Issue Briefs

Following is the portion of a new report from the Defense Department inspector general’s office on trends in whistleblower complaints.

The number of whistleblower reprisal and restriction complaints has steadily increased for several years. In FY 2019, the DoD received 2,123 complaints of reprisal and restriction, a 74percent increase from the 1,219 complaints received in FY 2015.

While the number of whistleblower reprisal and restriction complaints has steadily risen over the past 5 fiscal years, the substantiation rate has remained relatively constant. Between FY 2015 and FY 2019, the substantiation rate has remained in the range of 12 to 15 percent.

To address the larger number of reprisal and restriction complaints, the DoD OIG increased the number of investigators conducting and oversighting these investigations. In addition, the DoD OIG has implemented an alternative dispute resolution (ADR) program, which offers complainants and their managers the opportunity to voluntarily resolve allegations of retaliation more swiftly than typically occurs in the more lengthy investigative process. Since the establishment of the DoD OIG ADR program in September 2017, over 110 cases have resulted in mutually agreedupon resolutions, allowing investigators to focus on conducting investigations into allegations that were not resolved through the ADR program. Resolution through settlements can also result in more timely remedies. Instead of waiting for remedial action in response to recommendations made in a report of investigation, complainants are made whole upon resolution through the ADR process.

The DoD OIG Whistleblower Reprisal Investigations Directorate has also implemented process and policy changes to further enhance the efficiency and effectiveness of whistleblower reprisal investigations across the DoD. These changes include process efficiencies being implemented by the DoD OIG and service IGs during the complaint intake and investigation stages and the use of summary reports of investigation for straightforward, unsubstantiated cases. For example, summary reports are used when the evidence shows that a personnel action was taken for welldocumented reasons unrelated to a protected communication. The DoD OIG is also reissuing regulations to help streamline and standardize the whistleblower reprisal investigative process.

These measures have resulted in the DoD OIG and Service IGs decreasing the time it takes to complete reprisal investigations. For example, at the close of FY 2018, the average days in investigation of open DoD OIG reprisal investigations was 356 days; at the close of FY 2019, it was 82 days. However, the Service IGs have struggled to address their increasing caseloads because, in general, resources for Service IGs have not significantly increased. As a result, the Service IGs still have a considerable backlog of aged cases, with 23 percent of their open whistleblower reprisal investigations being over 1 year old, compared to none over 1 year old for the DoD OIG.

Recent substantiated DoD whistleblower reprisal and restriction investigations include the following examples.

• An Air Force major and a first lieutenant issued a subordinate staff sergeant an adverse letter of counseling in reprisal for telling members of the chain of command about unprofessionalism and toxic leadership displayed by two detachment technical sergeants during a group counseling session.

• A Marine Corps lieutenant colonel threatened a Navy subordinate lieutenant with disciplinary action and requested a retaliatory command directed investigation in reprisal for making lawful communications to an IG and a Member of Congress regarding attitudes about sexual assault in the Service.

• Two Federal employees working for the U.S. Intelligence Community suspended a Navy lieutenant’s access to classified information in reprisal for the lieutenant’s complaint to a supervisor that the one of them violated Executive Order 12333, which regards U.S. intelligence agencies and the ways in which Federal agencies are to cooperate with certain requests for information.

• A defense contractor to U.S. Army Special Operations Command placed a company employee on a temporary administrative leave of absence without pay in reprisal for reporting violations of law and abuse of authority to IGs and a contracting officer’s representative.

• A civil service GS15 told an Air Force staff sergeant and other subordinates that he had survived IG investigations in the past and implied that nothing would happen to him as a consequence of future complaints, in an attempt to restrict them from preparing or making protected communications to the IG.

When cases are substantiated, it is important for management to take prompt corrective action, particularly when whistleblowers have suffered from reprisal. Failure to take prompt and appropriate corrective action to make the whistleblower whole and to hold the reprising official accountable has the potential to deter other whistleblowers from making protected disclosures in the future.