Protecting Military Whistleblowers: 10 U.S.C. §1034
April 9, 2020
Protecting Military Whistleblowers: 10 U.S.C. §1034
Protected Actions
unaware of the protected communication,
Military whistleblower protection applies to any
additional evidence is required to corroborate
servicemember who lawfully discloses wrongdoing to
this assertion.
designated officials. A military whistleblower is any
4.
Causation—established by determining what
servicemember who makes or prepares a protected
influence a protected communication had on a
communication or who is perceived as making or preparing
person’s decision to take, threaten, withhold,
to make a protected communication to an inspector general
or threaten to withhold a personnel action. To
(IG), a member of Congress, or other designated officials.
determine causation, four technical elements
Prohibited Conduct
are examined and must hold true.
Anyone subject to the Uniform Code of Military Justice
Process
(UCMJ) who violates military whistleblower protection can
A servicemember may submit reprisal or restriction
be prosecuted by court-martial with a maximum
allegations to an IG within one year following the alleged
punishment that includes bad conduct discharge,
act or within one year following the date the servicemember
dishonorable discharge, three years confinement, or total
became aware of the alleged act. The Department of
forfeiture of pay and allowances. Civilian employee
Defense (DOD) IG or a DOD component IG is to
violators are subject to administrative discipline that could
investigate DOD servicemember or former servicemember
include firing the employee.
allegations (DOD Directive 7050.06). The Department of
Restriction and Reprisal
Homeland Security (DHS) IG is to investigate U.S. Coast
Guard (USCG) servicemember or former servicemember
Restriction occurs when a person prevents or attempts to
allegations (33 C.F.R. Part 53).
prevent a military whistleblower from communicating or
preparing to communicate with an IG or a Member of
Table 1. DOD IG Military Whistleblower
Congress, unless the communication is unlawful. Reprisal
Fiscal Years 2017–2019
occurs when a person takes or threatens to take an
unfavorable personnel action against a military
Reprisal Allegations
Restriction Allegations
whistleblower or withholds or threatens to withhold a
favorable personnel action from a military whistleblower.
closed
sub
rate
closed
sub
rate
In a common scenario, if a commander became aware that a
3,811
92
2.41%
185
39
21.08%
servicemember intends to blow the whistle on him, he
cannot stop the servicemember from doing so. And, if a
Table 2. DOD IG and DHS IG Military Whistleblower
commander becomes aware that a servicemember did blow
Fiscal Years 2017–2019
the whistle on him, he cannot penalize the servicemember
for doing so. The first is restriction; the second, reprisal.
Reprisal and Restriction Allegations
DOD
DHS
Reprisal consists of four elements:
closed
sub
rate
closed
sub
rate
1.
Protected Communication—disclosure of an
abuse of authority, fraud, a gross waste of
3,996
131
3.27%
ND
2
—
funds, or a violation of law or regulation,
Source: Data in Tables 1 and 2 are an estimate derived from CRS
including sexual misconduct and threats to
analysis of DOD IG and DHS IG Semiannual Reports to Congress for
public property or safety.
fiscal years 2017 through 2019.
2.
Personnel Action—action that affects or
Notes: “closed” denotes al egations closed; “sub” denotes al egations
potentially affects a servicemember’s career
substantiated; “rate” denotes percentage of closed al egations that
or current position, such as reassignment,
were substantiated; “ND” denotes no data available for 10 U.S.C.
return to service, retaliatory investigation,
§1034 al egations.
adverse evaluation, or removal from a school,
command, or promotion list.
Investigation
3.
Knowledge—established by determining if
Within 30 days, an IG is to either decline or accept a
each person involved in a personnel action
request to investigate a reprisal or restriction allegation, by
perceived or was aware of the protected
determining four criteria: is the report timely, was there
communication. If a person involved in a
protected communication, was it known to have happened,
personnel action asserts that he or she was
and was there adverse action. An IG must complete an
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Protecting Military Whistleblowers: 10 U.S.C. §1034
investigation within 180 days or notify the servicemember
Judicial Review
and Secretary concerned if the investigation is not timely
After the USD(P&R) or Secretary concerned makes a final
completed. The IG is required to provide a report to the
decision to not substantiate a reprisal or restriction
servicemember after completing the investigation and the
allegation, or a review request or BCMR application is
servicemember may request copies of the investigation’s
deemed denied, a servicemember may seek judicial review
documents, transcripts, or summaries. Documents provided
of the decision in a federal district court (5 U.S.C. §702). If
are subject to redaction, consistent with the Freedom of
the federal district court’s review affirms the final decision
Information Act (FOIA) or Privacy Act (PA).
