Navy promotes SEAL commander in defiance of Congress
By CRAIG WHITLOCK | The Washington Post | Published: March 31, 2017
In defiance of Congress, the Navy has granted a retroactive promotion, back pay and a bigger pension to an admiral whom lawmakers forced to retire last year after multiple investigations found he had retaliated against whistleblowers, records show.
Brian Losey, a former commander of the Navy SEALs, rose in rank to become a two-star rear admiral in January after the Navy conducted a secretive and unusually rapid review of his case during the final days of the Obama administration, according to documents obtained by The Washington Post under the Freedom of Information Act.
Losey's promotion came two months after he retired from the military under duress, the casualty of a clash between Navy leaders who wanted to reward the combat-hardened SEAL commander and a bipartisan group of senators who demanded his ouster after the investigations determined he had violated whistleblower-protection laws.
The dispute represented a rare public challenge by senior military leaders to congressional oversight of the armed forces, and left lingering resentments on both sides. Lawmakers thought they had prevailed by blocking Losey's promotion last year, but the newly obtained documents reveal the Navy had the last word.
The promotion capped a long-running controversy over Losey's record as a commander of the SEALs and other elite Special Operations forces during a highly decorated 33-year military career.
Three separate investigations by the Defense Department's inspector general found that Losey had wrongly fired, demoted or punished subordinates during a vengeful but fruitless hunt for an anonymous whistleblower under his command.
Losey denied wrongdoing. Navy leaders dismissed the findings after conducting their own review and decided in October 2015 to promote him anyway. But members of Congress objected strenuously when they learned about the case from a report in The Post, and pressured Navy Secretary Ray Mabus to block Losey's advancement.
Mabus resisted at first as many other admirals pushed him to stand behind Losey. After the Senate upped the ante by freezing the nomination of the Navy's second-ranking civilian leader, the service announced in March 2016 that Mabus would reluctantly deny Losey's promotion, effectively ending his military career.
The documents obtained by The Post, however, show that Mabus later reopened the case. On Jan. 12, during his last week in office as an Obama political appointee, Mabus signed a memo boosting Losey's rank from a one-star to a two-star admiral.
Losey, 56, will stay retired, but the documents show that his promotion will benefit him financially for the rest of his life.
His higher rank entitles him to a bigger annual military pension. It will swell to about $142,000 this year, an increase of $16,700, according to Defense Department figures.
He will also receive a one-time check for about $70,000 in back pay because the Navy dated his promotion retroactively to the date when he first became eligible for a second star.
Mabus declined to comment. His decision to promote the admiral was based on a recommendation from the Board for Correction of Naval Records, a quasi-judicial panel that fields requests from veterans to review potential errors in their personnel files.
The board has the authority to fix mistakes or "remove injustices" from a veteran's permanent military record, according to its mission statement.
Losey retired Nov. 1. Three weeks later, he submitted a petition to the board, arguing that he had been unfairly denied promotion because the inspector general and his critics in Congress were biased against him.
"The damning assertions against my leadership are not supported by the facts, and these errors in fact contributed to an unjust outcome," he wrote.
The Board for Correction of Naval Records receives 12,000 applications annually and typically takes between 10 and 18 months to issue a final decision, according to Navy officials.
Losey's application was approved by the board and Mabus in seven weeks.
Experts in military law said they had never heard of a case being reviewed so quickly.
"I'm not passing any judgment on his promotion and whether he deserves it or not, but the process certainly does look suspicious," said Raymond Toney, a Utah attorney who specializes in such cases and who reviewed Losey's file at The Post's request. "It suggests to me that the rear admiral has some friends who did not want to see him go down in flames at the end of his career."
Eugene Fidell, a lecturer on military justice at Yale Law School, said the speed in which Losey's appeal was heard made it appear that the outcome was predetermined. "The circumstantial evidence suggests to me that this was wired," he said.
Navy officials denied that Losey was given special treatment.
In a statement, Capt. Amy Derrick, a Navy spokeswoman, said the Board for Correction of Naval Records "provides a full and fair hearing on all requests that are complete and submitted in accordance with established procedures."
Thomas Oppel, who served as Mabus' chief of staff until both left office in January, said in an interview that any suggestion the Navy rushed the process during the waning days of the Obama administration was "a whole lot of speculation without foundation."
"This is a case that had been freshly investigated, and the facts were fairly well known," Oppel added.
Losey deferred questions about how his petition was handled to the Navy. "I followed processes available to me," he wrote in a brief message to The Post. "I do business by the book and have always aimed to be fair."
Members of Congress who had urged the Navy to hold Losey accountable for punishing whistleblowers said they were dismayed to learn about the admiral's promotion.
"Cases like these send the wrong message about whistleblower retaliation," Sen. Charles Grassley, R-Iowa, chairman of the Senate Judiciary Committee, said in an emailed statement. "When accountability is lacking, retaliation continues. Good government suffers."
Sen. Ron Wyden, D-Ore., who held up the confirmation of the Navy's second-ranking civilian leader last year in a tactic to block Losey's rank advancement, said he was disappointed but not surprised.
"The Navy leadership has long sought to sweep away the inspector general's findings and make excuses for one of its own, and Secretary Mabus' decision to grant Admiral Losey a backdoor promotion is yet another disappointing example," Wyden said.
A spokesman for the Senate Armed Services Committee said the panel was not informed of Losey's post-retirement request for promotion until after it was finalized. Other lawmakers said they were unaware of his new rank until they were told by The Post.
A prominent figure in the military's secretive Special Operations forces, Losey served as the head of the Naval Special Warfare Command from 2013 to 2016. He formerly commanded SEAL Team Six, the clandestine unit known for hunting terrorist targets. He deployed to Iraq, Afghanistan, Somalia, Bosnia, Panama and other conflict zones.
The Navy first tried to promote Losey to become a two-star admiral in 2011. The Senate confirmed his nomination that year. But the move was put on hold when the Defense Department's inspector general began investigating Losey's actions while serving as commander of Special Operations forces in Africa.
Five of Losey's subordinates filed complaints that he had unfairly fired or punished them during a ham-handed hunt for a suspected whistleblower. After spending four years interviewing more than 100 witnesses and reviewing 300,000 papers of emails, the inspector general determined that Losey had violated whistleblower-protection laws in three of the cases.
The outcome marked a rare instance of a commander being found guilty of misconduct in a whistleblower case. The Defense Department's inspector general receives more than 1,000 whistleblower cases each year, but upholds only about three percent of them.
Losey asserted that he had acted within his rights as a commander and that he had merely held his staff accountable for mediocre work.
Despite the findings of the inspector general, the Board for Correction of Naval Records sided with Losey, concluding that there was "insufficient evidence" that Losey had violated whistleblower-protection laws.
Moreover, the board found that Mabus had never signed paperwork formally denying the admiral's promotion before he retired.
In a unanimous vote on Jan. 11, the panel recommended that Mabus grant Losey's request for the higher rank and back pay, documents show.
Mabus signed a memo approving the decision the next day.