Guest Post: “How to Use the Privacy Act to Access an Army Adverse Information Program (AAIP) Portal Entry: A Guide to Seeing Your Records”
One of the key purposes of Lawfire® is to get relevant scholarship into the hands of practitioners as soon as possible, and today I’m pleased to tell you we are doing just that.
In a new article, “How to Use the Privacy Act to Access an Army Adverse Information Program (AAIP) Portal Entry: A Guide to Seeing Your Records,” popular Lawfire® contributor Maj Whitney Wiles teams with Maj David Retland to do a deep dive into a matter of great importance to Army officers (and their counsels!): adverse information in the officers’ records that may impact their promotion potential.
The problem is, as the authors explain, “very few officers are ever notified that [an] adverse finding was uploaded into the portal—let alone provided details regarding the substance of the uploaded summary.”
Whitney and David don’t just surface they issue, they go on to provide practical guidance as to how officers can “utilize The Privacy Act of 1974 to view their entries in the AAIP database.”
Below is an abstract to orient you to the topic, but be sure to read the full article found here
Abstract
In 2019, the FY20 National Defense Authorization Act (NDAA) mandated that the services conduct a pre-promotion board review of the files of all officers pending consideration for a promotion requiring Senate confirmation (O-4 and above on active duty and O-6 and above in the Reserves). This pre-board screen included a search for credible, adverse findings from officially documented investigations. If credible, adverse information was located, the NDAA required the information to be compiled and provided directly to promotion selection board charged with recommending (or declining to recommend) the officer for promotion.
To give this congressional change effect, in February 2023 the Army published Army Directive (AD) 2023-03, which required approval authorities to upload “adverse” administrative investigation findings (substantiated using the procedures of Army Regulation 15-6) made against officers in the grade of O-1 and above, into a database known as the Army Adverse Information Program (AAIP) portal.
Upload is required even if the adverse finding did not result in a reprimand, nonjudicial punishment, or punitive action. In other words, even if the approval authority believes no adverse action is warranted, he or she is nonetheless required to upload the substantiated finding into the AAIP portal if the finding meets the broad definition of “adverse” documented in Department of Defense Instruction (DoDI) 1320.04. Some time (possibly years) later, that adverse entry will be pulled from the AAIP portal, summarized, and provided directly to the officer’s promotion board.
The problem, as assessed by the authors of this article, is that the Army fails to notify officers when their adverse findings are uploaded into the AAIP portal. The Army does not prohibit notification, but it also does not encourage it. Likely due to concerns about equal and consistent treatment, this typically means that very few officers are ever notified that their adverse finding was uploaded into the portal—let alone provided details regarding the substance of the uploaded summary. Accordingly, some officers are totally unaware that they have an entry in the AAIP database until the eve of their applicable promotion board.
Majors Wiles and Retland believe the Army should notify officers of both the fact of upload and the contents of the summary entered in the portal. However, in the absence of such practice, this article explains how officers can utilize The Privacy Act of 1974 to view their entries in the AAIP database. The article provides a short history on the expansion of AAIP and outlines concerns associated with current Army practice. It then explains why The Privacy Act was promulgated, outlines the protections and benefits contained therein, examines how the Act applies to the AAIP portal, and provides a template request form that end users can utilize when seeking AAIP entries.
Again, you can access the full article here
Disclaimers:
The views presented in this article are those of the authors’ and do not necessarily represent the views, positions, or policies of the Department of Defense, the U.S. Army, the Judge Advocate General’s Corps, or any other agency of the U.S. government.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University (see also here).
About the Authors:
Major Whitney Wiles is an active-duty Judge Advocate in the United States Army, presently serving as a Complex Litigator in the Army’s Civil Litigation Division.
Her previous assignments include Legal Assistance Attorney, US Army Hawaii, 2012–2013; Administrative Law Attorney, 25th Infantry Division, 2013–2014; Trial Counsel, 3d Brigade Combat Team, 25th Infantry Division, 2014–2016; Senior Defense Counsel, Fort Leonard Wood Field Office, US Army Trial Defense Service, 2016–2018; Deputy Chief of Administrative Law, 21st Theater Sustainment Command, 2018–2019; Officer-In-Charge of Kleber Legal Services Center and Garrison Legal Advisor, Kaiserslautern, Germany, 2019–2020; and, Associate Professor of Administrative and Civil Law (Investigations, Sexual Harassment, Equal Opportunity), The Judge Advocate General’s School, 2021-2023.
Whitney is a member of the Illinois bar and holds a B.S. (Journalism) from Ohio University; a J.D from Florida Coastal School of Law; an LL.M (Federal Litigation) from the University of Virginia School of Law; and a second LL.M. (Military Law) from The Judge Advocate General’s School.
Major David Retland is an active-duty Judge Advocate in the United States Army, presently serving as the Assistant Executive Officer at The Judge Advocate General’s Legal Center and School.
His previous assignments include Legal Assistance Attorney, 2D Infantry Division, 2013-2014; National Security Law Attorney, United States Army Central Command, Camp Arifjan, Kuwait; 2014-2015; Trial Counsel, United States Army Central Command, 2015-2016; Chief of Military Justice and Administrative Law, United States Military Entrance Processing Command, 2016-2018; Brigade Judge Advocate, 48th Chemical Brigade, Fort Cavazos, Texas, 2018-2020; National Security Law Attorney, Combined Joint Task Force-Operation Inherent Resolve, Baghdad, Iraq, 2020; Special Victims’ Counsel Central Region Manager, III Corps, 2020-2021; and Associate Professor, Administrative and Civil Law (Government Information Practices), The Judge Advocate General’s School.
David is a member of the Michigan bar and holds a B.A. (Criminal Justice) from The Citadel; a JD from Michigan State University College of Law; and an LL.M. (Military Law) from The Judge Advocate General’s School.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
