10 U.S. Code § 1034 - Protected communications; prohibition of retaliatory personnel actions

(1) No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing or being perceived as making or preparing—

a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;

any other person or organization designated pursuant to regulations or other established administrative procedures for such communications; or

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.

(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 any of the following:

The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade.

The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member.

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 of the armed forces for making a protected communication.

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.

A violation of law or regulation, including a law or regulation prohibiting rape, sexual assault, or other sexual misconduct in violation of section 920, 920b, 920c, or 930 of this title (article 120, 120b, 120c, or 130 of the Uniform Code of Military Justice), sexual harassment, or unlawful discrimination.

Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

A threat by another member of the armed forces or employee of the Federal Government that indicates a determination or intent to kill or cause serious bodily injury to members of the armed forces or civilians or damage to military, Federal, or civilian property.

(3) A communication described in paragraph (2) shall not be excluded from the protections provided in this section because—

the communication was made to a person who participated in an activity that the member reasonably believed to be covered by paragraph (2);

Upon determining that an investigation of an allegation under paragraph (1) is warranted, the Department of Defense , that (E)

In the case of an investigation under subparagraph (D) within the Department of Defense , the results of the investigation shall be determined by, or approved by, theDepartment of Defense (regardless of whether the investigation itself is conducted by theDepartment of Defense or by an (5)

Neither an initial determination under paragraph (4)(A) nor an investigation under paragraph (4)(D) is required in the case of an allegation made more than one year after the date on which the member becomes aware of the personnel action that is the subject of the allegation.

Outside the immediate chain of command of both the member submitting the allegation and the individual or individuals alleged to have taken the retaliatory action.

At least one organization higher in the chain of command than the organization of the member submitting the allegation and the individual or individuals alleged to have taken the retaliatory action.

In the copy of the report transmitted to the member, the section 552 of title 5. However, the copy need not include summaries of interviews conducted, nor any document acquired, during the course of the investigation. Such items shall be transmitted to the member, if the member requests the items, with the copy of the report or after the transmittal to the member of the copy of the report, regardless of whether the request for those items is made before or after the copy of the report is transmitted to the member.

(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 (i)

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.

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.

The report on the results of the investigation shall contain a thorough review of the facts and circumstances relevant to the allegation and the complaint or disclosure and shall include documents acquired during the course of the investigation, including summaries of interviews conducted. The report may include a recommendation as to the disposition of the complaint.

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; and

(3) If the Secretary concerned determines under paragraph (1) that an order for corrective or disciplinary action is not appropriate, not later than 30 days after making the determination, such Secretary shall—

provide to the Secretary of Defense and the member or former member a notice of the determination and the reasons for not taking action; and

when appropriate, refer the report to the appropriate board for the correction of military records for further review under subsection (g).

A board for the correction of military records acting under section 1552 of this title, in resolving an application for the correction of records made by a member or former member of the armed forces who has alleged a personnel action prohibited by subsection (b), on the request of the member or former member or otherwise, may review the matter.

shall consider a request by a member or former member in determining whether to hold an evidentiary hearing.

(3) If the board holds an administrative hearing, the member or former member who filed the application described in paragraph (1)—

the Judge Advocate General concerned determines that the member or former member would benefit from judge advocate assistance to ensure proper presentation of the legal issues in the case; and

may examine witnesses through deposition, serve interrogatories, and request the production of evidence, including evidence contained in the investigatory record of the (4)

The Secretary concerned shall issue a final decision with respect to an application described in paragraph (1) within 180 days after the application is filed. If the Secretary fails to issue such a final decision within that time, the member or former member shall be deemed to have exhausted the member’s or former member’s administrative remedies under section 1552 of this title.

The Secretary concerned shall order such action, consistent with the limitations contained in sections 1552 and 1553 of this title, as is necessary to correct the record of a personnel action prohibited by subsection (b).

If the Board determines that a personnel action prohibited by subsection (b) has occurred, the Board may recommend to the Secretary concerned that the Secretary take appropriate disciplinary action against the individual who committed such personnel action.

