Whistleblower Investigations U.S. Army Inspector General School 1 The Military Whistleblower Protection Act Title 10, United States Code (USC), Section

Whistleblower Investigations

U.S. Army Inspector General School 1

The Military Whistleblower Protection Act

Title 10, United States Code (USC),Section 1034


Whistleblower ReprisalCurrent Situation…

• Congressional Interest

• Special Interest Groups

• Senior Leader Decisions

• Remedy Wrongs

Our task … get it right,

for the right reasons

• Army Board for Correction of Military Records

(ABCMR)

• Army Discharge Review Board (ADRB)

• Army Grade Determination Review Board (AGDRB)

ARBA Boards

• Media interest


http://www.pogo.org/

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http://www.army.mil/leaders/csa/

http://www.army.mil/leaders/sa/

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Whistleblower ReprisalTrends and Issues

• Volume and timeliness are significant challenges– 412 Cases open– Based on current trends, the average case will be open well

over 1 year; well over the 180-day requirement in 10 USC 1034; DAIG closed 285 cases in FY14, on pace for 330+ for FY15

• Field IGs will continue to conduct investigations for the foreseeable future

• All cases require full investigation as taught in TIGS• High degree of documentation necessary• Poor quality investigations and reports significantly

delay review and approval– 2/3 cases require additional work in WIOB to complete




Reprisal or Retaliation?

• Army Directive 2014-20 defines retaliation as ostracism and acts of cruelty, oppression, or maltreatment.

• Army Directive 2015-16 directs the Sexual Assault Review Board (SARB) to report whether victims, witnesses, bystanders, SARC, victim advocates, first responders, or other parties experienced retaliation or reprisal. Do not disclose IG information in support of this requirement.

• AR 600-20, Chapters 5, 8, and Appendix H, discuss specific standards pertaining to retaliation.

• IGs must know the difference between Reprisal (statutory) and Retaliation (regulatory).

• Encourage directing authorities to investigate retaliation cases. IGs must investigate reprisal cases.



Enabling Learning Objectives

1. Describe the four categories of Whistleblower complainants.

2. Describe the agency authorized to receive Whistleblower allegations.

3. Identify what agency is responsible for investigating reprisal allegations for each complainant category.

4. Describe the four questions (or factors) that establish the framework for an investigation into an allegation of Whistleblower Reprisal (WBR).

ELOs



Common WBR Terms

• PC: Protected Communication• PA: Personnel Action• RMOK: Responsible Management Official Knowledge• IBA: Independent Basis for Action• WBR: Whistleblower Reprisal

• WIOB: Whistleblower Investigations Oversight Branch, DAIG Assistance Division (SAIG-AC)



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 NDAA: 10USC1034, DoDD7050.06, 10USC2409• AR 20-1, paragraphs 1-13 and 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/



What is Whistleblower Reprisal (WBR)?

The taking of (or threatening to take) an

Unfavorable Personnel Action (UPA), or

the withholding (or threatening to

withhold) a Favorable Personnel Action,

because the member made, or was

thought to have made, a Protected

Communication (PC).



What does Whistleblower Reprisal mean to the IG?

• Only IGs can investigate allegations of military WBR. Component IGs must investigate allegations of Whistleblower Reprisal and complete an ROI as the Office of Inquiry (OOI) within 180 days. (Only DoD IG can decline a WBR investigation).

• Soldiers have the right to raise matters of fraud, waste, and abuse or other improprieties within the Army without fear of reprisal.

• 10 USC 1034, Armed Forces shall be free to make a Protected Communication (PC).

• Section 202 , The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No-FEAR Act), requires Federal employees be notified and trained on their rights and remedies under anti-discrimination and anti-retaliation laws.



