oversight

Whistleblower Protection: Actions Needed to Improve DOD's Military Whistleblower Reprisal Program

Published by the Government Accountability Office on 2012-02-22.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States Government Accountability Office

GAO             Report to the Ranking Member,
                Committee on the Judiciary,
                U.S. Senate


February 2012
                WHISTLEBLOWER
                PROTECTION
                Actions Needed to
                Improve DOD’s
                Military
                Whistleblower
                Reprisal Program




GAO-12-362
                                              February 2012

                                              WHISTLEBLOWER PROTECTION
                                              Actions Needed to Improve DOD’s Military
                                              Whistleblower Reprisal Program
Highlights of GAO-12-362, a report to the
Ranking Member, Committee on the Judiciary,
U. S. Senate




Why GAO Did This Study                        What GAO Found
Whistleblowers help guard the federal         DODIG has taken multiple steps, in collaboration with the service IGs in some
government against waste, fraud, and          instances, to improve DOD’s ability to process military whistleblower reprisal
abuse. The Military Whistleblower             cases in a timely manner. Timeliness is important to ensure the reliability of
Protection Act provides                       evidence and appropriate resolution of reprisal allegations. However, DODIG has
servicemembers with a means to seek           generally not met statutory requirements to report on investigations within 180
relief from reprisals and to hold             days, or to provide alternative notification. DODIG has undertaken efforts to
subjects accountable. GAO was asked           improve timeliness by, for example, eliminating a time-consuming phase of its
to determine the extent to which the          investigative process. However, DOD’s efforts are hampered by unreliable and
Department of Defense (DOD) has (1)
                                              incomplete data. For instance, GAO found that DODIG has not consistently or
satisfied statutory timeliness
                                              accurately recorded key dates to track how long investigations take to complete.
requirements for processing military
whistleblower reprisal cases, (2)
                                              Without key timeliness data, DODIG may have difficulty in identifying process
established and implemented oversight         areas requiring improvement and evaluating the impact of reforms. Further, the
mechanisms for its process, and (3)           absence of this information limits congressional decision makers’ ability to
taken corrective action in cases where        provide oversight of DOD’s whistleblower reprisal investigative program.
the DOD Inspector General (DODIG)             DODIG has begun executing an action plan that includes acting on prior external
substantiated reprisal claims. GAO            and internal review recommendations in order to improve its oversight of the
also analyzed case characteristics.           department’s whistleblower reprisal process, but implementation of this plan is
GAO examined laws, regulations, and
                                              not yet complete and challenges exist in three areas:
guidance documents; interviewed
officials from DODIG, service IGs,            •   Performance metrics. DODIG has not yet established performance metrics to
service Boards for the Correction of              ensure the quality of reprisal investigations.
Military Records (BCMRs), and the             •   Guidance. DOD’s guidance related to the whistleblower program is outdated and
Office of the Undersecretary of                   does not reflect current investigative processes. Additionally, some of the
Defense for Personnel and Readiness;              guidance is unclear, leading to inconsistent implementation among the service
and collected and analyzed case data.             IGs. Moreover, DODIG has not been consistently adhering to standards
GAO also conducted a detailed file                regarding the maintenance of its case files, resulting in generally incomplete files.
review using a representative sample          •   Case monitoring processes and procedures. DODIG lacks standard case
of cases closed between January 1,                monitoring processes and procedures, which may hinder its ability to consistently
2009 and March 31, 2011.                          maintain visibility and assess the status of outstanding reprisal investigations
What GAO Recommends                               including those conducted by service and component IGs.

GAO recommends that DOD                       Until it further addresses the challenges it faces in regard to oversight
implement procedures to track and             mechanisms, DODIG cannot be assured that it is effectively conducting its
report data on its case processing            oversight responsibilities or implementing the whistleblower reprisal program as
timeliness, take actions to improve           intended.
oversight of its investigative process,       DOD’s efforts to ensure that appropriate corrective action is taken—both for
and develop processes to ensure               whistleblowers and against those who reprise against whistleblowers—are
appropriate corrective actions are
                                              hampered by disconnected investigative and corrective action processes and the
taken in substantiated cases. DOD
                                              limited visibility of the corrective actions taken. DODIG and the service BCMRs
concurred with all of GAO’s
recommendations.
                                              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.
View GAO-12-362. For more information,
contact Zina Merritt at (202) 512-5257 or
merrittz@gao.gov.

                                                                                         United States Government Accountability Office
Contents


Letter                                                                                      1
               Background                                                                   4
               DODIG Is Generally Not Meeting Timeliness Requirements and
                 Improvement Efforts Are Hindered by Unreliable and
                 Incomplete Data                                                          13
               DODIG Is Taking Steps to Address Whistleblower Reprisal Process
                 Weaknesses but Oversight Challenges Remain                               24
               DOD Efforts to Ensure Corrective Actions Are Taken in
                 Substantiated Cases Are Hindered by Disconnected Investigative
                 and Corrective Action Processes and Unreliable Data                      34
               Conclusions                                                                47
               Recommendations for Executive Action                                       48
               Agency Comments and Our Evaluation                                         49

Appendix I     Scope and Methodology                                                      53



Appendix II    General Information on Case Characteristics for Military
               Whistleblower Reprisal Investigations                                      60



Appendix III   Comparison of Whistleblower Reprisal Cases That Were and Were Not
               Identified as Reprisal by Service BCMRs                           72



Appendix IV    Comments from the Department of Defense                                    74



Appendix V     GAO Contacts and Staff Acknowledgments                                     79



Tables
               Table 1: Roles and Responsibilities of Key Organizations and
                        Individuals in the Military Whistleblower Reprisal Process          6
               Table 2: Reprisal Process Implementation Differences by
                        Investigating Organization                                        12




               Page i                                      GAO-12-362 Whistleblower Protection
          Table 3: Mean Case Processing Time by Investigative Phase of
                   Sampled Cases Closed between January 1, 2009 and March
                   31, 2011                                                          18
          Table 4: Timeliness Accuracy by Investigative Phase of Sampled
                   Cases Closed between January 1, 2009 and March 31, 2011           21
          Table 5: Estimated Level of DODIG Case File Folder Completeness
                   for Cases Closed between January 1, 2009 and March 31,
                   2011                                                              31
          Table 6: Substantiated Reprisal Cases Submitted to BCMRs and
                   Their Outcome for Cases Closed between Fiscal Year 2006
                   and the First Half of Fiscal Year 2011                            36
          Table 7: Substantiated Reprisal Cases Submitted to BCMRs
                   Compared to All Substantiated Cases for Cases Closed
                   Between Fiscal Year 2006 and the First Half of Fiscal Year
                   2011                                                              37
          Table 8: Comparison of Substantiated Cases Identified and Not
                   Identified as Reprisal by the BCMRs (for Cases Closed
                   between Fiscal Year 2006 and the First Half of Fiscal Year
                   2011)                                                             43
          Table 9: Organizations Met with During Review                              53


Figures
          Figure 1: The Military Whistleblower Reprisal Investigative
                   Process, as of January 2012                                        9
          Figure 2: Acid Test for Military Whistleblower Reprisal Allegations        11
          Figure 3: Average Number of Staff at the DODIG Military
                   Whistleblower Reprisal Directorate from Fiscal Year 2006
                   through Fiscal Year 2011                                          15
          Figure 4: Relative Service Size vs. Percentage of Whistleblower
                   Complaints by Service for Cases Closed between Fiscal
                   Year 2006 and the First Half of Fiscal Year 2011                  61
          Figure 5: Number of Closed Cases between Fiscal Year 2006 and
                   the First Half of Fiscal Year 2011                                64
          Figure 6: Comparison of Substantiated, Not Substantiated, and
                   Cases Not Fully Investigated for Military Whistleblower
                   Reprisal Cases Closed between Fiscal Year 2006 and the
                   First Half of Fiscal Year 2011                                    66
          Figure 7: Mean Yearly Number of Closed Cases by Phase of
                   Investigation and Investigating Organization between
                   Fiscal Year 2006 and the First Half of Fiscal Year 2011           68




          Page ii                                     GAO-12-362 Whistleblower Protection
Figure 8: Percentage of Full Investigations out of Total Closed
         Investigations by Investigating Organization                                     69
Figure 9: Percentage of Substantiated Investigations Out of Total
         Closed Investigations by Investigating Organization                              70




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Page iii                                              GAO-12-362 Whistleblower Protection
United States Government Accountability Office
Washington, DC 20548




                                   February 22, 2012

                                   The Honorable Charles E. Grassley
                                   Ranking Member, Committee on the Judiciary
                                   United States Senate

                                   Whistleblowers play an important role in safeguarding the federal
                                   government against waste, fraud, and abuse, and their willingness to
                                   come forward can contribute to improvements in government operations.
                                   These whistleblowers also risk reprisals from their employers, sometimes
                                   being demoted, reassigned, or fired. In 1988, Congress enacted the
                                   Military Whistleblower Protection Act, 1 which provides protections from
                                   reprisal for a servicemember who discloses information concerning,
                                   among other things, fraud, waste, and abuse to designated persons such
                                   as an inspector general (IG) or someone in the servicemember’s chain of
                                   command. 2 Under this law, the Department of Defense (DOD) IG has
                                   final responsibility for approving the results of all investigations, although
                                   both DODIG and the service IGs can investigate allegations of reprisal. 3




                                   1
                                     National Defense Authorization Act, Fiscal Year 1989, Pub. L. No. 100-456, §846
                                   (1988), codified at 10 U.S.C. § 1034, as amended.
                                   2
                                     Specifically, 10 U.S.C. § 1034 prohibits individuals from restricting a member of the
                                   armed forces (hereafter referred to as servicemember) from making a lawful
                                   communication to a Member of Congress or an Inspector General (IG). It further prohibits
                                   individuals from taking or threatening to take an unfavorable personnel action, or
                                   withholding or threatening to withhold a favorable personnel action, as a reprisal against a
                                   servicemember for making or preparing to make a lawful communication to a Member of
                                   Congress or an IG or from communicating to a Member of Congress, IG, a member of a
                                   Department of Defense audit, inspection, investigation, or law enforcement organization;
                                   any person or organization in the chain of command; or any other person or organization
                                   designated pursuant to regulations or other established administrative procedures for such
                                   communications regarding what the servicemember reasonably believes to be evidence of
                                   any of the following: a violation of law or regulation, including a law or regulation
                                   prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross
                                   waste of funds, an abuse of authority, or a substantial and specific danger to public health
                                   or safety.
                                   3
                                     Department of Defense Directive 7050.06, Military Whistleblower Protection (Jul. 23,
                                   2007) defines the military department IGs as including the IG of the Army, the Naval IG,
                                   the IG of the Air Force, and the Deputy Naval IG for Marine Corps Matters (Marine Corps
                                   IG). In this report, we refer to these organizations collectively as the service IGs.




                                   Page 1                                                GAO-12-362 Whistleblower Protection
Despite the protections afforded to military whistleblowers under the
Military Whistleblower Protection Act and subsequent amendments,
concerns persisted that servicemembers were not being adequately
protected by DOD’s investigative process. In response, DODIG requested
that the Department of Justice IG assess whether DODIG was properly
and effectively discharging its statutory responsibilities to protect
members of the Armed Forces from reprisal. 4 The resulting July 2009
report 5 highlighted timeliness in processing complaints as DOD’s biggest
challenge and made detailed recommendations for improvement based
on the underlying report findings.

To assist Congress in providing oversight of DOD’s efforts to protect
military whistleblowers, you asked us to examine DOD’s military
whistleblower reprisal process. Specifically, this report examines the
extent to which DOD has (1) satisfied statutory timeliness requirements
for processing military whistleblower reprisal cases and what factors, if
any, impact its ability to do so; (2) established and implemented oversight
mechanisms for its military whistleblower reprisal process; and (3) taken
corrective action in cases where DODIG substantiated military
whistleblower reprisal claims. The report also identifies key characteristics
of military whistleblower reprisal cases.

To address these objectives, we reviewed a random selection of case
files retained by DODIG for military whistleblower reprisal cases closed
between January 1, 2009 and March 31, 2011, to identify case
characteristics, and address the extent to which DODIG met timeliness




4
  The Department of Justice IG review examined: (1) the statute and DOD regulations
relating to military whistleblowers; (2) the allocation of responsibility for conducting
investigations of military whistleblower reprisal allegations among the DODIG and the
service IGs; (3) the management, staffing, and processes of the DODIG directorate
responsible for military whistleblower reprisal investigations; (4) the quality of DODIG’s
investigative product and its oversight of the service IGs’ processing and investigation of
reprisal complaints; and (5) the effectiveness of DODIG in satisfying its legal obligations
and ensuring that reprisal allegations are thoroughly and fairly investigated.
5
  U.S. Department of Justice, Office of the Inspector General, A Review of the Department
of Defense Office of Inspector General’s Process for Handling Military Whistleblower
Reprisal Allegations (July 2009).




Page 2                                                 GAO-12-362 Whistleblower Protection
requirements and had oversight mechanisms in place. 6 The margin of
error associated with the confidence intervals of our case file review
proportion estimates is no more than plus or minus 11 percentage points
at the 95 percent level of confidence. The margin of error for any mean
values based on our case file review will vary depending on the variability
of the data and so is reported along with the mean. To address all our
audit objectives, we also collected and analyzed data on all closed
military whistleblower reprisal cases from DODIG, 7 the headquarters-level
IGs from the Army, Navy, Air Force, and Marine Corps, 8 and the Boards
for Correction of Military Records (BCMRs) of the Army, Navy, 9 and Air
Force. 10 We assessed the data we obtained and determined that the data
we used were sufficiently reliable for our audit objectives. We also
reviewed relevant laws, regulations and guidance documents, internal
memos, reports, and briefings. Further, we interviewed officials from
DODIG, the service headquarters IGs and service field IGs from the
Army, Navy, Air Force, and Marine Corps, and the Army, Navy, and Air
Force BCMRs, as well as the Office of the Under Secretary of Defense for
Personnel and Readiness – Enterprise Services. We conducted this
performance audit from April 2011 to February 2012 in accordance with
generally accepted government auditing standards. Those standards
require that we plan and perform the audit to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and conclusions
based on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on
our audit objectives. Additional details on our scope and methodology are
discussed in more detail in appendix I.



6
  We selected a random sample of 97 cases from a list provided by DODIG of a total of
871 military whistleblower reprisal cases closed between January 1, 2009 and March 31,
2011. However, we had to exclude 6 cases from our analyses because they were not
accurately characterized in DODIG’s database. Specifically, 3 cases were ongoing
investigations, 2 cases were not military whistleblower reprisal cases, and DODIG could
not locate 1 case file.
7
 Data from DODIG were for all military whistleblower reprisal cases closed between fiscal
year 2006 and the first half of fiscal year 2011 (October 1, 2005 through March 31, 2011).
8
 Data from the service IGs were for all military whistleblower reprisal cases closed
between January 1, 2009 and March 31, 2011.
9
    The Navy’s BCMR also reviews cases brought to it by members of the Marine Corps.
10
   Data from the service BCMRs were for all military whistleblower reprisal cases closed
by DODIG between fiscal year 2006 and the first half of fiscal year 2011.




Page 3                                                GAO-12-362 Whistleblower Protection
             The Military Whistleblower Protection Act of 1988, as amended, and its
Background   implementing directive, Department of Defense Directive 7050.06, 11
             establish the basic concepts and framework for the investigative process
             and establish the roles and responsibilities of the various affected
             organizations. DODIG is the central organization for DOD’s military
             whistleblower reprisal program and has a directorate responsible for
             investigations into military whistleblower reprisal allegations. This
             directorate also conducts or oversees investigations into allegations of
             improper referrals of servicemembers for mental health evaluations 12 and
             conducts investigations into reprisal allegations involving civilians,
             contractors, and nonappropriated fund employees, 13, 14 although
             historically military whistleblower reprisal cases make up approximately
             80 percent of its caseload. Under the law, the service IGs and other DOD
             component IGs 15 can also investigate military whistleblower reprisal
             allegations and make recommendations regarding the disposition of
             cases. However, DODIG is responsible for reviewing and approving the
             results of all investigations of military whistleblower reprisal allegations.
             DODIG publicly reports on its military whistleblower protection program
             activities in its required semiannual report to Congress, including
             consolidated data on all of the cases the reprisal directorate received and



             11
                Department of Defense Directive 7050.06, Military Whistleblower Protection (Jul. 23,
             2007).
             12
                Allegations of an improper referral of a servicemember for a mental health evaluation
             are subject to different laws and regulations, although referrals for mental health
             evaluations are included in the definition of personnel action, for the purposes of alleging a
             reprisal under Department of Defense Directive 7050.06.
             13
                A nonappropriated fund instrumentality (NAFI) employee is a civilian employee who is
             paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy
             exchanges Service Command, Marine Corps exchanges, or any other instrumentality of
             the United States under the jurisdiction of the armed forces which is conducted for the
             comfort, pleasure, contentment, or physical or mental improvement of members of the
             armed forces.
             14
                DODIG had a separate directorate to investigate whistleblower reprisal allegations filed
             by civilians, but this directorate was merged in October 2011with the directorate
             responsible for whistleblower reprisal investigations for servicemembers (military
             whistleblower reprisal), contractors, and nonappropriated fund employees, as well as
             improper referrals of servicemembers for mental health evaluations.
             15
               DOD Directive 7050.06 defines DOD components as including the following
             organizational entities: Office of the Secretary of Defense, the Military Departments, the
             Chairman of the Joint Chiefs of Staff, the Combatant Commands, DODIG, the Defense
             Agencies, the DOD Field Activities, and all other organizational entities within DOD.




