Army Lawyer, Issue 1, 2020

U.S. Army Judge Advocate General’s Corps Issue 1 • 2020

Managing Civilans 2

Covid-19 51

Liability with Contingent Workers 33

Jackie Robinson’s Court-martial 68 A member of the 82d Airborne Division’ s OSJA participates in the the standing power throw portion of the Army Combat Fitness Test. (Credit: Justin Kase Conder/AP) Table of Contents Editorial Board Issue 1 • 2020 Captain Nicole Ulrich Departments Practice Notes Editor-in-Chief, The Army Lawyer Court Is Assembled 31 GOAD-ing Civilian Employees Captain Pearl K. Sandys By William J. Koon Editor-in-Chief, Military Law Review 2 Top Ten Secrets of Managing Civilians Major Courtney M. Cohen By William J. Koon 33 Liability Pitfalls with Contingent Workers Director, Professional Communications Program By Major Theodore B. Reiter Lieutenant Colonel Jess B. Roberts News & Notes Vice Chair, Administrative and 4 Non-Tactical Vehicle Guidance 37 Skeletons in the Foot Locker Civil Law Department By Office of The Judge Advocate General By Lieutenant Colonel S. Tennaile Timbrook Administrative Law Division Lieutenant Colonel Keirsten H. Kennedy Chair, Administrative and Civil Law Department 41 The Three Rs of Anti-Harassment Career Notes By Heidi M. Hanley Mr. Fred L. Borch III 7 Readying the Road Regimental Historian and Archivist Future Concepts Preps 47 Leading Leaders in Managing Civilians Lieutenant Colonel Megan S. Wakefield for Future Conflicts By Major Mary E. Jones Chief, Strategic Communications By Lieutenant Colonel Matthew A. Krause, Major Jason C. Coffey, and Major Jonathan Chief Warrant Officer Two Matthew M. Casey J. Wellemeyer 51 COVID-19: A Judge Strategic Communications Officer Advocate’s Role in Advising Decision-Makers By Major Matthew T. Bryan Mr. Marco Marchegiani 10 Lessons from the Australian Defence Force Art Director, Government Publishing Office By Lieutenant Colonel Laura A. Grace M. Jaleesa Mitchell-Smith Technical Editor Lore of the Corps Features 13 Women in the Corps: Mr. Sean P. Lyons A Short History of Female No.1 Editor, The Army Lawyer Judge Advocates 52 When Does an Employee By Fred L. Borch III Become an Employee? The Army Lawyer (ISSN 0364-1287, USPS 490-330) is By Maria D. Esparraguera published six times a year by The Judge Advocate General’s 24 The Holt House’s History Legal Center and School, Charlottesville, Virginia for the By Fred L. Borch III purpose of education and performance in legal responsibilities. No.2 The opinions expressed by the authors in the articles do not 58 Looking into the Crystal Ball necessarily reflect the view of the Department of Defense, the In Memoriam Examining GAO’s Oracle Department of the Army, The Judge Advocate General’s Corps (JAGC), The Judge Advocate General’s Legal Center and School, 25 Remembering Recently Departed America Ruling or any other governmental or non-governmental agency. By Major William T. Wicks Judge Advocates in 2019 Masculine or feminine pronouns appearing in this pamphlet By Fred L. Borch III refer to both genders unless the context indicates another use. No.3 The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final Azimuth Check approval by the Dean, The Judge Advocate General’s School, 68 The Court-Martial of U.S. Army. 29 Experiential Leadership Jackie Robinson By Major Jamie L. Gurtov By Major Adam Kama Unless expressly noted in an article, all articles are works of the U.S. Government in which no copyright subsists. Where copyright is indicated in an article, all further rights No.4 are reserved to the article’ s author. No compensation can be paid for articles. 84 Six Steps for Excessive Absences The Army Lawyer may make necessary revisions or deletions By Allison G. Marvasti and Kathryn D. without prior permission of the author. An author is Poling responsible for the accuracy of the author’s work, including citations and footnotes. Closing Argument The Army Lawyer articles are indexed in the Index to Legal Periodicals, the Current Law Index, the Legal Resources Index, 106 The FLSA Team Is Working and the Index to U.S. Government Periodicals. The Army By Riva Parker Lawyer is also available in the Judge Advocate General’s Corps electronic reference library and can be accessed at https://tjaglcspublic.army.mil/tal. Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite].

On the cover: (Credit: istockphoto.com/arthobbit). related to a breakdown of the relationship between the two. From our experience as human beings, we all know relationships take work. The relationship between a manager and employee is no different. In order to make that relationship successful—and thereby make both the civilian employee and the supervisor successful—both must be dedicated to working together. In my opinion, it all starts with engagement and investment. New Beginnings and Defense Perfor- mance Management and Appraisal System (DPMAP) was designed under the theory that an engaged employee is a productive employee. The more an employee identifies with the organization, its mission, its leaders, and their colleagues, the more invested that employee is. And, the more invested or engaged an employee is, the more effort they will put into accomplish- ing the mission. Before I dive into the ten secrets to successfully managing civilians, I want to start by dispelling two commonly held myths. First, civilians are not watching the clock because they don’t want to work hard. The vast majority of our civilian employees are incredibly devoted, diligent, and professional public servants. They are proud of their service, and proud to be a member of the team. However, at 1700, they need to leave—not because they don’t want to finish the work on their desk, but because they want to save you from possibly violating the Fair Labor Standards Act, the Collective Bargaining Agreement, Court Is Assembled or other rules, regulations, and policy regarding pay and attendance. Second, there is a myth that civilians are hostile to management and development—they are Top Ten Secrets of Managing Civilians set in their ways and just want to be left alone. False. Put some thought and effort into leading your Civilians and remember By William J. Koon to follow the Golden Rule—manage them as you would like to be managed. And now, the moment you have been The labor counselor down the hall the labor counselor’s role felt like a 50/50 waiting for . . . here are the ten secrets to from you is perhaps the best student split—half-lawyer, half marriage coun- success as a manager of Civilians. These of the on-again, off-again relationship selor. And, sure enough, more than twenty are in no particular order, but I guarantee between managers and employees. In fact, years later, with most of those years spent if you make at least five to seven of these I can recall commenting to my wife, after practicing labor and employment law, I part of your routine, you’ll see the differ- surviving my first labor counselor action still believe the vast majority of problems ence in your workforce and they’ll see the as a young Judge Advocate General’s (JAG) managers have with civilian employees are difference in you. Corps captain at the Presidio of Monterey,

2 Army Lawyer • Court Is Assembled • Issue 1 • 2020 1. Find the Facebook from the office’s last you. Spend time talking with them and than you, right? So, why not just let them Article 6 visit, and read the bios of each getting to know them. Let them get to do what they do, and free up some time to and every civilian in the office. Get to know you. do all the other work you have? know them—where they have been, Because it’s not fair to them, not fair to what they’ve been doing, and what they 7. Do something for their birthdays. A the office, and not fair to you as a manager. would change about the JAG Corps. card signed by everyone in the office or Employees, even those who don’t need take them and their closest coworkers any “help” to do their job because they’re 2. Read each and every word in each of out to lunch or bring them their favor- the subject-matter expert, appreciate your your employees’ position descriptions. ite Starbucks drink. Just don’t let them taking an interest in them, their work, and If it’s not accurate, talk to your legal go home that day thinking the only their development as professionals. So, take administrator (and, maybe, your labor thing you did for their birthday was the time to get involved, and watch what counselor) about it. review their IDP! happens! You, your employees, and your entire organization will be all the better for 3. Make a spreadsheet showing each em- 8. Talk to each and every Civilian that the effort you put in! TAL ployee that works for you listing each works for you at least once a day, if award they’ve received and when they you’re in the office. If you’re TDY, send Mr. Koon is the Corps’s Senior Civilian and received it. This includes both kinds them an email or text. Even if it’s just a the Director, Civilian Personnel, Labor and of awards—the annual performance quick “hello,” or “how was your week- Employment Law, Office of The Judge Advocate award employees normally get when end?” But, if you’re going to ask, mean General, Pentagon, Washington, D.C. they’ve received a positive evaluation it. With every member of your team, and the honorary award they should regardless of their tribe, sincerity goes receive every three years or so, under a long, long way. I find this is especially normal circumstances. Ideally, you will true with our Civilian employees who find that your office has been hitting have seen a lot of Deputy Staff Judge all the right marks to recognize civilian Advocates and Staff Judge Advocates employees, but if that is not the case, come and go. fix it. Remember, we have triggers— natural prompts—for recognizing our 9. Do performance counseling. Prepare Soldiers—e.g., promotions, PCS, and for it. Do it face-to-face. Do it on-time. ETS. You don’t necessarily have those Follow-up in writing. Put effort into triggers for recognizing civilian em- DPMAP—do NOT just copy and paste ployees. You have to make recognizing from previous years. There is nothing your hard-working Civilians a priority worse than feeling like your contribu- and create the mechanism to make sure tions are not valued and are not unique. you do just that. The easiest way to fix that is to put more effort into their yearly perfor- 4. Schedule a meeting with each Civil- mance counseling and evaluation. ian, either near their birthday or near the time they receive their DPMAP 10. Cross-train your judge advocates, assessment, and review their Individual paralegals, and legal administrators with Development Plan (IDP) with them. your Civilian employees. This will allow your Civilian employees an opportunity 5. Send each and every Civilian who to coach, train, and mentor, and will works for you to some sort of training guarantee you have a back-up labor each year. Whether it’s TDY to The counselor or ethics attorney when that Judge Advocate General’s Legal Center employee is not at work. Everyone and School, or as simple as across the loves an opportunity to show what they hall to shadow someone in a different know and to share knowledge. section—push them out of their comfort zone. They’ll eventually appreciate the What will all this make you? An broadening. And, bonus—your office “active” manager and leader, rather than a will be all the better for it! “passive” manager and leader. It’s so tempting to passively manage and lead Civilian 6. Once a month, host a lunch or break- employees. I mean, they’ve been doing the fast with the Civilians who work for job for years, right? They know it better

2020 • Issue 1 • Court Is Assembled • Army Lawyer 3 The Headquarters Company, 129th Support Battalion conducts a non-tactical vehicle (NTV) drivers’ training event at Camp Buehring, Kuwait. News & Notes (Credit: CPT Christian Turley)

Non-Tactical Vehicle Guidance

By the Office of The Judge Advocate General Administrative Law Division

On 27 September 2019, the Secretary of discretion to determine that NTV use to interpretation of the authority that limited the Army (SA) signed a memorandum, transportation terminals is “[n]ecessary NTV use to: when “[n]ecessary because of subject Non-Tactical Vehicle (NTV) because other methods of transportation emergency situations or to meet security Policy Guidance, which clarified Army cannot reliably or adequately meet mission requirements” (subparagraph 2-3i(1)(c)), policy regarding the use of NTVs to requirements, based on a case-by-case or when “[t]erminals are located in areas transportation terminals, including factual assessment.” where commercial methods of transpor- those located in the National Capital The SA’s guidance, which was tation cannot meet mission requirements Region. It affirmed the capacity of approv- effective immediately, clarifies that AOs in a responsive manner” (subparagraph ing officials (AOs) to assess whether such may make a case-by-case determination 2-3i(1)(d)). use is appropriate and necessary on a case- that NTV use is necessary under certain Office of The Judge Advocate General by-case basis. circumstances. Under this clarifying lan- has previously issued information papers This memo stated that Army Regula- guage, NTV use may be authorized when (IPs) on the subject of NTV use for travel tion (AR) 58-1, Management, Acquisition, it is necessary because other methods of to and from the airport, most recently on and Use of Motor Vehicles, paragraph 2-3i(1) transportation cannot reliably or ade- 26 June 2018. Those IPs are superseded will be modified to add a new subpara- quately meet mission requirements. This by the SA’s 27 September 2019 memo and graph (f), which will expressly authorize is a significant expansion of the previous should no longer be relied upon. TAL

4 Army Lawyer • News & Notes • Issue 1 • 2020 1 2

Photo 1: On 26 November 2019, Ms. Karen Carlisle and Mr. William Koon 3 were inducted into the U.S. Army Senior Executive Service. Mr. Koon is our new Director, Civilian Personnel, Labor and Employment Law, Office of The Judge Advocate General (OTJAG). Additionally, in his new role, Mr. Koon will serve as our Corps’s Senior Civilian. Ms. Carlisle is our new Director, Soldier and Family Legal Services, OTJAG.

Photo 2: The OSJAs from U.S. Army Japan and U.S. Forces Japan pose with the staff of the Kodaira School, Japan Ground Self Defense Forces (JGSDF) for the In- ternational Humanitarian Law Education Symposium. Major Travis Covey, USMC (1st row, 3d from left), provided a lecture on “Prisoner of War Management”—the primary focus was on transporting and transferring POWs. Pictured in the first row are MG Nanashima, JGSDF TJAG (1st 4 row, 4th from right), MG Danjo, Kodaira School Commandant (1st row, 5th from left), LTC Stephen McGaha, USARJ SJA (1st row, 4th from left).

Photo 3: Members of 4th Psychological Operations Group (Airborne) attended SPC Kelvin A. Washington’s graduation from the Army’s Basic Leadership Course at Fort Bragg, North Carolina. Featured in the photo are (from left to right) SFC Troy B. Gibson (Senior Paralegal NCO), SPC Kelvin A. Washington, CPT Mohamed T. Al-Darsani (Group Judge Advocate).

2020 • Issue 1 • News & Notes • Army Lawyer 5 5 7

Row, left to right, CPT Timothy Ross, Capt 6 Jacquelyn Fiorello, Maj Tomas Kucera, LTC Walter Parker, COL Joseph Fairfield, Hon. Paul Ney, Col Matt Grant, Maj Sivram Prasad, LTC Cara Hamaguchi, SGT Kody Yongue.

Photo 6: 1ID FWD legal team poses with their British allies at the conclusion of 7ATC and JMRC’s Dragoon Ready 20. The Division and 2CR legal teams demonstrated their interoperability capabilities by working closely with the pictured allies in non-lethal targeting efforts. Pictured (front row): MAJ Trent Powell, Command Judge Advocate; MAJ Scott Eberlein, 1ID FWD G9; MAJ Victor Carreras, 1ID FWD DIV IO Planner; CPT Robert Besier, Chief, NSL 7ATC. Photo 4: Mr. G. Zachary Terwilliger, the service puppies in training! Service dogs U.S. Attorney from the Eastern District of provide a tremendous benefit to those with Not Pictured: MAJ J.P. Policastro, 2CR Virginia, invited The Judge Advocate Gen- disabilities and various health conditions, RJA; CPT Jonni Stormo, 2CR Operational eral, LTG Charles N. Pede, to speak at their and Warrior Canine Connection enlists Law Attorney; SGT Rashadric Jones, Reg. Veterans Day celebration. recovering veterans to train these service Paralegal; SPC Christopher Collins, Reg. animals for their fellow veterans. Paralegal. Lieutenant General Pede was honored to share the stage with the Quantico Marine Department of Defense General Photo 5: Photo 7: General Gustave F. Perna, Com- Corps Band and U.S. Air Force veteran Jaa- Counsel, the Honorable Paul Ney, accom- mander, U.S. Army Materiel Command, far Hassan, a service-dog trainer instructor panied by CENTCOM and DoD delegates, recently recognized CW4 Craig Russell for with Warrior Canine Connection. The met with U.S. Forces Afghanistan judge his outstanding performance in organizing, Judge Advocate General spoke about the advocates on Camp Resolute Support. assembling, and processing first and second origins of Veterans Day, originally Armi- The OSJA hosted a round table with the quarter family housing property manage- stice Day, which celebrated the formal end- Honorable Paul Ney and delegation team ment incentive fee approval packets on all ing of World War I on the 11th hour, of to discuss legal and operational actions IMCOM-managed installations. His efforts the 11th day, of the 11th month. Armistice throughout Afghanistan. were critical for the continued maintenance Day was changed to Veterans Day in 1954 of on-post housing, and the ongoing pro- Pictured: Back row, left to right, Capt as recognition and celebration of veterans vision of housing services to Soldiers and Christian Gordon, SFC Margaret Murphy, from all branches of military service. their Families. CPT Jules Szanton, MAJ Aaron McCartney, The ceremony was followed with an ap- MAJ James Kim, Capt Colin Hotard, COL pearance of some very special guests—new Jeff Palomino, Mr. Matt Hoover. Front

6 Army Lawyer • News & Notes • Issue 1 • 2020 tactical network capability. Even while enemy mortar rounds begin to land close to your command post, an integrated team of software and design engineers from the military and the private sector in your S2 section are developing and implementing new defensive-cyber code to stop the enemy cyber-attack. You have to provide legal advice on lethal and non-lethal targeting and a key acquisition. You are alone and you have to provide principled legal counsel at the speed of operations. Fortunately, you came prepared for this scenario. You attended at least one Decisive Action Training Environment training exercise, and you are already com- fortable operating in an analog setting. You deployed with an off-network Operational (Credit: istockphoto.com/MATJAZ SLANIC) Law Kit-Expeditionary from the Center for Law and Military Operations, you have printed copies of key resources you will need to conduct multi-domain operations (MDO), including the Operational Law Career Notes Handbook,4 the Law of Armed Conflict Documentary Supplement,5 Army Doc- trine Publication (ADP) 3-0 (Operations),6 the new Field Manual (FM) 6-27 (Com- Readying the Road mander’s Handbook on the Law of Land Warfare),7 Joint Publication 3-60 (Joint Future Concepts Preps for Future Conflicts Targeting),8 and others. You have also trained. You listened closely to your instructors at the graduate By Lieutenant Colonel Matthew A. Krause, Major Jason C. Coffey, and Major Jonathan J. Wellemeyer course at The Judge Advocate General’s Legal Center and School about national security law, administrative law, contract The nature of war is never [going to] change. But the character of war is and fiscal law, and criminal law, and you are changing before our eyes—with the introduction of a lot of technology, a lot of prepared to conduct tactical and opera- societal changes with urbanization and a wide variety of other factors.1 tional legal operations within all four core competencies. You trained your legal staff and trained with the brigade staff prior to Imagine you are a brigade judge advo- also has its own organic tactical offensive deployment, and you were fully integrated cate with a brigade combat team (BCT), cyber capability that has the ability to shut in the planning of all your operations. You forward-deployed during a future conflict.2 down every utility in the city. Because of are an expert in at least one area of law, Your BCT is the battlespace owner in a a tactical cyber-attack against the theater’s competent in all core legal functions, and foreign country, engaged in active com- joint task force, you are not able to com- you understand the capabilities and needs of bat operations in a densely populated city municate with your higher-headquarters’ your brigade, which includes understanding against a combination of non-state actors Office of the Staff Judge Advocate (OSJA) its systems, processes, and weapon systems. and mercenaries from a private military via phone or email. The only way you have This is one of many scenarios the Fu- company in the employ of a near-peer to communicate with the OSJA is by radio ture Concepts Directorate (FCD) envisions competitor.3 Your BCT’s order of battle in- from your BCT’s command post, which is when researching the future operating cludes both manned and unmanned combat ten miles away from your forward line of environment9 for the Judge Advocate vehicles, unmanned aerial vehicles from troops. Your headquarters is taking indirect General’s (JAG) Corps. The FCD is the your headquarters’ reconnaissance platoon, fire from non-state actors and is actively JAG Corps’s think tank and is one of four ultrasonic systems, and micro-drones at defending against a local cyber-attack directorates of the Judge Advocate Gener- the squad and platoon level. Your BCT of its own, resulting in highly-degraded al’s Legal Center.10 Its mission is to serve as

2020 • Issue 1 • Career Notes • Army Lawyer 7 the JAG Corps’s subject matter expert on Substantive topics intended to be how the U.S. Army employs and supports the application of the law to future conflict tackled on the website and podcast will be land power.22 Think of it as the common by assessing the legal requirements of the the use of artificial intelligence, offensive language of our military profession and future operational environment. It also re- cyber operations, space operations including those deliberate processes that help us views Army doctrine on behalf of the JAG ground operations, autonomous weapons, conduct business. Although authoritative, Corps and provides the intellectual foun- ultrasonic effects, low-yield tactical nuclear doctrine is not necessarily prescriptive, and dation and disciplined approach to design, devices, emerging biological threats, deep requires sound judgment in its employ- develop, and field a JAG Corps that is ready fakes and their dangers to national security, ment.23 Unlike a regulation, at times, forces for future operations.11 private special operations-capable organi- may deviate from doctrine for various The FCD operates along three primary zations in light of Syria and Crimea, and reasons. lines of effort: future conflict, doctrine, effects of technology on civilian populations The FCD reviews all Army doctrine and strategic initiatives.12 First, it seeks to on future battlefields. Although there is from all branches for legality. As a branch be the premier organization within the much discussion about the use of emerging of the Army, the JAG Corps has its own U.S. government on the application of the technology on the battlefield, many future doctrine contained in FM 1-04, Legal law to future conflict. The FCD thinks of conflicts will still bear similar characteristics Support to Operations, and FM 6-27, The this broadly as applying the law of armed to present-day conflicts in places like Syria, Commander’s Handbook on the Law of Land conflict to the future operational environ- Libya, and Yemen. Accordingly, the FCD Warfare. The FCD is the proponent of a ment, or law of armed conflict-future. To will continue to explore chronic issues in new version of FM 1-04 that is currently that end, FCD partners and engages with warfare that will likely remain issues in in Army-wide staffing with an expected any organization thinking about technology the future, including the use of explosive publication in 2020. The most recent pub- and its applications on the future battlefield. ordnance in densely-populated urban areas, lished version of FM 1-04 is from 18 March Second, the FCD provides timely, ethical, the continuing practice of targeting medical 2013, and contains language and concepts responsive, and purposeful support and personnel and facilities, and accountability that have become, or may quickly become, analysis to military doctrine development mechanisms for violations of the law of war. outdated, as the Army continues to inno- organizations in all branches of the Army, vate and focus on peer-to-peer MDO, while the joint force, and the multinational force. Doctrinal Development remembering lessons learned from decades Third, the FCD provides support to the The FCD is also the JAG Corps’s doctrine of fighting counter-insurgencies.24 JAG Corps’s strategic initiatives in order development organization. Doctrine is The new FM 1-04 accounts for the to prepare its legal professionals to support a body of knowledge unique to military evolution of the term “international and future MDO.13 service and plays a critical role in planning operational law” into the new umbrella and conducting military operations.16 Joint concept of “national security law.”25 With Future Conflict doctrine contains “fundamental principles the changing nature of warfare, the JAG Despite being a think tank and located far that guide the employment of United States Corps recognized that it requires expertise from the edge of battle, one of the FCD’s military forces in coordinated action toward in several different emerging areas to ac- goals is to empower leaders across the JAG a common objective and may include terms, count for new capabilities of the joint force. Corps by providing them with information tactics, techniques, and procedures.”17 Army National security law, along with adminis- and subject-matter to prepare them for doctrine contain “fundamental princi- trative and civil law, contract and fiscal law, future MDO. In the near future, the FCD ples, with supporting tactics, techniques, and military justice, is one of the four legal will field several initiatives to assist in this procedures, and terms and symbols, used functions supporting the Army.26 Use of the endeavor. First, a redesigned website will for the conduct of operations and as a guide term “national security law” recognizes that include a doctrine library with key pieces for actions of operating forces, and ele- JAs need expertise in constitutional author- of doctrine that tactical and operational14 ments of the institutional force that directly ity, cyberspace law, intelligence law, and judge advocates (JAs) will need in order to support operations in support of national support to special operations—all of which integrate with staffs and plan operations objectives.”18 Army doctrine is contained in are becoming increasingly complex as we from beginning to end. Second, the FCD Army Doctrine Publications found on the integrate new technology and capabilities. website will contain a repository of schol- Army Publishing Directorate’s website.19 International and operational law remain arly articles addressing the legal challenges Doctrine should not be confused areas of practice under national security for future MDO. Third, the FCD will with other elements of the Army’s body of law in the new FM 1-04. The new FM publish frequent blog posts written by JAs knowledge. Regulations address the admin- 1-04 will also account for changes to the and others. Fourth, the FCD is producing istration of the Army. For details on specific Uniform Code of Military Justice from the the JAG Corps’s very first podcast entitled training tasks and how to train those tasks, Military Justice Act of 2016 and Military Battlefield Next15 that will feature doctrinal the Army uses training publications.20 For Justice Redesign.27 The new FM 1-04 will concepts, information on strategic initia- details on using specific pieces of equip- contain revised roles for the trial counsel tives, and interviews with military leaders, ment, the Army uses technical manuals.21 and guidance on the intended duties of the scholars, and members of industry. Doctrine, on the other hand, is guidance on commander’s military justice advisor.

8 Army Lawyer • Career Notes • Issue 1 • 2020 Additionally, the FCD assisted in the MAJ Coffey is a Future Concepts officer at globally responsive future JAG Corps. See FUTURE CON- The Judge Advocate Legal Center and School, CEPTS DIRECTORATE (FCD), THE JUDGE ADVOCATE LEGAL staffing and publication of the new FM 6-27, CTR. & SCH., https://tjaglcspublic.army.mil/fcd (last The Commander’s Handbook on the Law of Land Charlottesville, Virginia. visited Jan. 22, 2020). Warfare, a multi-service piece of doctrine 11. Id. shared with the United States Marine MAJ Wellemeyer is a Future Concepts officer 12. Id. 28 Corps. The predecessor doctrinal publica- at The Judge Advocate Legal Center and School, 13. Operations conducted across multiple domains tion of FM 6-27 was FM 27-10,29 which had Charlottesville, Virginia. are known at multi-domain operations, or MDO. not been updated since 18 July 1956. Much U.S. DEP’T OF ARMY TRAINING AND DOCTRINE COMMAND, PAM. 525-3-1 glossary (6 Dec. 2018). To date, MDO has changed in international law and the is not yet a doctrinal term, but rather represents an way that the United States interprets inter- Notes operational and strategic reality based on Russian national law since then. Field Manual 6-27 1. Comments by then-Army Chief of Staff, General and Chinese anti-access and area denial systems. Id. Mark A. Milley at the Association of the United States at vii. The MDO concept will drive future doctrine represents a complete re-write of FM 27-10 Army annual convention in October 2017. See State of development. Id. at iii. These domains include land, air, and incorporates revisions made to the Defense, DEFENSE ONE, https://www.defenseone.com/ maritime, space, and cyberspace. Id. For a discussion Department of Defense Law of War Manual, feature/state-defense-2018/ (last visited Jan. 22, 2020). on how the Army participates as part of the joint force see dated June 2015 and updated May 2016.30 2. The brigade combat team (BCT) “is the Army’s during operations across multiple domains, ADP 3-0, supra note 6, para. 1-37. Further, FM 6-27 is an important document primary combined arms, close combat force.” See U.S. DEP’T OF ARMY, FIELD MANUAL 3-96, BRIGADE 14. There are three “levels” of warfare: tactical, opera- to military practice, not only for its contem- COMBAT TEAM intro., at ch.1 (8 Oct. 2015). Brigade tional, and strategic. ADP 3-0, supra note 6, para. 1-2. porary articulations of international law, combat teams “conduct decisive action, which is the The tactical level refers to the use and arrangement but also because it reinforces the Department continuous, simultaneous combinations of offensive, of combat forces in relation to one another, generally defensive, and stability tasks.” Id. at the brigade level and below, although sometimes of Defense Law of War Manual, which is the 3. Private military companies (PMCs) are private busi- at the division level. Id. The operational level links United States’ interpretation of the law war. ness entities that provide military or security services, tactical forces with strategic objectives and generally focuses on the design, planning, and the conduction Governmental interpretations of the law are and often supplement official military formations. INT’L of operations. Id. This ordinarily occurs at the division COMM. OF THE RED CROSS, THE MONTREUX DOCUMENT: authoritative, in contrast to interpretations level and higher. Id. ON PERTINENT INTERNATIONAL LEGAL OBLIGATIONS AND made by non-governmental organizations GOOD PRACTICES FOR STATES RELATED TO OPERATIONS 15. The Battlefield Next podcast can be found on Apple and academia. OF PRIVATE MILITARY AND SECURITY COMPANIES DURING Podcasts, Stitcher, Spotify, and other popular podcast ARMED CONFLICT 9 (Aug. 2009). One of the more well- applications. known PMCs in recent events is “ChVK Vagner,” also 16. See U.S. DEP’T OF ARMY, DOCTRINE PUB. 1-01, known as “Wagner Group,” a Russian paramilitary Where Is Strategic Initiative? DOCTRINE PRIMER para. 1-1 (31 July 2019) [hereinafter organization operating in Syria and Ukraine. Laurence The fictional scenario at the beginning ADP 1-01]. of this article may seem to describe the Peter, Syria War: Who are Russia’s Shadowy Wagner Mercenaries? BBC NEWS (Feb. 23, 2019), https://www. 17. See CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. “hardest of the hard” with respect to tactical bbc.com/news/world-europe-43167697. Although 5120.02D, JOINT DOCTRINE DEVELOPMENT SYSTEM (5 Jan. legal advising in MDO. Nevertheless, future controversial, one of the political advantages of using 2015). operations are increasingly complex, and a PMC is the non-attribution of activities to state 18. ADP 1-01, supra note 16, para. 1-5. governments. Id. future JAs will need to operate accurately 19. See ARMY PUBLISHING DIRECTORATE, https://army- 4. INT’L & OPERATIONAL LAW DEP’T, THE JUDGE ADVO- pubs.army.mil/ (last visited Jan. 22, 2020). with deliberate speed and be fully inte- CATE GEN.’S LEGAL CTR. & SCH., U.S. ARMY, OPERATIONAL grated with their non-JA staff counterparts. LAW HANDBOOK (2018). 20. ADP 1-01, supra note 16, para. 1-2. They will need to be smart enough and 5. INT’L & OPERATIONAL LAW DEP’T, THE JUDGE ADVO- 21. Id. confident enough to operate in a decentral- CATE GEN.’S LEGAL CTR. & SCH., U.S. ARMY, LAW OF 22. Id. para. 1-1. ARMED CONFLICT DOCUMENTARY SUPPLEMENT (2018). ized formation, while at times operating 23. Id. para. 1-5. independently from traditional reach-back 6. U.S. DEP’T OF ARMY, DOCTRINE PUB. 3-0, OPERATIONS (31 July 2019) [hereinafter ADP 3-0]. 24. See id. para. 1-12 (one of doctrine’s roles is to cap- resources. With mindful envisioning of ture best practices and lessons learned). 7. U.S. DEP’T OF ARMY, FIELD MANUAL 6-27/U.S. the future operating environment and MARINE CORPS, TECHNIQUES PUBLICATION 11-10C, THE 25. U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL training, Army JAs will be prepared to fight COMMANDER’S HANDBOOK ON THE LAW OF LAND WARFARE SUPPORT TO THE OPERATIONAL ARMY para. 4-36 (forth- on “Battlefield Next.” The FCD aspires (7 Aug. 2019). coming 2020). 26. There are also two legal functions supporting to support the JAG Corps with ensuring 8. JOINT CHIEFS OF STAFF, JOINT PUB. 3-60, JOINT TARGET- Soldiers and Families. the right lawyers with the right skills and ING (28 Sept. 2018). 27. Military Justice Act of 2016, Pub. L. No. 114-328, attributes are advising at the right echelons, 9. An operating environment is “the composite of the conditions, circumstances, and influences that affect 130 Stat. 2894 (2016). and our hope is that leaders will be able to employment of capabilities and bear on the decisions 28. Field Manual 6-27 is an example of multi-service use the FCD resources to develop their own of the commander.” JOINT CHIEFS OF STAFF, JOINT PUB. doctrine. Multi-service doctrine “contains principles, training programs. TAL 3-0, JOINT OPERATIONS IV-1 (17 Jan. 2017) (C1, 22 Oct. terms, [tactics, techniques, and procedures] used and 2018). approved by the forces of two or more Services.” ADP 10. The mission of the Future Concepts Directorate is 1-01, supra note 16, para. 2-15. LTC Krause is the Director, Future Concepts to serve as the Judge Advocate General’s (JAG) Corps’s 29. U.S. DEP’T OF ARMY, PAM. 27-10, THE LAW OF LAND Directorate at The Judge Advocate Legal Center subject matter expert on the application of the law to WARFARE (July 1956). and School, Charlottesville, Virginia. future conflict by assessing the legal requirements of the future operational environment, to propose and review 30. U.S. DEP’T OF DEF., DOD LAW OF WAR MANUAL (May Army doctrine, and to provide an intellectual foundation 2016). and disciplined approach to design, develop, and field a

2020 • Issue 1 • Career Notes • Army Lawyer 9 with the ADF, and the opportunity to exchange ideas and perspectives in support of future coalition operations. This Program involved a robust schedule of attending academic courses and legal workshops; meeting with ADF Legal Headquarters personnel; and observing training exercises with brigade legal offices. Lodging in the officers’ mess and eating in their dining facilities provided additional opportunities to discuss issues with non-legal ADF members, from cadets to commanders. This provided me with a much more in-depth understanding of the ADF as a whole and the legal community’s role therein. This section provides an overview of the engagements and a small sample of some of the issues and policies discussed.

Academic Courses and Workshops The Program began with observing Legal Training Module One (LTM 1), the initial course of the Legal Officer’s Specialist Officer Career Structure, a tri-service (Credit: istockphoto.com/bubaone) two-week training, which is loosely akin to the Army’s Judge Advocate Officer Basic Lessons from the Australian Defence Force Course (JAOBC). The Army, the Royal Australian Navy (RAN), and the Royal Australian Air Force (RAAF) conduct legal By LTC Laura A. Grace training together and will often advise leadership from different services. Accord- ing to the Army career manager, seventy “That’s not a knife . . . THIS is a knife!” 1 percent of O-3 postings are Army specific, —Crocodile Dundee but only two O-6 jobs are NOT joint billets. Attending LTM 1 provided an opportunity to learn the basics of ADF’s core legal For over one hundred years, U.S. ser- Recognizing the importance of disciplines: administrative law, discipline vice members have fought alongside enhancing interoperability through engage- law, operational law, and the legal officers’ the Australian Defence Force (ADF). ments, Lieutenant General (LTG) Charles career structure. After LTM 1, new legal On 4 July 1918, at the Battle of Hamel, the N. Pede, The Judge Advocate General, and officers begin an apprentice-like program, United States fought side-by-side with Aus- Commodore (CDRE) Peter Bowers, Direc- during which they must complete sixteen tralia. During that battle, Americans fought tor General Australian Defence Force Legal consolidation tasks (e.g., giving a rules of under the command of one of Australia’s Services (DGAFLS), established a short-du- engagement (ROE) brief) before advancing most celebrated military officers, General ration visit between the two countries. It to the next level. There are five Legal Levels Sir John Monash. After the fourth such was through this effort that I had the once- (LL) in the permanent force, and advance- mention during my visit with the ADF, in-a-lifetime opportunity to spend seven ment is linked to training and individual I put down the book I was reading—In a weeks with ADF Legal in spring 2019. This service and promotion requirements.4 Sunburned Country,2 Bill Bryson’s hilarious article intends to familiarize the reader with Unlike our judge advocates (JAs), who are travel book about Australia—and read, the Visit Program, highlight the Program’s certified and qualified upon completion Monash, The Soldier Who Shaped Australia.3 benefits, and discuss the Program’s future. of JAOBC, a legal officer cannot advise I highly recommend both books to learn commanders or deploy until they reach LL more about Australian history and culture. Visit Program with Australian 3, which can take three years. However, to truly understand our allies and Defence Force Legal A few weeks later, I had the oppor- partners, there is no substitute for face-to- The objective of the Program is partner-na- tunity to learn about Army-specific issues face engagements. tion training and education, interoperability at the Junior Legal Officer Workshop

10 Army Lawyer • Career Notes • Issue 1 • 2020 Program, a two-day workshop for new Discipline Act of 1982 (DFDA), jurisdic- Darwin and 7th Brigade in Brisbane. The Army legal advisors. Topics included tion is based on “service connection.”6 brigades continuously rotate; they switch training and progression; “raise, train, and That is, the military has jurisdiction if between “ready, readying, or resetting.” sustain” for operations; and the debate over prosecution could reasonably be regarded During my visit, 1st Brigade was the ready- “broadly employable” versus “expert.” Sound as substantially serving the purpose of en- ing brigade, and was participating in a CPX. familiar? Another familiar topic discussed forcing service discipline. This differs from 7th Brigade was the ready brigade, and was at this training that is regularly debated the “service status” test in the U.S. military. serving as the opposition force for the same among the Judge Advocate General’s (JAG) Additionally, the decision to prosecute exercise. I did not have an opportunity to Corps leadership is whether mentorship a member resides with an independent observe 3rd Brigade, which was resetting. should be formal or informal. The ADF has prosecutor, not the commander. Under- The legal briefing style and content were a formal mentoring scheme that requires a standing the differences in our coalition very similar to my experience as a brigade mentor be assigned within two months of partners’ policies and procedures prior judge advocate. Spending several days with being appointed as an ADF legal officer.5 to operations will decrease friction and each office allowed for conversations about The relationship lasts until the second anni- enhance interoperability. a brigade legal officer’s general legal duties, versary of attaining LL 2 status. While it is which include advising on disciplinary a formal program, in many cases, new legal Headquarters Engagements charges, reviewing summary proceed- advisors choose their mentors personally After LTM 1, I spent two weeks with ings for legal sufficiency, investigations, or by recommendation based on common headquarters personnel at Defence Legal reviewing minor contracts, and operational interests. Division in Australia’s capital, Canberra. law issues. It was a great opportunity to see I also attended the Defence Legal The Defence Legal Division is an integrated issues on a tactical and operational level and National Joint Legal Issues Workshop—a organization that includes Army, RAN, and to gain a different perspective on the many bi-annual conference, similar to the World RAAF legal personnel—similar to the Office topics I had learned about. Wide Continuing Legal Education course— of The Judge Advocate General (OTJAG), attended by over 300 ADF legal personnel but joint. I met with the Head Defence Benefits of the Visit Program and international guests. This workshop Legal,7 the DGAFLS, and several Direc- The opportunity to spend time in Aus- was a great opportunity to continue to tors and staff who report to DGAFLS. We tralia, with the purpose of building build relationships and to hear about the discussed a variety of issues, including do- relationships and learning, is a career strategic direction of the ADF. There were mestic law and treaty obligations applicable highlight for an extroverted life-long several common themes, including the to the ADF in combat operations. Perhaps learner, such as myself. More impor- ADF’s renewed focus on the Pacific and most relevant to coalition operations, we tantly, the relationships established and efforts to achieve greater integration of discussed the impending changes to Austra- the understanding of ADF perspectives the services. Because of the ADF’s inter- lia’s ROE doctrine.8 and legal obligations springing from that connected modality, it was surprising that I spent a day with Australia’s only experience are already paying dividends many senior leaders discussed efforts to combatant command—Headquarters Joint for the U.S. Army. During Pacific Sentry become more joint. All the speakers were Operations Command (HQJOC). In addition 19.3, my relationships facilitated staff informative; however, one speaker in par- to operations and other real-world activities, integration and information sharing at all ticular reinforced the purpose of the Visit HQJOC conducts joint exercises. During echelons. Additionally, my familiarity with Program with his observations. Colonel my visit, legal advisors were preparing for various Australian domestic laws, treaty David McCammon, speaking on “Taji—A Pacific Sentry 19.3, a Chairman of the Joint obligations, and national caveats helped Commander’s Perspective,” discussed the Chiefs of Staff-sponsored, bilateral Com- me identify where legal authorities differ difficulties in working in coalitions when mand Post Exercise (CPX) between Australia and could be leveraged to expand the legal partners handle investigations and disci- and the United States. United States Army maneuver space on the battlefield. pline law differently. Pacific Command (USARPAC) served as Australia is a leading Western world For example, a training death in the a four-star Combined Joint Task Force power, especially in the Pacific, whose voice ADF will be investigated by an outside (CJTF) for the exercise. The Visit Program carries significant weight in the devel- regulatory organization called “Comcare.” afforded me the opportunity to meet the opment of international law by a nation Based on Comcare’s investigation and ADF legal advisors who would participate in state. Our countries have common national conclusions, the Commonwealth Direc- the exercise from several different locations, security interests and have committed to tor of Public Prosecutions may then file including the CJTF Headquarters. work together to preserve those interests. charges against the ADF. In fact, during Understanding each other’s operational my visit, Comcare announced its recom- Army Forces Command restrictions and interpretation of law will mendation that the Department of Defence I spent my final weeks in Australia with help our countries identify commonalities be charged for a death that occurred during the Forces Command Headquarters so that we can strengthen our combined a live fire training. Another example is the (FORCOM) and two of its three regu- efforts. We improve this understanding discipline system. Under the Defence Force lar force combat brigades: 1st Brigade in through continued engagements.

2020 • Issue 1 • Career Notes • Army Lawyer 11 Australian Service Light Armoured Vehicles drive through Tangi Valley, Afghanistan. (Credit: Army Spc. Edward A. Garibay)

The Future of the Visit Program and populations, it is likely the United States Notes In spring 2020, an ADF legal advisor will will continue to fight as part of a combined 1. CROCODILE DUNDEE (Rimfire Films 1986) (Australian comedy). take part in the second phase of this import- force. Interoperability, not only of equip- ant Program, spending time with the U.S. ment, tactics, techniques, and procedures, 2. BILL BRYSON, IN A SUNBURNED COUNTRY (2000). Army JAG Corps. The ADF legal advisor but also of a common understanding of legal 3. GRANTLEE KIEZA, MONASH, THE SOLDIER WHO SHAPED AUSTRALIA (2015). was the 1st Brigade Legal Officer who hosted support to operations between the military 4. AUSTRALIAN DEFENCE FORCE, ADF LEGAL OFFICERS’ me during my visit to Darwin. Her visit will forces, will be critical to success. Coalition SPECIALIST OFFICER CAREER STRUCTURE (LOSOCS) POLICY begin in late February with an introduction partners will have different operational (25 July 2019). of the Army JAG Corps at OTJAG and U.S. restrictions impacting military deci- 5. DIRECTOR GENERAL AUSTRALIAN DEFENSE FORCE LEGAL Army Legal Services Agency, followed by sion-making procedures, which may appear SERVICES DIRECTIVE NO. 2/2015, MENTORING SCHEME FOR attendance at the National Security Law of to limit or hinder the mission. Understand- ADF LEGAL OFFICERS (Oct. 26, 2015). Armed Conflict course at The Judge Advo- ing our differences can decrease tension, 6. Based on a 2005 report on the Effectiveness of Australia’s Military Justice System, Australian Military cate General’s Legal Center and School in and even create opportunities when we look Courts were established in 2007. They were found Charlottesville, Virginia. Around the same to maximize our unique authorities and unconstitutional in 2009 in Lane v Morrison. Lane v time, another member of the JAG Corps will capabilities. Gaining this legal interoperabil- Morrison [2009] HCA 29 (Austl.). Parliament enacted legislation ratifying the approximately twelve decisions have the amazing opportunity to partici- ity can best be achieved through face-to-face made by the Australian Military Court. The Austra- pate in the Visit Program with the ADF in engagements. The Visit Program with the lian Defence Force is currently working under the Australia. Whether going to Australia or ADF provides the opportunity to build pre-2007 system of tribunals and disciplinary officer scheme. hosting an ADF legal officer in the United relationships while gaining an in-depth 7. The Head Defence Legal is two-star equivalent. States, this Program provides an excellent knowledge of one of our closest allies. The Head Defence Legal can be civilian or military, but opportunity to build relationships, exchange Australian and U.S. militaries have fought has historically been filled by civilians. DEFGRAM ideas and perspective, and learn more about together since World War I, and through 385/2004 (15 July 2004). a critical partner. initiatives like the Visit Program, we will 8. Australian Defence Doctrine Publication 06.01 contains Rules of Engagement doctrine. Because the continue to increase our readiness and effec- briefs I received are for Official Use Only or a higher Conclusion tiveness as future coalition forces. TAL classification, the new doctrine is not discussed in this From the Revolutionary War to the Global article. War on Terror, the United States has LTC Grace is the Chief, National Security fought in many wars with our coalition Law, U.S. Army Pacific Command, Fort partners. With the growing interdepen- Shafter, Hawaii. dence of the world’s economies, cultures,

12 Army Lawyer • Career Notes • Issue 1 • 2020 Phyllis L. Propp-Fowle, the first female Judge Advocate. (Courtesy Fred L. Borch III)

insignia for the crossed-quill-and-sword worn by all officers in the Judge Advocate General’s Department (JAGD). In the more than seventy-five years that have followed Propp-Fowle’s trailblazing career, hundreds and hundreds of female lawyers have served as Army lawyers, and what follows is a short history of their exemplary service in our Corps.

1940s to 1960s Since the Army was gender-segregated in the 1940s, 1950s, and 1960s, the opportunities for women to soldier were limited because of this decidedly second-class status. Additionally, not only were most women in a separate Corps (the WAC), but the Congress prohibited women from serving in combat units, from commanding men, and from being promoted to general officer. Despite these restrictions, there were 9,000 women in the WAC by 1960 and 12,500 by 1970.1 But, since there were a total of 1.32 million Soldiers in the Army in 1970, this meant that less than one percent of the Army was female.2 Despite these low numbers, there were a handful of women in our Corps, and three deserve special mention because they achieved “firsts” in military legal history: Phyllis L. Propp-Fowle, Elizabeth R. Smith Jr., and Nancy A. Hunter.

Phyllis L. Propp-Fowle Phyllis L. Propp-Fowle was the first female judge advocate; first female post judge Lore of the Corps advocate (similar to a command judge advocate (CJA)); first female judge advocate to earn a combat patch and overseas service stripes; and, the only female judge advocate Women in the Corps to serve overseas in World War II. No one—male or female—is likely to have so A Short History of Female Judge Advocates many “firsts” again. Born in Jasper County, Iowa, on 8 March 1908, Propp-Fowle obtained her By Fred L. Borch III law degree from the University of Iowa in 1933. She was the only woman in her graduating class.3 After America entered World War While lawyers have been in the Army when Captain (CPT) Phyllis Propp-Fowle, II, Propp-Fowle was one of the first from the days of the Revolution, there an attorney serving in the Women’s Army 1,000 women to join the Women’s Army were no female judge advocates until 1944, Corps (WAC), traded her WAC branch Auxiliary Corps (WAAC) in 1942. She

2020 • Issue 1 • Lore of the Corps • Army Lawyer 13 patch and three overseas service bars (reflecting a total of eighteen months’ service in a combat theater). She was promoted to major (MAJ) on 1 June 1945. In early 1947, MAJ Propp-Fowle was still on active duty as a JA in Heidelberg, Germany, where she was serving as the Chief, Legal Affairs, Judge Advocate Division, U.S. Forces European Theater. At this time, however, the Army decided to discharge all women then serving. Propp-Fowle was released from active duty Elizabeth Smith Jr. was the first female to reach the on 21 July 1947, and awarded the newly rank of colonel in the Corps. created—and then-prestigious—Army Commendation Ribbon. R.W. and Elizabeth Ratliff Smith. Colonel Propp-Fowle was immediately re- Smith really was a “junior” because she was hired as a civilian attorney in the Military named after her mother.8 Affairs Branch, Judge Advocate Division, Smith grew up in Irvine, Kentucky, Headquarters, European Command, in and entered the University of Kentucky in Phyllis Propp-Fowle (left) was the first female Heidelberg, Germany. In this position, she 1944 in a six-year combined Bachelor of judge advocate in history. This photo was taken circa 1943. prepared circulars and other directives, Arts and Bachelor of Laws degree program. drafted legal opinions interpreting U.S. After graduating in 1950, motivated by commissioned as a second lieutenant on 3 law and Army and European Command patriotism (the Korean War was under- October 1942. When Congress gave the directives, examined contracts for legal suf- way), adventure, and a desire to get away WAAC military status as part of the Army ficiency, and supervised the legal assistance from the small Kentucky town in which and renamed it the Women’s Army Corps program in the European Command. She she had grown up, Smith applied to join the in September 1943, Propp-Fowle became also remained in the JAGD as a Reservist, WAC. She was accepted, commissioned as a one of its first members.4 and was promoted to lieutenant colonel second lieutenant, and completed the WAC Given her legal training, Propp-Fowle (LTC), WAC-Reserve, in 1949.6 basic course at Fort Lee, Virginia.9 began requesting a transfer from the Propp-Fowle remained in Heidelberg Smith served first at Fort Eustis before WAAC/WAC to the JAGD in mid-1942. until 1951, when she married Mr. being reassigned to Heidelberg, Germany, After two years, her transfer was finally Farnsworth Fowle, a newspaper reporter in March 1954. The plan was for now-First approved and, on 4 May 1944, then-CPT for the New York Times, and returned to Lieutenant Smith to work as a supply offi- Propp-Fowle (she had been promoted on the United States. She subsequently prac- cer in a Quartermaster unit in U.S. Army, 30 October 1943) became the first woman ticed law in New York City. Propp-Fowle Europe, but when the senior WAC officer to wear the judge advocate (JA) insignia remained in the Army Reserve and retired as in Europe learned that Smith was an attor- on her collar. She immediately requested a LTC in 1968. In 1999, she was inducted as ney, this officer arranged for Smith to be to attend The Judge Advocate General’s a “Distinguished Member of the Regiment.” assigned to the Northern Area Command School, U.S. Army (TJAGSA) at the She died on 12 June 2000 at ninety-two legal office located near Frankfurt. First University of Michigan—only to be refused years old. A suite of rooms at The Judge Lieutenant Smith spent three years in because the school did not accept women. Advocate General’s Legal Center and School Germany, and served in legal assistance, Consequently, she was assigned as the Post (TJAGLCS) has been dedicated to her mem- administrative law, and military justice. She Judge Advocate at Fort Des Moines, Iowa. ory in recognition of her many contributions was not formally assigned or even detailed This made sense, given that the WAC to the Army and the JAG Corps. to the JAG Corps; Smith remained a mem- headquarters was located there.5 ber of the Army WAC.10 While CPT Propp-Fowle never at- Elizabeth R. Smith Jr. In 1957, 1LT Smith applied to attend tended TJAGSA, she did deploy to Europe “Liz” Smith was the first female attorney to the 25th Special Class (the forerunner of in January 1945, becoming the first, and attain the rank of colonel.7 She also was the today’s Judge Advocate Basic Course). She only, female judge advocate to serve overseas first female judge advocate to graduate first completed the course, graduating first in in World War II. She was assigned to the in the Judge Advocate Basic Course. Colonel in her class.11 A letter to Smith from Major Office of the Staff Judge Advocate (OSJA), Smith also holds the record in the Corps for General George Hickman Jr., then serving Headquarters, European Theater, in Paris. As having been a CJA to a commanding general as The Judge Advocate General (TJAG), a result of her duty in the European-African- for twelve consecutive years. congratulated 1LT Smith for finishing Middle Eastern Theater, Propp-Fowle Born in Ravenna, Kentucky, on 27 number one in the Special Class. Hickman received a right-sleeve shoulder (combat) December 1926, she was the only child of also wrote that this “award has added

14 Army Lawyer • Lore of the Corps • Issue 1 • 2020 significance when it is realized that you Graduate Course) in 1965, finishing in the the game) and collect opera records. Opera, [Smith] were competing with 54 other of- top third of the class. Then, she joined the in fact, was her passion and the last month ficer lawyers who graduated from better law Military Affairs Division, Administrative of her tour in Germany, she went “to the schools.”12 One has to wonder what Smith Law Division, Office of the Judge Advocate opera every week.”22 Colonel Smith died at thought of this backhanded compliment. General (OTJAG). In her opinion, “it was her home in Newport News, Virginia, on 8 First Lieutenant Smith was then as- one of the best assignments you could July 2007, at eighty-one years old. signed to Fort McClellan, where she was an have.”18 As she put it in her oral history: instructor in the General Military Subjects Nancy A. Hunter Division, WAC Training Battalion. It was far better than the Military After entering the Corps in 1967, Nancy Promoted to captain in 1958, Smith then Law Division, International Law, or Hunter became the first female judge served a one-year tour as the command- anything else because a commander’s advocate to deploy to Vietnam and the first ing officer of Company B, WAC Training “meat and potatoes” is running his female military judge in Corps history. She Battalion, “an opportunity she thoroughly post, camp, or station, and he is going also was the first female Army lawyer to enjoyed.”13 to be in the area of administrative be decorated with the Bronze Star Medal. Captain Smith next served at Fort law far more than the courts-mar- Hunter also was the first female instructor Leavenworth, Kansas, where she was the tial. Anybody can do courts-martial. on the faculty at TJAGSA. only female judge advocate in the OSJA. I think it takes real talent to do Born in Detroit, Michigan, on 20 She still had her WAC status, but was now Administrative Law.19 June 1939, Hunter graduated from the temporarily detailed to the JAG Corps for a University of Colorado with a degree in period of three years.14 In December 1966, then-LTC Smith business. She then joined the Navy, serv- In 1961, at the urging of Major General left the Pentagon for an assignment as ing as a Supply Corps Officer from 1959 Charles L. “Ted” Decker, the Army formally the first legal advisor for the U.S. Army to 1964, when she began law school at granted qualified WAC officers perma- Recruiting Command (USAREC), then Georgetown University. After graduating nent detail to the JAGD. Smith applied for located in Hampton, Virginia. Her job as in 1967, and passing the New York and the new status, which was approved. This the command’s first CJA was challenging, as Virginia bar examinations, Hunter trans- permanent status with the Corps meant the Vietnam War was in full swing and the ferred from the U.S. Naval Reserve to the that while she remained in the WAC, CPT increasing unpopularity of the draft meant Army and the Corps. She completed the Smith’s career was now managed by the that Smith and her staff wrestled with 47th Judge Advocate Officer Basic Course JAG Corps rather than by the WAC Career a variety of issues, including sometimes in December 1967.23 Management Branch. It also meant that violent anti-war demonstrations at Armed Promoted to major in March 1968, CPT Smith was authorized to wear JAG Forces Examining and Entrance Stations, Hunter served in Japan until 1970, when Corps brass on her uniform.15 and handling responses to private habeas she deployed to Vietnam and was assigned Captain Smith’s next assignment was to corpus actions used to impede the induction to the U.S. Army Judiciary. At the end of TJAGSA, where she worked as the Deputy of men who had been drafted.20 her tour of duty as a special court-martial Director of the Academic Department. The When USAREC moved from Virginia judge, MAJ Hunter was decorated with the only female lawyer on the staff and faculty, to Fort Sheridan, Illinois, LTC Smith went Bronze Star Medal—most likely the first fe- Smith “managed the school’s academic with it. On 10 July 1972, while still serving male judge advocate to receive this medal.24 schedule, guest speakers, coordinated as the CJA at USAREC, Smith made history Major Hunter’s next assignment was support to the academic departments, and as the first female judge advocate to reach at TJAGSA. She first taught in the Civil otherwise assisted in the administration of the rank of colonel. The following year, Law Division and then moved to be an the academic program.”16 It was not easy after the draft and inductions ended, COL Instructor, Criminal Law Division—both to be a lone woman at TJAGSA, especially Smith helped USAREC transform itself so jobs resulting in her being the first female as not every male Soldier was convinced that it could better focus on recruiting for faculty member in our history.25 Hunter that women should be in Army uniforms. an all-volunteer Army. She was particu- retired as a lieutenant colonel in 1979. Certainly, CPT Smith’s supervisors were larly interested in institutional changes at Four other female judge advocates aware that some Soldiers held those views, USAREC that would create more opportu- from these early years deserve mention: as reflected in this senior rater comment nities for women in the Army. In any event, LTC Nora G. Springfield, the first WAC from COL John F. T. Murray, the TJAGSA COL Smith was so valued by the command granted permanent detail to the Corps in Commandant: “For anyone with a built in at USAREC that she remained as its top 1961; MAJs Mary Attaya and Ann Wansley, prejudice against women lawyers, I suggest judge advocate until she retired—with more the first two female judge advocates in a tour with Major Smith. She will overcome than twenty-six years of service—on the history to attend the Career Course (12th the prejudice and demonstrate why she is last day of May 1978, the last twelve having Class, 1963-64); and CPT Adrienne M. an outstanding officer.”17 been exclusively at USAREC.21 McOmber, the first lawyer permanently After a promotion, now-MAJ Smith In retirement, Liz Smith continued to detailed to the Corps directly from civilian completed the 13th Career Course (today’s play golf (she described herself as “fair” at life in 1966.26

2020 • Issue 1 • Lore of the Corps • Army Lawyer 15 1970s to 1990s The end of the draft after the Vietnam War and the elimination of the WAC as a separate part of the Army meant increased opportunities for women who wanted to soldier. The JAG Corps also recognized that it should encourage female attorneys to serve as JAs. By 1974, the total number of female attorneys in uniform increased from twenty-one to forty-five.27 Here, in alphabetical order, are some of the many notable female judge advocates from the last three decades of the twentieth century.