A Case Study


• DoDD 7050.06, dated 23 July 2007

• No person shall “restrict” a member of the Armed Forces from making lawful communications to a Member of Congress (or their staff) or an IG

• Defines “chain of command,” to include the supervisory and rating chain

• DoD IG shall investigate, or oversee DoD Component IG investigations

of allegations

• No investigation “required” when a member submits a complaint more than 1 YEAR* after becoming aware of the personnel action (* Change made by FY14 NDAA)

• Send to DAIG's WIOB: (1) Advisement Memo; (2) WBR questionnaire; (3) Privacy Act release; (4) DA1559


Military Whistleblower Protection



WBR Considerations

• Complaint must be made within 1 YEAR of the date the member became aware of the adverse personnel action; IGs will NOT accept, or pursue, anonymous or third party complaints of WBR

• Steps 1 & 2 (IGAP): Open the case & assess for issues and allegations; separate Whistleblower allegations from all other issues and allegations

• Forward only the reprisal complaint(s) (allegation(s)) and supporting documentation (four required documents) to Whistleblower Investigations Oversight Branch (WIOB) within five business days via e-mail to [email protected]



Four Required Documents

Provide WIOB within five business days

1. Advisement Memorandum

2. Whistleblower Reprisal Questionnaire

3. Privacy Act Information Release

4. DA 1559– IG Action Request (IGAR)

…and the timeline and IG Analysis of the complaint with recommendation to decline or investigate

The A&I Guide, Part Two, Section 9-1 (II-9-1)



Categories of WBR Complainants

• Military Member

• Non-Appropriated Fund (NAF) Civilian

• Appropriated Fund Civilian

• Contractor Employee

AAFES / MWR Employees

Active Duty (AC), Reserve (RC), and National Guard (NG) (Federal interest)

General Schedule (GS) / Wage Grade (WG)

KBR, CACI, BAH, etc.

The A&I Guide, Part Two, Section 9-2 (II-9-29)

ELO 1



Agency Authorized to Receive WBR Allegations

• Military Member




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

ELO 2



Agency Responsible for Investigating WBR

(1 of 4)

Military WBR Complaints:

• Service IGs will investigate military complaints (allegations) of Whistleblower Reprisal

• DoD IG has oversight of Title 10 reprisal investigations

• Military members have the right to appeal directly to the Secretary of Defense

The A&I Guide, Part Two, Section 9-2; 10 USC 1034; DoDD 7050.06

ELO 3


U.S. Army Inspector General School 17The A&I Guide, Part Two, Section 9-2; 10 USC 1587; DoDD 1401.03


(2 of 4)Non-Appropriated Funds (NAF) WBR complaints

• DoD Inspector General (IG)

• www.dodig.mil

• U.S. Department of DefenseOffice of the Inspector General4800 Mark Center DriveAlexandria, VA 22350-1500 Tel: (703) 604-8324

ELO 3



Appropriated Fund Civilian WBR Complaints

• Office of Special Counsel (OSC)

• www.osc.gov

• U.S. Office of Special Counsel1730 M Street, N.W., Suite 201Washington, D.C. 20036-4505Tel: (800) 572-2249 or (202) 653-9125

The A&I Guide, Part Two, Section 9-2; 5 USC 2302(b)(8)


(3 of 4)

ELO 3


U.S. Army Inspector General School 19The A&I Guide, Part Two, Section 9-2; 10 USC 2409


(4 of 4)DoD Contractor WBR complaints

• DoD Inspector General (IG)

• www.dodig.mil

• U.S. Department of DefenseOffice of the Inspector General4800 Mark Center DriveAlexandria, VA 22350-1500 Tel: (703) 604-8324

ELO 3



The Elements of Proof

• Protected Communication?(PC)

• Personnel Action?(PA)

• Knowledge?(RMO Knowledge)

• Causation?(Independent Basis for Action)

Yes

Yes

Yes

NoThe A&I Guide, Part Two, Section 9-1

ELO 4



Protected Communication

• What is a protected communication (PC)?

• What was the PC?

