Department of Defense Whistleblower Program


The Department of Defense Whistleblower Program in the United States is a whistleblower protection program within the U.S. Department of Defense whereby DoD personnel are trained on whistleblower rights. The Inspector General's commitment fulfills, in part, the federal mandate to protect whistleblowers. It also administers the Defense Intelligence Community Whistleblower Protection Program, as a sub-mission for the intelligence community. The Inspector General's Defense Criminal Investigative Service also conducts criminal investigations which rely, in part, on Qui Tam relators.

Recent history

Whistleblowers disclose acts of illegality, fraud, waste, and abuse This can prevent government failure in the future. But whistleblowers can then be targeted for retaliation, "smeared as traitors, turncoats and liars by their superiors and suffer harassment, punishment or firing". The Department of Defense Whistleblower Program is increasingly focused on disclosures which will aid in resolving the United States' national security threat due to fiscal failure:
In 2009, the Office of the Inspector General, U.S. Department of Defense targeted the Whistleblower Protection Program as a top priority. For more than 20 years, the DoD IG has investigated whistleblower reprisal allegations involving the Department's military members, civilian employees, and Defense contractor employees. Through informational articles, posters, and briefings, the DoD IG significantly increased public awareness of whistleblower programs. It also provided information to Members of Congress regarding legislation able to strengthen whistleblower protections. Amendments to the statutes have broadened their application and expanded the protections for whistleblowers. Although multiple laws cover employees in different categories, there is a common thread running through each federal whistleblower statute enforced by the Inspector General. Congress entrusted the DoD IG with either conducting or overseeing inquiries and investigations into whistleblower reprisal allegations.
The DoD IG commits itself to ensuring that whistleblower protection programs succeed in training DoD personnel regarding whistleblower rights. This offers a deterrent to potential reprisors by ensuring prompt and thorough investigation into alleged violations. It also provides a remedy to those who have been reprised against. Timeliness of investigations is a continuing challenge because of the complexity of reprisal situations, but the DoD IG states it is determined to become the benchmark for timely, high-quality investigations while fostering an environment within the DoD where employees are encouraged to come forward to "blow the whistle" on fraud, waste, and abuse. During the first half of FY 2010, DoD IG closed 432 cases involving whistleblower reprisal and senior official misconduct. The case substantiation rate for full investigations of reprisal allegations was 20 percent and 15 percent for investigations of senior official misconduct. Highlights include the following:
The DoD IG is committed to the objective and timely resolution of each .
During 2011, DCIS reviewed 138 qui tam referrals that resulted in 56 investigations. Highlights include:
On February 25, 2011, the inspector general released its most recent report of investigation involving defense intelligence community employees. The report was the ninth case in a series of oversight actions beginning in 2004. This line of investigations was a cooperative effort with the inspectors general of the National Security Agency and the Defense Intelligence Agency to provide whistleblower protection to members of the intelligence and counterintelligence communities.
DoD IG currently has five cases of alleged reprisal against civilian employees of the intelligence community engaged in national intelligence work and ten cases of alleged reprisal against civilians engaged in military intelligence work.

