BY SABRINA MEROLD
Editor’s Note: This is an excerpt from a longer legal memorandum which will be available on this website soon.
Sexual assault has continued to be a serious problem in the armed forces, and rates of Service members reporting sexual assault are on the rise. The most recent report from the Department of Defense (DoD) on Sexual Assault in the Military found that in Fiscal Year 2018, over six percent of active duty women experienced a sexual assault in the past year—the highest rate since 2006. Further, in Fiscal Year 2018, only 30 percent of the total 20,500 Service members who experienced a sexual assault in the past year reported their assault.  A confidential survey by the DoD found that not wanting more people to be aware of their assault was one of the main motivations for both male and female Service members who chose not to report their sexual assault—a choice often driven by a fear of retaliation. 3 This memo provides an overview of the resources and investigative processes available for Service members who experience retaliation following the report of a sexual assault.
DEPARTMENT OF DEFENSE’S DEFINITION AND EXAMPLES OF RETALIATION
According to the DoD Retaliation Prevention and Response Strategy: Regarding Sexual Assault and Harassment Report, “retaliation is an umbrella term encompassing illegal, impermissible, or hostile actions taken by the chain of command or peers/coworkers as a result of making or being suspected of making a protected communication (e.g., a report of sexual assault or a complaint of sexual harassment).” Retaliation for reporting a criminal offense can take place in a variety of ways, including reprisal, ostracism, or maltreatment. The DoD notes, though, that these three ways “do not cover all conduct that could qualify as retaliation,” as they would not “include an action taken by a peer or subordinate against an alleged victim in an effort to dissuade the alleged victim from participating in a prosecution.”  In the 2016 Retaliation Prevention and Response Strategy Report, the DoD stated that the categories of reprisal, ostracism, and maltreatment “must be expanded to include all potential retaliatory acts.” 
Reprisal can include a range of “unjustified personnel actions, such as interfering with promotion, unreasonably downgrading someone’s evaluation, or unfairly denying an award.”  Reprisal is statutorily defined in 10 USC § 1034 to include:
(i)The threat to take any unfavorable action; (ii) The withholding, or threat to withhold any favorable action; (iii) The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade; (iv) The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member; (v) The conducting of a retaliatory investigation of a member. 9
The definition of ostracism varies based on the Military Department. For instance, “in order to violate the punitive regulations of the Departments of the Navy and Air Force, ostracism must be committed with the intent to prevent reporting of a crime or to dissuade someone from participating in the justice process.”  Under the Army regulations, ostracism can be committed without intent to prevent reporting or interfere with someone’s ability to participate in the justice process.  Further, the Uniform Code of Military Justice prohibits “acts of cruelty, oppression, and maltreatment against a crime reporter when an individual who can legally give orders to that reporter commits the acts.”  Other types of retaliatory acts can be prosecuted under the Uniform Code of Military Justice, including “failure to obey an order or regulation, assault, stalking, or damage/destruction of property.” 
RESOURCES FOR VICTIMS TO REPORT RETALIATION
For Service members who are victims of sexual assault, Sexual Assault Response Coordinators (SARCs) and Sexual Assault Victims Advocates (SAVAs) are required to inform them of the resources available to report retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request a transfer or a military protective order. 14 If the victim’s allegation is criminal in nature and the victim files an Unrestricted Report, the crime must be immediately reported to a Military Criminal Investigative Organization (MCIO). 15
When reporting allegations of retaliation, uniformed victims of sexual assault can seek assistance from:
- A SARC or SAVA or SVC/VLC (Special Victims Counsel/Victims Legal Counsel).
- A SARC on a different installation, which can be facilitated by the Safe Helpline.
- Their immediate commander.
- A commander outside their chain of command.
- Service personnel to invoke their Service-specific reporting procedures regarding such allegations in accordance with DoD Retaliation and Response Strategy: Regarding Sexual Assault and Harassment Reports.
- A general or flag officer review if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within 1 year of the final disposition of their sexual assault case.
