WHISTLEBLOWER 

PROTECTION

Actions Needed to 

Improve DOD’s 

Military 

Whistleblower 

Reprisal Program

Report to the Ranking Member, 

Committee on the Judiciary, 

U.S. Senate

February 2012

GAO-12-362

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-362, a report to the 

Ranking Member, Committee on the Judiciary, 

U. S. Senate 

February 2012 

WHISTLEBLOWER PROTECTION 

Actions Needed to Improve DOD’s Military 

Whistleblower Reprisal Program 

Why GAO Did This Study

Whistleblowers help guard the federal 

government against waste, fraud, and 

abuse. The Military Whistleblower 

Protection Act provides 

servicemembers with a means to seek 

relief from reprisals and to hold 

subjects accountable. GAO was asked 

to determine the extent to which the 

Department of Defense (DOD) has (1) 

satisfied statutory timeliness 

requirements for processing military 

whistleblower reprisal cases, (2) 

established and implemented oversight 

mechanisms for its process, and (3) 

taken corrective action in cases where 

the DOD Inspector General (DODIG) 

substantiated reprisal claims. GAO 

also analyzed case characteristics. 

GAO examined laws, regulations, and 

guidance documents; interviewed 

officials from DODIG, service IGs, 

service Boards for the Correction of 

Military Records (BCMRs), and the 

Office of the Undersecretary of 

Defense for Personnel and Readiness; 

and collected and analyzed case data. 

GAO also conducted a detailed file 

review using a representative sample 

of cases closed between January 1, 

2009 and March 31, 2011.

What GAO Recommends

GAO recommends that DOD 

implement procedures to track and 

report data on its case processing 

timeliness, take actions to improve 

oversight of its investigative process,

and develop processes to ensure 

appropriate corrective actions are 

taken in substantiated cases. DOD 

concurred with all of GAO’s 

recommendations.

What GAO Found

DODIG has taken multiple steps, in collaboration with the service IGs in some 

instances, to improve DOD’s ability to process military whistleblower reprisal 

cases in a timely manner. Timeliness is important to ensure the reliability of 

evidence and appropriate resolution of reprisal allegations. However, DODIG has 

generally not met statutory requirements to report on investigations within 180 

days, or to provide alternative notification. DODIG has undertaken efforts to 

improve timeliness by, for example, eliminating a time-consuming phase of its 

investigative process. However, DOD’s efforts are hampered by unreliable and 

incomplete data. For instance, GAO found that DODIG has not consistently or 

accurately recorded key dates to track how long investigations take to complete. 

Without key timeliness data, DODIG may have difficulty in identifying process 

areas requiring improvement and evaluating the impact of reforms. Further, the 

absence of this information limits congressional decision makers’ ability to 

provide oversight of DOD’s whistleblower reprisal investigative program. 

DODIG has begun executing an action plan that includes acting on prior external 

and internal review recommendations in order to improve its oversight of the 

department’s whistleblower reprisal process, but implementation of this plan is 

not yet complete and challenges exist in three areas:

• Performance metrics. DODIG has not yet established performance metrics to 

ensure the quality of reprisal investigations. 

• Guidance. DOD’s guidance related to the whistleblower program is outdated and 

does not reflect current investigative processes. Additionally, some of the 

guidance is unclear, leading to inconsistent implementation among the service 

IGs. Moreover, DODIG has not been consistently adhering to standards 

regarding the maintenance of its case files, resulting in generally incomplete files.

• Case monitoring processes and procedures. DODIG lacks standard case 

monitoring processes and procedures, which may hinder its ability to consistently 

maintain visibility and assess the status of outstanding reprisal investigations 

including those conducted by service and component IGs.

Until it further addresses the challenges it faces in regard to oversight 

mechanisms, DODIG cannot be assured that it is effectively conducting its 

oversight responsibilities or implementing the whistleblower reprisal program as 

intended.

DOD’s efforts to ensure that appropriate corrective action is taken—both for 

whistleblowers and against those who reprise against whistleblowers—are 

hampered by disconnected investigative and corrective action processes and the 

limited visibility of the corrective actions taken. DODIG and the service BCMRs 

are not consistently identifying and tracking data on action taken to undo the 

reprisal damage done to whistleblowers. Further, unreliable data regarding 

corrective action taken against those found to have reprised against 

whistleblowers is hindering oversight of this key aspect of whistleblower 

protections. Without addressing these issues, whistleblowers may not be getting 

the full protection and resolution they deserve. View GAO-12-362. For more information, 

contact Zina Merritt at (202) 512-5257 or 

merrittz@gao.gov. 
Page i GAO-12-362 Whistleblower Protection

Letter 1 

Background 4

DODIG Is Generally Not Meeting Timeliness Requirements and 

Improvement Efforts Are Hindered by Unreliable and 

Incomplete Data 13

DODIG Is Taking Steps to Address Whistleblower Reprisal Process 

Weaknesses but Oversight Challenges Remain 24

DOD Efforts to Ensure Corrective Actions Are Taken in 

Substantiated Cases Are Hindered by Disconnected Investigative 

and Corrective Action Processes and Unreliable Data 34

Conclusions 47

Recommendations for Executive Action 48

Agency Comments and Our Evaluation 49

Appendix I Scope and Methodology 53

Appendix II General Information on Case Characteristics for Military 

Whistleblower Reprisal Investigations 60

Appendix III Comparison of Whistleblower Reprisal Cases That Were and Were Not 

Identified as Reprisal by Service BCMRs 72

Appendix IV Comments from the Department of Defense 74

Appendix V GAO Contacts and Staff Acknowledgments 79

Tables

Table 1: Roles and Responsibilities of Key Organizations and 

Individuals in the Military Whistleblower Reprisal Process 6

Table 2: Reprisal Process Implementation Differences by 

Investigating Organization 12

Contents
Page ii GAO-12-362 Whistleblower Protection

Table 3: Mean Case Processing Time by Investigative Phase of 

Sampled Cases Closed between January 1, 2009 and March 

31, 2011 18

Table 4: Timeliness Accuracy by Investigative Phase of Sampled 

Cases Closed between January 1, 2009 and March 31, 2011 21

Table 5: Estimated Level of DODIG Case File Folder Completeness 

for Cases Closed between January 1, 2009 and March 31, 

2011 31

Table 6: Substantiated Reprisal Cases Submitted to BCMRs and 

Their Outcome for Cases Closed between Fiscal Year 2006 

and the First Half of Fiscal Year 2011 36

Table 7: Substantiated Reprisal Cases Submitted to BCMRs 

Compared to All Substantiated Cases for Cases Closed 

Between Fiscal Year 2006 and the First Half of Fiscal Year 

2011 37

Table 8: Comparison of Substantiated Cases Identified and Not 

Identified as Reprisal by the BCMRs (for Cases Closed 

between Fiscal Year 2006 and the First Half of Fiscal Year 

2011) 43

Table 9: Organizations Met with During Review 53

Figures

Figure 1: The Military Whistleblower Reprisal Investigative 

Process, as of January 2012 9

Figure 2: Acid Test for Military Whistleblower Reprisal Allegations 11

Figure 3: Average Number of Staff at the DODIG Military 

Whistleblower Reprisal Directorate from Fiscal Year 2006 

through Fiscal Year 2011 15

Figure 4: Relative Service Size vs. Percentage of Whistleblower 

Complaints by Service for Cases Closed between Fiscal 

Year 2006 and the First Half of Fiscal Year 2011 61

Figure 5: Number of Closed Cases between Fiscal Year 2006 and 

the First Half of Fiscal Year 2011 64

Figure 6: Comparison of Substantiated, Not Substantiated, and 

Cases Not Fully Investigated for Military Whistleblower 

Reprisal Cases Closed between Fiscal Year 2006 and the 

First Half of Fiscal Year 2011 66

Figure 7: Mean Yearly Number of Closed Cases by Phase of 

Investigation and Investigating Organization between 

Fiscal Year 2006 and the First Half of Fiscal Year 2011 68
Page iii GAO-12-362 Whistleblower Protection

Figure 8: Percentage of Full Investigations out of Total Closed 

Investigations by Investigating Organization 69

Figure 9: Percentage of Substantiated Investigations Out of Total 

Closed Investigations by Investigating Organization 70

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Page 1 GAO-12-362 Whistleblower Protection

United States Government Accountability Office 

Washington, DC 20548

February 22, 2012

The Honorable Charles E. Grassley

Ranking Member, Committee on the Judiciary

United States Senate

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. 

These whistleblowers also risk reprisals from their employers, sometimes 

being demoted, reassigned, or fired. In 1988, Congress enacted the 

Military Whistleblower Protection Act,1 which provides protections from 

reprisal for a servicemember who discloses information concerning, 

among other things, fraud, waste, and abuse to designated persons such 

as an inspector general (IG) or someone in the servicemember’s chain of 

command.2 Under this law, the Department of Defense (DOD) IG has 

final responsibility for approving the results of all investigations, although 

both DODIG and the service IGs can investigate allegations of reprisal.3

 

1 National Defense Authorization Act, Fiscal Year 1989, Pub. L. No. 100-456, §846 

(1988), codified at 10 U.S.C. § 1034, as amended.

2 Specifically, 10 U.S.C. § 1034 prohibits individuals from restricting a member of the 

armed forces (hereafter referred to as servicemember) from making a lawful 

communication to a Member of Congress or an Inspector General (IG). It further prohibits 

individuals from taking or threatening to take an unfavorable personnel action, or 

withholding or threatening to withhold a favorable personnel action, as a reprisal against a 

servicemember for making or preparing to make a lawful communication to a Member of 

Congress or an IG or from communicating to a Member of Congress, IG, a member of a 

Department of Defense audit, inspection, investigation, or law enforcement organization; 

any person or organization in the chain of command; or any other person or organization 

designated pursuant to regulations or other established administrative procedures for such 

communications regarding what the servicemember reasonably believes to be evidence of 

any of the following: a violation of law or regulation, including a law or regulation 

prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross 

waste of funds, an abuse of authority, or a substantial and specific danger to public health 

or safety.

3 Department of Defense Directive 7050.06, Military Whistleblower Protection (Jul. 23, 

2007) defines the military department IGs as including the IG of the Army, the Naval IG, 

the IG of the Air Force, and the Deputy Naval IG for Marine Corps Matters (Marine Corps 

IG). In this report, we refer to these organizations collectively as the service IGs.

 
 

Page 2 GAO-12-362 Whistleblower Protection

Despite the protections afforded to military whistleblowers under the 

Military Whistleblower Protection Act and subsequent amendments, 

concerns persisted that servicemembers were not being adequately 

protected by DOD’s investigative process. In response, DODIG requested 

that the Department of Justice IG assess whether DODIG was properly 

and effectively discharging its statutory responsibilities to protect 

members of the Armed Forces from reprisal.4 The resulting July 2009 

report5

To assist Congress in providing oversight of DOD’s efforts to protect 

military whistleblowers, you asked us to examine DOD’s military 

whistleblower reprisal process. Specifically, this report examines the 

extent to which DOD has (1) satisfied statutory timeliness requirements 

for processing military whistleblower reprisal cases and what factors, if 

any, impact its ability to do so; (2) established and implemented oversight 

mechanisms for its military whistleblower reprisal process; and (3) taken 

corrective action in cases where DODIG substantiated military 

whistleblower reprisal claims. The report also identifies key characteristics 

of military whistleblower reprisal cases.

highlighted timeliness in processing complaints as DOD’s biggest 

challenge and made detailed recommendations for improvement based 

on the underlying report findings.

To address these objectives, we reviewed a random selection of case 

files retained by DODIG for military whistleblower reprisal cases closed 

between January 1, 2009 and March 31, 2011, to identify case 

characteristics, and address the extent to which DODIG met timeliness 

 

4 The Department of Justice IG review examined: (1) the statute and DOD regulations 

relating to military whistleblowers; (2) the allocation of responsibility for conducting 

investigations of military whistleblower reprisal allegations among the DODIG and the 

service IGs; (3) the management, staffing, and processes of the DODIG directorate 

responsible for military whistleblower reprisal investigations; (4) the quality of DODIG’s 

investigative product and its oversight of the service IGs’ processing and investigation of 

reprisal complaints; and (5) the effectiveness of DODIG in satisfying its legal obligations 

and ensuring that reprisal allegations are thoroughly and fairly investigated.

5 U.S. Department of Justice, Office of the Inspector General, A Review of the Department 

of Defense Office of Inspector General’s Process for Handling Military Whistleblower 

Reprisal Allegations (July 2009).
 

Page 3 GAO-12-362 Whistleblower Protection

requirements and had oversight mechanisms in place.6 The margin of 

error associated with the confidence intervals of our case file review 

proportion estimates is no more than plus or minus 11 percentage points 

at the 95 percent level of confidence. The margin of error for any mean 

values based on our case file review will vary depending on the variability 

of the data and so is reported along with the mean. To address all our 

audit objectives, we also collected and analyzed data on all closed 

military whistleblower reprisal cases from DODIG,7 the headquarters-level 

IGs from the Army, Navy, Air Force, and Marine Corps,8 and the Boards 

for Correction of Military Records (BCMRs) of the Army, Navy,9 and Air 

Force.10

 

6 We selected a random sample of 97 cases from a list provided by DODIG of a total of 

871 military whistleblower reprisal cases closed between January 1, 2009 and March 31, 

2011. However, we had to exclude 6 cases from our analyses because they were not 

accurately characterized in DODIG’s database. Specifically, 3 cases were ongoing 

investigations, 2 cases were not military whistleblower reprisal cases, and DODIG could 

not locate 1 case file.

We assessed the data we obtained and determined that the data 

we used were sufficiently reliable for our audit objectives. We also 

reviewed relevant laws, regulations and guidance documents, internal 

memos, reports, and briefings. Further, we interviewed officials from 

DODIG, the service headquarters IGs and service field IGs from the 

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

Force BCMRs, as well as the Office of the Under Secretary of Defense for 

Personnel and Readiness – Enterprise Services. We conducted this 

performance audit from April 2011 to February 2012 in accordance with 

generally accepted government auditing standards. Those standards 

require that we plan and perform the audit to obtain sufficient, appropriate 

evidence to provide a reasonable basis for our findings and conclusions 

based on our audit objectives. We believe that the evidence obtained 

provides a reasonable basis for our findings and conclusions based on 

our audit objectives. Additional details on our scope and methodology are 

discussed in more detail in appendix I.

7 Data from DODIG were for all military whistleblower reprisal cases closed between fiscal 

year 2006 and the first half of fiscal year 2011 (October 1, 2005 through March 31, 2011). 

8 Data from the service IGs were for all military whistleblower reprisal cases closed 

between January 1, 2009 and March 31, 2011.

9 The Navy’s BCMR also reviews cases brought to it by members of the Marine Corps.

10 Data from the service BCMRs were for all military whistleblower reprisal cases closed 

by DODIG between fiscal year 2006 and the first half of fiscal year 2011.
 

Page 4 GAO-12-362 Whistleblower Protection

The Military Whistleblower Protection Act of 1988, as amended, and its 

implementing directive, Department of Defense Directive 7050.06,11

establish the basic concepts and framework for the investigative process 

and establish the roles and responsibilities of the various affected 

organizations. DODIG is the central organization for DOD’s military 

whistleblower reprisal program and has a directorate responsible for 

investigations into military whistleblower reprisal allegations. This 

directorate also conducts or oversees investigations into allegations of 

improper referrals of servicemembers for mental health evaluations12 and 

conducts investigations into reprisal allegations involving civilians, 

contractors, and nonappropriated fund employees,13,14 although 

historically military whistleblower reprisal cases make up approximately 

80 percent of its caseload. Under the law, the service IGs and other DOD 

component IGs15

 

11 Department of Defense Directive 7050.06, Military Whistleblower Protection (Jul. 23, 

2007).

can also investigate military whistleblower reprisal 

allegations and make recommendations regarding the disposition of 

cases. However, DODIG is responsible for reviewing and approving the 

results of all investigations of military whistleblower reprisal allegations. 

DODIG publicly reports on its military whistleblower protection program 

activities in its required semiannual report to Congress, including 

consolidated data on all of the cases the reprisal directorate received and 

12 Allegations of an improper referral of a servicemember for a mental health evaluation 

are subject to different laws and regulations, although referrals for mental health 

evaluations are included in the definition of personnel action, for the purposes of alleging a 

reprisal under Department of Defense Directive 7050.06.

13 A nonappropriated fund instrumentality (NAFI) employee is a civilian employee who is 

paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy 

exchanges Service Command, Marine Corps exchanges, or any other instrumentality of 

the United States under the jurisdiction of the armed forces which is conducted for the 

comfort, pleasure, contentment, or physical or mental improvement of members of the 

armed forces. 

14 DODIG had a separate directorate to investigate whistleblower reprisal allegations filed 

by civilians, but this directorate was merged in October 2011with the directorate 

responsible for whistleblower reprisal investigations for servicemembers (military 

whistleblower reprisal), contractors, and nonappropriated fund employees, as well as 

improper referrals of servicemembers for mental health evaluations.

