S. 1081 — Introduced in Senate

II 113th CONGRESS 1st Session S. 1081 IN THE SENATE OF THE UNITED STATES May 23, 2013 Mr. Warner (for himself and Mr. Kaine) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to expand and enhance authorities on protected communications of members of the Armed Forces, and for other purposes. 1. Short title This Act may be cited as the Military Whistleblower Protection Enhancement Act of 2013. 2. Expansion and enhancement of authorities relating protected communications of members of the Armed Forces and prohibited retaliatory actions (a) Expansion of prohibited retaliatory personnel actions Subsection (b) of section 1034 of title 10, United States Code, is amended— (1) in paragraph (1)— (A) in subparagraph (A), by striking or at the end; (B) in subparagraph (B)— (i) in clause (i), by inserting or a representative of a Member of Congress after a Member of Congress; (ii) in clause (iv), by striking or at the end; (iii) by redesignating clause (v) as clause (vi); (iv) by inserting after clause (v) the following new clause (v): (v) a court, grand jury, or court-martial proceeding, or an authorized official of the Department of Justice or another law enforcement agency; or ; and (v) in clause (vi), as redesignated by clause (iii) of this subparagraph, by striking the period at the end and inserting ; or; and (C) by adding at the end the following new subparagraph: (C) testimony, or otherwise participating in or assisting in an investigation or proceeding related to a communication under subparagraph (A) or (B), or filing, causing to be filed, participating in, or otherwise assisting in an action brought under this section. ; and (2) in paragraph (2), by inserting after any favorable action the following: , or a significant change in a member's duties, responsibilities, or working conditions. (b) Inspector General investigations of allegations Subsection (c) of such section is amended— (1) in paragraph (1), by striking paragraph (3) and inserting paragraph (4); (2) in paragraph (2), by striking subparagraph (A) and inserting the following new subparagraph (A): (A) Any violation of any law, rule, or regulation, including a law or regulation prohibiting rape, sexual assault, or other sexual misconduct in sections 920 through 920c of this title (articles 120 through 120c of the Uniform Code of Military Justice), sexual harassment or unlawful discrimination. ; (3) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and (6), respectively; (4) by inserting after paragraph (2) the following new paragraph (3): (3) A communication described in paragraph (2) shall not be excluded from the protections provided in this section because— (A) the communication was made to a person who participated in an activity that the member reasonably believed to be covered by paragraph (2); (B) the communication revealed information that had previously been communicated; (C) of the member’s motive for making the communication; (D) the communication was not made in writing; (E) the communication was made while the member was off duty; (F) the communication was made during the normal course of duties of the member. ; (5) in subparagraph (D) of paragraph (4), as redesignated by paragraph (3) of this subsection, by inserting before the period at the end of the second sentence the following: , with the consent of the member; and (6) in paragraph (5), as so redesignated— (A) by striking paragraph (3)(A) and inserting paragraph (4)(A); (B) by striking paragraph (3)(D) and inserting paragraph (4)(D); and (C) by striking 60 days and inserting one year. (c) Inspector General investigations of underlying allegations Subsection (d) of such section is amended by striking subparagraph (A) or (B) of subsection (c)(2) and inserting subparagraph (A), (B), or (C) of subsection (c)(2). (d) Reports on investigations Subsection (e) of such section is amended— (1) in paragraph (1)— (A) by striking subsection (c)(3)(E) both places it appears and inserting subsection (c)(4)(E); (B) by striking the Secretary of Defense and inserting the Secretary of the military department concerned; and (C) by striking to the Secretary, and inserting to such Secretary,; (2) in paragraph (3), by striking the Secretary of Defense and inserting the Secretary of the military department concerned; and (3) in paragraph (4), by striking the second sentence and inserting the following new sentence: The report shall include an explicit determination as to whether a personnel action prohibited by subsection (b) has occurred and a recommendation as to the disposition of the complaint, including appropriate corrective action for the member.. (e) Action in case of violations Such section is further amended— (1) by redesignating subsections (f), (g), (h), and (i) as subsections (g), (h), (j), and (k), respectively; and (2) by inserting after subsection (e) the following new subsection (f): (f) Action in case of violations (1) If an Inspector General reports under subsection (e) that a personnel action prohibited by subsection (b) has occurred, not later than 30 days after receiving such report from the Inspector General, the Secretary of Homeland Security or the Secretary of the military department concerned, as applicable, shall order such action as is necessary to correct the record of a personnel action prohibited by subsection (b), taking into account the recommendations in the report by the Inspector General. Such Secretary shall take any appropriate disciplinary action against the individual who committed such prohibited personnel action. (2) If the Secretary of Homeland Security or the Secretary of the military department concerned, as applicable, determines that an order for corrective or disciplinary action is not appropriate, not later than 30 days after making the determination, such Secretary shall— (A) provide to the Secretary of Defense, the Committees on Armed Services of the Senate and the House of Representatives, and the member or former member, a notice of the determination and the reasons for not taking action; or (B) refer the report to the appropriate board for the correction of military records for further review under subsection (g). . (f) Correction of records Subsection (g) of such section, as redesignated by subsection (e)(1) of this section, is further amended— (1) in paragraph (1), by striking may review and inserting shall review; (2) in paragraph (2)(C), by striking may and inserting upon the request of the member or former member, after an initial determination that a complaint is not frivolous and has not previously been addressed by the board, shall; and (3) in paragraph (3)— (A) in the matter preceding subparagraph (A), by striking board elects to hold and inserting board holds; and (B) in subparagraph (A)— (i) by striking may be provided and inserting shall be provided; and (ii) in clause (ii), by striking the case is unusually complex or otherwise requires and inserting the member or former member would benefit from. (g) Review Subsection (h) of such section, as redesignated by subsection (e)(1) of this section, is further amended by striking subsection (f) and inserting subsection (g). (h) Burdens of proof Such section is further amended by inserting after subsection (h), as so redesignated, the following new subsection (i): (i) Burdens of proof The burdens of proof specified in section 1221(e) of title 5 shall apply in any investigation conducted by an Inspector General, and any review conducted by the Secretary of Defense, the Secretary of Homeland Security, and any board for the correction of military records, under this section. . (i) Effective date The amendments made by this section shall take effect on the date that is 30 days after the date of the enactment of this Act, and shall apply with respect to allegations pending or submitted under section 1034 of title 10, United States Code, on or after that date.