Generals and Flag Officers: Senior Military Officer Confirmations

Order Code RS21714

January 20, 2004

CRS Report for Congress

Received through the CRS Web

Generals and Flag Officers: Senior Military

Officer Confirmations

nae redacted

National Defense Fellow

Foreign Affairs, Defense, and Trade Division

Summary

This report describes the Department of Defense (DOD) process which discloses

to the Senate adverse information about senior military officers awaiting confirmation

of a General or Flag Officer (GFO) personnel action, such as a promotion or

appointment. It also describes the DOD mechanism used to investigate administrative

or criminal misconduct of Generals and Flag Officers (Admirals). Finally, the report

analyzes trends in the way the Senate scrutinizes senior military leaders during the

confirmation process, especially if these leaders failed to promote a proper leadership

climate in the organizations they commanded. This report will be updated, as needed.1

Senate Confirmation of Senior Military Officers

The role of the Senate in confirming senior military officer promotions and

appointments stems directly from the U.S. Constitution. Article II, Section 2 of the U.S.

Constitution states that the President “shall nominate, and by and with the Advice and

Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Counsels,

Judges of the Supreme Court, and all Other Officers of the United States, whose

appointments are not herein otherwise provided for, and which shall be established by

law.” Generals and Flag Officers (Admirals), fall into the category of “all Other Officers

of the United States” and require Senate confirmation. Other military officers also require

Senate confirmation, but this report, will focus on the process for the military’s highest

ranking leaders — one-star through four-star officers.2

1

This report was prepared under the supervision of Edward Bruner, CRS Foreign Affairs,

Defense, and Trade Division.

2

General Officers are the highest ranking military leaders in the Army, Air Force, and Marine

Corps. The Navy’s highest ranking military leaders are called Flag Officers.

Congressional Research Service ˜ The Library of Congress

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Since the early 1990s, the Senate has become increasingly vigilant in examining

senior military officer misconduct and ensuring that the nominees they confirm meet the

highest standard of accountability. During the mid-1990s, numerous hearings and debates

ensued about the suitability for promotion of many senior military officers. A heightening

of Senate scrutiny can be traced to notable confirmation cases which included the

following: In 1992, the Senate Armed Services Committee (SASC) vote to not award

Thomas J. Hickey the retirement rank of Air Force Lieutenant General due to his failure

to implement key directives to solidify the integrity of the Air Force promotion selection

process;3 in 1994, the debate over the retirement grade of Air Force Lieutenant General

Buster C. Glosson, who was accused of improperly attempting to prejudice a promotion

board;4 and in 1994, the controversy over the retirement rank of Navy Admiral Frank B.

Kelso II, because of his alleged responsibility for the Tailhook Convention scandal5 in

1991 and a perceived lack of effort to integrate women into the Navy.6

Today, Senate scrutiny of the leadership accountability of senior military officers

remains vigorous. During the March 2003 hearings regarding the sexual assault scandal

at the U.S. Air Force Academy, Senator John W. Warner noted that the situation

“demand(s) a deliberate critical examination and appropriate measure of accountability

when a command fails in some key aspect of its mission, particularly when personnel

charged to a commander’s care have been harmed”.7 This comment and other similar

statements made by Senators may be a signal that a new standard of accountability may

continue to take shape in the Senate in the coming years. The key to this new standard

may be the striking of a balance between congressional oversight, the Senate role to

“advise and consent,” and DOD transparency in disclosing senior military officer adverse

information during the confirmation process.

DOD Policy and Terms

During the confirmation process, it is DOD policy to inform the President and the

SASC of adverse information concerning the nominated senior military officers.

Personnel actions involving General and Flag Officers that require Senate confirmation

include nominations, appointments, reappointments, extensions, assignments,

reassignments, promotions, and retirements. DOD Instruction 1320.4 describes the

procedures used to process these personnel actions. To comprehend these procedures, it

may help to understand two terms defined by the instruction:

Adverse Information: Any substantiated adverse finding or conclusion from an

officially documented investigation or inquiry.

