Damian Williams, the United States Attorney for the Southern District of New York, announced today the guilty plea of YE HEIN ZAW, a citizen of Myanmar, for his role in a conspiracy to assault and make a violent attack upon Myanmar’s Permanent Representative to the United Nations. ZAW pled guilty today in White Plains federal court before U.S. District Judge Philip M. Halpern.
U.S. Attorney Damian Williams said: “As he admitted in court today, Ye Hein Zaw participated in a plot to injure or kill Myanmar’s ambassador to the United Nations in a planned attack that was to take place on American soil. Zaw now awaits sentencing for his crime. I commend the tireless efforts of our law enforcement partners at all levels of government to ensure the safety of foreign diplomats and officials in the United States and bring the perpetrators of this plot to justice.”
According to the Information to which ZAW pled guilty, the complaint that was filed in this case, and statements made during court proceedings:
Between at least in or about July 2021 through at least on or about August 5, 2021, ZAW, a citizen of Myanmar residing in New York, conspired with others to injure or kill Myanmar’s Permanent Representative to the United Nations (the “Ambassador”). During the conspiracy, a co-conspirator communicated with an arms dealer in Thailand (the “Arms Dealer”) who sells weapons to the Burmese military, which overthrew Myanmar’s civilian government in or about February 2021. In the course of those conversations, the co-conspirator and the Arms Dealer agreed on a plan in which the co-conspirator would hire attackers to hurt the Ambassador in an attempt to force the Ambassador to step down from his post. If the Ambassador did not step down, then the Arms Dealer proposed that the attackers hired by the co-conspirator would kill the Ambassador.
Shortly after agreeing on the plan, ZAW contacted the co-conspirator by cellphone and, using a money transfer app, transferred approximately $4,000 to the co-conspirator as an advance payment on the plot to attack the Ambassador. Later, during a recorded phone conversation, ZAW and the co-conspirator discussed how the planned attackers would require an additional $1,000 to conduct the attack on the Ambassador in Westchester County, and, for an additional payment, the attackers could, in substance, kill the Ambassador. In response, ZAW agreed, in substance, to pay the additional $1,000 and to try to obtain the additional money.
ZAW pled guilty to one count of conspiracy to assault and make a violent attack upon a foreign official, which carries a maximum sentence of five years in prison. The maximum potential sentence in this case is prescribed by Congress and is provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.
ZAW is scheduled to be sentenced by Judge Halpern on May 10, 2022.
Myanmar citizen pleads guilty in plot to injure or kill Myanmar’s ambassador to the United Nations https://t.co/7RQCfKD12g
— US Attorney SDNY (@SDNYnews) December 10, 2021
Ye Hein Zaw, one of two Myanmar nationals arrested in August in connection with a plot to attack the country’s ambassador to the United Nations has pled guilty for his role in the conspiracy, according to the U.S. Attorney’s Officehttps://t.co/PoGg18iCFj
— Radio Free Asia (@RadioFreeAsia) December 14, 2021
Details from @Myanmar_Now_Eng on alleged conspirators to assassinate Myanmar UN rep Kyaw Moe Tun: Phyo Hein Htut, paid to hire hitman, volunteered at UN office, pictured on social media w/ Than Shwe’s grandson; middleman Ye Hein Zaw’s father in BSIhttps://t.co/9pZKXeVqBf
— Eli Meixler (@elimeixler) August 8, 2021
(2/3)Myanmar citizens PHYO HEIN HTUT and YE HEIN ZAW reportedly residing in the U.S with visit visas and conspired to assault upon Myanmar’s diplomat to the UN who has represented the civilian government representatives using Myanmar junta related arms dealers in Thailand. pic.twitter.com/95mkQ9r67N
— Hnin Zaw (@hninyadanazaw) August 6, 2021
In the first extradition from the Republic of Cameroon to the United States, a Texas man was extradited to Houston on Friday to serve an 80-year prison sentence he received in absentia four years ago after he pleaded guilty in two separate cases to conspiracy, health care fraud, money laundering, and tax offenses.
According to court documents, in November 2016, Ebong Aloysius Tilong, 57, of Sugar Land, Texas, and his wife, Marie Neba, went to trial on the conspiracy, health care fraud, and money laundering charges. The trial evidence and court documents showed that between 2006 and 2015, Tilong, Neba, and their co-conspirators used Tilong and Neba’s company, Fiango Home Healthcare Inc. (Fiango), to corruptly obtain more than $13 million by submitting false and fraudulent claims to Medicare for home health care services that Fiango’s patients did not need or receive. The trial evidence and court documents also showed that Tilong and Neba paid illegal kickbacks to patient recruiters to refer patients to Fiango, and that Tilong falsified and directed others to falsify medical records to make it appear as though Fiango’s patients met the Medicare qualifications for home health care. Additional evidence demonstrated that Tilong attempted to destroy evidence and blackmail and suborn perjury from witnesses. After the first week of trial, Tilong pleaded guilty to one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, three counts of payment and receipt of health care kickbacks, and one count of conspiracy to launder monetary instruments.
