The Government Accountability Project (GAP) today praised yesterday’s House approval of section 1714 in the National Defense Authorization Act for Fiscal Year 2014 (NDAA FY 2014), which overhauls the discredited Military Whistleblower Protection Act (MWPA) of 1988. The reform is a consensus between House and Senate negotiators, with no Senate opposition expected when that chamber votes on the NDAA next week.
GAP Legal Director Tom Devine commented:
This is the first significant advance in military whistleblower rights since they were enacted in 1988, and it is long overdue. To date, the Military Whistleblower Protection Act has created far more victims than it has helped. Our work is not done, but this reform is a giant step toward parity with civilian employees who challenge fraud, waste and abuse.
Key House sponsors include Representatives Jackie Speier (D-Ca) and Mike Coffman (R-Co). Key Senate sponsors include Senators Mark Warner (D-Va), Timothy Kaine (D-Va), Susan Collins (R-Maine) and Charles Grassley (R-Iowa).
The Need for Reform
The current law’s track record is indefensible, as seen by a summary of concerns below that have been verified by the Government Accountability Office (GAO).
- Timely results: Under current law, the Defense Department Office of Inspector General (DoD OIG) IG must complete investigations within 180 days. In reality, the mean time is 451 days, and that figure understates average delays. Certain cases have languished for five or six years.
- Quality of investigations: The DoD OIG only investigates 29% of complaints, and even in these “full investigations,” GAO found there only is evidence sufficient to support findings in 5% of complaints. Contrary to procedures requiring interviews of all complainants in a full investigation, they occur in less than half the cases. The lower, service-specific Inspectors General offices (Army, Navy, etc.) that perform the work do not have standard processes or procedures for their investigations, and the DOD OIG investigative manual has not been updated since 1996 despite three recommendations by internal and outside reviews.
- Prospects for Relief: The DOD OIG process only has backed 6% of reprisal claims from Fiscal Year 2006 to the middle of Fiscal Year 2011, and the record is getting worse. In Fiscal Year 2006, 10.55% of complainants prevailed, compared to 4.9% in Fiscal Year 2011 – greater than a 50% decline. Worse, not all those whom the OIG supports actually obtain relief – only 20 out of 2092 of those who filed complaints received relief (less than 1%).
- Due Process: Currently, no due process exists. In theory, if the DoD OIG does not back a military whistleblower, each service department’s Board of Correction of Military Records (BCMR) can hold a due process hearing. In fact, no BCMR has granted a request for hearing in nearly 25 years since the law’s 1988 passage.
The following are a list of updates included in NDAA FY 2014 which would strengthen the MWPA:
- Statute of Limitations: This period would expand from 60 days to one year, which is 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 the duty.
- Expansion of Protection against Forms of Harassment: The reforms ban retaliatory removal of duties inconsistent with rank.
- Independent Service OIG 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 BCMR administrative due process hearing.
While pleased, GAP Legal Director Tom Devine cautioned:
Our work is not done. While this breakthrough is exciting, military whistleblowers still have second class rights compared to civilian employees, even in the restricted circumstances where dissent is legal. They face rigged standards in burdens of proof that stack the legal deck against their chances of victory, and they do not have access to judicial review of military service administrative rulings. The coalition will redouble our efforts next year to finish what we started.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.