnel Directorate, Air 

National Guard, Arlington, Virginia, who are responsible for managing the 

process for officers seeking federal recognition as colonels to determine 

how they verify each applicants qualifications and to ensure their 

procedures were in accordance with the applicable instructions and 

regulations. Finally, we obtained historical data from (1) the Air National 

Guard on the decisions of past federal recognition examination boards for 

general officers for calendar years 1991 through 2000 and past federal 

recognition examination boards for colonels for calendar years 1998 

through 2002 and (2) the Army National Guard on the decisions of past 

federal recognition examination boards for general officers for the period 

June 1998 through December 2002. Historical data on the decisions of past 

federal recognition boards for Army colonels was not available. These data 

were used to verify that federal recognition examination boards examine 

the qualifications and background of federal recognition applicants and 
Appendix I: Scope and Methodology 

Page 9 GAO-04-258 Military Personnel 

use that information in reaching a judgment. We did not examine the 

specific judgments reached by prior federal recognition boards. 

To assess the effectiveness of the processes used by the National Guard 

for determining administrative action when Inspectors General 

substantiate misconduct by senior National Guard officers, we determined 

if an administrative action was taken against senior officers with 

substantiated misconduct. To do this, we analyzed all cases of 

substantiated wrongdoing involving senior officers that were closed by the 

DOD and service Inspectors General from January 1997 through December 

2001, to determine if a disciplinary action was imposed. This time frame 

was used because congressional Members requesting this report asked in 

January 2002 for an analysis of all cases closed in the previous 5 years. 

Where case outcomes were not available in the files, we either worked 

with the appropriate service General Counsel or the Adjutant General of 

the state involved to determine how the case was resolved. We also 

interviewed senior officials in the offices of the Chief of Staff of the Army, 

the Chief of Staff of the Air Force, the National Guard Bureau, the office of 

the DOD Inspector General, the Army Inspector General, and the Air Force 

Inspector General who are responsible for managing senior officer 

misconduct cases to identify their administrative processes and 

adjudication procedures. We did not assess the adequacy of the 

investigations conducted by the Inspectors General, nor did we make any 

judgment on the appropriateness of the disciplinary action taken. 

To examine the effectiveness of whistleblower protections, we reviewed 

(1) Inspectors General’s interpretation of issues associated with reprisal 

allegations and (2) the DOD Inspector General’s review and interpretation 

of reprisal-related decisions by other Inspectors General. In order to do 

the first part of this examination, we collected information on 122 reprisal 

allegations that were part of 60 investigations conducted by Inspectors 

General during the period 1997 to 2002. Generally, these allegations 

included those made against senior guard officers accused of misconduct 

that we discuss in appendix IV and all allegations that were investigated 

during 2001 and 2002. We reviewed the interpretation of issues in terms of 

the criteria that Inspectors General used to determine whether to 

substantiate a reprisal allegation. We did not evaluate the appropriateness 

of the decisions made. In order to place the interpretation of issues 

associated with these allegations in a broader context, we reviewed 

decisions by the Merit Systems Protection Board and U.S. Court of 

Appeals for the Federal Circuit that applied to federal civilian employees 

who claimed whistleblower protection. While we did not formally 

compare these decisions with those made by the DOD and services’ 
Appendix I: Scope and Methodology 

Page 10 GAO-04-258 Military Personnel 

Inspectors General, they were used to help us make our overall 

observation. We also did not examine the broadly analogous appeals 

process available to military and guard whistleblowers, including 

recommendations of service boards for the correction of military records. 

In order to do the second part of this determination, we examined selected 

issues over which the DOD Inspector General and other Inspectors 

General disagreed. Issues associated with 19 allegations in 8 of the 60 

investigations we reviewed formed the basis of this examination. We did 

not evaluate the resolution of these disagreements. We also examined 

issues associated with administrative action taken against those who 

retaliated against guard whistleblowers. Eleven of the 60 investigations we 

reviewed had at least one substantiated allegation of reprisal. The 

administrative actions taken as a consequence of these investigations, plus 

decisions by the Merit Systems Protection Board and U.S. Court of 

Appeals for the Federal Circuit on an additional case involving a federal 

civilian employee of the National Guard formed the basis of this 

examination. We did not evaluate the appropriateness of the 

administrative actions taken. 

We performed our work from May through December 2003 in accordance 

with generally accepted government auditing standards. 
Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Page 11 GAO-04-258 Military Personnel 

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

its personnel strength for fiscal years 2000 and 2001 by including soldiers 

on its roll who were no longer participating in training (so-called “ghost 

soldiers”) and who should have been removed from guard rolls. For 

example, on September 30, 2000, the guard had about 4,048 soldiers, or 1.3 

percent of its 301,140 drilling members, who had not been paid for 7 

months or more, and on September 30, 2001, the guard had about 4,254 

soldiers, or 1.4 percent of its 296,430 drilling members, who had not been 

paid for 7 months or more. This occurred because commanders did not 

take timely action to remove soldiers from the rolls when they stopped 

attending drill and training. We also reported that the guard was taking 

steps to improve its end strength accounting. 

The requirements for participation in training vary slightly between the 

National Guard and reserve components. According to a DOD Directive, 

Army and Air National Guard members must participate in 48 drills and 15 

days of training annually, and reserve component members must 

participate in a minimum of 48 drills and 14 days of training each year. A 

drill is a 4-hour training period, and according to service officials the 

typical “one weekend per month” of reserve training generally consists of 

two drill periods on a Saturday and two drill periods on a Sunday. 

Attendance is verified during unit formations held at the beginning and the 

end of each drill period. 

DOD has set up procedures to follow when a guard or reserve member 

fails to participate in training. When a guard or reserve member misses a 

regularly scheduled drill period or training day, the absence may be 

excused or unexcused. Excused absence includes failure to attend 

scheduled assemblies or training periods because of unforeseen 

emergency situations. Unit commanders are responsible for determining 

whether an absence is excused, and they have some flexibility in making 

this determination. Excused absences may be made up with pay at a later 

time. According to DOD Instruction 1215.18, if a guard or reserve member 

has nine unexcused absences from scheduled training within a 12-month 

period, he or she is considered not to be meeting the participation 

requirements of the organization. The instruction spells out the actions 

that may be taken against nonparticipating members. The actions are 

imposed at the discretion of the Secretary of the military service 

concerned and vary depending on the member’s rank and whether the 

member has fulfilled his or her military service obligation. According to 

the instruction, some of the actions that may be taken against an 

individual include (1) ordering the individual to active duty, (2) ordering 

the individual to active duty for training for a period of not more than 45 

Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Background 
Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Page 12 GAO-04-258 Military Personnel 

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

discharging the individual. 

To determine whether the Army National Guard, Air National Guard and 

reserve components are resolving the status of members who stop 

attending required training, DOD monitors pay data on individuals who 

have not been paid for the previous 3 and 7 months. A 3-month period 

represents 12 drills, and 9 consecutive absences represent 2-1/4 months of 

missed training. Thus, an individual who has not been paid for 3 months 

should have the attention of his/her commander. However, the 3-month 

period is not always a good indicator of unsatisfactory participation 

because there are numerous reasons why an individual might not have 

been paid for 3 months but still be listed on unit rolls. These reasons 

include the transfer of an individual from one unit to another, the inability 

to train for medical reasons, and being paid late for training. The 7-month 

period is a better indicator because, as DOD officials agreed, it would be 

reasonable to expect unit commanders to adjust unit strength if an 

individual has not been paid for at least 7 months or more. 

