US Army Inspector General School 1 The Military Whistleblower Protection Act Title 10 United States Code USC Section 1034 httpswwwlawcornelleduuscodetext101034 US Army Inspector General School ID: 767603 Download Presentation
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U.S. Army Inspector General School 1 The Military Whistleblower Protection Act Title 10, United States Code (USC), Section 1034 https://www.law.cornell.edu/uscode/text/10/1034
U.S. Army Inspector General School 2 OverviewCase Study Categories of Complainants Terms and DefinitionsElements of Proof (Factors) Resolving Allegations of Whistleblower Reprisal (IGAP)
U.S. Army Inspector General School 3 Enabling Learning Objectives Describe the four categories of Whistleblower complainants. Describe the agency authorized to receive Whistleblower allegations. Identify what agency is responsible for investigating reprisal allegations for each complainant category. Describe the four questions (or factors) that establish the framework for an investigation into an allegation of Whistleblower Reprisal (WBR). ELOs
U.S. Army Inspector General School 4 A Case Study The purpose and intent of the Military Whistleblower Protection Act is to enhance good order and readiness by encouraging Soldiers to come forward in good faith with complaints of wrongdoing and other issues (protected communications).
Whistleblower Reprisal Congressional Interest Special Interest Groups Senior Leader Decisions Remedy Wrongs - ARBA Our task … get it right, for the right reasons Army Board for Correction of Military Records (ABCMR) Army Discharge Review Board (ADRB) Army Grade Determination Review Board (AGDRB ) Media interest U.S. Army Inspector General School 5 Current Situation…
U.S. Army Inspector General School 6 WBR Standards / ReferencesMilitary: 10 USC 1034 and DoD Directive 7050.06 NAFI: 10 USC 1587 and DoD Directive 1401.03 AF: 5 USC 2302(b)(8); Presidential Policy Directive-19 (PPD-19 ), Change 3 Contractor Employees : 10 USC 2409; Defense Federal Acquisition Regulation (DFAR), Subpart 203.9 FY14 / FY17 NDAA: 10 USC 1034, DoDD 7050.06, 10 USC 2409 (Influenced changes to DoDD 7050.06) AR 20-1, paragraphs 1-13, 7-4, and Policy Change #1 AR 600-20, paragraphs 5-8a and 5-12 A&I Guide , Part Two, Chapter 9 Defense Technical Information Center, www.dtic.mil/whs/directives/
DoDD 7050.06, dated 17 April 2015 10 USC 1034, Armed Forces members shall be free to make a Protected Communication (PC ) Soldiers have the right to raise matters of fraud, waste, abuse , or other improprieties within the Army without fear of reprisal No person shall restrict a member of the Armed Forces from making lawful communications to a Member of Congress (or their staff) or to an IG Defines chain of command to include the supervisory and rating chainU.S. Army Inspector General School 7Military Whistleblower Protection
DoDD 7050.06, dated 17 April 2015 DoD IG shall investigate or oversee DoD Component IG investigations of allegations No investigation “required” (untimely) when a member submits a complaint more than 1 YEAR* after becoming aware of the personnel action ( * Change made by FY14 NDAA ) U.S. Army Inspector General School 8 Military Whistleblower Protection
U.S. Army Inspector General School 9 What does Whistleblower Reprisal mean to the IG?Only IGs can investigate allegations of military WBR when presented to an IG. Component IGs must investigate allegations of Whistleblower Reprisal and complete an ROI as the Office of Inquiry within 150 days. An IG cannot refer an allegation of reprisal Only DoD IG (Office of Oversight) can dismiss a WBR investigation
