Top Ten Problems with the National Guard Recruiting Assistance Program (G-RAP) Investigations

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Guest post submitted by:

Doug O’Connell
O’Connell & Associates, PLLC Doug@DougOConnell.com

Attorney Doug O’Connell has represented former Recruiting Assistants for the past two years in both criminal and civil matters. A former state and federal prosecutor, Doug is also a Special Forces Colonel in the Texas Army National Guard. In addition to his own practice, Doug is Of Counsel to Fluet, Huber + Hoang law firm.

The G-RAP accusations and investigations have now lingered for over five years. At least 90,430 (1) National Guard Soldiers (88% of all G-RAP participants) have been subjected to investigations as part of a massive dragnet to recover bonuses (2). 125 Soldiers have been prosecuted in Federal or State Courts; at least 2633 Soldiers remain under investigation (3). While a handful of unscrupulous participants took advantage of the ever-changing rules of this contractor-run program, those cases were adjudicated years ago. What the Army CID is now doing is nothing more than pursuing anyone whose G-RAP tenure spanned the years with the most rules’ changes in an effort to prove up the Army’s exaggerated fraud estimate.

It’s hard to pick the Top 10 issues with G-RAP. The items below represent issues apparent in almost every case. This list omits, but hardly overlooks, such things as inappropriate command pressure to participate in G-RAP, forcing accused Soldiers to undergo DNA collection (4), active surveillance of National Guard Soldiers by Army CID (5), coercion to make reimbursements to the Army (6) in lieu of punishment and other notable violations of Soldier’s rights.

1 Letter to Representative Mike Coffman from Daniel M. Quinn, Chief of Staff, USACIC.
2 The U.S. Army and U.S. Department of Justice consistently refers to G-RAP payments as bonuses in sworn testimony, official documents and court filings. The payments were paid by a contractor directly to the Soldier and IRS form 1099 was issued to every participant. Payments were not processed by DFAS and did not appear on a LES. Finally, Congress did not authorize a bonus related to this program. Nevertheless, Government officials consistently refer to G-RAP payments as bonuses, perhaps wishing it were true so that legal recoupment would be possible.
3 Per letter to Rep Coffman.
4 Collected by a cheek swab without a warrant in violation of the 4th Amendment.
5 Related to an allegation of fraud which if true occurred years prior.
6 Possibly an illegal augmentation of appropriations in violation of the Miscellaneous Receipts statute, 31 USC §3302.

1. GUILT BY ALGORITHM.

Auditors, instead of seasoned law enforcement professionals, launched the G-RAP investigations. Rather than using any type of proper legal standard like probable cause, the Army Audit Agency assembled lists of Soldiers branded “high risk” by the auditors. The definition for “High Risk” was listed as “an inability to follow the rules.” Because the rules changed 60 times in seven years, almost everyone who successfully participated in G-RAP became a target. Soldiers connected to the “high risk” Soldiers were in turn investigated. This self-perpetuating, system of guilt by association crushes any notion of justice and the rule of law. Years later, many of these Soldiers still are under the cloud of a CID investigation and are being forced to defend (at great financial and emotional cost) their names and careers.

2. COMPULSORY INTERROGATIONS.

Federal CID agents lack any authority to compel National Guard Soldiers (or veterans) to submit to interrogations. Unfortunately, neither CID nor most Guard Soldiers and veterans understand that they cannot be forced to appear or answer questions from Army-dispatched agents. CID agents repeatedly violate this bright line legal standard. Worse yet, some Guard Commanders aren’t sufficiently knowledgeable about the law to protect their Soldiers. Once confronted with apparent military authority, many individuals, honestly believing they did nothing wrong, provide answers, later cherry picked and twisted to supposedly show guilt. The unfortunate individual is left having to prove he or she didn’t say something or that the statement was taken out of context.

3. INVESTIGATORS WITH A PERSONAL FINANCIAL INCENTIVE.

The CID Investigators pursuing G-RAP allegations include Army Reserve CID Agents voluntarily on active duty orders. At a minimum, the perception exists that the Reserve Agents have a financial incentive to perpetuate the investigations. The longer the investigations continue, the longer these agents remain employed. Further compounding this problem is the very logical assumption that few agents would volunteer for active duty if it meant a pay cut from their civilian employment.

4. VIOLATIONS OF THE POSSE COMITATUS ACT.

National Guard Soldiers not mobilized into federal service, are like any other civilian citizen under the law. The Posse Comitatus Act prohibits federal military personnel from investigating and enforcing the law. Yet, that is exactly what is happening. The PCA is a federal criminal offense punishable by a term in prison. In the G-RAP investigations, federal military agents are investigating allegations of criminal violations by Guard Soldiers, who are the same as civilians under the law (7). This is a clear violation of the PCA. Unfortunately, this flawed law requires the same prosecutors who are prosecuting Soldiers to levy charges against the same agents investigating the cases they prosecute.

7 See Perprich vs. Department of Defense, 496 U.S. 334 (1990).

5. TRAMPLING THE STATUTE OF LIMITATIONS.

In our system of justice, a statue of limitations exists to limit the Government’s ability to bring charges so remote that the defendant can’t reasonably mount an effective defense. In G-RAP cases, the Government is circumventing the statue of limitations with a World War II era tolling statute. Most applicable criminal offenses have a 5 year statute of limitations. Since G-RAP ended in 2012 the statute of limitations has long expired in most cases. However, in G-RAP investigations and prosecutions the Government is relying on the Wartime Suspension of Limitations Act (8) to continue to bring criminal cases. First enacted in 1948, the WSLA is designed to protect the Country from fraud during times of war. This law likely made sense during World War II, the Korea and Vietnam conflicts. However, the nature of warfare has changed. The current war against terrorism and global extremist groups will continue indefinitely. Relying on the outdated WSLA during today’s conflicts effectively terminates the deeply rooted equitable concept of a statue of limitations.