Increased attention by the Office of the Secretary of Defense and the Army 

National Guard on improving the accuracy of personnel strength reports, 

coupled with existing procedures for resolving the status of members who 

stop attending required training, has reduced the nonparticipation rates in 

the Army National Guard. By comparison, the Air National Guard has not 

placed the same degree of command attention on lowering the number of 

nonparticipants on its rolls; instead, the Air Guard’s existing 

administrative procedures appear to be effective in maintaining low rates. 

In March 2002 we reported that although the Army National Guard’s 

personnel strength was overstated because it contained large numbers of 

soldiers who were no longer attending drill, the guard was taking steps to 

correct these overstatements.1

 In our recent discussions with Army 

National Guard officials, they described these steps for improving endstrength accounting as a “top down, educational approach.” They stated 

that the National Guard Bureau has no authority to regulate the states in 

removing soldiers who stop participating, but by focusing attention on the 

matter, they have gained the cooperation of the states. In addition to more 

 1

See GAO-02-540R. 

The Army National 

Guard and the Air 

National Guard Have 

Effective Procedures 

for Removing Ghost 

Soldiers from Rolls 

Focused Attention by 

Army National Guard Has 

Helped Reduce End 

Strength Inflation 
Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Page 13 GAO-04-258 Military Personnel 

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 

Total number 

assigned 

Number not paid for 

previous 3 months

Percent not paid for 

previous 3 months 

Number not paid for 

previous 7 months 

Percent not paid for 

previous 7 months 

September 2000 301,140 11,025 3.7 4,048 1.3 

September 2001 296,430 8,701 2.9 4,254 1.4 

September 2002 296,248 4,248 1.4 1,481 .5 

July 2003 294,012 1,526 .5 3,094 1.0 

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

Our visits to Army National Guard headquarters in Louisiana, Alabama, 

and Georgia confirmed that significant management attention is being paid 

to resolving the status of potential nonparticipating soldiers. In each state, 

headquarters personnel officials acknowledged that they are placing an 

emphasis on resolving the status of potential nonparticipants. Although 

the specific procedures that each state uses to manage nonparticipation 

vary, in general, they all encourage subordinate units to work with soldiers 

to return them to drill status, and they authorize units to discharge 

individuals they deem will not be returning. Each of the three state 

headquarters monitors its subordinate units, and if a unit fails to take 

action, the headquarters steps in and discharges the individual. However, 

the point at which the headquarters takes action varies. For example, 
Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Page 14 GAO-04-258 Military Personnel 

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. 

The Air National Guard has not placed the same level of command 

emphasis on reducing the number of nonparticipants on its rolls. Instead, 

it relies on existing administrative procedures to process members whose 

performance is unsatisfactory. Air Force Instruction 36-3209 gives unit 

commanders the discretion to separate individuals whose participation is 

unsatisfactory (nine unexcused absences) if the individual has no potential 

for useful service. The Air Force cannot monitor attendance above the unit 

level because its personnel and financial data systems are incompatible. 

However, data from the Defense Manpower Data Center show that as of 

July 30, 2003, the Air National Guard had 1,415 members out of an 

assigned strength of 91,217 that had not been paid for the previous 7 

months. This is a nonparticipation rate of 1.6 percent. Air National Guard 

officials report that they are currently over their authorized strength, so 

units have little motivation to retain members that stop attending required 

training. 

As shown in table 2, as of July 2003, the percentage of individuals in the 

reserve components who had not been paid for the previous 7 months 

ranged from 2.0 percent in the Naval Reserve to 4.6 percent in the Marine 

Corps Reserve. DOD has not provided the reserve components with 

guidance for managing nonparticipation. According to a DOD official, 

nonparticipation in the Air Force Reserve, Marine Corps Reserve, and 

Naval Reserve averages about 23 to 28 individuals per state and territory 

and those numbers do not indicate a problem in those components. 

Nonparticipation in the Army Reserve, however, averages about 100 

soldiers per state and territory. The Army Reserve is taking aggressive 

action to reduce this number and, according to its Chief, has established 

control procedures that include a goal of reducing potential 

nonparticipants (3 months without pay) to less than 1 percent of end 

strength, approval by a general officer before any soldier can accrue more 

than 12 months without pay, and an expedited review to resolve the status 

of all soldiers currently on the rolls that have not been paid for the 

previous 12 months. 

Air National Guard Relies 

Primarily on Existing 

Administrative Procedures 

The Reserve 

Components 

Nonparticipation 

Rates Are Slightly 

Higher Than the 

Guard’s 
Appendix II: National Guard and Reserve 

Components Personnel Strengths 

Page 15 GAO-04-258 Military Personnel 

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

July 2003 

Component 

Total number 

assigned 

Number not paid 

for previous 7 

months 

Percent not paid 

for previous 7 

months 

Army Reserve 174,617 5,162 3.0 

Air Force Reserve 55,762 1,501 2.7 

Marine Corps Reserve 32,399 1,502 4.6 

Naval Reserve 60,468 1,223 2.0 

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

Visits to each of the reserve component headquarters and a small number 

of units within each component confirmed that in most cases timely action 

was being taken to resolve the status of individuals who miss training. 

Each component requires unit commanders to take action when a 

member’s participation becomes unsatisfactory. In general, commanders 

are required to attempt to contact the members by telephone or by 

registered mail, with an emphasis on retaining the member and returning 

the member to a satisfactory status. Units typically work with an 

individual for several months before initiating separation paperwork, 

which can take several additional months to process. Our visits to the 

reserve component units found that delays in processing separation 

paperwork accounted for many of the nonparticipants. We also noted that 

members remain on the rolls (and on the nonparticipation list) until the 

separation paperwork is completed and that separation paperwork was in 

process for many individuals identified as nonparticipants. For example, at 

the time of our visit to Marine Corps Reserve Headquarters discharge 

packages were in process for about 400 Marines who had not been 

attending drill. 
Appendix III: Federal Recognition Process for 

Recently Promoted Senior Officers 

Page 16 GAO-04-258 Military Personnel 

According to the U.S. Constitution, states have the authority to appoint 

officers in their state National Guard units.1

 However, because National 

Guard officers also have a federal status, state-promoted officers must go 

through a second review process—the Federal Recognition 

Examination—to ensure that they meet federal promotion requirements. 

The Chief of the National Guard Bureau is responsible for federally 

recognizing state promotions under regulations prescribed by the 

Secretaries of the Army and the Air Force.2

 Officers who are federally 

recognized in a particular grade are tendered an appointment at the same 

grade as reserve commissioned officers of the Army or Air Force. Officers 

who are appointed to a higher grade by the states, but have not been 

federally recognized in that grade, are not permitted to wear the uniform 

or insignia of the grade until the National Guard Bureau has federally 

recognized the promotion. One exception to this provision is that an 

adjutant general may wear the insignia of the next higher grade, up to that 

of a major general, than his/her federally recognized grade. Federal 

recognition of a state promotion authorizes federal pay and benefits at that 

grade. Adjutants general do not have to be federally recognized unless 

such recognition is required by the state code. Adjutant generals, for the 

most part, serve at the pleasure of the governor of their state. 

