[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20425]


[[Page Unknown]]

[Federal Register: August 19, 1994]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 92 and 98a

[DoD Directive 7050.6]

 

Military Whistleblower Protection

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule.

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SUMMARY: This final rule implements Section 843 of Public Law 102-190, 
``National Defense Authorization Act for Fiscal Years 1992-1993,'' 
December 5, 1991. It expands military whistleblower protection to those 
who make disclosures to an audit, inspection, investigation or law 
enforcement organization, as well as to an Inspector General or a 
Member of Congress. This rule also specifies that reprisal for 
whistleblowing is punishable under the Uniform Code of Military Justice 
and removes 32 CFR part 98a.

EFFECTIVE DATE: September 30, 1992.

FOR FURTHER INFORMATION CONTACT:
Ms. Marcia Campbell, (703) 604-8507.

SUPPLEMENTARY INFORMATION: Due to an administrative oversight the final 
rule was not previously published.
    It has been certified that this rule is not a significant 
regulation action. The rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.
    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because this rule does not 
exert a significant economic impact on a substantial number of small 
entities. This certification is made based on the fact that the rule 
merely modifies the current regulation to ensure that policy and 
procedures with regard to military whistleblower protection conform 
with the requirements under 10 U.S.C. 1034. These procedures involve 
reporting and investigating allegations of reprisal for protected 
disclosures made by military members of the armed forces to appropriate 
authorities.
    It has been certified that 32 CFR parts 92 and 98a do not impose 
any reporting or recordkeeping requirements under the Paperwork 
Reduction Act of 1980 (44 U.S.C. 3501-3520).

List of Subjects in 32 CFR Parts 92 and 98a

    Administrative practice and procedure; Investigations; Military 
personnel; Whistleblowing.

    1. Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 98a 
is removed.

PART 98a--[REMOVED]

    2. 32 CFR Part 92 is added to read as follows:

PART 92--MILITARY WHISTLEBLOWER PROTECTION

Sec.
92.1  Purpose.
92.2  Applicability and scope.
92.3  Definitions.
92.4  Policy.
92.5  Responsibilities.
92.6  Procedures.

    Authority: 10 U.S.C. 892, 1552, and 1553.


Sec. 92.1  Purpose.

    (a) This part:
    (1) Updates policy, responsibilities, and procedures, in accordance 
with the ``National Defense Authorization Act for Fiscal Years 1992-
1993 and of 1989,'' (Pub. L. 102-190, Section 843 and Pub. L. 100-456, 
Section 846).
    (2) Provides protection against reprisal for members of the Armed 
Forces for making or preparing a lawful communication to a Member of 
the Congress, an Inspector General (IG), or any member of a DoD audit, 
inspection, investigation, or law enforcement organization.
    (3) Provides procedures for investigating allegations of reprisal 
against members of the Armed Forces for making or preparing a protected 
disclosure, as defined in Sec. 92.3(c).
    (b) Updates responsibilities and authorities for such protection 
and updates operating procedures in Sec. 92.6.


Sec. 92.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments (including their National Guard and Reserve components), 
the Chairman of the Joint Chiefs of Staff and the Joint Staff, the 
Unified and Specified Commands, the Inspector General of the Department 
of Defense (IG, DoD), the Defense Agencies, and the DoD Field 
Activities, including nonappropriated fund activities (hereafter 
referred to collectively as ``the DoD Components''). The Term 
``Military Services,'' as used herein, refers to the Army, the Navy, 
the Air Force, and the Marine Corps.
    (b) All DoD personnel.


Sec. 92.3  Definitions.