15 DOD Directive 7050.06 defines DOD components as including the following 

organizational entities: Office of the Secretary of Defense, the Military Departments, the 

Chairman of the Joint Chiefs of Staff, the Combatant Commands, DODIG, the Defense 

Agencies, the DOD Field Activities, and all other organizational entities within DOD.

Background
 

Page 5 GAO-12-362 Whistleblower Protection

closed—numbers that include military whistleblower reprisal cases.16

 

16 Section 5 of appendix 3 of Title 5 of the United States Code requires each inspector 

general to prepare semiannual reports summarizing the activities of the office during the 

immediately preceding 6-month period ending March 31 and September 30, no later than 

April 30 and October 31 of each year. The law specifies that the report is to include, 

among other things, a description of significant problems, abuses, and deficiencies 

relating to the administration of programs and operations of that establishment.

 A 

description of some of the key organizations and individuals and their 

roles in the military whistleblower reprisal process can be found in table 1.
 

Page 6 GAO-12-362 Whistleblower Protection

Table 1: Roles and Responsibilities of Key Organizations and Individuals in the 

Military Whistleblower Reprisal Process

a

The Navy BCMR also reviews cases brought to it by members of the Marine Corps. 
 

Page 7 GAO-12-362 Whistleblower Protection

b

DOD Directive 7050.06 (Jul. 23, 2007) assigns responsibility for the noted functions to the Deputy 

Under Secretary of Defense for Program Integration. In July 2010, the Under Secretary of Defense for 

Personnel and Readiness began to reorganize and realign Program Integration. On December 1, 

2011, the Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)) - 

Enterprise Services was designated as the successor organization for the Deputy Under Secretary of 

Defense for Program Integration. 

The two basic components of a whistleblower reprisal allegation are the 

protected communication and the unfavorable personnel action. A 

protected communication is any lawful communication to a Member of 

Congress or an IG or a communication with appropriate officials about 

information that the servicemember reasonably believes evidences a 

violation of law or regulation, including a law or regulation prohibiting 

sexual harassment or unlawful discrimination, gross mismanagement, a 

gross waste of funds or other resources, an abuse of authority, or a 

substantial and specific danger to public health or safety.17 A 

servicemember who makes or prepares to make a protected 

communication is considered a whistleblower. It is DOD’s policy that 

servicemembers shall be free from reprisal for making or preparing to 

make a protected communication and that no person may take or 

threaten to take an unfavorable personnel action, such as an unfavorable 

performance evaluation, or withhold or threaten to withhold a favorable 

personnel action, such as granting a promotion or award, in reprisal for 

making or preparing to make a protected communication.18

To initiate an investigation under the Military Whistleblower Protection 

Act, a servicemember must typically make a reprisal allegation to an IG in 

DOD within 60 days of becoming aware of the personnel action alleged to 

 

17 DOD Directive 7050.06 Section E2.9 defines protected communication and lists the 

appropriate officials as a Member of Congress, an IG, or a member of a DOD audit, 

inspection, investigation, or law enforcement organization, or any person or organization 

in the chain of command; or any other person designated pursuant to regulations or other 

established administrative procedures to receive such communications.

18 DOD Directive 7050.06 Section E2.8 defines a personnel action as any action taken on 

a servicemember that affects, or has the potential to affect, that military member’s current 

position or career. Such actions include a promotion; a disciplinary or other corrective 

action; a transfer or reassignment; a performance evaluation; a decision on pay, benefits, 

awards, or training; referral for mental health evaluations under DOD Directive 6490.1; 

and any other significant change in duties or responsibilities inconsistent with the military 

member’s grade.
 

Page 8 GAO-12-362 Whistleblower Protection

have been taken in reprisal.19,20 Allegations can also come to an IG 

through a Member of Congress. Once a complaint has been filed, the 

investigating organization—typically a service IG or DODIG—conducts a 

review to determine if the complaint qualifies as a whistleblower reprisal 

under the law and should be fully investigated. DODIG can also assign 

cases it receives to a service or other component IG for investigation and 

will also investigate cases that were not filed with it if the case is of 

special interest to DODIG.21

 

19 Under 10 U.S.C. §1034 (c)(4) IGs at DOD are not required to investigate allegations 

that are made more than 60 days after the date the servicemember becomes aware of the 

unfavorable personnel action that is alleged to have occurred as a result of reprisal. 

According to Section E3.1.1 of DOD Directive 7050.06, while no investigation is required 

in those cases, an authorized IG receiving such a complaint may, nevertheless, consider 

the complaint based on compelling reasons for the delay in submission or the strength of 

the evidence submitted. 

If a complaint is fully investigated, the 

investigating organization writes a formal report of investigation that 

includes a determination of whether the complaint is substantiated or not 

substantiated. Such a report also receives at least one legal sufficiency 

review. Complaints that are not fully investigated do not necessarily 

include a formal report or a legal review. No determination, including a 

determination that a complaint does not merit a full investigation, is final 

until DODIG approves it. Even after a full investigation is completed that 

substantiates reprisal, servicemembers do not receive relief from the 

unfavorable personnel actions from IGs in DOD but instead must 

separately apply to their military department’s Board for Correction of 

Military Records (BCMR). See figure 1 for the process currently used by 

DOD to investigate military whistleblower reprisal allegations.

20 10 U.S.C. §1034 (i) also includes the Department of Homeland Security (DHS) IG as a 

qualifying IG, in the case of a member of the Coast Guard when the Coast Guard is not 

operating as a service in the Navy. According to DODIG officials, they do not have any 

record of a Coast Guard military whistleblower reprisal allegation and are not aware of any 

such complaints brought by a member of the Coast Guard to the DHS IG.

21 DODIG officials told us that cases of special interest could include high-profile cases, 

including those with congressional interest and cases that involve a complainant from one 

service and a subject from another.
 

Page 9 GAO-12-362 Whistleblower Protection

Figure 1: The Military Whistleblower Reprisal Investigative Process, as of January 2012

Notes: 

Since 2008, cases filed by servicemembers in the Army have undergone an initial review of 

investigative merit by DODIG. 
 

Page 10 GAO-12-362 Whistleblower Protection

DODIG can also assign cases it receives to a service or component IG for investigation, and will also 

investigate cases that were not filed with it if the case is of special interest to DODIG. 

a

Currently, the determination of investigative merit by DODIG involves making an initial determination 

based on testimonial, and sometimes documentary evidence provided by the complainant. 

b

The determination of investigative merit for the service IGs spans a range and could be based on an 

assessment of the documents provided by the complainant but could also include a formal written 

report. 

IGs at DOD assess each allegation in the complaint using four basic 

questions, which they refer to as the “Acid Test.” According to DODIG’s 

Guide to Investigating Reprisal and Improper Referrals for Mental Health 

Evaluations,

22

1. Did the military member make or prepare a communication protected 

by statute?

the four questions are:

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

favorable action withheld or threatened to be withheld following the 

protected communication?

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

the personnel action know about the protected communication?

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

been taken, withheld, or threatened if the protected communication 

had not been made?

Investigators must answer all four questions when conducting a full 

investigation, but cases can be closed before a full investigation if 

investigators, with DODIG approval, determine that the answers to the 

earlier questions indicate that a reprisal action was not taken against the 

complainant or that the complainant was not reprised against for making 

a protected communication (see fig. 2). For example, DODIG could close 

a case if it determined that there was no protected communication

(question 1) or that an unfavorable personnel action occurred before the 

protected communication (question 2). According to DODIG’s 

investigative guide, report conclusions are to be based on a 

“preponderance of the evidence” when assessing the four questions. The 

guide states that this standard requires that more weight is given to the 

most credible and convincing evidence and that evidence which 

 

22 DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal 

and Improper Referrals for Mental Health Evaluations, (Feb. 6, 1996). In this report we 

refer to this document as the DODIG investigative guide. 
 

Page 11 GAO-12-362 Whistleblower Protection

demonstrates to the reader that it is more probable than not that the facts 

and circumstances occurred as set forth in the investigative report.

Figure 2: Acid Test for Military Whistleblower Reprisal Allegations

Although the service IGs have the same basic investigative process as 

outlined above, each service has adapted process specifics to its own 

circumstances. Each service reviews and approves the investigations it 

conducts at the service’s headquarter IG before forwarding them to 

DODIG for final approval. Table 2 outlines differences among the services 

and DODIG in how they investigate reprisal cases.
 

Page 12 GAO-12-362 Whistleblower Protection

Table 2: Reprisal Process Implementation Differences by Investigating Organization

a

The services investigate cases for both their active and reserve components. 

b

Army organizations—which are generally at the division level—have IGs assigned to them. These 

IGs are similar to installation-level IGs.

c

Echelon II Commands have senior level of authority and report directly to the Chief of Naval 

Operations (CNO) and would be the equivalent of a major command. 

d

Based on requirements articulated by officials from the organizations noted. Additionally, both Navy 

and Marine Corps also require a legal sufficiency review for cases that do not go to full investigation. 

e

Mean number of cases closed per year by investigating organization based on data for all military 

whistleblower reprisal cases closed between fiscal year 2006 and the first half of fiscal year 2011 

(October 1, 2005 through March 31, 2011). 

f

In addition to having conducted a mean of 66 investigations per year during this time period, DODIG 

also provided oversight reviews for the investigations completed by the service IGs. 

g

Active and reserve military servicemember population figures are the fiscal year 2011 estimates in 

DOD’s Defense Manpower Requirements Report: Fiscal Year 2011 ( December 2010). 

Appendix II provides more information on the characteristics of military 

whistleblower reprisal cases.
 

Page 13 GAO-12-362 Whistleblower Protection

DODIG has taken multiple steps, in collaboration with the service IGs in 

some instances, to improve DOD’s ability to process military 

whistleblower reprisal cases in a timely manner. However, DOD has 

generally not met statutory requirements to provide reports on completed 

investigations within 180 days of the date the allegation was made or 

alternatively, to provide notice to the complainant and the Secretary of 

Defense. The July 2009 Department of Justice IG report found that 

lingering investigations leave complainants without resolution to their 

concern and could hold up a potential promotion for a subject. In addition, 

DODIG’s May 2011 review of its military whistleblower reprisal process 

raised concerns that some complainants withdrew their cases because of 

the length of time it takes to complete investigations.23 Further, DOD’s 

efforts to improve processing time have been hindered by unreliable and 

incomplete data. Moreover, DODIG does not report data on timeliness in 

its semiannual reports, thereby limiting the information Congress could 

use to provide oversight of the military whistleblower reprisal program.

DODIG and the service IGs have faced challenges to processing military 

whistleblower reprisal cases in a timely manner which they attribute to 

staffing shortages and process inefficiencies. Although DODIG has taken 

multiple steps, in collaboration with the service IGs in some instances, to 

improve processing time, these efforts have not yet resulted in meeting 

the statutory requirement to provide reports on completed investigations 

within 180 days of the date the allegation was made.24

 

23 U.S. Department of Defense Inspector General, “Review of the Office of Deputy 

Inspector General for Administrative Investigations, Directorate for Military Reprisal 

Investigations,” May 2011.

Timeliness is a key 

challenge and an important factor in completing quality investigations 

because, without timely resolutions, the reliability of evidence could 

suffer, and the careers of both the complainants and subjects could be 

negatively impacted.

24 Under 10 U.S.C. §1034 (e)(3), the IG investigating a military whistleblower reprisal 

investigation must complete an investigation report within 180 days. If the investigating IG 

determines it is not possible to complete the report within 180 days of the date the 

allegation under investigation was made, the IG must notify the complainant and the 

Secretary of Defense that this deadline cannot be met and of the reasons why, as well as 

a time when the report will be completed. 

DODIG Is Generally

Not Meeting 

Timeliness 

Requirements and 

Improvement Efforts 

Are Hindered by 

Unreliable and 

Incomplete Data

DODIG Faces Challenges 

in the Timely Processing of 

Reprisal Cases
 

Page 14 GAO-12-362 Whistleblower Protection

DOD Directive 7050.06 addresses the need to conduct investigations

expeditiously.

25

 

25 DOD Directive 7050.06, Military Whistleblower Protection (July 23, 2007).

Officials at DODIG and the service IGs stated that staffing 

levels are a key factor in determining the timely processing of reprisal 

cases. According to DODIG, the military whistleblower reprisal caseload 

has grown significantly since the enactment of the Military Whistleblower 

Protection Act, and staffing has not kept up with the increased caseload. 

Further, service IG officials told us that DODIG’s review of service 

investigations can be slow because of understaffing. DODIG has taken 

action on this issue, increasing the staffing of its whistleblower reprisal 

directorate from 17 staff in fiscal year 2006 to 30 staff in fiscal year 2011 

to accommodate the increased caseload. In January 2012, DOD’s Acting 

Inspector General authorized a further increase of staff for its 

whistleblower reprisal directorate from 30 to 42 (see fig. 3 for staffing at 

DODIG from fiscal years 2006 through 2011). Some service IG officials 

also indicated that staffing shortages are a factor in their ability to process 

cases in a timely manner. In a December 2011 letter, the DOD Inspector 

General asked the secretaries of the military departments to consider 

favorably any requests from the service IGs to increase their staffing in 

order to deal with the increased number of whistleblower reprisal cases.
 

Page 15 GAO-12-362 Whistleblower Protection

Figure 3: Average Number of Staff at the DODIG Military Whistleblower Reprisal 

Directorate from Fiscal Year 2006 through Fiscal Year 2011

Note: According to DODIG officials, the directorate responsible for investigating military whistleblower 

reprisals also had two detailees assigned to it in fiscal year 2009. 

DODIG has also undertaken multiple efforts to reform its investigative 

process to improve timeliness. For example, in late 2010, DODIG 

eliminated an investigative phase which required formal reports that 

recommended whether or not a case should be fully investigated. Earlier 

that year, DODIG eliminated the committee charged with reviewing and 

approving whether cases should be fully investigated. DODIG also 

changed its process for taking in complaints. The Defense Hotline26

 

26 The Defense Hotline is a DODIG program responsible for taking in all types of 

complaints for DOD in addition to whistleblower reprisal complaints. Its activities are 

governed by Department of Defense Instruction 7050.01, Defense Hotline Program (Dec. 

17, 2007). The Defense Hotline receives and investigates complaints or information 

concerning allegations of violations of law, rules or regulations, mismanagement, gross 

waste of funds, abuse of authority, and a substantial and specific threat to the public 

health and safety involving the Department of Defense.

used 

to document the original complaint, gather additional information from 

complainants, and send it to the directorate at DODIG responsible for 
 

Page 16 GAO-12-362 Whistleblower Protection

military whistleblower reprisal investigations. The Defense Hotline also 

was responsible for communicating with complainants if their cases were 

determined not to be whistleblower reprisal cases. Now the Defense 

Hotline passes the reprisal allegation to the directorate at DODIG 

responsible for military whistleblower reprisal investigations and

investigators from that directorate establish direct contact with the 

complainant to assess the validity of the reprisal allegation(s). DODIG 

officials stated this new intake process is faster and increases the quality 

of the investigations because experienced reprisal investigators are in 

charge of information gathering. DODIG also started testing a new 

approach in evidence gathering to determine whether it can close cases 

more quickly.27

In contrast, the service IGs’ processes for investigating these cases have 

generally remained the same. One major exception is the way Army 

cases are initially assessed. In order to deal with a large backlog in Army 

cases, DODIG and the Army IG signed a Memorandum of Agreement in 

2008 whereby DODIG took over responsibility for conducting the initial 

review of all incoming Army complaints. The Memorandum of Agreement 

allowed the Army to focus on investigations and thereby reduce the 

Army’s backlog of cases. Army and DODIG officials stated that this 

agreement was successful in reducing the Army’s case backlog and 

improving case processing time.28

 

27 The new approach is a beta-test where DODIG allows its investigators to speak with 

subjects at the onset of an inquiry or initial analysis to determine if the case warrants full 

investigation. The previous process did not allow investigators to speak with subjects 

unless the case definitely went to full investigation.

Yet DODIG formally notified the Army 

IG in November 2011 that it would terminate this special arrangement as 

of May 2012. DODIG officials told us that they did so in order to maintain 

a consistent approach among the services and because the arrangement 

had increased DODIG’s workload. In addition, they told us that cancelling 

the arrangement would enable their staff to conduct more full 

investigations. In November 2011, the Army IG asked DODIG to 

reconsider this decision, stating that the timeliness of Army reprisal 

28 The 2009 Department of Justice IG report recommended that DODIG consider whether 

it should take responsibility for conducting the initial review for the incoming complaints 

from all of the services, not just those from the Army. In its October 2011 action plan, 

DODIG stated it would assess how well the service IGs are performing intake of reprisal 

complaints in late fiscal year 2012 and that DODIG would evaluate the Department of 

Justice IG recommendation that DODIG consider conducting initial reviews of all service 

reprisal complaints after it has implemented some of its other reforms.
 

Page 17 GAO-12-362 Whistleblower Protection

investigations would suffer.29

Although DODIG has undertaken these and other efforts to improve its 

timeliness, it has generally not been completing investigations within the 

180-day time frame provided by law. From our analysis of a random 

sample of 91 cases closed between January 1, 2009 through March 31, 

2011, we estimate that 70 percent of the cases were not completed within 

180 days; moreover, we estimated that it took DOD a mean of 451 days 

(+/- 94 days) to process the cases. Our random sample included a subset 

of 61 inquiries closed before full investigation, which took a mean of 469 

days to close, and a subset of 28 full investigations, which took a mean of 

395 days to close.

