Whistle-blowers protected — if they follow the rules - Military Law, Military Law Advice, Ask a Lawyer - Air Force Times

Whistle-blowers protected — if they follow the rules

I often receive calls from service members who are either seeking to report misconduct by a superior or who have already reported misconduct and are suffering reprisals and want to know their legal rights.

Service members have strong whistle-blower protections, but only if they follow certain procedures, which are often unforgiving of mistakes.

The Military Whistleblower Protection Act and Defense Department directive 7050.6 give members of the armed forces broad protections if they communicate with a member of Congress or an inspector general — as long as they don’t communicate threats or do anything unlawful, such as disclosing a secret by mailing classified information via unsecure methods.

The law also allows communication that a member reasonably believes constitutes evidence of violation of the law or regulations, as well as gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety.

This applies to communications to a member of Congress; an inspector general; a member of the Defense Department audit, inspection, investigation or law enforcement organizations; or any person in the service member’s chain of command.

This means that if you reasonably believe your supervisor is violating a law or regulations or is abusing his authority, you may — without negative consequences — communicate such information to a member of Congress, the inspector general or anyone in your chain of command.

However, when you wish to disclose information that is classified at or above the confidential level, things get complicated.

The easiest solution is to call the Defense Department Inspector General hot line, (800) 424-9098, which is unclassified.

Without disclosing classified information, ask how to communicate at the security clearance level you need. The Defense Department IG can communicate via a Secure Telephone Unit as well as the Secure Internet Protocol Router Network and the Joint Worldwide Intelligence Communications System.

Under no circumstances should you improperly disclose classified information. The whistle-blower protections don’t protect that type of unlawful disclosure.

So if you have communicated properly, what protections do you have? By law, you may not be subject to or threatened with an unfavorable personnel action, nor may your superior threaten to withhold a favorable personnel action as a reprisal because of your lawful communications.

A “personnel action” is defined liberally and includes, among other things, being required to undergo a mental health evaluation, or any significant change in duties or responsibilities inconsistent with your rank or paygrade.

If you believe that you’re being subjected to retaliation because of your whistle-blowing, you generally have only 60 days to file a complaint. After that, the IG is not required to investigate.

If your allegation has sufficient evidence to warrant an investigation, the inspector general must investigate. If you don’t provide enough evidence, the IG can make an adverse initial determination and close your file. After a positive initial determination, the IG will do a full investigation.

For more details on writing a letter alleging retaliation, visit www.dodig.osd.mil/hotline/repform.htm.

The IG is obligated to inform the service member of his rights before a Board for Correction of Military Records to fix any negative personnel actions or to grant any favorable personnel actions that were improperly withheld.

In my opinion, if you witness unlawful conduct, you have a duty to report it, regardless of the rank of the person engaging in the misconduct. If you do the right thing for the right reasons, you’ll likely be protected — and any resulting retaliation will be fixed with time if you obey the rules.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates, a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.