Evolution of the DoD Whistleblower Program

DoD's whistleblower program holds its origins in the Defense procurement scandals of the 1980s. Stories concerning overpriced spare parts and underperforming weapon systems dominated media headlines. Members of Congress concerned about those issues championed the cause of whistleblowers alleging they were reprised against for exposing procurement-related wrongdoing. In the years following, Congress has enacted, and amended, a series of laws aimed at protecting civilian appropriated-fund employees, military members, appropriated and nonappropriated fund employees, and Defense contractor employees from reprisal for engaging in whistleblowing activities.
While procurement fraud was driving the statutory and regulatory reforms generally, Congressional oversight beginning with the Church Committee hearings of the mid-1970s led to reform within the federal intelligence and counterintelligence communities. As early as December 1982, the Secretary of Defense mandated that "no adverse action taken against any employee because the employee reports" questionable activities within the intelligence community. Seven years prior to the passage of the Whistleblower Protection Act of 1989, the Department of Defense was already working through the lessons learned by other branches of the federal government over the previous decade. A year later in 1983, Congress passed a law prohibiting reprisals against non-appropriated fund employees for blowing the whistle on wrongdoing at military base facilities. In 1986, the first statute aimed at Defense contractor employee whistleblower protection was enacted. At this time, members of the Congressional Military Reform Caucus also became concerned about military service members who chose to "blow the whistle" on DoD waste, fraud, and abuse. One specific story involved an Air Force colonel working on the development of the Bradley Infantry Fighting Vehicle. He openly challenged whether the operational testing of the vehicle was realistic enough. This angered Army officials to the extent that they threatened him with an unfavorable reassignment in reprisal. His reassignment was cancelled after congressional intervention. This whistleblower event became the subject of a 1998 movie called The Pentagon Wars.
In 1987, a congressional committee held hearings on whistleblower protections for military service members. Responding to the testimony from, and press reports about, service members who claimed they were punished for reporting wrongdoing to members of Congress and Inspectors General, Congress passed the Military Whistleblower Protection Act, title 10, United States Code, Section 1034. In the early 1990s, Congress enhanced protections for military members after learning about reports that service members who "blew the whistle" were being sent for involuntary mental health evaluations in reprisal. Congress added that a referral for an involuntary mental health evaluation was an unfavorable personnel action under Title 10 U.S.C. 1034 and required the Department to implement strict regulations governing the referral process to ensure service members' due process. In 1996, the National Security Agency proactively issued the first whistleblower protection directive authored by a Defense intelligence agency. The same year, the U.S. Office of Special Counsel suggested that executive branch agencies establish an ombuds system to assist appropriated fund whistleblowers within the federal government.

DoD Whistleblower Program Today

To realize this vision, the IG is continually reassessing its programs, evaluating the need for legislative changes, and expanding the awareness of the protections available to whistleblowers in all categories. Some of the more significant issues for the future include: protections for Title 32 Military Technician employees, expanding the U.S. Office of Special Counsel Section 2302 Certification effort throughout the Department, and improving the protections for appropriated fund employees within the intelligence community. DoD IG recognizes the service and importance of whistleblowers and how their disclosures ultimately benefit the Department, the taxpayer, and most importantly—America's warfighters, and will continue to promote the protections afforded whistleblowers within the Department. Only through effective enforcement and robust education can DoD IG create an environment where DoD employees feel comfortable coming forward to raise concerns about waste, fraud, and abuse without the fear of reprisal.
The DoD IG has always encouraged whistleblowing and upheld the protections afforded to those who choose to report fraud, waste, and abuse. Within the DoD IG, the Assistant Inspector General for Communications & Congressional Liaison supervises the Directorate for Whistleblowing & Transparency, which provides advice, counsel and oversight capability to the Inspector General. The Deputy Inspector General for Administrative Investigations is assigned the mission of ensuring that allegations of whistleblower reprisal are resolved in an objective and timely manner.
Formerly, The Deputy supervised:
Left outside the reorganization was the Deputy's other direct report office:
WRI is responsible for conducting and reviewing investigations conducted by the military service and defense agency IGs into allegations of whistleblower reprisal made by DoD military service members, non-appropriated fund employees and DoD contractor employees under Title 10 of the United States Code and American Reinvestment and Recovery Act. WRI additionally investigates allegations that military members were restricted from communicating with a member of Congress or an IG. WRI also investigates, on a discretionary basis, allegations of reprisal filed by DoD appropriated fund civilian employees and in particular, civilian employees of the defense intelligence community. Finally, WRI is responsible for investigating and reviewing investigations of alleged procedural violations of DoD Directive 6490.1, "Mental Health Evaluations of Members of the Armed Forces". DoD IG is committed to transforming the Department's whistleblower protection program into the model for the federal government by improving the timeliness and quality of reprisal investigations. In response to recent internal and external reviews, DoD IG recently hired more than a dozen additional investigators to address the ever-increasing number of whistleblower reprisal complaints filed with DoD IG and the military services.