Malinda Dunn Malinda Dunn was the first female attorney to serve as the Staff Judge Advocate (SJA) of the 82d Airborne Division and XVIII Airborne Corps. She also was the first BG Malinda Dunn was the first active component LTC Pam Kirby USA was one of the first female active component female JA to be promoted female to reach flag rank in the Corps. officers selected for the Funded Legal Education to brigadier general. Program. Born in Parkersburg, West Virginia, Polk until March 2003, when she became Dunn graduated with her Bachelors of the first female JA to be the SJA at XVIII Intelligence (MI). After three years as an MI Science from Randolph-Macon College Airborne Corps. Her assignment at XVIII officer, Kirby applied for and was selected in Virginia and received her law degree Airborne Corps included tours as the SJA, for the Funded Legal Education Program from Washington and Lee University in Combined Joint Task Force-180, Bagram (FLEP). She was the second female Army Virginia. She received a direct commis- Air Force Base, Afghanistan, Operation officer to be selected for the program.31 The sion into our Corps in June 1981. As a Enduring Freedom from March—May Funded Legal Education Program had been captain, Dunn served at the 2nd Infantry 2003; and the SJA, Multi-National Corps- created two years earlier to allow up to Division, 82nd Airborne Division, and 4th Iraq, Operation Iraqi Freedom from January twenty-five active duty officers a year from Infantry Division. After completing the through July 2005.29 each of the services to attend law school at 36th Graduate Course in 1988, she worked Selected for promotion to brig- government expense. Kirby was the only in the Procurement Fraud Division in the adier general in 2005, Dunn was the female officer that year out of the twen- Pentagon before returning to Fort Bragg, Commander, USALSA, and Chief Judge, ty-five officers selected. where she was assigned to U.S. Army USACCA, before serving as the Assistant Kirby completed law school at the Special Operations Command before re- Judge Advocate General for Military Law University of Virginia and was transferred joining the 82nd Airborne Division to serve and Operations, OTJAG. Brigadier General to our Corps, thereby making her and her as its Deputy Staff Judge Advocate (DSJA) Dunn retired on 1 January 2010. Today, she husband, then-MAJ Bob Kirby, one of the and the SJA—the first female judge advocate is the Executive Director for the American earliest “JAG Corps couples.” While it is not to serve as the division’s top lawyer. Then- Inns of Courts, a professional non-partisan uncommon today for one JA to be married MAJ Dunn also worked at XVIII Airborne association of lawyers, judges, and other to another, this was unusual in the 1970s, Corps as the Chief, Administrative Law legal professionals.30 given the limited opportunities for women Division.28 in the Army generally and the small number After completing Command and Pamela Kirby of female lawyers in the Corps in particular. General Staff College at Fort Leavenworth, Pam Kirby entered the Army in 1973, with Kirby served in a variety of locations now-LTC Dunn was assigned to the 25th encouragement from her father, a retired and assignments as a JA. In the mid-1980s Infantry Division as its DSJA. Her next tour Army Infantry officer, and from her fiancé Kirby served in Germany as the Chief, of duty was in the Pentagon, where she CPT Robert (Bob) Kirby, an active duty Criminal Law, 3rd Armored Division, served as the field grade assignments officer JAG Corps officer. Kirby completed the where she dealt with repercussions from and subsequently the Chief, Personnel, Women’s Army Corps Officer Basic Course allegations of unlawful command influence Plans and Training Office (PP&TO), and then, as one of the first group ofwomen resulting from public remarks made by the OTJAG. After completing her studies at to be sent through officer training in for- division commander.32 Kirby served as the the National War College in June 2002, merly all-male branches of the Army, she Chief, Judge Advocate Recruiting Office, then-COL Dunn served as the SJA at the completed the Military Intelligence Officer in the late 1980s, and was instrumental in Joint Readiness Training Center and Fort Basic Course and was detailed to Military bringing on active duty Malinda Dunn,

16 Army Lawyer • Lore of the Corps • Issue 1 • 2020 who would be the first active component brigadier general in the Corps. In 1993, after serving twenty and one- half years in the Army, Pam Kirby retired in the rank of lieutenant colonel. Her husband Bob retired then as well after twenty-six years of active duty in the rank of colonel. After moving to Orlando, Florida, Kirby went on to have a successful second career as an associate dean and legal studies faculty at the University of Central Florida (UCF). She retired from UCF in 2012.

Musetta Tia Johnson In 2002, Musetta Tia Johnson made history as the first African-American female in the Corps to be promoted to the rank of colonel. She also was the first African-American female to earn an LL.M. at TJAGSA. COL Tia Johnson was the first African-American COL Joyce Peters (left) was the first female SJA In her nearly thirty years of outstand- female to be promoted to colonel. at I Corps, Fort Lewis (now-Joint Base Lewis- ing service as an Army lawyer (she retired McChord) and then the first female officer to serve from active duty in 2013), COL Johnson including: Fort Knox, Kentucky; Stuttgart, as the Senior Military Assistant to the Secretary specialized in international and national Germany; Leavenworth, Kansas; and the of the Army. security law, and served in a variety of Pentagon.36 Then-MAJ Merck taught overseas locations, including Bosnia, Cuba, criminal law at TJAGSA from 1988 to 1991, She was immediately—and perma- Italy, and Korea. She was the top Army law- and returned almost ten years later to be nently—detailed to the JAG Corps. After yer in Korea from 2008 to 2010. In her final the school’s first female academic director completing the 65th Judge Advocate Basic assignment in our Corps, Johnson was the in 1999. Colonel Merck retired from active Course, then-CPT Peters served as a trial Senior Military Assistant to the Department duty in 2001. counsel and Chief, Administrative Law at of Defense General Counsel.33 V Corps, Frankfurt, Germany. She then In retirement, Johnson first served as Joyce E. Peters returned to TJAGSA, where she was the the Senior Advisor to the Director, U.S. Joyce Peters had a remarkable career in only woman in her Graduate Course. She Immigration and Customs Enforcement our Corps. She was the first female JA to graduated first in the class in 1977 and then and then as the Assistant Secretary for serve as the SJA for a general court-martial remained on the faculty, where she taught Legislative Affairs, U.S. Department of convening authority and the first female administrative and civil law.38 Homeland Security. In this latter position, JA to be an Army Corps SJA. She also was After leaving Charlottesville in 1980, she was the department’s principal liaison the first JA in history to serve as the Senior Peters served in a variety of assignments, with the Congress, where she worked Military Assistant to the Secretary of the including DSJA, 2d Infantry Division, closely with authorization, appropriation, Army, the first female JA to attend a Senior Korea, and Chief, Military Personnel and oversight committees in both the House Service College, and the first female JA Branch, Litigation Division, OTJAG. In and Senate.34 She currently is the Director, to be awarded the Distinguished Service 1986, she made history as the first female JA National Security Law LL.M. Program at Medal. Colonel Peters was the second to be the SJA to the general court-martial Georgetown University and serves there as female attorney to reach the rank of colo- convening authority at U.S. Army Logistics a Visiting Professor of Law.35 nel—eighteen years after COL Liz Smith Jr. Center and Fort Lee. When she left that reached that rank. position in 1989, she went to the Pentagon, Sarah Park Merck Born in Ann Arbor, Michigan, in where she served three years in the Office Sarah Merck was the first female Director January 1947, Peters spent her childhood in of the Chief of Legislative Liaison. She also of Academics at TJAGSA and the first Texas, Pennsylvania, Michigan, Kansas, and completed the National War College in woman judge advocate promoted below the Ohio because her father’s job as a petroleum 1992, she was the first female JA to attend primary zone to colonel. engineer meant frequent moves for the fam- an Army Senior Service College. After graduating from Georgia State ily. After graduating from Radcliffe College Promoted to colonel, Peters made University in 1972 and earning her law de- in 1968 and obtaining her law degree from military legal history once again as the first gree from Emory University in 1979, Merck the University of Michigan in 1971, Peters female SJA at I Corps and Fort Lewis, Fort was directly commissioned into the Corps. spent a year practicing law in Cleveland, Lewis, Washington. She served in this po- She then served at a variety of locations, Ohio, before joining the WAC in 1972.37 sition until 1994, when she was selected by

2020 • Issue 1 • Lore of the Corps • Army Lawyer 17 then-Secretary of the Army, Togo D. West this distinction because she graduated Jr., to be his Senior Military Assistant—the first in the 36th Graduate Class in May first time in Corps history that a JA was 1988, which was the first class to receive chosen for this assignment. In fact, Peters the Masters of Law degree authorized by was the first woman to serve in this posi- Congress just months earlier. Since the tion, and most likely the first non-combat student graduating at the top of the class arms officer chosen for the job. Colonel was the first to walk across the stage at Peters retired in 1994.39 TJAGSA, Santerre was the first to receive the new post-graduate law degree from Coral W. Pietsch Major General Hugh Overholt, who was Coral Pietsch is the first female JA to reach presiding over the graduation ceremony. flag rank in our Corps. She also is the first Santerre was a 1975 graduate of the Asian-Pacific American female general University of North Dakota. Commissioned officer in Army history. She was born in as a lieutenant in the Transportation Corps, Waterloo, Iowa, to a Czech-American she served as a platoon leader and motor mother and a Chinese-immigrant father operations officer before entering law who had come to the United States to start school as a FLEP student at the University a restaurant.40 of California-Berkeley. After graduating in Pietsch earned her undergraduate 1981, and completing the Judge Advocate BG Coral W. Pietsch was the first female officer degree at the College of Saint Teresa and an to be promoted to brigadier general in the Corps. Officer Basic Course (JAOBC), she served M.A. in drama from Marquette University. Pietsch was an Army reservist. at Fort Richardson, Alaska, and Fort She obtained her law degree from Riley, Kansas, prior to attending the 36th Catholic University, Washington, D.C. on tough challenges. As part of the 2007 Graduate Class.47 Commissioned into the JAG Corps in 1974, “surge” in Iraq, she volunteered as a Then-CPT Santerre left active duty Pietsch served for four years on active duty Department of Defense civilian to deploy soon after receiving her LL.M. She contin- in Korea and Hawaii before transferring to to Iraq for a year where she was seconded ued her career as a DA civilian attorney in the Army Reserve. to the U.S. Department of State. Assigned Alaska, where she specialized in labor law.48 After active duty, she served as a dep- to be the Deputy Rule of Law Coordinator uty attorney general for the State of Hawaii for the Baghdad Provincial Reconstruction Kathryn Stone for six years. She then accepted a position Team, Pietsch assisted numerous civil “Kat” Stone has a number of “firsts” in as a Department of the Army (DA) civilian society projects involving a variety of rule Corps history. She was the first female attorney at Headquarters, U.S. Army Pacific of law partners, including the Iraqi Jurist SJA at the 10th Mountain Division (Light (USARPAC), Fort Shafter, Hawaii, rising to Union, Iraqi Bar Association, law schools, Infantry) and Fort Drum, and the first be the senior civilian attorney. and international rights, women’s rights, female SJA in a combat zone (Afghanistan). During her Army Reserve career, and human rights organizations. During Then-COL Stone also was the first female Pietsch held assignments as a contract law her time in Iraq, she also established SJA at U.S. Southern Command and the and claims officer at Headquarters, IX Corps meaningful relationships with numerous first female JA to serve as the Executive (Augmentation), Fort DeRussy, Hawaii; Government of Iraq ministries, nongov- Officer to TJAG. contract law officer, chief of legal assistance, ernmental organizations, and Coalition A native of Florida, Stone completed and chief of the administrative law division partners to help reinvigorate the rule of law her undergraduate degree at Stetson at Headquarters, IX Corps (Reinforcement), in Iraq.43 University in 1979. She was a Distinguished Fort DeRussy; and as the SJA, 9th U.S. On 1 November 2011, President Military Graduate and consequently Army Reserve Command, Fort DeRussy. As Obama nominated her to the United States commissioned into the Army in MI. After a reservist she deployed to Johnston Atoll, Court of Appeals for Veterans Claims as his taking an educational delay to complete Japan, and the Philippines.41 replacement for Judge William P. Greene (a law school at Stetson, then-CPT Stone Brigadier General (BG) Pietsch made retired JA colonel), who had reached the end elected to remain in MI in order to serve in history in July 2001, when she was proof his fifteen-year term.44 The U.S. Senate Germany, before transferring to our Corps moted to general officer—the first female confirmed BG Pietsch as the newest judge of in 1987.49 JA to achieve that rank. She then served as the Court of Appeals on 24 May 2012.45 Her In 2010, when she retired from active the Chief Judge (Individual Mobilization fifteen-year term will expire in 2027.46 duty after twenty-seven years of active Augmentee) and Commander, Judicial/ duty, COL Stone had served in a variety Defense Services Unit, until retiring in Elyce K. D. Santerre of assignments and locations, including: July 2006.42 In 1988, CPT “Lisa” Santerre made history 8th Infantry Division (Mechanized), But, even after leaving the Army as the first recipient of the newly autho- Germany; 6th Infantry Division (Light), Reserve, BG Pietsch continued to take rized LL.M. in military law. She achieved Fort Richardson and Fort Greely; 2d

18 Army Lawyer • Lore of the Corps • Issue 1 • 2020 Armored Division, Fort Hood; U.S. Special Operations Command South, Panama; and 10th Mountain Division (Light Infantry) and Fort Drum. While serving as the 10th Mountain Division SJA, then-LTC Stone deployed to Southwest Asia in late 2001 to serve as the SJA, Coalition Joint Task Force-Mountain during Operation Enduring Freedom. She arrived in Uzbekistan in early December 2001 and, while LTC Stone spent the early days of her deployment in Karshi Khanabad, she ultimately lived and worked in Bagram until re-deploying to Fort Drum. This deployment meant that Stone was the first female SJA to deploy to a combat zone.50 Colonel Stone also had previous service as the SJA, U.S. Special Operations Command South (SOCSOUTH). During COL Denise Vowell was the first female Chief BG LeAnne Burch was the first female commander this assignment in Panama, she deployed Trial Judge. of U.S. Army Reserve Legal Command. to Peru and Ecuador in late 1995 as part of Operation Safe Border. This SOCSOUTH Federal Claims as a Special Master in the LeAnne Burch mission deployed a small number of special National Vaccine Injury Compensation LeAnne Burch was the first female com- forces personnel to prevent a limited Program by the judges. A year later, Vowell mander of U.S. Army Reserve Legal border war between Peru and Ecuador was assigned as one of three special masters Command. She entered our Corps in from expanding into all-out war. Stone is in the Omnibus Autism Program, handling 1986 and served on active duty until now the top civilian attorney in OTJAG’s one-third of the court’s more than 5,000 1998, when she transitioned to the Army Professional Responsibility Office.51 cases alleging vaccine causation of autism Reserve. Burch was a private practitioner in spectrum disorders.53 Arkansas for a few years before joining the Denise Vowell Office of Chief Counsel, where she worked Denise Vowell was the first female SJA at 2000s to Present on cases involving child welfare and adult 1st Infantry Division and the first female While hundreds and hundreds of women protective services.55 Chief Trial Judge in Corps history. An hon- have served as JAs in the first two decades As she continued her JA career, ors graduate of Illinois State University, she of the twenty-first century, and there are then-COL Burch deployed to Afghanistan earned her law degree through the FLEP at many who deserve mention, this short from September 2008 to August 2009. She the University of Texas in 1981.52 history can only identify a small number of was assigned to the Combined Security Vowell enlisted in the Army in 1973 them, and furnish limited details. Transition Command-Afghanistan and while an undergraduate and received a served as the Chief, Afghan National Army/ direct commission in the WAC in 1974. Rebecca E. Ausprung Ministry of Defense Legal Development.56 She served as a military police officer Rebecca E. “Becky” Ausprung is one of In 2012, Burch was selected for brig- at Fort Knox and with the 1st Cavalry four attorneys with Senior Executive adier general, and she served first as the Division, where she was in command of Service (SES) status in the Corps. She is Reserve Chief Judge for USALSA before a company at the time of her selection for the Director, Civil Law and Litigation, becoming the Commander, U.S. Army the FLEP. As a JA, COL Vowell served USALSA. Ausprung began her career in Reserve Legal Command in 2013. She in a variety of positions and locations, the Corps as a uniformed attorney. From retired from the Army Reserve in May including: Government Appellate Division, 1999 to 2001, she served at III Corps as a 2016. Today, Burch serves in the House of Falls Church, Virginia; PP&TO, OTJAG; trial counsel and legal assistance officer Representatives in Arkansas, where she is Tort Branch, Litigation Division, OJTAG, before being reassigned to Germany, where the current Minority Whip.57 and Trial Judge and Chief Circuit Judge, she served first as a defense counsel in 1st Judicial Circuit; and SJA, 1st Infantry Kitzingen and the Senior Defense Counsel Kirsten Brunson Division. She made history when she was in Wuerzburg. Ausprung then served in Kirsten Brunson was the first African- selected to serve as the first female Chief the Litigation Division from 2004 to 2007 American female in our Corps to qualify and Trial Judge, U.S. Army Trial Judiciary. She before leaving active duty and transitioning sit as a military trial judge. She graduated retired from active duty in January 2006, to the Army Reserve. She left the Reserve from the University of Maryland in 1987 and was then appointed by the Court of Component in 2012.54 and, having been cross-enrolled in Howard

2020 • Issue 1 • Lore of the Corps • Army Lawyer 19 Judge Paulette Burton was the first African- BG Marilyn Chiafullo is currently a brigadier general LTC Jennifer Crawford was Instructor of the Year at American female to be a judge on the U.S. Court of in the Army Reserve. Command and General Staff College. Military Commissions Review. Karen H. Carlisle Jennifer L. Crawford University’s Reserve Officers’ Training Karen Carlisle is a member of the SES and Jennifer “Jen” Crawford was the first JA Corps program, commissioned into the is the Director, Soldier and Family Legal named as the Military Instructor of the Year Military Police Corps (MPC). But, Brunson Service, OTJAG. She had a long career as a at Command and General Staff College. The received an educational delay and obtained JA prior to joining the SES.59 award is presented yearly to be best military her law degree from the University of Commissioned after graduating from instructor and is based on “excellence in the California, Los Angeles in 1991. college in 1990, Carlisle served first in the four domains of teaching, service, scholar- Colonel Brunson joined the Corps and MPC before obtaining her law degree as a ship and faculty development.”61 served in a variety of assignments, includ- FLEP student at Florida State University Lieutenant Colonel Crawford en- ing: V Corps and XVIII Airborne Corps; in 1998. She then served in a variety of tered the Corps with a direct appointment Defense Appellate Division, USALSA; locations and assignments, including: DSJA, in 1999 and served in a variety of loca- 101st Airborne Division; and U.S. Special Fort Benning, Georgia; DSJA, U.S. Forces- tions and assignments, including Korea, Operations Command. After completing Afghanistan; SJA, 1st Armored Division, Germany, and Iraq. Then-MAJ Crawford the Military Judges Course in 2008, she Fort Bliss, Texas; Chief, Administrative was an Assistant Professor at Command served as a trial judge at Fort Hood, Texas, Law, OTJAG; and SJA, U.S. Army Africa/ and General Staff College from 2006 to before retiring from active duty. Southern European Task Force, Vicenza, 2010, during which time she was named Italy. She retired from active duty in 2019.60 Military Instructor of the Year. She left Paulette V. Burton active duty and transitioned to the Army Paulette Burton is the first African- Marilyn S. Chiafullo Reserve. Lieutenant Colonel Crawford is American female JA to serve on the In May 2016, Marilyn S. Chiafullo was currently serving as the Associate Dean for U.S. Court of Military Commissions confirmed by the Senate to be a brigadier Adjunct Professors at TJAGLCS.62 Review (CMCR), a federal court created general in the Army Reserve. In her almost by Congress to hear appeals from mili- thirty years of active and Reserve service, Flora D. Darpino tary commissions. She was appointed by BG Chiafullo has been the Chief of Staff, No JA—male or female—has been more President Barack Obama to serve on the U.S. Army Reserve Legal Command, Chief successful in the twenty-first century CMCR in May 2016. Lieutenant Colonel of Reserve Component Management in than Lieutenant General (LTG) Flora D. Burton became the Chief Judge of the OTJAG’s PP&TO, and SJA, Division West, Darpino. She was the first female TJAG, CMCR in May 2017. Burton also is the First U.S. Army. She also has a combat tour first directly commissioned officer to be the first African-American female to serve as in support of Operation Enduring Freedom Army’s top lawyer in the modern era, and a judge on the Army Court of Criminal while serving as the Theater Defense first half of a JAG Corps couple to achieve Appeals. She is now the Senior Judge on Counsel, U.S. Army Trial Defense Service, general officer rank. She also was the first Panel 2.58 Afghanistan. In addition to her Army female Commander at TJAGLCS. Finally, Reserve duties, BG Chiafullo serves as an Darpino was an SJA at both a division and a attorney-advisor at PP&TO. corps in a combat zone.

20 Army Lawyer • Lore of the Corps • Issue 1 • 2020 COL Pam Harms (formerly Stahl), December, 2009 at Camp Higashi, Chitose, Hokkaido, Japan.

Then-CPT Flora Darpino receives an award from COL Walter B. Huffman. Huffman was TJAG from 1997 to 2001 and Darpino was TJAG from 2013 to 2017.

Directly commissioned into our Corps the active component Army to reach gen- in 1987 after receiving her law degree eral officer rank.63 from Rutgers University, LTG Darpino After graduating from the University served in a variety of assignments and of California-Berkeley in 1988, Escallier locations, including Germany, Iraq, Texas, was commissioned through ROTC in the and the Washington, D.C. area. Then- Signal Corps. She subsequently served in LTC Darpino was the SJA, 4th Infantry the 25th Infantry Division until attending Division (Mechanized), when that unit law school as a FLEP student at Ohio State deployed from Fort Hood to Iraq in 2003. University. After transferring to the Corps, She subsequently served as the DSJA at III she served in a variety of assignments Corps at Fort Hood before working as the and location, including Fort Bragg, North Chief, Criminal Law Division, OTJAG. Carolina, and Fort Campbell, Kentucky, Then-COL Darpino’s next assignment was where then-COL Escallier was the SJA at as the SJA, V Corps, Heidelberg, Germany. the 101st Airborne Division (Air Assault). She deployed to Iraq with that unit to serve Her last assignment prior to being selected as SJA, U.S. Forces-Iraq, where she was the for brigadier general was at Fort Hood, COL (Ret.) Patty Ham was the first female judge senior military attorney in the country. Texas, where she was the SJA for III Corps. advocate to deploy in Desert Shield/Desert Storm. In 2009, Darpino was selected for Brigadier General Escallier now serves as She was also the first female to head the Criminal Division at TJAGLCS. She is pictured here with LTG brigadier general. She was the first female the Commander, USALSA and Chief Judge, Charles Pede, The Judge Advocate General. commander of TJAGLCS and later served U.S. Court of Criminal Appeals.64 as the Commander, USALSA, and Chief was as the Chief of Staff, Response Systems Judge, ACCA. Darpino was promoted to Patricia A. Ham (formerly Martindale) to Adult Sexual Assault Crimes Panel. lieutenant general in September 2013 and In August 1990, then-CPT Patricia Colonel Ham retired in early 2015.66 served as the 39th Judge Advocate General Martindale was the first female JA to deploy of the Army until retiring in July 2017. to Southwest Asia in Operation Desert Jeannine C. Hamby Shield/Desert Storm in August 1990.65 The first and only female JA to be awarded Susan Escallier Almost fifteen years later, from 2004 to the Soldier’s Medal—the Army’s highest Susan K. Escallier was the second female 2006, then-LTC Ham was the first female decoration for non-combat valor. On 14 SJA at the 101st Airborne Division (Air chair of the Criminal Law Department at July 2002, Hamby “saved a second-year law Assault). She also is the third female JA in TJAGLCS. Her last active duty assignment student working in the Judge Advocate

2020 • Issue 1 • Lore of the Corps • Army Lawyer 21 General’s Summer Intern Program from Ellie Trefzger Morales the SJA, U.S. Army Training and Doctrine a violent rape attack.” As her citation Army Reserve CPT Ellie Morales was the Command and retired in July 2015.71 explains: first female JA to be awarded the General Douglas MacArthur Leadership Award. Sarah J. Rykowski When Major Hamby awoke to the This prestigious honor is presented to Then-CPT Sarah Rykowski was the first screams of the intern being attacked fewer than twenty Army junior officers female JA to be awarded the Purple Heart. by a male intruder in her house, she each year. On 17 May 2007, she was part of a convoy ran to find the naked male intruder After graduating from Davidson that was hit by an improvised explosive attacking the terrified intern. Though College, North Carolina, and obtaining her device. Rykowski was hit in the face with Major Hamby was herself unarmed law degree from Wake Forest University, debris and a piece of shrapnel also pierced and in danger from the attacking Morales joined the Corps in 2010. She her bicep. She was the only survivor in intruder, she bravely confronted the served one tour in Afghanistan and transi- her High Mobility Multipurpose Wheeled attacker, interposed herself between tioned to the Army Reserve in 2015. Today, Vehicle; one of the Soldiers killed was the attacker and the terrified intern, she works as an Assistant U.S. Attorney for Specialist Coty Phelps, an MOS 27D and drove the attacker away from the the Department of Justice.68 Paralegal Specialist.72 intern and out of the house. Major Hamby then gave the police the infor- Tara A. Osborn Conclusion mation that led to the attacker’s arrest, Tara Osborn served as the Chief Trial From only few female JAs in the 1940s and line-up identification, and conviction. Judge of the U.S. Army until she retired 1950s, the Corps today has more than 500 as a colonel in 2017. In that position, she female lawyers in uniform. When one also Pamela Harms (formerly Stahl) oversaw judicial operations at military in- considers that it was not until 1972 that a Pamela “Pam” Harms was the first female stallations worldwide, and led all active duty female wearing the crossed-pen-and-sword SJA of the 101st Airborne Division (Air and Army Reserve judges of the U.S. Army on her collar was promoted to colonel, and Assault). She also was the first female SJA at Trial Judiciary. Osborn also presided over a that another eighteen years would pass USARPAC. number of felony criminal trials, to include before a second female JA wore eagles on Born in Aberdeen, South Dakota, COL the high-profile death penalty court-martial her shoulders, one can only conclude that Harms grew up on a farm. She earned a of MAJ Nidal Hasan at Fort Hood, Texas. gender equality was a long time coming. In degree in English and Speech from Northern Hasan was convicted of killing thirteen retrospect, it is clear that it was not until the State University and completed her legal individuals and wounding another thirty WAC was eliminated as a separate part of studies at the University of Denver. After di- men and women in a November 2009 mass the Army in 1978 that progress was possible. rectly commissioning into the Corps in late shooting.69 If anything, this short history of 1987, Harms served in a variety of assign- In her JA career, COL Osborn served in women in the Corps illustrates that once ments and locations, including: VII Corps, a variety of assignments and locations, in- barriers to joining the Corps faded away, Stuttgart, Germany; 2d Corps Support cluding Germany, Iraq, and Korea. Osborn the chief problem for female JAs was Command, Nellingen, Germany, and Saudi had over twenty-nine years’ active duty in upward mobility. Colonel Liz Smith, for Arabia (as part of Operations Desert Shield/ the Corps when she left active duty.70 example, knew that “promotion to colo- Desert Storm); and DSJA, 1st Armored nel was a distant hope, at best.”73 Even in Division. Then-LTC Harms also served as Sharon E. Riley the early 1970s, senior JAs like Brigadier the Chair, Administrative and Civil Law Sharon Riley was the first female director of General Wilton Person, who would serve Department, TJAGLCS, and as the Director, the Center for Law and Military Operations as TJAG from 1975 to 1979, was telling Center for Military Law and Operations. and the first female director of the Legal aspiring female lawyers like Joyce Peters While the SJA at the 101st Airborne Center. that she would not be able to go beyond the Division, she deployed to Iraq to serve as After receiving her law degree from rank of colonel.74 Certainly, Persons never the SJA, Multi-National Division-North and Temple University, Riley directly com- anticipated that a woman would wear three Task Force Band of Brothers. She completed missioned into the Corps in January 1987. stars and serve as TJAG while he was still her military career as the SJA, USARPAC. She subsequently served in a variety of living. In fact, female JAs now have served increasingly important assignments, in every rank in our Corps except for major Denise R. Lind including: Officer in Charge, Schweinfurt general, and one expects that this omission Denise Lind was the presiding judge in Law Center, Germany, from 1996 to 1998 will disappear sooner rather than later. the high-profile general court-martial of (which included being the DSJA (Forward), Moreover, there are few if any assignments Private First Class Bradley (now-Chelsea) 1st Infantry Division, Tuzla, Bosnia from that have not been filled by female Army Manning in 2012. After retiring from 1997 to 1998); SJA, 1st Armored Division, lawyers, reflecting that gender is no longer active duty in 2015, she took a position as Baghdad, Iraq, and Wiesbaden, Germany; a barrier to service. Certainly gender no an attorney advisor with the U.S. Military Director, Legal Center, TJAGLCS, from longer is an obstacle to service in a combat Commissions Trial Judiciary.67 2011 to 2014. She completed her career as zone, as more than a few female JAs have

22 Army Lawyer • Lore of the Corps • Issue 1 • 2020 served as division- (e.g., then-LTC Flora 23. THE JUDGE ADVOCATE GENERAL’S SCHOOL, 22ND Legal Center and School, Charlottesville, Virginia, An ADVANCED CLASS DIRECTORY 74 (1973). Oral History of Denise K. Vowell, Colonel (Retired), Darpino at 4th Infantry Division) and U.S. Army 1973-2006, (Nov. 2012). corps-level SJAs (e.g. then COL Dunn at 24. Id. 53. Id. XVIII Airborne Corps). 25. THE JUDGE ADVOCATE GENERAL’S SCHOOL, COMMANDANT’S ANNUAL REPORT (1970-71). 54. Email Rebecca E. Ausprung to Fred Borch While no one can be certain what the (Dec. 9, 2019) (on file with author); REBECCA 26. THE JUDGE ADVOCATE GENERAL’S SCHOOL, E. AUSPRUNG BIOGRAPHY, JAGCNET, https:// future will bring, if the past is prologue, COMMANDANT’S ANNUAL REPORT FISCAL YEAR 1974, at 11 then female JAs will continue to serve with (1974); Smawley, supra note 7, at 174. www.jagcnet2.army.mil/Sites/JAGC.nsf/ E32E9DDF577B16338525827900671644/$File/ honor and distinction. TAL 27. Id. Asprung%20Ms%20Bio%20and%20Photo%20 28. About Us, AMERICAN INNS OF COURT, http://home. 20180424.pdf (last visited Dec. 9, 2019). Mr. Borch is the Regimental Historian, innsofcourt.org/AIC/About_Us/AIC/AIC_About_Us/ 55. LeAnne Burch, STATE OF ARKANSAS: HOUSE OF Archivist, and Professor of Legal History and About_Us.aspx?hkey=72647b55-4a23-4263-8a3e- REPRESENTATIVES, https://www.arkansashouse.org/ 817098c808fa (last visited Nov. 26, 2019). Leadership. district/9 (last visited Dec. 9, 2019). 29. Id. 56. Id. 30. Id. 57. Id. 31. EXECUTIVE SUMMARY, AN ORAL HISTORY OF 58. Email from LTC Paulette Burton to Fred Borch Notes LIEUTENANT COLONEL (RET.) PAMELA KIRBY (2017). 1. Bettie J. Morden, Women’s Army Corps, HISTORICAL (Dec. 9, 2019) (on file with author). DICTIONARY OF THE U.S. ARMY 519 (2001). For more on 32. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 59. KAREN H. CARLISLE BIOGRAPHY, JAGCNET, the WAC, see BETTIE J. MORDEN, THE WOMEN’S ARMY 1986); United States v. Thomas, 22 M.J. 388 (C.M.A. https://www.jagcnet2.army.mil/Sites/jagc.nsf/0/ CORPS, 1945-1978 (1990), https://history.army.mil/ 1986). From 1984 to 1986, the Army Court of EDBFA72D26A9752A85257D7300467912/$File/ html/books/030/30-14-1/cmhPub_30-14.pdf. Military Review, reviewed—and reversed—a series of Carlisle%20SES%20Bio%20-%2020191101.pdf (last 2. David Coleman, U.S. Military Personnel 1954-2014, courts-martial tainted by unlawful command influence. visited Dec. 9, 2019). United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1986); HISTORY IN PIECES, https://historyinpieces.com/re- 60. Id. search/us-military-personnel-1954-2014 (last visited United States v. Thomas, 22 M.J. 388 (C.M.A. 1986). See Nov. 26, 2019). also S. REP. NO. 102-1 (1991). 61. CGSC Graduation Awards, COMMAND AND GENERAL STAFF COLLEGE FOUNDATION INC., http://www.cgscfoun- 3. Wolfgang Saxon, Phyllis Propp Fowle, 92, Officer in 33. U.S. Dep’t of Army, DA Form 4037, Officer Record Brief—Musetta Tia Johnson (27 June 2013). dation.org/newsroom/cgsc-graduation-awards/ (last Army Judge Advocate Corps (sic), N.Y. TIMES B7 (June visited Dec. 9, 2019). 26, 2000). 34. M. Tia Johnson, U.S. DEP’T OF HOMELAND SECURITY, 62. Reserve Command Military Service Automated 4. Id. https://www.dhs.gov/archive/person/m-tia-johnson (last visited Dec. 15, 2019). Brief Record—Jennifer L. Crawford (Sept. 4, 2019) (on 5. Id. file with author). 35. M. Tia Johnson, GEORGETOWN LAW, https://www. 6. Id. law.georgetown.edu/faculty/m-tia-johnson/ (last 63. The first two were Brigadier General Malinda Dunn and Lieutenant General Flora Darpino. 7. For a comprehensive look at Smith’s career, see visited Dec. 15, 2019). 64. BRIGADIER GENERAL SUSAN K. ESCALLIER BIOGRAPHY, Major George R. Smawley, The First Female Colonel of 36. THE JUDGE ADVOCATE GENERAL’S SCHOOL, 39TH JUDGE JAGCNET, https://www.jagcnet.army.mil/Sites/JAGC. the U.S. Army Judge Advocate General’s Corps: A Summary ADVOCATE OFFICER GRADUATE CLASS (1990). and Analysis of the “Oral History of Colonel Elizabeth R. nsf//2EFE4CCC57EE647F8525817D0065477D/$File/ 37. Resume, Joyce E. Peters, Senior Military Assistant Smith, Jr. (USA Retired) (1951-1978),” 179 MIL. L. REV. Escallier%20BG%20Bio%20and%20Photo%20CDR%20 171-209 (2004). to the Secretary of the Army (1994) (on file with the USALSA.pdf (last visited Dec. 9, 2019). author). 8. Id. 65. FRED L. BORCH, JUDGE ADVOCATES IN COMBAT 148 38. Id. (2001). 9. Id. at 183. 39. Id. 66. Email from Patricia Ham to Fred Borch (Dec. 9, 10. Id. at 184. 40. William Cole, Army Reserve Lawyer has Star Power: 2019) (on file with author). 11. High Court Admits WAC to Practice, SUNDAY STAR Island Resident First Female JAG General in Branch, 67. Carol Rosenburg, Army Judge in Chelsea Manning (Jan. 17, 1962). HONOLULU ADVERTISER A1 (July 24, 2001). Case Now Working at Guantanamo, MIAMI HERALD (Oct. 12. Letter from Major General George Hickman to 41. Id. 22, 2015). 1LT Elizabeth Smith (June 10, 1957) (unpublished) (on 68. Woody Marshall, Road Not Taken, DAVIDSON J., file with author). 42. Judge Coral W. Pietsch,U .S. COURT OF APPEALS FOR VETERANS CLAIMS, https://www.uscourts.cavc.gov/ Spring-Summer 2019, at 15. 13. Smawley, supra note 7, at 187. pietsch.php (last visited Dec. 5, 2019). 69. For a recitation of the facts, see Nidal Hasan 14. Id. 43. Id. v. United States, Army Court of Criminal Appeals (en banc), Memorandum Opinion and Action on

15. Id. 44. Id. Petitions for Extraordinary Relief in the Nature of 16. Id. at 190. 45. Id. a Writ of Prohibition and a Writ of Mandamus, Misc. 20120876, 20120877 (Oct. 18, 2012), https:// 17. U.S. Dep’t of Army, DA Form 67-5, Officer 46. Id. www.jagcnet.army.mil/sites/acca.nsf/0/5D- Efficiency Report—Elizabeth R. Smith Jr. (31 Mar. 43DA05091A516B85257B43005496C2/$FILE/ 1963). 47. THE JUDGE ADVOCATE GENERAL’S SCHOOL, 36TH GRADUATE CLASS DIRECTORY (1987). Memorandum_Opinion_18_Oct_12.pdf. 18. Smawley, supra note 7, at 191. 48. Id. 70. Biography—Colonel (Ret.) Tara A. Osborn (2017) 19. Id. (on file with author). 49. Email from Kathryn Stone to Fred Borch (Dec. 4, 20. Recruiters and personnel manning Armed Forces 2019) (on file with author). 71. Id. Examining and Entrance Stations (AFEES) faced dem- 72. KIRSTEN HOLMSTEDT, THE GIRLS COME MARCHING onstrators who threw real and artificial blood on them 50. Id. HOME 245 (2009). and their files, and one AFEES was bombed. Id. at 193. 51. Id. 73. Smawley, supra note 7, at 206. 21. Id. 52. Major Temi Anderson, Major Aaron Lykling & 74. Id. 22. Id. Major David O’Dea, The Judge Advocate General’s

2020 • Issue 1 • Lore of the Corps • Army Lawyer 23 Left: The Joseph Holt Mansion was built in the 1850s and was once part of a 10,000 acre estate. The home was placed on the National Register of Historic Places in 1976. Above: Brigadier General Joseph Holt was President Lincoln’s judge advocate. He served as The Judge Advocate General from 1862-1875.

stabilization and restoration of the home for a total of $1.4 million. This amount includes a $150,000 Save America’s Treasures The Holt House’s History Grant and two $500,000 Transportation Enhancement Grants. The Friends of the Holt House, Inc., is now planning the final By Fred L. Borch III stages of the restoration of the interior of the home. For more information on this project, visit www.jholt-houseky.org/Events. Over the years, many judge advocates In 1997, local school teacher Susan B. Holt was born in Breckinridge County, have visited the Holt home in Kentucky, Dyer was out for a long Sunday after- Kentucky, and his family home is still and all members of the Regiment are noon drive when she spotted the Holt standing. Located on the banks of the invited to see what Susan Dyer and other family mansion. Dyer decided that her Ohio River, it is a magnificent structure. volunteers have accomplished. The Corps mission was to bring awareness of the his- The three-story, brick building is located owes her a debt of gratitude for preserving torical importance of Joseph Holt and the on State Highway 144, one mile west of this important part of our history.2 TAL Holt home to people all across Breckinridge Addison, Kentucky, and is situated in a County, Kentucky, and all across the nation. grove of trees on a plain. The western two- Mr. Borch is the Regimental Historian, Archivist, As she tells all who will listen, her “heart thirds of the home date from 1850, but the and Professor of Legal History and Leadership. was touched” by the sight of Holt’s boyhood east wing and trim seem more characteristic home. For many years, the house had been of the 1870s. The home has many features vacant and had deteriorated badly. of an Italianate villa. The Holt family man- Notes Joseph Holt (1807-1894) was President sion is unique in that no other tJAG home 1. When first appointed as the Judge Advocate General in 1862, Joseph Holt held the rank of colonel. He was Abraham Lincoln’s lawyer. President Lincoln has been restored and is open to the public. promoted to brigadier general in June 1864 and, some chose Holt to be the Judge Advocate General Thanks to Ms. Dyer’s truly relentless years after the Civil War had ended, was breveted a (tJAG) of the Army during the Civil War. efforts, the Holt mansion is undergoing a major general in recognition of his faithful, meritori- ous and distinguished services during the conflict. THE Even after the President was assassinated at complete restoration. The Breckinridge JUDGE ADVOCATE GENERAL’S CORPS, THE ARMY LAWYER Ford’s Theater on 14 April 1865, Brigadier County Fiscal Court purchased the struc- 50, 53 (1975). General Holt continued to serve as the ture in 2008 with funding secured from the 2. Susan B. Dyer, Joseph Holt: Lincoln’s Judge Army’s top lawyer. In fact, Holt did not retire Lincoln Bicentennial Commission. Since that Advocate General, Lecture at the Fifth Annual George S. Prugh Lecture in Military History, in 211 MIL. L. as tJAG until 1875, which means that he is time, Dyer and other restoration project vol- REV. 299, 299-315 (2012). the longest-serving tJAG in history.1 unteers have secured sixteen grants toward

24 Army Lawyer • Lore of the Corps • Issue 1 • 2020 Sergeant Major (Ret.) Howard Metcalf was the Regimental Sergeant Major from 1998 to 2002.

82nd Airborne Division with the First Battle Group, 325th Airborne Infantry Regiment from 1961 to 1963 before entering law school on the Excess Leave Program. After obtaining his juris doctor (J.D.) from Georgetown University in 1966, Adams spent a year at the Office of The Judge Advocate General (OTJAG) before moving to Charlottesville, Virginia, where he attended the 16th Advanced Course and taught two years in the Procurement Law Division of The Judge Advocate General’s School (TJAGSA). In May 1970, then-Ma- jor (MAJ) Adams deployed to Saigon, Vietnam, where he served a tour of duty at the Army Procurement Agency. He resigned his Regular Army commission in 1971 and transferred to the Army Reserve, from which he retired as a lieutenant colonel (LTC). He was a partner in several Washington, D.C., law firms before his death. Lieutenant Colonel Adams is survived by his wife, Rosemary, and two daughters and four grandchildren.

Kenneth J. Allen (1949–2019) Born in Patterson, New Jersey, on 6 November 1949, Allen enlisted in the Army in 1970 as a Private (E-2) on the Delayed Entry Program. He left active duty as a sergeant to attend law school at the In Memoriam University of Louisville, from which he graduated in 1976. Allen then applied for a commission as a judge advocate (JA); and, after being Remembering Recently Departed Members accepted and completing the 82d Judge Advocate Basic Course, then-CPT Allen of the Judge Advocate General Corps in 2019 served as a defense counsel at Fort Jackson, South Carolina. From 1980 to 1982, he was the Chief Commissioner, Army Court By Fred L. Borch III of Military Review (today’s Army Court of Criminal Appeals). He then attended the 31st Graduate Course, from which he The following members of our Regiment, in alphabetical order, passed away in 2019. graduated in 1983. After Allen left active duty the following year, he worked as a Department of the Army civilian attorney in three locations: Wilsie Horton Adams Jr. (1938–2019) Maryland, from which he graduated in Primasens and Zweibrucken, Germany, Born in Baltimore, Maryland, on 6 1956. He then entered the U.S. Military from 1984 to 1987; Fort Ritchie, Maryland, December 1938, Adams went to Loyola Academy (USMA). Commissioned into from 1987 to 1997; and Fort Detrick, Blakefield High School, Towson, the infantry in 1960, Adams served in the Maryland, from 1997 to 2007, when he

2020 • Issue 1 • In Memoriam • Army Lawyer 25 retired. Allen also had a career as a JA in the Brian Banks (1955–2019) completed airborne training and earned the Army Reserve, and served as the Command Major (Ret.) Banks died on 13 September Basic Parachute Badge in 2017. Judge Advocate (CJA), 412th Engineer 2019. He had retired from the Corps in In October 2018, SGT Cherry joined Command (Forward), and Seckenheim, 2004 and was sixty-four years old at the the Active Guard Reserve (AGR) program Germany, and CJA, 315th Engineer Group, time of his death. and was assigned to the United States Cumberland, Pennsylvania. Born on 5 June 1955, Banks enlisted in Army Reserve Legal Command, 2nd Legal Allen was the author of a number the Army in 1975 and completed Infantry Operations Detachment (LOD). Although of professional publications, including Basic Training and Advanced Individual SGT Cherry’s time spent with the Legal Thomson Reuters’s 900-page The Contract Training at Fort Polk, Louisiana. He then Command was brief, he left a lasting impres- Interpretation Handbook: A Manual for served as an infantryman (MOS 11C) in sion on his fellow Soldiers and will be truly Avoiding and Resolving Government Contract the 2nd Infantry, 4th Infantry, and 10th missed by his colleagues, leaders, and friends. Disputes, and its 1,600-page Federal Grant Mountain Divisions before attending col- Sergeant Cherry is survived by his parents. Practice. He also was an adjunct member lege at University of Colorado and earning of the Naval Postgraduate School, where dual-major bachelor degrees in Political Joseph Powell Creekmore (1938-2019) he taught on topics such as ethics in public Science and History in 1983. Colonel (COL) (Ret.) Creekmore died on contracting. He subsequently earned his J.D. from 28 March 2019. He was eighty years old. Lieutenant Colonel (Ret.) Allen died Washburn University School of Law. After Born in Whiteville, North Carolina, on on 18 May 2019. He was sixty-nine years directly commissioning in the Corps in 24 May 1938, Creekmore graduated from old and is survived by his wife, Terry. 1987, Brian completed the 114th Judge the University of North Carolina at Chapel Advocate Basic Course. He then served in Hill in 1960 and finished his law degree Gary Layton Anderson (1943–2019) a number of locations and assignments, there two years later. After passing the Lieutenant Colonel (Ret.) Anderson died including: Group Judge Advocate, 5th North Carolina bar examination in 1962, on 17 September 2019. Born in Kansas Special Forces Group (Airborne); Deputy then-First Lieutenant Creekmore joined City, Missouri, on 12 February 1943, Staff Judge Advocate, 5th US Army; Senior the Corps. Between 1962 and 1982, when Anderson earned his undergraduate Defense Counsel, 3rd Infantry Division; he retired as a colonel, Creekmore served degree from Westminster College and CJA, U.S. Army John F. Kennedy Special in Vietnam, Okinawa, Philippines, Taiwan, his law degree from the University of Warfare Center and School; and SJA, Joint Thailand, Korea, Italy, and Germany. Texas. He then served as a JA for twenty Special Operations Task Force-Afghanistan, After leaving active duty, Creekmore years and, before being appointed as an Kharshi-Kanabad, Uzbekistan, and Bagram, was the Clerk of Court, U.S. District Assistant U.S. Attorney for the Western Afghanistan. Court for the Middle District of North District of Texas, he worked in the Civil In 2005, Banks returned to work for Carolina until he retired a second time Division in San Antonio until retiring the Army as a civilian administrative law in 2002. Colonel (Ret.) Creekmore was in early 2018. Lieutenant Colonel (Ret.) attorney at 1st Special Forces Command predeceased by his wife and survived by Anderson was interred in the Fort Sam (Airborne), Fort Bragg, North Carolina. two children, three grandchildren, and six Houston National Cemetery. Major (Ret.) Banks is survived by his wife, great-grandchildren. two daughters, and one son. Leonard Neil “Leo” Atkinson Jr. (1959–2019) Howard C. “Howie” Eggers (1942–2019) Sergeant First Class (Ret.) Atkinson died Charles Raphael Cherry (1991–2019) Colonel (Ret.) Eggers died on 25 March on 11 March 2019. Born in Sweet Grass, Sergeant (SGT) Cherry died on 4 September 2019 in Colorado Springs, Colorado. Born Montana, on 24 August 1959, Atkinson 2019. He was twenty-eight years old. Born in San Francisco, California, on 30 August enlisted in the Army when he was seven- in Brooklyn, New York, on 25 June 1991, he 1942, he was the eldest of four children and teen years old. He was a paralegal specialist attended Long Beach Community College also grew up in San Francisco. After gradu- military occupational specialty (MOS) 71D before enlisting in the Army Reserve. ating from the University of San Francisco (today’s MOS 27D) and served in Southwest After successful completion of Advanced in 1967, he entered the Corps. Asia during Desert Shield/Desert Storm. Individual Training as a paralegal spe- When he retired from active duty in After retiring as a sergeant first class with cialist MOS 27D in 2013, SGT Cherry 1994, COL Eggers served in a variety of twenty-two years of active duty, Atkinson was assigned to the Headquarters and assignments. He was the SJA, U.S. Army worked as a civilian employee at Fort Headquarters Company, 425th Civil Affairs Southern European Task Force in the early Jackson, South Carolina. Battalion in Encino, California. In 2016, 1980s and later served in the Army Trial Sergeant First Class (retired) Cherry was assigned to the 79th Theater Judiciary. He also had a tour of duty at the Atkinson’s wife predeceased him. Atkinson Sustainment Command in Los Alamitos, Office of Congressional Legislative Liaison. is survived by two sons, a daughter, and California. While in this assignment, he After retiring from active duty, COL Eggers a grandson. He was interred at the Fort demonstrated a superior competitive spirit joined the faculty of the U.S. Air Force Jackson Military Cemetery. by participating in multiple “Best Warrior Academy Law Department, where he worked Competitions.” He also, successfully, as a civilian law professor for nineteen years.

