Section 9-1. o Implement new DoD IG Whistleblower Reprisal / Restriction notification and casemanagement

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1 (Integrated) Interim Change to Section 9-1: Military Whistleblower Reprisal and Restriction Overview; The Four Elements of Proof and the Four Variables; Receiving, Analyzing, and Reporting Military Whistleblower Reprisal and Restriction Complaints; Dismissal Recommendations; and Whistleblower Investigations Section 9-1 NOTE: This change is an interim one based on new processes and requirements implemented by DoD IG. Although labeled a DRAFT, this doctrine is for IMMEDIATE IMPLEMENTATION by all Army IGs. TIGS has already incorporated these changes into the Basic Course's curriculum and will include a more polished version in an upcoming revision to The Assistance and Investigations Guide. Changes: o This update incorporates changes to 10 USC 1034 published in the National Defense Authorization Act for Fiscal Year 2017 (NDAA 17). NDAA 17 changes are effective for all Whistleblower complaints received on or after 23 December Specific NDAA 17 provisions are identified with ( ). o All military Whistleblower Reprisal complaints are now reportable. Report all complaints using the DoD IG Military Reprisal / Restriction Complaint Notification. The Advisement Format is no longer valid. o Implement new DoD IG Whistleblower Reprisal / Restriction notification and casemanagement forms and processes. o As part of receiving the complaint and when notifying Assistance Division, identify any special circumstances, such as a related sexual assault, potential violation of Presidential Policy Directive 19 (PPD-19), etc. o If a complaint fails on one of the four elements of proof based on the evidence available, and in conjunction with a complainant interview, the receiving / investigating IG may recommend dismissal as part of the notification process or after receiving a referral for investigation. o If the investigating IG recommends substantiating a reprisal allegation, the Whistleblower ROI must include a recommendation to forward the Whistleblower ROI for appropriate command action and to correct the complainant s record, when appropriate. II - 9-1

2 Military Whistleblower Reprisal and Restriction Overview 1. IGs must know the doctrinal difference between reprisal and retaliation, in order to determine how best to address the complaint. IGs must also understand the consideration of restriction, which is also prohibited in the reprisal statute and guidance. AR , Chapters 6, 7, and 8 and Appendix H discuss specific standards pertaining to retaliation. While retaliation is frequently used as an umbrella term to describe all acts of retaliation, to include statutory reprisal, these are two separate and distinct allegations / issues, each of which are outlined in separate sections of Title 10 US Code (USC). DAIG anticipates updates or refinement to the framework, definitions, and guidance on retaliation and some processes associated with Military Whistleblower Reprisal. Any such updates will be forwarded to all IGs immediately upon release, and changes to The Assistance and Investigations Guide will follow in the next possible publication. 2. One key difference in determining whether a complaint should be addressed as retaliation or reprisal is the complainant s original report of wrongdoing. a. Title 10 USC, Section 1709 (10 USC 1709) established that retaliation specifically revolves around actions taken after a Soldier reported, or was believed to have reported, a criminal offense. Retaliation is further described in paragraph 5 below. b. In the context of reprisal allegations, a Protected Communication (PC) may be a report of a criminal offense but can also cover reports made or prepared, or perceived to have been made or prepared, within a much broader array. Under 10 USC 1034, a PC is: (1) Any lawful communication, regardless of the content, with a member of Congress (MOC) (including the member's staff) or an IG. (2) Providing testimony, or otherwise participating in, or assisting in, an investigation or proceeding related to a communication described below in (4), (5), or (6). (3) Filing, or causing to be filed, participating in, or otherwise assisting in a Military Whistleblower Reprisal action. A PC is also a communication in which a Service member complains of, or that the member reasonably believes constitutes evidence of, any of the following: (4) A violation of law or regulation, including those prohibiting rape, sexual assault, other sexual misconduct, sexual harassment, or unlawful discrimination. (5) 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. (6) A threat by another Service member or employee of the Federal Government that indicates a determination or intent to kill or cause serious bodily injury to Service members or civilians, or cause damage to military, federal, or civilian property. II - 9-2

3 (7) The above communications are covered PCs when made to: (a) An MOC. (b) An IG. (c) A member of a DoD audit, inspection, investigation, or law enforcement organization. [This provision is not limited to DoD-level elements only. It broadly applies to all Services and organizations under the DoD umbrella; i.e. a 15-6 IO, an MP, an auditor for the Army Audit Agency, a Joint Munitions Command inspector, etc.] (d) A court-martial proceeding. (e) A person or organization in the chain of command. [This provision extends up to and includes the Commander-in-Chief. It also includes the appropriate chain of supervision, as defined by DoDD ] (f) A person or organization designated to appropriately receive such a complaint or report (e.g., EO Advisor, Safety Officer, SHARP or SARC representative, Patient Ombudsman, etc.). For a detailed breakdown of all the elements to consider when determining whether there was a PC or not, refer to the table on page 12 of DoD Directive , dated 17 April c. An IG, a command inquiry, a regulatory body, or law enforcement agency may investigate a protected communication that includes a report of wrongdoing. If the investigation, inquiry, or review determines the alleged wrongdoing was not substantiated or was unfounded, it does not invalidate the original PC. d. If the complainant has already reported wrongdoing, an additional PC may be established if he or she reports the same information to a different person or organization designated to receive PCs. A PC can also be made to a person involved in the reported activity. 3. Whistleblower primary terms. In addition to a PC, there are two other key terms that are standard Whistleblower idioms included in reprisal and restriction cases. a. Personnel Action / Unfavorable Personnel Action (PA / UPA). While we are most familiar with the UPA aspect of reprisal complaints, such as reduction or bar to reenlistment, the primary term and definition in the statute and directive is Personnel Action, or PA. At first glance, it is reasonable to think that there was no UPA if an action was not unfavorable, such as awarding an AAM rather than an ARCOM; the Soldier did indeed received an award for his or her actions or service. However, remember that the word adverse is not part of the definition. Consider an action unfavorable if taking or denying a PA will have an unfavorable effect on their career or benefits or make the person less competitive than his or her peers. Additionally, in the context of Whistleblower, the term PA takes on a slightly broader context than might initially come to mind. The definition in paragraph E2.8 of the directive is: 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; referral for mental health evaluations under DoDD ; and any other significant change in duties or responsibilities inconsistent with the military member s grade. II - 9-3

4 ( ) NDAA 17 additions effective for complaints received on / after 23 December 2016: - The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a [service] member. The conducting 1 of a retaliatory investigation 2 of a [service] member. ( ) 1 Affirmative defense: Nothing in this paragraph shall be construed to limit the ability of a commander to consult with a superior in the chain of command, an inspector general, or a judge advocate general on the disposition of a complaint against a member of the armed forces for an allegation of collateral misconduct or for a matter unrelated to a protected communication. 2 an investigation requested, directed, initiated, or conducted for the primary purpose of punishing, harassing, or ostracizing a member of the armed forces for making a protected communication. There are several types of actions or processes which may seem like they fall in the PA / UPA spectrum but are not actually addressed as PA / UPAs, even though they may be related to personnel actions and processes. These actions can include medical actions and processes, such as an MEB recommendation; administrative actions and processes, such as in-processing / out-processing requirements or checklists; readiness actions or processes, such as an APFT, weigh-in, or qualification; or regulatory requirements, such as a commander reporting unfavorable information to CCF on a DA Form 5248-R, as required by AR b. Responsible Management Official (RMO). Rather than the Army IG-specific terms subject and suspect, the Whistleblower lexicon uses RMO(s). Every person in a position to make a recommendation / determination / decision, or take direct approval / disapproval action for a PA or UPA, may be considered an RMO. An RMO can be a Service Member, GS employee, or NAF employee. The status of the complainant determines the application of the Whistleblower statute, not the RMO s status. Because 10 USC 1034 is a punitive statute in federal law, an RMO is addressed in the Army IG vernacular as a suspect, not a subject. Ensure that you afford the RMO(s) all appropriate IG aspects of working with a suspect, such as the suspect read-in, a DA Form 3881, right to legal counsel, etc. You must consider the actions of all RMOs independently in Whistleblower analysis, even if they are all responsible for the same PA / UPA (e.g., each member of the rating chain on a single evaluation). c. All Whistleblower products should be written for a reader outside of the Army who may not be familiar with Army organizational norms, practices, policy expectations, acronyms, or vernacular. You cannot assume that DoD IG is intimately familiar with elements of Army-specific regulations and policies. If your analysis is predicated on a particular policy or regulatory citation, include an extract as part of your evidence. If organizational culture, norms, or practices are part of your analysis or evidence presentation, ensure that you provide a full explanation and context. 4. Restriction (or an attempt to restrict) is established in 10 USC 1034 and addressed in DoDD , paragraph 3 b, which states that: No person will restrict a Service member from making lawful communications to a member of Congress or an inspector general. a. Restriction only applies to communications with an MOC or an IG. Like reprisal, it can also include members of the MOC s staff when functioning in their official capacity. However, it does not apply to the other people or organizations outlined in paragraphs 2 b (7)(c) through (f) above. II - 9-4

