Inspector General of the Marine Corps

1
Inspector General of the Marine Corps Mobile
Training Team Welcome
2
Administrative Overview
3
Administrative Remarks

• Course Materials
• Reprisal Case Study Exploration full week
  analysis
• Emphasis on IG process/procedures
• Materials
• Name Tent
• Schedule
• Seminar Breakout
• Case Study
• Assistance and Investigations Manual, 04 Mar 04
• End of Course Survey

4
Inspector General of the Marine CorpsOverview
5
Mission

• . . . to be the eyes and ears of the Commandant.

Marine Corps Manual
6
Authority and Responsibility

• Independent of the normal subordinate lines of
  authority and command.
• All DON personnel shall respond to any request
  or inquiry by the IG as if made by the
  Secretary.
• SECNAVINST
  5430.57F

7
Relationships
Secretary of the Navy
Secretary of the Navy
Naval Inspector General
Deputy Naval Inspector General for Marine Corps
Matters
8
CMC Guidance August 04
Operational Readiness Quality of
Life Safety Efficiency

• IMPROVE

• ENHANCE

Marine Corps Ethos
Compliance with Regulations

• ENSURE

The Command must benefit from the visit!
9
IGMC Organization
10
Command Inspector Locations
IGMC
III MEF 3D MARDIV 1ST MAW 3D FSSG
MARFORLANT II MEF 2D MARDIV 2D MAW 2D FSSG 4TH
MEB
I MEF 1ST MARDIV 3D MAW 1ST FSSG
MCBWEST MCBCP MCAS MIR MAGTFTC MCASYUMA MCRDW
MCCDC TECOM MCRC MARLOGCOM
MCBATL MCBCL MCASCP MCASNR MCASBFT ERR
MCBJAPAN MCB BUTLER MCAS IWA MCASFUT
MARFORRES 4TH MARDIV 4TH MAW 4TH FSSG
MARFORPAC MCBHI
41 Marine Inspector Activities World Wide
11
OversightDivision
12

Missions

• Intelligence, counter-intelligence, focal point
  actions, special access programs, support to law
  enforcement agencies, special operations
• Oversight of intelligence and non-intelligence
  sensitive activities
• Reporting to IGMC on questionable activities
  defined in MCO 3800.2B and SECNAVINST 3820.3D

13
Readiness Division
14

Mission

• Identify and analyze factors which may inhibit
  or reduce readiness of Fleet Marine Forces, and
  coordinate corrective action.
• ALMAR 185/91

15
Empowerment

• Readiness Assessment
• Focus on specific areas of interest as directed
  by the CMC and the IGMC
• Focus on impediments to readiness
• Address issues that are beyond the commanders
  ability to resolve
• IGMC request masts
• Delivery of Commandants Special Interest Brief

16
Execution

• No-notice, not-for-attribution, visits to
  Battalion and Squadron level
• Remove external roadblocks to combat readiness

17
Inspections Division
18
Overview

• Unit Inspection Program (UIP)
• No-notice
• Biennial cycle (every 2 years)
• Detailed inspection
• Request Mast
• Commandants Special Interest Brief

19
Purpose of Inspections

• Assess and enhance mission effectiveness
• Reinforce importance of combat readiness
• Evaluate compliance with MCOs
• Look for trends
• Involve HQMC when appropriate
• Share exceptional processes and procedures

20
Inspectors Tools

• MCO 5040.6G (Marine Corps Inspections)
• CG level authority and responsibility
• Automated Inspection Reporting System (AIRS)
• Grading system
• Mission Capable (MC)
• Not Mission Capable (NMC)
• No report card

21
CMCs Special Interest Brief

• Safety
• Suicide prevention
• Fraternization
• Hazing
• Sexual harassment
• Homosexual conduct policy
• Request mast
• Core values

22
Assistance and Investigations Division
23
Primary Functions

• Manage USMC HOTLINE Program
• receive complaints of fraud, waste, abuse and
  mismanagement
• conduct investigations as appropriate or directed
• Conduct Senior Official Investigations
• Respond to Office of Legislative Affairs (OLA)
• Respond to CMC Inquiries

24
Complaint Procedure

• Receive complaint (Phone, letter, email, etc.)
• Complaint assessed - IGAR process
• Complaint directed to Investigation, Assistance,
  or SOI
• Could be tasked to the appropriate Inspector or
  HQMC agency
• IGMC monitors progress
• ROI submitted to IGMC

25
Complaint Procedure (Contd)

• IGMC ROI oversight review
• IGMC
• Responds to complainant
• Endorses and forwards ROI
• Prepares response for CMC, NAVINSGEN or SECNAV
  signature

26
Senior Official Investigations

• Authority (DoD Directive 5505.6 SECNAVINST
  5800.12A)
• IGMC is the Component Designated Official (CDO)
• Within DON, NAVINSGEN IGMC are the only offices
  authorized to conduct SOIs

27
Common Allegations

• Whistleblower Reprisal
• Abuse of authority
• Improper relationships
• Improper use of Govt resources
• Harassment
• Discrimination

• Non-support issues
• Hazing
• Improper civilian hiring practices
• Medical care
• Paternity
• Recruiter improprieties