8 18 USC §3287

6. SPENDING $40 MILLION -TO COLLECT $3 MILLION.

Our Government has spent at least an estimated $40 million dollars (9) to investigate Soldiers. The ensuing recoupment actions and prosecutions have recovered, at most $3 million dollars (10). Army CID agents have repeatedly conducted full field investigations to determine if a Soldier’s single $2,000.00 bonus was righteous (11). In an era of constrained defense spending with persistent and emerging global terrorist threats, this massive boondoggle sets a new record for fraud, waste and abuse. The CID agents’ limited time and resources would be much better spent working to prevent the next Fort Hood terrorist attack.

9 This is a conservative estimate which includes the personnel cost associated with bringing the USAR agents onto duty status.
10 This figure is also an estimate based on all federal cases reported in the Pacer.gov system and media reports from around the country.
11 At least one National Guard officer is currently under indictment for a single G-RAP recruitment.

7. INACCURATE TESTIMONY TO CONGRESS & POLITICAL PRESSURE

The entire G-RAP controversy is based on inaccurate and irresponsible testimony to Congress. During Senate hearings chaired by Senator Claire McCaskill (12), Army General Officers testified that the total G-RAP fraud could be as high as $99 million (13). This estimate was wildly inaccurate (14). To date, the Government has only collected $3 million in fraudulent payments. Senator McCaskill immediately branded these Soldiers as criminals despite their Constitutional right to be presumed innocent (15). Many have speculated that the hearings and estimates of widespread fraud were designed to embarrass the National Guard during budget battles. Others suggest that it was an attempt to appease this powerful member of the Senate Armed Services Committee and self styled “accountability advocate.” Still others contend that the hearings were an attempt to shift focus from sexual assaults in the military. Whatever the reason, the McCaskill hearing set off a chain of events abrogating the presumption of innocence justice toward service members and veterans.

12 United States Senate Hearing: Fraud and Abuse in Army Recruiting Contracts, February 4, 2014.
13 Id.
14 It appears that this testimony has never been revised, amended or updated to correct the record.
15 Id.

8. AT LEAST 60 CHANGES TO THE “RULES.”

In the eyes of CID, violations of the program “rules,” indicates intentional fraud worthy of criminal investigation. However, the G-RAP “rules” changed at least 60 times during the life of the program (16). Understanding the “rules” of G-RAP at any given point in time requires a detailed analysis based on a significant review of multiple documents (17). In the vast majority of cases, if the Soldier violated the “rules,” it is more likely due to confusion rather than a deliberate desire to cheat the system. With unrelenting intensity, CID doesn’t investigate an alleged crime; they gather slanted “evidence” to prove that a crime was committed. CID, in fact, has been responsible for elevating an inability to follow the rules of a program run by a private contractor to the level of a crime. One example: at various times full time members of the National Guard were authorized to participate in G-RAP, at other times they were ineligible. If a Soldier entered G-RAP when full time members were allowed, but submitted data for payment months later when full time members were not allowed, that Soldier is investigated for fraud.

16 See Agent’s Investigation Report, CID Special Agent Julie Thurlow, November 22, 2013.
17 National Guard Bureau changed the rules via a contract change order sent to Docupak.

9. “SPHERE OF INFLUENCE” AND OTHER VAGUE GUIDANCE.

Soldiers participating in G-RAP received instruction to recruit from their “sphere of influence.” This term was never defined. It’s unclear if the intent of this language was to limit recruitment to pre-existing relationships. Regardless of NGB’s intent, the Soldiers received a very different message. For example, once hired by Docupak, Soldiers were provided marketing items such as t-shirts with the message “ask me about the National Guard.” None of the marketing items provided would have been necessary to recruit people already known to the Soldier. Now, these same Soldiers are investigated and some prosecuted for recruiting outside their sphere of influence. Likewise, Soldiers were told that they “shouldn’t” wear their uniform when conducting recruiting activities. If this were truly a prohibited action worthy of investigation, the “rule” would have been written as “you are prohibited from wearing your uniform.”

10. “I DON’T REMEMBER = GUILTY.”

When CID agents track down and contact recruits many years after their enlistment into the National Guard, most don’t remember the details of their interaction with the recruiting assistant. To the CID agents, this means the RA committed misconduct. The alternative explanation is unfathomable to the agents: the recruit, 7 years later, just doesn’t remember. This is especially problematic since Government prosecutors use this lack of memory to charge the Soldier with Aggravated Identity Theft (18), a charge that carries a mandatory minimum term of prison sentence of two years.

18 18 USC § 1028A.

“EXTRA CREDIT:” CID KNEW ABOUT ALLEGED FRAUD FOR FIVE YEARS BEFORE TAKING ACTION.

On May 22, 2007, five years before G-RAP was shut down, Agents from Army CID, Air Force OSI, and Defense Criminal Investigative Service (DCIS) met with Docupak to discuss potential fraud in the program (19). A representative of the United States Department of Justice (20) was also in attendance. The agents specifically instructed Docupak not to notify the State Adjutant Generals, National Guard Bureau, or the contracting officer regarding alleged fraud. This effectively cut off any ability to clarify confusing rules and or enhance fraud prevention measures. Importantly, it also prevented Governors and Adjutants General to execute their Constitutional duty of regulating their National Guard force and apply appropriate discipline (21). Likewise, notification the responsible contracting officer at NGB would have triggered remedial action. Instead, the CID sat on this information for five years, causing a relatively minor amount of confusion to escalate into what we have now – another major bonus scandal ensnaring thousands of junior Soldiers facing accusations.

19 2014 Inspector General Report, page 40, paragraph g, and footnote 142.
20 Presumably a licensed attorney.
21 The Governor’s and TAG’s Constitutional authority to regulate and discipline Guard members included the full time recruiting force in each state, some of whom were suspected of misconduct. These Soldiers operate under the exclusive military jurisdiction of the relevant State Military Code of Justice.

