The Foundation of Five concept was challenged recently in an opinion piece in The Army Lawyer (see Demolishing the Foundation of Five, Nov./Dec. 2018). What follows is a response to that piece:
The Foundation of Five concept may sometimes be confused with the function of the Chain of Command and noncommissioned officer (NCO) support channels. This fundamental lack of understanding, if not clarified, can lead to a failure to appreciate what a powerful tool the Foundation actually represents. It enables the Staff Judge Advocate (SJA) to draw upon the diverse experiences and perspectives resident within every Office of the Staff Judge Advocate (OSJA). With proper understanding and utilization, the OSJA leadership can maximize informed decision making, ensure full representation of various demographics, and encourage broad consensus building and sense of ownership.
The Soldier’s Training Manual–Paralegal Specialist (27D) states that the senior leadership of the OSJA:
[C]onsists of the SJA, the Deputy SJA, the Legal Administrator, Command and/or Chief Paralegal noncommissioned officer (NCO), and the Senior Civilian Advisor. Each senior leader has specific duties and responsibilities, but all five leaders (Foundation of Five) work together to ensure that the OSJA is led, trained, equipped, and supported in a manner to accomplish the mission.1
It also states that civilian attorneys:
[A]re assigned to the SJA office and perform legal duties, in one or more legal disciplines, under the supervision of the SJA, Division Chief, and Senior Civilian Advisor, with the notable exception of advocating before courts-martial. They regularly provide extensive expertise in a particular legal discipline. They also have supervisory responsibilities, which may include division chief’s responsibilities.2
While the manual acknowledges the existence of the Senior Civilian Advisor (SCA) and broadly describes the attorney’s supervisory responsibilities, it does not offer any specifics.
Origins of the Senior Civilian Advisor and the Foundation of Five
The Foundation is a relatively recent organizational construct. Lieutenant General (LTG) Scott Black designated Ms. Diane Nugent as the senior civilian attorney for the Judge Advocate General’s Corps on 13 June 2007. The same day he published Special Announcement from The Judge Advocate General 37-12, stating:
Ms. Diane Nugent has been approved for promotion to the Senior Executive Service (SES) and will serve as the senior civilian attorney for the JAG Corps. . . . Ms. Nugent will be my primary advisor on all matters relating to our civilian employees. Her primary emphasis will be on the professional development of the over 480 civilian attorneys in the Judge Advocate Legal Service. . . . We will greatly benefit from Ms. Nugent’s leadership, experience, and judgment as she continues to serve our great Nation, Army, and Corps.3
Lieutenant General Dana Chipman, Lieutenant General Black’s successor as The Judge Advocate General of the U.S. Army (TJAG), announced his vision of the Foundation at his first Worldwide Continuing Legal Education (WWCLE) Course, and discussed it further in seminar at the following year’s WWCLE.4 Approximately twenty-five percent of the attendees raised concerns about the concept. In response, LTG Chipman sent a follow-up message:
I owe you some thoughts here. As you already know, we have grown our civilian attorney population significantly over the last several years. With modularity and the maturing of installation management concepts, civilian attorneys occupy increasingly prominent roles in the provision of legal services. Of equal importance, they influence young judge advocates significantly in the critical first few years of practice. That is reality—and it means we need a civilian perspective in our leadership foundation. We have used the term “senior civilian” to date, but I am aging rapidly and am more sensitive to the use of “senior”. Accordingly, a better term is “civilian advisor.”5
Lieutenant General Dana Chipman continued:
The SJA alone is responsible and accountable for the OSJA. The SJA manages and leads with the help of key advisors: Deputy SJA, Legal Administrator, Chief Paralegal NCO, and Civilian Advisor—a Foundation of Five (FoF).
Inclusion of the civilian advisor in the FoF recognizes the key role of our civilian employees as mentors and leaders in our formations. The civilian advisor helps improve office communication flow to all personnel, and gives the SJA a valuable civilian perspective regarding the delivery of legal services and office management.
The FoF is a flexible and dynamic concept—tailor the concept as it best fits your mission and structure. Each SJA has the flexibility to select the civilian advisor best-suited to provide advice and perspective regarding office issues.
Our civilians are indispensable to the success of Army legal operations—the evolution of a Foundation of Five simply acknowledges that truth.6
It is clear that the LTG Chipman wanted the Foundation to be flexible, and that it was a dynamic concept dependent upon the individual missions and the structure of each office. He also emphasized that including a civilian attorney in the Foundation would bring a much needed perspective to the group.