• To whom was the PC made?

• When was the PC made?

T I M E L I N E

Start WBR chronology early and

update often!



Protected Communication:First Category

Any lawful (truthful) communication to:

• Members of Congress(to include Congressional staff members)

• Inspectors General

• Regardless of subject !



Protected Communication:Second Category

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)



Protected Communication:Second Category (cont’d)

Protected only if the communications concern:• 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

Reasonably believed to be true by the complainant!DoDD 1401.03, Encl 1: 'Definitions'



Question One:

Did the complainant make or prepare a communication protected by statute?

Was the complainant perceived as having made or prepared a PC?

The A&I Guide, Part Two, Section 9-1

PERCEPTION = REALITY

Give the benefit of the doubt to complainant

(No actual communication is necessary)

ELO 4



Protected Communication (PC)

(1 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



• 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.”


(2 of 3)



If there is any doubt or uncertaintywhether the Complainant made a Protected Communication (PC) --give the complainant the benefit of the doubt and proceed.


(3 of 3)



Question Two:

Was an unfavorable Personnel Action

taken or threatened against the complainant,

or was a favorable Personnel Action

withheld or threatened to be withheld from

the complainant following the Protected

Communication (PC)?


ELO 4



Any action that adversely affects,

or has the potential to adversely affect,

a service member’s position or career.

FY14 NDAA adds: Making or threatening to

make a significant change in the duties or

responsibilities of a member of the armed forces

not commensurate with the member's grade.

Personnel Actions



• Performance evaluations• Transfer or changes to duties or responsibilities• Reenlistment / Separation proceedings• Decisions concerning pay or benefits

• Awards, promotions, or training• Disciplinary or other corrective actions

• Referrals for Mental Health Evaluation (MHE)• Limited access to: weapons/classified/flying etc.

Personnel Actions(Taken, Withheld, or Threatened)



If there is any doubt or uncertaintywhether the Complainant received an Unfavorable Personnel Action --give the complainant the benefit of the doubt and proceed.

Personnel Actions



Unfavorable Personnel Action?

• 1LT Newkirk claims OER had all top-level ratings, but the narrative did not have the “hard-charging” words for him 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.

Maybe ... why?

Probably Not ... why?



Summary

• Definitions:• Whistleblower Reprisal (WBR)• Protected Communication (PC)

(1st Category / 2nd Category)

• Personnel Action (PA)• Independent Basis for Action (IBA)

• Categories of Complainants• Agencies that can receive WBR complaints• Agencies that have oversight of WBR cases



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.



• 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.

Personnel Actions



Declination

• DoD IG declines a Whistleblower Reprisal case when:– “No” to Questions One and / or Two

• No Protected Communication• No unfavorable Personnel Action , or

– Untimely

• Declination– Only DoD IG can decline a case– Command / local IG still must report all reprisal allegations

within five working days to WIOB, a branch within SAIG-AC, even if it doesn't meet the rules above




Question Three:‘Timing is Everything'

Did the Responsible Management Official(s) (RMO)

who took, withheld, or threatened the unfavorable

personnel action know about the Protected

Communication (PC), or perceive the

complainant as having made or prepared

a PC before they took the unfavorable Personnel

Action?


T I M E L I N E

ELO 4



Who is a Responsible Management Official?

Anyone who: • Influenced or recommended

the action be taken

• Made the decision

to take the action

• Signed applicable correspondence regarding the action

• Approved, reviewed, or endorsed the action



Responsible Management Official Knowledge

(1 of 7)

Two-step process:1. Identify the Responsible Management Officials

(RMO)– All officials for each Personnel Action

2. Determine if Responsible Management Officials (RMO) knew of the Protected Communication (PC)– When did RMOs know?– What did RMOs know?– How did RMOs find out?– Did anyone else know the RMOs knew?



