National Guard: Office of Complex Investigations Should Update Policies to Require Additional Documentation for Sexual Assault Cases
Released: 2018-12-12T00:00:00

Letter

Background

The National Guard’s Organizational Structure and Mission

The National Guard consists of the NGB—which includes the Office of the Chief, National Guard Bureau; the National Guard Joint Staff; the Office of the Director, Army National Guard; the Office of the Director, Air National Guard—and the National Guard units, which are located in the 50 states, 3 U.S. territories, and the District of Columbia. Figure 1 illustrates the organizational structure of the National Guard.

The National Guard has both a federal- and state-level mission. The National Guard’s federal mission is to (1) maintain well-trained and well- equipped units that are ready to be mobilized by the President of the United States during war or international peacekeeping efforts, and (2) provide assistance during national emergencies, such as natural disasters or civil disturbances. The National Guard’s state-level mission is to (1) protect life and property and preserve peace, order, and public safety, and (2) provide emergency relief support during local or statewide emergencies, such as riots, earthquakes, floods, or terrorist attacks. The National Guard’s state-level mission is executed under the control of state and territory governors, and for the District of Columbia, the President.

Reflecting the National Guard’s federal and state roles, National Guard members may function under one of three command statuses:

Title 10. When performing duty under the authority of Title 10 of the United States Code (Title 10 status), National Guard members are under the command and control of the President and are federally funded. When operating in Title 10 status, National Guard members are subject to the Uniform Code of Military Justice.

Title 32. When performing duty under the authority of Title 32 of the United States Code (Title 32 status), National Guard members are under the command and control of the governors, but are federally funded. For example, past missions have included providing security at the nation’s airports in the immediate aftermath of the September 11, 2001 terrorist attacks and assisting the Gulf Coast in the aftermath of Hurricane Katrina. While operating in Title 32 status, National Guard members are not subject to the Uniform Code of Military Justice, but, according to OCI officials, may be subject to a state code of military justice enacted by the state legislature.

State Active Duty. When performing duty in State Active Duty status, National Guard members are under command and control of the governors and are state funded. When operating in State Active Duty status, National Guard members are not subject to the Uniform Code of Military Justice.

When performing their state-level mission, National Guard units within a state, territory, or the District of Columbia report to a state-level senior officer known as the Adjutant General, who in turn reports to either a state or territorial governor, or for the District of Columbia, the President (as Commander-in-Chief). The Adjutant General coordinates with the NGB’s Army or Air National Guard, as appropriate, on such matters as staffing and unit readiness. The Army and Air National Guard in turn coordinate with Army and Air Force staff, respectively.

The Office of Complex Investigations

OCI was established in 2012 by the Chief of the NGB to perform complex administrative investigations at the request of the Adjutants General of the 50 states, the three territories, and the District of Columbia, or at the direction of the Chief of the NGB. OCI’s primary purpose is to provide the state National Guards with the capability to administratively investigate reports of sexual assault having a National Guard nexus when the reports fall outside the jurisdiction of military criminal investigative organizations and are not sufficiently investigated by civilian law enforcement. OCI’s secondary purpose is to administratively investigate other complex matters as assigned, one of which is a state assessment. The types of investigations conducted by OCI are further described later in this report.

Congress designated the Chief of the NGB as (1) the senior military officer responsible for the organization and operations of the NGB and (2) the principal advisor on National Guard matters to the Secretary of Defense through the Chairman of the Joint Chiefs of Staff, as well as to the Secretary and Chief of Staff of the Army, and Secretary and Chief of Staff of the Air Force. Further, a DOD directive states that one function of the NGB is to monitor and assist states in the organization, maintenance, and operation of National Guard units so as to provide well- trained and well-equipped units capable of augmenting the active forces. OCI officials stated that the Chief of the NGB has the authority to investigate matters in order to support the above statutory and regulatory obligations and authorities. Moreover, a DOD instruction makes clear that DOD components without law enforcement authority, like the NGB, have the authority to conduct only administrative investigations.

The NGB Instruction states that the Chief of OCI specifies the requisite education, training, and experience for appointing an investigator to OCI and for assigning investigators to conduct a specific investigation. According to OCI officials, investigators are initially selected based on their analytical and investigatory skills, as well as their experience and understanding of the civilian and military criminal justice systems. OCI officials stated that investigators are required to complete an initial two- week training course conducted by the U.S. Army Military Police School, followed by three days of orientation conducted by OCI. OCI officials stated that investigators are also offered additional training opportunities throughout the year, including annual refresher training and professional development training.