             Page 4                                                 GAO-12-362 Whistleblower Protection
closed—numbers that include military whistleblower reprisal cases. 16 A
description of some of the key organizations and individuals and their
roles in the military whistleblower reprisal process can be found in table 1.




16
   Section 5 of appendix 3 of Title 5 of the United States Code requires each inspector
general to prepare semiannual reports summarizing the activities of the office during the
immediately preceding 6-month period ending March 31 and September 30, no later than
April 30 and October 31 of each year. The law specifies that the report is to include,
among other things, a description of significant problems, abuses, and deficiencies
relating to the administration of programs and operations of that establishment.




Page 5                                               GAO-12-362 Whistleblower Protection
Table 1: Roles and Responsibilities of Key Organizations and Individuals in the
Military Whistleblower Reprisal Process




a
The Navy BCMR also reviews cases brought to it by members of the Marine Corps.




Page 6                                                 GAO-12-362 Whistleblower Protection
b
 DOD Directive 7050.06 (Jul. 23, 2007) assigns responsibility for the noted functions to the Deputy
Under Secretary of Defense for Program Integration. In July 2010, the Under Secretary of Defense for
Personnel and Readiness began to reorganize and realign Program Integration. On December 1,
2011, the Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)) -
Enterprise Services was designated as the successor organization for the Deputy Under Secretary of
Defense for Program Integration.


The two basic components of a whistleblower reprisal allegation are the
protected communication and the unfavorable personnel action. A
protected communication is any lawful communication to a Member of
Congress or an IG or a communication with appropriate officials about
information that the servicemember reasonably believes evidences a
violation of law or regulation, including a law or regulation prohibiting
sexual harassment or unlawful discrimination, gross mismanagement, a
gross waste of funds or other resources, an abuse of authority, or a
substantial and specific danger to public health or safety. 17 A
servicemember who makes or prepares to make a protected
communication is considered a whistleblower. It is DOD’s policy that
servicemembers shall be free from reprisal for making or preparing to
make a protected communication and that no person may take or
threaten to take an unfavorable personnel action, such as an unfavorable
performance evaluation, or withhold or threaten to withhold a favorable
personnel action, such as granting a promotion or award, in reprisal for
making or preparing to make a protected communication. 18

To initiate an investigation under the Military Whistleblower Protection
Act, a servicemember must typically make a reprisal allegation to an IG in
DOD within 60 days of becoming aware of the personnel action alleged to




17
   DOD Directive 7050.06 Section E2.9 defines protected communication and lists the
appropriate officials as a Member of Congress, an IG, or a member of a DOD audit,
inspection, investigation, or law enforcement organization, or any person or organization
in the chain of command; or any other person designated pursuant to regulations or other
established administrative procedures to receive such communications.
18
   DOD Directive 7050.06 Section E2.8 defines a personnel action as any action taken on
a servicemember that affects, or has the potential to affect, that military member’s current
position or career. Such actions include a promotion; a disciplinary or other corrective
action; a transfer or reassignment; a performance evaluation; a decision on pay, benefits,
awards, or training; referral for mental health evaluations under DOD Directive 6490.1;
and any other significant change in duties or responsibilities inconsistent with the military
member’s grade.




Page 7                                                     GAO-12-362 Whistleblower Protection
have been taken in reprisal. 19, 20 Allegations can also come to an IG
through a Member of Congress. Once a complaint has been filed, the
investigating organization—typically a service IG or DODIG—conducts a
review to determine if the complaint qualifies as a whistleblower reprisal
under the law and should be fully investigated. DODIG can also assign
cases it receives to a service or other component IG for investigation and
will also investigate cases that were not filed with it if the case is of
special interest to DODIG. 21 If a complaint is fully investigated, the
investigating organization writes a formal report of investigation that
includes a determination of whether the complaint is substantiated or not
substantiated. Such a report also receives at least one legal sufficiency
review. Complaints that are not fully investigated do not necessarily
include a formal report or a legal review. No determination, including a
determination that a complaint does not merit a full investigation, is final
until DODIG approves it. Even after a full investigation is completed that
substantiates reprisal, servicemembers do not receive relief from the
unfavorable personnel actions from IGs in DOD but instead must
separately apply to their military department’s Board for Correction of
Military Records (BCMR). See figure 1 for the process currently used by
DOD to investigate military whistleblower reprisal allegations.




19
   Under 10 U.S.C. §1034 (c)(4) IGs at DOD are not required to investigate allegations
that are made more than 60 days after the date the servicemember becomes aware of the
unfavorable personnel action that is alleged to have occurred as a result of reprisal.
According to Section E3.1.1 of DOD Directive 7050.06, while no investigation is required
in those cases, an authorized IG receiving such a complaint may, nevertheless, consider
the complaint based on compelling reasons for the delay in submission or the strength of
the evidence submitted.
20
   10 U.S.C. §1034 (i) also includes the Department of Homeland Security (DHS) IG as a
qualifying IG, in the case of a member of the Coast Guard when the Coast Guard is not
operating as a service in the Navy. According to DODIG officials, they do not have any
record of a Coast Guard military whistleblower reprisal allegation and are not aware of any
such complaints brought by a member of the Coast Guard to the DHS IG.
21
   DODIG officials told us that cases of special interest could include high-profile cases,
including those with congressional interest and cases that involve a complainant from one
service and a subject from another.




Page 8                                                GAO-12-362 Whistleblower Protection
Figure 1: The Military Whistleblower Reprisal Investigative Process, as of January 2012




                                         Notes:
                                         Since 2008, cases filed by servicemembers in the Army have undergone an initial review of
                                         investigative merit by DODIG.




                                         Page 9                                                     GAO-12-362 Whistleblower Protection
DODIG can also assign cases it receives to a service or component IG for investigation, and will also
investigate cases that were not filed with it if the case is of special interest to DODIG.
a
 Currently, the determination of investigative merit by DODIG involves making an initial determination
based on testimonial, and sometimes documentary evidence provided by the complainant.
b
 The determination of investigative merit for the service IGs spans a range and could be based on an
assessment of the documents provided by the complainant but could also include a formal written
report.


IGs at DOD assess each allegation in the complaint using four basic
questions, which they refer to as the “Acid Test.” According to DODIG’s
Guide to Investigating Reprisal and Improper Referrals for Mental Health
Evaluations, 22 the four questions are:

1. Did the military member make or prepare a communication protected
   by statute?
2. Was an unfavorable personnel action taken or threatened, or was a
   favorable action withheld or threatened to be withheld following the
   protected communication?
3. Did the official(s) responsible for taking, withholding, or threatening
   the personnel action know about the protected communication?
4. Does the evidence establish that the personnel action would have
   been taken, withheld, or threatened if the protected communication
   had not been made?

Investigators must answer all four questions when conducting a full
investigation, but cases can be closed before a full investigation if
investigators, with DODIG approval, determine that the answers to the
earlier questions indicate that a reprisal action was not taken against the
complainant or that the complainant was not reprised against for making
a protected communication (see fig. 2). For example, DODIG could close
a case if it determined that there was no protected communication
(question 1) or that an unfavorable personnel action occurred before the
protected communication (question 2). According to DODIG’s
investigative guide, report conclusions are to be based on a
“preponderance of the evidence” when assessing the four questions. The
guide states that this standard requires that more weight is given to the
most credible and convincing evidence and that evidence which




22
   DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal
and Improper Referrals for Mental Health Evaluations, (Feb. 6, 1996). In this report we
refer to this document as the DODIG investigative guide.




Page 10                                                      GAO-12-362 Whistleblower Protection
                                          demonstrates to the reader that it is more probable than not that the facts
                                          and circumstances occurred as set forth in the investigative report.

Figure 2: Acid Test for Military Whistleblower Reprisal Allegations




                                          Although the service IGs have the same basic investigative process as
                                          outlined above, each service has adapted process specifics to its own
                                          circumstances. Each service reviews and approves the investigations it
                                          conducts at the service’s headquarter IG before forwarding them to
                                          DODIG for final approval. Table 2 outlines differences among the services
                                          and DODIG in how they investigate reprisal cases.




                                          Page 11                                      GAO-12-362 Whistleblower Protection
Table 2: Reprisal Process Implementation Differences by Investigating Organization




                                         a
                                             The services investigate cases for both their active and reserve components.
                                         b
                                          Army organizations—which are generally at the division level—have IGs assigned to them. These
                                         IGs are similar to installation-level IGs.
                                         c
                                         Echelon II Commands have senior level of authority and report directly to the Chief of Naval
                                         Operations (CNO) and would be the equivalent of a major command.
                                         d
                                          Based on requirements articulated by officials from the organizations noted. Additionally, both Navy
                                         and Marine Corps also require a legal sufficiency review for cases that do not go to full investigation.
                                         e
                                          Mean number of cases closed per year by investigating organization based on data for all military
                                         whistleblower reprisal cases closed between fiscal year 2006 and the first half of fiscal year 2011
                                         (October 1, 2005 through March 31, 2011).
                                         f
                                         In addition to having conducted a mean of 66 investigations per year during this time period, DODIG
                                         also provided oversight reviews for the investigations completed by the service IGs.
                                         g
                                         Active and reserve military servicemember population figures are the fiscal year 2011 estimates in
                                         DOD’s Defense Manpower Requirements Report: Fiscal Year 2011 ( December 2010).


                                         Appendix II provides more information on the characteristics of military
                                         whistleblower reprisal cases.




                                         Page 12                                                        GAO-12-362 Whistleblower Protection
                              DODIG has taken multiple steps, in collaboration with the service IGs in
DODIG Is Generally            some instances, to improve DOD’s ability to process military
Not Meeting                   whistleblower reprisal cases in a timely manner. However, DOD has
                              generally not met statutory requirements to provide reports on completed
Timeliness                    investigations within 180 days of the date the allegation was made or
Requirements and              alternatively, to provide notice to the complainant and the Secretary of
Improvement Efforts           Defense. The July 2009 Department of Justice IG report found that
                              lingering investigations leave complainants without resolution to their
Are Hindered by               concern and could hold up a potential promotion for a subject. In addition,
Unreliable and                DODIG’s May 2011 review of its military whistleblower reprisal process
                              raised concerns that some complainants withdrew their cases because of
Incomplete Data               the length of time it takes to complete investigations. 23 Further, DOD’s
                              efforts to improve processing time have been hindered by unreliable and
                              incomplete data. Moreover, DODIG does not report data on timeliness in
                              its semiannual reports, thereby limiting the information Congress could
                              use to provide oversight of the military whistleblower reprisal program.


DODIG Faces Challenges        DODIG and the service IGs have faced challenges to processing military
in the Timely Processing of   whistleblower reprisal cases in a timely manner which they attribute to
Reprisal Cases                staffing shortages and process inefficiencies. Although DODIG has taken
                              multiple steps, in collaboration with the service IGs in some instances, to
                              improve processing time, these efforts have not yet resulted in meeting
                              the statutory requirement to provide reports on completed investigations
                              within 180 days of the date the allegation was made. 24 Timeliness is a key
                              challenge and an important factor in completing quality investigations
                              because, without timely resolutions, the reliability of evidence could
                              suffer, and the careers of both the complainants and subjects could be
                              negatively impacted.




                              23
                                 U.S. Department of Defense Inspector General, “Review of the Office of Deputy
                              Inspector General for Administrative Investigations, Directorate for Military Reprisal
                              Investigations,” May 2011.
                              24
                                 Under 10 U.S.C. §1034 (e)(3), the IG investigating a military whistleblower reprisal
                              investigation must complete an investigation report within 180 days. If the investigating IG
                              determines it is not possible to complete the report within 180 days of the date the
                              allegation under investigation was made, the IG must notify the complainant and the
                              Secretary of Defense that this deadline cannot be met and of the reasons why, as well as
                              a time when the report will be completed.




                              Page 13                                                GAO-12-362 Whistleblower Protection
DOD Directive 7050.06 addresses the need to conduct investigations
expeditiously. 25 Officials at DODIG and the service IGs stated that staffing
levels are a key factor in determining the timely processing of reprisal
cases. According to DODIG, the military whistleblower reprisal caseload
has grown significantly since the enactment of the Military Whistleblower
Protection Act, and staffing has not kept up with the increased caseload.
Further, service IG officials told us that DODIG’s review of service
investigations can be slow because of understaffing. DODIG has taken
action on this issue, increasing the staffing of its whistleblower reprisal
directorate from 17 staff in fiscal year 2006 to 30 staff in fiscal year 2011
to accommodate the increased caseload. In January 2012, DOD’s Acting
Inspector General authorized a further increase of staff for its
whistleblower reprisal directorate from 30 to 42 (see fig. 3 for staffing at
DODIG from fiscal years 2006 through 2011). Some service IG officials
also indicated that staffing shortages are a factor in their ability to process
cases in a timely manner. In a December 2011 letter, the DOD Inspector
General asked the secretaries of the military departments to consider
favorably any requests from the service IGs to increase their staffing in
order to deal with the increased number of whistleblower reprisal cases.




25
     DOD Directive 7050.06, Military Whistleblower Protection (July 23, 2007).




Page 14                                                GAO-12-362 Whistleblower Protection
Figure 3: Average Number of Staff at the DODIG Military Whistleblower Reprisal
Directorate from Fiscal Year 2006 through Fiscal Year 2011




Note: According to DODIG officials, the directorate responsible for investigating military whistleblower
reprisals also had two detailees assigned to it in fiscal year 2009.


DODIG has also undertaken multiple efforts to reform its investigative
process to improve timeliness. For example, in late 2010, DODIG
eliminated an investigative phase which required formal reports that
recommended whether or not a case should be fully investigated. Earlier
that year, DODIG eliminated the committee charged with reviewing and
approving whether cases should be fully investigated. DODIG also
changed its process for taking in complaints. The Defense Hotline 26 used
to document the original complaint, gather additional information from
complainants, and send it to the directorate at DODIG responsible for



26
   The Defense Hotline is a DODIG program responsible for taking in all types of
complaints for DOD in addition to whistleblower reprisal complaints. Its activities are
governed by Department of Defense Instruction 7050.01, Defense Hotline Program (Dec.
17, 2007). The Defense Hotline receives and investigates complaints or information
concerning allegations of violations of law, rules or regulations, mismanagement, gross
waste of funds, abuse of authority, and a substantial and specific threat to the public
health and safety involving the Department of Defense.




Page 15                                                       GAO-12-362 Whistleblower Protection
military whistleblower reprisal investigations. The Defense Hotline also
was responsible for communicating with complainants if their cases were
determined not to be whistleblower reprisal cases. Now the Defense
Hotline passes the reprisal allegation to the directorate at DODIG
responsible for military whistleblower reprisal investigations and
investigators from that directorate establish direct contact with the
complainant to assess the validity of the reprisal allegation(s). DODIG
officials stated this new intake process is faster and increases the quality
of the investigations because experienced reprisal investigators are in
charge of information gathering. DODIG also started testing a new
approach in evidence gathering to determine whether it can close cases
more quickly. 27

In contrast, the service IGs’ processes for investigating these cases have
generally remained the same. One major exception is the way Army
cases are initially assessed. In order to deal with a large backlog in Army
cases, DODIG and the Army IG signed a Memorandum of Agreement in
2008 whereby DODIG took over responsibility for conducting the initial
review of all incoming Army complaints. The Memorandum of Agreement
allowed the Army to focus on investigations and thereby reduce the
Army’s backlog of cases. Army and DODIG officials stated that this
agreement was successful in reducing the Army’s case backlog and
improving case processing time. 28 Yet DODIG formally notified the Army
IG in November 2011 that it would terminate this special arrangement as
of May 2012. DODIG officials told us that they did so in order to maintain
a consistent approach among the services and because the arrangement
had increased DODIG’s workload. In addition, they told us that cancelling
the arrangement would enable their staff to conduct more full
investigations. In November 2011, the Army IG asked DODIG to
reconsider this decision, stating that the timeliness of Army reprisal


27
   The new approach is a beta-test where DODIG allows its investigators to speak with
subjects at the onset of an inquiry or initial analysis to determine if the case warrants full
investigation. The previous process did not allow investigators to speak with subjects
unless the case definitely went to full investigation.
28
    The 2009 Department of Justice IG report recommended that DODIG consider whether
it should take responsibility for conducting the initial review for the incoming complaints
from all of the services, not just those from the Army. In its October 2011 action plan,
DODIG stated it would assess how well the service IGs are performing intake of reprisal
complaints in late fiscal year 2012 and that DODIG would evaluate the Department of
Justice IG recommendation that DODIG consider conducting initial reviews of all service
reprisal complaints after it has implemented some of its other reforms.