In June 2017, Tilong pleaded guilty in a separate case to two counts of filing fraudulent tax returns. In connection with this guilty plea, Tilong admitted that he created a shell company called Quality Therapy Services (QTS) to limit the amount of tax that he paid to the IRS on the proceeds that he and his co-conspirators stole from Medicare. According to Tilong’s plea agreement, in 2013 and 2014, Tilong wrote almost $1 million in checks from Fiango to QTS for physical-therapy services that QTS never provided to Fiango’s patients and deducted as business expenses. Tilong admitted that his tax fraud scheme caused the IRS a tax loss of approximately $344,452.
In August 2017, Neba was sentenced to 75 years in prison the Medicare fraud scheme at Fiango. The U.S. District Court scheduled Tilong’s sentencing for Oct. 13, 2017, but court records show that on the morning of his sentencing hearing, Tilong removed an ankle bracelet monitoring his location and failed to respond to phone calls from, or appear in, the U.S. District Court for his sentencing. On Dec. 8, 2017, the U.S. District Court sentenced Tilong in absentia to 80 years in prison for his role in the Medicare and tax fraud schemes.
In September 2021, the Republic of Cameroon President Paul Biya signed a decree ordering Tilong’s removal to the United States.
On Dec. 10, 2021, U.S. Marshals escorted Tilong from Cameroon to the United States.
The United States is grateful to the Government of Cameroon for its cooperation and support of this extradition request.
Fugitive Extradited from Cameroon to the United States to Serve 80 Year Prison Sentencehttps://t.co/OV41eSoMzV
— Criminal Division (@DOJCrimDiv) December 13, 2021
HHS-OIG Fugitive Ebong Aloysius Tilong was captured. In 2017, Tilong was sentenced to 80 years in prison for health care fraud totaling over $13 million, among other charges. This sentence is one of the longest in health care fraud history. Read more: https://t.co/ggbw9uZx8i. pic.twitter.com/uIlYFuFppF
— OIG at HHS (@OIGatHHS) December 13, 2021
— Ambazonia Redemption, Activist for the Oppressed (@WestCameroons) December 14, 2021
The FSGB found that the State Department committed in prohibited personnel practice (“PPP”) violation of 5 U.S.C. § 2302(b)(4) against an FS employee stationed overseas when it coerced his curtailment from post. The Board also found that the curtailment in this case failed to comply with 3 FAM 2443.2. This case is horrifying in how carelessly embassy officials can chuck anyone out the airlock.
According to the FSGB ROP, the Department questioned “whether 5 U.S.C § 2302 applies to Foreign Service Officers, because Title 5 of the U. S. Code applies only to Civil Service Employees.15 However, it concludes that, assuming the provision applies, there is no evidence to support the finding of a violation”.
The Board’s decision says “we address the Department’s question of whether Foreign Service Officers are protected against prohibited personnel practices. […] Under Section 105 (b)(2)(B)(4) of the Foreign Service Act of 1980, all FS members are free from any personnel practice prohibited by 5 U.S.C. § 2302. […] we find that PPP protections apply to Foreign Service Officers under Section 105 of the FSA.
The oldest executive agency then argued before the Grievance Board that the Senior Regional Security Officer’s alleged statement that “all this would go away,” while putting his hand on the investigatory file, “could have merely meant the file itself would be gone or that the Ambassador’s determination to involuntarily curtail him would be obviated by his decision to voluntarily curtail.”
And get this, the Department concludes that the “vague statement” by the SRSO was not deceitful.”
The Department also argued that grievant has “failed to meet his burden to show that the SRSO knew that his statement was untrue or that he acted with an intent to mislead grievant.”
Then covering all its bases — “even assuming that the statement was deceitful, the Department contends that Section 2302(b)(4) only applies to “competition for employment,” which is limited to hiring and promotions and does not apply to the retention of employment.14 Although curtailment is an assignment, it is not a process of hiring or promotion.”
The Department agreed that “it committed a harmless error of its curtailment procedures.”
It sure wasn’t “harmless” on the affected employee and his family, was it?
The FSGB did not buy it.
“It is clear that the Board’s analysis found that the SRSO engaged in deceit. The statute prohibits “deceit or willful obstruction.” While obstruction is defined as willful, the drafters did not see a need to use the adjective with deceit. Deceit is willful; it is not negligent or inadvertent.“
The Board includes “deceit” in the footnotes:
26 Black’s Law Dictionary (10th ed, 2014) defines deceit: “1. The act of intentionally leading someone to believe something that is not true; an act designed to deceive or trick. 2. A false statement of fact made by a person knowingly or recklessly (i.e., not caring whether it is true or false) with the intent that someone else will act on it. 3. A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.”
On curtailments, the Department notes that “under 3 FAM 2443.2(a), the Chief of Mission (COM) has discretion to determine curtailment when it would be in the best interest of the post. While the COM must follow procedures, there is no evidentiary standard, and the curtailment procedures do not require the same rigor as the disciplinary process.”
The Department then makes a shocking or maybe not really a shocking admission:
“..there were serious allegations against grievant, and the COM was not required to determine whether they were true, but only if the curtailment was in the best interests of the post.”
Wait, what? So anyone could make a claim, state an allegation, anyone could start a rumor, and COM is not required to determine whether they were true? How bonkers is that?