5 b. The RMO s attempt at restriction does not have to be successful in order to substantiate such an allegation. c. The content of the communication is also not limited to the content described in paragraphs 2.b (2) through (6) above. The communication can address any content, whether it is related to the armed forces or not, and can be as simple as the greeting of the day rendered to an IG in the PX parking lot. d. The communication with an MOC or IG must be a lawful communication. For example, threatening phone calls, shouting obscenities at the person during a public event, or attending a political rally in uniform may not be lawful communications. Each of these examples violate standing statutes and / or regulations for personal conduct. 5. Army Directive , 19 June 2014, states that the definition of retaliation includes: a. Ostracism and acts of cruelty, oppression, or maltreatment. Ostracism includes exclusion from social acceptance, privilege, or friendship when a member reports, or was believed to have reported, a criminal offense. Ostracism also includes motivation and / or intent to discourage reporting of a criminal offense or otherwise to discourage due administration of justice. b. Cruelty, oppression, or maltreatment committed against a victim, an alleged victim, or another member by peers or others because the victim reported a criminal offense, or was believed to have reported a criminal offense. c. Army Directive directs that ostracism and maltreatment allegations be referred to the chain of command to investigate and further reinforces that Whistleblower Reprisal complaints should be referred to The Inspector General. 6. A Directing Authority may task his or her IG to investigate retaliation; however, IGs should encourage Directing Authorities to investigate retaliation cases within command channels. Unlike findings in a reprisal case, substantiated findings and evidence of a retaliation case resolved within IG channels cannot be used to support command / adverse actions against the subject / suspect, without seeking specific approval from TIG, in accordance with Army Regulation 20-1, paragraph 3-3. IGs should also encourage their Directing Authority to refer potential reprisal complaints to the IG for disposition. a. After making a reprisal or restriction complaint, complainants remain accountable for their own performance, conduct, and behavior. Whistleblower protection does not imply immunity or prevent the command from taking appropriate actions, consistent with regulatory guidance and unit practice, based on the complainant s performance, behavior, and conduct. Further, the statute does not stop or suspend ongoing or impending actions concerning the Soldier. b. Inspectors General do not accept third-party or anonymous allegations of Whistleblower Reprisal; the affected Soldier must want the IG to address the allegation and be willing to cooperate with the IG. A third-party complaint is different from a third-party PC that may be attributed to the complainant. If you receive a third-party allegation, depending on the circumstances, you may reach out to the affected Soldier to see if he or she wishes to pursue a reprisal complaint and are willing to cooperate, or recommend to the third party II - 9-5

6 that he or she encourage the potential complainant to come in and file a complaint personally. Call the Whistleblower Investigations and Oversight Branch (WIOB) at DAIG s Assistance Division for guidance if you have concerns about such complaints. c. Address reprisal / restriction complaints as an independent case, not as part of another IG case. If a complainant includes reprisal or restriction among other assistance issues or investigable allegations, separate all other issues or allegations from the reprisal / restriction complaint(s) and address the other issues as you normally would, under a different IGARS record. d. 10 USC 1034 requires an IG to investigate a reprisal or restriction complaint presented to an IG. An IG may not refer a 1034 complaint to a Commander for inquiry. However, Commanders shall not be considered as having failed to take appropriate action when they either inadvertently investigate an allegation of Whistleblower Reprisal, believing it is in their authority to do so, or investigate an allegation of Whistleblower Reprisal because the allegation was brought to their attention and not to the IG. However, it is the sense of the Congress, as expressed in 10 USC 1034, that IGs be the primary investigative body for military Whistleblower Reprisal allegations. e. In the event a Commander investigates an allegation of Whistleblower Reprisal that is subsequently presented to an IG, the IG may use the command product to complete the IG report, either a Whistleblower Reprisal Report of Investigation (Whistleblower ROI) or a dismissal recommendation, to satisfy any DoD IG requirement and to document complaint resolution. In the event the case requires an investigation, the investigating IG must, at a minimum, interview the complainant as well as the RMOs to give each one an opportunity to know and comment on allegations and unfavorable information USC 1034, as revised by The Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, and most recently updated in NDAA 17, extended authority to IGs within the Military Departments to grant Whistleblower protection for reprisal allegations presented directly to them by Service members. a. The statute, implemented by DoD Directive , requires Service IGs to investigate allegations presented to an IG restricting, or attempting to restrict, a Service member from making lawful communications to an MOC or an IG. DoDD also requires Service IGs to investigate allegations of a person taking or threatening to take an unfavorable personnel action, or withholding, or threatening to withhold, a favorable personnel action in reprisal against any Service member for making or preparing to make a PC, or being perceived as making or preparing to make a PC. b. Since DoD IG is required to complete the report within 180 days as the approval authority, DoDD requires Service IGs to complete their investigation and forward their report to DoD IG within 150 days of receipt of a complaint. If a Whistleblower case cannot be completed within 180 days, a letter must be prepared for the complainant, the Under Secretary of Defense for Personnel and Readiness (USD (P&R)), and DoD IG. The letter will articulate the reasons for the delay and an estimate of when the case will be complete. DAIG will prepare and submit the letters, but the OOI managing the case must provide the appropriate reasons and completion estimate to the WIOB case manager. ( ) This 180-day clock begins when DAIG refers the case in IGARS, and another letter must be prepared every 180 days thereafter. II - 9-6

