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OVERSIGHT OF THE DEPARTMENT OF DEFENSE 

OFFICE OF INSPECTOR GENERAL’S MILITARY 

WHISTLEBLOWER REPRISAL INVESTIGATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 7, 2016 

Serial No. 114–76 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DeSAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

JENNIFER HEMINGWAY, Staff Director 

DAVID RAPALLO, Minority Staff Director 

DIMPLE SHAH, Subcommittee Staff Director 

MIKE HOWELL, Counsel 

WILLIAM MARX, Clerk 

SUBCOMMITTEE ON NATIONAL SECURITY

RON DESANTIS, Florida, Chairman 

JOHN L. MICA, Florida 

JOHN J. DUNCAN, JR., Tennessee 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma, Vice Chair 

WILL HURD, Texas 

STEPHEN F. LYNCH, Massachusetts, 

Ranking Member 

ROBIN KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 


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C O N T E N T S 

Page 

Hearing held on September 7, 2016 ....................................................................... 1 

WITNESSES 

The Hon. Ryan Zinke, A Representative in Congress from the State of Montana 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 7 

Mr. Glenn Fine, Principal Deputy Inspector General, U.S. Department of 

Defense 

Oral Statement ................................................................................................. 13 

Written Statement ............................................................................................ 15 

Ms. Lori Atkinson, Assistant Director, Defense Capabilities and Management, 

U.S. Government Accountability Office 

Oral Statement ................................................................................................. 26 

Written Statement ............................................................................................ 28 

Ms. Mandy Smithberger, Director, Straus Military Reform Project, Project 

on Government Oversight 

Oral Statement ................................................................................................. 49 

Written Statement ............................................................................................ 51 

ADDITIONAL INFORMATION 

1. An Article Written by William H. McRaven on April 24, 2016, a Special 

to the Tampa Tribune, Titled, ‘‘William McRaven: A Warrior’s Career Sacrificed for Politics’’- Submitted by National Security Subcommittee Chairman Ron DeSantis (FL). It can be found online here: http://www.tbo.com/ 

list/news-opinion-commentary/william-mcraven-a-warriors-career-sacrificed-for-politics-20160424/ 

2. A New York Times Op-Ed by Mark Hertsgaard Published on May 26, 

2016, titled, ‘‘Whistle-Blower, Beware’’- Submitted by Representative John 

J. Duncan, Jr. (TN). It can be found online here: http://www.nytimes.com/ 

2016/05/26/opinion/whistle-blower-beware.html 


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OVERSIGHT OF THE DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL’S 

MILITARY WHISTLEBLOWER REPRISAL INVESTIGATIONS 

Wednesday, September 7, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIONAL SECURITY, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 2:04 p.m., in Room 

2154, Rayburn House Office Building, Hon. Ron DeSantis [chairman of the subcommittee] presiding. 

Present: Representatives DeSantis, Mica, Duncan, Hice, Russell, 

Hurd, Lynch, and Lawrence. 

Mr. DESANTIS. The Subcommittee on National Security will come 

to order. Without objection, the chair is authorized to declare a recess at any time. 

Inspectors general play an important role in ensuring accountability in executive branch agencies, and whistleblowers are a key 

tool in combatting waste, fraud, and abuse within government. But 

IGs have a responsibility to conduct investigations in a fair, timely, 

and accountable manner, and whistleblower complaints cannot be 

used to shield the civilian or military member from accountability 

for substandard performance. 

The recent case of Rear Admiral Brian Losey, who was forced to 

end his stellar career as a Navy SEAL after a lengthy series of IG 

investigations and political maneuvering, raises significant questions regarding the IG process, the erosion of military command 

authority, and the treatment of an officer who gave so much for our 

country. 

Losey’s 30-year career sent him all around the globe to defend 

our Nation, had habitual deployments as a junior officer, going to 

Afghanistan shortly after the 9/11 attacks, serving multiple deployments in Iraq, commanding the famed SEAL Team 6. His final 

duty assignment was to serve as the commander of WARCOM, 

which oversees all Navy SEALs. 

Retired admiral and Navy SEAL William McRaven has written 

that Losey is, ‘‘Without a doubt, one of the finest officers of whom 

I have ever served. Over the past 15 years, no officer I know in the 

SEAL teams has given more to this country than Brian Losey.’’ 

There are very few Americans who have given as much to our 

country as Brian Losey. Yet Losey’s career was cut short following 


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a flurry of lengthy investigations conducted by the DOD IG and 

intervention by a handful of U.S. Senators. 

In 2011, Losey assumed command at the Special Operations 

Command Africa, SOCAFRICA, which was a relatively new command that was still trying to become capable of dealing with the 

growing threats emanating from the African continent. The command was based in Stuttgart, Germany, and the command featured 

a small number of staffers who had grown accustomed to the relaxed European lifestyle. 

Upon assuming command, Losey faced a situation in which the 

command was not performing at the level required. He saw a need 

to improve the command and change the prevailing culture. It 

would not necessarily be easy to do so, but it was necessary to do 

so. 

Meanwhile, an anonymous whistleblower filed a complaint 

against Losey alleging that he illicitly flew his daughter to Germany at taxpayer expense. The complaint was bogus in every respect. Not only did Losey not fly his daughter to Germany on the 

taxpayer’s dime, he was actually entitled to do so, if he so chose, 

under the existing travel regulations. Nevertheless, the existence of 

this complaint, combined with Losey’s befuddlement regarding the 

complaint, cast a shadow over Losey’s attempts to take action to reform SOCAFRICA as he was accused of retaliating against whistleblowers who filed additional complaints as Losey undertook his actions. 

The Navy conducted an IG investigation and found that Losey’s 

actions were justified on the merits and did not constitute unlawful 

reprisals. He subsequently earned a promotion of Rear Admiral 

Upper Half, 2–Star billet, and was assigned to command 

WARCOM. A review of the command climate commissioned by the 

commander of AFRICOM found that Losey was, ‘‘the right man for 

the job at this time.’’ and cited, ‘‘pockets of resistance within the 

command to the new course charted by Losey.’’ 

The DOD IG conducted its own investigation, included that some 

of Losey’s actions were reprisals for the whistleblower complaint. 

Although the IG investigation was required by law to be concluded 

in 180 days, the Losey investigation, multiple investigations 

dragged on for years, delaying his ascension to 2-star admiral for 

2 years. 

The Navy reviewed the findings of the DOD IG and determined 

that the personnel actions initiated by Losey were not reprisals but 

a legitimate exercise of command authority. A group of U.S. Senators, though, rejected the Navy’s findings and sought to engineer 

Losey’s ouster. Using legislative leverage, they effectively forced 

the hand of the Secretary of Navy who revoked Losey’s promotion, 

thereby shortcircuiting a storied career. 

This is a tragic outcome that has failed to do justice to one of 

America’s top warriors, and the whole ordeal raises questions about 

how the whistleblower process functions. For one thing, the main 

whistleblower complaints that Losey violated travel regulations by 

flying his daughter to Europe and that Losey created a, ‘‘toxic command climate’’ were both factually false. He paid for his daughter’s 

trip and actually was entitled to have the trip funded by the Navy. 

And the AFRICOM report compiled by Lieutenant General Ray 


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Palumbo found that SOC AFRICOM was,‘‘trending along the path 

of improvement under Real Admiral Losey’s leadership, vision, and 

direction.’’ Yet the procedural and investigator aftermath of these 

baseless complaints culminated in Losey losing his career. 

Second, the filing of false reports can undermine command authority. At a minimum, there is a dispute between the Navy and 

the DOD IG about Losey’s—whether Losey’s actions were legitimate actions undertaken by a military commander. A false IG complaint under these circumstances can be used as a weapon to make 

core command decisions a more risky proposition. 

Third, the years’ long investigative process left Admiral Losey in 

a perpetual state of uncertainty and was contrary to the 180-day 

mandate. Doesn’t an officer who has given so much for our country 

deserve to have matters such as these resolved within the timeframe enumerated by the law? How is the IG held accountable for 

consistently failing to abide by the 180-day requirement? 

Fourth, much was made over the course of the investigations regarding the leadership style of Brian Losey. He certainly ruffled 

feathers at SOCAFRICA, but do we want commanders who demand 

too much or too little? The mark of a good commander is whether 

the mission gets successfully executed, not whether everyone’s feelings are taken into account. 

Today, we will hear from several witnesses who have experience 

in IG investigations, including the principal deputy IG for the Department of Defense, Mr. Fine. We will also hear from my colleague, Ryan Zinke from Montana. Ryan is a retired Navy SEAL 

captain who commanded SEAL Team 6 and who has a keen understanding of the challenges facing our special operation force commanders. 

I thank you all for attending. And with that, I will now recognize 

Ranking Member Lynch for his opening statement. 

Mr. LYNCH. Thank you, Mr. Chairman. I would like to thank you 

for holding this hearing to examine the management of the military whistleblower reprisal investigations by the Department of 

Defense Inspector General, and I would also like to welcome our 

colleague, Mr. Zinke of Montana, and other distinguished witnesses 

for helping this committee with its work. 

I would caution that the full case of Mr. Losey was a—an extensive review with about 100 witnesses and I think 300,000—30,000 

pages. So a lot of trees have died, and we have very little of the 

information before this committee. So I will just acknowledge and 

appreciate Rear Admiral Losey’s performance in Bosnia, in Afghanistan, and Iraq on behalf of this country, his courageous service. I 

cannot pass judgment on the 100 witnesses and 30,000 pages of 

documentations that were put together in this investigation. 