3

West, Joe. “Hickey is Denied 3rd Star,” Air Force Times, October 19, 1992, p. 6.

4

Towell, Pat; “Air Force Generals Promoted Despite Flak From Senator,” Congressional

Quarterly Weekly Report, October 15, 1994, p 2968.

5

The 1991 Tailhook Convention scandal in Nevada begot a string of investigations after

numerous allegations of “lewd and crude” conduct by Navy military aviators were reported.

6

7

Pexton, Patrick, Four Stars for Adm. Kelso, Navy Times, May 2, 1994, p 3.

US Newswire, Washington, Senate Armed Services Committee Poised to Act on Nomination of

Major General Robert T. Clark, May 13, 2003.

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Alleged Adverse Information: Any allegation of conflict of interest, failure to

adhere to required standards of conduct, abuse of authority, misconduct or information

serving as the basis for an incomplete or unresolved official investigation or inquiry

into a possible conflict of interest or failure to adhere to standards of conduct or

misconduct.

It is also helpful to understand the difference between promotions and appointments.

In general, military officers are selected for promotion to one- or two-star rank by a

centralized ad hoc selection board of general/flag officers. Candidates for three- and fourstar appointments are not considered by a centralized board, but instead nominated by a

Service Secretary through the Secretary of Defense. For reappointments to another threeor four-star position, the Senate is required to reconfirm the personnel action, even if no

promotion is involved. According to Title 10, Section 1370 of the United States Code,

GFO retirements must also be individually confirmed by the Senate.

Consideration of Adverse Information

DOD Instruction 1320.4 identifies how adverse information is considered by board

members during one- and two-star centralized promotion boards. Section 615, Title 10,

U.S. Code, Armed Forces, closely governs the procedures used by the military to consider

adverse information during the promotion process by giving specific guidance on the type

of information that may be furnished to board members. Specifically, information about

a particular officer may be furnished to a selection board only if the information exists in

official military records (personnel folders, investigative records, etc.). Additionally, it

must be determined by a Service Secretary to be “substantiated, relevant information” that

could “reasonably and materially affect the deliberations” of the selection board. The law

also mandates that before adverse information about an officer is furnished to a board, the

information must be made available to the officer and that the officer must be given a

reasonable opportunity to submit comments to the board.

The DOD instruction also directs that for all GFO promotions and appointments, the

Service Secretary review all official DOD investigation records to confirm that each

candidate meets prescribed standards of conduct. This internal review is usually led by

the General Counsel of the respective military department. Records reviewed by each

service include files from the Inspector General, military criminal investigation units, and

Equal Employment Opportunity (EEO) organizations. For promotions to one-star, a

Service Secretary directs a review of all adverse information covering the last 10 years

of an officer’s career to identify negative trends. For two-, three- and four-star personnel

actions, the review includes any new adverse information since the individual’s last

Senate confirmation. Once the review is completed, the Service Secretary considers the

adverse information, if any, and decides if he or she will support the nomination. If so,

the Secretary will forward a nomination package identifying the proposed promotion or

appointment to the Secretary of Defense through the Assistant Secretary of Defense/Force

Management Policy (ASD/FMP).

Nomination Package Certification

According to DODI 1320.4, if the Secretary of Defense supports a senior military

officer nomination submitted by a Service Secretary and if no adverse information exists

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on the nominee, the Secretary of Defense will endorse the nomination package and

forward it to the President with the following certification:

All systems of records, to include EEO files and the Public Disclosure Report (for

one-star nominations only), maintained in the DOD that pertain to this officer have

been examined. The files contain no adverse information about this officer since his

last Senate confirmation. Further, to the best of my knowledge, there is no planned

or ongoing investigation or inquiry into matters that constitute alleged adverse

information on the part of this officer.