CONCLUSION

Few Soldiers have the financial resources to mount a proper defense to federal criminal charges. Faced with the possibility of prison time, many take a plea bargain to avoid the risk of prison, financial ruin or deepening emotional trauma to themselves and their families. Even if the accused Soldiers are not prosecuted, the collateral consequences seem never ending. The investigation will continue to haunt them for years to come. Security clearances will be revoked or suspended, and the Government will initiate proceedings to “debar” the Soldier from future employment as a government contractor. Eventually, the case file will be forwarded to the State National Guard headquarters for military justice or administrative action. The range of administrative sanctions includes separation boards, official reprimands and being required to rebut CID’s flawed conclusions to a promotion review board. The administrative flag on their personnel file will continue until all military administrative actions are complete (22). Finally, many of these same Soldiers, never prosecuted in a court of law will have a federal criminal history created as a result of being investigated, “titled” and “founded” by CID.

22 A “flag” prevents any favorable action including re-enlisting, awards, and promotions. The flag does not prevent orders to deploy overseas (again). Flags as a result of G-RAP investigations have been in place for four or more years at this point.

Violent Crime, Non Combat Death & Suicide at United States Military Bases

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*Research not complete.

My experiences as a victim of crime in the United States military inspired me to do the work I do today as a military justice policy analyst. Not only did I witness first hand how a predator operates but I witnessed multiple predator types in real time while serving my country. If these people committed these acts of crimes at work in the civilian world, they would have been in jail or I would have been rich after taking my employer to civil court. Well maybe not because the deck is stacked against the accuser but we do in fact have a civilian justice system that allows us to hold others accountable, while it simultaneously protects the due process rights of the accused. This cannot be said of the military justice system. There is no guarantee a military Commander will do anything with a crime report let alone process the felony crime effectively. We do not want a justice system where one man or woman decides whether to do nothing, give a non judicial punishment for a felony crime, or railroad the accused or accuser. We do want a justice system where we can hold our employer accountable without roadblocks from the Pentagon, Congress, and the Feres Doctrine. We cannot effectively tackle the violent crime issue in the military until the victims of crimes, like sexual assault and domestic violence, feel safe enough to report. Crime victims have expressed that they do not want to report crimes to a Commander for fear of retaliation. The Department of Defense admitted that of those of who did report the crime, 62% perceived that they faced retaliation. If service members felt safe enough to report, it could help us prevent homicide, suicide, and non combat death.

If we think about violent crime committed by military personnel compared to violent crime statistics in the United States (reference above graph), at first glance it appears the military has a homicide ‘issue’ among the ranks. Please see the below links for a sample of crime on some of the U.S. military bases. All military bases worldwide will eventually be included in this research. And the research for sexual assault, rape, domestic violence, and physical assault specifically has not been conducted yet either. Because the research is far from being complete, it is too early to make any assumptions so I will put the data in one place and let you come to your own conclusions. But if military crime mirrors civilian crime statistics, one can deduce that if the military has a lot of homicide, there is even more rape. Currently the number one concern in the military is a Commander’s ability to give a non judicial punishment for a felony crime. A Commander can bypass the courts martial process simply by punishing and/or discharging the accused with a preponderance of the evidence. This does nothing to protect our military personnel and the civilians who live near our bases in America and worldwide. Predators do not discriminate. They are just as likely to harm civilians as they are military personnel. They know their rights and they know that jurisdiction issues and lack of communication among law enforcement agencies will help prolong getting caught. We need to be one step ahead.

We can’t get real violent crime numbers for the military bases unless we include those who died of non combat deaths while they were deployed. Veterans Noonie Fortin and Ann Wright inspired me to initially look into the non combat deaths of female soldiers overseas because they observed the unusually high number of female soldiers who died of non combat deaths during the wars in Iraq and Afghanistan. Their chief concern was that although the military labels a non combat death as a suicide, there are suspicions that some female soldiers were murdered, like LaVena Johnson, Amy Tirador, and Ciara Durkin. I did the research on every single female soldier who died from non combat deaths overseas and their concerns are valid. My research on non combat deaths in Iraq alone revealed that roughly 30% of female soldiers died as a result of homicide, suicide, and other unknown causes. I am working on collecting the data for male soldiers who died from non combat related injuries in Iraq, Afghanistan, and other areas. I started with 2010 so we can get the most recent cases but I will go back to September 11, 2001 in the next phase of data collection. The first male soldier non combat death case I found in 2010 was an unsolved homicide. His name was SSG Anton Phillips and he was stabbed to death in Afghanistan. Further research in this area has uncovered that non combat deaths of male soldiers are just as prevalent.

Learn more:
The US Military Recruited Violent Felons to Support the War Efforts
Non Combat Deaths of Female Soldiers in the US Military (Afghanistan)
Non Combat Deaths of Female Soldiers in the US Military (Iraq)
Non Combat Deaths of Female Soldiers in the US Military (Other Areas)
Violent Crime, Non Combat Death & Suicide at Fort Bragg, North Carolina (US Army)
Violent Crime, Non Combat Death & Suicide at Fort Campbell, Kentucky (US Army)
Violent Crime, Non Combat Death & Suicide at Fort Carson, Colorado (US Army)
Violent Crime, Non Combat Death & Suicide at Joint Base Lewis-McChord, Washington
Violent Crime, Non Combat Death & Suicide at Joint Base San Antonio-Fort Sam Houston, Texas
Violent Crime at Fort Wainwright, Alaska (US Army)
Violent Crime at Joint Base Elmendorf-Richardson, Alaska
A List of Soldiers Targeted & Murdered for the Servicemen’s Group Life Insurance Benefits
Rep Nikki Tsongas & Rep Mike Turner Host Educational Caucus: Improving Treatment Resources for Male Survivors of Military Sexual Trauma
An Open Letter to the Senate and House of Representatives in Support of the Military Justice Improvement Act
Letter of Support for Save Our Heroes in Our Shared Quest for Military Justice Reform & Constitutional Rights

Letter of Support for Save Our Heroes in Our Shared Quest for Military Justice Reform & Constitutional Rights

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October 1, 2016

U.S. House of Representatives
United States Senate
Washington, DC

To Whom It May Concern:

This is a letter of support for Save Our Heroes. We recognized immediately that Save Our Heroes and victims of crimes both want similar changes in the military justice system. Save Our Heroes is asking for three specific legislative/policy changes to restore fundamental fairness in the military justice system:

1. Remove all Commanders authority from decision-making in the legal system.
2. The number of panel members should be increased to 12 for General Courts Martial.
3. Any conviction at Courts Martial shall require a unanimous verdict.

