INSPECTOR GENERAL
DEPARTMENT OF DEFENSE
4800 MARK CENTER DRIVE
ALEXANDRIA, VIRGINIA 22350-1500

MAR2 8 2012
Ref: 12-00114-F
OCCL
Mr. Nick Schwellenbach
Projecton GovernmentOversight
1100G StNW
Suite 500
Washington,DC 20005
Dear Mr. Schwellenbach:
This is the fmal responseto your Freedomof Information Act (FOIA) requestdated
March 6, 2012,for "a copy of the' IndependentReviewof MRI Outcomes, " We receivedyour
requeston March 6,2012, and assignedit FOIA casenumber 12-00114-F.I havedetermined
that the enclosedpagescan be releasedwithout excision. This action closesyour requestin this
office.

Sincerely~

and

Enclosure(s):
As stated

 Inspector General

United States
Department Defense

AsSeaametit Repe? May I6, 20] 

Review ef Of?ee Deputy Inspector General
fer Administrative Investi gatiens, Direeterate
fer Military Reprisai Investigatiena

run?n nn?r?v?rrJinn-1.1 

 

TABLE OF CONTENTS

Executive Summary 3

Standards 5
MRI Processes 7
Objective 8
Scepe and 8
Observations i 9
Declination Stage 9

Letters of reprimand, connseling, and instruction that were issued after a protected
communication was made, but held locally, were not considered unfavorable
personnel actions under 10 U.S.C. 10349

Cases were declined because a member only received a threat of an unfavorable
personnel action or could challenge an underlying action in another forum 10

Cases were declined for lack of documentation or details submitted by the
member supporting the allegation of a protected communication and unfavorable
personnel action. . 10

Preliminary Inquiry Stage 11

Letters of reprimand, counseling, and instruction that were issued after a protected
communication was made, but held locally, were not considered unfavorable
personnel actions under 10 U.S.C. 103412

Cases were closed without obtaining a statement or any facts directly from the
responsible management official 13

The ?le did not contain suf?cient informanon/documentation for the Team to
render adeeision. 13

 

Full Investigation Stage 14

The ?le did not contain suf?cient informationfdocumentation for the Team to
render adecision. 14

The actions taken by the responsible management of?cial were not considered
unfavorable personnel actions by the Directorate for Military Reprisal

Investigations 
Conclusions. 16
Recommendations 16
Appendices A -G

ExecutiveSummal"V
On November 1, 2010, the Principal Deputy Inspector General, Departmentof Defense
(DoD), Office of Inspector General(1G) appointed three internal employeesto examine the
resolution of military reprisal complaints by the Dh-ectOl'Bte
for Military Reprisal Investigations
(MRI).l The Review Team was provided 169 military reprisal casesselectedthrough random
sampling by the Quantitative Methods Directorate (QMD), a subsectionof the Audit Component
for DaD IG. The sampling population was compri~ of casesclosed in fIScal year 2010. The
Review Team (the Team) was charteredto conduct a qualitative review of eachfile an4 either
agreeor disagreewith MRI's decision, solely basedon the infolmation contained in the casefile.
Of the 169 casesselected,the Team agreedwith 82 casedecisions,disagreedwith 74 case
decisions.and for the reasonsdiscussedbelow, did not review 13 cases.
MRI's processclassifies their casefiles in three categories:Declinations, Preliminary
Inquiries, and Full Investigations. Basedon thesecategories,the 169 caseswere divided as such:
52 Declinations, 98 Preliminary Inquiries, and 19 Full Investigations.
Within thesecategori~ the Team made the following assessment:Of the 52
Declinations, the Team did not assesstwo casesbecausethey were cunently open; of the 50
casesreviewed, the Team disagreedwith MRJ's decision in 34 cases,or 680/0,and agreedwith 16
decisions, or 32%. The reasonsfor disagreeingwith MRI's decision can be groupedinto four
categories:(1) the Team consideredletters of reprimand/counseling/instructionto be
Unfavorable PersonnelActions (UPA), while MRI did not, unleSsthe letters were placed in the
complainant's pennanentpersonneltile; (2) the Team consideredthreats of UPAs as UPAs while
MRI did not. In thesecases,when MRI informed the complainants of their decision, they also
noted the complainant could Ie- file if the threat of the UPA was actually carried out; (3) the
Team did not think casesshould be dismissedat the Declination stagesimply becausethe
complainant did not or could not provide documentationto verify all allegations; and (4) the
T earndisagreedwith MRI for other or miscellaneousissues.

Of the 98 PreliminaryInquiries,theTeamdid not opineon ten casesbecauseeight
appearedto be activeandunderinvestigation;oneinvolveda contractor,insteadof a military
memool';andin onecase,thecomplainant,throughtheir attorney,filed a rebuttalthat was
currentlyunderreview. Of the 88 casesreviewed,the"Teamdisagreedwith MRI's decisionin 40
cases,or 45.5%,andagreedwith 48 decisions,or 54.5%. The Team'sdisagreement
canbe
groupedinto four categories:(1) the Teamconsideredlettersof reprimand,co.unseling,
and
Instructionto be a UPA, while MRI did not, unlessthe letterswereplacedin the complainant's
pelmanentpersonnelfile; (2) caseswereclosedwithout interviewingthe Responsible
ManagementOfficials (RMO),althoughtheRMO's intentwasoftenassumed.TheTeamdid
not think that this approachwasproper,andtherefol'C,believesthat tre RMOsshouldhavebeen
interviewed;(3) thefile did not containsufficientinformation/documentation
to rendera
decision.Thereeitherwasa lack of docwnentsor relevantissueswerenot exploredor resolved;
and(4) the Teamdisagreedwith MRI for otheror miscellaneous
issues.
I See Appendix A.