The implementing service regulations, along with memoranda of 

instructions to review boards, identify the criteria that are to be used for 

the examination. Some examples of these criteria are shown in table 3. 

Some criteria are defined very specifically in the regulations, such as 

military and civilian education requirements, years of required service for 

promotion, and medical fitness standards. Other more difficult-to-define 

criteria, such as experience, integrity, and character, are identified but 

with less specificity. 

 1

The Constitution specifies the appointment of officers in the militia. The National Guard is 

that component of the militia trained by the states. 10 U.S.C. § § 101(c); 311; and 10107. 

2

The National Guard Bureau is both a staff and operating agency that administers the 

federal functions of the Army and the Air National Guard. 

Appendix III: Federal Recognition Process 

for Recently Promoted Senior Officers 

Background 
Appendix III: Federal Recognition Process for 

Recently Promoted Senior Officers 

Page 17 GAO-04-258 Military Personnel 

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. 

The federal recognition process for individuals promoted to or within the 

rank of general officer is managed and overseen by general officer 

management offices located within the National Guard Bureau and the 

Offices of the Chiefs of Staff of the Army and Air Force. These offices 

review the files of nominated officers and confirm that they meet all 

objective promotion criteria before the nominations are sent to the federal 

recognition board for review. They also ensure that the required 

background checks are conducted in order to identify any adverse 

information about an individual. 

While we did not examine specific cases, our examination of the checks 

and balances built into the federal recognition examination process 

indicates that they provide reasonable assurance that state-promoted 

officers meet federal promotion standards and that adverse information 

relating to their leadership potential or moral character will be disclosed. 

These checks and balances include (1) an examination by a senior-level 

review board comprising officers who are independent of the guard 

organization that submitted the nomination, (2) a stringent background 

investigation for those nominated to Army National Guard and Air 

National Guard general officer positions, and Air Guard colonel positions, 

(3) a DOD policy that requires that the department disclose any adverse 

information uncovered on general officer nominees during presidential 

approval and Senate confirmation proceedings, and (4) active 

management of the process by the National Guard Bureau and the Offices 

of the Chiefs of Staff of the Army and Air Force. 

Army and Air Force data show that some senior National Guard officers 

with evidence of misconduct in their record have been federally 

recognized. However, the procedures suggest that the adverse information 

Federal Recognition 

Examination Process 

Contains Reasonable 

Checks and Balances 
Appendix III: Federal Recognition Process for 

Recently Promoted Senior Officers 

Page 18 GAO-04-258 Military Personnel 

was known or available to those who were responsible for approving or 

confirming the promotion. 

A key check and balance is the composition of federal recognition 

examination boards. The U.S. Code states that to be eligible for federal 

recognition as an officer of the National Guard, a person must pass an 

examination for physical, moral, and professional fitness to be prescribed 

by the President, conducted by a board of three commissioned officers 

designated by the respective service Secretary from members of the 

regular service, the National Guard, or both, and subscribe to an oath of 

office. The implementing service regulations add other requirements for 

the three-person federal recognition review boards. The members are to 

be appointed by the Secretary of the military service concerned. Both the 

Army and Air Force require that the members be at least one grade senior 

to the officer who is to be examined and that one or more members come 

from the active-duty ranks.3

 The inclusion of active-duty officers provides 

a measure of independence from the state guard organization that 

originated the nomination. 

Another important check and balance is that DOD requires, by instruction, 

background investigations for officers nominated to be general officers.4

The instruction requires the services to examine all systems of records 

maintained by DOD for any adverse information that may exist on a 

nominee. According to service officials, this examination would include 

files in the offices of the state and service Inspectors General, the Judge 

Advocate General, the General Counsel, the Equal Employment 

Opportunity Office, and the appropriate service criminal investigation 

agency. If adverse information emerges during the process, there are 

established processes for the disclosure of that information to the review 

boards. If an allegation emerges during the process, the nomination is held 

in abeyance until necessary investigations are completed. If no adverse 

information is found, the service must provide a certificate stating so. 

 3

National Guard Regulation (AR) 600-100; Commissioned Officers-Federal Recognition and 

Related Personnel Actions, Apr. 15, 1994; National Guard Regulation (AF) 36-1; Federal 

Recognition of General Officer Appointments and Promotion in the Air National Guard of 

the United States and as a Reserve of the Air Force, Mar. 8, 1993; and National Guard 

Regulation (AF) 36-3; Federal Recognition Boards for Appointment or Promotion in the Air 

National Guard below General Officer, May 28, 1993. 

4

DOD Instruction 1320.4; Military Officer Actions Requiring Approval of the Secretary of 

Defense or the President, or Confirmation by the Senate, Mar. 14, 1995. 

Senior Guard Officers 

Must Pass Federal 

Recognition Examination 
Appendix III: Federal Recognition Process for 

Recently Promoted Senior Officers 

Page 19 GAO-04-258 Military Personnel 

DOD Instructions require that adverse information on officers below 

general officer grades be reported only if, in the judgment of the Secretary 

of the military service concerned, it is appropriate. Nonetheless, the Air 

National Guard checks state files for adverse information on all 

individuals nominated for promotion to colonel. The Army National Guard 

conducts no additional checks on individuals nominated for promotion to 

colonel. 

A third check and balance is that the nominations of individuals being 

promoted to, or within, the general officer rank must be approved by the 

Secretary of Defense and the President and confirmed by the Senate. It is 

DOD’s policy to fully inform these parties of any adverse information 

known about a nominee.5

 Thus, even if a federal recognition board elects 

to overlook some misconduct in a nominee’s past, the Secretary of 

Defense, the President, and the Senate must all agree with the decision. 

Finally, general officer management offices within the National Guard 

Bureau, and the offices of the Chiefs of Staff of the Army and Air Force 

manage the general officer promotion process, and personnel offices 

within the Army National Guard and the Air National Guard manage the 

promotion process for colonels. These offices provide an important level 

of oversight for the entire process. 

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. 

 5

DOD Instruction 1320.4; Military Officer Actions Requiring Approval of the Secretary of 

Defense or the President, or Confirmation by the Senate, Mar. 14, 1995. 

Some National Guard 

Officers Are Denied 

Federal Recognition 
Appendix III: Federal Recognition Process for 

Recently Promoted Senior Officers 

Page 20 GAO-04-258 Military Personnel 

Table 4: Disposition of Applicants (Promotion to General and Colonel) Reviewed by 

Army and Air National Guard Federal Recognition Boards 

 Number of cases denied 

Number of 

cases reviewed 

Not fully 

qualified Conduct

Percent of 

cases denied 

Promotion to General 

Army National Guarda 347 16 8 6.9 

Air National Guardb 307 0 10 3.3 

Promotion to Colonel 

Army National Guard N.A. N.A. N.A. 

Air National Guardc 859 3 0 0.3 

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

Legend 

N.A. = not available. 

a

Data for 4.5-year-period—June 1998 through December 2002. 

b

Data for 10-year-period—January 1991 through December 2000. 

c

Data for 4-year period—March 1998 through October 2002. 

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. 

