[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20425]
[[Page Unknown]]
[Federal Register: August 19, 1994]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 92 and 98a
[DoD Directive 7050.6]
Military Whistleblower Protection
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule.
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SUMMARY: This final rule implements Section 843 of Public Law 102-190,
``National Defense Authorization Act for Fiscal Years 1992-1993,''
December 5, 1991. It expands military whistleblower protection to those
who make disclosures to an audit, inspection, investigation or law
enforcement organization, as well as to an Inspector General or a
Member of Congress. This rule also specifies that reprisal for
whistleblowing is punishable under the Uniform Code of Military Justice
and removes 32 CFR part 98a.
EFFECTIVE DATE: September 30, 1992.
FOR FURTHER INFORMATION CONTACT:
Ms. Marcia Campbell, (703) 604-8507.
SUPPLEMENTARY INFORMATION: Due to an administrative oversight the final
rule was not previously published.
It has been certified that this rule is not a significant
regulation action. The rule does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
It has been determined that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because this rule does not
exert a significant economic impact on a substantial number of small
entities. This certification is made based on the fact that the rule
merely modifies the current regulation to ensure that policy and
procedures with regard to military whistleblower protection conform
with the requirements under 10 U.S.C. 1034. These procedures involve
reporting and investigating allegations of reprisal for protected
disclosures made by military members of the armed forces to appropriate
authorities.
It has been certified that 32 CFR parts 92 and 98a do not impose
any reporting or recordkeeping requirements under the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501-3520).
List of Subjects in 32 CFR Parts 92 and 98a
Administrative practice and procedure; Investigations; Military
personnel; Whistleblowing.
1. Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 98a
is removed.
PART 98a--[REMOVED]
2. 32 CFR Part 92 is added to read as follows:
PART 92--MILITARY WHISTLEBLOWER PROTECTION
Sec.
92.1 Purpose.
92.2 Applicability and scope.
92.3 Definitions.
92.4 Policy.
92.5 Responsibilities.
92.6 Procedures.
Authority: 10 U.S.C. 892, 1552, and 1553.
Sec. 92.1 Purpose.
(a) This part:
(1) Updates policy, responsibilities, and procedures, in accordance
with the ``National Defense Authorization Act for Fiscal Years 1992-
1993 and of 1989,'' (Pub. L. 102-190, Section 843 and Pub. L. 100-456,
Section 846).
(2) Provides protection against reprisal for members of the Armed
Forces for making or preparing a lawful communication to a Member of
the Congress, an Inspector General (IG), or any member of a DoD audit,
inspection, investigation, or law enforcement organization.
(3) Provides procedures for investigating allegations of reprisal
against members of the Armed Forces for making or preparing a protected
disclosure, as defined in Sec. 92.3(c).
(b) Updates responsibilities and authorities for such protection
and updates operating procedures in Sec. 92.6.
Sec. 92.2 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments (including their National Guard and Reserve components),
the Chairman of the Joint Chiefs of Staff and the Joint Staff, the
Unified and Specified Commands, the Inspector General of the Department
of Defense (IG, DoD), the Defense Agencies, and the DoD Field
Activities, including nonappropriated fund activities (hereafter
referred to collectively as ``the DoD Components''). The Term
``Military Services,'' as used herein, refers to the Army, the Navy,
the Air Force, and the Marine Corps.
(b) All DoD personnel.
Sec. 92.3 Definitions.
(a) Audit, inspection, investigation, and law enforcement
organizations. The law enforcement organizations at any command level
in any of the DoD Components, the Defense Criminal Investigative
Service, the U.S. Army Criminal Investigation Command, the Naval
Investigative Service, the Air Force Office of Special Investigations,
the U.S. Army Audit Agency, the Naval Audit Service, the Air Force
Audit Agency, and the Defense Contract Audit Agency.
(b) Board for Correction of Military Records (BCMR). Any board
empowered under 10 U.S.C. 1552 to recommend correction of military
records to the Secretary of the Military Department concerned.
(c) Corrective action. Any action deemed necessary to make the
complainant whole; changes in Agency regulations or practices;
administrative or disciplinary action against offending personnel; or
referral to the U.S. Attorney General or court-martial convening
authority of any evidence of criminal violation.
(d) Inspector General (IG). The IG, DoD, and a military or civilian
employee assigned or detailed under DoD Component regulations to serve
as an IG at any command level in one of the DoD Components.
