United States General Accounting Office

GAO Report to Congressional Requesters

February 1995 WHISTLEBLOWER

PROTECTION

Continuing

Impediments to

Protection of Military

Members

GAO/NSIAD-95-23

GAO United States

General Accounting Office

Washington, D.C. 20548

National Security and

International Affairs Division

B-247485 

February 2, 1995

The Honorable Strom Thurmond

Chairman

The Honorable Sam Nunn

Ranking Minority Member

Committee on Armed Services

United States Senate

You requested that we review the protection afforded military

whistleblowers from reprisal, including reprisal in the form of involuntary

mental health evaluations. Specifically, our objectives were to determine

whether

• the system established under the 1988 Military Whistleblower Protection

Act (10 U.S.C. 1034) and section 546 of the National Defense Authorization

Act for Fiscal Year 1993 (P.L. 102-484) provides an effective means for the

investigation and disposition of alleged whistleblower reprisals and

• servicemembers have a mechanism to challenge alleged reprisals that

occurred before enactment of the whistleblower act.

Results in Brief Under the process and procedures the Department of Defense (DOD)

established to implement the whistleblower act, whistleblowers are

treated differently because only those who make allegations of reprisals

directly to DOD’s Inspector General (IG) fall within the statutory protection

of 10 U.S.C. 1034. Servicemembers who make allegations of reprisal to

service or local IGs are not afforded protection under 10 U.S.C. 1034 and

therefore do not receive certain protections that would otherwise be

available to them if they made their allegations to the DOD IG.

At the time of our review, the DOD IG had completed few cases involving

servicemembers’ allegations that mental health evaluations had been used

as reprisals for whistleblowing. Further, regulations due in January 1994 to

implement section 546 had not been issued by the military services.

Without such regulations, DOD has no assurance that the services are

consistently protecting whistleblowers from reprisal.

The dissemination of information about the provisions of the

whistleblower act and the proper procedures for servicemembers to

follow when filing allegations of reprisal is a responsibility that has largely

been left to the service and local IGs. Service regulations concerning

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B-247485 

whistleblower protection, which were required by March 1993, have only

recently been issued, and not by all of the services. Additionally, the

military services have not used alternative methods to inform

whistleblowers about proper procedures for filing reprisal complaints.

Accordingly, servicemembers may have been unaware of their rights and

uninformed that the protections offered by 10 U.S.C. 1034 are available

only if they file their allegations of reprisal with the DOD IG.

Servicemembers who believe they were the subject of reprisal actions for

whistleblowing activities before the 1988 act may request relief from their

service’s Board for the Correction of Military Records (BCMR). Although

legislation requires that requests be made within 3 years after a

servicemember discovers an error or injustice, the Board may waive the

time limit if a case is determined to have merit.

Background In 1988, Congress enacted the Military Whistleblower Protection Act 

(10 U.S.C. 1034) to prohibit anyone from retaliating or taking reprisals

against servicemembers who disclose information concerning government

fraud, waste, and abuse to designated persons. Examples of retaliatory

actions or reprisals against these whistleblowers are transfers, low

performance appraisals, and referrals for involuntary mental health

evaluations. The law also provides for after-the-fact protection; that is, it

provides an avenue to correct a reprisal against a whistleblower.

Specifically, the law seeks to assist those military servicemembers who

• make a protected disclosure by communicating with or preparing a

communication to certain designated officials, for example, a Member of

Congress, the DOD IG, or an IG;

• disclose information that they reasonably believe constitutes a violation of

law or regulation, mismanagement, a gross waste of funds, or a danger to

public health or safety; and

• have an unfavorable personnel action taken or threatened to be taken, or

have a favorable action withheld or threatened to be withheld, as a result

of the disclosure.

The act requires the DOD IG to expeditiously investigate a whistleblower’s

allegations of reprisal that it receives within 60 days of the

servicemember’s initial awareness of the adverse action. If an investigation

cannot be completed within 90 days of the date of receipt of the allegation,

the IG is to notify the Secretary of Defense and the member concerning the

reason and the expected date of the report. The DOD IG submits the results

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B-247485 

of an investigation to the Secretary of Defense, the service secretary, and

the servicemember.