7 c. NDAA 12 changed the statutory requirement for IGs to investigate procedurally incorrect Mental Health Evaluation (MHE) referrals under the auspices of DoDD As of 3 March 2013, improper MHE referrals, based on incorrect procedures only, are no longer reportable to DoD IG. Procedurally incorrect MHEs are now appropriately addressed within command channels; however, a Directing Authority may still direct his or her IG to address a procedurally incorrect MHE complaint as an Assistance case, since procedural errors are now considered correctable. If the complainant alleges that the MHE referral was done as an act of reprisal resulting from a protected communication, then IGs must treat the MHE as a PA and continue to analyze the referral under 10 USC d. Reports of Investigation regarding Whistleblower Reprisal cases must be approved at DoD IG and are routinely monitored and reviewed by external agencies, such as the USD (P&R), the Government Accountability Office, and MOCs. Therefore, these cases require a high degree of documentation and, whether they are addressed with a dismissal recommendation or a broader investigation, must be conducted to investigatory standards as taught in TIGS. Army Regulation 20-1 prescribes the requirements for processing Whistleblower Reprisal Investigations along with the guidance in this chapter. The Four Elements of Proof and the Four Variables 8. In Whistleblower cases, you must address the causation, or inference of causation, for each PA / UPA. To properly analyze whether a PA / UPA was an act of reprisal, your analysis must begin with the four elements of proof (previously known as the four questions); a 'yes' to elements of proof 1 through 3 and a 'no' to element of proof 4 indicates reprisal. Additionally, a detailed chronology is critical for analyzing the elements of reprisal. Element 4 is the most challenging to answer but leads to the resolution of most cases. To successfully satisfy the burden of proof for analyzing causation, there are four distinct factors, within Element 4, known as the four variables. a. The four elements of proof are: (1) Element 1 - Protected Communication (PC): Did the complainant make or prepare to make a PC, or was the complainant perceived as having made or prepared to make a PC? (2) Element 2 Personnel Action (PA): Was an unfavorable or adverse PA taken or threatened against the complainant, or was a favorable PA withheld or threatened to be withheld from the complainant following the PC? (3) Element 3 Responsible Management Official (RMO) Knowledge: Did the RMO(s) have knowledge of the complainant s PC(s) or perceive the complainant as making or preparing PC(s)? (4) Element 4 - Causation: What was the proximate cause of the action? Would the same PA(s) have been taken, withheld, or threatened absent the PC(s)? In other words, does the evidence establish that the PAs would have been the same if the PC had not been made or prepared (was there an independent basis)? Ensure you address whether or not the PA was appropriate and warranted given the complainant s performance, behavior, and conduct. II - 9-7

8 A determination of whether a UPA / PA was appropriate or warranted is not an affirmation that you would have handled the situation in the same manner, whether you personally agree with the RMO s chosen course of action, whether it was too harsh or too lenient, or dogmatically whether it was administratively flawless. This assessment is professional in nature: does the evidence indicate, given the circumstances and the standards in place at the time, that the PA was an acceptable and appropriate action for the RMO to take? If not, you must thoroughly explain your rationale in your analysis. b. Within Element 4, analyze the four variables for each of the PAs independently: reason, timing between the PC and PA, motive, and disparate treatment. Reason - Explain the reason the RMO stated why he or she took, withheld, or threatened the PA. Ensure that you identify documentary or testimonial evidence that supports or refutes the RMO s reasons. These reasons, along with relevant supporting evidence, are key to establishing whether there was an independent basis for the UPA / PA. Timing - In evaluating timing between the PC and PA, does the timing indicate there was a cause-and-effect relationship between the PC and subsequent PAs, or was there a change in perceptions prior to and following knowledge of the PC? This chronology is a key portion of your analysis. The importance of producing a thorough and accurate chronology cannot be overstated! Ensure that you capture all relevant actions and events in your timeline. Quite often, one or more relevant events or factors precede the PC. A chronology captures the timing of the PC(s), PA(s), and responsible management official (RMO) knowledge and the important dates (and sometimes hours) that influenced or triggered the PAs / UPAs. Does the timing indicate a cause? Was the PC, even though made prior to a PA and known by the RMOs, sufficiently separated by time and events that it had no impact on the action taken? Was the PC submitted immediately following an act of misconduct or inappropriate behavior that would normally result in an unfavorable action? Any indication that the PC caused a change in perception, or that the Soldier was treated differently, would more than likely invalidate this test and require further investigation. If the RMO had knowledge before he / she took, withheld, threatened, or influenced the PA, it could be reprisal. Using the four variables, the motive for the PA still has to be determined. Motive Focus your discussion on the effect of the PC on the RMO. Did the PC create a motive to reprise, or could it have? Did the RMO suffer embarrassment or negative consequences arising from the PC? Did the PC reflect poorly on the RMOs or organization? Additionally, have any of the RMOs exhibited or expressed animosity toward the complainant for making the PC, or have they expressed animosity regarding the very idea of, for example, someone filing an IG complaint or contacting an MOC? In other words, did the PC create a motive for the RMO to reprise, and was there evidence of animus or dissatisfaction by the RMOs with the complainant specifically for making a PC? The analysis of this variable should address how the PC affected the RMOs. To address this factor, the IG must include analysis and evidence regarding the disposition of the PC, which is how the organization s leadership addressed the possible wrongdoing that the complainant based his or her PC on. Disparate Treatment Gather evidence to indicate whether similarly situated personnel exist who did not make a PC, and consider whether the RMO s actions were consistent with actions he or she has taken against those personnel. This factor is usually of greatest importance. Was the complainant treated the same or differently than others in II - 9-8

9 similar situations? Disparate treatment is essentially a combination of consistency and reasonableness. If the complainant was one of several individuals who received the same punishment (unfavorable personnel action for the same conduct or behavior, such as a Field-Grade Article 15 for driving under the influence), then the PC was not the causal factor. You must gather comparative data or evidence to support that this is, in fact, the case. This method is the Disparate Treatment test. Was the punishment consistent, and if not, why was it not? Include documents such as awards or legal action logs as evidence. Consider whether the PA was overly egregious compared to similar actions or unit norms. In some cases, the IG will find others in similar circumstances, but this fact may still not serve as an appropriate comparison. For instance, there may be separate regulatory standards for different Soldiers in similar circumstances, such as reduction or separation considerations, regulations, and processes for a junior enlisted Soldier versus a senior NCO versus an officer. Similarly, the duty status of a Soldier or the authority under which the Soldier was operating at the time, versus a Soldier in a different status or operating under a different authority may make a comparator unsuitable for proper analysis. Just stating that there were no comparable actions may suggest disparate treatment, which may tend toward an indication of reprisal. Ensure that you describe comparators, or explain a lack of comparators, in your analysis rather than making a simple, one sentence statement. Receiving, Analyzing and Reporting Military Whistleblower Reprisal and Restriction Complaints 9. All Military Whistleblower Reprisal and restriction complaints from Service members, presented to an IG, are immediately reportable to DAIG's Assistance Division, Whistleblower Investigations and Oversight Branch (WIOB), within five (5) working days with appropriate supporting documentation. a. Report Whistleblower complaints using the DoD IG MR / RCN, which is explained later in this section. A Whistleblower complaint is any complaint presented to an IG, following a review of the complainant s Whistleblower Questionnaire and a clarifying discussion between the IG and the complainant, that the complainant wishes to pursue as a Whistleblower Reprisal complaint. During this clarifying discussion, the IG must help the complainant understand what Military Whistleblower Reprisal is and is not based on the elements of a reprisal complaint as outlined in 10 USC 1034 and articulated in DoD Directive b. The IG receiving the complaint must expeditiously and thoroughly address these complaints. Quality work up front is important; once a case is opened with DoD IG, the case cannot be closed until an investigative report (ROI or dismissal recommendation, as appropriate) is approved by DoD IG. If you have any questions, contact WIOB for guidance at commercial (703) or DSN Whistleblower and restriction complaint intake procedures. a. When a Soldier presents a reprisal and / or restriction complaint under the provisions of 10 USC 1034, the receiving IG must have the complainant complete a DA Form 1559, Whistleblower Reprisal Questionnaire (WBRQ), and provide appropriate II - 9-9