And I do have enormous respect for those Senators, that group 

of Senators, Democrats and Republicans, Senator Ron Wyden of 

Oregon, Senator John McCain of Arizona, Senator Jack Reed from 

Rhode Island, who reviewed this and agreed to substantiate not 

the—not the allegations against, you know, improper use of resources regarding, you know, flights for family. That wasn’t the 

case here. 

The case at heart was whether whistleblowers who came forward 

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ward. That is the core of this. And we don’t have enough information before this committee to pass judgment on that, so I—I appreciate that with—look, I want to do something I don’t normally do, 

which is I want to thank the Members of the Senate for their good 

work. I don’t do—that is probably the first time I have ever done 

that, but—probably won’t happen again, but this is a tough case. 

And I will just, you know, let the facts take us where they will in 

that regard. 

We do have really an abominable case, though, with the Department of Defense Office of the Inspector General. We are in total 

agreement on that. We have got cases where there appears to be 

deliberate mishandling of documentation. You are right, Mr. Chairman, they have failed miserably in meeting the 180-day statutory 

requirement for informing servicemembers of their rights and of 

the status of their case. Instead of 180 days, the average day over 

there for review is 526 days, and in that case, you know, justice 

delayed is justice denied for a lot of these soldiers who come forward and report misconduct and engage in whistleblowing. 

So there is a lot here. There are—there is the case of personnel 

at the DOD Inspector General’s office backfilling evidence in files 

after the case is closed, which, you know, sounds like some of the 

things that we have prosecuted people for and people are doing jail 

time for. So there is a lot to look at here. 

Again, I appreciate our colleague, Mr. Zinke of Montana coming 

before and testifying before this committee. We really appreciate 

his good work. He’s a great Member of Congress and has done yeoman’s work on this case, and I would like to hear him and the 

other witnesses on this matter. 

And with that, I will yield back the balance of my time. 

Mr. DESANTIS. I thank the gentleman from Massachusetts. 

Without objection, the chair would like to introduce into the 

record an op-ed published by William McRaven April 24th, 2016, 

‘‘A Warrior’s Career Sacrificed for Politics.’’ Without objection, so 

ordered. 

Mr. DESANTIS. I will hold the record open for 5 legislative days 

for any members who would like to submit a written statement. 

We will now recognize the distinguished witness on our first 

panel. I am pleased to welcome representative at large for the 

State of Montana, Congressman Ryan Zinke. We thank you for 

your participation today. Your entire written statement will be 

made part of the record, and we welcome any oral remarks that 

you may have. 

WITNESS STATEMENTS 

TESTIMONY OF HON. RYAN ZINKE 

Mr. ZINKE. Well, thank you, Mr. Chairman. Thank you, Mr. 

Chairman, and for the record, I was a commander at SEAL Team 

6 and retired as a commander. 

Good afternoon. Ranking Member Mr. Lynch, great to see you, 

and distinguished members of the Subcommittee on National Security. I would like to thank you for the opportunity to testify before 

you today on the important issue of the Department of Defense Office of the Inspector General’s military whistleblower reprisal proVerDate Sep 11 2014 09:25 Dec 06, 2016 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 F:\22275.TXT APRIL

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gram. In my testimony today, I am going to focus my attention on 

the DOD IG investigations of my friend and colleague Rear Admiral Brian Losey during his time as commander of Special Operations Command Africa. 

Beginning with an anonymous complaint in 2011, the DOD IG 

held five separate investigations into accusations of reprisal 

against Rear Admiral Losey, which have taken more than 4 years 

to complete. 

One of these investigations involved an alleged reprisal against 

a suspected whistleblower under his command. During this investigation, the office of DOD IG seemed to display a blatant mishandling and misrepresentation of evidence, both in their preliminary and final report. Following numerous witnessed accounts of 

misconduct by the complaint, by Rear Admiral Losey, and others, 

the security officer for Special Operations Command Africa ordered 

a command directed investigation, a CDI, into the complainant’s 

actions. 

During the preliminary report, the DOD IG blatantly misrepresented the CID by stating that the investigative officers completed 

the CDI and determined that all 10 allegations were not substantiated as alleged, a statement that was eventually proven to be 

completely false. 

The CDI found that three allegations were substantiated and two 

of the allegations were partially substantiated. Additionally, the 

CDI recommended the complainant should be issued a negative referral on an officer performance report and administrative discipline. 

Acting on those recommendations, Rear Admiral Losey relieved 

the complainant of his position and reassigned him to a different 

position in a different geographical combatant command that he believed would be commensurate with his rank. Although the DOD 

IG amended their language in the final report, the DOD IG still 

chose to dismiss the complainant of any wrongdoing, dismissed the 

findings and recommendations of CDI, and claim that the administrative actions taken by Rear Admiral Losey constituted an act of 

reprisal. In reality, he was simply holding a subordinate accountable for his actions following the guidance of the report. That is 

clear. 

In the same investigation, DOD IG claims, during this investigation, Rear Admiral Losey specifically accused complainant of signing three letters of retention for Air Force officers using an 

autopen. However, the supposed accusation by Rear Admiral Losey 

is not found in any of the DOD IG interview transcripts. According 

to DOD IG, this accusation arose from an unrecorded conversation 

the DOD IG investigator had with Rear Admiral Losey outside of 

the official interview. The DOD IG should not be using unrecorded 

conversations as evidence that cannot be collaborated or confirmed. 

This is an unprecedented action and has no legal merit and is completely inappropriate behavior by the DOD IG. 

Over the course of five investigations of acts of reprisal by Rear 

Admiral Losey, the DOD IG was in blatant violation of military law 

in Uniform Code of Military Justice. Title 10 U.S. section code 1034 

clearly states the DOD IG is required to complete their investigations in 180 days or less. Unfortunately, four out of five investigaVerDate Sep 11 2014 09:25 Dec 06, 2016 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 F:\22275.TXT APRIL

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tions completed by the DOD IG were a complete disregard for the 

180 deadline. 

Additionally, per Title 10, U.S. Code, section 624, an active investigation cannot hold statutory promotions up for more than 18 

months. After being confirmed by the Senate for promotion, Rear 

Admiral Losey was promoted the rank of Rear Admiral Upper Half 

on April 1, 2013. 

On March 31, 2015, the DOD IG informed the Secretary of Navy 

that Rear Admiral Losey was no longer subject to the fifth and 

final investigation, one day shy of a promotion being held up by the 

DOD for 24 consecutive months, far longer than the 18-month 

mandate. 

These blatant acts of violations of law by the DOD IG not only 

cheapen the findings of the reports but erodes the trust the public 

and the military have in their government institutions. If the DOD 

IG lacks the ability to simply follow deadlines in investigations or 

use evidence that cannot be collaborated, then it raises the question as to what other laws and guidelines they simply choose to disregard during the course of their investigations. 

In conclusion, I would like to call upon the memo of that of 

former Secretary Chuck Hagel penned in saying: It’s central to the 

military justice that those involved in the process base their decisions on on their independent judgment. Servicemembers and the 

American people must be confident the military justice system is 

inherently fair and adheres to the fundamental principles and due 

process of law. 

With that, thank you for the opportunity to testify, and I look 

forward to your questions. 

[Prepared statement of Mr. Zinke follows:] 


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Mr. DESANTIS. Thank you. Pursuant to unanimous consent 

agreement, the Congressman will answer questions posed by myself and Ranking Member Lynch, and then will be excused for his 

business that he has to attend to. And the chair now recognizes 

himself for 5 minutes. 

Congressman Zinke, can you just provide the context to when 

Losey got to SOCAFRICA? People had talked about it being based 

in Stuttgart, Germany, and some had said that it was kind of part 

of the wine-and-cheese circuit. What does that mean and kind of 

how did he approach getting the command in order? 

Mr. ZINKE. Thank you, Mr. Chairman. And I can tell you on personal experience, I have known Brian Losey a long time. We served 

together at SEAL Team 6, and he was the red team lead. He is 

hard charging and fair. To say that Africa command is wine and 

cheese—I was stationed in Stuttgart and I believe I was gone 250 

days out of the year, primarily in Kosovo and fighting the Bosnian 

wars. It is enormous responsibility of a commander at AFRICOM. 

It is far from wine and cheese. I would say it is an MRE on a hot 

rack. 

Mr. DESANTIS. In terms of as a commander, when—and you have 

seen in the Navy, I have seen it, people abuse property, there are 

frauds that can be committed, and so obviously those things need 

to be ferreted out. When you have complaints against the commander to kind of undermine that authority, if you as a commander do need to take action but you have complaints that are 

baseless, in your judgment, but are hanging over you, will that 

chill your willingness, perhaps, to exercise your correct judgment? 

Mr. ZINKE. You know, as a commander, you are obligated to do 

the right thing. And when you see actions that are either illegal 

or are not in order, you are obligated to take action, regardless of 

consequence. But I do think, under the circumstances, when the IG 

reports, you know, don’t follow the law, there is a sense that a 

whistle holder—or whistleblower has the upper edge when a whistleblower can hide behind the law knowing that the bureaucracy, 

I think there is a sense of should I do the right thing or not? Because the consequences of doing the right thing may have a negative consequence, as what we see with Brian Losey. 