Timing:

Determine exact date that each RMO:– 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


(2 of 7)



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 Protected Communication (PC)

occurred (regardless of subject or content) is sufficient


(3 of 7)



• 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?”


(4 of 7)



• 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?”


(5 of 7)



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)?


(6 of 7)



If there is any doubt or uncertaintywhether the Responsible ManagementOfficials (RMOs) knew about the Protected Communication (PC) -- give the complainant the benefit of the doubt and proceed.


(7 of 7)



Question Four:

Does a preponderance of credible evidence

establish that the same

Personnel Action(s) (PA) would have

been taken, withheld, or threatened

absent the Protected Communication (PC)?


ELO 4



• For each PA Consider:Reason for actionTiming between PC and PAMotive to repriseDisparate treatment of complainant

as compared to others

(also known as the 'four variables')

Would the averageRMO (Army Officer,

NCO or DAC)consider the action

reasonable?

The four elements of proof for Question 4!


Causation(1 of 3)



Causation(2 of 3)

• Documentary evidence– Copy of the Personnel Action– Service regulations and policies (PA discretionary?)– Other relevant documents

• Testimonial evidence– Complainant– Responsible management officials (RMO)

• Anyone who decided, directed, recommended, or influenced the unfavorable personnel action

– Other key witnesses



• What was the effect of the Protected Communication

(PC) on the Responsible Management Official (RMO)?

• What factors did the Responsible Management Official

(RMO) consider in taking the action?

• Why did the action occur when it did?

• Was the action consistent with previous actions?

• Who can corroborate the Responsible Management

Official’s (RMO's) testimony?

Causation(3 of 3)



ComplainantInterview Guidelines

• Interview complainant first

• Verify relevance of documents submitted

• Ask what the complainant believes were the RMO's motives to reprise

• Identify witnesses (PC, Knowledge, PA, Causation)

• Character witnesses - Relevant to the reprisal?




Responsible Management Official Interview Guidelines

• Interview all RMOs– Anyone who decided, directed, recommended,

or influenced the personnel action– Anyone who signed a document

• Establish what events preceded the action• Did the RMO know of the PC and when did

the RMO know it?

T I M E L I N EPA

RMO Knowledge of

PC? RMO Knowledge of

PC?

PC



RMO Status

• Interview all RMOs as SUSPECTS

A violation of 10 USC 1034 is a violation of a lawful general order under Article 92, UCMJ

• Military case law has established that an individual must be read his / her Article 31 rights (DA 3881)

if a person asking the questions is trying to elicit an incriminating response.


• Per AR 20-1 (7-4b(3)(d)), IG records (ROI) can be used as the basis for adverse action against 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.

IG Records for Adverse Action




Analyze Evidence and Conclusions

• Evaluate documents and testimony

– What is credible, what is not, and why

• Resolve any conflicts

• Update chronology

Standard: Preponderance of credible evidence

T I M E L I N E


The Elements of Proof(Memory Jogger: WBR Math)


+PC + PA + RMOK

– IBA

= WBR

+ IBA

/



Submission to DoD IG

Chapter 9, Part Two, The A&I Guide:• Advisement• Declination• ROI (example)• Legal Review (in writing) of completed ROI• Your Directing Authority

• Concur or Non-concur

• Final Approval = DoD IG



Let’s Review(Timing)

Time

Personnel Action

Knowledgeof PC


Time

Knowledgeof PC


Personnel Action

Is it reprisal?

Time


Knowledgeof PC

PersonnelAction

does not meetthe elements

of proof

does not meetthe elements

of proof

maybe?why?