3

 Of the 19 Full Investigations, the Team did not render an opinion in one casebecauseit
appearedto be a Preliminary mquuy. Of the 18 casesthe Team assessed,it agreedwith ten
cases,55.5%, and disagreedwith eight cases,44.5%. The Team'sreasoningfor disagreement
willi eight Full Investigations fell into one of three categories:(1) the file was not fully
developed,e.g. necessaryinterviews not conductedor discrepanciesnot resolved; (2) actions the
Team felt were UPAs were not consideredUPAs by MRI; and (3) the Team disagreedwith MR.I
for other or miscellaneousissues.
It should be noted that the Team is not stating that 74 caseswould have been
substantiatedhad they gone to full investigation. To the contrary, the Team thinks that many of
the caseswould not have beensubstantiated;however, the Team could not affirm the decision
becausethe information in the file did not support it.

4

ji~ ~jjlil_'_. ~Ti~itt. ¥

 Introduction
The DoD prohibits reprisal againstservicemembersfor making or preparing to make a
protectedcommunication. Moreover, it is the policy ofDoD that members of the AImed Forces
shall be free from reprisal for making or preparing to make protectedcommunications,and tbat
no personmay take or threatento take an unfavorable personnel action, or withhold or threaten
to withhold a favorable personnelaction, in reprisal against any member of the Armed Forces for
making or preparing to make a protected communication.
The DoD IG~MRI, is responSlolefor investigating, overseeing,and adjudicating
complaints of reprisal from military members. The processMRI follows to investigateand
adjudicatecomplaints ofl'eprisal from miJital'Ymembersis governedby 10 U.S.C. § 1034
(LexisNexis 2011) and DaD Directive 7050.06~Guide To Investigating Reprisal And Improper
Referrals for Mental Health Evaluation, February 6, 1996, which implements the Statute. The
DoD IG has also issuedInspector General Guide (IODO) 7050.6 to further assistinvestigating
and adjudicating complaints of reprisal from military members.

Standards
10 U.S.C. § 1034, statesin section (a)(l) that 't[n]o personmay restrict a member of the
armed forcesin communicating with a Member of Congressor an Inspector Geneml "
Furthermore,section (b)(l) statesthat "[n]o personmay take (or threatento take) an unfavorable
pel'Sonnelaction, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal
against a member of the anned forces for making or preparing. . ." a protected communication.
10 U.S.C. § 1034 defines a protected communication in section (b)(l)(A) as "a communication
to a Member of Congressor an Inspector Generalthat . . . may not be restricted; or" in section
(cX2) ".. . a communication in which a member of the armed forces complains of, discloses
information that the member reasonablebelieves constitutesevidenceof, any of the following:
(A) A violation of law or regulation, including a law or regulation prohibiting sexualharassment
or unlawful discrimination. (B) Gross mismanagement,a grosswaste of funds, an abuseof
authority, or a substantialand specific dangerto public health or safety."
DoD Directive 7050.06, states:a personnelaction is any action taken on a member of the
Arnled Forcesthat qffects, or has thepotential (emphasisadded)to affect, that military member's
cWTentposition or career. Such actions include a promotion; a disciplinary or other conecti ve
action; a transfer or reassignment;a perfonnance evaluation; a decision on pay, benefits, awards,
or training; referral for mental health evaluationsunder DoD Directive 6490.1; and any other
significant changein duties or responsibilities inconsistentwith the military membel"sgrade.
During the review, the Team did not fmd a definition in the Statute,DaD Directive 7050.6, or
the IODG 7050.06 for the tenn unfavorable. Therefore, to ensureconsistencyin the review, the
Team utilized.the following defmition fi'Om Webster's II New Rivel'SideUnivel'Sity Dictionary
(1984): Unfavorable: Negative, adverse,undesirable,and disadvantageous.
10 U.S.C. § 1034, statesin section (c)(3Xa) that IIAn Inspector General receiving an
allegation as describedin paragraph(1) shall expeditiously determine,in accordancewith
regulations prescribedunder section (It), whether there is sufficient evidenceto warrant an

~8:--~~~li.'_R

s
Wi~ ~ii. ..:

 investigation.» In conducting the review, the Team could not locate a definition of ' 'sufficient
evidence" in the Statute,DoD Directive 7050.06, or the IGDG 7050.6 ReferenceGuide for
conducting Military Reprisal Investigations. Therefore, to ensureconsistencywhile reviewing
the cases,the Team developedtheir own. In developing this working definition, the Team
consultedBlack's Law Dictionary, Fifth Edition, 1979, that containedthe following definition:
"sufficient evidence')adequateevidence;such evidence, in cllaracter,weight, or
amount as will legally justify thejudicial or official action demanded;according
to circumstances,it may be "prima facie)' or "satisfactory for the purpose;that
amount of proof which ordinarily satisfies an unprejudiced mind, beyond a
reasonabledoubt." The tel'Dl is not "conclusivet) but may be used intel'Changeably
with the "weight of evidence.,t
The final working definition agreedto and used by the Teatn was: sufficient evidencethe
factsjustify a full investigation of a Military Whistleblower Complaint of Reprisal. Proof must
include a protectedcommunication, followed by an unfavorable personnelaction, or withholding
a favorable action, or a threat of either, and tile facts indicate that the responsibleofficial had
knowledge offue protected communication (or suspected/believedone was made) before an
action was taken or withheld. In addition, the Team detennined that in order to assesswhether a
caseme containedsufficient evidence,the Investigator must have obtainedtestimony or a
statementfrom the responsiblemanagementofficial.
10 U.S.C. § 1034, statesin section (e)(4) that "the report on the results of the
investigation shall contain a thorough review of the facts and circumstancesrelevant to the
allegation and the complaint or disclosure and shall include documentsacquired during the
course of the investigation, including summariesof interviews conducted. The report may
include a recommendationas to the disposition of the complaint." DoD Directive 7050.06, 5.1.6.
states:
Issue a report of investigation within 180 days of the receipt of an allegation of
reprisal and/or resn'iction investigatedby the IO DoD. The l'eport of investigation
shall include a thorough review of the facts and circumstancesrelevant to the
allegation(s),relevant documentsacquired during the investigation, and
summariesor transcripts of interviews conducted. The report may include a
l'eComnlendation(
s) as to the disposition of the complaint. If a determination is
made that the report cannot be issuedwit11in180 days, notify the Deputy Under
Secretaryof Defensefor Program Integration (DUSD(PI), under the Under
Secretaryof Defense for Personneland Readiness,and the member or former
member of the reasonsfor the delay and when that report will be issued.
The IGDG 7050.6,2-13, states.in pertinent part. that conclusionsbe basedon the
administrative evidentiary standardof a preponderanceof the evidence. The Team notesthat the
Statute.DoD Directive 7050.06, and IGDG 7050.6 do not defme "preponderanceof the
evidence.'. Therefore. the Team utilized the following definition from Black.s Law Dictionary,
Fifth Edition, 1919 to ensureconsistencyof our review: "Preponderanceof the Evidence Evidence which is of gt'eaterweight or mQreconvincing than the evidencewhich is offered in

~8=--8~~181.'_~ ~8~

6
81 ~ -~-

 opposition to it; that evidence which as a whole shows that the fact sought to be proved is more
probable than not.tt The Team notedt however, that while the above authorities and guidance do

not define the aforementionedstandard,IGDG 7050.6,2-13 does statethe following with respect
to a prepondel'anceof the evidence: "In other words, give greaterweight to the evidencewhich
you fmd mOStcrediblet most convincingt and that which demonstratesto the readerthat it is
more probable than not that the facts and circumstancesoccurred as set forth in the report. Do
not use the criminal evidentiary standardof 'beyond a reasonabledoubt.'tt

MRI's Process
Basedon the l'eview of the files, the Team-determinedthat Service membersmay file a
reprisal complaint directly to the DoD 10 Hotline, or with a Service10. If a complaint is filed
with a Service 1G,the Service 10 must notify MRI within ten working days of receipt of the
complaint, and MRI will review and concur/nonMconcur
on the Selvice 1G's disposition of the
complaint. In the event that a complaint is filed directly with the DoD 1G Hotline, Hotline will
receive the complaint and then will forward it to MRI. MRI then conducts an initial assessment
to determinewhether the complaint W8l1'antsan investigation. In conducting their review of
complaints, MRI employs an "acid test') that is articulated in 1GDG7050.6, 2-1. This guide
statesthat an investigator must gather enough evidenceto answer four questions in order to
complete a thorough militaly reprisal investigation. The questionsare:

1 Did the military member make or preparea commwrlcation protected by statute?
2. Wasanunfavorablepersoilllelactiontakenor threatened,
or wasa favorableaction
withheldor threatened
to bewithheldfollowing theprotectedcommunication?
3. Did the official(s) responsiblefor taking, withholding, or threatening the personnel
action know about the protected communication?

4. Doesthe evidenceestablishthat thepersonnelactionwouldhavebeentaken,
withheld,or threatened
if theprotectedcommunicationhadnot beenmade?
The Director ofMRI conductsthis initial review which may result in an immediate
declination and CIOSU1'e,
or a requestback to the complainant for more information. 2 If there is a
determination more infonnation is needed,the communication with the complainant is made
through the Hotline and not by MRI. If the requestedinfonnation is received, Hotline will
folWard the supplementalinfonnation to MRI and the initial review will be continued; this can
result in a decllilation of the complaint or progl'eSsionto Pl'eIiminary Inquhy. If the complaint is
declined, the complainant will be notified by Hotline; if the caseprogressesto a Preliminary
Inquiry, it will either be assignedto an MRI investigative team or a Selvice 10.
During the PrelimularY Inquiry stage,a caseinvestigator will interview the complainant
and other witnessesas appropriate,obtain additional documentationfrom the complainant and
command sources,and then make a determination as to whether the caseshould proceedto the
2

In mid-20 I 0, MRI changed their procedures,and the hrit/al review is no longer solely conducted by the Director.

but by nvo of the Team Chiefs.

~~:::--8~~181_'_~ :'T~~8t I~-:

1

 Full Investigation stage. During a Full Investigation, a detennination is made as to whether the
facts support, by a preponderanceof the evidence,that l'ep11Sal
did or did not occur.
Under the Statute,DoD Directive 7050.06, and IGDG 7050.6 this four stepprocessis not
required. Instead,the Statute,DoD Directive 7050.06, and IGDG 7050.6 only require that a case
contain sufficient evidence of reprisal to warrant a full investigation.