10 supporting documentation. Give the complainant a reasonable suspense to return the questionnaire and supporting information -- normally no more than 10 days, although fewer is better. In your notification and IGARS case notes, record the date the complainant provided you the completed questionnaire and supporting information. When providing the complainant the Whistleblower Questionnaire, explain that he or she must sign the Privacy Act Information Release form in order for the IG to move forward with resolving the complaint. A complainant s unwillingness to do so may result in a dismissal recommendation for lack of cooperation. Additionally, the receiving IG may provide a copy of the Whistleblower Reprisal checklist to the complainant to help him or her gather appropriate and relevant supporting documents. Inform the complainant that you will also seek official copies or similar relevant information and documents from unit / organizational sources. WIOB regularly updates the questionnaire and documentation checklist to assist IGs in gathering the best information and forwarding the necessary documents to establish a Whistleblower case. The most current versions will always be posted to the IGNET Web page (through Citrix) under the WIOB Branch POCs link on the left side, then in the Quick Reference Links section. If in doubt, contact WIOB to ensure you have the current versions. b. Once the complainant returns the WBRQ, the receiving IG will review the information provided and conduct an informal Complaint Clarification Interview (CCI). The initial CCI is informal because it is not required to be sworn, recorded, or transcribed, although a sworn, recorded, or transcribed CCI is also fine. During this CCI, review the WBRQ, along with the supporting information provided by both the complainant and the unit, in order to gather sufficient detail to make a proper notification to DAIG and DoD IG. When reviewing the WBRQ with the complainant, clarify the appropriate PCs, PAs / UPAs, and RMOs. Complainants must clearly attribute specific UPAs, threats, or favorable personnel actions withheld to specific RMOs by name and articulate the role these RMOs played in the alleged reprisal. General terms such as unit leadership, the chain of command, or the board members are not acceptable. During the CCI, you should also gather date information (in some circumstances, time as well) sufficient to develop an initial chronology of relevant case events. Ensure the complainant understands what Whistleblower Reprisal is and is not, and ask the why he or she perceives an inference of causation, or inappropriate linkage, between the PCs and any UPAs taken, favorable PAs withheld, or a threat of either one. At a minimum, prepare a summary of this interview in a memorandum for record (MFR). If recommending dismissal later, the CCI MFR or transcript (if available) must be included in the exhibits. c. Separate all other issues or allegations from the reprisal / restriction aspects of the complaint and address them as you normally would. Final or current disposition of those other issues will normally be included as an exhibit later in your Whistleblower ROI or dismissal recommendation. d. An allegation of Whistleblower Reprisal is untimely if the allegation is made more than one year after the Soldier became aware of a UPA, a favorable PA withheld, or a threat of either, that the Soldier believes was done in reprisal for a PC. In the event the complaint may be untimely, direct the complainant to submit a letter of justification II

11 explaining why he or she did not file the complaint until this time. Do not initiate notification until you receive the justification from the complainant. 11. Notification. After receiving the completed WBRQ, the IG who receives the complaint must prepare and send the notification to WIOB within five (5) working days. a. IGs will use the Military Reprisal / Restriction Complaint Notification (MR / RCN), Part 1: 10-Day Notification worksheet for initial Whistleblower Reprisal complaint notifications. Report all Whistleblower Reprisal and restriction complaints to WIOB using the MR / RCN, Part 1 worksheet, along with the original complaint and other appropriate supporting documentation. *Note that Parts 1 and 2 of this form are still being revised within DoD IG and the Services and may change frequently. The MR / RCN is a DoD IG product. The notification addresses DoD IG information and timing requirements. The timeliness of your actions at this point are extremely important. Everything must occur quickly in order to meet the timeliness standard for notification in accordance with 10 USC b. The Whistleblower Advisement Memorandum format, published in previous iterations of The Assistance and Investigations Guide, is obsolete and has been replaced with the Military Reprisal / Restriction Complaint Notification Part 1. An example of the MR / RCN can be found later in this section, and an electronic version (fillable pdf) is available. The most current version will always be posted to the IGNET Web page (through Citrix) under the WIOB Branch POCs link on the left side, then in the Quick Reference Links section. You can also contact WIOB to ensure you have the latest versions. c. Include only the reprisal / restriction complaint aspects and relevant supporting documentation in your notification (e.g. DA Form 1559, WBRQ, etc.). Within 5 working days, send your notification directly to DAIG's Whistleblower Investigations & Oversight Branch (WIOB) (part of DAIG's Assistance Division) via at usarmy.pentagon.hqda-otig.mbx.ignet-saig-ac-whistleblower-rep@mail.mil. Ensure you copy (cc) your higher headquarters IG, if this is your established practice, as well as the appropriate ACOM, ASCC, or DRU IG. The direct notification to DAIG is intended to facilitate rapid transmittal of the notification, not to exclude the ACOM, ASCC, or DRU from the process. Where time permits, it is usually advantageous for the ACOM, ASCC, or DRU IG to review the notification for quality-control purposes and screen the notification prior to notifying WIOB. However, DAIG must complete a review and analysis in order to notify DoD IG within 10 days of any Army IG s receipt of a reprisal / restriction complaint. d. If the complaint involves both senior officials and non-senior RMOs, do not attempt to split the case. However, remember that complaints regarding Senior Officials have a 2-day notification requirement. You may send the full complaint and documentation to WIOB or SAIG-IN. WIOB and SAIG-IN regularly work together to make these casemanagement determinations. Do not put senior officials in the Subject / Suspect section of IGARS; SAIG-IN has the only appropriate mechanism and process to record senior-official RMOs. e. Forwarding Memorandum. The MR / RCN Part 1 notification must be sent as enclosure one, of at least four enclosures, to a forwarding memorandum. An exhibit list for your supporting documentation must also be included as the second enclosure to the II

12 forwarding memorandum. The third required enclosure is a thorough chronology of the events and circumstances identified in the case by the time of the notification. The fourth enclosure is the CCI summary MFR or transcript. Include other enclosures as appropriate; follow the structure shown in the Whistleblower ROI guidance. f. Annotate any special circumstances in your forwarding memorandum, such as a potential relationship to a sexual-assault complaint or inquiry, or a violation of PPD-19 (which pertains to security clearances and access to classified material). WIOB will coordinate with DoD IG to determine who will address cases involving special circumstances. g. If, at the 5-working day mark, you are still gathering the necessary documentation, conducting additional complaint clarification interviews, and analyzing evidence regarding the initial complaint, send the MR / RCN Part 1 notification to WIOB with the documentation and evidence you currently have. In your forwarding memorandum, explain what things you are still working on, and estimate when you expect to provide those follow-up items. h. Immediately after forwarding the notification to WIOB, if you have not already done so, enter the complaint into the IGARS database as a standard IGAR. Enter each RMO into IGARS under the Subject / Suspect tab along with at least one allegation for each individual. Whether you believe the complaint and initial evidence will lead to a dismissal recommendation or to a broader investigation, you must enter each RMO into IGARS at the time of the initial complaint so that DAIG's Records Screening Division (SAIG-RS) can accurately fulfill DAIG's responsibilities within larger scale Army processes. At this point, you should NOT notify the RMO(s), or their commanders / supervisors, as there is currently not an investigation that has been initiated or directed. If or when the case is formally referred for investigation from DAIG through the ACOM / ASCC / DRU to an OOI, that will be the appropriate time to go through the regular notification process as outlined in the IGAP. Do not close the IGAR until DoD IG or DAIG has made a final case-handling determination. If you ultimately recommend dismissal and the dismissal is approved, close the IGAR when DAIG confirms the complaint is closed as a dismissal. If the case is not approved for dismissal, or if you recommend further investigation and a DAIG case is formally referred to you in IGARS, you can link the referral to your existing IGARS record. i. Upon receipt of an MR / RCN Part 1 notification, WIOB will open a case, track the case as a standard IGAR, review all associated documentation, conduct preliminary analysis, send RFIs when needed, notify DoD IG, and send an acknowledgement letter informing the complainant that DAIG received his or her complaint Day Case-Handling Determination; Military Reprisal / Restriction Complaint Notification, Part 2: 30-Day Determination (MR / RCN Part 2) a. For cases that begin with a complaint to a field IG (Intake Dismissals, described in paragraph 15 below), DAIG must submit a case-handling determination / recommendation within 30 calendar days of DoD IG s receipt of the initial notification. Once you send the notification to DAIG, continue gathering evidence, conducting interviews, analyzing the elements of proof, etc. Within 24 calendar-days of the initial notification going up to DoD IG, you must make a determination / recommendation on how the case should be addressed -- II

