Whistleblower Protection: Continuing Impediments to Protection of
Military Members (Letter Report, 02/02/95, GAO/NSIAD-95-23).
Under Pentagon procedures established to implement the Whistleblower
Protection Act, only whistleblowers who make allegations of reprisals
directly to the Defense Department's (DOD) Inspector General (IG) are
protected under the law. Service members who make allegations of
reprisal to service or local IGs are not afforded such protection. At
the time of GAO's review, the DOD IG had completed few cases involving
service members' claims that mental health evaluations had been used in
retaliation for whistleblowing. Further, DOD had not yet issued
regulations to ensure that the services consistently protect
whistleblowers from reprisal. GAO concludes that service members may
have been unaware of their rights and uninformed that the law affords
them protection only if they file their allegations of reprisal with the
DOD IG. Service members who believe that they were the subject of
reprisals for whistleblowing before passage of the 1988 act may request
relief from their service's Board for the Correction of Military
Records. Although the law requires that requests be made within three
years after the discovery of an error or injustice, the Board may waive
the time limit.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-95-23
TITLE: Whistleblower Protection: Continuing Impediments to
Protection of Military Members
DATE: 02/02/95
SUBJECT: Military personnel
Labor-management relations
Inspectors General
Information dissemination operations
Personnel management
Program abuses
Fraud
Employee demotions
Investigations by federal agencies
Ethical conduct
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Cover
================================================================ COVER
Report to Congressional Requesters
February 1995
WHISTLEBLOWER PROTECTION -
CONTINUING IMPEDIMENTS TO
PROTECTION OF MILITARY MEMBERS
GAO/NSIAD-95-23
Whistleblower Protection
Abbreviations
=============================================================== ABBREV
BCMR - Board for the Correction of Military Records
CFR - Code of Federal Regulations
DOD - Department of Defense
IG - Inspector General
Letter
=============================================================== LETTER
B-247485
February 2, 1995
The Honorable Strom Thurmond
Chairman
The Honorable Sam Nunn
Ranking Minority Member
Committee on Armed Services
United States Senate
You requested that we review the protection afforded military
whistleblowers from reprisal, including reprisal in the form of
involuntary mental health evaluations. Specifically, our objectives
were to determine whether
the system established under the 1988 Military Whistleblower
Protection Act (10 U.S.C. 1034) and section 546 of the National
Defense Authorization Act for Fiscal Year 1993 (P.L. 102-484)
provides an effective means for the investigation and disposition of
alleged whistleblower reprisals and
servicemembers have a mechanism to challenge alleged reprisals that
occurred before enactment of the whistleblower act.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
Under the process and procedures the Department of Defense (DOD)
established to implement the whistleblower act, whistleblowers are
treated differently because only those who make allegations of
reprisals directly to DOD's Inspector General (IG) fall within the
statutory protection of 10 U.S.C. 1034. Servicemembers who make
allegations of reprisal to service or local IGs are not afforded
protection under 10 U.S.C. 1034 and therefore do not receive certain
protections that would otherwise be available to them if they made
their allegations to the DOD IG.
At the time of our review, the DOD IG had completed few cases
involving servicemembers' allegations that mental health evaluations
had been used as reprisals for whistleblowing. Further, regulations
due in January 1994 to implement section 546 had not been issued by
the military services. Without such regulations, DOD has no
assurance that the services are consistently protecting
whistleblowers from reprisal.
The dissemination of information about the provisions of the
whistleblower act and the proper procedures for servicemembers to
follow when filing allegations of reprisal is a responsibility that
has largely been left to the service and local IGs. Service
regulations concerning whistleblower protection, which were required
by March 1993, have only recently been issued, and not by all of the
services. Additionally, the military services have not used
alternative methods to inform whistleblowers about proper procedures
for filing reprisal complaints. Accordingly, servicemembers may have
been unaware of their rights and uninformed that the protections
offered by 10 U.S.C. 1034 are available only if they file their
allegations of reprisal with the DOD IG.
Servicemembers who believe they were the subject of reprisal actions
for whistleblowing activities before the 1988 act may request relief
from their service's Board for the Correction of Military Records
(BCMR). Although legislation requires that requests be made within 3
years after a servicemember discovers an error or injustice, the
Board may waive the time limit if a case is determined to have merit.