26 Army Lawyer • In Memoriam • Issue 1 • 2020 Colonel (Ret.) Eggers was predeceased Robert Michael “Mike” Lewis (1952–2019) 21st Support Command, Kaiserslautern, by his wife. He is survived by one daughter, Lieutenant Colonel (Ret.) Lewis died on Germany; Instructor Developer with one son, and three grandchildren. 14 August 2019. He was sixty-seven years Company C, 1st Battalion, Troop Brigade, old. Born in Auburn, New York, on 23 Fort Ben Harrison, Indiana; Senior Legal Francis X. “Frank” Gindhart (1940–2019) March 1952, Lewis joined the Army in 1973 NCO, Combined Field Army, Korea; and Colonel (Ret.) Gindhart died on 18 after graduating from the University of MOS 71D Branch Manager, Military February 18, 2019. He was seven- Delaware. Initially, he served as a military Personnel Center, Falls Church, Virginia. ty-eight years old. Born in Philadelphia, intelligence officer, but left active duty to In November 1997, Metcalf was Pennsylvania, on 27 August 1940, Gindhart attend law school at Syracuse University. selected as the 8th Sergeant Major of the attended La Salle University before earning He then returned to active duty with the Corps, and he assumed that position on 17 his law degree from the University of Corps in 1981. February 1998. Metcalf served with honor Pennsylvania School of Law. He then joined Lewis served in many assignments, in- and distinction under both Major Generals the Corps, and served a tour of duty as an cluding Fort Eustis, Virginia, Fort Stewart, Walter B. Huffman and Thomas J. Romig. Army lawyer in Vietnam from 1967 to Georgia, and Korea. A graduate of the He retired as our Corps’s Sergeant Major on 1968. After leaving active duty, Gindhart 37th Graduate Class, Lewis served as the 30 August 2002. transitioned to the Army Reserve and he OTJAG Assistant Executive Officer before Sergeant Major (Ret.) Metcalf is retired as a colonel after thirty years of attending George Washington University, survived by his wife and their two sons. combined active and Reserve service. where he earned an LL.M. in environmen- He was interred on 1 December 2019, in Frank also served in a number of tal law. Lieutenant Colonel Lewis then the Fort Jackson National Cemetery, Fort important judicial administrative positions, served as the Environmental Law Specialist Jackson, South Carolina. including: Reporter of Decisions and Clerk at U.S. Forces Command before being of Court of the U.S. Court of Appeals for assigned as the Chief, Litigation Branch, Joseph Andrew Rehyansky Jr. (1946–2019) the Armed Forces; Chief Deputy Clerk, U.S Environmental Law Division (ELD), U.S. Lieutenant Colonel (Ret.) Rehyansky Court of Appeals for the Second Circuit; Army Legal Service Agency. He retired was born in Irvington, New Jersey, on 6 and Clerk of Court, U.S. Court of Appeals from active duty in 1998. Lewis remained August 1946. He died on 21 June 2019 in for the Federal Circuit in Washington, D.C. at ELD as a civilian attorney until he retired Chattanooga, Tennessee. He was seven- After retiring in 2000, COL Gindhart in 2014. Lieutenant Colonel (Ret.) Lewis is ty-two years old. and his wife moved to South Carolina. survived by his wife. Rehyansky graduated from Parsons He is survived by his wife, one son, one College in 1968, served a tour of duty in daughter, and three grandchildren. Colonel Howard Metcalf (1948–2019) Vietnam, and then returned to earn his law Gindhart is to be interred at Arlington Sergeant Major (Ret.) Metcalf, the 8th degree from the Cumberland (Alabama) National Cemetery. Regimental Sergeant Major of the Corps, School of Law in 1972. He then directly died on 25 November 2019. He was commissioned into the Corps and, after William Henry “Bill” Lantz Jr. (1942–2019) seventy-two years old. retiring from active duty in 1990, moved to Colonel (Ret.) Lantz died on 22 October Born in New Orleans, Louisiana, Chattanooga, Tennessee, where he served 2019. He was seventy-six years old. Born on New Year’s Day 1947, Metcalf gradu- as a prosecutor in Bradley and Hamilton on 21 November 1942, Lantz graduated ated from Sevier High School, Ferriday, counties until retiring again in 2001. from Villanova University and commis- Louisiana, in 1969. He then enlisted in the Lieutenant Colonel (Ret.) Rehyansky is sioned into the infantry through the ROTC Army and completed Basic Training and survived by his wife, one son, one daughter, program. He then served in Vietnam and Infantry Advanced Individual Training and four grandchildren. at Fort Ord before returning to Villanova (AIT) at Fort Polk, Louisiana. Howard then in 1971 to earn his law degree. Then-CPT served as an infantryman in Vietnam from Daniel Wayne Shimek (1947–2019) Lantz returned to active duty as a JA and January 1970 to February 1971 with both Colonel (Ret.) Shimek was born in served in a variety of assignments and loca- the 90th Replacement Battalion and the Wisconsin and died on 5 November 2019 in tions, including 2d Infantry Division, Korea, 321st Transportation Company. Roswell, Georgia. He was eighty-two years where he was a trial and defense counsel. He Metcalf left active duty and resumed old. Shimek graduated from the USMA in also was the SJA in Berlin when the Berlin his life as a civilian. But, he missed soldier- 1960. After serving a tour of duty as an en- Wall came down in November 1991. ing, and enlisted again in 1977 as a legal gineer, Shimek attended law school on the After retiring from active duty as a col- specialist MOS 71D. His initial assignment Excess Leave Program and, after graduating onel, Lantz began a second career with the after graduation from AIT at Fort Ben from the University of Wisconsin in 1965, Department of Justice’s Criminal Division, Harrison, Indiana, was as a battalion legal then-CPT Shimek transferred to the Corps. where he worked on national security is- noncommissioned officer (NCO) with the He then served at XVIII Airborne sues. Colonel (Ret.) Lantz is survived by his 1st Battalion, 44th Air Defense Artillery, Corps and 8th Infantry Division. After a wife, daughter, and two sons. Korea. His follow-on assignments in- tour in Vietnam and the Advanced Course cluded: Office of the Staff Judge Advocate, at TJAGSA, Shimek served as an Associate

2020 • Issue 1 • In Memoriam • Army Lawyer 27 Flags stand vigil at gravesites in Arlington National Cemetary. (Credit: Adam Skoczylas)

Professor in the Law Department at West Of Note: the U.S. Navy Judge Advocate General’s Point. He would later also serve as the SJA Corps. Army JAs who served in the 1990s at USMA from 1975 to 1976—during the John W. “Jack” Matthews (1940–2019) will remember Mollison from his tenure infamous USMA Electrical Engineer cheat- Jack Matthews, known to many JAs from as the senior Navy lawyer on the Defense ing scandal. Shimek finished his JA career his time as the Deputy Assistant Secretary Department’s Joint Service Committee on as the SJA, 4th Army. He retired in 1987 of the Army responsible for the Army Military Justice. Captain (Ret.) Mollison and worked as the civilian Chief of Legal Board of Correction for Military Records, was just shy of his seventy-fifth birthday at Assistance at West Point. Colonel (Ret.) died on 5 June 2019. Born on 30 November the time of his death. Shimek is survived by his wife. 1940, Matthews graduated from Duke University in 1962 and obtained his law de- Harris Goodall Squires (1985-2019) Walter James Wadlington III (1931–2019) gree from George Washington University Harris, son of Colonel (Ret.) Malcolm and Captain Wadlington was born in in 1965. He then served in the Air Force Kathy Squires, died on 12 November 2019. Biloxi, Mississippi, on 17 January 1931. Judge Advocate General’s Corps from 1965 Harris was thirty-four years old. Born at Wadlington died on 27 May 2019 in until 1971, when he left active duty and Fort Leavenworth, Kansas, on 3 November Charlottesville, Virginia. transitioned to the Air Force Reserve. 1985, Harris moved many times in his youth After attending Duke University Matthews then joined the Department with his military family. He was a graduate and Tulane Law School, and serving one of the Army as a civilian attorney in 1973. of Virginia Tech and Seattle University. tour of duty in the Corps, Wadlington He subsequently became the Executive Harris taught English for three years in discovered that his passion was teaching. Secretary, Army Board of Correction of South Korea before returning to teach in He subsequently taught at Tulane for two Military Records. In 1984, was selected Fairfax schools and coach girls’ soccer at years before joining the law faculty at the for entry in the Career Senior Executive Madison High School. He had a passion for University of Virginia, where he taught Service Program and then served as the travel and adventure with friends around for over forty years as the James Madison Deputy Assistant Secretary of the Army the world. Harris is survived by his parents, Professor of Law and later as Professor of for the Army Military Review Boards. his brother, sister-in-law, and niece. Legal Medicine at UVA’s medical school. Matthews is survived by his wife, two He was the author or co-author of daughters, and a grandson. Mr. Borch is the Regimental Historian, leading casebooks in domestic relations, Archivist, and Professor of Legal History and children in the legal system, and law and Richard M. “Rich” Mollison (1944–2019) Leadership. medicine. Captain Wadlington is survived Born on 4 July 1944, Mollison died on by his wife, one son, and three daughters. 26 June 2019. He was a retired captain in

28 Army Lawyer • In Memoriam • Issue 1 • 2020 Attendees of the U.S. Army Europe Leaders’ Continuing Legal Education course in Germany pose for a group photo. (Courtesy: MAJ Jamie L. Gurtov)

what makes a good leader and bad leader. Leadership and the importance of good leaders Azimuth Check is widely recognized as a means of keeping employees happy and a reason people stay at their jobs. The Judge Advocate General’s (JAG) Corps is following the trend of fellow U.S. Army Europe Legal Leadership legal leadership scholars and practitioners through institutional thinking and education. Continuing Legal Education In June 2019, the Leadership Center was tasked with the mission of creating By Major Jamie L. Gurtov and implementing a strategy to develop JAG Corps leaders and teams. The Center supports Army and JAG Corps leadership education and training in order to An Army leader is anyone who, by forty different distinctive leadership theo- develop JAG Corps leaders and teams so virtue of assumed role or assigned ries make studying and learning this topic a they are adaptive to any environment. responsibility, inspires and influences challenging task for military service mem- From the start of the project, any current people by providing purpose, direction, bers looking to improve and enhance their curriculum the Center developed would and motivation to accomplish the mission leadership skills. Everyone has a favorite consider leaders’ experiences as a focus of and improve the organization.1 book on leadership or a must-read. Engage the curriculum. As part of this training and Over 80,000 books on leadership,2 over in a discussion with your peers on leader- education, the Leadership Center created 1,500 definitions of leadership,3 and over ship, and some common themes emerge on an exportable and experiential training

2020 • Issue 1 • Azimuth Check • Army Lawyer 29 Center to observe the players and attendees provided a mechanism to identify ways to improve learning and foster growth. All attendees actively participated in these scenarios, and there was a general feeling of interest in this new training. The scenario-based training is a tool to help emphasize the doctrine taught in the lectures and provide a meaningful albeit notional leadership experience. There was a special emphasis placed on facilitating discussion on leadership and involving officers, warrant officers, noncommissioned officers, and civilians. The goal is to make betters leaders, not just better attorneys and paralegals. The scenarios and training were said to be engaging and thought-pro- voking for the attendees. The intent of this program will be implemented in the current Graduate Course, future Officer Basic Courses, Judge Advocate Officer Advanced Course, as well as the Noncommissioned Officer Academy and short courses. The attendees provided valuable feedback for the Center to continue to hone the scenarios to develop better-equipped leaders through experiential learning. The Leadership Center will continue to develop leadership education and training in order to evolve JAG Corps leaders and teams, making them more adaptive to any environment. This work will, in turn, benefit present and future leaders throughout the JAG Corps, and will close the gap in (Credit: istockphoto.com/z_wei) educational and experiential leadership. TAL package, and it put through its proof of The U.S. Army Europe Leaders’ MAJ Gurtov is an associate professor in the concept at the U.S. Army Europe Leaders Continuing Legal Education event Administrative Law Department at The Continuing Legal Education. tested this experiential learning model in Judge Advocate Legal Center and School in Experiential learning plays a key part November 2019. Using the scenarios devel- Charlottesville, Virginia. in the development of the training module oped at TJAGLCS, the Center was able to and balances doctrine, personalities, and test the scenarios with an experienced, cap- experiences of participants. What issues do tive audience. Attendees were selected to Notes new and experienced leaders face that could play the roles created in the scenario. Those 1. U.S. DEP’T OF ARMY, DOCTRINE PUB. 6-22, ARMY LEADERSHIP AND THE PROFESSION para. 1-74 (31 July play out in a scenario that all members of not actively playing a role were incorpo- 2019) (C1, 25 Nov. 2019) [hereinafter ADP 6-22]. the JAG Corps might face? The Center fo- rated into the scenario by taking distinct 2. DEBORAH L. RHODE, LAWYERS AS LEADERS 1 (2013). cuses on ways to provide practical scenarios breaks between issues to obtain feedback 3. Id. at 7. that integrate the leadership requirements and ask questions. This provided the Center model as a means of coaching and teach- the ability to obtain instant feedback and ing. With teaching focused on leadership identify best practices and refinements in doctrine, the Center came up with common the scenarios. The attendees were provided leadership challenges a JAG Corps leader the briefest of background information to would likely encounter, thereby developing obtain the most realistic training possible. scenarios to use as a teaching tool in an The other attendees observed and pro- experiential learning model. vided periodic feedback. The ability for the

30 Army Lawyer • Azimuth Check • Issue 1 • 2020 up to run, he tossed two lit matches at her and there was a burst of flames.”5 Blanchard “stumbled out of the room and ran down the hall screaming.”6 A coworker grabbed a blanket and smothered the flames.7 Currie ran back to his office, then reappeared with a pair of scissors and straightedge razor.8 Currie put his foot on Blanchard’s neck and began stabbing at her before a sergeant grabbed Currie and restrained him.9 The attack wasn’t out of the blue. In fact, while lying on the ground burned and bloody, 1LT Blanchard screamed, “I told you this would happen!”10 As witnesses would later relate, Blanchard, a first-time supervisor of fifteen military and Civilian staff, (Credit: istockphoto.com/Planet Flem) had difficulties supervising Mr. Currie from the start.11 She kept telling herself it would get better, but it only got worse as time went on.12 “He was blowing up twice a day or not coming into work,” she said.13 First Practice Notes Lieutenant Blanchard related Currie’s erratic and aggressive behavior to her leadership, who encouraged her to stay the course.14 For months, she warned her supervisors and coworkers that something would GOAD-ing Civilian Employees happen to her.15 She told them that Currie scared her; that he would yell and physically intimidate her.16 The report Blanchard By William J. Koon provided media related that on multiple occasions, Blanchard told her chain of command she felt unsafe around Currie.17 Over twenty-five witnesses supported her claim 18 In the Army, the concept of Good Order protect the lives and property of members of that she’d warned her supervisors. And, and Discipline (GOAD) began, perhaps, the military community and the general pub- it wasn’t just Blanchard. “The report noted 3 with its first commander in chief. While lic consistent with the rights of the accused.” that Currie was the subject of 53 complaints commander of the Virginia Regiment during It’s the next-to-last clause that I from patients between 2013 and 2016—31 the French and Indian War, then-Lieutenant focus on in this article: the protection of which occurred in 2016 while Blanchard Colonel George Washington wrote in a of “the lives and property of members of was his supervisor.”19 letter to his regiment captains, “Discipline is the military community.” Specifically, if Can you imagine the immediacy at the soul of an army. It makes small numbers the Uniform Code of Military Justice is which the chain of command would react formidable; procures success to the weak, designed to preserve GOAD on installations if a Soldier behaved as Currie did in the and esteem to all.”1 and within the military community, yet months—no, for more than a year—leading The eventual criminalization of con- only applies to members of the uniformed up to the attack? Imagine a Soldier in your duct deemed prejudicial to GOAD has been services, then what about the rest of the office accumulating over fifty negative challenged at, and upheld by, the Supreme men and women who work for the U.S. Interactive Customer Evaluation (ICE) Court—who recognized “the fundamental Army? What about the 300,000 Civilian comments from customers and behaving necessity for obedience, and the consequent employees working shoulder to shoulder erratically and physically aggressive toward necessity for imposition of discipline” in the with Soldiers, and what can we do when his or her officer in charge (OIC)? My guess military . . . .”2 their conduct is prejudicial to GOAD? is after just a couple negative ICE comments The Army’s policy regarding GOAD is On 7 September 2016, Army Civilian or one, possibly two, outbursts directed to- set forth in Army Regulation 27-10, where employee Clifford Currie walked into ward the OIC, appropriate, effective action paragraph 17-2 states: “The military justice First Lieutenant (1LT) Katie Blanchard’s would be taken. system is designed to ensure good order office—his supervisor—and doused her with I know what you’re thinking. “It’s dif- and discipline within the Army and also to a water bottle of gasoline.4 “As she stood ferent with Civilians.” “It’s too hard to take

2020 • Issue 1 • Practice Notes • Army Lawyer 31 action against a Civilian.” “It’s impossible to mistreatment, with good reason, and as long Good order and discipline is the bed- fire a Civilian—don’t even try!” as you’re taking action for the right reasons rock of the U.S. military and applies to not Only the first thought is correct. But, and have your supporting documentation only military personnel, but also to Civilian even that thinking is flawed if you combine together, the action will be upheld. personnel. It is important to develop good it with the next two ideas. In fact, as Ms. For those of you who either are a relationships with your CPAC L/MER Rebecca Ausprung explained at this year’s senior leader, or advise one, and are worried specialist and labor counselor now, so that, WWCLE, taking appropriate action against about delays in favorable personnel actions should there ever become a problem, you can a Civilian is more like taking adverse action due to being named in some complaint and take swift action. Being more knowledgeable against a Soldier than you think. All you that coming up through various scrubs: about the options you have available to you need to be successful is documentation of there is a process in place for assessments regarding Civilian personnel actions creates the poor performance or misconduct, and a (of any complaint) to be completed and pro- a healthier working atmosphere for every- desire to hold the employee accountable. vided to Army Senior Leadership as soon one and makes you a better leader. TAL The Players: supervisors of Civilians as possible, so they can decide to proceed or have two primary advisors when it comes to not with whatever action is being contem- Mr. Koon is the Corps’s Senior Civilian and Civilian employee (poor) performance and plated. Meanwhile, take the appropriate the Director, Civilian Personnel, Labor and (mis)conduct: (1) the Labor Management- action—do the right thing—it’s why the Employment Law, Office of The Judge Advocate Employee Relations (LMER) specialist at the Army put you there in the first place. General, Pentagon, Washington, D.C. Civilian Personnel Advisory Center (CPAC), The Payoff: take the right action, at and (2) the installation or organization’s the right time, and the payoff is immediate. assigned Labor Counselor. Think of them Either the employee straightens up and re- Notes as your brigade paralegal and assigned trial turns to drama-free productivity, or doesn’t 1. U.S. Army Center of Military History, Washington Takes Command of Continental Army in 1775, ARMY.MIL counsel, respectively. They are there to listen . . . and you now have reason to take the (June 5, 2014), https://www.army.mil/article/40819/ to your dilemma; look at your documenta- appropriate next steps, up to and including washington_takes_command_of_continental_army_ tion; advise a course of action; and assist in removal from federal service. Either way, in_1775. execution. Under normal circumstances, you you and, perhaps more importantly, your 2. Parker v. Levy, 417 U.S. 733,758 (1974); see UCMJ go to your CPAC first, and they’ll pull in the workforce will know you’re taking action art. 134 (2018). labor counselor at the appropriate time. for the good of the organization. Morale 3. U.S. DEP’T OF ARMY, REG. 27-10, MILITARY JUSTICE para. 18-2 (11 May 2016). The Process: it’s just like you tell will improve and, in the long-run, the office 4. Elaine Sanchez, Workplace Violence Survivors the platoon sergeant or company com- will trust you as a manager who cares about Unite to Turn Tragedy Into Hope, DEFENSE.GOV (Oct. mander who wants to take action against everyone doing their fair share and acting 24, 2017), https://www.defense.gov/Explore/ a Soldier—“you need documentation.” For professionally while doing so. News/Article/Article/1352092/workplace-violence-survivors-unite-to-turn-tragedy-into-hope/ misconduct, you will need ICE comments, So, now what? Here is advice to deputy igphoto/2001773969/. witness statements, a memorandum for and staff judge advocates: 5. Id. record memorializing what you observed, 6. Id. a 15-6 investigation—whatever documen- 1. Take action when appropriate. Take it 7. Id. tation there is to support the action. If it’s a promptly. performance problem, you’ll need the em- 2. Get to know your labor counselor’s case 8. Id. ployee’s Performance Plan from the Defense load. Have at least bi-weekly meetings 9. Id. Performance Management and Appraisal with them, just like your trial counsel. 10. Tony Rizzo, 20 Years in Prison Ordered for Man Who Set Fort Leavenworth Army Nurse on Fire, KAN. CITY STAR System and, most likely, the most recent Get a copy of the tracker and review it for (Nov. 2, 2017, 10:49 AM), https://www.kansascity. progress review and assessment as well as unexplained delays or outcomes. Knock com/news/local/crime/article182270571.html. samples of the employee’s work product. down obstacles, whether it’s a reluctant 11. Sanchez, supra note 4. The Pain: yes, it takes time. Yes, it’s manager or commander, or an uncoopera- 12. Id. not pleasant—especially with long-time tive staff member—intercede and facilitate. 13. Id. employees who you work with every day 3. Instill confidence in the system. Talk 14. Id. and with whom you have to maintain a to your colleagues at command and 15. James Clark, The Army Ignored Her Warnings About professional relationship. And, yes, even- staff. Mention significant cases to the a Dangerous Colleague. Then He Set Her on Fire, TASK & tually most supervisors who do the right Commanding General (CG) (beware— PURPOSE (June 5, 2019, 12:28 PM), https://taskandpur- thing and hold employees accountable to much like we guard against unlawful pose.com/katie-blanchard-feres-doctrine. the appropriate standards of professional command influence, it’s best to keep 16. Id. behavior and performance have some sort adverse action decision-making at the 17. Id. of complaint filed against them. Grievances, lowest practical levels, so briefing the CG 18. Id. Equal Employment Opportunity complaints, will be information-only, in most cases), 19. Id. Inspector General complaints—those mecha- or, better yet, have your labor counselor nisms are there to protect employees against come brief the CG on a case or two.

32 Army Lawyer • Practice Notes • Issue 1 • 2020 Equal Employment Opportunity (EEO) Complaints, Not Your Army Regulation 600-20 Process In short, and for purposes of this article, two distinct administrative complaint systems exist for Army personnel, based solely on their status.6 The Army handles EO complaints of service members internally, while DA Civilians, and potentially others, as discussed below, may avail themselves of the processes dictated by the Equal Employment Opportunity Commission (EEOC), an independent federal agency with statutory authority to regulate and enforce federal employment anti-discrimination laws.7 Formal complaints by military members are brought to the commander’s attention for investigation, typically under the provisions of Army Regulation 15–6.8 In contrast, formal EEO complaints by DA Civilians are generally processed by the organization’s servicing EEO office.9 The EEO officer performs a gatekeeping function as it concerns these complaints, with one of the threshold matters determining whether to accept or dismiss the complaint.10 If dismissal is not appropriate, the Army (Agency) must accept the complaint for investigation and afford the complainant access to the Agency’s administrative com- (Credit: istockphoto.com/erhui1979) plaint process.11

Contingent Workers Are Not Liability Pitfalls with Contingent Workers Army Employees Under Federal Anti-discrimination Laws Contingent workers are generally those By Major Theodore B. Reiter outside of federal employment, such as volunteers and employees of government contractors.12 One reason to dismiss a complaint is that the aggrieved worker lacks While judge advocates (JAs) are famil- is even greater for those whose commands standing, i.e., that person does not qualify iar with the Army’s policy and process possess large numbers of contract workers as an Army employee, applicant, or former for handling equal opportunity (EO) or while deployed to combat environ- employee under federal anti-discrimination 13 and sexual harassment complaints, ments, where otherwise-available labor laws. As an initial matter, a contingent many are unfamiliar with the proce- and employment law support is limited.3 worker must specify whether their com- dures for handling similar complaints by Complaints of discrimination filed by DA plaint is against their employer or the Department of the Army (DA) Civilian Civilians and contingent workers against Army. If the latter, the EEO counselor in- employees, which may be available to the Army may result in thousands of dollars forms the aggrieved that, depending on the non-Army personnel, to include contin- per case—potentially hundreds of thou- facts and circumstances of their situation, gent workers.1 As JAs potentially advise on sands of dollars—all paid from the activity the Army may not be their employer under both military and civilian personnel law, where the alleged discrimination took federal anti-discrimination laws.14 understanding these basics, along with how place, using the offending organization’s Proceeding initially as though the leaders may unwittingly and substantially operational and maintenance funds.4 No standing of the complainant is not in increase the Army’s financial liability, is corresponding concern exists for service question, an EEO counselor is assigned imperative.2 The importance of this topic member complainants.5 to conduct a pre-complaint inquiry. This

2020 • Issue 1 • Practice Notes • Army Lawyer 33 inquiry begins with contacting the manage- 4. Whether the “employer” or the individ- above.28 Thus, the EEOC will examine “the ment officials to determine the facts behind ual furnishes the equipment used and comparative amount and type of control the the working relationship, specifically, the the place of work; staffing firm and the Agency each maintain supervisory factors discussed below.15 The 5. The length of time the individual has over [the] complainant’s work,” with the EEO counselor then forwards that in- worked; burden on the complainant to demonstrate formation to the organization’s servicing 6. The method of payment, whether by the existence of the joint employment legal office “for a fact based analysis and time or by the job; relationship.29 legal opinion on whether the aggrieved 7. The manner in which the work rela- As with any area of law, demonstration is a covered Army ‘employee’ under the tionship is terminated, i.e., by one or of the legal standard by way of examples is anti-discrimination laws.”16 If the Agency both parties, with or without notice preferential to offering a list of rules. The determines that the Army is not the contin- and explanation; case of Wilson v. Department of the Army gent worker’s employer for these purposes, 8. Whether annual leave is afforded; illustrates a joint employer relationship and the EEO officer shall dismiss the complaint 9. Whether the work is an integral part of reflects the importance placed by the EEOC’s for failing to state a claim.17 An aggrieved the business of the “employer”; analysis, where the Agency involves itself who is prohibited from filing an EEO com- 10. Whether the worker accumulates in the decision to remove the worker from plaint against the Army for discrimination retirement benefits; their employment.30 A DA Civilian referred is not entirely without recourse, though, as 11. Whether the “employer” pays social the complainant, a retired enlisted Airman other avenues of redress remain available.18 security taxes; and with experience as a personnel specialist, to 12. The intention of the parties.22 a private contractor, who hired the com- The Worker’s Employer Is plainant and placed him in the S1 section Contractual language may demonstrate of a Logistics Readiness Center within the the One Who Controls the 31 Worker’s Means and Manner the intent of the parties, but the language Communications-Electronics Command. of Their Work Performance itself is not conclusive, nor is the element of The DA Civilian S1 assigned daily tasks The determination as to whether a contin- who pays the complainant’s salary.23 Neither to the complainant, who worked in the gent worker qualifies as an Army employee the number of factors met nor the finding Agency’s facilities alongside DA Civilians and thus has standing to file a complaint of any one factor is controlling to the anal- using Agency-provided equipment.32 Citing against the Agency is conducted on a case- ysis.24 With that said, as discussed below in to the lack of work for the complainant, the by-case basis after an examination of the Wilson v. Department of the Army, the EEOC Agency manager informed the complainant working relationship between the manage- has placed increased importance on some that he was terminated from his position.33 ment officials and the worker.19 To make of these factors, such as constructively ter- The private employer informed the com- this determination, the EEOC applies the minating the contingent worker from their plainant that they had no input on the common law of agency, originally set forth employment.25 Agency’s decision, and subsequently severed by the EEOC in Ma v. Department of Human his employment based on the Agency’s 20 34 and Health Services. This examination of Actions Could Convert action. The complainant filed an EEO com- “whether an employer-employee relation- Contingent Workers into plaint against the Agency, which dismissed ship exists is fact-specific and depends on “Army Employees,” Providing the complaint on the basis that the com- whether the employer controls the means plainant was not the Agency’s employee.35 21 Standing to File a Discrimination and manner of the worker’s performance.” Complaint Against the Army The EEOC reversed the dismissal, providing While every aspect of the relationship The EEOC recognizes a situation where that “[one] of the most important factors in is considered, the EEOC will look to the fol- more than one entity, to include two or making the Agency a joint employer was its lowing non-exhaustive list of components, more private entities, is potentially liable power to remove [the complainant] from known as the “Ma” factors: under federal anti-discrimination laws. This providing services to the Agency where this working relationship, termed “joint em- is tantamount to removal.”36 1. The extent of the employer’s right to ployment,” involves the existence of “two Reflecting the degree of importance control the means and manner of the or more employers that each exercises suf- placed by the EEOC in the hiring process, a worker’s performance; ficient control of an individual to qualify as complainant unsuccessfully sought employ- 2. The kind of occupation, with refer- the worker’s employer.”26 The potential for ment with Dyncorp Technical Services LLC ence to whether the work usually is the creation of this relationship increases (Dyncorp) for a licensed practical nurse done under the direction of a supervi- with the prevalence in the organization of (LPN) contract position.37 The complainant sor or is done by a specialist without workers provided by “staffing firms,” which alleged discrimination by the Agency, who supervision; are “temporary employment agencies, dismissed her complaint on the basis that 3. The skill required in the particular contract firms, and other firms that hire the complainant was not an employee or occupation; workers and place them in job assignments applicant for Agency employment.38 The with the firm’s clients.”27 The analysis is ho- EEOC reversed the decision, finding “that listic, similar to the Ma factors enumerated the Agency exercised sufficient control

34 Army Lawyer • Practice Notes • Issue 1 • 2020 (Credit: istockphoto.com/erhui1979) over the LPN position to qualify as a joint While detailed guidance on the proper complainant, money better spent on the employer with Dyncorp.”39 The record re- supervision of contracted workers by fed- organization’s warfighting mission. flected that Dyncorp forwarded the resumes eral employees is outside the scope of this of prospective candidates to an Agency article, as a best practice, it is recommended MAJ Reiter is an attorney-advisor for the Labor representative who then made the selec- to adhere to the terms of the contract, as—if and Employment Law Division, Office of The tion and informed Dyncorp, who hired the drafted correctly—abiding by the terms Judge Advocate General, Washington, D.C. selectee accordingly.40 should avoid the types of issues discussed Numerous other cases involve situa- above.42 Those in managerial positions with tions where the EEOC upheld the Agency’s contract workers within their workspace Notes dismissal of the EEO complaint, finding should tread cautiously in any matter that 1. U.S. DEP’T OF ARMY, REG. 690-600, EQUAL EMPLOYMENT OPPORTUNITY DISCRIMINATION COMPLAINTS the Agency had sufficiently maintained its may involve a personnel action, such as para. 3-10 (9 Feb. 2004) [hereinafter AR 690-600]. The separation to keep from becoming con- taking or requesting disciplinary action, other listed types of contingent workers are “individu- sidered the complainant’s employer.41 The issuing or recommending awards or als participating in training, work-study or fellowship programs, and all other individuals working on Army point of this article is not to discuss any promotions, directing or suggesting the installations or projects without being on the activity’s one particular fact pattern or demonstrate removal of a worker, or evaluating individ- payroll or meeting the definition of a civil service all the permutations of this rule, but rather ual performance.43 These managers should employee . . . or a nonappropriated fund employee.” Id. For a definition of civil service employee and nonap- to raise overall awareness of the issue to instead remain in close contact with their propriated fund employee, see 5 U.S.C. § 2105 (2020). the field, especially to JAs who have yet respective contracting officer represen- 2. See generally U.S. DEP’T OF ARMY, REG. 690-12, EQUAL to practice labor and employment law. tative to address any concerns involving EMPLOYMENT OPPORTUNITY AND DIVERSITY app. D-1 Involvement with this type of situation may individual contract workers as they arise.44 (22 Dec. 2016) [hereinafter AR 690-12] (information on how the Army may be liable for complaints of arise by either a military or Civilian attorney Through an understanding of this poten- harassment). The regulation directs that “supervisors supervising a contingent worker directly tial issue, attorneys may best advise their will make reasonable efforts to prevent and promptly (to include a volunteer or intern in a legal leaders to sidestep this avoidable liability correct harassing behavior in the workplace,” and will investigate when an employee makes a complaint office) or advising a manager who maintains trap. Successfully doing so may save your about alleged harassment. Id. apps. D-2(a), D-2(b). contingent workers as part of their work- command hundreds of thousands of dollars force, the latter the more likely scenario. in damages paid to a non-Army employee

2020 • Issue 1 • Practice Notes • Army Lawyer 35 3. See U.S. DEP’T OF ARMY, REG. 27-1, JUDGE ADVOCATE IV(A)(3); Strickland v. Dep’t of the Army, 111 LRP 34. Id. LEGAL SERVICES para. 2-11(b)(3) (24 Jan. 2017). 15660, 111 FEOR 197 (2011). 35. Id. supra 4. AR 690-600, note 1, para. 5-13(c); U.S. 18. These methods of redress include filing a complaint 36. Wilson, 111 LRP 65157. See also Tucker, 111 LRP EQUAL EMP. OPPORTUNITY COMM’N, EQUAL EMPLOYMENT with the contingent worker’s employer (through the 63706. OPPORTUNITY MANAGEMENT DIRECTIVE FOR 29 C.F.R. processes established by that employer, if any), filing PART 1613, ch. 12 (5 Aug. 2015) [hereinafter an EEO complaint with the nearest EEOC field office, 37. Baker v. Dep’t of the Army, 106 LRP 16330, 106 EEO-MD-110]; U.S. DEP’T OF DEF., 7000.14-R, DOD or appealing the EEO office’s decision to the EEOC FEOR 292 (2006). FINANCIAL MANAGEMENT REGULATION, vol. 10, ch. 12, Office of Federal Operations. AR 690-600, supra note 38. Id. sec. 120309 (Aug. 2019). 1, paras. 3-10(a), 3-10(b). 39. Id. 5. See generally U.S. DEP’T OF ARMY, REG. 600-20, ARMY 19. Id. para. 3-10(b). 40. Id. With regards to the complainant, the Agency COMMAND POLICY app. C (6 Nov. 2014) [hereinafter AR 20. Ma v. Dep’t of Health and Human Servs., 105 600-20]. representative had, in addition to denying her appli- LRP 31239, 98 FEOR 3226 (1998), citing Nationwide cation, sent a note to Dyncorp that the complainant’s 6. There are potentially other avenues of redress Mutual Ins. Co. v. Darden, 103 LRP 43160, 503 U.S. resume clearly showed “that she is NOT someone we available, such as the Merit Systems Protection Board 318, 323-24 (1992). want and that [the Regimental Surgeon] does not and filing a civil action in U.S. District Court, but most 21. Bryant v. Dep’t of Justice, 107 LRP 27058, 107 believe a woman should fill the position over a male.” Equal Employment Opportunity (EEO) complaints FEOR 385 (2007). Id. The EEOC also found that the Agency had retained against the federal government are handled within supervisory control over the LPN position, and the Strickland See also the system established by the Equal Employment 22. , 111 LRP 15660. AR 690-600, work was performed on Agency premises with Agency supra Opportunity Commission (EEOC). note 1, fig. 3–8. equipment, as contributing factors to their determi- 7. 42 U.S.C. § 2000e-4 (2019). Although the military 23. See generally Taylor v. Dep’t of Ed., 108 LRP 15015, nation. Id. departments are subject to the provisions of 29 C.F.R. 108 FEOR 294 (2008); Tucker v. General Servs. Ad., 41. See generally, Palmer v. Dep’t of Homeland Sec., 111 § 1614 (which applies EEO protections and processes 111 LRP 63706, EEOC No. 0120102242 (2011); Serita LRP 41481, 112 FEOR 4 (2011) (upholding agency’s to the federal sector), the uniformed members of those B. v. Dep’t of the Army, 116 LRP 49261, 117 FEOR dismissal, despite the agency and private employer departments are explicitly excluded from its provi- 122 (2016); Joanna G. v. Dep’t of the Army, 118 LRP sharing supervision, work assignments, and creation sions. Id. §§ 1614.103(b)(1), 1614.103(d)(1). 33643, EEOC No. 0120180957 (2018). of the complainant’s work schedule, as the contrac- 8. AR 600-20, supra note 5, app. C-4(b). Commanders 24. See Strickland, 111 LRP 15660. See also Darden, 103 tor paid the complainant’s salary and the employer’s are then free to dispose of the misconduct as they LRP 43160 (providing that “[since] the common-law portion of her retirement benefits, provided her deem appropriate. Id. app. C-7. See generally U.S. DEP’T test contains ‘no shorthand formula or magic phrase health and life insurance, approved or disapproved OF ARMY, REG. 15-6, PROCEDURES FOR ADMINISTRATIVE that can be applied to find the answer, . . . all of the her leave, prepared her job evaluation, and removed INVESTIGATIONS AND BOARDS OF OFFICERS (1 Apr. 2016) incidents of the relationship must be assessed and her from the agency’s project); Strickland, 111 LRP [hereinafter AR 15-6]. weighed with no one factor being decisive”) citing 15660 (upholding Agency’s dismissal, despite the NLRB v. United Ins. Co. of America, 390 U.S. 254, complainant working on the Agency’s premises using See supra 9. AR 690-600, note 1, paras. 1-12(k), 3-1(a). 258, 88 S.Ct. 988, 991 (1968). Agency equipment, when the contractor hired her, Management must still investigate alleged harass- paid her salary, prepared her performance evaluations, ment, regardless of whether the EEO office accepts or 25. See Wilson v. Dep’t of the Army, 111 LRP 65157, EEOC No. 0120112541 (2011); Ames v. Dep’t of the set her work hours, and approved her leave requests); dismisses the complaint. AR 690-12, supra note 2, app. Herrera Air Force, 108 LRP 10175, 108 FEOR 263 (2008). , 108 LRP 64943 (upholding Agency’s dismissal, D-2(b). The supervisor or manager who receives the despite complainant working on Agency premises complaint will contact their serving legal office within 26. Joanna G., 118 LRP 33643. The finding by the using Agency equipment, attending mandatory Agency one business day to seek guidance on the appropriate EEOC that the Agency has created this relationship training, receiving Agency tasks, and requiring the Id type of inquiry. . app. D-5(a). This inquiry may, if does not only impart potential financial liability on the pre-clearance of leave requests, as the contractor hired, necessary, be conducted under the provisions of AR Agency, more fundamentally, it allows the com- paid, and terminated the complainant, completed his Id 15-6. . app. D-5(b). plainant to use the Agency’s administrative complaint evaluations, and addressed performance concerns with 10. AR 690-600, supra note 1, para. 1-12(k). 29 C.F.R. process. Id. the complainant). § 1614.107 (2019) and AR 690-600, supra note 1, 27. U.S. EQUAL EMP. OPPORTUNITY COMM’N, 42. See FAR 37.104 (2019), which prohibits the cre- para. 4-4, provide the criteria for when to dismiss a ENFORCEMENT GUIDANCE: APPLICATION OF EEO LAWS ation of personal service contracts (unless specifically complaint. TO CONTINGENT WORKERS PLACED BY TEMPORARY authorized). The section describes such contracts 11. 29 C.F.R. § 1614.108 (2019); AR 690-600, supra EMPLOYMENT AGENCIES AND OTHER STAFFING FIRMS, as those “characterized by the employer-employee note 1, para. 4-3(d). EEOC Notice No. 915.002 (1997). relationship it creates between the Government and the contractor’s personnel. An employer-employee 12. AR 690-600, supra note 1, para. 3-10. 28. Joanna G., 118 LRP 33643 (“[the] EEOC considers, inter alia, the Agency’s right to control when, where, relationship under a service contract occurs when, as Id 13. . para. 3-1(a). and how the worker performs the job; the right to a result of (i) the contract’s terms or (ii) the manner 14. Id. para. 3-10(a)(3). See also AR 690-600, supra note assign additional projects to the worker; whether the of its administration during performance, contractor 1, para. 1-4. work is performed on Agency premises; whether the personnel are subject to the relatively continuous supervision and control of a Government officer or 15. AR 690-600, supra note 1, para. 3-10(b), fig. 3–8. Agency provides the tools, material, and equipment to perform the job; the duration of the relationship employee.” Id. 16. AR 690-600, supra note 1, para. 3-10(b). Legal between the Agency and the worker, and whether the 43. See FAR 37.602, subpart 37.603 (2019) (authorizing offices must be cognizant of the requirement in Agency controls the worker’s schedule; and whether the evaluation of performance standards to ensure EEO-MD-110, which directs separation between “the the Agency can discharge the worker”), citing U.S. contract compliance, but not extending such perfor- agency’s EEO complaint program and the agency’s de- EQUAL EMP. OPPORTUNITY COMM’N, EEOC COMPLIANCE mance assessments to individual contract workers). fensive function,” i.e., there must be a firewall between MANUAL, sec. 2-III(A)(1) (12 May 2000) (rev. Aug. 44. See generally EP T OF EF NSTR the attorneys conducting the acceptance or dismissal 2009). U.S. D ’ D ., I . 3020.41, analysis and those attorneys for the organization who OPERATIONAL CONTRACT SUPPORT (OCS) (20 Dec 29. Herrera v. Dep’t of the Army, 108 LRP 64943, 109 defend the agency and litigate the case. EEO-MD-110, 2011) (C2, 31 Aug. 2018); U.S. DEP’T OF ARMY, REG. FEOR 96 (2008). supra note 4, ch. 1, sec. IV(D). This separation avoids 715-9, OPERATIONAL CONTRACT SUPPORT PLANNING AND any potential conflict of interest for the agency. Id. 30. Wilson, 111 LRP 65157. MANAGEMENT (24 Mar. 2017). 17. AR 690-600, supra note 1, para. 3-10(b)(1)(b); 29 31. Id. See also C.F.R. § 1614.107(a)(1) (2019). 29 C.F.R. § 32. Id. 1614.106(a) (2019) (“[a] complaint must be filed with the agency that allegedly discriminated against the 33. Id. complainant”); EEO-MD-110, supra note 4, ch. 5, sec.

36 Army Lawyer • Practice Notes • Issue 1 • 2020 of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual.4

Determining if the information is adverse is easier because it is a finding or conclusion. However, the more challenging determination is when something is “reportable.” These “reportable” matters are a little trickier to muddle through. Reportable information is:

(1) Information other than adverse information requested to be reported by the Senate Armed Service Committee or by any member of the Senate; or

(2) Information related to alleged misconduct or impropriety, which is subject to an on-going investigative, administrative, or judicial process. (Credit: istockphoto.com/IgorZakowski) Normally a nomination will be delayed pending resolution of the investigative, administrative, or judicial Skeletons in the Foot Locker process; however, in extraordinary Defining and Identifying Adverse Actions cases and where the resolution is not expected within a reasonable time, the nomination may be processed By S. Tennaile Timbrook with an appropriate summary of the case. The summary will include an opinion from a qualified senior leader on the probable outcome of the in- A federal employee finds a vacancy in the process. The DoD defines skeletons vestigative, administrative, or judicial for a position as a Civilian Senior by providing guidance on the classification process; or 1 2 Executive (CSE) and applies on the of “adverse” and “reportable information.” website USAjobs.gov. An accusation against The DoD established a process for identi- (3) Credible information related to an this same employee exists in a closed Equal fying, reporting, and maintaining adverse individual’s involvement or affilia- Employment Opportunity (EEO) com- information for promotable COLs and tion with a significant event that is plaint—an accusation of sexually harassing GOs. The Army uses a similar process for widely known to the general public a subordinate that was quickly settled. The vetting its CSEs for selection, promotions, or members of Congress that brings Army will never know about it and may and awards.3 The Department of Defense discredit upon or calls into question choose this person as their best candidate. Instruction (DoDI) 1320.04 defines “adverse the integrity of members of the DoD, Before the Army decides to entrust information” as: Components of the DoD, or the DoD. an increased level of responsibility and Ordinarily, such information that has authority as a CSE, colonels (COL) selected [A]ny substantiated adverse find- been known for more than 3 years for promotion, and general officers (GOs), ing or conclusion from an officially prior to the nomination process, the Army vets them by looking for adverse documented investigation or inquiry or information that was previously information. How does the Department or any other credible information of considered by the SASC as part of a of Defense (DoD) define a skeleton and an adverse nature. To be credible, prior nomination of that individual, where do we look for them? This article the information must be resolved will not be reported.5 will discuss the process and some pitfalls and supported by a preponderance

2020 • Issue 1 • Practice Notes • Army Lawyer 37 The U.S. Constitution creates a shared allege that the CSE or GO in question is a a case that monitors the complaint. There architecture for the appointment of military counterproductive leader—the evidence of is no parallel or separate investigation officers.6 From the 1st Congress in 1790, which is not necessarily related to com- conducted by DAIG. Considering the EEO Congress has considered nearly all military plainant’s protected status. Also, around her process, failures to act are unintentionally officers subject to confirmation (distinct allegations of gender discrimination, the ignored by DAIG. from civilian agencies, where Congress complainant offers evidence that the leader 7 11 typically only confirms principal officers). has a destructive leadership style. Under The Skeletons Are Not Necessarily The vetting process, birthed from the these circumstances, the leader who is the Investigated in EEO Complaints Constitution, prevents CSEs or GOs from subject of the complaint is a responsible After a complainant files a formal com- selection, reassignment, promotion, and management official (RMO) and identified plaint, the appropriate EEO office receiving high-profile awards without the as such inside the EEO pre-complaint.12 coordinates an investigation that yields a transparency of reportable adverse infor- The EEO counselor identifies the RMO report of investigation (ROI) from Defense mation.8 However, what happens when and then will highlight the protected status Civilian Personnel Management Service a skeleton is hiding in plain sight? What of the complainant; however, the EEO Investigations and Resolutions Division should be reported is a question of debate counselor focuses on the discriminatory act (IRD).17 The IRD investigates only the alle- across the services, as there is a lack of and is not required to address the allegation gations associated with a protected status, standardization and sharing of informa- about the leadership style.13 The focus for not allegations of prohibited personnel tion. This article delves into challenging an EEO counselor is on the discriminatory practices, failure to act, or counterpro- the status of the category listed above as act, as this is the goal of both the EEO ductive leadership.18 The IRD does not “reportable,” requiring the reporting of and EO process, there is no mandate or take any direction from the Army. The “on-going administrative processes”—found requirement for them to identify and in- resulting investigation consists of gathering inside the EEO complaint process. vestigate collateral misconduct. In the EEO documentary evidence, sworn statements, pre-complaint phase, there is no common and testimony for use by the adjudicator Are There Skeletons understanding whether the counselor is elected by the complainant—either an Equal Hiding in EEO Closets? required to notify the Department of the Employment Opportunity Commission Allegations of senior leader improprieties Army Inspector General (DAIG) when a (EEOC) administrative judge, Army EEO are reported in various forums.9 Therefore, senior leader is named as a RMO.14 Compliance and Complaints Review when looking at a candidate for an award or Directorate (EEOCCR), or the Assistant selection, all offices with potential adverse Reporting Allegations to DAIG Secretary of the Army (Manpower and or reportable information are contacted. When the Army is informed that a GO, Reserve Affairs) (ASA (M&RA)) on behalf While the procedures are nearly identical, promotable COL, or CSE is named as a of the Secretary of the Army.19 The IRD complaints made against federal Civilian RMO, there is a reporting requirement.15 can choose to do the entire investiga- employees, to include CSE employees, are Army Regulation 20-1 requires, “[a]ny and tion electronically, rather than holding a filed at local EEO offices, while complaints all allegations of impropriety or misconduct fact-finding conference. Electronic in- against military members go through EO (including criminal allegations) by a general vestigations can sometimes miss valuable offices. The EEO process often hides other officer, a promotable colonel, a member information that would otherwise come allegations of impropriety. These other of the Civilian SES, and any other DA out requiring a conference. As pressures allegations (i.e., failure to act or counter- Civilians must be forwarded by command- increase to do investigations faster, elec- productive leadership) are tucked inside the ers or [Inspector Generals] directly to the tronic investigations are becoming a more complaint of discrimination. Therefore, DAIG Investigations Division by a rapid typical process. Furthermore, inside the when other allegations are made, they are and confidential means within 2 working final ROI, the IRD investigator does not often left unaddressed.10 Consider the EEO days of receipt.”16 Reports made to com- make findings.20 If requested at this stage of complaint process. It is easy to see how a manders in such cases trigger additional the process, an adverse screening must rely misdeed or act (i.e., a skeleton) hides in responsibilities and potential liability on upon the ROI that may not have all of the plain sight. their part. Therefore, unlike making a necessary facts. report to a commander, not all EEO offices In the hypothetical, the complaint Example of EEO Complaint with are reporting allegations of misconduct moves through the process and concludes Nondiscriminatory Allegation raised in EEO complaints to DAIG. Equal years later with an administrative judge. For For example, Ms. Smith files an EEO Employment Opportunity complaint guid- argument’s sake, in this case, the finding is complaint alleging she was not selected for ance does not require or explain when to “no discrimination.” Therefore, a complaint promotion due to her protected status as report. Additionally, there is no report or of gender discrimination that includes a female. In describing the discriminatory an additional investigation when there are allegations of counterproductive leadership behavior alleged, the complainant also allegations against someone below the rank can appear thoroughly investigated, when describes behaviors that do not squarely fit of colonel. If provided by an EEO or EO in fact the allegations of counterproductive into the EEO box. The complainant may office, DAIG receives the report and opens leadership are neither investigated nor

38 Army Lawyer • Practice Notes • Issue 1 • 2020 addressed. Meanwhile, an administrative judge or EEOCCR concludes the allegations of discrimination are unsubstantiated, and the case is dismissed. Even when the ASA (M&RA) makes findings of discrimination, the evidence does not focus on the ancillary complaint of counterproductive leadership. Again, the ancillary complaints are not investigated as the goal is to make a complainant whole as it relates to allegations of discrimination. Therefore, a finding from an administrative judge or ASA (M&RA) typically will not discuss the ancillary misconduct of a particular person. It focuses on what happened to the complainant, not the additional misconduct of the leader. When this finding is reported to DAIG, it is not necessarily providing the entire picture. The skeleton can still be there, uninvesti- gated, and DAIG will still close the case.

