by Kathleen Gilberd, July 2023
Part 1 – Considering and documenting complaints
This is the first part of a discussion of Military Equal Opportunity (MEO) complaints; this part focuses on whether or not to use the MEO process, preparation of documentation and other evidence for MEO complaints, and submission of complaints. The second part will discuss the investigation process and appeals. The third part considers retaliation for making complaints and ways to challenge it.
BY WAY OF BACKGROUND
The Department of Defense prohibits a number of forms of discrimination and violations of equal opportunity in DoD Instruction 1350.02, last revised on September 4, 2020, DoDI 1350.02, “DoD Military Equal Opportunity Program,” September 4, 2020 (whs.mil). That revision made important changes to prior policy, which were discussed in the Winter, 2020, issue of On Watch, On Watch 31.4 Winter 2020 – Military Law Task Force (nlgmltf.org), from which this part borrows heavily.
While the DoD Instruction is controlling, it is also important to become familiar with the service regulations on MEO standards and procedures. These include Army Regulation (AR) 600-20, ARN30074-AR_600-20-000-WEB-1.pdf (army.mil); Chief of Naval Operations Instruction (OPNAVINST) 5354,1H, 5354.1H.pdf (navy.mil); Marine Corps Order (MCO) P5354.1F, MCO 5354.1F.pdf (marines.mil); and Air Force DAFI36-2710_DAFGM2022-02, dafi36-2710.pdf.
The current DoD Instruction defines prohibited discrimination as “[d]iscrimination, including disparate treatment, of an individual or group on the basis of race, color, national origin, religion, sex (including pregnancy), gender identity, or sexual orientation that is not otherwise authorized by law or regulation and detracts from military readiness.” Sexual harassment is included as prohibited conduct, as are bullying and harassment not based on gender.
WHETHER OR NOT TO MAKE MEO COMPLAINTS
Military policy prefers that complaints about racial and gender discrimination and other covered discrimination be handled informally or resolved through the MEO system. Yet servicemembers are, by and large, extremely skeptical of MEO complaints, in part because they are so often unsuccessful, and in part because retaliation is a real problem for people who make these complaints. Before submitting MEO complaints, it is important to discuss the pros and cons of these complaints with clients. In some cases, military personnel may prefer to use other complaint mechanisms, such as Congressional inquiries or Article 138, UCMJ, complaints, though commands may try to force such complaints into the MEO system. In other cases, servicemembers may prefer a low-key, informal approach.
Complainants have slightly greater control over the 138 process. While 138’s should not be used when other complaint procedures (such as MEO complaints) are available for a particular wrong, members may try to use the former or submit both simultaneously. It is possible to include some non-discriminatory wrongs along with discrimination in a 138 or to couch it entirely in non-discriminatory terms. (138 complaints are discussed in some detail in a MLTF memo, Article 138 Complaints: Servicemembers’ Tool for Redress – Military Law Task Force (nlgmltf.org).
Requests for Congressional assistance may be used instead of or in addition to MEO complaints, as well. While some Congressional offices will be satisfied with the military’s very common initial response that ‘there isn’t any problem,’ more sympathetic offices can be persuaded to look beyond that. In addition, there are no time limits on Congressional complaints, while both MEO and Article 138 complaints must be filed relatively soon after the discrimination occurs.
Anonymous MEO complaints may also be considered, as they are specifically permitted under the Instruction. These must have sufficient facts to allow investigation; use of witness statements may be more concerning as named witnesses may be pressured to reveal the complainants’ names. The use of attorneys to present anonymous complaints allows for requests for follow-up notifications of investigation of complaints, results, and the like to be made to the attorneys.
Where clients are concerned about “making waves” by filing a complaint, it may be appropriate to consider less formal methods, such as verbal complaints to lower levels of command, or using their commanding officer’s open door policy (called request mast in the Navy) to speak directly to the commander but without making any record of a complaint. In some cases, a letter from counsel or counselor to the commanding officer, expressing the hope that the matter may be resolved without a formal MEO complaint, may get the command’s attention without as much risk of retaliation. While it is less low key, members may make informal (usually verbal) MEO complaints.
Traditionally, DoD and service regulations encouraged victims of discrimination to resolve matters without any complaint, at the lowest possible level of command by, for example, raising the issue with their immediate superior rather than using MEO procedures.
This low-key approach is not given such stress in the current Instruction, though servicemembers are still encouraged to address discrimination or harassment with informal rather than formal MEO complaints. And while such informal complaints are recommended in the Instruction (part 4.1), it gives real emphasis to formal MEO complaints. Informal complaints may be useful where servicemembers do not want to be seen as causing trouble or be labelled as troublemakers, though any complaint runs that risk. If the command is supportive, informal complaints may be effective, though they don’t always receive real attention.
Formal complaints are considered more serious, provide more rights for complainants, but also increase the likelihood that complainants will be viewed as whistleblowers or troublemakers. Counselors and attorneys generally tend to favor formal MEO complaints, particularly in cases where the command does not appear sympathetic at the outset. It’s important to bear in mind that clients are more likely than counsel or counselors to know how various complaint methods would be viewed by their commands.
