Posted on Mar 19, 2014
Are Reserves subject to UCMJ when not on duty?
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I separated from active duty almost 2 months ago and now I am in the Select Marine Corps Reserve (SMCR). Still with an active duty mindset and understanding of rules and regulations for active duty Marines, I am slowly learning about the differences between active duty and reserves. I was told and unable to locate this in documentation that reservists outside of obligated drill cannot be held responsible under the UCMJ. Is this true that reservists if in trouble with the law outside of their obligated drill times that it has no affect on their Marine Corps career? If I were to be busted for marijuana possession and was given a misdemeanor charge outside of drill, that couldn't be held against me in the Corps? <div><br></div><div>This is a hard thing for me to believe. I was exposed to this on my second drill where we had an issue in similarity come up, is this true? I'm still practicing "you're a Marine 24/7" but I guess that isn't the case with reservists. </div>
UCMJ
Reserves
Marine Corps
Law
Posted >1 y ago
Responses: 80
46
46
0
Civilian offenses can effect a Servicemember's clearance. Thus, civilian offenses can/do affect the career. The UCMJ just doesnt often come into play.
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PO1 Jotham Anderson
Well said. Did all my 20 on active duty, but had a similar experience with my clearance. Transferring to a new command after being stationed in Germany for 3 years. In the process of marrying a foreign national as well as my clearance being renewed at the same time.
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CPO Micah Dickerson
Civilian offenses can affect your reserve status. While on recruiting duty we ran a police check on an individual that wanted to go back on active duty. Several things came up on the report. As a result he not only missed out on returning to active duty he was discharged from the reserves.
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LtCol William Bentley
SSG Nate Fel - Every member of the reserve component is administratively responsible for following all relevant rules...of which there are a great many that affect reserves even when NOT subject to the UCMJ. Such as:
1. All criminal violations of civil laws of any jurisdiction or nation, as the reserve member may be subject to administrative discharges, demotions, or other sanctions such as "OTH discharge for Civilian Conviction or Commission of a Serious Offense," or loss of security clearances which might lead to loss of an MOS which might then lead to simple discharge or denial of promotion or retention because they are no longer qualified to do whatever it was they were doing (like Intel, or MP, or Space Ops, whatever),
2. Informing their chain of command of all international travel. Every Service does this differently, and it isn't a request, but a "notification" required before travel, especially if the travel is involving certain countries on the DoD or DoS watch lists.
3. Following the Ethics Regulations and Uniform Regs, among other lawful orders, for all political activities, gang affiliation, extremist organizations, etc. There are literally dozens of orders on this, and each Service does it differently, but the rules are there and violation may result in administrative sanctions even if the member is not subject to the UCMJ.
4. Informing the command of any injury or illness that may affect their readiness to deploy...which for a SelRes member is pretty much anything more than a little bruise or a common cold. Again, each Service's rules are differently, but generally require informing the chain of command/Unit medic or Doc of the problem not later than the next drill period so it can be evaluated as to whether or not it will affect the deployment medical readiness of that reserve member.
5. Informing the command about all marriages, divorces, addition/deletion of dependents, their authorized dependents' locations, etc.
6. Informing the command about their single-parent plan for caring for authorized dependents.
7. Maintaining civilian employment information up to date, required for Key Employee Screening.
8. Informing the command about anything else that affects readiness, like losing a special license or certification in the civilian world that may directly affect certification in the military, such as a civilian air traffic controller who loses their cert/license, and who is a military ATC as well.
Those are just a few of the many, many things that can bite a reserve member if they fail to follow the program. Not every unit, every command and Service drives a hard bargain on all the rules...frankly, they don't have time, but it is the responsibility of leaders in the reserves to know how the UCMJ...and administrative regulations...interact and affect themselves and their people both during and in between duty periods.
