The Pentagon’s policy on death in action is clear.
Instead of caring for Garilynn Smith with the dignity and respect due to a Gold Star family, the Army denied her a promotion after she publicly protested the desecration of his partial remains in a Virginia landfill, a federal labor and management panel declared last week.
Her complaints led to Washington Post revelations in 2011 that “the Air Force dumped the incinerated partial remains of at least 274 American troops in a Virginia landfill, far more than the military had acknowledged, before halting the secretive practice” in 2008.
Uncle Sam’s head must be spinning.
The new ruling by the Merit Systems Protection Board (MSPB), a quasi-judicial agency that considers disputes between federal agencies and employees, orders the Picatinny Arsenal in Morris County, N.J., to appoint Smith to the executive assistant position she had been denied and give her back pay with interest and benefits in compensation for the Army’s retaliation against her. She began at the arsenal in 2007 and was an administrative assistant from 2010 to 2012.
Smith, 42, no longer works there and doesn’t want the job now.
The MSPB action is one of the first decisions by the panel in five years. Graig Corveleyn, Smith’s lawyer, likened the ruling to an MSPB “coming out party” and noted the positive implications for future whistleblower cases. The MSPB had no quorum during the Trump administration and could not function until President Biden’s nominees took office last month, after being approved by the Senate. That delayed Smith’s case. Now the new MSPB members are tackling a backlog of 3,600 cases.
When Smith, of Frenchtown, N.J., was told in a phone call from the mortuary at Dover Air Force Base that some of her husband’s remains were in a landfill, “I screamed at this guy and hung up the phone.”
In an interview, she recalled the Dover official saying Scott “‘was cremated with the rest of the medical waste from the hospital and thrown in the trash.’ Those were his exact words … I don’t have to write those down. I will never forget the feeling and the sheer anger that surged through me when I heard these words.”
That information was confirmed in an April 2011 letter from Air Force’s Mortuary Affairs Operations, which cares for remains from all military branches. It said Scott’s remains were cremated “then turned over to a medical disposal company … The material was, at that time, taken to a landfill. The landfill used then is in King George County VA.”
The letter offered the military’s hope that “this information brings some comfort to you during your time of loss.”
Of course, it didn’t. Adding to Garilynn’s discomfort, the letter also had Scott’s name wrong and misstated the year it was written. Ironically, the disturbing letter was written on the sergeant’s birthday. He would have been 50 years old Thursday.
An Air Force statement said its commitment “to the fallen and their families has never wavered and we continue to take decisive steps to improve our processes.” Now “all unidentified remains” are buried at sea. “There was disciplinary action taken at the time against the Air Force Mortuary Affairs commander and chief deputy for retaliation against whistleblowers,” the statement added.
Instead, of comforting Garilynn, the letter propelled her “to push for answers” on how the military “could treat the remains of any fallen servicemember in such an undignified manner,” Administrative Judge Daniel F. McLaughlin wrote in his 2017 opinion. It was upheld by MSPB after the Army appealed.
Part of Smith’s push was contacting news organizations, including The Post. Shortly after the application period for the executive assistant position closed, “additional news articles were published to remind agency personnel” about Smith’s disclosures, according to the administrative judge’s decision, including a Post article that carried a photo of her honoring her husband at the landfill.
“Almost immediately after these news stories appeared,” the ruling continued, her job prospects fell. A Picatinny employee involved with hiring had been “100 percent absolutely” in favor of Smith. After publication, the employee’s “attitude towards [Smith] took a noticeable turn towards the negative,” McLaughlin wrote. The arsenal’s supervisors’ complaints about Smith’s sick leave and telework requests are “not supported by the factual record,” he added. “Moreover, the concern about her request to telework is an odd one given that she made it so as to be able to continue to work for the agency rather than be unable to make any work related contributions while out on maternity related sick leave following a Caesarean section.”
Having lost before the administrative judge, the Army responded by attacking him in its appeal to the board.
The Army began and ended its appeal by claiming McLaughlin was “obviously sympathetic” to Smith. McLaughlin, the Army alleged, “decided to punish the Agency because the United States Air Force mishandled part of her late husband’s remains.” It argued, among other things, that the judge ignored testimony, made erroneous findings of fact and “violated standard practices” regarding evidence.
Board members didn’t buy that. Both Democrat Raymond Limon, the acting chair, and Republican Tristan Leavitt agreed the Army “failed to prove its allegation of judicial bias” and provided “no basis to disturb” the administrative judge’s decision. MSPB is awaiting a third member.
Furthermore, Limon and Leavitt admonished the Army, writing it “should be disabused of the notion that a landfill is a dignified resting place for the remains of a U.S. Army Soldier who gave his life in the service of his nation.”
Not done, they sent a message to Defense Department officials, blasting “the reprehensible manner” in which the military handled Scott’s and other military remains and the Army’s “appalling suggestion that dumping service members’ remains in a landfill could ever qualify as ‘the requisite care, reverence, and dignity befitting the remains and the circumstances.’”
A Pentagon statement said it is considering appealing the board’s decision to federal court.