As part of this discussion with clients, it is important to help them determine if they are particularly vulnerable to retaliatory action. By way of example, with members who have medical or mental health issues documented in their military medical records, a discussion of possibly unwanted involuntary discharge proceedings is warranted. Similarly, members who have had any disciplinary actions or even counseling entries in their records need to make sure that involuntary discharge for misconduct or unsatisfactory performance will not be an issue. Where past disciplinary action or counseling were themselves part of the discrimination, this can be added to the complaint, making it a little harder for commands to use them as bases for discharge. The difficulty here is proving that an “appropriate” discharge proceeding is retaliatory, rather than simply concurrent, and documentation to support this argument should be gathered before proceeding with complaints.
But it is also worth pointing out to clients that the current Instruction offers some protection against retaliation, though this is vaguely stated, and that greater protection against retaliation is available under the Military Whistleblower Protection Act, 10 USC 1034, 10 U.S. Code § 1034 – Protected communications; prohibition of retaliatory personnel actions | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu), and DoD Directive 7050.06, DoDD 7050.06, “Military Whistleblower Protection,” April 17, 2015, Incorporating Change 1 October 12, 2021 (whs.mil). In addition, complaints made with legal assistance and/or other outside support are somewhat more likely to avoid retaliation. (Challenging retaliation will be discussed in part 3 of this memo.)
While clients’ skepticism of MEO complaints is certainly valid and deserving of respect, this writer suggests that MEO complaints may be made more effective than the MEO system contemplates, forcing commands to acknowledge and respond to discrimination and harassment. While opinions may vary significantly on the ability to make these complaints work, this memo offers ways to assist servicemembers in improving their effectiveness.
WITNESSES AND DOCUMENTATION
Complainants often simply name potential witnesses in the complaint, on the assumption that the investigating officer assigned to the case will interview them. This is not always true. Investigating officers will sometimes ignore some or all listed witnesses, and in some cases will fail even to interview the complainant. It is not uncommon for investigating officers to interview superiors in the command in addition or instead of complainants’ witnesses, and perhaps to interview friends of the members against whom complaints are made, with the result that some investigations make a record of problems or misconduct of the complainants rather than looking into the complaints.
To prevent this, it is often helpful for the complainants, with the help of counsel or counselor, to obtain written statements from witnesses to submit with the complaints. Statements made under oath or under penalty of perjury reduce the possibility that witnesses will be pressured by the MEO officer, investigating officer or command to change or retract their statements. If commands attempt to pressure witnesses, counsel or independent private investigators can interview the witnesses about such intimidation, amending complaints with the interviews or reserving them for any appeal.
Needless to say, potential witnesses may feel fearful of pressure or retaliation and so hesitate to make statements. In these cases, it is sometimes necessary to use anonymous statements, though here it is particularly important to have the statements made under oath or penalty of perjury. Witnesses who are no longer attached to the command are more likely to feel comfortable making statements about the facts of the complaints or prior misconduct or discrimination by the offenders.
Some creativity is in order in considering other evidence to support complaints. Since these are not judicial procedures, of course, rules of evidence do not apply. Second-hand statements can be submitted; evidence that the persons complained of committed other wrongs (whether or not they involved discrimination) may be used; and statements showing discrimination against others are quite useful. Offensive emails, notes or graphics made by offenders are particularly helpful. Investigating officers should also consider contemporaneous writings by complainants, whether in the form of diary entries, letters or emails to family or friends, or the like.
Statements from family and friends with whom complainants have discussed the discrimination may also be useful. It is valuable for complainants to maintain a journal during the MEO process as well, in order to document on-going discrimination, improprieties by the MEO officer or investigating officer and any retaliation; this may be submitted as amendments to complaints or used in appeals or retaliation complaints.
Along with the complaints, counsel or counselor may want to submit a legal brief. This provides an opportunity to recite the rights of complainants and the information MEO officers must provide them, as well as the obligations of investigating officers and commands. A brief can also cite appropriate portions of the service regulation and the controlling DoD Instruction. In addition, it may be useful to cite provisions of recent National Defense Authorization Acts which have not yet been incorporated into the regulations. While bringing the regs and NDAA sections to the investigating officers’ and commands’ attention is important, perhaps the most valuable aspect of a brief is making it clear to commands that complainants have legal assistance.
Although the Instruction and service regulations do not mention it, complainants may want to request discovery of documents helpful to their case: any other MEO complaints made against the offenders, command climate assessments if these are not already available, command reports on numbers of MEO complaints and their resolution, and even disciplinary records of the offenders. It may be useful to cite the Freedom of Information Act in requesting these materials. Where they are made available, complaints may be amended to include deficiencies in training or command climate in the areas of discrimination alleged. Commands are quite likely to refuse such discovery requests, with little or no authority for doing so, in which case the denials could be included in any appeal.