Example

Semi-Annual Report to Congress, April 1, 2012 to September 30, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2012

During FY 2012, the Department received a total of 1,069 complaints involving reprisal, restriction from communicating with a member of Congress or IG and procedurally improper mental health evaluation referrals and closed a total of 513 complaints.
Corrective Action Taken on Whistleblower Cases Closed in Previous Reporting Periods

Semi-Annual Report to Congress, October 1, 2011 to March 31, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2012

During the first half of FY 2012, DoD IG implemented several improvements to investigative and oversight functions to include streamlining the complaint intake process, providing more robust training, revising written policies and procedures and strengthening whistleblower reprisal oversight functions.
Remedies/Corrective Action Taken
Section 4a of the Inspector General Act requires the inspector general to "review existing and proposed legislation and regulations relating to the programs and operations of the Department of Defense" and to make recommendations "concerning the impact of such legislation or regulations on the economy and efficiency in the administration of programs and operations administered or financed by the Department or the prevention and detection of fraud and abuse in such programs and operations" DoD IG is given the opportunity to provide information to Congress by participating in congressional hearings and briefings.
Way Forward

Civilian reprisal investigations

Prior to FY 2011-2012, the Inspector General maintained separate offices for military and civilian reprisal investigations. In January 2004, the DoD IG established CRI to address Defense civilian appropriated-fund employee whistleblowing. Two DoD employee categories were of specific concern: employees with access to potential procurement fraud information and; employees working for the Defense intelligence agencies and the military departments' intelligence offices. CRI uses "title 5" standards for its investigations. The Department of the Interior, through Inspector General Earl Devaney, was the first office to establish an ombuds program assisting appropriated-fund civilian employees with whistleblowing issues. That office limited its focus to outreach, rather than investigations. CRI uses a similar model, but added an investigations component to the promotion of whistleblowing. In 2007, the Internal Revenue Service created an ombudsman office. As its former director, Dan Meyer said in a May 2001 interview, the idea behind the office was to "coordinate a general... policy that allows to protect the people that bring information to the about wrongdoing within the ." When a disclosure is made, Meyer explained, the Inspector General then looks at the facts, applies the law, taking into consideration that the law as passed by the Congress does not review the motive of the employee. The Inspector General then makes a finding. The Departments of Commerce, Education and Homeland Security also established offices to conduct outreach and investigate allegations of whistleblower reprisal against appropriated fund civilian employees.
One early CRI investigation analyzed whether agency officials took action to suspend access by the whistleblower to classified information and revoke a security clearance after the individual communicated with Members of Congress and the 9/11 Commission staff. Another investigation examined security clearance decision-making to determine whether religious discrimination affected the adjudication of a whistleblower's security clearance. CRI also supported one of the two Intelligence Community Whistleblower Protection Act investigations opened between 1992 and 2009. During these investigations, CRI developed the first protocol for reviewing security clearance decision-making process based on Title 5, United States Code.
Under the Inspector General Act of 1978, the DoD OIG is given broad authority to investigate complaints by DoD employees concerning violations of law, rules, or regulations, or concerning mismanagement, gross waste of funds, or abuse of authority. Congress also mandated that DoD employee shall not take reprisal action against an employee who makes such a complaint. Under this broad grant of authority, the DoD OIG has authority to investigate allegations of reprisal for whistleblowing received from civilian appropriated fund employees, both employees covered by OSC's protections and those excluded from such coverage. CRI was established in 2003 to provide an alternate means by which DoD civilian appropriated fund employees could seek protection from reprisal. This is done in coordination with the U.S. Special Counsel. CRI was established with the goal of providing limited protection for DoD appropriated fund employees, who also have recourse to OSC, and DoD intelligence and counterintelligence employees, who do not.
There are several areas where CRI has assisted DoD appropriated fund employees. First, CRI provides the information and assistance for employees who seek to file a complaint for alleged reprisal or a disclosure of a violation of law, rule and/or regulation. Second, CRI is available to assist DoD intelligence and counterintelligence employees who seek redress for alleged reprisal, where OSC has no jurisdiction. Third, CRI is assists the Inspector General in completing his statutory obligations under the ICWPA to inform Congress of matters of "urgent concern". Additionally, CRI is the Inspector General's in-house advocate for the Section 2302 Certification Program administered by OSC. CRI supports all categories of DoD civilian appropriated fund employees alleging reprisal for making a disclosure by statute or internal regulation. Since its establishment, CRI's efforts have concentrated in advising whistleblowers seeking protection from the Office of Special Counsel and aiding whistleblowers in making a disclosure alleging a violation of law, rule and/or regulation. CRI has also investigated select complaints under the authority of Sections 7 and of the IG Act.

