SFRC Senators Express “Concern” to @SecBlinken For @StateDept’s Handling of #HavanaSyndrome

 

In a letter to Secretary Blinken, Senators from the Senate Foreign Relations Committee writes We believe this threat deserves the highest level of attention from the State Department, and remain concerned that the State Department is not treating this crisis with the requisite senior-level attention that it requires. “
Also that the Senators continue to hear concerns that the Department is not sufficiently communicating with or responding to diplomats  who have been injured from these attacks. We are also concerned that the Department is insufficiently engaged in interagency efforts to find the cause of these attacks, identify those responsible, and develop a plan to hold them accountable. “
The Senators urged a replacement for Ambassador Spratlen imediately:
“We urge you to immediately announce a successor to Ambassador Spratlen to lead the Department’s Health Incident Response Task Force. Critically, this post must be a senior-level official that reports directly to you. It is incumbent that this individual has the experience to engage effectively with affected individuals and with the interagency. As you know, pending bipartisan legislation in the Senate would require the Secretary to designate an agency coordinator for AHIs who reports directly to you. We ask that you take this step now to demonstrate that the State Department does take this matter seriously, and is coordinating an appropriate agency-level response.”
Finally, the senators write, We wish to support the State Department and U.S. personnel through every means possible, and to support the Department in effectively addressing this national security threat. We look forward to receiving your response, and to your heightened engagement on this issue.”
The letter is available to read here.
The State Department has a response from the podium but we’ll save you the anguish of having to read the same thing all over again.
Just yesterday, we got another email in our inbox that says “Those DPB comments are utter bullshit.”
The spox did say that “… we want to make sure that those who have come forward are getting the care that they need. And I can give you quite a bit in terms of what our Bureau of Medical Services has done, including since January of this year, to ensure that those who come forward are getting that care.”
But …. but… how are they getting the care they need?
If folks can’t even get an email response from MED except for a form email?
At least there’s a form email, right?
But that feeling when you’re worried you may have a brain injury and you get a form email — apparently, that does not generate a warm feeling of WE’RE HERE FOR YOU, WE CARE.
The senators are right to remain concerned. Foggy Bottom typically responds to a few external pressures — the courts, the press, and yes, attentiveness from the Congress.

 

Related post:

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#HavanaSyndrome at U.S. Embassy Bogotá: Who should be in the business of confirming these incidents?

 

Via Daily Press briefing, October 12, 2021:
QUESTION: … And can you confirm the Havana syndrome cases or deny it, or just address that in Colombia embassy in Bogotá, in U.S. Embassy in Bogotá?
MR PRICE:  …. When it comes to Havana syndrome, you will probably not be surprised to hear me say we are not in the business of confirming reports. But —
QUESTION: But I don’t understand, why are you not in the business of confirming reports? This is squarely about State Department personnel. These are happening at U.S. embassies. Who should be in the business of confirming these incidents?
MR PRICE: We are in the business of, number one, believing those who have reported these incidents, ensuring that they get the prompt care they need in whatever form that takes, whether that is at post, whether that is back here in the Washington, D.C. area. We are in the business of doing all we can to protect our workforce and the broader chief of mission community around the world.
QUESTION: So have they reported in Bogota U.S. embassy?
MR PRICE: I’m sorry?
QUESTION: Have they reported – like, are you doing all of those things for U.S. embassy in Bogota?
MR PRICE: We are doing this everywhere an anomalous health incident is reported. But we are also doing things universally, and we are communicating with our workforce. We are instituting new training modules to ensure that outgoing State Department officers know how to detect a potential anomalous health incident, they know how to report a potential anomalous health incident, they know who – to whom to turn should they need to report it, they know the type of assistance that they can receive. Their families are apprised of these dynamics as well. And as you know, the Secretary has had an opportunity to meet with some of those who have reported AHIs.
There is no higher priority that the Secretary has to the health, the safety, the security of our workforce. I’ve said this before, but even before he was Secretary of State, one of the briefings he proactively requested as the nominee for the office he now holds during the transition was a comprehensive briefing on so-called Havana syndrome or anomalous health incidents. He wanted to make sure he entered this job understanding where we were and what we had done, and importantly, what this department could do better to support our workforce at all levels. And we have taken a number of steps, including in terms of communication, in terms of care, in terms of detection, in terms of protection for our workforce, and that is something that will continue to be a priority for the Secretary.
Francesco.
QUESTION: Just to follow up on that, it was this building that (inaudible) spoke about those cases in Havana and then in China. Why aren’t you confirming for the sake of transparency where there are cases reported – if they are Havana syndrome or not, it’s another thing, but where there are reported incidents, why aren’t you doing that? And then I have another question on Cuba protest.
MR PRICE: So in many cases it is a matter of privacy of individuals, wanting to respect privacy. But let me just make clear that when cases have been reported, our posts overseas have communicated that clearly to the community within the embassy. We have also engaged – Brian McKeon has engaged with posts that have reported a number of anomalous health incidents. So it is not – certainly not – the case that we are ignoring this. We are just not speaking to the press, we’re speaking to our workforce, as you might expect when it comes to a matter of their health and safety and security.
GRRRR! STOP THAT BROKEN RECORD!
Excuse me, was I loud? That’s nice that they value the privacy of individuals.
Requesting a confirmation of reported cases at one post does not require that the State Department released the names of the affected individuals. Did it happen there or not? So how does that actually compromises employees’ privacy?
And while we’re on the subject of “when cases have been reported” … how many emails do employees need to send to how many entities within State/MED –MEDMR? MEDHART? MEDFART? MEDFUCKIT– before anyone get the courtesy of a response?
We regret to say this but there’s no shortage of opportunities for Foggy Bottom to disappoint these days.
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Havana Syndrome: Did the NSA Say It Was Crickets, Too, in 2014?

