National Guard: Office of Complex Investigations Should Update Policies to Require Additional Documentation for Sexual Assault Cases

Sexual assault incidents involving military service members can devastate victims and have far reaching impacts for DOD due to the potential for these crimes to undermine the department's core values, degrade mission readiness, and raise financial costs.

The National Defense Authorization Act for Fiscal Year 2018 included a provision that GAO review, among other things, the purpose and structure of OCI and its adherence to policies. This report (1) describes OCI's services and budgetary and staffing resources; and (2) evaluates OCI's policies for investigations and internal controls to ensure its policies are consistently followed. GAO analyzed OCI policy, budget, and staffing documents and interviewed OCI, DOD, Army, and Air Force officials. GAO also interviewed National Guard officials and analyzed case files for select years from a nongeneralizable sample of five states.

The National Guard Bureau's (NGB) Office of Complex Investigations (OCI) was established in 2012 to conduct administrative investigations into allegations of sexual assault that are not criminal in nature and are conducted only when criminal law enforcement entities, such as military criminal investigative organizations or local civilian law enforcement, have declined or do not have jurisdiction to investigate and a National Guard nexus has been identified. Since 2013, OCI has completed approximately 380 investigations of allegations of sexual assault at the request of state National Guard officials and 5 assessments of state National Guard units to review the current culture, policies, and practices for the handling of sexual assault, among other things. State National Guard officials told GAO that OCI provides the states with an unbiased or impartial third-party review of reported incidents of sexual assault. OCI is primarily funded through amounts made available for the Sexual Assault Special Victims' Counsel Program in the Department of Defense's (DOD) annual defense-wide Operation and Maintenance appropriation. This funding has increased from approximately $1.4 million in fiscal year (FY) 2014 to almost $5 million in FY 2018; which OCI officials attributed to increasing demands for OCI's services. OCI uses trained National Guard members temporarily assigned to the office as investigators.

NGB guidance establishes OCI investigation policies and OCI has implemented controls to help ensure key policies are followed. However, OCI has inconsistently documented how case acceptance criteria have been met. GAO's analysis of a sample of 27 case files from 5 states from FY 2016 and FY 2017 found that OCI generally adhered to key investigation policies. For example, in accordance with its policies, in all 27 case files GAO reviewed, OCI had included the state National Guard's requests to initiate an OCI investigation and executive summaries explaining OCI's determination of whether or not the allegation was substantiated. Furthermore, NGB has established two case acceptance criteria—specifically that a National Guard nexus exists and that coordination with at least one criminal investigative organization occurred. According to OCI officials, state National Guard officials are to verify these criteria are met before submitting requests for OCI to initiate an investigation of sexual assault. NGB has developed a template with standardized language that includes these criteria that the states should use. While OCI's case files included the request letters with standardized language from state National Guards indicating the state National Guard staff had determined the case acceptance criteria were met, they did not consistently include supporting documentation to verify how the case acceptance criteria were met. This is because NGB policy does not require such documentation to be included in OCI's case files. Without such documentation, OCI does not have reasonable assurance that the cases it accepts for investigation adequately meet the two criteria for case acceptance.

GAO recommends that DOD require OCI to include supporting documentation in case files to verify a National Guard nexus exists and referral to the appropriate law enforcement organization occurs. DOD concurred with the recommendation.

Sexual assault incidents involving military service members can  devastate victims and can have far reaching impacts for the Department  of Defense (DOD) due to the potential for these crimes to harm an  individual’s well-being, undermine the department’s core values, degrade  mission readiness, and cause increased financial costs. The National  Guard Bureau (NGB) established the Office of Complex Administrative  Investigations (OCI) in 2012 to conduct administrative investigations—primarily allegations of sexual assault—involving National Guard  members which the military justice system or local law enforcement  cannot or will not investigate. Specifically, OCI helps fill a gap by  addressing cases involving National Guard members who (1) are not  subject to the Uniform Code of Military Justice; (2) were not investigated  by a military criminal investigative organization due to the lack of  jurisdiction; (3) were declined a criminal investigation by civilian law- enforcement organizations; or (4) were not sufficiently investigated by the  civilian law enforcement agency with jurisdiction. While OCI does not  conduct criminal investigations, OCI’s administrative investigations are  intended to provide the Adjutants General with sufficient information to  take administrative actions as appropriate to maintain good order and  discipline within their National Guard units.

In February 2017, we reported that the timeliness of investigations was a  challenge for OCI and that 57 percent of investigations conducted in fiscal  year 2015 took 6 to 9 months to complete. We recommended that the  Chief of the NGB, in collaboration with the secretaries of the military  departments, as appropriate, reassess OCI’s timeliness and resources to  determine how to improve the timeliness of processing sexual assault  investigations involving members of the Army National Guard, and  identify the resources needed to improve the timeliness of these   investigations. DOD agreed with our recommendation. We provide  additional details about OCI’s backlog of investigations later in this report.