At the end of the day, I think it is about the sanctity of command, is that when you are a commander, you are in charge those 

underneath you, whether it is a civilian or military. And when you 

see something wrong, you are obligated to take a stand and take 

action. But when that’s interfered by a bureaucracy or a different 

layer which doesn’t follow the law, that erodes the entire process 

of the Uniform Code of Military Justice and the sanctity of command. 

Mr. DESANTIS. So what are your recommendations then, because 

I think that you are a supporter of having whistleblowers within 

the Department and all the agencies, be able to bring waste, fraud, 

and abuse to light? That’s good for taxpayers. It is good for the 

American people. But then you also have this other component 

about how it can intercept with command authority. So what, if 

anything, do we need to do in Congress so that this situation 

doesn’t happen again? 


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Mr. ZINKE. You know, there is absolutely a necessity to have 

whistleblowers protection. If you see something wrong in the military, whether you are a commander or a private, you have an obligation to make people aware of it and take action. I think that is 

incumbent upon the military force. 

The question really is the IG. Who is he accountable to? Is he 

accountable to Congress? Is he accountable—do we have a fair system where you have the three branches of equal and separate powers? Right now, I would argue that perhaps the system in place is 

not equal and separate powers. 

So I think holding the IG accountable certainly by Congress is 

a step in the right direction and making sure there is provision 

where acts conducted by a whistleblower or reprisal by a commander needs to be independently reviewed in a timely fashion. In 

this case, you know, 500 days, and it wasn’t just one star Admiral 

Losey lost. He lost two. And this is an admiral that I know personally that has been in the forefront of the global war on terrorism. 

You know, he has served this country with great honor in some of 

the most sophisticated and toughest missions this country has ever 

had to conduct, and yet even he is subject to, my judgment, an unfair process. 

Mr. DESANTIS. Great. I am about out of time, so I will yield, or 

I will recognize Mr. Lynch for 5 minutes. 

Mr. LYNCH. Thank you. And again, I thank the gentleman for appearing before the committee and helping us with our work. 

It surely appears that we have done a number of iterations to try 

to revamp and reform the Office of the Inspector General at DOD, 

and it is frustrating beyond our patience here. Some have suggested that we need to put sort of an independent or an outside inspector general on this case, not the Losey case but just the manner in which we’re getting information from the Department of Defense. 

I am sure that you know, our relationship up here with some of 

these agencies is somewhat adversarial. We try to get information 

from the FBI, we try to get information from the CIA, Department 

of Defense. Oftentime they play the redaction game or the waiting 

game with us, and it is exceedingly frustrating for us, representing 

the American people, when agencies act, you know, beyond the control of Congress. 

On the other hand, whistleblowers, some people call them our 

first line of defense. In my opinion, they may be our first and last, 

because a lot of these agencies just refuse to give us information. 

The subpoenas, we play that subpoena game all the time, this is 

the chief investigatory committee in Congress, they play that game 

all the time. It doesn’t matter what administration, Democrat or 

Republican, they still—it is like pulling teeth to get information 

from some of these agencies. The Defense budget is classified, so 

it makes it even more difficult in that respect. 

What is—what do you think, as a Member and someone who is 

working very hard on this issue, you know, for your friend but also 

for the wider interest of the American people, do you think it is appropriate that we might appoint—adopt legislation to appoint a 

special independent inspector general on DOD matters to get to the 

truth of this and to eliminate some of the inconsistencies and flaws 


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in the system that may have worked against the interests of Rear 

Admiral Losey in this case? 

Mr. ZINKE. Thank you. It is a great question. And I would say 

at the heart of the matter, you are absolutely right. Is the law 

itself should be blind, and when an agency can violate the law and 

hide behind a stonewalling, it frustrates us all. We just want to get 

the truth. And maybe the answer is to look at not just this IG but 

across the board. I mean, who does the IG report to? Who is he accountable to? 

I think we should look at perhaps having the IGs accountable to 

Congress, because it is only, you know, our—it is our ability to be 

an equal and separate branch of government and have some oversight of what these agencies do. I think we all share the same frustration is when we ask, we subpoena, we beg, is that they oftentimes don’t bother to give us the information we want or hide it 

or delay it, on both sides of the aisle. And I think what happens 

is the American public looks at this and say, you know, it is corrupt, we are not getting the right answers. 

There should be a system in place where truth matters. And I 

would think the IGs themselves may be looking at a dual chain of 

command where the IGs are held accountable to Congress too, because we fund it, but it is hard to fund when you don’t know where 

money is going or we sit in the—in these committees of jurisdiction 

and we can’t get the truth. 

Mr. LYNCH. I just want to, just to put a finer point on this. We 

do have some inspectors general that are extremely responsive to 

the committee. I don’t want to paint everybody with a broad brush, 

especially with what we see that has been going under the previous—we have a new interim or acting inspector general, Mr. 

Fine, over at DOD, who seems to be getting things on track. I don’t 

want to paint him with the same brush either. But in the past, we 

have had some serious difficulties there. 

But I think DOD has been the outlier in this case. They have 

been the worst in terms of, you know, the DOD operation over 

there within the Office of the Inspector General at DOD. That has 

been a real problem here. I wouldn’t want to paint all the others 

with that same broad brush. 

Mr. ZINKE. Nor would I. 

Mr. LYNCH. My time has expired. I yield back. 

Mr. DESANTIS. Well, the chair thanks the gentleman from Montana for coming here offering his testimony and answering some 

questions. I know you have other engagements and so you are excused. 

And we will do a short recess so that we can prepare the second 

panel. 

[Recess.] 

Mr. DESANTIS. The hearing will reconvene. We’ll now recognize 

the witnesses on our second panel. I’m pleased to welcome the Honorable Glenn Fine, Principal Deputy Inspector General at the U.S. 

Department of Defense; Ms. Lori Atkinson, Assistant Director of 

Defense Capabilities and Management at the U.S. Government Accountability Office; and Ms. Mandy Smithberger, Director of the 

Straus Military Reform Project at the Project on Government Oversight. 


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Welcome to you all. Pursuant to committee rules, all witnesses 

will be sworn in before they testify. So if you can please rise and 

raise your right hand. 

Do you solemnly swear that the testimony you’re about to give 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Thank you. You can be seated. 

The witnesses answered—all witnesses answered in the affirmative. 

In order to allow time for discussion, please limit your testimony 

to 5 minutes. Your entire written statement will be made part of 

the record. 

Inspector General Fine, you are recognized for 5 minutes. 

TESTIMONY OF GLENN FINE 

Mr. FINE. Chairman DeSantis, Ranking Member Lynch, and 

members of the subcommittee, thank you for inviting me to discuss 

the work of the Department of Defense Office of Inspector General 

regarding military whistleblower reprisal investigations. 

Whistleblowers are important to exposing waste, fraud, and 

abuse in government programs, and they are instrumental in saving taxpayer money and improving the efficiency of government operations. They need to be protected from reprisals for their protected disclosures. Without such protections, individuals who can 

help save taxpayer money and possibly even save lives may not report crucial information about wrongdoing and waste. 

The DOD OIG, therefore, seeks to conduct thorough, fair, and 

timely investigations into allegations of whistleblower reprisal. It is 

a challenging task, particularly given the burgeoning whistleblower 

reprisal caseload and our flat level of resources. However, we are 

committed to this critically important mission and we regularly 

consider how to improve our program. 

First, with regard to the stated purpose of this hearing and the 

two GAO reports, it is important to note, as GAO stated in its testimony, that the GAO has already closed its implemented 15 out of 

18 recommendations from both its 2012 and 2015 reports. The 

three final recommendations are in the progress of being implemented. That is significant progress. 

However, I also want to point out additional steps and progress 

we have made toward improving whistleblower reprisal investigations even beyond what GAO has recommended. We provided training in whistleblower reprisal investigations to our OIG employees, 

as well as to over 1,000 personnel from DOD component IGs and 

other Federal OIGs. 

We shoot guidance to DOD component IGs to properly notify 

complainants when military whistleblower reprisals will not be 

completed within 180 days. We deployed a defense case activity 

tracking system within the OIG for transmitting, storing, and retrieving data and documents and for managing and monitoring investigations. We developed an automated alert to help ensure compliance with the statutory notification requirement to provide 

servicemembers with accurate information regarding the status of 

their reprisal investigations within 180 days. This automated alert 

was implemented in April 2016, and we are providing such notices. 


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With regard to the three remaining GAO recommendations, the 

GAO recommended that we regularly report to Congress on the 

timeliness of military whistleblower reprisal investigations. We 

agree with the benefit of providing regular reports to Congress on 

the timeliness of such investigations, and we will do so regularly. 

We will provide the first such report on October 31st, 2016. 

We are also taking steps to implement the remaining two GAO 

recommendations, including working with the Secretary of Defense 

to standardize whistleblower reprisal investigations throughout the 

Department. 

In addition to these initiatives, I want to highlight other significant improvements we have made to our program. I have elevated 

the importance of the role of our whistleblower protection ombudsman by making it a full-time GS–15 position rather than a collateral duty. I’ve made clear that we should be expansive in our interpretation of whistleblower protection statutes. 

I have promoted the need for greater transparency in the outcomes of whistleblower reprisal and other OIG administrative investigations. In particular, at my direction, we obtained a change 

to our Privacy Act Systems of Records Notice, and we are now 

proactively releasing the results of investigations when the public’s 

right to know outweighs the individual’s privacy rights even before 

the receipt of a FOIA request. 