Per DODD 7050.06, 17 April 2015, (4c(2)), SECARMY shall take appropriate disciplinary action against the individual who committed the reprisalPer AR 20-1 (7-4b(3)(d)), IG records (ROI) may be used as the basis for adverse action against individuals, military or civilian, by directing authorities or commanders if they contain a substantiated allegation of Whistleblower ReprisalNational Guard falls under State Code of Military Justice -- unless in Title 10 Status. Adverse action taken in one status likely affects other statuses. IG Records for Adverse Action U.S. Army Inspector General School 10
U.S. Army Inspector General School 11Army Board for Correction of Military Records (ABCMR) 126.96.36.199. Consider applications for the correction of military records at the request of a member or, otherwise, who alleged that the prohibitions of paragraphs 4.2. and 4.4. have been violated 188.8.131.52.4. If the ABCMR determines that a personnel action was in reprisal under this Directive and section 1034 of Reference (b), it may recommend to the Secretary of Military Department concerned that disciplinary action be taken against the individual(s) responsible for such personnel action
U.S. Army Inspector General School 12 Categories of WBR ComplainantsMilitary Member Non-Appropriated Fund (NAF) CivilianAppropriated Fund Civilian Contractor Employee AAFES / MWR Employees Active Duty ( AC), Reserve ( RC), and National Guard ( NG) (Federal interest ) General Schedule (GS) / Wage Grade (WG) KBR, CACI, BAH, etc. The A&I Guide , Part Two, Section 9-2 (II-9-43) ELO 1
U.S. Army Inspector General School 13 Agency Authorized to Receive WBR Allegations Military Member Non-Appropriated Fund (NAF) CivilianAppropriated Fund Civilian Contractor Employee Any Service IG can receive – DoD IG oversight Refer complainant to: DoD IG Refer complainant to: Office of Special Counsel Refer complainant to: DoD IG The A&I Guide , Part Two, Section 9-1 and 9-2 ELO 2
U.S. Army Inspector General School 14 Agency Responsible for Investigating WBR(1 of 4) Military WBR Complaints: Service IGs will investigate military complaints (allegations) of Whistleblower ReprisalDoD IG has oversight of Title 10 reprisal investigations Military members have the right to appeal investigation results directly to the Secretary of Defense The A&I Guide , Part Two, Section 9-2 ; 10 USC 1034; DoDD 7050.06 ELO 3
Non-Appropriated Funds (NAF) WBR complaints DoD Inspector General (IG) www.dodig.mil U.S. Department of DefenseOffice of the Inspector General 4800 Mark Center Drive Alexandria, VA 22350-1500 Tel: (703) 604-8324 U.S. Army Inspector General School 15 The A&I Guide , Part Two, Section 9-2 ; 10 USC 1587; DoDD 1401.03 Agency Responsible for Investigating WBR (2 of 4) ELO 3
U.S. Army Inspector General School 16 Appropriated Fund Civilian WBR ComplaintsOffice of Special Counsel (OSC) www.osc.govU.S. Office of Special Counsel 1730 M Street, N.W., Suite 201Washington, D.C. 20036-4505 Tel: (800) 572-2249 or (202) 653-9125 The A&I Guide , Part Two, Section 9-2 ; 5 USC 2302(b)(8) Agency Responsible for Investigating WBR (3 of 4) ELO 3
U.S. Army Inspector General School 17 The A&I Guide, Part Two, Section 9-2; 10 USC 2409 Agency Responsible for Investigating WBR(4 of 4) DoD Contractor WBR complaints DoD Inspector General (IG) www.dodig.mil U.S. Department of Defense Office of the Inspector General 4800 Mark Center Drive Alexandria, VA 22350-1500 Tel: (703) 604-8324 ELO 3
U.S. Army Inspector General School 18 Summary Categories of Complainants Agencies that can receive WBR complaints Agency that has oversight of WBR cases
U.S. Army Inspector General School 19 What is Whistleblower Reprisal (WBR)?The taking of (or threatening to take) an Unfavorable Personnel Action (PA) - or - the withholding ( or threatening to withhold ) a Favorable Personnel Action (PA) BECAUSE the member made ( or was thought to have made ) a Protected Communication (PC)