Settlement Agreements Hide Skeletons In an alternative scenario, Ms. Jones, an employee, files an EEO complaint alleging discrimination based on her gender, and before it even reaches the IRD for investigation, the complainant and the federal agency agree to a negotiated settlement agreement (NSA). At the informal pre-complaint stage, (Credit: istockphoto.com/Aleutie) the EEO counselor responsible for intake is not obligated to report allegations of CSE, When a subsequent adverse screening Discrimination in Employment Act, promotable COL, or GO misconduct to requests information for a GO, promotable as amended; the Equal Pay Act, or the commander or DAIG with specificity.21 COL, or CSE (i.e., RMOs), in these in- any other federal or state statute or Therefore, allegations of impropriety raised stances when there is an NSA, there are no regulation.25 in EEO complaints are not generally re- findings. Therefore, DoDI 1320.04 instructs ported by the commander or to DAIG when the Army to request a labor counselor to The DAIG uses this typical clause as it is in the pre-complaint stage. Throughout provide an opinion of the RMO’s culpabil- the basis to close the case, reporting to the the complaint process, the labor coun- ity.24 In some cases, the labor counselor is Department of Defense Inspector General selor advises on the likelihood that the no longer with the Army. Therefore, when (DoDIG) that the matter, as it relates to the complainant was discriminated against by trying to go back to find out additional GO or SES, is resolved. reviewing the evidence. Therefore, the information from the labor counselor, there Agency counsel is often the best and only is no labor counselor with the requisite The DAIG Closes the Case, person able to advise on the basis for the information. The Army is left holding an and a Skeleton Is Buried settlement. Even if impropriety by a CSE, NSA with no evidence for review and no If the allegation was reported, e.g., through promotable COL, or GO named as an opinion to rely upon. An example NSA the EEO Director, to the DAIG upon formal RMO is contemplated, disciplinary and/or typically includes this language: complaint filing, the regulation requires the corrective action against the RMO(s) cannot DAIG to determine how best to adjudicate be included as a term of either the NSA or By entering into this Settlement “each complaint, issue, and allegation.”26 the adjudication of the complaint.22 While Agreement, the Agency does not With EEO complaints, the DAIG opens a a recommendation may be made to pursue admit that it, or any Agency offi- case that monitors the complaint believing it, these types of recommendations are not cial or employee, has violated Title all allegations are investigated. In the past, standard clauses in an NSA nor required by VII of the Civil Rights Act of 1964, they did not typically open up their own administrative procedures.23 as amended; the Rehabilitation investigation. The EEO Director notifies the Act of 1973, as amended; the Age DAIG that the complaint was settled, and

2020 • Issue 1 • Practice Notes • Army Lawyer 39 they report the settlement disposition to the accountable, or validating them for their General (DAIG); (5) Commander/Supervisor; (6) 27 31 the Administrative Grievance System; (7) Criminal DoDIG as closed. Additionally, when there appropriate conduct.” Reporting and Investigations Command (CID); and (8) the Office of is notification of no findings of discrimina- addressing the underlying allegations of Special Counsel (OSC). tion from EEOCCR or the administrative misconduct with referral of investigation 10. See 5 U.S.C. § 2302 (2019). judge, the DAIG closes the case without through DAIG assists the Army in main- 11. “Destructive leadership styles can compromise further investigation, and the DoDIG is taining order and discipline by ensuring organizational effectiveness and discourage subordi- none the wiser.28 accountability and preventing recurrence. nates from continuing their Army service. In a variety of ways, they undermine mutual trust and impede On 25 May 2018, reemphasizing the mission accomplishment. In senior leaders, destructive The Way Ahead—Agency importance of accountability, Executive styles are particularly damaging . . . .” U.S. DEP’T OF Order 13839 mandates that we are “holding ARMY, REG. 600-100, ARMY PROFESSION AND LEADERSHIP Representatives, EEO, and EO POLICY para. 1-11e (5 Apr. 17); see also U.S. DEP’T OF federal employees accountable for per- ARMY, DOCTRINE PUB. 6-22, ARMY LEADERSHIP AND THE Personnel Must Report to the DAIG 32 There are several pitfalls identified with formance and conduct.” Revealing and PROFESSION (31 July 19). the EEO process as it relates the search for investigating the skeletons in the EEO and 12. See 29 C.F.R. § 1614.104 (2019); U.S. DEP’T OF skeletons. As discussed, the process focuses EO complaints gives credence to the EEO ARMY, REG. 690-600, EQUAL EMPLOYMENT OPPORTUNITY DISCRIMINATION COMPLAINTS para. 3-3(b) (9 Feb. 2004) not on allegations of impropriety, but on and EO process while reducing the Army’s [hereinafter AR 690-600]. providing relief to the complainant, rather risk of selecting inappropriate candidates 13. AR 690-600, supra note 12, para. 3-3. than pursuing action against the RMO. for positions, promotions, and/or awards. 14. Id. Additionally, allegations raised through the LTC Timbrook is an attorney advisor for the 15. U.S. DEP’T OF ARMY, REG. 20-1, INSPECTOR GENERAL complaint process may not be reported to ACTIVITIES AND PROCEDURES para. 8-3(i) (29 Nov. 2010) the DAIG. If reported, as required, they are Office of the General Counsel in Washington, (RAR 3 July 2012) [hereinafter AR 20-1]. unaddressed because the DAIG deferred D.C., and serves as an adjunct professor within 16. Id.; U.S. DEP’T OF DEF., DIR. 5505.16, INVESTIGATIONS the responsibility to investigate to EEO and the Administrative Law Department at The BY DOD COMPONENTS (23 June 2017) [hereinafter DOD EO, not realizing the ancillary allegations Judge Advocate General Legal Center and School DIR. 5505.16]. of impropriety will almost certainly not be in Charlottesville, Virginia. 17. See 29 C.F.R. 1614 (2019); U.S. DEP’T OF DEF., DEF. CIVILIAN PERSONNEL ADVISORY SERV., FACT- investigated. It is the intent of the Deputy FINDING CONFERENCES IN COMPLAINT INVESTIGATIONS: Assistant of the Secretary of the Army PARTICIPANT’S GUIDE (May 2015), https://www.dcpas. (Equity and Inclusion) to promulgate a draft osd.mil/content/documents/FFCGuide.pdf; U.S. Notes DEP’T OF DEF., INSTR. 1400.25, DOD CIVILIAN PERSONNEL Army Directive (AD) for the Secretary of 1. Army Civilian senior executives (CSEs) include Senior Executive Service (SES), Scientific and MANAGEMENT SYSTEM: INVESTIGATION OF EQUAL the Army’s consideration. Professional, Senior Level, Defense Intelligence Senior EMPLOYMENT OPPORTUNITY (EEO) COMPLAINTS vol. 1614 While an AD is forthcoming to ad- Executive Service, Senior Intelligence Professional and (5 Nov. 2015). dress this pitfall; in the interim, this article Highly Qualified Experts. 5 U.S.C. § 3392 (2019). 18. 29 C.F.R. § 1614.105 (2019); Investigative Methods, DEF. CIVILIAN PERSONNEL ADVISORY SERV., https://www. 2. U.S. DEP’T OF DEF., INSTR. 1320.04, MILITARY OFFICER suggests useful methods to bridge the gap, dcpas.osd.mil/IRD/InvestigativeMethods/ (last visited ACTIONS REQUIRING PRESIDENTIAL, SECRETARY OF DEFENSE, requesting the field to assist by identify- Jan. 29, 2020). OR UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND ing the types of cases discussed above and READINESS APPROVAL OR SENATE CONFIRMATION encl. 4 (3 19. See AR 690-600, supra note 12, para. 3-3(b). Jan. 2019) [hereinafter DODI 1320.04]. making a prompt referral to the DAIG. 20. Supra note 17. 3. See Memorandum from Sec’y of Army to Principal Therefore, referral to the DAIG should hap- 21. AR 690-600, supra note 12. pen upon formal complaint filing and NSA Officials of HQDA et al., subject: Executive and Senior Professionals (ESPs)—Allegations of Misconduct and/ 22. See 29 C.F.R. § 1614 (2015), U.S. EQUAL EMP’T which will assist in ensuring we investigate or Unsatisfactory Performance (13 April 2011). OPPORTUNITY COMM’N, EQUAL EMPLOYMENT OPPORTUNITY MANAGEMENT DIRECTIVE FOR 29 C.F.R. PART 1614 these ancillary allegations of improprieties 4. DODI 1320.04, supra note 2, encl. 4. and provide prompt notification to the (EEO-MD-110), (Aug. 5, 2015), https://www.eeoc. 5. Id. encl. 4, para. 1b. gov/federal/directives/md110.cfm. DoDIG of the report of the investigation, 6. See U.S. CONST. art. 1, § 8 (giving Congress the pow- 29 23. 29 C.F.R. § 1614.504 (2019). as required. Also, for reasons mentioned ers to “raise and support armies”); see also U.S. CONST. 24. See 29 C.F.R. § 1614.603 (2019). above, initiating an AR 15-6 administrative art. 2, § 2 (giving the President the “power, by and with investigation for the population of RMOs the advice of Senate, to . . . appoint . . . officers of the 25. DODI 1320.04, supra note 2, encl. 4, para 1(b)(2). United States”). not classified as senior leaders is prudent. As 26. AR 20-1, supra note 15, para 8-3. 7. See Act of July 22, 1790; see also U.S. DEP’T OF 27. DOD DIR. 5505.16, supra note 16, para 3(b). we move forward, it is wise to recommend DEF., DIR. 5124.02, UNDER SECRETARY OF DEFENSE FOR the initiation of an AR 15-6 investigation PERSONNEL AND READINESS para. 4.1 (giving the Under 28. Id. encl. 2, para 2. for both populations of RMOs to ensure Secretary of Defense (Personnel and Readiness) the 29. Id. encl. 2, para 2(c-e). responsibility to act as advisor to the Secretary of all issues are addressed and that commands Defense for Total Force Management to “develop poli- 30. See Exec. Order No. 13839, 83 Fed. Reg. 25,343 comply with reporting requirements.30 cies, plans, and programs” for DoD Components). (May 25, 2018); U.S. DEP’T OF DEF., INSTR. 1020.03 HARASSMENT PREVENTION AND RESPONSE IN THE ARMY O Mr. Michael Lacey, Deputy General 8. D DI 1320.04, supra note 2, encl. 4. FORCES (8 Feb. 2018). Counsel of Operations and Personnel, 9. A report is made in the following forums: (1) Equal 31. Interview with Michael Lacey, Deputy of states, “when we investigate these allega- Employment Opportunity (EEO) complaint; (2) EO Operations and Personnel, Office of General Counsel, tions earlier, rather than later, we assist complaint (3) Labor and Management-Employee in Arlington, VA. (Nov. 31, 2019). Relations (LMER); (4) Department of Army Inspectors in providing evidence, holding the leader 32. Supra note 30.

40 Army Lawyer • Practice Notes • Issue 1 • 2020 (Credit: istockphoto.com/RapidEye)

negotiated settlement. This article discusses The Three R’s of Anti-Harassment why and how the Agency must meet these various obligations.

By Heidi M. Hanley Federal Employment Discrimination Law Title VII of the Civil Rights Act of 19642 “Harassment is the one type of discrimination that can be stopped in progress.” 1 (Title VII) initially defined prohibited employment discrimination as follows: “It shall be an unlawful employment practice Army commanders are familiar with providing a sensible, accessible system for an employer . . . to discriminate against the programmatic R’s that stand for for reporting allegations; investigating any individual with respect to his com- Ready and Resilient, and their align- credible claims; effecting remedial relief pensation, terms, conditions, or privileges ment with the Sexual Harassment/Assault where liability or culpability is found; and of employment, because of such individ- Response and Prevention initiative. But, holding offenders accountable. Federal and ual’s race, color, religion, sex, or national 3 when it comes to management of Civilian Agency policy also favor early resolution of origin.” Title VII also provided for creation employees, leaders at all levels could use a employment disputes, wherever possible. of its own governing body, the Equal primer on three related requirements that These overlapping functions are accom- Employment Opportunity Commission resonate in the broader anti-harassment plished through different channels. So, (EEOC), established in 1965. context: recourse, relief, and ramifications. while conceptually successive, they can and Further development of federal As a federal government employer, should occur simultaneously in practice—a employment law on discrimination the Department of the Army (Agency) is premise that is often misunderstood, espe- in the interim has included the Age responsible for preventing both sexual and cially when individual equal employment Discrimination in Employment Act non-sexual harassment in the workplace; opportunity (EEO) claims are resolved via (ADEA) of 1967,4 as amended by the Older

2020 • Issue 1 • Practice Notes • Army Lawyer 41 Workers Benefit Protection Act (OWBPA) up-front interference that creates a “chilling the employer may be able to avoid of 1990;5 the Pregnancy Discrimination effect” on the exercise of EEO activity.17 liability or limit damages by estab- Act of 1973 (which amended Title lishing an affirmative defense that VII);6 the Rehabilitation Act of 1973,7 as Sometimes retaliatory conduct is includes two necessary elements: amended; the Americans with Disabilities characterized as ‘retaliatory harass- Act (ADA) of 1990,8 as amended by the ment.’ The threshold for establishing • The employer exercised reasonable care ADA Amendments Act (ADAAA) of retaliatory harassment is different to prevent and correct promptly any 2008;9 the Civil Rights Act of 1991 (which than for discriminatory hostile work harassing behavior, and amended both Title VII and the ADA);10 environment . . . . If the conduct • The employee unreasonably failed to the Notification and Federal Employee would be sufficiently material to take advantage of any preventive or Antidiscrimination and Retaliation Act of deter protected activity in the given corrective opportunities provided by the 2002 (No FEAR Act);11 and the Genetic context, even if it were insufficiently employer or to avoid harm otherwise.22 Information Nondiscrimination Act severe or pervasive to create a hostile (GINA) of 2008.12 work environment, there would be So, the rationale for this measure was Consequently, the list of prohibited actionable retaliation.18 preventive—against the incidence of harass- bases for employment discrimination, ment itself and against employer liability, under laws enforced by the EEOC, has EEOC Anti-Harassment where it did occur. expanded. The EEOC is currently responsi- Policy Directive ble for enforcing “federal laws that make it On 1 October 2003, the EEOC issued While the anti-discrimination illegal to discriminate against a job applicant EEO Management Directive 715 (MD- statutes seek to remedy discrimi- or an employee because of the person’s race, 715), which establishes that model EEO nation, their primary purpose is to color, religion, sex (including pregnancy, programs, which federal government prevent violations. The Supreme gender identity, and sexual orientation), employers are supposed to emulate, must Court, in Faragher and Ellerth, relied national origin, age (40 or older), disabil- issue written policies and procedures for on [EEOC] guidance which has long ity or genetic information.”13 In addition addressing all forms of harassment.19 As advised employers to take all neces- to protecting these characteristics, federal “legal authority for this requirement,” the sary steps to prevent harassment. The discrimination law protects civilians who EEOC cited two Supreme Court decisions new affirmative defense gives credit engage in EEO activity: “It is also illegal to concerning harassment liability20 for the for such preventive efforts by an em- discriminate against a person because the proposition that a government employer ployer, thereby ‘implement[ing] clear person complained about discrimination, with “many departments in far-flung loca- statutory policy and complement[ing] filed a charge of discrimination, or partic- tions” could not protect against harassment the Government’s Title VII enforce- ipated in an employment discrimination “without communicating some formal ment efforts.’23 investigation or lawsuit.”14 Retaliation [anti-harassment] policy, with a sensible for protected EEO activity is commonly complaint procedure.”21 The EEOC explained: “The question of referred to as reprisal. liability arises only after there is a determi- In Burlington Industries, Inc. v. Ellerth, nation that unlawful harassment occurred. Harassment as Discrimination 118 S. Ct. 2257 (1998), and Faragher Harassment does not violate federal law It is well-settled that harassment—whether v. City of Boca Raton, 118 S. Ct. 2275 unless it involves discriminatory treatment sexual or non-sexual—is a form of dis- (1998), the Supreme Court made . . . or protected activity under the anti-discrimination under federal employment clear that employers are subject to crimination statutes.”24 Nonetheless, as law, when it occurs in or with a nexus to vicarious liability for unlawful harass- a model employer: “An agency’s internal the workplace.15 Harassment is unwel- ment by supervisors. The standard anti-harassment process should take imme- come conduct based on protected status or of liability set forth in these decisions diate and appropriate corrective action to activity that “becomes unlawful where (1) is premised on two principles: (1) an eliminate harassing conduct regardless of enduring the offensive conduct becomes a employer is responsible for the acts whether the conduct violated the law.”24 condition of continued employment, or (2) of its supervisors, and (2) employers the conduct is severe or pervasive enough should be encouraged to prevent In addition to responding promptly, to create a work environment that a reason- harassment and employees should the goal of the anti-harassment policy able person would consider intimidating, be encouraged to avoid or limit the is to prevent harassment before it hostile, or abusive.”16 harm from harassment. In order to becomes severe or pervasive . . . it can Types of discriminatory harassment accommodate these principles, the be used to avoid liability at the outset include: sexual harassment (quid pro quo); Court held that an employer is always by correcting harassing conduct hostile work environment; religious coer- liable for a supervisor’s harassment before it is cumulatively ‘severe or cion; and retaliatory harassment, which can if it culminates in a tangible employ- pervasive’ enough to constitute a legal encompass either after-action reprisal or ment action. However, if it does not, claim of harassment.25

42 Army Lawyer • Practice Notes • Issue 1 • 2020 Under the EEOC’s Enforcement of whether the harassment rises to that results in a tangible (negative) Guidance, an agency’s anti-harassment the level of being severe or pervasive. employment action, such as termi- policy should contain: Complaints of harassment do not nation or a failure to promote. If the need to conform to any particular supervisor’s harassment results in a • A clear explanation of prohibited format or be in writing.30 hostile work environment, but not conduct; in a tangible employment action, the • Assurance that employees who make And, more specifically: Army may nevertheless be liable, complaints of harassment or provide unless— information related to such complaints Supervisors and managers of Army will be protected against retaliation; civilian employees will promptly ad- (1) Management reasonably tried to • A clearly described complaint process dress allegations of harassment with prevent and promptly correct the that provides accessible avenues of the employees directly involved in the harassing behavior, and complaint; incident, along with any witnesses • Assurance that the employer will protect who might have firsthand informa- (2) The employee unreasonably failed the confidentiality of harassment com- tion. Managers must take prompt to take advantage of any preventive plaints to the extent possible; preventive and corrective action, or corrective opportunities the Army • A complaint process that provides a including discipline, as appropriate, provided. prompt, thorough, and impartial inves- in consultation with the servicing tigation; and staff judge advocate and the Labor d. The Army may be liable for harass- • Assurance that the employer will take Management Employee Relations ment by nonsupervisory employees immediate and appropriate corrective (LMER) staff.31 or nonemployees it has control over action when it determines that harass- (for example, independent contrac- ment has occurred.26 The regulation defines harassment and tors or customers on the premises), acknowledges the requirement for “prompt if management knew or should have Recourse and appropriate corrective action” to avoid known about the harassment and The Army’s written policy and procedures liability, as follows failed to take prompt and appropriate for civilian anti-harassment were incor- corrective action.32 porated into a major revision of Army D–1. Unlawful Harassment Regulation (AR) 690-12, Equal Employment a. Unlawful harassment includes, but The procedures outline avenues of Opportunity and Diversity (formerly Equal is not limited to, unwelcome conduct, recourse in addition to those found in AR Employment Opportunity and Affirmative intimidation, ridicule, insult, offen- 600-20, Army Command Policy,33 and AR Action).27 Army Regulation 690-12 places sive comments or jokes, or physical 690-600, Equal Employment Opportunity responsibility squarely on the shoulders conduct based on race, color, religion, Discrimination Complaints,34 for Civilian of “Commanders at all levels” to: “Execute sex (whether or not of a sexual na- employees experiencing or perceiving EEO programs and create an inclusive ture), national origin, age (over 40), harassment. Specifically: command climate in which it is clear to disability, genetic information, or re- all Soldiers and civilians that unlawful prisal when an employee’s acceptance D–4. How to Report Harassment discrimination and harassment (sexual/ or rejection of such conduct explicitly a. An employee who believes another non-sexual) will not be tolerated.”28 It also or implicitly forms the basis for a person has subjected them to un- specifically provides that all supervisors and tangible employment action affecting welcome harassing conduct should management officials, whether Civilian or the employee, or the conduct is suffi- inform the person(s) responsible for military, who supervise Army employees ciently severe or pervasive as to alter the conduct that it is unwelcome and “have a responsibility to maintain a work- the terms, conditions, or privileges offensive and request that it cease. place free of harassment” and requires them of the employee’s employment or to “make reasonable efforts to prevent and otherwise create a hostile or abusive b. If the conduct continues, or if the promptly correct harassing behavior in the work environment. employee is uncomfortable confront- workplace.”29 ing the responsible person(s) about In keeping with the principles es- b. The harasser can be a person’s the conduct, he or she should imme- poused by the EEOC, the Army procedures supervisor, a supervisor in another diately report the matter to his or her indicate that area, a coworker or someone who is immediate supervisor, the supervisor not an employee of the agency, such of the harasser or any other manage- [w]hen an employee makes a com- as a contractor or customer. ment official in the chain of command. plaint to a management official about The employee may also report the alleged harassment, the Army will c. The Army may be liable for un- matter to other officials, including investigate the allegation regardless lawful harassment by a supervisor The Inspector General, EEO or CPAC

2020 • Issue 1 • Practice Notes • Army Lawyer 43 [Civilian Personnel Advisory Center] relief that is awarded to them personally regardless of whether the conduct LMER personnel, union officials, or and individually, but the EEOC is not able violated the law. Ultimately, the goal chaplains. If using these alternative to direct the Army to take disciplinary of the anti-harassment program is to options to report harassing conduct, or other measures against the personnel prevent harassing conduct before it the employee should give the official who engaged in the misconduct.40 Only can become ‘severe or pervasive.’45 permission to notify the employee’s the Army can do that—specifically, man- supervisory or management chain.35 agement officials in consultation with To that end, Agency management has the servicing LMER specialist and labor an obligation to take prompt, appropriate Accordingly, and importantly, when- counselor—and it must be done in keeping corrective action to stop the harassment, ever a manager or supervisor of a Civilian with the alleged offender’s own due process prevent its recurrence, and remediate the employee becomes aware that the employee rights to notice of any proposed adverse workplace environment, regardless of the is being subjected to unwelcome conduct, action and an opportunity to respond to initiation or outcome of the alleged victim’s that official must ensure that an investiga- the charge(s) and supporting materials. EEO claims. tion or inquiry is conducted, regardless of Such evidence could properly consist of In its Enforcement Guidance, the whether the employee has already initiated sworn statements taken during an AR 15-6 EEOC offers the following: or goes on to file an EEO complaint. investigation,41 commander or management When an Army employee, former official inquiry,42 or the like, without having Examples of Measures to Correct the employee, or applicant files a formal EEO to wait for the investigative report gener- Effects of the Harassment: complaint, any claims that are accepted by ated in the EEO complaint. the servicing EEO officer will be investi- By contrast, an EEOC administrative • Restoration of leave taken because of the gated by the Department of Defense (DoD) judge or the Army Director of EEO, if harassment; Investigations and Resolutions Directorate no hearing is requested, can only award • Expungement of negative evaluation(s) (IRD), as part of EEO’s complaint process- prevailing complainants certain equitable in employee’s personnel file that arose ing procedures.36 However, management remedies such as retroactive reinstatement from the harassment; should not sit back and wait for that or promotion, back pay, front pay, and • Reinstatement; investigation to wrap up before conducting reimbursement of attorney’s fees and costs, • Apology by the harasser; its own internal investigation or inquiry. as well as pecuniary and/or non-pecuniary • Monitoring treatment of employee to According to Mr. Spurgeon Moore, compensatory damages, sufficient to place ensure that s/he is not subjected to re- Director, Army EEO Compliance and them in the position or restore them to the taliation by the harasser or others in the Complaints Review: “If an employee reports circumstances that they would have been work place because of the complaint; and harassment to a supervisor, that supervisor in absent the unlawful discrimination.43 As • Correction of any other harm caused by should still initiate an inquiry, even if the such, federal agencies’ “EEO process and the harassment (e.g., compensation for employee has initiated an EEO complaint” anti-harassment programs do not exist for losses).46 slated for investigation by IRD.37 “One the same purposes.”44 doesn’t preclude the other. They can do that In this regard, the EEOC cautions: simultaneously,” Mr. Moore explains.38 The EEO process is designed to make “Remedial measures should not adversely Notably, the first thing IRD will ask individuals whole for discrimination affect the complainant. Thus, for example, management witnesses when investigating that already has occurred through if it is necessary to separate the parties, then a claim of harassment is what prompt, ap- damage awards and equitable relief the harasser should be transferred (unless propriate corrective action they took when paid by the agency and to prevent the complainant prefers otherwise).”47 they learned of the alleged harassment. the recurrence of the unlawful dis- This is because “[r]emedial responses that Moreover, since the IRD investigation may criminatory conduct. See Albemarle penalize the complainant could constitute not occur for several months following Paper Co. v. Moody, 422 U.S. 405 unlawful retaliation and are not effective in the initiation of the EEO complaint,39 the (1975); Clarke v. Department of Justice, correcting the harassment.”48 expectation is that such action would have EEOC Appeal No. 01922561 (1992). already been taken. However, the EEO process cannot Ramifications require an agency to discipline its It should be noted that an internal com- Relief employees. See Cagle v. U.S. Postal mander’s inquiry could potentially establish The distinction between an IRD investi- Service, EEOC Appeal No. 01903198 that there was no actionable harassment gation of an EEO claim(s) and an internal (1990). The internal anti-harass- or misconduct on the part of the subject Army investigation of an allegation(s) of ment program, on the other hand, supervisor or coworker. Or, it may be harassment lies in the type of remedy each is intended to take immediate and determined that the responsible manage- of these processes is able to afford. Under appropriate corrective action, includ- ment official is non-culpable, for instance, the EEO laws, victims of discriminatory ing the use of disciplinary actions, if he or she acted with advice from counsel harassment are “made whole” by remedial to eliminate harassing conduct or upon direction from a higher authority,

44 Army Lawyer • Practice Notes • Issue 1 • 2020 or the violation was per se or de minimis.49 have an obligation to investigate and try to 6. A detailed description of the In such cases, the evidence gathered during resolve the situation, to prevent it from es- agency’s policy for taking disciplinary that Army-regulated command inquiry may calating into a situation that would become action against federal employees for be relied upon during an IRD investigation an EEO complaint.”52 But, if the EEOC or conduct that is inconsistent with or under the regulatory procedures to show DoD want to “capture data” on resolution federal antidiscrimination laws and that no corrective action was necessary. of harassment claims outside of the EEO whistleblower protection laws or for However, in the event the inquiry process, “to be able to say, ‘this is what we’re conduct that constitutes another pro- turns up evidence of harassment, hostile doing’ and [ask] ‘is it effective,’ there needs hibited personnel practice revealed in work environment, retaliation or other to be a way to track engagements.”53 connection with agency investigations misconduct, the EEOC’s Enforcement Thus, the Agency is required to report of alleged violations of these laws.55 Guidance suggests the following: such activity to the EEOC in its annual MD-715 and No FEAR Act Report. In This responsibility to ensure that Examples of Measures to Stop the Instructions to federal agencies for MD- offenders are subject to disciplinary action, Harassment and Ensure that It Does Not 715, Section 1, The Model EEO Program, not just for Title VII discrimination, but for Recur: the Army EEO Director must certify the “conduct that constitutes another prohib- following: ited personnel practice” requires Agency • Oral or written warning or reprimand; management to look beyond an adminis- • Transfer or reassignment; Element C–Management and trative dismissal or negotiated settlement • Demotion; Program Accountability agreement in certain EEO cases.56 • Reduction of wages; … As discussed above, the EEOC strongly • Suspension; B. The agency has established pro- favors settlement.57 And the Army agrees. • Discharge; cedures to prevent all forms of EEO Army Regulation 690-600 provides, at • Training or counseling of harasser to discrimination. paragraph 1-4e, that: “Early resolution ensure that s/he understands why his of complaints achieves better employee or her conduct violated the employer’s 1. Consistent with EEOC guidance, relations, cuts administrative costs, avoids anti-harassment policy; and agencies must develop a compre- protracted litigation and is consistent • Monitoring of harasser to ensure that hensive anti-harassment policy to with the Army’s commitment to EEO.”58 harassment stops.50 prevent and address harassment on However, in cases involving harassment, all protected bases. The policy should: management’s responsibility to investigate, The Army regulation provides as fol- substantiate and/or exonerate the actions lows in this regard: a) Establish a separate procedure out- of a responsible management official is side of the EEO complaint process; independent of any settlement with the D–6. Action to Take After an aggrieved (at the pre-complaint stage) or Inquiry b) Require a prompt inquiry of all the complainant. Settlement agreements, a. Upon completion of the inquiry harassment allegations to prevent or by their nature, incorporate the caveat that or investigation, the management eliminate conduct before it rises to neither party admits to any wrongdoing. official who is responsible for taking the level of unlawful harassment; With respect to EEO complaints, this is disciplinary action against the alleged limited to violations of the laws under the harasser will promptly evaluate the c) Establish a firewall exists between jurisdiction of the EEOC. They don’t ad- evidence and determine the appropri- the EEO Director and the Anti- dress other objectionable conduct that does ate action to take in consultation with Harassment Coordinator to avoid not meet a statutory definition of discrim- the servicing staff judge advocate and a conflict of interest. If the anti-ha- ination. As Mr. Moore points out, leaders the LMER specialist in the servicing rassment program resides within the “can’t tell from the settlement piece whether CPAC. This responsibility normally EEO office, the firewall is a procedure a management official has committed some rests with the first-line supervisor of preventing the EEO Director from in- other misconduct or a prohibited personnel the employee alleged to have engaged volvement in the day-to-day functions practice.”59 in the harassing conduct, unless the of the anti-harassment program; and Thus, in the anti-harassment arena, supervisor is involved in the allega- resolution is not absolution. The underly- tion. In those cases, the record of the d) Ensure that the EEO office informs ing conduct, if found to have occurred, may investigation will be provided to the the anti-harassment program of all not constitute a violation of Title VII, but senior management official in the EEO counseling activity alleging could still constitute supervisory miscon- supervisor’s chain of command.51 harassment.54 duct on the part of management officials and/or adverse, reportable information for As Mr. Moore explains, “Commanders Additionally, in its annual No FEAR purpose of screening General Officers or are responsible for their command. They Act Report, the Agency must provide: members of the Senior Executive Service

2020 • Issue 1 • Practice Notes • Army Lawyer 45 for suitability for placement, promotion, COMM’N app. 3, https://www.eeoc.gov/federal/ 34. U.S. DEP’T OF ARMY, REG. 690-600, EQUAL model_eeo_programs.cfm (last visited Jan. 27, 2020) EMPLOYMENT OPPORTUNITY DISCRIMINATION COMPLAINTS retirement, awards, etc. As Mr. Moore [hereinafter Model EEO Programs]. (9 Feb. 2004) [hereinafter AR 690-600]. observes: “Good judgment of leadership 2. 42 U.S.C. § 2000e (1964). 35. AR 690-12, supra note 27, app. D-4. is a focus of the Senate Armed Services 3. Id. 36. U.S. DEP’T OF DEF., DIR. 1400.25, DOD CIVILIAN Committee.”60 With certain exceptions, 4. 29 U.S.C. § 621 (1967). PERSONNEL MANAGEMENT SYSTEM: INVESTIGATION OF adverse information concerning senior EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS vol. 1614 leaders’ own conduct or that of their 5. 29 U.S.C. §§ 623, 626, 630 (1990). (5 Nov. 2015). subordinate supervisors must be reported 6. 29 U.S.C. § 701 (1973). 37. Interview with Spurgeon Moore, Director, Army 7. 29 U.S.C. § 791 (1973). Equal Employment Opportunity Compliance and if substantiated, Mr. Moore explains, and Complaints Review (Nov. 20, 2019) [hereinafter Mr. it may transpire that aggrieved constitu- 8. 42 U.S.C. § 12201 (1990). Moore Interview]. ents report their version of events to their 9. 42 U.S.C. § 12101 (2008). 38. Id. 61 senators voluntarily. Accordingly, Mr. 10. 42 U.S.C. § 1981a (1991). 39. The agency must provide the complainant with Moore recommends to practitioners: “If 11. 5 U.S.C. § 2301 (2002). a copy of the investigative file within 180 days from the Service Secretaries go before the Senate the filing of the complaint or, where a complaint was 12. 42 U.S.C. §§ 2000ff–2000ff–11 (2008). amended, within the earlier of 180 days after the last with a nomination, make sure they know all 13. Overview, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, amendment or 360 days after the filing of the original the ins and outs of the case. If a settlement https://www.eeoc.gov/eeoc/ (last visited Jan. 27, 2020). complaint. 29 C.F.R. 1614.108 (f) (1992). was reached because a leader did something 14. Id. 40. 29 C.F.R. 1614.501(1992). wrong, the Senators should know about 15. Harassment is expressly prohibited under Title VII, 41. U.S. DEP’T OF ARMY, REG. 15-6, PROCEDURES FOR it.”62 They will want to see the settlement the Age Discrimination in Employment Act (ADEA), ADMINISTRATIVE INVESTIGATIONS AND BOARDS OF OFFICERS agreement, along with a departmental and the Americans with Disabilities Act (ADA). (1 Apr. 2016) [hereinafter AR 15-6]. assessment of whether there was wrong- 16. Harassment, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, 42. AR 690-12, supra note 27, app. D-5, D-6. https://www.eeoc.gov/laws/types/harassment.cfm 43. See 29 C.F.R. 1614.501 (1992). doing, and whether leadership acted with (last visited Jan. 27, 2020). integrity afterwards.63 44. Model EEO Programs, supra note 1. 17. Retaliation—Making it Personal, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, https://www.eeoc.gov/laws/ 45. Id. types/retaliation_considerations.cfm (last visited Jan. 46. ENFORCEMENT GUIDANCE, supra note 22, para. V.C.1. Conclusion 28, 2020). The Army, as a federal employer, is re- 47. Id., supra note 22 (citing Steiner v. Showboat Operating quired to provide a sensible and accessible 18. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, EEOC Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer ENFORCEMENT GUIDANCE ON RETALIATION AND RELATED means for employees to report or complain remedial action for sexual harassment by supervisor ISSUES, No. 915.004 sec. II.B.3 (Aug. 25, 2016). inadequate where it twice changed plaintiff’s shift to about harassment; to conduct an inquiry or 19. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, EQUAL get her away from supervisor rather than change his investigation into credible claims; to take EMPLOYMENT OPPORTUNITY MANAGEMENT DIRECTIVE 715 shift or work area), cert. denied, 513 U.S. 1082 (1995)). swift, corrective action to stop the harassing (Oct. 1, 2003). 48. Id. (citing Guess v. Bethlehem Steel Corp., 913 F.2d behavior(s) and prevent its recurrence in 20. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); 463, 465 (7th Cir. 1990) (“a remedial measure that Faragher v. City of Boca Raton, 524 U.S. 775 (1998). makes the victim of sexual harassment worse off is the workplace; to process EEO complaints ineffective per se”)). 21. Faragher, 524 U.S. at 809. through resolution or adjudication; and to 49. AR 600-20, supra note 33, para. 4-7d(1). hold offenders accountable. These obli- 22. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, 50. ENFORCEMENT GUIDANCE, supra note 22. gations, while overlapping, are distinct. ENFORCEMENT GUIDANCE ON VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS, 51. AR 690-12, supra note 27, app. D-6. Commanders at all levels are responsible No. 915.002 (June 18, 1999) [hereinafter ENFORCEMENT 52. Mr. Moore Interview, supra note 37. for seeing that they are understood and GUIDANCE]. executed by any management officials with 23. Id. § 1. 53. Id. Army Civilian employees in their super- 24. Id. (citing Oncale v. Sundowner Offshore Services, Inc., 54. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, INSTRUCTIONS 118 S. Ct. 998, 1002 (1998)). TO FEDERAL AGENCIES FOR MD-715, SECTION 1, THE visory chain. Ensuring that leadership is MODEL EEO PROGRAM (last visited Jan. 27, 2020). 25. Model EEO Programs, supra note 1, app. 3. well-advised on the fundamentals of civilian 55. 5 C.F.R. 724.302 (a)(6) (2006). anti-harassment laws and policies will help 26. Id. app. 2. 56. Id. keep the Army rolling along readily and 27. U.S. DEP’T OF ARMY, REG. 690-12, EQUAL 57. See 29 C.F.R. 1614.603 (1992); U.S. EQUAL EMP’T responsibly. TAL EMPLOYMENT OPPORTUNITY AND DIVERSITY (8 Nov. 2019) [hereinafter AR 690-12]. OPPORTUNITY COMM’N, EQUAL EMPLOYMENT OPPORTUNITY MANAGEMENT DIRECTIVE FOR 29 C.F.R. PART 1614 chs.

Ms. Hanley is an Equal Employment 28. Id para. 1-4e(1). 2-14, 3, 12 (Aug. 5, 2015). Opportunity/Civil Rights attorney-advisor, 29. Id. app. D-2. See also id. app. D-2a (responsibilities 58. AR 690-600, supra note 34, para. 1-4e. of supervisors and management officials). Office of The Judge Advocate General, Labor and 59. Mr. Moore Interview, supra note 37. 30. Id. app. D-2b. Employment Law Division, Washington, D.C. 60. Id. 31. Id. app. D-2c. 61. Id. 32. Id. app. D-1. 62. Id. 33. U.S. DEP’T OF ARMY, REG. 600-20, ARMY COMMAND 63. Id. 1.Notes Model EEO Programs Must Have An Effective Anti- POLICY (6 Nov. 2014) [hereinafter AR 600-20]. Harassment Program, U.S. EQUAL EMP’T OPPORTUNITY

46 Army Lawyer • Practice Notes • Issue 1 • 2020 assume that from the time they commissioned until now, their service probably resembles this scenario. For officers who commissioned prior to 2001, command was probably at a very junior level where interactions with, and management of, a Civilian staff was infrequent, at best. There are approximately 247,393 federal Civilian employees currently serving in the Department of the Army.4 The over- whelming majority of these employees do not deploy alongside our service members, but instead remain in garrison and provide critical support and continuity required to accomplish the mission at home. As such, the majority of Civilian personnel encountered by commanders in deployed environments are likely local nationals or government contractors supporting the (Credit: istockphoto.com/WinnieVinzence) force;5 neither group is categorized as Title 5, United States Code (U.S.C.), federal Civilian employees.6 This distinction is Leading Leaders in Managing Civilians important because Title 5 U.S.C. employees are statutorily vested with due process rights and protections,7 concepts with By Major Mary E. Jones which commanders of Civilian employees must be familiar. As a legal advisor to the new garrison commander,8 you are presented with the 3 After successfully completing another And, although different in many ways, critical task of refreshing COL Rock on the rotation through a complex deploy- COL Rock begins to appreciate that his laws and policies for managing his Civilian ment, your commander, Colonel (COL) Civilian employees are equally value-adding workforce. This article aims to discuss Rock, had commanded superbly and shown members of the team and are focused on three pillars of command success—roles, great leadership potential for increased executing the same goal and achieving mis- relationships, and responsibilities to ensure responsibility.1 In order to prepare him for sion success. Twenty-four-hour operations your commander can complete and return the next level of command, COL Rock has become almost non-existent and urgency home safely from this next assignment as a been given a broadening assignment at a takes on a new meaning. And, while not to supervisor of Civilians. large installation and assumed command of devalue the importance or complexity of 2 a garrison. He recognizes that he will be garrison operations, COL Rock is starting Roles presented with many unfamiliar challenges to realize that command of a garrison will Commanders, as the initiators of many since he has not served on a garrison staff be a truly unique leadership challenge. actions addressing service member miscon- for quite some time. Since 2001, we have been a military duct, are not necessarily the initiators of After the change of command cere- at war. For the past nearly twenty years, adverse actions9 involving Civilian employ- mony, COL Rock begins operating on a our commanders have been entrenched in ees. Rather, this responsibility is oftentimes new battle rhythm with a new routine of joint operations, leading highly sensitive reserved for the Civilian’s first-line supervi- meetings, new issues to tackle, and a new missions, and asking complex questions sor, who generally has firsthand knowledge staff to command. He quickly recognizes about rules of engagement. Now, more than of an employee’s poor performance, mis- that the structure, workforce composition, ever, commanders have been operating on conduct, or other action or behavior that and mission of a garrison is inherently a twenty-four-hour clock and demanding impacts the efficiency of the service, which different from what he has been used to quicker turnaround response times. After a serves as the trigger for when adverse in a deployed environment. The number twelve- to fifteen-month deployment, our action should be initiated.10 The initiator of of service members on his new staff is commanders generally return home for a an adverse action is known as the proposing greatly reduced in comparison to his staff brief period, reset, and prepare for another official and, for Civilian employee actions, while deployed; his new staff is comprised deployment. For many of our current active is generally the Civilian’s first-line super- primarily of federal Civilian employees. duty commanders, it is not unrealistic to visor.11 But this does not imply that COL

2020 • Issue 1 • Practice Notes • Army Lawyer 47 Rock does not have oversight or command the hat of a grievance hearing official to the overall efficiency of his workforce, and of adverse actions taken against his Civilian address Employee A’s employment issue, maintain good order and discipline within employees. Employee A simultaneously desires to use his organization. Certainly, COL Rock could, depending COL Rock’s open-door policy to discuss 19 on the employee’s grade and position, be a separate matter. Colonel Rock may be Relationships a Civilian employee’s first-line supervisor; hesitant to grant Employee A’s request; With COL Rock wearing various hats in however, more than likely, COL Rock will however, he should likely allow Employee the roles that he assumes during command, serve as the employee’s higher level reviewer A to use his open-door policy, recognizing developing and maintaining good rela- (HLR) (otherwise known as the “senior that regardless of the hats he wears, COL tionships is critical for his success and the rater”).12 The decision-maker of a proposed Rock, while in command, will always wear success of his organization.27 As COL Rock adverse action is known as the deciding the hat of commander. He is ultimately begins his transition into command, he official, so for Civilian employee actions, this responsible for the well-being of all his should identify strengths and weaknesses is generally the Civilian’s HLR.13 employees, regardless of rank or grade.20 of the previous commander’s relationships This also does not imply that COL Another role that COL Rock is likely with his teammates, and start to develop Rock and other commanders need not have to assume when commanding Civilian ways to improve and ultimately sustain a firm understanding of the Civilian adverse employees is as a responsible manage- effective relationships. action process. Commanders and senior ment official (RMO) during an Equal As a starting point, COL Rock should leaders should possess a clear understanding Employment Opportunity (EEO) com- get to know his labor counselor and should of the disciplinary process for Civilian em- plaint.21 As an RMO, COL Rock may be have points of contact for the Civilian ployees and have confidence to take swift, identified as someone who allegedly took Personnel Advisory Center, EEO, Employee deliberate, and appropriate action when a discriminatory action against a Civilian Assistance Program, and union leadership. necessary. Although, the conventional employee.22 If the complainant is a current Each teammate has a different and import- thinking seems to be sometimes that dis- employee,23 COL Rock will likely have ant role in addressing a Civilian personnel ciplining a Civilian employee is “too hard, concerns about interacting with the com- issue and is a subject matter expert (SME) [the process] takes too long, is ineffective, plainant, for fear of further discriminatory within a particular area that impacts COL and just cannot be done, the reality is that actions being alleged against him. However, Rock’s workforce. And although each Civilian employee discipline is essential to as stated above, COL Rock must continue teammate serves a different function in the unit readiness and good order and disci- to command and oversee his entire work- overall success of COL Rock’s organization, pline.”14 One way to instill confidence is to force, which the complainant is part of. the common thread binding them together compare the Civilian disciplinary process,15 Legal advisors should be heavily involved in is the well-being of the workforce to achieve something that COL Rock is likely less guiding a commander like our hypothetical mission success for the organization. As familiar with, to disciplinary actions taken COL Rock facing this dilemma. COL Rock’s legal advisor, you should be against service members under the Uniform Within the realm of EEO complaints, available to provide ongoing and timely Code of Military Justice, something that if COL Rock is not a named RMO, but advice and assistance. This will help COL COL Rock is probably quite familiar with.16 rather is senior in the supervisory chain Rock develop trust in you as his legal advi- Aside from serving as a rater, HLR, to a named RMO, COL Rock could serve sor and instill confidence that COL Rock is proposing official, and a deciding official, as a settlement authority (SA) during EEO able to address Civilian personnel issues. there are other roles that COL Rock is likely or other complaints involving alternative Additionally, COL Rock should seek to serve in, and hats that he will be expected dispute resolution.24 As a SA, COL Rock input from the senior Civilian within his to wear during his time in command. Judge may express concern that settling with the organization. This individual has likely advocates advising such supervisors should complainant may open the floodgates for worked for the organization for a long pe- familiarize themselves with these roles to other Civilian employees to file additional riod of time, can provide valuable insight better guide their client. EEO complaints; however, the evidence and observations of areas for improve- One role that COL Rock is likely to does not support such a fear.25 Rather, set- ment and systemic concerns, understands serve in is as a grievance hearing official for tlement avoids uncertainty in an outcome specific concerns related to his employees, bargaining unit and non-bargaining unit being decided by an independent federal and can provide continuity for COL Rock employees.17 In this role, COL Rock will agency; it allows resolution of a complaint and future commanders. Collectively, serve as the initial decision-maker for ac- without fault being assigned; it saves time these conversations should help COL Rock tions that an employee elects to grieve. The and resources for both the agency and the maintain effective relationships with his election to grieve matters that are deemed complainant; and it achieves finality of one teammates and provide him with insight grievable, or to pursue other available ave- or more ongoing complaints.26 Additionally, on where improvement within the organi- nues of redress, is an election made by the reaching settlement of a formal complaint zation is needed.28 employee.18 At times, COL Rock may feel filed by a current employee allows COL However, change simply for the that the parameters of his roles are becom- Rock to rebuild a fractured relationship sake of change is not necessarily a good ing blurred if, for example, while wearing with a member of his workforce, improve thing. Colonel Rock should be mindful to

48 Army Lawyer • Practice Notes • Issue 1 • 2020 implement proposed changes only after then hold them accountable and take ap- Notes consulting with his labor counselor and propriate action if they fail in meeting those 1. All names used in this article are fictional and not intended to represent a particular individual. complying with statutory requirements;29 goals and expectations.36 Colonel Rock otherwise, COL Rock could risk commit- should recognize that performance manage- 2. U.S. DEP’T OF ARMY, REG. 600-20, ARMY COMMAND POLICY para. 2-5b(4)(b) (6 Nov. 2014) [hereinafter AR ting an unfair labor practice, exposing the ment includes more than simply following 600-20] (The “Garrison Commander] commands the agency to litigation that could have easily the four phases of the Civilian performance garrison, is the Senior Commander’s senior executive 30 37 for installation activities[, . . .] is responsible for day- been prevented. management program, it means having a to-day operation and management of installations and clear vision about the mission of his orga- base support services.” Id. Responsibilities nization and ensuring that every Civilian 3. See generally 5 C.F.R. Parts 1-3 (1963) (methods of As the senior executive for installation employee has a position description and appointment into federal service); 5 U.S.C. § 6329a activities, COL Rock is, in part, responsible performance plan that aligns with accom- (2016) (administrative leave); 29 C.F.R. § 1630 (1991) (reasonable accommodations); U.S. DEP’T OF ARMY, 38 for ensuring that the intent of the Senior plishing that mission. REG. 690-12, EQUAL EMPLOYMENT OPPORTUNITY AND Commander’s mission is met—“the care His legal advisor and/or labor coun- DIVERSITY app. C (12 Dec. 2019) [hereinafter AR of Soldiers, Families, and Civilians, and to selor is pivotal in helping COL Rock with 690-12] (reasonable accommodations within the Department of the Army). enable unit readiness.”31 More specifically, these two tasks, especially the latter one. 4. OFFICE OF PERS. MGMT., FEDSCOPE REPORT, COUNTS as it applies to the Civilian workforce, COL Knowing this information will help him FOR EMPLOYEES BY AGENCY (June 2018). Rock must ensure that he has a general identify skill gaps and vacancies in positions 5. See generally U.S. DEP’T OF DEF., DIR. 1404.10, DOD understanding of the laws, rules, and reg- that are value-added to the organiza- CIVILIAN EXPEDITIONARY WORKFORCE (23 Jan. 2009). 39 ulations applicable to Civilian employees. tion. The broader umbrella of workforce 6. The scope of this article is limited to Title 5 employ- He must also be confident to seek guidance management means understanding how ees as defined in 5 U.S.C. § 2105 (2013). from the proper SME if there appears to be to grapple with the very occasional odd, 7. 5 U.S.C. § 7513(b) (1978); 5 C.F.R. § 752.404 (2009). a deviation from a requirement. Just as it aggressive, and even threatening behavior40 Prior to pursuing disciplinary action, the proposing official should check with the Civilian Personnel would not be appropriate for COL Rock to of an employee, accommodating individ- Advisory Center (CPAC) Labor Management and be uninterested in daily operations of non- uals with disabilities,41 and ensuring a safe Employee Relations (LMER) Specialist servicing their commissioned officers and junior enlisted workplace for all. In conjunction with the organization to determine whether the employee is a probationary employee. See 10 U.S.C. § 1599e (2015) Soldiers, COL Rock cannot uninvolved in labor counselor, COL Rock should also (discussing probationary periods for employees). his Civilian workforce. His duty to ensure review command policies currently in effect 8. Whether a seasoned labor counselor, an inex- the well-being of his organization means to ensure compliance with recent changes perienced administrative law attorney, or simply a that he must understand how to operate in in the law, and ensure that all federally judge advocate asked to review a particular situation 42 dealing with a federal Civilian employee, this article the terrain of Civilian personnel matters, required annual notices are posted. is designed to provide a starting point in your role as even if it is unfamiliar to him, with the help By highlighting the various roles that legal advisor. of his legal team. COL Rock will likely juggle during his 9. 5 C.F.R. § 752.401 (2009) (noting adverse actions As a starting point, COL Rock should command; underscoring the value in devel- include removals, suspensions for more than fourteen understand that the federal civil service is oping and sustaining effective relationships; days, including indefinite suspensions, reductions in grade, reductions in pay, and furloughs of thirty days grounded upon brick and mortar principles, educating him about the organization’s or less); 5 C.F.R. § 432 (1989) (discussing perfor- known as the Merit System Principles.32 statutory and agreed-upon responsibilities; mance-based actions). The Merit System Principles require all and providing support and advice through- 10. 5 C.F.R. § 752.403 (2009); See Stone v. FDIC, 179 Civilian personnel actions to be based out these processes, you, as COL Rock’s F.3d 1368 (Fed. Cir. 1999). on fairness, equity, and merit, not only legal advisor, will have effectively equipped 11. See generally 5 C.F.R. pt. 432 (1989); 5 C.F.R. pt. with regard to hiring and firing Civilian him with the tools necessary to serve con- 752 (2009). employees, but also as it relates to perfor- fidently in another complex environment. 12. U.S. DEP’T OF DEF., INSTR. 1400.25, DOD CIVILIAN PERSONNEL MANAGEMENT & APPRAISAL PROGRAM, mance ratings, details, and opportunities Not only will COL Rock feel empowered vol. 431, at 22 (4 Feb. 2016) [hereinafter DPMAP for advancement.33 A violation of the to take swift, deliberate, and appropriate vol. 431] (defining Higher Level Reviewer (HLR) Merit System Principles, an allegation of action in Civilian personnel actions within as “a senior-level management official, normally above the level of a rating official”). The Defense discrimination, retaliation, or improper his garrison, but his knowledge will carry Personnel Management and Appraisal Program does hiring practice could result in an alleged with him as he continues to progress into not mandate a higher level reviewer. Memorandum prohibited personnel practice.34 Affirming increased leadership roles, thereby creating from Assistant Sec’y of Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Army adherence to fairness, good faith bargaining greater opportunities to educate and men- Policy on Requirement for a Higher Level Reviewer is also statutorily required when negotiat- tor our future leaders. TAL (HLR) for the Dep’t of Army Civilian Employees ing with federal labor unions representing Covered Under the Defense Performance Management & Appraisal Program (9 May 2016) (Department bargaining unit employees within the MAJ Jones is an associate professor in the of Army established a HLR to “serve as an internal organization.35 Administrative and Civil Law Department at organizational review contributing to organizational To underscore unit readiness, COL The Judge Advocate General’s Legal Center and rating consistency and provide checks and balances for finalizing employee ratings.”). Rock should communicate to his supervi- School, Charlottesville, Virginia. sors clearly defined goals and expectations,