Some National Guard 

Officers with 

Substantiated Misconduct 

Have Been Federally 

Recognized 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 21 GAO-04-258 Military Personnel 

The National Guard is a state instrumentality under the command of the 

governor of the state, and the governor’s principal deputy for the guard’s 

administration is the state adjutant general. Only when called or ordered 

into federal service is the National Guard subject to the authority of the 

President, the Secretary of Defense and other civilian and military 

authorities of the federal defense establishment. Thus, under federal law, 

federal officials do not have direct control over the actions taken by state 

officials in administering the guard when it is in a state status.1

The Uniform Code of Military Justice, codified in title 10 of the United 

States Code, is the legal foundation for maintaining discipline in the 

military services. However, National Guard members are subject to the 

federal code only when they are performing federal duty. If they are in 

state status or in title 32 U.S.C. status, they are subject to the state’s 

Uniform Code of Military Justice. The state codes generally follow the 

federal code for traditional military offenses, but they rely on state 

criminal statutes for other offenses. The National Guard Bureau is 

currently working with the states to standardize the states’ Uniform Code 

of Military Justice. 

DOD’s Inspector General maintains oversight and, in some cases, 

investigative authority over cases involving general officers in the National 

Guard.2

 Generally, the DOD Inspector General investigates only cases that 

have broad ramifications for the department: cases that involve generals in 

the two highest grades (lieutenant generals and full generals), cases that 

include officers in multiple services; and reprisal cases. Cases without a 

broad ramification are generally referred back to the individual service’s 

Inspector General’s office for investigation, which conducts about 90 

percent of the investigations involving general officers and colonels being 

considered for the rank of general officer. 

Each service’s Inspector General maintains oversight and investigative 

authority over cases involving National Guard officers at the rank of 

colonel.3

 The nature of the allegation largely determines which Inspector 

General office or level of command conducts the investigation. The Army 

 1

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

2

See DOD Directive 5505.6, Investigations of Allegations Against Senior Officials of the 

Department of Defense, July 12, 1991. 

3

Air Force Instruction 90-301, Inspector General Complaints, Jan. 30, 2001, and Army 

Regulation 20-1, Inspector General Activities and Procedures, Mar. 29, 2002. 

Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Background 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 22 GAO-04-258 Military Personnel 

and Air Force Inspectors General investigate allegations involving colonels 

selected for promotion to general and forward inquiries involving colonels 

not selected for promotion to the states for investigation. 

Although they conduct the investigations, DOD’s and the services’ 

Inspectors General play no role in imposing discipline, nor do they 

recommend disciplinary action, in misconduct cases. The Air Force 

Inspector General refers all substantiated cases of misconduct involving 

Air National Guard personnel to the Chief of the National Guard Bureau 

who notifies the appropriate state authority for corrective action. Title 10 

U.S.C. establishes the National Guard Bureau as the channel of 

communication between the services and the states. The Army Inspector 

General handles substantiated allegations of wrongdoing somewhat 

differently. While it refers cases that involve colonels back to state Army 

National Guard authorities, it refers cases that involve generals and 

colonels who have been selected for promotion to general to the Army 

Vice Chief of Staff. An Army legal official stated that the Army’s authority 

to administratively reprimand an officer for misconduct derives from the 

officers underlying federal status. 

Commanders, supervisors, and superiors have several administrative 

actions available to them in correcting officers who have been found guilty 

in noncriminal misconduct cases. According to service guidance, these 

actions are intended to be corrective rather than punitive.4

 They include 

“reprimands,” which carry a strong implication of official censure; 

“admonishments,” which are similar to reprimands but carry a lesser 

degree of severity and censure; verbal reprimands, which are used in less 

severe situations; and no action. Administrative actions may or may not be 

filed in an officer’s records at the discretion of the individual imposing the 

action, usually the officer’s commander. 

In the majority of cases that we examined, the senior Army National Guard 

and Air National Guard officers found guilty of noncriminal misconduct 

received some type of administrative action. In our review of all DOD, 

Army, and Air Force Inspector General investigations that were completed 

from January 1, 1997, to December 31, 2001, we identified 75 senior 

National Guard officers with substantiated acts of wrongdoing. Five of 

 4

Army Regulation 27-10, Military Justice, Sept. 6, 2002; and Air Force Instruction 36-2907, 

Unfavorable Information File Program, May 1, 1997. 

Most Officers Found 

Guilty of Misconduct 

Are Punished 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 23 GAO-04-258 Military Personnel 

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 

Army 

 National Guard 

Air 

 National Guard Total 

Generals 26 9 34 

Colonels 20 20 41 

Total 46 29 75 

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

The substantiated allegations against the 75 officers consisted of 

noncriminal administrative violations, such as smoking in a military 

vehicle or a reprisal against an individual. In some cases, the Inspectors 

General substantiated more than one violation. To provide a clearer 

understanding of the cases, we categorized the wrongdoings into five 

types on the basis of what we considered to be the most serious violation 

in each case. The categories are (1) reprisal, (2) noncriminal fraud, waste, 

or abuse; (3) improper relationship; (4) violation of ethics regulations; and 

(5) abuse of authority or poor judgment. As table 6 shows, the most 

common wrongdoing category is abuse of authority or poor judgment. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 24 GAO-04-258 Military Personnel 

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 

Army National Guard 

colonels and generals 

Air National Guard 

colonels and generals Total 

Reprisal 5 4 9 

Fraud, waste, or abuse 9 4 13 

Improper relationship 3 2 5 

Ethics 0 2 2 

Abuse of authority/poor 

judgment 

33 18 51 

Total 50 30 80 

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

We reviewed Inspector General investigation files and determined the 

outcome for 76 of the 80 incidents. (See table 7.) We could not determine 

the outcome for four incidents. In 66 of the incidents, the officers involved 

went through a decision process, in which an individual, senior to the 

officer and with the authority to impose a punishment, reviewed the case 

and determined what administrative sanction should be imposed. Our 

review found that 57officers (75 percent) had some administrative action 

imposed on them, ranging from verbal counseling to a letter of reprimand 

placed in the officer’s official military personnel file. Three officers (4 

percent) resigned or retired and no further action was taken. In the other 

six incidents (8 percent) a decision was made to take no action against the 

officers involved. These incidents generally involved lesser offenses, such 

as improperly administering an annual leave policy, or failing to take a 

physical fitness test. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 25 GAO-04-258 Military Personnel 

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 

Army National 

Guard colonels and 

generals 

Air National 

 Guard colonels 

 and generals Total 

Cases forwarded for a decision 

Letter/memorandum of reprimand 18 4 22 

Letter/memorandum of censure or 

concern 

13 5 18 

Letter/memorandum of 

admonishment 

1 3 4 

Verbal counseling/reprimand 2 11 13 

Total 34 23 57 

Forced resignation or retirement 1 2 3 

Decision made to take no action 3 3 6 

Total 38 28 66 

Cases not forwarded for a 

decision 

 

Case dropped as inconsequential 10 0 10 

Total 10 0 10 

Total cases 48 28 76 

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

Ten officers (13 percent) did not have their cases forwarded to their 

immediate commander for a decision. These cases were closed under 

Army procedures for cases involving inconsequential allegations. An 

inconsequential allegation is misconduct that is minor and has no lingering 

adverse effect upon the Army or any other organization or person. Before 

an incident can be processed as inconsequential, the Army requires that 

the officer involved confirm the validity of the allegation, or be deceased 

or retired, and that the office of the Army Inspector General, the office of 

the General Counsel, and the office of the Army Judge Advocate General 

all approve the classification decision. In 7 of the 10 cases the officer 

involved had retired before the investigation was conducted. Table 8 

contains summaries of the misconduct and the actions taken. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 26 GAO-04-258 Military Personnel 

Table 8: Summary of Inspector General Investigations Involving Substantiated Allegations of Wrongdoing by Senior Officers, 

January 1, 1997, through December 31, 2001 

Air Force Investigations 

Substantiated allegation of reprisal Action taken 

Reprised against a subordinate with an improper referral for a 

mental health evaluation and an adverse officer efficiency report. 

