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DOD Protection Of Whistleblowing Spies

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  1. UNDER SECRETARY OF DEFENSE 5000 DEFENSE PENTAGON WASHINGTON, DC 20301-5000
  2. July 8, 2013
  3.  
  4. MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS
  5. CHAIRMAN OF THE JOINT CHIEFS OF STAFF
  6. UNDER SECRETARIES OF DEFENSE
  7. DEPUTY CHIEF MANAGEMENT OFFICER
  8. DIRECTOR, COST ASSESSMENT AND PROGRAM EVALUATION
  9. DIRECTOR, OPERATIONAL TEST AND EVALUATION
  10. GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE ASSISTANT SECRETARIES OF DEFENSE
  11. DEPARTMENT OF DEFENSE CHIEF INFORMATION OFFICER ASSISTANTS TO THE SECRETARY OF DEFENSE
  12. DIRECTOR, ADMINISTRATION AND MANAGEMENT DIRECTOR, NET ASSESSMENT
  13. DIRECTORS OF THE DEFENSE AGENCIES
  14. DIRECTORS OF THE DoD FIELD ACTIVITIES
  15. SUBJECT:
  16. Directive-type Memorandum (DTM) 13-008, “DoD Implementation of Presidential Policy Directive 19”
  17. References:
  18. See Attachment 1
  19. Purpose.
  20. This DTM:
  21. In accordance with the authority in DoD Directive 5143.01 (Reference (a)), establishes policy, assigns responsibilities, and provides procedures for the implementation of Presidential Policy Directive 19 (PPD-19) (Reference (b)), which prohibits retaliation against employees for reporting waste, fraud, and abuse.
  22. • Requires DoD Component heads with Defense Civilian Intelligence Personnel System (DCIPS) positions to certify to the Under Secretary of Defense for Intelligence (USD(I)) by July 8, 2013 that Component-level policies and procedures are in place for the review process required in section A of Reference (b).
  23. • This DTM is effective July 8, 2013; it will be incorporated into DoD Instruction 1400.25, Volume 2001 (Reference (c)) and a DoD manual currently under development. This DTM will expire effective January 8, 2014.
  24.  
  25. THE WHITE HOUSE
  26. WASHINGTON
  27. October 10, 2012
  28. PRESIDENTIAL POLICY DIRECTIVE/PPD-19
  29.  
  30. MEMORANDUM FOR
  31. THE VICE PRESIDENT
  32. THE SECRETARY OF STATE
  33. THE SECRETARY OF THE TREASURY
  34. THE SECRETARY OF DEFENSE
  35. THE ATTORNEY GENERAL
  36. THE SECRETARY OF COMMERCE
  37. THE SECRETARY OF ENERGY
  38. THE SECRETARY OF HOMELAND SECURITY
  39. ASSISTANT TO THE PRESIDENT AND CHIEF OF STAFF DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET UNITED STATES TRADE REPRESENTATIVE
  40. REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO
  41. THE UNITED NATIONS
  42. CHAIR OF THE COUNCIL OF ECONOMIC ADVISERS ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY
  43. AFFAIRS
  44. DIRECTOR OF NATIONAL INTELLIGENCE
  45. DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY ASSISTANT TO THE PRESIDENT FOR ECONOMIC POLICY
  46. AND DIRECTOR OF THE NATIONAL ECONOMIC COUNCIL DIRECTOR OF THE O F F I C E OF S C I E N C E AND TECHNOLOGY
  47. POLICY
  48. CHAIRMAN OF THE JOINT CHIEFS OF STAFF
  49. SUBJECT: Protecting Whistleblowers with Access to Classified Information
  50. This Presidential Policy Directive ensures that employees (1) serving in the Intelligence Community or (2) who are
  51. eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.
  52. To ensure the timely and effective implementation of the goals of this directive, I hereby direct that the following actions be taken:
  53. A) Prohibition on Retaliation in the Intelligence Community
  54. Any officer or employee of a Covered Agency who has authority to take, direct others to take, recommend, or approve any Personnel Action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a Personnel Action with respect to any employee serving in an Intelligence Community Element as a reprisal for a Protected Disclosure.
