SAFEGUARDING OF MILITARY WHISTLEBLOWERS

SEC. 846. SAFEGUARDING OF MILITARY WHISTLEBLOWERS (a) Military Whistleblower Protection.—(1) Section 1034 of title 10, United States Code, is amended to read as follows: “§ 1034. Communicating with a Member of Congress or Inspector General; prohibition of retaliatory personnel actions “(a) Restricting Communications With Members of Congress and Inspector General Prohibited.—(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General. “(2) Paragraph (1) does not apply to a communication that is unlawful. “(b) Prohibition of Retaliatory Personnel Actions.—No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted. Any action prohibited by the preceding sentence (including the threat to take any action and the withholding or threat to withhold any favorable action) shall be considered for the purposes of this section to be a personnel action prohibited by this subsection. “(c) Inspector General Investigation of Certain Allegations.—(1) If a member of the armed forces submits to the Inspector General of the Department of Defense (or the Inspector General of the Department of Transportation, in the case of a member of the Coast Guard) an allegation that a personnel action prohibited by subsection (b) has been taken (or threatened) against the member with respect to a communication described in paragraph (2), the Inspector General shall expeditiously investigate the allegation. “(2) A communication described in this paragraph is a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted in which the member of 102 STAT. 2028the armed forces makes a complaint or discloses information that the member reasonably believes constitutes evidence of— “(A) a violation of a law or regulation; or “(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. “(3) The Inspector General is not required to make an investigation under paragraph (1) in the case of an allegation made more than 60 days after the date on which the member becomes aware of the personnel action that is the subject of the allegation. “(4) If the Inspector General has not already done so, the Inspector General shall commence a separate investigation of the information that the member believes evidences wrongdoing as described in subparagraph (A) or (B) of paragraph (2). The Inspector General is not required to make such an investigation if the information that the member believes evidences wrongdoing relates to actions which took place during combat. “(5) Not later than 30 days after completion of an investigation under this subsection, the Inspector General shall submit a report on the results of the investigation to the Secretary of Defense and the member of the armed forces concerned. In the copy of the report submitted to the member, the Inspector General may exclude any information that would not otherwise be available to the member under section 552 of title 5. “(6) If, in the course of an investigation of an allegation under this section, the Inspector General determines that it is not possible to submit the report required by paragraph (5) within 90 days after the date of receipt of the allegation being investigated, the Inspector General shall provide to the Secretary of Defense and to the member making the allegation a notice— “(A) of that determination (including the reasons why the report may not be submitted within that time); and “(B) of the time when the report will be submitted. “(7) The report on the results of the investigation shall contain a thorough review of the facts and circumstances relevant to the allegation and the complaint or disclosure and shall include documents acquired during the course of the investigation, including summaries of interviews conducted. The report may include a recommendation as to the disposition of the complaint. “(d) Correction of Records When Prohibited Action Taken.—(1) A board for the correction of military records acting under section 1552 of this title, in resolving an application for the correction of records made by a member or former member of the armed forces who has alleged a personnel action prohibited by subsection (b), on the request of the member or former member or otherwise, may review the matter. “(2) In resolving an application described in paragraph (1), a correction board— “(A) shall review the report of the Inspector General submitted under subsection (c)(5); “(B) may request the Inspector General to gather further evidence; and “(C) may receive oral argument, examine and cross-examine witnesses, take depositions, and, if appropriate, conduct an evidentiary hearing. 102 STAT. 2029 “(3) If the board elects to hold an administrative hearing, the member or former member who filed the application described in paragraph (1)— “(A) may be provided with representation by a judge advocate if— “(i) the Inspector General, in the report under subsection (c)(5), finds that there is probable cause to believe that a personnel action prohibited by subsection (b) has been taken (or threatened) against the member with respect to a communication described in subsection (c)(2); “(ii) the Judge Advocate General concerned determines that the case is unusually complex or otherwise requires judge advocate assistance to ensure proper presentation of the legal issues in the case; and “(iii) the member is not represented by outside counsel chosen by the member; and “(B) may examine witnesses through deposition, serve interrogatories, and request the production of evidence, including evidence contained in the investigatory record of the Inspector General but not included in the report submitted under subsection (c)(5). “(4) The Secretary concerned shall issue a final decision with respect to an application described in paragraph (1) within 180 days after the application is filed. If the Secretary fails to issue such a final decision within that time, the member or former member shall be deemed to have exhausted the member’s or former member’s administrative remedies under section 1552 of this title. “(5) The Secretary concerned shall order such action, consistent with the limitations contained in sections 1552 and 1553 of this title, as is necessary to correct the record of a personnel action prohibited by subsection (b). “(6) If the Board determines that a personnel action prohibited by subsection (b) has occurred, the Board may recommend to the Secretary concerned that the Secretary take appropriate disciplinary action against the individual who committed such personnel action. “(e) Review by Secretary of Defense.—Upon the completion of all administrative review under subsection (d), the member or former member of the armed forces who made the allegation referred to in subsection (c)(1), if not satisfied with the disposition of the matter, may submit the matter to the Secretary of Defense. The Secretary shall make a decision to reverse or uphold the decision of the Secretary of the military department concerned in the matter within 90 days after receipt of such a submittal. “(f) Post-Disposition Interviews.—After disposition of any case under this section, the Inspector General shall, whenever possible, conduct an interview with the person making the allegation to determine the views of that person on the disposition of the matter. “(g) Regulations.—The Secretary of Defense, and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations to carry out this section. “(h) Definitions.—In this section: “(1) The term ‘Member of Congress’ includes any Delegate or Resident Commissioner to Congress. “(2) The term ‘Inspector General’ means— 102 STAT. 2030 “(A) an Inspector General appointed under the Inspector General Act of 1978; and “(B) an officer of the armed forces assigned or detailed under regulations of the Secretary concerned to serve as an Inspector General at any command level in one of the armed forces.”. (2) The item relating to such section in the table of sections at the beginning of chapter 53 of such title is amended to read as follows: “1034. Communicating with a Member of Congress or Inspector General; prohibition of retaliatory personnel actions.”. (b) Deadline for Regulations.—The Secretary of Defense and the Secretary of Transportation shall prescribe the regulations required by subsection (g) of section 1034 of title 10, United States Code, as amended by subsection (a), not later than 180 days after the date of the enactment of this Act. (c) Report.—(1) The Inspector General of the Department of Defense (and the Inspector General of the Department of Transportation with respect to the Coast Guard) shall submit to Congress a report on the activities of the Inspector General under section 1034 of title 10, United States Code, as amended by subsection (a). The report shall include, in the case of each case handled by the Inspector General under that section, a description of— (A) the nature of the allegation described in subsection (c) of that section; (B) the evaluation and recommendation of the Inspector General with respect to the allegation; (C) any action of the appropriate board for the correction of military records with respect to the allegation; (D) if the allegation is determined to be meritorious, any corrective action taken; and (E) the views of the member or former member of the armed forces making the allegation (determined on the basis of the interview under subsection (f) of that section) on the disposition of the case. (2) The Inspector General shall include with the report under this subsection copies of the individual case reports for each such allegation. (3) The report under this subsection shall be submitted not later than February 1, 1990. (d) Effective Date.—The amendment to section 1034 of title 10, United States Code, made by subsection (a)(1), shall apply with respect to any personnel action taken (or threatened to be taken) on or after the date of the enactment of this Act as a reprisal prohibited by subsection (b) of that section.