WASHINGTON: Precedent for filing a whistleblower complaint requires that the complainant is a first-hand witness to the alleged offense or suspected wrongdoing. Criteria that were changed in an amended policy procedure, giving the whistleblower the option of being either a firsthand or secondhand (or more) witness. In normal legalize, testimony from someone who was not a firsthand witness is known as hearsay.
The so-called whistleblower complaint filed against the Trump administration gives the appearance of impropriety on many fronts.
The possible discrepancies:
- Whistleblower complaints are governed under Title 10, United States Code, Section 1034 (10 U.S.C. 1034). This code is established law and must be changed by the due process of a cognizant authority. It appears that changes to the whistleblower complaint procedure were implemented by a secretive amendment to the Whistleblower Complaint Form.Question: Were these changes made via standard protocol?
- Changes to this law also apply to the Department of Defense (DoD), which includes all United States Military, Defense Contractors and DoD administrative support personnel. Of particular interest is the applicability of the law for the U.S. military, since Title 10, USC directly impacts the Uniform Code of Military Justice (UCMJ). Each branch is charged with developing policy and instructional guidance based on Title 10, USC. Germane to this is a discussion of recommendations to changes to the policy by the top brass in the Pentagon, who in turn convey this to the Commander in Chief via the Chairman of the Joint Chiefs of Staff (JCS). The rationale for policy changes should have collaborated with other federal agencies (e.g.: FBI, CIA, etc.), Cabinet members, including the Department of Justice (DOJ). The review process should yield a consensus of opinion either establishing the need for recommended changes OR a finding that the recommended changes are not warranted at that time.Question: Was such a review process evident in this case?
Voluminous reports have established that the whistleblower received information from the firsthand source, but did not actually witness the alleged wrongdoing themselves. Federal (including military) law requires that employees have an OBLIGATION to report offenses.
For example, note the verbiage in the military code: Article 1137: Obligation to Report Offenses
- Persons in the (military) service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.
- The person who originally observed/witnessed the alleged inappropriate actions by the Trump Administration was obliged to report this via the established protocol. Is there evidence that this happened?
Training is an integral part of maintaining a positive and healthy work environment
as well as good order and discipline in the military. Prior to implementing any meaningful changes in policy and/or procedures, federal and military leadership are charged with having a stand-down period for making employees or military members aware of the changes.
Verification of such training has a requirement of documentation and subsequent filing of the certification of training in the personnel folder or military service record. Is there evidence that such training was directed (from above) by cognizant authority, and has such training been conducted and properly documented?
The Whistleblower not blowing the whistle on the whistleblowers
The irony in all of this is that the whistleblower apparently went to great lengths to protect the identity of the person who leaked the allegation of wrongdoing. This can not happen without a stealthy, seemingly clandestine amendment to the whistleblower reporting criteria.
In light of the glaring lack of corroboration by top federal civilian and military leadership, as well as no systematic training and amendment process to policy documents, a dense cloud of suspicion and doubt will hang over this event.
Last, but not least, the changes to the whistleblower policy procedures have wide-reaching implications, among which are changes to the military UCMJ.
In case some have forgotten, President Trump is the Commander in Chief, and the military is under his charge deserved to receive notification of whistleblower policy changes concurrent with any effected via any other federal agency or entity.
Here is an excerpt from U. S. Code germane to the whistleblower policy. Note that it is applicable to federal agencies as well as the U.S. military. Therefore, any and all amendments should be coordinated with DoD:
Statutory Authority: The following statutory language should be cited: “The [name the investigating organization] conducted this whistleblower reprisal investigation pursuant to Title 10, United States Code, Section 1034 (10 U.S.C. 1034), “Protected communications; prohibition of retaliatory personnel actions,” which is implemented by DoD Directive 7050.06, “Military Whistleblower Protection.”
Bill Randall is a retired U.S. Navy Command Master Chief, with over 24 years of Equal Opportunity Liaison experience. Bill was nominated for the DoD Roy C. Wilkins Equal Opportunity award by the Commander, U.S. Sixth Fleet (Gaeta, Italy). He has submitted recommendations for amendments to the U.S. Navy’s Equal Opportunity manual (OPNAVINST 5354.1) that were reviewed, accepted and incorporated. Bill has also trained one of the largest Command Managed Equal Opportunity (CMEO) teams at Naval Training Center, Great Lakes IL, which was recognized as one of the best CMEO teams in the U.S. Navy.