U.S. Army Inspector General School 20 Whistleblower TermsPC: Protected Communication PA: Personnel Action RMO: Responsible Management Official WBR: Whistleblower Reprisal MOC : Member of Congress Restriction : Preventing or attempting to prevent military members from making or preparing to make lawful communications to a MOC and / or an IG WIOB : Whistleblower Investigations Oversight Branch, DAIG Assistance Division (SAIG-AC) 703-545-1858
U.S. Army Inspector General School 21Protected Communication (PC): First CategoryAny lawful (truthful) communication to:Members of Congress (to include Congressional staff members) Inspectors General Regardless of subject! (Restriction is a form of Reprisal)
U.S. Army Inspector General School 22Lawful (truthful) communications made to: DoD audit, inspection, investigation, or law enforcement organization Any person or organization in the chain of command; or any other person designated pursuant to regulations or established administrative procedures to receive such communications (e.g. EO, Safety Office, etc.) A court-martial proceeding (FY14 NDAA) Protected Communication (PC): Second Category (1 of 2)
U.S. Army Inspector General School 23Protected only if the communication concerns: Violations of law or regulation (includes EO, sexual misconduct & assault) Gross mismanagement Abuse of authority Gross waste of funds or resources Substantial danger to public health or safety Testimony or participation in an investigation Reasonably believed to be true by the complainant! DoDD 1401.03, Encl 1: 'Definitions' Protected Communication (PC): Second Category (2 of 2)
U.S. Army Inspector General School 24 Any action that taken on a member of the Armed Forces that materially affects, or has the potential to affect, that military member’s current position or career .Unfavorable or Favorable (produces a negative effect )Personnel Actions (PA)
U.S. Army Inspector General School 25Unfavorable Personnel Actions(Taken or Threatened – not definitive list) Permanent letters of reprimand Unfavorable, non-competitive, adverse, or referred evaluation reports Relief for cause Transfer or changes to duties or responsibilities Reenlistment / Separation proceedings Decisions concerning pay or benefits Disciplinary or other corrective actions Referrals for Mental Health Evaluation (MHE) Limited access to weapons/classified/flying etc .
U.S. Army Inspector General School 26Favorable Personnel Actions(Withheld or Threatened – not definitive list) Evaluations Promotion recommendation Award Training (required) Assignment Attendance at school (PME; MOS-required training) Transfer
U.S. Army Inspector General School 27 Responsible Management Official (RMO)Anyone who: Influenced or recommended the Personnel Action (PA) be taken Made the decision to take the PASigned applicable correspondence regarding the PAApproved, reviewed, or endorsed the PA * RMO can be a Service Member, GS Employee, or NAF Employee
U.S. Army Inspector General School 28 Reprisal or Retaliation? Reprisal is a form of retaliation; BUT not all retaliation is reprisal Reprisal = statutory and is related to 10 USC 1034. IGs must investigate military reprisal cases ; Commanders should investigate other forms of retaliation (ostracism and acts of cruelty, oppression, or maltreatment) For other forms of retaliation, consider using AR 600-20, Chapter 4-19, Chapter 8, or Appendix H; or AR 600-100, Chapter 1-11 Expect revisions in AR 600-20 to incorporate retaliation definition
U.S. Army Inspector General School 29 Attempting to prevent a Service Member from making a lawful communication to either a MOC or and IG (applies only to PC – Category I)Includes imposing unnecessary requirements to request, disclose, or report the PC in and effort to interfere, limit, block, or dissuade (complainant’s perspective) Restriction complaints to Category II recipients are not covered or investigated under 10 USC 1034 or DoDD 7050.06Does not have to be successful Restriction
