[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


 OVERSIGHT OF THE DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL'S 
             MILITARY WHISTLEBLOWER REPRISAL INVESTIGATIONS

=======================================================================

                                 HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON NATIONAL SECURITY

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 7, 2016

                               __________

                           Serial No. 114-76

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                   Jennifer Hemingway, Staff Director
                 David Rapallo, Minority Staff Director
                Dimple Shah, Subcommittee Staff Director
                          Mike Howell, Counsel
                          William Marx, Clerk
                                 
                             ----------                                

                   Subcommittee on National Security

                    RON DESANTIS, Florida, Chairman
JOHN L. MICA, Florida                STEPHEN F. LYNCH, Massachusetts, 
JOHN J. DUNCAN, JR., Tennessee           Ranking Member
JODY B. HICE, Georgia                ROBIN KELLY, Illinois
STEVE RUSSELL, Oklahoma, Vice Chair  BRENDA L. LAWRENCE, Michigan
WILL HURD, Texas                     TED LIEU, California
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 7, 2016................................     1

                               WITNESSES

The Hon. Ryan Zinke, A Representative in Congress from the State 
  of Montana
    Oral Statement...............................................     4
    Written Statement............................................     7
Mr. Glenn Fine, Principal Deputy Inspector General, U.S. 
  Department of Defense
    Oral Statement...............................................    13
    Written Statement............................................    15
Ms. Lori Atkinson, Assistant Director, Defense Capabilities and 
  Management, U.S. Government Accountability Office
    Oral Statement...............................................    26
    Written Statement............................................    28
Ms. Mandy Smithberger, Director, Straus Military Reform Project, 
  Project on Government Oversight
    Oral Statement...............................................    49
    Written Statement............................................    51

                         ADDITIONAL INFORMATION

        1. An Article Written by William H. McRaven on April 24, 2016, 
        a Special to the Tampa Tribune, Titled, ``William McRaven: A 
        Warrior's Career Sacrificed for Politics''- Submitted by 
        National Security Subcommittee Chairman Ron DeSantis (FL). It 
        can be found online here: http://www.tbo.com/list/news-opinion-
        commentary/william-mcraven-a-warriors-career-sacrificed-for-
        politics-20160424/

        2. A New York Times Op-Ed by Mark Hertsgaard Published on May 
        26, 2016, titled, ``Whistle-Blower, Beware''- Submitted by 
        Representative John J. Duncan, Jr. (TN). It can be found online 
        here: http://www.nytimes.com/2016/05/26/opinion/whistle-blower-
        beware.html

 
 OVERSIGHT OF THE DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL'S 
             MILITARY WHISTLEBLOWER REPRISAL INVESTIGATIONS

                              ----------                              


                      Wednesday, September 7, 2016

                  House of Representatives,
                 Subcommittee on National Security,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:04 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Ron DeSantis 
[chairman of the subcommittee] presiding.
    Present: Representatives DeSantis, Mica, Duncan, Hice, 
Russell, Hurd, Lynch, and Lawrence.
    Mr. DeSantis. The Subcommittee on National Security will 
come to order. Without objection, the chair is authorized to 
declare a recess at any time.
    Inspectors general play an important role in ensuring 
accountability in executive branch agencies, and whistleblowers 
are a key tool in combatting waste, fraud, and abuse within 
government. But IGs have a responsibility to conduct 
investigations in a fair, timely, and accountable manner, and 
whistleblower complaints cannot be used to shield the civilian 
or military member from accountability for substandard 
performance.
    The recent case of Rear Admiral Brian Losey, who was forced 
to end his stellar career as a Navy SEAL after a lengthy series 
of IG investigations and political maneuvering, raises 
significant questions regarding the IG process, the erosion of 
military command authority, and the treatment of an officer who 
gave so much for our country.
    Losey's 30-year career sent him all around the globe to 
defend our Nation, had habitual deployments as a junior 
officer, going to Afghanistan shortly after the 9/11 attacks, 
serving multiple deployments in Iraq, commanding the famed SEAL 
Team 6. His final duty assignment was to serve as the commander 
of WARCOM, which oversees all Navy SEALs.
    Retired admiral and Navy SEAL William McRaven has written 
that Losey is, ``Without a doubt, one of the finest officers of 
whom I have ever served. Over the past 15 years, no officer I 
know in the SEAL teams has given more to this country than 
Brian Losey.''
    There are very few Americans who have given as much to our 
country as Brian Losey. Yet Losey's career was cut short 
following a flurry of lengthy investigations conducted by the 
DOD IG and intervention by a handful of U.S. Senators.
    In 2011, Losey assumed command at the Special Operations 
Command Africa, SOCAFRICA, which was a relatively new command 
that was still trying to become capable of dealing with the 
growing threats emanating from the African continent. The 
command was based in Stuttgart, Germany, and the command 
featured a small number of staffers who had grown accustomed to 
the relaxed European lifestyle.
    Upon assuming command, Losey faced a situation in which the 
command was not performing at the level required. He saw a need 
to improve the command and change the prevailing culture. It 
would not necessarily be easy to do so, but it was necessary to 
do so.
    Meanwhile, an anonymous whistleblower filed a complaint 
against Losey alleging that he illicitly flew his daughter to 
Germany at taxpayer expense. The complaint was bogus in every 
respect. Not only did Losey not fly his daughter to Germany on 
the taxpayer's dime, he was actually entitled to do so, if he 
so chose, under the existing travel regulations. Nevertheless, 
the existence of this complaint, combined with Losey's 
befuddlement regarding the complaint, cast a shadow over 
Losey's attempts to take action to reform SOCAFRICA as he was 
accused of retaliating against whistleblowers who filed 
additional complaints as Losey undertook his actions.
    The Navy conducted an IG investigation and found that 
Losey's actions were justified on the merits and did not 
constitute unlawful reprisals. He subsequently earned a 
promotion of Rear Admiral Upper Half, 2-Star billet, and was 
assigned to command WARCOM. A review of the command climate 
commissioned by the commander of AFRICOM found that Losey was, 
``the right man for the job at this time.'' and cited, 
``pockets of resistance within the command to the new course 
charted by Losey.''
    The DOD IG conducted its own investigation, included that 
some of Losey's actions were reprisals for the whistleblower 
complaint. Although the IG investigation was required by law to 
be concluded in 180 days, the Losey investigation, multiple 
investigations dragged on for years, delaying his ascension to 
2-star admiral for 2 years.
    The Navy reviewed the findings of the DOD IG and determined 
that the personnel actions initiated by Losey were not 
reprisals but a legitimate exercise of command authority. A 
group of U.S. Senators, though, rejected the Navy's findings 
and sought to engineer Losey's ouster. Using legislative 
leverage, they effectively forced the hand of the Secretary of 
Navy who revoked Losey's promotion, thereby shortcircuiting a 
storied career.
    This is a tragic outcome that has failed to do justice to 
one of America's top warriors, and the whole ordeal raises 
questions about how the whistleblower process functions. For 
one thing, the main whistleblower complaints that Losey 
violated travel regulations by flying his daughter to Europe 
and that Losey created a, ``toxic command climate'' were both 
factually false. He paid for his daughter's trip and actually 
was entitled to have the trip funded by the Navy. And the 
AFRICOM report compiled by Lieutenant General Ray Palumbo found 
that SOC AFRICOM was,``trending along the path of improvement 
under Real Admiral Losey's leadership, vision, and direction.'' 
Yet the procedural and investigator aftermath of these baseless 
complaints culminated in Losey losing his career.
    Second, the filing of false reports can undermine command 
authority. At a minimum, there is a dispute between the Navy 
and the DOD IG about Losey's--whether Losey's actions were 
legitimate actions undertaken by a military commander. A false 
IG complaint under these circumstances can be used as a weapon 
to make core command decisions a more risky proposition.
    Third, the years' long investigative process left Admiral 
Losey in a perpetual state of uncertainty and was contrary to 
the 180-day mandate. Doesn't an officer who has given so much 
for our country deserve to have matters such as these resolved 
within the timeframe enumerated by the law? How is the IG held 
accountable for consistently failing to abide by the 180-day 
requirement?
    Fourth, much was made over the course of the investigations 
regarding the leadership style of Brian Losey. He certainly 
ruffled feathers at SOCAFRICA, but do we want commanders who 
demand too much or too little? The mark of a good commander is 
whether the mission gets successfully executed, not whether 
everyone's feelings are taken into account.
    Today, we will hear from several witnesses who have 
experience in IG investigations, including the principal deputy 
IG for the Department of Defense, Mr. Fine. We will also hear 
from my colleague, Ryan Zinke from Montana. Ryan is a retired 
Navy SEAL captain who commanded SEAL Team 6 and who has a keen 
understanding of the challenges facing our special operation 
force commanders.
    I thank you all for attending. And with that, I will now 
recognize Ranking Member Lynch for his opening statement.
    Mr. Lynch. Thank you, Mr. Chairman. I would like to thank 
you for holding this hearing to examine the management of the 
military whistleblower reprisal investigations by the 
Department of Defense Inspector General, and I would also like 
to welcome our colleague, Mr. Zinke of Montana, and other 
distinguished witnesses for helping this committee with its 
work.
    I would caution that the full case of Mr. Losey was a--an 
extensive review with about 100 witnesses and I think 300,000--
30,000 pages. So a lot of trees have died, and we have very 
little of the information before this committee. So I will just 
acknowledge and appreciate Rear Admiral Losey's performance in 
Bosnia, in Afghanistan, and Iraq on behalf of this country, his 
courageous service. I cannot pass judgment on the 100 witnesses 
and 30,000 pages of documentations that were put together in 
this investigation.
    And I do have enormous respect for those Senators, that 
group of Senators, Democrats and Republicans, Senator Ron Wyden 
of Oregon, Senator John McCain of Arizona, Senator Jack Reed 
from Rhode Island, who reviewed this and agreed to substantiate 
not the--not the allegations against, you know, improper use of 
resources regarding, you know, flights for family. That wasn't 
the case here.
    The case at heart was whether whistleblowers who came 
forward with information were retaliated as a result of them 
coming forward. That is the core of this. And we don't have 
enough information before this committee to pass judgment on 
that, so I--I appreciate that with--look, I want to do 
something I don't normally do, which is I want to thank the 
Members of the Senate for their good work. I don't do--that is 
probably the first time I have ever done that, but--probably 
won't happen again, but this is a tough case. And I will just, 
you know, let the facts take us where they will in that regard.
    We do have really an abominable case, though, with the 
Department of Defense Office of the Inspector General. We are 
in total agreement on that. We have got cases where there 
appears to be deliberate mishandling of documentation. You are 
right, Mr. Chairman, they have failed miserably in meeting the 
180-day statutory requirement for informing servicemembers of 
their rights and of the status of their case. Instead of 180 
days, the average day over there for review is 526 days, and in 
that case, you know, justice delayed is justice denied for a 
lot of these soldiers who come forward and report misconduct 
and engage in whistleblowing.
    So there is a lot here. There are--there is the case of 
personnel at the DOD Inspector General's office backfilling 
evidence in files after the case is closed, which, you know, 
sounds like some of the things that we have prosecuted people 
for and people are doing jail time for. So there is a lot to 
look at here.
    Again, I appreciate our colleague, Mr. Zinke of Montana 
coming before and testifying before this committee. We really 
appreciate his good work. He's a great Member of Congress and 
has done yeoman's work on this case, and I would like to hear 
him and the other witnesses on this matter.
    And with that, I will yield back the balance of my time.
    Mr. DeSantis. I thank the gentleman from Massachusetts.
    Without objection, the chair would like to introduce into 
the record an op-ed published by William McRaven April 24th, 
2016, ``A Warrior's Career Sacrificed for Politics.'' Without 
objection, so ordered.
    Mr. DeSantis. I will hold the record open for 5 legislative 
days for any members who would like to submit a written 
statement.
    We will now recognize the distinguished witness on our 
first panel. I am pleased to welcome representative at large 
for the State of Montana, Congressman Ryan Zinke. We thank you 
for your participation today. Your entire written statement 
will be made part of the record, and we welcome any oral 
remarks that you may have.