    (a) Audit, inspection, investigation, and law enforcement 
organizations. The law enforcement organizations at any command level 
in any of the DoD Components, the Defense Criminal Investigative 
Service, the U.S. Army Criminal Investigation Command, the Naval 
Investigative Service, the Air Force Office of Special Investigations, 
the U.S. Army Audit Agency, the Naval Audit Service, the Air Force 
Audit Agency, and the Defense Contract Audit Agency.
    (b) Board for Correction of Military Records (BCMR). Any board 
empowered under 10 U.S.C. 1552 to recommend correction of military 
records to the Secretary of the Military Department concerned.
    (c) Corrective action. Any action deemed necessary to make the 
complainant whole; changes in Agency regulations or practices; 
administrative or disciplinary action against offending personnel; or 
referral to the U.S. Attorney General or court-martial convening 
authority of any evidence of criminal violation.
    (d) Inspector General (IG). The IG, DoD, and a military or civilian 
employee assigned or detailed under DoD Component regulations to serve 
as an IG at any command level in one of the DoD Components.
    (e) Member of the Congress. Besides a Representative or Senator, 
includes any Delegate or Resident Commissioner to the Congress.
    (f) Member or Member of the Armed Forces. All Regular and Reserve 
component officers (commissioned and warrant) and enlisted members of 
the Army, the Navy, the Air Force, the Marine Corps, and the Coast 
Guard (when operating as part of the Department of the Navy) on active 
duty (AD), and Reserve component officers (commissioned and warrant) 
and enlisted members whether on AD, Full-Time National Guard Duty, 
Inactive Duty for Training, or not in any duty or training status. That 
definition includes professors and cadets of the Military Service 
academies and officers and enlisted members of the National Guard.
    (g) Personnel action. Any action taken on a member of the Armed 
Forces that affects or has the potential to affect that military 
member's current position or career. Such actions include a promotion; 
a disciplinary or other corrective action; a transfer or reassignment; 
a performance evaluation; a decision on pay, benefits, awards, or 
training; and any other significant change in duties or 
responsibilities inconsistent with the military member's rank.
    (h) Protected disclosure. A lawful communication to a member of 
Congress, an IG, or any member of a DoD audit, inspection, 
investigation, or law enforcement organization in which a military 
member makes a complaint or discloses information that he or she 
reasonably believes evidences a violation of law or regulation, 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety.
    (i) Reprisal. Taking or threatening to take an unfavorable 
personnel action or withholding or threatening to withhold a favorable 
personnel action against a military member for making or preparing a 
protected disclosure.


Sec. 92.4  Policy.

    It is DoD policy that:
    (a) No person shall restrict a member of the Armed Forces from 
lawfully communicating with a Member of the Congress, an IG, or a 
member of a DoD audit, inspection, investigation, or law enforcement 
organization.
    (b) Members of the Armed Forces shall be free from reprisal for 
making or preparing lawful communications to a Member of the Congress, 
an IG, or a member of a DoD audit, inspection investigation, or law 
enforcement organization.
    (c) No employee or member of the Armed Forces may take or threaten 
to take an unfavorable personnel action, or withhold or threaten to 
withhold a favorable personnel action, in reprisal against any member 
of the Armed Forces for making or preparing a lawful communication to a 
Member of the Congress, an IG, or a member of a DoD audit, inspection, 
investigation, or law enforcement organization.
    (d) Any violation of paragraph (c) of this section by a person 
subject to 10 U.S.C. Chapter 47 (the Uniform Code of Military Justice) 
is punishable in accordance with the provisions of Sec. 92.5(c)(1). Any 
violation of paragraph (c) of this section by a civilian employee is 
punishable under regulations governing disciplinary or adverse actions.
    (e) Allegations of reprisal against members of the Armed Forces for 
making or preparing a protected disclosure shall be investigated and 
resolved in accordance with this part.


Sec. 92.5  Responsibilities.