Lieutenant General Flora Darpino, our next TJAG, appointed Mr. Mortimer Shea to succeed Ms. Nugent as the JAG Corps’ civilian member of the FoF.7 Mr. Shea established an SCA forum on milBook and posted a message for SCAs serving throughout the JAG Corps. In the body of his message, Mr. Shea outlined several roles senior civilians should serve:
[T]he senior civilian should serve in two basic ways: first, as an informal mentor to junior members of the office, especially civilians; and second, as the foundation of five member who provides the civilian employee perspective, so it may be considered as office decisions are made. . . .[p]ractically speaking, the senior civilian leads by providing an example for junior civilians to emulate and from whom uniformed personnel can learn to appreciate civilian service.8
On the administrative side, Mr. Shea offered, “Where appropriate, the senior civilian also can offer to share some of the warrant officer’s administrative burden as it relates to civilian employees.” 9 Mr. Shea concluded by encouraging his SCAs in the field to communicate vertically and horizontally. He advised:
Through this forum we also plan to provide you authoritative information on matters of general concern to civilians, such as furloughs, force structure changes, reorganizations that can help you and your SJA correct inaccurate information and dispel false rumors. The idea is that you be among the first to know about matters affecting civilians. And if we haven’t pushed information down, you can always post questions on this restricted forum, to which only other senior civilians can subscribe.10
When the function and value of the Foundation is recognized as a communication and decision support tool, it is clear that it does not confuse the NCO support channel or supervisory chain, but directly complements those established mechanisms by directly importing experience and perspective-based input. This facilitates greater positive impact for the entire organization. Army Regulation (AR) 600-20 identifies the NCO support channel as a vehicle that, “parallels and complements the chain of command.”11 The Foundation of Five is not inconsistent with that notion, but rather a similar complement that provides an integration function by bringing input from other leadership chains directly and efficiently to the decision maker. The Foundation is similarly consistent with Army doctrine. Field Manual (FM) 1-04, Legal Support to the Operational Army, identifies the SJA as the leader for the OSJA, doing so with the help of key advisors.12 That doctrinal reference also acknowledges contemplated flexibility to account for situation requirements and other dynamics that may vary from office to office to include variations in mission structure. For example, at the 7th Army Training Center (ATC), SJAs have routinely expanded the Foundation to an informal Foundation of Six to include the Chief of Host Nation law to provide input on decisions that may affect the OSJA’s German employees. This flexibility is good because it highlights the adaptability of a tactic, technique, and procedure (TTP) that does not usurp or confuse other leadership chains.
In practice, SCAs provide critical continuity to the Foundation. The other four members rotate every two years, whereas the SCA is often a seasoned survivor of the good idea fairy. Due to longevity on station, the SCA also likely knows “where all the bodies are buried.” This localized knowledge and experience allows the SCA to discretely talk to new SJAs about what has, or has not, worked well at the OSJA in the past.
Individual SJAs possess the independent flexibility “to select the civilian advisor best-suited to provide advice and perspective regarding office issues.”13 It is important to note that Foundation designation remains a TTP rather than something memorialized in manning documents. It is only after an SJA selects a civilian attorney as SCA that the civilian assumes a formal, OSJA-wide leadership role. It is this local TTP, applied unilaterally by the SJA, which brings OSJA leaders together to form the OSJA’s Foundation of Five.
In most cases, inbound SJAs may reasonably rely on the incumbent to continue to fill the SCA role. When SJAs find themselves in the unusual position of selecting a new SCA, there are many factors that may drive an appropriate selection. To be an effective Foundation member, an SCA should be a technical expert in their legal discipline and be able to relate to the other Foundation members and the broad array of civilians employed by the OSJA. In evaluating suitability, SJAs should avoid using seniority alone as a litmus test. Whether precluded by overwhelming volume of other duties, lack of familiarity with Foundation areas of responsibility, or inability to foster the necessary interpersonal relationships, the most senior civilian attorney on staff might not be the best person to tap for SCA duties.
