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Very Hot Topic (More than 25 Replies) DIA's Insider Threat Program (Read 25973 times)
John M.
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Re: DIA's Insider Threat Program
Reply #195 - Jan 17th, 2018 at 9:17pm
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As I said last week, my Workers Compensation Claim was denied because I couldn't prove that my injuries were caused in the performance of duty.

They said the polygraph was simply an "administrative function of my employing agency and administrative actions by the agency can only be compensable if you prove that the employing agency erred or abused their discretionary authority beyond your mere perception".  Also, five polygraphs in three years was not considered to be excessive.

How about this: DODI 5210.91 provides protections for individuals with mental, psychological, or emotional conditions.  Guess what?  It says that they should be exempted - not exposed to more and more psychological torture.

For the record, when I was notified that I needed to go TDY to DIA for yet another appointment with the polygraph chair, I provided the attached letter to my chain-of-command.  I was told that they didn't know of any circumstances that would allow me to bypass the requirement.  Upon arrival at HQ DIA on August 5th, 2014, I provided a copy of this letter to the investigators as well.  No luck.  After hours of interrogations by several of them, I had a nervous breakdown and was immediately seen by two DIA psychologists.

  

31JUL2014_Rothburd_evaluation.pdf ( 174 KB | 35 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.  No, unfavorable administrative action shall be taken based solely on its results."  ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #196 - Jan 18th, 2018 at 2:33pm
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APPLYING LEGAL PRECEDENT

The Board notes, “Where the disability results from an employee’s emotional reaction to his or her regular or specially assigned duties or to a requirement imposed by the employment, the disability comes within the coverage of FECA.” - Lilian Cutler, 28 ECAB 125 (1976). This is in fact, the definitive precedent in the appellant’s case.

According to the principles of Cutler “Where an employee experiences emotional stress in carrying out his employment duties, or has fear and anxiety regarding his ability to carry out his duties, and the medical evidence establishes that the disability resulted from his emotional reaction to such situation, the disability is generally regarded as due to an injury arising out of and in the course of the employment. This is true where the employee's disability resulted from his emotional reaction to his day-to-day duties.” The appellant has alleged from the very beginning of this process; that the polygraph examination – a requirement for his position – and his fear and anxiety regarding his ability to carry out his newly, specially assigned duties, had in fact, caused his disabilities.

Also, according to the principles of Cutler, “An employee was instructed that he had to undergo a fitness-for-duty examination in order to continue in the employment. His fear of taking the examination caused him to undergo great emotional stress, and he had a mental breakdown. The Board held that if the requirement of undergoing the physical examination, and the circumstances under which this requirement was imposed upon him, caused his disability, the disability was compensable.” The examination in the appellant’s case was the polygraph examination, and his fear of taking it coupled with his fear of the impending punishment for not passing it, in fact, caused his disabilities. The appellant has presented an abundance of rationalized medical evidence establishing that this factor of his employment, is without doubt, the nexus between his performance of duties and his emotional condition.

Also according to the principles of Cutler, “An employee was charged with irregularities in his employment. He was removed from his regular work duties. He became disabled from an emotional condition which the evidence established was related to the above circumstances. The Board found that his disability “arose directly out of and in the course of work activities, pertaining to the charges and investigation, which he was specifically assigned by his supervisor to perform.” It was noted that there had been no findings by the employing establishment that the charges against the employee had been established or that his disabling condition was caused by his willful misconduct. The Board held that his disability constituted an injury within the meaning of the Act. Similarly, the appellant was removed from his regular work duties and charged with the unsuccessful completion of a required examination – without any evidence of wrong doing on his part. The appellant has stated repeatedly throughout this entire process, that the polygraph examination coupled with the abrupt changes in his work activities, were the cause of his disabilities.

The OWCP incorrectly decided and the Board has erroneously ruled that appellant’s claims are not compensable by citing Matilda R. Wyatt, 52 ECAB 421 (2001). “Administrative and personnel matters, although generally related to the employee’s employment, are administrative functions of the employer rather than the regular or specially assigned work duties of the employee and are not covered under FECA.” In this case, a woman alleged that her stress resulted from being denied her medical retirement and workers’ compensation claims. The Board ruled that the development of any condition related to such matters would not arise in the performance of duty because the processing of these claims bears no relation to appellant’s day-to-day or specially assigned work duties. These are not compensable factors of employment. In the appellant’s case, this precedent does not apply because the repetitious polygraph examinations did, in fact, arise in the performance of duty and were directly related to, and impacted his day-to-day or specially assigned work duties. Therefore, the assertion that the employing agency’s actions were merely administrative matters and not a part of his duties is completely inaccurate.

