II 

113TH CONGRESS 

1ST SESSION S. 1081 

To amend title 10, United States Code, to expand and enhance authorities 

on protected communications of members of the Armed Forces, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 23, 2013 

Mr. WARNER (for himself and Mr. KAINE) introduced the following bill; which 

was read twice and referred to the Committee on Armed Services 

A BILL 

To amend title 10, United States Code, to expand and enhance authorities on protected communications of members of the Armed Forces, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Military Whistleblower 

5 Protection Enhancement Act of 2013’’. 


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1 SEC. 2. EXPANSION AND ENHANCEMENT OF AUTHORITIES 

2 RELATING PROTECTED COMMUNICATIONS 

3 OF MEMBERS OF THE ARMED FORCES AND 

4 PROHIBITED RETALIATORY ACTIONS. 

5 (a) EXPANSION OF PROHIBITED RETALIATORY PER6 SONNEL ACTIONS.—Subsection (b) of section 1034 of title 

7 10, United States Code, is amended— 

8 (1) in paragraph (1)— 

9 (A) in subparagraph (A), by striking ‘‘or’’ 

10 at the end; 

11 (B) in subparagraph (B)— 

12 (i) in clause (i), by inserting ‘‘or a 

13 representative of a Member of Congress’’ 

14 after ‘‘a Member of Congress’’; 

15 (ii) in clause (iv), by striking ‘‘or’’ at 

16 the end; 

17 (iii) by redesignating clause (v) as 

18 clause (vi); 

19 (iv) by inserting after clause (v) the 

20 following new clause (v): 

21 ‘‘(v) a court, grand jury, or court-martial 

22 proceeding, or an authorized official of the De23 partment of Justice or another law enforcement 

24 agency; or’’; and 

25 (v) in clause (vi), as redesignated by 

26 clause (iii) of this subparagraph, by strikVerDate Mar 15 2010 00:45 May 30, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1081.IS S1081

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1 ing the period at the end and inserting ‘‘; 

2 or’’; and 

3 (C) by adding at the end the following new 

4 subparagraph: 

5 ‘‘(C) testimony, or otherwise participating in or 

6 assisting in an investigation or proceeding related to 

7 a communication under subparagraph (A) or (B), or 

8 filing, causing to be filed, participating in, or other9 wise assisting in an action brought under this sec10 tion.’’; and 

11 (2) in paragraph (2), by inserting after ‘‘any 

12 favorable action’’ the following: ‘‘, or a significant 

13 change in a member’s duties, responsibilities, or 

14 working conditions’’. 

15 (b) INSPECTOR GENERAL INVESTIGATIONS OF ALLE16 GATIONS.—Subsection (c) of such section is amended— 

17 (1) in paragraph (1), by striking ‘‘paragraph 

18 (3)’’ and inserting ‘‘paragraph (4)’’; 

19 (2) in paragraph (2), by striking subparagraph 

20 (A) and inserting the following new subparagraph 

21 (A): 

22 ‘‘(A) Any violation of any law, rule, or regula23 tion, including a law or regulation prohibiting rape, 

24 sexual assault, or other sexual misconduct in sec25 tions 920 through 920c of this title (articles 120 


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1 through 120c of the Uniform Code of Military Jus2 tice), sexual harassment or unlawful discrimina3 tion.’’; 

4 (3) by redesignating paragraphs (3), (4), and 

5 (5) as paragraphs (4), (5), and (6), respectively; 

6 (4) by inserting after paragraph (2) the fol7 lowing new paragraph (3): 

8 ‘‘(3) A communication described in paragraph (2) 

9 shall not be excluded from the protections provided in this 

10 section because— 

11 ‘‘(A) the communication was made to a person 

12 who participated in an activity that the member rea13 sonably believed to be covered by paragraph (2); 

14 ‘‘(B) the communication revealed information 

15 that had previously been communicated; 

16 ‘‘(C) of the member’s motive for making the 

17 communication; 

18 ‘‘(D) the communication was not made in writ19 ing; 

20 ‘‘(E) the communication was made while the 

21 member was off duty; 

22 ‘‘(F) the communication was made during the 

23 normal course of duties of the member.’’; 

24 (5) in subparagraph (D) of paragraph (4), as 

25 redesignated by paragraph (3) of this subsection, by 


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1 inserting before the period at the end of the second 

2 sentence the following: ‘‘, with the consent of the 

3 member’’; and 

4 (6) in paragraph (5), as so redesignated— 

5 (A) by striking ‘‘paragraph (3)(A)’’ and in6 serting ‘‘paragraph (4)(A)’’; 

7 (B) by striking ‘‘paragraph (3)(D)’’ and 

8 inserting ‘‘paragraph (4)(D)’’; and 

9 (C) by striking ‘‘60 days’’ and inserting 

10 ‘‘one year’’. 