28
Points of Contact

• MajGen D.F Bice Inspector General
• SgtMaj E. E. Leardo IG SgtMaj
• Mr. J. A. Carey Deputy IG
• Col K. M. Scott Director, Readiness
  Div
• Col M. W. McErlean Director, Asst and Invest Div
• Col J. L. Graham Director,
  Inspections Div
• Mr. E. T. Vogt Director, Oversight Div
• CWO3 D. M. Smith Director, Admin Support Div
• Ms. A. M. LeBlanc Counsel
• Phone Numbers 1-866-243-3887
• Fax Number 1-866-441-5089

29
Roles and Responsibilities of Command Inspectors
and Investigating Officers
30
Overview

• The BIG Picture
• Relationship between IGMC and Field Commanders
• Command Inspectors
• Sphere of Command Inspector Activity
• Governing Doctrine
• The Investigating Officer Perspective
• Investigating Officer Duties and Responsibilities
• Basic Qualities of an Investigating Officer (IO)
• References

31
Relationship of IGMC and Field Commanders

• There is no formal chain of command relationship
  between the IGMC and the commanders of major
  commands. The IGMC authority is derived from the
  SecNav and through By direction authority of
  the Commandant of the Marine Corps.
• Assistance and Investigations Manual, 04 Mar 04

32
Command Inspectors

• Assigned to perform IG functions for their
  commanders
• Extension of the eyes and ears of the commander
• Staff relationship with the IGMC and not a
  command relationship

33
Sphere of Command Inspector Activity

• Command Inspectors are responsible to their
  commanders for administrative and operational
  purposes
• Generally do not establish command policy
• No directive authority outside of IG functions
  beyond that normally associated with their rank

34
Sphere of Command Inspector Activity

• Additional authority must come from commander
• Access to all documents and materials needed to
  discharge their duties
• IGMC Hotline referrals are usually conducted
  under Rule 303 of the Rules for Courts-Martial,
  UCMJ preliminary inquiries, or JAGMAN
  investigations

35
Governing Doctrine

• INDEPENDENCE IG / IO must be free in fact and
  appearance from all impairments to independence
• TIMELINESS IG investigations must be conducted
  and completed in a timely manner
• THOROUGHNESS The investigations must examine
  all issues and thoroughly address all relevant
  issues clearly and concisely

36
Independence

• Free from undue command influence and allowed to
  conduct an impartial investigation
• Viewed as impartial by all parties

37
Timeliness

• Responsiveness enhances credibility of the
  process
• Balance quality with timeliness

38
Thoroughness

• More often than not, there is more to the issue
  than initially appears
• Focus is imperative
• Thoroughness and timeliness do not have to be in
  conflict

39
Investigating Officer Duties

• Seek out facts
• Draw conclusions from the facts
• Report conclusions to command in a written report
  with supporting documents

40
Investigating Officer Responsibilities

• The Investigating Officer must
• Advise Inspector and / or Appointing Authority of
  any factor that may affect impartiality
• Limit leave / other activities that may interfere
  with timely completion
• Before beginning investigation
• Consult with Inspector / SJA
• Read all applicable instructions / guides
• Conduct the investigation
• Be impartial, objective, and unbiased
• Keep investigation focused on allegations in
  complaint
• Protect confidentiality

41
Basic Qualities of an Investigating Officer

• Integrity
• Impartiality
• Objectivity
• Fact-based decision
• Unbiased
• Confidentiality

42
References

• Letter of Appointment
• Assistance and Investigations Manual, 04 Mar 04
• IGDG 7050.6, Guide to Investigating Reprisal and
  Improper Referrals for Mental Health Evaluations
• DODI 6490.4, Requirements for Mental Health
  Evaluations of Members of the Armed Forces
• Any other relevant directive or document

43
Commander Directed Investigations (CDIs)

• Commanders have inherent authority to investigate
  matters under their jurisdiction, unless
  preempted by higher authority
• A CDI is used to obtain information on a wide
  array of issues and circumstances, the
  investigation of which are not specifically
  addressed by a regulation
• A CDI is a tool to gather, analyze, and record
  relevant information about matters of primary
  interest to command authorities
• A CDI is not intended to be an outside look by an
  independent office, unlike an IG investigation
• Reference JAGINST 5800.7C

44
Examples of Possible CDI Matters

• Support of dependents and/or private indebtedness
  (these matters could also be referred to DFAS)
• Allegations of homosexual conduct
• Allegations of unprofessional relationships or
  adultery
• Sometimes not specific allegations of wrongdoing
  
• IO could be appointed to diagnose health of a
  unit maintenance shops inventory control
  process.
• Matters of primary interest to command
  authorities when not covered by a specific Marine
  Corps directive

45
Examples of Non-CDI Matters

• These will be discussed in the Special Cases
  lesson
• Military Equal Opportunity (EO)
• Equal Employment Opportunity (EEO)
• Allegation of reprisal and/or restriction
• Allegation of Improper Mental Health Evaluation
• Allegation against Senior Official (O-7/equiv and
  above)
• Types of investigations addressed by specific
  Marine Corps Orders (e.g., aircraft accidents or
  serious crimes)

46
Summary

• The BIG Picture
• Relationship between IGMC and Field Commanders
• Command Inspectors
• Sphere of Command Inspector Activity
• Governing Doctrine
• The Investigating Officer Perspective
• Investigating Officer (IO) Duties and
  Responsibilities
• Basic Qualities of an IO
• References
• Introduction to Commander Directed Investigations
  (CDIs)

47
Inspector General Action Requests (IGAR)
47
48
IGAR 7 Steps

• Receive the request
• Identify the issues/allegations
• Acknowledge receipt of the request
• Conduct a preliminary analysis
• Obtain the facts (inquiry or investigation)
• Conduct follow-up
• Close the case file

49
Step 1 Receive the Request
50
The Complaint Process

• Received at all levels via letters, faxes, phone
  calls, email, or walk-ins
• Complainant may be frustrated
• Downplay the complainants emotions to enable
  him/her to be as articulate as possible
• Initial complaint should be in writing

51
Walk-In Complainant

• Pre-screen walk-in requesters in private area
• Give plenty of time to complainant
• Maintain control of interview
• Have them personally write the statement
• Privacy Act release
• Ask What do you want the IG to do?