BACKGROUND
------------------------------------------------------------ Letter :2
In 1988, Congress enacted the Military Whistleblower Protection Act
(10 U.S.C. 1034) to prohibit anyone from retaliating or taking
reprisals against servicemembers who disclose information concerning
government fraud, waste, and abuse to designated persons. Examples
of retaliatory actions or reprisals against these whistleblowers are
transfers, low performance appraisals, and referrals for involuntary
mental health evaluations. The law also provides for after-the-fact
protection; that is, it provides an avenue to correct a reprisal
against a whistleblower. Specifically, the law seeks to assist those
military servicemembers who
make a protected disclosure by communicating with or preparing a
communication to certain designated officials, for example, a Member
of Congress, the DOD IG, or an IG;
disclose information that they reasonably believe constitutes a
violation of law or regulation, mismanagement, a gross waste of
funds, or a danger to public health or safety; and
have an unfavorable personnel action taken or threatened to be taken,
or have a favorable action withheld or threatened to be withheld, as
a result of the disclosure.
The act requires the DOD IG to expeditiously investigate a
whistleblower's allegations of reprisal that it receives within 60
days of the servicemember's initial awareness of the adverse action.
If an investigation cannot be completed within 90 days of the date of
receipt of the allegation, the IG is to notify the Secretary of
Defense and the member concerning the reason and the expected date of
the report. The DOD IG submits the results of an investigation to
the Secretary of Defense, the service secretary, and the
servicemember.
The law also allows the BCMR to review the results of the
investigation in considering a servicemember's request for correction
of records. Furthermore, the law permits the servicemember to appeal
to the Secretary of Defense the final disposition of the service
secretary's decision concerning the correction of records.
In 1989, DOD issued Directive 7050.6, "Military Whistleblower
Protection," to implement the whistleblower act, which was
incorporated into the Code of Federal Regulations (CFR) in 32 CFR,
part 98a, in 1990. The directive set forth various responsibilities
and requirements for handling whistleblower complaints, including
both DOD IG and service IG investigation and reporting procedures.
The directive allowed the DOD IG to delegate the responsibility to
conduct the investigation to a service IG, in which case the
provisions of 10 U.S.C. 1034 applied. Not all military
whistleblowers' allegations of reprisal, however, are processed under
10 U.S.C. 1034; some may be processed under service IGs' general
authority.
In December 1991, section 843 of the National Defense Authorization
Act for Fiscal Years 1992 and 1993 required the Secretary of Defense
to prescribe regulations prohibiting members of the armed forces from
retaliating against whistleblowers who make disclosures to specified
individuals. In September 1992, DOD reissued Directive 7050.6,
which, among other things, required the services to develop the
regulations called for in section 843.
In October 1992, Congress enacted the National Defense Authorization
Act for Fiscal Year 1993, section 546, which established procedures
for referring servicemembers for inpatient and outpatient mental
health evaluations, and also set forth the rights of servicemembers
referred by their commands for such evaluations. It also
strengthened protection for whistleblowers by prohibiting the use of
mental health evaluations as reprisals against whistleblowers who
make protected disclosures under 10 U.S.C. 1034. Congress recently
enacted the National Defense Authorization Act for Fiscal Year 1995
(P.L. 103-337), which amended 10 U.S.C. 1034 in several respects.
The legislation has amended
section 1034 to protect communications not only to a Member of
Congress or an Inspector General but also to a member of a DOD audit,
inspection, investigation, or law enforcement organization, and
certain other designated persons. It essentially has placed the
protected disclosure coverage from section 843 into 10 U.S.C. 1034.
The legislation also requires the DOD IG to ensure that the
investigating service IG is outside the immediate chain of command of
both the whistleblower and the individual alleged to have taken the
retaliatory action. Another important change is that allegations of
sexual harassment and unlawful discrimination are now covered by 10
U.S.C. 1034.
DIFFERENT PROCEDURES USED TO
HANDLE WHISTLEBLOWER COMPLAINTS
------------------------------------------------------------ Letter :3
Under DOD's current procedures, whistleblowers receive 10 U.S.C.