- A general or flag officer review if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought mental health treatment that the victim believes is associated with the sexual assault.
- An SVC or VLC, trial counsel, and Victim Witness Assistance Program, or a legal assistance attorney to facilitate reporting with a SARC or SAVA.
- Service personnel to file a complaint of wrongs in accordance with Article 138 of the Uniform Code of Military Justice.
- Inspector General DoD, invoking whistle-blower protections.
- Commander or SARC to request an expedited transfer.
- Commander or SARC to request a safety transfer or a military protective order if the victim is in fear for her or his safety. 
Following the DoD Retaliation and Prevention and Response Strategy Implementation Plan, a SARC or a SAVA will speak with a Service member who perceives retaliatory behavior after the reporting of a sexual assault and explain the types of retaliation and investigative entities. The SARC or SAVA should recommend that the Service member consult an SVC/VLC or a legal assistance attorney before choosing to report retaliation. The SARC or SAVA should also inform the Service member that he or she could speak with an IG at any time during the process of reporting retaliation. While Service members who perceive retaliation and want to make a report can choose to inform SAPR personnel,
Service members can also go directly to an investigative entity (command, MCIO, Inspector General, DoD Inspector General, or law enforcement) to make a retaliation report. 
One of the most important changes in recent years is the provision of military legal assistance to sexual assault victims. Under 10 U.S.C § 1044e, “The Secretary concerned shall designate legal counsel (to be known as “Special Victims’ Counsel”) for the purpose of providing legal assistance to an individual…who is the victim of an alleged sex-related offense, regardless of whether the report of that offense is restricted or unrestricted.”  Section 1044e applies to victims of alleged sex-related offenses “during a period in which the individual served on active duty, full-time National Guard duty, or inactive-duty training;” or “during any period, regardless of the duty status of the individual, if the circumstances of the alleged sex-related offense have a nexus to the military service of the victim.” 20 An individual who is the victim of an alleged sex-related offense shall be provided the option of receiving assistance from a SVC when the victim reports the offense or when the victim seeks assistance from a SARC, a SAVA, a military criminal investigator, a victim/witness liaison, a trial counsel, or a healthcare provider.
Further, notice of the option of a SVC shall be given to a victim of a sex-related offense “before any military criminal investigator or trial counsel interviews, or requests any statement from, the
individual regarding the alleged sex-related offense.”  The victim should also be informed that he/she can deny the assistance of a SVC, but that the choice to decline does not prevent the individual from later requesting the assistance of a SVC.  Section 1044e authorizes SVCs to provide multiple types of legal assistance including:
- Legal consultation pertaining to potential criminal liability of the victim “stemming from or in relation to the circumstances surrounding the alleged sex-related offense and the victim’s right to seek military defense services;”
- Legal consultation pertaining to the Victim Witness Assistance Program;
- Legal consultation pertaining to “the responsibilities and support provided to the victim by the Sexual Assault Response Coordinator, a unit or installation Sexual Assault Victim Advocate, or domestic abuse advocate, to include any privileges that may exist regarding communications between those persons and the victim;
- Legal consultation involving the potential for civil litigation against other parties;
- Legal consultation regarding the military justice system;
- “Representing the victim at any proceedings in connection with the reporting, military investigation, and military prosecution of the alleged sex-related offense;”
- Legal consultation pertaining to eligibility and services available for mental health counseling and other medical services;
- Legal consultation and assistance in any proceedings of the military justice process where the victim can participate as a witness or other party;
- Legal consultation and assistance relating to any complaint against the Government, including allegations under review by an Inspector General, any FOIA requests for information from the
Government, and any communications with Congress; and
- Other legal assistance authorized by the Secretary of Defense.
If the Service member wants more information on reporting, the SVC, VLC, or legal assistance attorney should provide information on reporting options. The SVC, VLC, or legal assistance attorney can also assist Service members with evaluating the options for reporting retaliation.