The law also allows the BCMR to review the results of the investigation in

considering a servicemember’s request for correction of records.

Furthermore, the law permits the servicemember to appeal to the

Secretary of Defense the final disposition of the service secretary’s

decision concerning the correction of records.

In 1989, DOD issued Directive 7050.6, “Military Whistleblower Protection,”

to implement the whistleblower act, which was incorporated into the Code

of Federal Regulations (CFR) in 32 CFR, part 98a, in 1990. The directive set

forth various responsibilities and requirements for handling whistleblower

complaints, including both DOD IG and service IG investigation and

reporting procedures. The directive allowed the DOD IG to delegate the

responsibility to conduct the investigation to a service IG, in which case

the provisions of 10 U.S.C. 1034 applied. Not all military whistleblowers’

allegations of reprisal, however, are processed under 

10 U.S.C. 1034; some may be processed under service IGs’ general

authority.

In December 1991, section 843 of the National Defense Authorization Act

for Fiscal Years 1992 and 1993 required the Secretary of Defense to

prescribe regulations prohibiting members of the armed forces from

retaliating against whistleblowers who make disclosures to specified

individuals. In September 1992, DOD reissued Directive 7050.6, which,

among other things, required the services to develop the regulations called

for in section 843.

In October 1992, Congress enacted the National Defense Authorization Act

for Fiscal Year 1993, section 546, which established procedures for

referring servicemembers for inpatient and outpatient mental health

evaluations, and also set forth the rights of servicemembers referred by

their commands for such evaluations. It also strengthened protection for

whistleblowers by prohibiting the use of mental health evaluations as

reprisals against whistleblowers who make protected disclosures under 

10 U.S.C. 1034. Congress recently enacted the National Defense

Authorization Act for Fiscal Year 1995 (P.L. 103-337), which amended 

10 U.S.C. 1034 in several respects. The legislation has amended

section 1034 to protect communications not only to a Member of Congress

or an Inspector General but also to a member of a DOD audit, inspection,

investigation, or law enforcement organization, and certain other

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B-247485 

designated persons. It essentially has placed the protected disclosure

coverage from section 843 into 10 U.S.C. 1034. The legislation also requires

the DOD IG to ensure that the investigating service IG is outside the

immediate chain of command of both the whistleblower and the individual

alleged to have taken the retaliatory action. Another important change is

that allegations of sexual harassment and unlawful discrimination are now

covered by 10 U.S.C. 1034.

Different Procedures

Used to Handle

Whistleblower

Complaints

Under DOD’s current procedures, whistleblowers receive 10 U.S.C. 1034

statutory protection pertaining to reprisals only if they report their

allegations to the DOD IG. In effect, there is a two-track system for

investigating and processing allegations of reprisal against

whistleblowers—one for allegations submitted to the DOD IG and one for

allegations made to service and local IGs.1 DOD’s current directive

implementing the law provides that only allegations of reprisals made

directly to the DOD IG are entitled to the law’s protections. The DOD IG may

delegate responsibility for conducting investigations to service IGs, who in

turn often delegate this responsibility to installation-level IGs. When the

DOD IG delegates an investigation, it maintains an oversight role to ensure

that the criteria contained in its Guide to Investigating Military Reprisals

are followed and that the act’s statutory protection is accorded to the

whistleblower. The investigating guide details the procedures for

conducting investigations of alleged reprisal and documenting the

evidence (see app. I for additional details). We reviewed 25 files of

investigations conducted by the DOD IG or under its oversight and found

that the investigators had generally followed the criteria in the DOD IG

guidance. Of the 25 cases, reprisals were substantiated in 11 cases; not

substantiated in 11 cases; and partially substantiated in 3 cases (see Scope

and Methodology section for discussion of cases selected). We also

determined that a military member applied to a BCMR in six cases. Of those

six, the BCMR recommended action in two (one was in process during our

review). We also researched a number of reprisal allegations that came to

our attention during this assignment. However, we were unable to

determine if those servicemembers had filed applications for correcting

their records due to whistleblower reprisals.