For example, when I was working at a USMC mobilization center perhaps 15 years ago, we ended up playing hardball with a tough guy who thought the rules no longer applied to him just because he had served his 4 years of active duty and transferred to the IRR...i.e., the Reserves. He decided to wear only part of his USMC uniform to political rallies, and give interviews and speeches while wearing the uniform items. This is clearly prohibited political and uniform combinations...violating not only US laws but DoD, DoN, and USMC lawful regulations. He was a member of the IRR, and thus subject to the administrative controls and regulations of the Service. He was first advised verbally by a Marine leader to cease and desist, and why he should do so...common courtesy, right? He literally spit in the face of the Marine. So...it went to the next level, to my unit which had administrative control over him, as an IRR Marine who still had perhaps 3 years to serve in the Reserve component per his contract and US law. He was advised via a formal letter to cease and desist, and advised of the likely consequences if he failed to get with the program. He continued to violate US law and Service regulations, essentially daring us to do something about it...So we did. We advised him that he was being processed for an administrative discharge (Army calls it "Chaptering," I think), and that the lowest form of characterization of service he could receive for Commission of a Serious Offense (the violation of US laws) was an Other Than Honorable discharge. He arrived with a circus of media to cover his "illegal trial" as he termed it, since he believed himself to be immune to all USMC regulations since he was no longer on active duty. But he was wrong, and the administrative discharge board found that he had violated the regulations of the Service, and his services would no longer be needed by the USMC Reserve. He had arrived, under official orders to active duty to pay for his travel as he requested, at our command out of uniform, with no USMC uniform items at all, and wearing long hair and not having shaved, was violating USMC regulations while in an active duty status, in addition to his previous violations. So, while under orders to active duty, we ordered him to sit with the barber to get a haircut and shave right then and there, 5 minutes after he arrived. We refused admittance to any of his retinue of admirers, refuseniks, and reporters, left them outside the gate of the compound. We then ordered him to go to our supply office and be issued proper USMC uniform items to attend his formal administrative hearing. Once he was properly within uniform regulations, the hearing began. Since his violations were posted all over social media and interviews with mainstream media, it wasn't hard to see how it was going to go...
Long story shorter, he was found to have violated numerous regulations, and was issued an Other Than Honorable discharge, and completely severed from all reserve status, not even the IRR. Full civilian, with his OTH. This was after he received an Honorable discharge for his 4 years of active duty, including a combat tour. But, you get what you ask for, sometimes, when you want to play loose and fast with the regulations.
Don't believe that nothing you do between periods of active or inactive duty while a reserve member are beyond administrative controls of your Service, because you still have a contract, you still have responsibilities under the law and Service regulations. Whether your Service and command compel their members to follow all those rules are up to those commands...but they are there, and the Services still have administrative controls 24/7/365 over all reserve members...even those in the IRR, the Standby Reserve, and even (very technically) the Retired Reserve.
Cheers,
1. All criminal violations of civil laws of any jurisdiction or nation, as the reserve member may be subject to administrative discharges, demotions, or other sanctions such as "OTH discharge for Civilian Conviction or Commission of a Serious Offense," or loss of security clearances which might lead to loss of an MOS which might then lead to simple discharge or denial of promotion or retention because they are no longer qualified to do whatever it was they were doing (like Intel, or MP, or Space Ops, whatever),
2. Informing their chain of command of all international travel. Every Service does this differently, and it isn't a request, but a "notification" required before travel, especially if the travel is involving certain countries on the DoD or DoS watch lists.
3. Following the Ethics Regulations and Uniform Regs, among other lawful orders, for all political activities, gang affiliation, extremist organizations, etc. There are literally dozens of orders on this, and each Service does it differently, but the rules are there and violation may result in administrative sanctions even if the member is not subject to the UCMJ.
4. Informing the command of any injury or illness that may affect their readiness to deploy...which for a SelRes member is pretty much anything more than a little bruise or a common cold. Again, each Service's rules are differently, but generally require informing the chain of command/Unit medic or Doc of the problem not later than the next drill period so it can be evaluated as to whether or not it will affect the deployment medical readiness of that reserve member.
5. Informing the command about all marriages, divorces, addition/deletion of dependents, their authorized dependents' locations, etc.
6. Informing the command about their single-parent plan for caring for authorized dependents.
7. Maintaining civilian employment information up to date, required for Key Employee Screening.
8. Informing the command about anything else that affects readiness, like losing a special license or certification in the civilian world that may directly affect certification in the military, such as a civilian air traffic controller who loses their cert/license, and who is a military ATC as well.