DOD’s Sexual Assault Prevention and Response Program

In response to statutory requirements, in 2005, DOD established its Sexual Assault Prevention and Response Program to promote the prevention of sexual assault, encourage increased reporting of such incidents, and improve victim response capabilities. DOD’s program allows servicemembers to make a restricted or unrestricted report of sexual assault. DOD’s restricted reporting option is designed to allow sexual assault victims to confidentially disclose an alleged sexual assault to selected individuals without initiating an official investigation and to receive medical and mental health care. DOD’s unrestricted reporting option triggers an investigation by a military criminal investigative organization, such as the Army Criminal Investigation Command or the Air Force Office of Special Investigations. DOD’s directive for its Sexual Assault Prevention and Response Program delegates authority to the Chief of the NGB for implementing policy and procedures for the program as it applies to National Guard members in Title 32 status.

OCI Conducts Administrative Investigations of Sexual Assault and State Assessments, Receives Funds from DOD’s Sexual Assault Program, and Uses Temporarily Assigned Investigators

OCI conducts administrative investigations of reports of sexual assault, in addition to state assessments of state National Guard units. OCI is funded through appropriations made available for DOD’s Sexual Assault Special Victims’ Counsel Program. Moreover, OCI is staffed with temporarily assigned National Guard members as investigators.

OCI Conducts Administrative Investigations of Sexual Assault and Assessments of State National Guard Units

Since its inception, OCI has primarily conducted administrative investigations of unrestricted reports of sexual assault, in addition to a smaller number of state assessments. Since 2013, OCI has completed approximately 380 administrative investigations of sexual assault and 5 state assessments, as shown in figure 2. The National Guard reported to Congress in 2018 that OCI has experienced a 350 percent increase in requests for assistance from fiscal year 2014 to fiscal year 2017; and 53 of the 54 states and territories have requested OCI support during this period.

OCI’s sexual assault investigations are conducted at the request of the Adjutants General and are intended to provide the Adjutants General with information to make administrative decisions. Figure 3 describes the OCI process for accepting sexual assault cases.

Based on its investigation, OCI provides a report to the state National Guard that includes the findings resulting from the investigation and identifies whether OCI has found the allegation to be substantiated. OCI’s reports resulting from its sexual assault investigations do not include recommendations for action. Rather, the Adjutant General can use the report as the basis to determine whether and what type of administrative action should be taken. Such administrative actions may include a letter of reprimand, administrative separation, or other appropriate administrative remedy.

OCI may also conduct a state assessment at the request of a state official, such as the Adjutant General or Governor. Each state assessment reflects the informational needs of the requesting official. According to NGB policy, the office will generally not conduct an assessment into criminal matters, and the assessment will also not include investigations of unrestricted reports of sexual assault. According to OCI officials, state assessments generally involve matters that are widespread issues and may adversely affect the good order and discipline of the National Guard, such as hostile work environment or concerns regarding a state Guard’s approach to sexual assault prevention and response. At the conclusion of an assessment, OCI provides a report to the requesting official that may include recommended actions to address problems identified as a result of the assessment.

In addition, according to OCI officials, the Chief of the NGB has the authority to direct inquiries into matters affecting the good order of the National Guard. OCI officials stated that OCI has the capacity to conduct inquiries at the direction of the Chief of the NGB and which are not performed at the request of a state official. For example, according to OCI officials, in 2014, the Chief of the NGB directed OCI to conduct an inquiry to evaluate the fiscal stewardship of the National Guard. National Guard officials stated that this was the only inquiry of this kind that the office has performed. Adjutants General and their staffs stated that OCI provides the states with an unbiased or impartial third-party review of reported incidents of sexual assault. Officials from one state stated that they could not identify an alternative entity that could provide this service if OCI did not exist.

OCI Is Funded through Appropriations Made Available by Congress for DOD’s Sexual Assault Special Victims’ Counsel Program

OCI is primarily funded through amounts made available by Congress for transfer to the services for the Sexual Assault Special Victims’ Counsel Program in annual Operation and Maintenance, Defense-wide (O&M, Defense-wide) appropriations. According to OCI officials, the office estimates its annual budgetary needs based on an analysis of prior fiscal year’s case load and expected personnel, travel, and training costs in the upcoming fiscal year. OCI, along with the National Guard’s Special Victims’ Counsel Program, submits its budget requirements to DOD SAPRO. SAPRO then submits a consolidated request for inclusion in DOD’s overall budget request. According to OCI and DOD officials, OCI does not receive its allotment of transferred amounts until late in the fiscal year. When the transferred amounts are received into Army and Air National Guard O&M and Military Personnel accounts, amounts initially allotted for OCI are reprogrammed to other activities that supported OCI earlier in the fiscal year.