  55. Within 270 days of the date of this directive, the head of each Intelligence Community Element shall certify to the Director of National Intelligence (DNI) that the personnel policies that apply to that element provide a process for employees to seek review of Personnel Actions they allege to be in violation of this directive and that the review process is consistent with the requirements of this directive. Such review process shall apply to Personnel Actions that arise after the date on which the department or agency ("agency") head certifies the agency review process. If the head of any Intelligence Community Element fails to make this certification or if the DNI disagrees with the certification, the DNI shall notify the President.
  56. The review process required by the above paragraph shall be consistent, to the fullest extent possible, with the policies and procedures used to adjudicate alleged violations of
  57. section 2302(b) (8) of title 5, United States Code. The review process shall provide for the protection of classified national security information and intelligence sources and methods. As part of the review process, the agency Inspector General shall conduct a review to determine whether a Personnel Action violated this directive and may recommend that the agency take specific corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred. An agency head shall carefully consider the findings of and actions recommended by the agency Inspector General. To the extent authorized by law
  58. (including the Back Pay Act), corrective action may include, but is not limited to, reinstatement, reassignment, the award of reasonable attorney's fees, other reasonable costs, back pay and related benefits, travel expenses, and compensatory damages.
  59. B) Prohibition on Retaliation by Affecting Eligibility for Access to Classified Information
  60. Any officer or employee of an executive branch agency who has authority to take, direct others to take, recommend, or approve any action affecting an employee's Eligibility for Access to
  61. Classified Information shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any action affecting an employee's Eligibility for Access to Classified Information as a reprisal for a Protected Disclosure.
  62. Within 270 days of the date of this directive, the head of each agency in possession of classified information shall certify to the DNI, acting in his or her capacity as the head of the entity selected by the President under subsection 435b(b) of title 50, United States Code, and as the Security Executive Agent designated in Executive Order 13467 of June 30, 2008, that the agency has a review process that permits employees to appeal actions affecting Eligibility for Access to Classified Information they allege to be in violation of this directive and that the review process is consistent with the requirements of this directive. Such review process shall apply to actions that arise after the date on which the agency head certifies the agency review process. If the head of any agency fails to make this certification or if the DNI disagrees with the certification, the DNI shall notify the President.
  63. The review process required by the above paragraph shall, to the fullest extent possible, be consistent with and integrated into the policies and procedures used to review security clearance determinations under Section 5.2 of Executive Order 12968 of
  64. August 2, 1995, as amended. The review process shall provide
  65. for the protection of classified national security information and intelligence sources and methods. As part of the review process, the agency Inspector General shall conduct a review to determine whether an action affecting Eligibility for Access to Classified Information violated this directive and may recommend that the agency reconsider the employee's Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968 and recommend that the agency take other corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred. An agency head shall carefully consider the findings of and actions recommended by the agency Inspector General. To the extent authorized by law (including the Back Pay Act), corrective action may include, but is not limited to, reinstatement, reassignment, reasonable attorney's fees, other reasonable costs, back pay and related benefits, travel expenses, and compensatory damages.
  66. C) Inspector General External Review Panel
  67.  
  68. An employee alleging a reprisal who has exhausted the applicable review process required by Section A or B of this directive may request an external review by a three-member Inspector General panel (External Review Panel) chaired by the Inspector General of the Intelligence Community (on behalf of the DNI, acting in his capacity as the head of the entity selected by the President under subsection 435b(b) of title 50, United States Code, and as the Security Executive Agent designated in Executive Order 13467 of June 30, 2008). If such a request is made, the Inspector General of the Intelligence Community shall decide, in his or her discretion, whether to convene the External Review Panel, and, if so, shall designate two other panel members from the Inspectors General of the following agencies: Departments of State, the Treasury, Defense, Justice, Energy, and Homeland Security and Central Intelligence Agency. The Inspector General from the agency that completed the initial review shall not be a member of the External Review Panel. The External Review Panel shall complete a review of the claim, which may consist of a
  69. file review, as appropriate, within 180 days.
