Judge Advocates must understand the MWPA in order to advise commanders about this issue.
(16) Judge Advocates and commanders must fully understand the standards under the MWPA, adhere to the statute, and protect the due process rights of servicemembers.
This article provides an analysis of the MWPA to serve as the basic framework for JAs who are analyzing questions involving the statute.
(19) For nearly forty years, the provisions of the Byrnes Amendment remained unchanged until Congress enacted the Military Whistleblower Protection Act of 1988 (MWPA of 1988).20 The MWPA of 1988 bolstered protections for servicemembers by prohibiting any RMO from retaliating or taking reprisal actions against a member of the armed forces who discloses information regarding government fraud, waste, and abuse to a member of Congress or an IG.
The MWPA establishes two categories of protected communications.
The MWPA does not apply to a communication that is unlawful.
(47) Although the MWPA fails to define the term "personnel action," the DoD follows a broad interpretation of the term which includes "[a]ny action taken on a member of the armed forces that affects, or has the potential to affect, that military member's current position or career." (48) Personnel actions may include, among other things, a reduction in military grade, reassignment, disciplinary action or referral for a mental health evaluation, and "any other significant change in duties or responsibilities inconsistent with the military member's grade." (49)
(51) If the IG conducting the preliminary investigation (PI) determines that the servicemember's allegation meets the criteria for coverage under the MWPA, a whistleblower reprisal investigation will be initiated.
The provisions of the MWPA only provide servicemembers with administrative remedies and not private causes of action.
(32) In some cases, such as allegations of reprisals in violation of the MWPA, the IG investigates and then forwards the results to the appropriate senior counsel for action under professional responsibility regulations.
You are now able to assist the IG in drafting a four-part IG allegation, using the MWPA as the standard.