Examples of CRI's work include

Semi-Annual Report to Congress, April 1, 2011 to September, 30, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2011

During the second half of FY 2011, DoD IG continued to select cases involving Title 5 protected disclosures in four core mission areas: aviation maintenance, contracting and procurement, security clearances, and intelligence operations. On September 30, 2011, DoD IG had 10 open cases. During the reporting period, the Department received 15 complaints of Title 5 whistleblower reprisal and closed 14 investigations. Of the 14 investigations closed, one contained substantiated allegations of reprisal, resulting in a 7 percent substantiation rate. DoD IG also conducted a total of 34 whistleblower reprisal outreach events attended by 434 DoD military and civilian personnel.

Semi-Annual Report to Congress, October 1, 2010 to March 31, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2011

During the first half of FY 2011, DoD IG continued to select cases involving protected disclosures in five core mission areas: aviation maintenance, health and welfare of service members deployed or returning from Southwest Asia, chemical weapons safety, supply logistics, and intelligence operations. With respect to the intelligence and counterintelligence communities and matters involving security clearances, DoD IG completed five full investigations into alleged reprisals within Defense Intelligence Agency, National Security Agency, Department of Army, and Department of the Navy. Other activities reviewed included alleged reprisal against sources reporting illegal technology transfers; inadequate fielding of equipment to Southwest Asia; improper medical treatment for soldiers and civilians returning from combat theaters; and violations of the Federal Acquisition and Joint Ethics Regulations. As of March 31, 2011, DoD IG had 16 open cases. During the reporting period, DoD IG received
52 complaints of civilian whistleblower reprisal, accepted 12 complaints for investigation, and closed 11 investigations. Of the 11 investigations closed, three contained substantiated allegations of reprisal resulting in a 27 percent substantiation rate. Sixty-two percent of open DoD IG civilian reprisal cases involved intelligence and counterintelligence communities and matters involving security clearances; the remaining cases involved procurement fraud sources. DoD IG also conducted a total of 15 whistleblower reprisal outreach events attended by 255 DoD military and civilian personnel. Four outreach events were conducted for intelligence and counterintelligence community stakeholders and the remaining outreach events were conducted for supervisors and employees throughout DoD. Examples of Substantiated Civilian Whistleblower Reprisal Cases:
Remedies/Corrective Action Taken

Semi-Annual Report to Congress, May 1, 2010 to October 1, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2010

During the second half of FY 2010, CRI continued to select cases involving protected disclosures in five core mission areas: aviation maintenance, health and welfare of service members deployed or returning from Southwest Asia, chemical weapons safety, supply logistics, and intelligence operations. DoD IG investigated reprisal allegations involving civilian employees of the military departments and the Defense Intelligence Agency. With respect to the intelligence and counterintelligence communities, DoD IG conducted two oversight actions on Defense Intelligence Agency investigations and completed a full investigation into alleged reprisal within the Department of the Navy. Other activities reviewed included alleged reprisal against sources reporting avionics maintenance, emergency response planning, supply management, and media access violations. On September 30, 2010, DoD IG had 21 open cases and one oversight action. During the second half of FY 2010, DoD IG conducted 48 intakes, accepted five complaints for investigation, and closed 10 investigations, substantiating 4 cases of reprisal. Twenty-seven percent of open DoD IG civilian reprisal cases involve intelligence or counterintelligence activities and the remaining cases involve procurement fraud sources. Examples of substantiated civilian whistleblower reprisal cases:

Semi-Annual Report to Congress, October 1, 2009 to March 31, 2010

On March 31, 2010, CRI had 28 open cases and was providing oversight of three investigations being conducted by either Defense intelligence agencies or the military services. During the first half of FY 2010, CRI advised on 44 intakes, accepted 11 for investigation, and closed two investigations. One-third of CRI's open cases concern intelligence or counterintelligence activities, and the remaining two-thirds involve procurement fraud sources.