For Service members who want to make a report of retaliation, there are a few options available, as the Service member could engage command, engage MCIO, engage Inspector General (IG), engage DoD Inspector General (DoD IG) or file a report through DoD Hotline, or engage law enforcement.  Any report made through the DoD Hotline will be sent to the DoD IG. 
- If the Service member engages command and shares his or her experiences, then command should either refer the report to law enforcement for investigation, if necessary, conduct a Command-Directed Investigation, or resolve the report through appropriate means.
- If the Service member engages MCIO, then the MCIO investigates the report.
- If the Service member engages the IG and the retaliation report is from a sexual assault victim, DoD IG shall be informed.
a. The DoD IG will then review the retaliation report from the sexual assault victim and address the report.
- If the Service member who is a sexual assault victim engages law enforcement and reports retaliation, the law enforcement agency will hand off the report to a MCIO. 
The investigative entity has a week following the report of the retaliation and the opening of an investigation to notify the senior SARC and share the information of: “the reporter’s name, the reporter’s ID number and type, the type of reporter (sexual assault victim, witness, bystander, or first responder), the investigative number of the retaliation report, the date of the associated sexual assault report, the name of the victim, and the type of investigative entity.”  The senior SARC must then “document the retaliation report in the retaliation data call or open a case in the retaliation module.” 
INSPECTOR GENERAL (IG) COMPLAINTS AND WHISTLEBLOWER PROTECTION
For Service members who have experienced retaliation following the report of a sexual assault in the form of reprisals, there is an established process in place for the IG to handle reprisal complaints. Statutory restrictions on retaliatory actions for protected Service member communications, also referred to as whistleblower protection, were enacted in the 1988 Military Whistleblower Protection Act and codified in 10 U.S.C. § 1034.  Under Section 1034, an IG who receives an allegation of retaliation in the form of reprisal “shall expeditiously determine…whether there is sufficient evidence to warrant an investigation of the allegation.”  If an allegation is made to an IG within a military department, the IG must timely notify the DoD IG of the allegation.  If the IG determines that an investigation into the allegation is warranted, the IG “shall expeditiously investigate the allegation.” 
In the circumstances where the IG comes to a “preliminary determination in an investigation…that, more likely than not, a [prohibited] personnel action has occurred and the personnel action will result in immediate hardship to the member alleging the personnel action,” the IG must timely notify the Secretary of the military department at issue or the Secretary of the Homeland Security of the hardship “and such Secretary shall take such action as such Secretary considers appropriate.”  Within thirty days following the IG’s completion of an investigation, the IG must “submit a report on the results of the investigation to the Secretary of Defense and the Secretary of the military department concerned” and a copy shall be sent to the member of the armed forces who made the allegation.  The outcome of the investigation must be “determined by, or approved by, the IG of the Department of Defense.” 
According to the DoD, retaliation in the form of ostracism or maltreatment can also be “investigated
by either IG or through commander-directed investigation, depending on the Service and the nature of the allegation.”  An IG is authorized to investigate retaliation in the form of ostracism and maltreatment if the IG “determines it is IG appropriate or if those complaints are made along with a reprisal complaint or made against a senior official.” 
Under the DoD Office of Inspector General, the Directorate for Whistleblower Reprisal Investigations (WRI) is tasked with “objectively and thoroughly investigating whistleblower reprisal complaints filed by members of the armed forces, appropriated and nonappropriated fund employees of the DoD, and employees of DoD contractors and subcontractors.”  In March 2018, as a result of the marked increase in the number of reprisal complaints related to sexual assault, the WRI expanded its staff, adding a “second specialized team comprised of six investigators, a senior investigator, and a supervisory investigator.”39 The specialized teams are in charge of investigating whistleblower reprisal complaints where “complainants alleged they were reporting or preparing to report a sexual assault, or that they were perceived as reporting or preparing to report the crime,” and the teams are also responsible for investigating complaints from individuals who have provided assistance to someone after the person reported a sexual assault.  According to the DoD, in FY18, WRI’s specialized teams focused on sexual assault related reprisals received sexual assault trauma training from experts. 