(e) Member of the Congress. Besides a Representative or Senator,
includes any Delegate or Resident Commissioner to the Congress.
(f) Member or Member of the Armed Forces. All Regular and Reserve
component officers (commissioned and warrant) and enlisted members of
the Army, the Navy, the Air Force, the Marine Corps, and the Coast
Guard (when operating as part of the Department of the Navy) on active
duty (AD), and Reserve component officers (commissioned and warrant)
and enlisted members whether on AD, Full-Time National Guard Duty,
Inactive Duty for Training, or not in any duty or training status. That
definition includes professors and cadets of the Military Service
academies and officers and enlisted members of the National Guard.
(g) Personnel action. Any action taken on a member of the Armed
Forces 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; and any other significant change in duties or
responsibilities inconsistent with the military member's rank.
(h) Protected disclosure. A lawful communication to a member of
Congress, an IG, or any member of a DoD audit, inspection,
investigation, or law enforcement organization in which a military
member makes a complaint or discloses information that he or she
reasonably believes evidences a violation of law or regulation,
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.
(i) Reprisal. Taking or threatening to take an unfavorable
personnel action or withholding or threatening to withhold a favorable
personnel action against a military member for making or preparing a
protected disclosure.
Sec. 92.4 Policy.
It is DoD policy that:
(a) No person shall restrict a member of the Armed Forces from
lawfully communicating with a Member of the Congress, an IG, or a
member of a DoD audit, inspection, investigation, or law enforcement
organization.
(b) Members of the Armed Forces shall be free from reprisal for
making or preparing lawful communications to a Member of the Congress,
an IG, or a member of a DoD audit, inspection investigation, or law
enforcement organization.
(c) No employee or member of the Armed Forces may take or threaten
to take an unfavorable personnel action, or withhold or threaten to
withhold a favorable personnel action, in reprisal against any member
of the Armed Forces for making or preparing a lawful communication to a
Member of the Congress, an IG, or a member of a DoD audit, inspection,
investigation, or law enforcement organization.
(d) Any violation of paragraph (c) of this section by a person
subject to 10 U.S.C. Chapter 47 (the Uniform Code of Military Justice)
is punishable in accordance with the provisions of Sec. 92.5(c)(1). Any
violation of paragraph (c) of this section by a civilian employee is
punishable under regulations governing disciplinary or adverse actions.
(e) Allegations of reprisal against members of the Armed Forces for
making or preparing a protected disclosure shall be investigated and
resolved in accordance with this part.
Sec. 92.5 Responsibilities.
(a) The Inspector General of the Department of Defense shall:
(1) Expeditiously initiate an investigation of any allegation
submitted to the IG, DoD, by a member of the Armed Forces that a
personnel action has been taken, withheld, or threatened in reprisal
for making or preparing a protected disclosure. The IG, DoD, may
request the IG of the DoD Component to conduct the investigation. No
investigation is required when such allegation is submitted more than
60 days after a member became aware of the personnel action that is the
subject of the allegation.
(2) Initiate a separate investigation of the allegations contained
in the protected disclosure if such an investigation has not already
been started. No investigation is required if the information that a
member believes evidences wrongdoing relates to actions that took place
during combat.
(3) Complete an investigation of an allegation of reprisal for
making or preparing a protected disclosure and issue a report within 90
days of the receipt of that allegation. If a determination is made that
the report cannot be issued within 90 days of receipt of the
allegation, notify the Under Secretary of Defense for Personnel and
Readiness (USD(P&R)) and the member or the former member making an
allegation of the reasons why that report will not be submitted within
that time, and when that report will be submitted.
(4) Prepare a report of the results of an investigation. That
report shall include a thorough review of the facts and circumstances
about an allegation, the relevant documents acquired during that
investigation, and summaries of interviews conducted.
(5) Submit a copy of an investigative report to the USD(P&R) and to
a member or a former member making the allegation not later than 30
days after the completion of the investigation. A copy of that report
issued to the member may exclude any information not otherwise
available to him or her under 32 CFR part 285.
(6) At the request of a Board for Correction of Military Records
(BCMR), submit a copy of that investigative report to the BCMR.
(7) At the request of a BCMR, gather further evidence and issue a
further report to the BCMR.
(8) After the final action in any military reprisal complaint filed
with the IG, DoD, when possible, interview the person who made the
allegation to determine the views of that person on the disposition of
the matter.