The Board has also cited William F. Fortner, 49 ECAB 324 (1998). “The Board has held that, where the evidence establishes error or abuse on the part of the employing establishment in what would otherwise be an administrative matter, coverage will be afforded.” This case involves a man who alleged that he suffered an emotional condition when the employing establishment advised him that he had been improperly placed under the Civil Service Retirement System rather than the Federal Employee’s Retirement System. The Board found that this allegation related to an administrative or personnel matter, unrelated to the employee’s regular or specially assigned work duties and does not fall within coverage of the FECA. This precedent does not apply in the appellant’s case because the polygraph examination itself, coupled with the unfavorable actions taken by the employing agency, were in fact, directly related to his regular or specially assigned work duties and absolutely fall within the coverage of the FECA.

ANALYSIS

The Board properly acknowledges in its ruling that the appellant alleged that he sustained an emotional condition as a result of his employment conditions. However, the OWCP has misconstrued the appellant’s allegations to indicate that he has only alleged error and abuse in administrative and personnel matters. The appellant has repeatedly claimed that factors of his employment - in performance of his day-to-day and specially assigned duties – have caused his disabling condition. In his case, the appellant’s emotional reaction to the special assignments and the requirement imposed by the employing establishment, is therefore, a compensable work factor. (See appellant’s CA-2, appellant’s Response to OWCP Questionnaire, dated January 13th, 2015, and appellant’s Notice of Decision Rebuttal, dated June 19th, 2017)

The Board claimed that the appellant’s allegations do not pertain to his regular or specially assigned duties under Cutler. In fact, the appellant has consistently alleged throughout this entire process, that his employment – his regular and then his subsequent special assignments and duties - were in fact, the cause of his disabilities. Whether the administrative actions were taken in error or abuse is superfluous to the fact that they were in fact, actions involving his day-to-day duties, not simply an administrative matter, somehow unrelated to his duties. As a requirement of his position, the appellant was repeatedly forced to submit to the polygraph examination, an examination that caused and then exacerbated his debilitating condition. The decisions to take unfavorable actions against him were implemented because of how he performed in a requirement of his duties. This absolutely represents a compensable work factor under FECA.

The Board also acknowledges that the appellant alleged that the employing establishment committed wrongdoing by requiring him to undergo polygraph testing and by “altering” his work conditions due to the results of the same. Appellant’s allegations have continually emphasized the stress that he felt before, during and after each polygraph examination/interrogation session. The Board failed to acknowledge his allegation that he suffered from emotional reactions to this requirement for which he was trying to meet the demands of his position. The Board has previously held that emotional reactions to situations in which an employee is trying to meet his position requirements are compensable (Georgia F. Kennedy, 35 ECAB 1151, 1155 – 1984); (Joesph A. Antal, 34 ECAB 608, 612 – 1983). In the appellant’s case, he was directed to take the polygraph examination five times in three years. As noted by the Insider Threat Program Coordinator, successful completion of this examination is a requirement for his position. The appellant’s fear and emotional reactions to his inability to meet this requirement, unequivocally establish this as a compensable work factor.

For the foregoing reasons, appellant respectfully requests the Board to RECONSIDER his claim and REMAND the case to the Office in order to carry out the factual and medical developments described above, to be followed by an appropriate decision.
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.  No, unfavorable administrative action shall be taken based solely on its results."  ~ DODI 5210.91.
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John M.
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Re: DIA's Insider Threat Program
Reply #197 - Jan 23rd, 2018 at 7:26pm
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After participating on this message board for nearly a year now, it has become very apparent that the majority of people who "view" it are from the polygraph industry. No one dares add a comment (except for the ignorant and irresponsible off-handed remark by quickfix), for it may further expose the fraud for what it is.

Therefore, I realize that my comments have probably enabled those evil-doers to mount a defense against me.  I don't have anything to hide - in fact, it is they who have everything to hide.  As a result of being denied my EEO rights and my DOL benefits, I no longer have faith in the government to police itself.  The polygraph lobby is so far entrenched into American politics that it's going to take a civil action to hold them accountable.

My latest Petition for Reconsideration was denied by the DOL because they claimed that I failed to establish any error of fact or law warranting further consideration.  The board found that the OWCP properly denied appellant's claim for a work-related emotional condition because he failed to establish any compensable employment factors.  The Board explained that appellant's allegations did not pertain to his regular or specially assigned duties under Lillian Cutler.  Rather, the Board found that appellant alleged error and abuse in administrative and personnel matters, but had not established a compensable employment factor because he had not shown error or abuse in such matters.  As the Board has held, an appellant may not use a petition for reconsideration as a vehicle to reopen a case for the purpose of rearguing contentions previously advanced and considered by the Board in issuing its original determination.

