Reprisal

1

• Reprisal
• The Whistleblower Protection Act

2
Overview

• What the law says
• Why we have the law
• The elements of reprisal
• Receiving and investigating reprisal allegations

3
References

• DoD Directive 7050.6, Military Whistleblower
  Protection, 23 Jun 00
• IGDG 7050.6, Guide to Investigating Reprisal and
  Improper Referrals for Mental Health Evaluations,
  6 Feb 96 (Green Book)
• Assistance and Investigations Manual,04 Mar 04

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Whistleblower Protection

• Section 1034 of Title 10, U.S.C. (FY95 National
  Defense Authorization Act) -- The Law
• DoD Directive 7050.6, Military Whistleblower
  Protection
• DoD implementation of the law

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Why the Law?

• To insure grievance channels remain open
• The IGMC takes ownership of this one
• Abuses impact mission accomplishment

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Reprisal Defined

• Taking (or threatening to take) an unfavorable
  personnel action or withholding (or threatening
  to withhold) a favorable personnel action for
  making (or preparing to make) a protected
  communication

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Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage of the forgoing elements

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Protected Communication

• Any lawful communication made by a member of
  the Armed Forces to a Member of Congress, IG, or
  Inspector regardless of the subject of the
  disclosure

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Protected Communication

• . . . THE COMMUNICATION IS MADE TO
• Appropriate Audience - right folks
• There are two categories of right folks
• Applicable Subject Matter - right stuff
• Each category of right folks has its own unique
  set of requirements, the right stuff

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Protected Communication

• First instance
• The right folks or appropriate audience
• Members of Congress, IG or Inspector
• The right stuff or applicable subject matter
• Any Subject

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Protected Communication

• Second instance
• The right folks or appropriate audience
• The right stuff or applicable subject matter

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Protected Communication

• Any lawful communication in which a military
  member communicates information the member
  reasonably believes evidences
• A violation of law or regulation (including laws
  or regulation prohibiting sexual harassment or
  unlawful discrimination)
• Gross mismanagement or gross waste of funds
• An abuse of authority, or a substantial and
  specific danger to public health or safety

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Protected Communication

• Second instance
• The right folks or appropriate audience
• Members of DoD audit, inspection or investigative
  agency
• Designated person or organization
• The right stuff or applicable subject matter
• Violation of law or regulation
• Gross mismanagement or waste of funds
• An abuse of authority or a substantial and
  specific danger to public health or safety

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Is it a Protected Communication?
Is it lawful?
A communication is made
Not Protected
NO
YES
Was it made to congress or IG?
Protected
YES
NO
Was it made to a CoC or designated recipient?
Not Protected
NO
YES
Does member reasonably believe it alleges
violation of law / regulation / etc, gross
mismanagement / waste of funds, abuse of
authority or substantial danger to public health
or safety, etc?
Not Protected
NO
YES
Protected
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Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

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Unfavorable Personnel Action

• Any action taken on a member of the Armed
  Forces that affects or has a potential to affect
  (e.g., a threat) that military members current
  position or career

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Unfavorable Personnel Action

• Such actions include (but are not limited to)
• Demotion
• Disciplinary or other corrective action
• Transfer or reassignment
• Performance evaluation
• Significant change in duties or responsibilities
  inconsistent with the military members rank
• Decisions impacting pay, benefits, awards, or
  training
• Referral for mental health evaluation (MHE)

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Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

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Responsible Management Official (RMO) Knowledge

• RMO is anyone who
• Influenced or recommended the action be taken
• Made the decision to take the action
• Approved, reviewed, or endorsed the action
• Knowledge includes
• Personally receiving the protected communication
• Hearing rumors about the protected communication
• Suspicion or belief that the complainant may have
  made a protected communication

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Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

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Linkage

• Apparent linkage between the protected
  communication and the adverse action
• Would the adverse action have occurred if there
  was no protected communication?

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Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

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Receiving Reprisal Complaints

• IG must advise the member of the provisions of 10
  U.S.C. 1034 and their rights under the statute
• IG can extend whistleblower protection to any
  military member
• IG must comply with notification requirements IAW
  Assistance and Investigations Manual, 04 Mar 04

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Receiving Reprisal Complaints

• IG must ask member if complaint was also filed
  with DoD/IG
• IAW 10 U.S.C. 1034, the IG must account for
  reprisal and the original set of issues (if those
  issues were not previously addressed)
• Untimely allegations may be recommended for
  dismissal

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Receiving Reprisal Complaints

• Receiving IG must conduct a prompt reprisal
  complaint analysis
• Determine the potential veracity and relevancy of
  the complaint
• First stage filter
• DoDIG will do complaint analysis for allegations
  filed with their office

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Reprisal Complaint Analysis

• DoDIG must approve complaint analysis if no
  investigation is warranted
• Forward reprisal complaint analysis through IG
  channels
• If approved, IG will notify complainant
• If investigation is warranted, it must be
  conducted IAW Assistance and Investigations
  Manual, 04 Mar 04

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Investigating Reprisal

• DoDIG is the final approval authority
• 10 U.S.C. 1034 requires progress report to DoDIG
  and interim response to complainant if
  investigation is not completed in 180 days (IGMC
  action item)
• IGDG 7050.6 a great resource for Investigating
  Officers (IO)

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Closing Thoughts

• Reprisal has a chilling effect on all grievance
  channels
• Its prohibited by law
• Key is thorough complaint analysis
• If investigation is warranted, conduct a thorough
  investigation IAW Assistance and Investigations
  Manual, 04 Mar 04
• Focus on apparent linkage of adverse action to
  protected disclosure

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Laws Dealing with Reprisal

• Military Personnel
• 10 USC 1034
• Inspector General
• Civilian Employees
• 5 USC 2302
• Equal Employment Opportunity Commission or Office
  of Special Counsel
• NAF Civilian Employees
• 10 USC 1587
• DOD IG
• Defense Contract Employee
• 10 USC 2409
• DoD IG adjudicated by Defense Logistics Agency
  (DLA)

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Summary

• What the law says
• Why we have the law
• The elements of reprisal
• Receiving and investigating reprisal allegations