However, in December 2011, DODIG 

affirmed its decision to end the agreement with the Army.

30,31 See table 3 for case processing time according to 

investigative phase.

 

29 The Army IG also expressed concerns that process reforms made by DODIG since 

early 2011 had reversed gains the Army IG was beginning to see in the processing of 

military whistleblower reprisal complaints.

30 Although case processing time for the full sample is generalizable, it is not 

generalizable for any subset. Additionally, the case processing time data reported for the 

two investigative phase subsets are based on 89 of the 91 cases we analyzed. For the 

investigative phase subsets, we excluded 2 additional cases because we could not 

identify the investigative phase in which they were closed based on the evidence in the 

case file.

31 For the subset of inquiries closed before full investigation, the median days to close a 

case was 249, with a range from 14 to 2,215 days. For full investigations, the median days 

to close a case was 349, with a range from 51 to 1,181 days. 
 

Page 18 GAO-12-362 Whistleblower Protection

Table 3: Mean Case Processing Time by Investigative Phase of Sampled Cases 

Closed between January 1, 2009 and March 31, 2011

Notes: 

Our random sample of 91 cases (out of a total of 871 cases closed during this time period) included 

61 inquiries closed before full investigation and 28 cases closed after a full investigation. We were 

unable to determine the investigative phase in which 2 cases were closed. 

Although data from the full sample are representative within the given parameters, any subset of 

these data cannot be assumed to be representative. That is, data specific to the cases closed before 

full investigation and the data specific to full investigation are not generalizable and apply only to the 

actual cases reviewed. 

In addition to not completing investigations in 180 days in most cases, 

DOD has not complied with the statutory reporting requirement to provide 

notification in those instances where the investigations go beyond 180 

days, although it is taking steps to do so.32

 

32 10 U.S.C. §1034 (e)(3) requires the IG investigating the allegation of reprisal to submit 

to the Secretary of Defense and the complainant a notice if they determine it is not 

possible to submit an investigative report within 180 days after receiving the allegation. 

The notice to the Secretary of Defense and the complainant is to contain a determination 

that the report may not be submitted on time and the reasons for the delay, as well as the 

time when the report will be submitted. DOD Directive 7050.06 assigns responsibility for 

providing these reports to DODIG. The directive also directs the service IGs to submit 

reports of investigation to DODIG within 180 days and if unable to do so, directs them to 

provide notice to the DODIG in addition to the complainant and the office designated to 

receive notice on behalf of the Secretary of Defense. The directive requires DOD 

component IGs other than the service IGs to provide DODIG with a report of investigation 

within 180 days from the date DODIG requested an investigation, but does not require 

them to provide notice if the 180 day time frame is exceeded.

The Military Whistleblower 

Protection Act requires the IG investigating an allegation of reprisal to 

submit to the Secretary of Defense and the complainant a notice if it 

cannot provide a report on the completed investigation within 180 days of 
 

Page 19 GAO-12-362 Whistleblower Protection

the date the allegation was made to an IG in DOD. The notice should 

include the reason for the delay and an expected completion date for the 

investigation.

33 DODIG officials acknowledged that they and the services 

had not been making the required notifications. The officials stated they 

used to submit these reports to the Secretary of Defense, but stopped 

doing so at some point because they were told by officials at the office 

receiving the notifications that they did not know what to do with the 

information.34 Because this notification is not being provided, as required 

by statute, the Secretary of Defense has had reduced visibility of cases 

that exceed the investigative time limit, and complainants have not been 

receiving information regarding their cases to which the law entitles them. 

During the course of our review, DODIG changed its practice and started 

reporting this information in October 2011. According to its October 2011 

action plan, DODIG is taking steps to ensure that it and the service IGs 

follow the statutory reporting requirements.

Although DOD has taken some steps to improve the timeliness of 

investigations, its efforts are hampered because DODIG does not have 

key timeliness data that would allow it to identify process areas requiring 

improvement or evaluate the impact of reforms. According to the quality 

standards for investigations, developed by the Council of the Inspectors 

General on Integrity and Efficiency, organizations should store data in a 

manner that allows for effective retrieval, referencing, and analysis. This

enhances an organization’s ability to conduct pattern and trend analyses 

and assists in the process of making informed judgments on investigative 

program development, and in the implementation of the investigative 

 

33 DOD Directive 7050.06 requires the investigating organization to submit notice to the 

complainant as well as to the Deputy Under Secretary of Defense for Program Integration 

within the Office of the Secretary of Defense. Responsibility for receiving notices was 

shifted to the Office of the Under Secretary of Defense for Personnel and Readiness—

Enterprise Services in December 2011 (see table 1 on roles and responsibilities). 

34 DODIG officials could not recall when they stopped sending the notifications to the 

Secretary of Defense for investigations that were not closed within 180 days of the date 

the allegation was made. Officials from the office currently responsible for receiving these 

notifications (Office of the Under Secretary of Defense for Personnel and Readiness—

Enterprise Services) had no record of receiving such notifications. Further, our case file 

review of 91 cases closed between January 1, 2009 and March 31, 2011, included 64 

cases that were not closed within 180 days. We did not find evidence in any of these 64 

case files that the Secretary of Defense had been notified. However, we did find evidence 

in 2 of the 64 cases of notifications sent to complainants.

DOD Efforts to Improve 

Case Processing Times 

Have Been Hindered by 

Unreliable and Incomplete 

Data
 

Page 20 GAO-12-362 Whistleblower Protection

process.35 Further, our prior work has shown that tracking timeliness is 

important for accountability and for making improvements to investigative 

processes.36

In our assessment of its data, we found that DODIG has not consistently 

or accurately recorded key dates to track how long investigations take to 

complete. From our analysis of a random sample of cases closed 

between January 1, 2009 through March 31, 2011, we estimate that 

DODIG’s database understated the amount of days it took to close cases 

by a mean of 193 days (+/-76 days).37 The understated number of days 

was a result of DODIG officials recording the date that they received a 

complaint in their office rather than the original date the complainant 

made the allegation to an IG in DOD. In addition, our case file review 

found that DODIG identified three cases as closed in its database when it 

actually referred these cases to a service for further investigation, 

resulting in an understatement of the amount of time it took to close 

cases. In one of these three cases, it took an additional 872 days to close 

the case. Moreover, our case file review found that 7 full investigations 

out of 28 had correct dates recorded in DODIG’s database.38

 

35 Council of the Inspectors General on Integrity and Efficiency, Quality Standards for 

Investigations (Nov. 15, 2011). The Council of the Inspectors General on Integrity and 

Efficiency gets its authority from Section 11 of the Inspector General Act of 1978 (5 U.S.C. 

app. 3.), as amended. The mission of the Council of the Inspectors General on Integrity 

and Efficiency shall be to address integrity, economy, and effectiveness issues that 

transcend individual government agencies and increase the professionalism and 

effectiveness of personnel by developing policies, standards, and approaches to aid in the 

establishment of a well-trained and highly skilled workforce in the Offices of Inspectors 

General. 

Table 4 

provides timeliness accuracy by investigative phase.

36 GAO, Personnel Security Clearances: Progress Has Been Made to Improve Timeliness 

but Continued Oversight Is Needed to Sustain Momentum, GAO-11-65 (Washington, 

D.C.: Nov. 19, 2010).

37 From our analysis of a random sample of cases closed between January 1, 2009

through March 31, 2011, we estimate that DODIG accurately recorded the case received 

dates 30 percent of the time and accurately recorded the case closed dates 93 percent of 

the time.

38 We considered cases to have accurate dates if the dates in the database and 

supporting documentation in the actual case file matched for both the received and closed 

dates.
 

Page 21 GAO-12-362 Whistleblower Protection

Table 4: Timeliness Accuracy by Investigative Phase of Sampled Cases Closed between January 1, 2009 and March 31, 2011

Notes: 

Our random sample of 91 cases (out of a total of 871 cases closed during this time period) included 

61 inquiries closed before full investigation and 28 cases closed after a full investigation. We were 

unable to determine the investigative phase in which 2 cases were closed. 

Although data from the full sample are representative within the given parameters, any subset of 

these data cannot be assumed to be representative. That is, data specific to the cases closed before 

full investigation and the data specific to full investigation are not generalizable and apply only to the 

actual cases reviewed. 

DODIG’s data practices have inhibited its ability to accurately identify the 

age of cases and therefore also prevented it from identifying cases in 

danger of exceeding the 180 days provided for investigations by the 

Military Whistleblower Protection Act. DODIG has acknowledged it has 

problems with data reliability, calling the integrity of its data “questionable 

at best” in its October 2011 action plan for reforming the military 

whistleblower reprisal program. Further, during the course of our review, 

DODIG officials acknowledged that some of their dates for tracking cases 

were inaccurate. DODIG changed its approach starting in fiscal year 2012 

so it now accurately records total case processing time. DODIG officials

said they also planned to train investigators to ensure they consistently 

enter this information into DODIG’s database.

In addition, DODIG has not been tracking the time the separate phases of 

the investigative process take. We found that the DODIG database 

includes fields for tracking dates by phases in the process. For example, 

there are date fields for referring cases to services for investigation and 

date fields for receiving those investigations from the services, but these 

were generally not filled out. Further, DODIG was not tracking the amount 

of time between when a complaint was filed with the Defense Hotline to 

when it was assigned to an investigator. We have previously found that 

comprehensive information is needed to identify reasons for delays in 
 

Page 22 GAO-12-362 Whistleblower Protection

investigative processes.39

Congressional oversight of DODIG’s ongoing efforts to improve data 

collection and management is hindered by the lack of available timeliness 

data. According to the Standards for Internal Control in the Federal 

Government, managers should provide reliable, useful, and timely 

information for accountability of government programs and their 

operations.

DODIG officials acknowledged they can track 

timeliness data by process phases using their current systems and that 

doing so would enable them to understand the entire life cycle of military 

whistleblower reprisal investigations. Without identifying, collecting, and 

tracking accurate data, DODIG does not have reliable information to 

identify the scope of the challenge it faces with overall timeliness and 

cannot report accurate data to internal and external stakeholders, 

including data it reports in its semiannual reports to Congress. Moreover, 

DODIG may be unable to identify possible areas in the investigative 

process needing improvement, or assess the impact on timeliness of 

recent changes made to its process or of other actions taken to improve 

timeliness. During the course of our review, DODIG developed a plan to 

improve its practices associated with collecting and tracking timeliness 

information, including identifying date fields it should track, and training 

investigators to consistently enter this information. DODIG began to 

initiate these improvements starting in fiscal year 2012.

40 Although oversight is important for accountability, the IGs 

are intended to be independent and objective units, according to the 

Inspector General Act of 1978. Under the act, DODIG is not subject to 

regular organizational oversight inside DOD.41

 

39 GAO, DOD Personnel Clearances: Comprehensive Timeliness Reporting, Complete 

Clearance Documentation, and Quality Measures Are Needed to Further Improve the 

Clearance Process, 

As a result, the Office of 

the Under Secretary of Defense for Personnel and Readiness—the 

organization designated by directive to receive notifications regarding 

reprisal investigations that exceed the 180-day time period, on behalf of 

GAO-09-400 (Washington, D.C.: May 19, 2009).

40GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999).

41 According to section 3 of appendix 3 of Title 5 of the United States Code, each 

Inspector General shall report to and be under the general supervision of the head of the 

establishment involved or, to the extent such authority is delegated, the officer next in rank 

below such head, but shall not report to, or be subject to supervision by, any other officer 

of such establishment. 
 

Page 23 GAO-12-362 Whistleblower Protection

the Secretary of Defense42—cannot provide organizational oversight of 

DODIG.43 DODIG officials stated that, although other offices within DOD 

cannot provide this type of oversight, the reporting requirement acts as a 

helpful internal check for DODIG on its timeliness progress. Congress is 

therefore the primary oversight body for DODIG. DODIG is required to 

keep Congress fully and currently informed through, among other things, 

its semiannual reports to Congress. That report is required to include 

information on fraud, abuses, and deficiencies relating to the 

administration of programs and operations managed or financed by 

DOD.44 DODIG has not previously interpreted this requirement as 

applying to the military whistleblower reprisal program and does not 

provide information on military whistleblower reprisal case processing 

time, including the proportion of cases that exceed the 180-day time 

period provided by law, in the semiannual reports. However, the absence 

of timeliness information in these reports limits congressional decision 

makers’ ability to thoroughly evaluate and identify whether delays 

continue to exist within DOD’s whistleblower reprisal investigative 

process. As a result, Congress lacks information it could use to provide 

oversight of the military whistleblower reprisal program.

 

42 DOD Directive 7050.06 (July 23, 2007).

43 Department of Defense Directive 5106.01, Inspector General of the Department of 

Defense (Apr. 13, 2006), establishes that the Inspector General of the Department of 

Defense shall report to and be under the general supervision of the Secretary of Defense 

and the Deputy Secretary of Defense, but shall not report to, or be subject to supervision 

by, any other officer of the Department of Defense. The directive also states that neither 

the Secretary of Defense nor the Deputy Secretary of Defense shall prevent or prohibit the 

Inspector General of the Department of Defense from initiating, carrying out, or completing 

any audit, evaluation, inspection, or investigation, unless otherwise specified in law.

44 See 5 U.S.C. App. 3, §5 and Department of Defense Directive 5106.01, par. 5.17 (Apr. 

13, 2006).
 

Page 24 GAO-12-362 Whistleblower Protection

In an effort to improve its whistleblower program, DODIG has taken steps 

such as responding to the 2009 Department of Justice IG 

recommendations, completing an internal review, restructuring the 

organization primarily responsible for providing program oversight, and 

developing a plan of action. However, DODIG’s oversight of this program 

still faces challenges because of the lack of performance metrics, 

outdated and inconsistently followed guidance, and the lack of standard 

monitoring processes and procedures for investigative cases.

DODIG has taken steps to improve the whistleblower reprisal process, 

including acting on prior recommendations. The 2009 Department of 

Justice report highlighted weaknesses in the military whistleblower 

program and made recommendations for improvements such as creating 

and updating written policy guidance regarding whistleblower law.45

DODIG conducted an internal review, completed in 2011, to assess the 

progress it had made since beginning to take actions to address the 

findings of the Department of Justice report.46

In October 2011, DODIG developed an action plan that outlined its 

strategy to address the program weaknesses identified in the 2009 

Department of Justice report and its 2011 internal review, and has begun 

to implement that strategy. We have already mentioned some of the 

changes DODIG is undertaking based on the action plan, including 

changes to the report review processes. As part of the reform plan, 

DODIG restructured its directorate in charge of military whistleblower 

reprisal investigations in October 2011, merging it with the directorate 

responsible for civilian whistleblower reprisal investigations. One of the 

goals of this merger is to increase the consistency of reprisal 

This report made additional 

recommendations to help improve DODIG’s oversight of the 

whistleblower reprisal program, including that DODIG conduct an internal 

audit of its case tracking system to help ensure timely case processing.

 

45 U.S. Department of Justice, A Review of the Department of Defense Office of Inspector 

General’s Process for Handling Military Whistleblower Reprisal Allegations (July 2009).

46 U.S. Department of Defense Inspector General, Review of Office of Deputy Inspector 

General for Administrative Investigations, Directorate for Military Reprisal Investigations

(May 2011).

DODIG Is Taking 

Steps to Address 

Whistleblower 

Reprisal Process 

Weaknesses but 

Oversight Challenges 

Remain

DODIG Is Taking Steps to 

Address External and 

Internal Recommended 

Actions
 

Page 25 GAO-12-362 Whistleblower Protection

investigations within DOD. Additionally, the merger is intended to 

eventually create a pool of investigators that can work on both military 

and civilian reprisal cases, thereby maximizing DODIG’s flexibility to 

adjust to spikes in reprisal cases and clear any case backlogs. The 

immediate past DOD Inspector General also told us that one of the most 

significant changes he made was putting a robust new leadership team in 

place dedicated to improving the military whistleblower reprisal program 

and transforming it into a model program.

DODIG has also revised its case intake process as part of its reform 

efforts. Reprisal allegations that are made directly to DODIG rather than a 

service can come in through the Defense Hotline over the phone or using 

an automated web-based form. DODIG has made multiple changes in the 

last several years to its process for taking in and initially assessing if 

these cases qualify as reprisal cases. The 2011 internal review found that 

DODIG’s intake process was still requiring complainants to provide a 

significant amount of documentary evidence to support their reprisal 

allegations. The internal review concluded the emphasis on 

documentation at this very early stage just to determine if the allegations 

warranted investigation was inconsistent with the basic information 

required when filing complaints with the Defense Hotline. Further, the 

internal review found that the documentation demands required at this 

stage could produce an onerous burden for the complainant and were 

inconsistent with DODIG guidance. In response, DODIG is instituting 

changes to quickly assign an investigator to a case, who then makes 

direct contact with the complainant and initiates an investigation based on 

the standard that, “the alleged fact, if true, would raise the inference of 

reprisal.” 