(9) Review and determine the adequacy of DoD Component IG
investigations of allegations of reprisal against a member of the Armed
Forces for making or preparing a protected disclosure conducted at the
request of the IG, DoD. If such investigation is found inadequate,
initiate a follow-up investigation to correct those inadequacies or
ensure that the DoD Component corrects them.
(b) The Under Secretary of Defense for Personnel and Readiness
shall:
(1) Review and process, under the standards and procedures in
Sec. 92.6 requests from members or former members of the Armed Forces
for review of final decisions of a Secretary of a Military Department
on applications for correction of military records decided in
accordance with Sec. 92.6.
(2) Notify the IG, DoD, of decisions made by the Secretary of
Defense on requests for review of a final decision of a Secretary of a
Military Department on an application for correction of military
records submitted in accordance with Sec. 92.6(c)(1).
(3) Have access to all research, reports, investigations, audits,
reviews, documents, papers, or any other material necessary to carry
out the responsibilities assigned to the USD(P&R) by this part.
(4) If necessary, obtain for review and request the Secretaries of
the Military Departments to comment on, evidence considered by a BCMR
in cases in which the Secretary of Defense is requested to reconsider
the final decision of the Secretary concerned.
(c) The Secretaries of the Military Departments shall:
(1) Implement a regulation that provides that a violation of the
prohibition against taking, withholding, or threatening to take or
withhold a personnel action in reprisal for making or preparing a
lawful communication by a person subject to 10 U.S.C. Chapter 47 (the
Uniform Code of Military Justice) is punishable as a violation of 10
U.S.C. 892 (Article 92 of the Uniform Code of Military Justice). The
implementing regulation shall also provide that such a violation by a
DoD civilian employee is punishable under regulations governing
disciplinary or adverse action.
(2) On receipt of a report of investigation from the IG, DoD, that
concludes that a member suffered reprisal, and when implementation of
the recommendations requires action by a BCMR, advise that member that
assistance in preparing an application to the BCMR may be sought from
the legal office supporting the member's command.
(3) Ensure that the Military Department IG:
(i) On receipt of a member's allegation of reprisal for making or
preparing a protected disclosure, expeditiously investigates that
allegation. No investigation is required when such allegation is
submitted more than 60 days after a member became aware of that
personnel action that is the subject of the allegation.
(ii) At the request of the IG, DoD, investigates cases arising in
the DoD Component.
(iii) For those investigations conducted at the request of the IG,
DoD, within 90 days of the receipt of an allegation, provides the IG,
DoD, with an investigative report containing a thorough review of the
facts and the circumstances about the allegation, the relevant
documents acquired during the investigation, and summaries of
interviews conducted.
(iv) For all other investigations of alleged reprisal against a
member for making or preparing a protected disclosure, on completion of
the investigation, informs the member in writing of the results of the
investigation. This may be accomplished by providing the member a
thorough summary of the investigative report or a copy of the
investigative report, edited as necessary under 32 CFR part 285. The
information provided to the member must contain a summary of the
material evidence and an analysis of that evidence that supports the
determination of whether reprisal occurred. Regardless of the form of
communication, the information provided must be in sufficient detail to
allow the member to pursue the issue further.
(v) At the request of a BCMR, submits a copy of that investigative
report to the BCMR.
(vi) At the request of a BCMR, gathers further evidence and issues
a further report to the BCMR.
(4) Ensure that the BCMR:
(i) In accordance with 10 U.S.C. 1552, determines whether to
resolve an application for the correction of records, made by a member
or a former member of the Armed Forces who has filed a timely
complaint, alleging a personnel action was taken in reprisal for making
or preparing a lawful communication. That may include the receipt of
oral argument, examining and cross-examining witnesses, taking
depositions, and conducting an evidentiary hearing at the BCMR's
discretion. When the BCMR decides to resolve such application, it
shall:
(A) Review the report of any investigation into the member's
allegation of reprisal conducted by the IG, DoD, or the IG of a DoD
Component.
(B) As deemed necessary, request that the IG, DoD, or the IG of the
DoD Component originally investigating the allegation gathers further
evidence.
(ii) In such cases, if it elects to hold an administrative hearing,
allows the member to be represented by a judge advocate (JA) if all of
the following conditions exist:
(A) The IG investigation finds there is probable cause to believe
that a personnel action was taken, withheld, or threatened in reprisal
for a member of the Armed Forces making or preparing a protected
disclosure.
(B) The Judge Advocate General concerned determines that the case
is unusually complex or otherwise requires JA assistance to ensure
proper presentation of the legal issues in the case.