  70. If the External Review Panel determines that the individual was the subject of a Personnel Action prohibited by Section A while an employee of a Covered Agency or an action affecting his or her Eligibility for Access to Classified Information prohibited by Section B, the panel may recommend that the agency head take corrective action to return the employee, as nearly as
  71. practicable and reasonable, to the position such employee would have held had the reprisal not occurred and that the agency head reconsider the employee's Eligibility for Acc·ess to Classified Information consistent with the national security and with Executive Order 12968.
  72. An agency head shall carefully consider the recommendation of the External Review Panel pursuant to the above paragraph and within 90 days, inform the panel and the DNI of what action he or she has taken. If the head of any agency fails to so inform the DNI, the DNI shall notify the President.
  73. On an annual basis, the Inspector General of the Intelligence Community shall report the determinations and recommendations and department and agency head responses to the DNI and, as appropriate, to the relevant congressional committees.
  74. With respect to matters covered by this directive, all agencies shall cooperate with their respective agency Inspectors General,the Inspector General of the Intelligence Community, and External Review Panels and provide such information and assistance to their respective agency Inspectors General, the Inspector General of the Intelligence Community, and members of External Review Panels as such Inspectors General may request, to the extent permitted by law.
  75. D) Policies and Procedures
  76. Within 365 days of the date of this directive, the DNI shall, in consultation with the Secretary of Defense, the Attorney General, and the heads of agencies containing Intelligence Community Elements, issue policies and procedures for ensuring that all employees serving in Intelligence Community Elements are aware of the protections and review processes available to individuals who make Protected Disclosures. These policies and procedures shall to the extent practicable be publically available, and shall provide:
  77. 1) guidance for individual officers or employees regarding what disclosures are protected;
  78. 2)guidance for potential recipients on the appropriate handling of Protected Disclosures, including for referral by the DNI or Inspector General of the Intelligence Community to appropriate agency officials of any Protected Disclosures unrelated to national intelligence; and
  79. 3)information regarding the review processes required by Sections A, B, and C of this directive.
  80. E) Review of Regulations Implementing Section 2303 of Title 5, United States Code
  81. Within 180 days of the date of this directive, the Attorney General, in consultation with the Special Counsel and Federal Bureau of Investigation employees, shall deliver a report to the President that assesses the efficacy of the provisions contained in part 27 of title 28, Code of Federal Regulations in deterring the personnel practices prohibited in section 2303 of title 5, United States Code, and ensuring appropriate enforcement of that section, and describes any proposed revisions to the provisions contained in Part 27 of title 28 that would increase their effectiveness in fulfilling the purposes of section 2303 of
  82. title 5, United States Code
  83. F) Definitions
  84. For purposes of this directive:
  85. 1)The term "Covered Agency" means an executive department or independent establishment, as defined under sections 101 and 104 of title 5, United States Code, that contains or constitutes an Intelligence Community Element, as defined
  86. below.
  87. 2) The term "Eligibility for Access to Classified Information• means the result of the determination whether an employee
  88. (a) is eligible for access to classified information in accordance with Executive Order 12968 (relating to access to classified information), or any successor thereto, and Executive Order 10865 of February 20, 1960, as amended
  89. (relating to safeguarding classified information with industry), or any successor thereto; and (b) possesses a need to know under such orders.
  90. 3) The term "Intelligence Community Element• means any executive agency or unit thereof determined by the President under section 2302 (a) (2) (C) (ii) of title 5,
  91. United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities, including but not limited to the Office of the DNI, the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, and the National Reconnaissance Office. For purposes of this directive, the term "Intelligence Community Element" does not include the Federal Bureau of Investigation.
  92. 4) The term "Personnel Action• means an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, benefits, or awards; a decision concerning education or training if the education or training may reasonably be expected to lead to an appointment, reassignment, promotion, or performance evaluation; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions.
