Holding the Government Accountable

Why Military Whistleblowers Fear Reprisal: When Taking Adverse Personnel Actions, the Chain of Command Often Gets a Pass

Part I of a series on military whistleblower protections.

In the chain-of-command-oriented military, whistleblowers rarely fare well.

Each year, hundreds of uniformed members of the military send official complaints to Inspectors General (IGs) within the Department of Defense (DoD) saying that they are the targets of reprisal. Most do not have their claims of reprisal substantiated.

Even when IGs find that (1) a complainant blew the whistle through a protected channel for disclosure, (2) that the complainant was the subject of an adverse personnel action, and 3) that the manager taking that action knew of the complainant’s whistleblowing, those IGs sometimes still do not substantiate claims of whistleblower reprisal.

Take, for instance, the case of Gene McCarty. It is a whistleblower case that did not generate front-page headlines in national newspapers. But it is extraordinary in the sense that, while so much evidence seems to indicate he was retaliated against for blowing the whistle on unsafe aircraft maintenance and for cooperating in an earlier investigation into senior command corruption in his unit, his claim of reprisal was not substantiated.

A Whistleblower's Tale

McCarty is a soft-spoken Southern man who wouldn’t typically be pegged as the type to make waves. He spent 33 years in the military, 31 as a technician. He rose to the rank of a master sergeant in the Mississippi State Air National Guard’s 186th Air Refueling Wing at Key Field, near Meridian, Mississippi. He worked on KC-135 refueling jets.

However, his decades of service came to an ignoble end. He was denied re-enlistment as a guardsman in February 2006, meaning his career in the National Guard was over. Although his retirement was not until a month later, he was placed on administrative leave and told to not report back to work. Then, he was met by “two security force members who escorted him to his work center to clear his personnel items and then off of the base,” according to an Air Force IG report of investigation (the investigation by the Air Force IG was sparked by McCarty’s claim that he was retaliated against).

The IG report into McCarty’s case does not cite a reason for getting rid of him in such a brusque fashion. The day he was denied re-enlistment and escorted off base, McCarty said he was told that an anonymous call was made to security personnel stating vaguely that he had made threats. McCarty said he never threatened anyone and had no previous disciplinary problems. He said he mostly received “outstanding” and “excellent” performance ratings during his military career and no negative ratings.

A spokesman with the Mississippi National Guard would not discuss McCarty’s case due, in part, to the five years that have passed since he was denied re-enlistment. But he did say that commanders have wide prerogative to deny re-enlistment.

The official reason for the denial of McCarty’s re-enlistment was that McCarty was too senior for the position that he filled (this is known as “overgrade” or “overage”) and was blocking the advancement of junior technicians, according to the Air Force investigation report. Yet McCarty stresses there might be a reason he wound up in that position: he had been passed up for placement in master sergeant positions numerous times after he cooperated as a witness in an earlier IG investigation into senior-level corruption in the 186th. By Air National Guard regulation, he was supposed to have been placed in the first available

master sergeant position that opened up. That didn’t happen.

McCarty said his overgrade status was “used as a tool to get rid of me” after he blew the whistle to the Air Force IG on earlier occasions.

Although the Air Force IG did not find that McCarty had been retaliated against, it did find that McCarty was a whistleblower because he made lawfully protected communications as both a witness in the earlier IG investigation and because he later disclosed that he believed unqualified personnel were tampering with aircraft flight controls. That later disclosure was substantiated and “resulted in changes to maintenance practices at the unit,” according to the IG report. The earlier investigation, sparked by disclosures from whistleblower Col. Jody Bryant, uncovered vast corruption and malfeasance by several senior commanders in the 186th Air Refueling Wing.

Some critics say there is reason to believe there are problems with how military whistleblower cases are handled. Republican Senator Charles Grassley of Iowa said in a 2009 Senate floor speech, “During the course of my own investigation of several military whistleblower cases, I learned some matters which may question how effectively military whistleblower reprisal cases are handled by the DoD and DoD OIG.” The DoD IG oversees a network of military service IGs, such as the Air Force IG.

While there has been a steady uptick in the number of military reprisal cases submitted by military service IGs and the DoD IG, the low substantiation rate of those cases is cause for concern. Recently, the DoD IG restructured its whistleblower program and has implemented new policies to improve its handling of reprisal cases. But the pattern of poor investigative outcomes may point to the need for changes to the military whistleblower protection law itself.

Even When Evidence of Whistleblower Reprisal Stacks Up, It’s Often Not Enough

The Air Force IG also said that McCarty suffered from an adverse personnel action—being denied re-enlistment—and that the official who denied him re-enlistment knew about his whistleblowing.

