Department of Defense Office of the Inspector General
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Department of Defense Office of the Inspector General

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  • Why spend some time on history, well the evolution of the whistleblower statutes has been a long process and the legislation that we have today is a compilation of many years and many Congresses. Starting it the audience upper left, that Ernie Fitzgerald. In 1968, Mr. Fitzgerald was a civilian employee working for the AF in the Pentagon. One of his projects involved the C-5. At Congress’ request, Mr. Fitzgerald testified about a $2B cost overrun. To put it mildly, his testimony irritated his bosses and as a result Mr. Fitzgerald was fired. In fact, on the Nixon tapes you can hear Nixon saying, “I said get rid of that son-of-a-bitch.” Not bad when you get fired by the President of the United States. As a footnote, 14 years later, after many court battles, Mr. Fitzgerald was re-hired back into his original job. And in February 2006, Mr. Fitzgerald retired from government service. In the upper right is Col James Burton. Col Burton was working in the Pentagon on a series of R&D projects. One of those projects was the Bradley Fighting Vehicle. Before Congress Col Burton testified about testing deficiencies. Col Burton’s reward was to be reassigned from a very prestigious position in the Pentagon to a very desolate location in Alaska. Fortunately, Congress intervened before the AF could actually move Col Burton. Can you see the challenge? Congress needs honest feedback, but every time someone testifies they get fired. In the middle is then Congresswoman Barbara Boxer, Congresswoman Boxer is the one that led the charge to get whistleblower protections for the military. When Congress writes legislation, it is short and to the point. Congress leaves the development of implementing directives and instructions to lead agencies. In the case of reprisal, MRI is that lead agency. In our office, we are the one that wrote the reprisal directive. Now, here’s our challenge. When we write the directive, how do we capture the intent of Congress? In that respect we’re very fortunate. Next slide.
  • The takeaway from this slide is that for the first 10 years, you see that Congress was adding new groups. And what group was last to be added in 1988? Right, the military. And then, it only protected communications made to an IG or a Member of Congress. Congresswoman Boxer had tried in 1986 to get legislation passed to protect the military, but it died in conference. A name that you might recognize, Senator Dan Quail, argued against extending whistleblower protection to the military, stating, “It would undermine morale and discipline within them military and lead to frivolous complaints by military members with poor performance records.” Transition to next slide: That was the first 10 years, now let’s look at the last 15 years and see what’s changed.
  • What you see from this slide is that Congress has not added any more groups, but instead has been broadening whistleblower protections. MHE was added, then group that you can make a protected communication was expanded to include DoD auditors, inspectors, and law enforcement. Next, chain-of-command was added and discrimination and sexual harassment was included. Finally in 2004, Congress didn’t actually change anything, but they clarified and added emphasis to the existing legislation. As a result of the 2004 legislation MRI, after understanding Congress’ intent, has changed the directive to clarify “chain-of-command.” Chain-of-command is defined to include the supervisory chain-of-command. Instructor note: For the 2004 bullet, here’s what changed. Previous language: “(iv) any other person or organization (including any person or organization in the chain of command) designated pursuant to regulations or other established administrative procedures for such communications.” Current language: “(iv) any other person or organization in the chain of command; or “(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.” The change? 1) the parenthetical phrase was pulled out and made a standalone paragraph 2) the word “including” from the parenthetical phrase was deleted and that’s it
  • What you see from this slide is that Congress has not added any more groups, but instead has been broadening whistleblower protections. MHE was added, then group that you can make a protected communication was expanded to include DoD auditors, inspectors, and law enforcement. Next, chain-of-command was added and discrimination and sexual harassment was included. Finally in 2004, Congress didn’t actually change anything, but they clarified and added emphasis to the existing legislation. As a result of the 2004 legislation MRI, after understanding Congress’ intent, has changed the directive to clarify “chain-of-command.” Chain-of-command is defined to include the supervisory chain-of-command. Instructor note: For the 2004 bullet, here’s what changed. Previous language: “(iv) any other person or organization (including any person or organization in the chain of command) designated pursuant to regulations or other established administrative procedures for such communications.” Current language: “(iv) any other person or organization in the chain of command; or “(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.” The change? 1) the parenthetical phrase was pulled out and made a standalone paragraph 2) the word “including” from the parenthetical phrase was deleted and that’s it
  • Here’s our nine-year look back. As you can see, we’re in a growth industry. The number of complaints has been steadily increasing. In comparison, have your staffs grown? Last year we received 522 reprisal and MHE complaints. You’ll also notice that there is a slight bulge from 2002 to 2005. What was going on then? Afghanistan and Iraq. A lot of the increase comes from Guard and Reserve units. When the units deployed overseas, there was a sudden demand for things that weren’t all that critical stateside. People started getting in trouble, and of course, the problems weren’t their fault, it must be their mean supervisors. And, the increase in reprisal complaints. Transition question for the next slide: 552 is the number of complaints that came in throughout DoD, but how about my Service?