Between enactment of 10 U.S.C. 1034 in September 1988 and

February 1994, 233 cases of alleged reprisals against whistleblowers were

1

In a previous report entitled Whistleblower Protection: Impediments to the Protection of Military

Members (GAO/NSIAD-92-125, May 27, 1992), we suggested that Congress consider amending the

whistleblower act to extend its protection to those whistleblowers who make their complaint of

reprisal to a service IG. This legislative change, however, was not made.

Page 4 GAO/NSIAD-95-23 Whistleblower Protection
B-247485 

filed with the DOD IG. Of those, 159 were investigated and closed, and 

74 were open or under investigation. Of the total cases, DOD had received

and completed investigations of 14 cases alleging the use of mental health

evaluations as reprisals and was investigating an additional 17 cases. Of

the 14 completed investigations, 2 of the allegations were substantiated,

and 1 was partially substantiated.

Service and local IGs are authorized to investigate alleged reprisals for

whistleblowing independent of and without the DOD IG’s knowledge.

Accordingly, DOD IG officials informed us that they were unaware of the

number of investigations of reprisal that service or local IGs had initiated

since September 1988.

According to DOD IG officials, servicemembers who report alleged reprisal

for whistleblowing activities to the DOD IG have the following benefits that

servicemembers who report to a service or local IG do not:

• The reprisal complaint is handled through a formal statutory process.

• Upon completion of the DOD IG investigation or approval by the DOD IG of an

investigation done by a service or local IG, the servicemember

automatically receives a redacted copy of the investigation report, copies

of documents considered in the report, and redacted summaries of

testimonies taken during the investigation.

• Although some service IGs can recommend that appropriate disciplinary

action be taken by the military service department against anyone who

takes action of reprisal, this type of recommendation is more likely to be

made by the DOD IG.

• When the DOD IG investigation report recommends corrective action to

relieve harm done to the servicemember by the reprisal, the

servicemember, after applying to the BCMR for relief, can appeal the

disposition of the service secretary’s decision to the Secretary of Defense.

In addition, the service secretary must reach a decision on the

servicemember’s application for relief within 180 days.

We identified several other benefits or advantages of reporting to the DOD

IG, which are

• higher visibility of the case within the service department because the DOD

IG investigation report is sent to the service secretary,

• greater assurance that the DOD IG’s Guide to Investigating Military

Reprisals will be followed during the reprisal investigation, and

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B-247485 

• advice from the service secretary that assistance in preparing an

application to the BCMR may be sought from the legal office supporting the

applicant’s command in those cases in which the DOD IG investigation

(1) substantiates an allegation of reprisal and (2) makes recommendations

that require BCMR action.

To complicate matters, the whistleblower procedures described in the CFR

provision (until late August 1994) required service and local IGs to notify

the DOD IG when they initiated whistleblowers’ reprisal investigations. This

provision provided the DOD IG with the opportunity to determine whether

whistleblower allegations made to local or service IGs should be handled

under 10 U.S.C. 1034-type procedures. The original DOD directive, issued in

1989, also required that the DOD IG be notified, but the 1992 revision

eliminated the requirement.

DOD IG officials said they recently revised the CFR to make it consistent

with the 1992 DOD Directive 7050.6, which does not require notification.

According to the DOD IG official in charge of reprisal investigations, the

1992 directive did not include the notification requirement because it

could not be enforced. The DOD IG, however, had not previously changed

the CFR provision due to an administrative oversight.

Servicemembers who are not aware of the distinctions between the levels

of protection may not have their allegations handled to their best

advantage. In one case, for example, a servicemember made his reprisal

allegations to the local IG. The local IG’s investigation did not substantiate

the allegations, and the local IG did not notify the DOD IG of the case and

investigation. Due to his dissatisfaction with the local IG investigation, this

servicemember later filed the same allegations of reprisal with the DOD IG.

The subsequent DOD IG investigation substantiated his allegations and

recommended that the service take corrective actions.

