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• Early Life • Work in the California National Guard • Book and Legal Case • References • Further reading • External links

Janetra Johnson • Early Life • Work in the California National Guard • Book and Legal Case Janetra Johnson is the author of Still Waiting… a memoir about a period of time in which there were two controversies alleging the destruction of Bush performance documents. The book goes back to examine the George W. Bush military service controversy and the Title VII doctrinal revolution controversy in the federal court system.

During the first document controversy, 60 Minutes II ran into trouble in September 2004 when Mary Mapes and Dan Rather aired criticism of President George W. Bush military service. This controversy was started by Lt. Col. Bill Burkett who said that Bush’s performance and pay records were removed from his Guard file to bolster his chances in his 2004 run for President against John Kerry. Years later, Bush’s performance controversy was dramatized in Truth (2015 film), starring Robert Redford as Dan Rather and Cate Blanchett as Mary Mapes and directed by James Vanderbilt. It is based on Mapes' memoir Truth and Duty: The Press, the President and the Privilege of Power.

The book brings the second controversy to light, in which Janetra Johnson alleged while in the courtroom, on November 5, 2009, Guard officials failed to preserve a previous version of its performance evaluation policy covering National Guard Dual-Status Technicians (DST) 32 U.S.C. in its military departments.

Janetra began her electronic discovery into the California Military Department nearly a decade ago as an informia pauperaus litigant. In February 2009, she made a federal inquiry into the California National Guards performance evaluation policy. The legal argument was that the California military departments’ performance evaluation policy was fundamentally flawed and that was the legal basis of her discrimination claim. Basically, George W. Bush and his state’s adjutant general did not have a legitimate performance evaluation policy for dual-status technicians during the wars in Iraq and Afghanistan. This is important because questions about Bush's performance in the National Guard have arisen in every campaign he has run since his 1994 race for governor, and when he became president there were still more questions about his performance as Commander-in-Chief. George W. Bush launched two wars—the Afghanistan and Iraq conflicts. The United States Court of Appeals for the Ninth Circuit in Johnson v. Departments of the Army and Air Force; et al., case No. 10-16450 (06 January 2012), decided “The district properly dismissed Johnson’s employment discrimination and tort claims as precluded by the Feres intra-military immunity doctrine.” See Zuress v. Donley, 606 F.3d 1249, 1250, 1252-55 (9th Cir. 2010). (Noting that the Feres doctrine applies “whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the Armed Forces of the United States.”

Eradicating the States’ Discriminatory Evaluation Policy

The National Guard States’ Technician Appraisal Program, authorized the adjutant generals in each of the fifty states to establish their own performance evaluation policy. Under the State’s Technician Appraisal policy, the California Military Departments maintained a two-tiered, Pass-Fail performance evaluation process for dual-status technicians.

On June 1, 2009, the California Military Departments announced that it would transition from its deregulated two-tiered (Pass – Fail) evaluation policy to a regulated five-tiered evaluation policy. Then, the California Military Department stalled. On November 5, 2009, the National Guard Bureau made the first move to change its evaluation policy. It published an unclassified version of the National Guard Technician Appraisal policy, leaving out a prior version published in 2005. It also, eliminated the state’s discriminatory evaluation program, then prescribed one performance evaluation program (Model 4 Pattern H) for all dual-status and non-dual-status personnel employed under the provisions of 32 U.S.C. 709. The deleted performance document was published by H. Steven Blum, whom President G.W. Bush appointed in 2003. It was taken out, while General Craig R. McKinley, chief of the National Guard Bureau (NGB) was in command.

Today, the National Guard’s November 2009 unclassified version reads as if there was only one prior revision, published in 1997, omitting the revision published when H. Steven Blum was head of NGB in June 2005. This unclassified version is inaccurate and misleading because most regulations are published and superseded chronologically by their date of issuance. The November 2009 appraisal policy should have superseded the June 2005 version. The way NGB has rewritten its policies makes it seem as if there were only two versions and not three—the first in 1997, and the second in 2009—while my court record shows that there were three significant versions to the National Guard Technician Appraisal Program.

On November 8, 2009, the California military department transitioned from a two to a five-tiered performance evaluation policy, making it the fastest state to implement the new dual status performance evaluation policy.

Expanding the Feres Doctrine Big text

Both lawyers and legal enthusiast alike have written volumes reexamining Feres and the “incident to service” rule, many calling for the court to adjust the way in which it determines whether an injury that occurs is incident to service. The majority of the proposed changes attempt to reconcile the need to maintain military discipline with the individual’s right to sue for negligence under the FTCA. These remedies fail to address a service member’s right to sue for constitutional torts. It also fails to address service member’s who die waiting for compensation for their service-connected injuries and those who never receive any resolution on their race discrimination claims.

The Title VII doctrinal revolution controversy was noted in Wetherill v. Geren (2010). “The court in Wetherill mirrored the Ninth Circuit's analysis in determining this language merely harmonized the nomenclature referring to DSTs throughout the United States Code. The Circuit noted that if§ 10216(a) authorized DSTs to sue the National Guard under federal statutes like Title VII, such an authorization would have created a doctrinal revolution-a revolution only noticed by the Federal Circuit. As the Eighth Circuit reasoned, Congress did not intend for § 10216(a) to open the National Guard up to lawsuits by DSTs. Thus, the court reaffirmed its own circuit precedent that the Feres doctrine applies to DSTs, irrespective of the 1997 amendments to 10 U.S.C. § 10216.69”

If there was uncertainty about the applicability of Feres to dual-status technicians, the National Guard sought to establish its position in 2014. The guard inserted language into the 2014 National Defense Authorization Act that ordered any wrongful discrimination claim brought by a dual-status technician to be considered a complaint made by a member of the armed forces. The guard expanded the scope of Feres and became the sole arbiter of wrongful discrimination claims.

The addition of such language draws a line on the disposition of discrimination claims for dual-status technicians, and would appear to make it obvious that Feres would now apply to their claims. However, the change now raises the same questions some have regarding the broad sweep of Feres and the problems with the current military justice and compensation system. If in fact, the Bush Administration did maintain a discriminatory policy throughout the wars in the Middle East and did not resolve them, instead purge a performance document and change the law, but did not resolve its discrimination complaints.

The Federal Courts have not taken the EEOC’s (and the Federal Circuits and DoD) position regarding dual-status technicians and their ability to sue under Title VII. The courts have overwhelmingly decided these cases based on precedents set by its own practices.

Other Performance AbusesBig text

In addition to allegations that the National Guard destroyed pay documents, there are claims centered on corporate and accounting scandals and false reporting of readiness in the Guard during the wars in the Middle East. Bill Burkett collaborated with USA Today to publish a series of stories about ghost soldiers in the guard. In the article, some National Guard units like California and Texas were turning anemic units into fully functional units to obtain funding from NGB between 2001 and 2002.

Documentary Evidence Big text

This federal case was filed before California Whistleblower Protections Act of 2013 and the 2014 National Defense Authorization Act. The United States Court of Appeals for the Ninth Circuit in Johnson v. Departments of the Army and Air Force; et al., case No. 10-16450 (06 January 2012), decided in its unpublished federal opinion to not mention the background of the case, events or facts occurring outside the courtroom. In 2011, California, state lawmakers wrote about the unlawful activities in its state military departments going as far back as 1984. Similar abuses happening in the Texas National Guard are also noted.