SUBMITTING FORMAL COMPLAINTS
Formal complaints are presented to commands’ Military Equal Opportunity professionals. They are not normally officers, and while trained in MEO procedures, their level of expertise varies considerably. Some MEO professionals are committed to the program and may be very helpful, while others are more supportive of commands than complainants. With formal complaints, MEO professionals frequently propose that complainants simply tell them what the problem is, and that the professionals write the complaints; in the alternative, they may ask the complainants to write out complaints on the spot. Both methods can lead to weak or inaccurate complaints. A better approach is for complainants and their attorney or counselor to write out formal complaints beforehand and present them in final form to the MEO professionals. If the latter try to reject such complaints, edit or add to them, or claim that they are deficient and cannot be submitted, complainants or counsel may ask where in the DoD Instruction or service reg this is authorized, which will likely result in acceptance of the complaints. In this writer’s experience such proposed changes or rejections tend not to strengthen cases, but rather may weaken them.
In many cases, it is difficult to show that adverse actions and the like are the results of discriminatory intent. Such motive, particularly when racial or gender discrimination are at issue, can be difficult to prove. If that is the case, it may be helpful to argue bullying or general harassment as an alternative or additional basis for complaints.
Finally, it is useful to note at the end of the complaints that copies have been sent to the complainants’ member of Congress and/or Senator, and perhaps to the ACLU, MLTF, NAACP, and/or similar organizations.
CONCLUSION
There are a number of issues to think about with regard to MEO complaints. This starts with whether to file a complaint at all, and then what type of complaint and which process to use. Finally, there is the content of the complaint and what witness statements and documentation should be presented. Hopefully this memo will help attorneys and counselors to prepare the most helpful and effective documents to address and resolve MEO problems.
Part 2 – The MEO complaint process
This part of the memo provides an overview of the military’s handling of formal complaints, as well as investigations and appeals.
As mentioned above, basic elements of the MEO complaint system are covered in DoD Instruction 1350.02, though that Instruction leaves much to the individual services’ regulations. It is important to use both the Instruction and the complainants’ service regulation(s) in discussing the process with clients, preparing complaints, monitoring the progress of cases, and, if necessary, challenging the processing, investigative findings and recommendations, and command decisions on the complaints. Among the important service regs are the Army’s AR 600-20 of 24 July 2020; Department of the Air Force Instruction (DAFI) 36-2710 of 18 June 2020 and an accompanying Department of the Air Force Guidance Memorandum of 30 September 2022; SECNAVINST 5350.16A for the Navy and Marine Corps; OPNAVINST 5354.1H of 3 November 2021 specifically for the Navy; and MCO 5354.1F of 20 April 2021 for the Marine Corps.
It is important to note that the service regulations vary. By way of example, the Air Force, alone of all the services, uses MEO professionals as investigating officers (IOs), rather than having commanding officers (COs) appoint IOs. The Marine Corps, despite the language of the SECNAVINST, labels its Order and the whole subject as “Prohibited Activities and Conduct,” and ignores some MEO provisions. It is also worth noting that the service regulations are dense and incredibly detailed in discussion of timelines, process, and various officials’ responsibilities, but that most provide little detail on the standards for and conduct of investigations. In some cases, service regulations differ from the DoD Instruction as well. For example, the Army and the Navy’s SECNAVINST allow complainants only seven days to appeal CO’s decisions on complaints, although it gives 30 days for the second, final level of appeal. The DoD Instruction allows 30 days. DoD requirements are normally controlling, though if the service reg provides greater rights or protection to servicemembers, its rules apply.
The regs are detailed about timelines for MEO and CO action, the investigations, etc., though failure to comply with the timelines does not appear to be an appealable issue unless command delay leads to loss of witnesses or evidence, witnesses’ poor recollection of events, or other problems affecting the merits of complaints. Nonetheless, it is worth pressing MEO professionals and COs to comply with the deadlines and making a paper trail of such actions.
INITIAL PROCESSING OF COMPLAINTS
Formal complaints are normally submitted to MEO professionals (in some cases called MEO officers, MEO advisors or Equal Opportunity advisors). If a formal MEO complaint is submitted to the command, Inspectors General, or other personnel authorized to accept a complaint, it will generally be forwarded to the MEO professional for processing. The service regs require that a formal complaint be submitted on the service’s form: DA Form 7279 for the Army, AF Form 1587 for the Air Force, NAVMC Form 11512 for the Marine Corps, and NAVPERS 5354/2 for the Navy. While the forms do not offer sufficient space and subject matter entries for the detailed complaints discussed in Part 1 of this memo, it is important to use the form and supplement it with the rest of the complaint, witness statements, other evidence and, if appropriate, a legal brief. These should all be listed on the complaint form to keep them from getting “lost.”
Generally, complaints must be submitted within 60 days of the conduct complained of (or the most recent event in a series of prohibited conduct). The Marine Corps allows submission of complaints within 90 days. The services give the CO the authority to accept late complaints if the circumstances warrant.
The DoD Instruction requires that MEO professionals take several steps on receipt of formal complaints:
- Provide complainants with information on the policies and procedures for complaints of reprisal under DoD Directive 7050.06.
