Defense Policy Bill Expands Protections for Military Whistleblowers
By: Mandy Smithberger | November 30, 2016
Military whistleblowers will soon have greatly expanded protections thanks to language included in the National Defense Authorization Act for Fiscal Year 2017 fought for by POGO and our bipartisan allies in civil society. The inclusion of these provisions is an important step towards making sure service members who expose waste, fraud, and abuse are protected from all forms of retaliation.
One of the biggest reforms included in the bill protects military whistleblowers from retaliatory investigations, which has increasingly become a tactic to intimidate and punish those who expose wrongdoing. POGO most recently saw this in the case of Lieutenant Colonel (LTC) Jason Amerine, a war hero who blew the whistle on the United States’ dysfunctional hostage recovery process to Representative Duncan Hunter (R-CA). Unable to retaliate against a committee or a Member of Congress for this embarrassing revelation, the FBI and the Army exacted revenge against Amerine by revoking his security clearance and launching a retaliatory investigation. Thanks to significant intervention from POGO, Representatives Hunter and Jackie Speier (D-CA), Senators Chuck Grassley (R-IA) and Ron Johnson (R-WI), and Katz, Marshall & Banks that investigation happily concluded last year with Amerine being allowed to retire from the Army with full honors, including the prestigious Legion of Merit medal. He would have had even stronger support in avoiding this illegal retaliation, however, if these new protections had been in place.
The bill also adds protections against the threat of unfavorable actions and withholdings of favorable actions, in addition to protections against unwarranted changes in duties and mechanisms to prevent superiors from failing to respond to retaliatory action or harassment.
Beyond expanding prohibited actions, the bill also includes a number of reforms to improve the integrity of retaliatory investigations. This includes requiring DoD IG and military service IGs to develop uniform procedures for conducting military whistleblower investigations and training staff, and the establishment of a uniform training curriculum for Correction Board members and requiring timely retraining. Additionally, in response to 2015 Government Accountability Office (GAO) report that found the average retaliatory investigation took 526 days and provided no notice to the status of the cases for over 50 percent of whistleblowers, the bill strengthens notice requirements for the untimely completion of DoD IG whistleblower reprisal investigations.
These changes should help ensure the fair and consistent application of military whistleblower protection laws.
The bill also:
- Grants IGs the authority to notify the appropriate military service Secretary of all active investigations, providing the opportunity to shield service members from retaliation during investigations;
- Restricts instances of contrary findings of prohibited personnel action by the relevant military service Secretary concerned;
- Assists service members in filing claims by detailing the specific information or documents they must attach to make a claim reviewable;
- Requires Correction Boards to make reasonable efforts to obtain medical or personnel records to help whistleblowers be made whole if a service member is unable to obtain them;
- Removes the one-year statute of limitations for reconsideration of Correction Board decisions, allowing for the consideration of new evidence;
- Requires the publishing of final Correction Board decisions, assisting service members and building case law; and
- Clarifies the right of Service members to seek judicial review of Correction Board decisions in federal court.
Finally, the bill requires the Government Accountability Office (GAO) review the integrity of the Department of Defense Inspector General’s (DoD IG) whistleblower program. This provision was inspired by whistleblowers within the DoD IG, including former assistant DoD IG John Crane, who believed the office mishandled cases and improperly retaliated against whistleblowers. This September, POGO testified before the National Security Subcommittee of the House Oversight and Government Reform committee about our additional concerns with that program, including how misconduct, a toxic culture towards whistleblowers, and improper intervention in investigations resulted in questionable outcomes for whistleblowers.
Unfortunately, the final bill does not include a provision to give military whistleblowers the same burden of proof afforded to civilians. In the military, the burden is placed on our service members to prove that they were illegally retaliated against, compared to in civilian cases where the burden is placed on the agency to prove there was no retaliation. We believe this is one contributing factor to low substantiation rates for military whistleblower reprisal cases.
Taxpayers and whistleblowers have the House and Senate Whistleblower Caucuses to thank for these overdue reforms. Co-chairs Representatives Speier (D-CA), Mike Coffman (R-CO), Rod Blum (R-IA), and Kathleen Rice (D-NY) led the fight for enhanced protections in House. In the Senate, these provisions were championed and added by Senators Barbara Boxer (D-CA) and Charles Grassley (R-IA), along with Senators Ron Wyden (D-OR), Edward Markey (D-MA), Jon Tester (D-MT), Kirsten Gillibrand (D-NY), Ron Johnson (R-WI), and Joni Ernst (R-IA).
Whistleblowers who report concerns that affect our national security must be lauded, not shunned or, worse, harmed. POGO is glad the House and Senate Armed Services committees have adopted these overdue reforms to come closer to ensuring that whistleblowers can successfully step forward to expose and stop wrongdoing, and be confident that they will not suffer retaliation as a result. We look forward to making sure they are interpreted and enforced as Congress has intended, which unfortunately has not always been the case.