Semi-Annual Report to Congress, May 1, 2009 to October 1, 2009

Semi-Annual Report to Congress, April 1, 2008 to September 30, 2008

Military Reprisal Investigations

Shortly after the Military Whistleblower Protection Act was enacted, the Department of Defense Inspector General implemented a program to thoroughly and independently investigate allegations of whistleblower reprisal. The number of whistleblower cases has grown steadily over the years, from 150 in 1994 to over 550 in 2009. Of complaints that proceed to full investigation, the historic substantiation rate has been nearly 25 percent. During FY 2009, the Inspector General of the Department of Justice conducted a peer review of MRI processes and effectiveness. The resulting report included twelve recommendations for organizational, staffing, and process improvement. MRI implemented several of the recommendations immediately and pursued implementation of the remainder. The Inspector General reemphasized his commitment and focus on DoD whistleblower protections authorizing a significant staffing increase in MRI. The professional staff of 26 investigators resolves whistleblower reprisal allegations, conducts outreach and training for service IG counterparts, and establishes and revises policy to ensure DoD's implementation of whistleblower statutes fully satisfies congressional intent and affords whistleblowers every consideration and right to which they are entitled.
Complaints of whistleblower reprisal may be filed with DoD IG or a service IG. MRI predominantly receives allegations of reprisal through the Defense Hotline and Members of Congress. However, in some instances, service IGs refer allegations to MRI if the service member is serving in a joint assignment or other special circumstances exist. MRI conducts a preliminary analysis of each case to determine whether investigation is warranted. If warranted, MRI has the discretion to either conduct the investigation or forward it to the service IG for investigation.
MRI has three enabling statutes:

Semi-Annual Report to Congress, March 31, 2011 to September 30, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2011

As of September 30, 2011, DoD had 366 open cases involving allegations of whistleblower reprisal filed by military service members, defense contractor employees and nonappropriated fund employees. During the reporting period, Dod IG and service IGs received 299 complaints of whistleblower reprisal and closed 100 cases. Of the 100 cases, 48 were closed after analysis determined further investigation was not warranted, and 52 were closed after full investigation. DoD IG continued its expanded outreach, communication, and training to whistleblower stakeholders and service IG counterparts, conducting 17 events reaching 404 military IGs.

Semi-Annual Report to Congress, October 1, 2010 to March 31, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2011

DoD IG investigates or oversees allegations of military, non-appropriated fund, Defense contractor whistleblower reprisal; and allegations of improper referral of members of the Armed Services for mental health evaluations. As of March 31, 2011, DoD had 351 open cases involving allegations of whistleblower reprisal filed by military service members, Defense contractor employees, and non-appropriated fund employees. About 77 percent of those cases were received by service IGs. Results of service IG investigative work will be forwarded to DoD IG for final approval. During the reporting period, DoD IG and service IGs received 302 complaints of whistleblower reprisal and closed 237 cases. Of the 237 cases, 188 were closed after preliminary inquiry determined further investigation was not warranted, and 49 were closed after full investigation. Of the 49 cases investigated, 10 contained one or more substantiated allegations of whistleblower reprisal. DoD IG has statutory responsibility for oversight review of all cases of military whistleblower reprisal regardless of origination, and reviews conducted by the service IGs and DoD IG. DoD IG continued its expanded outreach, communication, and training to whistleblower stakeholders and service IG counterparts, reaching 241 military IGs with a total of 131 instruction hours. Examples of Substantiated Military Whistleblower Reprisal Cases:

Semi-Annual Report to Congress, May 1, 2010 to October 1, https://web.archive.org/web/20120422180839/http://www.dodig.mil/sar/index.html 2010

During this reporting period, DoD IG and service IGs received 347 complaints of whistleblower reprisal and closed 359 cases. Of the 359 cases, 294 were closed after preliminary analysis determined further investigation was not war-ranted, and 65 were closed after investigation. Of the 65 cases investigated, 11 contained one or more substantiated allegations of whistleblower reprisal.

Semi-Annual Report to Congress, October 1, 2009 to March 31, 2010

On March 31, 2010, DoD IG had 382 open cases involving allegations of whistleblower reprisal filed by military service members, Defense contractor employees, and non-appropriated fund employees. About 75 percent of those cases are processed by service IGs prior to being forwarded to DoD IG for final approval. During the reporting period, DoD IG and the service IGs received 271 complaints of whistleblower reprisal and closed 274 cases. Of the 274 cases, 220 were closed after preliminary analysis determined further investigation was not warranted and 54 were closed after investigation.
in correcting its wrongs.

