Whistleblower Protection:

DOD Needs to Enhance Oversight of Military Whistleblower Reprisal Investigations

GAO-15-477: Published: May 7, 2015. Publicly Released: May 7, 2015.

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What GAO Found

The Department of Defense (DOD) did not meet statutory military whistleblower reprisal 180-day notification requirements in about half of reprisal investigations closed in fiscal year 2013, and DOD's average investigation time for closed cases in fiscal years 2013 and 2014 was 526 days, almost three times DOD's internal 180-day requirement. In 2012, GAO made recommendations to improve investigation timeliness, and DOD has taken some actions to address those recommendations. However, based on a random sample of 124 cases, GAO estimated that there was no evidence that DOD sent the required notification letters in about 47 percent of the cases that DOD took longer than 180 days to close in fiscal year 2013. For cases in which DOD sent the required letter, GAO estimated that the median notification time was about 353 days after the servicemember filed the complaint, and on average the letters significantly underestimated the expected investigation completion date. DOD does not have a tool, such as an automated alert, to help ensure compliance with the statutory notification requirement to provide letters by 180 days informing servicemembers about delays in investigations. Without a tool for DOD to ensure that servicemembers receive reliable, accurate, and timely information about their investigations, servicemembers may be discouraged from reporting wrongdoing.

DOD's Office of Inspector General's (DODIG) newly developed case management system, which it established to improve monitoring, is separate from the service IGs' systems, limiting DODIG's ability to provide oversight of all military reprisal investigations. GAO found that DODIG's system did not have a record of at least 22 percent of service-conducted reprisal investigations that were closed in fiscal years 2013 and 2014 and investigations open as of September 30, 2014. DODIG officials stated that they plan to expand DODIG's case management system to the service IGs by the end of fiscal year 2016 to improve DODIG's visibility over investigations. However, DODIG does not have an implementation plan for the expansion, and service IG officials stated that they have unique requirements that they would like to have incorporated into the system prior to expansion. Expanding the case management system to the service IGs without developing an implementation plan that, among other things, addresses the needs of both DODIG and the service IGs, puts DOD at risk of creating a system that will not strengthen its oversight of reprisal investigations.

DOD does not have formalized processes to help ensure effective oversight of military whistleblower reprisal investigations conducted by service IGs. DODIG established an oversight investigator team to review service IG investigations, but it has provided oversight investigators with limited guidance on how to review or document service IG investigations. Specifically, GAO estimated that for about 45 percent of service investigations closed in fiscal year 2013, the oversight worksheets were missing narrative to demonstrate that the oversight investigator had thoroughly documented all case deficiencies or inconsistencies. GAO also found that these files did not include documentation of DOD's analysis of the effect of noted deficiencies on the investigation's outcome because DOD has provided limited instruction on how to review service IG cases. Without additional guidance on oversight review procedures and documentation requirements to formalize the oversight process, it will be difficult for DOD to ensure that reprisal complaints are investigated and documented consistently.

Why GAO Did This Study

Whistleblowers play an important role in safeguarding the federal government against waste, fraud, and abuse. However, reporting wrongdoing outside the chain of command conflicts with military guidance, which emphasizes using the chain of command to resolve problems. Whistleblowers who make a report risk reprisal from their unit, such as being demoted or separated. DODIG is responsible for conducting and overseeing military whistleblower reprisal investigations. GAO was asked to examine DOD's oversight of military whistleblower reprisal investigations.

This report examines the extent to which (1) DOD met statutory notification and internal timeliness requirements for completing military whistleblower reprisal investigations, (2) DODIG's whistleblower case management system supports oversight of reprisal investigations, and (3) DOD has processes to ensure oversight of service IG-conducted reprisal investigations. GAO analyzed DODIG and service IG data for cases closed in fiscal years 2013 and 2014 and cases open as of September 30, 2014, and reviewed a generalizable random sample of 124 military reprisal cases closed in fiscal year 2013.

What GAO Recommends

GAO recommends that DOD develop a tool to help ensure compliance with the statutory notification requirement, develop an implementation plan for expanding DODIG's case management system, and issue guidance governing the oversight process, among other things. DOD concurred, but raised issues with GAO's presentation of its findings. GAO disagrees and addresses these issues in this report.

For more information, contact Brenda S. Farrell at (202) 512-3604 or farrellb@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: This recommendation is open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation on August 27, 2015. Officials stated that, in May 2015, they modified a 180-day letter dashboard in their Defense Case Activity Tracking System to alert them to cases that recently met 150 days. Then in June 2015, the oversight investigator dedicated to monitoring component inspector general cases began sending lists of open cases that had recently reached 150 days to the service inspectors general, as a reminder to send the 180-day notification letters. We will obtain additional documentation of the dashboard and an example of the open case lists.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to develop an automated tool to help ensure compliance with the statutory 180-day notification requirement by providing servicemembers with accurate information regarding the status of their reprisal investigations within 180 days of receipt of an allegation of reprisal.