Those are just a few of the many, many things that can bite a reserve member if they fail to follow the program. Not every unit, every command and Service drives a hard bargain on all the rules...frankly, they don't have time, but it is the responsibility of leaders in the reserves to know how the UCMJ...and administrative regulations...interact and affect themselves and their people both during and in between duty periods.
For example, when I was working at a USMC mobilization center perhaps 15 years ago, we ended up playing hardball with a tough guy who thought the rules no longer applied to him just because he had served his 4 years of active duty and transferred to the IRR...i.e., the Reserves. He decided to wear only part of his USMC uniform to political rallies, and give interviews and speeches while wearing the uniform items. This is clearly prohibited political and uniform combinations...violating not only US laws but DoD, DoN, and USMC lawful regulations. He was a member of the IRR, and thus subject to the administrative controls and regulations of the Service. He was first advised verbally by a Marine leader to cease and desist, and why he should do so...common courtesy, right? He literally spit in the face of the Marine. So...it went to the next level, to my unit which had administrative control over him, as an IRR Marine who still had perhaps 3 years to serve in the Reserve component per his contract and US law. He was advised via a formal letter to cease and desist, and advised of the likely consequences if he failed to get with the program. He continued to violate US law and Service regulations, essentially daring us to do something about it...So we did. We advised him that he was being processed for an administrative discharge (Army calls it "Chaptering," I think), and that the lowest form of characterization of service he could receive for Commission of a Serious Offense (the violation of US laws) was an Other Than Honorable discharge. He arrived with a circus of media to cover his "illegal trial" as he termed it, since he believed himself to be immune to all USMC regulations since he was no longer on active duty. But he was wrong, and the administrative discharge board found that he had violated the regulations of the Service, and his services would no longer be needed by the USMC Reserve. He had arrived, under official orders to active duty to pay for his travel as he requested, at our command out of uniform, with no USMC uniform items at all, and wearing long hair and not having shaved, was violating USMC regulations while in an active duty status, in addition to his previous violations. So, while under orders to active duty, we ordered him to sit with the barber to get a haircut and shave right then and there, 5 minutes after he arrived. We refused admittance to any of his retinue of admirers, refuseniks, and reporters, left them outside the gate of the compound. We then ordered him to go to our supply office and be issued proper USMC uniform items to attend his formal administrative hearing. Once he was properly within uniform regulations, the hearing began. Since his violations were posted all over social media and interviews with mainstream media, it wasn't hard to see how it was going to go...
Long story shorter, he was found to have violated numerous regulations, and was issued an Other Than Honorable discharge, and completely severed from all reserve status, not even the IRR. Full civilian, with his OTH. This was after he received an Honorable discharge for his 4 years of active duty, including a combat tour. But, you get what you ask for, sometimes, when you want to play loose and fast with the regulations.
Don't believe that nothing you do between periods of active or inactive duty while a reserve member are beyond administrative controls of your Service, because you still have a contract, you still have responsibilities under the law and Service regulations. Whether your Service and command compel their members to follow all those rules are up to those commands...but they are there, and the Services still have administrative controls 24/7/365 over all reserve members...even those in the IRR, the Standby Reserve, and even (very technically) the Retired Reserve.
Cheers,
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I was surprised to learn this as well, but no, reserve component members are not subject to UCMJ unless they are on duty (drill, etc.). Also, National Guard members are not subject to UCMJ at all unless they are on Federal service, and instead they are subject to the State Code of Military Justice (which is often similar to UCMJ but not identical).
http://usmilitary.about.com/od/punitivearticles/a/ucmjsubject.htm
http://usmilitary.about.com/od/punitivearticles/a/ucmjsubject.htm
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SP5 Clayton Glass
I am retired from the Army, even now I try to act as if I was subject to Ucmj. I have never received any documentation or orders recinding my oath. My contact for time in service yes, my oath to defend, and uphold, and follow the Constitution, and orders given me. NOW the ONLY person above me in my chain of command is the President of the UNITED STATES. Do Not Try To Erode Our Country, We the unable to be activated Military are STILL bc HERE!!! We watch and see and will only tolerate so much.