In my previous post, I presented the appropriate Legal Precedent and Analysis.  Here are the factual errors from that petition:

Error of Fact #1:

In the Board’s final ruling, it was stated that the appellant first realized on September 29, 2014 that his disabilities were caused or aggravated by his federal employment. The correct date is October 17th, 2013. This date is significant because his condition continued to worsen over time due to several factors of his employment and in his performance of his assigned duties. The appellant became incapacitated and filed for workers compensation benefits and disability retirement nearly a year later, in September of 2014.

Error of Fact #2:

The ruling also states that the appellant’s immediate supervisor indicated that appellant was “properly” issued a lower classification security badge, reassigned to another work location and subsequently lost access to classified workstations and networks. He was ultimately involuntarily reassigned to a position 1,000 miles away. Nothing in the immediate supervisor’s comments indicate that these actions were “proper”. Neither does the immediate supervisor indicate that the polygraph testing was “properly” administered.

Error of Fact #3:

The ruling states that in a May 21, 2014 letter, the Insider Threat Program Coordinator for the employing agency noted that the decision to reassign him was not solely based on his inability to pass polygraph testing. In fact, the letter unmistakably identifies the only reason for imposing unfavorable actions against him was his inability to pass repeated polygraph tests.

Error of Fact #4:

Although superfluous to the appellant’s actual allegations, the Board concludes that this letter advises that “no standards were violated” with respect to appellant’s polygraph testing. It is notable that the Agency does not mention a specific regulation or policy that does permit this type of action. Expecting the offenders to admit to their offenses is pointless. The indisputable fact is that approved and relevant Department of Defense regulations explicitly prohibit exposing individuals with emotional or mental disabilities to the polygraph process all together. Agency officials violated this key restriction and as a result, directly exacerbated appellant’s disabilities to the point of incapacitation to perform his assigned duties.

I truly hope that McIntosh, Lanham, Soo-thoo, Lawless, DiOrio et al, will come to their collective senses.  I have said since my very first appeal, that this decision would be landmark - in that it will expose the fraud, waste and abuse that has become institutionalized in our government.  This corruption must stop.
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.  No, unfavorable administrative action shall be taken based solely on its results."  ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #198 - Jan 23rd, 2018 at 7:57pm
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John M. wrote on Jan 23rd, 2018 at 7:26pm:
I no longer have faith in the government to police itself.

Maybe you can emigrate to Iran or North Korea.John M. wrote on Jan 23rd, 2018 at 7:26pm:
I have said since my very first appeal, that this decision would be landmark

It was- we win, you lose, like all malingerers!
  
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Re: DIA's Insider Threat Program
Reply #199 - Jan 23rd, 2018 at 8:30pm
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Thanks for making my point.
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.  No, unfavorable administrative action shall be taken based solely on its results."  ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #200 - Jan 25th, 2018 at 4:30am
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quickfix wrote on Jan 23rd, 2018 at 7:57pm:
Maybe you can emigrate to Iran or North Korea


No need for him to move there Quickfix.  For those few Americans whose livelihoods are subject to being arbitrarily erased by traitor slugs like you, life here in America is no different than life is for the average N. Korean or Iranian.  You are the one who should move to North Korea or Iran because you are a blood brother to the assholes who run those countries.   Bullies and tyrants are all the same and you'd fit right in in either of those places.   Grin
  
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Re: DIA's Insider Threat Program
Reply #201 - Jan 25th, 2018 at 7:33pm
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I'm happy right here protecting our national security from malcontents like you and (neutralized) insider threats like John M.
  
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George W. Maschke
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Re: DIA's Insider Threat Program
Reply #202 - Jan 25th, 2018 at 7:38pm
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quickfix wrote on Jan 25th, 2018 at 7:33pm:
I'm happy right here protecting our national security from malcontents like you and (neutralized) insider threats like John M.


Considering that polygraph "testing" has no scientific basis, and there is no documented instance of it ever catching a spy, it's likely that you and your fellow polygraph operators are doing more to harm our national security than to protect it.
  

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Re: DIA's Insider Threat Program
Reply #203 - Jan 25th, 2018 at 8:41pm
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"No scientific basis"- the standard party line of the deceptive.  Our party line:  In God we trust, all others get polygraphed.

And you're quite wrong about polygraph never having caught a spy.  Jeffrey Gregory, part of the Clyde Lee Conrad spy ring, was polygraphed, failed, and confessed to spying with Conrad.  You wouldn't know that, because it's information not made available to the media.  There are other similar cases, also not made public due to the sensitive nature of the cases.  Gregory has since been released from prison, so it's no longer a secret.
  
