Military Whistleblower Protection

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 92 and 98a

[DoD Directive 7050.6]

Military Whistleblower Protection

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule.

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SUMMARY: This final rule implements Section 843 of Public Law 102-190,

``National Defense Authorization Act for Fiscal Years 1992-1993,''

December 5, 1991. It expands military whistleblower protection to those

who make disclosures to an audit, inspection, investigation or law

enforcement organization, as well as to an Inspector General or a

Member of Congress. This rule also specifies that reprisal for

whistleblowing is punishable under the Uniform Code of Military Justice

and removes 32 CFR part 98a.

EFFECTIVE DATE: September 30, 1992.

FOR FURTHER INFORMATION CONTACT:

Ms. Marcia Campbell, (703) 604-8507.

SUPPLEMENTARY INFORMATION: Due to an administrative oversight the final

rule was not previously published.

It has been certified that this rule is not a significant

regulation action. The rule does not:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive Order.

It has been determined that this rule is not subject to the

Regulatory Flexibility Act (5 U.S.C. 601) because this rule does not

exert a significant economic impact on a substantial number of small

entities. This certification is made based on the fact that the rule

merely modifies the current regulation to ensure that policy and

procedures with regard to military whistleblower protection conform

with the requirements under 10 U.S.C. 1034. These procedures involve

reporting and investigating allegations of reprisal for protected

disclosures made by military members of the armed forces to appropriate

authorities.

It has been certified that 32 CFR parts 92 and 98a do not impose

any reporting or recordkeeping requirements under the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501-3520).

List of Subjects in 32 CFR Parts 92 and 98a

Administrative practice and procedure; Investigations; Military

personnel; Whistleblowing.

1. Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 98a

is removed.

PART 98a--[REMOVED]

2. 32 CFR Part 92 is added to read as follows:

PART 92--MILITARY WHISTLEBLOWER PROTECTION

Sec.

92.1 Purpose.

92.2 Applicability and scope.

92.3 Definitions.

92.4 Policy.

92.5 Responsibilities.

92.6 Procedures.

Authority: 10 U.S.C. 892, 1552, and 1553.

Sec. 92.1 Purpose.

(a) This part:

(1) Updates policy, responsibilities, and procedures, in accordance

with the ``National Defense Authorization Act for Fiscal Years 1992-

1993 and of 1989,'' (Pub. L. 102-190, Section 843 and Pub. L. 100-456,

Section 846).

(2) Provides protection against reprisal for members of the Armed

Forces for making or preparing a lawful communication to a Member of

the Congress, an Inspector General (IG), or any member of a DoD audit,

inspection, investigation, or law enforcement organization.

(3) Provides procedures for investigating allegations of reprisal

against members of the Armed Forces for making or preparing a protected

disclosure, as defined in Sec. 92.3(c).

(b) Updates responsibilities and authorities for such protection

and updates operating procedures in Sec. 92.6.

Sec. 92.2 Applicability and scope.

This part applies to:

(a) The Office of the Secretary of Defense, the Military

Departments (including their National Guard and Reserve components),

the Chairman of the Joint Chiefs of Staff and the Joint Staff, the

Unified and Specified Commands, the Inspector General of the Department

of Defense (IG, DoD), the Defense Agencies, and the DoD Field

Activities, including nonappropriated fund activities (hereafter

referred to collectively as ``the DoD Components''). The Term

``Military Services,'' as used herein, refers to the Army, the Navy,

the Air Force, and the Marine Corps.

(b) All DoD personnel.

Sec. 92.3 Definitions.

(a) Audit, inspection, investigation, and law enforcement

organizations. The law enforcement organizations at any command level

in any of the DoD Components, the Defense Criminal Investigative

Service, the U.S. Army Criminal Investigation Command, the Naval

Investigative Service, the Air Force Office of Special Investigations,

the U.S. Army Audit Agency, the Naval Audit Service, the Air Force

Audit Agency, and the Defense Contract Audit Agency.

(b) Board for Correction of Military Records (BCMR). Any board

empowered under 10 U.S.C. 1552 to recommend correction of military

records to the Secretary of the Military Department concerned.

(c) Corrective action. Any action deemed necessary to make the

complainant whole; changes in Agency regulations or practices;

administrative or disciplinary action against offending personnel; or

referral to the U.S. Attorney General or court-martial convening

authority of any evidence of criminal violation.

(d) Inspector General (IG). The IG, DoD, and a military or civilian

employee assigned or detailed under DoD Component regulations to serve

as an IG at any command level in one of the DoD Components.