52
Write-In Complainant

• This could be letters, fax or email
• Often need to conduct a telephonic interview as
  follow-up.
• Request additional information be submitted in
  writing or over email

53
Call-In Complainant

• Briefly interview the complainant to ensure IG
  appropriate issue
• Take notes of important facts
• Always try to get the complaint in writing
• Defuse the conversation if necessary

54
When NOT to Open a Case

• When NO basis for action exists
• When conduct described is not improper by MCO,
  regulation, law, etc.
• Matter for Referral
• When complainant suffers from psychological
  illness (alien abduction)
• CONGRINT or other inquiry in progress

55
Step 2 Identify the IssuesDevelop the
Allegations
56
Drafting the Allegations

• IGMC will draft broad allegations as made by the
  complainant
• These are NOT carved in stone
• The scope of the investigation should not be
  limited by the initial allegations
• Additional allegations may be added
• IO is obligated to mention allegations discovered
  during the investigation

57
Composition of the Allegation

• Who, did what, when, in violation (or
  noncompliance) of what order/regulation or law.

58
Developing the Allegations

• When drafting the allegations
• Use neutral, non-emotional wording
• Draft so that substantiation impropriety
• Group related complaints into one allegation
• Be cognizant of new allegations that arise during
  the conduct of the investigation

59
Examples

• That Capt Smith had an inappropriate relationship
  with Cpl Jones during Jun/Jul 1999 in violation
  of Article 134 of the UCMJ.
• That SSgt Pennypincher has failed to provide
  adequate financial support to his dependents from
  Nov 1998 to March 1999 in violation of MCO
  5800.16A LEGADMINMAN.

60
Step 3 Acknowledge the Request
61
Acknowledgment Rules

• Acknowledgments to oral requests are made at that
  time
• Observe Privacy Act restrictions
• Use the same method as the requestor (email for
  email, letter for letter)
• Third Party Requesters

62
Step 4 Preliminary Analysis
63
Preliminary Analysis

• Ensure the complaint contains all the facts
• Dates, Times, Locations, Witnesses
• Who, What, When, Where
• Identify any regulation, MCO, Maradmin, etc. that
  was violated
• Determine if another agency is best suited to
  resolve the issue

64
Courses of IG Action

• 2 possible outcomes of IG Action
• Assistance
• Inquiry
• Criminal vs. Administrative
• Inquiry vs. formal Investigation

65
Step 5 Obtain the Facts(Investigation)
66
IG Investigation Basics

• Formal Fact Finding process
• Compel sworn testimony
• Authority is formally directed
• Prescribed Report of Investigation format

67
IG Investigation Sequence

• Obtain a formal directive
• Notify commander and subject
• Plan the investigation
• Notify the witnesses
• Gather and evaluate the evidence
• Write report, get endorsements
• Notify all parties of the results

68
Step 6 Conduct Follow-Up
69
Step 7 Close the Case
70
Case Closeout Basics

• Final response to complainant or external
  agencies
• Stand alone report
• Appropriate accountability
• Case analysis
• File Storage

71
Things to Avoid

• Taking the allegations personally
• Making the allegation too specific
• Attacking the complainants character
• Not using the reasonable person approach
• Trying to figure anonymous complainants identity
• Making promises of an investigation/resolution

72
LUNCH
73
Request Analysis, Tasking, Referral and
Acknowledgement
74
Analysis

• Analysis - Where you gather enough information
  to make a decision on how youre going to proceed
  with the case.

75
Four simple questions

• Who?
• Did What?
• In Violation of What?
• When?

76
Framing Allegation Model
Implied Allegations?
Larger Issues?
Who, did what, in violation of what, when?
Systemic Issues?
Supervisors Condoning Wrong?
77
Framing

• Framed allegation
• Single subject
• Linked to a single alleged wrong
• In violation of a clearly stated criteria
• When did the violation occur?
• Each allegation must be framed separately

78
Standards

• Where clear standards do not exist, it is
  incumbent on the Command Inspector to articulate
  the criteria applied and why
• Inappropriate Conduct - what is the reasonable
  person standard?
• Commander Insensitivity - what is the sensitivity
  threshold?
• Waste - is there extravagant, careless or
  needless expenditure from deficient practices,
  controls or decisions?