    (a) The Inspector General of the Department of Defense shall:
    (1) Expeditiously initiate an investigation of any allegation 
submitted to the IG, DoD, by a member of the Armed Forces that a 
personnel action has been taken, withheld, or threatened in reprisal 
for making or preparing a protected disclosure. The IG, DoD, may 
request the IG of the DoD Component to conduct the investigation. No 
investigation is required when such allegation is submitted more than 
60 days after a member became aware of the personnel action that is the 
subject of the allegation.
    (2) Initiate a separate investigation of the allegations contained 
in the protected disclosure if such an investigation has not already 
been started. No investigation is required if the information that a 
member believes evidences wrongdoing relates to actions that took place 
during combat.
    (3) Complete an investigation of an allegation of reprisal for 
making or preparing a protected disclosure and issue a report within 90 
days of the receipt of that allegation. If a determination is made that 
the report cannot be issued within 90 days of receipt of the 
allegation, notify the Under Secretary of Defense for Personnel and 
Readiness (USD(P&R)) and the member or the former member making an 
allegation of the reasons why that report will not be submitted within 
that time, and when that report will be submitted.
    (4) Prepare a report of the results of an investigation. That 
report shall include a thorough review of the facts and circumstances 
about an allegation, the relevant documents acquired during that 
investigation, and summaries of interviews conducted.
    (5) Submit a copy of an investigative report to the USD(P&R) and to 
a member or a former member making the allegation not later than 30 
days after the completion of the investigation. A copy of that report 
issued to the member may exclude any information not otherwise 
available to him or her under 32 CFR part 285.
    (6) At the request of a Board for Correction of Military Records 
(BCMR), submit a copy of that investigative report to the BCMR.
    (7) At the request of a BCMR, gather further evidence and issue a 
further report to the BCMR.
    (8) After the final action in any military reprisal complaint filed 
with the IG, DoD, when possible, interview the person who made the 
allegation to determine the views of that person on the disposition of 
the matter.
    (9) Review and determine the adequacy of DoD Component IG 
investigations of allegations of reprisal against a member of the Armed 
Forces for making or preparing a protected disclosure conducted at the 
request of the IG, DoD. If such investigation is found inadequate, 
initiate a follow-up investigation to correct those inadequacies or 
ensure that the DoD Component corrects them.
    (b) The Under Secretary of Defense for Personnel and Readiness 
shall:
    (1) Review and process, under the standards and procedures in 
Sec. 92.6 requests from members or former members of the Armed Forces 
for review of final decisions of a Secretary of a Military Department 
on applications for correction of military records decided in 
accordance with Sec. 92.6.
    (2) Notify the IG, DoD, of decisions made by the Secretary of 
Defense on requests for review of a final decision of a Secretary of a 
Military Department on an application for correction of military 
records submitted in accordance with Sec. 92.6(c)(1).
    (3) Have access to all research, reports, investigations, audits, 
reviews, documents, papers, or any other material necessary to carry 
out the responsibilities assigned to the USD(P&R) by this part.
    (4) If necessary, obtain for review and request the Secretaries of 
the Military Departments to comment on, evidence considered by a BCMR 
in cases in which the Secretary of Defense is requested to reconsider 
the final decision of the Secretary concerned.
    (c) The Secretaries of the Military Departments shall:
    (1) Implement a regulation that provides that a violation of the 
prohibition against taking, withholding, or threatening to take or 
withhold a personnel action in reprisal for making or preparing a 
lawful communication by a person subject to 10 U.S.C. Chapter 47 (the 
Uniform Code of Military Justice) is punishable as a violation of 10 
U.S.C. 892 (Article 92 of the Uniform Code of Military Justice). The 
implementing regulation shall also provide that such a violation by a 
DoD civilian employee is punishable under regulations governing 
disciplinary or adverse action.
    (2) On receipt of a report of investigation from the IG, DoD, that 
concludes that a member suffered reprisal, and when implementation of 
the recommendations requires action by a BCMR, advise that member that 
assistance in preparing an application to the BCMR may be sought from 
the legal office supporting the member's command.
    (3) Ensure that the Military Department IG:
    (i) On receipt of a member's allegation of reprisal for making or 
preparing a protected disclosure, expeditiously investigates that 
allegation. No investigation is required when such allegation is 
submitted more than 60 days after a member became aware of that 
personnel action that is the subject of the allegation.
    (ii) At the request of the IG, DoD, investigates cases arising in 
the DoD Component.
    (iii) For those investigations conducted at the request of the IG, 
DoD, within 90 days of the receipt of an allegation, provides the IG, 
DoD, with an investigative report containing a thorough review of the 
facts and the circumstances about the allegation, the relevant 
documents acquired during the investigation, and summaries of 
interviews conducted.
    (iv) For all other investigations of alleged reprisal against a 
member for making or preparing a protected disclosure, on completion of 
the investigation, informs the member in writing of the results of the 
investigation. This may be accomplished by providing the member a 
thorough summary of the investigative report or a copy of the 
investigative report, edited as necessary under 32 CFR part 285. The 
information provided to the member must contain a summary of the 
material evidence and an analysis of that evidence that supports the 
determination of whether reprisal occurred. Regardless of the form of 
communication, the information provided must be in sufficient detail to 
allow the member to pursue the issue further.
    (v) At the request of a BCMR, submits a copy of that investigative 
report to the BCMR.
    (vi) At the request of a BCMR, gathers further evidence and issues 
a further report to the BCMR.
    (4) Ensure that the BCMR:
    (i) In accordance with 10 U.S.C. 1552, determines whether to 
resolve an application for the correction of records, made by a member 
or a former member of the Armed Forces who has filed a timely 
complaint, alleging a personnel action was taken in reprisal for making 
or preparing a lawful communication. That may include the receipt of 
oral argument, examining and cross-examining witnesses, taking 
depositions, and conducting an evidentiary hearing at the BCMR's 
discretion. When the BCMR decides to resolve such application, it 
shall:
    (A) Review the report of any investigation into the member's 
allegation of reprisal conducted by the IG, DoD, or the IG of a DoD 
Component.
    (B) As deemed necessary, request that the IG, DoD, or the IG of the 
DoD Component originally investigating the allegation gathers further 
evidence.
    (ii) In such cases, if it elects to hold an administrative hearing, 
allows the member to be represented by a judge advocate (JA) if all of 
the following conditions exist:
    (A) The IG investigation finds there is probable cause to believe 
that a personnel action was taken, withheld, or threatened in reprisal 
for a member of the Armed Forces making or preparing a protected 
disclosure.
    (B) The Judge Advocate General concerned determines that the case 
is unusually complex or otherwise requires JA assistance to ensure 
proper presentation of the legal issues in the case.
    (C) The member is not represented by outside counsel chosen by that 
member.
    (iii) If it elects to hold an administrative hearing, ensures that 
the member may examine witnesses through depositions, serve 
interrogatories, and request the production of evidence, including 
evidence in an IG investigatory record not included in the report 
released to that member.
    (iv) If it determines that a personnel action was taken in reprisal 
for a member or a former member of the Armed Forces making or preparing 
a lawful communication, makes a determination on the appropriateness of 
administrative or disciplinary action against the individual or 
indviduals who committed the action and, if deemed appropriate by the 
BCMR, forwards its recommendation in the matter to be the Secretary 
concerned.
    (5) Within 180 days of its receipt, issue a final decision on an 
application for the correction of military records from a member or a 
former member of the Armed Forces alleging reprisal for making or 
preparing a lawful communication. When the final decision does not 
grant the full relief requested by the member, advise that member that 
within 90 days he or she may request the Secretary of Defense to 
reconsider the decision in accordance with the procedures described in 
Sec. 92.6(c).
    (6) When reprisal is found, take appropriate corrective action, 
including the correction of the records of the member, in accordance 
with 10 U.S.C. 1552 and 1553.
    (7) Ensure that administrative or disciplinary action, if 
appropriate, is taken against individuals found to have taken reprisal 
against a member of the Armed Forces for making or preparing a lawful 
communication.
    (8) Notify the IG, DoD, and the Military Department IG of a 
decision on an application for the correction of military records 
received from a member or former member of the Armed Forces alleging 
reprisal for making or preparing a lawful communication and of any 
disciplinary action taken.
    (d) The Heads of the DoD Components shall:
    (1) Based on an IG investigative report, take appropriate 
corrective action.
    (2) Publicize the content of this Directive to ensure that military 
and other DoD personnel fully understand its scope and application.