1034 statutory protection pertaining to reprisals only if they report
their allegations to the DOD IG. In effect, there is a two-track
system for investigating and processing allegations of reprisal
against whistleblowers--one for allegations submitted to the DOD IG
and one for allegations made to service and local IGs.\1 DOD's
current directive implementing the law provides that only allegations
of reprisals made directly to the DOD IG are entitled to the law's
protections. The DOD IG may delegate responsibility for conducting
investigations to service IGs, who in turn often delegate this
responsibility to installation-level IGs. When the DOD IG delegates
an investigation, it maintains an oversight role to ensure that the
criteria contained in its Guide to Investigating Military Reprisals
are followed and that the act's statutory protection is accorded to
the whistleblower. The investigating guide details the procedures
for conducting investigations of alleged reprisal and documenting the
evidence (see app. I for additional details). We reviewed 25 files
of investigations conducted by the DOD IG or under its oversight and
found that the investigators had generally followed the criteria in
the DOD IG guidance. Of the 25 cases, reprisals were substantiated
in 11 cases; not substantiated in 11 cases; and partially
substantiated in 3 cases (see Scope and Methodology section for
discussion of cases selected). We also determined that a military
member applied to a BCMR in six cases. Of those six, the BCMR
recommended action in two (one was in process during our review). We
also researched a number of reprisal allegations that came to our
attention during this assignment. However, we were unable to
determine if those servicemembers had filed applications for
correcting their records due to whistleblower reprisals.
Between enactment of 10 U.S.C. 1034 in September 1988 and February
1994, 233 cases of alleged reprisals against whistleblowers were
filed with the DOD IG. Of those, 159 were investigated and closed,
and 74 were open or under investigation. Of the total cases, DOD had
received and completed investigations of 14 cases alleging the use of
mental health evaluations as reprisals and was investigating an
additional 17 cases. Of the 14 completed investigations, 2 of the
allegations were substantiated, and 1 was partially substantiated.
Service and local IGs are authorized to investigate alleged reprisals
for whistleblowing independent of and without the DOD IG's knowledge.
Accordingly, DOD IG officials informed us that they were unaware of
the number of investigations of reprisal that service or local IGs
had initiated since September 1988.
According to DOD IG officials, servicemembers who report alleged
reprisal for whistleblowing activities to the DOD IG have the
following benefits that servicemembers who report to a service or
local IG do not:
The reprisal complaint is handled through a formal statutory process.
Upon completion of the DOD IG investigation or approval by the DOD IG
of an investigation done by a service or local IG, the servicemember
automatically receives a redacted copy of the investigation report,
copies of documents considered in the report, and redacted summaries
of testimonies taken during the investigation.
Although some service IGs can recommend that appropriate disciplinary
action be taken by the military service department against anyone who
takes action of reprisal, this type of recommendation is more likely
to be made by the DOD IG.
When the DOD IG investigation report recommends corrective action to
relieve harm done to the servicemember by the reprisal, the
servicemember, after applying to the BCMR for relief, can appeal the
disposition of the service secretary's decision to the Secretary of
Defense. In addition, the service secretary must reach a decision on
the servicemember's application for relief within 180 days.
We identified several other benefits or advantages of reporting to
the DOD IG, which are
higher visibility of the case within the service department because
the DOD IG investigation report is sent to the service secretary,
greater assurance that the DOD IG's Guide to Investigating Military
Reprisals will be followed during the reprisal investigation, and
advice from the service secretary that assistance in preparing an
application to the BCMR may be sought from the legal office
supporting the applicant's command in those cases in which the DOD IG
investigation (1) substantiates an allegation of reprisal and (2)
makes recommendations that require BCMR action.
To complicate matters, the whistleblower procedures described in the
CFR provision (until late August 1994) required service and local IGs
to notify the DOD IG when they initiated whistleblowers' reprisal
investigations. This provision provided the DOD IG with the
opportunity to determine whether whistleblower allegations made to
local or service IGs should be handled under 10 U.S.C. 1034-type
procedures. The original DOD directive, issued in 1989, also
required that the DOD IG be notified, but the 1992 revision
eliminated the requirement.
DOD IG officials said they recently revised the CFR to make it
consistent with the 1992 DOD Directive 7050.6, which does not require
notification. According to the DOD IG official in charge of reprisal
investigations, the 1992 directive did not include the notification
requirement because it could not be enforced. The DOD IG, however,
had not previously changed the CFR provision due to an administrative
oversight.
