Military Whistleblower Reprisal Investigations Report

Glenn A. FineGlenn A. Fine

By Danielle Brian, Mandy Smithberger | Project On Government Oversight

Mr. Glenn Fine
Acting Inspector General
U.S. Department of Defense
Office of Inspector General
4800 Mark Center Drive
Alexandria, VA 22350-1500

Dear Mr. Fine:

Thirty-five years ago, the Project On Government Oversight (POGO) was founded by Pentagon whistle blowers who were concerned about the Department’s procurement of ineffective and overpriced weapons, and has long been concerned with how the Department treats whistle blowers.

The Department of Defense Office of the Inspector General (DoD IG) was intended to be an office that would work with and protect those whistle blowers. However, independent evaluations of the DoD IG, including a report on military reprisal investigations issued by the Government Accountability Office (GAO) last year, have found that the office is failing in its duties to conduct timely investigations by taking three times as long as the office’s requirement, in addition to lacking proper case documentation to support its investigative findings.

These GAO findings are only the most recent revelations of mismanagement and systematically untimely processes. Even more troubling, we now believe that DoD IG’s Administrative Investigations leadership, management, and staff may have purposely altered records to mislead GAO investigators about the depth of these problems.

These procedural failures, combined with lingering questions about this office’s independence, historically narrow interpretation of statutory protections, and conspicuously low substantiation rates, make it unlikely that military whistle blowers’ cases will be adequately handled or that they will receive justice. We believe these systemic failures reflect a culture that cannot be ameliorated with organizational reforms, but instead can only be addressed through fundamental changes to DoD IG’s Administrative Investigations personnel. We are writing to you as the new acting leader of a broken office with the hope that you can change that culture and as a result, be able to oversee the spending of taxpayer dollars more wisely and as a result better provide for the war fighter.

In 2011, the DoD IG pledged to Congress that it would make improvements to its whistleblower protection processes. At that time, DoD IG told POGO this would include “a comprehensive realignment of the military reprisal investigations program, emphasizing timeliness and thoroughness of investigations, as well as oversight,” with the aim of enabling the DoD IG to serve as the “model whistleblower protection program in the Federal government. ”A 2012 GAO report further identified a number of failures in both the timeliness and thoroughness of military whistleblower retaliation investigations, and DoD IG reiterated its commitment in its September 2012 semiannual report to Congress, writing that it was:

focused on transforming itself into a model administrative investigative agency by expeditiously responding to the Government Accountability Office recommendations made in February 2012 regarding the Whistleblower Protection Program and the conduct of reprisal investigations; implementing initiatives to reduce investigative cycle time; and incorporating performance metrics into a new, state-of-the-art complaint database management system.

Subsequent reviews of the actions taken by DoD IG reveal, however, that military whistle blowers can expect little support from DoD IG. In its little noticed 2015 report, the GAO revealed numerous instances of institutional indifference and misconduct detailed below, suggesting a fundamental cultural failure that requires immediate action.

Inexcusably Poor Case Management Practices & Serious Misconduct

The GAO’s 2012 report found that DoD IG’s case files often did not contain documents used to support the conclusions of a case, resulting in generally incomplete case files system-wide. DoD IG transitioned to a new electronic case management system later that year, even though the system was still in development. The GAO’s 2015 review found that the system was still a year away from full functionality, and that it was not being used as intended.

The GAO’s 2015 review also found widespread instances of apparent misconduct. Specifically, the GAO found that the DoD IG uploaded key case documents after the IG had closed the case in 77 percent of cases closed in fiscal year 2013 and altered case variables for 83 percent of cases closed in fiscal year 2014. Case variables changed after the fact included information used to evaluate timeliness of investigations and investigative outcomes, including “changes to the date the service member filed the complaint and the organization that conducted the investigation, as well as the result code, which indicates whether the case was fully investigated.”

Case files were such a mess that management instructed investigators to “stand down” on other work in September 2013 in order to add additional records to closed cases in the case management system. “As you know, we have a lot of data to back-fill,” Whistleblower Reprisal Investigations Director Nilgun Tolek wrote. Personnel could also apply for overtime to work on or amend the information in their own and others’ old cases.

