This article was first published in the Summer 2023 issue of On Watch.
by Kathleen Gilberd
Retaliation can be an extremely serious problem for servicemembers who file Military Equal Opportunity (MEO) or other complaints. It is widely known that personnel who make MEO complaints are often thought of by superiors and some co-workers as troublemakers and “whistleblowers,” disloyal to their unit and deserving of harassment. The likelihood of retaliation is very often the reason that people decline to make even informal or low-level complaints.
Sometimes retaliation takes official form, as when a complainant is denied a promotion or a coveted assignment, receives an adverse performance evaluation or is command-referred for a mental health evaluation, all things that can derail a military career or lead to an unfavorable involuntary discharge. At other times retaliation involves verbal or physical harassment from the offender, his or her friends, or other servicemembers who feel that anyone making a complaint is disloyal and probably lying. On occasion, retaliation can involve threats of violence or death, or even physical assaults.
The problem is so widespread that it is discussed in the DoD’s MEO Instruction and all of the service regulations on MEO and, of course, in the regulations governing Inspector General (IG) handling of retaliation complaints. While the reality is that the provisions in the regs are not always helpful, retaliation can often be prevented or halted with careful preparation and supportive legal assistance.
Definitions and Policy
The prohibition on retaliation is grounded in federal law. 10 USC 1034, Protected communications; prohibition of retaliatory personnel actions (commonly called the Military Whistleblower Protection Act) 10 U.S. Code § 1034 – Protected communications; prohibition of retaliatory personnel actions | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu), prohibits retaliation and reprisals for making a protected communication. While “protected communication” traditionally meant only communication with a Member of Congress or an IG, the definition has been broadened over time. The Act now states at section (b) that:
(1) 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 or being perceived as making or preparing —
- a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted;
- a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to —
- a Member of Congress;
- an Inspector General (as defined in subsection (j)) or any other Inspector General appointed under chapter 4 of title 5;
- a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
- any person or organization in the chain of command;
- a court-martial proceeding; or
- any other person or organization designated pursuant to regulations or other established administrative procedures for such communications; or
- (C) testimony, or otherwise participating in or assisting in an investigation or proceeding related to a communication under subparagraph (A) or (B), or filing, causing to be filed, participating in, or otherwise assisting in an action brought under this section.
Under this definition, an MEO complaint is clearly a protected communication.
The Act describes retaliation and reprisal in terms of personnel actions, but defines that fairly broadly. Section (b)(2)(A) states:
The actions considered for purposes of this section to be a personnel action prohibited by this subsection shall include any action prohibited by paragraph (1), including any of the following:
(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.
(B) In this paragraph, the term “retaliatory investigation” means 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.
Thus the Act takes into account harassment and even ostracization as parts of retaliation, and dictates the commander’s responsibility to prevent or stop such action.
DoD Directive 7050.06, Military Whistleblower Protection, DoDD 4050.06, “Military Whistleblower Protection,” Effective April 17, 2015, incorporating Change 1 on October 12, 2021 (dodig.mil), expands the definition of prohibited personnel action even further in its glossary by including retaliatory command-directed referrals for mental health evaluations, a not-uncommon tactic in these cases.
While MEO officials and commanding officers can play significant roles in halting retaliation, complaints to the DoD or service IG are the preferred method under the regs for challenging retaliatory behavior. DoD 7050.06 includes some discussion of procedures for IG processing and investigation of retaliation complaints; more detailed discussion can be found in DoD Instruction 7050.09, DoDI 7050.09, “Uniform Standards for Evaluating and Investigating Military Reprisal or Restriction Complaints,” Effective October 12, 2021 (whs.mil). Information can also be found on the IG website, at Home (dodig.mil), particularly under “Whistleblower and DoD Hotline.” Our On Watch article on whistleblower protection can be found in the winter 2023 issue, at MLTF On Watch 2023.1 34.1.pdf .
Complaints of retaliation are to be submitted to an IG within one year of the retaliation. However, the IG receiving a “late” complaint may consider it if there are “compelling reasons or circumstances,” as where the complainant was actively misled about his or her rights, was prevented “in some extraordinary way” from exercising those rights, or timely filed the same complaint with the wrong agency. (DoD 7050.06, Section 3.f.)
The DoD IG evaluates complaints submitted directly to it “to determine if there is sufficient evidence to warrant an investigation.” Within 60 days, the DoD IG must close the complaint, initiate an investigation or ask the service IG to initiate an investigation. The investigation of a complaint should be completed within 180 days of initiation, though there are procedures for obtaining additional time. The DoD IG office also reviews complaint evaluation determinations recommended by service IGs if the latter find the complaint is not supported by the evidence and should be closed. (Enclosure 2.1.a.)