  • Derived from TESS database (MRI conducted investigation, prelim, or oversight of service investigation). Does not include SIRC (closed in prelim) or cases reviewed from the Hotline. REM-138 REC- 22 REN-14 MHE (only)- 35
  • Total Received = Hotline review + Service Notification + MRI Active + MRI Prelim + MRI Oversight 552 Cases = 87 (DoD Hotline) + 124 (USAF) + 2 (USMC) + 28 (USN) + 138 (USA) + 2 (Other) + 10 (MRI Active) + 87 (MRI Oversight) + 74 (MRI Prelim) _______________________________________________ FY 97 98 99 00 01 02 03 04 05 Received- 315 313 400 445 426 461 597 671 552 Closed- 235 356 322 392 406 428 401 716 446
  • Total Closed = Hotline review + Service Prelim + MRI Active + MRI Prelim + MRI Oversight 446 Cases = 86 (DoD Hotline) + 101 (USAF) + 3 (USMC) + 11 (USN) + 50 (USA) + 1 (Other) + 10 (Active) + 110 (Oversight) + 74 (Prelim) _________________________________________ FY 97 98 99 00 01 02 03 04 05 Received- 315 313 400 445 426 461 597 671 552 Closed- 235 356 322 392 406 428 401 716 446
  • Cases not included in calculating the substantiation rate are those cases closed after preliminary analysis or inquiry revealed further investigation was not warranted. Reprisal: 171 cases 26 either SU or PS 26/171 = 15% 35 cases of MHE or 6490.1 sub problem 17 coded SP 17/35 = 49%
  • Cases not included in calculating the substantiation rate are those cases closed after preliminary analysis or inquiry revealed further investigation was not warranted. Reprisal: 171 cases 26 either SU or PS 26/171 = 15% 35 cases of MHE or 6490.1 sub problem 17 coded SP 17/35 = 49%
  • When we talk about reprisal, what we’re really talking about is Title 10 to the United States Code, Section 1034 or the “Military Whistleblower Protection Act.” You’ll notice that 1034 addresses both restriction and reprisal. Let’s start with restriction.
  • When read 1034, you’ll notice that it has a lot of information about reprisal, but when comes to restriction, it is very limited. In fact, what you see on this slide, is verbatim what’s in 1034. When we talk about restriction, this is one of those points that can get a commander all excited. In the military we’re all about the chain of command. And here I’m telling you that you can’t restrict a member from complaining. And it even gets a little more interesting. All the Services have expanded what’s on the slide, Member of Congress and IG, to include other organizations, such as, the JAG, EO, etc. So what can you tell a commander? What advice can you offer? First, can a commander be rather direct and tell people that he or she expects people to use the chain of command? Yes. Traditionally, the chain of command is the best method to resolve problems. But here’s the catch. A commander can stress/emphasize the use of the chain of command, but the commander must leave a backdoor open. That’s why I’ve put this picture of a door (blue door top left) on the slide. There’s nothing wrong with emphasizing the chain of command, but you’ve got to leave some wiggle room. Here’s an example: In a commander’s call, I say, “If you have a problem, I expect you to bring that through your chain. However, if for some reason, you are not comfortable with bring a particular issue through your chain, remember you can always contact the IG or write your Member of Congress.” The key word was “however.” “However” is the backdoor. You can stress the chain, but if you’ll just say that if for a particular situation, you always have the right to go to the IG, etc. I just worked a case where a commander strongly stressed the use of the chain. In this case he told his soldier that if the soldier was not satisfied, that the soldier could see the JAG or the EO office. He didn’t specifically state a Member of Congress or an IG, but it was clear that he made it clear that the soldier could go outside the chain and we did not find restriction.
  • The Acid Test Four questions to assist you in determining if reprisal did or did not occur. From the previous slide, the first thing that we need to do is to identify Protected Communication. That’s the blowing of the whistle. Then did an “unfavorable” personnel action occur? Next, did the RMO know about the Protected Communication? And finally, what was the motive for the action? Reprisal or was there an independent reason? Transition to the next slide: “But where do you start?”
  • Where to start? Let’s go back to the football. In this case, that was our “Initial Contact.”