  93. The term "Personnel Action• does not include the termination of an employee pursuant to section 1609 of title 10, United States Code.
  94. The term "Personnel Action" does not include the termination of an employee pursuant to section 102A(m) of the National Security Act of 1947, section 104A(e) of the National Security Act of 1947, or section 7532 of title 5, United States Code, so long as the official authorized by those provisions to terminate the employee
  95. (and not his or her de1egee) (i) determines that the alternative legal procedures to terminate the employee cannot be invoked in a manner consistent with the national security and (ii) promptly notifies the Inspector General of the employing agency. The term "Personnel Action" does not include actions taken with respect to a position that the agency head has designated, prior to the action as being of a confidential, policy determining,
  96. policymaking, or policy advocating character. The term "Personnel Action" does not include actions taken with respect to a member of the Armed Forces, as used in section 1034 of Title 10,
  97. United States Code. The term "Personnel Action" does not include any actions taken prior to the issuance of this directive.
  98. 5) The term "Protected Disclosure" means:
  99. A) a disclosure of information by the employee to a supervisor in the employee's direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences {i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
  100. B) any communication described by and that complies with subsection (a) (1), (d), or (h) of section BH of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d) (5) (A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k) (5) (A), (D), or (G), of section 103H of the National Security Act of 1947 (50 U.S.C. 403-3h);
  101. C) the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;
  102. D) lawfully participating in an investigation or proceeding regarding a violation of Section A or B of
  103. this directive; or
  104. E) cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,
  105. if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.
  106. G) General Provisions
  107. This directive shall be implemented in a manner consistent with applicable law, including all statutory authorities of the heads of agencies and Inspectors General, and does not restrict available rights, procedures, and remedies under section 2302(b) of Title 5, United States Code.
  108. This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
  109. DTM-13-008, July 8, 2013
  110. Applicability
  111. This DTM applies to OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense (IG DoD), the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (referred to collectively in this DTM as the “DoD Components”).
  112. Definitions See Glossary.
  113. Policy
  114. It is DoD policy that Reference (b) be implemented consistently across the Department.
  115. Section A of Reference (b) prohibits any officer or employee with authority to take, direct others to take, recommend, or approve any personnel action from taking, failing to take, or threatening to take or fail to take a personnel action against any employee serving in an Intelligence Community element as a reprisal for a protected disclosure.
  116. o DoD will establish processes consistent with Reference (b) for all employees serving in DCIPS positions to seek review of personnel actions they allege to be in violation of section A of Reference (b). These review processes will be consistent, to the fullest extent possible, with the policies and procedures used to adjudicate alleged violations of section 2302(b)(8) of Title 5, United States Code (Reference (d)).
  117. o This review process applies to personnel actions taken on or after July 8, 2013.
  118. • Section B of Reference (b) prohibits any officer or employee with authority to take, direct others to take, recommend, or approve any action affecting an employee’s eligibility for access to classified information from taking or failing to take, or threatening to take or fail to take such action as a reprisal for a protected disclosure. The DoD review process will be consistent with and integrated into the policies and procedures used by DoD to review security clearance determinations pursuant to section 5.2 of Executive Order 12968, as amended (Reference (e)).
  119. o Reviews of claims of reprisal for a protected disclosure in the form of an action affecting employee eligibility for access to classified information will be incorporated into DoD’s established and centralized administrative procedures to adjudicate security clearances pursuant to Reference (e).
  120. o All Defense Office of Hearings and Appeals, Administrative Judges, and personnel security appeal boards will consider and resolve any
  121. claims of a violation of Reference (b) as part of their adjudication of an individual’s eligibility.
  122. • Nothing in this DTM should be construed as infringing on the independence of the IG DoD or DoD Component statutory inspectors general (IGs) or fulfillment of his or her duties pursuant to the authority of the Appendix to Reference (d), also known as “The Inspector General Act of 1978, as amended,” and DoD issuances.
