IN GENERAL.—Any person subject to this chapter who, with the intent to retaliate against any person for reporting or planning to report a criminal offense, or making or planning to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a protected communication—

wrongfully takes or threatens to take an adverse personnel action against any person; or

wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person; shall be punished as a court-martial may direct.

DEFINITIONS.—In this section:

The term “protected communication” means the following:

A lawful communication to a Member of Congress or an Inspector General.

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, any of the following:

A violation of law or regulation, including a law or regulation prohibiting 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.

The term “Inspector General” has the meaning given that term in section 1034(j) of this title.

The term “covered individual or organization” means any recipient of a communication specified in clauses (i) through (v) of section 1034(b)(1)(B) of this title.

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

Retaliation

That the accused wrongfully

took or threatened to take an adverse personnel action against any person, or

withheld or threatened to withhold a favorable personnel action with respect to any person; and

That, at the time of the action, the accused intended to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.

Discouraging a report of criminal offense or protected communication.

That the accused wrongfully

took or threatened to take an adverse personnel action against any person, or

withheld or threatened to withhold a favorable personnel action with respect to any person; and

That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.

This offense focuses upon the abuse of otherwise lawful military authority for the purpose of retaliating against any person for reporting or planning to report a criminal offense or for making or planning to make a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense prohibits personnel actions, either favorable or adverse, taken or withheld, or threatened to be taken or withheld, with the specific intent to retaliate against any person for reporting or planning to report a criminal offense or for making or planning to make a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense may be committed by any person subject to the UCMJ with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action who takes such action wrongfully and with the requisite specific intent. This offense does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.

For purposes of this offense, “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 health evaluations; and any other personnel actions as defined by law or regulation, such as 5 U.S.C. § 2302 and DoD Directive 7050.06 (17 April 2015); or,

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 such as 5 U.S.C. § 2302.

An action is taken with the intent to retaliate when the personnel action taken or withheld, or threatened to be taken or withheld, is done for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.

This offense requires that the accused had the intent to retaliate, but proof that the accused actually intended to take an adverse personnel action, or to withhold a favorable personnel action, is not required. 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. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving a favorable or adverse personnel action.

Criminal offense for purposes of this offense includes violations of the UCMJ, the United States Code, or state law.

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 purposes of lawful personnel administration.

This offense does not prohibit the Secretary of Defense and Secretaries of the Military Services from proscribing other types or categories of prohibited retaliatory actions by regulation, which may be punished as violations of Article 92.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Sample specification s.

Retaliation In that __________ (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about _____ 20 __, with intent to retaliate against _________________for [(reporting) (planning to report) a criminal offense] [(making) (planning to make) 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:___________].

Discouraging a report of criminal offense or protected communication In that __________ (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about _____ 20 __, 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:___________].