                       WITNESS STATEMENTS

                  TESTIMONY OF HON. RYAN ZINKE

    Mr. Zinke. Well, thank you, Mr. Chairman. Thank you, Mr. 
Chairman, and for the record, I was a commander at SEAL Team 6 
and retired as a commander.
    Good afternoon. Ranking Member Mr. Lynch, great to see you, 
and distinguished members of the Subcommittee on National 
Security. I would like to thank you for the opportunity to 
testify before you today on the important issue of the 
Department of Defense Office of the Inspector General's 
military whistleblower reprisal program. In my testimony today, 
I am going to focus my attention on the DOD IG investigations 
of my friend and colleague Rear Admiral Brian Losey during his 
time as commander of Special Operations Command Africa.
    Beginning with an anonymous complaint in 2011, the DOD IG 
held five separate investigations into accusations of reprisal 
against Rear Admiral Losey, which have taken more than 4 years 
to complete.
    One of these investigations involved an alleged reprisal 
against a suspected whistleblower under his command. During 
this investigation, the office of DOD IG seemed to display a 
blatant mishandling and misrepresentation of evidence, both in 
their preliminary and final report. Following numerous 
witnessed accounts of misconduct by the complaint, by Rear 
Admiral Losey, and others, the security officer for Special 
Operations Command Africa ordered a command directed 
investigation, a CDI, into the complainant's actions.
    During the preliminary report, the DOD IG blatantly 
misrepresented the CID by stating that the investigative 
officers completed the CDI and determined that all 10 
allegations were not substantiated as alleged, a statement that 
was eventually proven to be completely false.
    The CDI found that three allegations were substantiated and 
two of the allegations were partially substantiated. 
Additionally, the CDI recommended the complainant should be 
issued a negative referral on an officer performance report and 
administrative discipline.
    Acting on those recommendations, Rear Admiral Losey 
relieved the complainant of his position and reassigned him to 
a different position in a different geographical combatant 
command that he believed would be commensurate with his rank. 
Although the DOD IG amended their language in the final report, 
the DOD IG still chose to dismiss the complainant of any 
wrongdoing, dismissed the findings and recommendations of CDI, 
and claim that the administrative actions taken by Rear Admiral 
Losey constituted an act of reprisal. In reality, he was simply 
holding a subordinate accountable for his actions following the 
guidance of the report. That is clear.
    In the same investigation, DOD IG claims, during this 
investigation, Rear Admiral Losey specifically accused 
complainant of signing three letters of retention for Air Force 
officers using an autopen. However, the supposed accusation by 
Rear Admiral Losey is not found in any of the DOD IG interview 
transcripts. According to DOD IG, this accusation arose from an 
unrecorded conversation the DOD IG investigator had with Rear 
Admiral Losey outside of the official interview. The DOD IG 
should not be using unrecorded conversations as evidence that 
cannot be collaborated or confirmed. This is an unprecedented 
action and has no legal merit and is completely inappropriate 
behavior by the DOD IG.
    Over the course of five investigations of acts of reprisal 
by Rear Admiral Losey, the DOD IG was in blatant violation of 
military law in Uniform Code of Military Justice. Title 10 U.S. 
section code 1034 clearly states the DOD IG is required to 
complete their investigations in 180 days or less. 
Unfortunately, four out of five investigations completed by the 
DOD IG were a complete disregard for the 180 deadline.
    Additionally, per Title 10, U.S. Code, section 624, an 
active investigation cannot hold statutory promotions up for 
more than 18 months. After being confirmed by the Senate for 
promotion, Rear Admiral Losey was promoted the rank of Rear 
Admiral Upper Half on April 1, 2013.
    On March 31, 2015, the DOD IG informed the Secretary of 
Navy that Rear Admiral Losey was no longer subject to the fifth 
and final investigation, one day shy of a promotion being held 
up by the DOD for 24 consecutive months, far longer than the 
18-month mandate.
    These blatant acts of violations of law by the DOD IG not 
only cheapen the findings of the reports but erodes the trust 
the public and the military have in their government 
institutions. If the DOD IG lacks the ability to simply follow 
deadlines in investigations or use evidence that cannot be 
collaborated, then it raises the question as to what other laws 
and guidelines they simply choose to disregard during the 
course of their investigations.
    In conclusion, I would like to call upon the memo of that 
of former Secretary Chuck Hagel penned in saying: It's central 
to the military justice that those involved in the process base 
their decisions on on their independent judgment. 
Servicemembers and the American people must be confident the 
military justice system is inherently fair and adheres to the 
fundamental principles and due process of law.
    With that, thank you for the opportunity to testify, and I 
look forward to your questions.
    [Prepared statement of Mr. Zinke follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. DeSantis. Thank you. Pursuant to unanimous consent 
agreement, the Congressman will answer questions posed by 
myself and Ranking Member Lynch, and then will be excused for 
his business that he has to attend to. And the chair now 
recognizes himself for 5 minutes.
    Congressman Zinke, can you just provide the context to when 
Losey got to SOCAFRICA? People had talked about it being based 
in Stuttgart, Germany, and some had said that it was kind of 
part of the wine-and-cheese circuit. What does that mean and 
kind of how did he approach getting the command in order?
    Mr. Zinke. Thank you, Mr. Chairman. And I can tell you on 
personal experience, I have known Brian Losey a long time. We 
served together at SEAL Team 6, and he was the red team lead. 
He is hard charging and fair. To say that Africa command is 
wine and cheese--I was stationed in Stuttgart and I believe I 
was gone 250 days out of the year, primarily in Kosovo and 
fighting the Bosnian wars. It is enormous responsibility of a 
commander at AFRICOM. It is far from wine and cheese. I would 
say it is an MRE on a hot rack.
    Mr. DeSantis. In terms of as a commander, when--and you 
have seen in the Navy, I have seen it, people abuse property, 
there are frauds that can be committed, and so obviously those 
things need to be ferreted out. When you have complaints 
against the commander to kind of undermine that authority, if 
you as a commander do need to take action but you have 
complaints that are baseless, in your judgment, but are hanging 
over you, will that chill your willingness, perhaps, to 
exercise your correct judgment?
    Mr. Zinke. You know, as a commander, you are obligated to 
do the right thing. And when you see actions that are either 
illegal or are not in order, you are obligated to take action, 
regardless of consequence. But I do think, under the 
circumstances, when the IG reports, you know, don't follow the 
law, there is a sense that a whistle holder--or whistleblower 
has the upper edge when a whistleblower can hide behind the law 
knowing that the bureaucracy, I think there is a sense of 
should I do the right thing or not? Because the consequences of 
doing the right thing may have a negative consequence, as what 
we see with Brian Losey.
    At the end of the day, I think it is about the sanctity of 
command, is that when you are a commander, you are in charge 
those underneath you, whether it is a civilian or military. And 
when you see something wrong, you are obligated to take a stand 
and take action. But when that's interfered by a bureaucracy or 
a different layer which doesn't follow the law, that erodes the 
entire process of the Uniform Code of Military Justice and the 
sanctity of command.
    Mr. DeSantis. So what are your recommendations then, 
because I think that you are a supporter of having 
whistleblowers within the Department and all the agencies, be 
able to bring waste, fraud, and abuse to light? That's good for 
taxpayers. It is good for the American people. But then you 
also have this other component about how it can intercept with 
command authority. So what, if anything, do we need to do in 
Congress so that this situation doesn't happen again?
    Mr. Zinke. You know, there is absolutely a necessity to 
have whistleblowers protection. If you see something wrong in 
the military, whether you are a commander or a private, you 
have an obligation to make people aware of it and take action. 
I think that is incumbent upon the military force.
    The question really is the IG. Who is he accountable to? Is 
he accountable to Congress? Is he accountable--do we have a 
fair system where you have the three branches of equal and 
separate powers? Right now, I would argue that perhaps the 
system in place is not equal and separate powers.
    So I think holding the IG accountable certainly by Congress 
is a step in the right direction and making sure there is 
provision where acts conducted by a whistleblower or reprisal 
by a commander needs to be independently reviewed in a timely 
fashion. In this case, you know, 500 days, and it wasn't just 
one star Admiral Losey lost. He lost two. And this is an 
admiral that I know personally that has been in the forefront 
of the global war on terrorism. You know, he has served this 
country with great honor in some of the most sophisticated and 
toughest missions this country has ever had to conduct, and yet 
even he is subject to, my judgment, an unfair process.
    Mr. DeSantis. Great. I am about out of time, so I will 
yield, or I will recognize Mr. Lynch for 5 minutes.
    Mr. Lynch. Thank you. And again, I thank the gentleman for 
appearing before the committee and helping us with our work.
    It surely appears that we have done a number of iterations 
to try to revamp and reform the Office of the Inspector General 
at DOD, and it is frustrating beyond our patience here. Some 
have suggested that we need to put sort of an independent or an 
outside inspector general on this case, not the Losey case but 
just the manner in which we're getting information from the 
Department of Defense.
    I am sure that you know, our relationship up here with some 
of these agencies is somewhat adversarial. We try to get 
information from the FBI, we try to get information from the 
CIA, Department of Defense. Oftentime they play the redaction 
game or the waiting game with us, and it is exceedingly 
frustrating for us, representing the American people, when 
agencies act, you know, beyond the control of Congress.
    On the other hand, whistleblowers, some people call them 
our first line of defense. In my opinion, they may be our first 
and last, because a lot of these agencies just refuse to give 
us information. The subpoenas, we play that subpoena game all 
the time, this is the chief investigatory committee in 
Congress, they play that game all the time. It doesn't matter 
what administration, Democrat or Republican, they still--it is 
like pulling teeth to get information from some of these 
agencies. The Defense budget is classified, so it makes it even 
more difficult in that respect.
    What is--what do you think, as a Member and someone who is 
working very hard on this issue, you know, for your friend but 
also for the wider interest of the American people, do you 
think it is appropriate that we might appoint--adopt 
legislation to appoint a special independent inspector general 
on DOD matters to get to the truth of this and to eliminate 
some of the inconsistencies and flaws in the system that may 
have worked against the interests of Rear Admiral Losey in this 
case?
    Mr. Zinke. Thank you. It is a great question. And I would 
say at the heart of the matter, you are absolutely right. Is 
the law itself should be blind, and when an agency can violate 
the law and hide behind a stonewalling, it frustrates us all. 
We just want to get the truth. And maybe the answer is to look 
at not just this IG but across the board. I mean, who does the 
IG report to? Who is he accountable to?
    I think we should look at perhaps having the IGs 
accountable to Congress, because it is only, you know, our--it 
is our ability to be an equal and separate branch of government 
and have some oversight of what these agencies do. I think we 
all share the same frustration is when we ask, we subpoena, we 
beg, is that they oftentimes don't bother to give us the 
information we want or hide it or delay it, on both sides of 
the aisle. And I think what happens is the American public 
looks at this and say, you know, it is corrupt, we are not 
getting the right answers.
    There should be a system in place where truth matters. And 
I would think the IGs themselves may be looking at a dual chain 
of command where the IGs are held accountable to Congress too, 
because we fund it, but it is hard to fund when you don't know 
where money is going or we sit in the--in these committees of 
jurisdiction and we can't get the truth.
    Mr. Lynch. I just want to, just to put a finer point on 
this. We do have some inspectors general that are extremely 
responsive to the committee. I don't want to paint everybody 
with a broad brush, especially with what we see that has been 
going under the previous--we have a new interim or acting 
inspector general, Mr. Fine, over at DOD, who seems to be 
getting things on track. I don't want to paint him with the 
same brush either. But in the past, we have had some serious 
difficulties there.
    But I think DOD has been the outlier in this case. They 
have been the worst in terms of, you know, the DOD operation 
over there within the Office of the Inspector General at DOD. 
That has been a real problem here. I wouldn't want to paint all 
the others with that same broad brush.
    Mr. Zinke. Nor would I.
    Mr. Lynch. My time has expired. I yield back.
    Mr. DeSantis. Well, the chair thanks the gentleman from 
Montana for coming here offering his testimony and answering 
some questions. I know you have other engagements and so you 
are excused.
    And we will do a short recess so that we can prepare the 
second panel.
    [Recess.]
    Mr. DeSantis. The hearing will reconvene. We'll now 
recognize the witnesses on our second panel. I'm pleased to 
welcome the Honorable Glenn Fine, Principal Deputy Inspector 
General at the U.S. Department of Defense; Ms. Lori Atkinson, 
Assistant Director of Defense Capabilities and Management at 
the U.S. Government Accountability Office; and Ms. Mandy 
Smithberger, Director of the Straus Military Reform Project at 
the Project on Government Oversight.
    Welcome to you all. Pursuant to committee rules, all 
witnesses will be sworn in before they testify. So if you can 
please rise and raise your right hand.
    Do you solemnly swear that the testimony you're about to 
give will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Thank you. You can be seated.
    The witnesses answered--all witnesses answered in the 
affirmative.
    In order to allow time for discussion, please limit your 
testimony to 5 minutes. Your entire written statement will be 
made part of the record.
    Inspector General Fine, you are recognized for 5 minutes.