2020 • Issue 1 • Practice Notes • Army Lawyer 49 13. See 5 C.F.R. §§ 752.404(c)(2), 752.404(g) (2009) (de- origin, age, physical or mental disability, and/or then the supervisor is presumably failing to perform scribing the contents of the agency notice of decision). reprisal). appropriate duties as a supervisor, and should be held 14. Rebecca Ausprung, Director, Civil Law and 24. Id. paras. 2-2(d), 2-3(g). accountable. Supervisors are also subject to a proba- Litigation, United States Army Legal Services Agency, tionary period when they assume duties as a supervisor; 25. Kimberly Mlinaz, Director, Negotiation and therefore, monitoring and evaluating their perfor- Presentation at The Judge Advocate General’s Legal Dispute Resolution, United States Air Force, Center and School, Worldwide Continuing Legal mance is a critical aspect of supervisory performance Presentation at The Judge Advocate General’s Legal management. Education: Civil Service Disciplinary Rules and Center and School, 72d Law of Federal Employment Procedure (Sept. 19, 2019) [hereinafter Ausprung Course: Command the Litigation Space through 37. 5 C.F.R. § 430.102(a) (1995) (defining performance WWCLE]. Negotiation (July 31, 2019). management as “the systematic process by which an 15. 5 C.F.R. § 752.403 (2009) (“An agency may take agency involves its employees, as individuals and 26. Michael Lassman, Senior Civilian Attorney, Office members of a group, in improving organizational adverse action, including a performance-based adverse of The Staff Judge Advocate, Installation Management action or an indefinite suspension, under this subpart effectiveness in the accomplishment of agency mission Command, Presentation at the U.S. Army Legal and goals”). only for such cause as will promote the efficiency of Services Agency, The Second Annual Senior Labor supra the service.”); 5 C.F.R. § 752.404 (2009) (describing the Counselor Forum (Sept. 25, 2019). 38. DPMAP vol. 431, note 12, § 3.3; 5 C.F.R. procedures for the notice of proposed action and the § 430.203 (2015) (defining performance plan as “all notice of decision). 27. U.S. DEP’T OF ARMY, DOCTRINE PUB. 6-22, ARMY of the written, or otherwise recorded, performance LEADERSHIP AND THE PROFESSION para. 1-11 (25 Nov. 16. Ausprung WWCLE, supra note 14 (comparing elements that set forth expected performance. A 2019) (“Within the Army profession, trust is shared plan must include all critical . . . elements and their LMER Specialist to a paralegal/military justice advisor; confidence among commanders, subordinates, Table of Penalties to the Manual for Courts-Martial; performance standards.”); U.S. OFFICE OF PERS. MGMT., and partners in that all can be relied on and all are THE CLASSIFIER’S HANDBOOK (TS-107) 18 (Aug. 1991) notice of disciplinary action to preferral; decision of competent in performing their assigned tasks.”); Id. disciplinary action to referral; labor counselor to trial (Position description (PD) is defined as “a statement para. 1-12 (“Trust has a direct relationship on the time of the major duties, responsibilities, and supervisory counsel; administrative leave to pretrial confinement; and resources required to accomplish the mission. an Equal Employment Opportunity or Merit Systems relationship of a position. The purpose of a position Subordinates are more willing to exercise initiative description is not to spell out in detail every possible Protection Board hearing to an Article 15, administra- when they believe their commander trusts them [and] tive separation board, or court-martial). activity during the work day.”) Annual PD reviews more willing to exercise initiative if they believe their are strongly encouraged to ensure that the work being 17. 5 C.F.R. Part 771 (1995) (describing the agency commander will accept and support the outcome of performed by the employee aligns with the mission Administrative Grievance System); U.S. DEP’T OF DEF., their decisions.”). of the organization, but also to provide a basis upon INSTR. 1400.25, DOD CIVILIAN PERSONNEL MANAGEMENT 28. See generally 5 C.F.R. pt. 251 (1996). which to hold an employee accountable for unaccept- SYSTEM: ADMINISTRATIVE GRIEVANCE SYSTEM, vol. 711 able performance if ever necessary. [hereinafter DoDI vol. 771] (13 June 2018). See also all 29. There are three instances when the union repre- supra See Collective Bargaining Agreements that impact your sentation has statutory rights: (1) 5 U.S.C. § 7103(a) 39. DPMAP vol. 431, note 12, § 3.3(b). U.S. organization. There are approximately 49,970 (22.4%) (14) (2004) (management is required to provide notice MERIT SYS. PROT. BD., MANAGING FOR ENGAGEMENT— appropriated fund employees and 8,940 (36.1%) to the union of a proposed change and allow the union COMMUNICATION, CONNECTION AND COURAGE, A REPORT non-appropriated fund employees employed by the an opportunity to negotiate a change to conditions TO THE PRESIDENT AND THE CONGRESS OF THE UNITED Department of the Army who are either represented of employment for bargaining unit members); (2) 5 STATES 11 (July 2009) (“Immediate supervisors . . . link or entitled to be represented by a federally recognized U.S.C. § 7114(a)(2) (1978) (management is required to employees to the larger organization by helping them labor union, as well as 459 bargaining units comprised provide notice to the union of the formal discussion understand how their individual accomplishments lead of appropriated fund employees and 49 bargaining and allow the union an opportunity to attend a formal to the achievement of agency goals.”). units comprised of non-appropriated fund employees discussion); and (3) 5 U.S.C. § 7114(a)(2)(B) (1978) 40. Jolly v. Department of the Army, AT-0752-15- serving Department of the Army federal Civilian (during an investigative inquiry, when a Civilian 0013-I-1 (11 Sept. 2017) (nonprecedential). The employees. HEADQUARTERS, ARMY CIVILIAN PERSONNEL employee is being questioned and has a reasonable United States Court of Appeals for the Federal Circuit SYSTEM (8 July 2019). belief that the investigative inquiry by the agency could (denied an employee’s appeal from a decision whereby result in disciplinary action being taken against the supra she was removed from federal service for making men- 18. 5 C.F.R. § 752.405(b) (2009); DoDI vol. 771, employee, the employee may invoke Weingarten rights, note 17, para. 3b(3)(c) (“An employee may not grieve acing remarks, including “have you [her supervisor] prompting management to either stop the interview, heard about the [recent] Camp Lejeune and Fort Hood the same matter raised in any other grievance, appeal, coordinate with the union representative and resume complaint, or other dispute resolution process.”). shootings . . . her supervisor and [] her second line questioning once the union representative is present; supervisor needed to be careful, to leave her alone and 19. AR 600-20, supra note 2, para. 2-2. The labor terminate the interview; or give the employee the not to mess with her.” Id. See also Susan Henry, Labor counselor and LMER can provide suggestions on choice). and Employment Law Division, Office of The Judge Id. appropriate courses of action. 30. 5 U.S.C. § 7116 (1978). Advocate General, Presentation at the U.S. Army Legal Id. Services Agency, The Second Annual Senior Labor 20. paras. 2-1(b), 3-3(n) (“[All] leaders . . . will pro- 31. AR 600-20, supra note 2. vide an environment that contributes positively to the Counselor Forum: Workplace Violence Prevention, mental, physical, spiritual, and emotional dimensions 32. 5 U.S.C. § 2301 (1990). See also 5 C.F.R. § 7.1 (1963) Assistance, and Response (Sept. 25, 2019) (discussing of the lives of their subordinates. [Additionally, all (“[An appointing officer] shall exercise his discretion efforts to study potentially violent behavior in the leaders will] demonstrate and promote resilience by in all personnel actions solely on the basis of merit workplace). setting the example, encouraging help-seeking behav- and fitness and without regard to political or religious 41. See 29 C.F.R. § 1630 (1991); AR 690-12, supra note ior, and by remaining actively engaged with their . . . affiliations, marital status, or race.”). 3, app. C; 28 C.F.R. § 36 (1991). Army Civilians. . . .”). 33. 5 U.S.C. § 2301. 42. See generally 5 U.S.C. § 2302 (2017) (The Office 21. See U.S. DEP’T OF ARMY, REG. 690-600, EQUAL 34. 5 U.S.C. § 2302 (2017). of Special Counsel requires annual posting of Your EMPLOYMENT OPPORTUNITY DISCRIMINATION COMPLAINTS Rights as a Federal Employee and Know Your Rights When (9 Feb. 2004) [hereinafter AR 690-600]; EQUAL EMP’T 35. 5 U.S.C. § 7117 (1978). Reporting Wrongs). Both notices are generally posted by OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (5 36. U.S. DEP’T OF ARMY, REG. 350-1, ARMY TRAINING either the G-1 or the servicing LMER Specialist. Aug. 2015) [hereinafter MD-110]. AND LEADER DEVELOPMENT para. 3-82(a) (19 Aug. 2014) 22. 29 C.F.R. § 1614.103 (1992). (“Supervisors are responsible for the training and education of Army [c]ivilians, identifying capability 23. AR 690-600, supra note 21 (defining complainant requirements and competency gaps, recommending em- as an Army employee, a former Army employee, an ployees for training, coaching and counseling, . . . and applicant for Army employment, or certain contract setting performance [standards] that include training employees who files a formal complaint of discrimina- and educational opportunities.”). When a supervisor tion based on their race, color, religion, sex, national fails to hold an underperforming employee accountable,

50 Army Lawyer • Practice Notes • Issue 1 • 2020 in Government Purchase Card purchases COVID-19: A Judge Advocate’s Role in and required sources of supply for infrared thermometers, N95 respirators, hand sani- Advising Decision-Makers tizer, and disposable coverall suits. Contract administration decisions will impact By Major Matthew T. Bryan operations when risk mitigation measures restrict installation access. We have had U.S. civilians request to be quarantined, and we said yes—then had to figure out how to The virus known as COVID-19 is a access, rules for the use of force, conditions write a contract for quarantine services (i.e., novel coronavirus originating in on liberty, mandatory recall, cancelling lodging, food, linens, and laundry, etc.). 1 Hubei, China. Since its discovery in leave, cancelling classes in Department Speaking of quarantine, what about free in- December, the virus has spread the world of Defense (DoD) Education Activity ternet for Soldiers in isolation for fourteen over. As of 12 March 2020, the World schools, and involuntary extensions. You days? The list goes on. Health Organization reporteds more than must consider whether and under what While judge advocates should not be 125,000 cases and 4,600 deaths worldwide. conditions command authority extends nervous or anxious, they must be ready. Those infected include service mem- to civilians. Familiarize yourself with The issues you will confront are diverse, bers, dependents, and overseas Civilian DoD Instruction 6200.03, “Public Health interesting, and complex. Leaders will rely employees. Emergency Management.”3 Print it, and keep on your answers because they value your As of this writing, we have our first it on your desk. principled counsel in challenging times and confirmed cases on Camp Humphreys.2 Government Information Practices. circumstances. The advice you give will be Resources at 2d Infantry Division are Evaluate how your organization uses per- critical to facilitating the commander’s abil- stretched thin—we are ready to “Fight sonal information protected by the Privacy ity to assess risk and make necessary tough Tonight,” ready to combat North Korean Act and the Health Insurance Portability decisions. TAL aggression, and already running twenty- and Accountability Act.4 Is there too much four-hour operations attempting to blunt information in that battle update brief MAJ Bryan is currently the Chief of the spread of this virus. slide? Who is on the division surgeon’s Administrative and Civil Law at 2d Infantry Judge Advocate General’s (JAG) Corps distribution list, receiving trackers with Division, Camp Humphreys, Republic of Korea. personnel will see COVID-19 issues related personally identifiable information of in- to every foundational area of law. COVID- fected personnel? Read up on the minimum 19 travel restrictions are affecting witness necessary information rule, disclosure, and Notes travel for courts-martial. National security civil remedies. 1. Pneumonia of unknown cause–China, WORLD HEALTH ORG. (Jan. 5, 2020), https://www.who.int/csr/don/05- law teams associated with U.S. Forces Law of Federal Employment. Which january-2020-pneumonia-of-unkown-cause-china/ Korea were recently preparing for com- civilian employees are mission-essential en/. bined exercises, and now they are focused and which are not? Commanders will need 2. U.S. DEP’T OF DEF., INSTR. 6200.03, PUBLIC HEALTH on internal security and gate screening. advice on telework policies, alternate work EMERGENCY MANAGEMENT (PHEM) WITHIN THE DOD (28 Client services is assisting service mem- schedules, paid time off, and administrative Mar. 2019). bers with the financial repercussions of leave (hint: weather and safety). 3. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1897 (1974) (codified as amended at 5 U.S.C. command-directed leave cancellations and Federal and State Relations. In Korea § 522a (2019)); Health Insurance Portability and the real-world need for thoughtful estate it’s “Federal and Host-Nation Relations.” Accountability Act of 1996, Pub. L. No. 104-191, 110 planning. Administrative law and contract The issues are analogous and generally Stat. 1936 (Aug. 21, 1996). and fiscal law are also taxed. The compet- pertain to the extent and impact of coming requests for information coming out mand decisions and authority outside of the of the command operations and informa- installation. Know the difference between tion center, from across the division staff, exclusive and concurrent jurisdictions. and from our subordinate elements are Review the mutual support agreements varied, time-sensitive, and have serious your installation may have with local gov- implications. ernments. Familiarize yourself with defense Chiefs of administrative law on an in- support of civil authorities. stallation near a COVID-19 hotspot should Contract and Fiscal Law. Want to be a refresh their knowledge of several legal hero? Know fiscal law. You will eat, sleep, issues that may arise. What follows is a list and breathe the “necessary expense test.” of key issues they should consider. Stockpiling is a bona fide needs viola- Command Authority. You may face tion—except for emergency planning. Your questions about restricting installation commands will become very interested

2020 • Issue 1 • Practice Notes • Army Lawyer 51 (Credit: istockphoto.com/filadendron) No. 1 When Does an Employee Become an Employee?

By Maria D. Esparraguera

“Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself . . . ” 1 —Chief Justice John Marshall

hen does an applicant become a federal employee? If an that, tentatively, he was to report on Monday, 24 September 2018. Wentrance on duty (EOD) reporting date is delayed through On 19 September 2018, he asked for an update and was told to no fault of the applicant, is there a legal basis to retroactively adjust report at 1000 on 25 September 2018. His supervisor provided a an EOD to reflect the report date? Or, would the EOD be the date statement that, throughout the storm, Mr. Creed also participated that the applicant actually in-processed and took the oath of office? in twice-daily “accountability exercises.” The South Carolina base In 1803, the actions necessary to give validity to a federal appoint- remained closed and no one performed work other than employment ultimately resulted in the Supreme Court’s establishment of ees on current telework agreements. Ultimately, those working the doctrine of judicial review. 2 for the organization who were federal employees prior to 17 Constitutional questions aside, let us consider hypothetical September 2018 were paid, regardless of whether they performed applicants, Apollo Creed and Rachel Chu, who have both applied work. On 25 September 2018, when the building opened, Mr. for federal positions from the private sector. Both received final Creed reported and took the oath of office. job offers from the Civilian Personnel Advisory Center (CPAC) Rachel Chu was to report to a North Carolina base. That and accepted them. Both went online to complete the registration office did not suffer the same effects from the storm as the South process with an EOD date of 17 September 2018. On 14 September Carolina base. As a result, the North Carolina base was open 2018, Hurricane Florence struck the U.S. East Coast. As a result, on 17 September 2018 at 1000. However, on Wednesday, 12 some federal offices were closed. September 2018, the CPAC contacted her and told her not to On 17 September 2018, Apollo Creed was to report to a South report on Monday, 17 September 2018, due to the hurricane. Ms. Carolina military base, but the building and offices were closed. In Chu’s supervisor contacted her on Friday, 14 September 2018, and anticipation of the storm, on 13 September 2018, he was provided found out that the CPAC told her not to report. On Monday, 17 a password to the organization’s website for weather updates, but September 2018, her supervisor called CPAC for clarification. The on 17 September 2018, he notified the CPAC that the website was supervisor then contacted Ms. Chu and advised her to report the not working. On that same day via email, the CPAC informed him next day. On Tuesday, 18 September 2018, Ms. Chu took the oath

2020 • Issue 1 • Army Lawyer 53 of office, backdating the documentation the employee accepted the position on a offer should then be issued to another for 17 September 2018. Subsequently, the Sunday, but did not take the oath of office applicant. In order to execute a personnel CPAC advised that the documents could or report to work until Tuesday after the action effecting commencement of civilian not be back-dated; they were corrected to holiday. The Comptroller General noted employment, there must be completion of reflect 18 September 2018. that “the appointment alone does not vest all steps required by law or regulation. Organization leadership argued him with the position,” but that if: A subsequent (1972) Comptroller that since both employees were in re- General decision ordered back pay where a ceipt of a firm offer with a report date of [T]here is evidence which establishes job offer was erroneously withdrawn after 17 September 2018, this date should be that any particular employee actually initial acceptance.11 In that case, Walter honored as the commencement of federal accepted the tendered appointment, Dean was informed that he was to start as a employment. They cited the OPM Guide to either verbally or otherwise on Customs Officer on 12 March 1971.12 On 9 Processing Personnel Actions (OPM Guide):3 Sunday, then he would be entitled March 1971, he was informed that his offer to pay for the pay for the Monday was withdrawn.13 On 12 March 1971, Mr. 4-1 Appointments to Federal Service holiday notwithstanding that he did not Dean presented himself for work and was [A]ppointments to positions in the take the oath of office and report for duty barred from entry.14 Several months later, civil service are effective only from until Tuesday and there would be the Civil Service Commission (predeces- date of acceptance and entrance on administrative discretion to deny him sor of the U.S. Merit Systems Protection duty, unless a later date is stated on pay for the Monday.5 Board (MSPB)) found that Mr. Dean had the Standard Form 52 . . . or other been legally appointed to the position on 12 approving document . . . . The Comptroller General ultimately March 1971 and that the Customs office had did not award pay for the holiday, but or- “improperly prevented him” from reporting 4-2 Date of Acceptance dered that the agency consider the evidence for duty.15 The Back Pay Act states that if an Acceptance may be shown by formal and make a determination accordingly. employee of an agency is found by “appro- acceptance, by entry on duty, or by Subsequent decisions have essentially over- priate authority under applicable law or taking the oath of office. Date of ruled this holding. regulation” to have undergone an “unjusti- acceptance is the date the applicant Under the OPM Guide, federal ap- fied or unwarranted personnel action,” they accepts, either orally or in writing, pointments are effective only from date of would be entitled to back pay.16 Based on the the appointment offer . . . . acceptance and entrance on duty.6 It also Civil Service Commission’s determination, states that the entrance on duty is the process the Comptroller General ordered back pay.17 4-3 Entrance on Duty (EOD) by which a person completes the “necessary Other 1970s Comptroller General a. Entrance on Duty is the process by paperwork and is sworn in as an employee.”7 decisions narrowed this holding. In Leonard which a person completes the neces- Paragraph 4-3.c. provides that the oath of of- Ross—Claim for Back Pay, an applicant’s sary paperwork and is sworn in as an fice and appointment affidavit are “executed” EOD was delayed by two weeks because the employee . . . . when the appointee “enters on duty” and are Agency had failed to comply with its union given by an official who has been delegated agreement as to the length of time for post- The organization’s analysis centered on responsibility to administer oaths.8 ing of the vacancy announcement.18 Mr. the language above stating that acceptance The organization requesting the Ross had been notified that he was selected is demonstrated by formal acceptance of the retroactive appointment cited the OPM for a position with the Department of offer or by taking the oath of office. They Guide, paragraph 4-2, for support that Agriculture with an EOD of 16 December did not distinguish between “acceptance” appointment can be made either by 1974.19 The afternoon of 12 December and “appointment” to civil service, nor did formal acceptance or entry on duty.9 1974, he was notified that his EOD would they acknowledge the wording of subchap- That paragraph discusses acceptance, not be 26 December 1974.20 The claim for back ter 4-1, which states that appointments to appointment. pay was denied: civil service are effective from the date of Taken in totality, based on the com- acceptance and entrance on duty. plete language of the OPM Guide, an oath of As a general proposition, one is They offered one case in sup- office is required for a federal appointment. not entitled to compensation until port of their position. In a 1966 To interpret it differently would disregard his appointment has been fully decision, Administrator, Federal Aviation the requirement in paragraph 4-3.a. for consummated by taking the oath Administration,4 the Comptroller General both necessary paperwork and swearing of office. We have recognized an held that appointment acceptance was the in.10 “Acceptance” of a civil service position exception where one enters on duty start of federal employment when there is different from “appointment,” in that and performs actual work prior to was acceptance of a position on Sunday and acceptance will govern whether an appli- appointment, finding in that situation the following day was a federal holiday. cant has demonstrated acceptance of the that his taking oath of office related The issue was whether the appointee offer of employment. This becomes critical back to the date of his entrance on would be paid for the holiday. In that case, for purposes of determining whether an duty, B-181294, November 8, 1974.

54 Army Lawyer • Issue 1 • 2020 However, in the case where an does not constitute an “unjustified or notified that they were selected for federal employee has not actually entered on unwarranted personnel action” under positions and given EOD dates.29 Prior to duty, he may be compensated only to the Back Pay Act. This is so even their EOD, the offers were revoked because the extent that his non-performance though it appears that the appoint- of a hiring freeze.30 The D.C. Circuit of work is the consequence of his ment or promotion may have been determined that they were not entitled to having undergone an unjustified or delayed through error or an unusually retroactive pay.31 In that case, the court unwarranted personnel action within heavy agency workload in the pro- agreed that the applicants were “appointed” the terms of the Back Pay Act.21 cessing of personnel actions.25 to positions, although it was determined that the appointments could be withdrawn The Comptroller General differen- Based on this rationale, administrative prior to EOD.32 In order to warrant relief, tiated Ross from its previous decision in error leading to a delay in EOD does not the court held that the appointees had to Dean,22 which ordered back pay based on an rise to a level high enough to result in ret- meet the 5 U.S.C. §2105(a) definition of administrative decision by the Civil Service roactive appointment to federal service. “employee.”33 Under the statute, which ap- Commission that there was an “unwar- In the hypothetical, Mr. Creed, who was plies to Title 5 in its entirety, the court held ranted” personnel action. In Ross, the claim to report to the South Carolina base, did not that employees are (1) appointed in the civil for back pay was denied because the delay report on 17 September 2018 because the service, (2) engaged in the performance of resulted from required compliance with building and offices were closed. The offices a federal function, and (3) subject to the a bargaining agreement.23 Therefore, Mr. remained closed and no one in the building supervision of a federal employee.34 Because Ross had not undergone an unjustified or performed work, nor did they in-process they did not report for EOD, the applicants unwarranted personnel action. Mr. Creed or administer his oath of office. in the case were not considered “employees” In Raymond J. DeLucia,24 an applicant He took the oath of office on 25 September and were not entitled to pay.35 who was given an employment offer and 2018 when the building opened. Under these The MSPB has statutory jurisdiction a firm EOD date was not entitled to a circumstances, it is difficult to argue that the over actions taken against employees, not retroactive appointment despite with- delay in his EOD was either “unjustified” or applicants. Consequently, many MSPB drawal of the offer, delay, and subsequent “unwarranted.” The hurricane closed the decisions also examine 5 U.S.C. §2105(a) appointment. Mr. DeLucia’s firm EOD date South Carolina base, not any overt act by to determine when applicants become of 25 March 1974 was withdrawn on 21 the Army; therefore, he was not “improperly employees.36 March 1974 because of a large number of prevented” from reporting for duty. To be a government employee under applicants to be processed. He alleged that Ms. Chu was to report to the North 5 U.S.C. §2105, it must be demonstrated an administrative error had delayed his Carolina base. That office did not suffer the that (1) the appointment actually occurred; appointment and that he should be com- same effects from the storm as the South that is, it was approved by an authorized pensated the back pay. In denying the relief, Carolina base. As a result, the building appointing official aware that they were the Comptroller General stated: reopened on 17 September 2018 at 1000. making the appointment, (2) the applicant However, on 12 September 2018, the CPAC took some action denoting acceptance An offer of public employment does contacted her and told her not to report due of the appointment, and (3) the appoint- not give rise to a contractual rela- to the hurricane. On 17 September 2018, ment was not revoked before the person tionship in the conventional sense… her supervisor called her and advised her to performed in the position.37 A federal As a general proposition, one is not report the next day. On 18 September 2018, appointment occurs when the appointing entitled to compensation until his Ms. Chu took the oath of office. authority has performed the last act to effect appointment has been fully consum- In Ms. Chu’s case, her duty station was the appointment.38 mated by taking the oath of office. We operating, but the CPAC’s mistake in calling In Robert McCarley v. MSPB, an appli- have recognized an exception where her and telling her not to report was argued cant sought to demonstrate that he was an one enters on duty and performs as an administrative error. Ms. Chu’s situa- employee because he received a job offer actual work prior to appointment. tion is factually similar to DeLucia,26 where that was withdrawn when he reported an administrative error caused a delay in for duty.39 The Federal Circuit Court of . . . . EOD. In DeLucia, an administrative error Appeals held: did not entitle the applicant to a retroactive [I]n the ordinary case the decision appointment.27 Subsequent cases further There is a clear difference between to appoint or promote an individual restricted retroactive adjustment of hiring being an appointee and an employee, in the Federal service is left to the dates/pay based on the definition of “em- and the lines are drawn by [5 U.S.C. discretion of the employing agency, ployee” in 5 U.S.C. § 2105(a).28 §] 2105. One may be an appointee and and we have held that in such case The United States Court of Appeals, never achieve the status of employee. the agency’s action in not hiring or D.C. Circuit, in National Treasury Employees There are three elements of the stat- promoting the individual on the date Union (NTEU) v. Reagan, denied retroac- ute and all must be complied with to he expected or would have preferred, tive appointment to applicants who were achieve the status of an employee . . .

2020 • Issue 1 • Army Lawyer 55 . . . . The Olson decision specifically states elements of the definition of employee. that even some in-processing, without actual Prior to the EOD, 17 September 2018, Mr. Back pay therefore cannot be performance of work under a supervisor, Creed was told by the CPAC that the office awarded to an appointee who has not will not justify payment as an employee.51 was closed and that he should not come in. qualified as an employee by perform- The decision further cites McCarley, in the A request to participate in an accountability ing a federal function subject to the conclusion that such payment under such exercise did not mean that Mr. Creed was supervision of a federal employee. circumstances would be illegal.52 authorized to assume his duties before he Such payment for work he did not The totality of the facts will ultimately was appointed as a federal employee. perform, because the appointment be determinative of employee status. In In Ms. Chu’s situation, the CPAC was revoked before he did any super- Hintz v. Department of the Army, a proba- contacted her on 12 September 2018 and vised work, would be illegal.40 tionary employee who was removed on told her not to report on 17 September the last day of his probationary period 2018 due to the hurricane. Ms. Chu was The Comptroller General has also argued that he actually commenced work contacted by her supervisor on Friday, 14 applied the definition of “employee” under for the Army a week earlier than effected, September 2018, and was informed that 5 U.S.C. § 2105 in decisions subsequent resulting in non-probationary status.53 Ms. Chu was told not to report, although to 1980. In Rodgers D. O’Neill: Entitlement Hintz reasoned that his probationary the office was scheduled to open. Ms. to Military Leave Prior to Appointment, Mr. period began early when, after receipt Chu’s supervisor also asserted that she par- O’Neill had a firm offer, acceptance, and of an appointment letter and before his ticipated in accountability exercises over an EOD date of 27 July 1980.41 On 26 July proposed EOD date, he attended meet- the weekend. After coordination with the 1980, he received orders to report for ings at the request of his supervisor.54 CPAC, on 17 September 2018, the super- military training at his reserve unit.42 He The Federal Circuit did not agree that visor contacted Ms. Chu and advised her remained on active duty until 10 August the correspondence was an unconditional to report the next day, 18 September 2018. 1980, when he reported for duty for the letter of appointment and that his partici- There is no evidence that accountability civilian position.43 The decision held that pation at the meeting was the performance exercises were anything other than verifi- “it has long been the general rule that an of a federal function.55 Referring to the cation of the status of personnel during a appointment is effective only after the ap- three requirements of 5 U.S.C. § 2105, the hurricane. pointee has accepted the appointment and Federal Circuit noted that Hintz received Without contravening facts, it is actually entered on duty.”44 notice that he had been selected for em- doubtful that these exercises rise to a The Comptroller General decision ployment and should report on 7 October level that can be characterized as a federal most similar to the current case is Harry 1991.56 The fact that his supervisor either function. Mr. Creed and Ms. Chu were told Olson.45 The Olson decision denied an indi- encouraged or requested him to attend not to report for duty, nor were they sworn vidual’s claim for a day’s pay for the time meetings before that date was “insuffi- in prior to 18 and 25 September 2018, he spent filling out forms on his EOD.46 cient to establish that he was authorized respectively. In accordance with the Olson During in-processing, the applicant dis- to assume his duties before” that date.57 decision, they cannot receive payment as puted his proposed step-level salary rate.47 Generally, the appointment of a federal employees for any preliminary time devoted He then declined the offer of employment employee cannot occur in the absence of to verifying personnel safety or status activ- and left the facility.48 Relying on McCarley, the “last act” required by the person or ities that came prior to being sworn in. the Comptroller General held that he never body vested with appointment power, and Back pay may be awarded where appli- engaged in the performance of a federal that will be examined in the totality of the cants started working, but were erroneously function; that is, the duties of his position, circumstances.58 never sworn in or processed.60 In Jackie R. under a federal supervisor.49 In the hypothetical, the organization Smarts, Defacto Employee, the Comptroller Thus, Mr. Olson never fulfilled the requesting the retroactive appointment General found that the employee “filled the second and third essential elements of the characterized both Mr. Creed and Ms. Chu office, discharged [her] duties, and did so definition of employee. We note that this as participating in twice-daily accountability under the approval of her supervisors” in distinction between being an appointee exercises with their supervisors during the “good faith and under color of authority.”61 versus being an employee has been clearly storm event. In both situations, the extent Based on that rationale, back pay for forty recognized by the courts, McCarley v. MSPB of the exercises and what they entailed is hours was allowed.62 and NTEU v. Reagan. In the final analysis, Mr. not provided. There is no evidence that In the hypothetical, there is no Olson never attained the status of a Federal they can be characterized as performing evidence the applicants performed work. employee, and he may not receive payment a federal function of the organization. This is not a matter of an inadvertent for any preliminary time he devoted to Comparing Mr. Creed’s participation in failure to process or swear someone in. in-processing activities that did not entail accountability exercises prior to his 17 Acknowledging that Mr. Creed and Ms. an entrance on duty and the performance of September 2018 EOD to the applicant in Chu participated in the accountability exer- work since ‘[s]uch payment for work he did Olson59 filling out forms when he reported, cises, there was no characterization of the not perform . . . would be illegal.’50 Mr. Creed did not fulfill the essential hurricane-related accountability measures

56 Army Lawyer • Issue 1 • 2020 as work or accomplishment of the mission specific performance of duties before ap- 30. Id. of the organization. Therefore, Mr. Creed plicants come on board, they should not be 31. Id. and Ms. Chu were not de facto employees. considered de facto employees. TAL 32. Id. The wording of the OPM Guide, 33. Id. paragraph 4-1 requires that appointments Ms. Esparraguera is a strategic initiatives officer 34. Id. to civil service are effective from the date at the Civilian Human Resources Agency, 35. Id. of acceptance and EOD, further defining Aberdeen Proving Ground, Maryland. 36. 5 U.S.C. §2105(a) (2018). EOD as completing in-processing and being 37. Deida v. Department of Navy, 110. M.S.P.R. 408, sworn in. Mr. Creed and Ms. Chu were re- ¶ 13 (2009). quired to take the oath of office before they 38. Testart v. Department of Navy, 42 M.S.P.R. 21 Notes could be considered appointed as federal 1. Marbury v. Madison, 5 U.S. 137, 157 (1803). (2009). employees. Since 1975, the Comptroller 2. Id. at 177-79. 39. Robert McCarley v. MSPB, 757 F.2d 278, 280 (Fed. General has consistently held that there is 3. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Cir. 1985). no entitlement to compensation until an THE GUIDE TO PROCESSING PERSONNEL ACTIONS (Mar. 40. Id. 2017), https://www.opm.gov/policy-data-oversight/ appointment has been fully consummated data-analysis-documentation/personnel-documenta- 41. Rodgers D. O’Neill: Entitlement to Military Leave by taking the oath of office. tion/#url=Processing-Personnel-Actions [hereinafter Prior to Appointment, B-205972 (May 25, 1982) (unpublished). Under the Back Pay Act, 5 U.S.C. § OPM GUIDE]. Id. 5596, an applicant may receive a retroac- 4. Administrator, Federal Aviation Administration, 45 42. Comp. Gen. 660 (Apr. 28, 1966). tive appointment and back pay if they have 43. Id. undergone an “unjustified or unwarranted 5. Id. (emphasis added). 44. Id. personnel action.”63 Comptroller General 6. OPM GUIDE, supra note 3, para. 4-1. 45. Harry Olson, B-224600 (Oct. 8, 1986) decisions have considered actions “unjusti- 7. Id. para. 4-3.a. (unpublished). fied or unwarranted” when there was legal 8. Id. para 4-3.c. 46. Id. entitlement to the appointment.64 Simple 9. Id. para 4-2. 47. Id. administrative errors will not rise to the 10. Id. para 4-3.c. 48. Id. level requiring back pay or retroactive ap- 11. Civilian Employee-Unjustified Personnel Action- 49. Robert McCarley v. MSPB, 757 F.2d at 280. pointment. The mistaken communication Back Pay-Entitlement, 72 Comp. Gen. 20526 (21 Apr. 50. Harry Olson, B-224600 (Oct. 8, 1986) to Ms. Chu not to report on 17 September 1972). (unpublished). 2018 does not warrant back pay or retroac- 12. Id. 51. Id. tive appointment. 13. Id. 52. Id. In 1981, the U.S. Court of Appeals, 14. Id. 53. Hintz v. Dept. of Army, 21 F.3d 407, 409-10 (Fed. D.C. Circuit, in NTEU v. Reagan, used the 15. Id. Cir. 1994). 5 U.S.C. §2105 definition of “employee” 16. The Back Pay Act, 5 U.S.C. § 5596 (2018). 54. Id. to deny retroactive appointment and back 17. Civilian Employee-Unjustified Personnel Action- 55. Id. pay.65 That decision has been followed by Back Pay-Entitlement, B-175373, 72 Comp. Gen. 56. Id. 20526 (21 Apr. 1972). the courts, MSPB, and Comptroller General 57. Id. See also Haverstock v. Dept. of Army, U.S. Merit to deny government employee status to ap- 18. Leonard Ross, Claim for Backpay, B-183440 (Aug. Systems Protection Board, DA-0752-10-0679-I-1 12, 1975), https://www.gao.gov/assets/400/396022. (nonprecedential 3/23/2012). plicants who have spent time in-processing pdf. on EOD, or for others who attended work 58. Hoever v. Department of the Navy, 115 M.S.P.R. 19. Id. 487, 8 (2011); McGovern v. Equal Employment meetings before their EOD who were not 20. Id. Opportunity Commission, 28 M.S.P.R. 689, 692 sworn in. Generally, the appointment of a (1985); Scott v. Department of the Navy, 8 M.S.P.R. 21. Id. federal employee cannot occur in the ab- 282, 287 (1981); Bilodeau v. American Battle 22. Civilian Employee-Unjustified Personnel Action- Monuments Comm’n, 39 M.S.P.R. 243, 249-51 (1988). sence of the “last act” required by the person Back Pay-Entitlement, 72 Comp. Gen. 20526 (21 Apr. Cf. Jackie R. Smarts, DeFacto Employee, B-188574, or body vested with appointment power, 1972). Comp. Gen. (unpublished) (29 Dec. 1977). and that will be examined in the totality of 23. Leonard Ross, Claim for Backpay, B-183440 (Aug. 59. Harry Olson, B-224600. the circumstances.66 12, 1975), https://www.gao.gov/assets/400/396022. 60. Jackie R. Smarts, DeFacto Employee, B-188574, Natural disasters occur with some pdf. Comp. Gen. (unpublished) (Dec. 29, 1977). frequency worldwide. During those events, 24. Raymond J. DeLucia, B-191378 (Jan. 8, 1979) 61. Id. (unpublished). the commencement of federal employ- 62. Id. 25. Id. ment is a recurring issue. Be aware that the 63. Back Pay Act, 5 U.S.C. § 5596 26. Id. failure to take the oath of office or report 64. Id. 27. Id. for in-processing will be held to delay the 65. National Treasury Employees Union v. Reagan, commencement of federal employment. 28. 5 U.S.C. § 2105(a) (2018). 663 F. 2d 239, 245 (May 20, 1981). Assertions of performance of duties prior to 29. National Treasury Employees Union v. Reagan, 66. Id. EOD should be examined carefully. Without 663 F. 2d 239, 246 (May 20, 1981).

2020 • Issue 1 • Army Lawyer 57 (Credit: istockphoto.com/YinYang) No. 2 Looking into the Crystal Ball Examining GAO’s Oracle America Ruling

By Major William T. Wicks

It hasn’t attracted much attention but a seemingly minor quasi-judicial ruling is a prime example of how our acquisition system serves as a means to self-inflicted unilateral disarmament. Unless senior leadership in the Defense Department acts in the next few weeks, this Government Accountability Office’s (GAO) protest decision in favor of Oracle and against the Army and Transportation Command will ensure that China will dominate the future military application of quantum computing, artificial intelligence and machine learning, data analytics, biotechnology, robotics and autonomous operations.1

n 31 May 2018, the Government Accountability Office the defense acquisition establishment to prepare for technologies O(GAO) sustained a bid protest against the U.S. Army, U.S. and conflicts of the future. A prime example of this, among others, Transportation Command (TRANSCOM), and the Defense is a hypothetical reprise of an attack on U.S. military facilities Innovation Unit-Experimental (DIUx) in Oracle America for throughout the Pacific Rim by the Chinese and Russian militaries improper use of Other Transaction Agreement (OTA) author- in the near-futuristic novel Ghost Fleet: A Novel of the Next World ity under 10 U.S.C. § 2371b in order to obtain “prototype” cloud War, by P.W. Singer and August Cole.5 computing services and follow-on production from REAN Cloud Set against this unusually dramatic backdrop for the field of Services LLC.2 The GAO decision caused a firestorm of reac- acquisition law, the GAO decision siding with the protester in tion, including from outspoken former Senate Armed Services this case began with a critical finding that the protester, Oracle Committee (SASC) staffer, Mr. Bill Greenwalt, who predicted dire America, was an “interested party” with standing to challenge the consequences to the Department of Defense’s (DoD) technological Army OTA award in a GAO bid protest.6 The GAO’s rationale in edge from the GAO decision’s application to DoD OTAs.3 The finding Oracle to be an interested party in the sustained bid protest GAO decision and Mr. Greenwalt’s commentary further provoked for the cloud prototype OTA may open other DoD OTA award a similarly extraordinary public rebuttal from the GAO, with the decisions up to challenge through bid protests at the GAO, as sug- GAO Managing General Counsel, Mr. Kenneth Patton, asserting gested by Mr. Greenwalt and others.7 The GAO’s position in Oracle that the GAO did not create policy through its decision, but rather America undermines and may swallow the general rule that OTAs merely interpreted it in Oracle America.4 are generally not subject to the Competition in Contracting Act One does not need to search too far afield in current popular (CICA) and GAO bid protests. Furthermore, the GAO’s decision culture to find similar breathless predictions of the imminent de- finding that Oracle was an “interested party” likely is inconsistent mise of American military overmatch due to the alleged failures of with Congress’s intent for streamlining prototype OTAs under

2020 • Issue 1 • Army Lawyer 59 10 U.S.C. § 2371b.8 Given these concerns, significant limitations on other FAR-based to enter into OTAs for prototype efforts Congress should seriously examine limiting federal procurement contracts.13 as well.20 As the original 2017 DoD OTA the GAO’s jurisdiction to hear bid protests Instead of a “contracting officer” having Guide points out, Congress enacted legis- of OTAs under 10 U.S.C. § 2371b, much as authority to bind the government, under lation authorizing OTAs for research and it limited the GAO’s jurisdiction to review an OTA, an “agreements officer” fulfills a prototyping in order to supplement other task order protests less than $25 million similar role binding the government to the well-known guidance for grants and cooper- awarded by the DoD. agreement and ensuring the contractor’s ative agreements under 10 U.S.C. § 2358.21 The next section will examine what compliance with terms and conditions.14 Since the enactment of OTA authority OTAs are, provide a brief history of OTAs’ Additionally, as the updated 2018 DoD for prototyping in 1994, in the late 1990s use, and will examine how the DoD uses OTA Guide notes, one of the most advan- and early 2000s, DARPA and the Army OTAs for prototyping and follow-on tageous aspects of section 2371b prototype initially utilized OTAs during the pre-ma- production today. It will then examine a OTAs is that data rights are generally much teriel solution development phase of the renewed focus on DoD OTAs for proto- more negotiable, allowing the government Future Combat Systems (FCS) program.22 types enacted in the 2016 National Defense and contractors to adjust certain data rights Due to congressional concerns about the Authorization Act (NDAA). Next, the more flexibly than under traditional FAR- inapplicability of the Truth in Negotiations GAO’s prior review of OTAs for other based instruments.15 Act (TINA)23 and the lack of certified cost agencies within the U.S. government will These newly-modified acquisition data from the lead systems contractor, the be discussed. This article will then look at authorities for DoD prototyping can Army eventually re-negotiated all of the the GAO’s Oracle America decision and anal- serve as useful tools to enhance access to OTAs under FCS as FAR Part 15 negotiated ysis of “interested party” status, focusing on non-traditional defense contractors and procurement contracts during the summer its flawed CICA-type analysis to establish academia-developed solutions for defense of 2005, preceding the ultimate cancellation Oracle America as an interested party. The requirements as well. Since the 2016 NDAA of the FCS program in 2009.24 This massive final section will propose a solution to limit and permanent codification of prototype program cancellation served as background the GAO’s jurisdiction over prototype OTA OTA authority in 10 U.S.C. § 2371b, the to the Army’s perceived reticence to using bid protests in order to facilitate innovative defense contracting industry and the media non-FAR acquisition vehicles such as OTAs transactions and review a proposed way have expressed significant interest in the prior to the 2016 NDAA. forward in light of the strategic envi- potential flexibility associated with the use ronment. Appendices A and B contain of these OTAs, for experimentation and Increased Emphasis on OTAs for examples of proposed legislation limiting follow-on production.16 Prototypes in 10 U.S.C. § 2371b bid protests of § 2371b OTAs. In the 2016 NDAA, Congress replaced the A Brief History of OTAs FY 1994 NDAA Section 845 DoD prototype Background Beginning with the National Aeronautics authority with permanently codified au- An OTA is not a traditional procure- and Space Act of 1958, the National thority for prototyping OTAs in 10 U.S.C. ment contract governed by the Federal Aeronautics and Space Administration § 2371b, supplementing the already existing Acquisition Regulation (FAR) or the (NASA) was the first federal agency to section 2371 for research OTAs.25 Congress Defense FAR Supplement (DFARS).9 use OTAs for research and prototyp- intended section 2371b for flexible and fast Additionally, an OTA is not considered ing efforts—many decades before other OTA prototype agreements in order to a grant or cooperative agreement gov- federal agencies.17 Since NASA’s inception, build prototypes quickly without strictures erned by 10 U.S.C. § 2358 through the it has used OTAs—known as Space Act of the FAR and CICA, and then move DoD Grants and Agreements Regulations Agreements within NASA—significantly to follow-on production.26 Specifically, (DODGARS).10 Other Transaction more than any other federal agency, and in- the statute authorizes “prototype projects Agreements are simply acquisition author- deed currently maintains many more active directly relevant to enhancing mission ities “other” than—or outside the bounds OTAs than other federal agencies.18 After effectiveness of military personnel and the of—traditional FAR and DODGARS-based approximately thirty years of OTA use by supporting platforms, systems, compo- contract methods. Other Transaction NASA, in 1989, Congress enacted 10 U.S.C. nents, or materials proposed to be acquired Agreements can be much more flexible than § 2371 to allow the Defense Advanced or developed . . . or to improvement of plat- traditional FAR-based procurement con- Research Projects Agency (DARPA) to forms, systems, components, or materials in tracts, with clauses specifically crafted for enter into OTAs for basic, applied, and use by the armed forces.”27 Furthermore, in each case. In addition, under the enabling advanced research efforts.19 order to award such an OTA under section statute for DoD prototypes, section 2371b Section 2371 OTAs are commonly 2371b, a “non-traditional defense contrac- OTAs are not explicitly subject to the broad referred to as research OTAs, as opposed tor” must participate to a significant extent, “full and open” competition requirements of to prototype OTAs under section 2371b. or a traditional defense contractor must CICA,11 nor are they subject to the Contract Subsequently, Congress enacted Section 845 provide one-third of the cost share unless Disputes Act (CDA),12 among other of the Fiscal Year (FY) 1994 NDAA to allow waived by the service Senior Procurement for DARPA, and by extension the DoD, Executive (SPE).28

60 Army Lawyer • Issue 1 • 2020 In turn, 10 U.S.C. § 2302(9) defined States Code, is written in an intention- GAO review of an OTA protest is supposed a non-traditional defense contractor for ally broad manner . . . making use of to be a much more limited review than a a section 2371 research OTA or section OTAs, and their associated flexibil- typical bid protest reviewing a “procure- 2371b prototype OTA as: ity, may require senior leaders and ment contract” for goods and services. Congress to tolerate more risk . . . In addition to the GAO’s jurisdiction [A]n entity that is not currently per- . Importantly, any such risk must over OTA bid protests, the Court of Federal forming and has not performed, or be viewed as lesser than the risks of Claims (COFC) or the various federal dis- at least the one year period preceding stymieing innovation or slowing the trict courts may have jurisdiction to review the solicitation of sources by the development and fielding of critical bid protests of OTAs under the Tucker Department of Defense for the pro- new capabilities.35 Act,41 including section 2371 or section curement or transaction, any contract 2371b OTAs. In an August 2019 deci- or subcontract for the Department After the initial enactment of the 2016 sion, the COFC reviewed a section 2371b of Defense that is subject to full NDAA authorizing section 2371b prototype OTA regarding Air Force Launch Service coverage under the cost accounting and production OTAs, the DoD published Agreements in Space Exploration Techs. Corp. standards prescribed pursuant to the department-wide OTA Guide for proto- v. United States, but dismissed the bid protest section 1502 of title 41 and the regu- types in January 2017, including definitions by finding that they were not “procurement lations implementing such section.29 and guidance for possible follow-on pro- contracts” for Tucker Act purposes, and duction of prototypes.36 Arguably, portions transferred venue to U.S. District Court in The statute unfortunately does not de- of the initial 2017 guide were incomplete the Central District of California under 28 fine what “significant participation” means, or ambiguous. Therefore, the November U.S.C. §1391(b).42 However, the GAO has but the updated 2018 DoD OTA Guide 2018 DoD OTA Guide replaced the initial exercised jurisdiction over the vast majority states that the non-traditional defense January 2017 DoD OTA Guide, and is of bid protests of section 2371b OTAs up to contractor could, for instance, supply key now in effect throughout all DoD agencies this point, in Oracle and subsequent cases. technology, accomplish significant amounts utilizing OTAs.37 In the Oracle America Regarding the GAO’s Bid Protest of effort, or cause a material reduction in decision itself, the GAO partly deferred to Regulations, as stated above, the GAO will cost, schedule, or increase performance, the 2017 DoD OTA Guide’s definition as only review bid protests from “interested among a list of non-exhaustive other efforts to what constitutes a successful prototype parties.”43 Interested parties are those supplied by the guide.30 for the purposes of section 2371b, given entities who are “[a]ctual or prospective The statute also authorizes DoD the lack of any statutory definition.38 On offerors whose direct economic interest agencies to provide for follow-on produc- a broader scale, in the Department of the would be affected by the award of a contract tion after initial completion of a section Army, OTAs have become more promi- or by the failure to award a contract.”44 2371b OTA prototype.31 In order to award nent as acquisition vehicles since the 2016 This in turn derives from the U.S. Code’s a follow-on production section 2371b NDAA and especially since the advent definition of an “interested party” for the OTA without competing the requirement of U.S. Army Futures Command and the purposes of a federal procurement con- a second time, DoD agencies may do so if Cross-Functional Teams (CFTs).39 Given tract.45 Unlike the GAO’s general ability to “(A) competitive procedures were used for the recent, renewed interest in OTAs across review traditional procurement contracts the selection of parties for the participation the DoD, the GAO’s ultimate involvement subject to CICA under its Bid Protest in the transaction; and (B) the participants in reviewing bid protests of DoD OTAs Regulations, however, the GAO previously in the transaction successfully completed may have been inevitable. established much more limited views of its the prototype project provided for in the ability to review OTA award decisions for transaction.”32 Congress did not, however, The GAO’s Role in Reviewing other non-DoD agencies in the decisions, define what a “successful prototype” would Bid Protests of OTAs Rocketplane Kistler and MorphoTrust. be in the text of the statute, either.33 Concurrent with this broad and renewed Subsequent to section 2371b’s en- interest in OTAs in the DoD since the 2016 The GAO’s OTA Analysis in Rocketplane actment, the SASC stated openly in the NDAA, the GAO has carved out a role in Kistler report accompanying the 2017 NDAA reviewing OTAs over the years, mostly Representing the foundation for that it would like DoD agencies with OTA within federal agencies other than the DoD. the GAO’s review of the OTA in Oracle authority to expand their use of OTAs, if Under normal circumstances, according to America, Rocketplane Kistler was a 2008 GAO possible.34 As the SASC explicitly stated, the GAO’s Bid Protest Regulations en- review of a NASA Space Act Agreement or OTAs are supposed to be very broad acted pursuant to CICA, the GAO reviews OTA for low-earth orbit (LEO) transporta- authorities: bid protests from “interested parties” of tion engineering services.46 The protester, traditional FAR-based contracts to ensure Rocketplane Kistler, contended that NASA The statutory authority for other compliance with “procurement law and must obtain research and development transactions as delineated in section statutes.”40 Based on in its own previous services for LEO engineering under a 2371 and 2371b of title 10, United bid protest decisions, discussed below, any research and development procurement

2020 • Issue 1 • Army Lawyer 61 (Credit: istockphoto.com/Pattanaphong Khuankaew) contract, and not a Space Act agreement.47 security checkpoints around the United by statute or regulation, [the GAO] will In denying the protest, the GAO stated that States.50 The TSA Head of Contracting not make an independent determination it would only review whether the Space Activity (HCA) concluded a determination of the matter.”54 The GAO went on to find Act Agreement was “knowing and autho- and findings (D&F) stating that a traditional that the TSA OTA use was consistent with rized,” given that the primary purpose of procurement contract under the FAR was its statutory authority, and that the TSA the agreement did not principally provide inappropriate under the circumstances HCA properly documented the correct for goods and services for the direct benefit to procure commercial screening tech- rationale in its D&F setting forth conditions of NASA, and otherwise complied with the nology, as authorized under the Aviation for the OTA.55 Notably, the GAO’s analysis authorizing statute—here, the Space Act.48 & Transportation Security Act of 2001 of TSA’s statutory authority to enter into The GAO analysis of the agency’s statutory (ATSA).51 The protester, MorphoTrust, other transactions was not lengthy, and did authority to enter into the agreement is contended that the TSA was required to use not attempt to pierce the rationale behind very short and the GAO does not attempt to a traditional procurement contract under what TSA adequately documented in the dissect the agency’s rationale in so doing.49 the FAR to obtain the expedited screening D&F.56 Therefore, the GAO denied the pro- This deferential decision in Rocketplane technology, as opposed to an ATSA OTA.52 test by MorphoTrust on the merits.57 This Kistler set the stage for the GAO’s review in The GAO further found, however, that 2016 decision served as a prelude to the MorphoTrust in 2016. there was no specific statutory requirement GAO’s rationale in Oracle America discussed from Congress for the TSA to use a tradi- below. The GAO’s OTA Analysis in MorphoTrust tional FAR-based procurement contract Subsequent to the 2008 Rocketplane Kistler for this particular requirement, as opposed The GAO’s Analysis in Oracle America, Inc. decision, in 2016 the GAO reviewed a to an OTA authorized under the ATSA.53 The cases discussed above lead up to the Transportation Security Administration Reiterating points from Rocketplane Kistler 2018 bid protest in Oracle America, explicitly (TSA) OTA in MorphoTrust that sought to and associated GAO case law, the GAO dealing with a DoD section 2371b OTA purchase commercial technology in support concluded that where “the decision to use for prototype cloud computing services.58 of expedited screening at various airport ‘other transaction’ authority—is authorized In this decision, the GAO sustained the bid