Semi-Annual Report to Congress, April 1, 2009 to September 30, 2009

Semi-Annual Report to Congress, April 1, 2008 to September 30, 2008

MRI has developed efficient procedures to conduct preliminary inquiries and investigations to ensure that all whistleblower reprisal complaints are thoroughly addressed, and in a timely manner. The Military IGs have established similar procedures. MRI works closely with the Military IGs on all aspects of the investigative process. The preliminary inquiry entails an in-depth interview with the complainant, followed by fact-finding and analysis of available documents and evidence. The investigator determines whether the allegations meet the criteria for protection under the governing statute. Investigators analyze the evidence and form a conclusion based on a preponderance of the evidence.
The investigator writes a Report of Preliminary Inquiry that documents the answers to the following three questions:
  1. Did the complainant make a communication protected by statute?
  2. Was an unfavorable action subsequently taken or withheld?
  3. Was the management official aware of the communication before taking the action against the complainant?
The investigator presents the results of the preliminary inquiry to a Complaint Review Committee, composed of the five senior MRI managers. If the MRI Complaint Review Committee determines that sufficient evidence exists to pursue a full investigation of the reprisal allegations, MRI will conduct an on-site investigation that includes sworn interviews with the complainant, the management officials responsible for the unfavorable personnel actions taken, and any other witnesses with relevant knowledge. In a full investigation, a fourth question must be answered:
Although the service IGs may also independently receive and investigate reprisal allegations, Title 10 U.S.C. 1034 charges the DoD IG with a critical oversight role—to approve any decision made by a service IG that investigation of military whistleblower reprisal is not warranted and to approve the results of all military whistleblower reprisal investigations conducted by service IGs. MRI has the primary authority and responsibility to conduct investigations concerning allegations of reprisal against military members, nonappropriated fund employees and Defense contractor employees. Military Members now have the option of directly contacting their Military Department Inspector General or reporting their complaints to the DODIG Directorate for Military Reprisal Investigations through the Defense Hotline.

Examples military service investigations

Semi-Annual Report to Congress, April 1, 2009 to September 20, 2009

Semi-Annual Report to Congress, October 1, 2008 to March 31, 2009

Semi-Annual Report to Congress, April 1, 2008 to September 30, 2008

Semi-Annual Report to Congress, October 1, 2007 to March 31, 2008

Semi-Annual Report to Congress, April 1, 2007 to September 30, 2007

Oversight of Component Inspectors General

MRI continually strives to strengthen guidance and provide support to their service IG counterparts. For the past several years, MRI has expanded its outreach programs for training military and civilian employees working in IG offices throughout the Department. In addition to training workshops at the DoD IG headquarters, MRI conducts outreach nationwide. Recent training efforts have been attended by over 450 IG staff and investigators and include: the Joint and Combatant Command IG Course, workshops and briefings at the Air Force World Wide IG Conference, the Air Combat Command IG Symposium, the Army Medical Command IG Conference, and the National Guard's Central, Western, and Southeastern Regional IG Conferences. Additionally, MRI investigators and team leaders have daily interaction with military counterparts seeking assistance with reprisal investigative and policy issues. During the last year, the Department of Justice IG conducted a peer review of MRI processes and effectiveness. While the DoJ report findings were generally positive about MRI's implementation of the military whistleblower program, the report included 12 recommendations for organizational, staffing, and process improvement. MRI implemented several of the recommendations immediately and is actively pursuing implementation of the remainder.
But the October 1998 revision to Title 10, United States Code, Section 1034, the "Military Whistleblower Protection Act", contained significant changes in how the Military Department Inspectors General and DODIG will process reprisal allegations. The most significant change is that Military Department IGs now have the authority to grant the protections of 10 USC 1034 to reprisal allegations they receive. This means that military members are no longer required to submit reprisal allegations directly with the DODIG for coverage under 10 USC 1034. Military Department IGs must notify the DODIG within ten working days of receiving reprisal allegations. The DODIG Directorate for Military Reprisal Investigations will maintain a system to track those notifications. Military Department IGs will then conduct a preliminary inquiry to determine whether the allegations merit investigation under 10 USC 1034. All decisions by Military Department IGs not to investigate allegations of military Whistleblower reprisal are subject to the review and concurrence of the Director, DODIG Directorate for Military Reprisal Investigations. As before, all final reports of investigation under 10 USC 1034 must be approved by the Director, DODIG Directorate for Military Reprisal Investigations.
DoD component Inspectors General may accept reprisal allegations from nonappropriated fund employees. DoD Directive 1401.3, "Reprisal Protection of Nonappropriated Fund Instrumentality Employees/Applicants", revised on October 16, 2001, provides that DoD Component Inspectors General may accept reprisal allegations from nonappropriated fund employees. The Directive further provides that the Component Inspectors General must forward the reprisal allegations to the DODIG for resolution.

