Whistleblower Protection: Actions Needed to Improve DOD's Military Whistleblower Reprisal Program
Published: 2012-02-22T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.
section_title: What GAO Recommends
paragraphs: 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.

section_title: Letter
paragraphs: 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, 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. 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.
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. The resulting July 2009  report highlighted timeliness in processing complaints as DOD’s biggest  challenge and made detailed recommendations for improvement based  on the underlying report findings.
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.
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  requirements and had oversight mechanisms in place. 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, the headquarters-level  IGs from the Army, Navy, Air Force, and Marine Corps, and the Boards  for Correction of Military Records (BCMRs) of the Army, Navy, and Air  Force. 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.
subsections: section_title: Background
paragraphs: The Military Whistleblower Protection Act of 1988, as amended, and its  implementing directive, Department of Defense Directive 7050.06,  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 evaluations and  conducts investigations into reprisal allegations involving civilians,  contractors, and nonappropriated fund employees, although  historically military whistleblower reprisal cases make up approximately  80 percent of its caseload. Under the law, the service IGs and other DOD  component IGs 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  closed—numbers that include military whistleblower reprisal cases.description of some of the key organizations and individuals and their  roles in the military whistleblower reprisal process can be found in table 1.
section_title: DODIG Is Generally Not Meeting Timeliness Requirements and Improvement Efforts Are Hindered by Unreliable and Incomplete Data
paragraphs: 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. 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.
subsections: section_title: DODIG Faces Challenges in the Timely Processing of Reprisal Cases
paragraphs: 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.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.
Timeliness is a key  DOD Directive 7050.06 addresses the need to conduct investigations  expeditiously. 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.
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 Hotlineto document the original complaint, gather additional information from  complainants, and send it to the directorate at DODIG responsible for   used  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.
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. investigations would suffer.affirmed its decision to end the agreement with the Army.
However, in December 2011, DODIG  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. investigative phase.
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.
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.
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. 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  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. 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. 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.
section_title: DOD Efforts to Improve Case Processing Times Have Been Hindered by Unreliable and Incomplete Data
paragraphs: 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  process. Further, our prior work has shown that tracking timeliness is  important for accountability and for making improvements to investigative  processes.
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). 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. Table 4  provides timeliness accuracy by investigative phase.
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  investigative processes.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.
GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1  (Washington, D.C.: Nov. 1, 1999). the Secretary of Defense—cannot provide organizational oversight of  DODIG. 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. 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.
section_title: DODIG Is Taking Steps to Address Whistleblower Reprisal Process Weaknesses but Oversight Challenges Remain
paragraphs: 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.
subsections: section_title: DODIG Is Taking Steps to Address External and Internal Recommended Actions
paragraphs: 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.  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.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.
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  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.”
section_title: DOD’s Implementation of Oversight Mechanisms Is Not Yet Complete and Faces Challenges
paragraphs: 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  effective results.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.
Oversight mechanisms include, among other things,  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. 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. Further, measuring  timeliness alone may provide incentive to close cases prematurely. 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  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,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.
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  establish appropriate written investigative policies and procedures  through handbook, manual, directives, or similar mechanism to facilitate  due professional care in meeting program requirements. 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. 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  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. 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. 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  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. 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. 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. Based on the presence in the  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.
We also found that the guidance regarding a key investigative question is  unclear. According to DODIG’s investigative guide,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   an investigation is  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. 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. 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.
DODIG has not established standard monitoring processes and  procedures and instead has been relying on ad hoc and inconsistent  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.
section_title: DOD Efforts to Ensure Corrective Actions Are Taken in Substantiated Cases Are Hindered by Disconnected Investigative and Corrective Action Processes and Unreliable Data
paragraphs: 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.
subsections: section_title: Few Servicemembers with Substantiated Cases Apply for the Relief Process
paragraphs: 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 service- centered 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. 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 court- martial 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  service BCMR.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.
For cases that are substantiated and those that are not,  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.
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. 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).
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  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.
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  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. 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. 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.
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.
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.
section_title: Service BCMRs Are Not Consistently Identifying Reprisal Cases
paragraphs: 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 Act provides whistleblowers with  unique procedural privileges that are generally not afforded to other  applicants to the BCMRs. These privileges include:  1.  direct application for corrective action may be made to the service  BCMR instead of first going to a lower level of administrative appeal;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.
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. 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.
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  when these procedural privileges should apply.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.
section_title: Conclusions
paragraphs: 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  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.
section_title: Recommendations for Executive Action
paragraphs: 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  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.
section_title: Agency Comments and Our Evaluation
paragraphs: 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  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  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.
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.
section_title: Appendix I: Scope and Methodology
paragraphs: 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.
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. 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. 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  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  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.
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  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  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. 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.
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.
section_title: Appendix II: General Information on Case Characteristics for Military Whistleblower Reprisal Investigations
paragraphs: 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.
subsections: section_title: Complainant Characteristics for Closed Cases
paragraphs: 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. 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, 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.
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  regulation (66 percent) or abuse of authority (44 percent).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.
section_title: Unfavorable Personnel Action Characteristics
paragraphs: 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.January 1, 2009 and March 31, 2011, the most common forms of reprisal  alleged by complainants were that they received an unfavorable   Based on our file review of cases closed between  assignment or reassignment (50 percent), a poor performance evaluation  (46 percent), or some sort of disciplinary action (42 percent).
section_title: Reasons for Closing Cases
paragraphs: 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).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.
section_title: Case Closure Rates
paragraphs: 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). 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  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.
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  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. 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.
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  period.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.
section_title: Appendix III: Comparison of Whistleblower Reprisal Cases That Were and Were Not Identified as Reprisal by Service BCMRs
paragraphs: Appendix III: Comparison of Whistleblower  Reprisal Cases That Were and Were Not  Identified as Reprisal by Service BCMRs 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.
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.
section_title: Appendix IV: Comments from the Department of Defense
section_title: Appendix V: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: 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 Suarez- Harris, and Erik Wilkins-McKee made major contributions to this report.