Via Record of Proceedings
FSGB Case No. 2019–030 | September 29, 2021
- 2019-030 – 09-29-2021 – B – Order – Second Motion for Reconsideration_Redacted.pdf
- 2019-030 – 6-9-2021 – B – Order re MFR and MFPR_Redacted.pdf
- 2019-030 – 10-05-2020 – B – Sept 30, 2020 Interim Decision (Corrected)_Redacted.pdf
The Department’s MFR seeks reconsideration of the Order on two grounds. The first ground for reconsideration is that the Department claims that the Board committed “clear error” by failing to find evidence of two essential elements of a prohibited personnel practice (“PPP”), in violation of 5 U.S.C. § 2302(b)(4), despite finding that the Department committed a PPP. The missing elements, according to the Department, are – a willful or deliberate deception and a competition for a position. The second basis for reconsideration is that the Department claims that the Board committed “clear error” by conflating the curtailment and discipline procedures when it failed to remand to the Department the question of whether it would have curtailed grievant absent the procedural error by failing to follow the Department’s curtailment regulations.
Grievant, an FS-02 Security Engineering Officer (“SEO”), served as the Deputy Officer in Charge (“DOIC”) of the Department’s Engineering Services Office (“ESO”) at the U.S. Embassy in REDACTED (“post”) from August 2016 to January 18, 2017. His rater was the Officer-in-Charge (“OIC”), and his reviewer was the Senior Regional Security Officer (“SRSO”).
The incident that led to a preliminary investigation of the grievant and, subsequently, an in-depth investigation of him by the Office of Civil Rights (“S/OCR”), is an alleged threat made by grievant at the end of December 2016. On January 10, 2017,1 a supervisee claimed that grievant had made an implied threat of physical violence to him, and the SRSO assigned the Assistant Regional Security Officer (“the ARSO”) to investigate and notified the Bureau of Diplomatic Security (“DS”), Office of Special Investigation (“DS/DO/OSI”). On January 12, post management briefed the Ambassador, who decided to exercise his authority under 16 STATE 27226 to curtail grievant from post. Later that day, January 12, the SRSO, grievant’s reviewing officer, held a meeting with grievant, two Human Resource Officers, and grievant’s rater and told grievant that the Ambassador had decided that he would be involuntarily curtailed if he did not voluntarily curtail, and if he voluntarily curtailed, “all of this,” gesturing to the investigative file, “would go away and it would be as if he had been curtailed for family reasons.”2
But the investigation did not, in fact, “go away.”
On January 14, the ARSO issued an RSO Report, which the Accountability and Suitability Board (“A&SB”), which included the SRSO, discussed that day with the Ambassador. The case was referred to the Department of State’s Office of Civil Rights (S/OCR) that same day. On January 16, the Management Counselor prepared a Decision Memorandum (“Decision Memo”) in Support of No-Fault Curtailment, which was sent to the front office. A day later, on January 17, grievant met with the HRO at post and formally accepted a “voluntary curtailment,” and management approved his request that day. On January 18, Grievant curtailed without having been advised of the ARSO’s report or of the referrals to S/OCR and to
GTM/ER proposed to suspend grievant on a single charge of Improper Comments, with three specifications. The Deciding Official (“DO”) sustained only two of these specifications, both dealing with alleged threats. With the dismissal of the third specification, all potential EEO violations were dismissed. The DO reduced the penalty from a two-day to a one-day suspension.”5
Grievant filed an agency-level grievance, alleging that the one-day suspension violated regulations; that his 2017 Employee Evaluation Report (“EER”) contained a falsely prejudicial statement based on the charge; that the RSO Report contained a falsely prejudicial statement that he had been counseled for anger management; that his curtailment was coerced and unlawful under 12 STATE 27212 (“Curtailment of Employee Based on Conduct or Disciplinary Issues”); and that his assignment to a non-supervisory, overcomplement6 position was based on a PPP. The grievance was denied by the Department.
Board found that the Department committed a PPP, in violation of 5 U.S.C. § 2302(b)(4). […]Moreover, even without the PPP finding, the Board found that the curtailment failed to comply with 3 FAM 2443.2, and the Department does not challenge that finding.
By inducing grievant’s “voluntary curtailment” on an unenforceable assurance, post avoided going through the procedural safeguards of 3 FAM 2443.2, which apply to voluntary curtailments that are initiated at the request of the COM. What the Department does not acknowledge is that the SRSO (importantly, grievant’s reviewing official, the official who had directed the ARSO’s investigation and notified DS/DO/OSI and a member of the A&SB advising the Ambassador) told grievant that if he voluntarily curtailed, it would be “as if he curtailed for family reasons.” That would mean a curtailment under 3 FAM 2443.1 with no prospect of discipline.
The Board denied in full the Department’s Second Motion for Reconsideration and issued six other orders related to back pay, reconstituted Selection Boards, promotion, and interest on back pay.
The Board ordered remedies for violations of 3 FAM 2443.2 and 5 U.S.C. § 2302(b)(4) , remedies for falsely prejudicial language in Grievant’s EER; attorney’s fees request is held in abeyance until final resolution of the remedies.
The remedies ordered include:
2. The Department shall pay grievant “an amount equal to all, or any part of the pay, allowances, or differentials [including overtime], as applicable, which [he] normally would have earned or received” during the period of 18 ½ months of the remainder of his posting at post, had he not been improperly curtailed, less any amounts he earned through other employment during that period, pursuant to 5 U.S.C. § 5596(b)(1)(A)(i), 5 C.F.R. 550, Subpart H..