The National Defense Authorization Act for Fiscal Year 2018 included a  provision that we review the purpose and structure of OCI, its adherence  to guiding policies, and the criteria and legal authority under which it  conducts investigations. This report (1) describes the services OCI  provides and the budgetary and staffing resources used by the office; and  (2) evaluates the extent to which OCI has policies for its sexual assault  investigations and internal controls to ensure its policies, including criteria  for case selection, are consistently followed.

For our first objective, we reviewed NGB and OCI documents and  interviewed OCI, DOD, and state National Guard officials to identify the  services provided by OCI. We reviewed OCI’s budget data and  information—including how the office is funded—and documentation of  the office’s organizational structure and staffing for fiscal years 2014  through 2018. We also interviewed relevant officials to determine the  budgetary and staffing resources used by the office. In order to assess  the reliability of OCI’s investigations and budget data, we interviewed  knowledgeable officials within OCI about the controls the office uses to  ensure the validity and reliability of the data. We conducted testing of the  data, which included comparing OCI’s budget numbers with those  received from DOD and the NGB Joint Staff for consistency, errors, and  logic. We also interviewed officials in the Office of the Secretary of  Defense’s Sexual Assault Prevention and Response Office (SAPRO),  coordinated with officials from the NGB Joint Staff, and obtained  corroborating information to further support our data reliability  determination. We determined the budget data related to the amount of  funding OCI received for fiscal years 2014 through 2018 were sufficiently  reliable for reporting and attributing these data to OCI. We were unable to  determine the reliability of the discretionary funding OCI received, and  therefore did not include these in our report. We also interviewed OCI  officials about the steps the office takes to help ensure the reliability of its  data on the number of completed investigations. We determined that the  data on the number of investigations OCI had completed as of September  7, 2018, were sufficiently reliable for reporting and attributing these data  to OCI.

For our second objective, we analyzed current and previous versions of  Chief of the NGB guidance to determine key policies for OCI  investigations and controls the office has in place. Primary among these  are Chief National Guard Bureau Instruction (CNGBI) 0400.01B, National  Guard Complex Administrative Investigations (the NGB Instruction) and  Chief National Guard Bureau Manual (CNGBM) 0400.01A, National  Guard Complex Administrative Investigations Procedures (the NGB  Manual). We also interviewed OCI, NGB, and DOD officials to identify  the criteria OCI established for determining which investigations and  assessments to conduct and evaluated their efforts to determine whether  they met federal internal control standards, including that management  should design appropriate types of control activities to achieve the entity’s  objectives, such as conducting top-level reviews, assigning  responsibilities, and using quality information, as well as the need for  documentation. We interviewed Army Criminal Investigation Command,  Air Force Office of Special Investigations, and NGB officials about  jurisdiction and legal authorities related to criminal and administrative  investigations of reported allegations of sexual assault involving National  Guard members. We also interviewed National Guard state officials and  reviewed a sample of 27 case files from five states for fiscal years 2016  and 2017. We selected these states based on the following criteria: (1)  the number of cases the states had referred to OCI, including states with  a low and high number of cases; (2) the size of the state’s National Guard  population, both large and small member populations; and (3) geographic  dispersion across the five census regions. We reviewed these case files  for documentation and other evidence and compared them with a  selection of key OCI policies to determine the extent to which the office is  following those policies for the select case files we reviewed.

We identified policies as key based on whether the policy met specific  criteria, including whether (1) adherence to the policy was measurable in  some way, for example, written documentation was produced; (2) the  policy was relevant to the reporting requirements of our statutory  mandate; (3) the policy was deemed essential to each phase of the  investigation; (4) compliance data or information was available and could  be shared with GAO in a timely manner; and (5) the policies were  determined to be generally consistent across the 2012 and 2018 versions  of OCI’s policy documents, with a few exceptions for policies that were  relevant to our mandate or essential to the investigative process. We  evaluated the 27 case files against these selected key policies to  determine if OCI followed these policies in our sample of OCI  investigation case files. Our findings from these case files are provided  solely as illustrative examples and are not generalizable to all of OCI’s  investigations, to the other states and territories, or to investigations  conducted in the states we sampled any time before 2016 or after 2017.

We conducted this performance audit from March 2018 to December  2018 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.

The National Guard’s Organizational Structure and Mission

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

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

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

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

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

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

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

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

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

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

DOD’s Sexual Assault Prevention and Response Program

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OCI Investigators Are Temporarily Assigned National Guard Members

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

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

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

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

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

National Guard Bureau Guidance Establishes OCI Investigation Policies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appendix II: Comments from the Department of Defense

Appendix III: GAO Contact and Staff Acknowledgments

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

The National Guard has an office that investigates sexual assault allegations. Its investigations have no criminal outcomes, but can result in consequences like discharge from the National Guard.

The office is only authorized to investigate cases that

have a connection to the National Guard, and

are not fully investigated by military or civilian law enforcement

The office is not required to keep documentation verifying that all of its cases meet these criteria. Therefore, it can't be sure that it's only investigating the cases it's allowed to take. We recommended including this supporting documentation in the case files.