Page 16                                                  GAO-12-362 Whistleblower Protection
investigations would suffer. 29 However, in December 2011, DODIG
affirmed its decision to end the agreement with the Army.

Although DODIG has undertaken these and other efforts to improve its
timeliness, it has generally not been completing investigations within the
180-day time frame provided by law. From our analysis of a random
sample of 91 cases closed between January 1, 2009 through March 31,
2011, we estimate that 70 percent of the cases were not completed within
180 days; moreover, we estimated that it took DOD a mean of 451 days
(+/- 94 days) to process the cases. Our random sample included a subset
of 61 inquiries closed before full investigation, which took a mean of 469
days to close, and a subset of 28 full investigations, which took a mean of
395 days to close. 30, 31 See table 3 for case processing time according to
investigative phase.




29
  The Army IG also expressed concerns that process reforms made by DODIG since
early 2011 had reversed gains the Army IG was beginning to see in the processing of
military whistleblower reprisal complaints.
30
   Although case processing time for the full sample is generalizable, it is not
generalizable for any subset. Additionally, the case processing time data reported for the
two investigative phase subsets are based on 89 of the 91 cases we analyzed. For the
investigative phase subsets, we excluded 2 additional cases because we could not
identify the investigative phase in which they were closed based on the evidence in the
case file.
31
   For the subset of inquiries closed before full investigation, the median days to close a
case was 249, with a range from 14 to 2,215 days. For full investigations, the median days
to close a case was 349, with a range from 51 to 1,181 days.




Page 17                                               GAO-12-362 Whistleblower Protection
Table 3: Mean Case Processing Time by Investigative Phase of Sampled Cases
Closed between January 1, 2009 and March 31, 2011




Notes:
Our random sample of 91 cases (out of a total of 871 cases closed during this time period) included
61 inquiries closed before full investigation and 28 cases closed after a full investigation. We were
unable to determine the investigative phase in which 2 cases were closed.
Although data from the full sample are representative within the given parameters, any subset of
these data cannot be assumed to be representative. That is, data specific to the cases closed before
full investigation and the data specific to full investigation are not generalizable and apply only to the
actual cases reviewed.


In addition to not completing investigations in 180 days in most cases,
DOD has not complied with the statutory reporting requirement to provide
notification in those instances where the investigations go beyond 180
days, although it is taking steps to do so. 32 The Military Whistleblower
Protection Act requires the IG investigating an allegation of reprisal to
submit to the Secretary of Defense and the complainant a notice if it
cannot provide a report on the completed investigation within 180 days of


32
   10 U.S.C. §1034 (e)(3) requires the IG investigating the allegation of reprisal to submit
to the Secretary of Defense and the complainant a notice if they determine it is not
possible to submit an investigative report within 180 days after receiving the allegation.
The notice to the Secretary of Defense and the complainant is to contain a determination
that the report may not be submitted on time and the reasons for the delay, as well as the
time when the report will be submitted. DOD Directive 7050.06 assigns responsibility for
providing these reports to DODIG. The directive also directs the service IGs to submit
reports of investigation to DODIG within 180 days and if unable to do so, directs them to
provide notice to the DODIG in addition to the complainant and the office designated to
receive notice on behalf of the Secretary of Defense. The directive requires DOD
component IGs other than the service IGs to provide DODIG with a report of investigation
within 180 days from the date DODIG requested an investigation, but does not require
them to provide notice if the 180 day time frame is exceeded.




Page 18                                                        GAO-12-362 Whistleblower Protection
                            the date the allegation was made to an IG in DOD. The notice should
                            include the reason for the delay and an expected completion date for the
                            investigation. 33 DODIG officials acknowledged that they and the services
                            had not been making the required notifications. The officials stated they
                            used to submit these reports to the Secretary of Defense, but stopped
                            doing so at some point because they were told by officials at the office
                            receiving the notifications that they did not know what to do with the
                            information. 34 Because this notification is not being provided, as required
                            by statute, the Secretary of Defense has had reduced visibility of cases
                            that exceed the investigative time limit, and complainants have not been
                            receiving information regarding their cases to which the law entitles them.
                            During the course of our review, DODIG changed its practice and started
                            reporting this information in October 2011. According to its October 2011
                            action plan, DODIG is taking steps to ensure that it and the service IGs
                            follow the statutory reporting requirements.


DOD Efforts to Improve      Although DOD has taken some steps to improve the timeliness of
Case Processing Times       investigations, its efforts are hampered because DODIG does not have
Have Been Hindered by       key timeliness data that would allow it to identify process areas requiring
                            improvement or evaluate the impact of reforms. According to the quality
Unreliable and Incomplete   standards for investigations, developed by the Council of the Inspectors
Data                        General on Integrity and Efficiency, organizations should store data in a
                            manner that allows for effective retrieval, referencing, and analysis. This
                            enhances an organization’s ability to conduct pattern and trend analyses
                            and assists in the process of making informed judgments on investigative
                            program development, and in the implementation of the investigative



                            33
                               DOD Directive 7050.06 requires the investigating organization to submit notice to the
                            complainant as well as to the Deputy Under Secretary of Defense for Program Integration
                            within the Office of the Secretary of Defense. Responsibility for receiving notices was
                            shifted to the Office of the Under Secretary of Defense for Personnel and Readiness—
                            Enterprise Services in December 2011 (see table 1 on roles and responsibilities).
                            34
                               DODIG officials could not recall when they stopped sending the notifications to the
                            Secretary of Defense for investigations that were not closed within 180 days of the date
                            the allegation was made. Officials from the office currently responsible for receiving these
                            notifications (Office of the Under Secretary of Defense for Personnel and Readiness—
                            Enterprise Services) had no record of receiving such notifications. Further, our case file
                            review of 91 cases closed between January 1, 2009 and March 31, 2011, included 64
                            cases that were not closed within 180 days. We did not find evidence in any of these 64
                            case files that the Secretary of Defense had been notified. However, we did find evidence
                            in 2 of the 64 cases of notifications sent to complainants.




                            Page 19                                                GAO-12-362 Whistleblower Protection
process. 35 Further, our prior work has shown that tracking timeliness is
important for accountability and for making improvements to investigative
processes. 36

In our assessment of its data, we found that DODIG has not consistently
or accurately recorded key dates to track how long investigations take to
complete. From our analysis of a random sample of cases closed
between January 1, 2009 through March 31, 2011, we estimate that
DODIG’s database understated the amount of days it took to close cases
by a mean of 193 days (+/-76 days). 37 The understated number of days
was a result of DODIG officials recording the date that they received a
complaint in their office rather than the original date the complainant
made the allegation to an IG in DOD. In addition, our case file review
found that DODIG identified three cases as closed in its database when it
actually referred these cases to a service for further investigation,
resulting in an understatement of the amount of time it took to close
cases. In one of these three cases, it took an additional 872 days to close
the case. Moreover, our case file review found that 7 full investigations
out of 28 had correct dates recorded in DODIG’s database. 38 Table 4
provides timeliness accuracy by investigative phase.




35
   Council of the Inspectors General on Integrity and Efficiency, Quality Standards for
Investigations (Nov. 15, 2011). The Council of the Inspectors General on Integrity and
Efficiency gets its authority from Section 11 of the Inspector General Act of 1978 (5 U.S.C.
app. 3.), as amended. The mission of the Council of the Inspectors General on Integrity
and Efficiency shall be to address integrity, economy, and effectiveness issues that
transcend individual government agencies and increase the professionalism and
effectiveness of personnel by developing policies, standards, and approaches to aid in the
establishment of a well-trained and highly skilled workforce in the Offices of Inspectors
General.
36
  GAO, Personnel Security Clearances: Progress Has Been Made to Improve Timeliness
but Continued Oversight Is Needed to Sustain Momentum, GAO-11-65 (Washington,
D.C.: Nov. 19, 2010).
37
   From our analysis of a random sample of cases closed between January 1, 2009
through March 31, 2011, we estimate that DODIG accurately recorded the case received
dates 30 percent of the time and accurately recorded the case closed dates 93 percent of
the time.
38
   We considered cases to have accurate dates if the dates in the database and
supporting documentation in the actual case file matched for both the received and closed
dates.




Page 20                                               GAO-12-362 Whistleblower Protection
Table 4: Timeliness Accuracy by Investigative Phase of Sampled Cases Closed between January 1, 2009 and March 31, 2011




                                       Notes:
                                       Our random sample of 91 cases (out of a total of 871 cases closed during this time period) included
                                       61 inquiries closed before full investigation and 28 cases closed after a full investigation. We were
                                       unable to determine the investigative phase in which 2 cases were closed.
                                       Although data from the full sample are representative within the given parameters, any subset of
                                       these data cannot be assumed to be representative. That is, data specific to the cases closed before
                                       full investigation and the data specific to full investigation are not generalizable and apply only to the
                                       actual cases reviewed.


                                       DODIG’s data practices have inhibited its ability to accurately identify the
                                       age of cases and therefore also prevented it from identifying cases in
                                       danger of exceeding the 180 days provided for investigations by the
                                       Military Whistleblower Protection Act. DODIG has acknowledged it has
                                       problems with data reliability, calling the integrity of its data “questionable
                                       at best” in its October 2011 action plan for reforming the military
                                       whistleblower reprisal program. Further, during the course of our review,
                                       DODIG officials acknowledged that some of their dates for tracking cases
                                       were inaccurate. DODIG changed its approach starting in fiscal year 2012
                                       so it now accurately records total case processing time. DODIG officials
                                       said they also planned to train investigators to ensure they consistently
                                       enter this information into DODIG’s database.

                                       In addition, DODIG has not been tracking the time the separate phases of
                                       the investigative process take. We found that the DODIG database
                                       includes fields for tracking dates by phases in the process. For example,
                                       there are date fields for referring cases to services for investigation and
                                       date fields for receiving those investigations from the services, but these
                                       were generally not filled out. Further, DODIG was not tracking the amount
                                       of time between when a complaint was filed with the Defense Hotline to
                                       when it was assigned to an investigator. We have previously found that
                                       comprehensive information is needed to identify reasons for delays in


                                       Page 21                                                        GAO-12-362 Whistleblower Protection
investigative processes. 39 DODIG officials acknowledged they can track
timeliness data by process phases using their current systems and that
doing so would enable them to understand the entire life cycle of military
whistleblower reprisal investigations. Without identifying, collecting, and
tracking accurate data, DODIG does not have reliable information to
identify the scope of the challenge it faces with overall timeliness and
cannot report accurate data to internal and external stakeholders,
including data it reports in its semiannual reports to Congress. Moreover,
DODIG may be unable to identify possible areas in the investigative
process needing improvement, or assess the impact on timeliness of
recent changes made to its process or of other actions taken to improve
timeliness. During the course of our review, DODIG developed a plan to
improve its practices associated with collecting and tracking timeliness
information, including identifying date fields it should track, and training
investigators to consistently enter this information. DODIG began to
initiate these improvements starting in fiscal year 2012.

Congressional oversight of DODIG’s ongoing efforts to improve data
collection and management is hindered by the lack of available timeliness
data. According to the Standards for Internal Control in the Federal
Government, managers should provide reliable, useful, and timely
information for accountability of government programs and their
operations. 40 Although oversight is important for accountability, the IGs
are intended to be independent and objective units, according to the
Inspector General Act of 1978. Under the act, DODIG is not subject to
regular organizational oversight inside DOD. 41 As a result, the Office of
the Under Secretary of Defense for Personnel and Readiness—the
organization designated by directive to receive notifications regarding
reprisal investigations that exceed the 180-day time period, on behalf of




39
  GAO, DOD Personnel Clearances: Comprehensive Timeliness Reporting, Complete
Clearance Documentation, and Quality Measures Are Needed to Further Improve the
Clearance Process, GAO-09-400 (Washington, D.C.: May 19, 2009).
40
  GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
(Washington, D.C.: Nov. 1, 1999).
41
   According to section 3 of appendix 3 of Title 5 of the United States Code, each
Inspector General shall report to and be under the general supervision of the head of the
establishment involved or, to the extent such authority is delegated, the officer next in rank
below such head, but shall not report to, or be subject to supervision by, any other officer
of such establishment.




Page 22                                                GAO-12-362 Whistleblower Protection
the Secretary of Defense 42—cannot provide organizational oversight of
DODIG. 43 DODIG officials stated that, although other offices within DOD
cannot provide this type of oversight, the reporting requirement acts as a
helpful internal check for DODIG on its timeliness progress. Congress is
therefore the primary oversight body for DODIG. DODIG is required to
keep Congress fully and currently informed through, among other things,
its semiannual reports to Congress. That report is required to include
information on fraud, abuses, and deficiencies relating to the
administration of programs and operations managed or financed by
DOD. 44 DODIG has not previously interpreted this requirement as
applying to the military whistleblower reprisal program and does not
provide information on military whistleblower reprisal case processing
time, including the proportion of cases that exceed the 180-day time
period provided by law, in the semiannual reports. However, the absence
of timeliness information in these reports limits congressional decision
makers’ ability to thoroughly evaluate and identify whether delays
continue to exist within DOD’s whistleblower reprisal investigative
process. As a result, Congress lacks information it could use to provide
oversight of the military whistleblower reprisal program.




42
     DOD Directive 7050.06 (July 23, 2007).
43
   Department of Defense Directive 5106.01, Inspector General of the Department of
Defense (Apr. 13, 2006), establishes that the Inspector General of the Department of
Defense shall report to and be under the general supervision of the Secretary of Defense
and the Deputy Secretary of Defense, but shall not report to, or be subject to supervision
by, any other officer of the Department of Defense. The directive also states that neither
the Secretary of Defense nor the Deputy Secretary of Defense shall prevent or prohibit the
Inspector General of the Department of Defense from initiating, carrying out, or completing
any audit, evaluation, inspection, or investigation, unless otherwise specified in law.
44
  See 5 U.S.C. App. 3, §5 and Department of Defense Directive 5106.01, par. 5.17 (Apr.
13, 2006).




Page 23                                               GAO-12-362 Whistleblower Protection
                           In an effort to improve its whistleblower program, DODIG has taken steps
DODIG Is Taking            such as responding to the 2009 Department of Justice IG
Steps to Address           recommendations, completing an internal review, restructuring the
                           organization primarily responsible for providing program oversight, and
Whistleblower              developing a plan of action. However, DODIG’s oversight of this program
Reprisal Process           still faces challenges because of the lack of performance metrics,
Weaknesses but             outdated and inconsistently followed guidance, and the lack of standard
                           monitoring processes and procedures for investigative cases.
Oversight Challenges
Remain

DODIG Is Taking Steps to   DODIG has taken steps to improve the whistleblower reprisal process,
Address External and       including acting on prior recommendations. The 2009 Department of
Internal Recommended       Justice report highlighted weaknesses in the military whistleblower
                           program and made recommendations for improvements such as creating
Actions                    and updating written policy guidance regarding whistleblower law. 45
                           DODIG conducted an internal review, completed in 2011, to assess the
                           progress it had made since beginning to take actions to address the
                           findings of the Department of Justice report. 46 This report made additional
                           recommendations to help improve DODIG’s oversight of the
                           whistleblower reprisal program, including that DODIG conduct an internal
                           audit of its case tracking system to help ensure timely case processing.

                           In October 2011, DODIG developed an action plan that outlined its
                           strategy to address the program weaknesses identified in the 2009
                           Department of Justice report and its 2011 internal review, and has begun
                           to implement that strategy. We have already mentioned some of the
                           changes DODIG is undertaking based on the action plan, including
                           changes to the report review processes. As part of the reform plan,
                           DODIG restructured its directorate in charge of military whistleblower
                           reprisal investigations in October 2011, merging it with the directorate
                           responsible for civilian whistleblower reprisal investigations. One of the
                           goals of this merger is to increase the consistency of reprisal



                           45
                              U.S. Department of Justice, A Review of the Department of Defense Office of Inspector
                           General’s Process for Handling Military Whistleblower Reprisal Allegations (July 2009).
                           46
                              U.S. Department of Defense Inspector General, Review of Office of Deputy Inspector
                           General for Administrative Investigations, Directorate for Military Reprisal Investigations
                           (May 2011).




                           Page 24                                                GAO-12-362 Whistleblower Protection
                          investigations within DOD. Additionally, the merger is intended to
                          eventually create a pool of investigators that can work on both military
                          and civilian reprisal cases, thereby maximizing DODIG’s flexibility to
                          adjust to spikes in reprisal cases and clear any case backlogs. The
                          immediate past DOD Inspector General also told us that one of the most
                          significant changes he made was putting a robust new leadership team in
                          place dedicated to improving the military whistleblower reprisal program
                          and transforming it into a model program.