Servicemembers who are not aware of the distinctions between the
levels of protection may not have their allegations handled to their
best advantage. In one case, for example, a servicemember made his
reprisal allegations to the local IG. The local IG's investigation
did not substantiate the allegations, and the local IG did not notify
the DOD IG of the case and investigation. Due to his dissatisfaction
with the local IG investigation, this servicemember later filed the
same allegations of reprisal with the DOD IG. The subsequent DOD IG
investigation substantiated his allegations and recommended that the
service take corrective actions.
--------------------
\1 In a previous report entitled Whistleblower Protection:
Impediments to the Protection of Military Members (GAO/NSIAD-92-125,
May 27, 1992), we suggested that Congress consider amending the
whistleblower act to extend its protection to those whistleblowers
who make their complaint of reprisal to a service IG. This
legislative change, however, was not made.
SERVICEMEMBERS MAY NOT HAVE
BEEN ADEQUATELY INFORMED OF
THEIR RIGHTS
------------------------------------------------------------ Letter :4
Until recently, servicemembers may not have been aware of their
rights under 10 U.S.C. 1034 because the military services had not
issued implementing regulations. The Air Force and the Army only
recently issued required regulations to implement DOD Directive
7050.6 on whistleblower protection, and none of the services have
issued the specific regulations to implement DOD Directive 6490.1
dealing with mental health evaluations. As a result, servicemembers
also may not be aware of their rights under section 546.
Section 843 of the National Defense Authorization Act for Fiscal
Years 1992 and 1993 required DOD to issue regulations prohibiting
reprisals against whistleblowers by June 1992. DOD Directive 7050.6
(Sept. 1992) cited section 843 in requiring the services to
implement regulations establishing procedures and policies for
safeguarding whistleblowers by March 1993. In March 1994, the Army
issued an updated regulation on Inspector General activities and
procedures. It details prohibited activities, including reprisals
against whistleblowers, and specifies that such actions are subject
to the Uniform Code of Military Justice. In May 1994, the Air Force
issued its revised Inspector General complaints instruction, which
includes steps for protecting whistleblowers and makes reprisals
punishable under the Uniform Code of Military Justice. Although the
Navy has not issued an instruction covering whistleblower activities,
in August 1994, the Navy instructed its members to follow the DOD IG
Guide to Investigating Military Reprisals when handling whistleblower
reprisal investigations.
As of July 1994, none of the services had implemented specific
regulations detailing procedures regarding involuntary mental health
evaluations, even though DOD Directive 6490.1 required them to do so
by January 1994. The Navy and the Air Force have issued instructions
to their IGs and mental health professionals, stating that section
546 and DOD Directive 6490.1 must be adhered to until specific
regulations are issued. According to Army officials, however, the
Army is not required to implement section 546 or DOD Directive 6490.1
until it issues its own regulation. The Army has not provided
interim guidance pending the issuance of regulations.
In our 1992 report on military whistleblowing, we reported that in
the past, the DOD IG had told the service IGs that they were required
to explain the whistleblower act to the servicemember alleging
reprisal only if the member specifically mentioned the law.
Subsequently, in letters dated January 31, 1992, the DOD IG
instructed service IGs to inform all whistleblowers that they are
afforded statutory protection only if they make their allegation to
the DOD IG. Furthermore, the Air Force IG instruction includes
specific comments about informing the servicemember of the
differences between filing a reprisal allegation with the DOD IG or
the service IG. DOD IG officials said they have received numerous
referrals from service and local IGs. However, the DOD IG's tracking
system does not identify referred cases; therefore, we could not
substantiate claims of referrals.
Since our last report, the DOD IG has developed a poster on
whistleblower protection for distribution to military installations.
According to DOD IG officials, three posters were allotted for each
location and were intended for display at the local IG's office, the
legal assistance office, and the office of the military police. The
poster advises servicemembers to request information about the
whistleblower act from the local IG, legal assistance officer, or the
DOD hotline, but it excludes information about the process of
obtaining relief from reprisals. With so few available, the
usefulness of the posters seems limited.