We have decided to handle all DOD reprisal cases stemming 

from reporting of sexual assault. We created a dedicated investigative unit to investigate these sexual assault reprisal cases. We are 

instituting an alternative dispute resolution program like that administered by OSC to pursue settlement of whistleblower cases 

separate and apart from the investigation process. This voluntary 

program can help reduce the cost and time for resolving certain 

whistleblower cases and it can allow limited investigative resources 

to be allocated to completing investigations in a timely manner. 

Finally, I want to emphasize that the critical responsibility for 

the OIG when conducting whistleblower reprisal investigations is 

to follow the facts wherever they lead. If the evidence shows that 

an individual has been reprised against, we need to conduct that 

investigation fully, fairly, timely, and substantiate the allegation. 

By the same token, if the evidence shows that the subject of the 

complaint did not reprise against the complainant, we need to find 

that and clear the subject in a timely manner. Both missions are 

important. 

I also recognize that we are likely to receive criticism from either 

or both sides in the case, and the investigation regarding Rear Admiral Losey mentioned by Representative Zinke is an example of 

where disagreements can arise. But such criticism should not deter 

us from reaching objective conclusions based on the evidence. That 

is what we strive to do, and the measures that I have described are 

designed to improve our processes to meet that goal. 

In sum, conducting whistleblower reprisal investigations is a 

critically important part of the OIG’s work, and we are committed 

to continuously improving how we handle these challenging duties. 

That concludes my statement, and I would be glad to answer any 

questions. 

[Prepared statement of Mr. Fine follows:] 


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Mr. DESANTIS. Thank you. 

Ms. Atkinson, you’re recognized for 5 minutes. 

TESTIMONY OF LORI ATKINSON 

Ms. ATKINSON. Chairman DeSantis, Ranking Member Lynch, and 

members of the subcommittee, thank you for the opportunity to be 

here today to discuss DOD Inspector General’s progress on improving its whistleblower reprisal program for military servicemembers. 

Let me briefly summarize my statements. 

Whistleblowers play an important role in safeguarding the Federal Government against waste, fraud, and abuse, and their willingness to come forward can contribute to improvements in government operations. However, whistleblowers also risk reprisal, such 

as demotion, reassignment, and firing. 

We found in our recent reports that DOD IG oversight of military 

whistleblower reprisal program faced challenges. For example, we 

found that DOD IG was not consistently or accurately recording 

key dates to track the length of investigations, did not report the 

timeliness of its investigations to Congress, had outdated guidance 

about the process, and had not established performance metrics to 

ensure the quality of its investigations. 

My statement today is primarily based on GAO’s February 2012 

and May 2015 reports that contain 18 recommendations to DOD to 

improve tracking investigation timeliness and strengthening oversight of military service’s investigations. 

For this statement, we followed up with DOD IG officials to determine what actions they had taken in response to the recommendations we made. There are three main points for my statement I would like to discuss here. 

First, DOD IG has made progress and taken action to address 

our recommendations to improve its tracking of timeliness and to 

strengthen its oversight of investigations. For example, in our recent report, we found that DOD did not meet the statutory requirement to notify servicemembers within 180 days about delays, and 

about half of the reprisal investigations closed since fiscal year 

2013. In response, DOD developed an automated tool in its case 

management system to flag investigations that were approaching 

180 days. 

Second, DOD has not taken action to regularly report to Congress on the timeliness of its investigations nor on the frequency 

and type of corrective actions taken in response to substantiated 

reprisal claims. DOD IG reports some corrective actions in its semiannual report to Congress, but that reporting does not include all 

corrective actions nor address outstanding corrective action recommendations. We continue to believe that without such information, Congress will be hindered in its ability to provide oversight 

of the corrective actions portion of the military whistleblower reprisal program. 

I would also like to note that just last week we received a letter 

from DOD IG stating that it plans to begin reporting the timeliness 

of investigations to Congress on a biannual basis. We are encouraged by this step and look forward to the first report this fall. 

Finally, we found that DOD IG and the military service IGs use 

different terms in their guidance to refer to their investigations, 


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which hindered DOD IG’s ability to consistently classify and assess 

the completeness of cases during oversight reviews. For example, 

DOD IG investigators miscoded approximately 43 percent of the 

cases that DOD IG closed in fiscal year 2013 as full investigations 

when the service reports indicate they were preliminary inquiries. 

In 2015, we recommended that the Secretary of Defense, in coordination with DOD IG, direct the military services to follow 

standardized investigation stages and issue guidance to clarify how 

the stages are defined. DOD concurred with this recommendation 

and subsequently updated its guide; however, this guide is characterized as best practices. We continue to believe that by directing 

the services to follow standardized investigation stages, DOD IG 

will be better able to ensure consistent program implementation 

and consistent treatment of servicemember complaints. 

In summary, Mr. Chairman, DOD has taken actions to implement the majority of the recommendations we made to address 

timeliness and oversight challenges we identified. Fully implementing our other recommendations would further strengthen 

DOD IG’s capacity to assess the quality of military investigations 

and enhance Congress’ visibility into timeliness as well as corrective actions taken for substantiated allegations. 

We look forward to continuing to work with the DOD IG on our 

ongoing work which is focused on reprisal investigations of DOD civilians and contractors. That concludes my remarks, and I will be 

pleased to take any questions that you and the members of the 

subcommittee may have. 

[Prepared statement of Ms. Atkinson follows:] 


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Mr. DESANTIS. Thank you. 

The chair now recognizes Ms. Smithberger for 5 minutes. 

TESTIMONY OF MANDY SMITHBERGER 

Ms. SMITHBERGER. Thank you, Chairman DeSantis and Ranking 

Member Lynch for inviting me here today. The Project on Government Oversight was founded by Pentagon whistleblowers concerned 

about overpriced and ineffective weapons. From our founding, 

we’ve been concerned about protecting military, civilian, intelligence, and contractor whistleblowers. 

The Department of Defense Inspector General is supposed to 

work with and protect whistleblowers, but a number of reports, including the GAO report issued last year, raised serious concerns. 

POGO has also heard directly from whistleblowers within DOD IG. 

To hear from whistleblowers from an IG shop is rare, and to hear 

from so many is unprecedented. An attorney who represents several of them would be happy to meet with the committee if you’d 

like more information. 

The concerns of these whistleblowers are echoed in OPM survey 

data. That data shows that a quarter of DOD IG employees said 

they felt that they could not disclose a suspected violation of law, 

rule, or regulation without fear of reprisal. Nearly half said they 

didn’t think their leadership maintains high standards of honesty 

and integrity. This is double the rate reported by DOD employees. 

DOD IG should be a model agency, and this kind of survey data 

raises serious concerns. 

In March, we sent a letter to Principal Deputy IG Glenn Fine 

raising concerns about timeliness of investigations, a toxic culture 

towards whistleblowers, and insufficient transparency for military 

reprisal investigations. Our letter raised concerns that managers in 

the IG’s administrative investigations division, who conduct reprisal investigations across the Department, had backfilled case 

files to try to mislead GAO investigators. We’ve also raised concerns about DOD IG’s rate of dismissal. DOD IG dismissed without 

full investigation 86 percent of the military whistleblower cases it 

received in the past 4 years. We were surprised that this rate was 

more than double that for the service IGs who are traditionally 

considered to be less independent. 

DOD IG substantiated only 1 percent of the cases during this period. Frankly, things are bad for most whistleblowers who come to 

DOD IG. DOD IG substantiated only 7 out of over 1,300 complaints 

received from civilians and contractors. 

Those rates are about half of what we have seen for Federal employee whistleblowers at the Office of Special Counsel. Low investigation and low substantiation rates create the appearance the Office is focused on closing rather than investigating the cases it receives. 

The high dismissal rates may be in part due to changes by DOD 

IG to reduce cycle time by automatically closing cases within 10 

days if whistleblowers do not provide additional information. While 

we agree with the committee that timeliness is important, we 

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ness and quality is extremely difficult, and we appreciate that, but 

both must be a focus of this committee’s oversight. 

We are also concerned DOD IG is not consistently talking to 

whistleblowers before dismissing cases in violation of their own 

procedures. Talking to whistleblowers not only helps that investigation but it also prevents DOD IG from unknowingly exposing 

whistleblowers to additional retaliation by referring their complaints back to the entities that they were initially reporting on. 

We are also concerned about whether whistleblower laws are 

consistently and fairly applied. A 2011 internal review found that 

DOD IG’s own investigators disagreed about the decision to dismiss 

a case 68 percent of the time. Investigators disagreed with each 

other on substantiating cases 47 percent of the time. 

The GAO’s review mentioned other problems as well with the 

case management system, specifically finding that key case documents were submitted after cases were closed for 77 percent of the 

cases closed in 2013 and that key case variables like dates and results to show whether a case was fully investigated were changed 

in 83 percent of the cases in fiscal year 2014. 

The problems may be even worse than those found by GAO since 

DOD IG managers told investigators to stand down on other work 

to backfill cases. Internal emails shared with POGO showed that 

managers instructed investigators to work on or amend older information that was the focus of the GAO review and raises concerns 

about those managers since changing these records likely has significant impact on the GAO’s findings. 

Separately and in the broader picture, POGO is most troubled by 

the role of IG General Counsel Henry Shelley. Since sending our 

letter in March, OSC has found there is a substantial likelihood of 

truth to allegations the IG improperly destroyed files in a major 

whistleblower case. These allegations are now being investigated 

by the Inspector General at the Department of Justice. This is only 

the latest of various allegations that have come to public attention, 

that Mr. Fine’s top legal advisor engages in a systemic practice of 

improperly interfering with and undermining personnel investigations. 

For example, a POGO investigation found that as—a top legal 

advisor to one of Mr. Fine’s predecessors, Mr. Shelley helped direct 

a process that permanently suppressed the findings of a team of IG 

investigators regarding top officials of the Department of Defense, 

including the Secretary of Defense. 

In my written testimony, I’ve included a list of recommendations 

that POGO believes would enhance and strengthen military whistleblower protections, which I will be happy to discuss during Q 

and A. 

Whistleblowers who report concerns that affect our national security must be lauded, not shunned or, worse, harmed, and the law 

must protect them. The perceived and real failures of the DOD IG 

to act as a check on violations of law should be of grave concern. 

Thank you. 

[Prepared statement of Ms. Smithberger follows:] 


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Mr. DESANTIS. Thank you. 

The chair now recognizes himself for 5 minutes. 

So, Mr. Fine, there’s statements made here that there’s 

so many of these cases, very few of them are substantiated. I 

think the implicit criticism perhaps from our witness here is that 

you guys just aren’t doing your job, that there are these cases that 

are just not been substantiated. And that may be the case, but I 

also look at it and say: Well, maybe those ones that are dismissed 

are being dismissed properly and that we have an awful lot of people that are filing these that can’t be substantiated. 

So how would you respond to the ratio issue that you get a lot 

of complaints, you don’t substantiate very many? 

Mr. FINE. Well, that’s a very good question, and I appreciate the 

opportunity to answer that question. First, with regard to the data. 

I don’t think the data is really accurate, because when you talk 

about 86 percent being substantiated, POGO includes in that the 

amount that we were referring to the services for them to investigate, so not 86 percent are not dismissed. A big portion of them 

are referred for investigation. 

As I said in my statement, our job is to take the facts wherever 

they lead, and if it is substantiated in our view, we should do that, 

and if it’s not, we shouldn’t. And we are going to get criticized from 

both sides. You’re too hard, you’re too soft. You’re doing a whitewash, you’re doing a witch hunt, you’re a junkyard dog, you’re a 

lapdog. You get that often in the same case. 

We can’t let that deter us. We have to look at the evidence and 

look at the facts, and we take each case on its merits and we try 

and follow them through. 

It is a challenging task. It is a challenging task to determine if 

there really was retaliation or whether it was an unfair allegation 

of reprisal. And we look for the evidence and we take it where it 

leads. That’s our job, and that’s what I try to describe how we’re 

trying to improve our processes. 

Mr. DESANTIS. And part of the reason why you may get criticism 

from both sides is because this process of substantiation, there’s a 

lot of subjectivity to that. Commander Zinke was very critical of 

the report involving Rear Admiral Losey. I have—I have read those 

reports. I have not read some of the other cases that have been 

cited here, but I will say that it struck me, looking at Losey’s case, 

that you had the Navy investigated, they said that there was, you 

know, legitimate command reasons to take some of these decisions, 

that DOD IG obviously came to different conclusions in some of the 

findings. The chief of naval operations took all that into consideration and said that while he should not have been complaining 

about the initial false report, you know, his actions were justified. 

And I guess my question is, is with the level of subjectivity, as 

I read the report for DOD on Losey, for example, I mean, there 

were certain decisions that were made that were very much just 

reading it in a light that was probably least favorable to him. 

I mean, for example—and I’m not going to name the complainants, but one of the complainants testified that Losey told him that 

he did not suspect him of being the original whistleblower. When 

Losey testified, he said he did not suspect the complainant from 

being the original whistleblower, but the complainant said: Well, 


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his body language suggested that I was—that he thought I was it, 

and the IG basically concluded that he was—that that was one of 

the reasons why he was being found. 

There’s another issue of about one of the admin officers was 

given not the highest but the second highest grade in terms of his 

evaluation, and the IG report was critical of the commander for not 

doing an improvement plan. But a lot of people I’ve talked to in Defense, they would say that that’s too high a rating to necessitate 

an improvement plan. 

So I guess the question is, is how do you ensure objectivity and 

a consistent standard when you’re determining what is substantiated and what is not? 

Mr. FINE. Well, you look at the standard and you apply that 

standard to the facts, and you don’t rely on one piece of evidence, 

whether it’s body language. We do report what people say, but 

that’s not the significant piece of evidence that would conclude us— 

that would allow us to conclude that there was retaliation. We look 

at all the evidence. We put it in the report so that people can make 

their own judgments. 

We did look at all the evidence in this case. It was a case before 

my time, but I looked at it, and it seemed a pretty strong case to 

me, including the language that Admiral Losey had repeatedly 

speculated on who made the complaint against him, focusing on the 

complainants and a few others, asking his staff to find out who 

made the complaint, and then saying he would find out why they 

did this and cut the head off the snake and end it. And that’s what 

the evidence indicated happen. Now, I don’t want to necessarily—— 

Mr. DESANTIS. Well, one witness said he said that, but he denied 

saying that, correct? 

Mr. FINE. He denied saying that, and other witnesses said that 

he asked to find out who did it and asked them to go find out who 

did it and that they actually did, and they told him let it go, as 

a commander you’re going to get complaints, just let it go, but he 

didn’t. 

And we talked about the CDI, you know, as Representative Zinke 

talked about. Well, the CDI was initiated after he had taken actions against the complainant. And if you read the CDI, it does not 

fully support those actions. 

And so we—you know, it is a hard thing, and there are professional disagreements. There is often disagreements within our own 

organization. That’s why you need to review it and carefully assess 

the evidence and reach appropriate conclusions and then to lay it 

out for people. Lay it out for people so that they can make their 

own determinations. I think that’s the most important thing. 

You may disagree, others may agree. I think it’s important that 

we fully and fairly investigate it, and I think we did in this case. 

Mr. DESANTIS. What about the—using whistleblower complaints 

in order to resist changes in a military command? I think this is 

a different issue than we would face in virtually all the other whistleblower complaints and other agencies, and I realize there’s a different standard for military complaints. But here, you had an initial complaint against Admiral Losey that was just factually false. 

Mr. FINE. Right. 


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Mr. DESANTIS. He paid out of his own pocket for his daughter. 

But even if he didn’t, he still would have been following the law. 

And then I would say the complaint about there being a toxic climate is negated by the review that had been done by 

SOCAFRICA—or by AFRICOM about what they were doing to 

change the culture. 

So what—is there a penalty if somebody is using that in an inappropriate way? And I just—I know with the numbers—and I think 

you made a good point about that, but clearly there are a significant number of complaints that are made that are just not substantiated. And while we want to root out waste, fraud, and abuse, I 

don’t want to burden a military commander of having to fend off 

some of this stuff if there’s no underlying basis to it. 

Mr. FINE. Right. And they ought to then let the investigators do 

their job without conducting their own investigation, without trying 

to find out information—— 

Mr. DESANTIS. I understand that. But what—is there any problem with somebody using this inappropriately to blow a whistle 

when there’s really no foul created? 

Mr. FINE. If one can show that they did so without good faith 

and knowing that it was intentionally false, yes, action can be 

taken. That’s a hard standard. 

Mr. DESANTIS. What action would be—that would be an administrative action? 

Mr. FINE. That would be an administrative action, yeah. 

Mr. DESANTIS. Okay. My—— 

Mr. FINE. That’s a hard standard to prove, I got to tell you that, 

and you do not want to, in my view, start chilling whistleblowers 

from bringing forward good faith allegations, even if they’re not 

true. If they—you know, if they have a good-faith basis for it, they 

ought to be able to come forward, and we ought to investigate the 

underlying thing, and their ability to do that shouldn’t be infringed 

upon. 

Now, I understand that that’s a difficulty, and we have it in our 

own organization, as was pointed out, and we seek to have full and 

fair investigations of it. You know, POGO was talking about the allegations against Mr. Shelley. Mr. Shelley adamantly disputes 

them, adamantly. Came to me, and instead of sweeping it under 

the rug, I decided, you know what, let’s get an outside investigation, an independent investigation of this, and we’ll take it wherever it leads, and we’ll address it. And I think it’s unfair to think 

that he’s guilty before it’s done, but it’s also important to investigate it, and that’s what we do, and it is difficult, but that’s— 

that’s what you have to do, and that’s what we did in this case. 

And so we will wait the outcome of the investigation and take appropriate action, whatever it finds. 

Mr. DESANTIS. My time is up. 

The chair will now recognize the ranking member, Mr. Lynch, for 

5 minutes. If he needs more, he can take more. 

Mr. LYNCH. Okay. Thank you, Mr. Chairman. 

The GAO report indicates that the rate of dismissal, though, at 

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port. They compared your—not yours, because you weren’t there, 

you weren’t in that position, but your predecessor. 

The DOD IG closed 364 senior official cases, so we’re comparing 

senior officials when they’re charged versus, you know, rank and 

file. But in those cases where senior officers had been—or senior 

officials had been complained of, in your—in your investigations, 

you only investigated 27 out of 364 and then substantiated only 5, 

but you closed 364 cases. 

