Several weaknesses exist throughout the Department of Defense’s (DoD) military whistleblower reprisal protection program, according to a leaked draft Government Accountability Office (GAO) report obtained by POGO. “Without addressing these issues, whistleblowers may not be getting the full protection and resolution they deserve,” states the draft by the investigative arm of Congress.
"The report is damning, but there is cause for hope: the Pentagon office of inspector general has new leadership in charge of reprisal investigations and is revamping their program,” said Nick Schwellenbach, POGO’s director of investigations.
Among the more notable of the draft report’s numerous findings:
- Unclear guidance “has resulted in investigators closing cases prematurely.” The guidance relates to “a key investigative question” on whether an adverse personnel action would be taken against the complainant in absence of whistleblowing. A “yes” answer to this question was estimated by GAO to be the cause, at least in part, for “65 percent of the cases closed between January 1, 2009 and March 31, 2011.”
- In some reprisal cases examined in an internal Department of Defense Inspector General (DoD IG) review, there was “insufficient documentation to support the findings or evidence that necessary investigative steps were completed.” Neither the internal review team nor the GAO assessed whether the evidence backed up the DoD IG’s conclusions in each case.
- The DoD took an average of 451 days to process a sample of reprisal cases examined by the GAO, well in excess of “the statutory requirement to provide reports on completed investigations 180 days after the date the allegation was made.” Furthermore, “in addition to not completing investigations in 180 days in most cases, DoD has not complied with the statutory reporting requirement to provide notification in those instances where the investigations go beyond 180 days, although it is taking steps to do so.”
- A DoD IG internal review, according to GAO, “found that the documentation demands required” during the whistleblower intake stage “could produce an onerous burden for the complainant and was inconsistent with DODIG guidance.” In response, the DoD IG is “instituting changes” to now have investigators speak directly with complainants “based on the standard that, ‘the alleged fact, if true, would raise the inference of reprisal,’” according to the draft GAO report.
- “The percentage of total cases that are fully investigated and substantiated has generally declined between fiscal year 2006 and the first half of fiscal year 2011, reaching its lowest point in both cases in fiscal year 2009.”
The draft, entitled “WHISTLEBLOWER PROTECTION: Actions Needed to Improve DOD’s Military Whistleblower Reprisal Program,” is dated January 31. The final version of the report is slated to be released at the end of February. The draft was sent to Defense Secretary Leon Panetta for comments from the DoD.
According to the draft, historically around 80 percent of the whistleblower reprisal workload in DoD is related to military personnel, with civilian employees, contractors, and non-appropriated fund employees rounding out the rest of the DoD’s reprisal investigations caseload. The DoD IG is the central hub within the DoD’s whistleblower reprisal protection system. It investigates allegations of whistleblower reprisal and oversees the military service IGs’ reprisal investigations.
POGO first documented problems with the DoD IG’s handling of whistleblower reprisal complaints in its 2009 report, Inspectors General: Accountability is a Balancing Act.