                    TESTIMONY OF GLENN FINE

    Mr. Fine. Chairman DeSantis, Ranking Member Lynch, and 
members of the subcommittee, thank you for inviting me to 
discuss the work of the Department of Defense Office of 
Inspector General regarding military whistleblower reprisal 
investigations.
    Whistleblowers are important to exposing waste, fraud, and 
abuse in government programs, and they are instrumental in 
saving taxpayer money and improving the efficiency of 
government operations. They need to be protected from reprisals 
for their protected disclosures. Without such protections, 
individuals who can help save taxpayer money and possibly even 
save lives may not report crucial information about wrongdoing 
and waste.
    The DOD OIG, therefore, seeks to conduct thorough, fair, 
and timely investigations into allegations of whistleblower 
reprisal. It is a challenging task, particularly given the 
burgeoning whistleblower reprisal caseload and our flat level 
of resources. However, we are committed to this critically 
important mission and we regularly consider how to improve our 
program.
    First, with regard to the stated purpose of this hearing 
and the two GAO reports, it is important to note, as GAO stated 
in its testimony, that the GAO has already closed its 
implemented 15 out of 18 recommendations from both its 2012 and 
2015 reports. The three final recommendations are in the 
progress of being implemented. That is significant progress.
    However, I also want to point out additional steps and 
progress we have made toward improving whistleblower reprisal 
investigations even beyond what GAO has recommended. We 
provided training in whistleblower reprisal investigations to 
our OIG employees, as well as to over 1,000 personnel from DOD 
component IGs and other Federal OIGs.
    We shoot guidance to DOD component IGs to properly notify 
complainants when military whistleblower reprisals will not be 
completed within 180 days. We deployed a defense case activity 
tracking system within the OIG for transmitting, storing, and 
retrieving data and documents and for managing and monitoring 
investigations. We developed an automated alert to help ensure 
compliance with the statutory notification requirement to 
provide servicemembers with accurate information regarding the 
status of their reprisal investigations within 180 days. This 
automated alert was implemented in April 2016, and we are 
providing such notices.
    With regard to the three remaining GAO recommendations, the 
GAO recommended that we regularly report to Congress on the 
timeliness of military whistleblower reprisal investigations. 
We agree with the benefit of providing regular reports to 
Congress on the timeliness of such investigations, and we will 
do so regularly. We will provide the first such report on 
October 31st, 2016.
    We are also taking steps to implement the remaining two GAO 
recommendations, including working with the Secretary of 
Defense to standardize whistleblower reprisal investigations 
throughout the Department.
    In addition to these initiatives, I want to highlight other 
significant improvements we have made to our program. I have 
elevated the importance of the role of our whistleblower 
protection ombudsman by making it a full-time GS-15 position 
rather than a collateral duty. I've made clear that we should 
be expansive in our interpretation of whistleblower protection 
statutes.
    I have promoted the need for greater transparency in the 
outcomes of whistleblower reprisal and other OIG administrative 
investigations. In particular, at my direction, we obtained a 
change to our Privacy Act Systems of Records Notice, and we are 
now proactively releasing the results of investigations when 
the public's right to know outweighs the individual's privacy 
rights even before the receipt of a FOIA request.
    We have decided to handle all DOD reprisal cases stemming 
from reporting of sexual assault. We created a dedicated 
investigative unit to investigate these sexual assault reprisal 
cases. We are instituting an alternative dispute resolution 
program like that administered by OSC to pursue settlement of 
whistleblower cases separate and apart from the investigation 
process. This voluntary program can help reduce the cost and 
time for resolving certain whistleblower cases and it can allow 
limited investigative resources to be allocated to completing 
investigations in a timely manner.
    Finally, I want to emphasize that the critical 
responsibility for the OIG when conducting whistleblower 
reprisal investigations is to follow the facts wherever they 
lead. If the evidence shows that an individual has been 
reprised against, we need to conduct that investigation fully, 
fairly, timely, and substantiate the allegation. By the same 
token, if the evidence shows that the subject of the complaint 
did not reprise against the complainant, we need to find that 
and clear the subject in a timely manner. Both missions are 
important.
    I also recognize that we are likely to receive criticism 
from either or both sides in the case, and the investigation 
regarding Rear Admiral Losey mentioned by Representative Zinke 
is an example of where disagreements can arise. But such 
criticism should not deter us from reaching objective 
conclusions based on the evidence. That is what we strive to 
do, and the measures that I have described are designed to 
improve our processes to meet that goal.
    In sum, conducting whistleblower reprisal investigations is 
a critically important part of the OIG's work, and we are 
committed to continuously improving how we handle these 
challenging duties. That concludes my statement, and I would be 
glad to answer any questions.
    [Prepared statement of Mr. Fine follows:]
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    Mr. DeSantis. Thank you.
    Ms. Atkinson, you're recognized for 5 minutes.