  • In the “Great Football” case it says, “It’s not fair” and “the Skipper trashed my FITREP.” What’s not fair? Why is it not fair? The complainant knows something doesn’t seem right, but they may not know our term of reprisal. And what does “trashed” mean? But before you get too energized working the complaint, you need, through your headquarters, to notify MRI that you’ve received a complaint. 10 days, is that a make or break point? No. Consider that most reprisal complaints are shotguned to multiple offices. Your office, MRI, their Congressman, the President, and the list goes on. When you notify us, we’ll deconflict all those complaints. We don’t want three or four agencies investigating the same complaint. Not a good use of resources. Now let’s get back to the question of do we investigate or not? Handout “Record of Preliminary Inquiry.” This is a tool that we have developed to assist us in doing a Preliminary Inquiry. A Prelim is the first step where we determine if there is a prima facie case to go to full investigation.
  • You will need to make a statement in the ROI that there was or was not a connection between the PC and the UPA.
  • “ 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.”
  • While this slide is still showing state: In 2005, there were over 500 complaints of reprisal, but MHE referrals, there were only 35 complaints 35, a much smaller number But even though the number of complaints is relatively small, we still have a significant challenge with MHEs
  • First point Last year the substantiation rate was 49%, in 2004 it was 65% There may not be that many MHE complaints, but if you become the subject of an MHE complaint, the odds are better than 50-50 that you will be found to have violated the Directive What’s wrong with this picture? If you look at the yellow wedge, the allegations not substantiated, you’ll see that there were allegations of reprisal We haven’t had a substantiated allegation of an improper MHE in reprisal for years Now take a look at the blue wedge, substantiated allegations, you’ll see that the only substantiations are for PROCEDURAL ERRORS This is where you come in If we’re going to bring the substantiation rate down, then we’re going to have to better educate our commanders and supervisors You need to make them aware of the requirements for an MHE referral, and even more importantly, you need to tell them that you, the IG, are a great resource for information on the requirements for an MHE referral What’s a good tool for you to use? How about the MHE checklist
  • Who has the authority to refer? Pause at this point and give them the 2d Lt example. After the example then come back and show the line about the commander.
  • Unfortunately 6490 is complicated, but you’re not in this game alone. In fact there are four principal players that should be involved. First, the mental health/medical professionals. Honestly, their ability to treat the member is topnotch, but sometimes they don’t have a full understanding of the procedural requirements for an MHE. Next is legal. I know that there are initiatives ongoing to increase the awareness of our lawyers, but again they may not have a full understanding of all the requirements. Probably the best source of information comes from the third member of our team, the IG. MHE is topic that is part of every IG course and concurrence. So if you need a good gouge on how and where to get started, I’d start with my IG. Now that leaves us with our fourth member of our team…you, the commander. Of all the players, unless you’ve done an MHE before, you’re probably the least knowledgeable of the ins and outs of 6490. The point is that if you haven’t already sat down with your First Shirt, you’re IG, your SJA, and medical folks to talk about how to do an MHE, then you’re probably behind the power curve. Don’t wait until you get that call in the middle of the night and try to figure out what you should do. This slide talks about the commander’s responsibilities, there are corresponding slides for the other members of your team, but I’m going to focus on your responsibility and the rights of the Service member. “At least 2 business days in advance.” But what if it’s Friday and you think you can wait 2 business days…the answer is easy…it’s an emergency referral. Remember an emergency referral is not a big deal.
  • What is an emergency referral? Talk about a commander’s concerns and priorities before going to the next slide.
  • A fairly new term that has made its way into MHE is Combat Stress Teams. Does anyone here have any experience with Combat Stress Teams? Explain: “Maybe”

Transcript

  • 1.  
  • 2. Point of Contact
    • Director, Military Reprisal Investigations
    • DoD Office of the Inspector General
    • 400 Army Navy Drive
    • Arlington, VA
    • 703-604-8516
    • DSN: 664-8516
  • 3. Enabling Learning Objectives (ELO)
    • Enabling Learning Objectives:
        • Identify the categories of protected employees and responsible agencies
        • Identify the reporting requirements upon receipt of a whistleblower reprisal complaint and upon completion of a preliminary analysis or investigation
        • Describe the four questions of the “Acid Test”
        • Describe how to apply the “Acid Test” properly to determine if complaint meets the criteria for investigation
    ELO
  • 4. Objectives
    • Provide an overview of military whistleblower reprisal statutory protections
    • Update policies and procedures for investigating reprisal and mental health evaluation (MHE) complaints
    • Share information among DoD and Service component investigators
  • 5. MRI Mission
    • Conduct / oversight investigations of:
      • Reprisal
      • Improper MHE referrals (Military)
    • Establish Whistleblower policy for:
      • Military
      • NAFI Employees
      • Defense Contractor Employees
    • Develop implementing regulations
  • 6. Reprisal Statutes and DoD Directives
    • Whistleblower Reprisal
    • - Military Members
    • 10 U.S.C. 1034, DoDD 7050.6, and IGDG 7050.6
    • - Non-appropriated Fund Employees
    • 10 U.S.C. 1587 and DoDD 1401.3
    • - Defense Contractor Employees
    • 10 U.S.C. 2409, FAR, Subpart 3.9
    • Improper Mental Health Referrals (Military only)
    • DoDD 6490.1 and DoDI 6490.4
    • Note: Appropriated Fund Employees -- Office of Special Counsel
    ELO
  • 7. What Is Reprisal?
