Page 610 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 10313

( 4) The term "unlawful discrimination" means discrimination on the basis of
race, color, religion, sex, or national origin.
b. Elements.
( 1) Retaliation
(a) That the accused wrongfully
(i) took or threatened to take an adverse personnel action against any person, or
(ii) withheld or threatened to withhold a favorable personnel action with respect to
any person; and
(b) 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.
(2) Discouraging a report~~ criminal ~ffense or protected communication.
(a) That the accused wrongfully
(i) took or threatened to take an adverse personnel action against any person, or
(ii) withheld or threatened to withhold a favorable personnel action with respect to
any person; and
(b) That, at the time of the action, the accused intended to discourage any person from
reporting a criminal offense or making a protected communication.
c. Explanation.
(1) Tn general. 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 ofTense or for making or planning to make a
protected communication or to discourage any person from rep011ing a criminal otTense or for
making or planning to make a protected communication. The otTense 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.
(2) Personnel action. 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, perfonnance 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).
(3) Intent to retaliate. 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.
( 4) Threatens to take or withhold. 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
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withhold a favorable personnel action, is not required. A declaration made under circumstances

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