U.S. Army Inspector General School 30 DoD phrase used to describe a probable cause-and-effect relationshipIn WBR – used to indicate that the likely reason for the PA is because the complainant made a PC Inference of Causation
U.S. Army Inspector General School 31The Elements of Proof Protected Communication?(PC) Personnel Action?(PA)Knowledge? (RMO Knowledge of the PC) Causation- Would the PA have happened absent the PC? Yes Yes Yes No REPRISAL The A&I Guide , Part Two, Section 9-1 ELO 4
U.S. Army Inspector General School 32 Question One: Did the complainant make or prepare a communication protected by statute? Was the complainant perceived as having made or prepared a PC? No actual communication is necessary PERCEPTION = REALITY If there is any doubt whether the complainant made a Protected Communication (PC) -- give the complainant the benefit of the doubt The A&I Guide, Part Two, Section 9-1 ELO 4
U.S. Army Inspector General School 33 What is a protected communication (PC)?What was the PC? To whom was the PC made? When was the PC made? T I M E L I N E Start WBR chronology early and update often! Protected Communication (PC) (1 of 3)
U.S. Army Inspector General School 34Protected Communication (PC)(2 of 3) Protected communications may be: Verbal, written, or electronic (telephone, fax, E-mail)Made by a third partyMade to the Responsible Management Official (RMO) Chain of command communications may include: Complaints made during commander’s office hours or open-door policy Complaints made in public forum Complaints made during Commander’s Call / Town Hall
U.S. Army Inspector General School 35 Timing: The exact date the communication occurred or was planned is criticalPreparing to communicate = communication: “I’m going to write my congressman.” “I’m fixen' to see the IG about this!”“I’m going to tell the old man about these safety violations the platoon sergeant is ordering us to do.” Protected Communication (PC) (3 of 3)
U.S. Army Inspector General School 36 Question Two: Was an unfavorable Personnel Action (PA)taken or threatened against the complainant, or was a favorable Personnel Action (PA) withheld or threatened to be withheld from the complainant following the Protected Communication (PC) ? The A&I Guide , Part Two, Section 9-1 ELO 4
U.S. Army Inspector General School 37Unfavorable Personnel Action? 1LT Newkirk claims her OER had all top-level ratings, but the narrative did not have the “hard-charging” words for her to remain competitive for promotion. SSG Mork's PCS was delayed pending the outcome of a CID investigation, and his NCO Academy slot was canceled. Eventually, the investigation cleared him of all charges. If there is any doubt whether the c omplainant received an unfavorable Personnel Action (PA) -- give the complainant the benefit of the doubt Maybe ... why? Probably Not ... why?
U.S. Army Inspector General School 38What if...Responsible management official did not consider the Personnel Action to be “adverse”?Personnel Action was subsequently reversed? Member left the service before the Personnel Action could have an effect?Doesn't matter. Still an unfavorable PA. Personnel Actions
U.S. Army Inspector General School 39 Question Three: Did the Responsible Management Official(s) (RMO) who took, withheld, or threatened the unfavorable personnel action know about the Protected Communication (PC), or perceive the complainant as having made or prepared a PC before they took the Personnel Action ? The A&I Guide , Part Two, Section 9-1 T I M E L I N E ELO 4 ‘ Timing is Everything'
U.S. Army Inspector General School 40Responsible Management Official Knowledge(1 of 5) Two-step process: Identify the Responsible Management Officials (RMO)All officials for each Personnel Action Determine if Responsible Management Officials (RMO) knew of the Protected Communication (PC) When did RMOs know? What did RMOs know? How did RMOs find out? Did anyone else know the RMOs knew?