(C) The member is not represented by outside counsel chosen by that
member.
(iii) If it elects to hold an administrative hearing, ensures that
the member may examine witnesses through depositions, serve
interrogatories, and request the production of evidence, including
evidence in an IG investigatory record not included in the report
released to that member.
(iv) If it determines that a personnel action was taken in reprisal
for a member or a former member of the Armed Forces making or preparing
a lawful communication, makes a determination on the appropriateness of
administrative or disciplinary action against the individual or
indviduals who committed the action and, if deemed appropriate by the
BCMR, forwards its recommendation in the matter to be the Secretary
concerned.
(5) Within 180 days of its receipt, issue a final decision on an
application for the correction of military records from a member or a
former member of the Armed Forces alleging reprisal for making or
preparing a lawful communication. When the final decision does not
grant the full relief requested by the member, advise that member that
within 90 days he or she may request the Secretary of Defense to
reconsider the decision in accordance with the procedures described in
Sec. 92.6(c).
(6) When reprisal is found, take appropriate corrective action,
including the correction of the records of the member, in accordance
with 10 U.S.C. 1552 and 1553.
(7) Ensure that administrative or disciplinary action, if
appropriate, is taken against individuals found to have taken reprisal
against a member of the Armed Forces for making or preparing a lawful
communication.
(8) Notify the IG, DoD, and the Military Department IG of a
decision on an application for the correction of military records
received from a member or former member of the Armed Forces alleging
reprisal for making or preparing a lawful communication and of any
disciplinary action taken.
(d) The Heads of the DoD Components shall:
(1) Based on an IG investigative report, take appropriate
corrective action.
(2) Publicize the content of this Directive to ensure that military
and other DoD personnel fully understand its scope and application.
Sec. 92.6 Procedures.
(a) Any member of the Armed Forces who reasonably believes a
personnel action (including the withholding of an action) was taken or
threatened in reprisal for making or preparing a lawful communication,
may file a complaint with the DoD Hotline under 32 CFR part 98. Such a
complaint may be filed by telephone (800) 424-9098 or (202) 693-5080,
or by letter addressed to the following: Department of Defense Hotline,
400 Army Navy Drive, Arlington, Virginia 22202-2884.
(b) Nothing in this part precludes a member of the Armed Forces
from filing a complaint of reprisal for making or preparing a lawful
communication within their Military Department. If the member elects to
file the complaint within his or her Department, he or she should
contact a local IG or JA for information concerning the procedures for
filing such a complaint. Members who file complaints of reprisal for
making or preparing a lawful communication within their Military
Department should be advised that the provisions of Pub. L. 102-190,
Section 843, and Pub. L. 100-456, Section 846 only apply to reprisal
complaints filed with the IG, DoD.
(c) A member or former member of the Armed forces who has filed an
application for the correction of military records under Pub. L. 100-
456 alleging reprisal for making or preparing a protected disclosure
may request review by the Secretary of Defense of the final decision of
the Secretary of a Military Department concerned on such application.
The following procedures apply to requests for review by the Secretary
of Defense:
(1) Content of request. The request for review must be in writing
and include the member's name, address, and telephone number; copies of
the application to the BCMR and the final decision of the Secretary of
the Military Department concerned on such application; and a statement
the specific reasons why that member is not satisfied with the decision
of the Secretary concerned.
(i) Requests based on factual allegations or evidence not
previously presented to the cognizant BCMR shall not be considered.
(ii) New allegations or evidence must be submitted directly to the
BCMR for reconsideration under procedures established by the BCMR.
(2) Review by the Secretary of Defense. The Secretary of Defense
shall review the allegations submitted by a member or a former member
of the Armed Forces requesting review and other records deemed
appropriate and necessary by the Secretary of Defense for deciding, in
his or her sole discretion, whether to uphold or reverse the decision
of the Secretary concerned. The decision of the Secretary of Defense is
final.
(3) Time limits. The request for review of the final decision of
the Secretary of the Military Department concerned must be filed within
90 days of receipt of the decision by a member or former member of the
Armed Forces.
(4) Address. Requests for review by the Secretary of Defense must
be submitted to the following: Under Secretary of Defense (Personnel
and Readiness), Attention: Director, Legal Policy, Room 4C763, The
Pentagon, Washington, DC 20301-4000.
Dated: August 15, 1994.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-20425 Filed 8-18-94; 8:45 am]
BILLING CODE 5000-04-M