Relieved of command and left the National Guard. 

Reprised against an individual by initiating an administrative 

separation and suspending individual’s security clearance. 

Verbal counseling. 

Reprised against an individual with an improper referral for a 

mental health examination. 

Letter of reprimand from the state Adjutant General. 

Reprisal against complainants; abused authority; unprofessional 

conduct. 

Verbal reprimand by the Adjutant General. 

Substantiated allegation of fraud, waste, or abuse Action taken 

Condoned the backdating and falsification of transfer and 

promotion orders. 

Verbal counseling by the state Governor. 

Made false statements to government officials. Letter of admonishment from the state Adjutant General. 

Misused military aircraft; also, trip was scheduled for the 

individual’s personal gain. 

Verbal reprimand from the state Adjutant General. 

Falsified time and another person’s initials on a pay log. Verbal counseling. 

Substantiated allegation of unprofessional relationship Action taken 

Adultery, unprofessional relationships, and false testimony. Retired at the request of the state Adjutant General and removed 

from the promotion list. 

Engaged in an unprofessional relationship with a subordinate. Verbal counseling by the state Governor. 

Substantiated allegation of ethics violation Action taken 

Accepted gift in excess of limit in ethics regulation. Letter of admonishment from the state Adjutant General and 

reimbursed cost of the gift. 

Accepted gift in excess of limit in ethics regulation. Letter of admonishment from the state Adjutant General and 

reimbursed cost of the gift. 

Substantiated allegation of abuse of authority Action taken 

Abused authority by assisting son’s promotion. Letter of reprimand from the state Adjutant General. 

Improperly administered annual leave policy. No adverse action taken. Problem was administratively corrected. 

Improperly administered annual leave policy. No adverse action taken. Problem was administratively corrected. 

Improperly administered annual leave policy. No adverse action taken. Problem was administratively corrected. 

Abused authority. Unknown. 

Failed to provide a complainant’s legal rights; abused authority 

by ordering the complainant to leave the workplace. 

Letter of concern from the state Adjutant General. 

Undue command influence; abused authority; derelict in duty. Verbal counseling by the Governor. 

Directed that an individual be detailed to another unit in excess 

of the limits prescribed in the regulations. 

Verbal counseling by the commander. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 27 GAO-04-258 Military Personnel 

Substantiated allegation of abuse of authority (cont.) Action taken 

Allowed use of government property for other than authorized 

purposes; directed or requested subordinates to use official time 

for unauthorized purposes. 

Memorandum of censure from the state Adjutant General. 

Placed an individual in a controlled grade position without 

requiring the individual to perform any of the duties associated 

with the position. 

Verbal counseling from the state Adjutant General. 

Substantiated allegation of poor judgment Action taken 

Failed to take action when notified of a sexual harassment 

allegation and did not give honest testimony to an Inspector 

General. 

Letter of counseling from the Secretary of the Air Force. 

Failed to ensure a complainants legal rights were protected; 

abused his authority. 

Letter of concern from the state Adjutant General. 

Failed to carry out his responsibilities as an Inspector General. Letter of concern from the state Adjutant General. 

Swore at private contractors; did not get approval for passenger 

on aircraft; misused government aircraft 

Letter of reprimand from the state Adjutant General. 

Misused aircraft. Letter of reprimand from the state Adjutant General. 

Public intoxication. Verbal counseling. 

Exercised during duty hours. Unknown (case file destroyed). 

Used government equipment and time to send e-mail information 

to others that was political in nature. 

Verbal reprimand by the Commander. 

Army investigations 

Substantiated allegation of reprisal Action taken 

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. 

Received two letters of reprimand from the Vice Chief of Staff of 

the Army; both filed in official military personnel file. 

Reprised against a fellow officer with an adverse efficiency report 

and signed a false official document. 

Letter of reprimand from the Vice Chief of Staff of the Army filed in 

official military personnel file. 

Reprised against an individual by improperly forcing a mental 

health examination. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

Reprised against a fellow officer; illegal political support. Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

Reprised against a subordinate. Memorandum of concern from the Vice Chief of Staff of the Army. 

Substantiated allegation of fraud, waste, or abuse Action taken 

Provided false information in medical history. Memorandum of concern from the Vice Chief of Staff of the Army. 

Scheduled government trips for own personal gain; misused 

state postage stamps for personal gain; sexually harassed 

females; improperly tried to influence an Inspector General 

investigation. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

Improperly upgraded his airline travel and conducted a circuitous 

travel route during a trip. 

Retired. Case closed under noncredible/inconsequential 

procedures. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 28 GAO-04-258 Military Personnel 

Substantiated allegation of fraud, waste, or abuse (cont.) Action taken 

Received payment and retirement point credit for duty not 

performed; failed to carry out duty as a noncommissioned officer 

evaluation report reviewer. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official personnel file. 

Received pay and retirement point credit for duty not performed. Retired. Case closed under noncredible/inconsequential 

procedures. 

Failed to ensure that an officer was properly rated; mistreated 

subordinates; falsified physical fitness test results. 

Memorandum of concern from the Vice Chief of Staff of the Army. 

Directed personnel to falsify personal strength accounting by 

delaying discharge processing; provided false testimony to an 

Inspector General. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

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. 

Signed a subordinate’s efficiency report knowing it contained 

false information. 

Memorandum of concern from the Vice Chief of Staff of the Army. 

Substantiated allegation of unprofessional relationship Action taken 

Engaged in an adulterous affair. Forced resignation, unfavorable evaluation report, and 

Memorandum of Reprimand from the Vice Chief of Staff of the 

Army filed in official military personnel file. 

Improper relationship with a subordinate. Memorandum of concern from the Vice Chief of Staff of the Army. 

Substantiated allegation of abuse of authority Action taken 

Gave preferential treatment to a subordinate. Letter of reprimand from the Vice Chief of Staff of the Army filed in 

official military personnel file. 

Improperly used a government vehicle, personnel, and 

equipment; improperly accepted and retained an active duty 

identification card; scheduled unnecessary temporary duty 

travel. 

Memorandum of reprimand from the Vice Chief of Staff of the 

Army. 

Improperly authorized time off awards for a subordinate. Memorandum of concern from the Vice Chief of Staff of the Army. 

Ordered the promotion of subordinates. Retired before the investigation took place. Case closed under 

noncredible/inconsequential procedures. 

Ordered the promotion of subordinates, and attempted to 

influence the results of a promotion board. 

Retired before the investigation took place. Case closed under 

noncredible/inconsequential procedures. 