U.S. Army Inspector General School 41 Timing:Determine exact date that each RMO:First considered taking the personnel actionInitiated the personnel action (began drafting) Completed the personnel action (or failed to complete)First notified the complainant of the personnel action (being considered, in progress, delivered or denied)Establish the timing for each personnel action Responsible Management Official Knowledge (2 of 5)
U.S. Army Inspector General School 42 Knowledge includes:Personally received the Protected Communication (PC)Heard rumors about the Protected Communication (PC) Suspicion or belief that the complainant may have made a Protected Communication (PC) Important to understand:Precise knowledge of the Protected Communication (PC) is not necessary Simple awareness that a (PC) occurred (regardless of subject or content) is sufficient Responsible Management Official Knowledge (3 of 5)
U.S. Army Inspector General School 43 Ask the complainant:“Who do you believe is responsible?” “Why do you believe the responsible management official knew you made a protected communication before taking the unfavorable action?” “Who can testify or provide documents to support your allegation that the responsible officials knew of your protected communication?” Responsible Management Official Knowledge (4 of 5)
U.S. Army Inspector General School 44 Ask each Responsible Management Official (RMO):“Did you know that the complainant made a PC?”“When and how did you first become aware of the complainant’s protected communications?”“When and how did you first come to believe or suspect that the complainant may have made (or intended to make) a protected communication?” “ How did you become aware?” “Did you suspect or hear rumors that the complainant made a PC?” Responsible Management Official Knowledge (5 of 5)
U.S. Army Inspector General School 45 What if...Responsible Management Officials (RMOs) deny having any knowledge of the protected communications (PCs)? No documentary evidence or corroborating witness testimony exists that the Responsible Management Officials (RMOs) knew of the protected communications (PCs)? Knowledge(1 of 2)
U.S. Army Inspector General School 46 Sometimes RMOs take action based on rumor or perception, which, even when not accurate, can still motivate reprisal If there is any doubt whether the Responsible Management Officials (RMOs) knew about the Protected Communication (PC) -- give the complainant the benefit of the doubt Knowledge (2 of 2)
U.S. Army Inspector General School 47Let’s Review(Timing) Time Personnel Action Knowledge of PC Protected Communication Time Knowledge of PC Protected Communication Personnel Action Is it reprisal? Time Protected Communication Knowledge of PC Personnel Action does not meet the elements of proof does not meet the elements of proof maybe? why?
U.S. Army Inspector General School 48 Question Four: Does a preponderance of credible evidence establish that the same Personnel Action(s) (PA) would have been taken, withheld, or threatened absent the Protected Communication (PC) ? (Most cases will be resolved here) The A&I Guide , Part Two, Section 9-1 ELO 4
U.S. Army Inspector General School 49 For each PA, consider:Reason for actionTiming between PC and PAMotive to reprise Disparate treatment of complainant as compared to others (also known as the 'four variables' ) Would the average RMO (Army Officer, NCO or DAC) consider the action reasonable ? The four elements of proof for Question 4! The A&I Guide , Part Two, Section 9-1 Causation (1 of 3)
U.S. Army Inspector General School 50 Causation(2 of 3) Documentary evidenceCopy of the Personnel Action Service regulations and policies (PA discretionary?)Other relevant documentsTestimonial evidence Complainant Responsible management officials (RMO) Anyone who decided, directed, recommended, or influenced the unfavorable personnel action Other key witnesses
U.S. Army Inspector General School 51 What was the effect of the Protected Communication (PC) on the Responsible Management Official (RMO)? What factors did the Responsible Management Official (RMO) consider in taking the action?Why did the action occur when it did? Was the action consistent with previous actions? Who can corroborate the Responsible Management Official’s (RMO's) testimony? Causation (3 of 3)
U.S. Army Inspector General School 52 Analyze Evidence and ConclusionsEvaluate documents and testimony What is credible, what is not, and whyResolve any conflicts Update chronology Standard: Preponderance of credible evidence T I M E L I N E
U.S. Army Inspector General School 53 Summary Difference between retaliation and reprisal? What is restriction? What are the four elements or proof for a reprisal allegation? What are the four variables considered within the element of Causation?
U.S. Army Inspector General School 54 Resolving WBR Complaints Allegations of Whistleblower Reprisal and restriction are resolved using the IGAP with some exceptions Primary Differences: DOD IG Investigation Notification to DAIG requirement Authority to conduct limited Fact Finding in Step 2 Dismissal Recommendation ROI Format Notification of Results Approval / Case closure procedures Punishment / Adverse Action
U.S. Army Inspector General School 55 WBR ConsiderationsIGs will NOT accept, or pursue, anonymous or third party complaints of WBR Steps 1 & 2 (IGAP): Open the case & assess for issues and allegations; separate Whistleblower allegations from all other issues and allegations Forward only the reprisal complaint(s ) (allegation(s)) and supporting documentation ( four required documents ) to Whistleblower Investigations Oversight Branch (WIOB) within five business days via e-mail to firstname.lastname@example.org.