2016-2018 (JASON Report Released via FOIA)
JASON report: “Acoustic Signals and Physiological Effect on U.S. Diplomats in Cuba”

2020 (Report Released by National Academy of Sciences)
An Assessment of Illness in U.S. Government Employees and Their Families at Overseas Embassies

2016-2019 (Released via FOIA in 2019)

“Cuba Unexplained Events Investigation—Final Report: Havana, Cuba, August 2016 to March 2019,”

2018: JAMA

Neurological Manifestations Among US Government Personnel Reporting Directional Audible and Sensory Phenomena in Havana, Cuba

2014 (NSA Case)

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HAVANA Act of 2021 Passes Congress, Heads to President Biden’s Desk

 

We blogged about the Havana Act in August 2021 (see Helping American Victims Afflicted by Neurological Attacks Act of 2021 Awaits Passage in the House, You Can Help). On September 21, the House unanimously passed legislation in a 427-0 vote to compensate USG employees who experienced traumatic brain injuries while serving in Cuba, China and other locations, also known as the Havana Syndrome. The U.S. Senate passed the HAVANA Act in June. The bill now heads to the White House for President Biden’s signature.

Blinken’s #HavanaSyndrome Meeting, Also Spratlen is Out as Task Force Advisor

 

On September 3, we blogged about the Havana Syndrome again: Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome.
On September 21, NBC News reported that Secretary Blinken finally did meet with diplomats who were afflicted with the  Havana Syndrome mystery illness. It did not go very well, did it?
Via NBC News:

“It’s just incredibly sad. It’s the worst part of bureaucracy,” one of the diplomats said, describing the call as “identical to so many other phone calls” where they’re told about protocols in place to ensure proper treatment. “It’s so maddening because those protocols aren’t in place — not the way they think they are.”
[…]
A senior State Department official, responding to questions about Blinken’s call with the diplomats, acknowledged that there’s “frustration” among the group about a perceived stigma or lack of empathy by their colleagues, but said it did not extend to those at the top.

“That’s certainly not the case with the secretary and the senior leadership,” the official said in an interview. “Everyone is taking it seriously as a real issue that is affecting people who are experiencing real symptoms.”

Which members of the senior leadership is the SDO official talking about?

Diplomats told NBC News they were dismayed that Ambassador Pamela Spratlen, tapped by the Biden administration to oversee the State Department’s response, declined to conclusively rule out the mass hysteria theory.
[…]
One diplomat on the call described that response as “invalidating and inconsiderate.” Another said that Spratlen was “very clearly saying that she has not ruled out that we’re crazy.”  “In the end, we were interrupting Spratlen to try to get people in” to speak, a third diplomat on the call said. “It was ugly.”

