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Reprisal and the inspector general

Posted 6/10/2008   Updated 6/10/2008 Email story   Print story


Commentary by Lt. Col. Patrick Maes
437th Airlift Wing inspector general

6/10/2008 - CHARLESTON AIR FORCE BASE, S.C. -- As the 437th Airlift Wing inspector general, when people call me or come into my office concerning an issue they are having, it usually comes down to one simple thing: They don't feel like they are being treated fairly. And everyone deserves to be treated fairly. The problem is that "fairness" is relative -- what seems obviously fair (or unfair) to one person could look the total opposite to the next. There is a special issue involving fairness that is very important to the inspector general and that is an issue of reprisal.

Protection from reprisal (being "reprised against") is guaranteed by law, Department of Defense directives, and regulations and is commonly referred to as "whistleblower protection." It ensures that people have the freedom to speak up about wrongs without fear of retaliation. It is one of the IG's "big three" areas that we are required by regulation to investigate.

But what is reprisal, how do you recognize it and what can you do about it? Let me start with what it is.

Reprisal is defined in Air Force Instruction 90-301 as "taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action on a military member for making or preparing to make a protected communication." The definition is not really that helpful until we break down each element and define them individually. I'll begin at the end of the definition, but it is essentially where reprisal begins -with a protected communication. A Protected Communication is any communication made to a member of Congress or an IG. Everything you say to any member of Congress or to me is 100 percent covered as a protected communication. The definition goes further and says that it also includes communication to the staff of a member of Congress or of the IG, any audit, inspection, investigation, law enforcement agency, equal opportunity, family advocacy, or any person in your chain of command, provided the communication involves a violation of a law or regulation. What that means is that if you talk with your first sergeant about your career progression, your next assignment, or any personal issues, that is not considered a protected communication, because it does not address a violation of a law or regulation. But if you talk about an unprofessional relationship you've observed, or someone stealing Air Force property, that is protected. See the difference? It is any communication to Congress or the IG, or reporting wrongdoing to just about any other resolution entity. That's the first required element -- without an actual protected communication, there is no reprisal.

The next element is knowledge of the protected communication by the person taking the personnel action. Obviously if they don't know about the protected communication, they must not be using it against your career, right? So they have to be aware that a protected communication was made, or at least that you were preparing to make a protected communication, and that it must have been made prior to the action. The "preparing to make a protected communication" is a very difficult gray-area and there would need to be something concrete that would validate that knowledge or belief. So that is the second required element -- without knowledge of the protected communication (or its preparation) by the person taking the personnel action, there is no reprisal.

The final element in the reprisal equation is the personnel action itself. It is either taking, or threatening to take, an unfavorable personnel action or withholding, or threatening to withhold, a favorable personnel action. These unfavorable personnel action are things that are part of your official record and that may affect your career. Letters of counseling, letters of reprimand, Articles 15, withholding a promotion, a referral enlisted performance report, officer performance report or unfair EPR or OPR downgrades, or cancelling a permanent change of station are all examples of unfavorable personnel action. Shift selection or length, required physical training sessions, nomination for unit awards, and just being unfriendly are not personnel actions and thus are not considered an element toward making a reprisal complaint. That's the last required element -- without an unfavorable personnel action, there is no reprisal.

So now that all of the elements have been covered, you should have a good idea about what is or is not a case of reprisal. Just because something looks unfair, and you say the word "reprisal," doesn't make it so. But if you've given a protected communication (element one), that the person taking an action had knowledge of (element two), and that action is considered an unfavorable personnel action (element three), then by all means, please contact me or my staff to have the issue addressed. Even if you think you may be the victim of reprisal or need further clarification concerning an individual incident, please contact us.

The 437AW/IG office is located on the second floor of building 246, located near the Airman Leadership School, on S. Davis Street, and our phone numbers are 963-3553 and 3552.

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