U.S. Army Inspector General School 56 STEP 1: Receive the IGARComplaint Intake Process DA Form 1559Privacy Act Release Form Whistleblower Reprisal Questionnaire (WBRQ)Complainant Clarification Interview* Complainant Conduct. Complainants remain accountable for their own performance, behavior, and conduct. Whistleblower protection does not imply or grant immunity and does not interfere with appropriate application of military authority.
U.S. Army Inspector General School 57 ComplainantInterview Guidelines Interview complainant first (informal clarification followed by formal interview)Verify relevance of documents submitted Ask what the complainant believes were the RMO's motives to repriseIdentify witnesses (PC, Knowledge, PA, Causation) Character witnesses - Relevant to the reprisal?
U.S. Army Inspector General School 58 STEP 2: Preliminary AnalysisReporting Requirements: Notification to DAIG Four Required Documents to WIOB within five business days:Military Reprisal / Restriction Complaint Notification (MR / RCN), Include an exhibit list Include a timeline / chronology Include the Complaint Clarification Interview summary MFR Whistleblower Reprisal Questionnaire (WBRQ) Privacy Act Information Release DA 1559 – IG Action Request (IGAR) Note: DO NOT notify the RMO(s) or their Commander / Supervisor
U.S. Army Inspector General School 59 STEP 2: Preliminary AnalysisSelect a Course of Action (COA) When you receive a referral to inquire into and resolve a WBR case, the OOI has 2 COAs available:Dismissal (Military Reprisal Complaint – Determination (MRCD) Form)Investigation documented by a Summary WBR ROI or a (Standard) WBR ROIReporting IG granted authority to gather necessary evidence (minus the RMO), and analyze elements of proof until DAIG formally refers the case Each COA remains viable through the life of the investigative process
U.S. Army Inspector General School 60 COA ComparisonDismiss or Investigate Dismissal via MRCD Administrative and Substantive basis Complaint fails on 1 or more elements of proof Based on complainant input and documentary evidence RMO interviews are not necessary Must address the elements of proof Address causation using one or more of the 4 variables Summary WBR ROI: Not substantiated case RMO interviews are required RMO’s reasons for taking the action are supported by strong evidence & unrelated to the PCs Reliable evidence refutes Complainant’s version of events Evidence does not support PC (or PA) actually was madeEvidence reveals no knowledge of PC It becomes clear, mid‐investigation, that we probably shouldn’t have opened the case in the first place (Standard) WBR ROI: Substantiated cases and not substantiated cases Intense Congressional or media interest in case or related events Cases requiring significant analysis Robust documentation required DISMISS INVESTIGATE
U.S. Army Inspector General School 61 Dismissals (1 of 2) Dismissal Types – Administrative and Substantive Administrative Dismissal : Is withdrawn Complainant is uncooperative Is untimely with no compelling circumstances Complaints made directly to DoD IG and referred to the service have a limited window for dismissal: DoD IG retains oversight and final authority to dismiss A DISMISSAL IS NOT A SHORTCUT - based on EVIDENCE Command / local IG must still report to WIOB all reprisal allegations within five working days
U.S. Army Inspector General School 62 Dismissals (2 of 2) Substantive Dismissals: No PCNo PA PA Preceded the PC No RMO Knowledge No Inference of Causation Complainant not covered under 10 USC 1034 or DoDD 7050.06 No restriction as defined by 10 USC 1034 or DoDD 7050.06
U.S. Army Inspector General School 63 STEP 3: Notification & ReferralsWIOB will normally refer a case for investigation via a formal referral memorandum to the appropriate ACOM / ASCC / DRU IG (may further refer down to field level)Once the case is opened with DoD IG, the case cannot be closed until DoD IG approves an investigative report (ROI) or a dismissal recommendation (MRCD Form) Office of Inquiry (OOI) executes formal notifications when an Investigation is initiated. (No prior notifications authorized until OOI is established.