Improperly directed a soldier’s removal from unit training. Memorandum of admonition from Vice Chief of Staff of the Army. 

Misused aircraft for personal business; failed physical fitness 

test; abused subordinates. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. Individual never received 

federal recognition. 

Improperly directed an officer’s relief from command and 

coerced individual into resigning. 

Letter of reprimand from the state Adjutant General. 

Improperly directed an officer’s relief from command and 

coerced individual into resigning. 

Letter of reprimand from the state Adjutant General. 

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. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 29 GAO-04-258 Military Personnel 

Substantiated allegation of poor judgment Action taken 

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. 

Failed to comply with physical fitness test requirements. Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

Conduct disrespectful toward a superior officer. Retired. Case closed under noncredible/inconsequential 

procedures. 

Used guard employees to support a community project. Case disposed of in accordance with noncredible/inconsequential 

procedures. 

Used National Guard unit patch in a commercial endeavor. Memorandum of concern from the Vice Chief of Staff of the Army. 

Failed to take a required physical fitness test. Memorandum of concern from the Vice Chief of Staff of the Army. 

Drunk in a public place; operated a vehicle in a drunken and 

reckless manner. 

Memorandum of reprimand from the Vice Chief of Staff of the Army 

filed in official military personnel file. 

Used military aircraft for travel in violation of DOD and Army 

guidance. 

Retired. Case closed under noncredible/inconsequential 

procedures. 

Used names and addresses of guard members in an advertising 

campaign. 

Memorandum of concern from the Vice Chief of Staff of the Army. 

Wore uniform after retiring. Retired. Case closed under noncredible/ inconsequential 

procedures. 

Misused government resources for a private social function. Memorandum of concern from the Vice Chief of Staff of the Army. 

Failed to take a required physical fitness test. Retired. Case closed under noncredible/ inconsequential 

procedures. 

Coerced guard members to join the National Guard Association. Memorandum of concern from the Vice Chief of Staff of the 

Army. 

Used position to facilitate employment of a family member by a 

civilian contractor supporting a DOD contract. 

Verbal counseling by the state Assistant Adjutant General 

Allowed smoking in a federal building. Unknown. 

Failed to meet height, weight, and fitness standards. Unknown. 

Wore uniform of a brigadier general when only a lieutenant 

colonel. Individual had been appointed as Deputy Adjutant 

General but had not been federally recognized. 

Case closed under noncredible/inconsequential procedures. 

Coerced guard members to join the National Guard 

Association. 

Memorandum of concern from the state Adjutant General. 

Smoked in a military vehicle; conduct unbecoming an officer; 

false statements to an Inspector General. 

Letter of reprimand from the Director, Army National Guard. 

Failed to take a required physical fitness test. No action taken. 

Improperly administered the Army weight control and physical 

fitness test programs. 

No action taken. 

Coerced guard members to join the National Guard Association. Verbal counseling from the state Adjutant General. Counseling 

not recorded in official military personnel files. 
Appendix IV: National Guard Senior Officer 

Misconduct Cases 

Page 30 GAO-04-258 Military Personnel 

Substantiated allegation of poor judgment (cont.) Action taken 

Condoned the promotion of one soldier over another who was 

in a higher position on the promotion list. 

No action taken. 

Improper relationships with subordinate civilian employees, 

military officers, and noncommissioned officers. 

Retired and name removed from promotion list. 

Sources: DOD (data) GAO (analysis). 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 31 GAO-04-258 Military Personnel 

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). 

Appendix V: Federal Protections for National 

Guard Whistleblowers 

Background 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 32 GAO-04-258 Military Personnel 

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. 

Every reprisal allegation made by a guard member is examined and, if 

warranted,1

 investigated by an Inspector General.Investigations are 

conducted to determine the validity of a reprisal allegation. To be valid, 

the allegation must meet the following criteria: (1) the communication was 

protected, (2) the personnel action was unfavorable, (3) the personnel 

action occurred after the protected communication took place,2

 (4) 

management knew about the protected communication before taking 

action, and (5) management would not have taken the personnel action in 

the absence of a protected communication. In our review of 122 

allegations that covered the period 1997 to 2002, we found that Inspectors 

General did not substantiate 98 of the allegations (80 percent). Below, we 

discuss variances to the five criteria that raised interpretative issues for 

Inspectors General, guard whistleblowers and guard management in some 

of the investigations we reviewed.3

 1

As noted, no investigation is required when a complaint is made to an Inspector General 

more than 60 days after a member of the military became aware of the personnel action at 

issue. According to a DOD Inspector General official, the Inspector General extends the 

filing deadline to 120 days in most cases. 

2

The DOD Inspector General’s guidance to investigators does not make this a separate 

criterion, but investigators determine the timing of a protected communication. 

3

In military whistleblower investigations the evidentiary standard is preponderance of 

evidence, which means that the evidence that the investigator must determine is of greater 

weight or more convincing than the evidence presented in opposition to it. 

Effectiveness of 

Federal Protection for 

Guard Whistleblowers 

Rests on Two-Stage 

Investigation and 

Approval Process by 

DOD Inspector 

General 

Stage One: Inspectors 

General’s Investigation and 

Interpretation of Issues 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 33 GAO-04-258 Military Personnel 

Our review showed that Inspectors General did not substantiate four 

National Guard members’ reprisal allegations, at least in part, because 

investigators found that their disclosures were not protected by statute. 

The military whistle-blower protection statute recognizes two types of 

protected communications. First, a protected communication is any lawful 

communication to a Member of Congress or an Inspector General; it does 

not have to disclose wrongdoing. Second, a protected communication also 

is a disclosure that a member of the military reasonably believes 

constitutes evidence of a violation of law or regulation, including a law or 

regulation prohibiting sexual harassment or unlawful discrimination; gross 

mismanagement; a gross waste of funds; an abuse of authority; or a 

substantial and specific danger to public health or safety.4

 Such 

disclosures can be made only to any of the following: 5

 a Member of 

Congress; an Inspector General; a member of a DOD audit, inspection, 

investigation, or law enforcement organization; or any other person or 

organization, including any person in the chain of command designated 

under regulations or established administrative procedures to receive such 

communications. 

In some of the allegations we examined, guard members made disclosures 

that were not protected for a variety of reasons. For example, in one 

situation a guard member made a disclosure to the “officer in charge,” but 

this officer was outside the chain of command. In other words, he did not 

have administrative, disciplinary or mission responsibility associated with 

command, and he was not designated under regulations to receive 

protected communications. In another example, a guard member alleged 

wrongdoing in testimony before the Merit Systems Protection Board (a 

federal civilian agency that, among other functions, adjudicates 

whistleblower cases), and subsequently alleged reprisal for having done 

so. However, because of the military whistleblower statute’s limitation on 

who can receive a protected disclosure, a disclosure in a federal civilian 

investigation is not protected. In a third example, a guard member alleged 

wrongdoing to a state ethics board, but disclosure to a state agency is also 

not protected by the military whistleblower protection act. And in a fourth 

example, an Inspector General rejected the argument by a guard 

whistleblower that audit work, by itself, is a protected disclosure. The 

Inspector General noted “we do not consider every document prepared by 

 4

Some of the subjects of a protected disclosure are substantially the same as those in the 

civilian whistleblower protection statute [5 U.S.C. § 1213 (a) (1)]. 

