Whistleblower Protection:
Actions Needed to Improve DOD's Military Whistleblower Reprisal Program
GAO-12-362, Feb 22, 2012
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What GAO Found
DODIG has taken multiple steps, in collaboration with the service IGs in some instances, to improve DOD’s ability to process military whistleblower reprisal cases in a timely manner. Timeliness is important to ensure the reliability of evidence and appropriate resolution of reprisal allegations. However, DODIG has generally not met statutory requirements to report on investigations within 180 days, or to provide alternative notification. DODIG has undertaken efforts to improve timeliness by, for example, eliminating a time-consuming phase of its investigative process. However, DOD’s efforts are hampered by unreliable and incomplete data. For instance, GAO found that DODIG has not consistently or accurately recorded key dates to track how long investigations take to complete. Without key timeliness data, DODIG may have difficulty in identifying process areas requiring improvement and evaluating the impact of reforms. Further, the absence of this information limits congressional decision makers’ ability to provide oversight of DOD’s whistleblower reprisal investigative program.
DODIG has begun executing an action plan that includes acting on prior external and internal review recommendations in order to improve its oversight of the department’s whistleblower reprisal process, but implementation of this plan is not yet complete and challenges exist in three areas:
- Performance metrics. DODIG has not yet established performance metrics to ensure the quality of reprisal investigations.
- Guidance. DOD’s guidance related to the whistleblower program is outdated and does not reflect current investigative processes. Additionally, some of the guidance is unclear, leading to inconsistent implementation among the service IGs. Moreover, DODIG has not been consistently adhering to standards regarding the maintenance of its case files, resulting in generally incomplete files.
- Case monitoring processes and procedures. DODIG lacks standard case monitoring processes and procedures, which may hinder its ability to consistently maintain visibility and assess the status of outstanding reprisal investigations including those conducted by service and component IGs.
Until it further addresses the challenges it faces in regard to oversight mechanisms, DODIG cannot be assured that it is effectively conducting its oversight responsibilities or implementing the whistleblower reprisal program as intended.
DOD’s efforts to ensure that appropriate corrective action is taken—both for whistleblowers and against those who reprise against whistleblowers—are hampered by disconnected investigative and corrective action processes and the limited visibility of the corrective actions taken. DODIG and the service BCMRs are not consistently identifying and tracking data on action taken to undo the reprisal damage done to whistleblowers. Further, unreliable data regarding corrective action taken against those found to have reprised against whistleblowers is hindering oversight of this key aspect of whistleblower protections. Without addressing these issues, whistleblowers may not be getting the full protection and resolution they deserve.
Why GAO Did This Study
Whistleblowers help guard the federal government against waste, fraud, and abuse. The Military Whistleblower Protection Act provides servicemembers with a means to seek relief from reprisals and to hold subjects accountable. GAO was asked to determine the extent to which the Department of Defense (DOD) has (1) satisfied statutory timeliness requirements for processing military whistleblower reprisal cases, (2) established and implemented oversight mechanisms for its process, and (3) taken corrective action in cases where the DOD Inspector General (DODIG) substantiated reprisal claims. GAO also analyzed case characteristics. GAO examined laws, regulations, and guidance documents; interviewed officials from DODIG, service IGs, service Boards for the Correction of Military Records (BCMRs), and the Office of the Undersecretary of Defense for Personnel and Readiness; and collected and analyzed case data. GAO also conducted a detailed file review using a representative sample of cases closed between January 1, 2009 and March 31, 2011.
What GAO Recommends
GAO recommends that DOD implement procedures to track and report data on its case processing timeliness, take actions to improve oversight of its investigative process, and develop processes to ensure appropriate corrective actions are taken in substantiated cases. DOD concurred with all of GAO’s recommendations.
For more information, contact Zina Merritt at (202) 512-5257 or merrittz@gao.gov.
Status Legend:
- Review Pending
- Open
- Closed - implemented
- Closed - not implemented
Recommendations for Executive Action
Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should work in coordination with DODIG to implement policies and procedures to ensure accurate and complete recording and consistent tracking of total case processing time and processing time for various phases of the investigation.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should work in coordination with DODIG to develop and implement performance metrics to ensure the quality and effectiveness of the investigative process, such as ensuring that the case files contain evidence sufficient to support the conclusions.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To better ensure that whistleblowers obtain the relief they are due, the Secretary of Defense should work in coordination with DODIG to identify best practices and develop the necessary processes and procedures to ensure that all whistleblower reprisal allegations substantiated by DODIG are considered under the whistleblower statute by the appropriate service BCMR. For example, DODIG could provide more detailed recommendations regarding corrective action for the complainant. DODIG should work in close consultation with the service IGs and the BCMRs when implementing this recommendation.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To ensure that the BCMRs are treating military whistleblower reprisal cases appropriately, given the unique procedural privileges provided by the Military Whistleblower Protection Act, the Secretary of Defense should direct the secretaries of the military departments to take action to ensure that military whistleblower cases are correctly identified and processed by the BCMRs. Such actions could include modifying the form used to apply to the BCMR; additional training so that BCMR staff can better identify cases; or developing methods for identifying cases for which the BCMRs have received DODIG substantiated case notifications.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to establish standardized corrective action reporting requirements.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should work in coordination with DODIG to track and analyze timeliness data to identify reforms that could aid in processing cases within the 180 days provided by law.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD with improving processing times of these investigations, the Secretary of Defense should work in coordination with DODIG to regularly report to Congress on the timeliness of military whistleblower reprisal investigations, including the number of cases exceeding the 180 days provided by law. DODIG could do so in its semiannual reports.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should work in coordination with DODIG to update whistleblower reprisal investigative guidance and ensure that it is consistently followed, including clarifying reporting requirements, responsibilities, and terminology.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight over the whistleblower reprisal investigative process, the Secretary of Defense should work in coordination with DODIG to consistently monitor the status of whistleblower reprisal investigations.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to consistently track and regularly reconcile data regarding corrective action.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
Recommendation: To assist DOD in improving oversight of all corrective action taken in response to substantiated military whistleblower reprisal claims, including command action, the Secretary of Defense should work in coordination with DODIG to regularly report to Congress on the frequency and type of corrective action taken in response to substantiated reprisal claims. DODIG could do so, for example, in its semiannual reports to Congress.
Agency Affected: Department of Defense
Status: Open
Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.