- Explain the investigative process to complainants.
- Give the complainants information on support resources, such as counseling and referrals, both within the military and without.
- Explain appeal rights to the complainants.
- Refer complaints to the appropriate commander or supervisor within three duty days of receipt of the complaints.
- Monitor the progress of the subsequent investigations and keep complainants informed of their status.
- Comply with the service’s specific policies and procedures. (DoD 1350.02, Section 4.2.a)
Most service regs also require the MEO professional or the CO to advise complainants that making false allegations or stating false facts is punishable under the UCMJ. For example, the AR specifically notes that punishment under the UCMJ may be appropriate for knowingly submitting a complaint with false information or allegations. (Section 6-6.h) Complaint forms require that complainants swear to the contents, which increases the possibility that commands will claim that a complaint was a false official statement. The warning and requirement of an oath can certainly have a chilling effect, making it important to discuss the issue, and ensure accuracy of complaints, before they are submitted.
The DoD Instruction states that each complaint is to be processed under the privacy requirements of DoD Instruction 5400.11 and the Privacy Act of 1974. (DoDI, at Section 4.2) In the Army, the MEO professional or CO is to advise the complainant that information will be shared only with those who have a legitimate “need to know.” (AR, Section 6-6.b.(3).(d).2.b)) The Air Force places greater restrictions on confidentiality, as witnesses may see the complaints.
In the Air Force, the MEO/IO is to “ensure the complainant identifies the basis of unlawful discrimination that is alleged to have occurred…”, ensure that he or she provides specific allegations, and “frame the allegations with the concurrence of the complainant,” suggesting that the MEO professional may craft the complaints. The tendency of MEOs to want to write or edit complaints exists in all the services. As noted in Part 1, the better practice is for complainants and their counsel or counselor to fill out the complaint form and prepare any additional writings in advance, avoiding the possibility of misstatements or omissions by the MEO professional.
Upon receipt of complaints, the CO initiates an investigation of the complaints within five days, to the extent practicable, (three days in the Navy) and also forwards complaints “with a detailed description of the facts and circumstances, to a level in the organization which has a legal office (e.g., a GCMCA or agency headquarters)” in the same time period. (DoDI, Section 4.2.b) In the Navy, the CO has one duty day from receipt of complaints to examine them and decide if they should be dismissed, referred to another agency or accepted for further action. COs then initiate either a preliminary inquiry or command investigation, both as set out in the Manual of the Judge Advocate General. (JAGINST 5800.7F, usually called the JAGMAN). With the Marine Corps, the CO receiving the complaint has three duty days to decide to dismiss the complaint or accept it for further action. (MCO, Section 3.15)
Marines’ complaints may be dismissed as “not under the purview,” that is, if the complainants are not covered by the Order, or neither the CO nor the Marine Corps has jurisdiction or authority to provide a remedy. (Here, a complaint should be referred to the relevant agency with subject matter and personal jurisdiction.) Other grounds for dismissal include complaints which duplicate one previously filed or resolved; complaints of institutional discrimination, which must be referred to MPE for guidance on how they should be submitted; complainants’ failure to cooperate; complaints submitted later than 90 days after the discriminatory conduct. There is no mention in the Marine Corps Order of command discretion to accept a late complaint; or voluntary withdrawal of the complaint.
Interestingly, in the Marine Corps, COs have great discretion in deciding how to handle complaints once they are “accepted:” whether to order that they be handled through informal Conflict Management or formal Complaint Resolution. (MCO Section 3.17) Section 3.3, states that “[c]ommanders will consider the complainant’s requested remedy/outcome, but ultimately are responsible for determining and directing the appropriate resolution process in accordance with this Order.” There is no such language in the SECNAVINST or the DOD Instruction, and this would make an interesting challenge or appeal issue.
Section 3-18 of the MCO lists factors which COs should consider in deciding between these methods; these include, among other things, whether there is credible evidence of the prohibited conduct; whether complainants participated in the conduct; whether the complainants also committed prohibited conduct, and whether the conduct was verbal, physical or both. Where COs feel a formal investigation is appropriate or conclude that they need more information to make these determinations, the complaint should be processed under the formal Complaint Resolution process, with the CO appointing an IO. Again, there is no language in the SECNAVINST or DoD Instruction leaving formal vs. informal resolution to COs.
The AR has no language allowing a CO to dismiss a complaint; rather, it states that, upon receipt, the CO will either conduct an investigation personally or “immediately” appoint an IO, under the provisions of AR 15-6.
MEO complaints involving sexual harassment are generally processed through the MEO system, though complainants are also referred to sexual assault/harassment programs for support and assistance. The Army, for example, refers complainants to SHARP. The Air Force, at Section 1.3.24.13 of the DAFI, requires that sexual harassment complainants be referred to the Sexual Assault Prevention and Response (SAPR) office for support and victim advocacy, which the MEO office does not provide. At the same time, complaints should also be referred to the MEO office for processing and investigation of the complaint. The DAFI repeatedly states that the SAPR and MEO offices should communicate regularly on each case.
