Generals and Flag Officers: Senior Military Officer Confirmations
CRS Report for Congress
Generals and Flag Officers: Senior Military
Officer Confirmations
Adolfo J. Fernandez
National Defense Fellow
Foreign Affairs, Defense, and Trade Division
Summary
This report describes the Department of Defense (DOD) process which discloses
to the Senate adverse information about senior military officers awaiting confirmation
of a General or Flag Officer (GFO) personnel action, such as a promotion or
appointment. It also describes the DOD mechanism used to investigate administrative
or criminal misconduct of Generals and Flag Officers (Admirals). Finally, the report
analyzes trends in the way the Senate scrutinizes senior military leaders during the
confirmation process, especially if these leaders failed to promote a proper leadership
climate in the organizations they commanded. This report will be updated, as needed.1
Senate Confirmation of Senior Military Officers
The role of the Senate in confirming senior military officer promotions and
appointments stems directly from the U.S. Constitution. Article II, Section 2 of the U.S.
Constitution states that the President “shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Counsels,
Judges of the Supreme Court, and all Other Officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be established by
law.” Generals and Flag Officers (Admirals), fall into the category of “all Other Officers
of the United States” and require Senate confirmation. Other military officers also require
Senate confirmation, but this report, will focus on the process for the military’s highest
ranking leaders — one-star through four-star officers.2
1 This report was prepared under the supervision of Edward Bruner, CRS Foreign Affairs,
Defense, and Trade Division.
2 General Officers are the highest ranking military leaders in the Army, Air Force, and Marine
Corps. The Navy’s highest ranking military leaders are called Flag Officers.
Congressional Research Service ˜ The Library of Congress
Since the early 1990s, the Senate has become increasingly vigilant in examining
senior military officer misconduct and ensuring that the nominees they confirm meet the
highest standard of accountability. During the mid-1990s, numerous hearings and debates
ensued about the suitability for promotion of many senior military officers. A heightening
of Senate scrutiny can be traced to notable confirmation cases which included the
following: In 1992, the Senate Armed Services Committee (SASC) vote to not award
Thomas J. Hickey the retirement rank of Air Force Lieutenant General due to his failure
to implement key directives to solidify the integrity of the Air Force promotion selection
process;3 in 1994, the debate over the retirement grade of Air Force Lieutenant General
Buster C. Glosson, who was accused of improperly attempting to prejudice a promotion
board;4 and in 1994, the controversy over the retirement rank of Navy Admiral Frank B.
Kelso II, because of his alleged responsibility for the Tailhook Convention scandal5 in
Today, Senate scrutiny of the leadership accountability of senior military officers
remains vigorous. During the March 2003 hearings regarding the sexual assault scandal
at the U.S. Air Force Academy, Senator John W. Warner noted that the situation
“demand(s) a deliberate critical examination and appropriate measure of accountability
when a command fails in some key aspect of its mission, particularly when personnel
charged to a commander’s care have been harmed”.7 This comment and other similar
statements made by Senators may be a signal that a new standard of accountability may
continue to take shape in the Senate in the coming years. The key to this new standard
may be the striking of a balance between congressional oversight, the Senate role to
“advise and consent,” and DOD transparency in disclosing senior military officer adverse
information during the confirmation process.
DOD Policy and Terms
During the confirmation process, it is DOD policy to inform the President and the
SASC of adverse information concerning the nominated senior military officers.
Personnel actions involving General and Flag Officers that require Senate confirmation
include nominations, appointments, reappointments, extensions, assignments,
reassignments, promotions, and retirements. DOD Instruction 1320.4 describes the
procedures used to process these personnel actions. To comprehend these procedures, it
may help to understand two terms defined by the instruction:
Adverse Information: Any substantiated adverse finding or conclusion from an
officially documented investigation or inquiry.
3 West, Joe. “Hickey is Denied 3rd Star,” Air Force Times, October 19, 1992, p. 6.
4 Towell, Pat; “Air Force Generals Promoted Despite Flak From Senator,” Congressional
Quarterly Weekly Report, October 15, 1994, p 2968.
5 The 1991 Tailhook Convention scandal in Nevada begot a string of investigations after
numerous allegations of “lewd and crude” conduct by Navy military aviators were reported.
6 Pexton, Patrick, Four Stars for Adm. Kelso, Navy Times, May 2, 1994, p 3.
7 US Newswire, Washington, Senate Armed Services Committee Poised to Act on Nomination of
Major General Robert T. Clark, May 13, 2003.
Alleged Adverse Information: Any allegation of conflict of interest, failure to
adhere to required standards of conduct, abuse of authority, misconduct or information
serving as the basis for an incomplete or unresolved official investigation or inquiry
into a possible conflict of interest or failure to adhere to standards of conduct or
misconduct.
It is also helpful to understand the difference between promotions and appointments.
In general, military officers are selected for promotion to one- or two-star rank by a
centralized ad hoc selection board of general/flag officers. Candidates for three- and four-
star appointments are not considered by a centralized board, but instead nominated by a
Service Secretary through the Secretary of Defense. For reappointments to another three-
or four-star position, the Senate is required to reconfirm the personnel action, even if no
promotion is involved. According to Title 10, Section 1370 of the United States Code,
GFO retirements must also be individually confirmed by the Senate.