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CW2 Jonathan Hall
Correct as a national guardsmen only when deployed outside your state on order does it effect the service men, and law enforcement is correct also, as my unit and I were deploy for police support in NYC during 9/11
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LtCol William Bentley
SP5 Clayton Glass - As a retiree, you no longer are subject to periodic reenlistment orders; you are simply a member of the Retired List of the US Army and will remain on the List until death do you part. This is in US law. But you remain subject to your Oath and Service regulations, as you correctly noted. However, you still have a chain of command, probably running through Army HRC, and then up to the Chief of Staff, US Army, SecAr, then SecDef, then the President, because retirees are a component of the US Army, and as such fall under the administrative command and control of Big Army, which of course falls under the administrative controls of the Department of the Army, which is subject to the DoD, which as a Cabinet officer reports directly to the President. Your Oath is to the Constitution, not the President, so he is of course your commander in chief, but your Commander is several levels below him. Whether it ever officially matters or not (since the Commander of HRC, the Service Chief, and the Secretary of the Army all have court-martial convening authority over their Service members...).
Cheers,
Cheers,
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According to Article 2 of the UCMJ reservists are only subject to the UCMJ while on IDT duty, or if they get federalized. <br><br>Any other than they are considered non-military and would be punished under civilian law.<br>
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MAJ (Join to see)
If a reservist gets a DUI as a civilian and don’t tell their unit they can be charged under UCMJ. It will effect their clearance and quite possibly be separated for it too.
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MAJ (Join to see)
A reservist can be charged with conduct unbecoming even if they weren’t on orders or in uniform.........I can state that as fact cause it happened to me. I ended up beating the charges but effected my clearance and I had to hire a lawyer to defend me on the charges. GySgt (Join to see)
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LtCol William Bentley
CW3 (Join to see) - You can be tried by both federal and state courts, as double jeopardy only applies to courts of the same level. So a federal civil court conviction would mean you can't stand trial by federal court-martial. But a state could court-martial you under state codes of Military justice. For example. Although doing such is very rare, as it is officially discouraged by the wording in the Federal Manual for Courts-Martial and the Federal UCMJ. And of course, none of this applies to administrative rules like administrative discharges/chaptering, reduction in rank for incompetency, losing certain benefits, etc. Cheers,
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LtCol William Bentley
MSgt Saul Roth - A member of the Reserve component, including the Retired Reserve (whether drawing retired pay or not), is only subject to the UCMJ in the following situations:
1. When recalled to active or inactive duty under official orders.
2. When admitted as an In-patient to a US military medical facility (not civilian, foreign, or VA hospitals...US military), this is of course to keep patients from doing unruly or threatening things while in a military hospital.
3. When serving a sentence of confinement as the result of a federal US military court-martial. The reserve member continues to be subject under the UCMJ under this rule even if they have been formally discharged or dismissed from the Service...so long as they continue serving their sentence of confinement from the court-martial they must play by the UCMJ rules regardless of where they are actually serving that sentence (as sometimes the Feds will move a court-martial prisoner to a Federal civilian, contracted, or even State prison).
4. While a POW (which of course also implies the reserve member was previously recalled to active duty, but Congress wanted to be sure it was understood that any Reserve member who is a POW, as declared under the laws of the US, regardless of their duty status, is subject to the rules of the UCMJ for their behavior...similar to the two preceding "weird and unlikely" situations, Congress wanted to ensure the Services could hold people -- even reserves -- accountable for their actions while in certain situations).
5. And, if the reserve retiree is a US Navy Or US Marine enlisted member, and has more than 20 cumulative years of federally creditable active service, and was transferred to the Fleet Reserve/Fleet Marine Corps Reserve in lieu of retirement, they are subject to the UCMJ while in the FR/FMCR 24/7/365 until they have served a total of 30 combined active and FR/FMCR years of service, at which time they are formally retired to the Retired Reserve List and no longer subject to the UCMJ (unless one of the other situations above arises). (Note: the FR/FMCR doesn't apply to other Services than the USN/USMC. It doesn't apply to officers in any way, shape, form. It doesn't apply to any reserve member who doesn't have 20-30 years of cumulative active service. It doesn't apply to any reserve member who has 30+ years of cumulative active service. But it does apply to a Regular USN/USMC enlisted retiree the same way it does for the reserve enlisted retiree; the only difference is that at the 30 year mark, when they are both transferred to their respective Retired Lists, the Regular goes to the Regular Retired List and the Reserve goes to the Reserve Retired List, and the Regular remains subject to the UCMJ for the remainder of their life, while the Reserve is no longer subject to the UCMJ except in the noted situations above.)