Nothing in the regs suggests that additional witness statements, evidence, issues or reports of further prohibited conduct may not be submitted to the IO during the course of the investigation.
MEO INVESTIGATIONS
After appointing an IO, or referring the matter to an Air Force MEO for investigation, COs must monitor the investigation, unless it requires referral to one of the criminal investigative agencies, such as NCIS or CID, due to allegations of criminal offense(s). COs are to ensure timely completion of investigations, normally within 30 days after they are begun, or 14 days if the complaint involves sexual harassment. If investigations cannot be completed within that time, COs must make an extension request in writing, generally for another 30 days, and provide progress reports every 14 days to the next higher commander. When requests for extension are granted, COs must also inform complainants and alleged offenders of the length of the extension and the reason it was requested. The Army and Marine Corps follow these steps, but the Air Force requires that complaints be processed within 20 days, unless the shorter time frame for sexual harassment complaints applies (DAFI, at Section 4.15.2), and the Navy OPNAVINST states that investigations should be completed within 14 days of initiation.
Again, the Air Force, unlike the other services, leaves the investigation in the hands of MEO professionals. Under Section 4.15.2 of the DAFI and its definitions, Installation EO offices will complete “clarification” within 9 days of receipt of complaints. Clarification is defined as the “[p]rocess of gathering information regarding a formal equal opportunity complaint to determine whether credible evidence exists and/or that unlawful discrimination occurred.” MEO offices, rather than COs, then determine whether or not complaints are substantiated. Clarification must be completed within 20 days or the Installation EO Director will inform the installation commander of the need for additional time, and provide progress reports every 14 days until the case is closed.
Before initiating the investigation, the IOs (or MEO professionals in the Air Force) must obtain legal advice and consult with MEO professionals. In the Army, for example, IOs are to meet with the commands’ Staff Judge Advocates or legal advisors to discuss the conduct of the investigation. IOs must also meet at the outset with MEO professionals, who will provide suggested questions for interviews. While these are referred to as suggestions, the AR also says that IOs “will” use these questions with witnesses, complainants and alleged offenders, chain of command and third-party personnel. (AR 6- 6.c.(4)) The MEO professional is also to ensure that the investigation focuses directly on examining the validity of the allegations. Unfortunately, these provisions are not always followed, and investigators will sometimes focus on the character and behavior of the complainant rather than the allegations in the complaint.
The DoD Instruction provides virtually no guidance on the conduct of the investigation itself. In the Navy, IOs are to follow the investigative guidance in the JAGMAN. The Army, in Chapter 6 of the AR, provides the greatest detail about investigations and also refers IOs to the procedures and standards for investigations in AR 15-6. AR 600-20, at Section 6-6.(1), states that:
“The purpose of any investigation of unlawful discrimination and harassment is to determine to the maximum extent possible what actually occurred, to assess the validity of allegations made by the complainant, to advise the commander of any leadership or management concerns that might contribute to perceptions of unlawful discrimination, and harassment, poor command climate, and to recommend appropriate corrective actions. The appointing authority is responsible for ensuring the investigation is complete, thorough, and unbiased.”
The AR also explains that:
“[t]he investigating officer will conduct a comprehensive investigation and must an [sic] attempt to interview every individual who may have firsthand knowledge of the facts surrounding the validity of the allegations. The investigating officer, on the advice of their legal advisor, may seek to interview everyone who may have relevant information concerning the relationship between the complainant and the subject. The investigating officer will interview the subject after interviewing witnesses, so that they will have a complete understanding of the alleged incident. If needed prior to the conclusion of the investigation, the investigating officer should conduct a second interview of the complainant and the subject. The investigating officer may choose to re-interview certain witnesses for clarification of conflicting statements. Should unit policies or procedures be called into question as contributing factors to perceptions of unlawful discrimination or harassment, the investigating officer will interview responsible members of the chain of command.” (Section 6-6.c.(5))
The DAFI at Section 4.15.3 states that clarification:
“includes interviewing or taking statements from persons who may have information relevant to the case” and gathering data from records or reports. The Equal Opportunity Practitioner may use information gathered from other investigations in conjunction with (but not in lieu of) their own clarification process to establish a preponderance of credible evidence. Credible evidence is defined as evidence that is believable, confirmed, and corroborated.”
The AR states that:
“Findings of substantiated complaints will meet the standard of proof of the ‘preponderance of the evidence’ standard.” This means that the findings must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence that, after considering everything that is presented, points to one particular conclusion as being more credible and probable than any other conclusion. The ‘weight of the evidence’ is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness’s demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.” (Section 6-6.c.(12))
Similarly, the Navy’s definition in its OPNAVINST is that “[a] substantiated finding occurs when a preponderance of the evidence supports (more likely to have occurred than not occurred) complainant’s allegation of a violation of law, regulation or Navy policy or standards. The documented facts indicate that a violation occurred.”