Consideration of Adverse Information
DOD Instruction 1320.4 identifies how adverse information is considered by board
members during one- and two-star centralized promotion boards. Section 615, Title 10,
U.S. Code, Armed Forces, closely governs the procedures used by the military to consider
adverse information during the promotion process by giving specific guidance on the type
of information that may be furnished to board members. Specifically, information about
a particular officer may be furnished to a selection board only if the information exists in
official military records (personnel folders, investigative records, etc.). Additionally, it
must be determined by a Service Secretary to be “substantiated, relevant information” that
could “reasonably and materially affect the deliberations” of the selection board. The law
also mandates that before adverse information about an officer is furnished to a board, the
information must be made available to the officer and that the officer must be given a
reasonable opportunity to submit comments to the board.
The DOD instruction also directs that for all GFO promotions and appointments, the
Service Secretary review all official DOD investigation records to confirm that each
candidate meets prescribed standards of conduct. This internal review is usually led by
the General Counsel of the respective military department. Records reviewed by each
service include files from the Inspector General, military criminal investigation units, and
Equal Employment Opportunity (EEO) organizations. For promotions to one-star, a
Service Secretary directs a review of all adverse information covering the last 10 years
of an officer’s career to identify negative trends. For two-, three- and four-star personnel
actions, the review includes any new adverse information since the individual’s last
Senate confirmation. Once the review is completed, the Service Secretary considers the
adverse information, if any, and decides if he or she will support the nomination. If so,
the Secretary will forward a nomination package identifying the proposed promotion or
appointment to the Secretary of Defense through the Assistant Secretary of Defense/Force
Management Policy (ASD/FMP).
Nomination Package Certification
According to DODI 1320.4, if the Secretary of Defense supports a senior military
officer nomination submitted by a Service Secretary and if no adverse information exists
on the nominee, the Secretary of Defense will endorse the nomination package and
forward it to the President with the following certification:
All systems of records, to include EEO files and the Public Disclosure Report (for
one-star nominations only), maintained in the DOD that pertain to this officer have
been examined. The files contain no adverse information about this officer since his
last Senate confirmation. Further, to the best of my knowledge, there is no planned
or ongoing investigation or inquiry into matters that constitute alleged adverse
information on the part of this officer.
If the Secretary of Defense supports the nomination, but adverse information exists, the
Secretary identifies the information in a separate summary included with the nomination
package submitted to the President. The summary outlines the adverse information,
identifies the investigative agency, discloses findings, describes corrective actions taken,
and explains why DOD leaders continue to support the nomination.
Reporting Adverse Information to the Senate
Forty-eight hours after the President signs a nomination list, the White House Clerk
will forward the list to the Senate Clerk. DOD Public Affairs will announce a Presidential
nomination as soon as possible after Presidential signature and military department
coordination. After a nomination reaches the Senate, ASD(FMP) is the primary DOD
conduit to discuss adverse information or alleged adverse information with SASC
members or staff. But, this does not prohibit the military services from communicating
directly with the SASC, or other Senators or staff, about a nomination. If a nomination
package signed by the President contains adverse information, ASD(FMP) will send a
letter to the Chairman of the SASC, advising him of the information. Normally, DOD
will not report alleged adverse information or other unsubstantiated allegations to the
Senate. However, in extraordinary cases involving an allegation, which is receiving
significant media attention or when the SASC brings an allegation to the attention of
DOD, a summary of the unsubstantiated allegation is provided.
ASD(FMP) also monitors the names on a nomination list to determine if new adverse
information exists. ASD(FMP) initiates monthly checks with each service and DOD IG
on all nominations that have been received by the Senate, but have not yet been
confirmed. If, after a nomination reaches the Senate, and adverse information or alleged
adverse information is identified by DOD, the cognizant military department will notify
ASD(FMP) within 5 business days. ASD(FMP) will advise the SASC of the information
and will request that the nomination be held in abeyance until the matter is resolved.
When the investigation or inquiry is completed on an officer whose nomination is on hold
at the SASC, and the allegation is substantiated, the respective Service Secretary and the
Secretary of Defense will decide if they still support the nomination. If support continues,
then the nomination package will be resubmitted for re-approval by the President. If the
President also continues to support the nomination, then ASD(FMP) will advise the
SASC to proceed with the confirmation process. If, on the other hand, based on the new
adverse information, the DOD administration does not support the nomination, the
Secretary of Defense will submit a new nomination package through ASD(FMP),
requesting that the President withdraw the nomination from the SASC. In instances
where the allegation is unsubstantiated, the ASD(FMP) will advise the SASC of the
outcome of the investigation or inquiry and request that the nomination process proceed.8
DOD Investigations and Management of Adverse Information
DOD’s primary investigative mechanism is the Inspector General (IG). Allegations
of administrative misconduct are investigated separately from allegations of criminal
misconduct. Investigations of criminal misconduct are conducted by law enforcement
agencies within each service Inspector General office. Criminal misconduct includes, but
is not limited to, procurement fraud, computer crimes, bribery and kickbacks, financial
crimes, government purchase card crimes, medical fraud, environmental crimes, and theft.