Folks, if they’re talking about protocols in place that aren’t in place almost seven months after Blinken took office, then one can’t help but agree that Secretary Blinken is treating this “as an afterthought” as per former Senior CIA official Marc Polymeropoulos.
Another reason why we agree? Ambassador Spratlen who was appointed as Senior Advisor to the Havana Syndrome Task Force back in March is reportedly leaving after six months on the job. “The State Department says she’d reached her threshold of allowed labor hours under her status as a retiree.
Well, dammit! So Foggy Bottom did not know that she’s going to max out on her allowed labor hours? Excuse me, did they think this job is going to be done after 950 hours on the job? (Also see Havana Syndrome Questions @StateDept Refuses to Answer). Note that State Department’s re-employed annuitant employees can work no more than 1,040 hours during their appointment year.
McClatchy says that Blinken “considers choosing her [Spratlen’s] replacement an important decision, a senior State Department official said.
“The secretary has been seized with this issue even before he became secretary,” the official said. “One of the meetings he proactively requested before the transition was on this issue.”
Oh holymoly guacamole, give it a rest PR people! This is an old, old tired trick, even an old dog would not pick up this stick!
Frankly, this is  getting to be so exhausting! Look. The fact of the matter is it doesn’t matter if Secretary Blinken requested “proactively” a meeting on the Havana Syndrome issue BEFORE the transition.
In fact, the next State Department official to bring up Blinken’s request for a Havana Syndrome briefing before the transition should be promptly fired for persistently living in the past.
What matters is — what Blinken is doing about this issue NOW.

UHI in the News: ‘Havana Syndrome’ and the Mystery of the Microwaves

 

More clips about the unexplained health incidents (also known as Havana Syndrome) from BBC, an interview with retired CIA officer with PRI, and another case reported from the Canadian Foreign Service where “A high-ranking Canadian diplomat in Cuba was flown home for assessment this year after experiencing an attack consistent with Havana syndrome.”
Via BBC:

“This is not Havana syndrome. It’s a misnomer,” argues Mr Zaid, whose clients were affected in many locations. “What’s been going on has been known by the United States government probably, based on evidence that I have seen, since the late 1960s.”

Since 2013, Mr Zaid has represented one employee of the US National Security Agency who believed they were damaged in 1996 in a location which remains classified.

Mr Zaid questions why the US government has been so unwilling to acknowledge a longer history. One possibility, he says, is because it might open a Pandora’s Box of incidents that have been ignored over the years. Another is because the US, too, has developed and perhaps even deployed microwaves itself and wants to keep it secret.

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Related posts

 

 

CDC Requires COVID-19 Vaccination For Immigrant Visa Applicants Effective 10/1/21

 

Via CDC: CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians:

The current pandemic of Coronavirus Disease 2019 (COVID-19) has been determined by the World Health Organization (WHO) to be a public health emergency of international concern (PHEIC) under the International Health Regulations. COVID-19 meets the definition of a quarantinable communicable disease under 42 USC 264 and Executive Order 13295, as amended by Executive Order 13375 and 13674. Specifically, COVID-19 meets the definition of severe acute respiratory syndromes as specified by Presidential Executive Order 13674external icon (issued July 31, 2014), thus making it a Class A Inadmissible Condition.

Applicants, defined in these Technical Instructions as people applying for immigrant or refugee status, as well as non-immigrants who are required to have an overseas medical examination, are medically screened days or weeks prior to travel to the United States (US). Thus, a negative screening for COVID-19 at the time of the medical evaluation does not guarantee the applicant will not have COVID-19 at the time of immigration to the United States.

A combination of vaccination, strategic testing, and routine infection control practices will provide the best protection from COVID-19 for applicants and US communities. These instructions provide requirements for COVID-19 vaccination and testing for applicants.  The Instructions in this document are to be followed for COVID-19 when assessing applicants from all countries.  These Technical Instructions are effective from October 1, 2021 until the Centers for Disease Control and Prevention (CDC) determines these Technical Instructions are no longer needed to prevent the importation and spread of COVID-19.
[…]

Other reasons why an applicant might not complete a COVID-19 vaccine series:

  • Applicant may request a waiver based on religious or moral convictions
    If an applicant objects to vaccination based on religious or moral convictions, it must be documented that the applicant is requesting an individual waiver based on religious or moral convictions. This is not a blanket waiver. The applicant will have to submit a waiver request to US Citizenship and Immigration Services (USCIS). USCIS will determine if this type of waiver is granted, not the panel physician or CDC.
  • Applicant refuses a COVID-19 vaccine series in part or entirety
    If an applicant refuses one or more doses of an approved COVID-19 vaccine series that is medically appropriate for and available to the applicant, it should be documented that the vaccine requirements are not complete and that the applicant refuses vaccination. This applicant is Class A and is inadmissible to the United States.

Read the entire guidance here.