Although DODIG has taken steps to improve its military whistleblower 

reprisal program, its ability to provide oversight continues to face key 

challenges due to the lack of performance metrics, outdated and 

inconsistently followed guidance, and inconsistent monitoring processes 

and procedures to track all reprisal allegations. According to Standards 

for Internal Control in the Federal Government, oversight mechanisms are 

an integral part of an entity’s planning, implementing, reviewing, and of 

the accountability for stewardship of government resources and achieving 

DOD’s Implementation of 

Oversight Mechanisms Is 

Not Yet Complete and 

Faces Challenges
 

Page 26 GAO-12-362 Whistleblower Protection

effective results.47

DODIG has not yet fully established performance metrics for 

whistleblower investigations although it is taking steps to do so. Federal 

internal control standards say metrics are important for identifying and 

setting appropriate incentives for achieving goals while complying with 

law, regulations, and ethical standards.

Oversight mechanisms include, among other things, 

the written policies, procedures, techniques, performance measures, and 

mechanisms that enforce management’s directives and help ensure that 

actions can be taken to address risks. While DOD’s action plan offers 

many important steps towards achieving a model whistleblower reprisal 

program, these actions are ongoing, and to date have not been fully 

implemented.

48 DODIG officials recognize the 

importance of metrics and have told us that they are currently working to 

create timeliness metrics that focus on case processing time. However, 

they have not yet formalized these metrics. We have previously found 

that timeliness alone does not provide a complete picture of an 

investigative process and that metrics on quality, such as completeness 

of investigative reports and the adequacy of internal controls, enhance 

the ability of organizations to provide assurance that it is exercising all of 

the appropriate safeguards for federal programs.49 Further, measuring 

timeliness alone may provide incentive to close cases prematurely.50

 

47 GAO, Standards for Internal Control in the Federal Government, 

For 

example, DODIG could theoretically close and report on all cases before 

they reach 180 days in order to meet the timeliness standard. However, 

meeting that standard alone would not ensure that cases were properly 

investigated. DODIG currently lacks metrics to measure quality, but 

DODIG officials recognize that metrics on quality are important and 

indicated that they plan to develop them as part of their effort to improve 

case management and outcomes. The officials said that such metrics 

could include measuring whether interviews are completed and 

GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999).

48 GAO, Internal Control Management and Evaluation Tool, GAO-01-1008G (Washington, 

D.C.: Aug. 2001).

49 GAO, DOD Personnel Clearances: Comprehensive Timeliness Reporting, Complete 

Clearance Documentation, and Quality Measures Are Needed to Further Improve the 

Clearance Process, GAO-09-400 (Washington, D.C.: May 19, 2009).

50 GAO, Whistleblower Protection: Sustained Management Attention Needed to Address 

Long-standing Program Weaknesses, GAO-10-722 (Washington, D.C.: Aug.17, 2010).

Performance Metrics 
 

Page 27 GAO-12-362 Whistleblower Protection

documented and whether conclusions made about the case are fully 

supported by evidence.

Our review of case files revealed that documents that could be used to 

support the conclusions of a case were not always present in DODIG’s 

case files. For example, according to DODIG’s investigations manual,51

Although DODIG is updating its outdated guidance related to the 

whistleblower program, the updates have not yet been formalized and the 

existing guidance is inconsistently followed. According to the framework 

set out in quality standards for investigations, organizations should 

every case file should have some sort of documented investigative 

analysis that lays out the evidence and conclusions the evidence 

supports. The level of investigative analysis we looked for in each case 

file depended on how far the case proceeded. For cases that were closed 

in the very early stages of the investigation, an oversight worksheet 

summarizing the reasons for closing a case was sufficient for the purpose 

of our file review. For cases that went to full investigation, we looked for a 

formal record of investigation. We found evidence of investigative 

analysis in 79 (87 percent) of the 91 case files. Additionally, DODIG 

requires that investigations that go beyond the initial review include a 

record of testimony from the complainant. Full investigations are also 

required to include a record of an interview with the subject. When 

reviewing the cases for this document, we found evidence of a record of 

testimony in 38 (49 percent) of the 77 cases that required it. Although we 

looked in our case file review for the types of documents that would

support DODIG’s conclusions, we did not determine whether the 

evidence in each file actually supported DODIG’s conclusions for each 

case. However, an internal DODIG review found that some cases DODIG 

adjudicated contained insufficient documentation to support the findings 

or evidence that necessary investigative steps were completed. The 

internal review team further noted that they did not disagree with the final 

outcomes of the cases, only that they could not affirm the decisions 

because the information in some of the file did not support it. Without 

clear quality metrics, DODIG will continue to lack valuable information it 

could use to improve oversight of the whistleblower reprisal investigative 

process.

 

51 DOD Inspector General Office of the Deputy Inspector General for Investigations, 

Investigations Manual Reprisal and Senior Official Cases (Mar. 2006).

Guidance
 

Page 28 GAO-12-362 Whistleblower Protection

establish appropriate written investigative policies and procedures 

through handbook, manual, directives, or similar mechanism to facilitate 

due professional care in meeting program requirements.52 Further, that 

guidance should be regularly evaluated to ensure that it is still appropriate 

and working as intended. DODIG has guidance regarding the 

whistleblower reprisal process in place but has not updated it to reflect 

changes in its investigative practices or ensured that certain provisions 

have been carried out consistently. For example, DODIG’s primary 

investigative guide distributed to investigators conducting whistleblower 

reprisal investigations has not been updated since 1996 and does not 

reflect some current investigative practices.53

 

52 Council of the Inspectors General on Integrity and Efficiency, Quality Standards for 

Investigations (Nov. 15, 2011).

The investigative guide 

directs investigators to appendices that no longer exist and states that 

whistleblower reprisal investigation reports must be completed and issued 

within 90 days of the receipt of the allegation instead of the 180 days 

provided under the statute as amended in 1998. Officials from the service 

IGs told us that the old guidance still provides them with some benefit 

regarding general investigative approaches but said that it would be 

beneficial to them if it was updated. Additionally, DODIG officials 

acknowledge that the current guidance reflects old investigative 

approaches that have since been revised, such as the investigator 

checklist, or that no longer exist. The lack of updated guidance has been 

a recurring issue for DODIG. A 2002 DODIG briefing stated that the 

investigative guide required updating and that the update was nearing 

completion. The 2009 Department of Justice IG report also found that 

guidance for service IGs had not been adequate and that DODIG could 

improve oversight of service IG work by creating and updating written 

policy guidance regarding whistleblower law, including recurring and 

emerging issues, best practices, and precedent. Moreover, the 2011 

internal review came to a similar conclusion and recommended that 

DODIG update the investigative guides to ensure consistency and 

objectivity in processing cases. DODIG indicated that it planned to revise 

its investigative guidance in both its response to the Department of 

Justice report as well as in its response to the 2011 internal review. 

DODIG officials told us that they are working with internal stakeholders to 

revise the guidance to reflect current practices and plan on updating the 

53 DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal 

and Improper Referrals for Mental Health Evaluations (Feb. 6, 1996).
 

Page 29 GAO-12-362 Whistleblower Protection

1996 investigative by the third quarter of fiscal year 2012. Without 

updated guidance on investigations, DODIG does not have a documented 

consistent investigative standard for its whistleblower program.

In addition to being outdated, DODIG’s existing guidance related to the 

whistleblower program is not consistently followed. We have reported that 

program guidance should be regularly evaluated to ensure that it is still 

appropriate and working as intended.54 The guidance related to certain 

key provisions of the investigative process is unclear, leading to 

inconsistent implementation among the service IGs. For example, the 

service IGs have adopted different interpretations of the 180-day 

reporting requirement as it is set out in the guidance. As noted earlier in 

the report, the Military Whistleblower Protection Act requires that IGs 

conducting investigations issue a report of investigation to the 

complainant and the Secretary of Defense within 180 days of the receipt 

of an allegation or provide appropriate notice if unable to do so. The law 

also requires DODIG to approve the report of investigation before the 

report is issued. Further, officials from DODIG and the service IGs 

emphasized that whistleblower reprisal cases are not closed until DODIG 

has reviewed the complaint and the evidence to support the investigators’ 

conclusions and formally agrees with the disposition of the case. 

However, DOD Directive 7050.06 sets out additional time frames for 

reporting. The directive requires the service IGs to provide DODIG with a 

report of investigation within 180 days of receiving the complaint or 

receiving a request for an investigation from DODIG and requires them to 

provide a report of investigation to the complainant and the Secretary of 

Defense not later than 30 days after the DODIG approves the report. A 

service IG could meet the first requirement but at the same time leave no 

time for DODIG to review and approve the report in time to issue it within 

the 180 days provided by law.55

 

54

As a result, the service IGs have adopted 

different interpretations of the directive’s 180-day reporting requirement. 

For example, Air Force IG officials told us that the Air Force recently 

reinterpreted the reporting requirement. The Air Force had set an internal 

goal of completing reprisal investigation within 135 days to allow 45 days 

for DODIG review and approval. However, the Air Force told us that it 

GAO-01-1008G. 

55 As noted previously, the Military Whistleblower Protection Act and DOD Directive 

7050.06 both allow alternative notification to the Secretary of Defense and the 

complainant if the 180 days provided by law are going to be exceeded. 
 

Page 30 GAO-12-362 Whistleblower Protection

now sets its internal investigation deadline to 180 days and therefore no 

longer accounts for DODIG review time. The Army IG stated that it had 

the same interpretation of the 180-day reporting requirement as the Air 

Force IG. Officials from the Navy and Marine Corps IGs told us they 

generally include DODIG review in their interpretation of the 180-day 

reporting requirement. DODIG officials are aware of some of the different 

interpretations among the services and the conflicts that exist in the 

current directive. According to DODIG, it will be sending written guidance 

to the services to reemphasize that the 180-day statutory time frame is 

prescribed as from the time the complaint is filed until the time the report 

is submitted to the complainant. DODIG reported that it will also 

incorporate the clarifying language into the directive and will begin the 

process of revising DOD Directive 7050.06 in the second quarter of 2012.

DODIG also has not been consistently adhering to standards regarding 

the maintenance of its case files and, as a result, its case files are 

generally incomplete. Quality Standards for Investigations outline 

standards related to case file management and state that the file folders 

used to document an investigation should be accurate and complete, and 

the investigative report findings and accomplishments must be supported 

by adequate documentation and maintained in the case file.56 According 

to DODIG’s standards related to the management of these files, it is 

important for case files to adequately represent the investigative work and 

evidence underlying the conclusions and recommendations in the final 

report, and to be thoroughly documented to ensure that the files will be 

able to withstand scrutiny.57 Based on a review of DODIG’s process, 

relevant statutes, directives, and other standards, and in consultation with 

DODIG officials, we identified 18 key elements that we believe should be 

present in case files to provide support for conclusions, document 

compliance with the law or directives, or help manage the case. Using our 

sample of 91 cases, we assessed the presence of the key elements as 

indicators of the completeness of the file.58

 

56 Council of the Inspectors General on Integrity and Efficiency, Quality Standards for 

Investigations (Nov. 15, 2011).

Based on the presence in the 

57 DOD Inspector General Office of the Deputy Inspector General for Investigations, 

Investigations Manual Reprisal and Senior Official Cases (March 2006).

58 Some of these elements included specific documents. For example, the Army oversight 

worksheet was a specific document. Other elements could be reflected in multiple 

documents. For example, the sequence of key events could be in a larger report, be in a 

summary, or be its own document. For further details on our methodology, see app. I.
 

Page 31 GAO-12-362 Whistleblower Protection

file of the elements we selected, we found that most of DODIG’s case 

files were incomplete (56 percent) or partially complete (38 percent) and 

only a small portion of the case files were complete (5 percent). See table 

5 for further details.

Table 5: Estimated Level of DODIG Case File Folder Completeness for Cases 

Closed between January 1, 2009 and March 31, 2011

Notes: 

Based on a review of 91 files of the original random sample of 97 for cases closed between January 

1, 2009 and March 31, 2011. 

Percentages do not add up to 100 percent due to rounding. 

We identified 18 elements and used those as indicators for the completeness of a file. However, not 

all 18 elements needed to be present in every file. For example, some of the 18 elements would only 

need to be present in a file if an investigation was conducted by a service, went beyond 180 days, or 

was a full investigation. We adjusted the required number of elements based on the specific 

circumstances of each case and calculated completeness based on that adjusted baseline. See app. 

I for further details on the scope and methodology. 

 aWe assessed a case file to be complete if it contained 85 percent or more of the documents that 

should be present. 

b

We assessed a case file to be partially complete if it contained between 70 and 84 percent of the 

documents that should be present. 

c

We assessed a case file to be incomplete if it contained less than 70 percent of the documents that 

should be present. 

We also found that the guidance regarding a key investigative question is 

unclear. According to DODIG’s investigative guide,59

 

59 DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal 

and Improper Referrals for Mental Health Evaluations (Feb. 6, 1996).

an investigation is 

complete when the four questions of the “Acid Test” have been answered 

(see fig. 2). We estimate that 65 percent of the cases closed between 

January 1, 2009 and March 31, 2011, were closed, at least in part, 

because DODIG concluded that the personnel action would have 

occurred even if the protected communication had not been made—

question 4 of the Acid Test (see app. II for further details on the reasons 
 

Page 32 GAO-12-362 Whistleblower Protection

DODIG closed cases). The departmental guidance for addressing all four 

questions instructs the investigator to investigate the complaint, and not 

the complainant, noting that investigators should avoid the tendency to 

examine the reputation, background, or performance of the complainant 

in order to determine the credibility of the complainant’s claim. However, 

in answering the fourth question, the guidance requires, among other 

things, an examination of the reasonableness of the unfavorable 

personnel action(s) taken, withheld, or threatened considering the 

complainant’s performance and conduct. DODIG officials acknowledged 

that there may be some tension between these two requirements. 

Further, in its October 2011 action plan, DODIG stated that current 

guidance for question 4 has resulted in investigators closing cases 

prematurely without fully considering whether the subject’s actions are 

consistent with actions taken in similar situations with other employees. 

As a result, DODIG officials are revising guidance for the investigative 

questions. However, until DODIG carries out these actions, the lack of 

clear guidance hinders efforts to ensure consistent program 

implementation.

DODIG officials acknowledge the importance of standard case monitoring 

processes and procedures, but currently lack such processes and 

procedures, which may hinder their ability to consistently assess the 

status of outstanding reprisal cases. According to federal internal control 

standards, monitoring of internal controls should be conducted to assess 

the quality of performance over time.60 DODIG has responsibility for not 

only conducting its own investigations, but also for overseeing and 

approving the investigations conducted by service and other component 

IGs.61

DODIG has not established standard monitoring processes and 

procedures and instead has been relying on ad hoc and inconsistent 

It can be challenging for DODIG to maintain visibility on all cases 

because a reprisal allegation can be made to and investigated by one of 

several IGs in DOD.

 

60 See: GAO/AIMD-00-21.3.1. 

61 Department of Defense Directive 7050.06 assigns those responsibilities to the DODIG

and includes, within the definition of “DOD Components”: the Office of the Secretary of 

Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the 

Combatant Commands, the Office of the Inspector General of the Department of Defense,

the Defense Agencies, the DOD Field Activities, and all other organizational entities within 

the Department of Defense.

Case Monitoring Processes and 

Procedures
 

Page 33 GAO-12-362 Whistleblower Protection

efforts. For example, some service IG officials told us that they had not 

reconciled cases with the DODIG in several years and some service IG 

officials have recently been queried about cases that date back 5 years. 

DODIG and service officials told us that DODIG had not required service 

IGs to regularly report on the status of open cases. Additionally, our file 

review included a case where the DODIG identified an investigation 

begun by a service IG 6 years prior but never closed. DODIG was unable 

to establish contact with the complainant after 6 years and later 

administratively closed the case. Although this could be an extreme case, 

it may be indicative of a larger issue dealing with the tracking and 

management of complaints. Further, DODIG officials told us that the 

review of whistleblower reprisal cases involving senior level officials had 

in the past been handled by another office within DODIG and that the 

whistleblower reprisal directorate had limited visibility on the status of 

these cases. However, according to DODIG, it changed this procedure in 

late fiscal year 2011 so that the directorate responsible for whistleblower 

reprisal investigations also investigates or oversees service reprisal 

investigations involving senior officials. Moreover, DODIG’s action plan 

outlines its approach to providing more consistent monitoring of all

reprisal cases, including investigations of senior officials that include 

reprisal allegations. The first step in this plan has been to establish a 

team of investigators dedicated to providing oversight of service 

investigations. DODIG officials told us that once this team has worked 

through the backlog of cases, it will also implement more efforts to 

consistently monitor and reconcile cases to help ensure that all reprisal 

allegations are appropriately addressed in a timely manner. Until it further 

addresses the weaknesses in its monitoring practices of military 

whistleblower reprisal cases and the challenges it faces in its other 

oversight mechanisms, DODIG cannot be sure that it is adequately 

conducting its oversight responsibilities or implementing the whistleblower 

reprisal program as intended.
 

