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1 1 (April 9, 2020)

handle is hein.crs/govcqzs0001 and id is 1 raw text is: F., ' ri - SE .- & t April 9, 2020 Protecting Military Whistleblowers: 10 U.S.C. §1034 Military whistleblower protection applies to any servicemember who lawfully discloses wrongdoing to designated officials. A military whistleblower is any servicemember who makes or prepares a protected communication or who is perceived as making or preparing to make a protected communication to an inspector general (IG), a member of Congress, or other designated officials. Anyone subject to the Uniform Code of Military Justice (UCMJ) who violates military whistleblower protection can be prosecuted by court-martial with a maximum punishment that includes bad conduct discharge, dishonorable discharge, three years confinement, or total forfeiture of pay and allowances. Civilian employee violators are subject to administrative discipline that could include firing the employee. Restriction occurs when a person prevents or attempts to prevent a military whistleblower from communicating or preparing to communicate with an IG or a Member of Congress, unless the communication is unlawful. Reprisal occurs when a person takes or threatens to take an unfavorable personnel action against a military whistleblower or withholds or threatens to withhold a favorable personnel action from a military whistleblower. In a common scenario, if a commander became aware that a servicemember intends to blow the whistle on him, he cannot stop the servicemember from doing so. And, if a commander becomes aware that a servicemember did blow the whistle on him, he cannot penalize the servicemember for doing so. The first is restriction; the second, reprisal. Reprisal consists of four elements: 1. Protected Communication disclosure of an abuse of authority, fraud, a gross waste of funds, or a violation of law or regulation, including sexual misconduct and threats to public property or safety. 2. Personnel Action action that affects or potentially affects a servicemember's career or current position, such as reassignment, return to service, retaliatory investigation, adverse evaluation, or removal from a school, command, or promotion list. 3. Knowledge-established by determining if each person involved in a personnel action perceived or was aware of the protected communication. If a person involved in a personnel action asserts that he or she was unaware of the protected communication, additional evidence is required to corroborate this assertion. 4. Causation-established by determining what influence a protected communication had on a person's decision to take, threaten, withhold, or threaten to withhold a personnel action. To determine causation, four technical elements are examined and must hold true. r oce s, A servicemember may submit reprisal or restriction allegations to an IG within one year following the alleged act or within one year following the date the servicemember became aware of the alleged act. The Department of Defense (DOD) IG or a DOD component IG is to investigate DOD servicemember or former servicemember allegations (DOD Directive 7050.06). The Department of Homeland Security (DHS) IG is to investigate U.S. Coast Guard (USCG) servicemember or former servicemember allegations (33 C.F.R. Part 53). Table I. DOD IG Military Whistleblower Fiscal Years 2017-2019 Reprisal Allegations Restriction Allegations closed sub rate closed sub rate 3,811 92 2.41% 185 39 21.08% Table 2. DOD IG and DHS IG Military Whistleblower Fiscal Years 2017-2019 Reprisal and Restriction Allegations DOD DHS closed sub rate closed sub rate 3,996 131 3.27% ND 2 Source: Data in Tables I and 2 are an estimate derived from CRS analysis of DOD IG and DHS IG Semiannual Reports to Congress for fiscal years 2017 through 2019. Notes: closed denotes allegations closed; sub denotes allegations substantiated; rate denotes percentage of closed allegations that were substantiated; ND denotes no data available for 10 U.S.C. § 1034 allegations. Within 30 days, an IG is to either decline or accept a request to investigate a reprisal or restriction allegation, by determining four criteria: is the report timely, was there protected communication, was it known to have happened, and was there adverse action. An IG must complete an gognpo goo g , q 's a X 11LULANJILiN,

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