    • The taking (or threatening to take) of an “ unfavorable” personnel action or the withholding (or threatening to withhold) a favorable personnel action because the member made or was thought to have made a protected communication.
  • 8. Whistleblower Protection A Dynamic History
  • 9. Development of the Law
    • 1978 – Federal employees
    • 1983 – NAFI employees
    • 1986 – Defense contractor employees
    • 1988 – Boxer Amendment
      • “ Military Whistleblower Protection Act”
      • Only IGs & Congress
  • 10. Development of the Law
    • 1990/92 – MHE as reprisal
    • 1991 – DoD: auditors, inspectors, and LE
    • 1994 – Chain of command, discrimination, sexual harassment
    • 2004 – Clarification and emphasis
  • 11. Let’s put this in perspective
  • 12. DoD Whistleblower / MHE Case History 511 554
  • 13. Types of Complaints Note: Derived from 263 closed cases in FY06.
  • 14. DoD Reprisal / MHE Cases Received Total Cases: 554
  • 15. DoD Reprisal / MHE Cases Closed Total Cases: 511
  • 16. Substantiation Rate
    • Reprisal
      • Historical ~20%
  • 17. The Investigative Process
  • 18. Receiving Reprisal Allegations Non-service members
    • Non-appropriated Fund Employees
    • Defense Contract Employees
    • Appropriated Fund Employees
      • Office of Special Counsel (OSC)
      • Civilian Reprisal Investigations (CRI)
    ELO
  • 19. Military Whistleblower “Protection”
    • Service Members have the right to appeal to the Secretary of Defense (via their BCMR)
    • IG DoD has oversight responsibility for all DoD military reprisal and referrals for mental health evaluation allegations
  • 20. Timeliness “ IGs are not required to make an investigation . . . 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.”
  • 21. Restriction Reprisal Title 10, United States Code, Section 1034 “ Military Whistleblower Prtotection Act”
  • 22.
    • “ (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.”
    Restriction
  • 23. The “Acid Test”
    • Protected Communication?
    • “ Unfavorable” Personnel Action?
    • Management Knowledge?
    • Reprisal or Independent Basis?
    ELO
  • 24. Where to start?
  • 25. Initial Contact
    • Intake
      • The complainant may not say reprisal
    • MRI notification
      • 10 working days from initial contact
        • Fax # (703) 604-8542
    • Preliminary Inquiry
    ELO
  • 26. The Preliminary Inquiry
    • Questions 1-3
    • Based mostly on documentation
      • Incoming complaint
      • Personnel records
      • Previous investigations, EO, IG, ect.
    • Complainant interview
      • Normally do not interview RMOs or witnesses
    • End product
      • Close or refer for investigation
  • 27. Investigation
    • Questions 1-4
      • Emphasis on Q-4
    • Testimony and documentation
      • Interview witnesses and RMOs
    • Establish linkage between PC and UPA
    • Legal review required
  • 28. Summary
    • Overview of DoD Military Whistleblower Reprisal Program
      • History
      • Who’s covered?
      • What are the guiding statutes and regulations?
      • What are the protections?
      • IG Responsibilities
    • “ Acid Test” for investigations
  • 29. Question 1 Did the military member - make - prepare to make, - or was thought to have made a communication protected by statute? ELO
  • 30. Protected Communication THEN IF
  • 31. Protected Communication
    • the communication was made to
      • an IG or a Member of Congress
    IF THEN any lawful communication is protected
  • 32. Protected Communication
    • the communication was made to
      • DoD audit, inspection, investigation, or law enforcement organization
      • any person or organization in the chain of command
      • any other person or organization designated pursuant to regulations or other established administrative procedures to receive PCs concerning
    IF
  • 33. Protected Communication
    • any lawful communication which the member reasonably believes evidences:
      • A violation of law or regulation (including sexual harassment or unlawful discrimination)
      • Gross mismanagement or gross waste of funds
      • An abuse of authority, or
      • A substantial and specific danger to public health or safety
    THEN
  • 34. What can be a PC?