Page 34 GAO-12-362 Whistleblower Protection

DOD’s efforts to ensure that appropriate corrective action is taken after 

investigations are completed—both for whistleblowers and against those 

who reprise against whistleblowers—are hampered by disconnected 

investigative and corrective action processes and the limited visibility of

corrective actions taken. Individuals with substantiated military 

whistleblower reprisal cases generally receive relief from the negative 

impacts caused by reprisal when they seek it from the BCMRs (80 

percent of those who apply). However, few individuals with substantiated 

cases apply to the BCMRs for relief (19.1 percent). DODIG and the 

service BCMRs are also not consistently identifying and tracking data on 

corrective action taken to undo the damage done to the complainant by 

the reprisal. Further, unreliable data regarding corrective action taken 

against the subject are hindering oversight of this key aspect of 

whistleblower protection.

Most servicemembers with substantiated cases who seek relief from 

BCMRs receive it, but few apply for relief and so the secretaries of the 

military departments and the heads of the other DOD components are not 

generally able to take action to make the complainant whole in the vast 

majority of cases. The DOD directive governing the military whistleblower 

reprisal process, DOD Directive 7050.06, includes a largely servicecentered process for obtaining corrective action that is separate from the 

investigative process centered on DODIG. Specifically, the directive 

charges the secretaries of the military departments and the heads of the 

other DOD components with taking corrective action based on the IG 

investigation.62

 

62 DOD Directive 7050.06 sections 5.3.3 and 5.4.2 (Jul. 23, 2007).

Corrective action includes: (1) any action deemed 

necessary to make the complainant whole, (2) changes in agency 

regulations or practices, (3) administrative or disciplinary action against 

offending personnel, or (4) referral to the U.S. Attorney General or courtmartial convening authority of any evidence of criminal violation. Although 

DODIG can investigate allegations of reprisal, makes all final 

determinations on investigations, and can make recommendations 

regarding appropriate corrective action, it does not have the authority to 

take corrective action, either for the complainant or against the subject. In 

order for servicemembers to receive relief from the negative impacts 

caused by reprisal—even for cases substantiated by DODIG—the law 

requires that servicemembers must file a separate application to their 

DOD Efforts to 

Ensure Corrective 

Actions Are Taken in 

Substantiated Cases 

Are Hindered by 

Disconnected 

Investigative and 

Corrective Action 

Processes and 

Unreliable Data

Few Servicemembers with 

Substantiated Cases Apply 

for the Relief Process
 

Page 35 GAO-12-362 Whistleblower Protection

service BCMR.63

For cases that servicemembers bring to the BCMRs, the Military 

Whistleblower Protection Act requires the BCMRs to review the 

whistleblower reprisal report approved by DODIG. However, BCMRs 

have authority to make independent determinations on military 

whistleblower reprisal cases and to engage in additional fact finding. 

Among other things, the statute also allows the BCMRs to request that 

DODIG or the service IGs gather additional evidence for the BCMR’s 

consideration and hold hearings, although BCMR and DODIG officials 

told us that, to their knowledge, this authority had not ever been 

exercised. Further, it is up to the BCMR to make its own determination 

whether personnel action was in reprisal and recommend to the secretary 

of the military department appropriate actions to correct the record of 

those who have been reprised against. However, BCMR officials told us 

that they put significant credence in DODIG’s findings and that their 

offices place a high priority on military whistleblower reprisal cases even 

though they make up only a small proportion of their total work.

For cases that are substantiated and those that are not, 

DODIG provides the appropriate service BCMR with the same case 

outcome notification it provides to the complainant. However, the DODIG 

notification letter does not automatically trigger a BCMR review of the 

case and/or corrective action.

64

In our review of all substantiated reprisal cases submitted to BCMRs 

between fiscal year 2006 and the first half of fiscal year 2011, we found 

that the servicemembers with substantiated whistleblower reprisal 

allegations that applied for relief were generally successful in obtaining 

some relief.65

 

63 10 U.S.C. §1034.

Eighty percent of servicemembers (20 of 25) with 

substantiated reprisal cases—closed between fiscal year 2006 through 

the first half of 2011—who sought relief from a BCMR received some sort 

of remedy (see table 6).

64 Officials from each of the BCMRs told us that they review thousands of cases a year 

and that reprisal cases in any year run in the single digits.

65 In this report, when we refer to the first half of fiscal year 2011, we mean between 

October 1, 2010 and March 31, 2011.
 

Page 36 GAO-12-362 Whistleblower Protection

Table 6: Substantiated Reprisal Cases Submitted to BCMRs and Their Outcome for 

Cases Closed between Fiscal Year 2006 and the First Half of Fiscal Year 2011

Notes: 

Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated 

by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases 

submitted to them, including case outcome. 

Data do not include cases in which, according to DODIG data, the military whistleblower reprisal 

allegations were not substantiated but an improper referral for mental health evaluation (IMHE) was 

substantiated. Including those figures boosts the total number of cases submitted to the BCMRs to 31 

and boosts the number of cases where the BCMR provided a remedy to 25, or 81 percent. 

The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from 

both Navy personnel and Marine Corps personnel. 

Two cases (one Army, one Marine Corps) in which a complainant submitted an application to a 

BCMR were not included because the BCMRs had not yet completed action on them. 

Remedy provided indicates that the complainant received at least partial remedy. It does not indicate 

that the complainants received the exact remedy they were seeking. 

a

Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and 

considered as not having received remedy although the Navy BCMR data are unclear whether or not 

it provided remedy. If the Navy BCMR provided remedy in these cases, then all Navy and Marine 

Corps substantiated whistleblower reprisal allegations brought before the BCMR received some 

remedy. 

The most common corrective action taken by the services in response to 

applications filed by complainants with substantiated military 

whistleblower reprisal allegations was amending or removing a rating 

from the complainant’s personnel record. This occurred in 14 of the 25 

substantiated cases brought to the BCMRs. For example, in 1of the cases 

a servicemember with a substantiated whistleblower reprisal case 

requested that the Army BCMR remove two ratings from his record. The 

Army BCMR decided to remove the one rating that the DODIG found was 

done in reprisal. The second most common corrective action taken by the 

services was providing payment, benefits, awards, or training that was 

denied as a result of the reprisal. This occurred in 6 of the 25 

substantiated cases brought to the BCMRs. For example, in one of the 
 

Page 37 GAO-12-362 Whistleblower Protection

cases, a servicemember was given a Bronze Star that had been denied 

to him because of a reprisal. The third most common corrective action 

taken by the services was amending or removing disciplinary actions from 

an individual’s personnel record. For example, the Air Force BCMR 

removed a letter of reprimand from a servicemember’s file that DODIG 

found was a result of an act of reprisal. This occurred in 4 of the 25 

substantiated cases brought to the BCMRs. There were also a number of 

cases where the service took more than one corrective action. For 

example, a Navy petty officer had a disciplinary action removed from his 

record, a promotion backdated, and retroactive pay instated to go along 

with the backdated promotion.

Although 80 percent of servicemembers with substantiated whistleblower 

reprisal allegations who applied for relief received some relief, only about 

1 in 5 servicemembers with whistleblower reprisal allegations 

substantiated by DODIG applied to the BCMRs for relief during the time 

period we reviewed. As shown in table 7, only 25 of the 131 (19.1 

percent) of complainants with substantiated cases submitted applications 

for relief with their BCMR. As a result, only 15 percent of servicemembers 

with reprisal allegations substantiated by DODIG received some relief 

through their BCMRs. We found that there were differences between the 

services regarding the proportion of cases submitted to the BCMRs, with 

more than half of the substantiated Navy cases being brought to the Navy 

BCMR and only approximately 1 in 10 substantiated Army cases being 

brought to the Army BCMR.

Table 7: Substantiated Reprisal Cases Submitted to BCMRs Compared to All Substantiated Cases for Cases Closed Between 

Fiscal Year 2006 and the First Half of Fiscal Year 2011
 

Page 38 GAO-12-362 Whistleblower Protection

Notes: 

Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated 

by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases 

submitted to them, including case outcome. 

Total substantiated cases do not include two cases (one Army, one Marine Corps) in which a 

complainant submitted an application to a BCMR because the BCMRs had not yet completed action 

on them. It also does not include 2 Army cases that, according to data provided by the Army BCMR, 

DODIG misidentified in their database as containing substantiated whistleblower reprisal claims when 

they had substantiated only improper referral for mental health evaluations (IMHE). 

Data does not include cases in which, according to DODIG data, the military whistleblower reprisal 

allegations are not substantiated but an improper referral for mental health evaluation (IMHE) is 

substantiated. Including those figures does not significantly impact total cases submitted—the percent 

changes from 19.1 percent to 19.0 percent. Total remedy provided is 15.3 percent in both cases. 

The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from 

both Navy personnel and Marine Corps personnel. 

There were 9 cases in which complainants did not apply to the Army BCMR for record correction 

where the BCMR could not have provided relief had the complainant applied. The BCMR could not 

have provided relief because the substantiated claim did not impact the complainant’s record. For 

example, the complainant was threatened with adverse action or was restricted from making a lawful 

communication to an IG or Member of Congress. Neither action would result in a negative impact on 

the complainant’s personnel file. Not counting these Army cases would change the Army cases 

submitted and Army remedy provided to 13.3 percent and 6.7 percent, respectively. It would also 

change the total cases submitted and total remedy provided to 20.5 percent and 16.4 percent, 

respectively. We did not identify similar circumstances for cases processed by the Air Force and Navy 

BCMRs based on the information provided by these organizations. 

Remedy provided indicates that complainants received at least partial remedy. It does not indicate 

that complainants received the exact remedy they were seeking. 

a

Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and 

considered as not having received remedy, although the Navy BCMR data are unclear whether or not 

it provided remedy. If the Navy BCMR provided remedy in these cases, then all Navy and Marine 

Corps substantiated whistleblower reprisal allegations brought before the BCMR received some 

remedy. 

Officials from DODIG, the service IGs, and the BCMRs indicated that they 

did not know the exact reason why so few servicemembers with 

substantiated reprisal allegations apply for relief. There are some cases 

for which the BCMRs cannot provide relief. For example, a BCMR cannot 

correct the record for an individual where DODIG substantiated that the 

individual was threatened with reprisal but where no actual harm was 

done to that individual’s record. Similarly, a BCMR cannot correct the 

record for an individual where DODIG substantiated that the individual 

was restricted from making a lawful communication to an IG in DOD or 

Member of Congress. We identified nine Army cases where the Army 

BCMR was not in a position to provide relief. Discounting those nine

cases would increase the percentage of servicemembers with 

substantiated claims that submitted cases to the Army BCMR from 11.1 

percent to 13.3 percent (see table 7 and associated notes for further 
 

Page 39 GAO-12-362 Whistleblower Protection

details). However, the overall impact of such cases appears to be minimal 

due to the relatively low number of substantiated cases involving only 

restriction or threats of reprisal.66 Officials from the Air Force and Army 

BCMRs also said that some servicemembers may be seeking relief from 

other lower-level service boards, such as the Air Force Evaluation Report 

Appeals Board or the Army’s Enlisted Special Review Board, even though 

servicemembers are told in their letter from DODIG to obtain relief from 

the BCMRs. The officials did not know of any such incidents but said it 

was a possibility. Data obtained from the Army BCMR shows four such 

incidents, with the other board providing relief to the servicemember in 

one of the four cases. Discounting those four cases would increase the 

percentage of servicemembers with substantiated claims that submitted 

cases to the Army BCMR from 11.1 percent to 12.0 percent.67

Service and DODIG officials also stated that the length of time it takes for 

servicemembers to get their reprisal allegations substantiated may impact 

their willingness to engage in yet another process. Servicemembers 

frequently rotate to other assignments at different locations around the 

world and so could be in a completely new work environment with a 

different chain of command by the time the reprisal investigation is 

completed. The officials also said that servicemembers may have left the 

service during the time it takes to substantiate a claim. Our case file 

review included a nongeneralizable subset of seven substantiated 

whistleblower reprisal cases that took a mean of 614 days to close and 

with a range of 439 days to 796 days. Only one of the seven 

servicemembers with a substantiated case from our file review applied for 

relief with their BCMR, and DODIG took 750 days to substantiate that one 

claim.

Based on 

these data, the impact of complainants taking cases to boards other than 

BCMR is relatively modest and does not explain the large difference 

between the number of substantiated cases and the number of cases 

brought to the BCMRs.

 

66 Our review of a random sample of case files closed between January 1, 2009 and 

March 31, 2011, found one case where restriction was substantiated and one where the 

threat of an unfavorable personnel action was substantiated. Neither complainant brought 

their case to a BCMR for review and remedy. 

67 Data obtained from the Air Force BCMR showed that the Air Force Evaluation Report 

Appeals Board provided partial remedy to one applicant who had a military whistleblower 

reprisal case substantiated by DODIG between fiscal year 2006 and the first half of 2011. 

However, that applicant also obtained additional remedy from the Air Force BCMR.
 

Page 40 GAO-12-362 Whistleblower Protection

A further factor that could impact the willingness of those with 

substantiated reprisal claims from pursuing remedy from their service 

BCMR is a lack of understanding regarding the available remedies. The 

Military Whistleblower Protection Act allows a report of investigation to 

include recommendations regarding the corrective action. According to 

DODIG’s investigative guide, recommendations should be made if there 

is a substantiated reprisal allegation. It states that recommendations can 

be general or specific but that the corrective action “should be sufficient to 

make the complainant ‘whole’ and restore the complainant to the same or 

equal status he or she would have attained if the reprisal had not 

occurred.” According to DODIG officials, DODIG used to provide detailed 

recommendations regarding what it thought would be appropriate 

remedies for the complainant. For example, the 1996 investigative guide 

includes an example of a case that recommends a specific evaluation 

report be voided and the complainant be reinstated to his former position 

or one commensurate to it. Nevertheless, DODIG’s current practice is to 

provide a more general recommendation that appropriate corrective 

action be taken. DODIG officials did not know when or why this change in 

practice occurred but acknowledged that it would be appropriate and 

helpful to provide more detailed recommendations for how to make the 

complainant whole. Without knowing more about when and how this 

practice changed, we were not able to identify if there is an association 

between the level of detail in recommendations and the proportion of 

individuals who apply to the BCMRs. However, it is reasonable to assume 

that without detailing in the investigative report the types of remedies that 

could be appropriate, the servicemember may not be aware of the full 

benefit realized by applying for relief to the BCMR.

The service BCMRs are not consistently identifying applicants who have 

substantiated reprisal cases as such and are therefore not providing all 

reprisal victims with the procedural privileges to which they are entitled. 

The Military Whistleblower Protection Act68

 

68 10 U.S.C. § 1034, as amended.

provides whistleblowers with 

unique procedural privileges that are generally not afforded to other 

applicants to the BCMRs. These privileges include:

Service BCMRs Are Not 

Consistently Identifying 

Reprisal Cases
 

Page 41 GAO-12-362 Whistleblower Protection

1. direct application for corrective action may be made to the service 

BCMR instead of first going to a lower level of administrative appeal;69

2. 180-day deadline for the BCMR to review and the secretary of the 

military department concerned to render a final decision in the case, 

which differs from other cases processed by BCMRs; and

3. right to appeal BCMR decisions to the Secretary of Defense.70

Further, according to federal internal control standards, agencies need 

operating information to determine whether they are achieving their 

compliance requirements under various laws and regulations.71 BCMR 

officials also told us that whistleblower reprisal cases are high-priority 

cases for the BCMRs, even though they receive only a few a year 

compared to the many thousands of other cases they process. They 

therefore make a special effort to track reprisal cases.72

Although the Military Whistleblower Protection Act provides unique 

procedural privileges to whistleblowers who apply to BCMRs for relief, the 

BCMRs are not consistently identifying applicants with substantiated 

whistleblower reprisal cases as such and are therefore not always aware 

 

69 The BCMRs are the highest level of administrative review in the services.

70 According to BCMR officials, servicemembers with cases that are not whistleblower 

reprisal have to challenge BCMR decisions in federal court.

71 GAO/AIMD-00-21.3.1. 

72 The service BCMRs have adopted different interpretations of what cases qualify as a 

reprisal case. DOD Directive 7050.06 requires secretaries of the military departments to 

ensure that BCMRs shall consider applications for the correction of military records at the 

request of servicemembers or former servicemembers who allege that they have been 

reprised against due to their whistleblower activity. The Air Force BCMR considers anyone 

with a reasonable whistleblower reprisal claim to be a whistleblower with the 

corresponding procedural privileges. The Army and Navy BCMRs consider only applicants 

with cases substantiated by DODIG as whistleblowers. Other cases that may include 

whistleblower allegations that are not substantiated are reviewed under each BCMR’s 

regular authority. Army officials added that, should the Army BCMR ultimately determine

that an applicant’s reprisal case has merit even if it was not substantiated by DODIG, the 

Army BCMR has the ability to invoke its authority under the Military Whistleblower 

Reprisal Act.
 