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Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome

 

During the August 18 State Department Press Briefing, a reporter asked about the Unexplained Health Incidents  (UHI) also known as the Havana Syndrome that was reported at the US Mission in Germany. Below is the exchange:

QUESTION: Can you – one non-Afghan question, please? I – thank you. I’m seeing reports that there are some cases of Havana – so-called Havana Syndrome in Berlin, at the embassy in Berlin. Can you speak to that? Are you aware of it? What is the State Department doing to protect its staff?

MR PRICE: So, I am – I have seen these reports, of course. This is something that we vigorously investigate, the so-called anomalous health incidents or unexplained health incidents in coordination with our partners across the government. Any employees who have reported a possible unexplained health incident, they have received immediate and appropriate attention and care.

These health incidents I can tell you have been a top priority for Secretary Blinken. I think I mentioned this before, but he proactively requested two sets of briefings during the transition. This was one of them, because even before he was Secretary of State, he wanted to know precisely what we knew, what this department knew at the time, and what we were doing to respond to this.

He has set clear goals for what we call here the Health Incident Response Task Force to – number one, to strengthen the communication with our workforce, of course, to provide care for affected employees and their family members, and to do what we can to protect against these incidents working together with the interagency, and, of course, to find the cause of what has been afflicting these members of our team. He noted to the workforce – I guess it was a couple weeks ago now – that there is nothing that we take more seriously than the health of our workforce.

And that’s why there is a major effort underway in this department, there is a major effort underway across the interagency to determine the cause and to, of course, provide the level of care, the level of communication, the level of feedback that our employees need and deserve. This is a priority. Ambassador Spratlen, as you know, the – Secretary Blinken named her as the head of the task force. She works very closely with the Deputy Secretary for Management and Resources Brian McKeon on this. They are working very closely in turn with Secretary Blinken. We’ll continue to do that. We’ll continue to work with our interagency partners to ensure that our employees, both those who have been affected by this have what they need, and those who are serving around the world, that we’re doing everything we can to ensure their safety.

***

NBC News subsequently reported that at least two U.S. diplomats will be medevaced from Vietnam due to UHI which occurred on the weekend ahead of Vice President Kamala Harris’ visit.
The State Department spox has previously mentioned on March 12, and again on July 19, that this is a top priority for Secretary Blinken and that the secretary has requested briefings regarding these incidents even during the transition.
One employee who was injured in these unexplained health incidents recently told this blog: “He has utterly failed in basic leadership 101 on this issue.”
The employee was referring to Secretary Blinken.
On August 2, a CNN headline blares “Havana Syndrome stokes fear and frustration among diplomats over response from State Department.

…frustration is rising among rank-and-file staffers and diplomats over what multiple officials say has been a tepid response by the department. Of particular concern is a lack of information from leadership, including what some say has been a hands-off approach from Secretary of State Tony Blinken who has yet to meet with any of the State Department victims despite saying he would prioritize the incidents.

On August 5, Secretary Blinken sent a memo to State Department employees saying in part “What I can tell you is that this is a top priority for me, the State Department, and leaders across the U.S. government.” CNN’s Natasha Bertrand tweeted that memo the same day.
Obviously, the Blinken memo to the troops was not a coincidence but a reaction to the CNN report three days earlier.
So the top leadership in Foggy Bottom is sensitive to media splashes, who knew? But managing perception can only go so far. How many more times can Secretary Blinken claim this as a “top priority” for him without ever meeting the victims of these incidents? Or addressing his employees directly in a town hall, for that matter? August 26 was the 6-month anniversary of his assumption as secretary of state; he’s no longer in the transition phase.
Folks might ask, but does Secretary Blinken really have to meet these people though? Or does he really need to meet anxious employees shipping out overseas where they and their loves ones could potentially be subjected to similar attacks? Why can’t Deputy Secretary Brian McKeon just talk to these folks? Mr. McKeon, after all, is the Deputy Secretary for Management and Resources.
Yes, Virginia. Secretary Blinken really do need to meet with his people and we’ll tell you why. Because Brian McKeon is not the Secretary of State. That’s why.
It is alleged also that the State Department is “withholding so much unclassified info” related to these attacks that often employees only hear things from the media; they aren’t hearing relevant information directly from State.
But .. but .. there’s Afghanistan, and Haiti, and Russia, and Ukraine, Eswatini, China …. on and on and on …. it never stops.
If Secretary Blinken is waiting for a break from foreign headaches and chaos before dealing with these serious concerns within the ranks, his staff could be waiting forever, y’all.
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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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