Defense Contractor Protection (DCP)

Defense contractor employees seeking whistleblower reprisal protection must continue to report allegations directly to the DoDIG. The Defense Hotline is designated to receive reprisal complaints on behalf of the Directorate for Military Reprisal Investigations. They will determine if a complaint meets the criteria required to initiate a reprisal investigation. The MRI will notify the complainant in writing of their decision and tell the complainant specifically what action will be taken regarding the complaint.

Examples of DCP's work include

Hearings

Qui tam whistleblowers continue to provide DCIS with actionable information leading to the prosecution of fraud cases. Prominent on the DCIS docket during this reporting period were the following qui tam cases:
The Office of Inspector General has the authority to investigate adverse security clearance and access decisions as part of its broad responsibility for investigating allegations that individuals suffered reprisal for making disclosures of fraud, waste and abuse to certain authorities. These responsibilities derive from both the Inspector General Act of 1978 and various statutory provisions applicable to specific classes of individuals. These laws were enacted and amended various times since 1978, and while similar in many respects they are not uniform in the protections they afford. However, they do provide a quilt of legislative provisions organized by the status of individual alleging they were reprised against as a result of their protected activity.

Providing Protection Modeled on title 5

For civilian employees of intelligence agencies who are exempted from OSC jurisdiction, Title 5 states that the heads of agencies should implement internal policies regarding merit systems principles and whistleblower reprisal protections. Specifically, these agencies are required to use existing authorities to take any action, "including the issuance of rules, regulations, or directives; which is consistent with the provisions of and which the President or the head of the agency...determines is necessary to ensure that personnel management is based on and embodies the merit system principles.". DoD Regulation 5240.1-R, "Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons", requires that the heads of DoD agencies that contain intelligence components shall ensure that no adverse action is taken against employees that report a "questionable activity"

Reviewing Unfavorable Personnel Security Decisions (UPSDs)as Pretext for Reprisal

CRI in particular offers especially broad protection to service members and employees of the Defense Intelligence Community through the Defense Intelligence Community Whistleblower Protection Program because CRI is the lead federal investigative entity reviewing security clearance decision-making as a pretext for reprisal. This is done under the Inspector General's authority, and not through an application of the Whistleblower Protection Act. Section 2302 of title 5 lists twelve distinct prohibited personnel practices that, when following a disclosure of wrongdoing, may constitute a whistleblower reprisal. Severe actions such as termination, reassignment, or demotion are included among these title 5-defined adverse actions; however, security clearance decision-making and other adverse personnel security decisions are not covered by the Whistleblower Protection Act. Since intelligence and counterintelligence employment is absolutely contingent upon gaining and maintaining a security clearance, review of security clearance decision-making used as a pretext for reprisal is necessary in the protection of Defense Intelligence Community whistleblowers. For this reason, CRI investigates reprisal allegations regarding security determinations through the IG Act, which is not limited by. exemptions for intelligence and counterintelligence agencies. Accordingly, a revocation of a security clearance is reviewable as a pretext for reprisal. In its reports of investigation reviewing security clearance decisions, CRI classifies a negative action taken by a responsible management official as a "unfavorable personnel security determination" and then applies title 5 standards to its review. In addition to the actions included under the definition of a UPSD, CRI also investigates suspension of security clearances as well as recommendations to an agency's central adjudication facility to revoke, deny, or suspend security clearances as possible unfavorable personnel security determinations. While not actionable in and of themselves, suspensions and recommendations to a CAF are examined by CRI because they may constitute contributing pretexts to reprisal through security determination. By identifying these measures as actionable unfavorable personnel security determinations, CRI is able to provide broad protection to whistleblowers within the DoD intelligence community.

