Inspector General: Army Retaliated Against Whistle-Blower

By Stephen Losey, Army Times

10 December 11

fter being wounded by a roadside bomb in Iraq in 2004, Army counterintelligence specialist Mike Helms endured a bureaucratic nightmare trying to get treatment for traumatic brain injury, post-traumatic stress disorder and other injuries.

He wrote or called numerous congressmen, Defense Department executives, newspapers (including Federal Times, a sister publication to Army Times`), even then-President George W. Bush and Vice President Dick Cheney.

According to an inspector general's report obtained by Federal Times, the Army then retaliated against Helms for blowing the whistle on the poor treatment he received.

In 2008, his superiors suspended his access to classified information, recommended his security clearance be revoked, and suspended him indefinitely without pay. In November 2009, the Army fired him.

Army officials "reprised against Mr. Helms when recommending that his security clearance be revoked. We concluded that the agency did not establish by clear and convincing evidence a firm belief that it would have taken the same action absent Mr. Helms' disclosures," wrote Donald Horstman, deputy IG for administrative investigations, in the introduction of the IG report. The report was completed in October 2010, but the IG's office has refused to release it. Helms provided Federal Times with a copy.

The Army claims it removed Helms' clearance because he breached security by setting up an illegal computer server and put pornography on government computers, according to the IG report.

The IG report found no evidence that Helms was connected to the pornography and that the Army's investigation into his alleged wrongdoing was deeply flawed.

Helms' former superiors at the 902nd Military Intelligence Group declined to comment when reached by phone, and they referred Federal Times to the public affairs office at the Army Intelligence and Security Command, or INSCOM. The public affairs office did not respond to multiple inquiries.

Helms' battle took a devastating psychological, financial and professional toll on him. Since speaking out against the shoddy medical treatment he received, Helms has lost his job, racked up at least $200,000 in legal fees, had his security clearance put in limbo, and has been unable to find a new job.

"The IG investigation showed I did nothing wrong," Helms said. "But I'm the one sitting here without anything."

His case shows that even while whistle-blowers have new protections and resources, they can sometimes pay a heavy price that can take many years to overcome. The Project on Government Oversight, a whistle-blower advocacy organization, said the Army's actions against Helms show that whistle-blower protections need to be strengthened.

"I think [Helms] exposed a pretty glaring gap between policy and reality in terms of how the DoD treats war-injured civilian employees," said Nick Schwellenbach, POGO's director of investigations. "This is an egregious case of retaliation, especially given what Mike Helms went through, and what he exposed."

Inferior Care and Treatment

The Army deployed Helms in December 2003 to Iraq's dangerous Sunni Triangle area , where he helped military units collect intelligence on insurgent operations.

"We were there to fill the HUMINT [human intelligence] void, to provide the commanders actionable intelligence on where the bad guys might be, and identify if there was any foreign terrorism threat … as fast as possible," Helms said in a 2008 interview. "When needed, I'd go out and support teams on security. I'd be on the main gun [of a Humvee] nine times out of 10, because we didn't have enough bodies."

Helms, who had served more than five years in the Army before becoming a civilian employee in 2002, said there was a severe lack of trained military personnel at the time. He said he had no choice but to help man a gun and assist during convoys.

"When the commander said ‘Go,' I said, ‘Where to?' " Helms said. "I worked for him. There was no, ‘let's be heroes' concept. At no time did we go out to play war. It was serious business for us."

But while helping a convoy transport newly deployed soldiers to their stations in June 2004, Helms' Humvee struck a roadside bomb. The explosion riddled his left arm and right hand with shrapnel, blew out his eardrums, broke his tailbone, and left him with no feeling below his waist for a week.

The IG report said that as a federal counterintelligence specialist, Helms was entitled to free care under the DoD Military Health Services System for his battlefield injuries. DoD rules say "the scope of care provided [to such employees] shall be equivalent to that received by active duty military personnel."

But that's not what happened.

As an Army civilian, Helms received a far inferior level of care and treatment after his injuries than his military counterparts, the IG said. And he exposed to the media and Congress an embarrassing pattern of incompetence, neglect and indifference in the way the Army handled his care, the IG said.

Two weeks after the bombing, Helms was medically evacuated to Walter Reed Army Medical Center in Washington. But Walter Reed at first refused to treat Helms because of a coding error that incorrectly identified him as a contract worker. He said the error was never straightened out. Helms only got into Walter Reed after the also-injured military driver of his bombed Humvee and the driver's wife fought for him.

After a month, Helms said the driver was discharged and Helms had to leave Walter Reed. He returned to his home station at Fort Knox, Ky., but said the Ireland Army Community Hospital there likewise refused to see him because he was a civilian.

Helms filed a workers' compensation claim but said the Labor Department provided him no help in navigating the complicated system. Several of his treatments at local hospitals were denied, and he had to argue his way out of several bills from his treatments at Ireland Army Community Hospital and other civilian medical facilities - some as high as $15,000. Those bills would have been taken care of by Tricare if he had been a service member.

Helms wrote to numerous lawmakers and Pentagon officials seeking help. The Senate Armed Services Committee in 2005 asked INSCOM, the Army Deputy Chief of Staff and the Office of the Secretary of Defense for a "short-fused" briefing on Helms' case, the IG said. And the House Armed Services Committee in 2007 spoke to Helms and other combat-injured civilians behind closed doors, and in 2008 released a report detailing serious shortcomings in the government's treatment of its wounded civilian employees.

