The act protects a United States Armed Forces member who makes a "protected communication" regarding a violation of law or regulation. The superiors of these service members are prohibited from retaliating against the service member making the protected statements. The Congressional statute is implemented by Department of Defense Directive 7050.06, which protects: But the communications must be made to one of the following:
The 1998 Revisions
An October 1998 revision to Title 10, United States Code, Section 1034, the "Military Whistleblower Protection Act," contained significant changes in how the Military Department Inspectors General and Office of the Inspector General, U.S. Department of Defense will process reprisal allegations. The most significant change in 1998 was that Military Department Inspectors General now have the authority to grant the protection and investigate the reprisal allegations they receive. This means that military members are no longer required to submit reprisal allegations directly with the Department of Defense Inspector General for coverage under 10 USC 1034.
Substantiated reprisal by a military member is punishable under Article 92, Uniform Code of Military Justice. Substantiated reprisal by a civilian employee is punishable under DOD regulations governing disciplinary or adverse actions. Members are not, however, immunized from responsibility for their own wrongdoing or inadequate performance by filing a complaint of reprisal. In the wake of a protected communication by a command member, a command having legitimate grounds for taking unfavorable personnel action against that member should thoroughly document the bases for all actions taken.
Legislative & Statutory History
The statute was introduced by bill to the United States House of Representatives under the sponsorship of Congresswoman Barbara Boxer in 1985. In 1986, the substance of the Boxer bill was attached as an amendment to the FY1987 House Defense Authorization Act. The language failed in conference between the House and the United States Senate. The following year, the Inspector General of the U.S. Department of Defense was called to testify before the Defense Acquisition Policy Panel of the House Armed Services Committee. Also testifying were Defense whistleblowers Chief Petty Officer Michael R. Tufariello, U.S.N.R. and Major Peter C. Cole, U.S. Army National Guard, State of Texas. In 1988, the Military Whistleblower Protection Act of 1988 was passed by the United States Congress to protect military members who make lawful disclosures of wrongdoing to Members of Congress or an Inspector General. It required the Office of the Inspector General, U.S. Department of Defense to investigate allegations of whistleblower reprisal. The statute was broadened in 1991 to protect disclosures to auditors, criminal investigators, inspectors and other Department of Defense law enforcement officers. In 1998, the Congress amended the statute to permit lesser Inspectors General to receive allegations and conduct investigations and retained oversight in the Office of Inspector General, U.S. Department of Defense.
Statute of Limitations: This period would expand from 60 days to one year, consistent with general best practice whistleblower protections.
Protected Audiences: Audiences for protected disclosures would expand to include testimony to congressional and law enforcement staff, courts, grand jury and court martial proceedings.
Closing Loopholes for Protected Speech: The reform closes the same loopholes that Congress eliminated in the civil service Whistleblower Protection Enhancement Act. Such loopholes include: A whistleblower is not protected if someone previously disclosed the same misconduct; oral disclosures not being covered; whistleblower motives being challenged, and whether the disclosure was made while on or off duty.
Expansion of Protection against Forms of Harassment: The reforms ban retaliatory removal of duties inconsistent with rank.
Independent Service Office of the Inspector General investigations: The reforms require service-specific OIG investigations into reprisal to be handled by a higher organizational department than the one where alleged harassment occurred.
Administrative Due Process Hearings: If not satisfied by OIG action, each member has the right to a Board for Correction of Military Records administrative due process hearing.