Intelligence Community Whistleblower Protection Act

One statute that is often confused as providing protection from reprisal for whistleblowing is the Intelligence Community Whistleblower Protection Act of 1998, enacted as part of the Intelligence Authorization Act for FY 1999 and which amended the Inspector General Act of 1978, 5 U.S.C. App. § 8H. Despite its title, the ICWPA does not provide statutory protection from reprisal for whistleblowing for employees of the intelligence community. The name "Intelligence Community Whistleblower Protection Act" is a misnomer; more properly, the ICWPA is a statute protecting communications of classified information to the Congress from executive branch employees engaged in intelligence and counterintelligence activity.
ICWPA applies only to employees of, and military personnel assigned to, the four DoD intelligence agencies: the Defense Intelligence Agency, National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency. The ICWPA does not apply to intelligence or counterintelligence activities of the Military Services, Unified Commands or the Office of the Secretary of Defense. As an example, an intelligence analyst working for the Department of the Army would not have recourse to this statute.
The ICWPA may be used when an employee wants to communicate with the Congress, and: the complaint/information involves classified material; the employee does not want agency management to know the source of classified complaint/information or does not believe management will transmit it to Congress. Not all disclosures are germane to the ICWPA. It is limited to complaints of "urgent concern." While the ICWPA has no "whistleblower protection" clause, it does define as an "urgent concern," instances of violation of Section 7 of the IG Act which prohibits the act or threat of reprisal against those who complain/disclose information to an IG. OIG DoD will conduct an appropriate inquiry in these instances to ensure that Section 7 was not violated. Only three complaints filed under the auspices of the ICWPA have been made to the Inspector General since 1998, and none involved the suspension or revocation of a security clearance.

Awareness and Training

Critical in protecting whistleblowing is raising awareness. The Department of Defense Inspector General promotes this through three methods: outreach, investigations, and training. Each of these is interrelated and all support the investigative mission. Without "investigations" marked by independence and integrity, outreach and training cannot modify management behavior.
Outreach is conducted in order to educate strategic stakeholders about the mission of the Department of Defense Inspector General, the basics of whistleblowing and whistleblower reprisal, and to ultimately generate complaint referrals. The Department of Defense Inspector General actively investigates whistleblower reprisal complaints not only to educate witnesses and responsible management officials alike in whistleblowing rights and responsibilities, but also to ensure that DoD civilian employees who blow the whistle are protected from reprisal. The Department of Defense Inspector General actively trains DoD IG supervisors, managers, and new employees though the Section 2302 Certification Program.
Failure to inform federal employees of their whistleblower rights and obligations hurts the DoD, American warfighters, and the federal government as a whole. The Inspector General sees the importance of this in today's current Global War on Terror operations whereby the Defense Hotline provides an avenue to report fraud, waste, and abuse. Defense whistleblowers have prompted investigations and audits into numerous mission critical functions and activities that directly impact the warfighter. For instance, the Defense Criminal Investigative Service vigorously investigates GWOT-related allegations involving matters such as bribery, theft, and procurement fraud. In addition to investigating allegations of fraud, waste, and abuse; in 2008 DCIS launched a proactive project, which is analyzing over $14 billion in payment vouchers related to U.S. Army purchases in Iraq. Moreover, the DoD IG has numerous ongoing Iraq-related audits including contract surveillance, contract payments, and acquisition of armored vehicles.

Office of Special Counsel Section 2302(c) certification program

In 1994, Congress responded to reports of widespread ignorance concerning employees' right to be free from prohibited personnel practices, especially retaliation for whistleblowing, by enacting 5 U.S.C. §2302. That provision charges "he head of each agency" to inform agency employees of the rights and remedies available to them" under Title 5 of the United States Code. OSC's §2302 Certification Program allows federal agencies to meet their statutory obligation to educate their workforce about the rights, responsibilities, and remedies available to them under the Whistleblower Protection Act. The DoD IG has participated in the certification process since September 2002. As a result, both new and current IG employees are informed of their rights under the Whistleblower Protection Act.
Compliance with §2302 certification provides federal employees with the understanding that:
Further, compliance with §2302 certification achieves three goals:
Of the 52 Defense components and the many offices and commands within those components, three entities are §2302 certified: The U.S. Department of Defense, Office of the Inspector General, the Naval Research Laboratory Office of the Inspector General, and the United States Air Force's 375th Airlift Wing headquartered at Scott Air Force Base in Illinois.

Federal whistleblowing programs

Whistleblowers