Objectives
The Teanl was organized to only assessthe conclusionsreachedby the MRI Directorate
on 169 military whistleblower reprisal complaints t11atwere closed during fiscal year 2010 and
identify any investigator bias. While the charter indicates that the Team will assesswhether the
conclusions are supportedby sufficient evidence,no such standardexisted for application to the
four stagesof the investigative processfollowed by MRI; as such, the Team devisedits own
definitions as describedin the Standardssection of this report. A detailed discussionof the

Teamt s methodology
will beinc}uded
in thefollowingsection.
Scope and Methodoloev

The Team evaluatedmilitary whistleblower reprisal complaints that were closed in fiscal
year (FY) 2010. MRI closed 534 casesin FY2010.3 Thesecaseswere in three categories: (1)
110 Declination cases,(2) 305 Preliminary Inquiry cases,and (3) 119 Full Investigation cases.
Based on the overall univel"Seof 534 cases,QMD deviseda sampling plan for each of the three
categories.4Basedon the results of the sampling, the Team assessed:52 Declinations, 98
Preliminary Inquiries, and 19 Full 111vestigations.
Each casewas l'eviewed indepCl1dentlyby
each Team member, and then consensuswas reachedamongstthe Team as to whether the Team
agreedor disagreedwith MRI's disposition of each case. During the consensusmeetings,the
Team normally required little or no discussionto reachconsensus.In fact, for an overwhelming
majority of the cases,the Team reachedthe sameconclusion independently. The Team basedits
decisions solely on the files that were provided by MRI. The Team did not interview MRI staff
or staff f1'Omthe Service 10 offices. S Prior to launching the review, the Team received training
on the MRI processfrom MRI.6
Discussedbelow is the methodology utilized for each of the three categoriesof cases.
Declinations - The Team applied the statue,the DoD Instruction, and the MRI guidebook to
make independentdecisionsas to whether the complaint should have proceededto the
Preliminmy Investigation stage. Dle Team did not evaluateor comment on whether the Team
thought the complaint had merit to be substantiated,only if it met the initial "acid test" and
should have proceededto the next stagein the process. Preliminary Inquiries- At this stage,the
Team agreedor disagl'eedwith MRI's decision whether the casecontained"sufficient evidence"
3

This number, and the pOpulation used for the sampling process,was provided by QMD; howevel., during the "kickM

off meeting" MRI slide #4 cited 679 cOlnplaints\vere closed. SeeAppendix B.
QMD's methodology is expJainedin Appendjx C.
.
, One MR1 staff member approachedthe Teatn unsolicited, requestedto speak with the team and \vas
4

accommodated. Ho\vever, the discussion occurred after aU caseshad been reviewed and the analysis had been

completed.
6 The training slid~ are attached at appendix D.

8
ji::'-

i:-':-'li:_'_~

Y_Yi~ii i~ Y_P

 to proceed to full investigation or not.? Full Investi~tions - The Team analyzed all the evioonce
contained in the file and agreedor disagreedwith MRI's conclusion as to whether or not
allegations of reprisal wel'Csubstantiated. In detelmining whether or not reprisal ocCUlTed,
the
Team utilized the legal standardof a preponderanceof the evidence.8

Observations
The Teamorganizedits observations
in accordance
with MRI's threecategoriesof cases:
Declinationstage,PreliminaryInquiry stage,andFull Investigationstage.Below arethe
observations
by stage.
Declination Stage
For this category, the Team was provi~ed 52 samplecasesthat were closed in Fiscal Year
(FY) 2010. The Team notes that two casesin the sample appearedto be active, and therefore,
the Team did not assessthesecases. Of the 50 casesreviewed, 9 the Team disagreedwith MRI's
decision in 34 cases,and agreedwith 16 decisions. Of the casesthe Team disagreedwith, the
Team categorizedits observationsinto three main areasdiscussedbelow, and an "other"
category. There were 12 casesin the other category and MRI declined the casesfor various
reasonswith which the Team disagreed.The Team also noted that somecaseswere declined for
multiple reasons;so they fell into more than one of the following categories.
1. Letters of remimand. counseliM. and instruction that were issuedafter a protected
communicatio_nwas made. and held locallv. were not consideredunfavorable ~sonnel
actions under 10 V.S.C. &1034.
MRI declined to further investigatecasesof military whistleblo~r reprisal becauseletters of
reprimand, counseling,or instruction that were locally held were not consideredunfavorable
personnel actions. The Team disagreedwith this analysis. DoD Directive 7050.06 states:a
personnel action is any action taken on a member of the Armed Forcesthat affects, or has the
potential (emphasisadded) to affect, that military member'scurrent position or career. Such
actions include a promotion; a disciplinary or other con-ecUveaction; a u"allsferor reassignment;
a perfonnance evaluation; a decision on pay, benefits, awards,or training; referral for mental
health evaluationsunder DoD Du-ective6490.1; and any other significant changein duties or
responsibilities inconsistentwith the military member'sgI'ade. Of the casesthe Team reviewed,
several containedLetters of Counseling (LOC) that statedadditional action may be taken against
the member including separation,if the subject behavior continues. Moreover, Air Force
Instruction, 36-2907, 3.1.1 and 3.1.2., June 17,2005, statesthat raters must take into account
loCally held LOCs. The Team did not locate similar instructions for the remaining Services;
however, the Team determined that the letters should be reviewed not summarily dismissed.