Upon the completion of all administrative review under subsection (f), the member or former member of the armed forces (except for a member or former member of the Coast Guard when the Coast Guard is not operating as a service in the Navy) who made the allegation referred to in subsection (c)(1), if not satisfied with the disposition of the matter, may submit the matter to the Secretary of Defense . The Secretary shall make a decision to reverse or uphold the decision of the Secretary of the military department concerned in the matter within 90 days after receipt of such a submittal.

The Secretary of Defense , and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations to carry out this section.

Any officer of the armed forces or employee of the Department of Defense who is assigned or detailed to serve as anDepartment of Defense .

The term “unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.

Historical and Revision Notes

Source (Statutes at Large)

50 App.:454(a) (last par.)

The words “prevented”, “directly or indirectly”, “concerning any subject”, “or Members”, and “and safety” are omitted as surplusage. The word “unlawful” is substituted for the words “in violation of law”.

Section 5 of the Inspector General Act of 1978, referred to in subsec. (f)(2)(B), is section 5 of Pub. L. 95–452, which was formerly set out in the Appendix to Title 5, Government Organization and Employees, and was repealed and reenacted as section 405 of Title 5 by Pub. L. 117–286, §§ 3(b), 7, Dec. 27, 2022 , 136 Stat. 4212, 4361.

2022—Subsec. (b)(1)(B)(ii). Pub. L. 117–286 substituted “chapter 4 of title 5;” for “the Inspector General Act of 1978;”.

2019—Subsec. (b)(1)(B)(ii). Pub. L. 116–92 substituted “subsection (j)” for “subsection (i)”.

2017—Subsec. (c)(2)(A). Pub. L. 115–91 substituted “section 920, 920b, 920c, or 930 of this title (article 120, 120b, 120c, or 130 of the Uniform Code of Military Justice)” for “sections 920 through 920c of this title (articles 120 through 120c of the Uniform Code of Military Justice)”.

2016—Subsec. (b)(2). Pub. L. 114–328, § 531(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any action prohibited by paragraph (1) (including the threat to take any unfavorable action, the withholding or threat to withhold any favorable action, or 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) shall be considered for the purposes of this section to be a personnel action prohibited by this subsection.”

Subsec. (c)(4)(E), (F). Pub. L. 114–328, § 531(b)(1), added subpar. (E) and redesignated former subpar. (E) as (F).

Subsec. (e)(1). Pub. L. 114–328, § 531(b)(2), substituted “subsection (c)(4)(F)” for “subsection (c)(4)(E)”.

“(A) of that determination (including the reasons why the report may not be submitted within that time); and

“(B) of the time when the report will be submitted.”

Subsec. (f). Pub. L. 114–328, § 532(a)(1), substituted “Substantiated Violations” for “Violations” in heading.

Subsec. (f)(1). Pub. L. 114–328, § 532(a)(2), substituted “corrective or disciplinary action should be taken. If the Secretary concerned determines that corrective or disciplinary action should be taken, the Secretary shall take appropriate corrective or disciplinary action.” for “there is sufficient basis to conclude whether a personnel action prohibited by subsection (b) has occurred.”

Subsec. (f)(2). Pub. L. 114–328, § 532(b)(1), substituted “thePub. L. 114–328, § 532(b)(2), inserted before semicolon “, including referring the report to the appropriate board for the correction of military records”.

Subsec. (f)(2)(B). Pub. L. 114–328, § 532(b)(3), added subpar. (B) and struck out former subpar. (B) which read as follows: “take any appropriate disciplinary action against the individual who committed such prohibited personnel action.”

Subsec. (g)(2). Pub. L. 114–328, § 531(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “In resolving an application described in paragraph (1), a correction board—

“(A) shall review the report of the Pub. L. 113–66, § 1714(a)(1)(A), substituted “preparing or being perceived as making or preparing—” for “preparing—” in introductory provisions.

Subsec. (b)(1)(B)(v), (vi). Pub. L. 113–66, § 1714(a)(1)(C), added cl. (v) and redesignated former cl. (v) as (vi).

Subsec. (b)(2). Pub. L. 113–66, § 1714(a)(2), substituted a comma for “and” after “unfavorable action” and inserted “, or 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” after “favorable action”.

Subsec. (c)(1). Pub. L. 113–66, § 1714(b)(1), substituted “paragraph (4)” for “paragraph (3)”.