                          DODIG has also revised its case intake process as part of its reform
                          efforts. Reprisal allegations that are made directly to DODIG rather than a
                          service can come in through the Defense Hotline over the phone or using
                          an automated web-based form. DODIG has made multiple changes in the
                          last several years to its process for taking in and initially assessing if
                          these cases qualify as reprisal cases. The 2011 internal review found that
                          DODIG’s intake process was still requiring complainants to provide a
                          significant amount of documentary evidence to support their reprisal
                          allegations. The internal review concluded the emphasis on
                          documentation at this very early stage just to determine if the allegations
                          warranted investigation was inconsistent with the basic information
                          required when filing complaints with the Defense Hotline. Further, the
                          internal review found that the documentation demands required at this
                          stage could produce an onerous burden for the complainant and were
                          inconsistent with DODIG guidance. In response, DODIG is instituting
                          changes to quickly assign an investigator to a case, who then makes
                          direct contact with the complainant and initiates an investigation based on
                          the standard that, “the alleged fact, if true, would raise the inference of
                          reprisal.”


DOD’s Implementation of   Although DODIG has taken steps to improve its military whistleblower
Oversight Mechanisms Is   reprisal program, its ability to provide oversight continues to face key
Not Yet Complete and      challenges due to the lack of performance metrics, outdated and
                          inconsistently followed guidance, and inconsistent monitoring processes
Faces Challenges          and procedures to track all reprisal allegations. According to Standards
                          for Internal Control in the Federal Government, oversight mechanisms are
                          an integral part of an entity’s planning, implementing, reviewing, and of
                          the accountability for stewardship of government resources and achieving




                          Page 25                                     GAO-12-362 Whistleblower Protection
                      effective results. 47 Oversight mechanisms include, among other things,
                      the written policies, procedures, techniques, performance measures, and
                      mechanisms that enforce management’s directives and help ensure that
                      actions can be taken to address risks. While DOD’s action plan offers
                      many important steps towards achieving a model whistleblower reprisal
                      program, these actions are ongoing, and to date have not been fully
                      implemented.

Performance Metrics   DODIG has not yet fully established performance metrics for
                      whistleblower investigations although it is taking steps to do so. Federal
                      internal control standards say metrics are important for identifying and
                      setting appropriate incentives for achieving goals while complying with
                      law, regulations, and ethical standards. 48 DODIG officials recognize the
                      importance of metrics and have told us that they are currently working to
                      create timeliness metrics that focus on case processing time. However,
                      they have not yet formalized these metrics. We have previously found
                      that timeliness alone does not provide a complete picture of an
                      investigative process and that metrics on quality, such as completeness
                      of investigative reports and the adequacy of internal controls, enhance
                      the ability of organizations to provide assurance that it is exercising all of
                      the appropriate safeguards for federal programs. 49 Further, measuring
                      timeliness alone may provide incentive to close cases prematurely. 50 For
                      example, DODIG could theoretically close and report on all cases before
                      they reach 180 days in order to meet the timeliness standard. However,
                      meeting that standard alone would not ensure that cases were properly
                      investigated. DODIG currently lacks metrics to measure quality, but
                      DODIG officials recognize that metrics on quality are important and
                      indicated that they plan to develop them as part of their effort to improve
                      case management and outcomes. The officials said that such metrics
                      could include measuring whether interviews are completed and



                      47
                        GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
                      (Washington, D.C.: Nov. 1, 1999).
                      48
                         GAO, Internal Control Management and Evaluation Tool, GAO-01-1008G (Washington,
                      D.C.: Aug. 2001).
                      49
                         GAO, DOD Personnel Clearances: Comprehensive Timeliness Reporting, Complete
                      Clearance Documentation, and Quality Measures Are Needed to Further Improve the
                      Clearance Process, GAO-09-400 (Washington, D.C.: May 19, 2009).
                      50
                        GAO, Whistleblower Protection: Sustained Management Attention Needed to Address
                      Long-standing Program Weaknesses, GAO-10-722 (Washington, D.C.: Aug.17, 2010).




                      Page 26                                           GAO-12-362 Whistleblower Protection
           documented and whether conclusions made about the case are fully
           supported by evidence.

           Our review of case files revealed that documents that could be used to
           support the conclusions of a case were not always present in DODIG’s
           case files. For example, according to DODIG’s investigations manual, 51
           every case file should have some sort of documented investigative
           analysis that lays out the evidence and conclusions the evidence
           supports. The level of investigative analysis we looked for in each case
           file depended on how far the case proceeded. For cases that were closed
           in the very early stages of the investigation, an oversight worksheet
           summarizing the reasons for closing a case was sufficient for the purpose
           of our file review. For cases that went to full investigation, we looked for a
           formal record of investigation. We found evidence of investigative
           analysis in 79 (87 percent) of the 91 case files. Additionally, DODIG
           requires that investigations that go beyond the initial review include a
           record of testimony from the complainant. Full investigations are also
           required to include a record of an interview with the subject. When
           reviewing the cases for this document, we found evidence of a record of
           testimony in 38 (49 percent) of the 77 cases that required it. Although we
           looked in our case file review for the types of documents that would
           support DODIG’s conclusions, we did not determine whether the
           evidence in each file actually supported DODIG’s conclusions for each
           case. However, an internal DODIG review found that some cases DODIG
           adjudicated contained insufficient documentation to support the findings
           or evidence that necessary investigative steps were completed. The
           internal review team further noted that they did not disagree with the final
           outcomes of the cases, only that they could not affirm the decisions
           because the information in some of the file did not support it. Without
           clear quality metrics, DODIG will continue to lack valuable information it
           could use to improve oversight of the whistleblower reprisal investigative
           process.

Guidance   Although DODIG is updating its outdated guidance related to the
           whistleblower program, the updates have not yet been formalized and the
           existing guidance is inconsistently followed. According to the framework
           set out in quality standards for investigations, organizations should



           51
              DOD Inspector General Office of the Deputy Inspector General for Investigations,
           Investigations Manual Reprisal and Senior Official Cases (Mar. 2006).




           Page 27                                              GAO-12-362 Whistleblower Protection
establish appropriate written investigative policies and procedures
through handbook, manual, directives, or similar mechanism to facilitate
due professional care in meeting program requirements. 52 Further, that
guidance should be regularly evaluated to ensure that it is still appropriate
and working as intended. DODIG has guidance regarding the
whistleblower reprisal process in place but has not updated it to reflect
changes in its investigative practices or ensured that certain provisions
have been carried out consistently. For example, DODIG’s primary
investigative guide distributed to investigators conducting whistleblower
reprisal investigations has not been updated since 1996 and does not
reflect some current investigative practices. 53 The investigative guide
directs investigators to appendices that no longer exist and states that
whistleblower reprisal investigation reports must be completed and issued
within 90 days of the receipt of the allegation instead of the 180 days
provided under the statute as amended in 1998. Officials from the service
IGs told us that the old guidance still provides them with some benefit
regarding general investigative approaches but said that it would be
beneficial to them if it was updated. Additionally, DODIG officials
acknowledge that the current guidance reflects old investigative
approaches that have since been revised, such as the investigator
checklist, or that no longer exist. The lack of updated guidance has been
a recurring issue for DODIG. A 2002 DODIG briefing stated that the
investigative guide required updating and that the update was nearing
completion. The 2009 Department of Justice IG report also found that
guidance for service IGs had not been adequate and that DODIG could
improve oversight of service IG work by creating and updating written
policy guidance regarding whistleblower law, including recurring and
emerging issues, best practices, and precedent. Moreover, the 2011
internal review came to a similar conclusion and recommended that
DODIG update the investigative guides to ensure consistency and
objectivity in processing cases. DODIG indicated that it planned to revise
its investigative guidance in both its response to the Department of
Justice report as well as in its response to the 2011 internal review.
DODIG officials told us that they are working with internal stakeholders to
revise the guidance to reflect current practices and plan on updating the



52
   Council of the Inspectors General on Integrity and Efficiency, Quality Standards for
Investigations (Nov. 15, 2011).
53
  DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal
and Improper Referrals for Mental Health Evaluations (Feb. 6, 1996).




Page 28                                               GAO-12-362 Whistleblower Protection
1996 investigative by the third quarter of fiscal year 2012. Without
updated guidance on investigations, DODIG does not have a documented
consistent investigative standard for its whistleblower program.

In addition to being outdated, DODIG’s existing guidance related to the
whistleblower program is not consistently followed. We have reported that
program guidance should be regularly evaluated to ensure that it is still
appropriate and working as intended. 54 The guidance related to certain
key provisions of the investigative process is unclear, leading to
inconsistent implementation among the service IGs. For example, the
service IGs have adopted different interpretations of the 180-day
reporting requirement as it is set out in the guidance. As noted earlier in
the report, the Military Whistleblower Protection Act requires that IGs
conducting investigations issue a report of investigation to the
complainant and the Secretary of Defense within 180 days of the receipt
of an allegation or provide appropriate notice if unable to do so. The law
also requires DODIG to approve the report of investigation before the
report is issued. Further, officials from DODIG and the service IGs
emphasized that whistleblower reprisal cases are not closed until DODIG
has reviewed the complaint and the evidence to support the investigators’
conclusions and formally agrees with the disposition of the case.
However, DOD Directive 7050.06 sets out additional time frames for
reporting. The directive requires the service IGs to provide DODIG with a
report of investigation within 180 days of receiving the complaint or
receiving a request for an investigation from DODIG and requires them to
provide a report of investigation to the complainant and the Secretary of
Defense not later than 30 days after the DODIG approves the report. A
service IG could meet the first requirement but at the same time leave no
time for DODIG to review and approve the report in time to issue it within
the 180 days provided by law. 55 As a result, the service IGs have adopted
different interpretations of the directive’s 180-day reporting requirement.
For example, Air Force IG officials told us that the Air Force recently
reinterpreted the reporting requirement. The Air Force had set an internal
goal of completing reprisal investigation within 135 days to allow 45 days
for DODIG review and approval. However, the Air Force told us that it



54
     GAO-01-1008G.
55
   As noted previously, the Military Whistleblower Protection Act and DOD Directive
7050.06 both allow alternative notification to the Secretary of Defense and the
complainant if the 180 days provided by law are going to be exceeded.




Page 29                                              GAO-12-362 Whistleblower Protection
now sets its internal investigation deadline to 180 days and therefore no
longer accounts for DODIG review time. The Army IG stated that it had
the same interpretation of the 180-day reporting requirement as the Air
Force IG. Officials from the Navy and Marine Corps IGs told us they
generally include DODIG review in their interpretation of the 180-day
reporting requirement. DODIG officials are aware of some of the different
interpretations among the services and the conflicts that exist in the
current directive. According to DODIG, it will be sending written guidance
to the services to reemphasize that the 180-day statutory time frame is
prescribed as from the time the complaint is filed until the time the report
is submitted to the complainant. DODIG reported that it will also
incorporate the clarifying language into the directive and will begin the
process of revising DOD Directive 7050.06 in the second quarter of 2012.

DODIG also has not been consistently adhering to standards regarding
the maintenance of its case files and, as a result, its case files are
generally incomplete. Quality Standards for Investigations outline
standards related to case file management and state that the file folders
used to document an investigation should be accurate and complete, and
the investigative report findings and accomplishments must be supported
by adequate documentation and maintained in the case file. 56 According
to DODIG’s standards related to the management of these files, it is
important for case files to adequately represent the investigative work and
evidence underlying the conclusions and recommendations in the final
report, and to be thoroughly documented to ensure that the files will be
able to withstand scrutiny. 57 Based on a review of DODIG’s process,
relevant statutes, directives, and other standards, and in consultation with
DODIG officials, we identified 18 key elements that we believe should be
present in case files to provide support for conclusions, document
compliance with the law or directives, or help manage the case. Using our
sample of 91 cases, we assessed the presence of the key elements as
indicators of the completeness of the file. 58 Based on the presence in the


56
   Council of the Inspectors General on Integrity and Efficiency, Quality Standards for
Investigations (Nov. 15, 2011).
57
   DOD Inspector General Office of the Deputy Inspector General for Investigations,
Investigations Manual Reprisal and Senior Official Cases (March 2006).
58
  Some of these elements included specific documents. For example, the Army oversight
worksheet was a specific document. Other elements could be reflected in multiple
documents. For example, the sequence of key events could be in a larger report, be in a
summary, or be its own document. For further details on our methodology, see app. I.




Page 30                                               GAO-12-362 Whistleblower Protection
file of the elements we selected, we found that most of DODIG’s case
files were incomplete (56 percent) or partially complete (38 percent) and
only a small portion of the case files were complete (5 percent). See table
5 for further details.

Table 5: Estimated Level of DODIG Case File Folder Completeness for Cases
Closed between January 1, 2009 and March 31, 2011




Notes:
Based on a review of 91 files of the original random sample of 97 for cases closed between January
1, 2009 and March 31, 2011.
Percentages do not add up to 100 percent due to rounding.
We identified 18 elements and used those as indicators for the completeness of a file. However, not
all 18 elements needed to be present in every file. For example, some of the 18 elements would only
need to be present in a file if an investigation was conducted by a service, went beyond 180 days, or
was a full investigation. We adjusted the required number of elements based on the specific
circumstances of each case and calculated completeness based on that adjusted baseline. See app.
I for further details on the scope and methodology.
a
 We assessed a case file to be complete if it contained 85 percent or more of the documents that
should be present.
b
 We assessed a case file to be partially complete if it contained between 70 and 84 percent of the
documents that should be present.
c
 We assessed a case file to be incomplete if it contained less than 70 percent of the documents that
should be present.


We also found that the guidance regarding a key investigative question is
unclear. According to DODIG’s investigative guide, 59 an investigation is
complete when the four questions of the “Acid Test” have been answered
(see fig. 2). We estimate that 65 percent of the cases closed between
January 1, 2009 and March 31, 2011, were closed, at least in part,
because DODIG concluded that the personnel action would have
occurred even if the protected communication had not been made—
question 4 of the Acid Test (see app. II for further details on the reasons


59
  DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal
and Improper Referrals for Mental Health Evaluations (Feb. 6, 1996).




Page 31                                                     GAO-12-362 Whistleblower Protection
                                DODIG closed cases). The departmental guidance for addressing all four
                                questions instructs the investigator to investigate the complaint, and not
                                the complainant, noting that investigators should avoid the tendency to
                                examine the reputation, background, or performance of the complainant
                                in order to determine the credibility of the complainant’s claim. However,
                                in answering the fourth question, the guidance requires, among other
                                things, an examination of the reasonableness of the unfavorable
                                personnel action(s) taken, withheld, or threatened considering the
                                complainant’s performance and conduct. DODIG officials acknowledged
                                that there may be some tension between these two requirements.
                                Further, in its October 2011 action plan, DODIG stated that current
                                guidance for question 4 has resulted in investigators closing cases
                                prematurely without fully considering whether the subject’s actions are
                                consistent with actions taken in similar situations with other employees.
                                As a result, DODIG officials are revising guidance for the investigative
                                questions. However, until DODIG carries out these actions, the lack of
                                clear guidance hinders efforts to ensure consistent program
                                implementation.

Case Monitoring Processes and   DODIG officials acknowledge the importance of standard case monitoring
Procedures                      processes and procedures, but currently lack such processes and
                                procedures, which may hinder their ability to consistently assess the
                                status of outstanding reprisal cases. According to federal internal control
                                standards, monitoring of internal controls should be conducted to assess
                                the quality of performance over time. 60 DODIG has responsibility for not
                                only conducting its own investigations, but also for overseeing and
                                approving the investigations conducted by service and other component
                                IGs. 61 It can be challenging for DODIG to maintain visibility on all cases
                                because a reprisal allegation can be made to and investigated by one of
                                several IGs in DOD.

                                DODIG has not established standard monitoring processes and
                                procedures and instead has been relying on ad hoc and inconsistent


                                60
                                     See: GAO/AIMD-00-21.3.1.
                                61
                                   Department of Defense Directive 7050.06 assigns those responsibilities to the DODIG
                                and includes, within the definition of “DOD Components”: the Office of the Secretary of
                                Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the
                                Combatant Commands, the Office of the Inspector General of the Department of Defense,
                                the Defense Agencies, the DOD Field Activities, and all other organizational entities within
                                the Department of Defense.




                                Page 32                                               GAO-12-362 Whistleblower Protection
efforts. For example, some service IG officials told us that they had not
reconciled cases with the DODIG in several years and some service IG
officials have recently been queried about cases that date back 5 years.
DODIG and service officials told us that DODIG had not required service
IGs to regularly report on the status of open cases. Additionally, our file
review included a case where the DODIG identified an investigation
begun by a service IG 6 years prior but never closed. DODIG was unable
to establish contact with the complainant after 6 years and later
administratively closed the case. Although this could be an extreme case,
it may be indicative of a larger issue dealing with the tracking and
management of complaints. Further, DODIG officials told us that the
review of whistleblower reprisal cases involving senior level officials had
in the past been handled by another office within DODIG and that the
whistleblower reprisal directorate had limited visibility on the status of
these cases. However, according to DODIG, it changed this procedure in
late fiscal year 2011 so that the directorate responsible for whistleblower
reprisal investigations also investigates or oversees service reprisal
investigations involving senior officials. Moreover, DODIG’s action plan
outlines its approach to providing more consistent monitoring of all
reprisal cases, including investigations of senior officials that include
reprisal allegations. The first step in this plan has been to establish a
team of investigators dedicated to providing oversight of service
investigations. DODIG officials told us that once this team has worked
through the backlog of cases, it will also implement more efforts to
consistently monitor and reconcile cases to help ensure that all reprisal
allegations are appropriately addressed in a timely manner. Until it further
addresses the weaknesses in its monitoring practices of military
whistleblower reprisal cases and the challenges it faces in its other
oversight mechanisms, DODIG cannot be sure that it is adequately
conducting its oversight responsibilities or implementing the whistleblower
reprisal program as intended.