Senior Civilian Advisor Duties
The duties of SCAs across the JAG Corps vary widely. All SCAs have a technical duty within the OSJA that is documented in their Position Description (PD). Many are division chiefs in charge of supervising administrative law or client services operations. Others are labor counselors, international law attorneys, or ethics counselors. This article focuses on their roles as a member of the Foundation and mentor to members of the OSJA; roles which exceed the duties for which they were hired. Even though SCA functions may be included in PDs, SJAs do not hire SCAs; they hire civilian attorneys who accept the additional duty of serving as the OSJA’s SCA. At the 7th ATC, the SCA is the Chief of Client Services. The duties relating to supervising legal assistance, Special Victim Counsel, tax and claims operations within Bavaria, and the SCA duties are all outlined in the PD. With regard to the SCA duties it states:14
Serves as the 7th ATC OSJA Senior Civilian Attorney and Special Assistant to the SJA, with respect to a wide range of highly technical and complex legal issues dealt with by the OSJA. Serves as principal advisor to the SJA regarding civilian personnel issues within OSJA as related to US and Local National civilian attorneys, as well as US and Local National paralegals, and legal assistants. Requires knowledge of professional responsibility rules related to US and Local National attorneys and support staff. 15
In many respects, the 7th ATC SCA’s duties are intertwined with traditional division chief duties. In practice, the addition of SCA duties simply broadens the supervisory role to include mentoring OSJA employees working outside of the Client Services Division. The PD uses language that at times squarely applies to Client Services only, and at other times includes the full range of OSJA operations.16
These duties are further spelled out in annual DPMAP support form and performance evaluations. Some of the stated goals and achievements captured in these documents relate to SCA duties: facilitating OSJA civilian personnel actions such as DAC/LN hiring; drafting civilian honorary, monetary and time-off awards; and spearheading the OSJA’s efforts to promote CP-56 training opportunities. Other goals and achievements relate to Chief of Client Services duties: supervising judge advocates, paralegals, and civilians working in legal assistance, claims, tax, and SVC billets; supervising the drafting and submission main and branch office applications for the Chief of Staff of the Army (CSA) legal assistance excellence award; and advising and supporting unit SRP and other preventive law programs. However it is spelled out within a particular OSJA, the important thing to remember is that it remains a purely local TTP. Staff Judge Advocates and their SCAs should take affirmative steps to shape the application of their local TTP to best suit the needs of their office.
The SCA is in a unique position to provide continuity and behind-the-scenes guidance to the SJA, DSJA, Legal Administrator, and Chief Legal NCO. A clear charter at the outset of the SJA-SCA relationship is a key starting point. Because there is scant formal JAG Corps guidance on how SCAs should fulfill their management roles, SJAs retain wide discretion in developing local TTPs. This is good, because one-size-fits-all guidance would limit the flexibility that allows the Foundation of Five to be so effective.
The Foundation was never designed to replace established leadership chains. It is instead a communication and decision support tool. Its value in promoting mentorship; development and dissemination of organizational communications; and an effective means to encourage collaboration and informed decision making is obvious. Elimination of the Foundation would be foolhardy, because LTG Chipman’s observation continues to hold true, “Our civilians are indispensable to the success of Army legal operations—the evolution of a Foundation of Five simply acknowledges that truth.”17 TAL
1. U.S. Dep’t of Army, Soldier’s Training Manual – Paralegal Specialist (27D) 3 (2011).
2. Id. at 5.
3. A Special Announcement from The Judge Advocate General, 37-12 (13 June 2007).
4. Email from Ms. Diane Nugent to Mr. Frederic Borch (04 Mar. 2015, 11:02 EST) (on file with author).
5. Email from COL Peter Cullen on behalf of LTG Dana Chipman to JAGC uniformed leaders (08 Nov. 2010, 16:59 EST) (on file with author) [hereinafter COL Cullen email].
7. Email from LTG Flora D. Darpino sent to the field via USARMY Pentagon HQDA OTJAG Mailbox (01 July 2015, 11:02 PM) (on file with author). The message reads in full:
ANNOUNCEMENT OF MR. MORTIMER C. SHEA, Jr. AS THE NEW SENIOR CIVILAIN ADVISOR–It is my pleasure to announce Mr. Mortimer C. Shea, Jr., Director, Soldier and Family Legal Services as our new senior civilian advisor and the latest member of the JAG Corps’ leadership Foundation of Five. Our Corps will greatly benefit from his leadership, experience, and judgment as he serves as the senior civilian attorney in The Judge Advocate General’s Corps and my advisor on matters related to Judge Advocate General’s Corps’ civilian employees. Please join me in congratulating Mr. Shea as he assumes his new duties.
8. Mr. Mortimer Shea on milBook (11 May 2016, 21:31 EST) (on file with author) [hereinafter Mr. Shea milBook].
11. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy (6 Nov. 2014).
12. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to the Operational Army para. 4-20 (18 Mar. 2013) [hereinafter FM 1-04].
13. COL Cullen email, supra note 5.
14. Position Description # JJ354042, Sequence # 2026816, Supervisory Attorney-Advisor (General) GS-0905-14 (23 Apr. 2010).
15. Id. para. I.1.
16. Id. para II.1.
17. COL Cullen email, supra note 5.