1

The Team used tho definition of "sufficient evideooe" as described in the Standardssection of this report.

. The Team used tho dofinition

of "prep on deran co of the evidence" as described ill the Standards section of this

report.
? The details of each casedecision in this stagecan be found in Appendix E.

9
~8:-~8'~18~'~~ ~88 8t.~ .:

 Basedon the plain languageof the DoD Directive 7050.06, letters of counSeling,reprimand
and instruction are personnel actions that have the potential to affect the member's cun-ent
position or career. Moreover, despitebeing locally held, letters of counseling,reprimand, or
instruction could be used in a later action, as discussedabove, and have the potential to affect the
servicemember's current position or career. Consequently,the Team dis8gl'Cedwith MRI's
decisions. The Team disagreedwith MRI's decision in 34 casesin the declination stage;for 10
of the 34 cases,the Team disagreedbecauseletters ofreprlmand, counseling, or instruction that
were locally held were not consideredunfavorable persOm1e1
actions.

2. Casesweredeclinedbecauseamemberonly receiveda threatof anunfavorable
~rsonnel action.or couldchallenlZe
anunderlyin2actionin anotherforum.
MRI declined to further investigatecaseswhere a member received a tht-eatof an
unfavorablepersonnelaction and/or becausean action could be challengedin another forum. 10
U.S.C. § 1034statesthat "[n]o personmay take (or threatento take) an unfavorable personnel
action, or withhold (or threatento withhold) a favomble personnelaction. . . ." In some of the
casesthe Team reviewed, memberswere thrca~ed with negative fitness reports, termination,
and court martial proceedings. Rather than allow the complaint to proceedto the next stagein
the process,MRI instructed the member that if the action occurs, they could file their complaint
again, and thus declined the complaint.

TheTeamconsideredthesethreatsto bethreatsof unfavorablepersonnelactions. Therefore,
thesecasesshouldnot havebeendeclinedbecause
the memberonly receiveda threatof an
wUavorablepersonnelaction;this is contraryto 10V.S.C.§ 1034.
MRI also declined a casebecausethe member could challengethe action in another forum;
theseexamplesincluded suspensionof medical credentialing, surgical privileges, and
professional privileges. Basedon our review there is no statutory authority, DoD Directive, or
IG Instruction to decline a complaint of reprisal from a military member becausethe member
could challengethe underlying action in anotherforum. In addition, there is also no statutory

authorityto declinea complaintbecause
a memberhaschallengedtheunderlyingactionin

.

anotherforum. Therefore, the Team disagreedwith MRJ's decision in this case. The Team
disagreedwith MRI's decision in 34 casesin the declination stage;for eight of the 34 cases,the
Team disagl'Ced1xo;cause
threats of UPA's were not consideredand becausea member could
challengethe action in another forum.
3. Caseswere declined for lack of documentationor details submitted by the member
suPRQrtingthe allegation of a orotectedcommunication and unfavorable Dersonnelaction.
MRI declined to further investigate casesbecausecomplainantsdid not provide hardcopy
documentationof the alleged protected communication(s), unfavorable personnelaction(s), or
oocwnentation that the responsibleofficial was aware of the protected communication prior to
implementing an unfavorable personnelaction. DoD Directive 7050.06, Enclosure 3, E3.1.3.2
states:that a complaint .shouldinclude (([a] copy of the protected comlnunication and any reply
about the matter. Ifa copy is not available, include the date of the protectedcommunication; to
whom the protectedcommunication was made; the content of the protected communication; and

10
~8:-, 8~~18R"':' 88~ @I'~ -4.

 whether1hematter was investigated,when, and by whom." Furthelmol'e, as for pel'SOnnel
actions,"[i]dentiry the personnel action(s) . . . taken, withheld, or 1ln-eatened
to be taken or
withlleld. Pl'Ovidedocumentationfor the persoJUlelaction. If unavailable, describethe personnel
action and the date of tile action." Id at E3.1.3.3.
IGDG 7050.6>2-4 statesthat if the documentationis insufficient, contact the appropriate
official to whom the protected communication was made and obtain any testimony or documents
necessaryto show whether a protected communication was made. This guidancealso statesthat
if unable to establishwith any certainty that the complainant made or prepareda protected
communication, give the whistleblower the benefit of the doubt and proceed with the
investigation. Id.
As mentioned above,the complaints in this category were received through the DoD IG
Hotline. This meansthat complainantsfiled their complaints by contacting the Hotline number,
or utilizing the automatedsystem. With either avenue,the complainant provides infonnation
about the a1legation(s)of reprisal, and a fonn is forwarded to MRI for processing. The option of
using an automatedcomplaint systemand discussingthe matter over the phone is inconsistent
with a requirement to provide documentaryevidenceat this stage. In these caseswe disagree
with MR1that the complainant did not Pl'Ovidesufficient specificity for the complaint to proceed
to the next stage. In at least one case,the complainant was deployed in a combat zone; requiring
this individual to provide documentationappearsto be contl'al-yto the intent of the statueand
DoD policy.
Basedon the DoD Directive and DoD 10 guidance, it is reasonableto expect that not all
complaints submitted will contain all the documentation to prove allegations ofl'Cpnsal. Rather,
the investigator should obtain this docwnentation during the investigation. Furthelmore, placing
the burden of supplying documentationof1he protected communication or unfavorable personnel
action at the filing stagecould -beonerousfor a complainant, especially while in a deployed
environment. For thesereasons,the Team disagreeswith the practice to close complaints based
on the complainant's failure to provide all requesteddocumentationduring this initial phase.
The Team disagreedwith MRI's decision in 34 casesin the declination stage;for 15 of the 34
cases,the Team disagreedbecauseMRI requu-edcomplainantsto provide documentationof the
alleged protected communication(s),unfavorable personnelaction(s); or documentationthat the
l'CSponsibleofficial was aware of the protected comInunication prior to implementing an
unfavorable personnelaction.
Prelilninal'Y Inquil'Y Stage
For this stageof the review, the Team assessedMRI's decision on whether the cases
contained "sufficient evidence'. to warrant a full investigation.10 During tIns stage,the Team was
provided 98 randomly selectedcasesftom FY 10 that were closed at the Pl'eliminmy InquilY
stage. Of the 98 cases,74 were pl"Ocessed
by Sel'ViceIOs and forwarded for MRJ's concurrence
and 24 wel'epl'OCessed
by MRI. The Teamnoted that although included in the Preliminary
Inquiry sample, someof the 74 casesinvestigated by the Service IOs appearedto be
Declinations. The Team accountsfor this by the fact that the three stageprocessappearsto be
10

