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10 U.S. Code 1034

 Military whistleblower protection is not working even though Congress passed a law to protect whistleblowers!


 In 1988, Congress enacted the Military Whistleblower Protection Act (10 U.S.C. 1034) to prohibit anyone from retaliating or taking reprisals against service members, who disclose information concerning government fraud, waste, and abuse. Examples of retaliatory actions or reprisals against these whistleblowers are transfers, low work performance evaluations, and involuntary mental health examinations. 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 service members who make a protected disclosure by communicating with or preparing a communication to certain designated officials, for example, a Member of Congress or the DOD 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 service member’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 is required to submit the results of the investigation to the Secretary of Defense, the service secretary, and the affected service member.

The law also allows for the affected service member to appeal to the Board of Corrections for Military Records (BCMR) for a correction to the individual’s service record. The law permits the service member 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 USC 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 ’93 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 service members involuntary mental health evaluations, and also set forth the rights of service members referred for such evaluations. It also strengthened protection for whistleblowers by prohibiting the use of mental health evaluations as reprisals against whistleblowers that make protected disclosures under 10 USC 1034. In 1995 Congress amended 10 USC 1034 in several respects. The amendment protected 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 form section 843 into 10 USC 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 was the allegations of sexual harassment and unlawful discrimination are now covered by 10 USC 1034.

Different Procedures Used to Handle Whistleblower Complaints;

Unfortunate for the whistleblower his/her complaints are handled differently. Under current procedures, whistleblowers receive statutory protection only if they report their allegations directly to the DOD IG. For some reason there is a two track system for investigating and processing allegations of reprisals against whistleblowers – one submitted to the DOD IG and one for allegations to the respective service and local IGs. The DOD IG may delegate responsibility for conducting the investigation to service IGs, who in turn often delegate this responsibility to “installation-level” IGs. Even though delegating this investigation authority, the DOD IG should be maintaining an oversight role to ensure the act’s statutory protection is accorded to the whistleblower. It’s important to note that service members who report alleged reprisals for blowing the whistle directly to the DOD IG have several benefits that service members who report to a service or local IG do not have.

a.     The complaint is handled through a formal statutory process

b.     The service member automatically receives a redacted copy of the investigation report.

c.     Service rarely hold commanders accountable – there is a much better chance for accountability with the DOD

d.     After applying to the Board of Corrections, the service member may appeal the decision to the Secretary of Defense

e.     The service secretary has 180 days to hand down a decision on a service members application for relief

f.       Higher visibility because the case is being sent to the service secretary

g.      Greater assurance the DOD IG’s guide for investigating military reprisals will be followed

To complicate matters, the whistleblower procedures described in the CFR provision (until late Aug ’94) 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 USC 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.

Why isn’t the law working?

Under Pentagon procedures established to implement the Whistleblower Protection Act, only whistleblowers that make allegations of reprisals directly to the Defense Department’s Inspector General (DOD IG) are protected under the law. Service members who make allegations of reprisals to service or local IG’s are not afforded such protection. Service members are unaware of their rights and uninformed that the law affords them protection only if they file their allegations of reprisal with the DOD IG. Only those whistleblowers that make allegations of reprisals directly to DOD’s Inspector General (IG) fall within the statutory protection of 10 U.S.C. 1034. The dissemination of information about the provisions of the whistleblower act and the proper procedures for service members to follow when filing allegations of reprisal is a responsibility that has largely been left to the service and local IG’s. Service regulations concerning whistleblower protection, which were required by March 1993, were issued years later, and not by all of the services.

If you were charitable, you would say that the wheels of government move very slowly. Or, you might say, there is a tad bit of “foot dragging” going on by the military to implement the law and comply with the spirit and intent of the law. Others might say the military did not agree with the law so they have thumbed their noses at Congress and refused to implement the law by maliciously failing to inform military members of its existence and, their rights under the law and the proper procedures to file allegations to the DOD IG. Washington cocktail party orthodoxy indicates that many military leaders view congressional representatives as just passing through town. They can get by with not implementing the will of Congress if they just ignore lawmakers and even the laws they have passed. With a little bit of stonewalling or “circling of the wagons”, the military can avoid the will of Congress fairly easily. The proof can be found in the non-implementation of the Military Whistleblower Act. When we say, “non-implementation” we mean the overt and covert acts of the military to defy the spirit and intent of the law. The military whistleblower protection law isn’t working because no one wants it to. If Congress wanted it to they would hold military accountable. Holy hell would break loose in Congress and every media outlet in the country would carry the issue, as it’s lead story. If the military wanted it to work, every American military unit in the world have posters indicating what to do as they did with the fraud, waste and abuse hotline posters of the early 1980’s. That program failed because no one wanted it work either. Millions of phone calls were made to the toll free fraud, waste and abuse hotline with not one individual charged or convicted. USCOVA believes the whole program was just a ruse to find the whistleblower and not to correct the abuses.

According to a GAO report in February of 1995 and the more recent testimony of Lt. Darlene Simmons, military whistleblowers are still not being protected. Unlike Dr. Jeffrey Wigand who blew the whistle on the tobacco industry, a military whistleblower is prevented from “leaving town”. To do so is a violation of military law. They call it AWOL (absent without leave) or desertion. A military whistleblower cannot file suit to protect either himself or his family. Believe it! Very few protections exist for the military whistleblower and the protections that do exist, they don’t know about. Civilian whistleblowers are confronted with harassment and intimidation and all the things that occur to a whistleblower but not to the extreme that must be endured by the military whistleblower. The intent is to make the American people believe that military whistleblowers are being protected when, in fact, they are not. So far, the strategy has worked.