These requests by Save Our Heroes are similar to the overall changes that victims of crimes in the military have lobbied for, specifically that Commanders be removed from the reporting and decision-making process because of fear of bias, lack of investigative training, and the power to discharge and/or punish with the stroke of a pen. Save Our Heroes is requesting the same changes because ultimately both the victims and accused are looking for a military justice system that mirrors the civilian justice system while respecting the need of the Commanding Officer to ensure discipline is maintained within their command. We want a justice system where crimes are reported to legal authorities and not a Commander who is an authority figure with the power to impact your entire life. We want a justice system where crimes will be investigated thoroughly by unbiased military criminal investigative organizations looking for the truth. We want a justice system that provides the same constitutional rights as those provided in the civilian justice system. Save Our Heroes is specifically asking for changes that are commonplace in the civilian justice system, like a jury of twelve of our peers and a unanimous verdict. Our military deserves no less.

Victims of crimes in the military are asking for a military justice system that provides due process for the accuser and the accused. Crime victims want the ability to go to trial based on an independent prosecutor’s decision to charge because there was sufficient evidence to move forward with a case. Crime victims want those people who level false accusations, and engage in other abuses of the process, to be held accountable. While we recognize that false reports represent a small percentage of total reports (between 2-8 percent based on Bureau of Justice Statistics data), those who do falsely accuse are hurting the real victims of these crimes and should be held accountable through the same impartial military justice system. Both the accusers and the accused are asking for due process, which is best accomplished by a system that mirrors the civilian justice system. Currently, Commanders have control of the process when the accused, accuser, defense attorneys, and prosecutors should have control over the process.

Sincerely,

Jennifer Norris, Military Justice for All
Stephanie Schroeder, US Human Rights Network & UN Board Member
Brian Lewis, Men Recovering from Military Sexual Trauma

Lt Col Teresa James Shares Experience with Sexual Assault & Reprisal at DoD IG Worldwide Hotline Outreach Conference

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The Department of Defense Inspector General’s office held a Worldwide Hotline Outreach Conference today July 28, 2016. One of their keynote speakers was Lt Col Teresa James, US Army, Retired, highlighted before on this site. The DoD IG twitter feed shared excerpts from her presentation summarized below. As she spoke, I tweeted with them to bring awareness to the specifics that Lt Col James noted and why they are so important. For a complete listing of the tweets by the DoD IG, please visit their Twitter feed here.

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Hillary Clinton Picks Senator Tim Kaine, Who Has Blocked MJIA Since 2013, As VP Running Mate

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Senator Tim Kaine (D-VA)

Last night we learned that Hillary Clinton picked Senator Tim Kaine of Virginia as her Vice Presidential running mate. What is interesting about this pick is at one point in a Time magazine article in 2014, Clinton showed public support of the Military Justice Improvement Act, yet she chooses Senator Tim Kaine (D-VA) as her vice presidential running mate who has been blocking the bill since 2013. Of course Senator Angus King (I-ME) endorses this choice since he too has been blocking the due process bill sponsored by Senator Kirsten Gillibrand, Senator Susan Collins, Senator Rand Paul, Senator Ted Cruz, and many other bi-partisan Senators advocating for constitutional rights for military personnel and veterans.

“The move was surprising in that it means that if she becomes President, the normally hawkish Clinton would go against the advice of military brass and remove the cases from the chain of command. It also must have had a little bit of a silver lining dig at McCaskill, who endorsed Barack Obama over Clinton in 2008.” ~Time (2014)

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The Conspiracy Behind the G-RAP War on American Soldiers

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Guard Recruiting Assistance Program

Guest Post Submitted by Darron Smith

In a complicated, twisted tale of alleged corruption and betrayal over budgetary wars, a presumed cover-up simmers at a colossal scale between the Army and the National Guard. Soldiers are the exploited pawns in the largest politically motivated fraud investigation ever conducted by a military component against its own forces. This may sound like suspenseful fiction, but as many National Guardsmen and women can attest, this is all too real. An estimated 24,000 National Guard soldiers have been caught in the dragnet, which all stems from a successful military-enlistment recruiting program that financially compensated citizen-soldiers who aided in efforts to boost military strength. Documents and public records obtained through the Freedom of Information Act along with credible sources points to a disturbing persecution of soldiers and veterans as well as the batch processing of mass indictments.

At a time when US forces were scattered among Iraq, Kuwait and Afghanistan, the overall end strength numbers were low. Army National Guard Director, Lt. General Clyde A. Vaughn (ret), and his staff had an idea to resupply the branches with fresh bodies—make anyone a potential recruiter by offering a financial incentive of $2,000.00 for each successful enlistment. Vaughn deeply felt that a peer-enlistment program might ease the hemorrhaging of a nationwide manpower shortage. And he was correct. The program, dubbed G-RAP (Guard Recruiting Assistance Program), ran from 2005-2012 and was an enormous success, as it replenished the ranks. Other branches of the military ultimately mirrored that recruiting program, but none to the magnitude of the NGB (National Guard Bureau). And none of them received the amount of government money that the Guard received to achieve this success.