The Team used the defmition of"sufficient evidence" as described in the StandardsSection of this report.

11

 unique to MR!. Also, of the 98 cases,eight appearedto be active and at the Full Investigation
stage,one involved a contractor (instead of a military member), and one was being rebutted.
Therefore, the Team did not assessMRI's disposition of theseten cases.

Of the 88"cases
theTemndecided,the Teamdisagreedwith MRI's decisionin 40 casesand
agreedwith 48 decisions.IIWhile the numbersbelowwill capturestatisticsfor theentire
sample,it is of notethat of the24 casesfor which MRI hadsoleresponsibility,eighto~them
wereincludedin the aforementioned
categoryof beingopenor active,involvinga contractor,or
beingrebutted.For the 16 casesthe Teamdid evaluate,the Teamdisagreedwith MRI's decision
in ten of'themandagreedwith six. Of the casesthe Teamdisagreedwith, theTeamcategorized
its observations
into threemainareasdiscussed
belowandan "othet-"category.In the other
category,casesweredeclinedfor variousreasonsfor whichthe Te;amdisagreedandtherewere
eightcasesin this category.TheTeamalsonotesthatsomecasesfell into morethanone
categoryfor disagreement

1. Lettersof reDrimand.counseling:.
andinstructionthat wereissuedaftera Rrotected
co~unication wasmade.andheldlocally. werenot consideredunfavoloable
RersonneI
actionsunder10V.S.C. § 1034.
MRI declined to further investigate casesof military whistleblower reprisal becauseletters of
reprimand, counseling, or instruction that were locally held wel'e not considel'edunmvol'able
personnelactions. The Team disagreedwith this analysis. DoD Directive 7050.06, states:a
personnelaction is any action taken on a member of the Armed Forces that affects, or has the
potential (emphasisadded) to affect, that military member'scurrent position or career. Such
actions include a promotion; a disciplinary or other corrective action; a transfer or reassignment;
a performanceevaluation; a decision on pay, benefits, awards,or training; refenal for mental
health evaluationsunder DoD Directive 6490.1; and any other significant changein duties or
l-esponsibilitiesinconsistent with the military member'sgrade.. Of the casesthe Team reviewed,
several containedLOCs that statedadditional action may be taken againstthe member including
separation,jfthe subject behavior continues. Moreover, Air Force Instruction, 36-2907, 3.1.1
and 3.1.2., June 17, 2005 statesthat ratersmust take into account locally held LOCs. As
previously stated,the Team did not locate sjmilar instructions for the remaining Services;
however, the Team determinedthc letters should be reviewed not summarily dismissed.
Therefore, basedon the plain languageof the DoD Directive 7050.06, letters of counseling,
reprimand,'and instruction are personnelactions that have the potential to affect the member's
cun-entposition or career. Moreover, despite being locally held, letters of counseliltg, reprimand,
or instruction could be used in a later action, as discussedabove, and have the potential to affect
the service member's current position or career. Consequently,the Team disagreedwith MRI's
decisions. The Team disagreedwith MRI's decision in 40 cases.in the Preliminary Inquiry stage;
for eight of the 88 cases,the Team disagreedbecauseletters of l'ePlimand, counseling,or
instruction that wel'e locally held were not consideredunfavorable personnel actions.

11 The

details of each casc decision in this stage can be found in Appendix F.