                   TESTIMONY OF LORI ATKINSON

    Ms. Atkinson. Chairman DeSantis, Ranking Member Lynch, and 
members of the subcommittee, thank you for the opportunity to 
be here today to discuss DOD Inspector General's progress on 
improving its whistleblower reprisal program for military 
servicemembers. Let me briefly summarize my statements.
    Whistleblowers play an important role in safeguarding the 
Federal Government against waste, fraud, and abuse, and their 
willingness to come forward can contribute to improvements in 
government operations. However, whistleblowers also risk 
reprisal, such as demotion, reassignment, and firing.
    We found in our recent reports that DOD IG oversight of 
military whistleblower reprisal program faced challenges. For 
example, we found that DOD IG was not consistently or 
accurately recording key dates to track the length of 
investigations, did not report the timeliness of its 
investigations to Congress, had outdated guidance about the 
process, and had not established performance metrics to ensure 
the quality of its investigations.
    My statement today is primarily based on GAO's February 
2012 and May 2015 reports that contain 18 recommendations to 
DOD to improve tracking investigation timeliness and 
strengthening oversight of military service's investigations.
    For this statement, we followed up with DOD IG officials to 
determine what actions they had taken in response to the 
recommendations we made. There are three main points for my 
statement I would like to discuss here.
    First, DOD IG has made progress and taken action to address 
our recommendations to improve its tracking of timeliness and 
to strengthen its oversight of investigations. For example, in 
our recent report, we found that DOD did not meet the statutory 
requirement to notify servicemembers within 180 days about 
delays, and about half of the reprisal investigations closed 
since fiscal year 2013. In response, DOD developed an automated 
tool in its case management system to flag investigations that 
were approaching 180 days.
    Second, DOD has not taken action to regularly report to 
Congress on the timeliness of its investigations nor on the 
frequency and type of corrective actions taken in response to 
substantiated reprisal claims. DOD IG reports some corrective 
actions in its semiannual report to Congress, but that 
reporting does not include all corrective actions nor address 
outstanding corrective action recommendations. We continue to 
believe that without such information, Congress will be 
hindered in its ability to provide oversight of the corrective 
actions portion of the military whistleblower reprisal program.
    I would also like to note that just last week we received a 
letter from DOD IG stating that it plans to begin reporting the 
timeliness of investigations to Congress on a biannual basis. 
We are encouraged by this step and look forward to the first 
report this fall.
    Finally, we found that DOD IG and the military service IGs 
use different terms in their guidance to refer to their 
investigations, which hindered DOD IG's ability to consistently 
classify and assess the completeness of cases during oversight 
reviews. For example, DOD IG investigators miscoded 
approximately 43 percent of the cases that DOD IG closed in 
fiscal year 2013 as full investigations when the service 
reports indicate they were preliminary inquiries.
    In 2015, we recommended that the Secretary of Defense, in 
coordination with DOD IG, direct the military services to 
follow standardized investigation stages and issue guidance to 
clarify how the stages are defined. DOD concurred with this 
recommendation and subsequently updated its guide; however, 
this guide is characterized as best practices. We continue to 
believe that by directing the services to follow standardized 
investigation stages, DOD IG will be better able to ensure 
consistent program implementation and consistent treatment of 
servicemember complaints.
    In summary, Mr. Chairman, DOD has taken actions to 
implement the majority of the recommendations we made to 
address timeliness and oversight challenges we identified. 
Fully implementing our other recommendations would further 
strengthen DOD IG's capacity to assess the quality of military 
investigations and enhance Congress' visibility into timeliness 
as well as corrective actions taken for substantiated 
allegations.
    We look forward to continuing to work with the DOD IG on 
our ongoing work which is focused on reprisal investigations of 
DOD civilians and contractors. That concludes my remarks, and I 
will be pleased to take any questions that you and the members 
of the subcommittee may have.
    [Prepared statement of Ms. Atkinson follows:]
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    Mr. DeSantis. Thank you.
    The chair now recognizes Ms. Smithberger for 5 minutes.