As a retired Marine reserve member, whether you draw retired pay or not, provided you are not subjected to one of the situations above, you are not subject to the UCMJ. Although you are still subject to the administrative controls of the USMC, and of course to federal laws. IN reality...the worst administrative sanction I have ever heard of a retired reserve member receive (outside of the categories above where UCMJ applies) is a stiffly worded letter from HQMC...IN theory...the Service could initiate an administrative discharge hearing (or for an officer, a Board of Inquiry), and subject the retired reserve member to that hearing to see if they will remain a member of the Service at all...but I have never heard of this happening...ever. Not saying it hasn't, or couldn't...just that I don't think it has ever happened and is pretty damn unlikely to happen in the future, too.
Semper fi, retired brother! WKB
1. When recalled to active or inactive duty under official orders.
2. When admitted as an In-patient to a US military medical facility (not civilian, foreign, or VA hospitals...US military), this is of course to keep patients from doing unruly or threatening things while in a military hospital.
3. When serving a sentence of confinement as the result of a federal US military court-martial. The reserve member continues to be subject under the UCMJ under this rule even if they have been formally discharged or dismissed from the Service...so long as they continue serving their sentence of confinement from the court-martial they must play by the UCMJ rules regardless of where they are actually serving that sentence (as sometimes the Feds will move a court-martial prisoner to a Federal civilian, contracted, or even State prison).
4. While a POW (which of course also implies the reserve member was previously recalled to active duty, but Congress wanted to be sure it was understood that any Reserve member who is a POW, as declared under the laws of the US, regardless of their duty status, is subject to the rules of the UCMJ for their behavior...similar to the two preceding "weird and unlikely" situations, Congress wanted to ensure the Services could hold people -- even reserves -- accountable for their actions while in certain situations).
5. And, if the reserve retiree is a US Navy Or US Marine enlisted member, and has more than 20 cumulative years of federally creditable active service, and was transferred to the Fleet Reserve/Fleet Marine Corps Reserve in lieu of retirement, they are subject to the UCMJ while in the FR/FMCR 24/7/365 until they have served a total of 30 combined active and FR/FMCR years of service, at which time they are formally retired to the Retired Reserve List and no longer subject to the UCMJ (unless one of the other situations above arises). (Note: the FR/FMCR doesn't apply to other Services than the USN/USMC. It doesn't apply to officers in any way, shape, form. It doesn't apply to any reserve member who doesn't have 20-30 years of cumulative active service. It doesn't apply to any reserve member who has 30+ years of cumulative active service. But it does apply to a Regular USN/USMC enlisted retiree the same way it does for the reserve enlisted retiree; the only difference is that at the 30 year mark, when they are both transferred to their respective Retired Lists, the Regular goes to the Regular Retired List and the Reserve goes to the Reserve Retired List, and the Regular remains subject to the UCMJ for the remainder of their life, while the Reserve is no longer subject to the UCMJ except in the noted situations above.)
As a retired Marine reserve member, whether you draw retired pay or not, provided you are not subjected to one of the situations above, you are not subject to the UCMJ. Although you are still subject to the administrative controls of the USMC, and of course to federal laws. IN reality...the worst administrative sanction I have ever heard of a retired reserve member receive (outside of the categories above where UCMJ applies) is a stiffly worded letter from HQMC...IN theory...the Service could initiate an administrative discharge hearing (or for an officer, a Board of Inquiry), and subject the retired reserve member to that hearing to see if they will remain a member of the Service at all...but I have never heard of this happening...ever. Not saying it hasn't, or couldn't...just that I don't think it has ever happened and is pretty damn unlikely to happen in the future, too.
Semper fi, retired brother! WKB
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