4. The Department shall hold four reconstituted Selection Boards for the years when grievant’s OPF contained the uncorrected 2017 EER.
5. If grievant is promoted by any of the reconstituted SBs, the promotion should beretroactive to the date a promotion would have been implemented by the SB for which it was reconstituted. The Department shall pay the wage differential from the date of any retroactive promotion.
6. The Department shall pay interest on any back pay awards due under this order.
The conduct of these government representatives at this post should be labeled “notoriously disgraceful conduct”. And the State Department should be shamed for defending this type of unacceptable behavior. Oh, please don’t tell us these people all got promoted!
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.
This is part 1 of two parts we want to post about this specific grievance case. We want to highlight this part of the curtailment process that’s called “voluntary” because it was not a voluntary one, but a “coerced voluntary curtailment”. We have no idea who are the individuals involved in this case, of course, but we are aware of how the so called “voluntary” curtailment has been misused and far from being voluntary in other cases in the past.
The chief of mission was supposed to “ensure that rigorous standards apply to curtailment requests.” Whatever standards were applied in this case could not be called rigorous by any stretch of the imagination. Good grief, the ARSO wrote a false report! As if that was not enough, a supervisor engaged in deceitful behavior. And State basically shrugged its admirable shoulders, and said who cares?
Record of Proceedings
FSGB Case No. 2019–030 | September 30, 2020
INTERIM DECISION (CORRECTED 10/05/2020)
We find here that the procedures for curtailing grievant violated 3 FAM 2443.2. The due process provisions of the regulation were not
followed. Grievant was given an ultimatum to voluntarily curtail, or he would be involuntarily curtailed, when the Ambassador had limited information and the grievant had not been given any of the due process rights outlined in 3 FAM 2443.2 and the guideline cables provided below. The applicable FAM, 3 FAM 2443.2 Involuntary Curtailment at Request of Chief of Mission, reads:
a. If the chief of mission determines that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the employee, the chief of mission may ask that the employee’s tour of duty be curtailed immediately.
b. If the employee is an employee of the Department of State, the chief of mission should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service requesting curtailment of the employee. The request must:
(1) Include background information on any incidents that support the request;
(2) Confirm that the employee has been informed of the request and the reasons therefore; and
(3) Confirm that the employee has been advised that he or she may submit comments separately.
c. If the employee requests curtailment, the chief of mission should use the DIRGEN channel to:
(1) Inform the Director General of the chief of mission’s support of the employee’s request; and
(2) Explain fully the circumstances that, in the chief of mission’s judgment, justify immediate curtailment.
d. Except in cases of serious misconduct, criminal activities, or actions that have serious security implications, a chief of mission may offer the employee the alternative of submitting a request for immediate voluntary curtailment. If the employee is an employee of another agency, the request should be submitted to [their appropriate officials]. … The same supporting information required in 3 FAM 2443.2 should be used in requesting curtailment.57
According to the Decision Memo, the Ambassador invoked 16 STATE 27226, issued on March 14, 2016, Chief of Mission Instructions Regarding Conduct and Discipline Abroad, to determine that curtailment was necessary in this case. The summary describes the cable as the
first of two issued that date to provide guidance on conduct and discipline issues. The cable notes that COMs have full legal authority for the supervision of all government executive branch employees in that country.
The other memo issued on the same date, 16 STATE 27212, Curtailment of Employees Based on Conduct and Disciplinary Issues (Checklist), provides detailed procedures for handling curtailments. Among the relevant paragraphs are:
Par. 1. Curtailment may include the employee’s immediate departure from post, and can be voluntary or involuntary. As COM, you must ensure that rigorous standards apply to curtailment requests. Curtailments disrupt lives of employees and entail high professional and monetary cost from the Service in terms of lost productivity, service, and frequently, investment in training. Therefore, this authority must be used with judicious care and restraint.
Par. 2. If you, as COM, determine that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the Service … you may request that the employee’s tour of duty be curtailed immediately. Per 3 FAM 2443.2, you should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service. The curtailment cable request must:
o include background information on any incidents that support the request;
o confirm that the employee has been informed of the request and the reasons therefor; and
o confirm that the employee has been advised that he or she may submit comments separately.
..HR strongly encourages post to share the request cable with the employee so the employee has the full report on which he/she can send comments.
Par. 3. Except in cases of serious misconduct, … you may offer the employee the option to request immediate voluntary curtailment in lieu of involuntary curtailment. If the employee requests voluntary curtailment, he/she should request immediate curtailment through the HR channel in a message addressed to his/her Career Development Officer (CDO) in HR/CDA (see para. 19 [checklist]). As COM, please ensure that you use the DIRGEN channel to confirm your support, or opposition to, the employee’s request and explain fully the circumstances that justify immediate curtailment.
Par. 13. Curtailments should first be vetted by a management team at post. …. Proper vetting throughout the process then allows the COM to be better able to determine whether to move forward with the curtailment request.
Par. 14. In all cases, the DIRGEN cable must include background information on the incident (s) that supports post’s decision. Except for cases of directed curtailment, the cable must confirm that the COM has discussed the proposed action with the employee and also confirm that he/she may submit separately, either by cable via the DIRGEN channel or email to the DG Direct e-mail address, any comments about the curtailment. HR will not approve any curtailment request that comes without supporting information.
Par. 19. D. [H]as the employee had the opportunity to discuss the situation with the DCM?