The IG said Helms' disclosures "brought increased and arguably unwelcome scrutiny" to his unit, the 902nd Military Intelligence Group." The report quoted one unnamed official who said Helms' press interviews generated frustration within the department.

"It was very trying, because now you're getting higher headquarters coming down to you saying, ‘Why aren't you taking care of this guy?' " the unnamed official said.

Another unnamed official said that "there were times when the name of Mike Helms invoked a head-back, rolling of the eyes at just the mention of his name."

The IG report said that Helms' complaints qualified as protected whistle-blower disclosures and that the Army's treatment of him during and after an investigation into an allegedly improper computer server amounted to reprisal.

Helms' persistence brought Washington's attention to the plight of war-wounded civilians, and gradually, the system changed. In September 2007, former Deputy Defense Secretary Gordon England issued a memo that said civilian employees wounded in a war zone are to receive the same treatment as uniformed service members.

In late 2009, Labor set up an office in Cleveland to help feds injured in combat zones with their claims.

And last month, the House approved a bill overhauling federal workers' compensation that seeks to streamline the claims process for workers who are seriously injured in a combat zone. A comparable bill has not yet been introduced in the Senate.

A Flawed Investigation Against Helms

In April 2008, the Army launched an investigation into Helms. Specifically, investigators probed whether Helms violated Army rules by creating a "rogue server" at his Fort Knox field office that was improperly connected to a classified computer network and that used malicious, unlicensed software.

Helms created the server, called Athena, three years before as a way to store operational files for his field office. Four to five employees at the office, including Helms, had access to the server. Helms' superiors were aware of the Athena server, the IG report said. Helms said he briefed incoming commanders over the next few years about how it worked.

But in April 2008 - three years after Athena's launch, and several months after Helms' interviews with The Washington Post and the House Armed Services Committee - the server was shut down and an investigation was launched.

Helms' superiors were aware of the server because Helms said he briefed them about it and one supervisor even asked Helms to test the system out, the IG report said. In investigating charges that Helms' Athena server was outside of protocol, Army officials never interviewed Helms' commanders or superiors who Helms said were aware of the server.

Helms believes the length of time between Athena's creation and when his superiors began to investigate the server - three years - shows the server was never a real problem.

"How was [Athena] never an issue for three years?" Helms said. "They launched the investigation as a means to come after me. It was a way for them to say, ‘We can get rid of him.' "

The IG report said an important question to answer for the Army when deciding whether to revoke Helms' clearance was whether classified material was compromised because of the Athena server, but that was never investigated.

Investigators also found pornographic computer files on Athena's hard drives and broadened the inquiry to determine whether Helms put it there. They concluded he did. An Army official said in a November 2008 memo that Helms admitted putting pornography on government computers and the official recommended that Helm's clearance be revoked, the IG report said. But Helms not only never admitted to the pornography charge, he denied it, the IG report said - which meant the recommendation to revoke his security clearance was based in part on a materially misstated fact.

Other aspects of the Army's investigation into the pornography allegations against Helms were also flawed and incomplete, the IG found. Investigating officers failed to interview any field office personnel about the pornography charge or conduct a forensic investigation, the IG report said. A subsequent Defense Criminal Investigative Service analysis of the Athena hard drives could not disprove Helms' claims that he was not responsible for the porn. DCIS found that anybody with access to the Athena server could have placed the pornography on it, yet the Army investigators only focused on Helms. DCIS could only confirm that Helms tried to delete two pornographic files.

Helms Fights Back

Helms' top secret security clearance was never officially revoked, but because his access to classified information is still suspended, it might as well be. He said he has had a few job offers from the private sector, but they all fell through because the status of his security clearance is uncertain.

Helms went to the Merit Systems Protection Board to contest his firing in December 2009, and in November 2010 he sued in the Federal Circuit Court of Appeals. He sought three years of lost back pay, plus nearly $900,000 in compensatory and punitive damages for his suffering and lost job opportunities. But the case dragged on, and he racked up about $200,000 in legal bills.

"They slow-rolled me for years," said Helms, who is 35 and lives in Radcliff, Ky.

To cover his costs, he borrowed $60,000 from his parents, and took out a $10,000 loan from his Thrift Savings Plan - the most the plan would allow.

On Aug. 8, the cash-strapped Helms and the Army settled the MSPB case for two years' back pay, or roughly $180,000. Helms' firing was revoked and replaced with a four-day suspension for failing to follow instructions. Helms is now on paid administrative leave while the Army adjudicates his security clearance once and for all. The adjudication process is still underway.

As part of the settlement, Helms agreed to resign "for personal reasons" and never again apply for another job at INSCOM. His resignation will take effect six months after his clearance is approved or, if his clearance is revoked, six months after he exhausts his final appeal.

Helms wanted the Army to guarantee medical treatment after he leaves as part of his settlement, but he said that was quickly taken off the table.

"I believe the Army should be responsible for that, because they were the ones who deployed me," Helms said. "I don't think that's too much to ask for."

Four months after the settlement, Helms hasn't yet gotten any back pay, and his security clearance isn't adjudicated yet. He's also still struggling to get the medical treatment he needs for his TBI and PTSD.

"I'm still having to fight the damn Army," Helms said.