                 TESTIMONY OF MANDY SMITHBERGER

    Ms. Smithberger. Thank you, Chairman DeSantis and Ranking 
Member Lynch for inviting me here today. The Project on 
Government Oversight was founded by Pentagon whistleblowers 
concerned about overpriced and ineffective weapons. From our 
founding, we've been concerned about protecting military, 
civilian, intelligence, and contractor whistleblowers.
    The Department of Defense Inspector General is supposed to 
work with and protect whistleblowers, but a number of reports, 
including the GAO report issued last year, raised serious 
concerns. POGO has also heard directly from whistleblowers 
within DOD IG. To hear from whistleblowers from an IG shop is 
rare, and to hear from so many is unprecedented. An attorney 
who represents several of them would be happy to meet with the 
committee if you'd like more information.
    The concerns of these whistleblowers are echoed in OPM 
survey data. That data shows that a quarter of DOD IG employees 
said they felt that they could not disclose a suspected 
violation of law, rule, or regulation without fear of reprisal. 
Nearly half said they didn't think their leadership maintains 
high standards of honesty and integrity. This is double the 
rate reported by DOD employees. DOD IG should be a model 
agency, and this kind of survey data raises serious concerns.
    In March, we sent a letter to Principal Deputy IG Glenn 
Fine raising concerns about timeliness of investigations, a 
toxic culture towards whistleblowers, and insufficient 
transparency for military reprisal investigations. Our letter 
raised concerns that managers in the IG's administrative 
investigations division, who conduct reprisal investigations 
across the Department, had backfilled case files to try to 
mislead GAO investigators. We've also raised concerns about DOD 
IG's rate of dismissal. DOD IG dismissed without full 
investigation 86 percent of the military whistleblower cases it 
received in the past 4 years. We were surprised that this rate 
was more than double that for the service IGs who are 
traditionally considered to be less independent.
    DOD IG substantiated only 1 percent of the cases during 
this period. Frankly, things are bad for most whistleblowers 
who come to DOD IG. DOD IG substantiated only 7 out of over 
1,300 complaints received from civilians and contractors.
    Those rates are about half of what we have seen for Federal 
employee whistleblowers at the Office of Special Counsel. Low 
investigation and low substantiation rates create the 
appearance the Office is focused on closing rather than 
investigating the cases it receives.
    The high dismissal rates may be in part due to changes by 
DOD IG to reduce cycle time by automatically closing cases 
within 10 days if whistleblowers do not provide additional 
information. While we agree with the committee that timeliness 
is important, we worry this timeline is too short since 
servicemembers may be deployed, disabled, or otherwise limited 
in their ability to access documents in a timely manner. 
Striking the balance between timeliness and quality is 
extremely difficult, and we appreciate that, but both must be a 
focus of this committee's oversight.
    We are also concerned DOD IG is not consistently talking to 
whistleblowers before dismissing cases in violation of their 
own procedures. Talking to whistleblowers not only helps that 
investigation but it also prevents DOD IG from unknowingly 
exposing whistleblowers to additional retaliation by referring 
their complaints back to the entities that they were initially 
reporting on.
    We are also concerned about whether whistleblower laws are 
consistently and fairly applied. A 2011 internal review found 
that DOD IG's own investigators disagreed about the decision to 
dismiss a case 68 percent of the time. Investigators disagreed 
with each other on substantiating cases 47 percent of the time.
    The GAO's review mentioned other problems as well with the 
case management system, specifically finding that key case 
documents were submitted after cases were closed for 77 percent 
of the cases closed in 2013 and that key case variables like 
dates and results to show whether a case was fully investigated 
were changed in 83 percent of the cases in fiscal year 2014.
    The problems may be even worse than those found by GAO 
since DOD IG managers told investigators to stand down on other 
work to backfill cases. Internal emails shared with POGO showed 
that managers instructed investigators to work on or amend 
older information that was the focus of the GAO review and 
raises concerns about those managers since changing these 
records likely has significant impact on the GAO's findings.
    Separately and in the broader picture, POGO is most 
troubled by the role of IG General Counsel Henry Shelley. Since 
sending our letter in March, OSC has found there is a 
substantial likelihood of truth to allegations the IG 
improperly destroyed files in a major whistleblower case. These 
allegations are now being investigated by the Inspector General 
at the Department of Justice. This is only the latest of 
various allegations that have come to public attention, that 
Mr. Fine's top legal advisor engages in a systemic practice of 
improperly interfering with and undermining personnel 
investigations.
    For example, a POGO investigation found that as--a top 
legal advisor to one of Mr. Fine's predecessors, Mr. Shelley 
helped direct a process that permanently suppressed the 
findings of a team of IG investigators regarding top officials 
of the Department of Defense, including the Secretary of 
Defense.
    In my written testimony, I've included a list of 
recommendations that POGO believes would enhance and strengthen 
military whistleblower protections, which I will be happy to 
discuss during Q and A.
    Whistleblowers who report concerns that affect our national 
security must be lauded, not shunned or, worse, harmed, and the 
law must protect them. The perceived and real failures of the 
DOD IG to act as a check on violations of law should be of 
grave concern. Thank you.
    [Prepared statement of Ms. Smithberger follows:]
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    Mr. DeSantis. Thank you.
    The chair now recognizes himself for 5 minutes.
    So, Mr. Fine, there's statements made here that there's
    so many of these cases, very few of them are substantiated. 
I think the implicit criticism perhaps from our witness here is 
that you guys just aren't doing your job, that there are these 
cases that are just not been substantiated. And that may be the 
case, but I also look at it and say: Well, maybe those ones 
that are dismissed are being dismissed properly and that we 
have an awful lot of people that are filing these that can't be 
substantiated.
    So how would you respond to the ratio issue that you get a 
lot of complaints, you don't substantiate very many?
    Mr. Fine. Well, that's a very good question, and I 
appreciate the opportunity to answer that question. First, with 
regard to the data. I don't think the data is really accurate, 
because when you talk about 86 percent being substantiated, 
POGO includes in that the amount that we were referring to the 
services for them to investigate, so not 86 percent are not 
dismissed. A big portion of them are referred for 
investigation.
    As I said in my statement, our job is to take the facts 
wherever they lead, and if it is substantiated in our view, we 
should do that, and if it's not, we shouldn't. And we are going 
to get criticized from both sides. You're too hard, you're too 
soft. You're doing a whitewash, you're doing a witch hunt, 
you're a junkyard dog, you're a lapdog. You get that often in 
the same case.
    We can't let that deter us. We have to look at the evidence 
and look at the facts, and we take each case on its merits and 
we try and follow them through.
    It is a challenging task. It is a challenging task to 
determine if there really was retaliation or whether it was an 
unfair allegation of reprisal. And we look for the evidence and 
we take it where it leads. That's our job, and that's what I 
try to describe how we're trying to improve our processes.
    Mr. DeSantis. And part of the reason why you may get 
criticism from both sides is because this process of 
substantiation, there's a lot of subjectivity to that. 
Commander Zinke was very critical of the report involving Rear 
Admiral Losey. I have--I have read those reports. I have not 
read some of the other cases that have been cited here, but I 
will say that it struck me, looking at Losey's case, that you 
had the Navy investigated, they said that there was, you know, 
legitimate command reasons to take some of these decisions, 
that DOD IG obviously came to different conclusions in some of 
the findings. The chief of naval operations took all that into 
consideration and said that while he should not have been 
complaining about the initial false report, you know, his 
actions were justified.
    And I guess my question is, is with the level of 
subjectivity, as I read the report for DOD on Losey, for 
example, I mean, there were certain decisions that were made 
that were very much just reading it in a light that was 
probably least favorable to him.
    I mean, for example--and I'm not going to name the 
complainants, but one of the complainants testified that Losey 
told him that he did not suspect him of being the original 
whistleblower. When Losey testified, he said he did not suspect 
the complainant from being the original whistleblower, but the 
complainant said: Well, his body language suggested that I 
was--that he thought I was it, and the IG basically concluded 
that he was--that that was one of the reasons why he was being 
found.
    There's another issue of about one of the admin officers 
was given not the highest but the second highest grade in terms 
of his evaluation, and the IG report was critical of the 
commander for not doing an improvement plan. But a lot of 
people I've talked to in Defense, they would say that that's 
too high a rating to necessitate an improvement plan.
    So I guess the question is, is how do you ensure 
objectivity and a consistent standard when you're determining 
what is substantiated and what is not?
    Mr. Fine. Well, you look at the standard and you apply that 
standard to the facts, and you don't rely on one piece of 
evidence, whether it's body language. We do report what people 
say, but that's not the significant piece of evidence that 
would conclude us--that would allow us to conclude that there 
was retaliation. We look at all the evidence. We put it in the 
report so that people can make their own judgments.
    We did look at all the evidence in this case. It was a case 
before my time, but I looked at it, and it seemed a pretty 
strong case to me, including the language that Admiral Losey 
had repeatedly speculated on who made the complaint against 
him, focusing on the complainants and a few others, asking his 
staff to find out who made the complaint, and then saying he 
would find out why they did this and cut the head off the snake 
and end it. And that's what the evidence indicated happen. Now, 
I don't want to necessarily----
    Mr. DeSantis. Well, one witness said he said that, but he 
denied saying that, correct?
    Mr. Fine. He denied saying that, and other witnesses said 
that he asked to find out who did it and asked them to go find 
out who did it and that they actually did, and they told him 
let it go, as a commander you're going to get complaints, just 
let it go, but he didn't.
    And we talked about the CDI, you know, as Representative 
Zinke talked about. Well, the CDI was initiated after he had 
taken actions against the complainant. And if you read the CDI, 
it does not fully support those actions.