Par. 20. As applicable, the above elements should be addressed in a DIRGEN cable. The Department is committed to making the curtailment system work for the good of the Service and our employees, protecting both the authority of management and the rights of employees.
Grievant’s decision to curtail was not truly voluntary. Grievant did not initiate the curtailment. The Ambassador, according to what the RSO and HR told grievant on January 12, had decided that grievant had a choice to either curtail voluntarily or involuntarily. In doing so, he was exercising his right under 3 FAM 2443.2d to give the employee the option of taking a voluntary curtailment in lieu of an involuntary one. Given that ultimatum, the only way to prevent the potential adverse career effect was to choose “voluntary” curtailment. According to grievant, he was also given the inducement that if he chose “voluntary” curtailment, “all this,” which he could reasonably understand to mean any type of charge against him, would be withdrawn. Given the lack of denials, we credit grievant that this statement was made. Yet we know that, on January 14, before the curtailment took effect, the ROI had been closed without action by DS and referred to S/OCR. The case was not going away.
Via ROP/FSGB 2020-036/September 21, 2021:
Held – The Department of State (“Department”) met its burden of demonstrating by a preponderance of the evidence that grievant committed the misconduct with which he was charged; that the discipline proposal was timely and without procedural defect; and that the proposed penalty was reasonable and proportionate to the misconduct.
Case Summary – Grievant was serving as a Diplomatic Security (“DS”) Special Agent (“SA”) at an overseas post with his then-wife. He was engaged in extramarital affairs with two women employed at the embassy (both of whom became pregnant), failed to report these relationships, failed to report out of country travel with one of the two women, and threatened and intimidated the other woman, prompting two investigations and his voluntary curtailment from post. Two years later, while participating in a meeting concerning the medical evacuation (“medevac”) of his new wife, grievant was accused of bullying and intimidating behavior toward personnel from the Bureau of Medical Services (“MED”), prompting a third investigation. On December 8, 2017, the Department proposed a 30-day suspension without pay, on five charges with 22 specifications. On January 23, 2019, the Department sustained the proposed 30-day suspension. Grievant filed a grievance, challenging the validity of the charges and the severity of the penalty. In the agency-level grievance decision, the Department sustained four charges with 13 specifications and reduced the suspension to 12 days.
Grievant alleged that much of the conduct reflected misunderstandings. He stated that his first marriage was failing when he arrived at post and he eventually married, and remains married to, one of the two women with whom he had affairs. He contended that the investigations into his alleged misconduct were marred by the bias and unprofessional conduct of post’s Regional Security Office as well as being unduly delayed, causing him personal and professional harm. He argued that the alleged misconduct at the MED meeting resulted from mistreatment of his family by MED and should be dismissed. Grievant also alleged that the discipline was untimely, coming almost six years after the first alleged act of misconduct until the Department’s agency-level decision, an unreasonable period of time that impacted his ability to grieve a flawed process and manage his career. Grievant also argued that the Department did not meet its burden of proving the charges, appropriately weigh mitigating factors, or offer timely or proportionate discipline. Grievant argued that the charges should be dropped, or the penalty substantially reduced.
The Department responded that the complexity of the case and number of incidents leading to successive investigations, justified the time necessary to propose discipline. The agency also rebutted allegations that the discipline process was procedurally flawed, asserting that it properly assessed the charges and grievant’s misconduct, considered all mitigating factors, and levied a penalty that was both fair and proportionate.
The Foreign Service Grievance Board (“Board”) found that the Department met its burden of proving all charges and specifications. The Board found no procedural errors and concluded that the charges were not stale and the delay not prejudicial. The Board upheld the Department’s penalty determination process, including an assessment of all mitigating factors and review of appropriate comparator cases. The grievance was denied in full.
According to the ROP, the grievant was advised on January 25, 2017, “This case is still ongoing pending additional information.”8 Notwithstanding this notice, in February 2017, grievant was promoted to FS-03, still as an ARSO, retroactive to November 2016.9″
The small prints:
1 Although grievant was once tenured as a DS SA and promoted to FS-03 in that capacity, he subsequently changed careers to FSO generalist at a reduced grade of FS-04 and he remains untenured in that capacity.
9 The Department reported that grievant’s name was “temporarily removed from the rank order list of employees recommended for promotion by his 2016 FS Selection Board pending a standard vetting check …. [D]ue to his then-pending discipline cases, [he] should have been continually reported [as ineligible for promotion] in the ensuing vetting checks …. [I]t appears that [grievant’s] name was not properly reported [in early 2017] … resulting in the erroneous reinstatement of his name to the promotion list.” See Agency Amended Response to Board Request for Information, at 3-4.
- See 2020-036 – 1-6-2021 – B – Order re Motion to Compel_Redacted.pdf
- 2020-036 – 09-21-2021 – B – Decision_Redacted.pdf
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.
The US Embassy in Addis Ababa went on “authorized departure” on November 3. Two days later, the embassy went on mandatory evacuation for non-emergency personnel and family members. (US Embassy Ethiopia Now Under “Authorized Departure” Order #voluntaryevac). The State Department has now urged U.S. citizens in the country to depart while commercial air is available as well as announced that the embassy is “unlikely to be able to assist U.S. citizens in Ethiopia with departure if commercial options become unavailable.”