And the Marine Corps MCO’s definition states that substantiated/substantiation is “[a] determination by a commander (O-5 and above) . . . that a preponderance of the evidence supports the truth of a complainant’s allegation.”
In the Army, at the completion of the investigation, IOs are to review all of the evidence, determine whether or not the investigation fully addressed all the allegations, and then make factual findings and recommendations. Experience shows that these investigations may go astray. In some cases, IOs fail to interview all of the witnesses named in complaints, or otherwise keep the investigation to the IOs’ idea of a “bare bones” inquiry. In other cases, IOs may look more closely at the complainants’ character, behavior and mental health than at the allegations in the complaints. IOs have been known to be more protective of offenders or commands than of complainants. Although some regs require that the IOs focus only on the matters complained of, the AR, as quoted above, states that “[t]he investigating officer, on the advice of their legal advisor, may seek to interview everyone who may have relevant information concerning the relationship between the complainant and the subject.” This seems an open invitation to look at the complainants’ conduct or motives for making complaints.
The IOs will meet with the MEO professionals to review the investigative report, then provide it to the Staff Judge Advocate or legal advisor to conduct a legal review. Reports then go to the COs, who must determine whether investigations are complete or require further work. If they are complete, COs will then decide to approve all or part of the findings and recommendations. In most services the COs decide if the complaint is substantiated, although in the Air Force the MEO/IO makes that determination.
The purpose of the legal review is to determine if:
- “The investigation complies with all applicable legal and administrative requirements.
- “The investigation adequately addresses the complaint.
- “The evidence supports the administrative findings concerning the complaint. Commanders will direct investigating officers to obtain additional information if the finding is not supported.
- “The investigation conclusions and recommendations are consistent with the findings.
- “Any errors or irregularities exist and, if so, their legal effect, if any.
- “The complainant and alleged offender were informed, in writing, of the results of the investigation, including whether the complaint was substantiated, unsubstantiated, or dismissed.
- “The complainant and alleged offender were advised of their right to appeal.” (DoD Instruction, Section 8.1)
Upon completion of the investigation and command (or Air Force MEO) determination, COs will advise complainants and alleged offenders of the results, their appeal rights and their right to request a copy of the investigative report, with redactions as deemed necessary to comply with the Privacy Act.
APPEALS
The DoD Instruction states at Section 5.2.b. that complainants or offenders may file an appeal within 30 duty days of notification of the complaints’ disposition. The military departments are told to establish initial and final appeal procedures, subject to the following:
- “(1) The first level of appeal will be at least two organizational levels above the level at which the appellant is assigned, when practicable.
- “(2) The appeal procedure is not an adversarial process that provides for personal appearances or hearing rights.
- “(3) The final appeal authority will decide the appeal based on the written record and any written arguments submitted with the appeal.
The appeal authority may sustain or overrule the finding, or remand the matter for further fact-finding.” (DoDI Section 5)
The Navy’s OPNAVINST provides that complainants and/or alleged offenders may request a redacted copy of the investigation, which must be provided within 14 days of the request. If the request is made during the appeal period, that period will be adjusted to run from receipt of the requested report. The other service regs do not mention such a “reset” of the appeal period.
Under the DAFI, Air Force appeals must be submitted within 30 days of notification of decisions on complaints, though the Installation Commanders may allow late appeals. According to the AR, Army appeals must be submitted within seven days of notification of the investigations’ findings and the commands’ actions to resolve the complaints, or notice of denial of the first appeal. Similarly, the Navy requires that appeals be submitted within seven days of notification of completed investigations and command determinations. The Marine Corps allows 30 days from notification of the COs’ disposition of the complaints. Final appeals may be filed within 30 days of receipt of written notice of the first appeal authority’s decision.
Seven days seems insufficient for preparation of an appeal in all but the simplest of cases. Army or Navy complainants may want to request the 30 duty days allowed in the DoD Instruction. This should normally be done in writing, with a request for written response. Where the commands refuse the additional time or fail to answer the request, as much of the appeal as possible should be submitted within seven days. That initial appeal could reference the request for the time allowed by DoD and include a statement that the appeal will be supplemented with evidence and arguments that could not be prepared on short notice.
The Air Force uses three levels of appeal: Installation Commanders, MAJCOM Vice Commanders (MAJCOM/CV) and SAF/MRB are authorized to decide appeals. However, “[e]xcept in extraordinary cases, there is no next-level appeal when the commander of both the complainant and the offender is the MAJCOM/Direct Reporting Unit Commander.”
The Navy has two levels of appeal, the first to the CO of the command two organizational levels above complainants, “when practicable.” The second is the Secretary of the Navy or his or her designee.
Under the AR, Army appeals are initially made to the first commander in the chain of command with special court-martial convening authority. A second, final appeal would go to the ACOM, ASCC or DRU commander with general court-martial convening authority. The final appeal authority may sustain or overrule the investigation’s findings or order further fact-finding.
In the Marine Corps, there seems to be only a single level of appeal, to the officer with General Court-Martial Convening Authority (GCMCA), who also reviews all complaints. (MCO, Encl. 2, Chapter 5, Section 10)
Air Force appellants must submit appeals through the Installation Equal Opportunity Office to the lowest level of command authorized to decide the appeal.
