Whistleblower Protection:

Actions Needed to Improve DOD's Military Whistleblower Reprisal Program

GAO-12-362: Published: Feb 22, 2012. Publicly Released: Feb 22, 2012.

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What GAO Found

DODIG has taken multiple steps, in collaboration with the service IGs in some instances, to improve DOD’s ability to process military whistleblower reprisal cases in a timely manner. Timeliness is important to ensure the reliability of evidence and appropriate resolution of reprisal allegations. However, DODIG has generally not met statutory requirements to report on investigations within 180 days, or to provide alternative notification. DODIG has undertaken efforts to improve timeliness by, for example, eliminating a time-consuming phase of its investigative process. However, DOD’s efforts are hampered by unreliable and incomplete data. For instance, GAO found that DODIG has not consistently or accurately recorded key dates to track how long investigations take to complete. Without key timeliness data, DODIG may have difficulty in identifying process areas requiring improvement and evaluating the impact of reforms. Further, the absence of this information limits congressional decision makers’ ability to provide oversight of DOD’s whistleblower reprisal investigative program.

DODIG has begun executing an action plan that includes acting on prior external and internal review recommendations in order to improve its oversight of the department’s whistleblower reprisal process, but implementation of this plan is not yet complete and challenges exist in three areas:

  • Performance metrics. DODIG has not yet established performance metrics to ensure the quality of reprisal investigations.
  • Guidance. DOD’s guidance related to the whistleblower program is outdated and does not reflect current investigative processes. Additionally, some of the guidance is unclear, leading to inconsistent implementation among the service IGs. Moreover, DODIG has not been consistently adhering to standards regarding the maintenance of its case files, resulting in generally incomplete files.
  • Case monitoring processes and procedures. DODIG lacks standard case monitoring processes and procedures, which may hinder its ability to consistently maintain visibility and assess the status of outstanding reprisal investigations including those conducted by service and component IGs.

Until it further addresses the challenges it faces in regard to oversight mechanisms, DODIG cannot be assured that it is effectively conducting its oversight responsibilities or implementing the whistleblower reprisal program as intended.

DOD’s efforts to ensure that appropriate corrective action is taken—both for whistleblowers and against those who reprise against whistleblowers—are hampered by disconnected investigative and corrective action processes and the limited visibility of the corrective actions taken. DODIG and the service BCMRs are not consistently identifying and tracking data on action taken to undo the reprisal damage done to whistleblowers. Further, unreliable data regarding corrective action taken against those found to have reprised against whistleblowers is hindering oversight of this key aspect of whistleblower protections. Without addressing these issues, whistleblowers may not be getting the full protection and resolution they deserve.

Why GAO Did This Study

Whistleblowers help guard the federal government against waste, fraud, and abuse. The Military Whistleblower Protection Act provides servicemembers with a means to seek relief from reprisals and to hold subjects accountable. GAO was asked to determine the extent to which the Department of Defense (DOD) has (1) satisfied statutory timeliness requirements for processing military whistleblower reprisal cases, (2) established and implemented oversight mechanisms for its process, and (3) taken corrective action in cases where the DOD Inspector General (DODIG) substantiated reprisal claims. GAO also analyzed case characteristics. GAO examined laws, regulations, and guidance documents; interviewed officials from DODIG, service IGs, service Boards for the Correction of Military Records (BCMRs), and the Office of the Undersecretary of Defense for Personnel and Readiness; and collected and analyzed case data. GAO also conducted a detailed file review using a representative sample of cases closed between January 1, 2009 and March 31, 2011.

What GAO Recommends

GAO recommends that DOD implement procedures to track and report data on its case processing timeliness, take actions to improve oversight of its investigative process, and develop processes to ensure appropriate corrective actions are taken in substantiated cases. DOD concurred with all of GAO’s recommendations.