  123. Responsibilities See Attachment 2.
  124. Procedures,See Attachment 3.
  125. Releasability, Unlimited. This DTM is approved for public release and is available on the DoD Issuances Website at http://www.dtic.mil/whs/directives.
  126. Michael G. Vickers
  127. Under Secretary of Defense for Intelligence
  128.  
  129. DTM-13-008, July 8, 2013
  130. ATTACHMENT 1 REFERENCES
  131.  
  132. a) DoD Directive 5143.01, “Under Secretary of Defense for Intelligence (USD(I)),” November 25, 2005
  133. (b) Presidential Policy Directive 19 (PPD-19), “Protecting Whistleblowers with Access to Classified Information,” October 10, 2012
  134. (c) DoD Instruction 1400.25, Volume 2001, “DoD Civilian Personnel Management System: Volume 2001, Defense Civilian Intelligence Personnel System (DCIPS) Introduction,” December 29, 2008
  135. (d) Title 5, United States Code
  136. (e) Executive Order 12968, “Access to Classified Information,” August 2, 1995, as amended
  137. (f) DoD Instruction 5145.03, “Oversight of the DoD Personnel Security Programs,”
  138. January 10, 2013
  139. (g) DoD Directive 5106.01, “Inspector General of the Department of Defense,” April 20, 2012
  140. (h) DoD 5240.1-R, “Procedures Governing the Activities of DoD Intelligence Components
  141. that Affect United States Persons,” December 7, 1982
  142. (i) Directive-type Memorandum 08-052, “DoD Guidance for Reporting Questionable
  143. Intelligence Activities and Significant or Highly Sensitive Matters,’ June 17, 2009, as
  144. amended
  145. (j) Executive Order 10865, “Safeguarding Classified Information within Industry,”
  146. February 26, 1960, as amended
  147. (k) Title 10, United States Code
  148. (l) Title 50, United States Code
  149. ATTACHMENT 2 RESPONSIBILITIES
  150. 1. USD(I): The USD(I):
  151. a. Is responsible for implementation of PPD-19 in the DoD.
  152. b. Establishes and maintains DCIPS policies implementing Reference (b) in conjunction with the Under Secretary of Defense for Personnel and Readiness (USD(P&R)).
  153. c. As the principal staff assistant for security, establishes and maintains security policies implementing Reference (b).
  154. d. Directs, administers, and oversees the DoD Personnel Security Program to ensure it is consistent, cost-effective, and efficient, and balances the rights of individuals with the interests of national security in accordance with DoD Instruction 5145.03 (Reference (f)).
  155. 2. USD(P&R). The USD(P&R) establishes and maintains DCIPS policies implementing Reference (b) in conjunction with the USD(I).
  156. 3. GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE. In coordination with the USD(I), the General Counsel of the Department of Defense oversees the DoD Personnel Security Program in accordance with Reference (f).
  157. 4. IG DoD. The IG DoD:
  158. a. Maintains a whistleblower protection program in the Department of Defense that encourages personnel to report fraud, waste, abuse and reprisal, in accordance with DoDD 5106.01 (Reference (g)), and provides hotlines on three networks: http://www.dodig.mil/Hotline/filing_info.html, http://www.dodig.smil.mil/hotline, and http://www.dodig.ic.gov/hotline/index.html as avenues for such reporting.
  159. b. Investigates or provides oversight on investigations conducted by DoD Components into allegations of reprisal made by civilian appropriated-fund employees, in accordance with Reference (g). Such allegations include those from DCIPS employees, actions affecting security clearance determinations, actions relating to access to classified information, and recommendations for actions affecting security clearances.
  160. c. Serves on the Inspector General of the Intelligence Community (IGIC) external review panel in accordance with section C of Reference (b).
  161. 5. DOD COMPONENT HEADS WITH DCIPS POSITIONS. The DoD Component heads with DCIPS positions in their organizations:
  162. a. Ensure that Component-level policies and implementing guidance conform to this DTM in support of Reference (b).
