Complaint Analysis for Reprisal

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• Complaint Analysis for Reprisal

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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

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Reprisal Complaint Analysis-- WHY

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

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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!

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Reprisal Complaint Analysis-- WHEN

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

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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

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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

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Reprisal Complaint Analysis-- HOW

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

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The Acid Test

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

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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?

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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

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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

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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

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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?

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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

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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

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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

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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

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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?

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Apply the Acid Test

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

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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
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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

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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!

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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

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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