OCI’s overall funding has increased since 2014. According to an OCI official, the funding increase has been in response to increasing requests for OCI’s services by the states and territories. Specifically, in fiscal year 2014, OCI funding was approximately $1.4 million, and by fiscal year 2018 total funding was almost $5 million. Figure 4 shows OCI’s funding levels from fiscal year 2014 through fiscal year 2018.

According to the NGB’s 2018 manual, the NGB Joint Staff is responsible for coordinating funding for OCI’s state assessments. OCI officials said that costs related to state assessments may be funded through available NGB O&M amounts. However, the officials also said that OCI does not track its expenditures related to state assessments separately from those related to its sexual assault investigations.

According to OCI officials, OCI does not receive reimbursement from the states and territories for the cost of its investigations. OCI officials further stated that OCI investigators are part of the federal oversight of the federally recognized and funded units and members of the State National Guards. As such, states do not reimburse DOD for the cost of investigations performed by OCI. According to an OCI briefing document, a benefit of the office is its ability to conduct sexual assault investigations for the states which alleviates the need for Adjutants General to choose between funding such investigations versus other mission needs.

OCI Investigators Are Temporarily Assigned National Guard Members

According to the National Guard’s 2018 Report to Congress, OCI primarily relies on National Guard members staffed temporarily to the office as investigators to conduct its sexual assault investigations and state assessments. The report stated that, since fiscal year 2015, OCI has used active duty operational support (ADOS) orders to maintain a staff of National Guard members, including between 22 and 28 investigator positions and 4 administrative and support positions. That report further stated that in fiscal year 2018, OCI hired one additional full- time Active Guard Reserve enlisted position and one Department of the Army civilian position. According to OCI officials, the office’s investigative staff consists primarily of individuals with legal or law enforcement experience. See appendix I for more information on the organizational structure of OCI.

In its 2018 Report to Congress, the National Guard stated that, of those OCI staff serving on ADOS orders, more than half serve in their position for one year or less, which was a contributing factor to longer investigative timelines and a backlog of requests for investigation. In February 2017, we found that the timeliness of investigations was a challenge for OCI and that 57 percent of investigations conducted in fiscal year 2015 took 6 to 9 months from the time a case was referred until the investigation was completed. We made a recommendation that the Chief of the NGB reassess OCI’s timeliness and resources and identify the resources needed to improve the timeliness of these investigations.

As of October 2018, the Office of the Chief Counsel has taken some steps to address this recommendation, which according to OCI officials include, for example, starting to develop a strategic plan to address the office’s long term staffing and funding needs. In its 2018 Report to Congress, the National Guard stated that OCI’s current manning and resourcing strategy of one-year ADOS tours, coupled with unprogrammed funding, impairs the office’s ability to recruit and sustain a stable, experienced workforce, resulting in longer investigation timelines and a growing backlog of requests for assistance which OCI struggles to meet. According to the National Guard’s 2018 Report to Congress, OCI’s backlog of investigation requests grew from 7 cases in fiscal year 2014 to 55 in fiscal year 2017. According to OCI officials, the office continued to experience a backlog in fiscal year 2018.

OCI Has Policies for Sexual Assault Investigations and Controls to Help Ensure Key Policies Are Followed, but Has Inconsistently Documented How Case Acceptance Criteria Are Met

NGB guidance establishes policies for OCI’s investigations, and OCI has implemented internal controls to help ensure it follows key policies. NGB guidance also establishes two criteria that allegations of sexual assault must meet for OCI to begin an investigation; however, this guidance does not require OCI to consistently include documentation in its case files related to how its case acceptance criteria are met.

National Guard Bureau Guidance Establishes OCI Investigation Policies

The NGB Instruction delineates the authority and responsibilities of NGB and state officials and the NGB Manual serves as the implementing guidance. According to OCI officials, the office’s investigative process was designed based on the Army’s Procedures for Administrative Investigations and Boards of Officers. To determine the allegations OCI will investigate, NGB policy includes specific requirements for OCI’s coordination with state officials such as the Adjutant General and legal staff.