Subsec. (c)(2)(A). Pub. L. 113–66, § 1715, substituted “rape, sexual assault, or other sexual misconduct in violation of sections 920 through 920c of this title (articles 120 through 120c of the Uniform Code of Military Justice), sexual harassment, or” for “sexual harassment or”.

Subsec. (c)(3) to (6). Pub. L. 113–66, § 1714(b)(2)–(5), added par. (3), redesignated former pars. (3) to (5) as (4) to (6), respectively, in par. (5), substituted “paragraph (4)(A)” for “paragraph (3)(A)”, “paragraph (4)(D)” for “paragraph (3)(D)”, and “one year” for “60 days”, and in par. (6), substituted “one or both of the following:” and subpars. (A) and (B) for “outside the immediate chain of command of both the member submitting the allegation and the individual or individuals alleged to have taken the retaliatory action.”

Subsec. (d). Pub. L. 113–66, § 1714(c), substituted “subparagraph (A), (B), or (C) of subsection (c)(2)” for “subparagraph (A) or (B) of subsection (c)(2)”.

Subsec. (e)(1). Pub. L. 113–66, § 1714(d)(1), substituted “subsection (c)(4)(E)” for “subsection (c)(3)(E)” in two places and “transmitted to such Secretaries” for “transmitted to the Secretary” and inserted “and the Secretary of the military department concerned” after “the Secretary of Defense ”.

Subsec. (e)(3). Pub. L. 113–66, § 1714(d)(2), inserted “and the Secretary of the military department concerned” after “the Secretary of Defense ” in introductory provisions.

Subsec. (f). Pub. L. 113–66, § 1714(e)(2), added subsec. (f). Former subsec. (f) redesignated (g).

Subsec. (g). Pub. L. 113–66, § 1714(e)(1), (f), redesignated subsec. (f) as (g), and in par. (3), substituted “board holds” for “board elects to hold” in introductory provisions and “the member or former member would benefit from” for “the case is unusually complex or otherwise requires” in subpar. (A)(ii). Former subsec. (g) redesignated (h).

Subsecs. (h) to (j). Pub. L. 113–66, § 1714(e)(1), redesignated subsecs. (g) to (i) as (h) to (j), respectively.

2011—Subsec. (c)(2)(C). Pub. L. 112–81 added subpar. (C).

2008—Subsec. (b)(2). Pub. L. 110–181 inserted “unfavorable” before “action and the withholding”.

2004—Subsec. (b)(1)(B)(iv), (v). Pub. L. 108–375 added cls. (iv) and (v) and struck out former cl. (iv) which read as follows: “any other person or organization (including any person or organization in the chain of command) designated pursuant to regulations or other established administrative procedures for such communications.”

2002—Subsecs. (c)(5), (e)(1), (3), (h), (i)(2)(B). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.

2000—Subsec. (c)(3)(A). Pub. L. 106–398, § 1 [[div. A], title IX, § 903(a)], inserted “, in accordance with regulations prescribed under subsection (h),” after “shall expeditiously determine”.

Subsec. (i)(2). Pub. L. 106–398, § 1 [[div. A], title IX, § 903(b)(1)], inserted “any of” after “means” in introductory provisions.

Subsec. (i)(2)(C) to (G). Pub. L. 106–398, § 1 [[div. A], title IX, § 903(b)(2), (3)], added subpar. (C) and struck out former subpars. (C) to (G) which read as follows:

“(C) The Pub. L. 105–261, § 933(f)(2), substituted “subsection (i)) or any otherInspector General Act of 1978” for “subsection (j))”.

Subsec. (c)(3) to (5). Pub. L. 105–261, § 933(a)(1)(B), added pars. (3) to (5) and struck out former par. (3) which read as follows: “ThePub. L. 105–261, § 933(a)(2), inserted “receiving the allegation” after “, theDepartment of Defense , thePub. L. 105–261, § 933(c)(1), substituted “After completion of an investigation under subsection (c) or (d) or, in the case of an investigation under subsection (c) by anPub. L. 105–261, § 933(c)(2), substituted “transmitted” for “submitted” and inserted at end “However, the copy need not include summaries of interviews conducted, nor any document acquired, during the course of the investigation. Such items shall be transmitted to the member, if the member requests the items, with the copy of the report or after the transmittal to the member of the copy of the report, regardless of whether the request for those items is made before or after the copy of the report is transmitted to the member.”

