The National Defense Authorization Act (NDAA) made its way through the Senate this week. Among the many amendments that passed muster is one requiring harsher career penalties for general officers and senior civilians convicted of sexual assault or other serious crimes.
The 2019 NDAA conference report summary notes the bill:
Requires the Secretary of Defense to conduct a security clearance background reinvestigation under expedited procedures for flag officers and Senior Executive Service personnel employed by the Department of Defense convicted of sexual assault, sexual harassment, fraud against the United States, or other serious crimes. The provision also ensures the conviction or determination is reported into federal law enforcement records and security clearance databases.
The amendment was proposed by Rep. Jackie Speier (D-Calif.), a member of the House Armed Services Committee.
“For too long, lax punishment of senior military officers has let these violators get off easy and failed to deter other transgressions,” Speier said. “The security clearances that retired military officers hold even after they retire is worth its weight in gold. Those who have been found to commit crimes should not retain those clearances. Increasing the likelihood misconduct committers lose their clearances is an important step in the right direction.”
USA TODAY reported that between 2015 and 2017, just one general officer had his security clearance revoked after being issued a letter of reprimand. The one officer who had his security clearance revoked was a general who was demoted after an extramarital affair and swinger’s lifestyle was brought to light.
What is a Letter of Reprimand?
A letter of reprimand (LOR) has often been referred to as an administrative ‘chewing out’ given to an enlisted service member or officer. The scope of the letter varies based on the level of command issuing it, as well as the way the letter is filed. A letter may be kept locally within a command structure or submitted into an Official Military Personnel File. A LOR in a permanent file can be a career killer, preventing promotion and forcing someone out of the military.
A LOR is non-punitive, meaning the incident generally doesn’t rise to the level necessitating Uniform Code of Military Justice (UCMJ) action. An example would be a soldier repeatedly showing up late to work. A general officer receiving a LOR probably isn’t showing up late for work, but his conduct likely reflects a lack of professionalism or good judgment commensurate to rank – this could be an inappropriate relationship with a subordinate, a poor choice in official conduct, or a lapse in professionalism that is significant enough to require peer review, but minor enough to fall below the bar of punitive correction. While the USA TODAY piece highlights the number of generals leaving military service with non-punitive charges, it’s unclear how many (if any) of those individuals faced UCMJ charges, as well.
Sexual Behavior and Security Clearances
The reality is sexual misconduct still plays a very small role in security clearance denials – there were just seven instances of sexual behavior being used in a security clearance denial in 2017. The greater issue for general officers and senior executives leaving the DoD with a LOR would be issues of personal conduct – the ‘catch all’ adjudicative criteria used to flag everything from lying on the SF-86 to a ‘pattern of lying or rule breaking activity.’
The requirement for a supplemental reinvestigation for senior officials departing with UCMJ records makes sense. But it’s one that may prove erroneous if DoD officials move forward with continuous evaluation (CE) over periodic reinvestigations. Ultimate plans for CE implementation include reducing the need for PRs at all. The greater question may be how UCMJ records are currently processed in security clearance investigations, and how to ensure those records are fed into the CE system of record. One benefit of the DoD takeover of the entire investigations program is that it has oversight over both systems. There’s no arguing the government needs to know everything it can about misconduct allegations against those with access to classified information. What remains to be seen is what actions will be taken to ensure those records communicate with each other.