There are four Defense Criminal Investigative Organizations (DCIOs) within DOD: The
Defense Criminal Investigative Service (DCIS); US Army Criminal Investigation
Command (USACIDC); The Naval Criminal Investigative Service (NCIS); and the Air
Force Office of Special Investigations (AFOSI).9
Conversely, administrative misconduct is investigated by an inquiry directorate
within the respective service. Examples of administrative misconduct include sexual
harassment, improper relationships, abuse of authority, favoritism, and misuse of
government property. According to the DOD IG Semiannual Report to Congress, April-
September 2003, on September 30, 2003, there were 275 ongoing DOD senior officer
investigations (included civilian leaders). During that six-month period, DOD reported
that it closed 221 senior official cases, of which 32 (14%) identified misconduct to
include: Misuse of government property and resources — 35%, abuse of authority and
favoritism — 35%, improper personnel action — 16%, sexual harassment and improper
relationship — 7%, and other misconduct — 7%.
Future Direction of Senior Military Officer Confirmations
Some analysts believe senior military officer confirmations will likely continue to
receive increased scrutiny by some Members of Congress. Recent hearings and
statements suggest a concern in the Senate about the accountability of senior military
officers who failed to promote a proper leadership climate in the organizations they
commanded. An example is the scrutiny by Senators of the controversial circumstances
surrounding the nomination of Major General Robert Clark to a three-star Army position.
In 1991, he came under criticism because a soldier thought to be a homosexual was killed
at Fort Campbell, Kentucky, during Clark’s command. Although an Army investigation
cleared Clark of tolerating anti-gay attitudes on the post, critics alleged that while he was
in charge of Fort Campbell, he permitted an atmosphere of harassment. In a press release
referencing this case, Senator Edward M. Kennedy stated: “We need to hold senior
commanders accountable if they allow a climate of bigotry, intimidation and fear to exist
8 Department of Defense Instruction, Number 1320.4, Military Officer Actions Requiring
Approval of the Secretary of Defense of the President, or Confirmation by the Senate, pp. 4-10.
9 Inspector General of the Department of Defense Semiannual Report to the Congress, April 1,
on our nation’s military bases”.10 Other recent misconduct cases including the 2003 Air
Force Academy sexual assault investigations, also hint that the Senate may be poised to
increase the scrutiny of senior military officer accountability during confirmation. The
transparency of DOD investigations may continue to be key in this process.
DOD asserts that its investigative mechanism is objective, independent, and
promotes confidence in its ability to “police its own.” In the September 2003 Semiannual
Report to Congress, Joseph E. Schmitz, Inspector General of the Department of Defense,
states: “The trust of the American public in their government requires confidence that the
institutions of their government are acting in their interest...For 25 years, Inspectors
General have sought to promote integrity, efficiency, and effectiveness in the programs
and operations of government.” This analysis has identified that the DOD disclosure
process appears mostly transparent and well defined. If improvements are required or
desired, they are administrative in nature. For example, the DOD 10-year “look-back”
may require refinement since the scope of the policy may actually be shorter than
intended. As previously discussed, the disclosure of adverse information related to one-
star nominations involves a review of files ten years back. A problem may stem from
current DOD records disposition schedules, in which some services purge IG
investigation reports dealing with administrative misconduct after two years (excludes
criminal investigation files).11 The investigation reports involving the administrative
misconduct are held for ten years only if it involves a senior military officer. As result,
a complete ten-year record of past investigations may not be available when compiling
a disclosure for the Senate.12
Another weakness may exist in the DOD practice of disclosing only new adverse
information since the last Senate confirmation of a senior military officer. This practice
may make it difficult for the Senate to identify misconduct trends or note command
climate issues. Additionally, DOD generally does not disclose unsubstantiated
allegations unless the Secretary of Defense deems it relevant to the deliberations. This
practice may prevent the Senate from getting a full disclosure of multiple unsubstantiated
allegations and hinder Members from identifying possible negative trends. If the
disclosure of adverse trends in the organizational climate of military bases and posts
becomes more critical during the Senate confirmation process, the DOD IG Semiannual
Report to the Congress is one possible tool that may facilitate transparency into any
developing trends. The report currently provides meaningful statistical information
concerning senior official inquiries, but may need to present a more rigorous analysis of
any developing trends in command climate investigations. The addition of such an
analysis to the report may allow Members to conduct confirmation and oversight
functions more effectively.
10 Statement release from The Office of Senator Edward M. Kennedy on the Nomination of Major
General Robert Clark, October 23, 2003, Contract: David Smith, (202) 224-2633.
11 Air Force Manual 37-139, Records Disposition Schedule, March 1, 1996, Table 90-1, p 680.
12 It is import to note, that all IG investigative reports are at some point destroyed in accordance
with the schedules approved by the National Archives and Records Administration; however, the
general details of the adverse information contained in those records will likely be reflected in
the affected officer’s permanent performance record and thus available for consideration by
promotion boards when considering the individual for promotion. In this manner, an officer
remains accountable for misconduct throughout his entire career.