Section 1034 of Title 10, United States Code (10 USC 1034), revised by The Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, extended authority to Inspectors General within the Military Departments to grant Whistleblower protection for reprisal allegations presented directly to them by Service members. The section, implemented by DoD Directive 7050.06, requires Service IGs to investigate allegations of individuals taking or threatening to take unfavorable personnel actions or withholding or threatening to withhold favorable personnel actions as reprisal against a member of the Armed Forces for making or preparing a protected communication.
A protected communication (PC) is:
a. Any lawful communication to a Member of Congress or an IG.
b. A communication in which a member of the Armed Forces communicates information that the member reasonably believes is evidence of a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety, when such communication is made to any of the following:
(1) A Member of Congress; an IG; or a member of a DoD audit, inspection, investigation, or law-enforcement organization.
(2) Any person or organization in the chain of command (as defined by DoDD 7050.06); or any other person designated pursuant to regulations or other established administrative procedures (e.g. Equal Opportunity Advisor, Safety Officer, etc.) to receive such communications.
Section 2302(b)(8), Title 5, United States Code (5 USC 2302(b)(8)) provides similar coverage to appropriated fund (DA / DoD civilian) employees as previously discussed for members of the Armed Forces. Likewise, Non-appropriated Fund (NAF) employees are covered under 10 USC 1587, and coverage to DoD contractor employees is provided under Section 2409(a), Title 10, United States Code (10 USC 2409). The following actions will occur when a DA / DoD civilian, NAF, or DoD contractor employee presents an allegation of reprisal for protected disclosure based on the employee's status:
a. The appropriated-fund civilian employee has the right to present the reprisal allegation to the Office of Special Counsel (OSC) through the OSC website (www.osc.gov), where he or she may submit the complaint.
b. The NAF employee has the right to submit reprisal complaints to the IG, DoD, in accordance with DoDD 1401.03.
c. The DoD contractor employee has the right to make a complaint about reprisal to the IG, DoD, in accordance with 10 USC 2409.
DoD Directive 6490.1, Mental Health Evaluation of Member of the Armed Forces, and DoD Instruction 6490.4, Requirements for Mental Health Evaluation of Members of the Armed Forces, establish and implement DoD policy, assign responsibility, and prescribe procedures for the referral, evaluation, treatment, and administrative management of Service members who may require mental-health evaluation, psychiatric hospitalization, and/or assessment for risk of potentially dangerous behavior. The directive prohibits referrals done in reprisal and restriction as a violation of Article 92: Uniform Code of Military Justice. The two types of improper MHEs are procedural or reprisal violations. Reprisal violations are governed under the provisions of 10 USC 1034 and DoD Directive 7050.06, and procedural violations are governed by DoD Directive 6490.1 and DoD Instruction 6490.4.
Any questions concerning Whistleblower/MHE Reprisal allegations, please contact the 4ID and Fort Carson Inspector General Office at 719-526-3900/3901.