5

10 U.S.C. § 1034 (b)(1)(A) and (B). 

Communications Were Not 

Protected 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 34 GAO-04-258 Military Personnel 

a DOD auditor . . . to constitute a protected communication even if such 

work should contain disclosures of wrongdoing.” The inspector further 

noted that the military whistleblower protection statute “was not intended 

to shield members of a DOD audit organization from the unfavorable 

personnel actions that might legitimately be taken because of deficient 

performance.” 

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

substantiated because an Inspector General did not consider the personnel 

action that was being contested to be unfavorable. The DOD directive on 

military whistleblower protection describes an unfavorable personnel 

action as “any action taken on a member of the Armed Forces that affects 

or has the potential to affect that military member’s current position or 

career.” For some of the cases we reviewed, unfavorable personnel actions 

included suspension of a security clearance, withdrawal of a promotion 

nomination, a letter of reprimand, an adverse officer evaluation report, 

improper restriction of flying hours, improper referral for mental health 

evaluation, and involuntary retirement. 

In the first example, an Inspector General concluded that being placed on 

paid administrative leave (nonduty status with pay) was not an adverse 

personnel action: the whistleblower’s personnel record would not reflect 

nonduty status, and this action would not have any future impact on 

promotion or reassignment. In the second example, an Inspector General 

found that reassignment was not per se an unfavorable personnel action: 

Guard management was well within its authority to move personnel for 

the needs of the organization and the morale and welfare of a group, such 

reassignments are “not uncommon.” A guard whistleblower alleged in the 

third example that guard management had retaliated against him by 

restricting him in writing to using the chain of command to make a 

protected communication. An Inspector General dismissed the allegation: 

the guard management’s letter had not actually restricted the guard 

member to using the chain of command, but had only suggested that he do 

so when management wrote to the member, “Let me encourage you to 

express your interests and concerns through your direct chain of 

command . . . always do your best to try to find solutions within your unit 

of assignment.” In the fourth example, an Inspector General found that a 

“satisfactory” personnel evaluation is not per se unfavorable, but the Judge 

Advocate General who reviewed this finding for legal sufficiency 

disagreed, noting that a satisfactory rating that followed “excellent” and 

“superior” ratings ought to be considered an unfavorable personnel action. 

Personnel Actions Were Not 

Unfavorable 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 35 GAO-04-258 Military Personnel 

We reviewed 10 guard cases in which an Inspector General did not 

substantiate a reprisal allegation, in whole or in part, because guard 

management was in a variety of ways preparing to take or had initiated an 

unfavorable personnel action before a guard member’s protected 

disclosure was made. Logically, if guard management took an unfavorable 

personnel action against a guard member before the member made a 

protected disclosure, management could not be found to have retaliated 

against the member. At issue, however, is when management first 

considered, contemplated, or decided to take an unfavorable personnel 

action and whether that has the same legal meaning as actually “taking” 

such an action.6

In one example of this timing issue, an Inspector General declined to 

investigate a reprisal allegation because documented “events” (guard 

whistleblower’s disruptive behavior) leading to an unfavorable personnel 

action occurred before he made a protected communication. In a more 

complex example, guard management initiated formal action to separate a 

guard member from the guard for misconduct. The paperwork associated 

with the separation action was apparently misplaced and the member 

subsequently made a protected disclosure. Upon learning of the 

disclosure, guard management promptly resubmitted the paperwork, but 

the Inspector General determined that the second submission was made in 

retaliation for the disclosure, deciding, in effect, that there were two 

personnel actions separated by a disclosure rather than one action that 

was first initiated prior to a disclosure, and then reinitiated after the 

disclosure had been made. The Inspector General noted that had guard 

management followed through on the first personnel action the 

whistleblower “would have no basis to claim reprisal. 

We reviewed four cases (seven reprisal allegations) in which guard 

management did not know about a guard member’s protected disclosure 

before taking an unfavorable personnel action against that individual. The 

DOD Inspector General’s guidance cautions investigators, “if the evidence 

is insufficient to determine who knew what and when, give the benefit of 

the doubt to the complainant and proceed with the investigation.” The 

guidance also notes that suspicion, belief, or knowledge of rumors of a 

 6

The DOD Inspector General’s guidance instructs investigators to verify the date the 

“responsible management official first contemplated taking the action or decided to take, 

withhold, or threaten the personnel action.” According to DOD Inspector General officials, 

the mere contemplation of action before a disclosure, without collaboration, should not 

stop a reprisal allegation from being further investigated. 

Unfavorable Personnel Actions 

Were Made Before a Protected 

Disclosure 

Guard Management Did Not 

Know about a Protected 

Disclosure Before Taking an 

Unfavorable Personnel Action 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 36 GAO-04-258 Military Personnel 

protected communication by a responsible management official are 

sufficient for proceeding with the investigation. In general, the deciding 

factor in these four cases was whether whistleblowers could provide 

sufficient evidence in support of their assertion that management knew 

about a disclosure before taking an unfavorable personnel action. 

Whether management knew about a protected disclosure cannot always 

be easily established. In one example of this issue, investigators decided 

that guard management knew that someone had made a protected 

disclosure and that management “had reason to believe” that a specific 

guard member made one, thus giving the benefit of the doubt to the 

whistleblower. However, the Inspector General did not substantiate the 

reprisal allegation on other grounds; guard management had determined 

to take a personnel action “well in advance” of the whistleblower’s 

protected communication. 

While the first four criteria are associated with a guard whistleblower’s 

reprisal allegation, for the fifth criterion guard management must establish 

by a preponderance of evidence that it would have taken the action it did 

even if the whistleblower had not made or prepared a protected 

communication. 

Inspectors General consider five variables when assessing the validity of 

management’s assertion:7

• Reason(s) stated by guard management for taking, withholding, or 

threatening the action. 

• Reasonableness of the action(s) taken, withheld, or threatened 

considering a guard member’s performance and conduct. 

• Consistency of guard management’s actions with past practice. 

• Motive of guard management for deciding, taking, or withholding a 

personnel action. 

• Procedural correctness of the action. 

 7

In cases involving federal civilian employees, the Merit Systems Protection Board has 

considered similar variables: (1) strength of evidence in support of personnel action; (2) 

existence and strength of any motive to retaliate; and (3) evidence that agency takes similar 

actions against employees who are not whistleblowers, but who are otherwise similarly 

situated. (Yunus v. Department of Veterans Affairs, Merit Systems Protection Board, 84 

M.S.P.B. 78, 1999). In civilian cases, management must prove by clear and convincing 

evidence that it would have taken a personnel action regardless of a protected disclosure. 

Clear and convincing evidence requires a degree of proof more demanding than 

preponderance but less than the “beyond a reasonable doubt” required in criminal cases. 

Guard Management Would 

Have Taken the Same Course 

of Action in the Absence of a 

Protected Disclosure 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 37 GAO-04-258 Military Personnel 

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. 

