Posted on 08/06/2005 9:33:52 AM PDT by pabianice
Wrong. You can not claim exemption from the rules, based only on what your duty status is when you break the rules. Truth is, Paul Hackett is subject to the UCM even as a Reservist, especially if you are using your Reserve status as a tool (in this case, for political advantages.)
Wrong. He can't have his cake and eat it too. If he is using his CURRENT military affiliation as a tool to gain political advantage. In every election, we in the service are warned to watch our comments and statements, specifically watching for any statements that can ID us as members of the military, and that can be used in a political manner.
Sorry, but Hackett went way over the line and should pay a price, if we're to be consistent...after all, quite a few military folks saw their careers hit dead-ends when they criticized BJ Clinton.
You have this right, though for more reasons than you're bringing forth. You see, unlike the Clinton years, the Bush team is a lot classier, and they will simply ignore this guy, like he deserves.
Sorry, but you are dead wrong. You can look up the UCMJ and the statutory jurisdiction. It does not apply to reserve personnel in their civilian status.
Even more importantly, per the Constitution, elected representatives have exclusive privelege on what they say regards their official duties.
Hackett wasn't an "elected representitave" at the time of his remarks. In fact he was defeated in the election for the congressional seat.
Care to cite the relevant statute if you are so sure?
If you think the First Amendment applies to serving members of the armed forces either you have never served or you walked on thin ice and didn't know it. Please don't tell me how it should be, take it up with the Pentagon and the Supreme Court, both of which settled this matter years ago.
802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in the armed forces, from the dates when they are required by the terms of the call or order to obey it.
(2) Cadets, aviation cadets, and midshipman.
(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal Service.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of war, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement which the United States is or may be a party to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement t which the United States is or may be a party to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving with an armed force who--
(1) Submitted voluntarily to military authority;
(2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submissions to military authority:
(3) received military pay or allowances; and
(4) performed military duties: is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.
(d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntary for the purpose of-
(A) investigation under section 832 of this title (article 32);
(B) trial by court-martial; or
(C) non judicial punishment under section 815 of this title (article 15).
(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was
(A) on active duty; or
(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.
(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.
(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not--
(A) be sentenced to confinement; or
(B) be required to serve a punishment of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).
------------------------------------
And to complete my role as ammo bearer, the UCMJ is United States Code, Title 10, Subtitle A, Part II, Chapter 47, which means that references to "this chapter" in the text above mean references to the UCMJ as a whole.
I'm not a paralegal, I just play one on FR.
This has a very specific legal meaning - namely that the individual is in receipt of orders for inactive duty for training and, at the time of offense, had actually reported to his unit for the stated drill time and was actually serving under such orders.
In other words, the individual must actually be in a drilling duty status when the offense occurred. Going about his normal civilian affairs outside of, typically one week-end a month, drilling periods he is not subject to the UCMJ.
Sorry, but you can. It's the law. Retired O-6 here.
Not when not in a duty status. See above.
(7) The term "inactive-duty training" means--
(A) duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law; and
(B) special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.
Since Title 37, Sect. 206 deals with pay, I think we can stick a fork in the notion that Hackett is liable to UCMJ prosecution for his comments.
He is an Marine Corps Officer, reserve or active duty. It does not matter, you belong and adhere to all regulations etc...
Only when in a duty status, which reservists, not drilling, are not. It is real simple and real clear. It's the law.
Sorry to tell you, Colonel/Captain, but you can ask a lot of reservists who have been busted by UCMJ for things they have done while not on duty, and I am sure they would disagree.
I know of none, because there is no jurisdiction, as the above citations show quite clearly. I know some who while on liberty during a drill weekend violated the UCMJ and were busted for it, but they were in a duty status then, and I have known some who were on active duty for training and violated an act of the UCMJ and were charged and tried. The only consequence I have seen of violation of civil law of duty is that some have been taken before an administrative board to review their fitness to remain in military service, were found unfit, and were discharged.
I guess we'll have to agree to disagree. I personally believe that, if people's careers were freely jeopardized during the Clinton years for speaking out against the obvious corruption of the system, then Hackett is certainly fair game for his stated contempt towards his Commander in Chief, while using his military status as a political tool.
The only difference is, the Bush administration and the Rumsfeld-led DoD are a lot more likely to simply ignore this disgraceful so-called commissioned officer.
Isn't this guy a member of the Marine Corps Reserve? Is that different from the Fleet Marine Corps Reserve? It appears that Marine Reserve officers have a different standing than Reserve officers of other branches, that is, that Marine Reserve officers (assuming Marine Reserve and Fleet Marine Reserve is the same thing) are subject to the UCMJ regardless of drill status.
Fleet Marine Corps Reserve (FMCR): Consists of active and Reserve enlisted Marines who have completed at least 20 but less than 30 years of active service or active constructive service, and have requested transfer to the FMCR. The FMCR has no connection with the Marine Corps Reserve. Enlisted Marines serve in the FMCR on a retainer basis and receive retainer pay until they complete a total of 30 years of service, after which they are retired. Upon retirement, the Marine will receive retired pay. Retainer and retired pay usually will be the same amount. However, in cases where the member has previous commissioned service, and has served satisfactorily as determined by the Secretary of the Navy, the member will be advanced to the highest commissioned grade and receive that retired pay. Members of the FMCR are not retired by definition, but are specifically treated as such under Title 10, United States Code. Therefore, they are subject to recall identically as retired Marines.
It looks like that since the FMCR are being paid a retainer, they get to be under UCMJ jurisdiction.
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