Event: On November 5, the Department ordered the departure of non-emergency U.S. government employees and their family members from Ethiopia due to armed conflict, civil unrest, and possible supply shortages.
The Department of State urges U.S citizens in Ethiopia to depart now using commercially available options. The U.S. Embassy is unlikely to be able to assist U.S. citizens in Ethiopia with departure if commercial options become unavailable. Although seats on commercial flights currently remain available, we cannot predict when demand will exceed capacity.
Travel to Ethiopia is unsafe due to the ongoing armed conflict. Incidents of civil unrest and ethnic violence are occurring without warning. The situation may escalate further and may cause supply chain shortages, communications blackouts, and travel disruptions. The Ethiopian government declared a state of emergency on November 2, 2021.
Ethiopia: The security environment remains very fluid. The U.S. Embassy urges U.S citizens to depart now using commercially available options. Although seats on commercial flights are currently available, we cannot predict when demand will exceed capacity. https://t.co/XVe3fLaS3Y pic.twitter.com/RF4LQWxYqw
— Travel – State Dept (@TravelGov) November 7, 2021
Ethiopians Rally by Thousands to Support Abiy, Denounce US https://t.co/sroIpQrT59
— VOA Africa (@VOAAfrica) November 7, 2021
UPDATE U.N. aid chief @UNReliefChief Griffiths and @_AfricanUnion special envoy to the Horn of Africa, Olusegun Obasanjo, landed in #Mekelle, one humanitarian source in #Ethiopia and one person familiar with the matter told @Reuters https://t.co/L920HZMPhn
— giulia paravicini (@giuliaparavicin) November 7, 2021
“We thought this time would be different … I can’t believe I’m living through it again.”https://t.co/Vx48HiKLsH
— Jeffrey Smith (@Smith_JeffreyT) November 5, 2021
“One of those victims, current State Department official Mark Lenzi, sustained traumatic brain injuries while on assignment in Guangzhou, China, in late 2017, when he was working as a security engineering officer in the Bureau of Diplomatic Security.
Lenzi provided documents to POLITICO that detail his claims that State’s leadership has retaliated against him for speaking out publicly and for working with the members of Congress who have been investigating the matter.”
“On his first day as secretary of State, Secretary Blinken — who I know and have the utmost respect for — told the Department of State workforce that he ‘would not tolerate retaliation against whistleblowers,’” Lenzi said. “However, under his tenure, retaliation against me by the State Department’s Diplomatic Security Bureau for my whistleblowing activities with the U.S. Office of Special Counsel and with Congress has actually increased.”
Since then, Lenzi says, the State Department has retaliated against him in a number of ways. Documents viewed by POLITICO show that the department most recently yanked his administrative leave last month — forcing him to use sick leave or leave-without-pay to participate in medical studies and attend therapy sessions — and has denied him access to his classified computer system, even though he retains his top-secret security clearance.
The federal agency that handles whistleblower claims previously found “a substantial likelihood of wrongdoing” in the case of Lenzi and his claims of retaliation, according to an April 2020 Office of Special Counsel memo. That retaliation probe is ongoing.
EXCLUSIVE: The State Department was administering its own internal medical tests specifically designed to evaluate patients who experienced “directed energy exposure” as early as 2018—years before telling Congress.
We have the documents.
— Andrew Desiderio (@AndrewDesiderio) October 25, 2021
We also got documents showing that the UPenn brain injury study that the victims were sent to was initially “sponsored by the U.S. gov’t,” but 2 months later that reference was removed.
— Andrew Desiderio (@AndrewDesiderio) October 25, 2021
Last spring, Mike Pompeo confirmed the case of Catherine Werner. The Penn study found her brain injuries matched the Cuba victims, but for unclear reasons, the State Department is raising doubt about the other 14 China cases, including that of Mark Lenzi https://t.co/BLezoR1c0U pic.twitter.com/WI7oZTeDxY
— 60 Minutes (@60Minutes) March 17, 2019
- 2021: UHI in the News: ‘Havana Syndrome’ and the Mystery of the Microwaves
- Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome Sept 2021
- @NewYorker: Vienna Is the New Havana Syndrome Hotspot July 2021
- Havana Syndrome Questions @StateDept Refuses to Answer April 2021
- @StateDept Designates Amb. Pamela Spratlen as Senior Advisor to the Havana Syndrome Task Force March 2021
- Inbox: Are there treatments that work? #HavanaSyndrome March 2021
- @StateDept Updates FAM For Individuals Serving as Designated Chiefs of Mission March 2021
- Mystery Illness: “a much larger scale and widespread attack against our diplomatic corps, and our families” March 2021
- Oh ARB China, Where Art Thou? Feb 2021
- Havana Syndrome: @StateDept Says Investigation “Ongoing and Is a High Priority” Feb 2021
- ARB on Havana Syndrome Response: Pray Tell, Who Was in Charge? Feb 2021
- @StateDept’s Mystery Illness: The “It Depends” Treatment of Injured Personnel Oct 2020
- @StateDept Updates Regulations to Include New Compensation For Certain Injuries #MysteryIllness #TheThing July 2020
- Wait, they want an employee to “prove causation” for a mystery illness? July 2019
- The Havana Syndrome in the News, and Some Questions For Foggy Bottom’s New “M” June 2019
- Mystery Illness: @StateDept Raising Doubt About 14 China Cases #TheThing March 2019
- Yo! The Thing. Still Going on in China? Dec 2018
- Is @StateDept Working to Minimize the Health Attacks in China? #Cuba #MissingARBs Oct 2018
- What did we miss? USCG Guangzhou Security Engineering Officer Mark Lenzi Disputes State Department Statement on Mystery Illness July 2018
- U.S. Consulate General Guangzhou – What’s Going On? May 2018
- Can sound be used as a weapon? 4 questions answered #USEmbassyHavana March 2018
- Dusting Off the Moscow Microwave Biostatistical Study, Have a Read Sept 2017
- U.S. Diplomats in Cuba Sonic Attacks: As Serious as Mild TBI/Central Nervous System Damage? August 24, 2017
- 16 USG Employees in “Sonic Attack” and More on The Secret History of Diplomats and Invisible Weapons August 28, 2017)
- Microwaving U.S. Embassy Moscow: Oral History From FSOs James Schumaker and William A. Brown August 29, 2017
In October 2018, State/OIG issued a Review of Allegations of Improper Passport Seizures at Embassy Sana’a, Yemen. The report indicates that the “Department did not follow relevant standards” and that ” officials did not comply fully with required procedures.” OIG said that “Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined:
The Department does not have a central system to track passport confiscations or retentions. As a result, OIG could not determine the number of passport seizures that occurred at Embassy Sana’a from 2012 to 2014, and the total number remains uncertain. However, because one document provided by the Department contained a list of 31 names with dates on which the passports were taken, OIG focused on these cases.
