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Protecting Whistleblowers since 1977

Advocacy Groups Call on Armed Services Committees to Preserve Military Whistleblower Rights

Irvin McCullough, June 27, 2016

After both chambers of Congress passed their versions of the National Defense Authorization Act (NDAA) for FY 2017, twenty-eight public interest organizations and advocacy groups sent a letter to leadership of the Senate and House Armed Services Committees and encouraged them to maintain the integrity of the military whistleblower provisions in the bill through conference.

The letter cautions, “While military whistleblowers play an important role in safeguarding our nation from fraud, waste and abuse, speaking out against wrongdoing is particularly challenging for servicemembers.” A 2015 report by the Government Accountability Office found that the military is plagued by widespread whistleblower retaliation, and according to a 2014 government survey, a quarter of Department of Defense Inspector General employees fear reprisal if they disclose a suspected violation of law.

First analyzing the House NDAA, the groups highlight one section bettering burdens of proof for whistleblowers and another ensuring whistleblower reprisal training for investigators. Drawing from the letter, they explain the necessity of the Whistleblower Protection Act burdens of proof as follows:

When compared to civilian employees, whistleblower protections for servicemembers are severely limited. The burdens of proof that military whistleblowers must meet are particularly oppressive. In military reprisal cases, servicemembers must prove retaliation was illegal; in civilian cases, the agency must prove retaliation was not illegal. Burdens are greater for military personnel than for civilians. Consequently, the Department of Defense and Service Inspectors General are unable to substantiate the vast majority of allegations they receive. This section applies the Whistleblower Protection Act burdens of proof language, found in every other whistleblower law since 1989, to the Military Whistleblower Protections Act.

The letter identifies the following provisions in the Senate NDAA as those that will empower military whistleblowers:

  • Categorizing new reprisal tactics, such as retaliatory investigations, as prohibited personnel actions
  • Granting the IG authority to notify the Secretary concerned of active investigations, shielding Service members from retaliation during investigations
  • Strengthening notice requirements for the untimely completion of DODIG whistleblower reprisal investigations
  • Requiring the DODIG and Service IGs to develop uniform procedures for conducting military whistleblower investigations and training staff, effectively raising the quality of Service IG reprisal investigations to match the DODIG standard
  • Modifying whistleblower protection authorities to restrict contrary findings of prohibited personnel action by the Secretary concerned
  • Assisting servicemembers in filing claims, detailing the specific information or documents they must attach to make a claim reviewable
  • Requiring Correction Boards to make reasonable efforts to obtain medical or personnel records if a Service member is unable to obtain them
  • Removing the one-year statute of limitations for reconsideration of Correction Board decisions, allowing for the consideration of new evidence
  • Publishing final Correction Board decisions, assisting Service members and building case law
  • Clarifying the right of Service members to seek judicial review of Correction Board decisions in federal court
  • Establishing a uniform training curriculum for Correction Board members and requiring timely retraining
  • Mandating that the United States Comptroller General review the integrity of the DODIG whistleblower program

Overall, both bills include responsible and overdue reforms to strengthen military whistleblower protections. GAP and our coalition partners look forward to working with the Congressional Armed Services Committees to ensure that the provisions are maintained in the reconciled NDAA.

The full letter can be viewed here

Letter signatories include:

American Civil Liberties Union

American Library Association

Bill of Rights Defense Committee/Defending Dissent Foundation

Bogdan Dzakovic, FAA Whistleblower

Center for Defense Information

Center for Financial Privacy and Human Rights

Demand Progress

Federal Law Enforcement Officers Association

Government Accountability Project

Human Rights Watch

Just Foreign Policy

Law Office of Elaine Mittleman

Liberty Coalition

Marvell D. Lavy, DVA Whistleblower

National Center for Transgender Equality

National Taxpayers Union

National Workrights Institute

OpenTheGovernment.org

Project On Government Oversight

Protect Our Defenders

Public Citizen

Public Employees for Environmental Responsibility (PEER)

Restore The Fourth

Service Women's Action Network

Sunlight Foundation
Taxpayers Protection Alliance

TechFreedom

The James Madison Project

The Rutherford Institute

X-Lab