    And so we--you know, it is a hard thing, and there are 
professional disagreements. There is often disagreements within 
our own organization. That's why you need to review it and 
carefully assess the evidence and reach appropriate conclusions 
and then to lay it out for people. Lay it out for people so 
that they can make their own determinations. I think that's the 
most important thing.
    You may disagree, others may agree. I think it's important 
that we fully and fairly investigate it, and I think we did in 
this case.
    Mr. DeSantis. What about the--using whistleblower 
complaints in order to resist changes in a military command? I 
think this is a different issue than we would face in virtually 
all the other whistleblower complaints and other agencies, and 
I realize there's a different standard for military complaints. 
But here, you had an initial complaint against Admiral Losey 
that was just factually false.
    Mr. Fine. Right.
    Mr. DeSantis. He paid out of his own pocket for his 
daughter. But even if he didn't, he still would have been 
following the law. And then I would say the complaint about 
there being a toxic climate is negated by the review that had 
been done by SOCAFRICA--or by AFRICOM about what they were 
doing to change the culture.
    So what--is there a penalty if somebody is using that in an 
inappropriate way? And I just--I know with the numbers--and I 
think you made a good point about that, but clearly there are a 
significant number of complaints that are made that are just 
not substantiated. And while we want to root out waste, fraud, 
and abuse, I don't want to burden a military commander of 
having to fend off some of this stuff if there's no underlying 
basis to it.
    Mr. Fine. Right. And they ought to then let the 
investigators do their job without conducting their own 
investigation, without trying to find out information----
    Mr. DeSantis. I understand that. But what--is there any 
problem with somebody using this inappropriately to blow a 
whistle when there's really no foul created?
    Mr. Fine. If one can show that they did so without good 
faith and knowing that it was intentionally false, yes, action 
can be taken. That's a hard standard.
    Mr. DeSantis. What action would be--that would be an 
administrative action?
    Mr. Fine. That would be an administrative action, yeah.
    Mr. DeSantis. Okay. My----
    Mr. Fine. That's a hard standard to prove, I got to tell 
you that, and you do not want to, in my view, start chilling 
whistleblowers from bringing forward good faith allegations, 
even if they're not true. If they--you know, if they have a 
good-faith basis for it, they ought to be able to come forward, 
and we ought to investigate the underlying thing, and their 
ability to do that shouldn't be infringed upon.
    Now, I understand that that's a difficulty, and we have it 
in our own organization, as was pointed out, and we seek to 
have full and fair investigations of it. You know, POGO was 
talking about the allegations against Mr. Shelley. Mr. Shelley 
adamantly disputes them, adamantly. Came to me, and instead of 
sweeping it under the rug, I decided, you know what, let's get 
an outside investigation, an independent investigation of this, 
and we'll take it wherever it leads, and we'll address it. And 
I think it's unfair to think that he's guilty before it's done, 
but it's also important to investigate it, and that's what we 
do, and it is difficult, but that's--that's what you have to 
do, and that's what we did in this case. And so we will wait 
the outcome of the investigation and take appropriate action, 
whatever it finds.
    Mr. DeSantis. My time is up.
    The chair will now recognize the ranking member, Mr. Lynch, 
for 5 minutes. If he needs more, he can take more.
    Mr. Lynch. Okay. Thank you, Mr. Chairman.
    The GAO report indicates that the rate of dismissal, 
though, at the DOD IG is far in excess of what it is for other 
services, 85 percent of the cases dismissed. So--and I'm 
reading from the GAO report. They compared your--not yours, 
because you weren't there, you weren't in that position, but 
your predecessor.
    The DOD IG closed 364 senior official cases, so we're 
comparing senior officials when they're charged versus, you 
know, rank and file. But in those cases where senior officers 
had been--or senior officials had been complained of, in your--
in your investigations, you only investigated 27 out of 364 and 
then substantiated only 5, but you closed 364 cases.
    In contrast, when we look at the other services and 
component IGs, they closed 250 senior official cases. They 
investigated all 250 of them and substantiated 90. So it just 
doesn't look right in terms of the mix there.
    Mr. Fine. Can I, Congressman? Sorry.
    Mr. Lynch. We're going to give you plenty of time.
    Mr. Fine. Sure.
    Mr. Lynch. I've got a couple of other things here I want to 
ask you as well.
    The practice of backfilling, adding--you know, this the 
case management system, adding documents after the case has 
closed or in advance of the GAO POGO's investigation, sort of, 
you know, adding evidence to the case after the verdict has 
already been rendered. You know, when you took over, did you 
tell people you can't do this? Did you explain to people that--
--
    Mr. Fine. Congressman Lynch, when I took over, I wanted to 
get to the bottom of this because I heard this allegation, and 
the reality is it was not backdating in the sense that you're 
talking about it. What it is, we were transitioning from a 
paper-based system to an electronic system, and we had to put 
that information in there, in the electronic system. There were 
also additional fields.
    Mr. Lynch. But here's the deal.
    Mr. Fine. And we let----
    Mr. Lynch. Here's the deal.
    Mr. Fine. --GAO know about it.
    Mr. Lynch. You dismissed this case, though.
    Mr. Fine. Which case?
    Mr. Lynch. This case right here, figuratively.
    Mr. Fine. Okay.
    Mr. Lynch. You dismissed this case. It was not warranted.
    Mr. Fine. Right.
    Mr. Lynch. Okay. Then you got--you got evidence after--
after the case was closed and you put the evidence in there.
    Mr. Fine. No. We had evidence in there and then we put it 
into the database system, all of it. But we let GAO----
    Mr. Lynch. And you put it back----
    Mr. Fine. We let GAO know it, and they were aware of it, 
and this is in accord with their data reliability thing.
    Mr. Lynch. Let's talk to GAO then. Let's ask POGO. Explain 
to me this--I read both reports, GAO and POGO report, and it 
appears to me that it alleges that there's backfilling of 
documents to files and they're being--also being mislabeled as 
investigative when they weren't investigative.
    So let's take those two instances where there's 
backfilling, that's how it's described here, of new documents 
and files after they're dismissed, and secondly, there are 
cases that are labeled investigative when they're really not.
    Ms. Smithberger. So for the first--first, I'll talk about 
the mislabeling the investigations, and that gets to the heart 
of our recommendation about standardizing the guidance for the 
military services. And we think that is--was part of the 
problem, because when the DOD IG went in to oversee, there was 
differences in how the services were doing this, and therefore 
it led to the 43 percent that I pointed out being mislabeled as 
full investigations when they were actually preliminary 
inquiries.
    So we continue to believe that by the IG working with the 
Secretary of Defense to standardize the guidance so that would 
help--better help resolve that problem.
    Mr. Lynch. You think so, Mr. Fine?
    Mr. Fine. Absolutely.
    Mr. Lynch. Okay.
    Mr. Fine. That was the issue, that they had preliminary 
investigation that took forever, and our folks----
    Mr. Lynch. Right.
    Mr. Fine. --had to figure out where to put that in.
    Mr. Lynch. Right.
    Mr. Fine. It definitely would help if we had 
standardization.
    Mr. Lynch. So the statute says 180 days, and we're doing 
526 or something like that?
    Mr. Fine. Well, the statute says we have to--if we don't 
complete the investigation within 180 days, provide a notice to 
the complainant----
    Mr. Lynch. Right.
    Mr. Fine. --and responsible management officials that we 
haven't completed it and the reasons why. It doesn't say you 
have to complete it within a----
    Mr. Lynch. Right, right. But you got to let somebody know, 
right?
    Mr. Fine. Exactly, and we weren't doing that. We are doing 
that now.
    Mr. Lynch. Okay.
    Mr. Fine. We have an automated alert. This is based on 
their recommendation.
    Mr. Lynch. All right. Let's go to--let's go to backfilling. 
And I appreciate that, Mr. Fine. I don't intend to--I only have 
limited time.
    Mr. Fine. Sure.
    Mr. Lynch. so I don't mean to cut you off.
    Mr. Fine. I understand.
    Mr. Lynch. But Ms. Smithberger or Ms. Atkinson, can we talk 
about backfilling, about documents going into the files?
    Ms. Atkinson. Yes, sir. Based--when we reported in our 2015 
report was that DOD IG personnel uploaded key case documents 
after cases closed in 77 percent of the cases closed for fiscal 
year 2013. DOD IG staff made changes to case variables after 
cases were closed in 83 percent of the cases closed in fiscal 
year 2013. And this was based on our case file review that we 
did when we took a random sample of cases and had analysts go 
in and review and look for certain documentation and so forth.
    Mr. Lynch. Okay. Do you think they were trying to mislead 
Congress or mislead GAO?
    Ms. Atkinson. Sir, I can't speak to the intent or----
    Mr. Lynch. All right. Ms. Smithberger, can you speak to 
that?
    Ms. Smithberger. The whistleblowers that we have spoken to 
do feel like the intent was to miss the GAO.
    Mr. Lynch. Okay. All right. I'm short on time. Let me 
just--let me just say this in closing. I don't expect the 
Department of Defense to be run like a charm school. I 
understand the culture there, it's by rank, it's by command, 
there's a--you know, there's a healthy impetus to follow 
orders. But in cases like this where we may have people 
engaging in illegal or certainly misconduct on some level, you 
do want to have your personnel feel that they can report, that 
they can blow the whistle, and we want to protect that right 
because, as I said in my opening statement, there's a lot of 
concealment going on. It's very difficult to get information. 
So we rely--unfortunately, we have to rely heavily on 
whistleblowers to tell us when things are going wrong at some 
of these agencies.
    With that, I yield back the balance of my time.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes the gentleman from Georgia, Mr. 
Hice, for 5 minutes.
    Mr. Hice. Thank you, Mr. Chairman.
    Mr. Fine, let me begin with you and just try to get some 
clarification.
    According to the testimony that we've been given, the DOD 
IG automatically closes a case within 10 days. Is that not 
right?
    Mr. Fine. That's not right. What the issue is, is if we are 
trying to get in touch with the complainant and the complainant 
drops off the screen and we can't get in touch with them, we 
tried several times again and again, finally, we'll send them a 
letter, a 10-day letter saying if you don't get back to us, 
we're going to close the case. We issued one 27 times in 4 
years, 27 times in 4 years. And in those cases, 8 of them 
responded and we continued with the case, and the others never 
responded and we closed the case.
    It is a prudent management tool if after a long period of 
time the complainants do not contact you, do not respond to 
your calls, it's important to close that case if they're not 
willing to go forward and----
    Mr. Hice. So how long do they have before they get the 10-
day letter?
    Mr. Fine. They have at least several times where we contact 