Page 33                                      GAO-12-362 Whistleblower Protection
                            DOD’s efforts to ensure that appropriate corrective action is taken after
DOD Efforts to              investigations are completed—both for whistleblowers and against those
Ensure Corrective           who reprise against whistleblowers—are hampered by disconnected
                            investigative and corrective action processes and the limited visibility of
Actions Are Taken in        corrective actions taken. Individuals with substantiated military
Substantiated Cases         whistleblower reprisal cases generally receive relief from the negative
Are Hindered by             impacts caused by reprisal when they seek it from the BCMRs (80
                            percent of those who apply). However, few individuals with substantiated
Disconnected                cases apply to the BCMRs for relief (19.1 percent). DODIG and the
Investigative and           service BCMRs are also not consistently identifying and tracking data on
                            corrective action taken to undo the damage done to the complainant by
Corrective Action           the reprisal. Further, unreliable data regarding corrective action taken
Processes and               against the subject are hindering oversight of this key aspect of
                            whistleblower protection.
Unreliable Data
Few Servicemembers with     Most servicemembers with substantiated cases who seek relief from
Substantiated Cases Apply   BCMRs receive it, but few apply for relief and so the secretaries of the
for the Relief Process      military departments and the heads of the other DOD components are not
                            generally able to take action to make the complainant whole in the vast
                            majority of cases. The DOD directive governing the military whistleblower
                            reprisal process, DOD Directive 7050.06, includes a largely service-
                            centered process for obtaining corrective action that is separate from the
                            investigative process centered on DODIG. Specifically, the directive
                            charges the secretaries of the military departments and the heads of the
                            other DOD components with taking corrective action based on the IG
                            investigation. 62 Corrective action includes: (1) any action deemed
                            necessary to make the complainant whole, (2) changes in agency
                            regulations or practices, (3) administrative or disciplinary action against
                            offending personnel, or (4) referral to the U.S. Attorney General or court-
                            martial convening authority of any evidence of criminal violation. Although
                            DODIG can investigate allegations of reprisal, makes all final
                            determinations on investigations, and can make recommendations
                            regarding appropriate corrective action, it does not have the authority to
                            take corrective action, either for the complainant or against the subject. In
                            order for servicemembers to receive relief from the negative impacts
                            caused by reprisal—even for cases substantiated by DODIG—the law
                            requires that servicemembers must file a separate application to their



                            62
                                 DOD Directive 7050.06 sections 5.3.3 and 5.4.2 (Jul. 23, 2007).




                            Page 34                                                GAO-12-362 Whistleblower Protection
service BCMR. 63 For cases that are substantiated and those that are not,
DODIG provides the appropriate service BCMR with the same case
outcome notification it provides to the complainant. However, the DODIG
notification letter does not automatically trigger a BCMR review of the
case and/or corrective action.

For cases that servicemembers bring to the BCMRs, the Military
Whistleblower Protection Act requires the BCMRs to review the
whistleblower reprisal report approved by DODIG. However, BCMRs
have authority to make independent determinations on military
whistleblower reprisal cases and to engage in additional fact finding.
Among other things, the statute also allows the BCMRs to request that
DODIG or the service IGs gather additional evidence for the BCMR’s
consideration and hold hearings, although BCMR and DODIG officials
told us that, to their knowledge, this authority had not ever been
exercised. Further, it is up to the BCMR to make its own determination
whether personnel action was in reprisal and recommend to the secretary
of the military department appropriate actions to correct the record of
those who have been reprised against. However, BCMR officials told us
that they put significant credence in DODIG’s findings and that their
offices place a high priority on military whistleblower reprisal cases even
though they make up only a small proportion of their total work. 64

In our review of all substantiated reprisal cases submitted to BCMRs
between fiscal year 2006 and the first half of fiscal year 2011, we found
that the servicemembers with substantiated whistleblower reprisal
allegations that applied for relief were generally successful in obtaining
some relief. 65 Eighty percent of servicemembers (20 of 25) with
substantiated reprisal cases—closed between fiscal year 2006 through
the first half of 2011—who sought relief from a BCMR received some sort
of remedy (see table 6).




63
     10 U.S.C. §1034.
64
  Officials from each of the BCMRs told us that they review thousands of cases a year
and that reprisal cases in any year run in the single digits.
65
  In this report, when we refer to the first half of fiscal year 2011, we mean between
October 1, 2010 and March 31, 2011.




Page 35                                               GAO-12-362 Whistleblower Protection
Table 6: Substantiated Reprisal Cases Submitted to BCMRs and Their Outcome for
Cases Closed between Fiscal Year 2006 and the First Half of Fiscal Year 2011




Notes:
Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated
by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases
submitted to them, including case outcome.
Data do not include cases in which, according to DODIG data, the military whistleblower reprisal
allegations were not substantiated but an improper referral for mental health evaluation (IMHE) was
substantiated. Including those figures boosts the total number of cases submitted to the BCMRs to 31
and boosts the number of cases where the BCMR provided a remedy to 25, or 81 percent.
The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from
both Navy personnel and Marine Corps personnel.
Two cases (one Army, one Marine Corps) in which a complainant submitted an application to a
BCMR were not included because the BCMRs had not yet completed action on them.
Remedy provided indicates that the complainant received at least partial remedy. It does not indicate
that the complainants received the exact remedy they were seeking.
a
 Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and
considered as not having received remedy although the Navy BCMR data are unclear whether or not
it provided remedy. If the Navy BCMR provided remedy in these cases, then all Navy and Marine
Corps substantiated whistleblower reprisal allegations brought before the BCMR received some
remedy.


The most common corrective action taken by the services in response to
applications filed by complainants with substantiated military
whistleblower reprisal allegations was amending or removing a rating
from the complainant’s personnel record. This occurred in 14 of the 25
substantiated cases brought to the BCMRs. For example, in 1of the cases
a servicemember with a substantiated whistleblower reprisal case
requested that the Army BCMR remove two ratings from his record. The
Army BCMR decided to remove the one rating that the DODIG found was
done in reprisal. The second most common corrective action taken by the
services was providing payment, benefits, awards, or training that was
denied as a result of the reprisal. This occurred in 6 of the 25
substantiated cases brought to the BCMRs. For example, in one of the


Page 36                                                     GAO-12-362 Whistleblower Protection
                                       cases, a servicemember was given a Bronze Star that had been denied
                                       to him because of a reprisal. The third most common corrective action
                                       taken by the services was amending or removing disciplinary actions from
                                       an individual’s personnel record. For example, the Air Force BCMR
                                       removed a letter of reprimand from a servicemember’s file that DODIG
                                       found was a result of an act of reprisal. This occurred in 4 of the 25
                                       substantiated cases brought to the BCMRs. There were also a number of
                                       cases where the service took more than one corrective action. For
                                       example, a Navy petty officer had a disciplinary action removed from his
                                       record, a promotion backdated, and retroactive pay instated to go along
                                       with the backdated promotion.

                                       Although 80 percent of servicemembers with substantiated whistleblower
                                       reprisal allegations who applied for relief received some relief, only about
                                       1 in 5 servicemembers with whistleblower reprisal allegations
                                       substantiated by DODIG applied to the BCMRs for relief during the time
                                       period we reviewed. As shown in table 7, only 25 of the 131 (19.1
                                       percent) of complainants with substantiated cases submitted applications
                                       for relief with their BCMR. As a result, only 15 percent of servicemembers
                                       with reprisal allegations substantiated by DODIG received some relief
                                       through their BCMRs. We found that there were differences between the
                                       services regarding the proportion of cases submitted to the BCMRs, with
                                       more than half of the substantiated Navy cases being brought to the Navy
                                       BCMR and only approximately 1 in 10 substantiated Army cases being
                                       brought to the Army BCMR.

Table 7: Substantiated Reprisal Cases Submitted to BCMRs Compared to All Substantiated Cases for Cases Closed Between
Fiscal Year 2006 and the First Half of Fiscal Year 2011




                                       Page 37                                        GAO-12-362 Whistleblower Protection
Notes:
Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated
by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases
submitted to them, including case outcome.
Total substantiated cases do not include two cases (one Army, one Marine Corps) in which a
complainant submitted an application to a BCMR because the BCMRs had not yet completed action
on them. It also does not include 2 Army cases that, according to data provided by the Army BCMR,
DODIG misidentified in their database as containing substantiated whistleblower reprisal claims when
they had substantiated only improper referral for mental health evaluations (IMHE).
Data does not include cases in which, according to DODIG data, the military whistleblower reprisal
allegations are not substantiated but an improper referral for mental health evaluation (IMHE) is
substantiated. Including those figures does not significantly impact total cases submitted—the percent
changes from 19.1 percent to 19.0 percent. Total remedy provided is 15.3 percent in both cases.
The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from
both Navy personnel and Marine Corps personnel.
There were 9 cases in which complainants did not apply to the Army BCMR for record correction
where the BCMR could not have provided relief had the complainant applied. The BCMR could not
have provided relief because the substantiated claim did not impact the complainant’s record. For
example, the complainant was threatened with adverse action or was restricted from making a lawful
communication to an IG or Member of Congress. Neither action would result in a negative impact on
the complainant’s personnel file. Not counting these Army cases would change the Army cases
submitted and Army remedy provided to 13.3 percent and 6.7 percent, respectively. It would also
change the total cases submitted and total remedy provided to 20.5 percent and 16.4 percent,
respectively. We did not identify similar circumstances for cases processed by the Air Force and Navy
BCMRs based on the information provided by these organizations.
Remedy provided indicates that complainants received at least partial remedy. It does not indicate
that complainants received the exact remedy they were seeking.
a
 Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and
considered as not having received remedy, although the Navy BCMR data are unclear whether or not
it provided remedy. If the Navy BCMR provided remedy in these cases, then all Navy and Marine
Corps substantiated whistleblower reprisal allegations brought before the BCMR received some
remedy.


Officials from DODIG, the service IGs, and the BCMRs indicated that they
did not know the exact reason why so few servicemembers with
substantiated reprisal allegations apply for relief. There are some cases
for which the BCMRs cannot provide relief. For example, a BCMR cannot
correct the record for an individual where DODIG substantiated that the
individual was threatened with reprisal but where no actual harm was
done to that individual’s record. Similarly, a BCMR cannot correct the
record for an individual where DODIG substantiated that the individual
was restricted from making a lawful communication to an IG in DOD or
Member of Congress. We identified nine Army cases where the Army
BCMR was not in a position to provide relief. Discounting those nine
cases would increase the percentage of servicemembers with
substantiated claims that submitted cases to the Army BCMR from 11.1
percent to 13.3 percent (see table 7 and associated notes for further




Page 38                                                     GAO-12-362 Whistleblower Protection
details). However, the overall impact of such cases appears to be minimal
due to the relatively low number of substantiated cases involving only
restriction or threats of reprisal. 66 Officials from the Air Force and Army
BCMRs also said that some servicemembers may be seeking relief from
other lower-level service boards, such as the Air Force Evaluation Report
Appeals Board or the Army’s Enlisted Special Review Board, even though
servicemembers are told in their letter from DODIG to obtain relief from
the BCMRs. The officials did not know of any such incidents but said it
was a possibility. Data obtained from the Army BCMR shows four such
incidents, with the other board providing relief to the servicemember in
one of the four cases. Discounting those four cases would increase the
percentage of servicemembers with substantiated claims that submitted
cases to the Army BCMR from 11.1 percent to 12.0 percent. 67 Based on
these data, the impact of complainants taking cases to boards other than
BCMR is relatively modest and does not explain the large difference
between the number of substantiated cases and the number of cases
brought to the BCMRs.

Service and DODIG officials also stated that the length of time it takes for
servicemembers to get their reprisal allegations substantiated may impact
their willingness to engage in yet another process. Servicemembers
frequently rotate to other assignments at different locations around the
world and so could be in a completely new work environment with a
different chain of command by the time the reprisal investigation is
completed. The officials also said that servicemembers may have left the
service during the time it takes to substantiate a claim. Our case file
review included a nongeneralizable subset of seven substantiated
whistleblower reprisal cases that took a mean of 614 days to close and
with a range of 439 days to 796 days. Only one of the seven
servicemembers with a substantiated case from our file review applied for
relief with their BCMR, and DODIG took 750 days to substantiate that one
claim.



66
   Our review of a random sample of case files closed between January 1, 2009 and
March 31, 2011, found one case where restriction was substantiated and one where the
threat of an unfavorable personnel action was substantiated. Neither complainant brought
their case to a BCMR for review and remedy.
67
  Data obtained from the Air Force BCMR showed that the Air Force Evaluation Report
Appeals Board provided partial remedy to one applicant who had a military whistleblower
reprisal case substantiated by DODIG between fiscal year 2006 and the first half of 2011.
However, that applicant also obtained additional remedy from the Air Force BCMR.




Page 39                                              GAO-12-362 Whistleblower Protection
                           A further factor that could impact the willingness of those with
                           substantiated reprisal claims from pursuing remedy from their service
                           BCMR is a lack of understanding regarding the available remedies. The
                           Military Whistleblower Protection Act allows a report of investigation to
                           include recommendations regarding the corrective action. According to
                           DODIG’s investigative guide, recommendations should be made if there
                           is a substantiated reprisal allegation. It states that recommendations can
                           be general or specific but that the corrective action “should be sufficient to
                           make the complainant ‘whole’ and restore the complainant to the same or
                           equal status he or she would have attained if the reprisal had not
                           occurred.” According to DODIG officials, DODIG used to provide detailed
                           recommendations regarding what it thought would be appropriate
                           remedies for the complainant. For example, the 1996 investigative guide
                           includes an example of a case that recommends a specific evaluation
                           report be voided and the complainant be reinstated to his former position
                           or one commensurate to it. Nevertheless, DODIG’s current practice is to
                           provide a more general recommendation that appropriate corrective
                           action be taken. DODIG officials did not know when or why this change in
                           practice occurred but acknowledged that it would be appropriate and
                           helpful to provide more detailed recommendations for how to make the
                           complainant whole. Without knowing more about when and how this
                           practice changed, we were not able to identify if there is an association
                           between the level of detail in recommendations and the proportion of
                           individuals who apply to the BCMRs. However, it is reasonable to assume
                           that without detailing in the investigative report the types of remedies that
                           could be appropriate, the servicemember may not be aware of the full
                           benefit realized by applying for relief to the BCMR.


Service BCMRs Are Not      The service BCMRs are not consistently identifying applicants who have
Consistently Identifying   substantiated reprisal cases as such and are therefore not providing all
Reprisal Cases             reprisal victims with the procedural privileges to which they are entitled.
                           The Military Whistleblower Protection Act 68 provides whistleblowers with
                           unique procedural privileges that are generally not afforded to other
                           applicants to the BCMRs. These privileges include:




                           68
                                10 U.S.C. § 1034, as amended.




                           Page 40                                       GAO-12-362 Whistleblower Protection
1. direct application for corrective action may be made to the service
   BCMR instead of first going to a lower level of administrative appeal; 69
2. 180-day deadline for the BCMR to review and the secretary of the
   military department concerned to render a final decision in the case,
   which differs from other cases processed by BCMRs; and
3. right to appeal BCMR decisions to the Secretary of Defense. 70

Further, according to federal internal control standards, agencies need
operating information to determine whether they are achieving their
compliance requirements under various laws and regulations. 71 BCMR
officials also told us that whistleblower reprisal cases are high-priority
cases for the BCMRs, even though they receive only a few a year
compared to the many thousands of other cases they process. They
therefore make a special effort to track reprisal cases. 72

Although the Military Whistleblower Protection Act provides unique
procedural privileges to whistleblowers who apply to BCMRs for relief, the
BCMRs are not consistently identifying applicants with substantiated
whistleblower reprisal cases as such and are therefore not always aware




69
     The BCMRs are the highest level of administrative review in the services.
70
  According to BCMR officials, servicemembers with cases that are not whistleblower
reprisal have to challenge BCMR decisions in federal court.
71
     GAO/AIMD-00-21.3.1.
72
   The service BCMRs have adopted different interpretations of what cases qualify as a
reprisal case. DOD Directive 7050.06 requires secretaries of the military departments to
ensure that BCMRs shall consider applications for the correction of military records at the
request of servicemembers or former servicemembers who allege that they have been
reprised against due to their whistleblower activity. The Air Force BCMR considers anyone
with a reasonable whistleblower reprisal claim to be a whistleblower with the
corresponding procedural privileges. The Army and Navy BCMRs consider only applicants
with cases substantiated by DODIG as whistleblowers. Other cases that may include
whistleblower allegations that are not substantiated are reviewed under each BCMR’s
regular authority. Army officials added that, should the Army BCMR ultimately determine
that an applicant’s reprisal case has merit even if it was not substantiated by DODIG, the
Army BCMR has the ability to invoke its authority under the Military Whistleblower
Reprisal Act.