79
Your Task

• Sort through complainant provided information
• Develop an allegation
• Break the allegation into its Essential Elements
• What are the Essential Elements?
• Who
• Did What
• In Violation of What
• When
• Sample allegation

80
Sample Allegation
LtCol Goodtime, HQBN XO, improperly allowed the
consumption of alcoholic beverages on government
property while on official time, during the unit
fun day, in violation of MCO 1700.22D, on 6 Jun
04.
81
Essential Elements of The Allegation
82
Essential Elements of The Allegation
Who Lt Col Goodtime, HQBN XO Did What
improperly allowed the consumption of alcoholic
beverages on government property while on
official time, during the unit fun day In
violation of what in violation of MCO 1700.22D
When on 6 Jun 04
83
Examples!
84
Example or Non-Example

• Col Falcon, HQBN CO, improperly directed
• LtCol Raven to Naval Hospital Bethesda for a
  mental health evaluation (MHE) in reprisal for
  filing a complaint with the IG, in violation of
  DoDD 6490.1.
• Essential Elements of a Properly Framed
  Allegation
• Who
• Did What
• In Violation of What Standard
• When

85
Example or Non-Example

• Col Falcon, HQBN CO, improperly directed
• Lt Col Raven to Naval Hospital Bethesda for a
  mental health evaluation (MHE) in reprisal for
  filing a complaint with the IG, in violation of
  DoDD 6490.1. on 16 Oct 02.
• Essential Elements of a Properly Framed
  Allegation
• Col Falcon, HQBN CO
• improperly directed Lt Col John Raven to Naval
  Hospital Bethesda for a mental health evaluation
  (MHE) in reprisal for his IG complaint
• in violation of DoDD 6490.1
• on 16 Oct 02

86
Example or Non-Example

• On 27 Dec 01, the commander and deputy commander
  accepted gifts from KissUp corporation in
  violation of DoDD 5500.7-R (the JER).
• Essential Elements of a Properly Framed
  Allegation
• Who
• Did What
• In Violation of What Standard
• When

87
Example or Non-Example

• On 27 Dec 01, the commander and deputy commander
  accepted gifts from KissUp corporation in
  violation of DoDD 5500.7-R (the JER).
• Essential Elements of a Properly Framed
  Allegation
• The commander (must identify by name)
• improperly accepted gifts from Q corporation
• in violation of DoDD 5500.7-R
• on 27 Dec 01

88
Example or Non-Example

• HQBN leadership improperly directed Capt
  Thunderbolt to the Life Skills Center for a
  mental health evaluation (MHE) in violation of
  DoDD 6490.1.
• Essential Elements of a Properly Framed
  Allegation
• Who
• Did What
• In Violation of What Standard
• When

89
Example or Non-Example

• HQBN leadership improperly directed Capt
  Thunderbolt to Life Skills Center for a mental
  health evaluation (MHE) in violation of DoDD
  6490.1.
• Essential Elements of a Properly Framed
  Allegation
• HQBN leadership (must identify by name)
• improperly referred Capt Thunderbolt for an MHE
• in violation of DoDD 6490.1
• ??? (must identify the date the offense
  occurred)

90
Framing Allegation Model

• Why look for larger issues?
• Inevitably drives resolution strategy
• Include
• Senior officer and senior official cases
• Reprisal
• Mental Health
• Harassment
• Discrimination

91
Framing Allegation Model

• Why look for implied allegations?
• Helps answer the intent of a question
• If complainants describe a wrong, but dont /
  cant articulate it, the IG needs to account for
  the alleged wrong
• Watch for third party implied allegations

92
Framing Allegation Model

• Why look for systemic problems?
• To look for the root cause
• Often found in FWA complaints

93
Framing Allegation Model

• Why look for evidence of commanders or
  supervisors condoning wrongdoing?
• Failure to account for this can result in a
  follow-on complaint of flawed/biased
  investigation
• For example may allege supervisors dismissed or
  failed to act on complainants concerns

94
Tips and Techniques

• Involve the complainant but dont allow them to
  run the complaint analysis or any subsequent
  investigation
• Seek clarification
• Demand corroboration
• Identify criteria centered around the issues

95
Tasking

• Tasking where you decide to either Refer,
  Transfer, Assist, Dismiss or Investigate.

96
Courses of IG Action
Contact
Analysis
Tasking
Refer
Transfer
Dismiss
Assist
Investigate
97
Tips and Techniques

• Consider the complainants status
• Consider the subjects status
• Who owns the subject?
• Would it be self-investigation?
• Determine the specific remedy the complainant is
  seeking

98
Courses of IG Action
Contact
Analysis
Tasking
Refer
Transfer
Investigation Plan
Dismiss
Framed Allegation
Assist
Proof Analysis Matrix
Investigate
Questions / Evidence
Report
99
Benefits of Proper Complaint Analysis Tasking

• Keeps complaints in the most appropriate
  grievance channel
• Creates realistic expectations for all involved
• Focuses investigation
• Protects IG credibility

100
Acknowledgement

• Acknowledgment may be oral or in writing,
  formal or informal. The acknowledgment may
  indicate when the requester can expect a final
  response.

101
Summary

• Analysis - the IGs most important activity
• An art - improves with experience
• Deliverable Concise allegation linking a single
  subject, to a single alleged wrong, in violation
  of a clearly defined standard, when
• Timely tasking

102

• Reprisal
• The Whistleblower Protection Act

103
Overview

• What the law says
• Why we have the law
• The elements of reprisal
• Receiving and investigating reprisal allegations

104
References

• DoD Directive 7050.6, Military Whistleblower
  Protection, 23 Jun 00
• IGDG 7050.6, Guide to Investigating Reprisal and
  Improper Referrals for Mental Health Evaluations,
  6 Feb 96 (Green Book)
• Assistance and Investigations Manual,04 Mar 04