Though G-RAP stood as a great achievement in strengthening the reserve forces, by 2012, all RAPs (Recruiting Assistance Programs) were suspended indefinitely, primarily due to media publicity of widespread fraud. NGB took the most heat, consistently projected as having lost upwards of $100 million. The truth, however, has been largely obscured. After four years of costly investigations, only $2 to 3 million “has been successfully prosecuted in civil courts.” But what is more disconcerting is that NGB, routinely criticized for its lack of oversight, no longer had the supervision in their control. Based on a previously unpublished Army Inspector General Report, a closed door meeting took place in May 2007 where it was decided by an ad hoc committee comprised of representatives from Army Criminal Investigation Division (CID), Defense Criminal Investigation Service (DCIS) and the Air Force Office of Special Bureau (AFSOI) “that Docupak would turn over any suspected occurrences of fraud directly to CID,” and that NGB, specifically the State Adjutants General (TAG), would be deliberately left out of the information loop. The rationale given at the time was that the DCIS did not want interference from high-ranking Guard officials.

There is evidence, however, that some TAGs were successfully handling all reported incidents of fraud internally in their own states up until that point with detection and prevention controls. It was not until these controls were halted in the May 2007 meeting that the Guard lost the ability to monitor, discipline and correct such incidents of fraud. Perplexingly, all of this was done without the Guard’s knowledge. In a recent interview in the Washington Times, General Vaughn reported that “he was kept in the dark” about the occurrence of fraud in the field and that CID purposely did not inform him about fraud cases. “No one can correct a problem if you do not know it exists,” stated Vaughn.

The CID did not have any prerogative to make such changes to regulation, as it would require a Congressional act; yet, in 2009 (and again in 2014), changes were made to the CID Manual that removed the language to report crimes through the TAG. But simply changing the manual did not mean it was constitutional to do so under the sovereign rights of each state and US territories. What’s more, there has been discussion in legal circles as to whether or not CID is operating outside its jurisdiction in the investigation of National Guard members. According to the Constitution as well as Department of Defense Directives (DoDD) 5105.77, the NGB is under the direct command of the state TAG and ultimately the governor unless a battalion has been mobilized for federal duty, at which point they then fall under Title 10 (active duty status) and the command of the President. The majority of those indicted are known as “M-day soldiers.” In other words, they are “weekend warriors” working for the Guard once a month and two weeks a year in official drill status (aka, Title 32). If an individual under Title 32 were to come under some criminal deed, it is the role of the TAG to take action. In fact, the TAGs have guidance on enforcing discipline and protecting soldier’s rights as it is articulated in the 2015 Commander’s Legal Handbook. The CID, as a faction of the big Army, only has command over Title 10 soldiers; it does not, to this day, have any authority over most members of the National Guard in these investigations, save a select few individuals who were deployed on active duty while participating in G-RAP.

This then raises the question, why is the regular Army harassing National Guard soldiers and violating their constitutional rights in the first place? Most of the soldiers under suspicion for theft of government property are not subject to regular Army discipline. Before that question can be answered, there is another piece of the puzzle to be scrutinized—the alarming results of CID’s investigations.

The U.S. Army Audit Agency had concern regarding the potential of individual fraud within RAPs. After reviewing over 150,000 enlistments ($339 million in payments), the June 2012 Audit identified 3,200 soldiers in the fraud-risk assessment. They found 1,256 recruiters suspicious of medium to high risk for fraud. Additionally, there were 2,022 RAs that “potentially violated program rules.” Of those RAs, only a quarter of them were found to be intentional acts. The remaining 1,400 recruiting assistants appeared to have unknowingly and unintentionally violated the rules of G-RAP, which is entirely plausible considering there were 60 changes to G-RAP rules during its seven years in existence .

This report fueled an investigation of another style from the Senate Subcommittee on Financial and Contracting Oversight. Despite the Audit’s fraud findings, the Army CID quickly dispatched approximately 200 field investigators under “Task Force Raptor” to scrutinize all 106,364 individuals who participated in G-RAP for any possibility of fraud. Senator Claire M. McCaskill (D, MO) set a directive that CID should flood the nation’s landscape and courageously return ill-gotten dollars to the American taxpayers. CID agents were encouraged to flash badges, obtain DNA swabs, issue polygraph tests and secure fingerprints in an effort to scare soldiers into revealing any useful material that could be later used against them. One former CID agent admitted that they were urged to lie to potential witnesses and persons-of-interest if usable information could be extracted. They were then instructed to report the numbers of potential indictments back to Senator McCaskill’s office on a quarterly basis, ostensibly to ensure they were meeting her demands of accountability. But a federal indictment of fraud is a crime requiring specific intent. In other words, conviction relies on the government’s ability prove the individual knew of the specific rules and guidelines and intentionally broke them for monetary enrichment.

Nevertheless, CID’s report prepared for the February 2014 Senate Subcommittee hearing led by Senator McCaskill found over 22,000 soldiers associated with payments that were at risk for fraud. This number is over seven times greater than the original Army Audit estimation at a rate of 1.7-3%. The FBI estimates that insurance fraud—one of the highest areas of civilian fraud—is at a rate of 3-10% of all insurance cases. Conversely, CID is now suggesting that those who proudly wear the uniform are felons at a rate of over 20%. Put differently, 1 in 5 soldiers are alleged criminals, 2 to 7 times more likely to commit fraud than the civilian population. This is clear evidence that these claims are audacious.

How is it possible that so many service members are accused of fraud? How is it that the CID investigations found an additional 18,000-20,000 offenders from the Audit’s estimation? Is it possible that this is a witch-hunt? This fishing expedition turned into a conspiracy theory as Sen. McCaskill stated, “I mean, it is almost like word got out and nobody was paying attention, and all of a sudden everybody was, okay, the bank is open. Let us go for it.” The moderate democrat further opined, “I mean there is no way that there was not a culture of people saying, hey, here is the deal. There is a bounty and we know these people are signing up.” But rather than a vast number of soldiers intentionally scamming the government they swore to protect, a much more plausible answer would be that most all were following a set of murky rules as they understood them.