11 (c) INSPECTOR GENERAL INVESTIGATIONS OF UN12 DERLYING ALLEGATIONS.—Subsection (d) of such section 

13 is amended by striking ‘‘subparagraph (A) or (B) of sub14 section (c)(2)’’ and inserting ‘‘subparagraph (A), (B), or 

15 (C) of subsection (c)(2)’’. 

16 (d) REPORTS ON INVESTIGATIONS.—Subsection (e) 

17 of such section is amended— 

18 (1) in paragraph (1)— 

19 (A) by striking ‘‘subsection (c)(3)(E)’’ both 

20 places it appears and inserting ‘‘subsection 

21 (c)(4)(E)’’; 

22 (B) by striking ‘‘the Secretary of Defense’’ 

23 and inserting ‘‘the Secretary of the military de24 partment concerned’’; and 


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1 (C) by striking ‘‘to the Secretary,’’ and in2 serting ‘‘to such Secretary,’’; 

3 (2) in paragraph (3), by striking ‘‘the Secretary 

4 of Defense’’ and inserting ‘‘the Secretary of the mili5 tary department concerned’’; and 

6 (3) in paragraph (4), by striking the second 

7 sentence and inserting the following new sentence: 

8 ‘‘The report shall include an explicit determination 

9 as to whether a personnel action prohibited by sub10 section (b) has occurred and a recommendation as to 

11 the disposition of the complaint, including appro12 priate corrective action for the member.’’. 

13 (e) ACTION IN CASE OF VIOLATIONS.—Such section 

14 is further amended— 

15 (1) by redesignating subsections (f), (g), (h), 

16 and (i) as subsections (g), (h), (j), and (k), respec17 tively; and 

18 (2) by inserting after subsection (e) the fol19 lowing new subsection (f): 

20 ‘‘(f) ACTION IN CASE OF VIOLATIONS.—(1) If an In21 spector General reports under subsection (e) that a per22 sonnel action prohibited by subsection (b) has occurred, 

23 not later than 30 days after receiving such report from 

24 the Inspector General, the Secretary of Homeland Secu25 rity or the Secretary of the military department concerned, 


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1 as applicable, shall order such action as is necessary to 

2 correct the record of a personnel action prohibited by sub3 section (b), taking into account the recommendations in 

4 the report by the Inspector General. Such Secretary shall 

5 take any appropriate disciplinary action against the indi6 vidual who committed such prohibited personnel action. 

7 ‘‘(2) If the Secretary of Homeland Security or the 

8 Secretary of the military department concerned, as appli9 cable, determines that an order for corrective or discipli10 nary action is not appropriate, not later than 30 days after 

11 making the determination, such Secretary shall— 

12 ‘‘(A) provide to the Secretary of Defense, the 

13 Committees on Armed Services of the Senate and 

14 the House of Representatives, and the member or 

15 former member, a notice of the determination and 

16 the reasons for not taking action; or 

17 ‘‘(B) refer the report to the appropriate board 

18 for the correction of military records for further re19 view under subsection (g).’’. 

20 (f) CORRECTION OF RECORDS.—Subsection (g) of 

21 such section, as redesignated by subsection (e)(1) of this 

22 section, is further amended— 

23 (1) in paragraph (1), by striking ‘‘may review’’ 

24 and inserting ‘‘shall review’’; 


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1 (2) in paragraph (2)(C), by striking ‘‘may’’ and 

2 inserting ‘‘upon the request of the member or former 

3 member, after an initial determination that a com4 plaint is not frivolous and has not previously been 

5 addressed by the board, shall’’; and 

6 (3) in paragraph (3)— 

7 (A) in the matter preceding subparagraph 

8 (A), by striking ‘‘board elects to hold’’ and in9 serting ‘‘board holds’’; and 

10 (B) in subparagraph (A)— 

11 (i) by striking ‘‘may be provided’’ and 

12 inserting ‘‘shall be provided’’; and 

13 (ii) in clause (ii), by striking ‘‘the case 

14 is unusually complex or otherwise re15 quires’’ and inserting ‘‘the member or 

16 former member would benefit from’’. 

17 (g) REVIEW.—Subsection (h) of such section, as re18 designated by subsection (e)(1) of this section, is further 

19 amended by striking ‘‘subsection (f)’’ and inserting ‘‘sub20 section (g)’’. 

21 (h) BURDENS OF PROOF.—Such section is further 

22 amended by inserting after subsection (h), as so redesig23 nated, the following new subsection (i): 

24 ‘‘(i) BURDENS OF PROOF.—The burdens of proof 

25 specified in section 1221(e) of title 5 shall apply in any 


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1 investigation conducted by an Inspector General, and any 

2 review conducted by the Secretary of Defense, the Sec3 retary of Homeland Security, and any board for the cor4 rection of military records, under this section.’’. 

5 (i) EFFECTIVE DATE.—The amendments made by 

6 this section shall take effect on the date that is 30 days 

7 after the date of the enactment of this Act, and shall apply 

8 with respect to allegations pending or submitted under 

9 section 1034 of title 10, United States Code, on or after 

10 that date. 

Æ 


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