In contrast, when we look at the other services and component 

IGs, they closed 250 senior official cases. They investigated all 250 

of them and substantiated 90. So it just doesn’t look right in terms 

of the mix there. 

Mr. FINE. Can I, Congressman? Sorry. 

Mr. LYNCH. We’re going to give you plenty of time. 

Mr. FINE. Sure. 

Mr. LYNCH. I’ve got a couple of other things here I want to ask 

you as well. 

The practice of backfilling, adding—you know, this the case management system, adding documents after the case has closed or in 

advance of the GAO POGO’s investigation, sort of, you know, adding evidence to the case after the verdict has already been rendered. You know, when you took over, did you tell people you can’t 

do this? Did you explain to people that—— 

Mr. FINE. Congressman Lynch, when I took over, I wanted to get 

to the bottom of this because I heard this allegation, and the reality is it was not backdating in the sense that you’re talking about 

it. What it is, we were transitioning from a paper-based system to 

an electronic system, and we had to put that information in there, 

in the electronic system. There were also additional fields. 

Mr. LYNCH. But here’s the deal. 

Mr. FINE. And we let—— 

Mr. LYNCH. Here’s the deal. 

Mr. FINE. —GAO know about it. 

Mr. LYNCH. You dismissed this case, though. 

Mr. FINE. Which case? 

Mr. LYNCH. This case right here, figuratively. 

Mr. FINE. Okay. 

Mr. LYNCH. You dismissed this case. It was not warranted. 

Mr. FINE. Right. 

Mr. LYNCH. Okay. Then you got—you got evidence after—after 

the case was closed and you put the evidence in there. 

Mr. FINE. No. We had evidence in there and then we put it into 

the database system, all of it. But we let GAO—— 

Mr. LYNCH. And you put it back—— 

Mr. FINE. We let GAO know it, and they were aware of it, and 

this is in accord with their data reliability thing. 

Mr. LYNCH. Let’s talk to GAO then. Let’s ask POGO. Explain to 

me this—I read both reports, GAO and POGO report, and it appears to me that it alleges that there’s backfilling of documents to 

files and they’re being—also being mislabeled as investigative 

when they weren’t investigative. 

So let’s take those two instances where there’s backfilling, that’s 

how it’s described here, of new documents and files after they’re 


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dismissed, and secondly, there are cases that are labeled investigative when they’re really not. 

Ms. SMITHBERGER. So for the first—first, I’ll talk about the 

mislabeling the investigations, and that gets to the heart of our 

recommendation about standardizing the guidance for the military 

services. And we think that is—was part of the problem, because 

when the DOD IG went in to oversee, there was differences in how 

the services were doing this, and therefore it led to the 43 percent 

that I pointed out being mislabeled as full investigations when they 

were actually preliminary inquiries. 

So we continue to believe that by the IG working with the Secretary of Defense to standardize the guidance so that would help— 

better help resolve that problem. 

Mr. LYNCH. You think so, Mr. Fine? 

Mr. FINE. Absolutely. 

Mr. LYNCH. Okay. 

Mr. FINE. That was the issue, that they had preliminary investigation that took forever, and our folks—— 

Mr. LYNCH. Right. 

Mr. FINE. —had to figure out where to put that in. 

Mr. LYNCH. Right. 

Mr. FINE. It definitely would help if we had standardization. 

Mr. LYNCH. So the statute says 180 days, and we’re doing 526 

or something like that? 

Mr. FINE. Well, the statute says we have to—if we don’t complete 

the investigation within 180 days, provide a notice to the complainant—— 

Mr. LYNCH. Right. 

Mr. FINE. —and responsible management officials that we 

haven’t completed it and the reasons why. It doesn’t say you have 

to complete it within a—— 

Mr. LYNCH. Right, right. But you got to let somebody know, 

right? 

Mr. FINE. Exactly, and we weren’t doing that. We are doing that 

now. 

Mr. LYNCH. Okay. 

Mr. FINE. We have an automated alert. This is based on their 

recommendation. 

Mr. LYNCH. All right. Let’s go to—let’s go to backfilling. And I 

appreciate that, Mr. Fine. I don’t intend to—I only have limited 

time. 

Mr. FINE. Sure. 

Mr. LYNCH. so I don’t mean to cut you off. 

Mr. FINE. I understand. 

Mr. LYNCH. But Ms. Smithberger or Ms. Atkinson, can we talk 

about backfilling, about documents going into the files? 

Ms. ATKINSON. Yes, sir. Based—when we reported in our 2015 

report was that DOD IG personnel uploaded key case documents 

after cases closed in 77 percent of the cases closed for fiscal year 

2013. DOD IG staff made changes to case variables after cases 

were closed in 83 percent of the cases closed in fiscal year 2013. 

And this was based on our case file review that we did when we 

took a random sample of cases and had analysts go in and review 

and look for certain documentation and so forth. 


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Mr. LYNCH. Okay. Do you think they were trying to mislead Congress or mislead GAO? 

Ms. ATKINSON. Sir, I can’t speak to the intent or—— 

Mr. LYNCH. All right. Ms. Smithberger, can you speak to that? 

Ms. SMITHBERGER. The whistleblowers that we have spoken to do 

feel like the intent was to miss the GAO. 

Mr. LYNCH. Okay. All right. I’m short on time. Let me just—let 

me just say this in closing. I don’t expect the Department of Defense to be run like a charm school. I understand the culture there, 

it’s by rank, it’s by command, there’s a—you know, there’s a 

healthy impetus to follow orders. But in cases like this where we 

may have people engaging in illegal or certainly misconduct on 

some level, you do want to have your personnel feel that they can 

report, that they can blow the whistle, and we want to protect that 

right because, as I said in my opening statement, there’s a lot of 

concealment going on. It’s very difficult to get information. So we 

rely—unfortunately, we have to rely heavily on whistleblowers to 

tell us when things are going wrong at some of these agencies. 

With that, I yield back the balance of my time. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentleman from Georgia, Mr. Hice, 

for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

Mr. Fine, let me begin with you and just try to get some clarification. 

According to the testimony that we’ve been given, the DOD IG 

automatically closes a case within 10 days. Is that not right? 

Mr. FINE. That’s not right. What the issue is, is if we are trying 

to get in touch with the complainant and the complainant drops off 

the screen and we can’t get in touch with them, we tried several 

times again and again, finally, we’ll send them a letter, a 10-day 

letter saying if you don’t get back to us, we’re going to close the 

case. We issued one 27 times in 4 years, 27 times in 4 years. And 

in those cases, 8 of them responded and we continued with the 

case, and the others never responded and we closed the case. 

It is a prudent management tool if after a long period of time the 

complainants do not contact you, do not respond to your calls, it’s 

important to close that case if they’re not willing to go forward 

and—— 

Mr. HICE. So how long do they have before they get the 10-day 

letter? 

Mr. FINE. They have at least several times where we contact 

them repeatedly and ask them to get in touch with us. And if they 

persistently do not get back to us, not in a short period of time but 

over an extended period of time, we’ll eventually send a letter saying, look, if you don’t get back to us—— 

Mr. HICE. So what kind of time do you give them before—in between letters? In other words, if someone is deployed—— 

Mr. FINE. Yes. 

Mr. HICE. —if someone’s engaged or something, what—— 

Mr. FINE. We absolutely are aware of that and give them time 

and give them—you know, I can’t give you an exact figure, but our 

investigators know to give them significant time. And it’s only 

when they repeatedly won’t get back to us. 


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Mr. HICE. So you don’t have a policy as to how—so who determines how frequently you try to reach out to them? 

Mr. FINE. We’re constantly reaching out to them, because without them, we can’t go forward. 

Mr. HICE. All right. You’re constantly, what does that mean? I’m 

trying to wrap my mind around this. My understanding was 10 

days. You’re saying 10 days is the final—— 

Mr. FINE. The final—— 

Mr. HICE. —after multiple previous attempts. 

Mr. FINE. Exactly. 

Mr. HICE. So what’s the timeframe in which these attempts are 

made? 

Mr. FINE. You know, I can’t give you a specific number. I don’t 

have a metric, but I believe it’s months. 

Mr. HICE. Okay. 

Mr. FINE. And if somebody then says, You know, I was deployed, 

we will reopen that case. You know, that’s not an issue. 

Mr. HICE. Ms. Atkinson, do you believe there’s room for improvement on this, just what appears to me a rather nebulous policy? 

Ms. ATKINSON. We do not specifically look at that, but I will tell 

you that when our—in our ongoing work looking at civilians and 

contractors, we are going to be looking at dismissals and substantiation rates, and so we may have more insight into that. 

Mr. HICE. Okay. Let’s go back, Mr. Fine, to you again, came up 

a moment ago about standardization. Where are we in that process? 

Mr. FINE. Well, we are working with the service IGs to try and 

implement standardized processes. They all—not all but some of 

them do it different ways, preliminary investigations, how they do 

things. We believe it’s appropriate to have a standardized process 

that will allow us to do things in a timely way and in a standardized way. 

Having said that, the recommendation from GAO was to have 

the Secretary of Defense issue a directive to ensure that that happens, and in some sense, that’s the only way it will happen, and 

we are willing to work with the Secretary of Defense to try and 

pursue standardization. That will take time, as you know, probably 

know. Getting a directive in the Department of Defense is not a 

easy thing. But in the interim, we are trying to voluntarily get 

them to standardize processes, and we have a working group set 

up where we meet with them and try and implement that. 