(e) Member of the Congress. Besides a Representative or Senator,

includes any Delegate or Resident Commissioner to the Congress.

(f) Member or Member of the Armed Forces. All Regular and Reserve

component officers (commissioned and warrant) and enlisted members of

the Army, the Navy, the Air Force, the Marine Corps, and the Coast

Guard (when operating as part of the Department of the Navy) on active

duty (AD), and Reserve component officers (commissioned and warrant)

and enlisted members whether on AD, Full-Time National Guard Duty,

Inactive Duty for Training, or not in any duty or training status. That

definition includes professors and cadets of the Military Service

academies and officers and enlisted members of the National Guard.

(g) Personnel action. Any action taken on a member of the Armed

Forces that affects or has the potential to affect that military

member's current position or career. Such actions include a promotion;

a disciplinary or other corrective action; a transfer or reassignment;

a performance evaluation; a decision on pay, benefits, awards, or

training; and any other significant change in duties or

responsibilities inconsistent with the military member's rank.

(h) Protected disclosure. A lawful communication to a member of

Congress, an IG, or any member of a DoD audit, inspection,

investigation, or law enforcement organization in which a military

member makes a complaint or discloses information that he or she

reasonably believes evidences a violation of law or regulation,

mismanagement, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety.

(i) Reprisal. Taking or threatening to take an unfavorable

personnel action or withholding or threatening to withhold a favorable

personnel action against a military member for making or preparing a

protected disclosure.

Sec. 92.4 Policy.

It is DoD policy that:

(a) No person shall restrict a member of the Armed Forces from

lawfully communicating with a Member of the Congress, an IG, or a

member of a DoD audit, inspection, investigation, or law enforcement

organization.

(b) Members of the Armed Forces shall be free from reprisal for

making or preparing lawful communications to a Member of the Congress,

an IG, or a member of a DoD audit, inspection investigation, or law

enforcement organization.

(c) No employee or member of the Armed Forces may take or threaten

to take an unfavorable personnel action, or withhold or threaten to

withhold a favorable personnel action, in reprisal against any member

of the Armed Forces for making or preparing a lawful communication to a

Member of the Congress, an IG, or a member of a DoD audit, inspection,

investigation, or law enforcement organization.

(d) Any violation of paragraph (c) of this section by a person

subject to 10 U.S.C. Chapter 47 (the Uniform Code of Military Justice)

is punishable in accordance with the provisions of Sec. 92.5(c)(1). Any

violation of paragraph (c) of this section by a civilian employee is

punishable under regulations governing disciplinary or adverse actions.

(e) Allegations of reprisal against members of the Armed Forces for

making or preparing a protected disclosure shall be investigated and

resolved in accordance with this part.

Sec. 92.5 Responsibilities.

(a) The Inspector General of the Department of Defense shall:

(1) Expeditiously initiate an investigation of any allegation

submitted to the IG, DoD, by a member of the Armed Forces that a

personnel action has been taken, withheld, or threatened in reprisal

for making or preparing a protected disclosure. The IG, DoD, may

request the IG of the DoD Component to conduct the investigation. No

investigation is required when such allegation is submitted more than

60 days after a member became aware of the personnel action that is the

subject of the allegation.

(2) Initiate a separate investigation of the allegations contained

in the protected disclosure if such an investigation has not already

been started. No investigation is required if the information that a

member believes evidences wrongdoing relates to actions that took place

during combat.

(3) Complete an investigation of an allegation of reprisal for

making or preparing a protected disclosure and issue a report within 90

days of the receipt of that allegation. If a determination is made that

the report cannot be issued within 90 days of receipt of the

allegation, notify the Under Secretary of Defense for Personnel and

Readiness (USD(P&R)) and the member or the former member making an

allegation of the reasons why that report will not be submitted within

that time, and when that report will be submitted.

(4) Prepare a report of the results of an investigation. That

report shall include a thorough review of the facts and circumstances

about an allegation, the relevant documents acquired during that

investigation, and summaries of interviews conducted.

(5) Submit a copy of an investigative report to the USD(P&R) and to

a member or a former member making the allegation not later than 30

days after the completion of the investigation. A copy of that report

issued to the member may exclude any information not otherwise

available to him or her under 32 CFR part 285.

(6) At the request of a Board for Correction of Military Records

(BCMR), submit a copy of that investigative report to the BCMR.

(7) At the request of a BCMR, gather further evidence and issue a

further report to the BCMR.