Page 42 GAO-12-362 Whistleblower Protection

when these procedural privileges should apply.73

 

73 In 

We found that the 

BCMRs did not identify 10 of the 25 applicants with whistleblower reprisal 

cases substantiated by DODIG as whistleblower reprisal cases (see table 

8). Additionally, we found in the aggregate that cases that are not 

identified as whistleblower reprisal cases took longer. This was true for 

each BCMR but was more pronounced with the Navy BCMR. Data

provided by the Navy BCMR showed that it processed in 40 days (mean) 

the six cases that were identified as reprisal in their database but took 

235 days (mean) to process four cases not identified as reprisal (see app. 

III). Between those cases identified as reprisal and those that were not, 

we did not observe a difference in overall proportion of applicants who 

were provided remedy by the BCMRs. However, complainants who do 

not receive remedy or are not satisfied by the remedy they received from 

the BCMR and who the BCMR did not identify as a whistleblower reprisal 

case are not informed of their right to appeal to the Secretary of Defense. 

Instead, these individuals are treated as non-whistleblower applicants and 

so told that their administrative appeals options have been exhausted 

within the service, unless they have new information to provide to the 

BCMRs. The applicants are also advised that they may seek remedy in a 

court of appropriate jurisdiction.

GAO/NSIAD-95-23, Whistleblower Protection: Continuing Impediments to Protection 

of Military Members (February 1995), we reported that at that time BCMRs were unable to 

identify any specific whistleblower cases because they were not uniquely coding them. As 

a result of a settlement in a 1977 court action, DOD and service directives required the 

BCMRs to establish a single index system for all BCMR cases except those involving 

characterizations of discharge. The system was 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. We therefore recommended that the BCMRs 

establish the required code. According to Army BCMR officials, in 2002 the court 

approved DOD’s request to discontinue standardized BCMR indexing of cases because 

the new data systems used by the BCMRs fulfilled the underlying purpose for the court 

order.
 

Page 43 GAO-12-362 Whistleblower Protection

Table 8: Comparison of Substantiated Cases Identified and Not Identified as 

Reprisal by the BCMRs (for Cases Closed between Fiscal Year 2006 and the First 

Half of Fiscal Year 2011)

Notes: 

Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated 

by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases 

submitted to them, including case outcome. 

The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from 

both Navy personnel and Marine Corps personnel. 

Two cases (one Army, one Marine Corps) in which a complainant submitted an application to a 

BCMR were not included because the BCMRs had not yet completed action on them. 

Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and 

considered as not having received remedy, although the Navy BCMR data are unclear whether or not 

it provided remedy. The Marine Corps case was not identified by the Navy BCMR as being a military 

whistleblower reprisal case. The Navy case was identified as a military whistleblower reprisal case. 

A more detailed table by service can be found in app. III. 

Remedy provided indicates that the complainant received at least partial remedy. It does not indicate 

that the complainant received the exact remedy they were seeking. 

We identified two factors that may impact the ability to consistently 

identify substantiated military whistleblower reprisal cases across all of 

the service BCMRs. First, service BCMR officials told us that they may 

not be properly identifying all whistleblower reprisal cases in their case 

tracking system because it is not always readily apparent on a 

complainant’s application that it is a whistleblower case. The form used 

by whistleblowers to apply for relief from a BCMR is the same general 

form used by all applicants to the BCMRs. This form requires a narrative 

description and does not have a special indicator, such as a checkbox, to 

identify the case as a whistleblower reprisal case. The officials said that 

their intake organizations and reviewers could therefore miss that an 

applicant is a whistleblower if the applicant did not explicitly mention it. 
 

Page 44 GAO-12-362 Whistleblower Protection

Second, the different approaches service BCMRs take to DODIG 

notifications of substantiated cases they receive may also impact how 

consistently they identify military whistleblower reprisal cases. The 

success of identifying military whistleblower reprisal cases varies by 

service BCMR, with the Army properly identifying 83 percent of the cases 

(5 of 6), the Navy identifying 60 percent of the cases (6 of 10), and the Air 

Force identifying 44 percent of the cases (4 of 9) for cases closed 

between fiscal year 2006 and the first half of fiscal year 2011 (see app. 

III). Army BCMR officials told us that a method they used to identify 

military whistleblower reprisal cases is to create an electronic case file for 

every substantiated case notification they receive from DODIG. Although 

they immediately close the case in the database, it acts as a flag to 

identify a case as a whistleblower reprisal case should a complainant 

apply to the Army BCMR for relief. The Air Force and Navy BCMRs do 

not have a similar procedure. By not properly identifying a significant 

proportion of whistleblower reprisal cases as reprisal cases, the BCMRs 

are not providing all whistleblower applicants with the unique procedural 

privileges afforded them by law.

DODIG lacks reliable data on the corrective action taken in response to 

substantiated whistleblower reprisal cases, which limits the visibility and 

oversight DOD and Congress have of the final portion of the military 

whistleblower reprisal process. According to federal internal control 

standards, oversight mechanisms are an integral part of an entity’s 

planning, implementing, reviewing, and accountability for stewardship of 

government resources and achieving effective results.74

 

74

Oversight 

mechanisms include the policies, procedures, techniques, and 

mechanisms that enforce management’s directives and help ensure that 

actions are taken to address risks. The impact of whistleblower reprisal 

investigations comes with the corrective actions taken in response to 

substantiated cases. Additionally, the 2009 Department of Justice review 

recommended that the results of investigations that substantiate 

allegations of reprisal be publicized as a way to heighten awareness 

within the services of the Military Whistleblower Protection Act, to 

potentially deter future incidents of reprisal, and to possibly encourage 

other reprisal victims to come forward.

GAO/AIMD-00-21.3.1. 

Unreliable Data Limits 

Visibility and Oversight of 

Corrective Action
 

Page 45 GAO-12-362 Whistleblower Protection

While DODIG cannot directly take corrective action in response to a 

substantiated case, it is the focal point for DOD’s military whistleblower 

reprisal program and is well positioned to collect and monitor data 

regarding program outcomes. DODIG has a directorate dedicated 

primarily to whistleblower reprisal allegation investigations and 

designated to receive information from the military departments on 

corrective action, so is well positioned not only to collect the information 

on corrective action but also to use that information to help enhance 

oversight of the military whistleblower reprisal process and ensure that it 

is achieving effective results. DODIG officials stated that because DODIG 

is the focal point for DOD’s military whistleblower reprisal activities, it is 

important for them to have visibility and information of all military 

whistleblower reprisal activities, not only to provide oversight but also to 

provide a central place within the department where internal and external 

stakeholders can obtain information. They explained that they would want 

to know, for example, if complainants were having difficulty obtaining 

corrective action so that they could try to address such a problem. They 

also noted that it was important to have complete data since Members of 

Congress come to DODIG for information on military whistleblower 

reprisal activities. The officials emphasized that understanding the 

relevance of their investigative work depends on knowing what corrective 

action was taken in response to that work.

Although DODIG officials acknowledge the importance of information on 

corrective action, the service BCMRs are not consistently reporting and 

DODIG is not maintaining data on the actions BCMRs take in response to 

reprisal cases. DOD Directive 7050.06 requires the secretaries of the

military departments to notify DODIG and the service IG concerned of 

decisions in regards to applications from whistleblower reprisal 

complainants for the correction of military records.75

 

75 DOD Directive 7050.06, Section 5.3.8 (July 23, 2007).

BCMR officials told 

us that they are supposed to provide this notification on behalf of the 

service secretary but have not been consistently carrying out this 

responsibility. DODIG officials also told us that they are not aware of 

receiving any BCMR reports regarding case outcomes. However, DODIG 

also did not follow up with the services regarding this information because 

it had chosen not to track this information. DODIG therefore has had no 

visibility into or oversight capacity for this portion of the military 

whistleblower reprisal program. During the course of our review, however, 
 

Page 46 GAO-12-362 Whistleblower Protection

DODIG officials acknowledged that they should be collecting and 

monitoring information on corrective action provided to whistleblowers 

and stated that they would begin doing so as part of their ongoing reforms 

to the whistleblower reprisal process.

DOD has a separate process for taking and tracking corrective action 

against those who have reprised against whistleblowers—also called 

command action. DOD Directive 7050.06 directs the secretaries of the 

military departments and the heads of the other DOD components to take 

corrective action based on the IG reports of investigations of military 

whistleblower reprisal allegations, and to notify DODIG of the action taken 

within 10 working days.76

While DOD Directive 7050.06 ultimately places responsibility for taking 

corrective action on the secretaries of the military departments based on 

the DODIG findings, it is up to a subject’s military commanding officer to 

determine whether command action against the subject is appropriate, 

and if so, what form it should take. Military commanders are responsible 

for good order and discipline in their commands, and they have a number 

of judicial and administrative options at their disposal. DODIG officials told 

us that if a commander takes action against a subject in a military 

whistleblower reprisal case, it is largely, if not exclusively, an 

administrative action. Administrative actions are the least severe of the 

categories of command action available to the commander and can range 

from verbal counseling to written reprimands and demotion.

Further, DODIG requires that the service IGs 

report back to DODIG on command action taken against the subject—the 

individual alleged to have reprised against a whistleblower—according to 

officials from these organizations. DODIG records command action taken 

in its database and has reported in its semiannual reports to Congress 

examples of command action taken in response to substantiated military 

whistleblower reprisal claims.

Although DODIG has an important role in collecting information on and 

monitoring command action taken against subjects in response to 

substantiated whistleblower reprisal cases, DODIG has not been 

maintaining in its database reliable information on command action 

needed to fulfill this role. Specifically, DODIG data on command action 

indicates that almost half of all substantiated cases (40 percent) that were 

 

76 DOD Directive 7050.06 Sections 5.3.3 and 5.4.2 (July 23, 2007).
 

Page 47 GAO-12-362 Whistleblower Protection

closed from October 1, 2005 through March 31, 2011, were awaiting 

reports from the services regarding the command action taken. According 

to most of the service IGs, they are diligent in providing command action 

information to DODIG on a timely basis. Data provided by the services 

showed that there were no cases pending follow-up action but we 

determined that the service data were not reliable enough for our 

purposes. However, DODIG officials also acknowledged that their 

information on command action was incomplete and that they were taking 

steps to both supplement data on existing closed cases and collect and 

maintain reliable data for command action taken in response to future 

substantiated cases. Until DODIG has reliable data on corrective action, 

DOD and Congress will be hindered in their ability to provide oversight of 

the corrective action portion of the military whistleblower reprisal program.

Whistleblowers play an important role in safeguarding the federal 

government against waste, fraud, and abuse, and Congress has enacted 

legislation to provide military whistleblowers with protections against 

reprisal. The requirements of the Military Whistleblower Protection Act 

provide complainants with a means to redress wrongs committed against 

them as a result of their whistleblowing; establish processes for holding 

subjects accountable; and provide the Secretary of Defense and decision 

makers with visibility over the military whistleblower reprisal investigative 

process and its outcomes. Recognizing problems with the process, and in 

response to its own internal review and a Department of Justice report it 

requested, the DODIG has expressed a renewed commitment to meeting 

the statutory timeliness and reporting requirements and ensuring quality 

investigations. Further, it has taken some steps to achieve these goals 

and to improve oversight of its investigations into allegations of reprisal 

against whistleblowers. Additional actions are needed, however. For 

example, recording, collecting, and tracking accurate, relevant data on 

case processing times would aid DOD in its efforts to identify 

inefficiencies or challenges to meeting timeliness requirements and in 

reporting to internal and external stakeholders. Finalizing the 

development and implementation of performance metrics for 

whistleblower reprisal investigations, such as ensuring case files contain 

evidence sufficient to support conclusions, would provide DOD with a 

means of ensuring that DOD is meeting its own standards for completing 

quality investigations. In addition, oversight actions—such as updating 

and adhering to the guidance governing investigations—could help 

improve the quality and oversight of reprisal cases. Finally, the overall 

purpose of DOD’s whistleblower reprisal program is to identify 

servicemembers who have been reprised against, make them whole, and 

Conclusions
 

Page 48 GAO-12-362 Whistleblower Protection

ensure that there are appropriate consequences for those who reprised 

against the whistleblower. This could be furthered if the DODIG and the 

service BCMRs develop processes and procedures to facilitate 

consideration of all substantiated allegations by the appropriate service 

BCMR. Increasing the completeness and reliability of data on corrective 

action could also provide DOD and Congress with information they need 

for oversight. Without addressing these issues, military whistleblowers 

may not be getting the full protection and resolution they deserve and 

DOD may not be reaping the full benefits whistleblowers could provide 

the department.

To assist DOD with improving processing times of these investigations, 

we recommend that the Secretary of Defense work in coordination with 

DODIG to:

• implement policies and procedures to ensure accurate and complete 

recording and consistent tracking of total case processing time and 

processing time for various phases of the investigation;

• track and analyze timeliness data to identify reforms that could aid in 

processing cases within the 180 days provided by law; and

• regularly report to Congress on the timeliness of military whistleblower 

reprisal investigations, including the number of cases exceeding the 

180 days provided by law. DODIG could do so in its semiannual 

reports.

To assist DOD in improving oversight over the whistleblower reprisal 

investigative process, we recommend that the Secretary of Defense work 

in coordination with DODIG to:

• develop and implement performance metrics to ensure the quality and 

effectiveness of the investigative process, such as ensuring that the 

case files contain evidence sufficient to support the conclusions;

• update whistleblower reprisal investigative guidance and ensure that it 

is consistently followed, including clarifying reporting requirements, 

responsibilities, and terminology; and

• consistently monitor the status of whistleblower reprisal investigations.

DODIG should work in close consultation with the service IGs when 

implementing these recommendations.

To better ensure that whistleblowers obtain the relief they are due, we 

recommend that the Secretary of Defense work in coordination with 

DODIG to identify best practices and develop the necessary processes 

Recommendations for 

Executive Action
 

Page 49 GAO-12-362 Whistleblower Protection

and procedures to ensure that all whistleblower reprisal allegations 

substantiated by DODIG are considered under the whistleblower statute 

by the appropriate service BCMR. For example, DODIG could provide 

more detailed recommendations regarding corrective action for the 

complainant. DODIG should work in close consultation with the service 

IGs and the BCMRs when implementing this recommendation.

To ensure that the BCMRs are treating military whistleblower reprisal 

cases appropriately, given the unique procedural privileges provided by 

the Military Whistleblower Protection Act, we recommend that the 

Secretary of Defense direct the secretaries of the military departments to 

take action to ensure that military whistleblower cases are correctly 

identified and processed by the BCMRs. Such actions could include 

modifying the form used to apply to the BCMR; additional training so that 

BCMR staff can better identify cases; or developing methods for 

identifying cases for which the BCMRs have received DODIG 

substantiated case notifications.

To assist DOD in improving oversight of all corrective action taken in 

response to substantiated military whistleblower reprisal claims, including 

command action, we recommend that the Secretary of Defense work in 

coordination with DODIG to:

• establish standardized corrective action reporting requirements;

• consistently track and regularly reconcile data regarding corrective 

action; and

• regularly report to Congress on the frequency and type of corrective 

action taken in response to substantiated reprisal claims. DODIG 

could do so, for example, in its semiannual reports to Congress.

DODIG should work in concert with the service IGs and BCMRs when 

implementing these recommendations.

In commenting on a draft of this report, DOD concurred with each of our 

recommendations. DOD’s comments are reprinted in appendix IV. DOD 

also provided technical comments, which we considered and incorporated 

where appropriate.

In concurring with our recommendations that DODIG implement policies 

and procedures to ensure accurate and complete tracking of total case 

processing times and processing time for various phases of the 

investigation, track and analyze timeliness data, and regularly report to 

Agency Comments 

and Our Evaluation
 

Page 50 GAO-12-362 Whistleblower Protection

Congress on the timeliness of military whistleblower reprisal 

investigations, DOD stated that DODIG recognized the necessity of 

policies and procedures to ensure accurate and complete tracking of 

processing time for all phases of investigations and was taking multiple 

steps to address the GAO recommendations. These steps include 

modifying internal processes and updating policy manuals, redesigning 

the case management database, relying on data analysis to evaluate 

reforms and identifying further reforms, and reporting timeliness data to 

Congress. We believe that these steps, when fully implemented, could 

provide the department and the Congress with enhanced visibility over 

the status of military whistleblower reprisal investigations.

In concurring with our recommendations that DODIG develop and 

implement performance metrics, update and consistently follow guidance, 

and consistently monitor the status of military whistleblower reprisal 

cases, DOD stated that DODIG is taking steps to address each one of 

these areas, including revising its manual for administrative investigations 

to include clearly defined performance metrics, the required contents of 

investigative case files, as well as defining reporting requirements, 

responsibilities, and relevant terminology. It has also established a new 

oversight team which reviews and approves the determinations reached 

by the service IGs. DODIG is also in the process of establishing 

procedures that will directly monitor the progress of investigations and 

track command actions taken. We believe that the steps that DOD noted 

in its response could improve DOD’s means of ensuring that DOD is 

meeting its own standards for completing quality investigations. 