ARTICLE 138 AND ARTICLE 1150 COMPLAINTS
Article 138 Complaints
For Service members who are victims of alleged retaliation following the reporting of a sexual assault, Article 138 provides a statutory mechanism for Service members to obtain an investigation of allegations of wrongs committed by a Service member’s Commanding Officer. Article 138 of the Uniform Code of Military Justice provides every member of the Armed Forces “who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, [to] complain to any superior commissioned officer.” 42 The wrong done by a commandeering officer may be a failure to correct a wrong done by a subordinate member of the command. Matters appropriate to address under Article 138 include discretionary acts or omissions by a commander that adversely affects the member personally and are: in violation of law or regulation; beyond the legitimate authority of that commander; arbitrary, capricious, or an abuse of discretion; or clearly unfair, e.g., selective application of administrative standards/actions. 
Before a Service member can submit an Article 138 complaint, the Service member must first submit a written request for redress, stating the nature of the alleged wrong and the remedial action
desired, to the Commanding Officer whom the Service member believes has committed the wrong. 
The Commanding Officer must then respond in a timely fashion—typically 15 days from the receipt of the written request.  The Commanding Officer can take remedial action or refuse the request. If the written request for redress of the wrong is refused, the next step is for the Service member to file a formal Article 138 complaint. 46 A formal Article 138 complaint must be submitted in writing and: “(1) State ‘I am officially filing an Article 138 Complaint against [the person to whom you write the initial letter] because of [restate the grievance],” (2) State the officer’s response to the initial letter or lack of response, (3) State what actions must be taken to redress the grievance.”  The Article 138 complaint must be submitted along with the complaint for redress to the commanding officer and any supporting evidence to the Service member’s immediate superior commissioned officer. 48
For an Article 138 complaint to be considered timely, the complainant has to submit the complaint within 90 days from the date he/she discovered the wrong.  The time waiting for the Commanding Officer to respond to the written request for redress does not count for the 90-day time limit. 50 The officer who receives the Article 138 complaint must forward it within 10 days of receipt to the officer exercising General Court Martial Authority, who is typically the Service member’s Commanding General.  The Commanding General then forwards the complaint and any supporting evidence to service headquarters—in the Army, to Headquarters, Department of the Army (HQDA) in addition to the Commanding General’s examination of the complaint and the steps taken to redress the alleged wrongdoing. 
At HQDA, the complaint is reviewed by the Judge Advocate General on behalf of the Secretary of the Army, who will inform the Service member of the final disposition of the Article 138 complaint.  At any point before final action is taken on the complaint, a Service member may withdraw an Article 138 complaint.  The right to submit an Article 138 complaint is protected by the Uniform Code of Military Justice, thus the Service member’s chain of command cannot take retaliatory action for the filing of an Article 138 complaint.  During the Article 138 complaint process, Service members have the right to consult with a military legal assistance attorney or a civilian attorney for advice and assistance in drafting the request for redress and formal Article 138 complaint. 56
Article 1150 Complaints
Article 1150 of the United States Naval Regulations outlines a similar complaint process for Navy and Marine Personnel to supplement Article 138. Article 1150 provides any Marine who believes that
he/she has been “wronged by an act, omission, decision, or order of a person superior in rank, or command,” with the right to report the wrongdoing to the proper authority for redress.  Article 1150 allows military members to seek redress from superiors not in the military member’s chain of command. For example, Article 1150 complaints “are not to be used for complaints against a Marine’s Commanding Officer, which are the proper subject of an Article 138 complaint.” 
REQUEST FOR EXPEDITIOUS TRANSFER OF SEXUAL ASSAULT SURVIVOR OR ASSAULTER
If a Service member who is a victim of sexual assault experiences a threat to his or her life or safety, the threat must be immediately reported to command and DoD law enforcement authorities. Under those circumstances, the victim’s request to transfer is not handled through an expedited transfer process, but is handled through “a fast safety move following applicable DoD and Servicespecific procedures.”  According to the DoD, “[t]he intent behind the Expedited Transfer policy…is to address situations where a victim feels safe, but uncomfortable,” such as a situation “where a victim may be experiencing ostracism and retaliation.”  An Expedited Transfer is intended to move the victim of the sexual assault to a new location “where no one knows of the sexual assault.” 