Sec. 92.6  Procedures.

    (a) Any member of the Armed Forces who reasonably believes a 
personnel action (including the withholding of an action) was taken or 
threatened in reprisal for making or preparing a lawful communication, 
may file a complaint with the DoD Hotline under 32 CFR part 98. Such a 
complaint may be filed by telephone (800) 424-9098 or (202) 693-5080, 
or by letter addressed to the following: Department of Defense Hotline, 
400 Army Navy Drive, Arlington, Virginia 22202-2884.
    (b) Nothing in this part precludes a member of the Armed Forces 
from filing a complaint of reprisal for making or preparing a lawful 
communication within their Military Department. If the member elects to 
file the complaint within his or her Department, he or she should 
contact a local IG or JA for information concerning the procedures for 
filing such a complaint. Members who file complaints of reprisal for 
making or preparing a lawful communication within their Military 
Department should be advised that the provisions of Pub. L. 102-190, 
Section 843, and Pub. L. 100-456, Section 846 only apply to reprisal 
complaints filed with the IG, DoD.
    (c) A member or former member of the Armed forces who has filed an 
application for the correction of military records under Pub. L. 100-
456 alleging reprisal for making or preparing a protected disclosure 
may request review by the Secretary of Defense of the final decision of 
the Secretary of a Military Department concerned on such application. 
The following procedures apply to requests for review by the Secretary 
of Defense:
    (1) Content of request. The request for review must be in writing 
and include the member's name, address, and telephone number; copies of 
the application to the BCMR and the final decision of the Secretary of 
the Military Department concerned on such application; and a statement 
the specific reasons why that member is not satisfied with the decision 
of the Secretary concerned.
    (i) Requests based on factual allegations or evidence not 
previously presented to the cognizant BCMR shall not be considered.
    (ii) New allegations or evidence must be submitted directly to the 
BCMR for reconsideration under procedures established by the BCMR.
    (2) Review by the Secretary of Defense. The Secretary of Defense 
shall review the allegations submitted by a member or a former member 
of the Armed Forces requesting review and other records deemed 
appropriate and necessary by the Secretary of Defense for deciding, in 
his or her sole discretion, whether to uphold or reverse the decision 
of the Secretary concerned. The decision of the Secretary of Defense is 
final.
    (3) Time limits. The request for review of the final decision of 
the Secretary of the Military Department concerned must be filed within 
90 days of receipt of the decision by a member or former member of the 
Armed Forces.
    (4) Address. Requests for review by the Secretary of Defense must 
be submitted to the following: Under Secretary of Defense (Personnel 
and Readiness), Attention: Director, Legal Policy, Room 4C763, The 
Pentagon, Washington, DC 20301-4000.

    Dated: August 15, 1994.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-20425 Filed 8-18-94; 8:45 am]
BILLING CODE 5000-04-M