62 Army Lawyer • Issue 1 • 2020 protest against the Army, TRANSCOM, prototype OTA for the DoD under section occurring.76 The protester contended that and DIUx in Oracle America for improper 2371b or its predecessor, section 845 of the the Navy’s use of a section 2371b OTA was use of OTA statutory authority in obtaining FY 1994 NDAA. inappropriate for this type of EMS defense prototype cloud computing services and The GAO used obvious CICA-type requirement and that the Navy should have follow-on production from REAN Cloud definitions to establish Oracle’s interested used a traditional FAR-based procurement Services LLC.59 The critical gateway was the party status in Oracle America, allowing the contract.77 GAO’s decision that the protester, Oracle protester to put a “foot in the door” and In the decision on the merits, the America, was an interested party pursuant went on to sustain two protest grounds GAO specifically cites its previous rationale to the Bid Protest Regulations with standing against the Army for the follow-on pro- in Oracle America, concluding that it will to challenge the OTA award decision. The duction agreement.70 In its interested party review established internal agency guide- GAO’s finding that Oracle was an interested analysis in Oracle America, the GAO did lines in reviewing section 2371b OTAs for party came despite the fact that Oracle did not explain why it applied CICA-based prototypes because the protester and the not submit a response to the Commercial definitions to an OTA, under which CICA agency both referred to the guidelines in Solutions Opening (CSO) (roughly equiva- does not explicitly apply.71 If the GAO will the agency report and comments.78 Oddly, lent to a FAR-based Request for Proposals) permit a firm that did not even submit a re- the GAO also cites a previous decision, for the OTA in the case.60 Notably, however, sponse to an OTA CSO such as Oracle and Triad Logistics Services Corp., stating that it the GAO did not accept Oracle America’s rely on CICA-based definitions of inter- normally does not review bid protests that argument that the 2017 DoD OTA Guide’s ested parties, there is real risk that valuable merely cite violations of internal agency definition of a prototype was improper and and quick OTAs may bog down the process guidance.79 Regardless of Triad’s holdings, deferred to the DoD definition.61 The GAO in future lengthy bid protest litigation, the GAO explains in ACI Technologies that it nevertheless went on to sustain two protest much as Mr. Greenwalt predicts.72 will follow agency guidance in effect at the grounds against the Army, finding that the time of the solicitation defining a prototype follow-on production OTA award to REAN Subsequent Applications of the GAO OTA under section 2371b—the 2017 DoD Cloud was improper for two reasons. First, Rationale in Oracle America OTA Guide—due to the fact that the parties the GAO found the follow-on award im- Additional section 2371b OTA protests conceded the issue in briefing.80 Ultimately, proper because the CSO did not mention a filtered up to the GAO in the interven- the Navy prevailed in this protest, but in follow-on production agreement.62 Second, ing months since the decision in Oracle the process the GAO expanded its power to the GAO found the follow-on production America, discussed above. In September review section 2371b OTAs and enlarged OTA with REAN Cloud improper because 2018, for example, in Blade Strategies, the the incorrectly-decided legal standard in the Army did not obtain a successful proto- GAO dismissed a section 2371b OTA Oracle America.81 Notably, the GAO did not type before awarding the follow-on OTA.63 award challenge to an Army OTA award mention interested party analysis at any Ultimately, the GAO’s interested party find- due to the protest being untimely under point in the ACI Technologies decision.82 It ing allowed these sustained protest grounds GAO’s Bid Protest Regulations—regula- is unclear from the decision whether the to occur. tions enacted pursuant to CICA.73 Though Navy conceded interested party status, or it was a dismissal, the Blade decision’s whether the GAO established it some other The GAO’s Flawed Analysis Regarding rationale suggested that were it received a way.83 This apparently leaves the GAO’s Oracle’s Interested Party Status timely challenge, the GAO could undertake Oracle interested party rationale applying In order to establish the protester’s in- another comprehensive review of a section CICA-definitions to section 2371b intact. terested party status in Oracle, the GAO 2371b OTA. Subsequent to ACI Technologies, in cited a number of cases where an offeror Such a protest occurred shortly April 2019, the GAO issued another did not submit a proposal or bid—and yet thereafter in January 2019. In a possible opinion on a section 2371b OTA for considered the protester an “interested preview of section 2371b OTA bid protests Army Futures Command’s Future Armed party.” The cases cited by the GAO are to come, this type of fulsome GAO review Reconnaissance Aircraft in MD Helicopters.84 Helionix Sys., Inc.,64 Courtney Contracting occurred in ACI Technologies.74 There, the In the decision itself, the GAO dismissed Corp.,65 Afghan Carpet Servs., Inc.,66 MCI GAO undertook a comprehensive protest MD Helicopters’ protest, and found that it Telecomm. Corp.,67 Coulson Aviation (USA) Inc. of a Department of the Navy prototype does not typically review OTA bid protests, et al.,68 and Space Exploration Techs. Corp.69 OTA for electromagnetic spectrum (EMS) citing the source of its authority in the Bid Each of these cases cited by the GAO to defense prototypes under section 2371b Protest Regulations and CICA.85 In fact, the establish interested party status deals with with a consortium of companies, dismissing GAO stated explicitly that “[w]e dismiss the the definition of an interested party in a the protest in part and denying it in part.75 protest because we do not review the award traditional procurement contract for goods ACI Technologies’s protest was a pre-award of non-procurement instruments issued and services, drawn from the GAO’s Bid challenge to the OTA Solicitation filed with under an agency’s OTA authority.”86 MD Protest Regulations, FAR, and CICA. None the GAO prior to the due date for receipt Helicopters argued that the term “gener- of the cases cited by the GAO to establish of proposals in October 2018, preventing ally” in 4 C.F.R. § 21.5(m) provided the Oracle’s interested party status dealt with a an OTA award to the consortium from GAO wide discretion to hear its protest.87

2020 • Issue 1 • Army Lawyer 63 The GAO went on, however, to state that Rocketplane Kistler and MorphoTrust, and not sense than just permitting the GAO to con- because CICA established the GAO’s bid Oracle America. tinue its bid protest jurisdiction over OTAs protest jurisdiction, providing it the ability Congress could more explicitly in the wake of Oracle America. to review protests for alleged violations foreclose the possibility of disruptive bid If Congress wants to preserve some of procurement laws and regulations, it protests by modifying the statute even fur- level of bid protest review at the GAO could not therefore review OTAs because ther by limiting the circumstances in which for transparency purposes, it could enact OTAs are not by definition procurement a protester may challenge an OTA award. a provision in a future NDAA modify- contracts.88 A legislative change of this type limiting ing section 2371b by perhaps setting a Interestingly, the GAO conceded that protest jurisdiction has recent precedent in high-dollar limit allowing the GAO to because its jurisdiction derives from CICA, Congress’s previous limitations on bid pro- review section 2371b OTAs under limited and that its Bid Protest Regulations also tests for DoD task orders under $25 million circumstances—for instance, over $100 derive from CICA, it therefore cannot within the 2017 NDAA, or if they increase million. This could ensure that lower value review section 2371b OTA bid protests.89 If the scope, period, or maximum ordering prototype OTAs move quickly toward this is the case, it is unclear how the GAO amount under an indefinite delivery-in- solutions without the interruption of bid reached its decisions in Oracle America and definite quantity (IDIQ) contract.91 This protest litigation. The current section ACI Technologies, as discussed previously in amendment modified 10 U.S.C. § 2304c(e) 2371b statute already reflects a similar this article. In the end, the MD Helicopters in 2017, significantly increasing the thresh- policy choice with the dollar-level thresh- decision was a win for Army Futures old to protest DoD task orders from the olds of approval required for certain OTAs Command, but its rationale built upon original Federal Acquisition Streamlining over $100 million and $500 million—under inconsistent grounds from prior GAO cases Act (FASA) of 1994 threshold of $10 most circumstances by the agency HCA, and may leave protesters and federal agen- million to $25 million.92 It further clarified service Senior Procurement Executive cies alike to wonder which way the GAO again that only the Comptroller General has (SPE), or the Undersecretary of Defense for will decide in light of its previous decisions. exclusive jurisdiction to hear bid protests Acquisitions & Sustainment (USD—A&S).98 In contrast to its expansive interpre- over that amount.93 Under the FASA, The jurisdictional threshold for GAO bid tation in Oracle America—and apparent Congress gave the GAO exclusive juris- protest jurisdiction over section 2371b application in ACI Technologies and MD diction to hear protests of those type and OTAs for prototypes and production could Helicopters—the GAO previously stated amount regarding task orders—based solely mirror those approval levels.99 Appendix A more deferential standards for reviews on Congress’s policy choice.94 Likewise, if contains an example of proposed legislation of non-DoD OTAs in Rocketplane Kistler Congress wants to insulate and encourage limiting such protests of section 2371b and MorphoTrust, delineating criteria as the DoD OTA prototyping process as men- OTAs over certain monetary thresholds to whether the use of an OTA under tioned in the 2017 NDAA SASC report, it and exclusively at the GAO.100 Setting an enabling statute was “knowing and should examine limiting the GAO’s DoD a monetary threshold may be arbitrary authorized.”90 Due to the potential for OTA protest jurisdiction, possibly for both depending on the project, and constrain continued disruptive litigation in the wake prototype and production OTAs. otherwise permissible prototyping. of Oracle America, ACI Technologies, and MD This type of change resembles Alternatively to setting a monetary Helicopters, however, Congress should go Congress’s previous limitation on DoD threshold limit, Congress could incorporate much further to facilitate OTAs for section task order jurisdiction.95 This proposed a “knowing and authorized” legal standard 2371b prototypes in the DoD by insulating change does not mean that OTAs under of review—as articulated by the GAO in the OTAs for the prototypes and follow-on section 2371b would be completely without Rocketplane Kistler and MorphoTrust—as the production from bid protests entirely. oversight, given that the statute already definitive standard of review for OTAs. requires agencies to provide audit qual- Given the GAO’s prior deference to agen- Congress Should Limit OTA ity information regarding section 2371b cies’ determinations and statutory authority Bid Protest Jurisdiction OTAs over $5 million to the Comptroller in Rocketplane Kistler and MorphoTrust, this Given that the GAO is showing willingness General and GAO.96 This type of change may be tempting at first glance. Without to review section 2371b OTAs like tradi- merely means that Congress is limiting further guidance from Congress, however, tional FAR-based procurement contracts the risk of disruptive litigation as a policy section 2371b OTAs would still be ex- and applying CICA-type definitions to choice to protect fast prototyping and rapid posed to disruptive protests and preserve OTAs, Congress should examine modifying fielding for the DoD. Notably, the House of the GAO’s incorrect analysis from Oracle section 2371b to explicitly limit the cir- Representatives mandated increased report- America—as ACI Technologies recently cumstances where protesters may challenge ing on section 2371b prototypes within the proved.101 Indeed, in ACI Technologies, such OTAs. A legislative proposal limiting 2019 DoD Appropriations Act, requiring aside from citing Oracle America, the GAO OTA bid protest jurisdiction under section DoD agencies to provide quarterly notice to also extensively cites its previous analyses 2371b would demonstrate greater deference congressional appropriations committees in Rocketplane Kistler and MorphoTrust.102 shown to the DoD’s use of prototype OTAs, for all active OTAs.97 Certainly, Congress is Such standards will be thin shields if Oracle as reflected in GAO’s prior decisions in contemplating OTA oversight in a broader America remains good law.

64 Army Lawyer • Issue 1 • 2020 Given the limits of monetary thresh- recommendation effectively prevents the Without similar limits, valuable and olds and potential changes to a legal GAO’s review of post-award bid protests speedy OTAs for DoD use will be delayed standard of review for OTAs, Congress for any contracts under that threshold.110 or halted in successive rounds of bid protest could disallow bid protests of any and all Additionally, the Section 809 panel litigation, allowing the United States’ global DoD OTAs by including a provision in a recommends further limiting the GAO’s competitors to speed past unencumbered— future NDAA explicitly barring any such jurisdiction in other areas, including limit- much as Mr. Greenwalt predicts in his challenges. Appendix B contains such an ing the jurisdiction of the GAO and COFC June 2018 criticism of the Oracle America example of proposed legislation prohibiting to procurements whose expected value decision.117 The GAO’s rebuttal to Mr. protests of section 2371b OTAs.103 This rad- would exceed $75,000, preventing pro- Greenwalt attempts to modestly reassure ical solution barring any protests on section testers from filing protests at the COFC readers about GAO’s intent in the Oracle 2371b OTAs may be the cleanest method of after unsuccessfully protesting at the GAO, America decision.118 The GAO’s defensive dealing with the problem, especially in light and imposing the same timeliness rules position, however, does not adequately ad- of the GAO’s expanded application of Oracle that apply to GAO protests to the Tucker dress the possibility of disruptive litigation, America’s analysis in ACI Technologies.104 Act.111 Though the Section 809 Panel does putting DoD research and development at a In order to provide comprehen- not recommend that Congress limit OTA disadvantage to strategic peer and near-peer sive protection to section 2371b OTAs, protest jurisdiction in its most recent competitors.119 Indeed, the whiplash from Congress can explicitly prohibit protests of report, such legislation explicitly limiting GAO decisions felt by the industry and the prototype OTAs, plus associated follow-on protests of section 2371b OTAs should DoD in ACI Technologies and MD Helicopters production OTAs. Such a model of expedi- not remain out of the question in order to proves otherwise.120 tious prototyping and follow-on production encourage speedy innovation. Given the GAO’s application of the without the threat of litigation gives DoD wrongly-decided Oracle America decision, it agencies latitude to experiment, “fail fast,” Conclusion is apparent that the GAO will continue to and encourage innovation. Then-Secretary The GAO fundamentally “struck out” use its rationale to entertain bid protests of of the Army, Dr. Mark Esper, and then- with the Oracle America decision and section 2371b OTAs.121 Congress should act Chief of Staff of the Army, General Mark used a plainly flawed rationale in finding to foreclose time-consuming litigation of Milley, emphasized exactly this type of ur- Oracle America to be an interested party OTAs before global competition metaphor- gency for “quick wins” and rapid innovation for the cloud computing OTA. It applied ically flies by the United States. Without at U.S. Army Futures Command’s activa- CICA-type analysis when CICA was congressional action to ensure technologi- tion ceremony in August 2018.105 Without never explicitly intended to apply to these cal overmatch, a grim future similar to that such agile acquisition vehicles, DoD’s types of OTAs by Congress. Subsequent predicted in Ghost Fleet may be one step sought-after innovations may stagnate decisions in Blade Strategies and ACI closer for the U.S. military: a modern-day within bid protest litigation at the GAO. Technologies ominously suggest the pos- Pearl Harbor.122 In no uncertain terms, the Notably, since the GAO decision in sibility of “open season” to review DoD GAO’s decision in Oracle America should be Oracle America, the 2016 NDAA Section OTAs by the GAO.112 This application will “OTA” here. TAL 809 panel recommended similar changes possibly chill the DoD’s use of OTAs, and to the law curtailing the GAO’s bid pro- runs counter to the SASC Report’s intent MAJ Wicks is the Command Judge Advocate, test jurisdiction for a number of other requesting broader application of DoD 414th Contracting Support Brigade, Vicenza, Italy. types of federal contracts, resulting in OTAs.113 Moreover, the GAO’s decision three volumes of recommendations for does not represent the acceptable level of reforming the DoD acquisition system.106 risk for innovative acquisitions anticipated 114 Appendix A. Proposed Congress originally tasked the Section 809 by Congress in the same report. Given Legislation to Limit § 2371b Panel—composed of experts from within these concerns, Congress should critically Bid Protest Jurisdiction DoD, industry, and academia—with making examine limits on bid protest jurisdiction recommendations to reforming the DoD under section 2371b, possibly prohibiting SEC. 2371b. AUTHORITY OF THE acquisition system and associated regula- them entirely, while maintaining trans- DEPARTMENT OF DEFENSE TO tions in the 2016 NDAA.107 The Section 809 parency through quality audit information CARRY OUT CERTAIN PROTOTYPE panel makes a number of recommendations anticipated in the statute. This resembles PROJECTS. (d) APPROPRIATE USE aimed at reforming bid protests in its third Congress’s limitation on the GAO’s jurisdic- OF AUTHORITY.—Section 2371b(d) volume report released in January 2019.108 tion to review DoD task orders less than of title 10, United States Code, is Among the proposed changes is a radical $25 million within the 2017 NDAA.115 amended by inserting after paragraph increase to the Micro-Purchase Threshold Congress should further evaluate whether (2) the following new paragraph: “(3) (MPT) to $15 million dollars using “readily to limit OTA protests in a manner sug- The Comptroller General of the United available procedures,” and limiting post- gested by the Section 809 panel, parallel to States shall have exclusive jurisdiction award bid protests to the competition the increased MPT and other recommenda- to review any bid protest, as defined in advocate of the contracting activity.109 This tions in the Volume 3 report.116 Section 3551 of title 31, United States

2020 • Issue 1 • Army Lawyer 65 Code, of a prototype other transaction 10. See generally DoD Grants and Agreements 25. See National Defense Authorization Act for Fiscal Regulations (DODGARS), 32 C.F.R. §§ 21-37 (2019). Year 2016, Pub. L. No. 114-92, § 815 129 Stat. 726 agreement or a follow-on production (2015) (codified at 10 U.S.C. § 2371b (2019)). other transaction agreement executed by 11. See generally Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551-3556; 41 U.S.C. §3301 26. See S. REP. NO. 115-125, at 190 (2017). a Department of Defense agency under (2019). 27. 10 U.S.C. § 2371b(a)(1) (2019). this section only where the subject other 12. See generally Contract Disputes Act (CDA), 41 28. 10 U.S.C. § 2371b(d)(1)(D) (2019); see also 2018 U.S.C. §§ 7101-7109 (2019). transaction agreement’s value exceeds DOD OTA GUIDE, supra note 14, at 13. $100,000,000.00. 13. See 10 U.S.C. § 2371b(b)(2) (2019). The Truth in 29. 10 U.S.C. §2302(9) (2019). Negotiation Act (TINA) regarding certified cost data also does not explicitly apply to Other Transaction 30. See 2018 DOD OTA GUIDE, supra note 14, at 32. Appendix B. Proposed Authority (OTAs). See 10 U.S.C. § 2306a (2019); see 31. 10 U.S.C. § 2371b(f)(1) (2019). also 41 U.S.C., ch. 35 (2019). Furthermore, the Bayh- Legislation to Prohibit § 2371b Dole Act regarding intellectual property rights does 32. 10 U.S.C. § 2371b(f)(2) (2019). Bid Protest Jurisdiction not explicitly apply to OTAs either. See 35 U.S.C. §§ 33. See 10 U.S.C. § 2371b(f)(2). The lack of a definition 200-212 (2019). of a “successful prototype” in the statutory language SEC. 2371b. AUTHORITY OF THE 14. See U.S. DEP’T OF DEF., OTHER TRANSACTIONS of section 2371b led the Government Accountability DEPARTMENT OF DEFENSE TO GUIDE FOR PROTOTYPE PROJECTS, app. A, at 32 (Nov. Office (GAO) to agree with the government’s position CARRY OUT CERTAIN PROTOTYPE 2018), https://www.dau.mil/guidebooks/Shared%20 and rely upon the definition provided in the January 2017 DOD OTA Guide in the Oracle America decision. PROJECTS. (d) APPROPRIATE USE OF Documents/Other%20Transactions%20(OT)%20 Guide.pdf [hereinafter 2018 DOD OTA GUIDE]. See Oracle America, 2018 CPD ¶180, at 18; see also 2017 AUTHORITY.—Section 2371b(d) of title DOD OTA GUIDE, supra note 17, at 11. 15. See id., app. F. 10, United States Code, is amended by 34. See S. REP. NO. 115-125, at 190 (2017). 16. See, e.g., Greenwalt, supra note 1; see also Susan B. inserting after paragraph (2) the follow- Cassidy, Jennifer Plitsch, & Tyler Evans, DIUx and DoD 35. Id. (emphasis added). ing new paragraph, “(3) The Comptroller Other Transaction Prototype Agreements: The Fast Track to 36. See generally 2017 DOD OTA GUIDE, supra note 17. General of the United States and the DoD Funding (Feb. 22, 2018), https://www.inside- see also 37. See generally 2018 DOD OTA GUIDE, supra note 14. federal courts of the United States shall governmentcontracts.com/2018/02/7476/; Tim Greeff, How the U.S. Can Put Its OTA Procurement 38. See Oracle America, 2018 CPD ¶180, at 14. not have jurisdiction to review any bid Process to Best Use (Mar. 23, 2018), https://www. 39. See, e.g., U.S. DEP’T OF ARMY, DIR. 2017-24, protest, as defined in Section 3551 of federaltimes.com/acquisition/2018/03/23/how-the- us-can-put-its-ota-procurement-process-to-best-use/; CROSS-FUNCTIONAL TEAM PILOT IN SUPPORT OF ATERIEL EVELOPMENT see also title 31 and Section 1491(b) of title 28, see also Scott Maucione, OTAs are the Cool New Thing M D (6 Oct. 2017); U.S. United States Code, of a prototype other in DoD Acquisition (Oct. 19, 2017, 1:44 PM), https:// DEP’T OF ARMY, DIR. 2017-33, ENABLING THE ARMY MODERNIZATION TASK FORCE (7 Nov. 2017). The GAO transaction agreement or a follow-on federalnewsnetwork.com/acquisition/2017/10/ ota-contracts-are-the-new-cool-thing-in-dod-ac- has also noted all of the Army modernization focus production other transaction agreement quisition/; see also Scott Maucione, DoD Wants to Cut areas in its January 2019 report about Army Futures executed by a Department of Defense Contracting Time by 50 Percent as Part of AT&L Split (Oct. Command containing recommendations for the improvement of Army acquisitions. Notably, OTAs agency under this section. 11, 2017, 5:44 PM), https://federalnewsnetwork.com/ defense/2017/10/dod-wants-to-cut-contracting-time- figure prominently in each of the Army cross-func- by-50-percent-at-part-of-atl-split/. tional team modernization focus areas: long-range fires, advanced air-missile defense, future vertical 17. See National Aeronautics and Space Act, Pub. L. 1.Notes Bill Greenwalt, GAO Decision Threatens U.S. lift, increased Soldier lethality capabilities, the next 85-568, 72 Stat. 426 (1958); see also U.S. DEP’T OF DEF., generation Ground Combat Vehicle, and advanced Military Dominance; Reject It, BREAKING DEFENSE.COM OTHER TRANSACTIONS GUIDE FOR PROTOTYPE PROJECTS (June 27, 2018, 4:01 AM), https://breakingdefense. networking capabilities. See U.S. GOV’T ACCOUNTABILITY 8 (2017) [hereinafter 2017 DOD OTA GUIDE] (on file com/2018/06/gao-decision-threatens-us-mili- OFF., GAO-19-132, ARMY MODERNIZATION: STEPS with author). tary-dominance-reject-it/. Mr. Greenwalt is currently NEEDED TO ENSURE ARMY FUTURES COMMAND FULLY APPLIES LEADING PRACTICES (2019). a Senior Fellow at the Atlantic Council and formerly 18. U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-209, worked for the late Sen. John S. McCain as a profes- USE OF ‘OTHER TRANSACTION’ AGREEMENTS LIMITED AND 40. 4 C.F.R. § 21 (2019) (GAO Bid Protest sional staffer on the Senate Armed Services Committee MOSTLY FOR RESEARCH AND DEVELOPMENT ACTIVITIES 27 Regulations). from 2015 to 2017. Id. (2016). 41. 28 U.S.C. § 1491(b)(1) (2019). 2. Oracle America, B-416061, 2018 CPD ¶ 180 (Comp. 19. See National Defense Authorization Act for Fiscal 42. See Space Exploration Techs. Corp. v. United Gen. May 31, 2018). Year 1990, Pub. L. No. 101-189, 103 Stat. 1352 (1990) (codified at 10 U.S.C. § 2371 (2019)). States, 2019 U.S. Claims LEXIS 1041 at 32-34, 144 Fed. 3. See Greenwalt, supra note 1. Cl. 433 (Fed. Cl. 2019). The ultimate issue of Court 20. See National Defense Authorization Act for Fiscal 4. Kenneth Patton, GAO Says Oracle Protest Did Not of Federal Claims (COFC) or federal district court Year 1994, Pub. L. No. 103-160, § 845, 107 Stat. 1547; jurisdiction over OTA bid protests is beyond the scope Make Policy; Criticizes Greenwalt Op-ed, BREAKING see also 2017 DOD OTA GUIDE, supra note 17, at 8. of this article. However, the COFC has affirmatively DEFENSE.COM (July 9, 2018, 2:00 PM), https:// taken jurisdiction over a contract dispute involving breakingdefense.com/2018/07/gao-says-oracle-pro- 21. See 2017 DOD OTA GUIDE, supra note 17, at 17; see test-did-not-make-policy-criticizes-greenwalt-op-ed/. also 10 U.S.C. § 2358 (2019). a NASA Space Act Agreement or OTA under the Tucker Act in denying the agency’s motion to dismiss. 5. P.W. SINGER & AUGUST COLE, GHOST FLEET: A NOVEL 22. See CHRISTOPHER G. PERNIN ET AL., RAND REPORT, See Spectre Corp. v. United States, 132 Fed. Cl. 626, OF THE NEXT WORLD WAR 51-82 (2015). LESSONS FROM THE ARMY’S FUTURE COMBAT SYSTEMS 627–28 (Fed. Cl. 2017). PROGRAM 167-72 (2012). 6. See Oracle America, 2018 CPD ¶ 180, at 12. 43. 4 C.F.R. § 21.0(a)(1) (2019). 23. 10 U.S.C. § 2306a (2019); 41 U.S.C. §§ 3501–3509 7. See Greenwalt, supra note 1. (2019). 44. Id. 8. See S. REP. NO. 115-125, at 189-90 (2017). See 24. See PERNIN ET AL., supra note 22, at 180–81; see also 45. 31 U.S.C. § 3551 (2019). 9. See generally Federal Acquisition Regulation (FAR), U.S. GOV’T ACCOUNTABILITY OFF., GAO-19-132, ARMY 46. Rocketplane Kistler, B-310741, 2008 CPD ¶ 22 48 C.F.R., Chapter 1 (2019); see also Defense FAR MODERNIZATION: STEPS NEEDED TO ENSURE ARMY FUTURES (Comp. Gen. Jan. 28, 2008). Supplement (DFARS), 48 C.F.R., ch. 2 (2019). COMMAND FULLY APPLIES LEADING PRACTICES 7 (2019). 47. Id. at 5. 48. Id. at 10.

66 Army Lawyer • Issue 1 • 2020 49. See id. the GAO cites CICA and the Bid Protest Regulations 97. See Conference Report to Accompany H.R. 6157, Id. EP O 50. MorphoTrust, B-412711, 2016 CPD ¶ 133 (Comp. in reviewing the protester’s interested party status. H.R. R . N . 115-952, at 153 (2018) (Conf. Rep.). Gen. May 16, 2016). 69. See Space Exploration Techs. Corp., B-402186, 98. See 10 U.S.C. §2371b(a)(2) (2019). 51. See Aviation & Transportation Security Act of 2010 CPD ¶ 42 at 4, n.2 (Comp. Gen. Feb. 1, 2010) 99. See id. 2001, Pub. L. No. 107-71, 115 Stat. 597 (2001). (finding protester to be an interested party to challenge order under indefinite delivery-indefinite quantity 100. See infra, app. A. Id. 52. at 9-10. After the Transportation Security (IDIQ) contract, even where protester was not a 101. See ACI Technologies, 2019 Comp. Gen. LEXIS 16, Agency (TSA) completed and publicized its determina- vendor under the IDIQ contract, where protester at 5. tion and finding, MorphoTrust sent an e-mail directly challenged the order as outside the scope of the IDIQ to the agency, alleging that the TSA could not use an contract). This was a protest over procurement of 102. See id. at 5-6. OTA under the Aviation & Transportation Security commercial space launch services under scope chal- 103. See infra, app. B. Act and must use a traditional FAR-based contract for lenge of a delivery order. Id. Despite the fact that this the procurement. The GAO found that this constituted was a Space Act Agreement for launch services, the 104. See ACI Technologies, 2019 Comp. Gen. LEXIS 16, an agency-level protest. Id. at 5. GAO cites to the Bid Protest Regulations at 4 C.F.R. § at 5. 53. Id. at 10. 21.0, defining an interested party, as shaped by CICA. 105. Rose L. Thayer, Army Expects to Spend Up to $50 Id. Billion a Year on Futures Command, STARS & STRIPES 54. Id. at 9. 70. See Oracle America, 2018 CPD ¶180, at 10-12. (Aug. 24, 2018), https://www.stripes.com/news/ 55. Id. army-expects-to-spend-up-to-50-billion-a-year-on- 71. See id. futures-command-1.544234. 56. See id. 72. See Greenwalt, supra note 1. 106. See ADVISORY PANEL ON STREAMLINING AND 57. Id. at 10. 73. See Blade Strategies, LLC, B-416752, 2018 CPD ¶ CODIFYING ACQUISITION REGULATIONS, SECTION 809 58. See Oracle America, 2018 CPD ¶180, at 2. 327 at 2 (Comp. Gen. Sept. 24, 2018). PANEL REPORT, SUMMARY OF RECOMMENDATIONS, 59. Id. VOLUME 3, at 1, https://discover.dtic.mil/wp-content/ 74. See ACI Technologies, B-417011, 2019 Comp. Gen. uploads/809-Panel-2019/Volume3/Vol3_Summary_ 60. Id. at 12. LEXIS 16 (Comp. Gen. Jan. 17, 2019). Letter-size.pdf (last visited Jan. 21, 2020) [hereinafter 61. Id. at 14. 75. Id. at 2. SECTION 809 PANEL REPORT SUMMARY]. 62. Id. 76. Id. 107. See National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 809, 129 Stat. 726 77. Id. 63. Id. at 19. (2015). 78. Id. at 4. 64. See Helionix, Inc., B-404905.2, 2011 CPD ¶ 106 108. SECTION 809 PANEL REPORT SUMMARY, supra note at 3 (Comp. Gen. May 26, 2011). This was a General 79. ACI Technologies, 2019 Comp. Gen. LEXIS 16 at 5 106, at 1. Services Administration (GSA) FAR-based contract (citing Triad Logistics Serv., B-403726, 2010 CPD ¶ 109. See ADVISORY PANEL ON STREAMLINING AND for administrative and technical services for the Public 279 at 2-3 (Comp. Gen. Nov. 24, 2010)). Building Service. Id. CODIFYING ACQUISITION REGULATIONS, SECTION 809 PANEL 80. Id. As discussed above, the 2017 DoD OTA Guide is REPORT, VOLUME 3, PART 1, at 22-24, 35, https://dis- 65. See Courtney Contracting Corp., B-242945, 91-1 no longer in effect, due to superseding guidance in the cover.dtic.mil/wp-content/uploads/809-Panel-2019/ CPD ¶ 593 at 4 (Comp. Gen. June 24, 1991) (protester 2018 DoD OTA Guide, published November 2018. Cf. Volume3/Sec809Panel_Vol3-Report_Jan2019_part- was interested party, despite not submitting bid or 2018 DOD OTA GUIDE, supra note 14. 1_0509.pdf (last visited Jan. 21, 2020) [hereinafter offer, where remedy sought was the opportunity to SECTION 809 PANEL REPORT PART 1]. compete). This was a FAR-based invitation for bids 81. See ACI Technologies, 2019 Comp. Gen. LEXIS 16, (IFB) for the Department of Interior for mine gas at 9. 110. See id. at 35. drainage and maintenance. Id. 82. See id. at 5-6. 111. See ADVISORY PANEL ON STREAMLINING AND 66. See Afghan Carpet Servs., Inc., B-230638, 88-1 83. See id. CODIFYING ACQUISITION REGULATIONS, SECTION 809 PANEL CPD ¶ 607 at 3 (Comp. Gen. June 24, 1988) (protester REPORT, VOLUME 3, PART 2 at 355, https://discover.dtic. is an interested party if it is a potential competitor if 84. MD Helicopters, B-417379, 2019 U.S. Comp. Gen. mil/wp-content/uploads/809-Panel-2019/Volume3/ the protest is sustained, even though it did not submit LEXIS 94 (Comp. Gen. Apr. 4, 2019). Sec809Panel_Vol3-Report_Jan2019_part-2_0307.pdf bid under the protested solicitation). This was a GSA 85. Id. at 2. (last visited Jan. 21, 2020). Federal Supply Schedule FAR-based contract for 86. Id. 112. See Blade Strategies, LLC, 2018 CPD ¶ 327, at 2-3; carpeting in federal facilities. Id. The GAO cites CICA see also ACI Technologies, 2019 Comp. Gen. LEXIS 16, and its Bid Protest Regulations at 4 C.F.R. §21.0 in 87. Id. at 3. at 5. discussing “interested party” status. Id. 88. Id. 113. See S. REP. NO. 115-125, at 190 (2017). 67. See MCI Telecomm. Corp., B-239932, 90-2 CPD ¶ 89. Id. See id. 280 at 4-5 (Comp. Gen. Oct. 10, 1990) (protester was 114. interested party to challenge order as out of scope of 90. See Rocketplane Kistler, 2008 CPD ¶ 22, at 10; see also 115. See National Defense Authorization Act for Fiscal the underlying contract, even where protester did not MorphoTrust, 2016 CPD ¶ 133, at 9. Year for Fiscal Year 2017, Pub. L. No. 114-328, § 835, participate in the competition of the contract). This 91. See National Defense Authorization Act for Fiscal 130 Stat. 2000 (2016). was a Bureau of Prisons FAR-based request for pro- Year 2017, Pub. L. No. 114-328, § 835, 130 Stat. 2000 116. See SECTION 809 PANEL REPORT PART 1, supra note posal (RFP) for telephone services for federal inmates. (2016). 109, at 22-24, 35. See id. In reviewing interested party status, GAO explicitly cites CICA and the Bid Protest Regulations at 92. 10 U.S.C. § 2304c(e) (2019). 117. See Greenwalt, supra note 1. 4 C.F.R. § 21.0. Id. 93. Id. 118. See Patton, supra note 4. 68. See Coulson Aviation (USA) Inc. et al., B-409356.2 94. See Federal Acquisition Streamlining Act of 1994, 119. See id. et al., 2014 CPD ¶ 106 at 16 (Comp. Gen. Mar. 31, Pub. L. No. 103-355, 108 Stat. 3243 (1994) (codified at 2014) (protesters were interested parties to challenge 41 U.S.C. 4106(f) (2019)). 120. See ACI Technologies, 2019 Comp. Gen. LEXIS a sole-source award because if an agency decided to 16, at 5; see also MD Helicopters, 2019 U.S. Comp. Gen. See meet its needs using a competitive procurement, the 95. National Defense Authorization Act for Fiscal LEXIS 94 at 3. protester would be eligible to compete). This was a Year 2017, Pub. L. No. 114-328, § 835, 130 Stat. 2000 (2016). 121. See ACI Technologies, 2019 Comp. Gen. LEXIS 16, Forest Service FAR-based RFP for aviation services in at 6-9; see also MD Helicopters, 2019 U.S. Comp. Gen. support of wildfire suppression, containing justifica- 96. 10 U.S.C. § 2371b(c)(1) (2019). LEXIS 94 at 4-5. tion and approval for a sole source decision. Id. Again, 122. See SINGER & COLE, supra note 5, at 72.

2020 • Issue 1 • Army Lawyer 67 Jackie Robinson poses in his Army uniform. (Courtesy: National Baseball Hall of Fame). No. 3 The Court-Martial of Jackie Robinson

By Major Adam Kama

n a hot August afternoon at Camp Hood, Texas, in 1944, nine The advent of the internet has made possible a new evaluation OArmy officers sat in judgment in the general court-martial of a of his court-martial. The Record of Trial, now in digital format, second lieutenant (2LT) accused of insubordination and disrespect and accessible to anyone, contains the full transcript of the pro- under the Articles of War.1 The trial would last just four hours and ceeding and provides a nearly complete picture of all that occurred fifteen minutes and result in a full acquittal.2 This seemingly unre- in those four hours at Camp Hood. Additionally, the National markable court-martial was one of millions convened to mete out Archives Catalogue has made available Robinson’s complete justice during World War II (WWII), and could have easily been Official Military Personnel File under its Persons of Exceptional lost and forgotten in the grand scale of the war.3 No one alive today Prominence program, allowing incredible insight into his brief would remember this short proceeding had the accused not been the Army career. Finally, modern internet search engines allow us future American icon and baseball legend, Jackie Robinson.4 Destined to research other “characters” associated with the court-martial, to break the baseball color barrier on 15 April 1947, he would go on gaining insight into their backgrounds and motivations. In this to win many baseball accolades before becoming a businessperson context, the complete story of United States v. 2LT Jack R. Robinson and civil rights champion.5 The character and resiliency Robinson can be told. displayed at his court-martial when his reputation, career, and freedom was on the line were precisely the qualities that Branch Rickey, 2LT Jack R. Robinson President and General Manager of the Brooklyn Dodgers, was look- As a former four-letter collegiate athlete drafted into the Army in ing for when he selected Robinson for his “great experiment.”6 April 1942, Jackie Robinson was the ideal model of a citizen turned Many hundreds of books and articles would be devoted to the Soldier.8 An enlisted cavalryman and later cavalry officer at Fort life and legend of Jackie Robinson in the ensuing decades. Several Riley, Kansas, Robinson experienced early in his career the racism scholarly articles would detail and analyze the incident that led of a segregated Army.9 During one incident at this western Army to the charges and the court-martial itself.7 The court-martial post, Robinson would be denied admittance to the post’s baseball convened under the Articles of War replete with detailed rules team, being told that he could play only on the “colored team.”10 and procedures that inform the larger story of what 2LT Robinson In April 1944, Robinson was transferred to the now fabled 761st experienced on the fateful night of 6 July 1944. Tank Battalion at Camp Hood, Texas, to assume the position of

2020 • Issue 1 • Army Lawyer 69 tank platoon leader.11 Formed in 1942 and an acquaintance, sat down next to her.25 whether they had a “n----- lieutenant” in classified as a “colored” unit, the 761st Tank After proceeding five or six blocks, the bus their car.39 Robinson heard this incen- Battalion was typical of the how the Army driver, a white man named Milton Renegar, diary slur and threatened to break PFC employed African-American Soldiers: all instructed Robinson to move to the rear of Mucklerath “in two.”40 Corporal Elwood African-American enlisted Soldiers led by the bus.26 Robinson refused, setting off a convinced Robinson to return with them to all white field-grade officers and a mix of chain of events that would inform the rest the MP guardroom to discuss the incident white and African-American officers at the of his life and career.27 with the camp officer of day.41 To act as an company-grade level.12 Robinson would Race-based seating on public transport eyewitness, PFC Mucklerath was asked to serve in the 761st for just three months was a staple of Jim Crow-era segregation return to the guardroom as well.42 before an ankle condition would threaten to laws throughout the south.28 However, If Robinson hoped to find a sympa- sideline his promising military career.13 Camp Hood and other installations located thetic ear at the MP station, he would soon A 1937 football injury left Robinson throughout the United States were on fed- be sorely disappointed. Upon arrival at with a floating bone chip in his right heel eral property that notionally did not enforce the MP guardroom, Robinson met with that plagued him throughout his mili- these biased state and local laws.29 Despite Captain (CPT) Peelor Wigginton, the tary career.14 To determine his fitness for this, perhaps in an attempt to maintain the camp’s laundry officer who was assigned as continued service, Robinson was required social order familiar to so many millions the officer of the day for 6 and 7 July 1944.43 to undergo an Army Retiring Board (ARB) of white Americans, the Army maintained The escorting MPs briefed Wigginton that physical assessment.15 In order to make some segregated facilities, such as the an incident occurred at the bus station and this process more efficient on the Army’s colored officers club, even in states that did he asked Robinson to explain what had end, Soldiers stationed at Camp Hood not have Jim Crow laws. But by June 1944, happened.44 Unhelpfully, Wigginton also undergoing the ARB battery of tests were the War Department began to change some asked PFC Mucklerath for his observations, temporarily transferred to McCloskey of its polices forbidding the enforcement which he relayed in front of Robinson.45 Hospital in Temple, Texas, thirty miles of state Jim Crow era policies on busses on This naturally led to a disagreement east of Camp Hood.16 On 21 June 1944, military installations.30 about the events at the bus station with Robinson was transferred to McCloskey Given his connection to the African- Wigginton telling Robinson to stop inter- Hospital to be stationed there for a few American press, as well as other influential rupting the private.46 Perhaps feeling out weeks to undergo his ARB physical.17 African-Americans, Robinson knew that of his element, Wigginton called for CPT segregation on public transport on federal Gerald Bear, the Camp’s Assistant Provost 6 July 1944 installations was changing.31 In refusing the Marshal and Commander of the MPs, to On the evening of 6 July 1944, Robinson set order to move to the back of the bus, he assist him at the MP guardhouse.47 He out from McCloskey Hospital and traveled felt he was within his rights.32 But, the bus ordered Robinson out of the building until to Camp Hood’s colored officers’ club to driver stood firm, telling him that he would CPT Bear arrived.48 visit friends and socialize.18 He remained “make trouble for him” upon their arrival at Robinson intercepted CPT Bear there for several hours socializing, but did the bus station.33 At the bus transfer station, outside the building, apparently eager to not drink, as Robinson was a teetotaler.19 Robinson disembarked with Ms. Jones tell his story, and followed him into the Several hours later, he boarded a bus near to catch his connecting bus, but was now MP building.49 Inside, Wigginton debriefed the club to return to the hospital.20 swirled into a larger incident when Irving Bear while Robinson waited in an adjoining The bus Robinson boarded op- Younger, the station dispatcher, appeared to waiting room.50 The Dutch door to this erated within Camp Hood as a shuttle confront the young Lieutenant.34 Tempers room was left half open.51 Robinson became moving Soldiers to and from locations were heated and voices were raised as a frustrated because he could hear the story on the sprawling installation.21 The bus crowed formed around Robinson.35 Several being told without his input.52 He appeared was headed to Camp Hood’s Central Bus of the other passengers, mostly white several times at the doorway where Bear Station, a transfer area located near one women who worked on Camp Hood, made and the others were located, and protested of the main gates where on-post shuttles racist remarks to Robinson, goading him, about what he felt were inaccuracies in would meet county and other buses to take causing him to raise his voice.36 Wigginton’s story. According to Bear, he Soldiers and civilians further off post.22 Finally, the Military Police (MPs) stated that Robinson “smirked or grimaced,” Here, Robinson planned on boarding arrived on scene to quell the incident.37 bowed, and rendered “sloppy salutes” when- this bus to take him the rest of the way to One MP, Corporal (CPL) George Elwood, ever he was told to leave the doorway.53 McCloskey Hospital.23 hoping to contain the situation, asked This action repeated itself “several times” When he stepped aboard the Army’s Robinson to sit in their patrol vehicle.38 according to Bear and would later draw a shuttle bus, Robinson recognized Virginia While Robinson was in the MP vehicle, a specification of disrespecting a senior com- Jones, the wife a fellow African-American Soldier, changing busses on the way back to missioned officer.54 lieutenant in the 761st Tank Battalion who his barracks and had seen the commotion, Finally, Robinson was allowed to lived in nearby Belton.24 Jones was sitting Private First Class (PFC) Ben Mucklerath, make his statement to Bear and “Ms. in the middle of the bus, and Robinson, as approached the MPs and asked them Wilson,” a stenographer who enraged

70 Army Lawyer • Issue 1 • 2020 Robinson with what he perceived as a Post Exchange, “but I didn’t have to sit with meeting, Jones stated that she had spoken racist attitude.55 Robinson, normally a them on the bus.”63 to Robinson and he asked her not make quick speaker, was asked to slow down his The sworn statements made by a statement without talking to Robinson speech for his statement.56 The incident at military personnel, who were likewise all first.72 If CPT Bear, an MP, was troubled the guardhouse ended in a controversial white, were also marked by the racism of by Robinson’s alleged actions concerning manner that would end up being a major the period. These enlisted MPs, some of Jones, he made no note of it in his sworn theme at the court-martial. Captain Bear whom met Robinson at the bus station and statement. directed that Robinson be escorted back to transported him to the MP station, and Ms. Jones gave her first and only state- McCloskey Hospital in an Army vehicle by several officers, all of whom were witnesses ment on the matter in her home to Bear MP Soldiers.57 Robinson was mystified as at the MP station, provided sworn state- on 19 July.73 She was generally a favorable to why he was being treated in this manner. ments. Without exception, Robinson was witness to Robinson’s conduct at the bus Bear justified that Robinson was under “ar- never referred to as a “lieutenant,” but as a terminal that evening. She did not observe rest in quarters.”58 Robinson likely arrived “colored lieutenant.”64 The distinction here Robinson saying anything to the white back at McCloskey Hospital around sunrise is clear; he was less than a commissioned individuals on the bus or at the bus station on 7 July 1944, his ordeal over, for now. officer to these Soldiers. The MP and other that was offensive, stating: “I did not hear officer statements, generally, all made the [Robinson] say anything vile nor vulgar The Investigation and Statements same observations: that Robinson’s actions at any time, nor did he raise his voice.”74 Almost immediately, Bear would drive in the MP station were disrespectful to While this statement from a friendly wit- an investigation into the matter of the Bear. ness potentially could have been helpful, it previous evening. Having taken Robinson’s One other overarching theme was seems unlikely that these statements were statement in the early hours of 7 July, over evident in the investigation. Bear was in- what actually occurred. Her version of the next two full days, he would take sworn terested in whether or not PFC Mucklerath events was likely colored by her acquain- statement accounts from various witnesses called Robinson a “n-----.” The two MPs tanceship with Robinson, not least because who interacted with Robinson at the bus dispatched to the disturbance at the bus Robinson, by his own admission and those station or later at the MP station. More station, CPL George Elwood and Private of numerous other witnesses, threatened to than a dozen individuals—enlisted MPs, Lester Phillips, were asked whether they break PFC Mucklerath “in two.”75 civilian witnesses, as well as four fellow heard anyone call Robinson this epithet.65 The historical record of the week officers, including Bear and Wigginton— Though the word “n-----” was commonly following the incident is scant. Documents would provide sworn statements as part used during the period, the distinct impres- from Robinson’s military record indicate, of Bear’s investigation.59 All portrayed sion from reading the case file is that it was unbeknownst to him and on account of his Robinson in a negative light. still a loaded, hateful term and generally medical deployability status, was formally Milton Renegar, the bus driver, frowned upon by polite society.66 Private transferred from the 761st Tank Battalion passengers Elizabeth Poitevint and Ruby First Class Mucklerath would emphatically to the 758th Tank Battalion (Light).76 On Johnson, two white Camp Hood Post deny referring to Robinson in this way. 16 July, Robinson, by now concerned that Exchange employees, and Bevlia B. “Pinkey” From his sworn statement: “I had not he would face court-martial, penned a Younger, the bus dispatcher, made state- any time called the Lt. a ‘n-----.’”67 In fact, letter to Truman K. Gibson, an African- ments. Though ostensibly they made these Mucklerath did call him this epithet at the American attorney, then serving as a special statements as witnesses to the incident bus station, as CPL Elwood noted in his assistant on racial affairs to the Secretary at the bus station, they may better be sworn statement that night.68 This denial of War, Henry Stimson.77 Robinson had described as participants. All four of the and confrontation would pay off spectacu- met Gibson when he was stationed at Fort civilians’ statements reveal the racism and larly later at the court-martial.69 Riley, the year prior, when Gibson was prejudice of the period.60 Pinkey Younger The lone individual whose sworn sent as a special envoy to discuss racially openly referred to Robinson as a “n----- Lt.” statement was helpful to Robinson was that charged incidents at the post.78 In this twice and called him a “disgrace to the uni- of Victoria Jones, the African-American letter, Robinson asked Gibson for advice.79 form he wears.”61 Renegar, explaining why woman he shared a bus seat with on that He wanted to know whether he should he wanted Robinson to move to the back of fateful night. She provided her sworn appeal to the National Association for the bus, stated he didn’t think his passen- statement almost two weeks after the the Advancement of Colored People and gers—all white women—would want to others and only after Robinson sought her the African-American press of the time.80 ride in a bus “mixed up like that,” meaning out and encouraged her to make one.70 Robinson recognized his heightened stand- next to an African-American.62 Elizabeth Previous attempts by Bear during his initial ing as a former National Collegiate Athletic Poitevint, a post-exchange employee, investigation were unsuccessful in attempt- Association athlete and semi-professional displaying her displeasure at being close ing to persuade Ms. Jones to provide this football player.81 Robinson, worried about to an African-American stated, “I had to statement. In a separate statement made by both the fairness of the trial and about neg- wait on them during the day,” referring to CPT Bear, he revealed that he went to Ms. ative publicity for himself and the Army, African-American Soldiers shopping at the Jones’s home in Belton, Texas.71 During this asked Gibson what steps he should take.82

2020 • Issue 1 • Army Lawyer 71 Gibson’s response to Robinson is unknown; in confinement or arrest, but states that was essentially the same. An assigned offi- however, handwritten on the letter from confinement is not appropriate for minor cer, having been forwarded the preferred Robinson was a note: “this man is a well- charges (like the one that Robinson was charges, would make inquiries as to the known athlete. He will write you. Follow facing).90 Article of War 69 mandated that truth of the matter set forth in the charges the case carefully.”83 someone arrested must be “restricted to his “and to make a recommendation as to the barracks, quarters, or tent.” 91 By arresting disposition of the case made in the inter- The Charges Robinson at McCloskey Hospital, they est of justice and discipline.”102 The single Robinson’s suspicion or indication that were limiting his freedom to the hospital most notable exception between pre-trial he would be court-martialed would prove grounds.92 investigations under the Articles of War correct. In the latter half of July, Robinson Rarely do WWII court-martial records and today’s UCMJ was that the accused, felt the swift hand of WWII-era military contain an extraordinary ancillary docu- though provided the right to cross-exam- justice. On 17 July, he was formally charged ment that illuminates the thought process ine witnesses against him, would not be with six distinct violations of the Articles of of the command. Luckily, the United States afforded a defense counsel to assist in doing War, the precursor to the modern Uniform v. Robinson record does contain such a doc- so.103 In accordance with the procedures of Code of Military Justice (UCMJ).84 ument. Filed on 17 July 1944, the same day the Articles of War of its time, a defense Charge I contained two allegations that Robinson was charged, the document counsel would only be assigned after the re- of disrespect to a superior commissioned is a transcription of a telephone conver- ferral of charges as part of the appointment officer, the Article of War 63.85 In the sation between Colonel (COL) Edward of a standing court-martial, which included first specification, he was alleged to have A. Kimball, Commander, 5th Armored both the members of the court-martial as been disrespectful to CPT Bear by stating, Group93 and COL Walter D. Buie, Chief well as the trial judge advocate.104 “Captain, any Private, you or any General of Staff, XXIII Corps, located at nearby The investigating officer was Major calls me a n----- and I’ll break them in two, Camp Bowie, Texas.94 XXIII Corps served (MAJ) Henry S. Daugherty of the 5th I don’t know the definition of the word.”86 as the training command and the General Armored Group. Major Daugherty held In the second specification, he was charged Court-Martial Convening Authority his investigation of the remaining charges with contemptuous behavior by bowing to (GCMCA) for the 5th Armored Group.95 and specifications on 19 July 1944, two days Bear “and giving him several sloppy salutes Colonel Kimball initiated the phone call after both the Buie/Kimball phone call and repeating several times ‘OK Sir, OK Sir.’”87 because he had a case “involving a colored the referral of charges.105 The evidence MAJ The lone specification of Charge II, a officer who got into trouble in connection Daugherty used in his investigation was pri- violation of Article of War 64, alleged that with a bus.”96 Colonel Kimball explained marily comprised of the sworn statements Robinson failed to obey a lawful order by a that “this is a very serious case, and it is taken by CPT Bear on 7 and 8 July 1944, superior officer, as Robinson violated Bear’s full of dynamite.”97 Colonel Kimball then with the addition of in-person testimony order to remain seated in a chair at the requested an “Inspector” be sent from Camp from CPT Bear and CPT Wigginton.106 reception area of the MP guardhouse. Bowie because the matter was “delicate” Major Daugherty’s formal “Pretrial The final charge, three specifications of and best left to an “outside Inspector.”98 Investigating Officer’s Report” completed a violation of Article of War 95, involved He was afraid that he had no one impartial the day after the hearing on 20 July 1944, the language Robinson used on the bus and whom he could assign as “any officer [in was composed on boilerplate forms of the at the Central Bus Station. One specifica- this command] in charge of troops at this era. His analysis of the facts and circum- tion charged him with abuse and vulgar Post might be prejudiced.”99 Colonel Buie stances was not required under Article 70 language for telling Renegar, the bus driver, gracefully declined helping his subordinate nor was it included.107 Major Daugherty that he was not “going to move a God damn commander by stating that his Corps would did not find a sufficient basis to send to bit” and called Renegar a “Son of a Bitch.” like to send an “Inspector,” but had none court-martial Charge I, Specification I— The second specification detailed “vile and available.100 Colonel Buie ended the phone relating to the allegation that Robinson was obscene language” to Ms. Poitevint when call by telling COL Kimball to “go ahead disrespectful to Wigginton—nor the two he allegedly stated to her: “You better quit and handle it” and to advise them if they remaining Specifications of Charge III— fuckin with me.” The last specification was needed further assistance.101 alleging that Robinson used vulgar language a catch-all charge for using “vile, obscene to Ms. Poitevint, the passenger, and Mr. and vulgar language . . . in the presence of The Article 70 Investigation Renegar, the bus driver.108 The eliminated ladies.”88 It is unknown why COLs Buie and Kimball specifications had a common theme. Each As part of being charged on 17 July, referenced an “Inspector.” It hardly seems alleged a reaction by Robinson at either Robinson was also placed under arrest at likely that they were referencing an Army being called a “n-----” or told to move to the McCloskey Hospital in Texas.89 Likely, this Inspector General. It is almost certain that back of the bus. Perhaps, MAJ Daugherty was intended as a form of pretrial restraint. they were speaking about who was to serve thought that Robinson’s alleged reactions The decision to arrest Robinson was stan- as the investigation officer at Robinson’s were reasonable under the circumstances dard practice. Article of War 19, arrest and upcoming Article 70 investigation; today and that justice required that these charges confinement, mandated placing the accused known as an Article 32 hearing, the purpose be dropped.

