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The Military Whistleblower Protection Act

The Military Whistleblower Protection Act. Title 10, United States Code (USC), Section 1034. https://www.law.cornell.edu/uscode/text/10/1034. Overview. Case Study Categories of Complainants Terms and Definitions Elements of Proof (Factors)

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The Military Whistleblower Protection Act

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  1. The Military Whistleblower Protection Act Title 10, United States Code (USC), Section 1034 https://www.law.cornell.edu/uscode/text/10/1034 U.S. Army Inspector General School 1

  2. Overview • Case Study • Categories of Complainants • Terms and Definitions • Elements of Proof (Factors) • Resolving Allegations of Whistleblower Reprisal (IGAP) U.S. Army Inspector General School 2

  3. ELOs Enabling Learning Objectives • Describe the four categories of Whistleblower complainants. • Describe the agency authorized to receive Whistleblower allegations. • Identify what agency is responsible for investigating reprisal allegations for each complainant category. • Describe the four questions (or factors) that establish the framework for an investigation into an allegation of Whistleblower Reprisal (WBR). U.S. Army Inspector General School 3

  4. A Case Study The purpose and intent of the Military Whistleblower Protection Act is to enhance good order and readiness by encouraging Soldiers to come forward in good faith with complaints of wrongdoing and other issues (protected communications). U.S. Army Inspector General School 4

  5. Whistleblower Reprisal • Media interest Congressional Interest • Special Interest Groups Current Situation… • Senior Leader Decisions • Remedy Wrongs - ARBA • Army Board for Correction of Military Records (ABCMR) • Army Discharge Review Board (ADRB) • Army Grade Determination Review Board (AGDRB) • Our task … get it right, for the right reasons U.S. Army Inspector General School 5

  6. WBR Standards / References • Military: 10 USC 1034 and DoD Directive 7050.06 • NAFI: 10 USC 1587 and DoD Directive 1401.03 • AF: 5 USC 2302(b)(8); Presidential Policy Directive-19 (PPD-19), Change 3 • Contractor Employees: 10 USC 2409; Defense Federal Acquisition Regulation (DFAR), Subpart 203.9 • FY14 / FY17 NDAA: 10 USC 1034, DoDD 7050.06, 10 USC 2409 (Influenced changes to DoDD 7050.06) • AR 20-1, paragraphs 1-13, 7-4, and Policy Change #1 • AR 600-20, paragraphs 5-8a and 5-12 • A&I Guide, Part Two, Chapter 9 • Defense Technical Information Center, www.dtic.mil/whs/directives/ U.S. Army Inspector General School 6

  7. Military Whistleblower Protection • DoDD 7050.06, dated 17 April 2015 • 10 USC 1034, Armed Forces members shall be free to make a Protected Communication (PC) • Soldiers have the right to raise matters of fraud, waste, abuse, or other improprieties within the Army without fear of reprisal • No personshall restrict a member of the Armed Forces from making lawful communications to a Member of Congress (or their staff) or to an IG • Defines chain of commandto include the supervisoryand rating chain U.S. Army Inspector General School 7

  8. Military Whistleblower Protection • DoDD 7050.06, dated 17 April 2015 • DoD IG shall investigate or overseeDoD Component IG investigations of allegations • No investigation “required” (untimely) when a member submits a complaint more than 1 YEAR*after becoming aware of the personnel action (* Change made by FY14 NDAA) U.S. Army Inspector General School 8

  9. What does Whistleblower Reprisal mean to the IG? • Only IGs can investigate allegations of military WBR when presented to an IG. Component IGs must investigate allegations of Whistleblower Reprisal and complete an ROI as the Office of Inquiry within 150 days. • An IG cannot refer an allegation of reprisal • Only DoD IG (Office of Oversight)can dismiss a WBR investigation U.S. Army Inspector General School 9

  10. IG Records for Adverse Action • Per DODD 7050.06, 17 April 2015, (4c(2)), SECARMY shall take appropriate disciplinary action against the individual who committed the reprisal • Per AR 20-1 (7-4b(3)(d)), IG records (ROI) may be used as the basis for adverse actionagainst individuals, military or civilian, by directing authorities or commanders if they contain a substantiated allegation of Whistleblower Reprisal • National Guard falls under State Code of Military Justice -- unless in Title 10 Status. Adverse action taken in one status likely affects other statuses. U.S. Army Inspector General School 10

  11. Army Board for Correction of Military Records (ABCMR) • 5.3.4.1. Consider applications for the correction of military records at the request of a member or, otherwise, who alleged that the prohibitions of paragraphs 4.2. and 4.4. have been violated • 5.3.4.2.4. If the ABCMR determines that a personnel action was in reprisal under this Directive and section 1034 of Reference (b), it may recommend to the Secretary of Military Department concerned that disciplinary action be taken against the individual(s) responsible for such personnel action U.S. Army Inspector General School 11