  163. b. Certify by July 8, 2013, to the USD(I) that Component personnel policies provide a process consistent with Reference (b) for employees to seek review of personnel actions they allege to be in violation of Reference (b).
  164. c. Furnish USD(I) and IG DoD with copies of Component personnel policies and procedures implementing Reference (b) to support reviews detailed in Attachment 3.
  165. d. Designate, as applicable, any DCIPS positions that are of a confidential, policy determining, policy making, or policy advocating character, and are not to be included in the definition of personnel action of Reference (b).
  166.  
  167. ATTACHMENT 3 PROCEDURES
  168.  
  169. 1. PROHIBITION OF RETALIATION. Personnel policies for DCIPS will include the prohibition of reprisal against an employee serving in a DCIPS position for protected disclosures. Prohibitions on reprisal by affecting eligibility for access to classified information will be incorporated into administrative procedures as required by Reference (b).
  170. 2. IG DoD REVIEW OF DCIPS EMPLOYEE ALLEGATIONS. Consistent with section A of Reference (b), which specifies agency IG review, the IG DoD will review a personnel action to determine if it violated Reference (b) if the request for review from a DCIPS employee is filed with the DoD Hotline. If a request for review is filed with a DoD Component IG, IG DoD will:
  171. a. Receive notification from a DoD Component IG of all reprisal allegations from DCIPS employees submitted to that Component pursuant to section A.
  172. b. Review and approve the determination by a DoD Component IG that investigation of an allegation submitted to that Component is not warranted.
  173. c. Expeditiously initiate or request the DoD Component with a statutory IG to initiate an investigation when IG DoD determines that sufficient evidence exists to warrant an investigation. When the IG DoD requests a Component with a statutory IG to conduct an investigation, ensure that the IG conducting the investigation is outside the supervisory chain of the employee submitting the allegation(s) as well as the individual(s) alleged to have taken the reprisal action.
  174. d. Review and approve the results of investigations conducted by DoD Component statutory IGs. Initiate a follow-up investigation to correct inadequacies or ensure that the DoD Component statutory IG corrects them, if the review determines that an investigation is inadequate.
  175. e. In substantiated cases, recommend that the DoD Component take specific corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred.
  176. f. Ensure the standards of proof applied in the investigation are a preponderance of evidence for establishing that a protected disclosure was a factor in the personnel action and clear and convincing evidence for establishing that the action would have occurred absent the protected disclosure.
  177. 3. DoD COMPONENT IG ACTION
  178. a. Consistent with section A of Reference (b), the IGs of the DoD Components with DCIPS positions will establish internal procedures for receiving and reporting allegations of reprisal pursuant to Reference (b). Further, they will:
  179. (1) Notify the IG DoD within 10 working days of receiving any allegation of reprisal from a DCIPS employee pursuant to Reference (b) and provide a copy of the written complaint to the IG DoD, ensuring that classified materials are submitted through appropriate channels.
  180. (2) If IG DoD does not retain the allegation for investigation, expeditiously determine whether there is sufficient evidence to warrant an investigation of an allegation of reprisal pursuant to Reference (b).
  181. (3) Forward to the IG DoD for review any determination that there is not sufficient evidence to warrant investigation. If the IG DoD concurs with the determination of the DoD Component IG that there is not sufficient evidence to warrant investigation, the Component IG will notify the employee making the allegation.
  182. (4) Report as appropriate pursuant to DoD 5240.1-R (Reference (h)) and DTM 08-052 (Reference (i)) any allegation of reprisal that qualifies as a questionable intelligence activity.
  183. b. Consistent with section A of Reference (b), statutory IGs of DoD Components with DCIPS positions will also establish internal procedures for investigating allegations of reprisal pursuant to Reference (b). Those procedures will include:
  184. (1) Expeditiously initiating an investigation when it has been determined that an investigation is warranted or upon receiving a request to do so from the IG DoD.
  185. approval.