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Re: DIA's Insider Threat Program
Reply #204 - Jan 25th, 2018 at 10:18pm
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quickfix:

Source of information for your statement about James Gregory failing the polygraph?

I did find the following interesting PDF document:
https://fas.org/sgp/library/spies.pdf

In this document, no mention of the polygraph to uncover James Gregory, although Edward Lee Howard did fail the polygraph.
  
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Re: DIA's Insider Threat Program
Reply #205 - Jan 25th, 2018 at 10:19pm
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Sorry Jeffrey not James.
  
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Re: DIA's Insider Threat Program
Reply #206 - Jan 26th, 2018 at 3:58am
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quickfix wrote on Jan 25th, 2018 at 7:33pm:
I'm happy right here protecting our national security from malcontents like you and (neutralized) insider threats like John M.


I've caught real spies and sent them to prison with physical proof.  I received the highest award someone in my organization could receive for my success.  I am national security.  You're a traitor and a fraud who sold your sacred honor for personal gain involved in the polygraph scam.  You are the worst of the worst, talking about exposing liars when you yourself are the biggest liar of all as you falsely accuse innocent people for personal profit. 

I'm laughing my head off as I watch the corrupt FBI hierarchy go down in flames.  The rest of the country is learning what I already knew about the frauds that are at the top of our intelligence community while honest mid-level investigators, case officers, and analysts are still working miracles for the American people.  I know the feeding frenzy of investigative journalists will eventually uncover this polygraph fraud as they peel back the layers of corruption.   Cheesy
  
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Re: DIA's Insider Threat Program
Reply #207 - Jan 26th, 2018 at 6:46pm
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Evan S wrote on Jan 25th, 2018 at 10:18pm:
Source of information for your statement about James Gregory failing the polygraph?


You won't find Gregory's polygraph mentioned in open source publications.  Gregory was tested by Army Counterintelligence.
  
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Re: DIA's Insider Threat Program
Reply #208 - Jan 26th, 2018 at 6:59pm
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quickfix wrote on Jan 25th, 2018 at 8:41pm:
"No scientific basis"- the standard party line of the deceptive.  Our party line:  In God we trust, all others get polygraphed.


What an incredibly stupid argument. I expect better from you.

Quote:
And you're quite wrong about polygraph never having caught a spy.  Jeffrey Gregory, part of the Clyde Lee Conrad spy ring, was polygraphed, failed, and confessed to spying with Conrad.  You wouldn't know that, because it's information not made available to the media.  There are other similar cases, also not made public due to the sensitive nature of the cases.  Gregory has since been released from prison, so it's no longer a secret.


It's true that Jeffrey Eugene Gregory was polygraphed, failed, and confessed to spying with Conrad. But it's not true that he was "caught" by the polygraph. Gregory's case is documented in former U.S. Army Counterintelligence Field Activity chief Stuart A. Herrington's 1999 seminal work on the Conrad espionage case, Traitors Among Us: Inside the Spy Catcher's World, at p. 390 ff. Herrington avers that it was Conrad accomplice Roderick James Ramsay who fingered Gregory as a spy. Herrington writes, at p. 390:

Quote:
Under [FBI agent Joe] Navarro's gentle but unyielding pressure, Rod Ramsay admitted that to assist in accumulating the "mother lode" and spiriting it safely out of Rose Barracks, he had recruited two fellow soldiers--Jeff Gregory and Jeffrey Rondeau. Had Clyde [Conrad] known this, he would have been furious...


So it was Ramsay who identified Gregory as a spy, not the polygraph. It's true that Gregory ultimately confessed during a (no doubt specific issue) polygraph interrogation. Herrington describes it thus, at p. 395:

Quote:
In April 1993, the dour Arizonan [Gregory] caved in during a grueling polygraph examination. In a sworn statement, Gregory admitted that he had been enticed by Ramsay to serve as a lookout during the theft of the infamous "mother lode" of documents from the division headquarters. Rod had promised great riches, but in the end, Jeff Gregory's espionage career had netted him small amounts of marijuana and hashish and a couple of hundred dollars at most.


  

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Re: DIA's Insider Threat Program
Reply #209 - Jan 26th, 2018 at 7:14pm
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Yes, Ramsey fingered Gregory, but accomplice testimony alone is useless without corraborating evidence.  The polygraph did elicit the actual confession, so polygraph did catch this spy, and again, George, you are way off the mark.  But please continue to spout the "no scientific basis" defense.  It is entertaining.
  
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