105
(No Transcript)
106
Whistleblower Protection

• Section 1034 of Title 10, U.S.C. (FY95 National
  Defense Authorization Act) -- The Law
• DoD Directive 7050.6, Military Whistleblower
  Protection
• DoD implementation of the law

107
Why the Law?

• To insure grievance channels remain open
• The IGMC takes ownership of this one
• Abuses impact mission accomplishment

108
Reprisal Defined

• Taking (or threatening to take) an unfavorable
  personnel action or withholding (or threatening
  to withhold) a favorable personnel action for
  making (or preparing to make) a protected
  communication

109
Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage of the forgoing elements

110
Protected Communication

• Any lawful communication made by a member of
  the Armed Forces to a Member of Congress, IG, or
  Inspector regardless of the subject of the
  disclosure

111
Protected Communication

• . . . THE COMMUNICATION IS MADE TO
• Appropriate Audience - right folks
• There are two categories of right folks
• Applicable Subject Matter - right stuff
• Each category of right folks has its own unique
  set of requirements, the right stuff

112
Protected Communication

• First instance
• The right folks or appropriate audience
• Members of Congress, IG, or Inspector

113
Protected Communication

• First instance
• The right folks or appropriate audience
• Members of Congress, IG or Inspector
• The right stuff or applicable subject matter
• Any Subject

114
Protected Communication

• Second instance
• The right folks or appropriate audience

115
Protected Communication

• . . . the communication is made to
• A member of a DoD audit, inspection, or
  investigative agency
• Any other person or organization designated under
  component regulations or other established
  administrative procedures to receive such
  communications

116
Protected Communication

• Second instance
• The right folks or appropriate audience
• The right stuff or applicable subject matter

117
Protected Communication

• Any lawful communication in which a military
  member communicates information the member
  reasonably believes evidences
• A violation of law or regulation (including laws
  or regulation prohibiting sexual harassment or
  unlawful discrimination)
• Gross mismanagement or gross waste of funds
• An abuse of authority, or a substantial and
  specific danger to public health or safety

118
Protected Communication

• Second instance
• The right folks or appropriate audience
• Members of DoD audit, inspection or investigative
  agency
• Designated person or organization
• The right stuff or applicable subject matter
• Violation of law or regulation
• Gross mismanagement or waste of funds
• An abuse of authority or a substantial and
  specific danger to public health or safety

119
Is it a Protected Communication?
Is it lawful?
A communication is made
Not Protected
NO
YES
Was it made to congress or IG?
Protected
YES
NO
Was it made to a CoC or designated recipient?
Not Protected
NO
YES
Does member reasonably believe it alleges
violation of law / regulation / etc, gross
mismanagement / waste of funds, abuse of
authority or substantial danger to public health
or safety, etc?
Not Protected
NO
YES
Protected
120
Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

121
Unfavorable Personnel Action

• Any action taken on a member of the Armed
  Forces that affects or has a potential to affect
  (e.g., a threat) that military members current
  position or career

122
Unfavorable Personnel Action

• Such actions include (but are not limited to)
• Demotion
• Disciplinary or other corrective action
• Transfer or reassignment
• Performance evaluation
• Significant change in duties or responsibilities
  inconsistent with the military members rank
• Decisions impacting pay, benefits, awards, or
  training
• Referral for mental health evaluation (MHE)

123
Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

124
Responsible Management Official (RMO) Knowledge

• RMO is anyone who
• Influenced or recommended the action be taken
• Made the decision to take the action
• Approved, reviewed, or endorsed the action
• Knowledge includes
• Personally receiving the protected communication
• Hearing rumors about the protected communication
• Suspicion or belief that the complainant may have
  made a protected communication

125
Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

126
Linkage

• Apparent linkage between the protected
  communication and the adverse action
• Would the adverse action have occurred if there
  was no protected communication?

127
Elements of Reprisal

• Protected Communication
• Unfavorable Personnel Action
• Responsible Management Official (RMO) Knowledge
  (of the protected communication)
• Apparent Linkage

128
Receiving Reprisal Complaints

• IG must advise the member of the provisions of 10
  U.S.C. 1034 and their rights under the statute
• IG can extend whistleblower protection to any
  military member
• IG must comply with notification requirements IAW
  Assistance and Investigations Manual, 04 Mar 04

129
Receiving Reprisal Complaints

• IG must ask member if complaint was also filed
  with DoD/IG
• IAW 10 U.S.C. 1034, the IG must account for
  reprisal and the original set of issues (if those
  issues were not previously addressed)
• Untimely allegations may be recommended for
  dismissal

130
Receiving Reprisal Complaints

• Receiving IG must conduct a prompt reprisal
  complaint analysis
• Determine the potential veracity and relevancy of
  the complaint
• First stage filter
• DoDIG will do complaint analysis for allegations
  filed with their office

131
Reprisal Complaint Analysis

• DoDIG must approve complaint analysis if no
  investigation is warranted
• Forward reprisal complaint analysis through IG
  channels
• If approved, IG will notify complainant
• If investigation is warranted, it must be
  conducted IAW Assistance and Investigations
  Manual, 04 Mar 04

132
Investigating Reprisal

• DoDIG is the final approval authority
• 10 U.S.C. 1034 requires progress report to DoDIG
  and interim response to complainant if
  investigation is not completed in 180 days (IGMC
  action item)
• IGDG 7050.6 a great resource for Investigating
  Officers (IO)