Expedited transfer requests are only available to Service members who file an Unrestricted Report of sexual assault. If a Service member files a Restricted Report of a sexual assault, the Service member must change his or her report to an Unrestricted Report in order to be eligible for an expedited transfer. At the time a Service member makes an Unrestricted Report of a sexual assault, the Service member shall be informed by the SARC, SAPR VA, or the Service member’s commanding officer “of the option to request a temporary or permanent Expedited Transfer from their assigned command or installation, or to a different location within their assigned command or installation.”  If the Service member chooses to submit a transfer request, the request must be submitted to their Commanding Officer (CO).  The CO will then make a credible report determination after examining “the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO’s investigation’s information,” if that information is available.”  If the CO determines that there was not a credible report, the CO must document the basis for that determination.
When making the credible report determination, the CO shall consider: “[t]he Service member’s reasons for the request [and] [p]otential transfer of the alleged offender instead of the Service member requesting the transfer.”  If the Service member’s transfer request is granted, the transfer order could include the Service member and their dependents or military spouse. Transfers to a different installation should happen within 30 calendar days from the date of the approval of the transfer. 67 For transfers to a new duty location that do not involve a change of station, those
transfers should occur within 1 week of the approval of the transfer.  If the Service member requests a permanent change of station, a permanent change of assignment, or a unit transfer, the CO is required to approve or disapprove the request within 72 hours of receiving the request. 
Following the approval of an expedited transfer, the losing commander will not notify the gaining commander of the sexual assault unless there is an “[a]ctive criminal investigation,” an “[a]ctive legal proceeding,” “[o]ngoing victim healthcare (medical or mental health) needs that are directly related to the sexual assault;” “[o]ngoing monthly CMG oversight involving the victim;” or “[a]ctive SAPR victim support services.”  Case documents from the SARC or SAPR VA are not to be transferred to the gaining SARC unless the victim consents.  In the transfer process, the gaining commander must follow procedures to ensure strict confidentiality.72
In terms of transferring a Service member who has been alleged to have committed a sexual assault, Commanders are authorized to make timely decisions on whether such Service members “should be temporarily reassigned or removed from a position of authority or from an assignment.”  According to the DoD, if a Commander chooses to temporarily reassign or remove an accused Service member, the “reassignment or removal must be taken not as a punitive measure, but solely for the purpose of maintaining good order and discipline within the member’s unit.”  A Commander can make the determination for temporary reassignment or removal at any point after receipt of an Unrestricted Report that identifies that Service member as an alleged assaulter. 
CONGRESSIONAL INQUIRIES INTO RETALIATION FOR REPORTING
Article I, Section 8 of the United States Constitution grants Congress the power to raise and support armies; provide and maintain a navy and make rules for the governance of those forces. Through this authority, Congress has determined that sexual assault is a criminal act under the Uniform Code of Military Justice and thus “has an interest in overseeing the implementation and enforcement of these laws in order to provide for the health, welfare, and good order of the Armed Forces.”  In the past two decades, Congressional efforts to tackle military sexual assault have expanded. There are four main categories of Congressional oversight and action on military sexual assault: “(1) Department of Defense management and accountability, (2) prevention, (3) victim protection and support, and (4) military justice and investigations.” 
