S.Amdt. 1799

SA 1799. Mrs. BOXER (for herself, Mr. Grassley, Mr. Wyden, Mr.
Markey, and Mrs. Gillibrand) submitted an amendment intended to be
proposed to amendment SA 1463 proposed by Mr. McCain to the bill H.R.
1735, to authorize appropriations for fiscal year 2016 for military
activities of the Department of Defense, for military construction, and
for defense activities of the Department of Energy, to prescribe
military personnel strengths for such fiscal year, and for other
purposes; which was ordered to lie on the table, as follows:

At the end of division A, add the following:

TITLE XVII--WHISTLEBLOWER PROTECTIONS FOR MEMBERS OF THE ARMED FORCES

SEC. 1701. SHORT TITLE.

This title may be cited as the ``Legal Justice for
Servicemembers Act of 2015''.

SEC. 1702. IMPROVEMENTS TO WHISTLEBLOWER PROTECTION
PROCEDURES.

(a) Actions Treatable as Prohibited Personnel Actions.--
Paragraph (2) of subsection (b) of section 1034 of title 10,
United States Code, is amended to read as follows:
``(2)(A) The actions considered for purposes of this
section to be a personnel action prohibited by this
subsection shall include any action prohibited by paragraph
(1), including the threat to take any unfavorable action, the
withholding or threat to withhold any favorable action,
making or threatening to make a significant change in the
duties or responsibilities of a member of the armed forces
not commensurate with the member's grade, a retaliatory
investigation, and the failure of a superior to respond to
retaliatory action or harassment by one or more subordinates
taken against a member of which the superior knew or should
have known.
``(B) In this paragraph, the term `retaliatory
investigation' means an investigation requested, directed,
initiated, or conducted for the primary purpose of punishing,
harassing, or ostracizing a member for making a protected
communication.
``(C) Nothing in this paragraph shall be construed to limit
the ability of a commander to consult with a superior in the
chain of command, an inspector general, or a judge advocate
general on the disposition of a complaint against a member of
the armed forces for an allegation of collateral misconduct
or for a matter unrelated to a protected communication. Such
consultation shall provide an affirmative defense against an
allegation that a member requested, directed, initiated, or
conducted a retaliatory investigation under this section.''.
(b) Temporary Stay of Personnel Actions.--Subsection (c)(4)
of such section is further amended--
(1) by redesignating subparagraph (E) as subparagraph (F);
and
(2) by inserting after subparagraph (D) the following new
subparagraph (E):
``(E)(i) If the Inspector General makes a preliminary
determination in an investigation under subparagraph (D) that
there are reasonable grounds to believe that a personnel
action prohibited by subsection (b) has occurred and the
personnel action will

[[Page S3867]]