(8) After the final action in any military reprisal complaint filed

with the IG, DoD, when possible, interview the person who made the

allegation to determine the views of that person on the disposition of

the matter.

(9) Review and determine the adequacy of DoD Component IG

investigations of allegations of reprisal against a member of the Armed

Forces for making or preparing a protected disclosure conducted at the

request of the IG, DoD. If such investigation is found inadequate,

initiate a follow-up investigation to correct those inadequacies or

ensure that the DoD Component corrects them.

(b) The Under Secretary of Defense for Personnel and Readiness

shall:

(1) Review and process, under the standards and procedures in

Sec. 92.6 requests from members or former members of the Armed Forces

for review of final decisions of a Secretary of a Military Department

on applications for correction of military records decided in

accordance with Sec. 92.6.

(2) Notify the IG, DoD, of decisions made by the Secretary of

Defense on requests for review of a final decision of a Secretary of a

Military Department on an application for correction of military

records submitted in accordance with Sec. 92.6(c)(1).

(3) Have access to all research, reports, investigations, audits,

reviews, documents, papers, or any other material necessary to carry

out the responsibilities assigned to the USD(P&R) by this part.

(4) If necessary, obtain for review and request the Secretaries of

the Military Departments to comment on, evidence considered by a BCMR

in cases in which the Secretary of Defense is requested to reconsider

the final decision of the Secretary concerned.

(c) The Secretaries of the Military Departments shall:

(1) Implement a regulation that provides that a violation of the

prohibition against taking, withholding, or threatening to take or

withhold a personnel action in reprisal for making or preparing a

lawful communication by a person subject to 10 U.S.C. Chapter 47 (the

Uniform Code of Military Justice) is punishable as a violation of 10

U.S.C. 892 (Article 92 of the Uniform Code of Military Justice). The

implementing regulation shall also provide that such a violation by a

DoD civilian employee is punishable under regulations governing

disciplinary or adverse action.

(2) On receipt of a report of investigation from the IG, DoD, that

concludes that a member suffered reprisal, and when implementation of

the recommendations requires action by a BCMR, advise that member that

assistance in preparing an application to the BCMR may be sought from

the legal office supporting the member's command.

(3) Ensure that the Military Department IG:

(i) On receipt of a member's allegation of reprisal for making or

preparing a protected disclosure, expeditiously investigates that

allegation. No investigation is required when such allegation is

submitted more than 60 days after a member became aware of that

personnel action that is the subject of the allegation.

(ii) At the request of the IG, DoD, investigates cases arising in

the DoD Component.

(iii) For those investigations conducted at the request of the IG,

DoD, within 90 days of the receipt of an allegation, provides the IG,

DoD, with an investigative report containing a thorough review of the

facts and the circumstances about the allegation, the relevant

documents acquired during the investigation, and summaries of

interviews conducted.

(iv) For all other investigations of alleged reprisal against a

member for making or preparing a protected disclosure, on completion of

the investigation, informs the member in writing of the results of the

investigation. This may be accomplished by providing the member a

thorough summary of the investigative report or a copy of the

investigative report, edited as necessary under 32 CFR part 285. The

information provided to the member must contain a summary of the

material evidence and an analysis of that evidence that supports the

determination of whether reprisal occurred. Regardless of the form of

communication, the information provided must be in sufficient detail to

allow the member to pursue the issue further.

(v) At the request of a BCMR, submits a copy of that investigative

report to the BCMR.

(vi) At the request of a BCMR, gathers further evidence and issues

a further report to the BCMR.

(4) Ensure that the BCMR:

(i) In accordance with 10 U.S.C. 1552, determines whether to

resolve an application for the correction of records, made by a member

or a former member of the Armed Forces who has filed a timely

complaint, alleging a personnel action was taken in reprisal for making

or preparing a lawful communication. That may include the receipt of

oral argument, examining and cross-examining witnesses, taking

depositions, and conducting an evidentiary hearing at the BCMR's

discretion. When the BCMR decides to resolve such application, it

shall:

(A) Review the report of any investigation into the member's

allegation of reprisal conducted by the IG, DoD, or the IG of a DoD

Component.

(B) As deemed necessary, request that the IG, DoD, or the IG of the

DoD Component originally investigating the allegation gathers further

evidence.

(ii) In such cases, if it elects to hold an administrative hearing,

allows the member to be represented by a judge advocate (JA) if all of

the following conditions exist:

(A) The IG investigation finds there is probable cause to believe

that a personnel action was taken, withheld, or threatened in reprisal

for a member of the Armed Forces making or preparing a protected

disclosure.