Protecting victims from retaliation for reporting sexual assault falls under the category of Victim
Protection and Support. Service members have an absolute right to communicate with Members of
Congress, most clearly stated in the Military Whistleblower Protection Act. 79 On the issue of retaliation, Congress has taken action to: clarify and expand the definitions of retaliation, improve whistleblower protections for sexual assault victims and bystanders/witnesses, and improve oversight of the investigation and reporting process of alleged retaliatory actions.  The FY14 National Defense Authorization Act (NDAA) required the DoD to impose regulations prohibiting retaliation against an alleged victim of sexual assault.  The FY14 NDAA also improved protections for military whistleblowers, adding the requirement that IG retaliation investigations “include those ‘making a protected communication regarding violations of law or regulation that prohibit rape, sexual assault, or other sexual misconduct.’”  Congress continued to expand whistleblower protections in the FY17 NDAA, addressing concerns raised in a 2015 Government Accountability Office (GAO) report.  The 2015 report reviewed DoD IG’s handling of whistleblower complaints, finding that “DoD IG did not have a process for documenting whether investigations were independent and were conducted by someone outside the military service chain of command” and that there were “substantial delays in the average length of DoD IG and service IG whistleblower reprisal investigations.”  The FY17 NDAA expanded prohibited personnel actions against whistleblowers to include:
- The threat to take any unfavorable action.
- The withholding, or threat to withhold any favorable action.
- The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade.
- The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member. (v) The conducting of a retaliatory investigation of a member. 
As laid out here, there are many ways by which Service members can protect themselves against retaliation for reporting sexual assault in the military. However, it remains to be seen whether these protections will prove to be effective. The fact that only 30 percent of the total 20,500 Service members who experienced a sexual assault in the past year reported their assault suggests that there is widespread mistrust in the reporting process and in the military’s ability to effectively protect its members from sexual assault. Retaliation for reporting remains a serious problem and those concerned about this issue must continue to monitor these provisions to see if they provide any real protection for victims at all.
 Department of Defense, Department of Defense Annual Report on Sexual Assault in the Military Fiscal Year 2018 (2019) [hereinafter FY18 DoD Report on Sexual Assault].
 Id. 3 Id.
 Department of Defense, DoD Retaliation Prevention and Response Strategy: Regarding Sexual Assault and Harassment Reports 27 (Apr. 2016) [hereinafter DoD Retaliation Prevention 2016].
 Id. at 5.
 Id. at 27.
 at 5.
 “Retaliatory investigation” is defined as “an investigation requested, directed, initiated, or conducted for the primary purpose of punishing, harassing, or ostracizing a member of the armed forces for making a protected communication.” See 10 U.S.C. § 1034.
 U.S.C. § 1034.
 DoD Retaliation Prevention 2016 at 5.
 See 10 U.S.C. § 893.
 DoD Retaliation Prevention 2016 at 5. 14 SAPR Program Procedures at 42.
 Id. at 42-43.
 Department of Defense, DoD Retaliation Prevention and Response Strategy Implementation Plan App. C (Jan.
2017) [hereinafter DoD Retaliation Prevention 2017].
 See 10 U.S.C. § 1044(e).
 See 10 U.S.C. § 1034.
 DoD Retaliation Prevention 2016 at 5.
 U.S.C. § 938, Art. 138.
 See Article 138 Complaints, United States Army Garrison Presidio of Monterey (2015), https://home.army.mil/monterey/index.php/download_file/1033/889. 46 GI Rights Hotline. supra note 43.
 Id. 48 Id.
 Id. 50 Id.
 U.S. Army Garrison Presidio of Monterey, supra note 120.
 Id. 56 Id.
 Grievance Procedures: Article 138 Complaints, Article 1150 Complaints, Marine Corps Air Station New River, https://www.newriver.marinesmil/Portals/17/Documents/Grievance%20Procedures.pdf.
 SAPR Program Procedures at 51.
 Id. at 52.
 Id. 67 Id.
 Id. at 54.
 Id. at 55. 72 Id.
 Id. at 53.
 U.S. CONST. art. 1, § 8
 Kristy N. Kamarck & Barbara Salazar Torreon, Military Sexual Assault: A Framework for Congressional Oversight, Congressional Research Service (2017).
 U.S.C. § 1034.
 Kamarck at 41.
 National Defense Authorization Act for Fiscal Year 2014, H.R. 3304, 113th Cong. (2013).
 Kamarck at 43.
 Id. at 43-44.
 National Defense Authorization Act for Fiscal Year 2017, S. 2943, 114th Cong. (2016).