result in an immediate hardship to the member alleging the
personnel action, the Inspector General may impose a stay of
the personnel action of not more than 90 days in order to
prevent undue hardship to the member.
``(ii) If the Inspector General has not completed the
investigation described in clause (i) upon the expiration of
the stay of the personnel action with respect to a member
imposed by the Inspector General under that clause, the
Secretary of the military department concerned or the
Secretary of Homeland Security, as applicable, may continue
the stay of the personnel action with respect to the member
for such additional time as is required for the completion of
the investigation by the Inspector General.''.
(c) Periodic Notice to Members on Progress of Inspector
General Investigations.--Paragraph (3) of subsection (e) of
such section is amended to read as follows:
``(3)(A) Not later than 180 days after the commencement of
an investigation of an allegation under subsection (c)(4),
and every 180 days thereafter until the transmission of the
report on the investigation under paragraph (1) to the member
concerned, the Inspector General conducting the investigation
shall submit a notice on the investigation described in
subparagraph (B) to the following:
``(i) The member.
``(ii) The Secretary of Defense.
``(iii) The Secretary of the military department concerned,
or the Secretary of Homeland Security in the case of a member
of the Coast Guard when the Coast Guard is not operating as a
service in the Navy.
``(B) Each notice on an investigation under subparagraph
(A) shall include the following:
``(i) A description of the current progress of the
investigation.
``(ii) An estimate of the time remaining until the
completion of the investigation and the transmittal of the
report required by paragraph (1) to the member concerned.''.
(d) Actions in Case of Violations.--Subsection (f)(2) of
such section is amended--
(1) by striking subparagraph (A) and inserting the
following new subparagraph (A):
``(A) order such action as is necessary to correct the
record of a personnel action prohibited by subsection (b),
including referring the report to the appropriate board for
the correction of military records;'';
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding after subparagraph (B) the following new
subparagraph:
``(C) submit to the Inspector General a report on the
actions taken by the Secretary pursuant to this paragraph,
and include a summary of the report under this subparagraph
(with any personally identifiable information redacted) in
the semiannual report to Congress of the Inspector General of
the Department of Defense or the Inspector General of the
Department of Homeland Security, as applicable, under section
5 of the Inspector General Act of 1978 (5 U.S.C. App.).''.
(e) Correction of Records.--Subsection (g) of such section
is amended--
(1) by redesignating paragraphs (3) through (6) as
paragraphs (4) through (7), respectively; and
(2) by striking paragraph (2) and inserting the following:
``(2) In resolving an application described in paragraph
(1) for which there is a report of the Inspector General
under subsection (e)(1), a correction board--
``(A) shall review the report of the Inspector General;
``(B) may request the Inspector General to gather further
evidence;
``(C) may receive oral argument, examine and cross-examine
witnesses, and take depositions; and
``(D) shall consider a request by a member or former member
in determining whether to hold an evidentiary hearing.''.
(f) Uniform Standards for Inspector General Investigations
of Prohibited Personnel Actions and Other Matters.--
(1) In general.--Not later than one year after the date of
the enactment of this Act, the Inspector General of the
Department of Defense shall prescribe uniform standards for
the following:
(A) The investigation of allegations of prohibited
personnel actions under section 1034 of title 10, United
States Code (as amended by this section), by the Inspector
General and the Inspectors General of the military
departments.
(B) The training of the staffs of the Inspectors General
referred to in subparagraph (A) on the conduct of
investigations described in that subparagraph.
(2) Use.--Commencing 180 days after prescription of the
standards required by paragraph (1), the Inspectors General
referred to in that paragraph shall comply with such
standards in the conduct of investigations described in that
paragraph and in the training of the staffs of such
Inspectors General in the conduct of such investigations.

SEC. 1703. IMPROVEMENTS TO AUTHORITIES AND PROCEDURES FOR THE
CORRECTION OF MILITARY RECORDS.