13 dismiss or investigate. This determination does not mean you are required to complete the case within 24 days, but you must make a determination on how you will proceed with the case. If you can appropriately make this determination / recommendation in less than 24 days, you do not have to wait until the 24-day mark to submit it to DAIG. WIOB will then have 6 days to review the field IG s MR / RCN Part 2, address any remaining needs, and consider whether the complaint meets the requirements for statutory Military Whistleblower Reprisal and should be investigated or dismissed. If WIOB agrees with the determination / recommendation, WIOB will prepare a Service-level endorsement or disposition for DoD IG. The Service-level determination / recommendation must be submitted to DoD IG within 30 calendar days after they receive the notification. An MR / RCN Part 2 is required for all complaints originating at a field IG office and passed to DAIG. b. For cases that are referred from DoD IG through DAIG (Referred Case Dismissals, described in paragraph 15 below), field IGs have 24 calendar days from the date of DoD IG s referral to submit the MR / RCN Part 2 to DAIG. The Service-level determination / recommendation must be submitted to DoD IG within 30 calendar days after DoD IG s referral. Note that this standard may change at a later date based on DoD IG practice or guidance; however, expeditious handling of all inquiry actions during this period is critical. For complaints initially received through DoD IG or DAIG and further referred to a field IG (Referred Case), you do not need to submit the MR / RCN Part 2 if you intend to conduct an investigation. For a Referred Case, the MR / RCN Part 2 is only necessary if you intend to recommend dismissal. c. If, at the 24-day mark, you do not have sufficient information, evidence, or testimony to completely address all Whistleblower and / or restriction elements of the complaint, including a complete and thorough analysis, then the case, by default, needs further investigation. If the case should be investigated further, WIOB will establish a formal tasking for the field IG and / or ACOM / ASCC / DRU IG and refer the case in IGARS. Alternatively, WIOB may choose to retain the case for further investigation or complete a dismissal recommendation at DAIG rather than pass the case back to a field IG office. Note that even when WIOB retains a case, field IGs are expected to support the inquiry; if WIOB cannot get sufficient information from the local supporting IG, WIOB cannot effectively work the case, and it will likely be referred to the supporting IG for resolution. (1) If you determine the case needs further investigation, complete the MR / RCN Part 2: 30-Day Determination worksheet, including the sections for PCs, PAs, Inference of RMO Knowledge, the Recommending IG Attestation, and the Recommending IG. Annotate any exhibits the first time you mention them in any of these sections. Complete the field for the complainant interview date if you have conducted your formal interview by that point. For cases requiring further investigation, do not use the CCI date, as the CCI is not sufficient to complete a Whistleblower ROI. (2) Do not complete the Inference of Causation section for cases that will be further investigated, because this section contains the analysis of all appropriate evidence in the case, not just the evidence you have available within the first 30 days. (3) The MR / RCN Part 2 notification must be sent as enclosure one, of at least three enclosures, to a forwarding memorandum. An exhibit list for your supporting documentation must be included as the second enclosure to the forwarding memorandum. If you are not including additional supporting documentation at this point, state that fact in your forwarding memorandum. The third required enclosure is an updated chronology of the events and circumstances identified in the case by that point. If you don t have any updates II

14 to your original chronology, state that fact in forwarding memorandum. Include other enclosures as appropriate; follow the structure shown in the Whistleblower ROI guidance, as necessary. (4) If you believe an RMO should be added or removed since you submitted the MR / RCN Part 1, attach an updated Part 1 worksheet, marked as an update, to your forwarding memorandum. At this point, you may not make a Substantiated or Not-Substantiated determination on any RMO. You may only remove an RMO at this point if the evidence you have collected and analyzed demonstrated that the RMO should not have been considered an appropriate RMO in the first place. An example of this situation would be if the Battalion S-1 NCOIC was originally included in the complaint but the evidence demonstrated that the NCOIC's role was administrative only; he or she only forwarded an unfavorable evaluation through the personnel system but was not a member of the rating chain and did not make a recommendation to influence the rating chain members. You must include your rationale and evidence in the Comment section of the updated MR / RCN Part 1. When in doubt, keep the person in the case as an RMO and address his or her role, or lack thereof, in your final product. d. At the 24-calendar-day mark, if you have sufficient information, evidence, and testimony to recommend a dismissal, based on a complete address of all Whistleblower and / or restriction elements of the complaint, including your complete and thorough analysis, then you may submit your recommendation to dismiss the complaint. This action is the only opportunity to recommend dismissal based on the substantive circumstances of the case as described in paragraph 16.b. below. After 30 calendar days from either DoD IG s referral, or their receipt of the initial notification, DoD IG will require a Whistleblower ROI to close the case based on substantive circumstances. Timeliness, detail, and all appropriate evidence are critically important at this point if you intend to recommend dismissal. Dismissal recommendations based on one of the three administrative circumstances, as described in paragraph 16 a below, may be submitted later in the investigative process; at the time of the occurrence for withdrawal or lack of cooperation, or upon discovery that the evidence shows the complaint was untimely. (1) If you recommend dismissal, complete all sections of the MR / RCN Part 2: 30- Day Determination worksheet. Annotate any exhibits the first time you mention them in any of these sections. (2) The IG may recommend dismissal if the documentary evidence, in conjunction with the complainant s WBRQ and interview, indicates the complaint fails one or more elements of proof for a reprisal complaint. This situation means you have demonstrable evidence to indicate the complaint fails to meet the Whistleblower provisions. IG logic, opinion, and supposition do not substitute for evidence! If the evidence available at that time does not support dismissal, the receiving / reporting IG should recommend further investigation. (3) The MR / RCN Part 2 must be sent as enclosure one, of at least three enclosures, to a forwarding memorandum. Attach an updated MR / RCN Part 1 to your Part 2, if necessary. An exhibit list for your supporting documentation must be included as the second enclosure to the forwarding memorandum. The third required enclosure is an updated chronology of the events and circumstances of the case. For Referred Case Dismissal recommendations, include the transcript of the formal complainant interview as II

15 described below at the beginning of paragraph 15 and paragraph 15 b. Include other enclosures as appropriate; follow the structure shown in the Whistleblower ROI guidance, as necessary. (4) The MR / RCN worksheet, with evidence, is also an investigatory IG product when recommending dismissal. The worksheet is an additional tool in an IG s kit bag to address particular cases that fall within a specific framework as potential dismissals. If the worksheet is not the best tool to fully address the entire Whistleblower complaint, even though it falls within this specific subset of Whistleblower cases, DoD IG or DAIG may ask an IG to address (or readdress) the complaint using the traditional methodology and Whistleblower ROI. Additionally, if dismissal recommendations are sent to WIOB without sufficient evidence, analysis, or addressing all relevant reprisal elements, the case will likely be referred back to the field IG for a full investigation and Whistleblower ROI. Dismissal Recommendations 13. A dismissal recommendation allows the Service to notify DoD IG of a complaint that does not require further investigation, allowing for a more efficient use of resources. Organize the supporting exhibits in accordance the sample exhibit list in this guide. All of this work must be done well and fully supported by facts. Implicit in this process are timely responses by field IGs to RFIs from WIOB. If the facts and evidence included with the worksheet do not support a Dismissal Recommendation, if we cannot address the case's additional needs in a timely manner, and if further recorded interviews under oath are required, the worksheet is not the right tool for that case. In that instance, craft standard allegations and prepare a Whistleblower ROI to document your findings. 14. A dismissal recommendation is appropriate if the documentary evidence, in conjunction with either a formal or informal complainant interview, indicates the Whistleblower complaint fails for one or more of the four elements of proof. A dismissal recommendation is also appropriate if the complaint was untimely, the complaint is withdrawn, or the complainant is uncooperative (and there was no other reason to pursue reprisal allegations). Note that dismissal is the term of art for complaints that do not warrant further inquiry under DoDD If the criteria below apply, the investigating IG may submit a dismissal recommendation to WIOB. However, A DISMISSAL IS NOT A SHORTCUT; a dismissal requires the same supporting evidence, analysis, and documentation as any other investigative product and must include an interview with the complainant. If the evidence indicates there was a PC followed by a PA, the complaint was timely, and there may be an inference of causation, then you must conduct an investigation. If the readily available evidence and analysis does not lead to an expeditious determination that a dismissal recommendation is warranted, then an investigation, yielding Not- Substantiated allegations, is always preferable to a dismissal. Contact WIOB for guidance first before shifting from an investigation footing to a dismissal recommendation. Dismissal recommendations do not require a legal review. However, there may be occasions when a legal review is prudent, particularly if your evidence review and analysis differs with the findings of a command product that you include as an exhibit. II