  12. Categories of WBR Complainants ELO 1 • Military Member • Non-Appropriated Fund (NAF) Civilian • Appropriated Fund Civilian • Contractor Employee Active Duty (AC), Reserve (RC), and National Guard (NG) (Federal interest) AAFES / MWR Employees General Schedule (GS) / Wage Grade (WG) KBR, CACI, BAH, etc. The A&I Guide, Part Two, Section 9-2 (II-9-43) U.S. Army Inspector General School 12

  13. Agency Authorized to Receive WBR Allegations ELO 2 • Military Member • Non-Appropriated Fund (NAF) Civilian • Appropriated Fund Civilian • Contractor Employee Any Service IG can receive – DoD IG oversight Refer complainant to: DoD IG Refer complainant to: Office of Special Counsel Refer complainant to: DoD IG The A&I Guide, Part Two, Section 9-1 and 9-2 U.S. Army Inspector General School 13

  14. Agency Responsible for Investigating WBR(1 of 4) ELO 3 Military WBR Complaints: • Service IGs will investigate military complaints (allegations) of Whistleblower Reprisal • DoD IGhas oversight of Title 10 reprisal investigations • Military members have the right to appeal investigation results directly to the Secretary of Defense The A&I Guide, Part Two, Section 9-2; 10 USC 1034; DoDD 7050.06 U.S. Army Inspector General School 14

  15. Agency Responsible for Investigating WBR (2 of 4) ELO 3 • Non-Appropriated Funds (NAF) WBR complaints • DoD Inspector General (IG) • www.dodig.mil • U.S. Department of Defense • Office of the Inspector General • 4800 Mark Center Drive • Alexandria, VA 22350-1500 • Tel: (703) 604-8324 The A&I Guide, Part Two, Section 9-2; 10 USC 1587; DoDD 1401.03 U.S. Army Inspector General School 15

  16. Agency Responsible for Investigating WBR (3 of 4) ELO 3 Appropriated Fund Civilian WBR Complaints • Office of Special Counsel (OSC) • www.osc.gov • U.S. Office of Special Counsel 1730 M Street, N.W., Suite 201 Washington, D.C. 20036-4505 Tel: (800) 572-2249 or (202) 653-9125 The A&I Guide, Part Two, Section 9-2; 5 USC 2302(b)(8) U.S. Army Inspector General School 16

  17. Agency Responsible for Investigating WBR (4 of 4) ELO 3 • DoD Contractor WBR complaints • DoD Inspector General (IG) • www.dodig.mil • U.S. Department of Defense • Office of the Inspector General • 4800 Mark Center Drive • Alexandria, VA 22350-1500 • Tel: (703) 604-8324 The A&I Guide, Part Two, Section 9-2; 10 USC 2409 U.S. Army Inspector General School 17

  18. Summary • Categories of Complainants • Agencies that can receive WBR complaints • Agency that has oversightof WBR cases U.S. Army Inspector General School 18

  19. What is Whistleblower Reprisal (WBR)? The taking of (or threatening to take) an UnfavorablePersonnel Action (PA) - or - the withholding (or threatening to withhold) a FavorablePersonnel Action (PA) BECAUSE the member made (or was thought to have made) a Protected Communication (PC) U.S. Army Inspector General School 19

  20. Whistleblower Terms • PC: Protected Communication • PA: Personnel Action • RMO: Responsible Management Official • WBR: Whistleblower Reprisal • MOC: Member of Congress • Restriction: Preventing or attempting to prevent military members from making or preparing to make lawful communications to a MOC and / or an IG • WIOB: Whistleblower Investigations Oversight Branch, DAIG Assistance Division (SAIG-AC) 703-545-1858 U.S. Army Inspector General School 20

  21. Protected Communication (PC):First Category Anylawful (truthful) communication to: • Members of Congress (to include Congressional staff members) • Inspectors General • Regardless of subject! (Restriction is a form of Reprisal) U.S. Army Inspector General School 21

  22. Protected Communication (PC):Second Category(1 of 2) Lawful (truthful) communications made to: • DoD audit, inspection, investigation, or law enforcement organization • Any person or organization in the chain of command; or any other person designated pursuant to regulations or established administrative procedures to receive such communications (e.g. EO, Safety Office, etc.) • A court-martial proceeding (FY14 NDAA) U.S. Army Inspector General School 22

  23. Protected Communication (PC):Second Category(2 of 2) Protected only if the communication concerns: • Violations of law or regulation (includes EO, sexual misconduct & assault) • Gross mismanagement • Abuse of authority • Gross waste of funds or resources • Substantial danger to public health or safety • Testimony or participation in an investigation Reasonably believed to be true by the complainant! DoDD 1401.03, Encl 1: 'Definitions' U.S. Army Inspector General School 23