Senator McCaskill’s supposed effort directed to bring about justice for the American people instead turned into a catastrophe where the wrath eventually rolled downhill to the most vulnerable of peoples, our service members. Let off the hook were Docupak and military Brass who were responsible for the proper administration and oversight of G-RAP. One possible explanation for the morass is a skirmish over federal defense dollars when the Guard received the lion share of contract monies to operate G-RAP. Or perhaps it is something as simple as an attempt to justify the military drawdown of troops currently underway. This time, the scapegoat would be the American soldier, more specifically National Guardsman, as McCaskill’s goons sought to manufacture felons. Unfortunately, those are the casualties of politics, but these service members deserve more. They deserve answers and accountability from our leaders.

[1] Unpublished U.S. Army Inspector General Agency Report of Investigation (ROI) (Recruiting Assistance Program) 2014.
[2] Memorandum from U.S. Army Audit Agency to Recruiting Assistance Program Task Force Regarding Audit of Recruiting Assistance Programs – Reserve Components (June 4, 2012) (Report A 2012 0115 IEF), Enclosure 1.
[3] CID Investigators report (G-RAP Training) Nov, 2013.

Learn more at Stop G-RAP Injustice on Facebook.

Lackland Basic Military Training Instructor, MSgt Michael Silva, Sentenced to 20 Years in Prison for Raping Basic Trainee in 1995 & Ex-Wife, Appealing Decision

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MSgt Michael Silva, USAF

In the 2011/2012 timeframe, the Lackland Sex Scandal coverage began to gain serious momentum in the media. As a result, military leadership set up a hotline number for former recruits to report claims of sexual abuse while attending basic training. After a base wide investigation, 35 basic military training instructors were courts martialed for allegedly abusing trainees or sex related offenses. MSgt Michael Silva was one of two basic military training instructors at Lackland Air Force Base found guilty and sentenced by the military courts to 20 years for rape. SSgt Luis Walker was the other instructor and committed suicide shortly before MSgt Silva was found guilty. At an Article 32 evidentiary hearing convened in Silva’s case, he was facing charges of raping a basic trainee from 1995 and two ex-wives (one in the 1992-1993 time frame and another in 2007). In January 2015, Silva was convicted of the rapes of two women, the basic trainee back in 1995 and one of the ex-wives. MSgt Silva wrote a clemency letter to the convening authority in the courts-martial at Joint Base San-Antonio claiming that he was falsely accused and wanted to retire with the rank, pay and benefits of an Air Force senior master sergeant, the rank he earned but was never allowed to wear. Silva claims that his accusers (also military members at the time of the alleged incidents) were motivated to accuse him of rape in an effort to collect veteran’s benefits totaling $3000 a month. The accuser’s names in this case have been protected. The JBSA convening authority had 30 days to respond to Silva’s clemency letter yet it took ten months before he would learn that it had been denied. Silva is currently working on his appeal.

Related Links:
Lackland Rape Charge the Result of Air Force Outreach
New Charges At Lackland On 20-Year-Old Case
Air Force sergeant charged with raping 3 women
Master sgt. faces hearing on multiple rape charges
Master sgt. Michael Silva on trial in 1995 rape
Rape hearing runs 30 minutes
Lackland’s Master Sgt. Silva guilty in 1995 rape
Lackland instructor gets 20 years in prison in rape cases
Air Force instructor at Lackland AFB gets 20 years in prison for rapes
Air Force instructor gets 20 years in prison for rapes
Conviction in Air Force rape case
Air Force jury sentences former instructor to 20 years in prison for rapes
Gender-based focus groups to address sex harassment at AMC
Is Accuser’s Facebook Update Riddled With Inaccuracies?
Social Media Postings Reveal Much About ‘Psychic Medium’ Who Accused AF Basic Training Instructor of Sexual Assault
Something’s Seriously Wrong When Military Justice System Sides With Psychics, Convicted Felons and Porn Queens
Clemency Letter Reveals Much About Pentagon’s Eagerness to Convict Military Men on False Sexual Assault Allegations
MSgt Michael Silva. Falsely accused and convicted of rape…serving 20 years for a crime he didn’t commit
A Complete List of the 35 Basic Military Training Instructors Court Martialed in the Lackland Air Force Base Sex Scandal
The Lackland Air Force Base Sex Scandal, Texas (2011)
Save Our Heroes Official Website
Save Our Heroes on Facebook

United States vs. Jane Neubauer, US Air Force

Updated: March 16, 2016

Retaliation

Is this another case of federal government overreach and denial of due process rights? I think John Q Public‘s assessment of this case speaks volumes of the real issues behind the Command directed prosecution of an airman who blew the whistle after being recruited as an Office of Special Investigations (OSI) confidential informant. The same OSI office she exposed ended up investigating and assisting with her prosecution. This is yet another example of the importance of letting an impartial law enforcement official and prosecutor make decisions about whether to investigate, who should investigate, who to investigate, and whether or not they have the evidence to move forward with a case. The moment a military member asks for an attorney, all criminal justice communications with Commanders and their investigators must cease. Every accused military member should be represented by counsel and afforded their due process rights throughout the entire investigation including collection of evidence. Learn more about your due process rights here.

“There have been many sexual assault accusations far less credible than the accusation made by this Airman. Many that were enthusiastically pursued by prosecutors despite their frailty … many that did not result in disciplinary actions when they were revealed to have been false.

So, what was so special about this accusation?

Well, she was an OSI informant, and the situation cast OSI in an extremely negative light at a time when the OSI informant program was already under fire. The same organization that recruited her right out of BMT to help investigate drug activity at Keesler AFB conducted the investigation that eventually resulted in her prosecution.