12

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'_MWi~ ~t 1M~_F

 2. Caseswel'e closedwithout obtaining a statementor any facts directly frain_tho
resoonsiblemana2ementofficial.

MRI declinedto refet.casesfor full investigationwithout obtaininga statementfrom the
RMO. This is contraryto 1000 7050.6.1ODO7050.6,2.5 Knowledgeby RMO,("Acid Test't
Question3) 'CAskeachresponsiblemanagement
official:
1. Whenandhow did you rust becomeawarethatthe complainantmadeor prepareda
protectedcommunication?;
and
2. Whenandhow did you first suspector cometo believethat thecomplainantmadeor
prepareda protectedcommunication?tt
The IODO 7050.06 requires that the RMO be interviewed, or at a minimum, documentation
in the file must enablean assessmentofRMO knowledge of the protected communication and
the motivation for the action s/he took, withheld, or threatened. The guide further states:
If anyone of the l-esponsiblemanagementofficials knew or suspectedthat the
complainant madeor preparedthe protected communication before the action was
taken, withheld or threatened,then the investigation must continue. If there is no
evidence that any responsiblemanagementofficial who recommended,took, or
approvedthe pel'SOnnelaction knew or suspectedthat the complainant made or
prepared a protected communication before deciding to take or taking the action,
then the investigator may terminate the investigation. If the evidence is
insufficient to detennine who knew what and when, give the benefit of the doubt
to the complainant and proceedwith the investigation. ld.
In sevel'81cases,the investigators' summarieshad to assumewhy managementtook the alleged
action, becauseinterviews or statementswere not obtained.
In applying the standardfor sufficient evidence,the Team concludesthat it cannot be
determinedwhether there is sufficient evidenceto warrant a full investigation without obtaining
a statementfrom the responsiblemanagementofficiai(s). Therefore, the Team disagreedwith
MRI's decisions in thesecases. The Team disagreedwith MRI's decision in 40 casesin the
Preliminary fuquiry stage;for 27 of the 88 cases,the TeQrndisagreedbecausethe files did not
contain a statementfrom the RMO.

3. The file did not containsufficientinformation/oocumcntation
in orderfor theTeamto
rendera decision.Thel'eeitherwasa lack of documentsor relevantissueswerenot
exQloredor resolved
MRI foUlidin thesecasesthat therewasnot sufficientevidenceto warranta full
investigation.In the reviewof thesecases.theTeamopinedthat the contentofthe file was
insufficientin orderto draw suchconclusions.

13

 In several casestllere were no documentsdetailing the complaint or investigation - only a
documentindicating an investigation had beenconductedby DaD 10, Investigations of Senior
Officials (ISO) Directorate. In another case,there were documentsfrom the original complaint
in 2005, but no other docwnents indicating the matter had beeninvestigated. Some of the files
provided details of the investigation; howeva., cenu'81issuesor conflicts l'8ised dm-ingthe
investigation were not addressedor resolved. One example is a casein which a Temporary Duty
(fDY) assignmentwas deemednot to be a UPA although no apparentevaluation of the TDY
was conductedto determine whether it would affect the member's career. In anotherexample,
an Officer Evaluation Report (OER) was deemednot to be a UPA when the file clearly statedthe
member was denied a NATO job basedsolely on the GER. Since the infonnation in the file did
not support MRI's decision, the Team disagreedwith the MRI decisions. The Team disagreed
with MRI's decision in 40 casesin the Preliminary Inquiry stage;for eight of the 88 cases,the
Team disagreedbecaU$ethe file did not contain sufficient infolmation/documentation in order
for the Team to render a decision.

Full InvestigationStage
For the final stagein the processof investigating military reprisal complaints, the Team
detennined whether they agreedor disagreedwith MRI's decision as to whether, by a
preponderanceof the evidence,reprisal was the reasonfor the action taken, withheld, or
threatenedby the RMO.12 For this stage,the Team received 19 samplecasesfrom FY 2010 that
were fully investigated. Of those 19 cases,the Team did not review one casebecauseit appeared
to be a casemore properly in the Preliminary Inquiry stage,and not the Full Investigation stage.
Of the 18 casesactually reviewed, the Team disagreedwith MRI's decision in eight cases,

.

and agreedwith ten decisions.13Of the casesthe Team disagreedwith, the Team categorizedits
observationsinto two main areasdiscussedbelow, and an c'other" category. In the other
category
there was
one casethe Team disagreedwith, and it involved an allegation of restriction
under
10t U.S.C.
§ 1034.
.
The file did not contain sufficient infonnation/documentation in order for the Team to
render a decision.
At the conclusion of an investigation, the investigator must analyzethe evidence collected
during the investigation and detennine, by the administrative evidentiary standardof a
preponderanceof the evidence,whether reprisal was the reasonfor the action taken, withheld, or
threatened As discussedearlier in this l'epolt, IGDO 7070.6, 2-13 provides guidanceto interpret
dle standardof preponderanceof the evidence,but it doesnot provide for a clear definition.
Therefore, the Team utilized the definition statedin the Inb'Oductionsection of this report in
reviewing MRI's conclusions.
In reviewing the casesunder this observation,the Team disagreedwith MRI's decision that
reprisal was not substatltiatedbecausethe investigative report was not thoroughly developedto
12The Team used t1\CdefinJtion of "preponderanceof the evidence" as described in the StandardsSection ofdlis
report.
13 The details of eachcasedecision in this stage can be found in Appendix G.

14

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 allow one to determine, by a preponderanceof the evidence,whether reprisal occurred. For
example,in one case,a RMO claimed they issuedthe UPA basedon an opinion by a Judge
Advocate General Officer; however, this officer was never interviewed. The Team found this
gap createdunansweredquestionsand resultedin the file not supporting the decision. In another
case,three RMOs were not interviewed. All three of theseRMOs were involved in either the
evaluation or the letter of reprimand writing process. Not interviewiIlg t11ese
RMO's left many
unansweredquestions. The Team determinedthat without thesecrucial interviews, there was not
enoughinfomtation to affirm MRI's decision of unsubstantiatedreprisal.