    • Protected communications may be:
    • Verbal, written, or electronic (phone, fax, email)
    • Third party (spouse, relative, or co-worker) on behalf of complainant
    • Chain of command communications
      • May include complaints made during commander’s call, Article 138, Request Mast, or under open door policy.
  • 35. Protected Communication
    • For each PC you must determine:
    • To whom was it made?
    • What was the protected communication?
    • When was it made?
    • Disposition of communication
  • 36. Protected Communication
    • Timing
      • Date complaint began preparing to make a PC
      • Date rumors started about the complainant intending to make a PC
      • Date the actual PC was made
  • 37. Test Your Knowledge
    • Capt Scotty announced at a recent Commander’s Call that he believed his supervisor discriminated against him because of his religious beliefs.
    • A1C Kirk’s commander believes she was the source of an anonymous call to the IG (however, A1C Kirk denies she ever contacted the IG).
  • 38.
    • Lt Traveler’s mother wrote the Hotline complaining that her son would be deployed on her birthday and he would be unable to attend her party.
    • SSgt Sweettooth wrote to his Congressman complaining that the lunch line was too long, and by the time he got around to dessert, the pecan pie was always gone.
    Test Your Knowledge
  • 39. Protected Communication
    • What if…
      • No evidence of a PC?
      • Allegation of wrongdoing was not substantiated?
      • PC was made in retaliation against management officials?
  • 40. Summary
    • Definition of a protected communication
      • Who can receive a PC?
      • What was the content of the PC?
    • Questions?
  • 41. Question 2 An unfavorable personnel action, taken or threatened or a favorable personnel action withheld or threatened to be withheld following the protected communication? ELO
  • 42. Personnel Action Any action that unfavorably affects , or has the potential to unfavorably affect , a Service member’s current position or career
  • 43. “ Unfavorable” Personnel Actions
    • Fitness Report/Performance Evaluations
    • Disciplinary or other corrective actions
    • (Letters of Reprimand, NJP, Relief for Cause)
    • Transfer or reassignment
    • Changes to duties or responsibilities
  • 44. “ Unfavorable” Personnel Actions
    • Denial of reenlistment or separation
    • Decisions about awards, promotions
    • or training
    • Referrals for mental health evaluation
    • Decisions concerning pay or benefits
  • 45. “ Unfavorable” Personnel Actions
    • Revocation of:
      • access to classified material
      • authorization to carry weapons
      • changes in flying status
      • Personnel Reliability Program certification
      • Key: Was the action discretionary?
  • 46. “ Unfavorable” Personnel Actions
    • Investigations (fact finding tools) are
    • not considered unfavorable actions
    • However, actions taken as a result of an
    • investigation may be considered adverse action(s)
  • 47. “ Unfavorable” Personnel Action?
    • What if...
      • The RMO did not consider the personnel action to be “unfavorable”?
      • The personnel action was subsequently reversed?
      • There was no personnel action?
  • 48. Summary
    • Definition of an unfavorable action
      • Threat vs. action taken
      • Potential to affect career
    • Questions?
  • 49. Question 3
    • Before taking or threatening an “unfavorable” personnel action, did the responsible management officials (RMO) know about the
    • protected communication ?
    ELO
  • 50. RMO Knowledge
    • Two step process:
    • Determine who is a responsible management official (RMO)
    • Determine if each RMO had prior knowledge of each PC
  • 51. Who is a RMO?
    • Anyone who:
    • Took the action
    • Influenced or recommended the action be taken
    • Signed correspondence regarding the action
    • Approved, reviewed, or endorsed the action
  • 52. RMO Knowledge
    • Personally received the PC
    • Heard rumors about the PC
    • Suspected or believed the complainant made a PC (even if not true)
      • Precise knowledge of content of PC is not necessary
      • Simply being aware PC occurred (regardless of the subject or content) is sufficient
    Includes:
  • 53. Questions for the RMO
    • When and how:
      • did you first become aware of the PC?
      • Did you first believe or suspect the complainant may have made (or intended to make) a PC?
  • 54. Let’s Review Time Time Time UPA Knowledge PC UPA PC Knowledge PC UPA
  • 55. RMO Knowledge
    • What if...
    • Responsible officials deny having any knowledge of the protected communications?
    • No documentary evidence or corroborating witness testimony that the responsible officials knew?