made by the USD(P&R) or Secretary concerned to not
substantiate a reprisal or restriction allegation, the
Substantiated
servicemember may seek further judicial review in a federal
The Secretary concerned is to make a final decision for a
appeals court.
whistleblower investigation that substantiates an allegation,
if that Secretary concludes there was a reprisal or restriction
Reprisal Investigation
prohibition violation. After this final decision, the Secretary
A reprisal investigation must adequately develop all facts
must ensure the appropriate officials correct or remediate
before dismissing an allegation. The standard of proof for
the servicemember’s military record and discipline the
reprisal is a preponderance of evidence that a reasonable
person who violated the prohibition.
person would find sufficient to show reprisal likely
occurred (more probable than not). The investigation must
If the Secretary concerned determines correction or
answer the first three questions below in the affirmative and
remediation is appropriate, but cannot take these actions,
the final question in the negative to substantiate reprisal:
that Secretary must ensure that the appropriate officials
1.
Did the servicemember make or prepare to
assist the servicemember with an application to the
make a protected communication—or—was
Board for Correction of Military Records (BCMR) for
the servicemember perceived as having made
any available correction or remediation.
or preparing to make one?
If the Secretary concerned concludes that a person
2.
Was an unfavorable personnel action taken or
violated a prohibition of reprisal or restriction, but
threatened against the servicemember—or—
determines correction, remediation, or discipline is not
was a favorable personnel action withheld or
appropriate, that Secretary may refer the report of results
threatened to be withheld from him or her?
to the BCMR, if appropriate, and must report this
3.
Did a person who was aware of a protected
determination to the Secretary of Defense.
communication by a servicemember, or its
Not Substantiated
preparation, or who perceived one, or
perceived its preparation, take, threaten,
A servicemember may apply to the appropriate BCMR for
withhold, or threaten to withhold a personnel
review of a whistleblower investigation that does not
action?
substantiate a reprisal or restriction allegation. The
Secretary concerned must make a final decision on the
4.
Would a person have taken, threatened,
servicemember’s application within 180 days of its filing,
withheld, or threatened to withhold the same
or the application is to be deemed denied and the
personnel action without knowledge of the
servicemember’s administrative remedies are to be
protected communication?
considered exhausted.
Selected DOD Reprisal Substantiation
BCMR Review
DOD OIG investigation substantiated a Navy lieutenant’s
A servicemember may request an evidentiary hearing when
allegation that a Marine Corps lieutenant colonel reprised
the BCMR reviews a whistleblower investigation. The
against the lieutenant for making several protected
appropriate service judge advocate may provide the
communications to an IG and a member of Congress by
servicemember representation by a military attorney at the
threatening disciplinary action and requesting a command
hearing. During the hearing, the servicemember may serve
investigation, which resulted in the lieutenant receiving an
interrogatories, examine witnesses through deposition, and
unfavorable fitness report (2019).
request the production of evidence, including evidence
contained in the agency’s investigation file and report that
Selected USCG Reprisal Substantiation
was not included in the report of results. The BCMR is to
make a recommendation for final decision, if appropriate, to
DHS OIG investigation substantiated a Coast Guard
the Secretary concerned after completing its review.
lieutenant commander’s allegation that her Coast Guard
academy supervisors reprised against her for making
Secretary of Defense Review
discrimination and harassment complaints against them by
After a Secretary of an armed service makes a final decision
giving her an unfavorable officer evaluation report (2018-19).
to not substantiate a reprisal or restriction allegation, or a
BCMR application is deemed denied, a servicemember may
seek judicial review of the decision or an administrative
review of the decision from the Under Secretary of Defense
Alan Ott, Analyst in Defense and Intelligence Personnel
for Personnel and Readiness (USD(P&R)), who acts for the
Policy
Secretary of Defense.
IF11499
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Protecting Military Whistleblowers: 10 U.S.C. §1034
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https://crsreports.congress.gov | IF11499 · VERSION 1 · NEW