In concurring with our recommendation that DODIG, in close consultation 

with the service IGs and the BCMRs, identify best practices and develop 

the necessary process and procedures to ensure that all substantiated 

military whistleblower reprisal cases are considered by the appropriate 

BCMR, DOD stated that the mentioned organizations will begin meeting 

together within the next six weeks to identify best practices and develop 

an effective way forward. We acknowledge the department’s stated 

commitment to these steps and encourage it to work toward the broad 

range of recommended steps, including that DODIG provide more 

detailed recommendations regarding corrective action for complainants.

In concurring with our recommendation that the service BCMRs take 

action to ensure that military whistleblower reprisal cases are correctly 

identified and processed by the BCMRs, DOD stated that the BCMRs will 

consider how to best ensure that whistleblowers with substantiated 

reprisal complaints are provided with all the information they need to 
 

Page 51 GAO-12-362 Whistleblower Protection

determine if an application to a BCMR is appropriate. Although providing 

information to whistleblowers is a positive step, this alone will not address 

our finding that the service BCMRs are not consistently identifying 

applicants who have substantiated reprisal cases as such and are 

therefore not providing all reprisal victims with the procedural privileges to 

which they are entitled. Our recommendation included examples of 

possible actions the BCMRs could take to ensure that they are correctly 

identifying cases, including modifying the application form, additional 

training for BCMR staff, or developing methods for using the DODIG 

notification to BCMRs of substantiated cases as a way to flag military 

whistleblower reprisal cases, much like the Army BCMR does. We believe 

that improving the BCMRs’ ability to properly identify substantiated 

military whistleblower reprisal cases could help to ensure that such cases 

are properly considered under the military whistleblower statute by the 

appropriate service BCMR. 

In concurring with our recommendations that DODIG establish 

standardized corrective action reporting requirements, track and reconcile 

such data, and regularly report such information to Congress, DOD 

indicated that DODIG is redesigning its case management database to 

better enable it to record and report on such information. The overall 

purpose of DOD’s whistleblower reprisal program is to identify 

servicemembers who have been reprised against, make them whole, and 

ensure that there are appropriate consequences for those who reprised 

against the whistleblower. We believe that the department’s stated 

commitment to collecting and maintaining reliable data on corrective 

action—both for the remedies provided to complainants and command 

actions taken against subjects—and also regularly reporting such 

information to Congress could enhance oversight of the outcomes of the 

military whistleblower reprisal program.

We are sending copies of this report to the appropriate congressional 

committees. We are also sending copies to the Secretary of Defense. In 

addition, the report is available at no charge on the GAO website at 

http://www.gao.gov. 
 

Page 52 GAO-12-362 Whistleblower Protection

If you or your staff have any questions about this report, please contact 

me at (202) 512-5257 or merrittz@gao.gov. Contact points for our Offices 

of Congressional Relations and Public Affairs may be found on the last 

page of this report. GAO staff who made key contributions to this report 

are listed in appendix V.

Zina Merritt

Director

Defense Capabilities and Management
Appendix I: Scope and Methodology

Page 53 GAO-12-362 Whistleblower Protection

During our review of the Department of Defense’s (DOD) military 

whistleblower reprisal program, we reviewed relevant documentation, 

gathered and assessed data, and met with representatives from 

numerous agencies, including the DOD Inspector General (DODIG), and 

Inspector General (IG) officials from the services (Army, Navy, Air Force, 

and Marine Corps).Table 9 lists all of the organizations we met with 

during our review. To determine DOD’s process for investigating military 

whistleblower reprisals cases, we reviewed documents outlining 

investigative processes of DODIG and service IGs, including DODIG’s 

investigative guide, and agency briefings and memoranda, and we spoke 

with officials from those organizations.1

Table 9: Organizations Met with During Review 

Organization Interviews conducted

DODIG The Inspector General of the Department of Defense, Administrative 

Investigations, Office of Communications and Congressional Liaison, 

Whistleblower Reprisal Investigations Directorate,a

Army 

Office of General 

Counsel, Office of Whistleblowing and Transparency

Department of the Army Inspector General, Army National Guard 

Bureau Inspector General, U.S. Army Forces Command Inspector 

General, Army Board for Correction of Military Records

Air Force Secretary of the Air Force Inspector General, Air Combat Command 

Inspector General, Air Force Reserve Command Inspector General, 

Global Strike Command Inspector General, Pacific Air Forces 

Inspector General, US Air Forces Europe Inspector General, 11 Wing 

Inspector General, Air Force Board for Correction of Military Records

Navy Naval Inspector General; Commander, Navy Installations Command 

Inspector General; U.S. Fleet Forces Command Inspector General; 

Commander, Navy Reserve Forces Command Inspector General; 

Board for Correction of Naval Records

Marine Corps Marine Corps Inspector General, Marine Corps Training and Education 

Command Inspector General, Marine Corps Third Marine Aircraft Wing 

Inspector General

Office of the 

Secretary of 

Defense 

Office of the Under Secretary of Defense for Personnel and Readiness 

– Enterprise Services

Source: GAO.

a

 

1 DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal 

and Improper Referrals for Mental Health Evaluations, (Feb. 6, 1996).

DODIG formed the Whistleblower Reprisal Investigations directorate during the course of our review 

when it merged the Military Reprisal Investigations and Civilian Reprisal Investigations directorates. 

We had previously met with the Military Reprisal Investigations directorate. 

Appendix I: Scope and Methodology
Appendix I: Scope and Methodology

Page 54 GAO-12-362 Whistleblower Protection

Two primary sources of data used in several of our objectives were 

military whistleblower reprisal data from DODIG’s database and from a 

random selection of DODIG closed military whistleblower reprisal case 

files. DODIG provided us with information for all military whistleblower 

reprisal cases opened and closed between fiscal year 2006 and the first 

half of fiscal year 2011 from the two databases they used to record these 

data.2 We combined the information from the two databases into one 

complete dataset, eliminating duplicate cases as per directions provided 

by DODIG. We also consulted with DODIG officials to ensure that we 

were properly identifying the various data elements. In addition, we based 

our case file selection on the consolidated dataset of DODIG military 

whistleblower reprisal data. Specifically, a GAO statistician determined 

that a random sample of 97 cases from a list of the 871 military 

whistleblower reprisal cases DODIG closed between January 1, 2009 and 

March 31, 2011, would be appropriate. Our sample size of 97 cases was 

chosen to be generalizable, with a margin of error of 10 percentage points 

at the 95 percent confidence level for percentage estimates. We chose 

this time period because it represented DOD’s most recent efforts and 

because DODIG had these files on site.3

 

2 At the time DODIG provided us the data, it kept information on reprisal cases in two 

databases. DODIG used the CASES database to record information for all cases that it 

investigated and those cases that went to full investigation. DODIG used the separate 

Service IG Reprisal Case (SIRC) database to record information on military whistleblower 

reprisal cases reviewed by the service IGs. However, if those service cases went to full 

investigation, DODIG would close the case in SIRC and reopen the case in CASES. In 

October 2011, DODIG began phasing out the use of its SIRC database by recording 

information on all new cases in its CASES database. Although DODIG used two 

databases to record information, in this report we generally refer to the information from 

these databases as data from the DODIG database (singular). 

Based on our review of 

whistleblower reprisal policies and procedures, we created a data 

collection instrument to identify the key characteristics of whistleblower 

reprisal cases, check the data reliability of the database information, and 

assess the completeness of files. We also developed a standard 

approach to reviewing files to ensure we reviewed all cases consistently. 

We refined this data collection instrument and our approach by first 

reviewing 12 case files that were not part of the 97 identified. Our 

methodology for reviewing the random sample required two analysts to 

review each case file, enter the information for each field in the data 

collection instrument, and transfer their information for each case to a 

3 DODIG officials stated that their file retention policy is to keep files on site for the current 

year and the 2 previous calendar years before files are sent to an off-site archive.
Appendix I: Scope and Methodology

Page 55 GAO-12-362 Whistleblower Protection

central spreadsheet. We compared the two scores for each case, and 

highlighted the elements for which there was disagreement. Reviewers 

discussed the areas of disagreement and resolved any differences by 

identifying the necessary evidence in the case files. During the course of 

the case file review, our original sample size was reduced from 97 to 91 

because 3 of the cases were found to be ongoing investigations, 2 cases 

were not military whistleblower reprisal cases, and DODIG could not 

locate 1 of the case files. However, this reduced sample is still 

generalizable, with an 11 percent margin of error at the 95 percent 

confidence level. Case file review results based on probability samples 

are subject to sampling error. The sample we drew for our case file 

review is only one of a large number of samples we might have drawn. 

Because different samples could have provided different estimates, we 

express our confidence in the precision of our particular sample results as 

a 95 percent confidence interval. This is the interval that would contain 

the actual population values for 95 percent of the samples we could have 

drawn. As a result, we are 95 percent confident that each of the 

confidence intervals in this report will include the true values in the study 

population. The margin of error associated with the confidence intervals 

of our case file review proportion estimates is no more than plus or minus 

11 percentage points at the 95 percent level of confidence. The margin of 

error for any mean values based on our case file review will vary 

depending on the variability of the data and so is reported along with the 

mean.

In order to determine the extent to which DOD is meeting timeliness 

requirements for investigating military whistleblower reprisals, we 

reviewed relevant documents including The Military Whistleblower 

Protection Act, and its implementing directive on military whistleblower 

protections, DOD Directive 7050.06, Military Whistleblower Protection

(Jul. 23, 2007). To identify possible challenges DOD faces in meeting 

these requirements, we reviewed key documents, including internal 

agency memos and briefings; the July 2009 Department of Justice 

Inspector General report; A Review of the Department of Defense Office 

of Inspector General’s Process for Handling Military Whistleblower 

Reprisal Allegations; and DODIG’s May 2011 Review of the Office of 

Deputy Inspector General for Administrative Investigations, Directorate for 

Military Reprisal Investigations. We also reviewed the 2010 DODIG report 

to Congress on progress made regarding recommendations from the 

Department of Justice review, and DODIG’s October 2011 action plan in 

order to identify the steps DODIG has taken to address timeliness 

challenges. In order to determine if DOD was meeting statutory timeliness 

and reporting requirements, we conducted analysis of 91 randomly
Appendix I: Scope and Methodology

Page 56 GAO-12-362 Whistleblower Protection

selected case files for cases closed between January 1, 2009 and March 

31, 2011, (see above) and recorded the opening and closing dates 

indicated in the documentation for each case. We further reviewed those 

case files for evidence regarding timeliness reporting requirements. In 

order to determine the reliability of timeliness information in DODIG’s 

database, we compared the opening and closing dates we determined by 

reviewing the case files to the opening and closing dates recorded for 

those cases in DODIG’s database. We conducted checks to see whether 

DODIG database timeliness fields were filled out to determine if DODIG 

had reliable information on the time it takes to complete various 

investigative phases. In addition, we spoke with officials from DODIG and 

officials from the service IGs and the Office of the Under Secretary of 

Defense for Personnel and Readiness – Enterprise Services regarding 

timeliness issues, including compliance with timeliness reporting

requirements.

In order to assess DODIG’s actions to address overall process internal 

controls, we interviewed and discussed with DODIG officials their efforts 

to improve oversight of the whistleblower reprisal program. We also 

examined DODIG documents, including an internal review of the 

whistleblower reprisal program as well as their action plan to address 

oversight weaknesses. To assess DOD’s oversight mechanisms used to 

safeguard the whistleblower reprisal investigative process, we reviewed 

key DOD guidance as well as relevant statutes and federal internal 

control guidance to include: the Military Whistleblower Protection Act 

codified at 10 U.S.C. § 1034, as amended, and DOD Directive 7050.06, 

Military Whistleblower Protection (Jul. 23, 2007); DOD Inspector General 

Office of the Deputy Inspector General for Investigations - Investigations 

Manual; GAO’s Standards for Internal Control in the Federal Government; 

and the Council of the Inspectors General on Integrity and Efficiency, 

Quality Standards for Investigations, and discussed with DODIG officials 

their current practices. To assess DOD’s adherence to its investigative 

process, we reviewed and discussed the DOD guidance mentioned 

above as well as the 1996 Inspector General Departmental Guidance 

(IGDG). In order to assess the completeness of DODIG’s military 

whistleblower reprisal case files, we reviewed 91 randomly selected case 

files for cases closed between January 1, 2009 and March 31, 2011, (see 

above). To assess case file completeness, we reviewed DODIG’s 

process, governing statute, directives, and other guidance and consulted 

with DODIG officials and identified 18 elements that we believe should be 

in case files. These 18 elements are necessary to either support the 

conclusions reached in the case, indicate compliance with the law or 

directive, or manage the case to include internal communication not 
Appendix I: Scope and Methodology

Page 57 GAO-12-362 Whistleblower Protection

specifically outlined by law or directive. The 18 elements we included for 

our case file review are the following:

1. Table of Contents Sheet

2. Database Coversheet

3. Investigation Oversight Worksheet

4. Correspondence between DODIG and 

the Service regarding the final outcome 

of the case

5. Correspondence between DOD and the 

complainant acknowledging receipt of 

the complaint

6. Correspondence between DOD and the 

complainant informing them of the 

outcome of the case

7. Investigation Analysis

8. Sequence of Key Events

9. Notification to DODIG from the Service 

IG that received the complaint

10. Interview Transcripts

11. Legal Review

12. Correspondence between DODIG and 

the Secretary of Defense regarding the 

final outcome of full investigations

13. Record of Corrective Action Taken

14. Army Oversight Worksheet

15. Correspondence between DODIG and 

the Secretary of Defense regarding 

investigations taking longer than 180 

days

16. Correspondence between DODIG and 

the complainant regarding 

investigations taking longer than 180 

days

17. Correspondence between DODIG and 

Congress acknowledging receipt of 

inquiry

18. Correspondence between DODIG and 

Congress informing them of the final 

outcome of the case

Some of these elements included specific documents. For example, the 

Army oversight worksheet (item 14 above) was a specific document. 

Other elements could be reflected in multiple documents. For example, 

the sequence of key events (item 8 above) could be in a larger report, be 

in a summary, or be its own document. Once we established the list, we 

further consulted with the director of DODIG’s directorate responsible for 

conducting military whistleblower reprisal investigations to ensure that the 

elements selected were appropriate indicators of file completeness. The 

18 elements were included in the data collection instrument and we used 

the methodology described above to gather information on these 

elements from the file. The completeness of each case file was 

determined individually since not all 18 elements were necessary in every 

case. For example, some of the 18 elements would only need to be 

present in a file if an investigation was conducted by a service, went 

beyond 180 days, or was a full investigation. We adjusted the required 

number of elements based on the specific circumstances of each case 

and calculated completeness based on that adjusted baseline. We 

categorized the case files as either complete (files with at least 85 percent 

of the case-specific elements present), partially complete (files with 
Appendix I: Scope and Methodology

Page 58 GAO-12-362 Whistleblower Protection

between 70 and 84 percent of the case-specific elements present), or 

incomplete (files with less than 70 percent of the case-specific elements 

present). To assess DODIG’s monitoring of whistleblower reprisal 

investigations, we interviewed officials from DODIG as well as the IGs in 

each of the services.

In order to determine the roles and responsibilities of DODIG and the 

military services in providing corrective action, including the processes 

and procedures used by the Boards for Correction of Military Records 

(BCMRs) to provide relief to servicemembers who were reprised against, 

we reviewed applicable laws and regulations, including the Military 

Whistleblower Protection Act and DOD Directive 7050.06, and spoke with 

officials from DODIG, the service IGs, the three service BCMRs, and the 

Office of the Under Secretary of Defense for Personnel and Readiness – 

Enterprise Services. In order to determine the extent to which 

servicemembers with substantiated cases apply for and receive relief 

from the service BCMRs, we compared a list of military whistleblower 

reprisal claims substantiated by DODIG between fiscal year 2006 and the 

first half of fiscal year 2011 to information in the databases of the service 

BCMRs. We created the list of substantiated military whistleblower 

reprisal claims from the database data provided by DODIG for cases 

closed between fiscal year 2006 and the first half of fiscal year 2011 and 

created a data collection instrument. We then went to each of the three 

service BCMRs with a list of substantiated cases specific to each BCMR’s 

service. BCMR officials reviewed their database and provided resultant 

information for each individual case, which we then recorded in the data 

collection instrument. We also used the data collection instrument to 

identify the extent to which the service BCMRs were identifying military 

whistleblower reprisal cases as such in their case tracking system, the 

processing times for such cases, and the actions taken by the BCMRs to 

provide remedy to the complainant. In order to determine the reliability of 

the data, we spoke with BCMR officials to determine how the data in their 

database are processed. We also reviewed the data and performed logic 

checks. We found that the data were sufficiently reliable for our purposes. 

In order to identify the extent to which DODIG was tracking the relief 

provided to military whistleblowers, we spoke with officials from DODIG 

and the service IGs. In order to determine the extent to which the services 

took command action against those who have reprised against military 

whistleblowers, we reviewed DODIG data for cases closed between fiscal 

year 2006 and the first half of fiscal year 2011. We also obtained 

information from the service IGs regarding command action for all cases 

closed between January 1, 2009 and March 31, 2011. We chose this time 

frame based on the data retention practices of the service IGs. We 
Appendix I: Scope and Methodology

Page 59 GAO-12-362 Whistleblower Protection

determined the reliability of the DODIG and service IG data on relief by 

comparing them and through discussions with the officials and 

determined that the data were not reliable enough for our purposes.