After investigating a complaint or reviewing a service IG’s investigation, the DoD IG reports findings to the
Undersecretary of Defense for Personnel and Readiness, the Service Secretary and the complainant. The Secretaries may take action or direct the CO to take action. Where adverse personnel action, denial of positive personnel action or other retaliatory adverse entries in the complainant’s military record are involved, the IG often recommends that the case be referred to the service’s Board for Correction of Military/Naval Records. The IG process is slow but, informally, the existence of an IG complaint or investigation may cause commands to treat retaliation more seriously and provide protection to the client.
The regs require that the MEO official and/or commanding officer (CO) advise a complainant about his or her options regarding retaliation, with emphasis on making complaints to the DoD or service IG. In addition to IG complaints, a complainant should be able to seek direct assistance from the MEO official or CO when retaliation occurs, though not all the service regs are entirely clear on this. The services vary in their description of the MEO official’s and command’s responsibilities, but all require some level of assistance. See AR 600-20, section 6-7l; DAFI 36-2710, Section 4.31; OPNAVINST 5354.1H, Chapter 6.3; and MCO 5354.1F, part 4.c.
In general, COs can determine that an IG complaint is the proper remedy for retaliation, can conduct a command investigation and take corrective action, or can refer the matter to the service’s Military Criminal Investigative Organization if there has been a violation of the UCMJ. The complainant is not, however, bound by the CO’s opinion or actions, and may choose complaint mechanisms as he or she sees fit.
While retaliation has not commonly been the subject of disciplinary action, this may change to some extent with the addition of the new Article 132 of the UCMJ, 10 U.S. Code § 932 – Art. 132. Retaliation | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu). Article 132 prohibits reprisals for protected communications, so that a person may be criminally charged if he or she “wrongfully takes or threatens to take an adverse personnel action against any person; or wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person.” This language is considerably narrower than that given in the Act or the DoD whistleblower Directive. The Manual for Courts-Martial’s explanation of Article 132 defines personnel action:
For purposes of this offense, “personnel action” means any action taken on a Servicemember that affects, or has the potential to affect, that Servicemember’s current position or career, including promotion, disciplinary or other corrective action, transfer or reassignment, performance evaluations, decisions concerning pay, benefits, awards, or training, relief and removal, separation, discharge, referral for mental health evaluations, and any other personnel actions as defined by law or regulation, such as 5 U.S.C. § 2302 and DoD Directive 7050.06 (17 April 2015)
The offense requires a specific intent to retaliate for making a protected communication.
In addition, some retaliation is punishable under other UCMJ provisions. It sometimes rises to the level of cruelty or maltreatment of a subordinate, punishable under Article 93, or assault, punishable under Article 120, for example, or constitutes failure to obey an order or regulation, punishable under Article 92.
While all of this looks good on paper, it doesn’t always work. IG investigations can be cursory or biased, can take a great deal of time, and sometimes ignore witnesses or allegations in the complaint. COs and MEO personnel may choose to disbelieve or ignore complaints of retaliation or urge that they be resolved at the lowest level, as by pressuring the complainant to talk to the retaliator(s) or have a friend do so. MCIOs sometimes treat a victim as an offender, or simply disbelieve them. To make these processes work, advance preparation and legal support are extremely important.
Advance Preparation
A client and counselor or attorney should have a serious discussion about the possibility of retaliation and the best ways to respond to it, preferably before beginning the MEO complaint process. It’s important for the client to know what he or she may be facing and to plan some strategies and tactics for responding. Setting up a basic plan to respond to retaliation in advance can avoid last-minute floundering and reassure the client that he or she is not entirely vulnerable.
It’s helpful to discuss the means the client wishes to use to document and challenge any harassment or other retaliation — choosing one or more of the available options, running from an IG complaint to less formal complaints to the CO and MEO, an Article 138 complaint, a separate MEO complaint for harassment, a Congressional inquiry, etc. For the last of these, advance contact with the Congress member’s office can be useful. The remaining sections of this article can provide an outline for discussion and planning.
Also in advance, client and/or counsel may speak or write directly to the CO or other command elements to discuss how the latter will respond if retaliation occurs and to mention how counsel will respond. While it’s usually unwise for the servicemember to threaten further complaints in advance of retaliation, no such caution applies to an attorney or counselor.
Of course, client and counsel should ensure counsel will be reachable and available to assist, or that back-up legal assistance will be available, once the MEO complaint is filed.
On the possibility that retaliation may involve threats of harm, client and counsel can discuss an emergency plan, with safe spaces such as a chaplain’s office, use of the command’s open door policy, communication with higher levels of command, the MEOs office, and/or friends who can provide physical and emotional support and if necessary a place to stay when off duty. While no reputable attorney or counselor would encourage a client to go AWOL or UA, some have been known to point out that such an offense is not as bad an option as risking one’s life.
