Helping American Victims Afflicted by Neurological Attacks Act of 2021 Awaits Passage in the House, You Can Help

The HAVANA Act of 2021 or the Helping American Victims Afflicted by Neurological Attacks Act of 2021 passed/agreed to in Senate without amendment by Unanimous Consent on 6/7/21.

Summary: This bill specifically authorizes the Central Intelligence Agency, the Department of State, and other agencies to provide payments to agency personnel who incur brain injuries from hostilities while on assignment.

Specifically, the bill allows agency personnel and their families to receive payments for brain injuries that are incurred (1) during a period of assignment to a foreign or domestic duty station; (2) in connection with war, insurgency, hostile acts, terrorist activity, or other agency-designated incidents; and (3) not as the result of willful misconduct.

The bill’s authority applies to injuries incurred before, on, or after the date of the bill’s enactment. Agencies must submit classified reports on the bill’s implementation, including the number of payments made and the amount of each payment.

Since 2016, some intelligence, diplomatic, and other governmental personnel have reported experiencing unusual cognitive and neurological impairments while on assignment (particularly abroad), the source of which is currently under investigation. Symptoms were first reported by personnel stationed in Cuba and have since been collectively referred to as Havana Syndrome.

S.1828 Havana Act of 2021 was introduced by Sen. Collins, Susan M. [R-ME] on 05/25/2021. It has 19 senators as co-sponsors.
Section 3 of S.1828 provides the authority to pay personnel of the Department of State for certain injuries of the brain.
The Act requires mandatory classified reporting for a budget/spend plan for the use of the authority detailing total amount expended, number of covered employees, dependents and individuals to whom payments were made, and amount provided. It also requires an assessment of “whether additional authorities are required to ensure that covered dependents, covered employees and covered individuals can receive payments for qualifying injuries, such as a qualifying injury to the back or heart.”
A companion bill H.R.3356 – HAVANA Act of 2021 was introduced in the House by Rep. Schiff, Adam B. [D-CA-28] on 5/19/21. It has 22 co-sponsors as of this writing.
Similarly, Section 3 of H.R.3356 provides the authority to pay State Department personnel for certain injuries.
The House version also provides the following:

“(A) IN GENERAL.—The Secretary or other agency head described in paragraph (1) that provides payment under such paragraph shall prescribe regulations to carry out this subsection.

“(B) ELEMENTS.—The regulations prescribed under subparagraph (A) shall include regulations detailing fair and equitable criteria for payment under paragraph (1).

“(4) NO EFFECT ON OTHER BENEFITS.—Payments made under paragraph (1) are supplemental to any other benefit furnished by the United States Government for which a covered dependent, dependent of a former employee, covered employee, former employee, or covered individual is entitled, and the receipt of such payments may not affect the eligibility of such a person to any other benefit furnished by the United States Government.”.

GovTrack currently has a 38% chance for this bill to get enacted. It needs to pass the Committee, the House, then the Senate (bill needs to be in identical form) and then signed by the President to become law.
You can help by contacting your Congressional Representatives and urging them to pass H.R. 3356.

 

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FSGB: A Separation For Cause Case That Will Make You Weep

The FSGB Annual Report for 2020 includes a brief summary of a separation for cause case:
“In FSGB Case No. 2019-034, the Board found that the agency did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official did not consider evidence of personality problems or more serious mental issues as a mitigating circumstance in determining whether separation was appropriate, as required by the Douglas Factors.2 The employee in the case was charged with improper personal conduct with a pattern of unprofessional and inappropriate conduct toward colleagues. The agency’s Bureau of Medical Services determined that the charged employee exhibited behavior or symptoms that impaired his reliability, judgment, or trustworthiness which was reported to management in a report of security investigation. The Deciding Official did not take into consideration those findings when proposing separation. The agency filed a motion for reconsideration which was ultimately denied. The Board suggested that the Department consider whether the charged employee was eligible for disability retirement.”
Excerpts below from the Record of Proceeding (ROP) posted via FSGB (multiple files related to this case).
FSGB Case No. 2019-034/July 2, 2020:

Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).

Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.”

The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing.

The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

Background via FSGB Case No. 2019-034R/September 24, 2020

Prior to the conduct that gave rise to the Department’s proposal to separate the charged  employee, he had 19 years of distinguished service.

In March 2015, the Department issued a Letter of Reprimand to the charged employee on  a charge of Improper Personal Conduct (“IPC”) for allegedly making “unwelcome comments of an inappropriate and sexual nature” to an intern at post. In January 2016, the charged employee was alleged to have engaged in sexual harassment. The Ambassador involuntarily curtailed the charged employee from an overseas post in February 2016. After his curtailment, the charged employee sent numerous personal emails to a former post colleague that she foundoffensive. Despite her request that he stop sending her messages, he continued to do so. Consequently, the former colleague filed a request for a protective order with a court and the request was granted.

The FSGB filing does not indicate what treatment resulted from MED’s evaluation.

— In January 2018, the DS Office REDACTED issued another ROI (involving different preliminary allegations), finding, inter alia, that the charged employee had demonstrated a predilection for self-aggrandizement, and had indicated his belief of hearing voices and instructions from God, the Devil, and the Virgin Mary.

— In October 2018, the charged employee’s security clearance was revoked.

— On March 21, 2019, the Director General of the Foreign Service and Director of the Bureau of Human Resources3 (the “DG”) notified the charged employee that the Department proposed to separate him for cause to promote the efficiency of the Service. The charged employee was charged with IPC based upon 87 specifications of unprofessional and inappropriate conduct and comments toward colleagues, primarily in emails and text messages with sexual content. The separation proposal was not based upon the charged employee’s loss of security clearance.

— Although the charged employee was offered an opportunity to provide an oral or written response to the DG’s March 21, 2019 proposal, he did not provide a response.

(Also see Secretary Mike Pompeo Swears-In New DGHR Carol Perez on March 15, 2019)

On June 20, 2019, the DG completed the so-called Douglas Factors Checklist, a compilation of aggravating and mitigating factors drawn from 3 FAM 4137 and from the decision of the Merit Systems Protection Board (the “MSPB”) in Douglas v. Veterans Administration, 5 MSPB 313 (1981). On that Checklist, the DG wrote “none” next to so-called Douglas Factor #11, “Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems . . . .”

(Also see  Snapshot: Douglas Factors)
(Also see 3 FAM 4138)

On August 18, 2019, the Department filed a Separation for Cause Proposal with the Board. The charged employee did not file a response to the proposal or participate in the hearing that the Board conducted by telephone on May 14, 2020. AFSA participated as amicus curiae.

The Board issued its Decision on July 2, 2020, finding that the Department had established by a preponderance of the evidence that the charged employee had engaged in the unprofessional and inappropriate conduct of which he was accused and that the charged employee’s conduct had a nexus to the efficiency of the Service. However, the Decision concluded that the Department had not established cause for separation of the charged employee when the DG did not comply with 3 FAM 4138 because she did not consider the Department’s version of Douglas Factor #11:

 Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, harassment or bad faith, malice or provocation on the part of other(s) involved in the matter.

The Decision noted that the DG had written the word “none” next to Factor #11, yet in her testimony at the May 14, 2020 hearing, she opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.”

[…]

In the instant case, the Department failed to establish cause for separation by a preponderance of the evidence because the Deciding Official (in this case the DG) had failed to consider a significant relevant factor, i.e., Douglas Factor #11 as embodied in the Department’s Douglas Factors Worksheet, which the Department applies in determining whether to propose separation of an employee or a disciplinary penalty.10
In a separate FSGB document: 2019-034 – 07-02-2020:

In her testimony at the May 14, 2020 hearing, however, when asked whether concerns were raised in her mind in relation to the DS decision to revoke the charged employee’s security clearance due to several factors, including psychological conditions, the DG opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.” The DG added, however, that she did not consider personality problems as a mitigating circumstance for the charged employee because she is not a medical professional, thus not in a position to understand if he had a personality defect for “his entire life.” She pointed out that DS ROI #2 indicated that there were allegations that the charged employee had a recurring pattern of sexual harassment, beginning during his college years, but she had no evidence of that conduct in the record to consider. The DG emphasized that in cases of threats to employees in the workforce, it is DS that makes decisions about what they would like to do in terms of an employee’s ability to access agency facilities and information. She also stressed that she had no access to the Department’s Bureau of Medical Services (“MED”) Memorandum of Opinion concerning the charged employee to which DS referred in ROI

Diplomatic Security’s two Reports of Investigation (ROIs)

The Board found that two Reports of Investigation (“ROIs”) issued by the Department’s Bureau of Diplomatic Security (“DS”) contained sufficient information for the DG to deduce that the charged employee had, at least, personality problems and that the emails and text messages the charged employee sent to former colleagues, which formed the basis of the separation proposal, indicated that he had personality problems and possibly more serious mental impairment or illness. The Decision noted that Douglas Factor #11 required the DG to consider and weigh the charged employee’s apparent personality problems in determining the appropriate discipline.

The DG’s failure to consider personality problems as a mitigating factor was the basis for our conclusion that the Department had not established cause for separation.

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Biden Taps Rahm Emanuel as Ambassador to Japan

 

On August 20, President Biden announced his intent to nominate the controversial former Mayor of Chicago Rahm Emanuel to be the next Ambassador to Japan. The WH released the following brief bio:

Rahm Emanuel, Nominee for Ambassador Extraordinary and Plenipotentiary to Japan

Rahm Emanuel, former Mayor of the City of Chicago and White House Chief of Staff to President Obama, has had a distinguished career in public service. As Mayor, he oversaw increased economic development that revitalized the city and helped solidify its status as a global hub of culture and commerce. He ensured Chicago was a leader on the global stage, hosting the 2012 NATO summit, leading the continent in foreign direct investment for six consecutive years, convening mayors worldwide to commit to the Chicago Climate Charter of 2017 and helping establish the Chicago Council on Global Affairs Mayors Forum on Global Cities. He previously served as Chief of Staff to President Obama, where he helped secure the passage of landmark legislation, including Dodd-Frank and the Affordable Care Act, and advised President Obama on all key national security decisions during the President’s first two years. From 2003 to 2009, Mr. Emanuel served in the U.S. House of Representatives where he held a number of leadership positions. Mr. Emanuel also served President Clinton as Assistant to the President for Political Affairs and Senior Advisor for Policy and Strategy. He is currently national chair of the Advisory Council of Youth Guidance’s Becoming a Man (BAM) mentoring program. He graduated with a B.A. from Sarah Lawrence College and an M.A. from Northwestern University. 

If confirmed, Emanuel would succeed William F. Hagerty IV who served at the US Embassy in Tokyo from August 31, 2017–July 22, 2019. Ambassador Hagerty was elected to the U.S. Senate in 2020 and now represents the state of Tennessee.
Prior appointees to this position includes, Caroline Bouvier Kennedy (1957–), Howard Henry Baker Jr. (1925–2014), Thomas Stephen Foley (1929–2013), Walter F. Mondale (1928–), Michael Joseph Mansfield (1903–2001) to name a few.
There’s an organized group that’s running a “No to Rahm” campaign. There are also  members of the House who are voicing publicly their opposition to this nomination. In the end though, only the votes in the Senate really counts. It is not  very often that a Senate confirmation gets derailed; it does happen from time to time, but this nominee has friends in the high places, so more likely than not, this nomination will get confirmed despite the opposition.
Of course, given that Senator Cruz, one of the heroes of the January 6 insurrection has already gummed up the confirmation process, who knows when nominees may actually start packing.

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US Embassy Kuwait: 850 Americans and Embassy Kabul Staff Transits Via Kuwait