Chapter 21
Reserve Component Soldiers and Operations
I. Overview
A. Overview. The Army’s Reserve Components (RC) consists of the United States Army Reserve (USAR) and the Army National Guard of the United States (ARNGUS). USAR units made up of combat service or combat service support type units, whereas ARNGUS units are typically combat or combat support type units.
B. Legal Considerations for ARNGUS / ARNG Service. The distinction between federal and state status often assumes critical legal importance. The UCMJ does not apply to ARNG Soldiers when serving under Title 32, U.S. Code, or in SAD. Instead, state law provides for military justice. In addition, certain Soldier protections under federal law such as The Uniformed Services Employment and Reemployment Rights Act (USERRA) are not available to Soldiers who serve in a SAD status. Further, the Posse Comitatus Act does not apply to National Guard Soldiers when serving under Title 32, U.S. Code, or SAD. Thus, they may legally participate in law enforcement activities if authorized by state law.
II. Adverse Actions against Deployed RC soldiers
A. Overview. Mobilized RC Soldiers in Federal service have rights and obligations comparable to Active Army Soldiers. However, the JA advising commanders of these Soldiers and units must take care to avoid some RC-specific problem areas.
B. Authority to take UCMJ action. Two points loom large when assessing the implications of UCMJ action against RC Soldiers. They are (1) jurisdiction over the RC Soldier at the time of the offense and (2) jurisdiction over the RC Soldier at the time of the UCMJ action.
1. Status at the time of the offense. In order to be subject to UCMJ liability, a Soldier has to be in a Federal duty status at the time of commission of the offense. Proving this can present problems. For example, consider the case where a Soldier submits a urine sample shortly after beginning a tour of active duty. It may show ingestion of an illegal drug, but the command will need to prove that the Soldier was in a duty status at the time of drug ingestion.
2. Status at the time of the action. In order to take UCMJ action against a RC Soldier, the Soldier must be in a duty status. This makes it critically important that the command know when the Soldier’s duty concludes. An RC Soldier may be retained on active duty for court-martial, if action with a view toward court-martial is taken prior to the normal end of the Soldier’s period of active duty. An Active Army General Court-Martial Convening Authority (GCMCA) can also order an RC Soldier back to active duty (recall) for court-martial or Article 15 punishment under this authority. Only the Active Army GCMCA that: (1) has area support responsibilities over the Soldier’s unit, or (2) has jurisdiction over the unit where the misconduct occurred is vested with the authority to recall an RC Soldier to active duty for UCMJ purposes.
3. Assignment or attachment. In addition to determining duty status, these situations also call for a careful review of the RC Soldier’s orders. If a Soldier is officially assigned to a command, there should be no issues. However, if the orders specify that a Soldier is attached to a command, counsel must ensure that the terms of the attachment vest UCMJ jurisdiction in the command. If they do not, the attachment command may contact the assigning command to request any necessary amendments.
4. Witnesses. The authority to retain or call back a Soldier to active duty for court-martial does not apply to witnesses. In cases where RC Soldiers will be needed as witnesses after their release from active duty, the command may contact the Reserve Soldier’s chain of command to secure the witness’ presence under other authorities.
5. State jurisdiction over UCMJ violations. Many State Codes of Military Justice lose jurisdiction over its National Guard Soldiers when serving in or mobilized into Title 10 (ARNGUS) status. Consequently, when the Soldier is demobilized and returns to ARNG status, the State is unable to prosecute the Soldier under its State Code of Military Justice for crimes committed when in Title 10 (federal) status. If the Federal authorities wish to court-martial the Soldier, the Soldier must be recalled to active duty under Title 10. Otherwise, the State is likely only authorized to pursue administrative action against the Soldier.
C. Adverse Administrative Actions. Administrative actions against a deployed RC Soldier pose fewer jurisdictional issues than UCMJ actions, but must still be approached carefully.
1. Unlike UCMJ jurisdictional requirements, a Soldier need not be in a duty status when committing misconduct subject to administrative action. However, the command must have authority to take action. Here again, the RC Soldier’s orders require careful examination. Assigned RC Soldiers generally fall under the command’s administrative authority like any other Soldier, but attachment orders may reserve authority for administrative actions to the Soldier’s reserve chain of command.
2. Generally, Active Army regulations will apply to mobilized RC Soldiers. For example, an administrative separation action against a mobilized Soldier would proceed under AR 635-200 rather than AR 135-178. Practical considerations are also a factor. It is imperative to check the applicable regulation carefully and to determine its effect when a RC Soldier is involved. Often, the duration of a Soldier’s remaining active duty may be important. For example, what if a Soldier has only a week of active duty remaining? The Active Army command may determine an administrative separation is appropriate, but it may lack sufficient time to complete a separation. Because a court-martial is not contemplated, there is no authority to extend the Soldier on active duty. The better alternative may be to ensure the documentation is forwarded to the Soldier’s RC chain of command for appropriate action. In such a case, coordination with the RC unit is critical. With other actions, the Active Army chain of