Subsec. (e)(3). Pub. L. 105–261, § 933(c)(3), substituted “180 days” for “90 days”.

Subsec. (h). Pub. L. 105–261, § 933(f)(1), redesignated subsec. (i) as (h).

Pub. L. 105–261, § 933(d), struck out heading and text of subsec. (h). Text read as follows: “After disposition of any case under this section, thePub. L. 105–261, § 933(f)(1), redesignated subsec. (j) as (i). Former subsec. (i) redesignated (h).

Subsec. (j). Pub. L. 105–261, § 933(f)(1), redesignated subsec. (j) as (i).

Subsec. (j)(2). Pub. L. 105–261, § 933(e), substituted “means the following:” for “means—” in introductory provisions, added subpars. (A) to (F), redesignated former subpar. (B) as (G) and substituted “An officer” for “an officer” in that subpar., and struck out former subpar. (A) which read as follows: “anInspector General Act of 1978; and”.

1994—Pub. L. 103–337, § 531(g)(1), substituted “Protected communications” for “Communicating with a Member of Congress orPub. L. 103–337, § 531(a), inserted “(1)” before “No person may take”, substituted “or preparing—” for “or preparing a communication to a Member of Congress or anPub. L. 103–337, § 531(b)(3), substituted “Allegations of Prohibited Personnel Actions” for “Certain Allegations” in heading.

Subsec. (c)(1). Pub. L. 103–337, § 531(b)(1), inserted at end “If, in the case of an allegation submitted to theDepartment of Defense , theDepartment of Defense shall ensure that thePub. L. 103–337, § 531(b)(2), added par. (2) and struck out former par. (2) which read as follows: “A communication described in this paragraph is a communication to a Member of Congress or anPub. L. 103–337, § 531(c)(2), struck out par. (4) which read as follows: “If thePub. L. 103–337, § 531(d)(1), redesignated subsec. (c)(5) as subsec. (e)(1).

Subsec. (c)(6), (7). Pub. L. 103–337, § 531(d)(4), redesignated subsec. (c)(6) and (7) as subsec. (e)(3) and (4), respectively.

Subsec. (d). Pub. L. 103–337, § 531(c)(2), added subsec. (d). Former subsec. (d) redesignated (f).

Subsec. (e). Pub. L. 103–337, § 531(d)(1), redesignated subsec. (c)(5) as subsec. (e) and inserted subsec. heading and par. (1) designation before “Not later than 30 days”. Former subsec. (e) redesignated (g).

Subsec. (e)(1). Pub. L. 103–337, § 531(d)(2), substituted “subsection (c) or (d)” for “this subsection” and “the member of the armed forces who made the allegation investigated” for “the member of the armed forces concerned” and struck out at end “In the copy of the report submitted to the member, thesection 552 of title 5.”

Subsec. (e)(3). Pub. L. 103–337, § 531(d)(4), (5), redesignated subsec. (c)(6) as subsec. (e)(3) and substituted “paragraph (1)” for “paragraph (5)”.

Subsec. (e)(4). Pub. L. 103–337, § 531(d)(4), redesignated subsec. (c)(7) as subsec. (e)(4).

Subsec. (f). Pub. L. 103–337, § 531(c)(1), (f)(1), redesignated subsec. (d) as (f) and substituted “subsection (e)(1)” for “subsection (c)(5)” in pars. (2)(A), (3)(A)(i) and (B). Former subsec. (f) redesignated (h).

Subsec. (g). Pub. L. 103–337, § 531(c)(1), (f)(2), redesignated subsec. (e) as (g) and substituted “subsection (f)” for “subsection (d)”. Former subsec. (g) redesignated (i).

Subsecs. (h), (i). Pub. L. 103–337, § 531(c)(1), redesignated subsecs. (f) and (g) as (h) and (i), respectively. Former subsec. (h) redesignated (j).

Subsec. (j). Pub. L. 103–337, § 531(c)(1), (e), redesignated subsec. (h) as (j) and added par. (3).