After Congress requested another GAO review of these case files, managers ordered investigators to stand down again to back fill FY 2013 case files. Internal instructions by DoD IG management to staff shared with POGO provide evidence of efforts to improperly influence the GAO’s findings, including advising staff to add information to files that were specifically within the scope of the GAO’s review. GAO confirmed such actions, finding that a number of revisions may have been made in anticipation of the GAO audit. Management’s instructions raise serious concerns about the integrity of the DoD IG officials and the cases processed by the Administrative and Whistleblower Reprisal Investigations teams, since changing these records likely had a significant impact on the GAO’s findings. POGO believes it bears an unsettling resemblance to illegal practices that resulted in another IG’s investigator being prosecuted for a scheme to falsify records and obstruct an internal investigation.

The GAO found that even with these alterations, the management system was so far from complete that “DoD IG cannot assure efficient reporting and that the data it collects are up to date and accurate.”

The GAO’s 2015 review also found that DoD IG cannot accurately track the status of its military reprisal investigations. The GAO found that the case management system was riddled with errors. For example, nearly half (43 percent) of the cases that were coded as “fully investigated” in fiscal year 2013 were not. POGO fears that some of these cases may have been deliberately mis-coded by IG staff. The GAO even suggests that DoD IG “may have mischaracterized” its investigative work in its Semiannual Report to Congress in 2013.

The GAO found DoD IG had no records at all for 22 percent of the military service investigations “both open as of September 30, 2014, and closed in fiscal years 2013 and 2014.” Part of the problem, the GAO found, is that service IG systems are not connected to the DoD IG’s case management system. The DoD IG claims the system will be expanded to include them by the end of fiscal year 2016, but GAO found there was no implementation plan to make that happen.

The GAO found that, due to the inaccuracies, the system is effectively useless for extracting and aggregating information that could be used to “identify possible areas for implementing case-processing reform.” The problems with the fidelity of this data also create the impression that DoD IG is either indifferent to or deliberately misleading Congress about its competence in handling these cases.

Questionable Outcomes for Whistle Blowers

DoD IG and Service IGs dismiss the vast majority of the reprisal cases they receive. POGO is particularly concerned that DoD IG has dismissed 84.6 percent of the cases it has received since pledging to make reforms in 2012. This rate of dismissal, which is more than double that of Service IGs for the same types of cases, creates the appearance that DoD IG is focused on closing, rather than investigating, the cases it receives.

POGO worries that one reason this case closure rate is so high is a practice adopted following the 2012 GAO report to “reduce cycle time” by automatically closing cases within 10 days if the complainant failed to provide additional information. While we appreciate the need to keep cases moving, we worry that this short of a timeline, or any practices that seek to close otherwise viable claims of retaliation by military service members, may infringe upon their due process rights and fail to uphold the intent of the law. Service members may be deployed, disabled, or otherwise hindered from providing supporting documentation in the 10-day cycle time requirement, and therefore lose their chance at a fair investigation of their claims. While it is difficult to know what the appropriate dismissal or substantiation rate should be, DoD IG’s conspicuously low rate of substantiation is a cause for concern.

The latest GAO review also raises important questions about the validity of the DoD’s decisions to dismiss some of these cases: One of the most common causes for dismissal is a finding that the responsible management official would have taken the same action absent the protected communication. DoD IG guidance requires a full investigation in order to make this determination, but the GAO found that 38 percent of the cases the Service IG dismissed after a preliminary investigation were based on the unsubstantiated belief that the official would have taken the same action regardless of a protected disclosure. A previous internal Review Team report questioned substantiation rates as well, disagreeing with the DoD IG’s own decisions in 47 percent of the cases they reviewed. For instances in which the DoD IG declined to investigate, the reviewers disagreed 68 percent of the time. We recommend that either GAO investigators or an outside IG conduct another peer review to see if reforms implemented since 2011 have resulted in the appropriate case outcomes.

