Generals and Flag Officers: Senior Military Officer Confirmations
Released: 2004-01-20T00:00:00

RS21714 -- Generals and Flag Officers: Senior Military Officer Confirmations

January 20, 2004

Senate Confirmation of Senior Military Officers

The role of the Senate in confirming senior military officer promotions and appointments stems directly from the U.S. Constitution. Article II, Section 2 of the U.S. Constitution states that the President "shall nominate, and by and with the Adviceand Consent of theSenate, shall appoint Ambassadors, other Public Ministers and Counsels, Judges of the Supreme Court, and all OtherOfficers of theUnited States, whose appointments are not herein otherwise provided for, and which shall be established by law." Generals and FlagOfficers (Admirals), fall into the category of "all Other Officers of the United States" and require Senateconfirmation. Othermilitary officers also require Senate confirmation, but this report, will focus on the process for the military's highestranking leaders-- one-star through four-star officers. (2)

Since the early 1990s, the Senate has become increasingly vigilant in examining senior military officer misconduct and ensuring thatthe nominees they confirm meet the highest standard of accountability. During the mid-1990s, numerous hearingsand debatesensued about the suitability for promotion of many senior military officers. A heightening of Senate scrutiny canbe traced to notableconfirmation cases which included the following: In 1992, the Senate Armed Services Committee (SASC) vote to not awardThomas J. Hickey the retirement rank of Air Force Lieutenant General due to his failure to implement key directivesto solidify theintegrity of the Air Force promotion selection process; (3) in 1994, the debate over the retirement grade of Air Force LieutenantGeneral Buster C. Glosson, who was accused of improperly attempting to prejudice a promotion board; (4) and in 1994, thecontroversy over the retirement rank of Navy Admiral Frank B. Kelso II, because of his alleged responsibility forthe TailhookConvention scandal (5) in 1991 and a perceived lackof effort to integrate women into the Navy. (6)

Today, Senate scrutiny of the leadership accountability of senior military officers remains vigorous. During the March 2003hearings regarding the sexual assault scandal at the U.S. Air Force Academy, Senator John W. Warner noted thatthe situation"demand(s) a deliberate critical examination and appropriate measure of accountability when a command fails insome key aspect ofits mission, particularly when personnel charged to a commander's care have been harmed". (7) This comment and other similarstatements made by Senators may be a signal that a new standard of accountability may continue to take shape inthe Senate in thecoming years. The key to this new standard may be the striking of a balance between congressional oversight, theSenate role to"advise and consent," and DOD transparency in disclosing senior military officer adverse information during theconfirmationprocess.

DOD Policy and Terms

During the confirmation process, it is DOD policy to inform the President and the SASC of adverse information concerning thenominated senior military officers. Personnel actions involving General and Flag Officers that require Senateconfirmation includenominations, appointments, reappointments, extensions, assignments, reassignments, promotions, and retirements. DOD Instruction1320.4 describes the procedures used to process these personnel actions. To comprehend these procedures, it mayhelp to understandtwo terms defined by the instruction:

Adverse Information : Any substantiated adverse finding or conclusion from anofficially documented investigation or inquiry.

Alleged Adverse Information : Any allegation of conflict of interest, failure to adhereto required standards of conduct, abuse of authority, misconduct or information serving as the basis for anincomplete or unresolvedofficial investigation or inquiry into a possible conflict of interest or failure to adhere to standards of conduct ormisconduct.

It is also helpful to understand the difference between promotions and appointments. In general, military officers are selected forpromotion to one- or two-star rank by a centralized ad hoc selection board of general/flag officers. Candidates forthree- andfour-star appointments are not considered by a centralized board, but instead nominated by a Service Secretarythrough the Secretaryof Defense. For reappointments to another three- or four-star position, the Senate is required to reconfirm thepersonnel action, evenif no promotion is involved. According to Title 10, Section 1370 of the United States Code, GFO retirements mustalso beindividually confirmed by the Senate.

Consideration of Adverse Information

DOD Instruction 1320.4 identifies how adverse information is considered by board members during one- and two-star centralizedpromotion boards. Section 615, Title 10, U.S. Code, Armed Forces, closely governs the procedures used by themilitary to consideradverse information during the promotion process by giving specific guidance on the type of information that maybe furnished toboard members. Specifically, information about a particular officer may be furnished to a selection board only ifthe informationexists in official military records (personnel folders, investigative records, etc.). Additionally, it must be determinedby a ServiceSecretary to be "substantiated, relevant information" that could "reasonably and materially affect the deliberations"of the selectionboard. The law also mandates that before adverse information about an officer is furnished to a board, theinformation must be madeavailable to the officer and that the officer must be given a reasonable opportunity to submit comments to the board.