U.S. Army Inspector General School 64 STEP 4: Fact Finding Investigative Plan and Checklist Templates located on IGNET Website (through CITRIX) under ‘WIOB Branch POCs’ link, then Quick Reference LinksMust accompany ROI or dismissal recommendation to WIOB as exhibitOnce case is opened with DoD IG, the case cannot be closed until DoD IG approves an investigative report (ROI) or a dismissal recommendation (MRCD Form) Office of Inquiry (OOI) executes formal notifications when an Investigation is initiated. (No prior notifications authorized until OOI is established.
U.S. Army Inspector General School 65 STEP 4: Interview Guidelines Complainant – IG must execute a formal interview at some point during Step 2 or Step 4 (can combine CCI)Individuals authorized Special Victim Counsel (SVC) – IG must allow SVC’s presence during interview.RMO(s) – IG must interview RMO(s) as suspects.
U.S. Army Inspector General School 66 STEP 4: WBR ROISummary WBR Summary ROI or WBR Standard ROI RecommendationsIG will not recommend specific action IG will recommend “Forward the approved Whistleblower ROI to the appropriate commander to consider for appropriate action.”Legal Review – all WBR ROIs must have an accompanying legal review prior to submission to WIOB
U.S. Army Inspector General School 67 These are short! Strive for five or fewer pages No background section Allegation – Standard allegation format, briefly describes the reprisal alleged to have occurred Scope and Statutory Authority –format from traditional ROI Findings and Analysis: No subheadings; numbered list of findings ; build the case in a logical fashion to address the elements of reprisal Include only what is relevant; exclude irrelevant information Can also include critically important background information if necessary to allow the reader to understand the report STEP 4: WBR Summary ROI
U.S. Army Inspector General School 68 Once DoD IG approves ROI findings- WIOB will send final notifications to: ACOM / ASCC / DRU RMO(s) / Suspects Complainants Office of Inquiry informs the DA and RMO’s Commander DO NOT inform complainants, witnesses, or RMOs of findings / recommendations STEP 5: Notification of Results
U.S. Army Inspector General School 69 Military members have the right to appeal the Investigation results directly to the SECDEF Reconsideration requests should be referred to the DoD IG website Should the IG become aware of new information not previously considered, contact with recommendation to WIOB Only DoD IG can approve revised findings. STEP 6: Follow Up
U.S. Army Inspector General School 70 Close the case upon DoD IG approval of findings Field level IGs may close the case as long as an associated case remains open in the referral chain to DAIG (i.e. ACOM / ASCC / DRU) Final determination for all linked cases in IGARS must reflect the same findings for each as approved by DoD IG IGs should enter one allegation per RMO and per PA as alleged by the complainant with a determination code of S or N STEP 7: Close the IGAR
DAIG Message DAIG is the Office of Record for all WBR, DoD Action referral, Congressional, Presidential, and Senior Army Official cases The goal for completion of all IG cases is 180 days or less - cases do not get better with ageWhen the command and/or the IG does not investigate thoroughly and/or conduct appropriate final notification, they send a message that the Army tolerates misconduct Untimely completion of IG actions also sends a message that the complainants and their issues are unimportant Just like you will work for your Directing Authority, DAIG does too – SECARMY, CSA, VCSA, TIG and DTIG U.S. Army Inspector General School 71
Whistleblower Reprisal Trends and Issues Volume and timeliness are significant challenges283 cases open, 39% over 180-day requirement Average case open ~ 290 days All cases require full investigation as taught by TIGSHigh degree of documentation necessaryPoor quality investigations and reports significantly delay review and approval2/3 cases require additional work in WIOB to complete Soldiers in 'IG Purgatory' pending case resolution U.S. Army Inspector General School 72