Page 41                                                 GAO-12-362 Whistleblower Protection
when these procedural privileges should apply. 73 We found that the
BCMRs did not identify 10 of the 25 applicants with whistleblower reprisal
cases substantiated by DODIG as whistleblower reprisal cases (see table
8). Additionally, we found in the aggregate that cases that are not
identified as whistleblower reprisal cases took longer. This was true for
each BCMR but was more pronounced with the Navy BCMR. Data
provided by the Navy BCMR showed that it processed in 40 days (mean)
the six cases that were identified as reprisal in their database but took
235 days (mean) to process four cases not identified as reprisal (see app.
III). Between those cases identified as reprisal and those that were not,
we did not observe a difference in overall proportion of applicants who
were provided remedy by the BCMRs. However, complainants who do
not receive remedy or are not satisfied by the remedy they received from
the BCMR and who the BCMR did not identify as a whistleblower reprisal
case are not informed of their right to appeal to the Secretary of Defense.
Instead, these individuals are treated as non-whistleblower applicants and
so told that their administrative appeals options have been exhausted
within the service, unless they have new information to provide to the
BCMRs. The applicants are also advised that they may seek remedy in a
court of appropriate jurisdiction.




73
   In GAO/NSIAD-95-23, Whistleblower Protection: Continuing Impediments to Protection
of Military Members (February 1995), we reported that at that time BCMRs were unable to
identify any specific whistleblower cases because they were not uniquely coding them. As
a result of a settlement in a 1977 court action, DOD and service directives required the
BCMRs to establish a single index system for all BCMR cases except those involving
characterizations of discharge. The system was to provide a means for applicants to
identify or isolate cases that may be similar to theirs and indicate the grounds for which
the BCMR or Secretary granted or denied relief. The Department of the Army was
responsible for developing the initial format of the index system, establishing joint facilities
for inspection, and copying opinions. We therefore recommended that the BCMRs
establish the required code. According to Army BCMR officials, in 2002 the court
approved DOD’s request to discontinue standardized BCMR indexing of cases because
the new data systems used by the BCMRs fulfilled the underlying purpose for the court
order.




Page 42                                                  GAO-12-362 Whistleblower Protection
Table 8: Comparison of Substantiated Cases Identified and Not Identified as
Reprisal by the BCMRs (for Cases Closed between Fiscal Year 2006 and the First
Half of Fiscal Year 2011)




Notes:
Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated
by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases
submitted to them, including case outcome.
The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from
both Navy personnel and Marine Corps personnel.
Two cases (one Army, one Marine Corps) in which a complainant submitted an application to a
BCMR were not included because the BCMRs had not yet completed action on them.
Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and
considered as not having received remedy, although the Navy BCMR data are unclear whether or not
it provided remedy. The Marine Corps case was not identified by the Navy BCMR as being a military
whistleblower reprisal case. The Navy case was identified as a military whistleblower reprisal case.
A more detailed table by service can be found in app. III.
Remedy provided indicates that the complainant received at least partial remedy. It does not indicate
that the complainant received the exact remedy they were seeking.


We identified two factors that may impact the ability to consistently
identify substantiated military whistleblower reprisal cases across all of
the service BCMRs. First, service BCMR officials told us that they may
not be properly identifying all whistleblower reprisal cases in their case
tracking system because it is not always readily apparent on a
complainant’s application that it is a whistleblower case. The form used
by whistleblowers to apply for relief from a BCMR is the same general
form used by all applicants to the BCMRs. This form requires a narrative
description and does not have a special indicator, such as a checkbox, to
identify the case as a whistleblower reprisal case. The officials said that
their intake organizations and reviewers could therefore miss that an
applicant is a whistleblower if the applicant did not explicitly mention it.


Page 43                                                      GAO-12-362 Whistleblower Protection
                              Second, the different approaches service BCMRs take to DODIG
                              notifications of substantiated cases they receive may also impact how
                              consistently they identify military whistleblower reprisal cases. The
                              success of identifying military whistleblower reprisal cases varies by
                              service BCMR, with the Army properly identifying 83 percent of the cases
                              (5 of 6), the Navy identifying 60 percent of the cases (6 of 10), and the Air
                              Force identifying 44 percent of the cases (4 of 9) for cases closed
                              between fiscal year 2006 and the first half of fiscal year 2011 (see app.
                              III). Army BCMR officials told us that a method they used to identify
                              military whistleblower reprisal cases is to create an electronic case file for
                              every substantiated case notification they receive from DODIG. Although
                              they immediately close the case in the database, it acts as a flag to
                              identify a case as a whistleblower reprisal case should a complainant
                              apply to the Army BCMR for relief. The Air Force and Navy BCMRs do
                              not have a similar procedure. By not properly identifying a significant
                              proportion of whistleblower reprisal cases as reprisal cases, the BCMRs
                              are not providing all whistleblower applicants with the unique procedural
                              privileges afforded them by law.


Unreliable Data Limits        DODIG lacks reliable data on the corrective action taken in response to
Visibility and Oversight of   substantiated whistleblower reprisal cases, which limits the visibility and
Corrective Action             oversight DOD and Congress have of the final portion of the military
                              whistleblower reprisal process. According to federal internal control
                              standards, oversight mechanisms are an integral part of an entity’s
                              planning, implementing, reviewing, and accountability for stewardship of
                              government resources and achieving effective results. 74 Oversight
                              mechanisms include the policies, procedures, techniques, and
                              mechanisms that enforce management’s directives and help ensure that
                              actions are taken to address risks. The impact of whistleblower reprisal
                              investigations comes with the corrective actions taken in response to
                              substantiated cases. Additionally, the 2009 Department of Justice review
                              recommended that the results of investigations that substantiate
                              allegations of reprisal be publicized as a way to heighten awareness
                              within the services of the Military Whistleblower Protection Act, to
                              potentially deter future incidents of reprisal, and to possibly encourage
                              other reprisal victims to come forward.




                              74
                                   GAO/AIMD-00-21.3.1.




                              Page 44                                       GAO-12-362 Whistleblower Protection
While DODIG cannot directly take corrective action in response to a
substantiated case, it is the focal point for DOD’s military whistleblower
reprisal program and is well positioned to collect and monitor data
regarding program outcomes. DODIG has a directorate dedicated
primarily to whistleblower reprisal allegation investigations and
designated to receive information from the military departments on
corrective action, so is well positioned not only to collect the information
on corrective action but also to use that information to help enhance
oversight of the military whistleblower reprisal process and ensure that it
is achieving effective results. DODIG officials stated that because DODIG
is the focal point for DOD’s military whistleblower reprisal activities, it is
important for them to have visibility and information of all military
whistleblower reprisal activities, not only to provide oversight but also to
provide a central place within the department where internal and external
stakeholders can obtain information. They explained that they would want
to know, for example, if complainants were having difficulty obtaining
corrective action so that they could try to address such a problem. They
also noted that it was important to have complete data since Members of
Congress come to DODIG for information on military whistleblower
reprisal activities. The officials emphasized that understanding the
relevance of their investigative work depends on knowing what corrective
action was taken in response to that work.

Although DODIG officials acknowledge the importance of information on
corrective action, the service BCMRs are not consistently reporting and
DODIG is not maintaining data on the actions BCMRs take in response to
reprisal cases. DOD Directive 7050.06 requires the secretaries of the
military departments to notify DODIG and the service IG concerned of
decisions in regards to applications from whistleblower reprisal
complainants for the correction of military records. 75 BCMR officials told
us that they are supposed to provide this notification on behalf of the
service secretary but have not been consistently carrying out this
responsibility. DODIG officials also told us that they are not aware of
receiving any BCMR reports regarding case outcomes. However, DODIG
also did not follow up with the services regarding this information because
it had chosen not to track this information. DODIG therefore has had no
visibility into or oversight capacity for this portion of the military
whistleblower reprisal program. During the course of our review, however,



75
     DOD Directive 7050.06, Section 5.3.8 (July 23, 2007).




Page 45                                                GAO-12-362 Whistleblower Protection
DODIG officials acknowledged that they should be collecting and
monitoring information on corrective action provided to whistleblowers
and stated that they would begin doing so as part of their ongoing reforms
to the whistleblower reprisal process.

DOD has a separate process for taking and tracking corrective action
against those who have reprised against whistleblowers—also called
command action. DOD Directive 7050.06 directs the secretaries of the
military departments and the heads of the other DOD components to take
corrective action based on the IG reports of investigations of military
whistleblower reprisal allegations, and to notify DODIG of the action taken
within 10 working days. 76 Further, DODIG requires that the service IGs
report back to DODIG on command action taken against the subject—the
individual alleged to have reprised against a whistleblower—according to
officials from these organizations. DODIG records command action taken
in its database and has reported in its semiannual reports to Congress
examples of command action taken in response to substantiated military
whistleblower reprisal claims.

While DOD Directive 7050.06 ultimately places responsibility for taking
corrective action on the secretaries of the military departments based on
the DODIG findings, it is up to a subject’s military commanding officer to
determine whether command action against the subject is appropriate,
and if so, what form it should take. Military commanders are responsible
for good order and discipline in their commands, and they have a number
of judicial and administrative options at their disposal. DODIG officials told
us that if a commander takes action against a subject in a military
whistleblower reprisal case, it is largely, if not exclusively, an
administrative action. Administrative actions are the least severe of the
categories of command action available to the commander and can range
from verbal counseling to written reprimands and demotion.

Although DODIG has an important role in collecting information on and
monitoring command action taken against subjects in response to
substantiated whistleblower reprisal cases, DODIG has not been
maintaining in its database reliable information on command action
needed to fulfill this role. Specifically, DODIG data on command action
indicates that almost half of all substantiated cases (40 percent) that were



76
     DOD Directive 7050.06 Sections 5.3.3 and 5.4.2 (July 23, 2007).




Page 46                                               GAO-12-362 Whistleblower Protection
              closed from October 1, 2005 through March 31, 2011, were awaiting
              reports from the services regarding the command action taken. According
              to most of the service IGs, they are diligent in providing command action
              information to DODIG on a timely basis. Data provided by the services
              showed that there were no cases pending follow-up action but we
              determined that the service data were not reliable enough for our
              purposes. However, DODIG officials also acknowledged that their
              information on command action was incomplete and that they were taking
              steps to both supplement data on existing closed cases and collect and
              maintain reliable data for command action taken in response to future
              substantiated cases. Until DODIG has reliable data on corrective action,
              DOD and Congress will be hindered in their ability to provide oversight of
              the corrective action portion of the military whistleblower reprisal program.


              Whistleblowers play an important role in safeguarding the federal
Conclusions   government against waste, fraud, and abuse, and Congress has enacted
              legislation to provide military whistleblowers with protections against
              reprisal. The requirements of the Military Whistleblower Protection Act
              provide complainants with a means to redress wrongs committed against
              them as a result of their whistleblowing; establish processes for holding
              subjects accountable; and provide the Secretary of Defense and decision
              makers with visibility over the military whistleblower reprisal investigative
              process and its outcomes. Recognizing problems with the process, and in
              response to its own internal review and a Department of Justice report it
              requested, the DODIG has expressed a renewed commitment to meeting
              the statutory timeliness and reporting requirements and ensuring quality
              investigations. Further, it has taken some steps to achieve these goals
              and to improve oversight of its investigations into allegations of reprisal
              against whistleblowers. Additional actions are needed, however. For
              example, recording, collecting, and tracking accurate, relevant data on
              case processing times would aid DOD in its efforts to identify
              inefficiencies or challenges to meeting timeliness requirements and in
              reporting to internal and external stakeholders. Finalizing the
              development and implementation of performance metrics for
              whistleblower reprisal investigations, such as ensuring case files contain
              evidence sufficient to support conclusions, would provide DOD with a
              means of ensuring that DOD is meeting its own standards for completing
              quality investigations. In addition, oversight actions—such as updating
              and adhering to the guidance governing investigations—could help
              improve the quality and oversight of reprisal cases. Finally, the overall
              purpose of DOD’s whistleblower reprisal program is to identify
              servicemembers who have been reprised against, make them whole, and


              Page 47                                      GAO-12-362 Whistleblower Protection
                      ensure that there are appropriate consequences for those who reprised
                      against the whistleblower. This could be furthered if the DODIG and the
                      service BCMRs develop processes and procedures to facilitate
                      consideration of all substantiated allegations by the appropriate service
                      BCMR. Increasing the completeness and reliability of data on corrective
                      action could also provide DOD and Congress with information they need
                      for oversight. Without addressing these issues, military whistleblowers
                      may not be getting the full protection and resolution they deserve and
                      DOD may not be reaping the full benefits whistleblowers could provide
                      the department.


                      To assist DOD with improving processing times of these investigations,
Recommendations for   we recommend that the Secretary of Defense work in coordination with
Executive Action      DODIG to:

                      •   implement policies and procedures to ensure accurate and complete
                          recording and consistent tracking of total case processing time and
                          processing time for various phases of the investigation;
                      •   track and analyze timeliness data to identify reforms that could aid in
                          processing cases within the 180 days provided by law; and
                      •   regularly report to Congress on the timeliness of military whistleblower
                          reprisal investigations, including the number of cases exceeding the
                          180 days provided by law. DODIG could do so in its semiannual
                          reports.
                      To assist DOD in improving oversight over the whistleblower reprisal
                      investigative process, we recommend that the Secretary of Defense work
                      in coordination with DODIG to:

                      •   develop and implement performance metrics to ensure the quality and
                          effectiveness of the investigative process, such as ensuring that the
                          case files contain evidence sufficient to support the conclusions;
                      •   update whistleblower reprisal investigative guidance and ensure that it
                          is consistently followed, including clarifying reporting requirements,
                          responsibilities, and terminology; and
                      •   consistently monitor the status of whistleblower reprisal investigations.
                      DODIG should work in close consultation with the service IGs when
                      implementing these recommendations.

                      To better ensure that whistleblowers obtain the relief they are due, we
                      recommend that the Secretary of Defense work in coordination with
                      DODIG to identify best practices and develop the necessary processes



                      Page 48                                      GAO-12-362 Whistleblower Protection
                     and procedures to ensure that all whistleblower reprisal allegations
                     substantiated by DODIG are considered under the whistleblower statute
                     by the appropriate service BCMR. For example, DODIG could provide
                     more detailed recommendations regarding corrective action for the
                     complainant. DODIG should work in close consultation with the service
                     IGs and the BCMRs when implementing this recommendation.

                     To ensure that the BCMRs are treating military whistleblower reprisal
                     cases appropriately, given the unique procedural privileges provided by
                     the Military Whistleblower Protection Act, we recommend that the
                     Secretary of Defense direct the secretaries of the military departments to
                     take action to ensure that military whistleblower cases are correctly
                     identified and processed by the BCMRs. Such actions could include
                     modifying the form used to apply to the BCMR; additional training so that
                     BCMR staff can better identify cases; or developing methods for
                     identifying cases for which the BCMRs have received DODIG
                     substantiated case notifications.

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

                     •   establish standardized corrective action reporting requirements;
                     •   consistently track and regularly reconcile data regarding corrective
                         action; and
                     •   regularly report to Congress on the frequency and type of corrective
                         action taken in response to substantiated reprisal claims. DODIG
                         could do so, for example, in its semiannual reports to Congress.
                     DODIG should work in concert with the service IGs and BCMRs when
                     implementing these recommendations.


                     In commenting on a draft of this report, DOD concurred with each of our
Agency Comments      recommendations. DOD’s comments are reprinted in appendix IV. DOD
and Our Evaluation   also provided technical comments, which we considered and incorporated
                     where appropriate.

                     In concurring with our recommendations that DODIG implement policies
                     and procedures to ensure accurate and complete tracking of total case
                     processing times and processing time for various phases of the
                     investigation, track and analyze timeliness data, and regularly report to



                     Page 49                                      GAO-12-362 Whistleblower Protection
Congress on the timeliness of military whistleblower reprisal
investigations, DOD stated that DODIG recognized the necessity of
policies and procedures to ensure accurate and complete tracking of
processing time for all phases of investigations and was taking multiple
steps to address the GAO recommendations. These steps include
modifying internal processes and updating policy manuals, redesigning
the case management database, relying on data analysis to evaluate
reforms and identifying further reforms, and reporting timeliness data to
Congress. We believe that these steps, when fully implemented, could
provide the department and the Congress with enhanced visibility over
the status of military whistleblower reprisal investigations.