Servicemembers May

Not Have Been

Adequately Informed

of Their Rights

Until recently, servicemembers may not have been aware of their rights

under 10 U.S.C. 1034 because the military services had not issued

implementing regulations. The Air Force and the Army only recently

issued required regulations to implement DOD Directive 7050.6 on

whistleblower protection, and none of the services have issued the

specific regulations to implement DOD Directive 6490.1 dealing with mental

health evaluations. As a result, servicemembers also may not be aware of

their rights under section 546.

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B-247485 

Section 843 of the National Defense Authorization Act for Fiscal Years

1992 and 1993 required DOD to issue regulations prohibiting reprisals

against whistleblowers by June 1992. DOD Directive 7050.6 (Sept.

1992) cited section 843 in requiring the services to implement regulations

establishing procedures and policies for safeguarding whistleblowers by

March 1993. In March 1994, the Army issued an updated regulation on

Inspector General activities and procedures. It details prohibited activities,

including reprisals against whistleblowers, and specifies that such actions

are subject to the Uniform Code of Military Justice. In May 1994, the Air

Force issued its revised Inspector General complaints instruction, which

includes steps for protecting whistleblowers and makes reprisals

punishable under the Uniform Code of Military Justice. Although the Navy

has not issued an instruction covering whistleblower activities, in

August 1994, the Navy instructed its members to follow the DOD IG Guide to

Investigating Military Reprisals when handling whistleblower reprisal

investigations.

As of July 1994, none of the services had implemented specific regulations

detailing procedures regarding involuntary mental health evaluations, even

though DOD Directive 6490.1 required them to do so by January 1994. The

Navy and the Air Force have issued instructions to their IGs and mental

health professionals, stating that section 546 and DOD Directive 6490.1

must be adhered to until specific regulations are issued. According to

Army officials, however, the Army is not required to implement section

546 or DOD Directive 6490.1 until it issues its own regulation. The Army has

not provided interim guidance pending the issuance of regulations.

In our 1992 report on military whistleblowing, we reported that in the past,

the DOD IG had told the service IGs that they were required to explain the

whistleblower act to the servicemember alleging reprisal only if the

member specifically mentioned the law. Subsequently, in letters dated

January 31, 1992, the DOD IG instructed service IGs to inform all

whistleblowers that they are afforded statutory protection only if they

make their allegation to the DOD IG. Furthermore, the Air Force IG

instruction includes specific comments about informing the

servicemember of the differences between filing a reprisal allegation with

the DOD IG or the service IG. DOD IG officials said they have received

numerous referrals from service and local IGs. However, the DOD IG’s

tracking system does not identify referred cases; therefore, we could not

substantiate claims of referrals.

Page 7 GAO/NSIAD-95-23 Whistleblower Protection
B-247485 

Since our last report, the DOD IG has developed a poster on whistleblower

protection for distribution to military installations. According to DOD IG

officials, three posters were allotted for each location and were intended

for display at the local IG’s office, the legal assistance office, and the office

of the military police. The poster advises servicemembers to request

information about the whistleblower act from the local IG, legal assistance

officer, or the DOD hotline, but it excludes information about the process of

obtaining relief from reprisals. With so few available, the usefulness of the

posters seems limited.

Whistleblowers Can

Challenge Reprisals

That Occurred Before

the Whistleblower Act

The BCMR2 system provides a mechanism for servicemembers to challenge

reprisals that occurred before 10 U.S.C. 1034 was enacted in 1988. The

general authority for correction of military records contained in 10 U.S.C.

1552 authorizes a BCMR to take appropriate action, including the correction

or removal of records from the servicemember’s personnel files, if it

determines that personnel actions were taken in reprisal against the

whistleblower. A BCMR can also make recommendations to the service

secretary on the appropriateness of disciplinary actions against the

individual(s) who committed the reprisal. Although servicemembers are

required to request corrections to their records within 3 years after they

discover reprisals, the Boards are authorized to waive the time limit if the

case has merit. BCMR officials said that the Boards are usually lenient

regarding the time limit.

The BCMRs are unique within DOD in that they function as super-appellate

organizations. The civilian federal workforce has no equivalent. Each BCMR

comprises civilians appointed by the respective service secretary. In

general, upon application from the servicemember, a BCMR can correct any

military record when the Secretary considers it necessary to correct an

error or to remove an injustice.