Part of the challenge for substantiating retaliation in the Armed Forces is inherent to the limits of military whistleblower protections law, particularly the outdated burdens of proof that military whistle blowers bear to show they have been illegally retaliated against. The number of internal disagreements about substantiation revealed in the peer review, however, indicate there is not even an internal consensus within the DoD IG and Service IGs as to the standards for substantiating retaliation. The DoD IG should again support changes to this law to provide meaningful protections for military whistle blowers, and report substantiation based on complaints received, not those investigated.

Investigations Are Not Timely

In the final year of the Obama administration, the DoD IG has yet to complete investigations opened in 2008. The GAO’s 2015 report found that the average investigation into illegal retaliation against a whistleblower took 526 days—nearly three times the 180-day statutory requirement. Almost 20 percent of the open military reprisal cases filed in fiscal year 2012 had been open for at least two years, and approximately 33 percent opened in 2013 were still open a year later.

Timeliness is essential to effective investigations and the ability to hold accountable those who the IG believes have retaliated against whistle blowers. A July 2009 Department of Justice (DOJ) IG report conducted under your leadership found that lingering investigations can hold up potential promotions for both the complainant and the person accused of illegal retaliation. A DoD IG internal review also raised concerns that complainants withdrew their cases because of how long investigations took.

POGO believes that, at a minimum, when IGs cannot be timely, complainants should be informed whether their cases are still active. The Military Whistleblower Protection Act requires completed reports of reprisal be provided to the Secretary of Defense and the complainant within 180 days. If that requirement cannot be met, the investigating IG must send each a notice containing an explanation as to why the deadline will not be met and the time when that report will be complete—colloquially referred to as a “180-day letter.”

The GAO found that “DoD did not meet statutory notification requirements to inform service members about delays in investigations for about half of military whistleblower reprisal investigations in fiscal year 2013.” The median notification time for the delay notifications was about 353 days after the service member filed the complaint—nearly twice the statutory requirement—and contained generic explanations for delay and projected report completion dates that “were, on average, significantly underestimated.” In some of the cases the GAO reviewed they found the investigating Service IG had not sent the required letter until after they had forwarded their report to the DoD IG to review, more than one year after the service member filed their complaint. As it has been said, justice delayed is justice denied.

Toxic Culture Toward Whistle Blowers

The DoD IG claimed that the deficiencies identified in the GAO’s 2012 review triggered a number of reforms to improve reprisal investigations. However, while officials may have appeared repentant to Congress, it did not stop them from awarding the agency’s highest honor—the Distinguished Civilian Service Award—to an official responsible for instructing investigators to stand down to back-fill case files and officials who led the planning and implementation of the deficient case management system. At best, it appears agency leadership was misguided; at worst, it indicates a culture that rewards misconduct.

POGO and other outside observers have long been concerned with the toxic environment toward whistle blowers at DoD IG. An earlier review by an independent outside contractor composed of former senior DoD officials found “the culture of the OIG DoD has been, and continues to be, hostile to internal whistle blowers. All too often, OIG employees who have endeavored to identify mismanagement or violations of law have been punished by their chain of command.” Despite DoD IG’s stated efforts to improve this culture, multiple OPM surveys of employees found that it still endures, with a quarter responding that they “did not feel they could disclose a suspected violation of any law, rule, or regulation without fear of reprisal.” Alleged retaliation against the agency’s former Assistant Inspector General and former Director of Whistle blowing and Transparency only raises additional concerns about the perilous environment for whistle blowers.

The GAO’s 2012 review may provide further insights into the culture problems that continue to fester. DoD IG and Service IG officials told auditors that the “vast majority” of protected communications they receive are minor, personal issues relating to disagreements over things like performance reviews. POGO is concerned that these investigators were so dismissive of disputes involving performance reviews, because performance reviews are one of the most classic vehicles for retaliation against whistle blowers. Moreover, GAO found that the facts belie these claims about the protected communications that DoD IG and the Service IGs receive. The GAO review of case files found “approximately one-third of complainants (36 percent) were concerned solely with personal issues; one-third of complaints (33 percent) concerned waste, fraud, or abuse issues; and one-third of complaints (31 percent) were a mix of the two.”