  186. (2) Forwarding reports of investigation of such allegations to the IG DoD for
  187. (3) In substantiated cases, recommending that the DoD Component take specific corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred.
  188. (4) Ensuring the standards of proof applied in the investigation are a preponderance of evidence for establishing that a protected disclosure was a factor in the personnel action, and clear and convincing evidence for establishing that the action would have occurred absent the protected disclosure.
  189. 4. IG DoD REVIEW OF SECURITY ACTIONS. Pursuant to section B of Reference (b), the IG DoD will determine whether an action affecting eligibility for access to classified information violated Reference (b).
  190.  
  191. a. Upon receipt of an allegation from an employee or notice from any DoD personnel security adjudication facility, Defense Office of Hearings and Appeals, or Personnel Security Appeals Boards that an employee has alleged an action affecting eligibility for access to classified information violated Reference (b), IG DoD will review the allegation, determine whether an investigation of the allegation is warranted and, as appropriate, may initiate its own investigation expeditiously or review a fully developed record following completion of DoD established administrative procedures used to review security clearance determinations in accordance with section 5.2 of Reference (e).
  192. b. The IG DoD will ensure the standards of proof applied in determining whether reprisal occurred are a preponderance of the evidence for establishing that a protected disclosure was a factor in the security clearance determination and clear and convincing evidence for establishing that the action would have been taken absent the protected disclosure.
  193. c. In substantiated cases, the IG DoD may recommend the DoD Component head reconsider the employee’s eligibility for access to classified information consistent with national security and Reference (e).
  194. d. The IG DoD may recommend that the DoD Component take any appropriate corrective action to return the employee, as nearly as practicable and reasonable, to the position the employee would have held had the reprisal not occurred, and the DoD Component head will carefully consider the findings and actions recommended.
  195. 5. PARTICIPATION IN THE IGIC EXTERNAL REVIEW PANEL. The IG DoD will serve on the IGIC external review panel in accordance with Reference (b).
  196. GLOSSARY
  197. PART I. ABBREVIATIONS AND ACRONYMS
  198. DCIPS - Defense Civilian Intelligence Personnel System
  199. DTM - directive-type memorandum
  200. IG - inspector general
  201. IG DoD - Inspector General of the Department of Defense
  202. IGIC - Inspector General of the Intelligence Community
  203. PPD - Presidential policy directive
  204. USD(I) - Under Secretary of Defense for Intelligence
  205. USD(P&R) - Under Secretary of Defense for Personnel and Readiness
  206. PART II. DEFINITIONS
  207. These terms and their definitions are for the purposes of this DTM.
  208. eligibility for access to classified information. The result of the determination whether an employee is:
  209. Eligible for access to classified information in accordance with Reference (e) (relating to access to classified information) and Executive Order 10865 (Reference (j)) (relating to safeguarding classified information with industry), and
  210. Possesses a need to know under such orders.
  211. Intelligence Community element. Includes the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and the National Reconnaissance Office, and any other DoD Component determined by the President pursuant to section 2302(a)(2)(C)(ii) of Reference (d), to have as its principal function the conduct of foreign intelligence or counterintelligence activities.
  212. personnel action. An appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, benefits, or awards; a decision concerning education or training if the education or training may reasonably be expected to lead to an appointment, reassignment, promotion, or performance evaluation; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions. Does not include:
  213. Any actions taken prior to October 10, 2012.
  214. Actions taken with respect to a member of the Military Services, as used in section 1034 of Title 10, United States Code (Reference (k)).
  215. Actions taken with respect to an employee in a DCIPS position that the DoD Component head has designated, prior to the action, as being of a confidential, policy determining, policy making, or policy advocating character.
  216. Terminations of an employee pursuant to section 1609 of Reference (k).
  217. Certain terminations of an employee pursuant to sections 3024(m) and 3036(e) of Title 50, United States Code (Reference (l)) or section 7532 of Reference (d).
  218. protected disclosure. Defined in Reference (b).
  219. statutory IG. An IG with authority pursuant to the Appendix to Reference (d).