According to NGB guidance, OCI officials will work with state officials to determine the appropriateness of sending a case to OCI, but state National Guard officials are responsible for formally requesting an OCI investigation. NGB policy also includes requirements for OCI investigators and outlines policies for the investigation process. The NGB Manual has additional requirements for the office’s dissemination of investigation results back to the state National Guard. Based on the content of the NGB policy, OCI also created Standard Operating Procedures to guide the activities that are designated as the office’s responsibilities.

OCI Has Implemented Internal Controls to Help Ensure Key Policies Are Followed

Based on our review, we found that OCI has internal controls to help ensure stakeholders follow key policies, including a review of final investigation reports and checklists to monitor activity. OCI’s review of its investigations and case files includes both administrative and legal reviews conducted by officials within OCI and the NGB’s Office of the Chief Counsel, including both administrative staff and leadership. Similar to the Army’s administrative investigations procedures, OCI’s reports of investigation undergo a review process which confirms that case files include all required documentation and provide sufficient evidence for the report’s conclusions. Investigators have primary responsibility for storing administrative and evidentiary case documents, and a team of quality control administrators works with investigators to store and publish case files in accordance with OCI’s policies. According to OCI officials, once investigators produce a report of investigation and determine whether to substantiate the allegation, the Investigations Manager reviews the investigators’ determinations before sending the report to the office’s Deputy Chief to review. According to OCI’s Standard Operating Procedures, after the Deputy Chief’s review, OCI submits the report for review by an independent legal counsel in the Administrative Law Division of the NGB’s Office of the Chief Counsel. Furthermore, OCI’s procedures state that all OCI reports of investigation must be reviewed by both the Chief of OCI and the Deputy Chief Counsel before being submitted to the state that requested the investigation.

In addition to the internal controls implemented through OCI’s report review process, OCI officials stated that the office also developed checklists designed to support internal policy adherence. For example, the review process includes an Investigator Checklist which outlines investigation policies and a Quality Control Checklist for administrators to ensure that the final report of investigation includes specific documentation and is coordinated appropriately, consistent with policy. Alongside these checklists, OCI’s Standard Operating Procedures provide guidance to ensure that OCI investigators securely store private and sensitive information, particularly video recordings of personnel related to the case.

Our analysis of a non-generalizable sample of 27 case files from 5 states from fiscal years 2016 and 2017—out of a total of approximately 225 cases for those same years—found that OCI generally adhered to key policies. For example, OCI included the Adjutants General requests to initiate the OCI investigation and executive summaries explaining OCI’s determination of whether or not the allegation was substantiated in all 27 case files. However, 4 of 27 case files in our sample contained investigation request letters with personally identifiable information. OCI policy states that these letters should not include such information. OCI officials stated that they are unable to control the information the state National Guards include in their request letters; however, OCI officials also stated that investigators are expected to work with the states to get this information removed.

National Guard Bureau Policies Outline Case Acceptance Criteria, but OCI’s Case Files Inconsistently Include Supporting Documentation to Show How the Criteria Have Been Met

NGB policies describe two criteria that allegations of sexual assault must meet for OCI to initiate and conduct an investigation. First, OCI may only conduct administrative investigations of sexual assault with an identified National Guard nexus. The NGB Instruction defines a National Guard nexus as generally existing when the reported perpetrator or the alleged victim is or was—at the time of the reported incident—a member or civilian employee of the National Guard. Officials stated that this includes National Guard members in Title 32 or state active duty status. Second, OCI may investigate a case only after a military criminal investigative organization or civilian law enforcement has declined to investigate a case, when a victim declines investigation by civilian law enforcement, or when a civilian law enforcement organization did not sufficiently investigate. Table 1 describes the OCI criteria to administratively investigate sexual assault cases with a National Guard nexus.

The NGB Manual includes a template that the states should use when submitting requests for OCI to initiate an investigation of an unrestricted report of sexual assault. The template includes standardized language that the state National Guard staff determined the existence of a National Guard nexus and confirmed coordination with at least one criminal investigative organization prior to requesting OCI’s assistance. All 27 written requests from the Adjutants General included in the sample of case files we analyzed included a statement that used this standardized language and indicated that the state National Guard staff had determined the existence of a National Guard nexus and confirmed coordination with at least one criminal investigative organization prior to requesting OCI’s assistance, consistent with NGB policy.