72 Army Lawyer • Issue 1 • 2020 Despite not recommending that more than half of the charges go forward, MAJ Daugherty still recommended that two specifications proceed to general court-martial.109 Two purely military offenses remained: a specification that Robinson was disrespectful in demeanor to CPT Bear, and another that he failed to follow Bear’s instruction to stay away from the interview room door.110 In another boilerplate memorandum, Lieutenant Colonel (LTC) Richard E. Kyle, the Staff Judge Advocate for the GCMCA, XXIII Corps, as part of his pre-trial advice to the convening authority, recommended that trial by general court-martial proceed against 2LT Robinson.111

A WWII Court-Martial A WWII-era court-martial was fundamentally similar to today’s U.S. military court-martial. And, while recognizable as an American court of law, there are some major differences between a court-martial convened under the Articles of War and the UCMJ, a few that are worth noting in order to understand the story fully. The composition of the court itself is the most striking difference between a court-martial during WWII and the modern era. Notably, there was no military judge.112 The equivalent duties of today’s military judge was split between two men: the President and the Law Member. A court-martial’s President was the senior officer on the panel and was charged with “maintain[ing] order, giv[ing] the direc- tions necessary for the regular and proper conduct of the proceedings, [and] tak[ing] proper steps to expedite the trial of all charges referred for trial.”113 In practice, however, the President’s role was largely officious and any speaking he did during Jackie Rpbinson was drafted into the Army in 1942. His court-martial proceedings prohibited him from the court-martial was contained in prompts being deployed overseas. (Courtesy: National Baseball Hall of Fame). provided in the court-martial script. The duties that required legal analysis fell to the questions,” the Law Member in practicality All courts-martial were composed individual seated to the immediate left of ruled on questions of evidence and objec- exclusively of officers, known simply as the President, the Law Member. The Law tions made during the course of the trial “members.”117 Normally, the only require- Member was required to be an officer of the and advised the Accused of his rights.115 ment was that the officer have two years Judge Advocate’s Department, but in exten- The Law Member was required to be seated of service. A general court-martial like uating circumstances, could be an officer next to the President during the court-mar- Robinson’s could have any number of of any branch of the Army114 (it is almost tial, but would also join the other members members, but no fewer than five officers unthinkable today to appoint a non-at- as a voting member after close of evidence (the required minimum).118 torney to a purely legal role). Charged to deliberate on guilt or innocence and, if Similarities and differences existed simply with “rul[ing] upon interlocutory necessary, the sentence.116 with regard to those individuals who

2020 • Issue 1 • Army Lawyer 73 represented the U.S. government and the though, graduated UCLA in 1934, years defense was a team, Johnson’s experience at accused. The Trial Judge Advocate (TJA), before Robinson attended. courts-martial and zealous advocacy would the precursor to the modern trial counsel, be instrumental to Robinson’s acquittal. represented the government. In WWII, as Captain Thomas M. Campbell today, the accused was represented by the Captain Thomas M. Campbell, a The Court-Martial defense counsel. Most strikingly, neither medical doctor—one of two African- United States vs. 2LT Jack R. Robinson, a trial the TJA nor the defense counsel was American members who would help decide by general court-martial, began at 1345 required to be a judge advocate or even an Robinson’s fate—was a 1941 graduate of at Camp Hood on 2 August 1944, a mere attorney. At general courts-martial, each Meharry Medical College and was the twenty-six days after the incident that had an assigned assistant, acting in an iden- battalion surgeon for the 614th Tank precipitated it.132 Preliminary matters such tical capacity to the primary.119 Destroyer Battalion, a Colored unit.123 His as the accused’s defense counsel selection, All individuals were detailed to a medical expertise would come up during challenges to members (Robinson and his standing court-martial, with the members, the court-martial. team made none), and swearing of the trial judge advocates, and defense counsels government and members were handled pre-detailed as a single bloc in the con- Second Lieutenant William A. Cline and by the TJA and the President. Robinson vening order. Members and counsel could First Lieutenant Robert H. Johnson was then arraigned on the two remaining be replaced (or viced in today’s parlance) The task of defending Jackie Robinson charges. The record reflected that that for other officers. There was no voir dire, fell to two men.124 Robinson’s appointed the government did not make an opening but challenges could be made to members, defense counsel listed on the convening statement. Though the record does not including the Law Member, with cause. order was 2LT William A. Cline, a 34-year- specifically mention that the defense made old from Wharton, Texas.125 Due to his no opening statement, it is unlikely that one The Members ingrained Southern heritage, 2LT Cline was made. The Manual for Courts-Martial Robinson’s fate would be decided by nine was candidly unsure if he could provide allowed for the defense to make an opening men. Though seventy-five years later, iden- Robinson effective counsel in defending “immediately following the [government’s] tifying some of the members is difficult, but against charges with strong racial under- opening statement.”133 If the government several are noteworthy. tones. Moreover, Cline later remembered made no opening at the outset of trial, the telling Robinson that he “had little trial defense could make one only in “exceptional Colonel Louis J. Compton experience.” In fact, Jackie Robinson’s cases.”134 The court-martial President, COL court-martial would be his first adversar- The first witness called by the gov- Louis J. Compton, was the father of Julia ial proceeding.126 In his autobiography, ernment was, in fact, a defense witness. Compton Moore, wife of Lieutenant Robinson remembers, “my first big break Second Lieutenant Howard B. Campbell, General Hal Moore famed for leading 1st was that the legal officer assigned to defend of Robinson’s new unit, Company C, Battalion, 7th Cavalry Regiment during the me was a Southerner [Cline] who had the 758th Tank Battalion was called to iden- Battle of the Ia Drang in Vietnam.120 decency to admit to me he didn’t think he tify that the accused was in fact 2LT Jack could be objective. He recommended to me R. Robinson.135 Campbell was asked if he Major John H. Shippey a young Michigan officer who did a great knew the accused and if he was present in The Law Member, MAJ John H. job on my behalf.”127 That Michigan officer the courtroom. Campbell pointed to his Shippey, was the lone Army judge ad- was 1LT Robert H. Johnson, a 32-year- friend and replied “yes, sir.”136 This pro- vocate at the court-martial. Though the old infantry officer and native of Bay City, cess of identifying the accused at the very government likely comprised fully-licensed Michigan, who, like Cline, was a practicing start of the government’s case-in-chief was attorneys, and the defense team certainly attorney before the war.128 Both Cline and the standard practice of the time.137 With did, Shippey was the only member of the Johnson were white officers in “Colored” many millions of men serving in uniform, court trained in military justice. He grad- Tank Destroyer Battalions. Being in sister a witness to identify that the accused at the uated from the Judge Advocate General’s battalions, they likely knew of each other defense table was the individual named in School’s first class after it commenced as former practicing-attorneys-turned-Ar- the charge sheet would have been necessary instruction at the University of Michigan my-officers.129 Johnson would join to prevent cases of mistaken identity. Law School in 1943.121 Robinson’s defense team as Individual Counsel. The position of “Individual The Government’s Case Major Charles O. Mowder Counsel” allowed the accused to be “rep- The government’s first witness was CPT Major Charles O. Mowder, another resented in his defense . . . by counsel of Gerald Bear.138 On direct examination, Bear member, was a graduate of the University his own selection.”130 This could include a relayed to the court the circumstances of of California, Los Angeles—the University civilian attorney, but would not be paid for how he met Robinson on the night of 6 July that Robinson himself attended and made by the government.131 Individual Counsel 1944, the general layout of the two adjoin- himself known nationally, but ultimately was the precursor to the Individual Military ing rooms with the Dutch door separating did not graduate from.122 Major Mowder, Counsel under the UCMJ. Though the them, and which military members were

74 Army Lawyer • Issue 1 • 2020 present at the MP station.139 Bear testified hospital in the early morning hours of 7 of the witness.157 Two members, CPT that he had to order Robinson away from July under MP escort.149 Demonstrating Moore and CPT Spencer, questioned the the door “on several occasions” as Bear heavy-handed action by Bear in releasing compulsory nature of the transportation was speaking to Wigginton, the MPs and Robinson under escort would be a theme that Bear had arranged to take Robinson PFC Mucklerath.140 He described Robinson throughout the court-martial. In an unusual back to McCloskey Hospital. Bear re- complying with these orders by sarcasti- twist, the defense’s resistance to this line of sponded reasonably, that “at that hour of cally bowing, and saluting him with his questioning did not come from the gov- the morning busses were not running on a palms facing out in an exaggerated man- ernment, but from a member of the court. regular schedule” and more to the point just ner, and replying sarcastically “O.K., Sir. Lieutenant Colonel Perman, who likely “wanted him to go.”158 At this point, CPT O.K., Sir. O.K., Sir.”141 Bear then described was also an attorney at some point in his James H. Carr, himself African-American, several other acts, like Robinson’s slow career, objected to questioning along these and undoubtedly Robinson’s greatest manner of walking and speech that he lines as outside the scope of the charged champion among the members, took a turn found “contemptuous and disrespectful.”142 offenses and outside the scope of the direct to get answers from Bear.159 He asked Bear The defense objected to this testimony as examination.150 The defense countered point-blank, “Was he [Robinson] under conclusory.143 The Law Member sustained that the line of questioning responded to arrest,” to which Bear replied, “Yes, sir.”160 the objection, but the tactic backfired Bear’s direct testimony that the accused was Carr would follow up two questions later as the TJA now had ample reason to go unwilling to obey the order to return to the with: “You wanted to make sure to send over in detail these acts that formed the hospital. Major Shippey, the Law Member, him where you wanted him to go, so you basis of Bear’s belief that Robinson was overruled LTC Perman’s objection. After arrested him?”161 Bear equivocated. “Yes, we disrespectful.144 some back-peddling on Bear’s part over call it arrest in quarters.”162 Bear’s direct testimony would end with the nature of his order, the defense finally Major Mowder, the UCLA graduate, the issue that the defense would attack time triumphed when Bear testified that he had would squeeze out of Bear the fact that and again in its case-in-chief: the manner placed Robinson in “arrest in quarters.”151 Robinson had no choice but to return the and condition in which Robinson left the Bear’s heavy-handed action was now in hospital with the escorts. “If busses had MP complex and returned to McCloskey evidence.152 been available, would you have let him go Hospital.145 According to Bear, in the early The defense scored another quick vic- back by himself?”163 To which Bear would hours of 7 July, Robinson argued with him tory by impeaching Bear. He testified that reply that he would not have released about the need to return to McCloskey his sworn statement of 7 July indicated that Robinson on his own.164 He specifically Hospital under police escort. Robinson he put Robinson “at ease” in the waiting ordered him back to the hospital.165 Captain had a pass and believed he was free to be room of the MP station while he took other Carr then made the statement (that was released. On the stand, Bear claimed that witness statements.153 This contradicted the perfunctorily styled as a question by the he “heard enough” of this argument and testimony he had given moments earlier court-reporter) that “arrest in quarters can threatened to “lock [Robinson] up” if he did under direct. carry no bodily restrictions.”166 After Bear not return with the MPs.146 The latter half of the defense’s admitted that he considered him in that At the outset of cross-examination, the cross-examination of Bear demonstrated status, Carr ended with “you admit that defense—led by 1LT Johnson—hoped to its attempts to bring out, through Bear’s you sent three M.P.’s [sic] to see that he got present Bear as out of control and argumen- testimony, Robinson’s racially-charged ex- back to where you decided to send him?”167 tative. He began by exploring a statement perience on the bus and at the bus station. Captain Carr had highlighted Bear’s over- that Bear made on direct, that he had The defense, knowing that Robinson’s zealous enforcement of the matter. “lost control of the lieutenant.”147 Johnson sworn statement had been brought up Turning to the topic of what Bear fended off a government objection that the during direct, attempted to elicit the facts intended when he put Robinson “at ease,” question was not material to the charged of- contained within the sworn statement CPT Carr launched a string of salient fenses and elicited testimony on the heated through Bear.154 After this approach was inquires during another round of questions. manner in which Bear and Robinson would objected to by court-martial member LTC When Bear gave him an evasive answer, interact while Robinson was trying to take Perman, the defense reasoned: “I am at- Carr bluntly stated, “I want the question an- a statement to the stenographer present tempting to bring out whether or not there swered; was he at ease while he was leaning on 6 July.148 The defense made headway by was an atmosphere [in the interview room], on the gate . . . ?”168 Bear equivocated more presenting Bear’s complaints that Robinson the background of this whole case should before Carr got to the heart of the matter was speaking too quickly for the stenogra- be before this court.”155 The objection was and said, “I do not see that the manner in pher as trivial and routine, considering that sustained.156 The bus incident would not which he leaned on the gate had anything Bear had experienced such conduct from come to light through this witness. to do with you, if you had not given him an other individuals giving statements in his On a brief redirect and recross, seeking order commanding him to attention . . . .”169 experience as an MP. to gain clarification as to Bear’s order to Captain Campbell, the African- The defense next questioned Bear on Robinson to remain “at ease,” the mem- American physician, honed in on Bear’s the conditions of Robinson’s return to the bers had an opportunity to ask questions description of Robinson’s supposed

2020 • Issue 1 • Army Lawyer 75 minutes-long narrative relaying the events CPT Bear thought was an intentional act of of 7 July.176 His testimony largely mir- disobedience. rored that of Bear’s: Robinson continually On direct, Robinson explained his side interrupted Wigginton’s briefing to Bear of the events on the evening of 6-7 July. and would not sit in the chair in the waiting He was extremely cautious not to bring room, as directed by Bear. He corroborated up the incidents on the bus or at the bus the earlier testimony by Bear that Robinson station, likely because it would have drawn rendered sloppy salutes and bowed to him a sustainable relevance objection.183 Instead, at the Dutch door.177 his story began with the vague explanation On cross-examination, Wigginton’s that he arrived at the MP station “on some responses proved unhelpful to the de- matters.”184 Robinson explained briefly his fense and highlighted the defense’s biggest initial report to Wigginton, the officer courtroom weakness: they violated the old of the day, and stated that he was pres- litigation maxim to never ask a question on ent when Mucklerath gave his version of cross-examination that the attorney does not the incident at the bus station. On direct, know the answer to.178 The defense counsel’s Robinson stated that while Mucklerath was attempt to pick apart Wigginton’s story relating events to Wigginton, he would in- or to establish his own personal bias was terrupt Mucklerath to “refresh his memory unsuccessful. Again, due to a government and correct his statement.”185 He explained objection that the bus station incident that upon Bear’s arrival some time later, was unrelated to the charged offenses, the he became frustrated that Mucklerath was defense was unable to bring about any evi- being interviewed first. When Robinson Robinson was commissioned as a second dence of the bus or bus station incident.179 asked why, he was told by Bear that lieutenant in January, 1943. (Courtesy National Baseball Hall of Fame) Though inartful, the defense had suf- Mucklerath was a “witness” to Robinson’s ficiently signaled that there was more than actions and that he was not to come into disrespectful, rolling walk.170 No doubt, what was being presented at court-martial. the interview room until told to do so.186 attempting to ascertain whether there was Captain Carr picked up on the defense’s Finally, in the middle of his direct something medically amiss with his gait, signals that there was more than meets the examination, Robinson was able to put CPT Campbell asked the Law Member if eye and the members were not being told forward the precipitating event that led to they could see a demonstration of Robinson the full story and was the lone court-martial the charges. At last, he could explain that walking.171 Major Shippey wisely objected, member to ask CPT Wigginton questions. he was the victim of the ugly racial animus saying that the defense could present it at Carr comprehended that something had of the era. In correcting Mucklerath’s story, a later time if Robinson and his attorneys happened to put Robinson into an aggra- Robinson stated that he did not threaten desired.172 vated state in the MP station and because Mucklerath for no reason.187 He then related The cross-examination of CPT Bear he was not provided the opportunity to that Mucklerath had called him a “n-----” ended with an attempt at impeachment explain himself in his own voice to Bear, he while he was sitting in the MP vehicle while by 1LT Johnson, the Individual Counsel. reacted in a negative manner.180 waiting to be transported to the MP station. “Captain, is it true the Hospital called you Robinson freely admitted under oath that he the next day and asked if Lt. Robinson was The Defense’s Case told Mucklerath that if he ever called him a supposed to be in arrest in quarters and The defense of 2LT Robinson began with n----- again “he would break him in two.”188 you answered, “no?”173 The question was its most powerful voice: the accused’s. What came next—the question by objected to by the TJA and sustained.174 After being advised of his rights by the Law defense counsel and the response given—is But, it was too late. The defense strategy to Member, including the right to remain arguably the most poetic response ever cap- show that Bear was a petty authoritarian silent, and being sworn in by the TJA, tured in a U.S. military court-martial.189 had worked perfectly. Most of the tough Robinson took the stand in his defense.181 questions at the court-martial were asked In the opening moments of Robinson’s di- Q - Let me interrupt you, by the two African-American court-mar- rect testimony, while Robinson was reciting Lieutenant—do you know what a tial members of the government’s primary some biographical information about him- n----- is? white witness. self, and again during his explanation on the The government’s second and final night of 6 July, the defense counsel wisely A - I looked it up once, but my witness in its case-in-chief was CPT asked him to slow his speech.182 This was a Grandmother gave me a good defi- Wigginton, the camp laundry officer wise ploy if done intentionally, because it nition, she was a slave, and she said who served as the officer of the day on 6 illustrated Robinson had a quick manner the definition of the word was a low, and 7 July.175 His direct examination was of speech, something Ms. Wilson, the ste- uncouth person and pertains to no remarkable only in that he testified in a nographer on duty the night of 6 July, and one in particular; but I don‘t consider

76 Army Lawyer • Issue 1 • 2020 that I am low and uncouth. I looked Bear. Robinson related to the members that of cross-examination: he began asking it up in the dictionary afterwards he explained to Wingo he believed that open-ended questions that he did not know and it says the word n----- pertains the reasons Bear did not want him taking the answers to. Certain that Robinson was to the negroid or negro, but it is a bus back was because he would “get in not insulted at the MP station, he asked also a machine used in a saw mill for trouble in the busses.”195 Robinson, without him if anyone insulted him there, to which pushing logs into the saws. I objected pause, and perhaps to put forth as much of Robinson replied that CPT Bear did.202 to being called a n----- by this private his story before the members as he could The TJA quickly established that Bear, or by anybody else. When I made before drawing an objection, immediately the government’s main witness himself this statement that I did not like to be relayed a piece of what happened on the did not call Robinson a n-----. The TJA called n-----, I told the Captain, I said, bus. “I abided by the Texas Law [on the asked whether Bear had provoked him in “If you call me a n-----, I might have way to Camp Hood], but I knew there was any way that evening, to which Robinson to say the same thing to you, I don’t no Jim Crow rule on the Post and the bus replied that Bear had indeed done so.203 mean to incriminate anybody, but I driver had tried to make me move to the Inexplicably, the TJA asked to explain “in just don’t like it.’ I do not consider rear, and I told him that I would not move what way” Bear had done so, an open ques- myself a n----- at all, I am a negro, back.”196 The defense, seeing on opportunity tion that Robinson then used to illustrate but not a n-----.”190 to expand the narrative quickly, followed Bear’s anger when issuing him the order up by asking what his seating position not to interrupt him during the Mucklerath This question and Robinson’s answer on the bus had been. Robinson followed interview.204 The TJA then spent the next could not have been prepared prior to this lead and quickly answered “four seats few minutes establishing through Robinson court-martial, given the limited interactions from the rear . . . a little better than half that Bear had a proper purpose in ques- Robinson had with his defense. Robinson’s way [from the back].” The prosecution, tioning Mucklerath individually without response was extemporaneous and captures mindful that the bus incident was a liability interruption.205 the mindset of this future American icon. to their case, quickly attempted to end the The TJA, concerned that Robinson had Following this explanation to the matter by objecting to the line of testimony, impeached Wigginton on direct, turned court, the defense dove into the details of stating that it “had nothing to do with this the court’s attention to the conduct of the Robinson’s version of events. Robinson specification” and that “what happened officer of the day for 6 July. The TJA asked claimed with respect to the charge of dis- on the bus . . . had no place in this case.”197 Robinson if he believed that Wigginton had respectful behavior that he “did not recall” The Law Member agreed and sustained the lied on the stand minutes earlier when he bowing and executing the so-called sloppy objections, claiming that he did not see the testified about witnessing Robinson bowing salutes that Bear and Wigginton claimed materiality of it.198 and saluting.206 Robinson, hesitant at first he gave them.191 To the charge of failing to Robinson’s direct examination was to call a fellow officer a liar, stated that he obey Bear’s order to move away from the followed by the prosecution’s cross-ex- did.207 The TJA then listed every officer doorway and to sit in a chair in the opposite amination. The TJA, cognizant of the Robinson had interacted with that night room, Robinson explained that he complied testimony that Robinson had brought and asked him if they had insulted him with Bear’s order to get away from the forward evidence that PFC Mucklerath had or had bias against him which Robinson door, but that Bear did not give an order to called him a “n-----,” attempted to staunch replied that they had not.208 sit in a chair.192 He claimed to have inter- the bleeding. Fortunately for Robinson, The rest of the cross-examination rupted Bear and Mucklerath just one time the TJA trial team, who appeared to have was more routine. Robinson withstood the entire evening.193 been more experienced in the courtroom the TJA’s scrutiny of his side of the events Robinson also returned to his con- than his own attorneys, botched their that evening. The TJA, concerned that frontation with the civilian stenographer objective. After setting the scene at the MP Robinson’s interactions with the stenog- that evening, Ms. Wilson. Robinson stated station, the trial team attempted to make rapher had showed her racial bias, asked that after demonstrating he disagreed with Robinson appear less than credible by him to read aloud an excerpt from the her dictation, her racial animus became calling into question why no one else had Manual for Courts-Martial.209 This attempted manifest when she “picked up her purse and heard him being called “n-----.”199 Playing to demonstrate that Robinson slowed his said ‘I don’t have to make excuses to him’ with fire, the TJA asked Robinson again if speech in a facetious way when asked by the and went out.”194 Mucklerath called him a n-----, to which stenographer to slow down. The cross-ex- Finally, at the end of Robinson’s Robinson answered in the affirmative.200 amination ended with Robinson again direct, parts of the story regarding the The TJA, back on his heels, quickly fol- being given another chance to explain his bus station incident trickled out in front lowed up by confirming that the insult did exit from the MP station under arrest to no of the court-martial members. Robinson not occur at the MP station with any wit- benefit to the government.210 was asked by his defense team about his nesses who had testified thus far in order Robinson’s testimony was over. He conversation with his Battalion Executive to illustrate that there were no witness to had conducted himself well on the stand Officer, MAJ Charles Wingo, on the phone the insult.201 The TJA then made a series under both direct and cross-examination. at about the time he was being released by of mistakes by breaking two basic tenets His answers were respectful and poised. He

2020 • Issue 1 • Army Lawyer 77 never contradicted himself nor allowed his With that, the defense of Robinson rested. error. They called to the stand PFC Ben emotions to get the better of him. However, it would be in the government’s Mucklerath, the Soldier whom Robinson The remainder of Robinson’s defense rebuttal that the standout moment of the accused of calling him a “n-----.” On the would come in the form of the “good court-martial would come. stand the government asked only one sub- Soldier defense.” This form of defense In rebuttal, the government called 1LT stantive question: “Did you call [Robinson] allows Soldiers to introduce evidence of the George Cribari, a Medical Service Corps a n-----?”224 Mucklerath quickly answered, good military character through testimony doctor, to rebut Robinson’s testimony that “No, sir.”225 in an attempt to distinguish the Soldier CPT Bear showed animosity to Robinson. The defense’s cross-examination of from the charged offense.211 In other words, First Lieutenant Cribari did rebut this Mucklerath was the climactic moment of a “good” Soldier would not commit the testimony and countered that it had been the court-martial. The defense first asked charged offense. The 1943 MCM contained Robinson himself who was “very rude.”217 him if he remembered Robinson saying these instructions: “The accused may intro- In a dry moment of testimony, Cribari that if he “ever called him a n----- again duce evidence of his own good character, demonstrated for the record Robinson’s he would break [Mucklerath] in two?”226 including evidence of his military record body language for the court.218 Major Mucklerath responded that he did re- and standing in order to show the probabil- Shippey, the Law Member, would then read member Robinson make that statement. ity of his innocence.”212 these movements into the record such as The defense then asked Mucklerath why The defense called four character “you shook your head from side to side” and Robinson would make that statement con- witnesses: LTC Paul Bates,213 his former “you put your hand in your pocket.”219 Upon sidering Mucklerath had explicitly not called battalion Commander in the 761st Tank cross-examination, Robinson’s defense him the epithet. Mucklerath stammered Battalion; CPT James R. Lawson, a white of- pursued a few short, unhelpful lines of that he did not know what Robinson was ficer214 and his former company commander questioning on Robinson’s slowed pace of thinking and that Mucklerath was merely in B Company, 761st Tank Battalion; and speech to the stenographer. Court-martial “repeating something” that he had heard.”227 two fellow lieutenants, including 2LT member CPT James Carr rose yet again to The defense posed two final questions: Harold Kingsley and 2LT Howard Campbell, pointedly question a witness in the govern- who had previously been the government’s ment’s case. Carr questioned why Cribari Q - Do you deny that you went to the identifying witness in its case-in-chief. Each felt putting one’s hands in their pocket MP [CPL Elwood] on the truck at the were asked a few basic questions in a classic was disrespectful and what Cribari meant bus station and said “Do you have the good Soldier defense fashion. Whether they when he testified that Robinson “grimaced” n----- lieutenant in the car”; do you knew the accused, how long they had known at Bear. Cribari, dryly, gave a very tech- deny that you made that statement? him, whether they knew his reputation, nical response: “grimacing is done by the and whether he had a good reputation at muscles of the face.”220 In one of the fleeting A - At no time did I use the word his “Camp, Post, or Station.” This would moments of mirth in the court-martial, “n-----.” culminate in two questions about his abilities Carr then himself contorted his face and as a Soldier and, in the case of his former asked Cribari if he was grimacing.221 Q - You deny that you made that commanders, Bates and Lawson, whether Next, the TJA called CPL George statement? they would like to have him as a member of Elwood, the MP who met Robinson at the their command. All four witnesses reported Central Bus Station and accompanied him A - I never used the word “n-----” at that he had a good reputation and that he (and Mucklerath) back to the MP station. any time, sir.228 had excellent abilities as a Soldier. In the case Corporal Elwood was called to rebut of Bates, he was asked how he would rate Robinson’s testimony that he was not given With that, the government rested its him on a “66-1.” Known as a fitness report, an order to sit in a reception room chair.222 rebuttal case. The trap was set. this was the Officer Evaluation Report of its He also rebutted Robinson’s denial that he Immediately, the defense recalled time. Bates replied that he would rate him as bowed and gave the contested, so-called CPL Elwood in sur-rebuttal. The de- “Excellent.”215 sloppy salutes.223 Corporal Elwood’s direct fense asked Elwood only one substantive The government did not cross-ex- came off as passionless and reasonable, question that would prove devastating: amine a single defense character witness. and was limited to his observations of “Did [PFC Mucklerath] ever ask you at Though they did object when LTC Bates Robinson—not how Elwood construed his any time if you had a n----- lieutenant in brought forward that Robinson was a tone or mannerisms, as with the previous your car?”229 Elwood, ever the bias-free “well known athlete” as unresponsive.216 witnesses. Corporal Elwood’s cross-ex- witness, answered: “Yes, sir, he did at the Though three of the four witnesses had amination by the defense illustrated no bus station.”230 The defense rested, having known Robinson for only a few months, personal bias. He was a brief and persuasive proven the incident at the MP station was the evidence brought out through these witness for the government. predicated on the use of a slur by an enlisted witnesses was clear: Robinson’s character Expecting to end rebuttal with a third Soldier upon an officer. Only in the final was such that he was not the kind of officer witness to contradict Robinson’s testi- moments of the court-martial did 2LT to disobey an order or to be disrespectful. mony, the government made a spectacular Robinson’s later indignant demeanor and

78 Army Lawyer • Issue 1 • 2020 frustration at the MP station make sense Robinson wrote the Army Adjutant in fair play and justice. I feel that I’m being taken in this case and will tell people about it unless the trial is fair.” to the members. Both sides rested after the General on 25 August and requested to be Id. An entire record of trial for this court-martial is huge revelation that not only was Robinson retired from the service due to his medical available on the history pages on the JAGCNet website. 236 called a racial slur, but that one of the gov- issues. Weeks later, Robinson reported to 1. United States v. Robinson (Commanding General, ernment’s own witnesses against him would Camp Breckenridge, Kentucky, for several XXIII Corps, Camp Hood, Texas, 2 August 1944). so easily lie under oath. months, serving as a morale officer before The temperature in nearby Waco, Texas, on 2 August 1944 reached 103 degrees. Waco, TX Weather History, After the presentation of evidence, receiving his honorable discharge “by WEATHER UNDERGROUND, https://www.wunderground. both sides made closing arguments. Closing reason of physical disqualification.”237 The com/history/daily/us/tx/waco/KACT/date/1944-8-2 arguments were not and are still not irony that a future hall of famer and Rookie (last visited Jan. 13, 2020). considered evidence. As such, the court of the Year was physically disqualified from 2. The record of trial notes that the court met at “1:45 231 o’clock P.M.” and adjourned until its next court-martial reporter did not transcribe what was said. the Army before his entry into professional at “6:00 o’clock P.M.” United States v. Robinson at 2, As a result, these arguments are lost to time, baseball should not be lost on anyone. 80 (Commanding General, XXIII Corps, Camp Hood, although Robinson recalled: “My lawyer In August 1945, one year after his Texas, 2 August 1944). [Johnson] summed up the case beautifully acquittal, Robinson’s famed meeting with 3. Ranges of the number of U.S. military courts-martial convened during World War II (WWII) vary, by telling the board that this was not a case Branch Rickey would occur at Rickey’s but almost all accounts identify the number in the low involving any violation of the Articles of office in downtown Brooklyn.238 Rickey was millions. Cf. Randy James, A Brief History of the Court- War, or even of military tradition, but the President and General Manager of the Martial, TIME (Nov. 18, 2009) (more than 2 million) with Colonel Rodger A. Drew Jr., A Day in the Life of simply a situation in which a few individu- Brooklyn Dodgers and offered Robinson an Appellate Military Judge, JUDGES’ J., May 2017 https:// als sought to vent their bigotry on a Negro the opportunity in this meeting to become www.americanbar.org/groups/judicial/publications/ they considered ‘uppity’ because he had the the first African-American player to break judges_journal/2017/spring/a_day_in_the_life_of_an_ audacity to exercise rights that belonged to the Major League baseball color barrier.239 appellate_military_judge/ (1.7 million). him as an American and a Soldier.”232 Rickey would explain that he had searched 4. The court-martial of Second Lieutenant (2LT) Jack R. Robinson has found its way into several storytelling Also unknown is the length of delib- extensively for the right player to endure mediums, proof that its enduring theme of personal erations on guilt or innocence. Given the the inevitable hardships that would accom- dignity, determination, and justice are of interest to the relatively short length of the entire proce- pany the first African-American player to American public. The Court-Martial of Jackie Robinson was a 1990 made-for-TV movie that took enormous 240 dure, likely the members did not deliberate break the barrier. Rickey told him that he liberties with facts in order to tell an entertaining long. Because the ballots were secret, the was looking for a principled and restrained story. THE COURT-MARTIAL OF JACKIE ROBINSON (Turner number of members who voted guilty player with “guts,” but the courage “not to Pictures 1990). A children’s book, intended for 4- to 8-year-old-readers, was recently published. SUDIPTA 241 and not guilty will forever be unknown. fight back” and lash out. BARDHAN-QUALLEN, THE UNITED STATES V. JACKIE However, the results of the court-martial Given the exhaustive research into ROBINSON (2018). are certainly known. At 1800, 2LT Jack R. Robinson’s background that Rickey 5. Two comprehensive Robinson biographies, detail- Robinson and his defense counsel rose to conducted, he must have known about ing his remarkable life, were published close in time in the 1990s. See ARNOLD RAMPERSAD, JACKIE ROBINSON: A hear the verdict of the nine members of the his court-martial and the acquittal twelve BIOGRAPHY (1997); DAVID FALKNER, GREAT TIME COMING court.233 Colonel Compton, the court-mar- months earlier. The court-martial, reported (1995). tial President, read aloud the verdict. “Upon on by the national African-American 6. Jackie Robinson scholar Jules Tygiel named his secret written ballot, two-thirds of the press, would have reached Rickey’s ears. 1996 book on Jackie Robinson’s career Baseball’s Great Experiment. JULES TYGIEL, BASEBALL’S GREAT EXPERIMENT: members present at the time the vote was This major life event, in which Robinson JACKIE ROBINSON AND HIS LEGACY (1996). taken . . . finds the accused of all specifica- stood firm against prejudiced opposition 7. The first notable piece chronicling the court-martial tions and charges: Not guilty and therefore and faith in the system to run its course, was published in 1984. See Jules Tygiel, The Court- acquit the accused.”234 United States v. 2LT knowing that it would prove his innocence, Martial of Jackie Robinson, AM. HERITAGE, Aug.-Sept. Jack R. Robinson was over. was likely a significant factor in Rickey’s 1984. Another important journalistic endeavor was published in 2008. See John Vernon, Jim Crow, Meet selection. TAL Lieutenant Robinson, PROLOGUE MAGAZINE, Spring 2008. A Career Ends and Another Begins 8. Jackie Robinson’s military records are catalogued Despite the acquittal, the close of the MAJ Kama is the Deputy Staff Judge Advocate, online in the National Archives Catalog. Official court-martial ultimately brought with it 1st Theater Sustainment Command, Camp Military Personnel File for Jack Roosevelt Robinson, NAT’L ARCHIVES CATALOG, https://catalog.archives.gov/ the end of 2LT Robinson’s military career. Arifjan, Kuwait. id/57308498 (last visited Jan. 13, 2020) [hereinafter Aggrieved by his treatment by the Army, Robinson Military Records]. Each of the 371 documents Robinson remembered in his 1972 autobi- that make up his record are assigned a number. 9. Robinson was inducted in the Army on 3 April ography that following his court-martial, “I Notes was pretty much fed up with the service.”235 * The title comes from a letter Jackie Robinson wrote 1942. United States v. Robinson at 43 (Commanding in the weeks before the court-martial. Letter from General, XXIII Corps, Camp Hood, Texas, 2 August Even before the court-martial, Robinson Jackie Robinson to Truman K. Gibson (July 16, 1944), 1944). He commissioned on 28 January 1943. Robinson knew that because of his Army retiring in John Vernon, Jim Crow, Meet Lieutenant Robinson, Military Records, supra note 8, at 41. board finding of the week before the PROLOGUE MAGAZINE, Spring 2008. Writing for advice 10. FALKNER, supra note 5, at 70. to Truman K. Gibson, an influential African-American court-martial on 21 July, he could not ship working as an assistant to the Secretary of War, he lay 11. Robinson penned several autobiographies during overseas with the 761st Tank Battalion. bare his feelings. “I don’t mind trouble but I do believe his life. His final effort, I Never Had It Made, published

2020 • Issue 1 • Army Lawyer 79 in 1972, contains the most insight into both his life and 41. Id. at 235. 71. Id. at 219. See ACKIE OBINSON EVER AD IT his court-martial. J R , I N H 42. Id. 72. Id. MADE: AN AUTOBIOGRAPHY OF JACK ROBINSON 17 (1992). 43. Id. at 221. 73. Id. at 233. As the later charges did not include 12. See generally, KAREEM ABDUL-JABBAR & ANTHONY 44. Id. Robinson’s conduct at the bus station, Ms. Jones did WALTON, BROTHERS IN ARMS: THE EPIC STORY OF THE not testify for the defense at the court-martial. 761ST TANK BATTALION, WWII’S FORGOTTEN HEROES 45. Id. 28-29 (2004). 74. Id. 46. Id. After being silenced by Wigginton, Robinson Id. 13. Second Lieutenant Robinson was assigned to remarked: “So this is democracy, I don’t stand a 75. at 240. the 761st Tank Battalion from 3 April 1944 to 6 July chance.” Id. at 222. 76. See Vernon, supra note 7. 1944. United States v. Robinson at 61 (Commanding General, XXIII Corps, Camp Hood, Texas, 2 August 47. Id. 77. RAMPERSAD, supra note 5, at 92. 1944). 48. United States v. Robinson at 44 (Commanding 78. Id. 14. Robinson Military Records, supra note 8, at 333. General, XXIII Corps, Camp Hood, Texas, 2 August 79. See Vernon, supra note 7. 1944). 15. Id. 80. Id. Notes from Robinson’s military records displays 49. Id. In his own sworn statement concerning the 16. RAMPERSAD, supra note 5, at 101. national interest in his case. An 17 August 1944 inter- events of 7 July and again at court-martial, Bear nal War Department memo highlights the interest of 17. Robinson Military Records, supra note 8, at 30. would state that he and Robinson were already in the Senator Sheridan Downey of Robinson’s home state building when he arrived. See Robinson Military Records, OBINSON of California in the court-martial. Robinson Military 18. R , supra note 11, at 18. supra note 8, at 220; United States v. Robinson at 8 Records, supra note 8, at 82. Also, a 15 August 1944 Id. 19. at 20. (Commanding General, XXIII Corps, Camp Hood, radioed request for information marked “Urgent” from 20. Robinson Military Records, supra note 8, at 234. Texas, 2 August 1944). the Army’s Adjutant General to the Commanding Id. 21. The shuttle bus operated by the Southwestern Bus 50. United States v. Robinson at 44, 45 (Commanding General of Fort Hood. at 78. It starts: Company transported Soldiers and civilians across the General, XXIII Corps, Camp Hood, Texas, 2 August Two letters have been received in this office sprawling installation. Id. at 225. 1944). stating that Jackie Robinson is awaiting trial by Id. 22. Id. at 233. 51. at 32. court-martial at Camp Hood. Letters also refer Id. to [enlisted member (EM)] as Jackie Robinson 23. Id. 52. at 44. Robinson was likely frustrated and felt disrespected because he was not being interviewed REPEAT Robinson and state that EM is Negro 24. Id. at 240. Ms. Jones recalled that she and Robinson prior to a white Private who had just called him a football star alumnus of U of CLA of excellent sat in the fourth seat from the rear of the bus. Id. at racially charged epithet. family and reputation. Letters request that 233. consideration be given his case. Id. 53. Id. at 9-10. 25. Id. at 240. This interest in the court-martial was likely with- 54. Id. at 9. out influence as these inquires came about after the 26. Id. 55. ROBINSON, supra note 11, at 19. court-martial was over for some weeks. 27. Id. 56. United States v. Robinson at 36 (Commanding 81. See Vernon, supra note 7. 28. See Elizabeth Guffey, Knowing Their Space: Signs of General, XXIII Corps, Camp Hood, Texas, 2 August 82. Id.. Jim Crow in the Segregated South, DESIGN ISSUES, Spring 1944). Robinson was also asked to slow his speech 83. Id. 2012, at 41, 45. twice early in his testimony. Id. at 43-44. 84. Robinson Military Records, supra note 8, at 212. 29. RAMPERSAD, supra note 5, at 102. 57. The return of Robinson that night would be among 30. Id. the most hotly contested issues of the court-martial. 85. Id. Id. at 27-30. 31. Id. 86. Id. 58. Id. at 30. 32. Id. 87. Id. 59. Bear’s investigation survives as the accompanying 33. Robinson Military Records, supra note 8, at 240. 88. Id. This last specification of Charge III was lined documents in Major (MAJ) Daugherty’s Article 70 out on the initial charge sheet and was subsequently Robinson Military Records supra 34. Id. at 234. Investigation. , note 8, not investigated by MAJ Daugherty, the Article of at 219-37. 35. Id. at 225, 234, 235. War 70 investigating officer. 60. Robinson would call this behavior “southern chiv- 89. Id. at 211. 36. Ms. Elizabeth Poitevint, a white passenger, ac- alry.” ROBINSON, supra note 11, at 19. costed Robinson after getting off the bus and stated she 90. MANUAL FOR COURTS-MARTIAL, UNITED STATES Robinson Military Records supra was going to report him to the military police (MPs) 61. , note 8, at 234. Article of War 69 (1943) [hereinafter 1943 MCM]. because he should have moved to the back of the bus, 62. Id. at 225. but failed to obey. Id. at 226, 233. 91. Id. As only males served in the Army at the time of 63. Id. at 226. the drafting of the Manual for Courts-Martial, it only 37. Corporal (CPL) George Elwood, an MP, was used male pronouns. dispatched to the Central Bus Station “to investigate a 64. Id. at 229, 230, 231, 235, 236, 237. I Never disturbance.” Id. at 235. 65. Id. at 235, 237. 92. Robinson claims in his 1972 autobiography, Had It Made, to have traveled to San Francisco to see 38. Id. 66. While taking Robinson’s statement that evening, his fiancée and later wife Rachel Isum during the pe- 39. Id. at 235. Private First Class (PFC) Mucklerath CPT Bear himself told Robinson that he considered riod between the 6 July incident and the court-martial claims that he simply asked CPL Elwood if he had a the word “vulgar and vile.” Id. at 222. on 2 August. ROBINSON, supra note 11, at 20-21. Given “colored Lt” in the patrol car. Id. at 224. 67. Id. at 224. the nature of his restriction to McCloskey Hospital on 17 July, he could not have left absent permission 40. Robinson’s sworn statement was taken in the early 68. Id. at 235. Corporal Elwood also mentions in from a commander, which would have been unlikely. morning hours of 7 July by a white, female, civilian his sworn statement that Ms. Poitevint also called Robinson Military Records, supra note 8, at 211. The only stenographer known only as “Ms. Wilson.” ROBINSON, Robinson a “n——-” to his face. Id. possible time that he could have returned to California supra note 11, at 19. She transcribed “in two” as “into.” 69. United States v. Robinson at 77-78 (Commanding is between 7 July and 16 August when he wrote Robinson Military Records, supra note 8, at 240. She General, XXIII Corps, Camp Hood, Texas, 2 August his letter from the hospital to Truman Gibson. See repeated this grammatical mistake in Captain (CPT) 1944). Vernon, supra note 7. Given the distance and modes Wigginton’s statement. Id. at 221. of transportation of the day, it seems unlikely that he 70. Robinson Military Records, supra note 8, at 233. would have returned home between the incident and

80 Army Lawyer • Issue 1 • 2020 his formal charging on 17 July. More likely than not, five remaining specifications. 1943 MCM, supra note Force pilot, commanded the 99th Fighter Squadron Robinson, writing twenty-eight years later, misre- 90, at 26. during the war, one of the units most closely associated membered the timeline of this visit. 109. Robinson Military Records, supra note 8, at 216. with the famed Tuskegee Airmen. See CHARLIE & ANN COOPER, Tuskegee’s Heroes 98 1996. 93. The 5th Armored Group commanded the Army’s 110. Id. three African-American tank battalions. Designated 124. First Lieutenant Issac O. Hutcheson was the to tank battalion training prior to being sent to the 111. Robinson Military Records, supra note 8, at 238. assistant defense counsel listed on the convening European Theater, the Headquarters, 5th Armored 112. The position of military judge would not come order. Robinson Military Records, supra note 8, at 2. First See generally Group would not deploy overseas. , about until 1969. MANUAL FOR COURTS-MARTIAL, Lieutenant Hutcheson was excused by the appointing AVID ILLIAMS IT ARD D J. W , H H (1983). Williams, the UNITED STATES (1969). From 1951 to 1969 the position authority due to Robinson selecting 1LT Johnson as Id. commander of A Company, provides great background was known as the “law officer.” MANUAL FOR COURTS- his Individual Counsel. on the 761st Tank Battalion from a commander’s MARTIAL, UNITED STATES (1951). 125. Cline was a practicing attorney prior to WWII. perspective on race, training, and the war in Europe. 113. 1943 MCM, supra note 90, at 28. See Barry Halvorson, Cline Celebrates 100th Birthday, Unfortunately, on the subject of the 6-7 July incident at Wharton J. Spectator (July 21, 2010), http:// the MP station, Williams does not let the truth get in 114. Id. app. 1, 205. www.journal-spectator.com/life_and_leisure/arti- the way of a good story. He states that he was present 115. Id. at 29. cle_3841f142-8693-5c00-a682-e02ecd781be4.html. that night and witnessed Robinson being brought out His practice area before and after the war was in real Id of the MP station handcuffed and in leg shackles. . at 116. Id. estate. Id. 126. Williams also never knew that the matter went to Id. court-martial, believing that Lieutenant Colonel (LTC) 117. app. 1, 204. The term “panel” would not 126. Second Lieutenant Cline would go on to serve Bates had the case “thrown out.” Id. at 127. become part of the parlance until a few years later in as trial judge advocate and defense attorney at other 1949. MANUAL FOR COURTS-MARTIAL, UNITED STATES courts-martial for the rest of the war, but would never Robinson Military Records supra 94. , note 8, at 210. (1949). deploy overseas. Id. 95. United States v. Robinson at 5 (Commanding Id. 118. app. 1, 204. 127. ROBINSON, supra note 11, at 22. General, XXIII Corps, Camp Hood, Texas, 2 August Id. 1944). 119. app. 1, 205. 128. U.S. Dep’t of Def., WD AGO Form 53-98, Report See Julia Compton Moore EDGER NQUIRER of Separation from Service—Captain Robert H. 96. Robinson Military Records, supra note 8, at 210. 120. , L -E (Apr. 21, 2004), https://www.legacy.com/ Johnson’s (on file with author). 97. Id. obituaries/ledger-enquirer/obituary.aspx?page=lifesto- 129. Cline likely recommended Johnson to Robinson 98. Id. ry&pid=2155032. The court-martial of Jackie Robison to undertake his defense. First Lieutenant Johnson is not the only noteworthy court-martial Colonel 99. Id. had some experience at courts-martial; as evident Compton would serve on during the war. He would in his examination techniques and in the fact that 100. Id. later serve on the 1945 military commission of four Johnson undertook the duties of cross-examining the German civilians who killed a distressed U.S. Airman 101. Id. government’s lead witness CPT Bear. Johnson also who parachuted to safety over Germany. U.S. Army likely crafted the so-called “good Soldier” defense on 102. 1943 MCM, supra note 90, art. 70. Justice Falls on Germans, LIFE MAG., July 16, 1945, at 17. Robinson’s behalf. 103. Later at his court-martial, it became evident that 121. Documents on the short life of John Shippey 130. 1943 MCM, supra note 90, at 34. Robinson was not represented at his Article 70 hear- can be found online. See Obituaries, etc. – Shippey, John ing. United States v. Robinson, at 46 (Commanding Hall, 1911–1950, SHIPPEY.INFO, http://shippey.info/ 131. Id. General, XXIII Corps, Camp Hood, Texas, 2 August documents/o10975.html (last visited Jan. 17, 2020). 132. United States v. Robinson at 2 (Commanding 1944). He stated during direct testimony that he asked Major Shippey is listed as graduating from the Judge General, XXIII Corps, Camp Hood, Texas, 2 August “the Lieutenant,” likely Cline, to subpoena the investi- Advocate General’s School as a member of the Fifth 1944). gating officer’s notes to prove a discrepancy between Judge Advocate’s Course. Graduation Exercises: Fifth 133. 1943 MCM, supra note 90, at 60. Wigginton’s sworn statement and his trial testimony. Class, JUDGE ADVOCATE GENERAL’S SCHOOL (Nov. 21, Id. Likely he told his attorney this because he attended 1942), http://www.loc.gov/rr/frd/Military_Law/ 134. Id. the hearing alone without representation. Scrapbooks/pdf/P-3-booklet.pdf. This was the first course that graduated in Ann Arbor since the 135. Later, 2LT Campbell would be called as part of 104. United States v. Robinson at GCM Appointment classroom and office space was leased by the Judge Robinson’s good Soldier defense. United States v. (Commanding General, XXIII Corps, Camp Hood, Advocate General’s Corps at the University of Robinson at 64 (Commanding General, XXIII Corps, Texas, 2 August 1944). Michigan Law School after moving there 1942 from Camp Hood, Texas, 2 August 1944). He would state 105. Daugherty did not investigate or make a recom- Washington, D.C. Colonel Richard D. Rosen, The that he had known Robinson for “a year and four Id. mendation on Charge III, Specification III, “obscene Judge Advocate General’s School, U.S. Army: 50 Years in months.” Given that Robinson transferred to Camp Hood in April 1944, this would likely mean that 2LT and abusive language . . . in the presence of ladies” as it Charlottesville, MIL. L., Dec. 2001, at 14, https://www. had been eliminated by placing an “X” in ink pen across vsb.org/docs/valawyermagazine/dec01rosen.pdf. Campbell served with Robinson at Fort Riley as lieu- the specification prior to preferral. Robinson Military tenants and possibly as enlisted Soldiers. 122. Major Mowder attended UCLA, graduating Records, supra note 8, at 212. 136. United States v. Robinson at 7 (Commanding and commissioning in 1934. UNIV. OF CAL., SOUTHERN General, XXIII Corps, Camp Hood, Texas, 2 August 106. This would be evident during the court-mar- CAMPUS 102 (1920), https://archive.org/stream/south- tial when Robinson would reference Wigginton erncampus1933univ/southerncampus1933univ_djvu. 1944). and Daugherty’s Article 70 testimony during his txt. Mowder would later take part in the invasion of 137. The boilerplate court-martial script dictated that direct examination. United States v. Robinson at 46 Okinawa. Lt. Col. Allerton Cushman, Tank Destroyers the very first prosecution witness identify the accused. (Commanding General, XXIII Corps, Camp Hood, . . . Against Japan, FIELD ARTILLERY J., Feb. 1946, at Id. at 6. Texas, 2 August 1944). 70, 73, https://sill-www.army.mil/firesbulletin/ar- 138. While Mr. Herbert Reed, the civilian court chives/1946/FEB_1946/FEB_1946_FULL_EDITION. 107. The investigating officer’s report was a boilerplate reporter, did an admirable job considering that he pdf. form known as WD AGO Form 120. Robinson Military was required to perform live transcription of the Records, supra note 8, at 216-17. Designed to minimize 123. Captain Campbell led an incredible life, being court-martial, he inexplicably spelled Bear’s name as the effort of the investigating officer, it also had the born, raised, and educated in and around the famed “Baer” approximately half way through the court-mar- effect of limiting any insight into their analysis of Tuskegee Institute in Tuskegee, Alabama. See Services tial transcript and stuck with this spelling for the the charges, becoming a go or no-go report of their Conducted for Dr. Campbell, TUSKEGEE NEWS, June remainder. Id. at 31. investigation. 10, 1976, at 3. As the head of Pediatrics at John A. 139. United States v. Robinson at 8 (Commanding Andrew Hospital in Tuskegee, Alabama, he would 108. The instruction in the 1943 MCM allowed an General, XXIII Corps, Camp Hood, Texas, 2 August retire as a Colonel in the Army Reserves in 1967. Id. investigating officer to make “notations on the charge 1944). Bear’s testimony mentions CPT Wigginton Dr. Campbell’s brother William, a U.S. Army Air sheet” which Daugherty did by lining out three of the and several enlisted MPs at the scene. Id. He included

2020 • Issue 1 • Army Lawyer 81 PFC Mucklerath, whom, as an infantry replacement 163. Id. 207. Id. training at Camp Hood, he would not have known 164. Id. 208. Id. at 54-55. prior to that evening. 165. Id. 209. Id. at 58. 140. United States v. Robinson at 9 (Commanding General, XXIII Corps, Camp Hood, Texas, 2 August 166. Id. at 30. 210. Id. at 58-60. 1944). 167. Id. 211. See generally Elizabeth Lutes Hillman, The “Good Soldier” Defense: Character Evidence and Military Rank 141. Id. at 10. 168. Id. at 26. at Courts-Martial, 108 YALE L. J. 879 (1999), https:// Id 142. . at 12. 169. Id. at 27. The civilian court reporter at times digitalcommons.law.yale.edu/cgi/viewcontent. 143. Id. generously ended the Trial Judge Advocates’, defense cgi?article=7983&context=ylj. counsels’, and members’ statements with a question Id See supra IL VID 144. . at 13. mark. United States v. Robinson (Commanding 212. 1943 MCM, note 90, M . R. E . 112 145. Id. at 14. General, XXIII Corps, Camp Hood, Texas, 2 August (opinion evidence). 146. Id. 1944). 213. The 761st Battalion Commander who would lead 170. Id. at 29. his Soldiers across Europe during the war was LTC 147. Id. at 15. Paul L. Bates, a 35-year-old former All-American foot- Id 148. Id. at 16. 171. . ball player and high school teacher. See ABDUL-JABBAR 172. Id. & WALTON, supra note 12, at 29. Lieutenant Colonel 149. Id. at 17. Bates was well-regarded by his men for treating them Id. 150. Lieutenant Colonel Perman was a field artillery 173. at 30. with dignity and respect, something far too few white officer serving on active duty in 1927. Regimental 174. Id. officers did. Id. Notes IELD RTILLERY , F A J., Jan.-Feb. 1927, at 72, https:// 175. Id. at 30-41. 214. Captain Lawson was a white officer, as depicted sill-www.army.mil/firesbulletin/archives/1927/ in a photograph of all the 761st company commanders Id. JAN_FEB_1927/JAN_FEB_1927_FULL_EDITION. 176. at 31-33. enjoying dinner together in 1944 in England. CHARLES pdf. Any member of the court was permitted to object 177. Id. W. SASSER, PATTON’S PANTHERS (2005). to questions by government, defense, or even another member. 1943 MCM, supra note 90, at 58. During the 178. The defense also made a timeless, new trial ad- 215. United States v. Robinson at 62 (Commanding cross-examination of CPT Bear, LTC Perman made vocate mistake when it objected to a response by 1LT General, XXIII Corps, Camp Hood, Texas, 2 August four objections to defense questions. By contrast, the Cribari, a response made during its own cross-ex- 1944). prosecution made only one. Perman was often free amination of that witness. Id. at 68. After defense’s 216. Id. at 61. with his legal advice, objecting at one point that the objection, the government, no doubt stupefied, quickly Id. defense’s line of cross-examination questioning was offered that “he asked for it.” Id. 217. at 67. outside the scope of direct and that the defense could 179. Id. at 35. 218. Id. “introduce the witness as a defense witness at a later 219. Id. time.” United States v. Robinson at 22 (Commanding 180. Id. at 41. General, XXIII Corps, Camp Hood, Texas, 2 August 181. Id. at 44. 220. Id. at 71. 1944). 182. Id. 221. Id. 151. Id. at 30. 183. Id. at 43. 222. Id. at 72. 152. Id. 184. Id. 223. Id. at 73. 153. Id. at 21 185. Id. at 44. 224. Id. at 77. 154. Id. at 22. 186. Id. 225. Id. 155. Id. 187. Id. at 45. 226. Id. 156. Technically, the Law Member permitted the 188. Id. 227. Id. defense to limit questions about the interaction between Bear and Robinson during testimony regarding 189. Id. 228. Id. the taking of Robinson’s statements, not the subject 190. Id. at 45 229. Id. at 78. matter. Id. at 22-23. 191. Id. 230. Id. 157. Though panel members today may submit written questions to the military judge subject to objections 192. Id. at 47. 231. The record merely states, “Closing arguments were made by the defense and prosecution.” Id. by government and defense counsel, court-martial 193. Id. at 48. members then were permitted to address questions 232. See TYGIEL, supra note 6. directly to witnesses without filter. 1943 MCM, supra 194. Id. at 50. 233. RAMPERSAD, supra note 5, at 109. note 90, at 34. 195. Id. at 51. 234. United States v. Robinson at 78 (Commanding 158. United States v. Robinson at 25 (Commanding 196. Id. General, XXIII Corps, Camp Hood, Texas, 2 August General, XXIII Corps, Camp Hood, Texas, 2 August 1944). 1944). 197. Id. 235. ROBINSON, supra note 11, at 22. 159. This information is known due to a photograph 198. Id. of CPT Carr and his fellow commanders in England. 199. Id. at 52. 236. RAMPERSAD, supra note 5, at 110. See 614th TD Battalion, TANKDESTROYER.NET, https:// 200. Id. 237. Id. at 111. www.tankdestroyer.net/units/unitphotogaller- ies/614th-td-battalion (last visited Jan. 14, 2020). 201. Id. 238. Id. at 125. 160. United States v. Robinson at 25 (Commanding 202. Id. 239. ROBINSON, supra note 11, at 32. General, XXIII Corps, Camp Hood, Texas, 2 August 203. Id. 240. Id. 1944). 204. Id. at 52-53. 241. Id. at 34. 161. Id. at 26. 205. Id. at 53. 162. Id. 206. Id. at 54.