  • 56.
    • If there is any doubt or uncertainty
    • whether the RMO knew about the PC --
    • then give the complainant the benefit of the doubt, and proceed.
    DOUBT?
  • 57. Summary
    • Who is an RMO?
    • What constitutes knowledge?
    • Questions?
  • 58. Question 4 Does a preponderance of the evidence establish that the “unfavorable” personnel action would have been taken absent the protected communication? ELO
  • 59. Preponderance of the Evidence Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.
  • 60. Analyzing the Evidence
    • Reason
      • Why did the RMO take the action?
    • Reasonableness
      • Reasonable or appropriate for the offense?
    • Procedural correctness
      • Did RMO(s) have authority to take the action and was the action done in accordance with regulation?
    • Consistency
      • Were previous problems handled in a similar manner?
    • Motive
      • Did RMO(s) take the right action for the right reason?
  • 61.
      • What factors did RMO(s) consider?
        • It’s incumbent on the RMO(s) to explain
      • Why at that particular time?
      • Inconsistencies between the evidence and RMO(s) testimony?
      • Bias for complainant “going outside the chain of command?”
    RMO’s Actions What bearing did the PC have on the action?
  • 62. “ The” Finding
    • Reprisal
    • Preponderance of evidence supports reprisal
    •  Not Reprisal
    • Evidence supports independent basis for
    • unfavorable personnel action
  • 63. Report of Investigation
    • Suggested format outlined in IGDG 7050.6
      • Introduction and Summary (conclusion)
      • Background: briefly outline facts leading to UPA
      • Questions 1-3 (PC, UPA, and RMO knowledge): briefly state the evidence
      • Question 4 (findings and analysis): in-depth analysis of evidence of each personnel action
  • 64.
    • 4 Questions
    • Chronology
    • Analyze testimony, actions, & evidence
      • Corroborate testimony
      • Subject matter “experts”
    • Determine what is credible, what is not, and why
    Report of Investigation
  • 65.
    • Must have
      • "Burden of proof" is on management
      • Preponderance of the evidence
      • Copies of all relevant documents collected
      • Recommendation
      • Legal review
      • Summaries or transcripts of interviews
    • Provide IG, DoD with:
      • Complete report, with all supporting documentation
    Final Report ELO
  • 66. Assistance
    • Use Review Criteria Worksheet (IGDG 7050.6, Figure 2-1)
    • Consult with your local JAG
    • Call Us If You Have Any Questions
    • (703) 604-8541, DSN 664-8541
  • 67. R O I
  • 68. Commander Directed Mental Health Evaluations
  • 69. Enabling Learning Objectives (ELO)
    • Enabling Learning Objectives:
        • Determine whether the complaint is a procedural violation or reprisal
        • Identify and compare the two types of referrals for mental health evaluations
        • Determine the Service IG responsibilities
        • Describe the role and obligations of the mental health care provider and the commander
  • 70. Overview
    • Laws and regulations
    • IG responsibilities
    • Improper MHE referral statistics
    • MHE referral requirement
    • Involuntary hospitalizations
  • 71. Laws and Regulations
    • Public Law 102-484, Section 546
    • “ National Defense Authorization Act for FY 93”
      • Prohibits referring Service members for MHEs in reprisal for making protected communications
      • Required DoD implementing regulations to establish procedures for referring Service members for MHEs
  • 72. Laws and Regulations
    • DoD Directive 6490.1 , “Mental Health Evaluations of Members of the Armed Forces,” October 1, 1997
    • DoD Instruction 6490.4 , “Requirements for Mental Health Evaluations of Members of the Armed Forces,” August 28, 1997
    • DoD Directive 7050.6 , “Military Whistleblower Protection,” June 23, 2000
        • http://www.dtic.mil/whs/directives
  • 73. DoD IG Responsibilities
    • Conduct or oversee investigation of allegations of improper referral for MHEs
    • Report to Congress in the Semiannual Report
  • 74. IG Responsibilities
    • Report allegation of an improper MHE referral to DoD IG within 10 working days
    • Investigate allegations unless DoD IG assumes responsibility
    • Provide DoD IG copy of final ROI and written report of disciplinary and/or administrative action taken, if any
    ELO
  • 75. Allegations of Violation of DoD Directive 6490.1
    • FY 06: 40
    • FY 05: 35
    • FY 04: 61
    • FY 03: 44
    • FY 02: 35
    • FY 01: 24
    • FY 00: 34
    • FY 99: 40
    • FY 98: 45
    • FY 97: 57
    • FY 96: 53
  • 76. REFERRAL FOR MENTAL HEALTH EVALUATIONS 40 cases Substantiation rate: 50% 20 – Not substantiated Reprisal and Procedural violations 20 - Substantiated Procedural violations 50% 50%
  • 77. MHE Defined
    • DoDD 6490.1 defines MHE as:
    • A clinical assessment of a Service member for a mental, physical, or personality disorder, the purpose of which is to determine a Service member’s clinical mental health status and/or fitness and/or suitability for service.