For more information, contact Zina Merritt at (202) 512-5257 or merrittz@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: As of March 2015, DODIG has not yet completed updates to key guidance documents that could clarify policies to help ensure accurate and complete recording and tracking of whistleblower reprisal case processing time. For example, DODIG has not completed updates to its whistleblower reprisal directive DODI 5060.06. Some policies that DODIG has updated or clarified include 1) a whistleblower reprisal investigative guide for the service IGs that DODIG issued in October 2014, and 2) a memo that DODIG issued to the service IGs in 2012 re-emphasizing the statutory requirement to notify servicemembers if their whistleblower reprisal investigaton has not been complated within 180 days. In December 2012, DODIG transitioned to a case management system that officials say can track investgation dates. DODIG has provided staff with some guidance regarding the date fields required to track total case processing time. Further, DODIG has documented and begun to implement quality control measures that will help ensure accurate and complete data. DODIG has also outlined specific timeliness metrics for various phases of investigations and reviews conducted by DODIG. Investigations conducted by the service IGs are subject to the DOD regulatory 180-day total case processing time requirements, but they are not subject to the timeliness metrics DODIG is using internally.

    Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should 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.

    Agency Affected: Department of Defense

  2. Status: Open

    Comments: As of August 2014, DODIG has taken steps to develop performance metrics, including developing and utilizing oversight worksheets to review the files for cases investigated by both the DODIG and service IGs. As of August 2013, performance metrics, including timeliness of various portions of investigative and review processes, are also part of DODIG performance agreements, according to DODIG officials. Further, the internal DODIG manual (applicable only to investigations conducted by DODIG) describes the components of a quality investigation and standards to ensure that case files contain evidence to support the conclusions. A more detailed internal manual focused on whistleblower reprisals, currently in draft, will provide more detail on metrics and best practices, according to DODIG officials. The draft investigative guide that will be distributed to the service IGs will also include best practices that reflect DODIG's metrics on quality and effectiveness of the investigative process, according to DODIG officials.

    Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should 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.

    Agency Affected: Department of Defense

  3. Status: Closed - Implemented

    Comments: DODIG now provides more detailed recommendations in its record of investigation regarding corrective action for the complainant in substantiated military whistleblower reprisal cases. Further, the letter sent by DODIG and/or the service IGs to all complainants with substantiated cases includes a partially-completed application to the service Boards for the Correction of Military Records (BCMR) as well a form letter explaining that the complainant must seek relief from their service BCMR.

    Recommendation: To better ensure that whistleblowers obtain the relief they are due, the Secretary of Defense should 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.

    Agency Affected: Department of Defense

  4. Status: Closed - Implemented

    Comments: As of August 2014, DODIG and the service Boards for the Correction of Military Records (BCMRs) have taken actions to better identify substantiated military whistleblower reprisal cases. For example, DODIG copies each of the service BCMRs on the closure letters it provides to all complainants. When DOD substantiates a reprisal complaint, DODIG provides the complainant with a partially completed BCMR application. The Air Force BCMR reports that the Air Force IG has established a notification system to advise the Air Force (BCMR) of substantiated cases, which allows the BCMR to crosscheck applications. The Air Force BCMR has also conducted training to ensure reprisal cases are appropriately identified. The Navy BCMR and Navy and Marine Corps IGs have entered into a memorandum of understanding to ensure a better hand-off of substantiated whistleblower cases from the IG to the BCMR. A DODIG memo also notes that the Army BCMR suggested that DODIG provide complainants with substantiated whistleblower reprisal cases with a partially completed application to the BCMR as a way to help ensure that whistleblowers are identified by the BCMRs.

    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, the Secretary of Defense should 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.

    Agency Affected: Department of Defense

  5. Status: Closed - Implemented

    Comments: On April 17, 2015, DOD issued an update to its military whistleblower protection directive (DODD 7050.06), which standardizes service requirements to report corrective actions taken in response to substantiated military whistleblower reprisal investigations. Specifically, DODD 7050.06 requires the secretaries of the military departments to take corrective action and notify DODIG of the corrective action taken within 10 working days of taking such action. In addition, DODIG has taken additional actions to standardize corrective action reporting requirements. Specifically, as of August 2014, DODIG reports that it is captures information in its database related to corrective action taken by the services in substantiated military whistleblower reprisal cases, including remedies for the complainant and command action against subjects. Also, DODIG's closure letter to service IGs in substantiated cases requests notification regarding corrective actions taken and any remedies for the servicemember. Further, DODIG officials state that they regularly follow-up with the service IGs regarding corrective actions until received.

    Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to establish standardized corrective action reporting requirements.

    Agency Affected: Department of Defense

  6. Status: Open

    Comments: As of August 2014, DODIG has transitioned to a database that allows it to track total case processing time. However, DODIG will not be able to generate reports from the database detailing the timeliness of various investigative phases until an upcoming phase of development is complete. According to DODIG officials, future improvements will also allow it to reliably track total case processing times for cases investigated by the service IGs. DODIG is not tracking phases of the investigations conducted by the service IGs and currently does not plan on doing so, according to DODIG officials.

    Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should work in coordination with DODIG to track and analyze timeliness data to identify reforms that could aid in processing cases within the 180 days provided by law.

    Agency Affected: Department of Defense

  7. Status: Open

    Comments: As of August 2014, DODIG has not implemented this recommendation. DODIG officials report that they have provided general or ad hoc timeliness information to various Members of Congress or their staff as requested. DODIG does not provide a regular report on timeliness, including cases exceeding 180 days.

    Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should work in coordination with DODIG to 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.

    Agency Affected: Department of Defense

  8. Status: Open

    Comments: This recommendation is partially implemented. DODIG has taken steps to update some whistleblower reprisal investigative guidance. For example, in November 2014 DODIG issued a whistleblower reprisal investigative guide to the service IGs, which DODIG introduced to service investigators during a session at its semi-annual symposium. The guide contains x, y, z. In addition, on April 17, 2015, DOD issued an update to its military whistleblower protection directive (DODD 7050.06, Apr. 17, 2015) which....DODIG has also including clarified total case processing time and 180-day notification requirements to the service IGs, but key investigative guidance has not yet been finalized regarding the whistleblower reprisal investigative process, including the directive, internal manual, and investigative guide. DODIG officials report that this guidance will specify reporting requirements, responsibilities, and terminology.

    Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should work in coordination with DODIG to update whistleblower reprisal investigative guidance and ensure that it is consistently followed, including clarifying reporting requirements, responsibilities, and terminology.

    Agency Affected: Department of Defense

  9. Status: Open

    Comments: As of August 2014, DODIG has begun to implement the recommendation to consistently monitor the status of whistleblower reprisal cases. For example, DODIG has established an oversight team to review all investigations conducted by the service IGs. The team includes a position dedicated to monitoring the status of whistleblower reprisal investigations conducted by the service IGs and reconciling service and DODIG information on cases, according to DODIG officials. Further, DODIG plans to upgrade its database, so that it will automatically generate prompts to alert investigators of upcoming deadlines.

    Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should work in coordination with DODIG to consistently monitor the status of whistleblower reprisal investigations.

    Agency Affected: Department of Defense

  10. Status: Open

    Comments: As of May 2014, DODIG's database allows it to consistently track data regarding corrective action for individual cases only. The capability to generate reports on corrective action for multiple cases will be developed in the next development cycle, according to DODIG officials. In the meantime, DODIG is manually following up with the service IGs regarding corrective action. DODIG is not reconciling data with the service Boards for the Correction of Military Records (BCMRs).

    Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to consistently track and regularly reconcile data regarding corrective action.

    Agency Affected: Department of Defense

  11. Status: Open

    Comments: As of March 2014, DODIG has not implemented this recommendation. DODIG officials report that they are recording the data and future improvements in the new database will allow it to generate reports on corrective action. Recent semiannual reports to Congress contain examples of corrective action taken but DODIG is not reporting on the frequency and type of corrective action taken in response to substantiated reprisal claims.

    Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to 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.

    Agency Affected: Department of Defense

 

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