https://crsreports.congress.gov
April 9, 2020
Protecting Military Whistleblowers: 10 U.S.C. §1034
Protected Actions
Military whistleblower protection applies to any
servicemember who lawfully discloses wrongdoing to
designated officials. A military whistleblower is any
servicemember who makes or prepares a protected
communication or who is perceived as making or preparing
to make a protected communication to an inspector general
(IG), a member of Congress, or other designated officials.
Prohibited Conduct
Anyone subject to the Uniform Code of Military Justice
(UCMJ) who violates military whistleblower protection can
be prosecuted by court-martial with a maximum
punishment that includes bad conduct discharge,
dishonorable discharge, three years confinement, or total
forfeiture of pay and allowances. Civilian employee
violators are subject to administrative discipline that could
include firing the employee.
Restriction and Reprisal
Restriction occurs when a person prevents or attempts to
prevent a military whistleblower from communicating or
preparing to communicate with an IG or a Member of
Congress, unless the communication is unlawful. Reprisal
occurs when a person takes or threatens to take an
unfavorable personnel action against a military
whistleblower or withholds or threatens to withhold a
favorable personnel action from a military whistleblower.
In a common scenario, if a commander became aware that a
servicemember intends to blow the whistle on him, he
cannot stop the servicemember from doing so. And, if a
commander becomes aware that a servicemember did blow
the whistle on him, he cannot penalize the servicemember
for doing so. The first is restriction; the second, reprisal.
Reprisal consists of four elements:
1. Protected Communication—disclosure of an
abuse of authority, fraud, a gross waste of
funds, or a violation of law or regulation,
including sexual misconduct and threats to
public property or safety.
2. Personnel Action—action that affects or
potentially affects a servicemember’s career
or current position, such as reassignment,
return to service, retaliatory investigation,
adverse evaluation, or removal from a school,
command, or promotion list.
3. Knowledge—established by determining if
each person involved in a personnel action
perceived or was aware of the protected
communication. If a person involved in a
personnel action asserts that he or she was
unaware of the protected communication,
additional evidence is required to corroborate
this assertion.
4. Causation—established by determining what
influence a protected communication had on a
person’s decision to take, threaten, withhold,
or threaten to withhold a personnel action. To
determine causation, four technical elements
are examined and must hold true.
Process
A servicemember may submit reprisal or restriction
allegations to an IG within one year following the alleged
act or within one year following the date the servicemember
became aware of the alleged act. The Department of
Defense (DOD) IG or a DOD component IG is to
investigate DOD servicemember or former servicemember
allegations (DOD Directive 7050.06). The Department of
Homeland Security (DHS) IG is to investigate U.S. Coast
Guard (USCG) servicemember or former servicemember
allegations (33 C.F.R. Part 53).
Table 1. DOD IG Military Whistleblower
Fiscal Years 2017–2019