133
Closing Thoughts

• Reprisal has a chilling effect on all grievance
  channels
• Its prohibited by law
• Key is thorough complaint analysis
• If investigation is warranted, conduct a thorough
  investigation IAW Assistance and Investigations
  Manual, 04 Mar 04
• Focus on apparent linkage of adverse action to
  protected disclosure

134
Laws Dealing with Reprisal

• Military Personnel
• 10 USC 1034
• Inspector General
• Civilian Employees
• 5 USC 2302
• Equal Employment Opportunity Commission or Office
  of Special Counsel
• NAF Civilian Employees
• 10 USC 1587
• DOD IG
• Defense Contract Employee
• 10 USC 2409
• DoD IG adjudicated by Defense Logistics Agency
  (DLA)

135
Summary

• What the law says
• Why we have the law
• The elements of reprisal
• Receiving and investigating reprisal allegations

136

• Complaint Analysis for Reprisal

137
Overview

• Why we do a Reprisal Complaint Analysis
• When to do a Reprisal Complaint Analysis
• How to do a Reprisal Complaint Analysis
• What to do with a Reprisal Complaint Analysis

138
Reprisal Complaint Analysis-- WHY

• Its the Law - (10 USC 1034)
• Eliminates inappropriate complaints
• Eliminates the hostages (penalty box)
• Timely and objective approach

139
Reprisal Complaint Analysis-- WHY

• Efficient and effective decision matrix
• Influences your workload
• Ensures prompt/ responsive review
• Provides significant return on investment
• Documents your effort
• Efficient and effective use of investigative
  resources
• Conduct an investigation only if its required!

140
Reprisal Complaint Analysis-- WHEN

• EARLY, EARLIER, EARLIEST
• Information is timely
• Memories are fresh
• Evidence is available
• Key - Concentrate on the front end

141
Reprisal Complaint Analysis-- HOW

• Prepare yourself mentally
• Assess the FACTS
• Focus on critical thinking
• Develop a checklist mentality
• Goal Determine if an investigation is warranted

142
Reprisal Complaint Analysis-- HOW

• Prepare your material
• Gather references
• Assistance and Investigations Manual, 04 Mar 04
• DOD Green book (IGDG 7050.6)
• Gather documentation
• Complainant provided information
• Chronology of events
• Information from SJA and technical experts
• Gather preliminary witness information
• Goal Determine if an investigation is warranted

143
Reprisal Complaint Analysis-- HOW

• Clarify and verify
• Analyze evidence gathered
• Four-part acid test for reprisal
• Goal Determine if an investigation is warranted

144
The Acid Test

• Protected Communication
• Adverse Personnel Action
• Responsible Management Officials (RMO) Knowledge
• Apparent Linkage

145
The Acid Test

• Question 1 Did the military member make or
  prepare to make a communication protected by
  statute?
• To whom was the communication made?
• What was disclosed?
• When was the communication made?
• Did a third party make the communication on
  behalf of the complainant?

146
The Acid Test

• Question 2 Was an unfavorable personnel action
  taken or threatened, or was a favorable action
  withheld or threatened to be withheld following
  the protected communication?
• What was the personnel action and when was it
  taken, withheld, or threatened?
• Identify ALL responsible management officials
• Influenced the decision to take action
• Made the decision to take action
• Took the action
• Approved, reviewed, or endorsed the action

147
The Acid Test

• Question 3 Did the official(s) responsible for
  taking, withholding, or threatening the personnel
  action know about the protected communication?
• Determine if any responsible management official
  (RMO) knew, suspected, believed or heard rumors
  that the complainant made or prepared to make a
  protected communication
• Determine when the RMO(s) first suspected,
  believed, heard or learned that the complainant
  made or prepared a protected communication

148
The Acid Test

• Question 4 Does the evidence establish that
  the personnel action would have been taken,
  withheld or threatened if the protected
  communication had not been made?
• Must consider five variables
• Reasons
• Reasonableness
• Consistency
• Procedural Correctness
• Motive

149
The Acid Test

• Question 4 (continued)
• Reasons stated by RMO(s) for taking, withholding,
  or threatening action
• Reasonableness of the action taken, withheld, or
  threatened does the Punishment fit the crime?
• Consistency of the actions with past actions in
  other, similar cases
• Procedural Correctness - Did RMO(s) comply with
  established policy and procedures for the
  personnel actions?
• Motive of the RMO(s) for deciding, taking or
  withholding the personnel action Was the action
  taken for the right reason?

150
Reprisal Complaint Analysis-- HOW

• Prepare yourself mentally
• Prepare your material
• Screen the evidence
• Is the complaint appropriate for USMC?
• Timely complaint
• Original issues addressed
• Complaint filed with DoD/IG?
• Apply the Acid Test

151
Screen the Evidence

• (1) Is it the right complainant?
• Not civilian employees
• Not a contractor employee
• What about NAF employees?
• (2) Is the complaint timely?
• Consider 60-day rule may recommend dismissal
• Use your professional judgment
• Mitigating factors
• Value to the Marine Corps
• DoD IG is approval authority for reprisal
  complaint dismissals

152
Screen the Evidence

• (3) Was the original issue addressed?
• No refer the issue for resolution
• (4) Was the complaint also filed with DoDIG?
• Include it in the notification letter
• DoD completes complaint analysis
• DoD assigns investigative responsibility

153
Apply the Acid Test

• Notification Requirements
• Answer acid test questions 1-3
• Question 1 - Make or prepare to make a protected
  disclosure...?
• Question 2 - Unfavorable personnel action taken
  or threatened?
• Question 3 - Management knowledge of the
  protected disclosure?
• If any answer is NO
• You lack a prima facie case of reprisal
• Reevaluate the personal complaint

154
Apply the Acid Test

• If the answers are - YES, YES, YES
• You have a prima facie case of potential
  reprisal
• Send notification (ref IGDG 7050.6, Chap 2)
• Complete Record of Complaint Analysis for
  Allegations of Reprisal Under 10 U.S.C. 1034
• IG must look for linkage to Question 4
• Would personnel actions have been taken,
  withheld, or threatened if the protected
  disclosure had not been made?