  • 78. MHE Referral Requirements
    • DoDD 6490.1 does not include :
      • Self-Referral (or Voluntary Referral)
      • Diagnostic referral by non-mental healthcare provider not in the Service member’s chain
      • Responsibility and competency inquiries (RCM 706)
      • Family Advocacy Program
      • Drug/alcohol rehab programs
      • Evaluations required by Service regulations
    ELO
  • 79. Types of MHE Referrals
    • Non-emergency ( routine )
    • Emergency
      • Threatening imminently, by words or actions, to harm oneself / others
      • Delay of MHE would further endanger Service member or potential victims
    ELO
  • 80. MHE Referral Authority Authority to refer?
      • ONLY THE COMMANDING OFFICER!
    ELO
  • 81. Nonemergency Requirements
    • Commanding Officer’s responsibilities:
      • Consult with mental healthcare provider
      • Send a memorandum to the Commanding Officer of Medical Treatment Facility
      • AT LEAST 2 BUSINESS DAYS IN ADVANCE, provide the member a referral memorandum including statement of rights
    ELO
  • 82. Service Member Rights
      • Two business day’s notice
      • Consult an attorney
      • Request an IG investigation
      • Seek second opinion
      • No restrictions to communicate to IG, Member of Congress, attorney, or other person
  • 83. Service Member’s Rights
      • Important Note:
      • Commanding Officers are not permitted to offer Service members an opportunity to waive his or her right to receive the written memorandum and statement of rights.
  • 84. MHE Referral Requirements (Non-emergency)
    • Mental Healthcare Provider’s Responsibilities:
      • Before MHE, determine if the Commander followed required MHE referral procedures
      • Advise Service member of purpose, nature, and likely consequences of MHE before evaluation and advise that the MHE is not confidential
      • After the evaluation, forward memorandum to Service member’s Commander with results and recommendations
    ELO
  • 85. MHCP Findings and Recommendations
    • MHCP’s advise Service member’s commander on:
      • Member’s fitness and suitability for continued service
      • Whether separation from Service is recommended
    • Commanders who decline the MHCP recommendation for separation of Service member must explain decision to their own commander within 2 business days
    ELO
  • 86. Emergency Requirements
  • 87. MHE Referral Requirements (Emergency)
    • Commanding Officer’s first priority is to protect Service member and potential victims from harm!
    • Before referral, try to consult a MHCP or other privileged healthcare provider
    • Safely get Service member to nearest MHCP, as soon as practical
    ELO
  • 88. MHE Referral Requirements (Emergency)
    • If unable to consult with MHCP before transporting Service member, forward memo to MHCP as soon as practical
    • As soon as practical , provide Service member a memorandum and statement of rights
  • 89. Combat Stress Teams Referrals to Combat Stress Team Question: Do the provisions DoDD 6490.1 and DoDI 6490.4 apply? Answer: Maybe
  • 90. Questions?
  • 91. The following slides contain additional reference material
  • 92. From the History / Law Section
  • 93. 10 U.S.C. 1034 Prohibits the restriction of, or retaliatory personnel actions against, Members of the Armed Forces for making or preparing to make lawful communications to Members of Congress, Inspectors General, members of a DoD audit, inspection, investigation, or law enforcement organization; or any other person in the chain of command; or any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.
  • 94. 10 U.S.C. 1034 specifically:
    • Prohibits the restriction of, or the taking of retaliatory personnel actions against, Members of the Armed Forces for making or preparing to make lawful communications to:
      • Congress or IGs;
      • Members of a DoD audit, inspection, investigation, or law enforcement organization; and
      • Any person or organization in the chain of command; or any other person or organization organization designated pursuant to regulations or other established administrative procedures for such communications”
  • 95. From Question 3, RMO Knowledge
  • 96. Questions to Establish Knowledge
    • Ask complainant:
    • " Who do you believe is responsible for the unfavorable action?“
    • " Why do you believe they knew you made a protected communication before taking the unfavorable action?"
    • " Who did you tell about making or preparing to make a protected communication? "
  • 97.
    • Ask complainant:
    • " When did you hear that responsible official(s) knew about your protected communication?“
    • " Did anyone tell you that they overheard any of the responsible official(s) discussing your protected communications? "
    • " Who can testify/provide documents to support your allegation that responsible official(s) knew of your protected communication?"
    Questions to Establish Knowledge
  • 98. Questions to Establish Knowledge
    • Ask witnesses :
    • "What do you know about the complainant’s protected communication, and when did you find out?“
    • "Did you tell anyone else about the complainant’s protected communications, and if so, when ?"
  • 99. Questions to Establish Knowledge
    • Ask witnesses:
    • "Do you believe the responsible official(s) knew about the protected communications before they took the unfavorable personnel action? Why ?“
    • "Who else might have information supporting your statement that responsible official(s) knew/did not know about the protected communications?"
  • 100. Questions to Establish Knowledge
    • Ask each RMO:
    • " When and how did you first become aware of the complainant’s protected communications?“
    • " When and how did you first come to believe or suspect the complainant may have made (or intended to make) a protected communication?"
  • 101. Questions to Establish Knowledge
    • Ask each RMO:
    • “ Did you discuss the complainant’s protected communications with anyone, and if so, who , when , and why ?"
    • " Who can testify/provide documents to support when you first knew about the complainant’s protected communication?"
  • 102. From Question 4, Analyzing the Evidence
  • 103. Facts
    • Relevant
    • Accurate
    • Comprehensive
    • Cross check and corroborate
    • Proper context
  • 104. Analyzing the Evidence
      • Update chronology
      • Make sure you have all documents
      • - Review testimonies
      • - Confirm or rebut complainant’s testimony
      • - Confirm or rebut RMO(s) testimony
      • - Resolve inconsistencies and contradictions
      • - Conduct additional interviews if necessary
      • - Determine if actions consistent with past practice
  • 105. Analyzing the Evidence
    • Analyze complainant’s testimony, actions, and evidence
    • Analyze witnesses’ testimonies
      • Corroborate the testimony of the complainant and responsible officials
      • Subject matter “experts”
    • Determine what is credible, what is not, and why
  • 106. Final Report of Investigation
    • Documentary evidence
      • copy of the unfavorable personnel action
      • service regulations & policies
      • incoming documents
      • other relevant documents
    • Testimonial evidence
      • complainant
      • witnesses
      • responsible official(s) (anyone who decided, directed, recommended, or influenced the unfavorable personnel action)
  • 107.
    • Analysis of evidence for each personnel action
      • Thorough review of relevant facts
      • Evidence must support findings
    • Recommendation
      • Disciplinary action (if reprisal substantiated)
      • Corrective action for complainant (correction of records)
    Final Report of Investigation
  • 108. From MHE
  • 109. Imminent Dangerousness Clinical Evaluation of Service Member
    • Service member is at substantial risk of committing acts resulting in:
      • Serious personal injury or death to himself/herself, another person or persons, or destroying property likely to lead to serious personal injury, or death.
    • Privileged, doctoral-level MHCP must make the clinical determination about whether Service member is imminently dangerous.
  • 110. Imminent Dangerousness ( Emergency MHE)
    • Emergency evaluations for imminent dangerousness must be conducted within 24 hours of initial request.
    • Service member judged to be or may become imminently dangerous may be admitted for involuntary inpatient evaluation.
    • Decision to admit Service member for inpatient MHE or treatment rests solely with MCHP with admitting privileges.
  • 111. Imminent Dangerousness Findings and Recommendations
    • MHCP’s advise Service member’s commander on:
      • Member’s fitness and suitability for continued service.
      • Whether separation from Service is recommended.
    • Commanders who decline MHCP recommendation for separation of Service member must explain decision to their own commander within 2 business days.
  • 112. Involuntary Hospitalization
    • Involuntary admission:
      • Requires clinical judgment by MHCP that care cannot be less restrictive
    • Voluntary admission:
      • Clinically indicated
      • Service member voluntarily consents
      • Service member capacity to make informed decision
  • 113. Involuntary Hospitalization Service Member Protections
    • Commanding Officer coordinates with MHCP to advise Service member of reason for admission, likely consequences, and Service member’s rights.
    • Service member has right to contact relative, friend, chaplain, attorney, and IG after admission.
    • Evaluation required within 24 hrs of hospitalization to determine necessity of continued hospitalization.
  • 114. Involuntary Hospitalization (Service Member Protections)
    • Notify Service member of reason if continued hospitalization is clinically indicated.
    • Within 72 hrs, independent review of factors that led to involuntary admission and appropriateness of continued involuntary hospitalization.
    • Reviewer determines whether MHE requested or conducted improperly.