If the Secretary of Defense supports the nomination, but adverse information exists, the

Secretary identifies the information in a separate summary included with the nomination

package submitted to the President. The summary outlines the adverse information,

identifies the investigative agency, discloses findings, describes corrective actions taken,

and explains why DOD leaders continue to support the nomination.

Reporting Adverse Information to the Senate

Forty-eight hours after the President signs a nomination list, the White House Clerk

will forward the list to the Senate Clerk. DOD Public Affairs will announce a Presidential

nomination as soon as possible after Presidential signature and military department

coordination. After a nomination reaches the Senate, ASD(FMP) is the primary DOD

conduit to discuss adverse information or alleged adverse information with SASC

members or staff. But, this does not prohibit the military services from communicating

directly with the SASC, or other Senators or staff, about a nomination. If a nomination

package signed by the President contains adverse information, ASD(FMP) will send a

letter to the Chairman of the SASC, advising him of the information. Normally, DOD

will not report alleged adverse information or other unsubstantiated allegations to the

Senate. However, in extraordinary cases involving an allegation, which is receiving

significant media attention or when the SASC brings an allegation to the attention of

DOD, a summary of the unsubstantiated allegation is provided.

ASD(FMP) also monitors the names on a nomination list to determine if new adverse

information exists. ASD(FMP) initiates monthly checks with each service and DOD IG

on all nominations that have been received by the Senate, but have not yet been

confirmed. If, after a nomination reaches the Senate, and adverse information or alleged

adverse information is identified by DOD, the cognizant military department will notify

ASD(FMP) within 5 business days. ASD(FMP) will advise the SASC of the information

and will request that the nomination be held in abeyance until the matter is resolved.

When the investigation or inquiry is completed on an officer whose nomination is on hold

at the SASC, and the allegation is substantiated, the respective Service Secretary and the

Secretary of Defense will decide if they still support the nomination. If support continues,

then the nomination package will be resubmitted for re-approval by the President. If the

President also continues to support the nomination, then ASD(FMP) will advise the

SASC to proceed with the confirmation process. If, on the other hand, based on the new

adverse information, the DOD administration does not support the nomination, the

Secretary of Defense will submit a new nomination package through ASD(FMP),

requesting that the President withdraw the nomination from the SASC. In instances

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where the allegation is unsubstantiated, the ASD(FMP) will advise the SASC of the

outcome of the investigation or inquiry and request that the nomination process proceed.8

DOD Investigations and Management of Adverse Information

DOD’s primary investigative mechanism is the Inspector General (IG). Allegations

of administrative misconduct are investigated separately from allegations of criminal

misconduct. Investigations of criminal misconduct are conducted by law enforcement

agencies within each service Inspector General office. Criminal misconduct includes, but

is not limited to, procurement fraud, computer crimes, bribery and kickbacks, financial

crimes, government purchase card crimes, medical fraud, environmental crimes, and theft.

There are four Defense Criminal Investigative Organizations (DCIOs) within DOD: The

Defense Criminal Investigative Service (DCIS); US Army Criminal Investigation

Command (USACIDC); The Naval Criminal Investigative Service (NCIS); and the Air

Force Office of Special Investigations (AFOSI).9

Conversely, administrative misconduct is investigated by an inquiry directorate

within the respective service. Examples of administrative misconduct include sexual

harassment, improper relationships, abuse of authority, favoritism, and misuse of

government property. According to the DOD IG Semiannual Report to Congress, AprilSeptember 2003, on September 30, 2003, there were 275 ongoing DOD senior officer

investigations (included civilian leaders). During that six-month period, DOD reported

that it closed 221 senior official cases, of which 32 (14%) identified misconduct to

include: Misuse of government property and resources — 35%, abuse of authority and

favoritism — 35%, improper personnel action — 16%, sexual harassment and improper

relationship — 7%, and other misconduct — 7%.