In concurring with our recommendations that DODIG develop and
implement performance metrics, update and consistently follow guidance,
and consistently monitor the status of military whistleblower reprisal
cases, DOD stated that DODIG is taking steps to address each one of
these areas, including revising its manual for administrative investigations
to include clearly defined performance metrics, the required contents of
investigative case files, as well as defining reporting requirements,
responsibilities, and relevant terminology. It has also established a new
oversight team which reviews and approves the determinations reached
by the service IGs. DODIG is also in the process of establishing
procedures that will directly monitor the progress of investigations and
track command actions taken. We believe that the steps that DOD noted
in its response could improve DOD’s means of ensuring that DOD is
meeting its own standards for completing quality investigations.

In concurring with our recommendation that DODIG, in close consultation
with the service IGs and the BCMRs, identify best practices and develop
the necessary process and procedures to ensure that all substantiated
military whistleblower reprisal cases are considered by the appropriate
BCMR, DOD stated that the mentioned organizations will begin meeting
together within the next six weeks to identify best practices and develop
an effective way forward. We acknowledge the department’s stated
commitment to these steps and encourage it to work toward the broad
range of recommended steps, including that DODIG provide more
detailed recommendations regarding corrective action for complainants.

In concurring with our recommendation that the service BCMRs take
action to ensure that military whistleblower reprisal cases are correctly
identified and processed by the BCMRs, DOD stated that the BCMRs will
consider how to best ensure that whistleblowers with substantiated
reprisal complaints are provided with all the information they need to


Page 50                                      GAO-12-362 Whistleblower Protection
determine if an application to a BCMR is appropriate. Although providing
information to whistleblowers is a positive step, this alone will not address
our finding that the service BCMRs are not consistently identifying
applicants who have substantiated reprisal cases as such and are
therefore not providing all reprisal victims with the procedural privileges to
which they are entitled. Our recommendation included examples of
possible actions the BCMRs could take to ensure that they are correctly
identifying cases, including modifying the application form, additional
training for BCMR staff, or developing methods for using the DODIG
notification to BCMRs of substantiated cases as a way to flag military
whistleblower reprisal cases, much like the Army BCMR does. We believe
that improving the BCMRs’ ability to properly identify substantiated
military whistleblower reprisal cases could help to ensure that such cases
are properly considered under the military whistleblower statute by the
appropriate service BCMR.

In concurring with our recommendations that DODIG establish
standardized corrective action reporting requirements, track and reconcile
such data, and regularly report such information to Congress, DOD
indicated that DODIG is redesigning its case management database to
better enable it to record and report on such information. The overall
purpose of DOD’s whistleblower reprisal program is to identify
servicemembers who have been reprised against, make them whole, and
ensure that there are appropriate consequences for those who reprised
against the whistleblower. We believe that the department’s stated
commitment to collecting and maintaining reliable data on corrective
action—both for the remedies provided to complainants and command
actions taken against subjects—and also regularly reporting such
information to Congress could enhance oversight of the outcomes of the
military whistleblower reprisal program.


We are sending copies of this report to the appropriate congressional
committees. We are also sending copies to the Secretary of Defense. In
addition, the report is available at no charge on the GAO website at
http://www.gao.gov.




Page 51                                       GAO-12-362 Whistleblower Protection
If you or your staff have any questions about this report, please contact
me at (202) 512-5257 or merrittz@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made key contributions to this report
are listed in appendix V.




Zina Merritt
Director
Defense Capabilities and Management




Page 52                                    GAO-12-362 Whistleblower Protection
Appendix I: Scope and Methodology
             Appendix I: Scope and Methodology




             During our review of the Department of Defense’s (DOD) military
             whistleblower reprisal program, we reviewed relevant documentation,
             gathered and assessed data, and met with representatives from
             numerous agencies, including the DOD Inspector General (DODIG), and
             Inspector General (IG) officials from the services (Army, Navy, Air Force,
             and Marine Corps).Table 9 lists all of the organizations we met with
             during our review. To determine DOD’s process for investigating military
             whistleblower reprisals cases, we reviewed documents outlining
             investigative processes of DODIG and service IGs, including DODIG’s
             investigative guide, and agency briefings and memoranda, and we spoke
             with officials from those organizations. 1

             Table 9: Organizations Met with During Review

                 Organization     Interviews conducted
                 DODIG            The Inspector General of the Department of Defense, Administrative
                                  Investigations, Office of Communications and Congressional Liaison,
                                                                                    a
                                  Whistleblower Reprisal Investigations Directorate, Office of General
                                  Counsel, Office of Whistleblowing and Transparency
                 Army             Department of the Army Inspector General, Army National Guard
                                  Bureau Inspector General, U.S. Army Forces Command Inspector
                                  General, Army Board for Correction of Military Records
                 Air Force        Secretary of the Air Force Inspector General, Air Combat Command
                                  Inspector General, Air Force Reserve Command Inspector General,
                                  Global Strike Command Inspector General, Pacific Air Forces
                                  Inspector General, US Air Forces Europe Inspector General, 11 Wing
                                  Inspector General, Air Force Board for Correction of Military Records
                 Navy             Naval Inspector General; Commander, Navy Installations Command
                                  Inspector General; U.S. Fleet Forces Command Inspector General;
                                  Commander, Navy Reserve Forces Command Inspector General;
                                  Board for Correction of Naval Records
                 Marine Corps     Marine Corps Inspector General, Marine Corps Training and Education
                                  Command Inspector General, Marine Corps Third Marine Aircraft Wing
                                  Inspector General
                 Office of the    Office of the Under Secretary of Defense for Personnel and Readiness
                 Secretary of     – Enterprise Services
                 Defense
             Source: GAO.
             a
             DODIG formed the Whistleblower Reprisal Investigations directorate during the course of our review
             when it merged the Military Reprisal Investigations and Civilian Reprisal Investigations directorates.
             We had previously met with the Military Reprisal Investigations directorate.




             1
              DOD Inspector General Departmental Guidance 7050.6, Guide to Investigating Reprisal
             and Improper Referrals for Mental Health Evaluations, (Feb. 6, 1996).




             Page 53                                                      GAO-12-362 Whistleblower Protection
Appendix I: Scope and Methodology




Two primary sources of data used in several of our objectives were
military whistleblower reprisal data from DODIG’s database and from a
random selection of DODIG closed military whistleblower reprisal case
files. DODIG provided us with information for all military whistleblower
reprisal cases opened and closed between fiscal year 2006 and the first
half of fiscal year 2011 from the two databases they used to record these
data. 2 We combined the information from the two databases into one
complete dataset, eliminating duplicate cases as per directions provided
by DODIG. We also consulted with DODIG officials to ensure that we
were properly identifying the various data elements. In addition, we based
our case file selection on the consolidated dataset of DODIG military
whistleblower reprisal data. Specifically, a GAO statistician determined
that a random sample of 97 cases from a list of the 871 military
whistleblower reprisal cases DODIG closed between January 1, 2009 and
March 31, 2011, would be appropriate. Our sample size of 97 cases was
chosen to be generalizable, with a margin of error of 10 percentage points
at the 95 percent confidence level for percentage estimates. We chose
this time period because it represented DOD’s most recent efforts and
because DODIG had these files on site. 3 Based on our review of
whistleblower reprisal policies and procedures, we created a data
collection instrument to identify the key characteristics of whistleblower
reprisal cases, check the data reliability of the database information, and
assess the completeness of files. We also developed a standard
approach to reviewing files to ensure we reviewed all cases consistently.
We refined this data collection instrument and our approach by first
reviewing 12 case files that were not part of the 97 identified. Our
methodology for reviewing the random sample required two analysts to
review each case file, enter the information for each field in the data
collection instrument, and transfer their information for each case to a


2
  At the time DODIG provided us the data, it kept information on reprisal cases in two
databases. DODIG used the CASES database to record information for all cases that it
investigated and those cases that went to full investigation. DODIG used the separate
Service IG Reprisal Case (SIRC) database to record information on military whistleblower
reprisal cases reviewed by the service IGs. However, if those service cases went to full
investigation, DODIG would close the case in SIRC and reopen the case in CASES. In
October 2011, DODIG began phasing out the use of its SIRC database by recording
information on all new cases in its CASES database. Although DODIG used two
databases to record information, in this report we generally refer to the information from
these databases as data from the DODIG database (singular).
3
 DODIG officials stated that their file retention policy is to keep files on site for the current
year and the 2 previous calendar years before files are sent to an off-site archive.




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central spreadsheet. We compared the two scores for each case, and
highlighted the elements for which there was disagreement. Reviewers
discussed the areas of disagreement and resolved any differences by
identifying the necessary evidence in the case files. During the course of
the case file review, our original sample size was reduced from 97 to 91
because 3 of the cases were found to be ongoing investigations, 2 cases
were not military whistleblower reprisal cases, and DODIG could not
locate 1 of the case files. However, this reduced sample is still
generalizable, with an 11 percent margin of error at the 95 percent
confidence level. Case file review results based on probability samples
are subject to sampling error. The sample we drew for our case file
review is only one of a large number of samples we might have drawn.
Because different samples could have provided different estimates, we
express our confidence in the precision of our particular sample results as
a 95 percent confidence interval. This is the interval that would contain
the actual population values for 95 percent of the samples we could have
drawn. As a result, we are 95 percent confident that each of the
confidence intervals in this report will include the true values in the study
population. The margin of error associated with the confidence intervals
of our case file review proportion estimates is no more than plus or minus
11 percentage points at the 95 percent level of confidence. The margin of
error for any mean values based on our case file review will vary
depending on the variability of the data and so is reported along with the
mean.

In order to determine the extent to which DOD is meeting timeliness
requirements for investigating military whistleblower reprisals, we
reviewed relevant documents including The Military Whistleblower
Protection Act, and its implementing directive on military whistleblower
protections, DOD Directive 7050.06, Military Whistleblower Protection
(Jul. 23, 2007). To identify possible challenges DOD faces in meeting
these requirements, we reviewed key documents, including internal
agency memos and briefings; the July 2009 Department of Justice
Inspector General report; A Review of the Department of Defense Office
of Inspector General’s Process for Handling Military Whistleblower
Reprisal Allegations; and DODIG’s May 2011 Review of the Office of
Deputy Inspector General for Administrative Investigations, Directorate for
Military Reprisal Investigations. We also reviewed the 2010 DODIG report
to Congress on progress made regarding recommendations from the
Department of Justice review, and DODIG’s October 2011 action plan in
order to identify the steps DODIG has taken to address timeliness
challenges. In order to determine if DOD was meeting statutory timeliness
and reporting requirements, we conducted analysis of 91 randomly


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selected case files for cases closed between January 1, 2009 and March
31, 2011, (see above) and recorded the opening and closing dates
indicated in the documentation for each case. We further reviewed those
case files for evidence regarding timeliness reporting requirements. In
order to determine the reliability of timeliness information in DODIG’s
database, we compared the opening and closing dates we determined by
reviewing the case files to the opening and closing dates recorded for
those cases in DODIG’s database. We conducted checks to see whether
DODIG database timeliness fields were filled out to determine if DODIG
had reliable information on the time it takes to complete various
investigative phases. In addition, we spoke with officials from DODIG and
officials from the service IGs and the Office of the Under Secretary of
Defense for Personnel and Readiness – Enterprise Services regarding
timeliness issues, including compliance with timeliness reporting
requirements.

In order to assess DODIG’s actions to address overall process internal
controls, we interviewed and discussed with DODIG officials their efforts
to improve oversight of the whistleblower reprisal program. We also
examined DODIG documents, including an internal review of the
whistleblower reprisal program as well as their action plan to address
oversight weaknesses. To assess DOD’s oversight mechanisms used to
safeguard the whistleblower reprisal investigative process, we reviewed
key DOD guidance as well as relevant statutes and federal internal
control guidance to include: the Military Whistleblower Protection Act
codified at 10 U.S.C. § 1034, as amended, and DOD Directive 7050.06,
Military Whistleblower Protection (Jul. 23, 2007); DOD Inspector General
Office of the Deputy Inspector General for Investigations - Investigations
Manual; GAO’s Standards for Internal Control in the Federal Government;
and the Council of the Inspectors General on Integrity and Efficiency,
Quality Standards for Investigations, and discussed with DODIG officials
their current practices. To assess DOD’s adherence to its investigative
process, we reviewed and discussed the DOD guidance mentioned
above as well as the 1996 Inspector General Departmental Guidance
(IGDG). In order to assess the completeness of DODIG’s military
whistleblower reprisal case files, we reviewed 91 randomly selected case
files for cases closed between January 1, 2009 and March 31, 2011, (see
above). To assess case file completeness, we reviewed DODIG’s
process, governing statute, directives, and other guidance and consulted
with DODIG officials and identified 18 elements that we believe should be
in case files. These 18 elements are necessary to either support the
conclusions reached in the case, indicate compliance with the law or
directive, or manage the case to include internal communication not


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specifically outlined by law or directive. The 18 elements we included for
our case file review are the following:

1.   Table of Contents Sheet                   10. Interview Transcripts
2.   Database Coversheet                       11. Legal Review
3.   Investigation Oversight Worksheet         12. Correspondence between DODIG and
4.   Correspondence between DODIG and              the Secretary of Defense regarding the
     the Service regarding the final outcome       final outcome of full investigations
     of the case                               13. Record of Corrective Action Taken
5.   Correspondence between DOD and the        14. Army Oversight Worksheet
     complainant acknowledging receipt of      15. Correspondence between DODIG and
     the complaint                                 the Secretary of Defense regarding
6.   Correspondence between DOD and the            investigations taking longer than 180
     complainant informing them of the             days
     outcome of the case                       16. Correspondence between DODIG and
7.   Investigation Analysis                        the complainant regarding
8.   Sequence of Key Events                        investigations taking longer than 180
                                                   days
9.   Notification to DODIG from the Service
     IG that received the complaint            17. Correspondence between DODIG and
                                                   Congress acknowledging receipt of
                                                   inquiry
                                               18. Correspondence between DODIG and
                                                   Congress informing them of the final
                                                   outcome of the case



Some of these elements included specific documents. For example, the
Army oversight worksheet (item 14 above) was a specific document.
Other elements could be reflected in multiple documents. For example,
the sequence of key events (item 8 above) could be in a larger report, be
in a summary, or be its own document. Once we established the list, we
further consulted with the director of DODIG’s directorate responsible for
conducting military whistleblower reprisal investigations to ensure that the
elements selected were appropriate indicators of file completeness. The
18 elements were included in the data collection instrument and we used
the methodology described above to gather information on these
elements from the file. The completeness of each case file was
determined individually since not all 18 elements were necessary in every
case. For example, some of the 18 elements would only need to be
present in a file if an investigation was conducted by a service, went
beyond 180 days, or was a full investigation. We adjusted the required
number of elements based on the specific circumstances of each case
and calculated completeness based on that adjusted baseline. We
categorized the case files as either complete (files with at least 85 percent
of the case-specific elements present), partially complete (files with



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between 70 and 84 percent of the case-specific elements present), or
incomplete (files with less than 70 percent of the case-specific elements
present). To assess DODIG’s monitoring of whistleblower reprisal
investigations, we interviewed officials from DODIG as well as the IGs in
each of the services.

In order to determine the roles and responsibilities of DODIG and the
military services in providing corrective action, including the processes
and procedures used by the Boards for Correction of Military Records
(BCMRs) to provide relief to servicemembers who were reprised against,
we reviewed applicable laws and regulations, including the Military
Whistleblower Protection Act and DOD Directive 7050.06, and spoke with
officials from DODIG, the service IGs, the three service BCMRs, and the
Office of the Under Secretary of Defense for Personnel and Readiness –
Enterprise Services. In order to determine the extent to which
servicemembers with substantiated cases apply for and receive relief
from the service BCMRs, we compared a list of military whistleblower
reprisal claims substantiated by DODIG between fiscal year 2006 and the
first half of fiscal year 2011 to information in the databases of the service
BCMRs. We created the list of substantiated military whistleblower
reprisal claims from the database data provided by DODIG for cases
closed between fiscal year 2006 and the first half of fiscal year 2011 and
created a data collection instrument. We then went to each of the three
service BCMRs with a list of substantiated cases specific to each BCMR’s
service. BCMR officials reviewed their database and provided resultant
information for each individual case, which we then recorded in the data
collection instrument. We also used the data collection instrument to
identify the extent to which the service BCMRs were identifying military
whistleblower reprisal cases as such in their case tracking system, the
processing times for such cases, and the actions taken by the BCMRs to
provide remedy to the complainant. In order to determine the reliability of
the data, we spoke with BCMR officials to determine how the data in their
database are processed. We also reviewed the data and performed logic
checks. We found that the data were sufficiently reliable for our purposes.
In order to identify the extent to which DODIG was tracking the relief
provided to military whistleblowers, we spoke with officials from DODIG
and the service IGs. In order to determine the extent to which the services
took command action against those who have reprised against military
whistleblowers, we reviewed DODIG data for cases closed between fiscal
year 2006 and the first half of fiscal year 2011. We also obtained
information from the service IGs regarding command action for all cases
closed between January 1, 2009 and March 31, 2011. We chose this time
frame based on the data retention practices of the service IGs. We


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determined the reliability of the DODIG and service IG data on relief by
comparing them and through discussions with the officials and
determined that the data were not reliable enough for our purposes.