Section 4.30.5 of the DAFI states that appeals may not normally be made to the Inspector General: “The Inspector General system is not an available channel of review unless there was an abuse or mishandling of the established process for appealing formal military equal opportunity complaints.” This suggests that deviation from the DoD Instruction or significant delays might be matters to take to the Inspector General.
The DoD Instruction gives virtually no guidance on the content of appeals or whether or not they may contain new evidence and issues. The language of Section 5, quoted above, suggests that new evidence, being outside the written record, should not be added on appeal. Section 8 does mention that COs whose decisions are appealed are to explain “[w]hat, if any, new evidence was provided by the complainant or alleged offender [on appeal] that was not readily available during the investigation.” (DoD Instruction, Section 8.2) Army appeals are reviewed based on the record and any written arguments submitted with the appeal, which might suggest that new evidence is not considered on appeal. (AR, Section 6-6.e)
The Air Force’s DAFI, at Section 4.30, states that complainants may appeal findings of unsubstantiated allegations and offenders may appeal findings of substantiated allegations. Section 4.30.2 requires that appeals be submitted in writing and “will contain no more than 3 single spaced pages,” though supporting documentation, presumably including additional evidence, may be attached. The DoD Instruction includes no limits on the length or brevity of the appeal. In the Navy, “[a]n appeal may be submitted on any legal or equitable grounds based upon a perception that existing DoD or DON regulations were incorrectly applied in the particular case, that facts were ignored or weighed incorrectly or on any other good faith basis.” (OPNAVINST, Chapter 5, Section 6.f)
The OPNAVINST also states that “In addition to the NAVPERS 5354/2 [the complaint form], documentation such as statements of witnesses, personnel record entries, etc., that may be helpful in resolving an appeal, may be submitted to the appellate authority by the party requesting the appeal. The appellant must submit a statement detailing the reason for the appeal.” (Chapter 5, Section 6.c)
The AR gives slightly more detail on appeals, allowing complainants to appeal any findings of unsubstantiation due to failure to reveal or examine all of the facts of the case, or “that the actions taken by the command on [his or her] behalf were insufficient to resolve the complaint.” However, complainants may not appeal on the basis that actions taken against the offenders were inadequate. An Army appeal is to be “brief,” and is submitted on DA Form 7279 to the CO who conducted the investigation or appointed the IO. That CO has three days to refer the appeal to the appellate authority, who has 14 days to review the case, and provide written “feedback” to the appellant.
The Marine Corps’ MCO gives additional detail: “Either party may appeal the CA’s administrative findings on the following bases: any legal or equitable grounds based upon a good faith belief that existing DOD or DON regulations were incorrectly applied in the particular case; that facts were ignored or weighed incorrectly; that remedial action ordered by a commander was insufficient under the circumstances; or on any other good faith basis…
“a. The individual making the appeal bears the burden of providing evidence that establishes the basis for the rebuttal of facts.
“b. Dissatisfaction with the disposition of a complaint does not constitute a valid basis of appeal.” (MCO, Chapter 5, Section 10)
Where complainants and counsel or counselor conclude there are appellate issues not permitted by the service’s reg, it is possible to argue in the appeal that the DoD Instruction sets no limits on issues, and since it is controlling and gives complainants greater rights than the service reg, all appellate issues should be allowed. For the services where brevity is required, one could again argue that the DoD places no such limits on the length of an appeal. With or without that argument, it may be useful to submit a legal brief as an attachment or exhibit to the appeal, to expand on issues in the appeal or raise additional issues. Of course, the brief might also include a statement of facts to reiterate and expand on complainants’ appeals. If the brief is prepared by an attorney or a legal organization, that fact in itself may give the appellate authorities pause. Similarly, noting that copies of the appeal have been sent to an attorney or legal organization, to a civil rights organization such as the NAACP, and/or to a Congressional representative may lead to a more careful review of the appeal.
In preparing an appeal, complainants or independent investigators may talk with friendly witnesses who were interviewed by the IO, to determine whether the reports of their interviews were accurate and complete and to document any omissions or misstatements through new statements. Witnesses who were named in the complaint but not interviewed may be asked for written statements about the underlying discriminatory conduct, and about the fact that they were not interviewed. With unfriendly witnesses’ statements in the IO’s report, other, new witness statements can be used to counter harmful comments or show the witnesses’ motives for siding with offenders. Where investigations make attacks on complainants’ character, behavior or motives, it is important to counter these with new witness statements and/or other documentary evidence.
CONCLUSION
The MEO complaint process is challenging and rife with problems and errors. As noted, the Instruction and regulations are cumbersome and confusing. To deal with this, complainants need a lot of support through a process which seems designed to deter complaints. However, with care, the MEO complaint process can be used against offenders and incalcitrant commands.