In order to describe the military reprisal caseload for the period we 

reviewed, we obtained a copy of data from DODIG’s database using the 

method described above. We assessed the reliability of the data, and 

then coded and derived statistical output.4

We conducted this performance audit from April 2011 through February 

2012 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.

We determined some to be 

reliable for our purposes, including the number of closed complaints, 

cases closed before full investigation, and not substantiated or 

substantiated cases. Other data were found to be not reliable enough for

our purposes because they were either inaccurate or incomplete. To 

obtain additional information about DODIG’s caseload, we conducted a 

case file review of military reprisal cases using the method described 

above. We developed a data collection instrument and used it to record 

information on case characteristics located in the case files, including 

information about the complainant, the type of protected communication, 

unfavorable personnel action alleged to have occurred, and the reason 

for closing the case. As noted above, two analysts reviewed each case 

file and resolved any differences by identifying the necessary evidence in 

the case files.

 

4 To assess the reliability of data elements, we performed database checks for missing 

fields and incorrect entries. We also verified that the investigative phases in which cases 

were closed (before full investigation, full investigation - not substantiated, and full 

investigation - substantiated) were recorded correctly through information we pulled during 

our case file review. We coded the data according to direction provided by agency officials 

at DODIG.
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 60 GAO-12-362 Whistleblower Protection

This appendix provides information on the characteristics of military 

whistleblower reprisal cases based largely on both our review of files of 

cases closed between January 1, 2009 and March 31, 2011, as well as 

data from DODIG’s database for cases closed between fiscal year 2006 

and the first half of fiscal year 2011.

Generally, neither the complainants’ status as officer or enlisted nor their 

service matched their overall proportions in the military population. For 

example, complaints filed by officers made up approximately 31 percent 

of cases closed between fiscal year 2006 and the first half of fiscal year 

2011, while officers constitute approximately 16 percent of the total 

military population.1 Further, servicemembers from the Air Force filed 

approximately 37 percent of the complaints for cases closed between 

fiscal year 2006 and the first half of fiscal year 2011,

2

 

1 Percentage of closed complaints where the complainant was an officer is based on 

DODIG provided data for military whistleblower reprisal cases closed between fiscal year 

2006 and the first half of fiscal year 2011. Note: We included the 10 percent of cases in 

the database that did not have data on the complainant’s rank so the percentage of closed 

complaints from officers is at a minimum 31 percent, but could be higher. Percentage of 

officers in the total military population was obtained from Department of Defense, 

“Defense Manpower Requirements Report – Fiscal Year 2011” (December 2010).

but made up only 

22 percent of the military population. Servicemembers from the Navy and 

Marine Corps had the fewest closed complaints during this time period—

12 percent and 1 percent, respectively, while making up 17 percent and 

11 percent of the military population. The total number of closed reprisal 

complaints from servicemembers from the Army during this time period 

was higher than the other services but it was proportionate to the size of 

the Army. So although approximately 50 percent of military whistleblower 

reprisal complaints came from the Army during this time period, 

servicemembers from the Army also made up approximately 50 percent 

of the total military population. See figure 4 for a comparison of the 

servicemember population proportion by service compared to the 

proportion of reprisal cases closed.

2 Figures for percentage of cases closed by complainant service exclude 1.6 percent of 

cases that were missing complainant service information or were coded as “Other” in 

DODIG’s database.

Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations

Complainant 

Characteristics for Closed 

Cases
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 61 GAO-12-362 Whistleblower Protection

Figure 4: Relative Service Size vs. Percentage of Whistleblower Complaints by 

Service for Cases Closed between Fiscal Year 2006 and the First Half of Fiscal Year 

2011

Notes: 

Data to determine the percent of reprisal complaints by complainant service are based on GAO 

analysis of DODIG data on military whistleblower reprisal cases closed between fiscal year 2006 and 

the first half of fiscal year 2011. We did not include 1.6 percent of cases that were missing 

complainant service information or were coded as “Other” in DODIG’s database. 

The data to determine percentage of the total servicemember population for each service come from 

estimated fiscal year 2011 levels contained in DOD’s “Defense Manpower Requirements Report – 

Fiscal Year 2011” (December 2010). 

According to DOD Directive 7050.06, a servicemember who makes or 

prepares to make a protected communication is a whistleblower. Our 

review of case files revealed that the primary reasons for making a 

protected communication are to report allegations of a violation of law or 

Protected Communication 

Characteristics
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 62 GAO-12-362 Whistleblower Protection

regulation (66 percent) or abuse of authority (44 percent).3 DOD officials 

told us that regulations cover virtually every aspect of military life, 

including how to conduct personnel ratings, so complainants often cite 

violations of regulations in their complaints. Officials from DODIG and the 

service IGs also told us that the vast majority of protected 

communications are not about allegations of significant fraud, waste, or 

abuse, such as reports of unnecessarily high costs of equipment or 

overpayment of contracts, but rather about relatively minor issues that 

only impact the individual complainant, such as supervisors not following 

regulations regarding a performance review. Our case file review 

revealed that this perception is not entirely accurate. We found that 

approximately one-third of complaints (36 percent) were concerned solely 

with personal issues; one-third of complaints (33 percent) concerned 

fraud, waste, or abuse issues; and one-third of complaints (31 percent) 

were a mix of the two. The protected communications regarding 

allegations of fraud, waste, and abuse in the case files we reviewed 

tended to be about costs associated with misuse of government property, 

such as personal use of a government vehicle, or abuse of authority by 

commanders.

A whistleblower reprisal complaint must also include an allegation that an 

action was taken in reprisal against a servicemember. DOD Directive 

7050.06 defines reprisal as taking or threatening to take an unfavorable 

personnel action, or withholding or threatening to withhold a favorable 

personnel action, for making or preparing to make a protected 

communication. 4

 

3 Percentages do not add up to 100 percent because complainants can allege multiple 

protected communications. 

Based on our file review of cases closed between 

January 1, 2009 and March 31, 2011, the most common forms of reprisal 

alleged by complainants were that they received an unfavorable 

4

A protected communication is any lawful communication to a Member of Congress or an 

IG or a communication made to certain appropriate officials that the individual reasonably 

believes evidences violation of law or regulation, including a law or regulation prohibiting 

sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of 

funds or other resources, an abuse of authority, or a substantial and specific danger to 

public health or safety.

Unfavorable Personnel 

Action Characteristics
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations

Page 63 GAO-12-362 Whistleblower Protection

assignment or reassignment (50 percent), a poor performance evaluation 

(46 percent), or some sort of disciplinary action (42 percent).5

DODIG evaluates cases and generally closes them based on the answers 

to the four questions, referred to as the Acid Test (see fig. 2). Our review 

of randomly selected case files revealed that the most common reasons 

for closing a case were that DODIG determined that the complainant’s 

actions not related to the protected communication justified the 

unfavorable personnel action (question 4 - 65 percent of closed cases), or 

that there was no unfavorable personnel action (question 2 - 41 percent 

of closed cases).6 Based on our case file review, DODIG closed most 

complaints before conducting a full investigation and writing the resulting 

report of investigation (66 percent). DODIG data on cases closed 

between fiscal year 2006 and the first half of fiscal year 2011 show DOD 

closed a mean of 286 (71 percent) cases per year before conducting a full 

investigation, which is within the margin of error for our case file review.

DODIG closed a mean of 405 military whistleblower reprisal cases a year 

between fiscal year 2006 and the first half of fiscal year 2011, ranging 

between a low of 325 closed cases and a high of 448 cases according to 

data provided by DODIG (see fig. 5).7

 

5 Percentages reported on reprisal types do not add up to 100 percent because 

complainants often allege multiple reprisal types.

We were not able to report on the 

military whistleblower reprisal cases received because we found that 

DODIG’s data were not reliable for our purposes. As noted earlier, during 

our case file review, we observed that the case opening dates in DODIG’s 

database did not match the opening dates documented in the case files. 

Without data on when cases were opened, we were unable to compare 

case opening and closure rates and determine if more cases were being 

opened or closed in any given year. Although we found the DODIG data 

to be reliable enough for our purposes in reporting total cases closed in a 

6 Percentages reported on reasons for closing cases do not add up to 100 percent 

because one complaint often includes multiple allegations and investigators often cite 

multiple reasons for closing a case.

7 Our data for fiscal year 2011 go only through the first half of that year. Assuming the 

total number of cases for the second half were similar to the 194 cases closed in the first 

half, fiscal year 2011 totals would fall within the range noted.

Reasons for Closing Cases

Case Closure Rates
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 64 GAO-12-362 Whistleblower Protection

year, these figures do not match the data reported by DODIG in its 

semiannual reports to Congress. Those figures include more than military 

whistleblower reprisal cases, but adjusting for these additional cases 

does not fully make up the discrepancy between the figures in the 

semiannual reports and the data provided to us by DODIG. DODIG 

officials were not certain of the exact cause for the discrepancy and said 

that they did not have auditable data for their semiannual report figures 

for the time period we examined.

Figure 5: Number of Closed Cases between Fiscal Year 2006 and the First Half of 

Fiscal Year 2011

Note: 

Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011. 

Our analysis of DODIG data on military whistleblower reprisal cases 

closed between fiscal year 2006 through the first half of fiscal year 2011 

shows that DOD fully investigated a mean of 119 cases a year (29 

percent of all cases), with 25 of those full investigations substantiated (6 

percent of all cases), and 94 of those full investigations not substantiated 

(23 percent of all cases). DODIG determined that a mean of 286 cases a 

Full Investigation and 

Substantiation Rates
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 65 GAO-12-362 Whistleblower Protection

year (71 percent of all cases) did not warrant full investigation over the 

time period we reviewed. The number of full investigations ranged from a 

high of 156 in fiscal years 2006 and 2007 to a low of 69 in fiscal year 

2009 and the number of substantiated cases ranged from a high of 40 in

fiscal year 2006 to a low of 12 in fiscal year 2009 for cases closed during 

this time period.8

 

8 Our data for fiscal year 2011 go only through the first half of that year. Assuming the 

number of fully investigated and substantiated cases for the second half were similar to 

the 52 fully investigated and 10 substantiated cases closed in the first half, fiscal year 

2011 totals would fall within the ranges noted.

Further, the number of full investigations and 

substantiated cases closed during this time period tended to be higher in 

the earlier fiscal years than the later fiscal years, with fiscal year 2009 

being the lowest for both. Figure 6 shows the total cases closed by 

investigative phase for each fiscal year.
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 66 GAO-12-362 Whistleblower Protection

Figure 6: Comparison of Substantiated, Not Substantiated, and Cases Not Fully 

Investigated for Military Whistleblower Reprisal Cases Closed between Fiscal Year 

2006 and the First Half of Fiscal Year 2011

Note: 

Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s 

database as substantiated military whistleblower reprisal cases. 

Further, the mean number of military whistleblower reprisal cases closed 

per year over this time period along with the number of cases fully 

investigated and substantiated varied by investigating organization 

according to data provided by DODIG. For example, the Army closed the 

highest number of cases per year (158 cases per year) and the Marine 

Corps closed the fewest cases per year (4 cases per year) over this time 
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 67 GAO-12-362 Whistleblower Protection

period.9

 

9 The numbers reported in this paragraph may not match those reported in fig. 7 due to 

rounding of each investigative phase number in fig. 7.

The Air Force fully investigated the most cases per year (46 

cases per year) and the Marine Corps fully investigated the fewest cases 

per year (2 cases per year) between fiscal year 2006 and the first half of 

fiscal year 2011. The Air Force and the Army substantiated the most 

cases per year (10 cases per year each) during this time period. The 

Marine Corps and DODIG substantiated the fewest cases per year (1 

case per year each) over this time period. See figure 7 for the mean 

yearly number of closed cases by investigative phase and investigating 

organization for fiscal year 2006 through the first half of fiscal year 2011.
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 68 GAO-12-362 Whistleblower Protection

Figure 7: Mean Yearly Number of Closed Cases by Phase of Investigation and 

Investigating Organization between Fiscal Year 2006 and the First Half of Fiscal 

Year 2011

Notes: 

Mean total number of cases for the Navy and Marine Corps do not match table 2 due to rounding. 

Data presented here do not include seven cases closed over this time period where DODIG data for 

investigating organization is missing or listed as “Joint” or “Other.” 

Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s 

database as substantiated military whistleblower reprisal cases. 

The percentage of total cases that are fully investigated and substantiated 

has generally declined between fiscal year 2006 and the first half of fiscal 

year 2011, reaching its lowest point in both cases in fiscal year 2009. 

Figure 8 shows the variation in the percentage of closed cases fully 
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 69 GAO-12-362 Whistleblower Protection

investigated by processing organization.10

Figure 8: Percentage of Full Investigations out of Total Closed Investigations by 

Investigating Organization

DODIG’s full investigation rate 

was lowest during this time period and it, along with the Air Force, had a 

generally steady full investigation rate whereas the Army and Navy full 

investigation rate generally declined over this time period.

Notes: 

Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011. 

Marine Corps data were not shown due to the low number of cases closed and high variation in rates. 

Marine Corps data were included in the total. 

 

10 For both figs. 8 and 9 we did not include the data for the Marine Corps because the low 

number of cases processed by the Marine Corps caused small variations in the number of 

cases fully investigated and substantiated to show up as large percentage variations. The

Marine Corps data were included in the totals in both figures. 
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 70 GAO-12-362 Whistleblower Protection

Data presented here do not include seven cases closed over this time period where DODIG data for 

investigating organization are missing or listed as “Joint” or “Other.” 

Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s 

database as substantiated military whistleblower reprisal cases. 

Figure 9 also shows the variation by processing organization in the 

percentage of closed cases substantiated over this time period. In 

general, the substantiation rate declined, with DODIG having the lowest 

substantiation rate. However, there was some variation in the rate for 

each processing organization. Excluding the Marine Corps (see footnote 

10), the Navy was the organization with the most variation, with 

substantiation rates ranging from 2 percent to 16 percent. DODIG was the 

organization with the least variation, with substantiation rates ranging 

from 0 percent to 3 percent.

Figure 9: Percentage of Substantiated Investigations Out of Total Closed 

Investigations by Investigating Organization

Notes: 

Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011. 
Appendix II: General Information on Case 

Characteristics for Military Whistleblower 

Reprisal Investigations 

Page 71 GAO-12-362 Whistleblower Protection

Marine Corps data were not shown due to the low number of cases closed and high variation in rates. 

Marine Corps data were included in the total. 

Data presented here do not include seven cases closed over this time period where DODIG data for 

investigating organization are missing or listed as “Joint” or “Other.” 

Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s 

database as substantiated military whistleblower reprisal cases. 
Appendix III: Comparison of Whistleblower 

Reprisal Cases That Were and Were Not 

Identified as Reprisal by Service BCMRs 

Page 72 GAO-12-362 Whistleblower Protection

Notes: 

Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated 

by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases 

submitted to them, including case outcomes. 

Data do not include cases in which, according to DODIG data, the military whistleblower reprisal 

allegations are not substantiated but an improper referral for mental health evaluation (IMHE) is 

substantiated. 

The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from 

both Navy personnel and Marine Corps personnel. 

Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and 

considered as not having received remedy although the Navy BCMR data are unclear whether or not 

it provided remedy. The Marine Corps case was not identified by the Navy BCMR as being a military 

whistleblower reprisal case. The Navy case was identified as a military whistleblower reprisal case. 

Appendix III: Comparison of Whistleblower 

Reprisal Cases That Were and Were Not 

Identified as Reprisal by Service BCMRs
Appendix III: Comparison of Whistleblower 

Reprisal Cases That Were and Were Not 

Identified as Reprisal by Service BCMRs 

Page 73 GAO-12-362 Whistleblower Protection

Remedy provided indicates that the complainant received at least partial remedy. It does not indicate 

that the complainant received the exact remedy they were seeking. 
Appendix IV: Comments from the Department

of Defense

Page 74 GAO-12-362 Whistleblower Protection

Appendix IV: Comments from the 

Department of Defense
Appendix IV: Comments from the Department 

of Defense

Page 75 GAO-12-362 Whistleblower Protection
Appendix IV: Comments from the Department

of Defense

Page 76 GAO-12-362 Whistleblower Protection
Appendix IV: Comments from the Department 

of Defense

Page 77 GAO-12-362 Whistleblower Protection
Appendix IV: Comments from the Department

of Defense

Page 78 GAO-12-362 Whistleblower Protection
Appendix V: GAO Contacts and Staff 

Acknowledgments

Page 79 GAO-12-362 Whistleblower Protection

Zina D. Merritt, (202) 512- 5257 or merrittz@gao.gov

In addition to the contact named above, Assistant Director Marie Mak, 

Joanna Chan, Nicolaas Cornelisse, Justin Fisher, Julia Kennon, K. Nicole 

Willems, Michael Silver, Sheena Smith, Amie Steele, Emily SuarezHarris, and Erik Wilkins-McKee made major contributions to this report.

Appendix V: GAO Contacts and Staff 

Acknowledgments 

GAO Contacts

Staff 

Acknowledgments

(351599)
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