them repeatedly and ask them to get in touch with us. And if 
they persistently do not get back to us, not in a short period 
of time but over an extended period of time, we'll eventually 
send a letter saying, look, if you don't get back to us----
    Mr. Hice. So what kind of time do you give them before--in 
between letters? In other words, if someone is deployed----
    Mr. Fine. Yes.
    Mr. Hice. --if someone's engaged or something, what----
    Mr. Fine. We absolutely are aware of that and give them 
time and give them--you know, I can't give you an exact figure, 
but our investigators know to give them significant time. And 
it's only when they repeatedly won't get back to us.
    Mr. Hice. So you don't have a policy as to how--so who 
determines how frequently you try to reach out to them?
    Mr. Fine. We're constantly reaching out to them, because 
without them, we can't go forward.
    Mr. Hice. All right. You're constantly, what does that 
mean? I'm trying to wrap my mind around this. My understanding 
was 10 days. You're saying 10 days is the final----
    Mr. Fine. The final----
    Mr. Hice. --after multiple previous attempts.
    Mr. Fine. Exactly.
    Mr. Hice. So what's the timeframe in which these attempts 
are made?
    Mr. Fine. You know, I can't give you a specific number. I 
don't have a metric, but I believe it's months.
    Mr. Hice. Okay.
    Mr. Fine. And if somebody then says, You know, I was 
deployed, we will reopen that case. You know, that's not an 
issue.
    Mr. Hice. Ms. Atkinson, do you believe there's room for 
improvement on this, just what appears to me a rather nebulous 
policy?
    Ms. Atkinson. We do not specifically look at that, but I 
will tell you that when our--in our ongoing work looking at 
civilians and contractors, we are going to be looking at 
dismissals and substantiation rates, and so we may have more 
insight into that.
    Mr. Hice. Okay. Let's go back, Mr. Fine, to you again, came 
up a moment ago about standardization. Where are we in that 
process?
    Mr. Fine. Well, we are working with the service IGs to try 
and implement standardized processes. They all--not all but 
some of them do it different ways, preliminary investigations, 
how they do things. We believe it's appropriate to have a 
standardized process that will allow us to do things in a 
timely way and in a standardized way.
    Having said that, the recommendation from GAO was to have 
the Secretary of Defense issue a directive to ensure that that 
happens, and in some sense, that's the only way it will happen, 
and we are willing to work with the Secretary of Defense to try 
and pursue standardization. That will take time, as you know, 
probably know. Getting a directive in the Department of Defense 
is not a easy thing. But in the interim, we are trying to 
voluntarily get them to standardize processes, and we have a 
working group set up where we meet with them and try and 
implement that.
    Mr. Hice. Do you think it'll happen?
    Mr. Fine. I hope so. I think so.
    Mr. Hice. Ms. Atkinson?
    Ms. Atkinson. We certainly hope so. We think that's a key 
recommendation. And they have been working with a working group 
and they did change the guide, but the guide again is best 
practices, and we do believe it should be directed.
    Mr. Hice. Do you believe we can make that happen?
    Ms. Atkinson. I hope that they can.
    Mr. Hice. Okay. All right. So you have multiple attempts to 
reach out to these servicemembers. Right now, the reprisal 
investigation is--it was 526 days. Now it's been shortened.
    Mr. Fine. Right.
    Mr. Hice. But technically, the statute says 180 days?
    Mr. Fine. Well, the statute says if you don't complete it 
in 180 days, you have to notify them that it's not completed 
and about the delay, so it doesn't require you to complete it 
within 180 days. Having said that, we do agree it should be 
shortened. We are seeking to shorten it.
    In fiscal year, I think, 2014, it was over 500 days. In 
fiscal year 2015, it was 300 days for our investigations. 
That's still too long. We're trying to shorten it.
    Mr. Hice. So there's no consequences except to the 
serviceperson for this going far beyond 180 days. And you can 
continue to prolong it. So long as you keep notifying, there's 
no dead end to this thing.
    Mr. Fine. Well, we don't--yes. We intend to do this as 
quickly as possible. The consequences are we're held 
accountable in these kinds of hearings. And I would say this 
too. I wrote it in my written statement. You know, there is a 
burgeoning case load in whistleblowers. It is dramatically 
increased. We have not dramatically increased our resources. We 
are doing more with less.
    I believe, as an IG, we ought to be commensurate with the 
Department of Defense. If they grow, we ought to grow. If 
they're stable, we ought to be stable. If they're constricted, 
we ought to constrict.
    If you look at the last 20 years, the Department of Defense 
has grown dramatically. We haven't. If we had--if we had simply 
kept pace with them, we would have 500 more employees. We would 
be able to do these with more resources, rather than giving our 
investigators lots and lots of cases to work on, and I think 
that would inure to everybody's benefit, everybody's benefit.
    Mr. Hice. Mr. Chairman, my time has expired.
    And I appreciate that, but it seems to me that the 
servicemen and -women are suffering the longer this goes on. 
They are the only ones suffering. Everyone else gets a pass, 
but they are the ones that take a kick in the gut.
    And I yield back.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes the gentlewoman from Michigan for 
5 minutes.
    Mrs. Lawrence. Thank you. The importance of whistleblowers 
cannot be overstated. Whistleblowers in the Department of 
Defense has the unique ability to expose fraud and waste in an 
agency that spends over $500 billion of taxpayer dollars a 
year, and that accounts for almost a third of the programs on 
the GAO high risk list.
    More importantly, DOD whistleblowers save lives. I want to 
be very clear about that. So this discussion we're having is 
very serious. Courageous whistleblowers like Mr. Coleman or Mr. 
Gayl, both Marines, come forward often at a great personal cost 
in order to protect others.
    Ms. Atkinson, GAO has remarked that the DOD's culture does 
not encourage whistleblowing. Can you explain why?
    Ms. Atkinson. We reported in our 2015 report a statistic 
from the OPM's Federal Viewpoint Survey that talked about that, 
and that was the--where that information came from, and it 
was--there were two statistics, and one was for overall 
servicemembers, and I think there was something like one in 
five servicemembers felt that they would be able to provide a 
complaint. And then the second one was a higher percentage, and 
that was toward--for members of the Office of the Inspector 
General. So that was not an initial--original GAO survey. That 
was in the information that we found in an OPM survey.
    As far as the culture and so forth, you know, we think that 
continued oversight of the program is important, reporting to 
Congress on timeliness and corrective actions, monitoring 
their--the initial performance metrics that they've established 
for timeliness and completeness, and then, of course, 
importantly, reporting the corrective actions, because 
corrective actions can demonstrate the results of the 
investigations and offer hope to future whistleblowers and 
deter future incidents maybe.
    Mrs. Lawrence. I have a short period of time. Mr. Fine, 
having worked in HR, you whistleblow when you're not heard. You 
whistleblow when there is a culture that when something is 
wrong, you're just supposed to do it and not have input.
    Mr. Fine, just briefly, because I'm limited, tell me why 
whistleblowing has become a protected and defined activity or a 
culture that we are now having this hearing. Can you address 
that? What is the culture that we now have to develop processes 
to protect whistleblowers versus a culture that embraces the 
ability to empower people to have input on their jobs?
    Mr. Fine. Well, I think the idea would be to have people 
have input in their jobs and feels if they can go to their 
management, their management would take appropriate action. And 
that is what managers and leaders strive to do. Is it always 
possible? I don't think so. And I also think that some 
whistleblowers don't believe that their management will take 
appropriate action or believe it's appropriate to bring it to 
other people's attention.
    Mrs. Lawrence. Is there any action to address that?
    Mr. Fine. Well, we do have whistleblower ombudsmen who 
educate people about their rights and responsibilities, both 
the rights of whistleblowers to be protected, the 
responsibilities of managers not to reprise against them, where 
they can go to provide whistleblower disclosures, what the 
processes are. I think it is important to educate people about 
the overall environment for whistleblowers.
    Mrs. Lawrence. Ms. Atkinson, which of your recommendations 
is tailored to get the high number of dismissals back in line 
with other service IGs?
    Ms. Atkinson. To get the high number of dismissals back in 
line? I think that like----
    Mrs. Lawrence. Because you said it was higher than others. 
So what is the plan?
    Ms. Atkinson. That's actually POGO.
    Ms. Smithberger. If I may interrupt.
    Mrs. Lawrence. Okay.
    Ms. Smithberger. Let me provide some clarification. So 
we're not necessarily sure what the right rate of dismissal 
should be, but we think that it would be good to do another 
review to make sure that DOD IG is consistently following its 
own policies and the law to appropriately dismiss cases when 
they should be dismissed and appropriately investigating cases 
when they should be investigated.
    Mrs. Lawrence. Mr. Fine, will you commit to us today that 
you will improve the current problems? We have--we seem to be 
real good at outlining what the problems are with this 
whistleblower reprisal investigation. You did state that you 
feel that there is an issue with resources. With that being 
heard, what is your commitment?
    Mr. Fine. Oh, yes. We are trying, and I can commit to you, 
we are seeking to improve the processes with all the measures 
that I described in my statement. I do think it is important, 
and we are continuously seeking to improve.
    Mrs. Lawrence. Thank you. I yield back.
    Mr. DeSantis. The gentlewoman's time has expired.
    Ms. Smithberger, what is the right percentage of people? I 
mean, I just--I don't--I don't understand--I mean, the military 
is a different culture. Who's to say that it should be the same 
as the others?
    Ms. Smithberger. It might not be. We just want to make sure 
that everyone is consistently following the same law. We get 
concerned when we see substantiation rates that are as low as 1 
percent or less than 1 percent, because that seems to send the 
message that there aren't really any credible whistleblowers 
that have been reprised against, and we see that those numbers 
are much lower than we've seen for OSC.
    One of the great things that DOD IG does is that they do 
report what happens to all of these cases. We wish that all of 
the IGs would do so so that we could ask the same kinds of 
questions, and we really appreciate their transparency on this.
    Mr. DeSantis. All right.
    The chair now recognizes Mr. Duncan for 5 minutes.
    Mr. Duncan. Thank you very much, Mr. Chairman. I have in 
front of me an article from the New York Times, slightly over 3 
months ago, and it says: Whistleblower Beware. And it starts 
off and it says: Should it be a crime to report a crime? Many 
top officials in Washington seem to think so, at least in the 
case of Edward Snowden.
    And it goes on to say that Secretary Clinton said that 