If she’s wrong … if she’s bad … if she’s a liar … then obviously she’s the problem. She’ll absorb the negative attention and culpability … leaving OSI and its shady actions in this debacle comfortably out of the limelight.

Another example of prosecutorial inconsistency and arbitrariness in the USAF … demonstrating that it’s not operating an impartial justice system, but a score-settling control device on behalf of the chain of command.” ~John Q Public

Spies, Lies, and Rape in the Air Force: An Undercover Agent’s Story
Undercover Agent Says the Air Force Is Retaliating Against Her After She Was Raped
Air Force undercover informant claims she is being hounded out of the service after being raped while trying to root out drug rings
Gillibrand Reacts to Air Force Rape Case First Reported by The Daily Beast
The Pentagon’s shameful culture of sexual assault can still be uprooted
Air Force Charges Ex-Informant With Lying About Her Rape
Keesler Air Force Base ex-informant loses appeal
Former Air Force informant who made false rape charge loses appeal
Former Air Force Informant Who Made False Rape Charge Loses Appeal
United States v. Airman Basic Jane M. Neubauer, United States Air Force
Honor and deception: A secretive Air Force program recruits academy students to inform on fellow cadets and disavows them afterward
Air Force Cadet’s Secret Story: I Blew the Whistle on Football Players and Sex Assaults
Hearing testimony reveals subterfuge of Air Force Academy informant program
Informant Debate Renewed as Air Force Revisits Cadet Misconduct
Air Force Academy: Please Reinstate Cadet Eric Thomas and Reform the Confidential Informant Program!

Fort Carson Army Soldier Nolly Depadua Murdered Air Force Spouse Lourdes Riddle Because She Attempted to Extort Him for Abortion Money After Sex (1985)


After Lourdes Riddle in found strangled to death in the trunk of her car, homicide detective Joe Kenda follows the trail through a twisting maze of military and cultural secrets. Just what was Lourdes doing behind her husband’s back? -Investigation Discovery

Investigation Discovery featured back to back episodes of Homicide Hunter with Lt. Joe Kenda. Kenda is a retired detective from the Colorado Springs Police Department. Colorado Springs is also the home of US Army base Fort Carson and Peterson Air Force Base. As a result, Lt. Kenda worked closely with investigating authorities at both bases throughout the years when one of his murder cases involved a member of the military or their dependents. If a crime against a military member or their dependents occurred off-base within the jurisdiction of Colorado Springs, Lt. Joe Kenda had the legal authority to investigate the strangling death of an Air Force wife found in the jurisdiction of Colorado Springs.

Construction workers found an abandoned car that had been set on fire on their property on March 26, 1985. The scene looked suspicious so they contacted the police to investigate the situation. The police found Air Force spouse Lourdes Riddle strangled to death in the trunk of her own car. Lt. Joe Kenda was called to the scene to investigate the crime further and determined that whoever killed Lourdes also tried to cover up their crime. They found that an accelerant (gasoline) was used to burn the car and a brick was on the driver’s side floor of the car (as if it was used to hold down the gas pedal). As Kenda was processing the crime scene, two Air Force Office of Special Investigations (AFOSI) personnel showed up and claimed they were taking charge of the investigation. They informed Kenda they had the husband, TSgt Mark Riddle, who worked at NORAD, Cheyenne Mountain, in custody on Peterson AFB.

Kenda’s response to the Air Force Office of Special Investigations personnel was priceless and proves that he truly is a fierce detective that all law enforcement should emulate. He was not intimidated by the feds in the least bit when the crime occurred in his jurisdiction. He shared that even it was their house, how dare they walk into his crime scene. Kenda was absolutely shocked when they shared they had enlisted soldier, Mark Riddle, in their office at Peterson AFB. Their attitude was that it was obvious who did it because in most cases it was the husband or boyfriend. When in fact, Kenda was disappointed that they may have tainted the case by initiating an ‘immediate arrest’. He was afraid that this outside agency, who had no jurisdiction, had advised Mark Riddle of his rights and he would want a lawyer now. His guilt was not obvious to Kenda who did not automatically assume that the husband committed the crime. He simply wanted to talk to him, not accuse him. Kenda felt that their actions may prevent him from doing an interview which could really damage the case. Kenda admitted to making mistakes in his lifetime but he also shared that he gets really upset when someone else makes them for him. If all investigators operated like Kenda and made assumptions based on fact finding, we could better protect the due process rights of individuals.

Kenda gains access to Mark Riddle and learns that Lourdes is a 31 year old from the Philliphines who has been married to him for nine years. There was in fact trouble in paradise and Mark admitted that his wife had been spending time with and maybe even sleeping with other men. They were not happily married. He claimed he was home the night of the murder and had no alibi. Mark asked for a polygraph test to prove his innocence and passed it, then let the investigators search his home. Although adultery is a motive for murder, Kenda determined that Mark Riddle was honest, credible, and was no longer considered a suspect. This case was not a sex crime but it was a personal and angry crime as evidenced by the ligature strangulation. Kenda felt that this person wanted to punish her and wanted to feel her die. This person was deemed the “Pantyhose Strangler” in the media. After talking to Lourdes family, Kenda learned that Lourdes was threatened by more then one person. Kenda wasn’t sure if she was a target because of Mark’s work at a secret military base or if it was because of her own secret life.

The Air Force couple lived on Peterson AFB. Kenda learned that Lourdes went to night clubs that soldiers frequented. She was into the nightlife, partying, and dancing. Her neighbors reported that she was in and out of the house all the time, usually dressed up with high heels, short skirts and make-up. During Kenda’s investigation into the circumstances of Lourdes secret life, rumors began to circulate at the enlisted men’s club on Fort Carson that she was extorting Army soldiers. In the meantime because of media coverage, an eye witness came forward with a description of a suspect that was found near the scene of the crime that night. He was a black male about 6’8. Kenda asked those who frequented the enlisted club on base if she was dating anyone matching the description. He learned that she only dated Phillipino men and wouldn’t give any other guy the time of day. The rumor was that she draws soldiers in like a Venis flytrap. She specifically sought out Phillipino soldiers. She would have a relationship with them, claim that she was pregnant, and threaten to go to their military Commander if they did not give her money for an abortion.

