Is an order that violates Army regulations, and exceeds the authority of the issuer, "unlawful"?

SSG Private RallyPoint Member — Mon, 27 Aug 2018 01:28:37 -0400

What do you do when your state military department, imposes an "unlawful" order, that violates Army regulations (at least 40-501, 600-20, and 135-91) and after bringing it to your IG, the DAIG, and the office of Congressman Ami Bera, no one is willing to take the appropriate corrective measures? (In 2013, a two star general exceeded his authority, and completely reversed the requirement for Medically Non Deployable Soldiers to perform their AT and field IDTs. Proponent for AR40-501 is The Surgeon General. CA Army National Guard still has the policy in place.)

Response by SGT Private RallyPoint Member made Aug 27 at 2018 1:31 AM

SGT Private RallyPoint Member — Mon, 27 Aug 2018 01:31:55 -0400

What portion of 40-501 was violated?

Response by SSG James Bloodworth made Aug 27 at 2018 3:31 AM

SSG James Bloodworth — Mon, 27 Aug 2018 03:31:43 -0400

1st you need to reconize that the National Guard is a state ran organization, with the exceptions of being called to federal service. AT and IDT fall under state authority.
Next you would have to look at the support you get from your upward leadership, if you have no support in your actions, chances are that you either live with it, or get out. Those choices are yours.
Lastly, it's California dude.

Response by MAJ Private RallyPoint Member made Aug 27 at 2018 9:40 AM

MAJ Private RallyPoint Member — Mon, 27 Aug 2018 09:40:44 -0400

I think the issue with following "sketchy" orders is whether or not you feel like you're violating your ethics and morals to follow this order. It's a tricky thing sometimes. I've seen people who were adamantly opposed to something ethically and ended up getting fired anyway. So first things first, is this a hill you're willing to die on? Second, are soldiers being harmed by this? I'm not 100% sure what's going on but it sounds like he's exempting soldiers from going to the field who are medically undeployable. In Mississippi soldiers on profile don't go to AT so that's not an uncommon practice. If this is in fact what's happening, while he may be breaking a rule, I wouldn't fight it because he could easily defend that decision. But if there's more info or if I'm misreading it, it could be different.

Response by Lt Col Jim Coe made Aug 27 at 2018 11:43 AM

Lt Col Jim Coe — Mon, 27 Aug 2018 11:43:38 -0400

SSG Private RallyPoint Member It looks like you've done all you can bring the problem to the attention of the chain of command, IG, and even your Congressman. The only other person I can think of that might weigh in on the issue with the California Army Guard is Governor Brown. Maybe the Governor's office has its own IG or ombudsman you could contact. Overall I'll say you should leave the CA Guard at your first opportunity. If you want to continue to serve in a reserve component, consider the Army, Marine, or Air Force Reserve.

Response by SFC Joseph Weber made Aug 27 at 2018 11:57 AM

SFC Joseph Weber — Mon, 27 Aug 2018 11:57:44 -0400

Why would you want to waste time taking nondeployables to the field? If they are medically nondeployable shouldn't they be on the street?

Response by SPC Mike Davis made Aug 27 at 2018 12:47 PM

SPC Mike Davis — Mon, 27 Aug 2018 12:47:05 -0400

SNFU!

Response by SGM Bill Frazer made Aug 27 at 2018 1:11 PM

SGM Bill Frazer — Mon, 27 Aug 2018 13:11:50 -0400

If it does all you say, and all those who you say have had it brought to them attention, then you choice to go along, or leave. It is very hard to imagine that 2 levels of IG are inept.

Response by Maj John Bell made Aug 27 at 2018 5:24 PM

Maj John Bell — Mon, 27 Aug 2018 17:24:10 -0400

As long as the court-martial board and you agree on what is legal and what is not, No Worries.

Response by MAJ Private RallyPoint Member made Aug 27 at 2018 10:37 PM

MAJ Private RallyPoint Member — Mon, 27 Aug 2018 22:37:53 -0400

Easy. Yes... UNLAWFUL

Response by CPO Glenn Moss made Aug 28 at 2018 8:11 AM

CPO Glenn Moss — Tue, 28 Aug 2018 08:11:46 -0400

Well...as a character discovered in a book I'm currently reading, it's easy to be moral when everything in your life is roses. It's when things go to Hell in a handbasket when you discover your true strength in character.

I'm not familiar with AR40-501 and, when I looked it up, it was far too long and in depth for me to read at this time. So I appologize for this in advance.

However, regulations are based on laws: laws cannot be violated by the regulations, but they may provide specific guidance and clarification.

Orders, in general, cannot violate the laws or the regulations which are based upon them. Generally, orders which may violate laws and regulations in peace time are covered by caveats under war time. So it's important to distinguish the difference.

First of all, have you sought actual legal advice on the matter, with the specific details? I ask this because many times what the laymant THINKS is "legal" or "illegal" is not actually the case. If it IS legal, then it's a moot case, as the General's order would not be considered "unlawful".

Without knowing the specifics, if you TRULY believe this order issued by the General is unlawful, then there is a moral obligation to oppose it. In fact, there may even be a legal obligation to oppose it. The choice, however, would be yours to make knowing all the roadblocks you've already encountered. And this is where your "strength in character" is tested.

I would seek legal advice on the details, if I were you. That would be a good starting point.

Response by 1SG Private RallyPoint Member made Aug 28 at 2018 9:42 PM

1SG Private RallyPoint Member — Tue, 28 Aug 2018 21:42:28 -0400

I believe that the proper way to handle this is:
1. Through the Chain of Command
2. Channels outside command (i.e. NCO channel, IG, etc)
3. Open door policy with a Sr leader.
4. Failing that, now you have a choice. Go to the mat sure that you are doing the right thing, prepared to face the consequences of failing to obey an order. Or follow the order, documenting that it is under protest, and if possible, get the order in writing. That way if an injury ensues or a condition worsens do to overriding a profile (which a commander CAN DO, although I strongly advise against it) then your bases are covered.

I will tell you that if one of my Soldiers ran afoul of my CO that way, I will definitely have the Soldier's back unless the situation is pretty unique. Overriding a profile is seldom the right choice for the mission or the Soldier, and can have permanent consequences.