Mr. HICE. Do you think it’ll happen? 

Mr. FINE. I hope so. I think so. 

Mr. HICE. Ms. Atkinson? 

Ms. ATKINSON. We certainly hope so. We think that’s a key recommendation. And they have been working with a working group 

and they did change the guide, but the guide again is best practices, and we do believe it should be directed. 

Mr. HICE. Do you believe we can make that happen? 

Ms. ATKINSON. I hope that they can. 

Mr. HICE. Okay. All right. So you have multiple attempts to 

reach out to these servicemembers. Right now, the reprisal investigation is—it was 526 days. Now it’s been shortened. 

Mr. FINE. Right. 


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Mr. HICE. But technically, the statute says 180 days? 

Mr. FINE. Well, the statute says if you don’t complete it in 180 

days, you have to notify them that it’s not completed and about the 

delay, so it doesn’t require you to complete it within 180 days. Having said that, we do agree it should be shortened. We are seeking 

to shorten it. 

In fiscal year, I think, 2014, it was over 500 days. In fiscal year 

2015, it was 300 days for our investigations. That’s still too long. 

We’re trying to shorten it. 

Mr. HICE. So there’s no consequences except to the serviceperson 

for this going far beyond 180 days. And you can continue to prolong 

it. So long as you keep notifying, there’s no dead end to this thing. 

Mr. FINE. Well, we don’t—yes. We intend to do this as quickly 

as possible. The consequences are we’re held accountable in these 

kinds of hearings. And I would say this too. I wrote it in my written statement. You know, there is a burgeoning case load in whistleblowers. It is dramatically increased. We have not dramatically 

increased our resources. We are doing more with less. 

I believe, as an IG, we ought to be commensurate with the Department of Defense. If they grow, we ought to grow. If they’re stable, we ought to be stable. If they’re constricted, we ought to constrict. 

If you look at the last 20 years, the Department of Defense has 

grown dramatically. We haven’t. If we had—if we had simply kept 

pace with them, we would have 500 more employees. We would be 

able to do these with more resources, rather than giving our investigators lots and lots of cases to work on, and I think that would 

inure to everybody’s benefit, everybody’s benefit. 

Mr. HICE. Mr. Chairman, my time has expired. 

And I appreciate that, but it seems to me that the servicemen 

and -women are suffering the longer this goes on. They are the 

only ones suffering. Everyone else gets a pass, but they are the 

ones that take a kick in the gut. 

And I yield back. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentlewoman from Michigan for 5 

minutes. 

Mrs. LAWRENCE. Thank you. The importance of whistleblowers 

cannot be overstated. Whistleblowers in the Department of Defense 

has the unique ability to expose fraud and waste in an agency that 

spends over $500 billion of taxpayer dollars a year, and that accounts for almost a third of the programs on the GAO high risk 

list. 

More importantly, DOD whistleblowers save lives. I want to be 

very clear about that. So this discussion we’re having is very serious. Courageous whistleblowers like Mr. Coleman or Mr. Gayl, 

both Marines, come forward often at a great personal cost in order 

to protect others. 

Ms. Atkinson, GAO has remarked that the DOD’s culture does 

not encourage whistleblowing. Can you explain why? 

Ms. ATKINSON. We reported in our 2015 report a statistic from 

the OPM’s Federal Viewpoint Survey that talked about that, and 

that was the—where that information came from, and it was— 

there were two statistics, and one was for overall servicemembers, 


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and I think there was something like one in five servicemembers 

felt that they would be able to provide a complaint. And then the 

second one was a higher percentage, and that was toward—for 

members of the Office of the Inspector General. So that was not an 

initial—original GAO survey. That was in the information that we 

found in an OPM survey. 

As far as the culture and so forth, you know, we think that continued oversight of the program is important, reporting to Congress 

on timeliness and corrective actions, monitoring their—the initial 

performance metrics that they’ve established for timeliness and 

completeness, and then, of course, importantly, reporting the corrective actions, because corrective actions can demonstrate the results of the investigations and offer hope to future whistleblowers 

and deter future incidents maybe. 

Mrs. LAWRENCE. I have a short period of time. Mr. Fine, having 

worked in HR, you whistleblow when you’re not heard. You 

whistleblow when there is a culture that when something is wrong, 

you’re just supposed to do it and not have input. 

Mr. Fine, just briefly, because I’m limited, tell me why whistleblowing has become a protected and defined activity or a culture 

that we are now having this hearing. Can you address that? What 

is the culture that we now have to develop processes to protect 

whistleblowers versus a culture that embraces the ability to empower people to have input on their jobs? 

Mr. FINE. Well, I think the idea would be to have people have 

input in their jobs and feels if they can go to their management, 

their management would take appropriate action. And that is what 

managers and leaders strive to do. Is it always possible? I don’t 

think so. And I also think that some whistleblowers don’t believe 

that their management will take appropriate action or believe it’s 

appropriate to bring it to other people’s attention. 

Mrs. LAWRENCE. Is there any action to address that? 

Mr. FINE. Well, we do have whistleblower ombudsmen who educate people about their rights and responsibilities, both the rights 

of whistleblowers to be protected, the responsibilities of managers 

not to reprise against them, where they can go to provide whistleblower disclosures, what the processes are. I think it is important 

to educate people about the overall environment for whistleblowers. 

Mrs. LAWRENCE. Ms. Atkinson, which of your recommendations 

is tailored to get the high number of dismissals back in line with 

other service IGs? 

Ms. ATKINSON. To get the high number of dismissals back in 

line? I think that like—— 

Mrs. LAWRENCE. Because you said it was higher than others. So 

what is the plan? 

Ms. ATKINSON. That’s actually POGO. 

Ms. SMITHBERGER. If I may interrupt. 

Mrs. LAWRENCE. Okay. 

Ms. SMITHBERGER. Let me provide some clarification. So we’re 

not necessarily sure what the right rate of dismissal should be, but 

we think that it would be good to do another review to make sure 

that DOD IG is consistently following its own policies and the law 

to appropriately dismiss cases when they should be dismissed and 

appropriately investigating cases when they should be investigated. 


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Mrs. LAWRENCE. Mr. Fine, will you commit to us today that you 

will improve the current problems? We have—we seem to be real 

good at outlining what the problems are with this whistleblower reprisal investigation. You did state that you feel that there is an 

issue with resources. With that being heard, what is your commitment? 

Mr. FINE. Oh, yes. We are trying, and I can commit to you, we 

are seeking to improve the processes with all the measures that I 

described in my statement. I do think it is important, and we are 

continuously seeking to improve. 

Mrs. LAWRENCE. Thank you. I yield back. 

Mr. DESANTIS. The gentlewoman’s time has expired. 

Ms. Smithberger, what is the right percentage of people? I mean, 

I just—I don’t—I don’t understand—I mean, the military is a different culture. Who’s to say that it should be the same as the others? 

Ms. SMITHBERGER. It might not be. We just want to make sure 

that everyone is consistently following the same law. We get concerned when we see substantiation rates that are as low as 1 percent or less than 1 percent, because that seems to send the message that there aren’t really any credible whistleblowers that have 

been reprised against, and we see that those numbers are much 

lower than we’ve seen for OSC. 

One of the great things that DOD IG does is that they do report 

what happens to all of these cases. We wish that all of the IGs 

would do so so that we could ask the same kinds of questions, and 

we really appreciate their transparency on this. 

Mr. DESANTIS. All right. 

The chair now recognizes Mr. Duncan for 5 minutes. 

Mr. DUNCAN. Thank you very much, Mr. Chairman. I have in 

front of me an article from the New York Times, slightly over 3 

months ago, and it says: Whistleblower Beware. And it starts off 

and it says: Should it be a crime to report a crime? Many top officials in Washington seem to think so, at least in the case of Edward Snowden. 

And it goes on to say that Secretary Clinton said that Edward 

Snowden would have gotten all the protections of a whistleblower, 

but it says, Thomas Drake would disagree, so would John Crane. 

And this article tells how these cases were all intertwined. 

It says—and the Federal judge handling the case against Drake 

blasted prosecutors for putting Mr. Drake through 4 years of hell, 

said Mr. Snowden followed the Drake case closely in the news 

media and drew the obvious conclusion, going through channels 

was worse than a dead end. And then it tells how Mr. Crane was 

tied into that because it says Mr. Crane argues that the Defense 

Department broke the law in Mr. Drake’s case. And then he was— 

he was dismissed. 

So I would like to ask all three of you or any of the three of you 

who would like to comment, if you have studied that situation, how 

those cases are all tied in together and what you have to say about 

these really accusations in the—in this New York Times story that 

it’s a dangerous thing for a whistleblower to come forward. 

Mr. Fine, we’ll start with you. 


AKING-6430 with DISTILLER
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Mr. FINE. I think that I don’t want to comment on the Drake 

case or the Crane case. Some aspects of it are still open and I don’t 

want to impair that in any way. I will say that it is important that 

whistleblowers believe and that they know that if they do come forward, that they will be protected from reprisal and that there will 

be a full and fair and timely investigation done of that. That’s an 

important issue. That’s what we’re striving to do. That’s why we’re 

striving to improve our programs. 