However, we found that OCI’s case files do not consistently include supporting documentation to show how the case acceptance criteria— specifically the determination of a National Guard nexus and verification of coordination with the appropriate criminal investigative organizations— were met. This is because NGB policy does not require that OCI collect and include any additional documentation for verification purposes in its case files. In our review of OCI’s case files, we found that 12 of the 27 case files did not include additional supporting documentation, such as police reports or e-mail correspondence with the appropriate criminal investigative organizations. We also found that 7 of the 27 case files did not include supporting documentation of both the nexus determination and coordination with the appropriate criminal investigative organizations. According to OCI officials, the office relies on state National Guard officials’ evaluation and determination about the nexus criteria and does not always receive supporting documentation to verify the criteria have been met before initiating an investigation. OCI officials further stated that this is due, in part, to the fact that the NGB and Adjutants General cannot require local law enforcement to produce documentation related to their investigations because neither entity has subpoena power over state law enforcement organizations. However, in response to our concerns about the lack of supporting documentation to verify the state National Guard officials’ evaluations of the criteria, in October 2018, OCI officials shared a draft memorandum template that they developed for verifying how the two case acceptance criteria were met.

Standards for Internal Control in the Federal Government state that management should design control activities to achieve objectives and respond to risks. More specifically, documentation of such activities should be readily available for examination, properly managed, and maintained. Those standards state that documentation is a necessary part of an effective internal control system and is required to demonstrate design, implementation, and operating effectiveness. Without a requirement that supporting documentation related to the National Guard nexus and criminal investigative organization coordination efforts is included in each case file, OCI does not have reasonable assurance that the cases it is investigating adequately meet the two criteria for case acceptance.

Conclusions

Through the creation of the Office of Complex Investigations in 2012, the NGB has taken steps to address a gap by exercising its investigative authority to address those instances of sexual assault involving National Guard members that the military justice system or local law enforcement could not or would not investigate. OCI has implemented processes and procedures to help ensure that its policies are followed. However, the NGB does not require OCI to include supporting documentation in its case files for verifying how state National Guard officials determined that case acceptance criteria have been met. Without a requirement to collect and maintain such supporting documentation as part of its case files, OCI does not have reasonable assurance that it is only undertaking investigations that meet case acceptance criteria.

Recommendation for Executive Action

The Secretary of Defense should ensure that the Chief of the National Guard Bureau, in coordination with the Office of Complex Investigations, includes a requirement in its guidance to collect and maintain supporting documentation as part of its case files that verifies whether and how (1) the National Guard nexus exists, and (2) the allegation has been referred to the appropriate military criminal investigative organization or civilian law enforcement organization prior to opening an OCI investigation. (Recommendation 1)

Agency Comments

We provided a draft of this report to DOD for review and comment. In its written comments, reproduced in appendix II, DOD concurred with our recommendation and noted actions it was taking. DOD also provided technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Defense, and other interested parties, including the Chief of the National Guard Bureau, the National Guard Bureau’s Office of Chief Counsel, and the Office of Complex Investigations. In addition, this report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff has any questions regarding this report, please contact Brenda Farrell at (202) 512-3604 or farrellb@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix III.

Appendix I: Organizational Structure of The National Guard Bureau’s Office of Complex Investigations

The Office of Complex Investigations (OCI) was established within the National Guard Bureau’s Office of the Chief Counsel. To conduct its sexual assault investigations and state assessments, OCI primarily relies on Guard members staffed temporarily to the office as investigators. From August 2012 through September 2014, the office operated with three full- time personnel, who administered the program and conducted investigations with investigative personnel who received assignments as an extra duty. Since fiscal year 2015, however, OCI has used one-year active duty operational support (ADOS) orders to maintain a staff of National Guard members, including between 22 and 28 investigator positions and 4 administrative and support positions. In fiscal year 2018, the office was primarily staffed with traditional Guard members on ADOS tours—4 administrative support personnel and 24 investigators—in addition to one full time Active Guard and Reserve enlisted position and one Department of the Army civilian position. According to OCI officials, the office’s investigative staff consists primarily of individuals with legal or law enforcement experience. Figure 5 illustrates the organizational structure of OCI.

Appendix II: Comments from the Department of Defense

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kimberly Seay, Assistant Director; Johana Ayers; Maurice Belding; Vincent Buquicchio; Serena Epstein; Laura Ann Holland; Amie Lesser; Wayne McElrath; Stephanie Moriarty; Clarice Ransom; Ramon Rodriguez; Michael Silver; Jennifer Weber; and Nell Williams made key contributions to this report.