In order to describe the military reprisal caseload for the period we
reviewed, we obtained a copy of data from DODIG’s database using the
method described above. We assessed the reliability of the data, and
then coded and derived statistical output. 4 We determined some to be
reliable for our purposes, including the number of closed complaints,
cases closed before full investigation, and not substantiated or
substantiated cases. Other data were found to be not reliable enough for
our purposes because they were either inaccurate or incomplete. To
obtain additional information about DODIG’s caseload, we conducted a
case file review of military reprisal cases using the method described
above. We developed a data collection instrument and used it to record
information on case characteristics located in the case files, including
information about the complainant, the type of protected communication,
unfavorable personnel action alleged to have occurred, and the reason
for closing the case. As noted above, two analysts reviewed each case
file and resolved any differences by identifying the necessary evidence in
the case files.

We conducted this performance audit from April 2011 through February
2012 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.




4
  To assess the reliability of data elements, we performed database checks for missing
fields and incorrect entries. We also verified that the investigative phases in which cases
were closed (before full investigation, full investigation - not substantiated, and full
investigation - substantiated) were recorded correctly through information we pulled during
our case file review. We coded the data according to direction provided by agency officials
at DODIG.




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                             Appendix II: General Information on Case
                             Characteristics for Military Whistleblower
                             Reprisal Investigations


Characteristics for Military Whistleblower
Reprisal Investigations
                             This appendix provides information on the characteristics of military
                             whistleblower reprisal cases based largely on both our review of files of
                             cases closed between January 1, 2009 and March 31, 2011, as well as
                             data from DODIG’s database for cases closed between fiscal year 2006
                             and the first half of fiscal year 2011.


Complainant                  Generally, neither the complainants’ status as officer or enlisted nor their
Characteristics for Closed   service matched their overall proportions in the military population. For
Cases                        example, complaints filed by officers made up approximately 31 percent
                             of cases closed between fiscal year 2006 and the first half of fiscal year
                             2011, while officers constitute approximately 16 percent of the total
                             military population. 1 Further, servicemembers from the Air Force filed
                             approximately 37 percent of the complaints for cases closed between
                             fiscal year 2006 and the first half of fiscal year 2011, 2 but made up only
                             22 percent of the military population. Servicemembers from the Navy and
                             Marine Corps had the fewest closed complaints during this time period—
                             12 percent and 1 percent, respectively, while making up 17 percent and
                             11 percent of the military population. The total number of closed reprisal
                             complaints from servicemembers from the Army during this time period
                             was higher than the other services but it was proportionate to the size of
                             the Army. So although approximately 50 percent of military whistleblower
                             reprisal complaints came from the Army during this time period,
                             servicemembers from the Army also made up approximately 50 percent
                             of the total military population. See figure 4 for a comparison of the
                             servicemember population proportion by service compared to the
                             proportion of reprisal cases closed.




                             1
                               Percentage of closed complaints where the complainant was an officer is based on
                             DODIG provided data for military whistleblower reprisal cases closed between fiscal year
                             2006 and the first half of fiscal year 2011. Note: We included the 10 percent of cases in
                             the database that did not have data on the complainant’s rank so the percentage of closed
                             complaints from officers is at a minimum 31 percent, but could be higher. Percentage of
                             officers in the total military population was obtained from Department of Defense,
                             “Defense Manpower Requirements Report – Fiscal Year 2011” (December 2010).
                             2
                              Figures for percentage of cases closed by complainant service exclude 1.6 percent of
                             cases that were missing complainant service information or were coded as “Other” in
                             DODIG’s database.




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                          Figure 4: Relative Service Size vs. Percentage of Whistleblower Complaints by
                          Service for Cases Closed between Fiscal Year 2006 and the First Half of Fiscal Year
                          2011




                          Notes:
                          Data to determine the percent of reprisal complaints by complainant service are based on GAO
                          analysis of DODIG data on military whistleblower reprisal cases closed between fiscal year 2006 and
                          the first half of fiscal year 2011. We did not include 1.6 percent of cases that were missing
                          complainant service information or were coded as “Other” in DODIG’s database.
                          The data to determine percentage of the total servicemember population for each service come from
                          estimated fiscal year 2011 levels contained in DOD’s “Defense Manpower Requirements Report –
                          Fiscal Year 2011” (December 2010).




Protected Communication   According to DOD Directive 7050.06, a servicemember who makes or
Characteristics           prepares to make a protected communication is a whistleblower. Our
                          review of case files revealed that the primary reasons for making a
                          protected communication are to report allegations of a violation of law or




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                         regulation (66 percent) or abuse of authority (44 percent). 3 DOD officials
                         told us that regulations cover virtually every aspect of military life,
                         including how to conduct personnel ratings, so complainants often cite
                         violations of regulations in their complaints. Officials from DODIG and the
                         service IGs also told us that the vast majority of protected
                         communications are not about allegations of significant fraud, waste, or
                         abuse, such as reports of unnecessarily high costs of equipment or
                         overpayment of contracts, but rather about relatively minor issues that
                         only impact the individual complainant, such as supervisors not following
                         regulations regarding a performance review. Our case file review
                         revealed that this perception is not entirely accurate. We found that
                         approximately one-third of complaints (36 percent) were concerned solely
                         with personal issues; one-third of complaints (33 percent) concerned
                         fraud, waste, or abuse issues; and one-third of complaints (31 percent)
                         were a mix of the two. The protected communications regarding
                         allegations of fraud, waste, and abuse in the case files we reviewed
                         tended to be about costs associated with misuse of government property,
                         such as personal use of a government vehicle, or abuse of authority by
                         commanders.


Unfavorable Personnel    A whistleblower reprisal complaint must also include an allegation that an
Action Characteristics   action was taken in reprisal against a servicemember. DOD Directive
                         7050.06 defines reprisal as taking or threatening to take an unfavorable
                         personnel action, or withholding or threatening to withhold a favorable
                         personnel action, for making or preparing to make a protected
                         communication. 4 Based on our file review of cases closed between
                         January 1, 2009 and March 31, 2011, the most common forms of reprisal
                         alleged by complainants were that they received an unfavorable




                         3
                          Percentages do not add up to 100 percent because complainants can allege multiple
                         protected communications.
                         4
                          A protected communication is any lawful communication to a Member of Congress or an
                         IG or a communication made to certain appropriate officials that the individual reasonably
                         believes evidences violation of law or regulation, including a law or regulation prohibiting
                         sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of
                         funds or other resources, an abuse of authority, or a substantial and specific danger to
                         public health or safety.




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                            assignment or reassignment (50 percent), a poor performance evaluation
                            (46 percent), or some sort of disciplinary action (42 percent). 5


Reasons for Closing Cases   DODIG evaluates cases and generally closes them based on the answers
                            to the four questions, referred to as the Acid Test (see fig. 2). Our review
                            of randomly selected case files revealed that the most common reasons
                            for closing a case were that DODIG determined that the complainant’s
                            actions not related to the protected communication justified the
                            unfavorable personnel action (question 4 - 65 percent of closed cases), or
                            that there was no unfavorable personnel action (question 2 - 41 percent
                            of closed cases). 6 Based on our case file review, DODIG closed most
                            complaints before conducting a full investigation and writing the resulting
                            report of investigation (66 percent). DODIG data on cases closed
                            between fiscal year 2006 and the first half of fiscal year 2011 show DOD
                            closed a mean of 286 (71 percent) cases per year before conducting a full
                            investigation, which is within the margin of error for our case file review.


Case Closure Rates          DODIG closed a mean of 405 military whistleblower reprisal cases a year
                            between fiscal year 2006 and the first half of fiscal year 2011, ranging
                            between a low of 325 closed cases and a high of 448 cases according to
                            data provided by DODIG (see fig. 5). 7 We were not able to report on the
                            military whistleblower reprisal cases received because we found that
                            DODIG’s data were not reliable for our purposes. As noted earlier, during
                            our case file review, we observed that the case opening dates in DODIG’s
                            database did not match the opening dates documented in the case files.
                            Without data on when cases were opened, we were unable to compare
                            case opening and closure rates and determine if more cases were being
                            opened or closed in any given year. Although we found the DODIG data
                            to be reliable enough for our purposes in reporting total cases closed in a



                            5
                             Percentages reported on reprisal types do not add up to 100 percent because
                            complainants often allege multiple reprisal types.
                            6
                             Percentages reported on reasons for closing cases do not add up to 100 percent
                            because one complaint often includes multiple allegations and investigators often cite
                            multiple reasons for closing a case.
                            7
                              Our data for fiscal year 2011 go only through the first half of that year. Assuming the
                            total number of cases for the second half were similar to the 194 cases closed in the first
                            half, fiscal year 2011 totals would fall within the range noted.




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                         year, these figures do not match the data reported by DODIG in its
                         semiannual reports to Congress. Those figures include more than military
                         whistleblower reprisal cases, but adjusting for these additional cases
                         does not fully make up the discrepancy between the figures in the
                         semiannual reports and the data provided to us by DODIG. DODIG
                         officials were not certain of the exact cause for the discrepancy and said
                         that they did not have auditable data for their semiannual report figures
                         for the time period we examined.

                         Figure 5: Number of Closed Cases between Fiscal Year 2006 and the First Half of
                         Fiscal Year 2011




                         Note:
                         Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011.




Full Investigation and   Our analysis of DODIG data on military whistleblower reprisal cases
Substantiation Rates     closed between fiscal year 2006 through the first half of fiscal year 2011
                         shows that DOD fully investigated a mean of 119 cases a year (29
                         percent of all cases), with 25 of those full investigations substantiated (6
                         percent of all cases), and 94 of those full investigations not substantiated
                         (23 percent of all cases). DODIG determined that a mean of 286 cases a



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year (71 percent of all cases) did not warrant full investigation over the
time period we reviewed. The number of full investigations ranged from a
high of 156 in fiscal years 2006 and 2007 to a low of 69 in fiscal year
2009 and the number of substantiated cases ranged from a high of 40 in
fiscal year 2006 to a low of 12 in fiscal year 2009 for cases closed during
this time period. 8 Further, the number of full investigations and
substantiated cases closed during this time period tended to be higher in
the earlier fiscal years than the later fiscal years, with fiscal year 2009
being the lowest for both. Figure 6 shows the total cases closed by
investigative phase for each fiscal year.




8
  Our data for fiscal year 2011 go only through the first half of that year. Assuming the
number of fully investigated and substantiated cases for the second half were similar to
the 52 fully investigated and 10 substantiated cases closed in the first half, fiscal year
2011 totals would fall within the ranges noted.




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Figure 6: Comparison of Substantiated, Not Substantiated, and Cases Not Fully
Investigated for Military Whistleblower Reprisal Cases Closed between Fiscal Year
2006 and the First Half of Fiscal Year 2011




Note:
Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s
database as substantiated military whistleblower reprisal cases.


Further, the mean number of military whistleblower reprisal cases closed
per year over this time period along with the number of cases fully
investigated and substantiated varied by investigating organization
according to data provided by DODIG. For example, the Army closed the
highest number of cases per year (158 cases per year) and the Marine
Corps closed the fewest cases per year (4 cases per year) over this time




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period. 9 The Air Force fully investigated the most cases per year (46
cases per year) and the Marine Corps fully investigated the fewest cases
per year (2 cases per year) between fiscal year 2006 and the first half of
fiscal year 2011. The Air Force and the Army substantiated the most
cases per year (10 cases per year each) during this time period. The
Marine Corps and DODIG substantiated the fewest cases per year (1
case per year each) over this time period. See figure 7 for the mean
yearly number of closed cases by investigative phase and investigating
organization for fiscal year 2006 through the first half of fiscal year 2011.




9
  The numbers reported in this paragraph may not match those reported in fig. 7 due to
rounding of each investigative phase number in fig. 7.




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Figure 7: Mean Yearly Number of Closed Cases by Phase of Investigation and
Investigating Organization between Fiscal Year 2006 and the First Half of Fiscal
Year 2011




Notes:
Mean total number of cases for the Navy and Marine Corps do not match table 2 due to rounding.
Data presented here do not include seven cases closed over this time period where DODIG data for
investigating organization is missing or listed as “Joint” or “Other.”
Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s
database as substantiated military whistleblower reprisal cases.


The percentage of total cases that are fully investigated and substantiated
has generally declined between fiscal year 2006 and the first half of fiscal
year 2011, reaching its lowest point in both cases in fiscal year 2009.
Figure 8 shows the variation in the percentage of closed cases fully




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investigated by processing organization. 10 DODIG’s full investigation rate
was lowest during this time period and it, along with the Air Force, had a
generally steady full investigation rate whereas the Army and Navy full
investigation rate generally declined over this time period.

Figure 8: Percentage of Full Investigations out of Total Closed Investigations by
Investigating Organization




Notes:
Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011.
Marine Corps data were not shown due to the low number of cases closed and high variation in rates.
Marine Corps data were included in the total.




10
  For both figs. 8 and 9 we did not include the data for the Marine Corps because the low
number of cases processed by the Marine Corps caused small variations in the number of
cases fully investigated and substantiated to show up as large percentage variations. The
Marine Corps data were included in the totals in both figures.




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Data presented here do not include seven cases closed over this time period where DODIG data for
investigating organization are missing or listed as “Joint” or “Other.”
Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s
database as substantiated military whistleblower reprisal cases.


Figure 9 also shows the variation by processing organization in the
percentage of closed cases substantiated over this time period. In
general, the substantiation rate declined, with DODIG having the lowest
substantiation rate. However, there was some variation in the rate for
each processing organization. Excluding the Marine Corps (see footnote
10), the Navy was the organization with the most variation, with
substantiation rates ranging from 2 percent to 16 percent. DODIG was the
organization with the least variation, with substantiation rates ranging
from 0 percent to 3 percent.

Figure 9: Percentage of Substantiated Investigations Out of Total Closed
Investigations by Investigating Organization




Notes:
Fiscal year 2011 numbers reflect cases closed between October 1, 2010 and March 31, 2011.




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Marine Corps data were not shown due to the low number of cases closed and high variation in rates.
Marine Corps data were included in the total.
Data presented here do not include seven cases closed over this time period where DODIG data for
investigating organization are missing or listed as “Joint” or “Other.”
Data include two Army cases closed in fiscal year 2006 that were inappropriately coded in DODIG’s
database as substantiated military whistleblower reprisal cases.




Page 71                                                   GAO-12-362 Whistleblower Protection
Appendix III: Comparison of Whistleblower
              Appendix III: Comparison of Whistleblower
              Reprisal Cases That Were and Were Not
              Identified as Reprisal by Service BCMRs


Reprisal Cases That Were and Were Not
Identified as Reprisal by Service BCMRs




              Notes:
              Based on DODIG data for cases that included military whistleblower reprisal allegations substantiated
              by DODIG between October 1, 2005 and March 31, 2011, and BCMR data regarding the cases
              submitted to them, including case outcomes.
              Data do not include cases in which, according to DODIG data, the military whistleblower reprisal
              allegations are not substantiated but an improper referral for mental health evaluation (IMHE) is
              substantiated.
              The Navy BCMR reviews cases for the Department of the Navy and therefore handles cases from
              both Navy personnel and Marine Corps personnel.
              Two Navy BCMR cases—one from the Marine Corps and one from the Navy—were included and
              considered as not having received remedy although the Navy BCMR data are unclear whether or not
              it provided remedy. The Marine Corps case was not identified by the Navy BCMR as being a military
              whistleblower reprisal case. The Navy case was identified as a military whistleblower reprisal case.




              Page 72                                                      GAO-12-362 Whistleblower Protection
Appendix III: Comparison of Whistleblower
Reprisal Cases That Were and Were Not
Identified as Reprisal by Service BCMRs




Remedy provided indicates that the complainant received at least partial remedy. It does not indicate
that the complainant received the exact remedy they were seeking.




Page 73                                                     GAO-12-362 Whistleblower Protection
Appendix IV: Comments from the
             Appendix IV: Comments from the Department
             of Defense



Department of Defense




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Appendix IV: Comments from the Department
of Defense




Page 75                                     GAO-12-362 Whistleblower Protection
Appendix IV: Comments from the Department
of Defense




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Appendix IV: Comments from the Department
of Defense




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Appendix IV: Comments from the Department
of Defense




Page 78                                     GAO-12-362 Whistleblower Protection
Appendix V: GAO Contacts and Staff
                  Appendix V: GAO Contacts and Staff
                  Acknowledgments



Acknowledgments

                  Zina D. Merritt, (202) 512- 5257 or merrittz@gao.gov
GAO Contacts
                  In addition to the contact named above, Assistant Director Marie Mak,
Staff             Joanna Chan, Nicolaas Cornelisse, Justin Fisher, Julia Kennon, K. Nicole
Acknowledgments   Willems, Michael Silver, Sheena Smith, Amie Steele, Emily Suarez-
                  Harris, and Erik Wilkins-McKee made major contributions to this report.




(351599)
                  Page 79                                    GAO-12-362 Whistleblower Protection
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