  24. Personnel Actions (PA) • Any action that taken on a member of the Armed Forces that materially affects, or has the potential to affect, that military member’s current position or career. • Unfavorable or Favorable (produces a negative effect) U.S. Army Inspector General School 24

  25. Unfavorable Personnel Actions(Taken or Threatened – not definitive list) • Permanent letters of reprimand • Unfavorable, non-competitive, adverse, or referred evaluation reports • Relief for cause • Transfer or changes to duties or responsibilities • Reenlistment / Separation proceedings • Decisions concerning pay or benefits • Disciplinary or other corrective actions • Referrals for Mental Health Evaluation (MHE) • Limited access to weapons/classified/flying etc. U.S. Army Inspector General School 25

  26. Favorable Personnel Actions(Withheld or Threatened – not definitive list) • Evaluations • Promotion recommendation • Award • Training (required) • Assignment • Attendance at school (PME; MOS-required training) • Transfer U.S. Army Inspector General School 26

  27. Responsible Management Official (RMO) Anyone who: • Influenced or recommended the Personnel Action (PA) be taken • Made the decision to take the PA • Signed applicable correspondence regarding the PA • Approved, reviewed, or endorsed the PA * RMO can be a Service Member, GS Employee, or NAF Employee U.S. Army Inspector General School 27

  28. Reprisal or Retaliation? • Reprisal is a form of retaliation; BUT not all retaliation is reprisal • Reprisal = statutory and is related to 10 USC 1034. IGs must investigate military reprisal cases; Commanders should investigate other forms of retaliation (ostracism and acts of cruelty, oppression, or maltreatment) • For other forms of retaliation, consider using AR 600-20, Chapter 4-19, Chapter 8, or Appendix H; or AR 600-100, Chapter 1-11 • Expect revisions in AR 600-20 to incorporate retaliation definition U.S. Army Inspector General School 28

  29. Restriction • Attempting to prevent a Service Member from making a lawful communication to either a MOC or and IG (applies only to PC – Category I) • Includes imposing unnecessary requirements to request, disclose, or report the PC in and effort to interfere, limit, block, or dissuade (complainant’s perspective) • Restriction complaints to Category II recipients are not covered or investigated under 10 USC 1034 or DoDD 7050.06 • Does not have to be successful U.S. Army Inspector General School 29

  30. Inference of Causation • DoD phrase used to describe a probable cause-and-effect relationship • In WBR – used to indicate that the likely reason for the PA is because the complainant made a PC U.S. Army Inspector General School 30

  31. Yes Yes Yes No The Elements of Proof ELO 4 • Protected Communication? (PC) • Personnel Action? (PA) • Knowledge? (RMO Knowledge of the PC) • Causation- Would the PA havehappened absent the PC? REPRISAL The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 31

  32. Question One: ELO 4 Did the complainant make or preparea communication protected by statute? Was the complainant perceived as having made or prepared a PC? No actual communication is necessary PERCEPTION = REALITY If there is any doubt whether the complainantmade a Protected Communication (PC)-- give the complainant the benefit of the doubt The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 32

  33. Start WBR chronology early and update often! Protected Communication (PC)(1 of 3) • What is a protected communication (PC)? • Whatwasthe PC? • To whom was the PC made? • Whenwas the PC made? T I M E L I N E U.S. Army Inspector General School 33

  34. Protected Communication (PC)(2 of 3) Protected communications may be: • Verbal, written, or electronic (telephone, fax, E-mail) • Made by a third party • Made to the Responsible Management Official (RMO) Chain of command communications may include: • Complaints made during commander’s office hours or open-door policy • Complaints made in public forum • Complaints made during Commander’s Call / Town Hall U.S. Army Inspector General School 34

  35. Protected Communication (PC)(3 of 3) • Timing: The exact date the communication occurred or was planned is critical • Preparing to communicate= communication: • “I’m going to write my congressman.” • “I’m fixen' to see the IG about this!” • “I’m going to tell the old man about these safety violations the platoon sergeant is ordering us to do.” U.S. Army Inspector General School 35

  36. Question Two: ELO 4 Was anunfavorable Personnel Action (PA) taken or threatenedagainst the complainant, or was a favorablePersonnel Action (PA) withheld or threatened to be withheld from the complainantfollowingthe Protected Communication (PC)? The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 36