1989—Subsec. (c)(1). Pub. L. 101–225, § 202(1), inserted “when the Coast Guard is not operating as a service in the Navy” after “ Coast Guard ”.

Subsec. (c)(5). Pub. L. 101–225, § 202(2), inserted “(or to the Secretary of Transportation in the case of a member of the Coast Guard when the Coast Guard is not operating as a service in the Navy)” after “ Secretary of Defense ”.

Subsec. (c)(6). Pub. L. 101–225, § 202(3), inserted “(or to the Secretary of Transportation in the case of a member of the Coast Guard when the Coast Guard is not operating as a service in the Navy)” after “ Secretary of Defense ”.

Subsec. (e). Pub. L. 101–225, § 202(4), inserted “(except for a member or former member of the Coast Guard when the Coast Guard is not operating as a service in the Navy)” after “armed forces”.

1984—Pub. L. 98–525 substituted “Member” for “member” in section catchline and text.

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

“The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [ Dec. 23, 2016 ], and shall apply with respect to reports received by the Secretaries of the military departments and the Secretary of Homeland Security under section 1034(e) of title 10, United States Code, on or after that date.”

“The amendments made by this section [amending this section] apply with respect to any unfavorable personnel action taken or threatened, and any withholding of or threat to withhold a favorable personnel action, on or after the date of the enactment of this Act [ Oct. 28, 2004 ].”

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security , see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

“The amendment to section 1034 of title 10, United States Code, made by subsection (a)(1), shall apply with respect to any personnel action taken (or threatened to be taken) on or after the date of the enactment of this Act [ Sept. 29, 1988 ] as a reprisal prohibited by subsection (b) of that section.”

The Secretary of Defense and the Secretary of Transportation shall prescribe regulations to implement the amendments made by this section [amending this section] not later than 120 days after the date of the enactment of this Act [ Oct. 5, 1994 ].

In prescribing regulations under section 1034 of title 10, United States Code, as amended by this section, the Secretary of Defense and the Secretary of Transportation shall provide for appropriate procedural protections for the subject of any investigation carried out under the provisions of that section, including a process for appeal and review of investigative findings.”

“The Secretary of Defense and the Secretary of Transportation shall prescribe the regulations required by subsection (g) [now (i)] of section 1034 of title 10, United States Code, as amended by subsection (a), not later than 180 days after the date of the enactment of this Act [ Sept. 29, 1988 ].”

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 [ Dec. 23, 2016 ], theDepartment of Defense shall prescribe uniform standards for the following:

The investigation of allegations of prohibited personnel actions under section 1034 of title 10, United States Code (as amended by this section), by the “(B)

The training of the staffs of the Inspectors General referred to in subparagraph (A) on the conduct of investigations described in that subparagraph.

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.”

“(a) Notice Required.— The Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives ] notice of any request or requirement for members of the Armed Forces or civilian employees of the Department of Defense to enter into nondisclosure agreements that could restrict the ability of such members or employees to communicate with Congress . Each such notice shall include the following:

In the case of nondisclosure agreements described in subsection (a) that members or employees were first requested or required to enter into on or before the date of the enactment of this Act [ Jan. 2, 2013 ], the notice required by subsection (a) shall be submitted not later than 60 days after the date of enactment.

In the case of nondisclosure agreements described in subsection (a) that members or employees were first requested or required to enter into after the date of the enactment of this Act, the notice required by subsection (a) shall be submitted not later than 30 days after the date on which the Secretary first requests or requires that the members or employees enter into the agreements.”

The Secretary of Defense shall prescribe regulations prohibiting members of the Armed Forces from taking or threatening to take any unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, as a reprisal against any member of the Armed Forces for making or preparing a lawful communication to any employee of the Department of Defense or any member of the Armed Forces who is assigned to or belongs to an organization which has as its primary responsibility audit, inspection, investigation, or enforcement of any law or regulation.

The Secretary shall provide in the regulations that a violation of the prohibition by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is punishable as a violation of section 892 of such title (article 92 of the Uniform Code of Military Justice).

The regulations required by this section shall be prescribed not later than 180 days after the date of the enactment of this Act [ Dec. 5, 1991 ].”