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 evidence8

 and (2) approve of the results of all 

whistleblower investigations, regardless of who conducted the 

investigation.9

 8

10 U.S.C. § 1034 (c)(3)(C). 

9

10 U.S.C. § 1034 (c)(3)(E). 

Stage Two: Review and 

Approval of Whistleblower 

Reprisal Investigations by 

DOD’s Inspector General 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 38 GAO-04-258 Military Personnel 

The DOD Inspector General’s review and approval of all investigation 

results is an important protection because a military whistleblower, 

including a National Guard member, cannot appeal on the same basis as a 

civilian complainant to a federal appeals court under the military 

whistleblower protection statute.10 In order to gauge the significance of 

this protection, we reviewed 19 allegations in which Inspectors General 

disagreed with each other on a variety of issues.11 In particular, eight 

reprisal allegations in three investigations underscore the significant 

differences between Inspectors General in their interpretations of certain 

issues. 

• Sanctity of chain of command—In one example, the Army Inspector 

General preliminarily found that guard management (brigadier general) 

did not retaliate against a guard whistleblower. The DOD Inspector 

General disagreed, stating that its investigation “clearly determined” 

that the guard whistleblower was reprised against “to a degree rarely 

seen in our years of conducting this form of investigation.” The Army 

countered, stating that the guard whistleblower “was seeking refuge 

under the [military whistleblower protection statute] to avoid being 

disciplined by a chain of command not satisfied with his performance 

. . . .” Senior Army management concurred with the DOD Inspector 

General and gave the brigadier general a letter of reprimand reminding 

him that “your concern for a member of your staff ‘jumping’ the chain 

of command is inappropriate in this situation and indicates a lack of 

knowledge on the use and role of the [Inspector General] system” (i.e., 

any disclosure made to an Inspector General, no matter its content, is 

protected by statute). 

• Interpretation of evidence—In a second example, a state National 

Guard Inspector General substantiated six reprisal allegations by a 

guard whistleblower, including an improper referral for a mental health 

examination. However, the Air Force Inspector General ruled that 

there was insufficient evidence to substantiate the allegations, and the 

DOD Inspector General concurred. The state Inspector General 

 10In Acquisto v. United States, 70 F. 3d 1010 (8th Cir. 1995), the court decided that the 

military whistleblower protection statute provides strictly administrative remedies and 

therefore does not afford plaintiffs an independent cause of action. A Guard member could 

appeal an Inspector General’s finding to a service board for the correction of military 

records, and finally to the Secretary of Defense [10 U.S.C. § 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. 

11These 19 allegations were in 8 of the 60 investigations we reviewed. 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 39 GAO-04-258 Military Personnel 

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. 

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 

Inspectors General Have 

Not Compiled an 

Authoritative Record of 

their Interpretations of 

Whistleblower Issues 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 40 GAO-04-258 Military Personnel 

basis for amending the civilian whistleblower protection statutes. For 

example, congressional reaction to so-called “judicially created 

exceptions” 12 formed the basis of an unsuccessful attempt in the 107th 

Congress to amend the civilian statute. The amendment, if enacted, would 

have covered the disclosure of information “without restriction to time, 

place, form, motive or context, or prior disclosure made to any person by 

an employee or applicant, including a disclosure made in the ordinary 

course of an employee’s duties . . . .” 

A similar procedure to codify a body of authoritative interpretations of 

whistleblower issues has not been developed for military personnel. The 

examination of a whistleblower’s reprisal allegation by Inspectors General 

is done largely in isolation of other cases. Their decisions (to substantiate 

or not substantiate a reprisal allegation) rely on experience, including 

continuing guidance and training to ensure consistent interpretation of 

issues, but are made without explicit reference to other associated 

decisions, and the decisions are not readily available to the public or 

Congress. DOD Inspector General officials told us they would like to see a 

codification of issues associated with whistleblower decisions made by 

Inspectors General; in short, a DOD organization similar to the Merit 

Systems Protection Board which would render and publish decisions on 

the interpretation of the military whistleblower statute. 

The limited jurisdiction of the federal government over National Guard 

officials means that it cannot order the state Adjutant General to take 

administrative action against guard management officials who retaliate, or 

take corrective action on behalf of whistleblowers. However, the Army 

and Air Force can take administrative action against military members of 

the guard, and service boards for the correction of military records can 

recommend to service Secretaries corrective action for guard 

whistleblowers. None of the whistleblower protection statutes 

meaningfully apply to civilian federal employees of the guard. 

Eleven of the 60 investigations we reviewed resulted in at least one 

substantiated allegation of reprisal. We determined that the military 

services or state National Guard took administrative action against guard 

 12As termed by Sen. Daniel K. Akaka, who introduced an amendment to the civilian 

whistleblower protection statute [S. 995, 107th Cong. (2001)]. 

Military Services Took 

Administrative Action 

in Most Substantiated 

Whistleblower 

Reprisal 

Investigations 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 41 GAO-04-258 Military Personnel 

officials after completing seven of these investigations.13 In one 

investigation, the Army declined to take action against two guard officials 

who retaliated against a guard member by including unfavorable 

comments on the individual’s evaluation report, even though the rating 

itself was favorable. In five investigations, a military service or state guard 

issued letters of reprimand. In one investigation, a guard official was 

verbally counseled, and in another investigation, a guard management 

official was removed from consideration for promotion, and two officials 

were “given an opportunity to retire.” 

Among all National Guard whistleblowers, federal civilian employees of 

the National Guard (technicians) 14 face the most difficult jurisdictional 

and corrective action issues. They are not protected from reprisal by the 

military whistleblower protection statute because, as civilians, it does not 

apply to them. 

Civilian guard technicians who allege reprisal for making a protected 

disclosure face at least two “severe and significant restrictions” according 

to a decision by the U.S. Court of Appeals for the Federal Circuit 

[Singleton v. Merit Systems Protection Board, 244 F. 3d 1331 (Fed. Cir. 

2001)]. First, some adverse actions (for example, suspension, furlough 

without pay, reduction in rank, or compensation) against civilian 

technicians cannot be appealed to the Merit Systems Protection Board.15

Second, adverse actions not covered by the guard technicians act can be 

appealed to the Merit Systems Protection Board, but the appeal is 

meaningless because of the board’s limited enforcement powers. The 

board has determined that its orders are not enforceable against state 

National Guards, and for that reason, the board is without power to supply 

 13The DOD Inspector General considers one investigation as “open” and was not able to 

provide information on two investigations. 

14A technician’s employment, use, and status are defined by 32 U.S.C. § 709. 

15The Federal Circuit noted in Singleton, that the guard technicians act provides, 

“notwithstanding any other provision of law” (including the civilian whistleblower 

protection statutes), a technician’s right of appeal to an adverse personnel action, as 

enumerated in the technicians act, “shall not extend beyond the adjutant general of the 

jurisdiction concerned.” Consequently, the Federal Circuit observed “when it comes to 

protection under the [civilian whistleblower protection statutes] the [guard technicians act] 

by its clear terms bars a technician from federal appeal rights under [the civilian 

whistleblower protection statutes] when the adverse action is one of those enumerated in 

the [guard technicians] statute.” 
Appendix V: Federal Protections for National 

Guard Whistleblowers 

Page 42 GAO-04-258 Military Personnel 

an effective remedy even in the instance of a federal employee who can 

prevail on the merits of a civilian whistleblower protection act claim. 
Page 43 GAO-04-258 Military Personnel 

Appendix VI: Comments from the 

Department of Defense 

(350378) 
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