Documenting Retaliation
As with the MEO complaint itself, the rules of evidence don’t apply, so that the client can be creative in documenting retaliatory statements and actions. It helps to keep a journal discussing each incident, noting witnesses to the incident (friendly or otherwise) and making particular note of any statements that show retaliatory intent. If possible, the client may want to bring a friend, that is, a friendly potential witness, along when he or she is likely to encounter the retaliator. Any physical or electronic evidence should be preserved — preferably with a second copy kept in counsel’s hands. If a retaliator is not violent, it may be possible for the client, with a friendly witness around the corner, to ask the retaliator why he or she is harassing the complainant. In some cases, the client may want to initiate an email exchange along those lines.
The client may also document other misconduct, particularly MEO violations or retaliation against other personnel, or other instances of harassment by the retaliator(s), to show a pattern of behavior and help to demonstrate retaliatory intent. Where a complainant is facing retaliation, it is also possible that known witnesses to the MEO violation, or even the MEO official, may also face retaliation. Checking on and documenting this is useful. It may also be helpful to obtain recent Command Climate Assessments to see if MEO violations, retaliatory behavior or command tolerance of harassment are problems at the command.
Finally, counsel or counselor may choose to draft a letter to the CO to be used if retaliation begins, outlining the legal prohibition on such conduct and the command’s responsibility to protect the victim and stop and/or punish the behavior, with a reminder of counsel’s likely response.
Stopping Retaliation
If retaliation occurs, it’s useful at the very start for client and counselor to revisit their initial discussions of preparation. The client may wish to reconsider the type(s) of complaint procedures that best address the nature of the retaliation, and how aggressive his or her response should be. A discussion of counsel’s or counselor’s role may be useful, along with consideration of the kinds of outside support that might be helpful.
Generally, it is wise to report retaliation to the MEO and CO immediately, and to file an IG complaint, preferably with a copy to a Congress member noted in the complaint. After counsel has reviewed it, the documentation gathered by the client should be attached to each report or complaint. If UCMJ violations have occurred, and the command does not take prompt disciplinary action, client and counsel may want to report the behavior directly to the service’s MCIO. In all of these cases, follow-up is important to make sure the complaint is being acted on. Retaliation should also be documented in the client’s initial MEO complaint form.
Counsel or counselor, rather than the client, may also point out to the CO that failure to stop the retaliation and punish the retaliator(s) could lead to unpleasant intervention. It may be useful to explain that counsel will have to consider an Article 138 complaint (in this writer’s experience, the threat of a 138 is often more effective than the complaint itself); that there are advocacy organizations that would want to weigh in on the issue; or that a reporter has somehow heard about the case and wants to talk to the client and CO — all things that the client would, of course, prefer to avoid, but that counsel may have to advise, or counselor may have to recommend, if the command cannot solve the problem.
Complaints of retaliation cannot be made directly by third parties, but others in the command can let the CO know that they are troubled by the retaliation and that it is adversely affecting the unit’s morale. Those who have witnessed the retaliation may want to communicate with the Congress member to whom the client has complained, urging swift protective action. And generally making noise about the problem within the unit can let the command know that the client is not alone, and that morale really is being affected in a way that might adversely affect the CO.
Despite all the limitations of the Feres doctrine, servicemembers can file suit in federal court to force their commands, or other military elements, to follow the law and regulations. See Cushing v. Tetter, Cushing v. Tetter, 478 F. Supp. 960 | Casetext Search + Citator, and the MLTF’s discussion of the case at Cushing v. Tetter:[1] Still a Good Tool in the Box — Military Law Task Force (nlgmltf.org).
Should the CO or the IG claim that there is not sufficient evidence of retaliatory intent, the client may wish to consider other complaint alternatives. Harassment or bullying, covered in DoD Instruction 1020.03, Harassment Prevention and Response in the Armed Forces, are grounds for a separate MEO or other complaint, where such intent need not be shown. A complaint under Article 138 of the UCMJ may be made against the CO for failing to stop the harassment or bullying, again without any need to show retaliatory motives. In addition, the client and counsel may request a meeting with the CO’s superior commanding officer to ask for help.
Supporting The Client
The process of making an MEO complaint can be very stressful, and facing retaliation invariably increases that stress. If counsel or counselor cannot for any reason provide emotional support, it is helpful to look for support from civilian community or advocacy organizations. If the stress becomes great, assistance from a civilian psychologist or therapist should be considered. (Going to a military therapist in this situation may be a two-edged sword, since the command often has proper or improper access to these records and may use them as evidence that the complainant is unstable and unreliable.)
It’s important that civilian and military friends of the complainant have his or her back in this situation. In some cases, it helps to choose a very reliable ‘battle buddy’ to stay with the complainant as much as possible, particularly when the retaliator(s) may be nearby.
Conclusion
The point of all this is that complainants are better protected against retaliation if they do not have to face it alone. Legal and political support in making an IG or other complaint and in pressing the command to help can make a considerable difference in the success of complaints and in the client’s well-being.