Edward Snowden would have gotten all the protections of a 
whistleblower, but it says, Thomas Drake would disagree, so 
would John Crane. And this article tells how these cases were 
all intertwined.
    It says--and the Federal judge handling the case against 
Drake blasted prosecutors for putting Mr. Drake through 4 years 
of hell, said Mr. Snowden followed the Drake case closely in 
the news media and drew the obvious conclusion, going through 
channels was worse than a dead end. And then it tells how Mr. 
Crane was tied into that because it says Mr. Crane argues that 
the Defense Department broke the law in Mr. Drake's case. And 
then he was--he was dismissed.
    So I would like to ask all three of you or any of the three 
of you who would like to comment, if you have studied that 
situation, how those cases are all tied in together and what 
you have to say about these really accusations in the--in this 
New York Times story that it's a dangerous thing for a 
whistleblower to come forward.
    Mr. Fine, we'll start with you.
    Mr. Fine. I think that I don't want to comment on the Drake 
case or the Crane case. Some aspects of it are still open and I 
don't want to impair that in any way. I will say that it is 
important that whistleblowers believe and that they know that 
if they do come forward, that they will be protected from 
reprisal and that there will be a full and fair and timely 
investigation done of that. That's an important issue. That's 
what we're striving to do. That's why we're striving to improve 
our programs.
    Mr. Duncan. All right. Any of the--do the--do the 
gentleladies here know, are you familiar with these cases that 
this New York Times article has written about?
    Ms. Atkinson. No, sir. We did not look at specific cases. 
We did more a case file analysis and made generalizable 
observations about the process and guidance and stuff. Related 
to this, I guess, would be that we did report in 2015 that the 
substantiation rate for both DOD and IG and the service 
investigations were both under 10 percent. And this is also 
related to, I think, the importance of our recommendation about 
the need to report corrective actions and how that can benefit 
whistleblowers.
    Mr. Duncan. All right. Ms. Smithberger?
    Ms. Smithberger. The Drake case did send a message to a 
number of whistleblowers that if you go through the right 
channels, you're still likely to have your career ended as a 
consequence, and so--and people refer to that case frequently.
    In particular, there are concerns about DOD IG's role in 
turning over Drake, to recommend him being prosecuted under the 
Espionage Act. So DOD IG has a very difficult role in both 
trying to enforce laws and work with whistleblowers, but we do 
think that that created a chilling effect.
    Mr. Duncan. Mr. Fine, do you think, is there anything at 
all that you think the Department of Defense could or should be 
doing to make the--or to give encouragement to whistleblowers 
to come forward that they're not doing now?
    Mr. Fine. I think along the lines of what we've been 
talking about, to the extent we can standardize processes, we 
can improve programs, we can provide adequate resources so that 
the cases will be done in a more timely fashion, not only 
talking about resources for us but for the service IGs. Service 
IGs do a significant number of these cases. And when they're 
not adequately resourced either, then the cases languish, and 
it's a difficult task and challenge for them.
    I think reflecting the importance of whistleblowers and the 
need for everybody, both the complainants as well as the 
subjects whose careers are on hold while the case is going, it 
is important to do these in a timely way and it's important to 
adequately resource them. So I think that's a critical factor.
    Mr. Duncan. All right. Mr. Chairman, I would like to submit 
this article from the New York Times called, ``Whistleblower 
Beware,'' to be entered into the record at this point. And I 
yield back.
    Mr. DeSantis. Without objection, it shall be so ordered.
    Mr. DeSantis. The chair now recognizes the gentleman from 
Florida, Mr. Mica, for 5 minutes.
    Mr. Mica. Thank you. Thank you, Mr. Chairman.
    Mr. Fine, how many whistleblower reprisal investigations 
have there been, like maybe 2015, 2014, 2013, do you know, each 
year?
    Mr. Fine. I don't know the exact numbers. We can certainly 
get you the statistics. There are hundreds of them, hundreds of 
them.
    Mr. Mica. Every year?
    Mr. Fine. Yes. If you count the ones done by DOD IG as well 
as the ones we refer to the service IG.
    Mr. Mica. Is there one service that sort of stands out? 
Most of them are not----
    Mr. Fine. They all have them.
    Mr. Mica. --equal.
    Mr. Fine. They all have them.
    Mr. Mica. And then I saw the time of resolving these cases, 
and some of that's been discussed. They put in law that--I 
guess it is in law the 120--is that 120-day goal----
    Mr. Fine. 180.
    Mr. Mica. --or by rule?
    Mr. Fine. It's a law. After 180 days, you have to notify 
the complainant, if it's going to be delayed beyond that, as 
well as the responsible management officials to provide 
notification.
    Mr. Mica. Okay. So you have hundreds of cases. How many 
staff do you have hearing the cases?
    Mr. Fine. Sir, we have increased the staff, if you look at 
the last several years. We have around 50 staff who do 
whistleblower reprisal cases.
    Mr. Mica. So 50 staff and a couple of hundred cases a year. 
Is that----
    Mr. Fine. Not a couple hundred for us, but 50 staff to do--
well, to do the cases themselves and then the oversight of the 
service IG cases when they come in--when they finish their 
investigation and send it to us. And then the service IGs have 
staff as well.
    Mr. Mica. One of the things I read about is the reprisal 
investigations, there's--for each of the services, there may be 
different procedures. There's varying procedures, and some have 
recommended standardization. Maybe you could tell us what is 
wrong with having these variations, and then do you make the 
case for standardization based on those?
    Mr. Fine. There are a couple of reasons I would make the 
case for standardization. One, I think, within the Department 
of Defense, you'll have a single process, and it shouldn't vary 
whether you are in the--whether in the Navy, the Army, Air 
Force, or civilian.
    Mr. Mica. Could that be done administratively through the 
Secretary?
    Mr. Fine. Yes, the Secretary.
    Mr. Mica. Okay. So the authority is there to do this, to do 
the standardization?
    Mr. Fine. Yes. And the GAO recommended that we work with 
the----
    Mr. Mica. And you recommended.
    Maybe, Mr. Chairman, we could also send a letter after this 
hearing saying that the GAO has recommended and this hearing, 
the witnesses we had recommend, and we find there would be 
benefit and then some fairness to everybody. It sounds like 
there's disparity in, again, these approaches.
    Is there any--also, when you have a reprisal investigation, 
is there any penalty against the accuser if the reprisal--you 
know, the person going after them, they find it is a false or 
there's no merit to the claim?
    Mr. Fine. Not if the allegation was made in good faith, if 
they had a good-faith belief in the allegation.
    Mr. Mica. Have there been any cases where you've gone back 
after these people?
    Mr. Fine. I don't know the answer to that in recent times 
whether we've gone after people, but we--I think it would, you 
know, have a pretty significant chilling effect if you started 
investigating the complainant.
    Mr. Mica. Well, again, it's--you don't want a chilling 
effect, but you don't want to use that--Mr. Duncan just read a 
case, and I read this, is it L-O-S-E-Y, the Brian Losey----
    Mr. DeSantis. Losey.
    Mr. Mica. --Losey, yeah, case, what he went through. And 
basically, they ruin people's career. And then he got ganged by 
Congress on top of it, helping to ruin his reputation by some 
people he was trying to do the right thing, as I understand, in 
his command.
    But you want to encourage whistleblowers, but again, there 
has to be some equity in the process for those who come as 
false accusers. I'm not sure how you craft that. Would you 
think that something like that would be beneficial?
    Mr. Fine. I think the law, as it exists, is appropriate, 
that is, as long as someone makes a good-faith belief, a good 
faith--has a good-faith belief that the allegations they 
brought forward are accurate and true. We should not hold them 
accountable.
    If we then determine, well, they weren't accurate or the 
subject did not reprise against them, because I think that 
would have an unbelievable chilling effect on other people.
    Mr. Mica. Okay. And then we have Ms. Smithberger. And I saw 
in some of your testimony that your group pointed out that 
DOD's IG dismissal rate of 84.6 percent for whistleblower 
reprisal cases is more than double of that of inspectors 
general for the services for the same type of cases.
    Can you elaborate on that? That does seem like a very high 
rate, and what--what else have you found--how--what would you 
attribute that to? Just--it does stand out. It's very----
    Ms. Smithberger. Yeah. And we think that there needs to be 
more evaluation as to why that's occurring, but our concern is 
that it creates the appearance that DOD IG has a higher--is 
more likely to dismiss a case than to investigate a case.
    Mr. Mica. And did you--has your review found that to be the 
case or is----
    Ms. Smithberger. We have. So specifically--and all of this 
data comes from DOD IG's semiannual reports to Congress. We 
have found that service IGs dismissed during the past 4 years--
or I'm sorry, they investigated 53 percent of the cases. DOD--
that they received. DOD IG investigated 8.2 percent. The 
services substantiated 5.9 percent, and DOD IG substantiated 1 
percent, and these are all military whistleblowers.
    Mr. Mica. And now, I think we've got--Mr. Fine, looks a 
little bit anxious here to respond. So could we hear your 
response?
    Mr. Fine. Thank you for that opportunity. This is our data, 
and I think that's not an accurate read of that data because 
within the data, that is counting as dismissal if we refer it 
to the service IG. That's not a dismissal. That is referring 
it. So the actual cases that we retain is a much different 
level. Having said that, I do think the data is important for 
the report and for----
    Mr. Mica. You say that's not accurate.
    Mr. Fine. We don't substantiate this.
    Mr. Mica. Could you give us, to the committee for the 
record, staff--we ask questions after this, but that would be 
something I'd like to see in the record.
    Mr. Fine. Absolutely.
    Mr. Mica. And also for the record, I'd like to see the 
number of cases, again, maybe historically the last few years 
that I asked the question about earlier and then also the 
staffing rates. And finally, is there a budget constraint or 
something to pursue your work or are you adequately funded?
    Mr. Fine. We're not adequately funded. Thank you for that 
question. We'd be happy to provide the information that you 
requested and we're glad to do so in response.
    Mr. Mica. Finally, since my time is expired, you could put 
in the response the substantiation of the need for additional 
resources.
    Mr. Fine. Okay. All right. Fine. I'll put that in as well.
    Mr. Mica. Mr. Chairman, I'm pleased to yield back.
    Mr. DeSantis. The gentleman yields back.
    I'd like to thank all of our witnesses for taking the time 
to appear before us today. There is no further business.
    Without objection, the subcommittee stands adjourned.
    [Whereupon, at 3:31 p.m., the subcommittee was adjourned.]

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