155
Apply the Acid Test

• Evaluate for linkage
• Reason
• Reasonableness
• Consistency
• Procedural Correctness
• Motive
• Linkage is the Key

156
Reprisal Decision Flow Chart
Evaluate for other potential allegations (abuse
of authority)
Is reprisal alleged or implied?
A complaint is made
Refer, Transfer, Assist, Dismiss, Investigate
as appropriate
NO
YES
Apply Acid Test
Protected Communication?
NO
YES / UNK
Adverse Action?
NO
YES / UNK
NO
RMO Knowledge?
YES / UNK
Prima Facie Case Exists Notification RCA
Required IAW IGDG 7050.6
Forward RCA Recommending Dismissal
NO
Linkage?
Proceed to Investigation
YES / UNK
157
Documenting the Process

• Outline chronology of events
• Identify EVERY protected communication
• To whom each communication was made
• Substance of communication - right stuff
• Identify EVERY adverse personnel action
• Date of occurrence
• Responsible Management Official

158
Documenting the Process

• Identify EVERY linkage of
• Protected communication
• Adverse personnel action
• RMO prior knowledge
• Motive for the personnel action(s)
• If the answers are - YES, YES, YES, NO
• You promptly investigate!

159
Reprisal Complaint Analysis-- WHAT NOW

• Complaint analysis determines that a reprisal
  investigation is not warranted
• Forward results of analysis to IGMC through the
  Command Inspectors Office
• Complaint analysis determines that a reprisal
  investigation is warranted
• Promptly investigate

160
Summary

• Why we do a Reprisal Complaint Analysis
• When to do a Reprisal Complaint Analysis
• How to do a Reprisal Complaint Analysis
• What to do with a Reprisal Complaint Analysis

161
Planning the Investigation (aka Pre Fact Finding)
162
Investigation Plan

• PURPOSE The investigative plan is an outline of
  how the investigator intends to carry out the
  investigation in order to obtain the facts
  necessary to enable responsible authorities to
  make appropriate decisions. It serves as a
  checklist to ensure all necessary points are
  covered in an efficient manner.

163
Courses of IG Action
Contact
Analysis
Tasking
Investigation Plan
Framed Allegation
Pre Fact Finding
Proof Analysis Matrix
Questions / Evidence
Report
164
Overview

• Prerequisites
• Partnership
• Training
• Pre-Investigation
• Authority and Scope
• Appointment Letter
• Framed Allegations
• Investigation Strategy
• Investigation Plan
• Develop a Proof Analysis Matrix

165
Elements of an IG Investigation

• Appointment Letter
• Command Notifications
• The Investigative Plan
• Notify the Witnesses
• Gather and Evaluate the Evidence
• Obtain Commanders Approval
• Notify Commanders, Subject, and Complainant of
  the Results

166
Prerequisites

• Partnership
• Between Inspector, IO and SJA
• Starts between Inspector and SJA during Analysis
• IO joins immediately after being appointed
• Maintained throughout investigation
• Inspector staff is the support function
• Administrative / investigative matters
• Legal Assistance
• Technical assistance is available, if necessary

167
Prerequisites

• Training
• Inspectors responsibility
• One-on-one instruction to prepare IO
• Provide tools for a thorough investigation
• Assistance and Investigations Manual, 04 Mar 04 /
  Proof Analysis Matrix
• Appointment Letter
• Appointed by Appointing Authority
• Defines scope of investigation

168
Appointing Authority

• Authority to direct an investigation is vested
  in
• NAVINSGEN IGMC, Commanders
• SECNAVINST 5430.57F Missions and Functions of the
  Naval Inspector General
• Inspectors in authorized positions
• If designated in writing by their respective
  commander
• Authority to conduct an investigation is extended
  to IO through an appointment letter signed by
  Appointing Authority

169
Scope

• Defined in the IOs Appointment Letter
• Contains the allegation(s)
• Defines investigation as IOs only duty
• Authority to interview and collect evidence
• Defines timeline
• Normally 30 days to complete investigation and
  deliver report
• Restricts release of information
• Release of Inspector records can only be approved
  by the Inspector

170
Getting Started

• IO is not alone
• Inspector staff is support function
• Legal assistance
• Technical assistance if necessary
• Become familiar with tools
• Proof Analysis Matrix
• Assistance and Investigations Manual, 04 Mar 04
• Review support documentation
• Complaint and attachments
• Understand allegation who, did what, in
  violation of what, when
• Understand standard(s)

171
What is an Allegation?

• Allegation
• Declaration or assertion of fact
• If proven constitutes adverse information
• Framing the Allegation
• Single most important factorInspectors job
• Single subject
• Single wrongdoing
• Linked to a standard, policy, statute, rule,
  etc
• Framing Allegation Model

172
Framing Allegation Model
Implied Allegations?
Larger Issues?
Who, did what, in violation of what, when?
Systemic Issues?
Supervisors Condoning Wrong?
173
Making it Happen
Investigation Plan
Framed Allegation - Premise
Proof Analysis Matrix - Blue Print
Questions / Evidence - Facts
Report - Product
174
Investigation Plan (IP)What is it?
Its your roadmap!