Part 3 – Retaliation
Retaliation can be an extremely serious problem for servicemembers who file Military Equal Opportunity or other complaints. Personnel who make MEO complaints are often thought of by superiors and some co-workers as troublemakers or “whistleblowers,” disloyal to their units 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 complainants are denied a promotion or a coveted assignment, receives an adverse performance evaluation or are 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 offenders, their 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) a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted;
(B) a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to—
(i) a Member of Congress;
(ii) an Inspector General (as defined in subsection (j)) or any other Inspector General appointed under chapter 4 of title 5;
(iii) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
(iv) any person or organization in the chain of command;
(v) a court-martial proceeding; or
(vi) 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 commanders’ 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 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 – Google Drive
Complaints of retaliation are to be submitted to an IG within one year of the retaliation. However, the IG receiving “late” complaints may consider them if there are “compelling reasons or circumstances,” as where complainants were actively misled about their rights, were 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. Investigation of complaints 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 complaints or reviewing service IGs’ investigations, the DoD IG reports findings to the Undersecretary of Defense for Personnel and Readiness, the Service Secretary and complainants. The Secretaries may take action or direct COs to take action. Where adverse personnel action, denial of positive personnel action or other retaliatory adverse entries in complainants’ military records are involved, the IG often recommends that cases be referred to the service’s Board for Correction of Military/Naval Records. The IG process can be extremely slow but, informally, the existence of IG investigations may cause commands to treat retaliation more seriously and provide protection to clients.
The regs require that MEO officials and/or COs advise complainants about their options regarding retaliation, with emphasis on making complaints to the DoD or service IG. In addition to IG complaints, complainants should be able to seek direct assistance from MEO officials or COs when retaliation occurs, though not all the service regs are entirely clear on this. The services vary in their description of the MEO officials’ and commands’ 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. Complainants, however, are not bound by COs’ opinions or actions, and may choose complaint mechanisms as they see fit. For example, they may prefer complaints under Article 138 of the UCMJ, Congressional inquiries, pressure from outside organizations or the like.
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, or constitutes failure to obey an order or regulation, punishable under Article 92, for example.
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 complainants to talk to retaliator 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
Clients and their 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 clients to know what they 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 clients that they are not entirely vulnerable.
It’s helpful to discuss the means that clients wish 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, Article 138 complaints, separate MEO complaints 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 memo can provide an outline for discussion and planning.
Also in advance, clients and/or counsel may speak or write directly to COs 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, clients and counsel should ensure counsel will be reachable and available to assist, or that back-up legal assistance will be available, once MEO complaints are filed.
On the possibility that retaliation may involve threats of harm, clients 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 clients 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 MEO complaints themselves, the rules of evidence don’t apply, so that clients 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, clients may want to bring a friend, that is, a friendly potential witness, along when they are likely to encounter retaliators. Any physical or electronic evidence should be preserved—preferably with a second copy kept in counsel’s hands. If retaliators are not violent, it may be possible for clients, with a friendly witness around the corner, to ask the retaliators why they are harassing the complainants. In some cases, clients may want to initiate an email exchange along those lines.
Clients may also document other misconduct, particularly MEO violations or retaliation against other personnel, or other instances of harassment by the retaliators to show a pattern of behavior and help to demonstrate retaliatory intent. Where complainants face retaliation, it is also possible that known witnesses to the MEO violation, or even MEO professionals, 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 victims 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 clients and counselors to revisit their initial discussions of preparation. Clients may wish to reconsider the type(s) of complaint procedures that best address the nature of the retaliation, and how aggressive their 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 clients may be attached to each report or complaint. If UCMJ violations have occurred, and the command does not take prompt disciplinary action, clients 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 complaints are being acted on. Retaliation should also be documented in clients’ initial MEO complaint forms.
Counsel or counselor, rather than clients, may also point out to COs that failure to stop the retaliation and punish the retaliators 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 commands cannot solve the problem.
Complaints of retaliation cannot be made directly by third parties, but others in the command can let COs know that they are troubled by the retaliation and that it is adversely affecting their unit’s morale. Those who have witnessed the retaliation may want to communicate with the Congress member to whom clients have complained, urging swift protective action. And generally making noise about the problem within the unit can let commands know that the clients are not alone, and that morale really is being affected in a way that might adversely affect COs.
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 COs or IGs claim that there is not sufficient evidence of retaliatory intent, clients 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. Complaints under Article 138 of the UCMJ may be made against COs for failing to stop harassment or bullying, again without any need to show retaliatory motives. In addition, clients and counsel may request a meeting with COs’ 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 commands often have proper or improper access to these records and may use them as evidence that the complainants are unstable and unreliable.)
It’s important that the clients civilian and military friends have their backs in this situation. In some cases, it helps to choose a very reliable ‘battle buddy’ to stay with complainants as much as possible, particularly when retaliators 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 IG or other complaints and in pressing commands to help can make a considerable difference in the success of complaints and in the clients’ well-being.
Kathleen Gilberd is a legal worker in San Diego, handling discharge review and military administrative law cases. She is the executive director of the Military Law Task Force and a member of the board of directors of the GI Rights Network.