16 15. Two Types of Dismissal Recommendations. At this point in time, there are two types of dismissal recommendations (although this distinction may change based on DoD IG guidance). An Intake Dismissal is a case where the complaint originated with a field IG office and a notification was passed up to DAIG and DoD IG. If a recommendation for dismissal is made to DoD IG at the 30-day mark, or before a formal referral for investigation comes from DAIG, the case is an Intake Dismissal. A Referred Case Dismissal is a case that either began as a referral from DoD IG or DAIG to a field IG office, or a case that started at a field IG, but has since been formally referred to an OOI for investigation by DAIG. Interview differences between these two types are addressed in greater detail below. The bottom line is that an informal CCI, supported by documentary evidence, may be sufficient when preparing an Intake Dismissal Recommendation. However, a Referred Case Dismissal recommendation should have a more formal complainant interview. Once a case is opened at DoD IG, and an investigation has been directed, parts of the complaint may still be dismissed if the circumstances support dismissal. However, these recommendations will require full review and oversight as part of your final report. If the investigating IG requests that only specific parts of a Whistleblower complaint be dismissed, include the recommendation in the Whistleblower ROI along with the appropriate supporting information. a. For Intake Dismissals, use the MR / RCN, Parts 1 and 2, because each has different case information. If the dismissal recommendation is also the initial notification to DoD IG, timeliness is imperative in order to also meet the 10-day notification requirement in 10 USC Therefore, field IGs must provide the necessary supporting information. Otherwise, the notification will go forward and the case will likely be referred for further investigation. b. The MR / RCN, Parts 1 and 2, may also be used to recommend Referred Case Dismissals if they can be submitted to DoD IG within the 30-day windows described above, whether the case was referred from DoD IG initially or DAIG. As you collect evidence and develop the case, you may determine that this case is appropriate for a dismissal recommendation. For a case referred to your office by DoD IG or WIOB, a formal complainant interview (recorded under oath) is required; the informal CCI mentioned above for Intake Dismissals is not sufficient. Either a transcript, or a detailed summary accompanied by an audio file, must be included with the evidence in the final product. c. The MR / RCN worksheet, with evidence, is an investigatory IG product when recommending dismissal. Recommendations made using the worksheet must be fully documented and as thoroughly written and presented as any other IG product. A dismissal recommendation worksheet, with evidence, must be a stand-alone product. It should be written for a reader outside of the Army who may not be familiar with Army norms, practices, policy expectations, acronyms, or vernacular. As with most IG cases, the basis for most dismissal recommendations are not fixed within rigid litmus-test-style considerations but must be viewed through the specific lens of each individual case. A complete recommendation must demonstrate that the IG addressed and reviewed all reprisal-related concerns. These worksheets and their associated evidence must still meet the same rigorous review and approval expectations as all other Whistleblower Reprisal investigations. II

17 16. Basis for a Dismissal Recommendation. There are ten circumstances under which a Dismissal Recommendation can be made using the MR / RCN worksheet. Review the case material to determine whether there is an appropriate basis from which to recommend dismissal. In other words, documentary evidence, in conjunction with a complainant interview (either an informal complaint clarification on intake or formal complainant interview if the case was referred) indicates the complaint fails on one or more elements of proof. You cannot substitute IG logic, opinion, assumption, or unsupported supposition for evidence. A lack of, or incomplete evidence for, necessary reprisal elements means you must do a full investigation. a. Dismissal recommendations based on administrative circumstances. In the event a complainant wishes to withdraw the Whistleblower complaint, is unresponsive and/or does not cooperate with the IG investigation, or makes an untimely reprisal complaint, based on 10 USC 1034, you may recommend administrative closure for an Intake or Referred Case Dismissal. (1) Withdrawal. Use the MR / RCN worksheet to submit a recommendation based on withdrawal if the complainant wishes to freely withdraw his or her reprisal complaint. Be certain to document the withdrawal request. Use either a written request from the complainant; a confirmation from the IG to the complainant with his or her response; or, in circumstances where the OOI cannot obtain either one, an MFR signed by the investigating IG. If you use an MFR, include an explanation of why there is no direct request or response from the complainant. A verbal statement from the complainant, documented in an MFR, is acceptable as a last choice but may be challenged later. Some type of auditable communication from the complainant is always best. [Note: A memorandum request is an acceptable alternative; contact WIOB for an example.] (2) Unresponsive / Uncooperative Complainant. Submit a MR / RCN worksheet if a complainant becomes unresponsive or uncooperative. Timely cooperation by the complainant is critical to a thorough and appropriate investigation into allegations of Whistleblower Reprisal. If the complainant becomes unresponsive during intake or during the investigation, DoD IG has set a baseline of at least three communication attempts, after which you can recommend dismissal. You must make at least three attempts to contact the complainant and use all available modes of communication, such as home / cell telephone, duty phone, personal ,.mil , letter, etc. The number of attempts is dictated by the modes of communication you have for the complainant. This requirement does not mean three separate attempts using each separate method. You must make at least three total attempts if you only have one, two, or three modes of communication available to reach the complainant. Make two or more attempts (at least one each using those methods already cited) followed by a final attempt in writing. In this final attempt, advise the complainant that it will not be possible to investigate the alleged reprisal without his or her cooperation and that you will close the case unless you receive a reply within 10 days. After 10 days without a response, or without providing the documentation / input you requested, you may submit a dismissal recommendation. Ensure that you articulate all of the communication attempts in the forwarding memorandum for your MR / RCN. (3) Untimely Complaint. Was the complaint made in a timely manner? DoD Directive , dated 17 April 2015, allows a complainant to make a reprisal complaint up to one year after he or she first became aware of the adverse or unfavorable PA, a withheld II

