NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 3 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, with intent to discourage __________________ from (reporting a criminal offense) (making a protected communication), wrongfully [(took) (threatened to take) an adverse personnel action against _______________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to________________, to wit: ____________].
c. ELEMENTS:
(1) That (state the time and place alleged), the accused wrongfully [(took) (threatened to take) an adverse personnel action against ________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to _________, to wit: _____________]; and
(2) That, at the time of the action, the accused intended to discourage ______________ from (reporting a criminal offense) (making a protected communication).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: As examples of “laws or regulations” “defining personnel actions,” the MCM’s explanation of this offense cites to 5 USC 2302 and DoD Directive 7050.06 (17 April 2015).
(For service members, “personnel action” means any action taken on a servicemember that affects, or has the potential to affect, that servicemember’s current position or career, including promotion, disciplinary or other corrective action, transfer or reassignment, performance evaluations, decisions concerning pay, benefits, awards, or training, relief and removal, separation, discharge, referral for mental evaluations, and any other personnel actions as defined by law or regulation.)
(For civilian personnel, “personnel action” means any action taken on a civilian employee that affects, or has the potential to affect, that person’s current position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions concerning pay, benefits, awards, or training; relief and removal; discharge; and any other personnel actions as defined by law or regulation.)
“Wrongfully” means an act done without legal justification or excuse. Taking or threatening to take adverse personnel action, or withholding or threatening to withhold favorable personnel action, is wrongful when used for the purpose of reprisal rather than for the purpose of lawful personnel administration.
(“Criminal offense” means violations of criminal law under the Uniform Code of Military Justice, the United States Code, or state law.)
NOTE 3: Protected communication. If a “protected communication” is alleged, the judge must craft an appropriate instruction using the definitions below.
“Protected communication” means:
A lawful communication to a Member of Congress or an Inspector General, or
A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of (1) a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(“Inspector general” means: the Inspector General of the Department of Defense; the Inspector General of the Department 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, or; any officer of the armed forces or employee of the Department of Defense who is assigned or detailed to serve as an Inspector General at any level in the Department of Defense.)
(“Covered individual or organization” means: a Member of Congress; an Inspector General; a member of a Department of Defense audit, inspection, investigation, or law enforcement organization; any person or organization in the chain of command, or; a court-martial proceeding.)
(“Unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.)
NOTE 4: Threatens to take or withhold. When the accused is charged with threatening to take an adverse personnel action or withhold a favorable personnel action, provide the instruction below.
Proof that the accused actually intended to (take an adverse personnel action) (withhold a favorable personnel action) is not required. However, the accused must have had the “intent to discourage” ______________ from (reporting a criminal offense) (making a protected communication) when the threat was made. A declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense.