Mark Warner introduces whistleblower protection bill

U.S. Sen. Mark Warner (D-VA) has introduced legislation to strengthen existing military whistleblower protection laws to ensure that victims of sexual assault and other misconduct are protected from retaliation after they report the alleged offenses.  The Military Whistleblower Protection Enhancement Act of 2013 improves overall protections for military men and women who report any type of misconduct, requiring timelier investigations by the inspector general. It also would make it easier for service members to adjust their military records to accurately reflect a confirmed case of retaliation. Sen. Tim Kaine (D-VA), a member of the Armed Services Committee, will co-sponsor Sen. Warner’s legislation.

A Pentagon report this month, based on a confidential survey sent to more than 100,000 active-duty service members, found as many as 26,000 members of the military experienced offenses ranging from sexual harassment to sexual assault last year. However, fewer than 3,400 reported the incidents. The Department of Defense concluded most victims did not step forward because they worried about retaliation and believed that reporting the alleged offense would negatively impact their military careers. Fully 62% of those who reported experiencing some form of sexual misconduct in 2012 said they also experienced some form of retaliation.

“Service members should not be victimized in the first place, but when it does occur, there should be a culture in place that supports speaking-out. Unfortunately, that culture does not exist today,” Sen. Warner said. “Improving the military’s whistleblower system is just one part of the solution, but it will be an important step forward in stopping the epidemic of violence against women and men who serve in the U.S. military.”

“I’m proud to co-sponsor this important expansion of the Military Whistleblowers Protection Act,” Sen. Kaine said. “The number of unreported sexual assaults in the military is staggering and many fail to report due to fear of retaliation. Providing clear protection to those who bring forth legitimate complaints is one important step in changing a broken system.”

A 2012 report from the Government Accountability Office documented systemic weaknesses in the current Military Whistleblower Protection Act. The GAO found that DoD inspectors general routinely failed to complete investigations in the 180-day time frame required by law.  In fact, GAO estimated that 70% of the cases took longer than 180 days, with the average case requiring an astounding 450 days to process. GAO also found that only 19% of service members with an established case of retaliation chose to navigate the complicated bureaucratic process required to clean up their service records.

“The current system dishonors the overwhelming majority of our military men and women who are serving with dignity and honor,” Sen. Warner said. “This legislation takes reasonable steps to strengthen and improve where, when and to whom victims and witnesses can report allegations of misconduct in order to access whistleblower protection from reprisals and retaliation.”

The Military Whistleblower Protection Enhancement Act of 2013

·         Ensures that disclosures of wrongdoing are not unnecessarily disqualified from protection.  The legislation explicitly protects service members for blowing the whistle up the chain of command and in the ordinary course of their job duties, and also protects witnesses who disclose violations of law, including sexual assaults and other sexual misconduct.

·         Ensures that service members have a fair chance of demonstrating that reprisal has occurred.  The bill incorporates the same burdens of proof needed to show retaliation that have been included in virtually every public and private sector whistleblower law passed since 1989, including protections for Defense Department contractors and Department of Energy employees and contractors.

·         Ensures that members of the armed forces have a reasonable opportunity to file a complaint, extending the current 60 day statute of limitations to one year.

·         Ensures that action is taken both to provide corrective relief to the service member after retaliation, and to discipline those who retaliate.  The legislation adds much needed accountability into the system by requiring an inspector general to determine if reprisal has occurred, and if so, requiring the service secretary to either take action to correct the reprisal or report to Congress why no action was taken.  The service secretary is also required to initiate any appropriate disciplinary action, a necessary change to deter systemic violations of the law.

·         Provides for a credible review process.  In non-frivolous cases, the service member would be able to request a hearing before the Board for Correction of Military Records, and be provided with legal representation.