  37. Unfavorable Personnel Action? • 1LT Newkirk claims her OER had all top-level ratings, but the narrative did not have the “hard-charging” words for her to remain competitive for promotion. • SSG Mork's PCS was delayed pending the outcome of a CID investigation, and his NCO Academy slot was canceled. Eventually, the investigation cleared him of all charges. • If there is any doubt whether the complainant received an unfavorablePersonnel Action (PA)-- give the complainant the benefit of the doubt Maybe ... why? Probably Not ... why? U.S. Army Inspector General School 37

  38. Personnel Actions • What if... • Responsible management official did not consider the Personnel Action to be “adverse”? • Personnel Action was subsequently reversed? • Member left the service before the Personnel Action could have an effect? Doesn't matter. Still an unfavorable PA. U.S. Army Inspector General School 38

  39. Question Three: ELO 4 Did the Responsible Management Official(s) (RMO) who took, withheld, or threatened the unfavorable personnel action knowabout the Protected Communication (PC), or perceive the complainant as having made or prepared a PCbefore they took the Personnel Action? ‘Timing is Everything' T I M E L I N E The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 39

  40. Responsible Management Official Knowledge(1 of 5) Two-step process: • Identify the Responsible Management Officials (RMO) • Allofficials for eachPersonnel Action • Determine if Responsible Management Officials (RMO) knew of the Protected Communication (PC) • Whendid RMOs know? • Whatdid RMOs know? • Howdid RMOs find out? • Didanyone elseknow the RMOs knew? U.S. Army Inspector General School 40

  41. Responsible Management Official Knowledge(2 of 5) Timing: • Determine exact date that eachRMO: • First considered taking the personnel action • Initiated the personnel action (began drafting) • Completed the personnel action (or failed to complete) • First notified the complainant of the personnel action (being considered, in progress, delivered or denied) • Establish the timing for each personnel action U.S. Army Inspector General School 41

  42. Responsible Management Official Knowledge(3 of 5) Knowledge includes: • Personally received the Protected Communication (PC) • Heard rumors about the Protected Communication (PC) • Suspicion or belief that the complainant may have made a Protected Communication (PC) Important to understand: • Precise knowledge of the Protected Communication (PC) is not necessary • Simple awareness that a (PC) occurred (regardless of subject or content) is sufficient U.S. Army Inspector General School 42

  43. Responsible Management Official Knowledge(4 of 5) • Ask the complainant: • “Who do you believe is responsible?” • “Why do you believe the responsible management official knew you made a protected communication before taking the unfavorable action?” • “Who can testify or provide documents to support your allegation that the responsible officials knew of your protected communication?” U.S. Army Inspector General School 43

  44. Responsible Management Official Knowledge(5 of 5) • Ask each Responsible Management Official (RMO): • “Did you know that the complainant made a PC?” • “When and how did you first become aware of the complainant’s protected communications?” • “When and how did you first come to believe or suspect that the complainant may have made (or intended to make) a protected communication?” • “How did you become aware?” • “Did you suspect or hear rumors that the complainant made a PC?” U.S. Army Inspector General School 44

  45. Knowledge(1 of 2) What if... • Responsible Management Officials (RMOs) deny having any knowledge of the protected communications (PCs)? • No documentary evidence or corroborating witness testimony exists that the Responsible Management Officials (RMOs) knew of the protected communications (PCs)? U.S. Army Inspector General School 45

  46. Knowledge(2 of 2) Sometimes RMOs take action based on rumor or perception, which, even when not accurate, can still motivate reprisal If there is any doubt whether the Responsible Management Officials (RMOs) knew about the Protected Communication (PC)-- give the complainant the benefit of the doubt U.S. Army Inspector General School 46

  47. Personnel Action Knowledge of PC Protected Communication Time Knowledge of PC Personnel Action Protected Communication Time Knowledge of PC Protected Communication Personnel Action Time Let’s Review(Timing) Is it reprisal? does not meet the elements of proof maybe? why? does not meet the elements of proof U.S. Army Inspector General School 47

  48. Question Four: ELO 4 Does a preponderance of credible evidence establish that the same Personnel Action(s) (PA) would have been taken, withheld, or threatened absentthe Protected Communication (PC)? (Most cases will be resolved here) The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 48

  49. Causation(1 of 3) • For each PA, consider: • Reason for action • Timing between PC and PA • Motive to reprise • Disparate treatment of complainant as compared to others (also known as the 'four variables') The four elements of prooffor Question 4! Would the average RMO (Army Officer, NCO or DAC) consider the action reasonable? The A&I Guide, Part Two, Section 9-1 U.S. Army Inspector General School 49

  50. Causation(2 of 3) • Documentary evidence • Copy of the Personnel Action • Service regulations and policies (PA discretionary?) • Other relevant documents • Testimonialevidence • Complainant • Responsible management officials (RMO) • Anyone who decided, directed, recommended, or influenced the unfavorable personnel action • Other key witnesses U.S. Army Inspector General School 50

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