BCMR officials said they could not recall a case in which a whistleblower

had requested relief for an alleged reprisal in the form of a mental health

evaluation before the act was effective. Each service BCMR annually

receives several thousand petitions for corrections and changes, which are

coded and logged into the BCMRs’ system. BCMR officials were unable to

identify any specific whistleblower cases or cases involving involuntary

mental health evaluations because their systems do not include codes for

whistleblower reprisal or involuntary psychiatric referral or evaluation.

The BCMRs categorize cases by action sought—for example, changes to

2

The BCMRs were established in 1946.

Page 8 GAO/NSIAD-95-23 Whistleblower Protection
B-247485 

discharges, pay grades, and dates of rank and the elimination of missed

promotions and low performance appraisals—and by broad categories of

reasons for which actions are sought. Yet, as a result of a settlement in a

1977 court action, DOD and service directives require the BCMRs to establish

a single index system for all BCMR cases except those involving

characterizations of discharge. The system is to provide a means for

applicants to identify or isolate cases that may be similar to theirs and

indicate the grounds for which the BCMR or Secretary granted or denied

relief. The Department of the Army was responsible for developing the

initial format of the index system, establishing joint facilities for

inspection, and copying opinions. The Executive Secretary of the Army

BCMR told us that no code had been established for identifying

whistleblower reprisal cases or any subcategory such as involuntary

mental health evaluations because only a few of these cases had come to

the Board’s attention.

Recommendations to

the Secretary of

Defense

To ensure that all whistleblowers are afforded the type of protections

provided under 10 U.S.C. 1034 and section 546, we recommend that the

Secretary of Defense

• revise DOD Directive 7050.6 to require that (1) the military service and local

IGs refer allegations of reprisal against whistleblowers to the DOD IG if an

initial screening indicates that an allegation may have substantial merit

and (2) the DOD IG use the same procedures for referred cases of reprisal

allegations as it uses for cases it investigates or delegates for investigation

and approve all resulting reports;

• direct the service secretaries to expeditiously develop and implement

regulations establishing clear and specific procedures related to

whistleblower reprisals, including mental health evaluations, as required

by DOD directives;

• instruct the service secretaries and the DOD IG to develop strategies to

ensure that servicemembers are informed of their rights, the extent of

protection afforded, and the proper filing procedures relating to reprisal

allegations for whistleblowing; and

• instruct the BCMRs to establish a code and/or a subcode within the BCMRs’

index system for identifying cases and decisions involving whistleblower

reprisal and involuntary mental health referrals and evaluations, as

administratively required.

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B-247485 

Agency Comments

and Our Evaluation

In written comments on a draft of our report, DOD concurred with our four

recommendations and said that a proposed revision to DOD

Directive 7050.6 requires the services’ Inspectors General to notify

complainants who allege reprisal for whistleblowing that to receive

statutory protection, they must make their complaints to DOD’s Inspector

General. The revised directive is expected to be published by

January 1995. DOD stated that all services have now issued regulations to

implement the current DOD Directive 7050.6 and that the services will be

required to issue additional implementing instructions within 120 days

following publication of the new directive. However, DOD stated that the

services have not yet issued regulations, which were due in January 1994,

to implement DOD Directive 6490.1 concerning mental health evaluations.

Considering that the legislation underlying this directive was passed in

October 1992, we believe that the delay in issuing implementing

regulations is unreasonable and that DOD should require the services to

expedite issuance of appropriate regulations.

Regarding our recommendation that a code be established within the BCMR

index system to identify whistleblower reprisal and involuntary mental

health referrals and evaluations, DOD stated that the Army should develop

a code by June 1995 and that the other services should implement a code

within 120 days of receipt of the Army modification.

DOD made other comments on our draft report, which we have

incorporated as appropriate.