The DOD instruction also directs that for all GFO promotions and appointments, the Service Secretary review all official DODinvestigation records to confirm that each candidate meets prescribed standards of conduct. This internal reviewis usually led by theGeneral Counsel of the respective military department. Records reviewed by each service include files from theInspector General,military criminal investigation units, and Equal Employment Opportunity (EEO) organizations. For promotionsto one-star, aService Secretary directs a review of all adverse information covering the last 10 years of an officer's career toidentify negativetrends. For two-, three- and four-star personnel actions, the review includes any new adverseinformation since the individual's lastSenate confirmation. Once the review is completed, the Service Secretary considers the adverse information, if any,and decides ifhe or she will support the nomination. If so, the Secretary will forward a nomination package identifying theproposed promotion orappointment to the Secretary of Defense through the Assistant Secretary of Defense/Force Management Policy(ASD/FMP).

Nomination Package Certification

According to DODI 1320.4, if the Secretary of Defense supports a senior military officer nomination submitted by a ServiceSecretary and if no adverse information exists on the nominee, the Secretary of Defense will endorse the nominationpackage andforward it to the President with the following certification:

All systems of records, to include EEO files and the Public Disclosure Report (forone-star nominations only), maintained in the DOD that pertain to this officer have been examined. The filescontain no adverseinformation about this officer since his last Senate confirmation. Further, to the best of my knowledge, there is noplanned orongoing investigation or inquiry into matters that constitute alleged adverse information on the part of thisofficer.

If the Secretary of Defense supports the nomination, but adverse information exists, the Secretary identifies the information in aseparate summary included with the nomination package submitted to the President. The summary outlines theadverse information,identifies the investigative agency, discloses findings, describes corrective actions taken, and explains why DODleaders continue tosupport the nomination.

Reporting Adverse Information to the Senate

Forty-eight hours after the President signs a nomination list, the White House Clerk will forward the list to the Senate Clerk. DODPublic Affairs will announce a Presidential nomination as soon as possible after Presidential signature and militarydepartmentcoordination. After a nomination reaches the Senate, ASD(FMP) is the primary DOD conduit to discuss adverseinformation oralleged adverse information with SASC members or staff. But, this does not prohibit the military services fromcommunicatingdirectly with the SASC, or other Senators or staff, about a nomination. If a nomination package signed by thePresident containsadverse information, ASD(FMP) will send a letter to the Chairman of the SASC, advising him of the information. Normally, DODwill not report alleged adverse information or other unsubstantiated allegations to theSenate. However, in extraordinary casesinvolving an allegation, which is receiving significant media attention or when the SASC brings an allegation tothe attention ofDOD, a summary of the unsubstantiated allegation is provided.

ASD(FMP) also monitors the names on a nomination list to determine if new adverse information exists. ASD(FMP) initiatesmonthly checks with each service and DOD IG on all nominations that have been received by the Senate, but havenot yet beenconfirmed. If, after a nomination reaches the Senate, and adverse information or alleged adverse information isidentified by DOD,the cognizant military department will notify ASD(FMP) within 5 business days. ASD(FMP) will advise the SASCof theinformation and will request that the nomination be held in abeyance until the matter is resolved. When theinvestigation or inquiryis completed on an officer whose nomination is on hold at the SASC, and the allegation is substantiated, therespective ServiceSecretary and the Secretary of Defense will decide if they still support the nomination. If support continues, thenthe nominationpackage will be resubmitted for re-approval by the President. If the President also continues to support thenomination, thenASD(FMP) will advise the SASC to proceed with the confirmation process. If, on the other hand, based on the newadverseinformation, the DOD administration does not support the nomination, the Secretary of Defense will submit a newnominationpackage through ASD(FMP), requesting that the President withdraw the nomination from the SASC. In instanceswhere theallegation is unsubstantiated, the ASD(FMP) will advise the SASC of the outcome of the investigation or inquiryand request that thenomination process proceed. (8)

