Vermont Air National Guard Resorts to Sham Investigation in Response to F-35 Complaint

Guard transferred complaint investigation to the units responsible for the injuries

The Vermont National Guard transferred the investigation of an F-35 Complaint to the Guard units responsible for the F-35 training flights in a city.

The transfer violates Air Force Instruction 90-301 that bars “self-investigation” of a complaint. With the investigation now under the control of the very people directly responsible for the injuries described in the Complaint, the investigation cannot be “impartial, unbiased, objective, and thorough,” as also required by Air Force Instruction 90-301.

The transfer was revealed in response to a status request to the Inspector General (IG) of the Vermont National Guard. The IG reported that “the investigation [of the F-35 Complaint] has been referred to the Commander and he has assigned it to our OPS group and representatives from public Affairs and the Wing” (email from the IG dated December 19, 2020).

The Commander, the OPS group and the Wing are among the subjects of the Complaint. They have been conducting hundreds of 115 decibel F-35 training flights each month low over Vermont’s most densely populated cities. Thus, the Complaint is now being investigated by the people directly responsible for the F-35 flights that are inflicting pain, injury, and suffering on hundreds of city dwellers.

The 62-page Complaint, entitled “F-35 Flights in a City Violate the Military’s Own Rules,” was signed by 657 Vermonters and submitted to the Inspector General (IG) of the Vermont National Guard on October 22, 2020.

The Complaint summarized the injuries to brain and bodily organs that the US Air Force itself anticipated in its 2013 Environmental Impact Statement (EIS). The Complaint cited the report of “Panic attacks. Ringing ears. Shaking walls.” in a VTDigger news article. It also cited the written testimony submitted by hundreds of civilians subjected to the extreme noise of F-35 takeoffs and landings at the Burlington International Airport (BTV).

Among the numerous laws and military regulations it cited, the Complaint quoted from US Air Force targeting doctrine prohibiting use of an otherwise lawful weapon in a manner that causes unnecessary suffering. The Complaint concluded its presentation and analysis of the facts and the law with a call for an immediate halt to the F-35 training flights at BTV and at any other populated area.

Air Force Instruction prohibits “self-investigation”

Air Force Instruction 90‑301 implements Air Force policy governing the investigation of complaints to Air Force and Air National Guard units. Consistent with fairness, due process, and common sense, Air Force Instruction 90‑301 mandates that “Appointing authorities will not initiate investigations into allegations against themselves. Such allegations will be forwarded to the next higher-level IG for resolution” (1.7.8). If this provision had been followed, the Commander, who is one of the named subjects of the allegations in the F-35 Complaint, would not have initiated the investigation.

Air Force Instruction 90‑301 further mandates that Investigating officers (IO) “must be impartial, unbiased, objective, [and] thorough” (3.34.3), and prohibits “self-investigation or the perception of self-investigation.” In particular, Air Force Instruction 90‑301 states that “IGs must elevate complaints [to a higher-level IG] when self-investigation or the perception of self-investigation is an issue” (3.4.2). Thus, the OPS group and Wing, whose training with F-35 jets in densely populated cities is the subject of the complaint, should have been barred as Investigating Officers.

Hearing damage, impaired learning, damaged cognitive development

The F-35 Complaint to the Inspector General submitted on October 22 summarizes the permanent hearing damage, impaired learning, damaged cognitive development, and severe distress that the US Air Force EIS itself said could be caused by the extreme noise of F-35 jets taking off and landing in a populated area. Noise that the Air Force EIS indicated was more than four times louder than the previously based F-16s (Volume I, p. BR4-23 and Volume II p. C-2).

The Air Force EIS anticipated that 6,663 people living in 2,963 homes in a 2,252-acre oval-shaped area surrounding the BTV runway would be repeatedly exposed to dangerously high F-35 noise (BR4-30) and that 7 schools were located in this oval-shaped area (BR4-33). The flight schedule issued by the Vermont National Guard in April 2020 indicated that F-35 jets were taking off and landing at BTV between 300 and 600 times each month.

The injuries and distress anticipated by the Air Force EIS were confirmed by more than 1000 submissions to online F-35 Report and Complaint Forms since the F-35 jets ramped up training flights in April 2020 (see the graphs and in-your-own-words statements of the 470 submissions to the summer 2020 version of the form). That 657 signed on to the F-35 Complaint to the IG within 10 days also confirmed widespread public awareness and deep concern about the injuries and distress produced from the city location for the F-35 training flights.

Choosing a densely populated location targeting working class & minority civilians

A detailed map shows the runway at BTV located in the densely populated Chamberlin School neighborhood of the City of S. Burlington. In one direction the runway aims F-35 jets directly at the center of the City of Winooski, only one mile away. Winooski is the most densely populated city in Vermont. On their way to Winooski, the F-35 jets direct their intense noise at the Chase Street neighborhood of Burlington. In the other direction the runway aims F-35 jets at neighborhoods and retail stores in Williston. All the affected residential neighborhoods are working class, and the Air Force says the F-35 basing disproportionately impacts low income and minority populations.

F-35 training flights in a populated area violate the military’s own rules

By choosing the densely populated city location for hundreds of F-35 training flights each month Vermont military leaders knowingly and recklessly target civilians, in violation of US and international law. The military’s own laws of war require distinguishing civilians and taking feasible precautions to protect them. Instead, the F-35 Complaint demonstrated how F-35 training flights in a populated area violate military law principles, including “Distinction.” The Complaint described how the training flights in a city violate the law of war, the Uniform Code of Military Justice (UCMJ), and the US War Crimes Act. And how the F-35 training flights in a city also violate fundamental rights in the US and Vermont constitutions, US‑ratified treaties, and international law. And Vermont’s reckless conduct laws.

The resort to self-investigation serves as an admission

By resorting to self-investigation, the Vermont National Guard effectively admitted that it expected that an independent, impartial, and objective investigation would support the allegations in the F-35 Complaint.

Integrity of IG process at risk

If such a flawed self-investigation is allowed to stand, the integrity of the Inspector General process is abandoned. The rule of law is discarded. Both replaced with impunity.

Vermont has authority to halt the F-35 training flights in a city

Under the militia clause of the US Constitution responsibilities over state national guard units are divided between the federal government and the states with each having only specified powers. Congress has authority of “organizing, arming, and disciplining” while “reserved to the States is the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Thus, while the federal government has authority to add or remove F-35 jets from BTV, Vermont controls the training itself. Vermont cannot force the federal government to remove the F-35 jets but the Federal Government cannot force Vermont to continue using the F-35 jets for training flights in a city. Especially as such a location for training violates the discipline prescribed by Congress and Department of Defense and Air Force discipline.

Remedy

The investigation of the complaint must be removed from the hands of the perpetrators of the suffering. The F-35 Complaint must be elevated to a higher IG level that can conduct an impartial, unbiased, objective, and thorough investigation, free of self-investigation or the perception of self-investigation. This is vital not just for the 657 who signed on to the complaint. It is vital for all Vermonters, as due process, the rule of law, and the integrity of a Vermont state government agency are at stake.