Inspector general Q&A : recognizing retaliation, reprisal|
Posted 10/27/2011 Updated 10/27/2011
Commentary by Steve Wisniewski
JBER Deputy Inspector General
10/27/2011 - JOINT BASE ELMENDORF-RICHARDSON, Alaska -- Scenario: A military member went to Equal Opportunity and filed a complaint of sexual harassment against her supervisor. She then received a Letter of Reprimand from her flight commander.
The LOR states the member embarrassed the squadron by going outside the chain of command with her issue and for that she is receiving the LOR.
Q: The subordinate went outside the chain of command; she deserved the LOR right? ... or did she?
A: This situation actually occurred and the offending supervisor was investigated by the inspector general and it was substantiated that he was guilty of reprisal against his subordinate and he was punished under Article 92 of the UCMJ and the LOR was removed from the subordinate's record.
Q: What is reprisal?
A: To recognize when reprisal is happening to you or to avoid being guilty of it yourself, it is important to understand what reprisal is.
Air Force Instruction 90-301 defines reprisal as taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action on a military member for making or preparing a protected communication. (You don't even have to actually take the action; it is enough to threaten to do it.)
According to the Military Whistleblower Protection Act, members of the armed forces shall be free from reprisal for making or preparing to make protected communication.
Q: What qualifies as protected communication?
A: A broader definition of a protected communication is one where the disclosing member "reasonably" believes he or she has evidence of a violation of law or regulations including Technical Orders, safety procedures, and policies.
It also includes laws or regulations prohibiting sexual harassment or unlawful discrimination, gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety. The member then discloses this evidence to a member of Congress, IG, EO, Family Advocacy, law enforcement organizations, inspection or audit personnel, group/squadron commander, command chief master sergeant, first sergeant, superintendent or civilians leading an organization designated as a unit in accordance with Air Force Instruction 38-101 or any person in the member's chain of command. This is an inclusive list and reporting potential violations to anyone not on this list may not give you "protected communication" status.
The unfavorable personnel action mentioned is any action taken on a member of the armed forces that affects or has the potential to affect (for example a threat) that military member's current position or career.
Such actions include (but are not limited to): demotion, disciplinary or other corrective action, transfer or reassignment, performance evaluation, a decision on pay, benefits, awards, or training, referral for mental health evaluation, and/or any other significant change in duties or responsibilities inconsistent with the military member's rank. A cancellation of a choice or career impacting TDY/deployment or last minute orders to a "bad" one can also be a reprisal.
The IG is required to identify and investigate all responsible management officials that had involvement with the adverse personnel action. Responsible management officials are officials who influenced or recommended to the deciding official that he/she take, withhold, or threaten a management action, officials who decide to take, withhold, or threaten the management/personnel action, any other official who approved, reviewed, or endorsed the management/personnel action. To gain statutory protection of the law, the Air Force member must file the complaint with any IG within 60 days of becoming aware of the unfavorable personnel action that is the basis for the complaint.
The proper channel for making reprisal complaints for military members is through their military service IG, civilians should contact their base civilian personnel flight.
Q: Can you now recognize the elements of reprisal in the case introduced in the beginning of this article?
A: The EO complaint is the protected communication, the LOR is the unfavorable personnel action.
If someone threatens or takes an adverse personnel action on someone for making a legitimate complaint about a violation of law policy or regulation, that's reprisal. Military members are subject to prosecution and/or disciplinary and administrative action under Article 92 of the UCMJ. Civilian supervisors are subject to admonishments, demotions, or possible dismissal.