18 favorable PA, or a threat of either. The name, grade, social security number (given at the complainant s discretion and only for a specific purpose), unit assignment, address, and phone number of the Soldier are required for DoD IG to approve a dismissal based on timeliness. Review paragraph 3e of DoDD for three possible exceptions to this requirement. Occasionally, the complainant s first awareness of a PA may not always coincide with the actual PA itself. For example, a Soldier was verbally counselled on 2 February that his culpability for lost equipment, based on the findings of a FLIPL, would reflect poorly in the Responsibility and Accountability section of his NCOER. On 17 February, he was presented with a draft NCOER containing working verbiage for the bullets. The final evaluation, with slightly different wording in the final Responsibility and Accountability bullets, was signed on 22 March. The complaint year window began on 22 March. b. Dismissal recommendations based on substantive circumstances. The remaining seven circumstances to recommend an Intake or Referred Case Dismissal are predicated on the content of the case itself. (1) No PC. Was there a PC? You must be technically sound and consider all possible forms and categories of protected communications. Additionally, you must consider RMO speculation, rumors, or attribution. When you cannot demonstrate with certainty there was no PC, default to the complainant s perspective. Not all communications are protected under 10 USC 1034; e.g. discussing a security violation with peers during a smoke break is not an appropriate substitute for a person designated to appropriately receive such a complaint or report. Similarly, communication with an IG or MOC that is not lawful, such as a threat, is normally not a covered PC. (2) No PA. Was there a PA? The same rule applies regarding determining if there was or was not a PA. You must be technically sound and consider all possible forms and categories of personnel actions covered by 10 USC Remember, the definition does not say adverse; consider an action unfavorable if taking or denying a PA will have an unfavorable effect on the complainant's career (e.g., selection for career-enhancing training or assignments, promotion, etc.) or benefits (e.g., leave balance, TRICARE eligibility, proficiency pay, etc.). Review the PA definition on page 11 of DoDD , and call WIOB for any clarification. (3) PA Preceded the PC. Was a PC followed by a covered PA, a favorable PA withheld, or either of these two threatened? If the PA or threat preceded the PC, the reprisal statute does not cover the complaint. Note that what matters most is when the PA was initiated or threatened, not the date of an action or conduct that led to the PA. For example, the Soldier is late to work on Monday yet again, files a PC on Tuesday, and the Commander initiates an Article 15 on Wednesday for the Soldier repeatedly being late. In this example, the PA occurred on Wednesday, after the PC (Tuesday), even though the originating behavior occurred the day prior to the PC (Monday). (4) No RMO Knowledge of the PC. At the time of the PA or threat, did the RMO know that a PC was made or prepared, or did the RMO perceive that a PC was made or prepared? You must be able to demonstrate that the RMO was unaware that the PC was made or prepared, or perceived to have been made or prepared. The sequence of PC PA RMO knowledge does not support a Whistleblower Reprisal complaint. II

19 Lack of RMO knowledge must be demonstrable if it forms the basis to recommend dismissal. If lack of RMO knowledge is not clearly demonstrable, or requires RMO or other witness testimony taken under oath, the dismissal worksheet will likely not be the proper tool. A full investigation and a complete Whistleblower ROI will be necessary. NOTE: Always remember, 10 USC 1034 is a punitive statute in federal law, so an RMO is addressed as a suspect, not a subject. Therefore, if an RMO interview is necessary as part of your case, essentially anything more than a few informal basic clarifying questions or requests for documentary evidence, they must be afforded a suspect read-in and must be apprised of their rights by executing a DA Form If your conversation drifts toward questions or discussion of substantive case elements, stop where you are. At that point, either execute the formal read-in and DA Form 3881 or schedule a formal interview for another time. (5) No Inference of Causation. Look at the information provided by the complainant and the complainant s unit or organization to determine if there is an Inference of Causation. This is a new term-of-art for Army dismissal recommendations. However, it is based on an analytical framework that we already use in Whistleblower cases. The Inference of Causation is a potential causal linkage indicating the likelihood that the PC (made or perceived) caused or influenced the RMO to take a UPA, withhold a PA, or threaten either of the two. If the complainant s input during the CCI or formal interview, as well as any documentary evidence, clearly indicates no causal nexus between a PC and PA, or that the PA occurred independently of a PC, you may submit a Dismissal Recommendation. The key to recommending a dismissal based on no Inference of Causation is a thorough analysis of the four key variables: (1) Reason(s), (2) Timing, (3) Motive, and (4) Disparate Treatment (review paragraph 8.b. above). Sufficient documentary and / or testimonial evidence must support recommendations based primarily on these variables. Of these four variables, timing and disparate treatment will be most important to a recommendation using the worksheet format. While reasons and motive may be a factor, they will not likely be the main factors in determining whether an Intake Dismissal Recommendation is appropriate. Most importantly, when submitting an Intake Dismissal Recommendation, the documentary evidence, in conjunction with the CCI, must be sufficient to fully support the recommendation with no need for additional formal RMO or witness interviews taken under oath. Additionally, you must clearly indicate, and support with evidence, the actual causal impetus for the PA(s). Sometimes the RMO reason(s) are articulated in the documentary evidence, such as in a GOMOR recommendation memorandum, Article 15 DA Form 2627, a relief for cause memorandum, or a written counseling statement. However, deeper analysis of RMO reason(s) and motive(s) usually requires a formal interview of the RMO or other witnesses. Should a formal RMO interview be required, the MR / RCN form is not the appropriate tool to use. NOTE: The documentary and / or testimonial evidence, along with your analysis in the MR / RCN, must be a stand-alone product, especially regarding why the RMOs took the action and why a causal nexus does not exist. Your IGARS case notes are not included in the recommendation reviewed by DoD IG. Additionally, do not assume that DoD IG is intimately familiar with specific elements of Army regulations and policies. If your analysis is predicated on a particular policy or regulatory II

20 citation, include an extract as part of your evidence. (6) Complainant not covered by DoDD With rare exception, personnel actions impacting AC and USAR Soldiers operating under Title 10 USC, as well as ARNG Soldiers operating under Title 10 USC and Title 32 USC, are covered under the 10 USC 1034 reprisal statute and DoDD USAR and ARNG Soldiers are covered whether they are serving in any active / AGR status or a traditional TPU / M-DAY status. PAs are covered as long as the actions in the complaint pertain to a person s career and / or benefits as a uniformed Service member fulfilling a DoD requirement or structure within COMPO 1, COMPO 2, or COMPO 3 of the U.S. Army, or a DoD requirement in another military Service. Personnel actions are not covered by 10 USC 1034 when they impact a person while he or she is operating in other possible statuses. For instance, an action that negatively impacts a Soldier s part-time employment at the post Fitness Center as a non-appropriated funds (NAF) aerobics instructor is not covered by 10 USC Likewise, an action may not be covered that negatively impacts a USAR or ARNG Soldier s career, benefits, or position solely within their employment as a Dual-Status or Non-Dual-Status Technician (as a Department of the Army Civilian), such as General Service (GS) or Wage Grade (WG) promotion, disciplinary or reemployment considerations. Contact WIOB for technicianrelated cases, since they can be tricky. Additionally, actions that negatively impact an ARNG Soldier s pay or benefits while performing State Active Duty (SAD) are more than likely not covered under DoDD Decisions that negatively impact a person s security clearance or access to classified material are more than likely covered under a completely different standard -- PPD-19. All of the situations above not covered by 10 USC 1034 may be covered under other reprisal statutes within U.S. Code or Executive Branch policies. For complaints such as these, or that may be similarly related, contact WIOB, and we will be glad to work through them with you. While Army IGs do not investigate reprisal complaints under 10 USC 1587, 10 USC 2409, 5 USC 2302, or PPD-19, DoD IG still may have responsibilities or interest in all such cases. Please contact WIOB for questions on handling any complaints covered by these other standards. (7) No restriction as defined by DoDD Restricting, or attempting to restrict, a Soldier s lawful communication with an IG or MOC is prohibited under 10 USC 1034, regardless of the content. An attempt to restrict a Soldier s lawful communication does not have to be successful in order to be investigated or substantiated. A dismissal recommendation may be appropriate if you can demonstrate that the RMO did not restrict, or attempt to restrict, the Soldier from communicating with an IG or MOC. If the complainant reports, or the evidence demonstrates, that an RMO prevented, or attempted to prevent, communication through another channel of address, such as a Commander / 1SG / CSM, an EOA, unit safety officer, patient ombudsman, etc., then restriction under 10 USC 1034 is not the appropriate standard to use. A complaint or allegation of this type is more than likely appropriate for further address as an abuse of authority or similar personal conduct standard. Additionally, consider dismissal if the complainant reports, or the evidence demonstrates, that an RMO prevented, or attempted to prevent, a Soldier from making an IG or MOC communication that was not lawful, such as a threat. II

