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 DOD’s guidance related to the whistleblower program is outdated and does not reflect current investigative processes.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: Closed - Implemented

    Comments: DODIG concurred with GAO's recommendations and took action to implement policies and procedures to track timeliness in the various phases of investigation process. Specifically, on July 14, 2016, DODIG issued a data entry guide with instructions regarding how and when users are to enter information, including dates, into its case management system to ensure consistency. Specifically, the guide establishes data entry rules for users in DOD Inspector General, Whistleblower Reprisal Investigations Directorate to ensure that information entered into the Defense Case Activity Tracking System is accurate and consistent. DODIG also took other steps to ensure complete recording and consistent tracking of total case processing time. Specifically, as of December 2012, DODIG has used a case management system that can track investigation dates. DODIG has also updated policies related to case processing time. Specifically, on February 12, 2012, DODIG issued memos to all military service IGs re-emphasizing the statutory requirement to notify servicemembers if their whistleblower reprisal investigation has not been completed within 180 days. Additionally, on October 19, 2014, DODIG issued a whistleblower reprisal investigative guide for military service IGs. DODIG also issued its whistleblower reprisal directive, '7050.06' on April 17, 2015 which updated policies pursuant to Title 10 Section 1034. Additionally, since April, 2016, DODIG has implemented new tracking features in its case management system to track phases and milestones. By taking these measures, DODIG is better positioned to ensure accurate and complete recording and consistent tracking of case processing time.

    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: Closed - Implemented

    Comments: DOD concurred with our recommendation and indicated that DODIG is taking steps to address this area, including revising its manual for administrative investigations to include clearly defined performance metrics. DODIG officials told us that they began the development of performance metrics, to measure the quality of its investigations and oversight reviews, in 2012. For example, in 2015 we reported that a senior DODIG official said that on a quarterly basis, DODIG completes an internal control checklist for 20 DODIG whistleblower reprisal investigations and 20 oversight reviews of service IG military whistleblower reprisal investigations to assess the thoroughness of the case files and the completeness of the information in DODIG's whistleblower case management system, among other things. This quality assurance process is based on checklists for both investigations and oversight reviews, to identify and define the required components. From these checklists, officials established numeric parameters--greater than 81 percent complete is green, 71 percent through 80 percent is yellow, and anything below 70 percent is red--that indicate numeric metrics for performance. DODIG officials stated in July 2016 that they continued to conduct quality assurance reviews and collect associated metrics in fiscal year 2015, but that they have not briefed these metrics to the Inspector General since fiscal year 2014 and that changes to the metrics briefings are forthcoming per direction from the Inspector General and Principal Deputy Inspector General. We will continue to work with the DODIG and monitor its progress in implementing and communicating these performance metrics during our ongoing review assessing whistleblower reprisal investigation processes for DOD civilian employees and contractors.

    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: Closed - Implemented

    Comments: DODIG concurred with GAO's recommendations and took action to track and analyze timeliness data to process cases within the 180 days provided by law. Specifically, in April, 2016, DODIG supplied quarterly timeliness reports for its whistleblower reprisal investigations which GAO deemed sufficient. In addition, DODIG has also taken action to track and analyze the timeliness data in their case management system. Specifically, since December 2012, DODIG has begun using key investigation date fields in its case management system to track and analyze timeliness data. By taking these actions, DODIG is better positioned to analyze timeliness data to identify reforms that could aid in processing cases within the 180 days provided by law.

    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 2016, this recommendation remains open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation August 11, 2016. DODIG officials agreed to send a memo outlining the nature and schedule of a proposed letter to be sent to selected congressional committees to fulfill this recommendation. GAO concurred that that it would be receptive to closing this recommendation after receipt of the memo outlining DODIG's plans to regularly report timeliness information to Congress.

    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: Closed - Implemented

    Comments: DODIG has taken steps to update its whistleblower reprisal investigative guidance. For example, in April 2015, DOD released an update to its Directive 7050.06 on Military Whistleblower Protection, which establishes policies and assigns responsibilities for military whistleblower protection, and defines key terminology. Prior to that, in October 2014, DODIG issued the new "Guide to Investigating Military and Whistleblower Reprisal and Restriction Complaints," which DODIG introduced to service investigators during a session at its semi-annual symposium. This guide is intended for the service IGs and describes best practices for conducting military reprisal and restriction intakes and investigations. By implementing GAO's recommendation and updating guidance on investigations, DODIG is in a better position to ensure consistent whistleblower program implementation.

    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: Closed - Implemented

    Comments: As of February 2016, DOD has taken actions to consistently monitor the status of whistleblower reprisal cases in response to this recommendation. For example, in 2011, DODIG established a team to review all investigations conducted by the service inspectors general, in which DODIG is responsible for oversight. In addition, DODIG began using a new case management system in December 2012 to monitor its whistleblower reprisal investigations, which allows investigators to track investigations and store investigation documentation records. In addition, in February 2016, DODIG provided evidence of its efforts to monitor whistleblower reprisal investigations conducted by the military service inspectors general. Specifically, in July 2015, DODIG began providing the services monthly notifications of investigations that were approaching 180-days, to help ensure compliance with the statutory requirement to notify servicemembers if investigations into allegations of reprisal are not completed within 180 days.

    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: Closed - Implemented

    Comments: As of February 2016, DODIG has taken steps to improve oversight of corrective action to consistently track and regularly reconcile data regarding corrective action. Specifically, DODIG's case management system, which it began using in December 2012, allows it to track data regarding corrective action for individual cases. In addition, DODIG updated its Investigations Manual in 2016 to provide instruction for both routinely monitoring corrective action and populating data fields for substantiated cases that require follow-up to obtain information on the remedies and corrective actions. Finally, in April 2016, DODIG provided a report detailing corrective action, including remedies provided to complainants and command actions taken in response to substantiated reprisal cases between fiscal year 2012 and January 2016.DODIG officials noted one limitation of their efforts to track corrective action, which is that, as of August 2016, they are unable to produce a list of substantiated allegations that do not have associated corrective actions, which would indicate which corrective action recommendations are outstanding.

    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 August 2016, DODIG has taken action but not completed the implementation of this recommendation. DODIG officials report that they are recording the command action in response to substantiated reprisal investigation in their case management system. Future improvements in the new case management system 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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