There are two bases in Department regulations that govern its authority to take passports from U.S. citizens: “retention” and “confiscation.” Regardless of the authority by which the Department took the passports at issue here, the Department did not follow relevant standards. If the Department “retained” the passports, officials did not comply fully with required procedures. Furthermore, although the Department acknowledged that retentions are temporary measures, it held many of the passports in question for months (and in some cases, over a year), suggesting that the Department effectively confiscated these documents. Confiscation is permitted only after revocation or pursuant to an arrest. Revocation is the formal process by which the Department invalidates an individual’s passport. Neither an arrest nor revocation occurred before any of the passports were taken.
The Department also failed to comply with relevant standards when it ultimately revoked the passports in all but one of the cases OIG examined. Although the Department must notify the holders in writing of the reason for revocation and their right to appeal, OIG could not confirm that these notices were sent in every case. Even if notices were sent, the affected individuals remained uninformed about the status of their passports for lengthy periods (in one case, almost 2 years). OIG also identified instances where individuals contacted the Department with questions and received limited information or no response at all.
OIG also identified other concerns. First, the lack of a single legal authority within the Department led to significant difficulties in resolving key legal issues. Second, although the Department has updated its policies, issues remain unresolved, including conflicting interpretations of the Department’s authority to seize passports and uncertainty regarding eligibility for limited validity passports.
On October 20, 2021 — that’s right, three years later this month — the State Department/Diplomatic Security finally updated 12 FAM 220 of the Foreign Affairs Manual on the recovery and seizure of U.S. passports. The notation on the change transmittal says “Updated as a result of the Office of the Inspector General report on Yemen Passport Seizures”. The bold parts are highlighted in the FAM.
12 FAM 224.1-5 Recovery and Seizure of Passports
a. 22 CFR 51.7 (a) states that a passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.
b. CA/FPP or CA/PPT may request DS confiscate a passport that CA/PPT issued. See 12 FAH-4 H-124.2. The Department’s authorized representative (usually the case agent) is authorized to confiscate a revoked passport. If the bearer refuses to do so, CA/PPT may invalidate the passport by notifying the bearer in writing of the invalidation (22 CFR 51.4).4
c. Only CA/PPT/S/A may revoke U.S. passports. DS agents may lawfully seize a U.S. passport pursuant to:
(1) A search warrant;
(2) An arrest warrant;
(3) A lawful, warrantless seizure pursuant to a warrant exception when robable cause exists that the U.S. passport itself is evidence of a crime;
(4) The express consent of the subject; or
(5) A court order.
If CA intends to revoke the passport of a subject of a DS investigation, and DS has presented the case to DOJ for prosecution, the DS special agent must inform the prosecutor about the passport revocation.
d. All property acquired by DS will be collected and treated as though it were evidence to ensure proper handling until such determination is made. Special agents may only acquire property in accordance with the law as it relates to searches and seizures, judicial forfeiture, and by voluntary delivery by the owner. Occasionally, items may be seized or taken into custody for safekeeping (i.e., high value items, illegal drugs, firearms and weapons, etc.). Special agents are not authorized to acquire property in any other manner other than by direction of CA to recover U.S. passports.
e. The procedural aspects of passport seizure by a DS special agent are contained in 12 FAH-4 H-120. That section contains important information as well as relevant timelines for notification to the Department of the seizure.
f. For more information on passport revocations, see 8 FAM 804, Revocation.
g. DS may receive recovered U.S. passports from different sources, such as local law enforcement, local governments, airlines, and transportation centers. To maintain the integrity of the U.S. passport as a secure travel document, CA/PPT makes every effort to account for the final disposition of all U.S. passports. Therefore, DS should mail all found or recovered (not seized or confiscated) U.S. passports to CA/PPT at …
12 FAM 220 Investigations
- USDOJ Drops US Embassy Yemen Passport Revocation Case Sans Explanation 2016
- Coalition of Civil Rights Groups Seek State/OIG Investigation Into US Embassy Yemen’s Passport Revocations (Jan 2016)
- Why Are Court Cases Related to US Passports and Immigrant Visas in Yemen and Pakistan Sealed? (Nov 19, 2015)
- Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport (Oct 14, 2015)
- US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?) Jan 13, 2014
- New Travel Warning for Yemen — Don’t Come; If In Country, Leave! But Some Can’t Leave 2014
The State Department made an administrative change to 3 FAM 8210 to add supplementary guidance on the Suitability and Security Clearance Determinations process in 3 FAM 8215.1. It now includes suitability determination requirement for Appointment Eligible Family Members (AEFM) working for Consular Affairs.