WHISTLEBLOWERS CAN CHALLENGE
REPRISALS THAT OCCURRED BEFORE
THE WHISTLEBLOWER ACT
------------------------------------------------------------ Letter :5
The BCMR\2 system provides a mechanism for servicemembers to
challenge reprisals that occurred before 10 U.S.C. 1034 was enacted
in 1988. The general authority for correction of military records
contained in 10 U.S.C. 1552 authorizes a BCMR to take appropriate
action, including the correction or removal of records from the
servicemember's personnel files, if it determines that personnel
actions were taken in reprisal against the whistleblower. A BCMR can
also make recommendations to the service secretary on the
appropriateness of disciplinary actions against the individual(s) who
committed the reprisal. Although servicemembers are required to
request corrections to their records within 3 years after they
discover reprisals, the Boards are authorized to waive the time limit
if the case has merit. BCMR officials said that the Boards are
usually lenient regarding the time limit.
The BCMRs are unique within DOD in that they function as
super-appellate organizations. The civilian federal workforce has no
equivalent. Each BCMR comprises civilians appointed by the
respective service secretary. In general, upon application from the
servicemember, a BCMR can correct any military record when the
Secretary considers it necessary to correct an error or to remove an
injustice.
BCMR officials said they could not recall a case in which a
whistleblower had requested relief for an alleged reprisal in the
form of a mental health evaluation before the act was effective.
Each service BCMR annually receives several thousand petitions for
corrections and changes, which are coded and logged into the BCMRs'
system. BCMR officials were unable to identify any specific
whistleblower cases or cases involving involuntary mental health
evaluations because their systems do not include codes for
whistleblower reprisal or involuntary psychiatric referral or
evaluation. The BCMRs categorize cases by action sought--for
example, changes to discharges, pay grades, and dates of rank and the
elimination of missed promotions and low performance appraisals--and
by broad categories of reasons for which actions are sought. Yet, as
a result of a settlement in a 1977 court action, DOD and service
directives require the BCMRs to establish a single index system for
all BCMR cases except those involving characterizations of discharge.
The system is to provide a means for applicants to identify or
isolate cases that may be similar to theirs and indicate the grounds
for which the BCMR or Secretary granted or denied relief. The
Department of the Army was responsible for developing the initial
format of the index system, establishing joint facilities for
inspection, and copying opinions. The Executive Secretary of the
Army BCMR told us that no code had been established for identifying
whistleblower reprisal cases or any subcategory such as involuntary
mental health evaluations because only a few of these cases had come
to the Board's attention.
--------------------
\2 The BCMRs were established in 1946.
RECOMMENDATIONS TO THE
SECRETARY OF DEFENSE
------------------------------------------------------------ Letter :6
To ensure that all whistleblowers are afforded the type of
protections provided under 10 U.S.C. 1034 and section 546, we
recommend that the Secretary of Defense
revise DOD Directive 7050.6 to require that (1) the military service
and local IGs refer allegations of reprisal against whistleblowers to
the DOD IG if an initial screening indicates that an allegation may
have substantial merit and (2) the DOD IG use the same procedures for
referred cases of reprisal allegations as it uses for cases it
investigates or delegates for investigation and approve all resulting
reports;
direct the service secretaries to expeditiously develop and implement
regulations establishing clear and specific procedures related to
whistleblower reprisals, including mental health evaluations, as
required by DOD directives;
instruct the service secretaries and the DOD IG to develop strategies
to ensure that servicemembers are informed of their rights, the
extent of protection afforded, and the proper filing procedures
relating to reprisal allegations for whistleblowing; and
instruct the BCMRs to establish a code and/or a subcode within the
BCMRs' index system for identifying cases and decisions involving
whistleblower reprisal and involuntary mental health referrals and
evaluations, as administratively required.
AGENCY COMMENTS AND OUR
EVALUATION
------------------------------------------------------------ Letter :7
In written comments on a draft of our report, DOD concurred with our
four recommendations and said that a proposed revision to DOD
Directive 7050.6 requires the services' Inspectors General to notify
complainants who allege reprisal for whistleblowing that to receive
statutory protection, they must make their complaints to DOD's
Inspector General. The revised directive is expected to be published
by January 1995. DOD stated that all services have now issued
regulations to implement the current DOD Directive 7050.6 and that
the services will be required to issue additional implementing
instructions within 120 days following publication of the new
directive. However, DOD stated that the services have not yet issued
regulations, which were due in January 1994, to implement DOD
Directive 6490.1 concerning mental health evaluations. Considering
that the legislation underlying this directive was passed in October
1992, we believe that the delay in issuing implementing regulations
is unreasonable and that DOD should require the services to expedite
issuance of appropriate regulations.