21 Whistleblower Investigations 17. If DoD IG or WIOB determines that a Whistleblower / restriction complaint should be referred for investigation, then DAIG s Assistance Division, as the office of record, will task an appropriate ACOM, ASCC, or DRU IG to investigate the allegation as the office of inquiry. However, WIOB remains the Office of Record on all Whistleblower cases. DAIG s Assistance Division will forward the tasking and any preliminary inquiry results to the ACOM, ASCC, or DRU IG for use in an investigation. Whistleblower Reprisal investigations normally take place one command echelon above the RMO responsible for the unfavorable personnel action. In some cases, the ACOM, ASCC, or DRU IG will investigate the allegation, but the IG staff section that received the complaint may be tasked to conduct the investigation when the case is referred by WIOB or the ACOM, ASCC, or DRU IG. There are some cases where DAIG may restrict the authority to refer an investigation to a specific office for reasons such as conflict of interest or other significant issues with an IG or members of an IG office. This restriction is not driven by the complainant s wishes but is carefully considered within DAIG. The decision is not made lightly. 18. For cases that are appropriate for a standard investigation, the investigating IG will obtain the Directing Authority's concurrence or non-concurrence with the conclusions and recommendations of the investigation, per Army Regulation 20-1 and Part Two, Section 4-16, paragraph 4, of The Assistance and Investigations Guide. Forward the ROI, with legal review, through IG channels to WIOB. Each intermediate IG will review the ROI and address any quality-control issues with the OOI before forwarding the case to the next level IG. a. IGs will prepare the ROI in accordance with the guidance outlined in Army Regulation 20-1, paragraph 7-2, and Part Two, Chapter 4, of this guide but using the specific Whistleblower ROI format outlined in this section. The Whistleblower ROI represents the required format for DoD IG submission. Both the format and a sample Whistleblower ROI appear at the end of this section. In general, the Whistleblower ROI format, not the Report of Investigative Inquiry format, is the standard, since all individuals investigated for Whistleblower Reprisal are suspects, and the investigation must adhere to the most formal aspects of an IG investigation. DoD IG also requires an investigating officer checklist for Whistleblower Reprisal investigations and a copy of the investigation plan. The IO checklist is included at the end of this section. b. During Whistleblower Reprisal investigations, it is not uncommon that you may have to expand your investigation outside the bounds of your normal IG jurisdiction. WIOB has tasking authority to direct subordinate IGs to conduct investigations, provide reports, and assist in these investigations. WIOB is the Office of Record because all Whistleblower cases and investigations, as mandated by the statue, are required of DoD IG, and further, the SecArmy; WIOB manages that responsibility on behalf of the SecArmy. Since the OOI investigates complaints at the request of WIOB, it is under the auspices of the SecArmy and DoD IG, when necessary, that IGs support these investigations when needed. The tasking memorandum (see the sample at the end of this section) to the IG staff section charged with investigating the allegation provides your authorization to seek assistance and investigate RMOs outside your traditional organizational umbrella. However, you are still required to obtain a written directive signed by your Directing Authority or Command IG to conduct investigations into allegations of Whistleblower Reprisal. You do not need a separate directive from each Directing Authority that the complainant or RMOs now fall under. II

22 However, it is prudent, and a basic professional courtesy, to ensure that you coordinate with those organizations IGs before contacting people within their organization. 19. The ACOM, ASCC, or DRU IG will forward the completed Whistleblower ROI to WIOB for review, for DAIG service-level oversight requirements, and for ultimate transmittal to DoD IG. Preferably the Whistleblower ROI and the exhibits will be files uploaded to IGARS but can also be acceptable as either an attachment or in hard copy sent to U.S. Army Inspector General Agency, ATTN: SAIG-AC (room 1D116), Whistleblower Investigations and Oversight Branch, 1700 Army Pentagon, Washington, DC a. If the review by DAIG or the ACOM / ASCC / DRU IG determines that the ROI is insufficient, the determining IG office will normally return the ROI to a subordinate IG for additional work, revision, amendment, or for a written addendum that addresses the identified shortfalls. However, the higher echelon IG office may also choose to prepare an amendment / addendum or overturn a subordinate IG s determinations. b. Any change to a determination requires a new review for legal sufficiency before the case is forwarded to WIOB for final review. Once WIOB sends the report to DoD IG, and DoD IG approves the findings, WIOB will then inform the ACOM, ASCC, or DRU; send final notifications to the suspects and complainant; and close the case. The final determination for all linked cases in IGARS must reflect the same findings in each and must be the approved determination by DoD IG. c. If an IG recommends substantiating an allegation of reprisal, the ROI or amendment must include a recommendation for corrective action. This requirement is a unique aspect of Whistleblower Investigation and Whistleblower ROIs. With respect to an RMO, the IG will not recommend a specific action but will recommend forwarding the approved Whistleblower ROI to the appropriate commander to consider for appropriate action. DO NOT recommend a specific action. The specific action is the commander s decision with the advice of his or her supporting Staff Judge Advocate. Additionally, concerning the complainant, recommend correcting the record for the UPA(s) found to have been administered in reprisal; again, do not recommend a specific action. For example, in the case of an evaluation, it would be inappropriate to recommend removal of the evaluation from the Soldier s AMHRR; rather you could recommend the Soldier appeal to the ABCMR to correct the record or seek appropriate relief. It is imperative that the Whistleblower ROI be clear and specific as to what specific part of the evaluation was included or administered in reprisal to inform the reviewing agency. For example, if a specific comment on an OER was included in reprisal but the OER was otherwise an accurate representation of the Soldier s performance, conduct, and behavior based on the IG s analysis, the IG might state, Although the senior rater s characterization of CPT X s performance and conduct was otherwise accurate and appropriate, the investigation found that the senior rater entered the comment, Additionally, he provided sworn statements which accused the chain of command of wrong doing, to have been included by the senior rater in reprisal for the Soldier s protected communication with the IG. 20. In accordance with DoDD , DoD IG is the final approving authority for cases involving allegations of Whistleblower Reprisal. All appeals of approved findings should be submitted directly to DoD IG, by the complainant or the RMO, via the DoD Hotline website. DoD IG does not accept third-party requests for reconsideration. II

23 21. If DoD IG approves the report containing substantiated allegations of a violation of 10 USC 1034, Military Whistleblower Reprisal, TIG has authorized, through Army Regulation 20-1, release of that document to the suspect's General (or Special) Court-Martial Convening Authority (GCMCA) for possible use in adverse or other action, as may be appropriate. a. For complaints initiated prior to 26 December 2013 (pre-ndaa 14 cases), DAIG's Records-Release Office will release the report for adverse action, normally to the appropriate GCMCA, along with the supporting IG and SJA. The OOI, or supporting IG if the RMOs are no longer under the same command, will notify DAIG s Assistance Division (SAIG-AC) of corrective action taken within 10 working days of the completed corrective action (or the suspense stated in the SAIG-AC closure memorandum) in accordance with DoDD See paragraph 3-3a and 7-4b (3) (d) in Army Regulation 20-1 for further guidance. The command, via the Command IG, should provide SAIG-AC a copy of any documents describing command action taken, or a copy of the notice of the determination and the reasons for not taking action, within 10 working days of the completed corrective action (or the suspense stated in the SAIG-AC closure memorandum) in accordance with DoDD This requirement allows WIOB to satisfy Service responsibilities to DoD IG as well as properly document, file, and close the reprisal case in IGARS, thus ensuring dueprocess for both the complainant and the suspect. b. For cases opened on or after 26 December 2013 (NDAA 14 and later), the report will be forwarded via a designated representative on behalf of the Secretary of the Army to the appropriate commander for action. DoDD , dated 17 April 2015, requires the SecArmy to consider appropriate disciplinary or corrective action against the individual who committed the restriction or reprisal. 22. Army Directive directs the Sexual Assault Review Board (SARB) to report whether victims, witnesses, bystanders, the Sexual Assault Response Coordinator (SARC), victim advocates, first responders, or other parties experienced retaliation or reprisal. Should the SARB contact your IG office with a request for information to meet this requirement, do not directly disclose IG information in support of this requirement. Instead, forward inquiries of this nature to DAIG s Records-Release Office (SAIG-RS). II

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