3 FAM 8215 Suitability and Security Clearance Determinations
3 FAM 8215.1 Suitability Determination
(Applies to Appointment Eligible Family Members Only)
a. In all cases, individuals to be appointed under a family member appointment will be subject to appropriate investigation to determine suitability for employment.
b. Except as noted in c. below, in the event that information is developed that raises a question of suitability for employment, the Bureau of Diplomatic Security’s Office of Personnel Security and Suitability (DS/SI/PSS) will refer the case to the Personnel Review Panel (as established under 3 FAM 2150), which will make a suitability determination as to whether an individual may be appointed under a family member appointment.
c. In all cases, individuals to be appointed to positions under the Consular Affairs Appointment Eligible Family Members Program will be subject to a suitability determination by a Suitability Review Panel (SRP), as stipulated in 3 FAM 2215.1a.
3 FAM 2215.1 Suitability Review Panel
(Applies to all Foreign Service applicants)
a. A Suitability Review Panel (SRP) makes suitability determinations for appointment of career candidates in the Foreign Service, for the reappointment of a career member to the Foreign Service, for the recall of a career member to the Foreign Service (except in cases where the recalled individual is also the subject of a Presidential or other political appointment), for Civil Service candidates converting to the Foreign Service and for limited non-career appointments to the Foreign Service. A Suitability Review Panel does not make determinations for family member appointments, except for individuals to be appointed to positions under the Consular Affairs Appointment Eligible Family Members Program. A Suitability Review Panel will also review the candidacies of any current Foreign Service employee converting to another skill code if derogatory information arises prior to the candidate’s conversion. Except as provided below, candidates, except those applying for a position with Diplomatic Security (DS), who have been found suitable for appointment by a SRP within the previous two years do not require a new suitability review.
b. After the medical examination clearance has been issued, and the background investigation, which is not more than three years old, is received, a candidate’s entire file (except the medical records) is reviewed and evaluated by a SRP to determine the candidate’s suitability for the Foreign Service under the standards set forth in 3 FAM 2215. DS will re-submit applicants to the qualifications panel (3 FAM 2216.2-3) if they are found to have falsified information on their application or are found to have other disqualifying factors.
c. Suitability Review Panels for the Department of State must consist of two or more assessors from the Board of Examiners, or, in the case of Diplomatic Security or Medical Specialist candidates, one of the assessors may be a subject matter expert appointed to the Suitability Review Panel (SRP) by the Director of GTM/TAC/BEX. In the case of a candidate for appointment to the Senior Foreign Service, the SRP must consist of at least three Assessors who are career Senior Foreign Service Officers (FSO). The majority of the officers on the Senior Foreign Service Officer SRP, including the panel chairperson, must be career Senior FSOs.
d. Candidates found suitable for appointment will have their names forwarded to the Office of the Registrar in the Bureau of Global Talent Management (GTM/TAC/REG). Prior to appointment in the Foreign Service, the Department of State may, at its discretion, elect to review once again the candidate’s suitability for employment should information become available that the Suitability Review Panel had not previously had access to that raises questions about the Suitability Review Panel’s original suitability determination.
e. The candidacy of any candidate who is not found suitable for appointment by a Suitability Review Panel will be terminated and the candidate will be informed of the termination and the right to appeal in writing. An unfavorable suitability determination for a Foreign Service candidacy, other than a candidacy for a Diplomatic Security position based solely on reasons found in 3 FAM 2215.2-6 (15), terminates other pending Foreign Service candidacies. An unfavorable suitability determination for a Diplomatic Security candidacy solely under 3 FAM 2215.2-6 (15) may not necessarily terminate other pending, non-DS Foreign Service candidacies.
f. Candidates, other than candidates for Diplomatic Security positions whose candidacy was terminated solely under 3 FAM 2215.2-6 (15), not found suitable for appointment by a Suitability Review Panel are ineligible to apply for Foreign Service positions for a period of two years from the date of the unfavorable suitability determination. Candidates for Diplomatic Security positions whose candidacy was terminated solely under 3 FAM 2215.2-6 (15) will remain eligible to apply for non-Diplomatic Security positions.
3 FAM 2215.2 Suitability Standards for Appointment to the Foreign Service
3 FAM 2215.2-1 Applicability
(Applies to all Foreign Service Applicants)
This section applies to all applicants for employment in the Foreign Service. This section does not apply to family member appointments, except for individuals to be appointed to positions under the Consular Affairs Appointment Eligible Family Members Program. Standards of conduct for continued employment in the Foreign Service are found in 3 FAM 4130.