In addition, the IG said that “anecdotal information from the [Mississippi National Guard] IG’s office seems to indicate that not reenlisting someone at this point in their career is unusual.”

Another “anomaly” in the denial of McCarty’s re-enlistment was also documented by Air Force IG investigators. The investigation report stated that paperwork had “been completed indicating that MSgt McCarty’s extension was approved.” This means that someone within the 186th Air Refueling Wing assumed McCarty’s request for re-enlistment would be granted.

“The fact that the form was signed by Lt. Col. [name redacted] seems to indicate that the MPF [Military Personnel Flight] also assumed the request would be approved,” the IG report noted. (The lieutenant colonel who assumed McCarty’s re-enlistment would be approved is not the lieutenant colonel who denied McCarty’s re-enlistment, McCarty said. McCarty added that the lieutenant colonel who denied his re-enlistment was working at the behest of a colonel, who, according to McCarty, had it in for him. A voice message was left with the colonel requesting comment. The colonel did not respond.)

Despite the stack of evidence the Air Force IG found that seems to indicate reprisal, the IG decided to dismiss McCarty’s reprisal case, as documented in a September 2006 memo by the IG. The dismissal shut down one of McCarty’s main avenues for addressing the actions against him.

Possible Deficiencies in the Investigation & Analysis

The IG cited an assessment by a military lawyer working for the Mississippi State Air National Guard which said the decision to “disapprove MSgt’s McCarty’s request for re-enlistment is legally sufficient.” The Air Force IG investigators do not state that they sought a second, perhaps more independent, legal opinion.

The IG assesses the facts it collects against the elements of the Military Whistleblower Protection Act and the regulations that interpret the law, the so-called “Acid Test.” In the analysis section of the IG report, the unredacted text in that section only describes the reasons McCarty’s command gave to the investigators. There is no unredacted text that assesses and reasonably dismisses the alternative explanation for McCarty’s job loss, that is, that he was subjected to reprisal.

It’s possible that behind the redactions this is addressed. But when asked about this and other issues, a spokesman for the Air Force IG responded that the IG had no comment on the McCarty case because the office purges its records every two years and the IG does not normally comment on individuals due to concerns with the Privacy Act.

Furthermore, in the “Motive” section, the IG investigators do not state that they checked on the 186th’s assertion that they cut McCarty loose to make room for new technicians to move up. There was time to assess this claim because the IG investigation wrapped up several months after McCarty made his complaint. The IG report only states, “retiring MSgt McCarty would theoretically open a position” (emphasis added). Learning whether the position was filled by a lower-level technician or not seems relevant. If the position had not been filled, doubt could have been cast on the 186th’s official explanation and supported McCarty’s belief that he was retaliated against in violation of the law.

Military Chain-of-Command Gets the Benefit for the Doubt Under the Current Law

A lawyer familiar with how IGs assess both civilian whistleblower-reprisal and military-reprisal complaints said the Air Force IG’s “rationale [for dismissing] seems funky.” He added that he thinks that if McCarty’s was a civilian, rather than military, reprisal case, the facts would be assessed under different evidentiary standards and the Air Force IG probably would have substantiated reprisal against McCarty. The lawyer asked not to be named because he regularly interacts with military service IGs and the DoD IG.

In late 2003, the Government Accountability Office (GAO), Congress’s investigative arm, issued a report on National Guard whistleblowers, a subset of military whistleblowers. It states that, compared to civilian whistleblowers, military whistleblowers face more obstacles in proving they were retaliated against. “In military whistleblower investigations the evidentiary standard is preponderance of evidence,” the report states, “which means that the evidence that the investigator must determine is of greater weight or more convincing than the evidence presented in opposition to it.”

But “in civilian cases, management must prove by clear and convincing evidence that it would have taken a personnel action regardless of a protected disclosure,” the GAO noted. “Clear and convincing evidence requires a degree of proof more demanding than preponderance.” Thus, this difference in the burden of proof makes it easier for military services to prove they were not retaliating against whistleblowers than it is for civilian government agencies to prove the same thing.

This difference makes it more difficult for IGs to substantiate military whistleblower complaints of reprisal. And indeed few military reprisal allegations are substantiated. “For most of the reprisal allegations we reviewed,” the 2003 GAO report stated, “guard management demonstrated to the satisfaction of an Inspector General that it would have taken the same course of action in the absence of a protected disclosure.”

If the evidentiary standards were different, this does not necessarily mean the Air Force IG would have arrived at a different conclusion in the McCarty case. But it would have been more likely that his claim of reprisal would have been substantiated.

As for McCarty, he recently told me in an email, “Anyone who is willing to stand up and tell the truth is committing suicide in today’s society.”

“The day of telling the truth is gone.”

Let’s hope that’s not the case.