    Agency Affected: Department of Defense

  2. Status: Open

    Comments: This recommendation is open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation on August 27, 2015. They stated that they were in the process of drafting new standard operating procedures for intakes, investigations, and investigation oversight reviews, as well as an update to their Administrative Investigations Manual. GAO will obtain additional documentation as it becomes available.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to issue additional guidance to investigators on how to use the case management system as a real-time management tool, and update and finalize the draft internal user guidance from 2012 as necessary until the case management system is complete.

    Agency Affected: Department of Defense

  3. Status: Open

    Comments: This recommendation is open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation on August 27, 2015. They stated that their Defense Case Activity Tracking System (D-CATSe) Working Group continues to meet and gather requirements for an enterprise version of the system to be released to the service inspectors general. Officials noted that the implementation of this recommendation is dependent upon DOD's release of funds for continuing the development of the case management system.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to working in coordination with the service IGs, develop an implementation plan that addresses the needs of DODIG and the service IGs, and defines project goals, schedules, costs, stakeholder roles and responsibilities, and stakeholder communication techniques for expansion of the case management system.

    Agency Affected: Department of Defense

  4. Status: Open

    Comments: This recommendation is open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation on August 27, 2015. They stated that they drafted additional guidance for oversight investigators and that guidance is currently under management review.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to issue additional guidance to formalize the DODIG oversight process.

    Agency Affected: Department of Defense

  5. Status: Open

    Comments: This recommendation is open. Officials from DOD Inspector General, Whistleblower Reprisal Investigations Directorate provided GAO with an update to this recommendation on August 27, 2015. They stated that leaders from their Directorate chaired at session at their semi-annual symposium entitled, "Moving Towards Standardized Investigation States for Military Reprisal Investigations." This session kicked off their initiative to work closely with the service inspectors general to come to an agreement on universally defined investigation stages and more standardized processes.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to direct the services to follow standardized investigation stages and issue guidance clarifying how the stages are defined.

    Agency Affected: Department of Defense

  6. Status: Closed - Implemented

    Comments: DODIG concurred with GAO's recommendation, stating that it would resume its practice of providing service IGs with copies of its whistleblower reprisal investigation oversight worksheets, including investigation criteria and any deficiencies. On June 26, 2015, DODIG issued a memorandum titled "Documenting Independence and Sharing Feedback in Military Whistleblower Reprisal and Restriction Cases Completed Pursuant to 10 U.S.C. 1034," which informs service IGs that DODIG would resume providing them with a copy of its oversight worksheet and directing service IGs to provide investigating officers with a copy. DODIG also noted that it was taking this action in response to GAO's report. By ensuring that service IG investigators receive case-specific feedback in concurrence with GAO's recommendation, DODIG is better positioned to help service IGs identify trends in systematic deficiencies or specific standards not being met and correct such deficiencies in future investigations.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to ensure that the mechanism it uses for feedback to service investigators includes the criteria against which the investigation was assessed and any deficiencies, and work with the service IG headquarters to ensure that feedback is shared with the service investigators.

    Agency Affected: Department of Defense

  7. Status: Closed - Implemented

    Comments: DOD concurred and took action in response to GAO's recommendation to document independence in whistleblower reprisal investigations. On June 26, 2015, DODIG issued a memorandum titled "Documenting Independence and Sharing Feedback in Military Whistleblower Reprisal and Restriction Cases Completed Pursuant to 10 U.S.C. 1034," which informed service IGs that DODIG revised its checklist for investigating officers to include certification of an investigator's independence and status outside the immediate chain of command. DODIG also directed service IGs to provide such documentation during DODIG's oversight reviews of whistleblower reprisal investigations. DODIG noted that it was taking these actions in response to GAO's recommendation. By requiring service IG investigators to submit documentation to DODIG certifying their independence, DODIG has established an accountability mechanism for service IG investigators and reduced the likelihood of bias in whistleblower reprisal investigations.

    Recommendation: To improve the military whistleblower reprisal investigation process and oversight of such investigations, the Secretary of Defense should work in coordination with the Department of Defense Inspector General (DODIG) to develop and implement a process for investigators to document whether the investigation was independent and outside of the chain of command and direct the service IGs to provide such documentation for review during the oversight process.

    Agency Affected: Department of Defense

 

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