(a) Procedures of Boards.--Paragraph (3) of section 1552(a)
of title 10, United States Code, is amended--
(1) by inserting ``(A)'' after ``(3)''; and
(2) by adding at the end the following new subparagraphs:
``(B) If a board makes a preliminary determination that a
claim under this section lacks sufficient information or
documents to support the claim, the board shall notify the
claimant, in writing, indicating the specific information or
documents necessary to make the claim complete and reviewable
by the board.
``(C) If a claimant is unable to provide military personnel
or medical records applicable to a claim under this section,
the board shall make reasonable efforts to obtain the
records. A claimant shall provide the board with documentary
evidence of the efforts of the claimant to obtain such
records. The board shall inform the claimant of the results
of the board's efforts, and shall provide the claimant copies
of any records so obtained upon request of the claimant.
``(D) Any request for reconsideration of a determination of
a board under this section, no matter when filed, shall be
reconsidered by a board under this section if supported by
materials not previously presented to or considered by the
board in making such determination.''.
(b) Judicial Review of Determinations of Boards.--Paragraph
(4) of such section is amended--
(1) by inserting ``(A)'' after ``(4)'';
(2) in subparagraph (A), as so designated, by inserting
``or subject to review or appeal as described in subparagraph
(B)'' after ``Except when procured by fraud''; and
(3) by adding at the end the following new subparagraph:
``(B) A claimant may seek judicial review of a
determination of a board under this section in an appropriate
court of the United States. The scope of judicial review
under this subparagraph shall be as specified in section 706
of title 5.''.
(c) Publication of Final Decisions of Boards.--Such section
is further amended by adding at the end the following new
paragraph:
``(5) Each final decision of a board under this subsection
shall be made available to the public in electronic form on a
centralized Internet website. In any decision so made
available to the public there shall be redacted all
personally identifiable information.''.
(d) Training of Members of Boards.--
(1) In general.--Not later than one year after the date of
the enactment of this Act, each Secretary concerned shall
develop and implement a comprehensive training curriculum for
members of boards for the correction of military records
under the jurisdiction of such Secretary in the duties of
such boards under section 1552 of title 10, United States
Code. The curriculum shall address all areas of
administrative law applicable to the duties of such boards.
(2) Uniform curricula.--The Secretary of Defense and the
Secretary of Homeland Security shall jointly ensure that the
curricula developed and implemented pursuant to this
subsection are, to the extent practicable, uniform.
(3) Training.--
(A) In general.--Each member of a board for the correction
of military records shall undergo retraining (consistent with
the curriculum developed and implemented pursuant to this
subsection) regarding the duties of boards for the correction
of military records under section 1552 of title 10, United
States Code, at least once every five years during the
member's tenure on the board.
(B) Current members.--Each member of a board for the
correction of military records as of the date of the
implementation of the curriculum required by paragraph (1)
(in this paragraph referred to as the ``curriculum
implementation date'') shall undergo training described in
subparagraph (A) not later than 90 days after the curriculum
implementation date.
(C) New members.--Each individual who becomes a member of a
board for the correction of military records after the
curriculum implementation date shall undergo training
described in subparagraph (A) by not later than 90 days after
the date on which such individual becomes a member of the
board.
(4) Reports.--Not later than 18 months after the date of
the enactment of this Act, each Secretary concerned shall
submit to Congress a report setting forth the following:
(A) A description and assessment of the progress made by
such Secretary in implementing training requirements for
members of boards for the correction of military records
under the jurisdiction of such Secretary.
(B) A detailed description of the training curriculum
required of such Secretary by paragraph (1).
(C) A description and assessment of any impediments to the
implementation of training requirements for members of boards
for the correction of military records under the jurisdiction
of such Secretary.
(5) Secretary concerned defined.--In this subsection, the
term ``Secretary concerned'' means a ``Secretary concerned''
as that term is used in section 1552 of title 10, United
States Code.

SEC. 1704. COMPTROLLER GENERAL OF THE UNITED STATES REVIEW OF
INTEGRITY OF DEPARTMENT OF DEFENSE
WHISTLEBLOWER PROGRAM.

(a) Report Required.--Not later than one year after the
date of the enactment of this Act, the Comptroller General of
the United States shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a
report setting forth a review of the integrity of the
Department of Defense whistleblower program.
(b) Elements.--The review for purposes of the report
required by subsection (a) shall include the following
elements:

[[Page S3868]]

(1) An assessment of the extent to which the Department of
Defense whistleblower program meets Executive branch policies
and goals for whistleblower protections.
(2) A determination and assessment of the causes and
impacts of the situation in which some employees in the
Office of the Inspector General of the Department Defense
believed they could not disclose a suspected violation of
law, rule, or regulation without fear of reprisal, as
determined in a recent review of the Comptroller General.
(3) An assessment of the extent to which there have been
violations of standards used in regard to the protection of
confidentiality provided to whistleblowers by the Inspector
General of the Department of Defense.
(4) An assessment of the extent to which there have been
incidents of retaliatory investigations against
whistleblowers within the Office of the Inspector General.
(5) An assessment of the extent to which the Inspector
General of the Department of Defense has thoroughly
investigated and substantiated allegations within the past 10
years against civilian officials of the Department of Defense
appointed to their positions by and with the advice and
consent of the Senate, and whether Congress has been notified
of the results of such investigations.
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