Categories of Complainants

• Military Member




AAFES / MWR Employees

Active Duty, Reserve, and National Guard (Federal interest)

General Schedule (GS)/ Wage Grade (WG)

KBR, CACI, BAH, etc.The A&I Guide, Part Two, Section 9-1 and 9-2

ELO 1



Military and NAF Civilian Reprisal Complaints

• Any Service IG may receive the complaint– Military WBR complaints investigated by Inspector General– Refer NAF employees to DoD IG– Refer Appropriated Funds employees to Office of Special

Counsel (OSC)– Refer Contractor employees to DoD IG

• DoD IG has oversight of Title 10 reprisal investigations

• A military member has the right to appeal directly to the Secretary of Defense

The A&I Guide, Part Two, Section 9-2; 10 USC 1034; 10 USC 1587; 10 USC 2409; and 5 USC 2302 (b)(8)

ELO 2 & 3


Whistleblower Reprisal Tool Kit

Receiving the IGAR• Have the complainant fill out a

questionnaire and justification if untimely• Go over the questionnaire with the

complainant˗ If you don’t understand it, we won’t

either˗ Make sure the details are specific (i.e.

exact dates, actions, names, etc.- squeeze the complainant for details )

˗ Identify the PCs˗ Identify the PAs˗ Lay out the timeline˗ Identify the documents the complainant

must provide and a suspense date ˗ Make sure the complainant

understands we are going to contact the unit for official copies of documents etc.

• Complainant comes in with a reprisal complaint

• Do an informal interview, explain what reprisal is and what reprisal is not˗ We deal with statutory reprisal as

defined in 10 USC 10334 and DODD 7050.06

˗ We will not stop any ongoing actions˗ It is not a way out of trouble you got

yourself in ˗ We are fair and impartial, not

complainant advocates˗ Determine if it is statutory reprisal or

something else (such as an AR 600-20 complaint)

Beware of documents out of context, get the complete document, be sure you understand

exactly what it says.



Whistleblower ReprisalTool KitInterviews

• Complainant interviews are non-negotiable for all WBR cases; ˗ Rule 1: Do it the way they teach you in

TIGS˗ Rule 2: Doing it right the first time, will be

more efficient in the long run˗ Rule 3: For exceptions, see rule number 1

• Witnesses and RMOs• Transcribed testimony is always best• Detailed summaries back up by recordings

may be acceptable; but they better be detailed, no 1 page MFRs

• The value of the interview is in the follow-up questions that elicit detail; the pre-printed question format is normally worthless (usually the hallmark of a lazy IG)

• Detailed background research and preparation; know everything you can know prior to the interview

• Have a plan, based on the information available, anticipate what will resolve the complaint and how you will get that information from the interviewee

• Develop your interrogatory; define success

• Organize supporting evidence for rapid access

• Rehearse• The more prepared you are, the better you

can react to what comes up in the interview

Interviews are interactive—listen to answers and follow-up



Whistleblower ReprisalTool Kit

Reports

• Establish RMO knowledge (or not) or explain how you resolved and why

• Interview transcripts – Prioritize complainants and RMO (Suspects)

• Your inquiry must determine if the action was or was not appropriate given the complainant’s performance, behavior, and conduct or was taken in reprisal for a PC

• Your report should leave nothing dangling

- Answer questions before they are asked• You are writing for someone who is not you --

- To understand what you found 30 years from now- May be Army senior leaders, DODIG, an MOC, interest group/media, or some other unanticipated agency

• Don’t assume, make unsupported suppositions, or leaps of logic; explain everything and peer review your work- Do not write a mystery novel, say where you are going and go there in a logical manner

Follow the format in the A&I Guide Section II, Chapter 9 Include in your ROII:

• For each PC – Need each complaint / PC with disposition (whatever resolved the complaint, complete)

- IG complaint, IGAR, investigative product, result

- EO complaint, EO inquiry

- Command inquiry – AR 15-6 (or other report)

- Regulatory guidance for the action

• For each PA – All supporting documentation

- Art 15 with supporting evidence / documents

- Separation with all supporting documents

- Award with DA 638 and unit log (if appropriate)

- OER / NCOER with drafts, -1, counseling, APFT (HT/WT), and so forth

- Regulatory guidance for the action




Questions?