82 Army Lawyer • Issue 1 • 2020 CPT Wesleigh Cochrane takes a break during a recent Army Combat Fitness Test the 82d Airborne Division’ s OSJA held at Fort Bragg. (Credit: Justin Case Konder/AP) (Credit: istockphoto.com/Magnetic-Mcc) No. 4 Six Steps for Excessive Absences

By Allison G. Marvasti and Kathryn D. Poling

ne of the many types of cases likely to come across your desk counsel that this can be surprisingly challenging and requires Oas a labor or employment counselor is removal for excessive both caution and patience. It can be helpful to note that we are absences due to a medical condition. Consider this scenario— all just one accident or illness away from being severely dis- which is fraught with hazards for even a seasoned labor attorney: abled. Both federal law and the Equal Employment Opportunity a supervisor comes to your office and requests help in dealing Commission (EEOC) provide many benefits to the disabled, and with a Civilian employee who is repeatedly out of the office for failure to properly exhaust statutory requirements, such as pro- two, three, or more days a week. The supervisor makes it clear viding accommodations, can result in adverse findings against the that it is impossible to assign tasks to that employee because the agency. While the demands of work are important, we also must individual cannot be depended upon to be at work on any given demonstrate compassion and sensitivity to challenges faced by our day, and others in the office have to cover down on the employ- employees. ee’s work. This employee is burning through leave, or has already When an employee is not reporting to work on a regular used all sick leave and annual leave and is asking for leave without basis for an extensive period and there is no foreseeable end to pay. Employees in these cases range from those severely incapac- the absences, the agency should consider proposing removal for itated by a serious medical condition, who can readily document excessive absenteeism or for physical inability to perform duties.2 their reasons for being out of the office, to those who will use While these two bases are distinct, they frequently overlap, and any excuse to be out of the office, from a sick cat to the flu. When the process for reaching the ultimate removal is similar. There are someone is not coming to work on a regular basis, and there is no six prerequisite steps to proposing the removal of an employee for foreseeable end to the cause of the absences, it seems like removal excessive absences: should be simple. However, just like any other adverse action involving a federal employee, there are important steps to follow, 1. Allow employee to exhaust all sick and personal leave; due process to be given, and risk to the agency for failing to adhere 2. Notify employee of her/his rights under the Family and to the rules.1 Medical Leave Act (FMLA)3; The first step when confronted by a supervisor with an 3. Allow employee to exhaust FMLA leave; employee who is using excessive amounts of leave is to provide 4. Attempt to accommodate the employee’s disability;

2020 • Issue 1 • Army Lawyer 85 5. Attempt to reassign the employee; and visit(s), and date of certificate.11 When the leave, a constructive request may be found 6. Provide notice requiring employee to evidence does not justify the approval of if they provide the agency notice of the return to work or risk adverse action sick leave, the absence may be charged to need for leave and any requested medical being taken.4 annual leave with the employee’s consent, certification within thirty days or “as soon absence without leave (AWOL) (which is a as practicable” prior to any foreseeable If the basis is medical inability to non-pay status), or LWOP.12 absence, and within a reasonable time for perform the duties of the position, steps 1-3 It is also appropriate to request medical unforeseeable events.18 However, an em- are not a prerequisite to taking the action documentation when an employee is in a ployee may not retroactively invoke his or since the action is not based on leave taken, position governed by medical standards, her entitlement to family and medical leave but on a disqualifying medical condition. and there is some question as to whether unless the employee and their personal However, the agency must proceed through the employee is fit for duty.13 Medical representative are physically or mentally steps 4-5 and will need to obtain medical standards are most commonly found in incapable of invoking the employee’s enti- documentation—discussed below—of the the employee’s position description.14 The tlement to FMLA leave during the entire disqualifying medical condition.5 employee should be notified in advance of period.19 The agency can and should request a Medical Evaluation Program.15 Often the medical documentation in support of a employee has signed a condition of employ- request for FMLA leave, as delineated in 5 1. Exhaust All Sick and 20 Personal Leave ment agreement, agreeing that employment U.S.C. § 6383. An employee facing medical issues requir- is conditioned on meeting the medical Family Medical Leave Act leave is only ing absence from the workplace may use standards of the position.16 granted for the FMLA-approved serious annual leave or sick leave, as well as leave There are limitations on when and medical conditions. A supervisor can still without pay (LWOP). A supervisor may how often we can request medical doc- require that other sick leave and annual ordinarily deny annual leave or LWOP if umentation. An employee who has an leave comply with the Office of Personnel there is work that needs to be done, but obvious disability does not generally require Management (OPM) leave rules.21 The the supervisor may not deny sick leave or documentation. For example, we do not supervisor can also still deny an employee LWOP taken because of an illness or injury need medical documentation for an em- unexcused absences for causes other than that incapacitates the employee from duty.6 ployee who was injured in an auto accident the medical incapacitation.22 In cases where If the use of leave is excessive or being and is now confined to a wheelchair to an employee is under a leave restriction abused, the supervisor may be able to put document their injury. However, we may letter, the leave restriction rules continue to the employee on a leave restriction plan.7 need medical documentation to address apply to all other sick and annual leave not While the use of sick leave for personal the nature of accommodations or ability covered by the FMLA request.23 medical reasons is an entitlement, so too is to perform certain duties. Additionally, When an employee is close to ex- the agency’s right to ask for documentation employees with chronic conditions cannot hausting their annual and sick leave, it is of the need for that sick leave, provided the generally be required to obtain a medical advisable to notify them of that fact and of basis is not readily apparent.8 statement for every absence. Consider an the availability of FMLA leave.24 This notice When absence due to medical issues employee with a diagnosis of rheumatoid should include a brief explanation of the has become an issue, it is usually appropri- arthritis or migraines. These type of med- employee’s rights to request FMLA leave.25 ate to ask for supporting evidence. Many ical conditions are expected to have flare Because the FMLA protects an employee’s times, this is done after an employee misses ups, and there is often little that a medical right to return to their position, the time three consecutive workdays.9 However, if professional can provide to their patient. spent in FMLA status cannot be used against the employee is regularly but intermittently In these scenarios, it would seem unfair to an employee to support a charge of excessive 26 absent—i.e., returning to work within require an employee to obtain redundant absence. If an employee is charged with three days in each absence—the supervi- documentation and potentially incur un- AWOL when they would have qualified for sor may still demand supporting evidence necessary costs. the FMLA, this could be asserted as a basis from a medical provider.10 Note too, for a claim of disability discrimination.27 that we cannot dictate who provides the 2. Notice and Exhaustion Because leave covered by the FMLA cannot medical documentation. To be considered of FMLA Leave be used against an employee to support a administratively acceptable, the medical The FMLA provides twelve workweeks of charge of excessive absence, all twelve weeks documentation should include the employ- unpaid leave for an employee with a serious of FMLA leave must be exhausted before the ee’s name, a statement that the employee health condition that makes the employee first hour of LWOP can be used to support a was incapacitated for duty and/or why re- unable to perform any one or more of the removal action. porting for duty was inadvisable, the nature essential functions of their position, while In all communications with an of the incapacitation, the duration of the guaranteeing that the employee will return employee, it is important to demonstrate period of incapacitation, and the medical to the same or equivalent position with concern for their well-being. Consider practitioner’s typed name, title, signature, all associated benefits.17 Even if an em- how a U.S. District Court judge will read address, telephone number, date(s) of office ployee has not expressly requested FMLA a memorandum from your command

86 Army Lawyer • Issue 1 • 2020 years after any action has been taken. Will also include reassignment to a vacant posi- an undue hardship on the agency.39 It is the memorandum be cold and harsh, or tion, discussed in detail below.33 critical that the agency initiate an informal, compassionate and understanding? Will The key is that the accommodation interactive process with the individual with options be set out in a clear manner that is must be reasonable—an agency is not a disability in need of the accommodation.40 understandable? The tenor of written com- required to undertake an accommodation A documented review of the essential munications can have enormous impacts that would cause an undue hardship to the functions of the employee’s position, the both with the employee and with subse- agency.34 An undue hardship is judged based individual’s limitations, and a meaningful quent administrative and judicial review. on a multitude of factors, including, but not interaction with the employee regarding limited to: the nature and cost of the ac- requested accommodations and their alter- commodation, the financial resources of the natives is needed to evidence the agency’s 3. Attempt Reasonable28 Accommodation facility, the size of the entity (including the efforts to accommodate and to defend the Presumably, the supervisor has been moni- number of employees), the type of agency agency in potential future litigation.41 toring the employee’s status and the cause(s) operation, and the impact of the accommo- In some instances, the inability to of absences throughout this process. Long dation on the agency’s operations.35 Overall, accommodate the employee will become before it becomes clear that the employee’s the type of hardship must be a “significant patently obvious. For example, an individ- medical issues are preventing regular atten- difficulty or expense,” and in the govern- ual employed to be a truck driver cannot dance, supervisors should consider whether ment’s case, it is taken in “light of resources perform those duties in a telework status (at a reasonable accommodation would allow available to the agency as a whole,” which is least not yet). In other cases, the supervisor the employee to continue to perform the a high bar.36 is often well advised to consider the accom- essential functions of the current position.29 In developing a reasonable accommodation on at least a trial basis. Consider To initiate the reasonable accommoda- modation, the agency must have a clear the employee who the supervisor “knows” tion process, an employee does not need understanding of the essential functions of will not be successful if allowed to telework. to invoke the magic words of “reasonable the job as described by the position descrip- Providing the employee with expectations accommodation” or fill out a specific form.30 tion, but also in the actual performance of and allowing them to work in a telework A supervisor may be able to infer the need duties. For example, a position description status could allow them to show superla- for a reasonable accommodation based might note that the employee is expected tive performance of duties in a telework on the employee’s description of an issue to perform temporary duty (TDY) 25% of status or it could prove that telework is preventing performance of the duties of the time, but if the employee never was on not a reasonable accommodation because the position, or based on the observation TDY travel orders in the years before their of deficient work product and output. It is of a disability impeding performance of disability, the fact that they now cannot go much easier to defend a decision to end an a job function.31 Not only is reasonable TDY will not support any adverse action. accommodation rather than never offering accommodation a benefit to the employee, Without understanding what must be one on at least a trial basis. it also benefits an agency to retain an accomplished in the position and what can The approval of leave can be a rea- employee in whom the agency has invested be adjusted or moved to another position, sonable accommodation. In the case of ample resources into hiring, training, and it is impossible to assess what accommoda- approval of leave as a reasonable accom- developing. tions would suffice to permit the employee modation, the analysis is not whether the Reasonable accommodation is broadly to succeed in the position.37 At this stage, employee is entitled to coverage under construed, but can include modification to the medical provider’s communications are the FMLA or not, but whether the grant- the duties or work environment to enable key to develop potential accommodations. ing of such leave is an undue hardship.42 an individual with a disability to perform Medical information requested should be Therefore, under a reasonable accommo- the essential functions of the position, targeted to obtain the information needed dation analysis, an employee’s request to or to enjoy equal benefits and privileges to make a decision on the reasonable ac- use sick leave, annual leave, or LWOP of employment as other similarly situ- commodation to include how the requested should also be considered as a reasonable ated employees without disabilities.32 It accommodation will help the employee accommodation request if it is related to can include a change to the schedule of a perform the duties of the position.38 an employee’s disability.43 Supervisors are position, to the physical aspects of the job, By reviewing the medical provider’s not required to provide advanced sick leave or some other adjustment to the job. For documentation of the employee’s limita- or advanced annual leave, but can elect to example, an individual who is not able to tions in relation to the essential functions do so. In cases where such advanced leave drive because of a medical condition may of the position, the agency must decide is denied, the supervisor should consider be offered telework. An employee who has whether the requested accommodation, granting LWOP. frequent medical appointments could be or in fact, any reasonable accommodation, When an agency proposes removal of placed on an alternate work schedule. Or, will resolve the issue. It is important to an employee for medical inability to work the agency could purchase special equip- note that an employee is not entitled to the or excessive absences, the agency should be ment for an employee who is physically accommodation of their choosing, or to prepared to demonstrate that attempts were impaired. Reasonable accommodation can any accommodation at all, if it would cause made, or at least considered, to reasonably

2020 • Issue 1 • Army Lawyer 87 accommodate the employee’s medical issues available, or soon to be available, an agency employee is using annual leave because they to support the removal decision.44 Failure has fulfilled its obligations to reasonably at- are incapacitated for duty, a supervisor may to attempt to reasonably accommodate tempt to accommodate the employee.56 This be left with no choice but to approve it. If can be a violation of an agency’s duty to process should be well documented. a supervisor cannot discipline an employee do so, and may give rise to an allegation of Reassignment is particularly important for the use of approved leave, and the discrimination if the employee is a quali- in cases of medical inability. The employee supervisor must approve the leave based on fied individual with a disability pursuant may only be unfit because of strict medical the circumstances, it would appear that the to Army Regulation 690-12, Appendix C, standards applicable to the position, such supervisor is stuck. However, that is likely meaning the employee could perform the as a requirement to run a certain distance not the case. essential functions of the job with or with- or lift a certain amount. There are many Under the specific conditions laid out reasonable accommodation.45 Failure positions in the government where such out in Cook v. Department of the Army, and to attempt to reasonably accommodate will restrictions would not be a problem. For affirmed in McCauley v. Department of the also be weighed in any U.S. Merit Systems example, an agency can dictate that a fire- Interior, an agency can take adverse action Protection Board (MSPB) assessment of the fighter must be able to lift a certain weight, against an employee based on excessive reasonableness of the penalty of removal.46 but this condition of employment would use of approved leave.63 Cook lays out the not be an issue for most clerical positions. requirements for taking an adverse action 4. Attempt Reassignment Therefore, it is necessary to survey posi- based on excessive absences: Reassignment to a vacant position is one tions for which the person is otherwise of many potential accommodations.47 qualified. A review of the employee’s 1. The employee was absent for Reassignment is usually the reasonable resume is necessary for the personnel office compelling reasons beyond the accommodation of last resort.48 The ac- to determine if the employee is otherwise employee’s control so that the commodation process generally, and the qualified for vacant positions. Reassignment employee would not have been reassignment consideration in particular, is to a vacant funded position.57 An agency present at work, regardless of is a collaborative process. It should include has no obligation to create a position that agency approval or disapproval; a cooperative interaction between the the employee can be reassigned or to move 2. The absences continued beyond employee and the agency, and the employee another employee to create a vacancy.58 a reasonable time, and the agency has some obligation to participate in the warned the employee that an ad- 49 process. An employee should not, and 5. Return-to-Work Notification verse action could be taken unless cannot, be reassigned against their will the employee became available 50 Prerequisite to Proposing as part of a reasonable accommodation. Removal for Excessive Absences for duty on a regular, full-time, or According to the EEOC, an employee In the event the agency has moved through part-time basis; and should be reassigned to a position at the these steps without either improvement in 3. The agency can show that the same grade and responsibility.51 If no such the employee’s attendance or identification position needed to be filled by an position is available, the employee can be of a position that the employee can per- employee available for duty on reassigned to a lower grade position at form with or without accommodation, it a regular, full-time or part-time the same rate of pay, with the employee’s may be time for the supervisor to consider basis.64 consent.52 The employee can also be offered proposing to remove the employee from lower graded positions that they can vol- federal service. When an employee has not Such an action for removal should be untarily accept, with a corresponding pay been reporting to work on a regular basis, taken only under unusual circumstances, reduction.53 there are two primary charges to consider: e.g., when the employee is unable to return Although the employee can suggest the first is excessive absences, and the to duty because of the continuing effects of potential positions that would meet the second is a physical or medical inability to illness or injury.65 employee’s needs and abilities, the agency perform duties.59 In order to satisfy Cook, the supervisor is responsible for identifying potential must maintain documentation of absences positions for the employee.54 It is helpful Excessive Absences and the reasons given for such absences to have a well-defined process for reas- Generally speaking, an agency cannot as evidence that the circumstances were signment that advises the employee of the penalize an employee for using approved beyond the employee’s control.66 This can limitations of the reassignment process leave.60 This includes approved LWOP. include emails, calendars documenting days (e.g., a time limit on the search for equiva- While a supervisor may always deny annual absent, or a record of phone calls report- lent positions, a limit on how many offers leave or LWOP if there is a valid mission ing absence and the reason provided for of reassignment will be made) and obtains requirement, they may not turn down sick the absence. Documentation of the cause the employee’s limitations for what he will leave.61 When an employee has excessive of the absence is essential to demonstrate accept in terms of reassignment (e.g., a absences and the job needs to be performed, that agency approval or disapproval was lower graded position, a position in another a supervisor may turn down unscheduled immaterial, as the employee was unable to location).55 If there is no reassignment annual leave requests.62 However, when an report to work.67

88 Army Lawyer • Issue 1 • 2020 (Credit: istockphoto.com/bankrx)

As the documentation of absence is work, it is a necessary step. Recall the employee may be removed if the disabling gathered, recall that an agency cannot use earlier advice to give this warning compas- condition itself is disqualifying, its recur- FMLA leave days as “excessive leave” days sionately. Documentation of absences and rence cannot be ruled out, and the duties to support a disciplinary action based on the reason for such absences must continue of the position are such that a recurrence excessive absences.68 The intent behind the after the employee is ordered to return to would pose a reasonable probability of FMLA is to provide job security for indi- work in order to adequately prepare for substantial harm.74 If the position descrip- viduals who need to be temporarily absent any potential adverse action against the tion does not include medical standards, the due to a serious medical condition (whether employee. Finally, the agency needs to agency must demonstrate that there exists their own or that of a family member) and document the need for someone to fill the a nexus between the employee’s condition the law unambiguously promises this job employee’s position on a regular, full-time/ and that employee’s inability to perform, or security.69 As a result, the use of FMLA part-time basis; this can include evidence of that the employee’s condition poses a risk leave in any calculation to remove an hardship to the agency, such as the need for of harm to the employee or others if the employee is inappropriate. To ensure any hiring contractor to support the mission or employee continues in the position.75 removal is adequately supported, an agency require that other employees work longer Removal on the basis of physical or must maintain all time cards and leave slips hours to cover the employee’s duties.71 medical inability to perform is not generally as evidence. These records must indicate considered to be a disciplinary removal. when FMLA leave was taken as opposed Physical Inability to Work Therefore, the Douglas factors do not apply to other types of leave to prove that all 480 Any removal from federal service must to these decisions.76 Instead, the standard hours were provided. promote the efficiency of the service.72 The for review is whether the removal ac- Next, the supervisor must provide a MSPB has held that removal for medical tion went beyond the “tolerable limits of formal letter warning the employee of po- inability to work is “equivalent to a charge reasonableness.”77 tential adverse action if they fail to return to of medical incapacity.”73 In removing an Finally, if there is a foreseeable end to work.70 This letter will order the employee employee for a physical or medical inabil- the employee’s medical issue impeding the to return to work or risk adverse action up ity to work, the first question to address is performance of duties, the agency must to and including removal. While this may whether the position is subject to medical document why removal is required for the seem useless or even cruel if the employee standards or physical requirements. If efficiency of the service, instead of waiting is incapacitated and unable to return to the position includes such standards, the for the employee to recover.78 This is true

2020 • Issue 1 • Army Lawyer 89 even if evidence of recovery comes after work is not generally precluded from most 7. Appendix A contains an example of a leave restric- 79 tion notice. Supra note 1, the use of a leave restriction the removal is proposed. The agency jobs, and if there are excessive absences, notice may be impacted by a Collective Bargaining will need to show the hardship endured it would be more appropriate to remove Agreement. by the employee’s absence, and why the on the basis of unavailability than medical 8. 5 C.F.R. § 630.405(a) (2020). agency needed to remove and replace inability to perform. 9. Supra note 1, this is an area that can frequently the employee.80 Evidence that the agency be impacted by a Collective Bargaining Agreement. allowed absences and an inability to work to However, since Collective Bargaining Agreements are Conclusion unique to the union/installation, this article does not continue for a long period will potentially The decision to remove an employee for address this issue. undercut the argument that the agency physical inability to work or excessive 10. 5 C.F.R. § 630.405(a). urgently requires someone in the position.81 absenteeism can be a difficult one to make, 11. Id. This is the major risk in removal for medical and is fraught with potential pitfalls. 12. 5 C.F.R. § 630, Subparts B and C; 5 C.F.R. inability to work: an employee may provide However, if done correctly, it can result in § 630.401(a)(2) (2020); 5 C.F.R. §§ 630.405(a), evidence at any time, in some cases after an outcome that benefits the agency and 630.405(b) (2020); 5 C.F.R. § 630.1202 (2020) (leave the issuance of the removal, to establish provides all possible benefits and protec- without pay definition). that their medical situation has improved, tions to the employee. At each step in the 13. 5 C.F.R § 339.301–339.304 (2020). Appendix B contains an example request for medical documenta- resulting in the employee being returned to process, there is an opportunity for cooper- tion under 5 C.F.R. § 339.303 (2020). their position. As a result, before advising ation, compassion, and giving the employee 14. 5 C.F.R § 339.203 (2020). the supervisor to take this route, it is critical the greatest possible chance at success 15. 5 C.F.R § 339.205 (2020). to have a reasonable belief that the medi- within the agency. TAL cal condition in question will not resolve 16. 5 C.F.R § 339.203; 5 C.F.R § 339.205. within the foreseeable future. Ms. Marvasti is an attorney-advisor, Army 17. 5 U.S.C. § 6384 (2020); 5 C.F.R. § 630.1203 (a) (2020); 5 C.F.R. § 630.1210 (2020). Materiel Command Legal Center—Aberdeen 18. 5 C.F.R. § 630.1207 (2020); Ellshoff v. Dept. of 6. Medical Retirement Proving Ground, Fort Belvoir Division, Fort the Interior, 76 M.S.P.R. 54 (1997); see also Somuk Throughout this process, it may seem that Belvoir, Virginia. v. Department of the Navy, 117 M.S.P.R. 18 (2011); the agency is adding to the employee’s Gross v. Department of Justice, 77 M.S.P.R. 83, 88 (1997); Manuel v. Westlake Polymers Corporation, 66 already difficult situation. This is import- Ms. Poling is the Division Chief, Army Materiel F.3d 758 (5th Cir. 1995). ant to consider also when deciding on Command Legal Center—Aberdeen Proving 19. 5 C.F.R. § 630.1203(b) (2020). which basis to remove an employee. For Ground, Fort Belvoir Division, Fort Belvoir, 20. Department of Labor Form WH-380-E is both the supervisory chain and the em- Virginia. the standard form of request for FMLA Medical ployee, it is worth considering the “Bruner Documentation and can be found at http://www. Presumption.”82 In a case of removal for dol.gov/whd/forms/wh-380-e.pdf. Appendix C may be used in conjunction with a WH-380-E to request medical inability to perform, the Bruner Notes medical documentation in an FMLA case. Presumption assumes that the employee is 1. A caveat: this article does not include a discussion of the requirements surrounding individual installation 21. 5 C.F.R. § 630.1206(b)(1) (2020). entitled to disability retirement. The Bruner Collective Bargaining Agreements. Such an agreement 22. Employee shall claim FMLA leave for particular Presumption also shifts the burden of may impact the implementation of this advice. illness(es). 5 C.F.R. § 630.1203(a)(4) (2020). production to the OPM, who must disprove 2. Linda D. Edwards v. Department of Transportation, 23. See Appendix C for an example of an FMLA notice the employee’s entitlement to disability 109 M.S.P.R. 579, 583-584 (2008) (reversed on other in conjunction with a leave restriction plan. grounds 112 M.S.P.R. 82 (2009)). Other frequently used 83 24. See Appendix D for an example of a request for retirement. To overcome this presump- charges are for excessive absences are failure to main- documentation under the FMLA. tion, the OPM must produce evidence that tain a regular and predictable work schedule; failure to is sufficient to support a finding that the re- follow established leave procedures; and, of course, ab- 25. It is also recommended that the agency inform sence without leave (AWOL) for unapproved absences. the employee of rights under the Voluntary Leave moved employee is not entitled to disability These charges will not be discussed in this article. Transfer Program at the same time. 5 U.S.C. § 6331- retirement benefits.84 6333 (2020); 5 C.F.R. § 630.901–630.912 (2020). 3. 5 U.S.C. §§ 6381–6387 (2020); 5 C.F.R. §§ 630.1201– See Appendix E for an example FMLA notice with In some instances, an employee will 630.1213 (2020). information regarding the Voluntary Leave Transfer actively seek removal for physical inabil- 4. This assertion is based on the authors’ professional Program. ity to perform the duties of the position experiences in labor and employment law for a com- 26. McCauley v. Department of the Interior, 116 bined thirty years. because they will then have the Bruner M.S.P.R. 484 (2011). 5. Though not required to as a prerequisite to taking Presumption. An agency should only be 27. Ellshoff v. Department of Interior, 76 M.S.P.R. 54 an action for medical inability to perform the duties (1997). taking adverse action for medical inability of the position, so long as the employee is on the rolls, to perform when the evidence supports management should follow steps 1-3. 28. Army Regulation 690-12, Equal Employment Opportunity and Diversity, Appendix C, paragraph such an action. It is not fair to the agency, 6. 5 C.F.R. § 630.401(a) (2020). Annual leave may C-1(e) defines “reasonable accommodation” as: “any be substituted for leave without pay (LWOP) under OPM, or taxpayer to direct a medical change in the work environment or the way things are the Family Medical Leave Act (FMLA) taken by an inability to perform action when the evi- customarily done that would enable an individual with employee with an illness or injury that is incapacitating a disability to enjoy [equal employment opportunity].” dence does not support it. For example, an the employee from duty. 5 C.F.R. § 630.1206(a). If the U.S. DEP’T OF ARMY, REG. 690-12, EQUAL EMPLOYMENT employee who suffers from carpal tunnel employee qualifies under the FMLA, then the leave syndrome who has difficulty driving to may not be denied.

90 Army Lawyer • Issue 1 • 2020 OPPORTUNITY AND DIVERSITY app. C, para. C-1(e) (12 of a position, but rather a means by which employee 66. Cook, 18 M.S.P.R. at 611-12; see also Combs v. Dec. 2019) [hereinafter AR 690-12]. performs essential functions of position); aff’d in Social Security Administration, 91 M.S.P.R. 148, 154 Gaskins, . 29. Id. app. C (laying out the procedures for requesting Reynaldo Alvara v. Department of Homeland Security, (2002); 36 M.S.P.R. at 334 121 M.S.P.R. 613 (2014). and evaluating reasonable accommodation requests). 67. Smisson v. Department of Air Force, 85 M.S.P.R. Id. fig. C-2 (providing a format for a request). 46. Marshall-Carter, 94 M.S.P.R. at 524. 427 (2000). 30. 29 C.F.R. § 1614.203(d)(3)(i)(D) (2020); AR 690- 47. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 68. McCauley v. Department of the Interior, 116 12, supra note 28, app. C, para. C-2. 1630.2(o)(2)(ii) (2020); AR 690-12, supra note 28, para. M.S.P.R. 484 (2011). 31. Bultemeyer v. Fort Wayne Community Sch., 100 C-6(a). 69. McCauley, 116 M.S.P.R. at 489-90. F.3d 1281, 1285 (1996). 48. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); 29 70. See Appendix G for an example letter warning supra 32. 29 C.F.R. § 1614.102(a)(8) (2020); 29 C.F.R. § C.F.R. § 1630.2(o); AR 690-12, note 28, para. the employee of potential adverse action if they fail to 1614.203(d)(3)(i)(D)-(I) (2020); 29 C.F.R. § 1630.2(o) C-6(a). return to work. supra (2020); AR 690-12, note 28, app. C (laying out 49. Collins v. United States Postal Service, 100 71. Cook, 18 M.S.P.R. at 611-12; see also Combs v. see also the procedures for requesting and evaluating reason- M.S.P.R. 332 (2005); Miller v. Department of Social Security Administration, 91 M.S.P.R. 148, 154 able accommodation requests). the Army, 121 M.S.P.R. 189 (2014). (2002); Gaskins v. Department of the Air Force, 36 33. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); AR 50. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § M.S.P.R. 331, 334 (1988). supra supra 690-12, note 28, app. C, para. C-6. 1630.2(o)(2)(ii); AR 690-12, note 28, para. 72. 5 U.S.C § 7513(a) (2020); Jackson v. U.S. Postal 34. 29 C.F.R. § 1614.102(a)(8); 29 C.F.R. § 1630.9(a) C-6(a)-(c). Service, 666 F.2d 258 (5th Cir. 1982). (2020). 51. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 73. Sebald v. Department of the Air Force, 32 M.S.P.R. supra 35. 29 C.F.R. § 1614.203(a)(10) (2020); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, note 28, para. 164 (1987), see also Ellshoff v. Department of the 1630.2(o)(4) (2020); 29 C.F.R. § 1630.2(p) (2020). C-6(a)-(c). Interior, 76 M.S.P.R. 54 (1997). 36. 29 C.F.R. § 1614.203(a)(10); 29 C.F.R. § 52. 29 C.F.R. § 1630.2(o) app. (2020). 74. Brown v. Department of the Interior, 121 1614.203(d)(3)(ii) (2020); 29 C.F.R. § 1630.2(p) (2020). 53. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § M.S.P.R. 205 (2014); see also Sanders v. Department supra 37. Ignacio v. United States Postal Service, 16 M.S.P.R. 1630.2(o)(2)(ii); AR 690-12, note 28, para. of Homeland Security, 122 M.S.P.B. 144 (2015); Slater 530 (1983). C-6(a). v. Department of Homeland Security, 108 M.S.P.R. 419 (2008). 75. Fox v. Department of the Army, 54. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, 38. Army Regulation 690-12, paragraph C-5(c) states: 120 M.S.P.R. 529 (2014), citing Marshall-Carter v. ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION Department of Veterans Affairs, 94 M.S.P.R. 518 Medical information will be requested AND UNDUE HARDSHIP UNDER THE AMERICANS WITH (2003). only to the extent reasonably necessary to DISABILITIES ACT para. 28 (Oct. 17, 2002), https://www. establish that the requester is an individual eeoc.gov/policy/docs/accommodation.html. 76. Brown, 121 M.S.P.R. at 205; see also Marshall-Carter, with a disability and/or needs the requested 94 M.S.P.R. at 525; see also Sanders, 122 M.S.P.B. at 55. See Appendix F for a sample Counseling Checklist accommodation and provide information on 144. the nature, severity, and expected duration for reassignment. 77. Marshall-Carter, 94 M.S.P.R. at 518; see also Miller of the impairment (for example, functional 56. Acosta v. VA, EEOC No. 0320100028 (July 20, v. Department of the Army, 121 M.S.P.R. 189 (2014). limitations, symptoms, side effects of any treat- 2010); 29 C.F.R. § 1630.2(o) app. ments, and so forth); the activity or activities 78. Social Security Administration v. Mills, 73 57. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § the impairment limits; the extent to which M.S.P.R. 463 (1996); Edwards v. Department of 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. the impairment limits the individual’s ability Transportation, 109 M.S.P.R. 579 (2008). C-6(a). to perform the activity or activities; and/ 79. Street v. Department of the Army, 23 M.S.P.R. 58. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § or why the individual requires the particular 335, 342 (1984); Sanders, 122 M.S.P.R. 144 (2015). accommodation requested and how the accom- 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. modation will assist the individual to apply for C-6(a). 80. Edwards, 109 M.S.P.R. at 586; see also Walker v. Department of the Air Force, 24 M.S.P.R. 44, 45-47 a job, perform the essential functions of the 59. Edwards v. Department of Transportation, 109 (1984). job, or have the benefits of the workplace. M.S.P.R. 579, 584 (2008). 81. Edwards, 109 M.S.P.R. at 586; see also Walker, 24 AR 690-12, supra note 28, para. C-5(c). 60. Holderness v. Defense Commissary Agency, 75 M.S.P.R. at 44. 39. Miller v. Department of the Army, 121 M.S.P.R. M.S.P.R. 401 (1997). 82. Bruner v. Office of Personnel Management, 996 189 (2014); 29 C.F.R. 1614.203(a)(10) (referring to the 61. 5 C.F.R. § 630.401(a) (2020). definition of undue hardship in 29 C.F.R. § 1630.2(p)); F.2d 290, 294 (Fed. Cir. 1993); see also McDonald v. AR 690-12, supra note 28, app. C para. C-7, fig. C-3. 62. Young v. United States Postal Service, 79 M.S.P.R. Office of Personnel Management, 50 M.S.P.R. 164, 25, 38-39 (1998). 169 (1991). 40. 29 C.F.R. § 1614.203(d)(3)(i)(H) (2020); 29 C.F.R. § 1630.2(o)(3) (2020); AR 690-12, supra note 28, fig. C-4 63. Cook v. Department of the Army, 18 M.S.P.R. 83. Bruner, 996 F.2d at 294; see also McDonald, 50 (providing a template for the interactive process). 610 (1984); see also McCauley v. Department of the M.S.P.R. at 169. Interior, 116 M.S.P.R. 484, 489-90 (2011) (expressly 84. Supra note 83. 41. AR 690-12, supra note 28, fig. C-5–C-6 (provid- including all types of approved leave in the Cook anal- ing a format for documenting the decision-maker’s ysis for excessive absence charges); Fox v. Department decision process). of the Army, 120 M.S.P.R. 529 (2014). Also note, in 42. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); AR the event of unapproved absence, the appropriate 690-12, supra note 28, app. C, para. C-3(d). charge would be absence without leave (AWOL). 5 C.F.R. § 630.1208(i)(1) (2020). 43. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C); AR 690-12, supra note 28, app. C, para. C-3(d). 64. Cook, 18 M.S.P.R. at 611-12; see also Combs v. Social Security Administration, 91 M.S.P.R. 148, 154 44. Marshall-Carter v. Department of Veterans Affairs, (2002); Gaskins v. Department of the Air Force, 36 94 M.S.P.R. 518, 523-24 (2003). M.S.P.R. 331, 334 (1988). 45. 29 C.F.R. § 1614.203(d)(3)(i)(A) (2020); AR 690- 65. Cook, 18 M.S.P.R. at 611-12; see also Combs, 91 12, supra note 28, app. C, para. C-1(d); Petitioner v. M.S.P.R. at 154; Gaskins, 36 M.S.P.R. at 334. Johnson, 2014 EEOPUB LEXIS 1810, 115 FEOR (LRP) 22, EEOC (IHS) 320110053 (E.E.O.C. July 10, 2014) (finding that attendance is not an essential function

2020 • Issue 1 • Army Lawyer 91 92 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 93 94 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 95 96 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 97 98 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 99 100 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 101 102 Army Lawyer • Issue 1 • 2020 2020 • Issue 1 • Army Lawyer 103 104 Army Lawyer • Issue 1 • 2020 Members of the 82d Airborne Division’ s OSJA at Fort Bragg give the thumbs up to the jumpmaster shortly before jumping from a helicopter during an airborne operation. (Credit: Justin Case Konder) rience to respond to the union’s burdensome demands for “class action” type litigation without the procedural protections provided in class actions. Despite this, many Army labor counselors heroically staved off FLSA multi-million dollar settlements. This was the context for the formation of the Office of The Judge Advocate Gen- eral’s (OTJAG) Fair Labor Standards Act Team (FLSA Team). Reporting to OTJAG’s Director of Civilian Personnel, Labor and Employment Law, the FLSA Team consists (Credit: istockphoto.com/Good_Stock) of five attorneys whose full-time practice is to defend the Army against FLSA group grievances. Operating as a force multiplier, the FLSA Team works closely with the OSJA and the installation labor counselors Closing Argument to defend FLSA actions. FLSA Overtime Requirements The FLSA’s overtime provisions presump- tively apply to all employees in the United The FLSA Team Is Working States, unless those employees are exempt under either the FLSA itself or another statute.2 Employees who are not covered by the By Riva Parker FLSA are designated “FLSA Exempt.”3 This exemption status has no relation to their membership in the union, so an employee may be nonexempt, i.e., covered by the Since 2007, Army installations have documentation purportedly in support of the FLSA, but not in the union, and exempt found themselves on the receiving end grievance, and demand production of time employees may also be BUEs. Most federal of Fair Labor Standards Act (FLSA) cards, evaluations, leave records, time and employees are covered either by Title 5, “group grievances” filed by the same small attendance records, travel records, etc.—for United States Code (U.S.C.), or the FLSA’s law firm in Baltimore, Maryland. The FLSA all bargaining unit employees (BUEs) on overtime provisions. provides minimum standards for wage and the installation, usually for the past six or There are two key differences between compensation, including overtime compen- seven years, or more. The number of BUEs Title 5, U.S.C., and the FLSA that drive sation, for employees in the United States.1 on installations often exceeds 1,500, making these boilerplate grievance claims: first, These grievances—which are identical in all complying with the RFI astronomically the FLSA entitles a nonexempt employ- substantive respects, regardless of installa- burdensome. The law firm uses this burden ee to overtime at one-and-a-half times tion or Army activity where filed—allege to try to extract very large settlements, often their hourly rate of pay for all overtime that the Army incorrectly designated bar- in the $40–80 million range. worked,4 including “suffered or permitted gaining unit employees (BUEs) as exempt The Army was more vulnerable to this overtime” (SPOT)—namely, the time an from the FLSA’s overtime provisions and approach than the other services. Unlike employee works before or after their tour failed to properly compensate employees the Air Force or Navy, the Army’s labor of duty, and/or during an unpaid lunch, for overtime worked. defensive function is decentralized, with when supervisors know about it and do These grievances do so without assert- most installations serviced by a single labor not prevent it.5 Moreover, a nonexempt ing a single fact—not one employee named as counselor (or, rarely, two) in the consoli- employee is entitled to overtime pay unless incorrectly exempted or paid under FLSA— dated legal office. Although the union had they request—and the agency is willing and are usually immediately preceded or the benefit of the same attorneys working to offer—compensatory time-off on an followed by a Request for Information (RFI), and refining arguments in their legal briefs, hour-for-hour basis.6 By contrast, an ex- a statutory mechanism for obtaining infor- the Army’s labor counselors were almost empt employee who is covered by Title 5, mation that allows unions to obtain informa- always new to the FLSA, responsible for a U.S.C., is only entitled to compensation for tion from agencies upon showing of a partic- caseload of over sixty-plus matters (including overtime officially ordered and approved, ularized need. These RFIs—usually exceeding quick-paced litigation before administrative in writing, in advance, and the agency may twenty pages in length—demand extensive boards), and had neither the time nor expe- elect to compensate with overtime pay or

106 Army Lawyer • Closing Argument • Issue 1 • 2020 compensatory time off.7 Further, as a prac- ing unit designated as FLSA-exempt was or labor counselors should contact OT- tical matter, the overtime hourly rate of pay properly designated, or else flip those em- JAG Labor and Employment Division and for exempt employees is usually the same as ployees to FLSA nonexempt and pay them forward a copy of the grievance or RFI, as their regular hourly rate of pay.8 back pay. In other words, the union seeks to well as the collective bargaining agreement. Initially applicable to the private sector shift the burden of proof of its exemption However, although better outcomes result only, the FLSA entitles nonexempt employ- claim to the agency, relying on the Office from the earliest engagement, the FLSA ees who work more than forty hours a week of Personnel Management regulations that Team is willing to enter an appearance at to overtime pay at its higher rate, and pro- guide exemption determinations. Howev- any stage. Although the FLSA Team utilizes vides a cause of action when employers fail er, exemption status is not an affirmative a collaborative approach with local attor- to compensate appropriately for overtime claim. In other words, the FLSA does not neys, the FLSA Team’s subject matter exper- worked.9 However, the FLSA itself prohibits entitle anyone to be correctly designated tise and experience with opposing counsel amorphous “class grievances” by requiring as falling under its overtime provisions. typically results in the FLSA Team attorneys individual employees opt into any grievance Rather, the FLSA is a pay statute. Em- assuming first chair responsibilities in the brought on their behalf.10 Congress express- ployees are entitled to FLSA overtime pay litigation and drafting of pleadings. ly added this provision shortly after first unless it can be shown that FLSA does not enacting the statute, specifically to curtail apply. Stated differently, exemption status Conclusion group grievances unions immediately started is an affirmative defense, not an affirmative Anytime a FLSA issue arises, the FLSA bringing on behalf of unwitting and perhaps claim. The agency choses whether to assert Team is ready and able to help address the unwilling bargaining unit employees.11 it, and makes this determination only when issue. The FLSA Team has attorneys with These legislative kinks were worked the affirmative defense applies to any of the a wealth of knowledge prepared to go to out long before Congress extended the affirmative claims brought by the union. battle with anyone who files any grievance. FLSA to cover nonexempt employees in Using these arguments, the agency has The FLSA Team has been getting strong the federal sector, so perhaps it shouldn’t successfully shifted the burden back to the results for the Army and hopes to continue be surprising that this early history has union to prove its claims. Inevitably, when that trend. TAL been forgotten—or perhaps ignored—in the that happens, the union’s ability to find wit- current world of federal labor arbitration. nesses to testify to rampant agency “wage Ms. Riva Parker served as the Chief, Labor What is clear is that some arbitrators—per- theft” is limited. Having brought a claim on Counselor and Litigation Branch and FLSA haps driven by union brazenness and secure behalf of hundreds and sometimes over a Team, Office of The Judge Advocate General, in the knowledge that arbitrator orders are thousand bargaining unit employees, the Washington, D.C. rarely overturned on review—permit these union can typically muster witnesses (with group grievances to proceed to arbitration dubious claims) in the single digits. instead of dismissing the grievance as not Despite its relatively short existence, Notes arbitrable, as the agency always requests. the FLSA Team is already delivering results 1. Wages and the Fair Labor Standards Act, U.S. DEP’T OF LABOR, https://www.dol.gov/agencies/whd/flsa (last Once these grievances proceed to arbi- for the Army. The FLSA Team secured the visited Jan. 22, 2020). tration, the allegations are so unspecific and first arbitration award in an Army FLSA 2. Title 38’s more generous overtime provisions pre- the claims so unwieldy that the arbitration boilerplate grievance. The award resulted in empt Fair Labor Standards Act (FLSA) for employees proceedings themselves seem interminable. the dismissal of the grievance without award paid under Title 38. The Army is currently defending grievances of attorneys fees, and thus constitutes a total 3. 29 U.S.C. § 213 (2020). at over sixteen installations. Several of these victory for the Army. Other grievances are 4. 29 U.S.C. § 207 (2020). were filed as early as 2007. The number of on going, but notably, where previously the 5. 29 C.F.R. § 785.11 (2020). grievances exceed three dozen. Only one has Army drew three new boilerplate grievances 6. 5 C.F.R. § 551.531 (2020). concluded by final award of the arbitrator, annually, no new boilerplate FLSA grievanc- 7. If the employee is covered by overtime provisions and that one resulted in a victory for the es have been filed against an Army activity in another statute, for example, Title 38, different Army on all counts. The others, many into since the Team’s formation in 2017. requirements may apply to overtime entitlements. their second decade now, remain ongoing. 8. Title 5 does require that employees be paid the These proceedings appear interminable greater of their hourly rate of pay or one-and-a-half How the FLSA Team Works times the hourly rate of a GS-10 Step 1. However, as a because the union, having been permitted Legal offices under the qualifying authority practical matter, most positions that are designated as to bring its boilerplate grievance on behalf of The Judge Advocate General are required FLSA-exempt are graded GS-13 or higher, so usually an exempt employee’s overtime rate of pay is the same of “all bargaining unit employees,” and to engage the FLSA Team when an FLSA as their regular rate of pay. without alleging a single fact or naming issue arises, and Army Material Command 9. 29 U.S.C. § 201 (2020). a single employee, then sits back and de- and Corps of Engineers legal offices are in- 10. 29 U.S.C. § 216(b) (2020). mands that the agency defend itself against vited to do so as well. The optimal approach 11. See Arrington v. National Broad Co., 531 F. Supp. unknown claims. It does so by improperly is to engage the FLSA Team at the earliest 498, 500-01 (D.D.C. 1982); see also Cameron-Grant v. claiming that the agency is required to stage possible—typically, at receipt of a Maxim Healthcare Services, 347 F.3d 1240, 1248 (11th prove that every employee in the bargain- grievance or RFI. Staff Judge Advocates and/ Cir. 2003).

2020 • Issue 1 • Closing Argument • Army Lawyer 107 Judge advocate MAJ John Policastro points to a Named Area of Interest on a map board during a training exercise in Grafenwoehr, Germany, last fall. (Credit: Stefan Hobmaier/AP) Soldiers participating in an airborne operation at Fort Bragg, including members of the 82d Airborne Division’ s OSJA, head toward a helicopter. (Credit: Justin Kase Conder/AP) The Army Lawyer is actively seeking article ideas, submissions, and photos.

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