DOD Investigations and Management of Adverse Information

DOD's primary investigative mechanism is the Inspector General (IG). Allegations of administrative misconduct are investigatedseparately from allegations of criminal misconduct. Investigations of criminal misconduct areconducted by law enforcementagencies within each service Inspector General office. Criminal misconduct includes, but is not limited to,procurement fraud,computer crimes, bribery and kickbacks, financial crimes, government purchase card crimes, medical fraud,environmental crimes,and theft. There are four Defense Criminal Investigative Organizations (DCIOs) within DOD: The DefenseCriminal InvestigativeService (DCIS); US Army Criminal Investigation Command (USACIDC); The Naval Criminal Investigative Service(NCIS); and theAir Force Office of Special Investigations (AFOSI). (9)

Conversely, administrative misconduct is investigated by an inquiry directorate within the respective service. Examples ofadministrative misconduct include sexual harassment, improper relationships, abuse of authority, favoritism, and misuse ofgovernment property. According to the DOD IG Semiannual Report to Congress, April-September 2003, onSeptember 30, 2003,there were 275 ongoing DOD senior officer investigations (included civilian leaders). During that six-month period,DOD reportedthat it closed 221 senior official cases, of which 32 (14%) identified misconduct to include: Misuse of governmentproperty andresources -- 35%, abuse of authority and favoritism -- 35%, improper personnel action -- 16%, sexual harassmentand improperrelationship -- 7%, and other misconduct -- 7%.

Future Direction of Senior Military Officer Confirmations

Some analysts believe senior military officer confirmations will likely continue to receive increased scrutiny by some Members ofCongress. Recent hearings and statements suggest a concern in the Senate about the accountability of senior militaryofficers whofailed to promote a proper leadership climate in the organizations they commanded. An example is the scrutiny bySenators of thecontroversial circumstances surrounding the nomination of Major General Robert Clark to a three-star Armyposition. In 1991, hecame under criticism because a soldier thought to be a homosexual was killed at Fort Campbell, Kentucky, duringClark's command. Although an Army investigation cleared Clark of tolerating anti-gay attitudes on the post, critics alleged that whilehe was in chargeof Fort Campbell, he permitted an atmosphere of harassment. In a press release referencing this case, SenatorEdward M. Kennedystated: "We need to hold senior commanders accountable if they allow a climate of bigotry, intimidation and fearto exist on ournation's military bases". (10) Other recent misconduct cases including the 2003 Air Force Academy sexual assault investigations, alsohint that the Senate may be poised to increase the scrutiny of senior military officer accountability duringconfirmation. Thetransparency of DOD investigations may continue to be key in this process.

DOD asserts that its investigative mechanism is objective, independent, and promotes confidence in its ability to "police its own." Inthe September 2003 Semiannual Report to Congress, Joseph E. Schmitz, Inspector General of the Department ofDefense, states: "The trust of the American public in their government requires confidence that the institutions of their governmentare acting in theirinterest...For 25 years, Inspectors General have sought to promote integrity, efficiency, and effectiveness in theprograms andoperations of government." This analysis has identified that the DOD disclosure process appears mostly transparentand welldefined. If improvements are required or desired, they are administrative in nature. For example, the DOD 10-year"look-back" may require refinement since the scope of the policy may actually be shorter than intended. As previously discussed,the disclosureof adverse information related to one-star nominations involves a review of files ten years back. A problem maystem from currentDOD records disposition schedules, in which some services purge IG investigation reports dealing withadministrative misconductafter two years (excludes criminal investigation files). (11) The investigation reports involving the administrative misconduct are heldfor ten years only if it involves a senior military officer. As result, a complete ten-year record of past investigationsmay not beavailable when compiling a disclosure for the Senate. (12)

Another weakness may exist in the DOD practice of disclosing only new adverse information since the last Senate confirmation of asenior military officer. This practice may make it difficult for the Senate to identify misconduct trends or notecommand climateissues. Additionally, DOD generally does not disclose unsubstantiated allegations unless the Secretaryof Defense deems it relevantto the deliberations. This practice may prevent the Senate from getting a full disclosure of multiple unsubstantiatedallegations andhinder Members from identifying possible negative trends. If the disclosure of adverse trends in the organizationalclimate ofmilitary bases and posts becomes more critical during the Senate confirmation process, the DOD IG SemiannualReport to theCongress is one possible tool that may facilitate transparency into any developing trends. The report currentlyprovides meaningfulstatistical information concerning senior official inquiries, but may need to present a more rigorous analysis of anydeveloping trendsin command climate investigations. The addition of such an analysis to the report may allow Members to conductconfirmation andoversight functions more effectively.