Lt. Kenda learned of blackmail accusations involving Nolly Depadua, a Phillipino soldier stationed at Fort Carson. Nolly had a friend named Brian Hawkins, also a Fort Carson soldier, who matched the description of the suspect described near the scene of the crime the night Lourdes was murdered. Kenda spoke to Brian with the approach that the facts would give him a theory. Initially Hawkins denied any involvement but Kenda believed that he was lying based on his body language during the interview. He requested he undergo a polygraph test and Hawkins failed miserably. When confronted with the results, Hawkins begins to cry. Hawkins told Kenda that Lourdes wanted money from Nolly Depadua. She claimed she was pregnant and was going to contact the Commander if he didn’t give her money. Nolly was concerned that his family would be ashamed of him if he got kicked out of the military. Nolly strangled Lourdes with the pantyhose.

Kenda arrested Nolly and learned from him that they had sex, and she wanted $1000 for an abortion. According to Nolly, Lourdes took his Army dress uniform, used it as ransom, and threatened to burn it if he didn’t give her the money. His career and that uniform meant everything to him. The night of the murder, Nolly asked Lourdes to meet him and give him back his uniform. Lourdes showed up without the uniform. He snapped and strangled her to death in an effort to solve his extortion problems and save his career. Nolly elicits the help of Brian to help him get rid of the body. Unlike in the movies, the car did not explode in a ball of flames like the pair was expecting. The evidence at the scene of the crime was mostly unharmed. According to Kenda, both of the soldiers appeared to show remorse for the crime. Although Lourdes Riddle was a participant in her own death and her behavior caused this reaction, she did not deserve to die. Nolly Depadua made a decision to take a life and you can’t do that. Due to the circumstances surrounding the homicide, he was found guilty of second degree murder and sentenced to fourteen years in prison. He was released after seven. Lt. Kenda ended the show with: “saying she got what she deserved is not fair.”

A couple issues come to mind when it comes to the way the military handles investigations of felony crimes. Why did the Air Force Office of Special Investigations want to take jurisdiction of this case? Why did they do an ‘immediate arrest’ instead of investigating the circumstances and basing their decisions on fact finding? Why don’t they realize that their actions actually hinder the thorough investigations of cases. Research does in fact support that most spouses are murdered by their significant others but we have this thing called due process in the civilian world. The way Kenda felt about OSI interfering and possibly damaging the case was legitimate. And Kenda approached the investigation of the case in the way that detectives should move forward. He simply wanted to talk to the spouse, not accuse of him of the crime. So far there was no evidence to prove that Mark Lourdes had committed the crime. The way the Air Force OSI handled this case is part of the reason that the military justice system is under fire. They have been accused of overreach to include not affording due process rights to both victims of crime and those accused of a crime. They have been accused of railroading military members with an iron fist and as Joe Kenda would say ‘draconian and ruthless’ tactics. They have been accused of making a victim fearful of coming forward if they were involved in a military crime, like adultery or drinking underage. Nolly Depadua is yet another example of a crime involving the motive of fear when someone threatens to go to a military commander.

This is the heart of the military justice system debate. A commander hears each person’s story and determines who is guilty and who is not guilty based on that evidence alone usually. Commanders make the decision whether to prosecute someone in the military. If felony cases were handled by prosecutors who understood the modus operandi of sociopaths, psychopaths, and predators, would our soldiers feel more comfortable reporting a crime without the fear of damaging or losing their own career. It’s a theme that comes up over and over in military cases and needs to be examined. Are soldiers hesitant to report crimes perpetrated against them to their Commander if they have engaged in illegal behavior of any kind to include drinking under age and adultery? If this is the case, we must remove this barrier so that our soldiers feel safe to report felony crimes perpetrated against them without fear of losing their careers because they committed a misdemeanor.

If Nolly had a safe place to report that Lourdes was extorting him despite the adultery issue, could we have prevented this murder? We don’t want our soldiers to feel like they have nowhere to turn if they are targeted by those who know how to manipulate unsuspecting Commanders. It’s important to recognize that both male and female soldiers can be targeted by male or female sociopaths and predators. Reporting crimes to your commander is currently a battle of whose story is more believable and what they feel or don’t feel like dealing with. Commanders hold the key to moving forward with a case or not in our current military justice system. Do they have the skills necessary to investigate and determine who should be prosecuted for crimes? Commanders may not realize that they could tip people off who need to be questioned simply by prematurely inquiring into something which creates an opportunity for collusion.

In the civilian world, you most likely will not lose your career for adultery. Yet in the military, adultery is treated like any other crime in the courts martial process and soldiers can and do lose their careers. It’s not worth a life when people feel that they have to take matters into their own hands to protect what should never been taken from them to begin with. This is why the reporting of felony crimes needs to be moved away from the Commander and to a trained investigator who can help the prosecution determine whether a crime has been committed or not. Prosecutors cannot win cases if the defendants are not afforded due process rights. And this is what gives civilian law enforcement the advantage because they are forced to work within a justice system that protects the constitutional rights of the accused. We want to respect those rights in our pursuit of justice because that is how we will get justice. We should ensure our soldiers that if a felony offense is committed against them that they can safely report the crime without the fear of losing their career.

Related Links:
Homicide Hunter ‘Secret Life’
Violent Crime, Suicide & Non Combat Death at Fort Carson, Colorado
Nowhere to Turn: Soldier Extorted by a Military Wife Ends in Murder
Army CID warns Soldiers to beware of ‘sextortion’ scams