Future Direction of Senior Military Officer Confirmations

Some analysts believe senior military officer confirmations will likely continue to

receive increased scrutiny by some Members of Congress. Recent hearings and

statements suggest a concern in the Senate about the accountability of senior military

officers who failed to promote a proper leadership climate in the organizations they

commanded. An example is the scrutiny by Senators of the controversial circumstances

surrounding the nomination of Major General Robert Clark to a three-star Army position.

In 1991, he came under criticism because a soldier thought to be a homosexual was killed

at Fort Campbell, Kentucky, during Clark’s command. Although an Army investigation

cleared Clark of tolerating anti-gay attitudes on the post, critics alleged that while he was

in charge of Fort Campbell, he permitted an atmosphere of harassment. In a press release

referencing this case, Senator Edward M. Kennedy stated: “We need to hold senior

commanders accountable if they allow a climate of bigotry, intimidation and fear to exist

8

Department of Defense Instruction, Number 1320.4, Military Officer Actions Requiring

Approval of the Secretary of Defense of the President, or Confirmation by the Senate, pp. 4-10.

9

Inspector General of the Department of Defense Semiannual Report to the Congress, April 1,

2003 - September 30, 2003, pp.1-10.

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on our nation’s military bases”.10 Other recent misconduct cases including the 2003 Air

Force Academy sexual assault investigations, also hint that the Senate may be poised to

increase the scrutiny of senior military officer accountability during confirmation. The

transparency of DOD investigations may continue to be key in this process.

DOD asserts that its investigative mechanism is objective, independent, and

promotes confidence in its ability to “police its own.” In the September 2003 Semiannual

Report to Congress, Joseph E. Schmitz, Inspector General of the Department of Defense,

states: “The trust of the American public in their government requires confidence that the

institutions of their government are acting in their interest...For 25 years, Inspectors

General have sought to promote integrity, efficiency, and effectiveness in the programs

and operations of government.” This analysis has identified that the DOD disclosure

process appears mostly transparent and well defined. If improvements are required or

desired, they are administrative in nature. For example, the DOD 10-year “look-back”

may require refinement since the scope of the policy may actually be shorter than

intended. As previously discussed, the disclosure of adverse information related to onestar nominations involves a review of files ten years back. A problem may stem from

current DOD records disposition schedules, in which some services purge IG

investigation reports dealing with administrative misconduct after two years (excludes

criminal investigation files).11 The investigation reports involving the administrative

misconduct are held for ten years only if it involves a senior military officer. As result,

a complete ten-year record of past investigations may not be available when compiling

a disclosure for the Senate.12

Another weakness may exist in the DOD practice of disclosing only new adverse

information since the last Senate confirmation of a senior military officer. This practice

may make it difficult for the Senate to identify misconduct trends or note command

climate issues. Additionally, DOD generally does not disclose unsubstantiated

allegations unless the Secretary of Defense deems it relevant to the deliberations. This

practice may prevent the Senate from getting a full disclosure of multiple unsubstantiated

allegations and hinder Members from identifying possible negative trends. If the

disclosure of adverse trends in the organizational climate of military bases and posts

becomes more critical during the Senate confirmation process, the DOD IG Semiannual

Report to the Congress is one possible tool that may facilitate transparency into any

developing trends. The report currently provides meaningful statistical information

concerning senior official inquiries, but may need to present a more rigorous analysis of

any developing trends in command climate investigations. The addition of such an

analysis to the report may allow Members to conduct confirmation and oversight

functions more effectively.

10

Statement release from The Office of Senator Edward M. Kennedy on the Nomination of Major

General Robert Clark, October 23, 2003, Contract: David Smith, /redacted/.

11

12

Air Force Manual 37-139, Records Disposition Schedule, March 1, 1996, Table 90-1, p 680.

It is import to note, that all IG investigative reports are at some point destroyed in accordance

with the schedules approved by the National Archives and Records Administration; however, the

general details of the adverse information contained in those records will likely be reflected in

the affected officer’s permanent performance record and thus available for consideration by

promotion boards when considering the individual for promotion. In this manner, an officer

remains accountable for misconduct throughout his entire career.

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