• Each IP is fashioned to reflect
• intricacies / subtleties of a case

175
Elements of an Investigative Plan

• Contact List
• Notification List
• Background Information
• Allegations List
• Outline of Proof
• Witness and Document List
• Interview Sequence Plan
• Chronology of Events
• Logistics Plan

176
Investigation Plan (IP) How do I build it?

• 1. Background information
• Allegation
• Chronology
• Timeline focuses investigative efforts
• Provides a starting point for questions
• 2. Evidence required
• Documents / Physical Evidence
• Witness interview list
• Questions
• 3. Admin / logistics requirements

Proof Analysis Matrix
177
Proof Analysis MatrixWhat is it?

• Blueprint / tool that
• Helps organize / outline evidence required
• The heart of your IP
• Identifies Essential Elements
• Who
• Did What
• In Violation of What
• When
• Highlights the evidence
• Focuses Fact Finding
• Outlines proof

178
Proof Analysis MatrixHow do I build it?

• Start with the Allegation
• Identify the Essential Elements
• What you need prove or disprove
• Construct the Table

179
Proof Analysis Matrix
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
Who do you need to talk to
In Violation Of What
Who
What do you need to get
Did What
When
180
Sample Allegation
LtCol Goodtime, XO, HqBn, HQMC, improperly
allowed the consumption of alcoholic beverages on
government property during duty hours at the
battalion Funday, in violation of MCO 1700.22D,
on 6 Jun 02.
181
Identify Essential Elements
Who LtCol Goodtime, XO, HqBn, HQMC Did What
improperly allowed the consumption of
alcoholic beverages on government property
during duty hours at the battalion Fun day In
violation of what in violation of MCO 1700.22D
When on 6 Jun 02
182
Proof Analysis MatrixConstruct the Table
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
In Violation Of What
Who
Did What
When
183
Proof Analysis MatrixWhat to Prove or Disprove
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
In Violation Of What
MCO 1700.22D prohibits on-duty consumption of
alcohol
Who
Lt Col Goodtime
Did What
improperly allowed consumption of alcohol on
govt property during duty hours, at the Bn fun
day
When
On 6 Jun 02
184
Proof Analysis MatrixOrganizes Evidence
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
In Violation Of What
MCO 1700.22D prohibits on-duty consumption of
alcohol
OPR of MCO
Who
OPR of MCO Subject
Lt Col Goodtime
Complainant
Subject

Sanders
Mr
Yeats
Did What
improperly allowed consumption of alcohol on
govt property during duty hours at the Bn fun day
When
Subject
Ms Sanders
Mr Yeats
On 6 Jun 02
185
Proof Analysis MatrixOrganizes Evidence
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
In Violation Of What
MCO 1700.22D prohibits on-duty consumption of
alcohol
OPR of MCO
MCO 1700.22D
Who
OPR of MCO
Subject
MCO 1700.22D
LtCol Goodtime
Complainant
Subject

Sanders

Mr Yeats
Did What
Roster
Base Map

fun day Pict
improperly allowed consumption of alcohol on
govt property during duty hours at the Bn fun day
Duty Hrs
When
Subject
Ms Sanders
Mr Yeats
Pict of Bottle Bottle Label
On 6 Jun 02
186
Proof Analysis Matrix Prepares for Interviews
ESSENTIAL ELEMENTS
TESTIMONY
DOCUMENTS
OBJECTS
In Violation Of What
OPR of MCO
MCO 1700.22D prohibits on-duty consumption of
alcohol
MCO 1700.22D
Who
OPR of MCO
Subject
MCO 1700.22D
LtCol Goodtime
Did What
Complainant
Subject

Sanders
Mr
Yeats
Roster
Base Map

Funday Pict
improperly allowed consumption of alcohol on
govt property during duty hours at the Bn fun day
Duty Hrs
When
Subject
Ms Sanders
Mr Yeats
Pict of Bottle Bottle Label
On 6 Jun 02
187
Developing Questions

• Know your audiencedifferent experience levels
• Types of Questions
• The Basics who, what, when, where
• The Details why, how
• Start general and build toward specific
• Establish knowledge of subject
• Establish knowledge of events
• Establish knowledge of standards
• Establish expertise (if applicable)

188
Investigation Plan (IP) How do I build it?

• 1. Background information
• Allegation
• Chronology
• 2. Evidence required
• 3. Admin / logistics requirements

Proof Analysis Matrix
189
Proof Analysis Matrix Outlines the Report

• Establish the standard
• Establish what happened
• Fact based
• Cross-referenced to testimony / evidence
  collected
• Compare standard to what happened
• Lead reader to logical conclusion
• Product report that is a stand-alone document

190
Investigation Plan (IP)

• Framed allegations
• Issues to be resolved
• Evidence to be collected
• Documents / Physical Evidence
• Witness interview list
• Questions
• Admin / logistics requirements
• Each IP is fashioned to reflect
• The intricacies / subtleties of a case
• The IOs personal style / technique

191
Building the IP

• Review support documentation
• Complaint and attachments
• Any evidence provided
• Standards
• Read th