Enhancements to Military and DoD Nonappropriated Fund Employee Whistleblower Protections

Amendments to Title 10, United States Code, Section 1034, Protected communications; prohibition of retaliatory personnel actions, and Title 10, United States Code, Section 1587, Employees of nonappropriated fund instrumentalities: reprisal, signed by President Obama on December 26, 2013 took effect on that date for any instance on or after December 26, 2013 where an unfavorable personnel action was allegedly given or threatened or a favorable personnel action was allegedly denied or the denial was threatened in reprisal for a protected communication or disclosure.

What Do These Enhancements Mean?

Members of the Armed Forces (10 USC 1034)

All changes listed below are only applicable to instances where the unfavorable personnel action (or denial of a favorable personnel action) occurred on or after December 26, 2013. All instances where the action happened prior to 26 December, 2013 are handled under the procedures in place prior to 26 December, 2013.

• The timeline for a member to file a reprisal complaint under 10 USC 1034 has expanded from 60 days to one year. The timeline begins when an unfavorable personnel action is taken or a favorable personnel action is withheld.
• Members are protected from reprisal for being perceived as making or preparing a protected communication.
• Testimony or a communication made in a court-martial proceeding is now protected.
• Testimony or otherwise participating in or assisting in an investigation or proceeding related to a communication protected under 10 USC 1034 or filing, causing to be filed, participating in, or otherwise assisting in an action brought under 10 USC 1034 is protected.
• Making or threatening to make significant changes to the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade is considered an unfavorable personnel action.
• The language in the statute was clarified to ensure communications of rape, sexual assault, or other sexual misconduct in violation of articles 120 through 120c of the UCMJ were protected communications under 10 USC 1034.
• Communications shall not be excluded from the protections of 10 USC 1034 because—
  • the communication was made to a person who participated in an activity that the member reasonably believed to violate a law or regulation;
  • the communication revealed information that had been previously disclosed;
  • of the member’s motive for making the communication;
  • the communication was not made in writing;
  • the communication was made while the member was off duty; and
  • the communication was made during the normal course of duties of the member.
• IGs investigating allegations under 10 USC 1034 must be outside the immediate chain of command of both the member submitting the allegation and the individual or individuals alleged to have taken the retaliatory action and/or the IG the must be at least one organizational level higher than the member who submitted the allegation and the individual or individuals alleged to have taken the retaliatory action.
• A copy of the report of investigation will be forwarded to the appropriate Service Secretary (if applicable) within 30 days of completion of the investigation.
• If an allegation of reprisal under 10 USC 1034 is substantiated, the Secretary of the military department concerned shall determine if a violation has occurred.  If the Secretary determines a prohibited personnel action has occurred, the Secretary will order such action as is necessary to correct the member’s personnel record and will take appropriate disciplinary action against the individual who committed the prohibited personnel action.

Nonappropriated Fund Employees (10 USC 1587)

• The amendment extends whistleblower protections to DoD nonappropriated fund employees who are threatened with unfavorable personnel actions or are threatened with the denial of a favorable personnel action because they made a disclosure protected under the statute.