Scope and

Methodology

We interviewed officials from the DOD and service IG offices and mental

health offices and from each BCMR. We also reviewed the legislative history

of the Military Whistleblower Protection Act, DOD and service policies and

procedural guidance, pertinent legislation and congressional hearings, and

25 investigative case files at the office of the DOD IG. We tested each case

file for completeness by applying DOD’s criteria in the Guide to

Investigating Military Reprisals. We also determined whether

whistleblowers had petitioned the BCMR if their allegations had been

upheld.

The 25 whistleblower cases we reviewed were divided into two groups:

(1) the 14 cases involving involuntary mental health evaluations that were

closed between 1988 and January 1994 and (2) 11 cases involving

allegations of reprisals that had been substantiated after September 1992.

Of the 25 investigations, 14 were conducted by the DOD IG, 4 were

Page 10 GAO/NSIAD-95-23 Whistleblower Protection
B-247485 

conducted by the service IG, and 7 were conducted by a local IG. Although

our review of 25 cases cannot be projected to the universe of all

whistleblower cases, we believe the 25 cases are indicative of reprisal

investigations being conducted either by or for the DOD IG.

We conducted our work from January through September 1994 in

accordance with generally accepted government auditing standards.

We are sending copies of this report to the Secretaries of Defense, the Air

Force, the Army, and the Navy and interested congressional committees.

We will also provide copies to others upon request.

Please contact me at (202) 512-5140 if you or your staff have any questions

concerning this report. Major contributors to this report were Foy D.

Wicker, Galen L. Goss, MaeWanda Michael-Jackson, and Raymond J.

Wyrsch.

Mark E. Gebicke

Director, Military Operations

 and Capabilities Issues

Page 11 GAO/NSIAD-95-23 Whistleblower Protection
Contents

Letter 1

Appendix I 

Excerpts From the

DOD IG Guidance on

Reprisal

Investigations

14

Appendix II 

Comments From the

Department of

Defense

15

Abbreviations

BCMR Board for the Correction of Military Records

CFR Code of Federal Regulations

DOD Department of Defense

IG Inspector General

Page 12 GAO/NSIAD-95-23 Whistleblower Protection
Page 13 GAO/NSIAD-95-23 Whistleblower Protection
Appendix I 

Excerpts From the DOD IG Guidance on

Reprisal Investigations

The Guide to Military Reprisal Investigations is designed to help those

assigned to investigate allegations of reprisal against military

whistleblowers. It details four questions and the steps that investigators

should take to answer each question. The questions are:

1. Did the military member make a disclosure protected by statute?

2. Was an unfavorable personnel action taken or threatened, or was a

favorable action withheld or threatened to be withheld following the

protected disclosure?

3. Did the official(s) responsible for taking, withholding, or threatening

the personnel action know about the protected disclosure?

4. Does the evidence establish that the personnel action would have been

taken, withheld, or threatened if the protected disclosure had not been

made?

The guide acknowledges that

the first three questions are relatively straightforward and usually quite simple to resolve.

The last question is different from most investigations because investigators must focus on

the question, ‘Why?’ In most other investigations, investigators stop investigating if they

find that management acted within applicable guidelines and had the authority to act as

they did. In reprisal investigations, investigators go one step further and ask ‘why’

management acted as they did. The fourth question, because it incorporates the question of

management’s motive and justification for the action, makes reprisal investigations very

difficult.

In answering the fourth question, the guide states that

even if the action was warranted given the military member’s performance and/or conduct

and even if management had the authority to take the actions, the action could still have

been reprisal if management would not have taken the action if the military member had

not made a protected disclosure. The burden of proof is on management to show they

would have acted as they did with any military member given similar circumstances

without the protected disclosure. The burden is on the investigator to ensure all the

necessary evidence has been gathered to objectively decide this question.

Page 14 GAO/NSIAD-95-23 Whistleblower Protection
Appendix II 

Comments From the Department of Defense

Page 15 GAO/NSIAD-95-23 Whistleblower Protection
Appendix II 

Comments From the Department of Defense

Now on p. 9.

Now on p. 9.

Page 16 GAO/NSIAD-95-23 Whistleblower Protection
Appendix II 

Comments From the Department of Defense

Now on p. 9.

Now on p. 9.

(703058) Page 17 GAO/NSIAD-95-23 Whistleblower Protection
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