Lack of Accountability

POGO has repeatedly questioned the independence of DoD IG’s leadership and DoD IG’s Administrative Investigations team when it comes to holding senior officials accountable. We are concerned by how many complaints involving senior officials are dismissed by DoD IG without investigation. For example, in the period of time reviewed by the GAO, DoD IG closed 364 senior official cases, investigated only 27 of them, and substantiated only 5. In contrast, the other Service and Component IGs closed 250 senior official cases, investigated all 250, and substantiated 90.

DoD IG rarely posts these reports online, and the few seen by the public largely come from Freedom of Information Act (FOIA) requests. The office’s practice of withholding its reports from public release unless they are specifically requested demonstrates a poor understanding of the office’s role regarding agency leadership. A DOJ IG review of the military reprisal investigations team conducted under your leadership recommended DoD IG release and “publicize the results of investigations that substantiate allegations of reprisal” to heighten awareness of the military whistleblower protection law, deter others that would retaliate, and encourage other victims of reprisal to come forward.

Keeping these reports confidential has allowed a number of officials to avoid accountability. For example, DoD IG waited until then-West Point Academy Superintendent Lt Gen David Huntoon was nearly retired before releasing a report finding he had “improperly used Government personnel,” “misused official time,” “improperly accepted gifts of services from his subordinates,” and “misused his position to induce a benefit to a friend.” This creates the appearance of an office more interested in sparing the Department and its officials from embarrassment than in educating the public when officials betray the public’s trust.

Allegations of Ignoring the Law

In 2012, the DoD IG’s office had to dodge congressional allegations that it had ignored whistleblower protection laws. Similarly, in 2014, POGO expressed concerns about the DoD IG’s application of 10 U.S.C. § 2409, which provides protections for contractor whistle blowers. Specifically, we questioned the DoD IG’s narrow interpretation of who could receive a protected disclosure. The DoD IG determined that the whistleblower had not made a protected disclosure because he went to an employee that was not responsible for “contract oversight and management,” ignoring the fact that protected disclosures can be made to DoD employees responsible for “oversight or management” (Emphasis added). Fortunately, the DoD IG subsequently pledged to Congress to “adopt a broader approach” to the contractor whistleblower protection law and to reopen one case that had been significantly affected by the IG’s misinterpretation of law. At best, these are misunderstandings. At worst, they highlight a pattern of behavior and a culture that disregards the critical role whistle blowers play in holding the government accountable to taxpayers.

Conclusion: A Broken System

The DoD IG’s systemic weaknesses and apparent cultural aversion to whistle blowers create a substantial barrier to DoD IG effectively performing its duties to protect whistle blowers, prevent abusive misspending of taxpayer dollars, and support the war fighter. Recent efforts at reform have demonstrated that addressing these problems will require a dramatic change in DoD IG’s Administrative Investigations Leadership to new officials who are dedicated to restoring the integrity of this office. We urge you to make those changes now.

Sincerely,

Danielle Brian
Executive Director

Mandy Smithberger
Director, Straus Military Reform Project

cc:
Secretary of Defense Ashton Carter
Senator John McCain, Chairman, Senate Armed Services Committee
Senator Jack Reed, Ranking Member, Senate Armed Services Committee
Representative Mac Thornberry, Chairman, House Armed Services Committee
Representative Adam Smith, Ranking Member, House Armed Services Committee
Members of the House and Senate Armed Services Committees
Senator Ron Johnson, Chairman, Senate Homeland Security and Governmental Affairs Committee
Senator Tom Carper, Ranking Member, Senate Homeland Security and Governmental Affairs Committee
Representative Jason Chaffetz, Chairman, House Oversight and Government Reform Committee
Representative Elijah Cummings, Ranking Member, House Oversight and Government Reform Committee
Senator Barbara Boxer
Senator Susan Collins
Senator Chuck Grassley
Senator Claire McCaskill
Senator Mark Warner