Mr. DUNCAN. All right. Any of the—do the—do the gentleladies 

here know, are you familiar with these cases that this New York 

Times article has written about? 

Ms. ATKINSON. No, sir. We did not look at specific cases. We did 

more a case file analysis and made generalizable observations 

about the process and guidance and stuff. Related to this, I guess, 

would be that we did report in 2015 that the substantiation rate 

for both DOD and IG and the service investigations were both 

under 10 percent. And this is also related to, I think, the importance of our recommendation about the need to report corrective actions and how that can benefit whistleblowers. 

Mr. DUNCAN. All right. Ms. Smithberger? 

Ms. SMITHBERGER. The Drake case did send a message to a number of whistleblowers that if you go through the right channels, 

you’re still likely to have your career ended as a consequence, and 

so—and people refer to that case frequently. 

In particular, there are concerns about DOD IG’s role in turning 

over Drake, to recommend him being prosecuted under the Espionage Act. So DOD IG has a very difficult role in both trying to enforce laws and work with whistleblowers, but we do think that that 

created a chilling effect. 

Mr. DUNCAN. Mr. Fine, do you think, is there anything at all 

that you think the Department of Defense could or should be doing 

to make the—or to give encouragement to whistleblowers to come 

forward that they’re not doing now? 

Mr. FINE. I think along the lines of what we’ve been talking 

about, to the extent we can standardize processes, we can improve 

programs, we can provide adequate resources so that the cases will 

be done in a more timely fashion, not only talking about resources 

for us but for the service IGs. Service IGs do a significant number 

of these cases. And when they’re not adequately resourced either, 

then the cases languish, and it’s a difficult task and challenge for 

them. 

I think reflecting the importance of whistleblowers and the need 

for everybody, both the complainants as well as the subjects whose 

careers are on hold while the case is going, it is important to do 

these in a timely way and it’s important to adequately resource 

them. So I think that’s a critical factor. 

Mr. DUNCAN. All right. Mr. Chairman, I would like to submit 

this article from the New York Times called, ‘‘Whistleblower Beware,’’ to be entered into the record at this point. And I yield back. 

Mr. DESANTIS. Without objection, it shall be so ordered. 

Mr. DESANTIS. The chair now recognizes the gentleman from 

Florida, Mr. Mica, for 5 minutes. 

Mr. MICA. Thank you. Thank you, Mr. Chairman. 


AKING-6430 with DISTILLER
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Mr. Fine, how many whistleblower reprisal investigations have 

there been, like maybe 2015, 2014, 2013, do you know, each year? 

Mr. FINE. I don’t know the exact numbers. We can certainly get 

you the statistics. There are hundreds of them, hundreds of them. 

Mr. MICA. Every year? 

Mr. FINE. Yes. If you count the ones done by DOD IG as well as 

the ones we refer to the service IG. 

Mr. MICA. Is there one service that sort of stands out? Most of 

them are not—— 

Mr. FINE. They all have them. 

Mr. MICA. —equal. 

Mr. FINE. They all have them. 

Mr. MICA. And then I saw the time of resolving these cases, and 

some of that’s been discussed. They put in law that—I guess it is 

in law the 120—is that 120-day goal—— 

Mr. FINE. 180. 

Mr. MICA. —or by rule? 

Mr. FINE. It’s a law. After 180 days, you have to notify the complainant, if it’s going to be delayed beyond that, as well as the responsible management officials to provide notification. 

Mr. MICA. Okay. So you have hundreds of cases. How many staff 

do you have hearing the cases? 

Mr. FINE. Sir, we have increased the staff, if you look at the last 

several years. We have around 50 staff who do whistleblower reprisal cases. 

Mr. MICA. So 50 staff and a couple of hundred cases a year. Is 

that—— 

Mr. FINE. Not a couple hundred for us, but 50 staff to do—well, 

to do the cases themselves and then the oversight of the service IG 

cases when they come in—when they finish their investigation and 

send it to us. And then the service IGs have staff as well. 

Mr. MICA. One of the things I read about is the reprisal investigations, there’s—for each of the services, there may be different 

procedures. There’s varying procedures, and some have recommended standardization. Maybe you could tell us what is wrong 

with having these variations, and then do you make the case for 

standardization based on those? 

Mr. FINE. There are a couple of reasons I would make the case 

for standardization. One, I think, within the Department of Defense, you’ll have a single process, and it shouldn’t vary whether 

you are in the—whether in the Navy, the Army, Air Force, or civilian. 

Mr. MICA. Could that be done administratively through the Secretary? 

Mr. FINE. Yes, the Secretary. 

Mr. MICA. Okay. So the authority is there to do this, to do the 

standardization? 

Mr. FINE. Yes. And the GAO recommended that we work with 

the—— 

Mr. MICA. And you recommended. 

Maybe, Mr. Chairman, we could also send a letter after this 

hearing saying that the GAO has recommended and this hearing, 

the witnesses we had recommend, and we find there would be benVerDate Sep 11 2014 09:25 Dec 06, 2016 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 F:\22275.TXT APRIL

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efit and then some fairness to everybody. It sounds like there’s disparity in, again, these approaches. 

Is there any—also, when you have a reprisal investigation, is 

there any penalty against the accuser if the reprisal—you know, 

the person going after them, they find it is a false or there’s no 

merit to the claim? 

Mr. FINE. Not if the allegation was made in good faith, if they 

had a good-faith belief in the allegation. 

Mr. MICA. Have there been any cases where you’ve gone back 

after these people? 

Mr. FINE. I don’t know the answer to that in recent times whether we’ve gone after people, but we—I think it would, you know, 

have a pretty significant chilling effect if you started investigating 

the complainant. 

Mr. MICA. Well, again, it’s—you don’t want a chilling effect, but 

you don’t want to use that—Mr. Duncan just read a case, and I 

read this, is it L–O-S–E-Y, the Brian Losey—— 

Mr. DESANTIS. Losey. 

Mr. MICA. —Losey, yeah, case, what he went through. And basically, they ruin people’s career. And then he got ganged by Congress on top of it, helping to ruin his reputation by some people he 

was trying to do the right thing, as I understand, in his command. 

But you want to encourage whistleblowers, but again, there has 

to be some equity in the process for those who come as false accusers. I’m not sure how you craft that. Would you think that something like that would be beneficial? 

Mr. FINE. I think the law, as it exists, is appropriate, that is, as 

long as someone makes a good-faith belief, a good faith—has a 

good-faith belief that the allegations they brought forward are accurate and true. We should not hold them accountable. 

If we then determine, well, they weren’t accurate or the subject 

did not reprise against them, because I think that would have an 

unbelievable chilling effect on other people. 

Mr. MICA. Okay. And then we have Ms. Smithberger. And I saw 

in some of your testimony that your group pointed out that DOD’s 

IG dismissal rate of 84.6 percent for whistleblower reprisal cases 

is more than double of that of inspectors general for the services 

for the same type of cases. 

Can you elaborate on that? That does seem like a very high rate, 

and what—what else have you found—how—what would you attribute that to? Just—it does stand out. It’s very—— 

Ms. SMITHBERGER. Yeah. And we think that there needs to be 

more evaluation as to why that’s occurring, but our concern is that 

it creates the appearance that DOD IG has a higher—is more likely 

to dismiss a case than to investigate a case. 

Mr. MICA. And did you—has your review found that to be the 

case or is—— 

Ms. SMITHBERGER. We have. So specifically—and all of this data 

comes from DOD IG’s semiannual reports to Congress. We have 

found that service IGs dismissed during the past 4 years—or I’m 

sorry, they investigated 53 percent of the cases. DOD—that they 

received. DOD IG investigated 8.2 percent. The services substantiated 5.9 percent, and DOD IG substantiated 1 percent, and these 

are all military whistleblowers. 


AKING-6430 with DISTILLER
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Mr. MICA. And now, I think we’ve got—Mr. Fine, looks a little 

bit anxious here to respond. So could we hear your response? 

Mr. FINE. Thank you for that opportunity. This is our data, and 

I think that’s not an accurate read of that data because within the 

data, that is counting as dismissal if we refer it to the service IG. 

That’s not a dismissal. That is referring it. So the actual cases that 

we retain is a much different level. Having said that, I do think 

the data is important for the report and for—— 

Mr. MICA. You say that’s not accurate. 

Mr. FINE. We don’t substantiate this. 

Mr. MICA. Could you give us, to the committee for the record, 

staff—we ask questions after this, but that would be something I’d 

like to see in the record. 

Mr. FINE. Absolutely. 

Mr. MICA. And also for the record, I’d like to see the number of 

cases, again, maybe historically the last few years that I asked the 

question about earlier and then also the staffing rates. And finally, 

is there a budget constraint or something to pursue your work or 

are you adequately funded? 

Mr. FINE. We’re not adequately funded. Thank you for that question. We’d be happy to provide the information that you requested 

and we’re glad to do so in response. 

Mr. MICA. Finally, since my time is expired, you could put in the 

response the substantiation of the need for additional resources. 

Mr. FINE. Okay. All right. Fine. I’ll put that in as well. 

Mr. MICA. Mr. Chairman, I’m pleased to yield back. 

Mr. DESANTIS. The gentleman yields back. 

I’d like to thank all of our witnesses for taking the time to appear before us today. There is no further business. 

Without objection, the subcommittee stands adjourned. 

[Whereupon, at 3:31 p.m., the subcommittee was adjourned.] 

Æ 


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