(B) The Judge Advocate General concerned determines that the case

is unusually complex or otherwise requires JA assistance to ensure

proper presentation of the legal issues in the case.

(C) The member is not represented by outside counsel chosen by that

member.

(iii) If it elects to hold an administrative hearing, ensures that

the member may examine witnesses through depositions, serve

interrogatories, and request the production of evidence, including

evidence in an IG investigatory record not included in the report

released to that member.

(iv) If it determines that a personnel action was taken in reprisal

for a member or a former member of the Armed Forces making or preparing

a lawful communication, makes a determination on the appropriateness of

administrative or disciplinary action against the individual or

indviduals who committed the action and, if deemed appropriate by the

BCMR, forwards its recommendation in the matter to be the Secretary

concerned.

(5) Within 180 days of its receipt, issue a final decision on an

application for the correction of military records from a member or a

former member of the Armed Forces alleging reprisal for making or

preparing a lawful communication. When the final decision does not

grant the full relief requested by the member, advise that member that

within 90 days he or she may request the Secretary of Defense to

reconsider the decision in accordance with the procedures described in

Sec. 92.6(c).

(6) When reprisal is found, take appropriate corrective action,

including the correction of the records of the member, in accordance

with 10 U.S.C. 1552 and 1553.

(7) Ensure that administrative or disciplinary action, if

appropriate, is taken against individuals found to have taken reprisal

against a member of the Armed Forces for making or preparing a lawful

communication.

(8) Notify the IG, DoD, and the Military Department IG of a

decision on an application for the correction of military records

received from a member or former member of the Armed Forces alleging

reprisal for making or preparing a lawful communication and of any

disciplinary action taken.

(d) The Heads of the DoD Components shall:

(1) Based on an IG investigative report, take appropriate

corrective action.

(2) Publicize the content of this Directive to ensure that military

and other DoD personnel fully understand its scope and application.

Sec. 92.6 Procedures.

(a) Any member of the Armed Forces who reasonably believes a

personnel action (including the withholding of an action) was taken or

threatened in reprisal for making or preparing a lawful communication,

may file a complaint with the DoD Hotline under 32 CFR part 98. Such a

complaint may be filed by telephone (800) 424-9098 or (202) 693-5080,

or by letter addressed to the following: Department of Defense Hotline,

400 Army Navy Drive, Arlington, Virginia 22202-2884.

(b) Nothing in this part precludes a member of the Armed Forces

from filing a complaint of reprisal for making or preparing a lawful

communication within their Military Department. If the member elects to

file the complaint within his or her Department, he or she should

contact a local IG or JA for information concerning the procedures for

filing such a complaint. Members who file complaints of reprisal for

making or preparing a lawful communication within their Military

Department should be advised that the provisions of Pub. L. 102-190,

Section 843, and Pub. L. 100-456, Section 846 only apply to reprisal

complaints filed with the IG, DoD.

(c) A member or former member of the Armed forces who has filed an

application for the correction of military records under Pub. L. 100-

456 alleging reprisal for making or preparing a protected disclosure

may request review by the Secretary of Defense of the final decision of

the Secretary of a Military Department concerned on such application.

The following procedures apply to requests for review by the Secretary

of Defense:

(1) Content of request. The request for review must be in writing

and include the member's name, address, and telephone number; copies of

the application to the BCMR and the final decision of the Secretary of

the Military Department concerned on such application; and a statement

the specific reasons why that member is not satisfied with the decision

of the Secretary concerned.

(i) Requests based on factual allegations or evidence not

previously presented to the cognizant BCMR shall not be considered.

(ii) New allegations or evidence must be submitted directly to the

BCMR for reconsideration under procedures established by the BCMR.

(2) Review by the Secretary of Defense. The Secretary of Defense

shall review the allegations submitted by a member or a former member

of the Armed Forces requesting review and other records deemed

appropriate and necessary by the Secretary of Defense for deciding, in

his or her sole discretion, whether to uphold or reverse the decision

of the Secretary concerned. The decision of the Secretary of Defense is

final.

(3) Time limits. The request for review of the final decision of

the Secretary of the Military Department concerned must be filed within

90 days of receipt of the decision by a member or former member of the

Armed Forces.

(4) Address. Requests for review by the Secretary of Defense must

be submitted to the following: Under Secretary of Defense (Personnel

and Readiness), Attention: Director, Legal Policy, Room 4C763, The

Pentagon, Washington, DC 20301-4000.

Dated: August 15, 1994.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 94-20425 Filed 8-18-94; 8:45 am]

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