In two othercases,conflictsin the RMO's testimonywereneverresolved,andadditional
relevantinterviewsor follow-up interviewswereneverconducted.Consequently,
the decision
by MRI couldnot besupported.As a resultof this missingcrucialinfonnation,theTeamcould
not detennine-.
by a preponderance
of the evidence,whetheror not reprisaloccurred,andthus
disagreedwith MRI's decisionsin thesecases.The Teamdisagreedwith MRI's decisionin
eightcasesin the Full Investigationstage;for five of the 18cases,theTeamdisagreedbecause
the file did not containsufficientinforma1ion/documentation
in orderto rendera decision.
2. Actionstakenby theresgonsiblemana2ement
official werenot considered
unfavorable~rsonnel actionsby MRI.
For thesecasesthe Team disagreedwith MRI's decision becauseactions taken by RMOs
were not consideredUPAs. The Team determined,however, that these actions did qualify as
UPAs under the Statute. DoD Directive 7050.06 statesthat a personnelaction is any action
taken on a member of the Anned Forces that affects. or has thepotential (emphasisadded) to
affect, that military member'scurrent position or career. Such actiol18include a promotion; a
disciplinary or other conective action; a transfer or reassignment;a performanceevaluation; a
decision on pay, benefits. awards,or training; referral for mental health evaluationsunder DoD
Directive 6490.1; and any other significant changein duties or responsibilities inconsistentwith
the military member'sgrade.
Of the casesthe Team reviewed, one containedLOCs that stated,additional action may be
taken against the member including separationif the subject behavior continues. MRI did not
consider those LOCs as UPAs and did not addressthose LOCs in the caseanalysis. Similarly, in
another case,a forced transfer was not considereda UPA and was not addressedin the case
analysis.
Basedon the plain languageof the DoD Directive 7050.06, letters of counseling,reprimand
and instruction are pCl'Sonnelactions that have ~ potential to affect the member's current
position or career. Despite being locally held, letters of counseling,reprimand, or instmction
could be usedin a later action, as discussedabove, and have the potential to affect the service
member's current position or career. Moreover, it is also clear that a transfer is considereda
personnel action. Therefore MRI should have consideredthe LOCs and U'8nsfel'as a UPA and
investigatedthem. For this reason,the Team disagreedwith MRI's decision that reprisal was not
substantiated. The Team disagreedwith MRI's decision in eight casesin the FuJIInvestigation
stage; for two of the 18 cases,the Team disagreedbecauseactions taken by the RMO were not
consideredUPAs.

15

 Conclusion
Of the 169 military whistleblower reprisal complaints provided to the Team, 13 were not
reviewed due reasonsarticulated in each of the previous sections. Of the 156 reviewed by the
Team the Team agreedwith 82 of the decisionsreachedby MRI, and disagreedwith 74. This
doesnot mean that the Team thought that 74 caseswould have been substantiatedhad they gone
to full investigation. To the contrary, the Team believes tl1atmalty of the caseswould not have
beensustained;however, The Team could not affirm the decision becausethe infonnation in the
files did not support it or necessaryinvestigative stepswere not completed.
In addition to the actual investigative process,another concernis related to casetracking.
For example 11 of the 169 casesappearedto be open when they were coded as closed.
Additionally, severnlof the casesin which the Team agreedwith MRI's decision were instances
where the complainant had withdrawn their allegation. The Tearn's conCel'nis the withdrawal
may be directly related to the length of time it took to addresstheir complaint. In a few casesthe
allegation was substantiated,but the RMOs had already left the service. The Team thinks the
misidentified casesand the length of time taken to complete investigations may be indicative of a
larger issue dealing with tracking and managementof complaints.

TheTeambelievesthat if the reportrecommendations
areimplemented,casescouldbe

.

concludedwith minimal additional work, and too ultimate decision would be more supportable.
Moreover, the Team believesthe implementation of the l'eport recommendationswould improve
the overall processand better serve DoD.

Recommendations
1. Establishwrittenprocedur~for handlingandinvestigatingreprisalcomplaintsand
updateIGDO 7050.6andDoD Directive7050.06accoluingly. Developdefinitionsfor
key ternts(e.g.sufficientevidence)to ensureconsistencyandobjectivityin processing
cases.
2. Complaints that involve locally held letters of reprimand, counseling, or instruction
should not be summarily dismissed. Instead,the complaint and the letters of reprimand,
counseling,or instruction shouJdbe reviewed to determinewhether it affects, or has the
potential to affect the Service member's current position or career.
3. Require that the RMO(s) be interviewed prior to making a determination as to whether
there is sufficient evidenceto warrant a full investigation or whether reprisal occurred by
a preponderanceof the evidence.
4. Conduct an internal audit of casen-acking/file system(s)for MRI complaints to ensure
complaints are processedin a timely manner and accuratelytracked and managed.

5. Requirethat MRI files concerningmilitary reprisalcomplaintsinvestigatedby the
Directoratefor ISO containthe entirefile developedby ISO, lllcluding transcriptsof all
interviews.

16

 6. Implementprocedures
to complywith statutoryandregulatorynotificationrequirements
whenexceedingthe 180daylimit. Duringthe review,the Teamnoticedmanycasesthat
exceeded
the allowabletime limit, but sawno indicationthat thememberor the Deputy
UnderSecretaryof Defensefor P1Ugl'am
Integl'ation,Office 0f theUnderSecretaryof
Defensefor PersonnelandReadiness,
werenotified asrequired.

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17
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