U.S. Army Inspector General School 73 Command IG Report IssuesCase not thoroughly documented, includes: Unsupported suppositions, opinions, or findings / conclusions not supported by the evidence “New” issues presented by the complaint not addressed (particularly in command products) The report does not “clear the deck” – address all issues: PCs, UPAs, and RMOs for WBR cases Allegations, complaints and issues in standard IG ROI/ROIIs/HCRs Not ALL necessary personnel have been interviewed: Subject/Suspects, the Complainant, and key witnesses! Due process requirements not met: Subject/suspect initial notification Legal review and final notifications The report is poorly done and would not stand up to outside scrutiny Poorly or improperly framed allegations, or does not quote or clearly reference the standard Requires addendum/amendment by ACOM, ASCC, DRU or DA IG Office The complete case file is not uploaded in the IGARS
Whistleblower Reprisal Tool Kit Receiving the IGAR Have the complainant fill out a questionnaire and justification if untimely Go over the questionnaire with the complainantIf you don’t understand it, we won’t eitherMake sure the details are specific (i.e. exact dates, actions, names, etc.- squeeze the complainant for details ) Identify the PCs Identify the PAs Lay out the timeline Identify the documents the complainant must provide and a suspense date Make sure the complainant understands we are going to contact the unit for official copies of documents etc. Complainant comes in with a reprisal complaint Do an informal interview, explain what reprisal is and what reprisal is not We deal with statutory reprisal as defined in 10 USC 1034 and DODD 7050.06 We will not stop any ongoing actions It is not a way out of trouble you got yourself in We are fair and impartial, not complainant advocates Determine if it is statutory reprisal or something else (such as an AR 600-20 complaint) Beware of documents out of context, get the complete document, be sure you understand exactly what it says. U.S. Army Inspector General School 74
Whistleblower Reprisal Tool KitInterviews Complainant interviews are non-negotiable for all WBR cases; Rule 1: Do it the way they teach you in TIGS Rule 2: Doing it right the first time, will be more efficient in the long run Rule 3: For exceptions, see rule number 1 Witnesses and RMOs Transcribed testimony is always best Detailed summaries back up by recordings may be acceptable; but they better be detailed, no 1 page MFRs The value of the interview is in the follow-up questions that elicit detail; the pre-printed question format is normally worthless (usually the hallmark of a lazy IG) Detailed background research and preparation; know everything you can know prior to the interview Have a plan, based on the information available, anticipate what will resolve the complaint and how you will get that information from the interviewee Develop your interrogatory; define success Organize supporting evidence for rapid access Rehearse The more prepared you are, the better you can react to what comes up in the interview Interviews are interactive—listen to answers and follow-up U.S. Army Inspector General School 75
Whistleblower Reprisal Tool KitReports Establish RMO knowledge (or not) or explain how you resolved and why Interview transcripts – Prioritize complainants and RMO (Suspects) Your inquiry must determine if the action was or was not appropriate given the complainant’s performance, behavior, and conduct or was taken in reprisal for a PC Your report should leave nothing dangling - Answer questions before they are asked You are writing for someone who is not you -- - To understand what you found 30 years from now - May be Army senior leaders, DODIG , an MOC, interest group/media, or some other unanticipated agency Don’t assume, make unsupported suppositions, or leaps of logic; explain everything and peer review your work - Do not write a mystery novel, say where you are going and go there in a logical manner Follow the format in the A&I Guide Section II, Chapter 9 Include in your ROI: For each PC – Need each complaint / PC with disposition (whatever resolved the complaint, complete) - IG complaint, IGAR, investigative product, result - EO complaint, EO inquiry - Command inquiry – AR 15-6 (or other report)- Regulatory guidance for the action For each PA – All supporting documentation- Art 15 with supporting evidence / documents- Separation with all supporting documents - Award with DA 638 and unit log (if appropriate)- OER / NCOER with drafts, -1, counseling, APFT (HT/WT), and so forth - Regulatory guidance for the action U.S. Army Inspector General School 76
U.S. Army Inspector General School 77 Summary Categories of Complainants What are the four elements or proof / questions for a reprisal allegation? Differences of a WBR Investigation versus a standard IG Investigation
U.S. Army Inspector General School 78 Questions?