Regarding our recommendation that a code be established within the
BCMR index system to identify whistleblower reprisal and involuntary
mental health referrals and evaluations, DOD stated that the Army
should develop a code by June 1995 and that the other services should
implement a code within 120 days of receipt of the Army modification.
DOD made other comments on our draft report, which we have
incorporated as appropriate.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :8
We interviewed officials from the DOD and service IG offices and
mental health offices and from each BCMR. We also reviewed the
legislative history of the Military Whistleblower Protection Act, DOD
and service policies and procedural guidance, pertinent legislation
and congressional hearings, and 25 investigative case files at the
office of the DOD IG. We tested each case file for completeness by
applying DOD's criteria in the Guide to Investigating Military
Reprisals. We also determined whether whistleblowers had petitioned
the BCMR if their allegations had been upheld.
The 25 whistleblower cases we reviewed were divided into two groups:
(1) the 14 cases involving involuntary mental health evaluations that
were closed between 1988 and January 1994 and (2) 11 cases involving
allegations of reprisals that had been substantiated after September
1992. Of the 25 investigations, 14 were conducted by the DOD IG, 4
were conducted by the service IG, and 7 were conducted by a local IG.
Although our review of 25 cases cannot be projected to the universe
of all whistleblower cases, we believe the 25 cases are indicative of
reprisal investigations being conducted either by or for the DOD IG.
We conducted our work from January through September 1994 in
accordance with generally accepted government auditing standards.
---------------------------------------------------------- Letter :8.1
We are sending copies of this report to the Secretaries of Defense,
the Air Force, the Army, and the Navy and interested congressional
committees. We will also provide copies to others upon request.
Please contact me at (202) 512-5140 if you or your staff have any
questions concerning this report. Major contributors to this report
were Foy D. Wicker, Galen L. Goss, MaeWanda Michael-Jackson, and
Raymond J. Wyrsch.
Mark E. Gebicke
Director, Military Operations
and Capabilities Issues
EXCERPTS FROM THE DOD IG GUIDANCE
ON REPRISAL INVESTIGATIONS
=========================================================== Appendix I
The Guide to Military Reprisal Investigations is designed to help
those assigned to investigate allegations of reprisal against
military whistleblowers. It details four questions and the steps
that investigators should take to answer each question. The
questions are:
1. Did the military member make a disclosure protected by statute?
2. Was an unfavorable personnel action taken or threatened, or was a
favorable action withheld or threatened to be withheld following the
protected disclosure?
3. Did the official(s) responsible for taking, withholding, or
threatening the personnel action know about the protected disclosure?
4. Does the evidence establish that the personnel action would have
been taken, withheld, or threatened if the protected disclosure had
not been made?
The guide acknowledges that
the first three questions are relatively straightforward and
usually quite simple to resolve. The last question is different
from most investigations because investigators must focus on the
question, `Why?' In most other investigations, investigators
stop investigating if they find that management acted within
applicable guidelines and had the authority to act as they did.
In reprisal investigations, investigators go one step further
and ask `why' management acted as they did. The fourth
question, because it incorporates the question of management's
motive and justification for the action, makes reprisal
investigations very difficult.
In answering the fourth question, the guide states that
even if the action was warranted given the military member's
performance and/or conduct and even if management had the
authority to take the actions, the action could still have been
reprisal if management would not have taken the action if the
military member had not made a protected disclosure. The burden
of proof is on management to show they would have acted as they
did with any military member given similar circumstances without
the protected disclosure. The burden is on the investigator to
ensure all the necessary evidence has been gathered to
objectively decide this question.
(See figure in printed edition.)Appendix II
COMMENTS FROM THE DEPARTMENT OF
DEFENSE
=========================================================== Appendix I
(See figure in printed edition.)
Now on p. 9.
Now on p. 9.
(See figure in printed edition.)
Now on p. 9.
Now on p. 9.