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National guard and State Version of UCMJ...No absolute right to demand court martial on NJP. Thoughts?
Ok, so I will try to make this short even though it is a complex issue. I am AGR in Alabama, and I went through my first Art 15 (field grade) in my 11 year career. Alabama has adopted it’s own version of the UCMJ called ACMJ.
Prior to the article 15 I submitted an IG complaint primarily due to toxic leadership. Later that year I was informed that a 15-6 was being conducted and shortly after I was read my first reading. The allegation was AWOL and malingering. This was in regards to me going to the ER and not present half of the day even though after discharge from the ER I had documentation that stated I was being treated for an allergic reaction and gave it to CoC. I also went to my duty location immediately after discharge to give them documentation.
Leading up to the second reading I was concerned that I would not see impartiality or fairness based on the reasons for filing the previous IG complaint and the IG complaint itself. I also was confused on why I was in this situation when I had presented the documentation. I had made up my mind that I was going to demand trial by court martial, so at the second reading that’s what I said I wanted to do. Much to my surprise the ACMJ does not allow that option unless the command intends to impose restriction, and I was told that I did not have that right. They even have a block on the form that you initial that says you don’t have the right unlike the DA Form 2627. Proceedings commenced and guilty on the charges. Demoted from E-6 to E-5 and career in jeopordy for something I shouldn’t have been punished for. I know, I know, that’s what they all say, but I’m this case it is true.
Important to note that these proceeding spanned 17 months which caused prolonged stress. I guess the input I am trying to get is what are your thoughts about ACMJ and the involuntary waiver of the right for court martial in lieu of a toxic command giving NJP.
Here is the link of the reg (section IV and app B)
Ok, so I will try to make this short even though it is a complex issue. I am AGR in Alabama, and I went through my first Art 15 (field grade) in my 11 year career. Alabama has adopted it’s own version of the UCMJ called ACMJ.
Prior to the article 15 I submitted an IG complaint primarily due to toxic leadership. Later that year I was informed that a 15-6 was being conducted and shortly after I was read my first reading. The allegation was AWOL and malingering. This was in regards to me going to the ER and not present half of the day even though after discharge from the ER I had documentation that stated I was being treated for an allergic reaction and gave it to CoC. I also went to my duty location immediately after discharge to give them documentation.
Leading up to the second reading I was concerned that I would not see impartiality or fairness based on the reasons for filing the previous IG complaint and the IG complaint itself. I also was confused on why I was in this situation when I had presented the documentation. I had made up my mind that I was going to demand trial by court martial, so at the second reading that’s what I said I wanted to do. Much to my surprise the ACMJ does not allow that option unless the command intends to impose restriction, and I was told that I did not have that right. They even have a block on the form that you initial that says you don’t have the right unlike the DA Form 2627. Proceedings commenced and guilty on the charges. Demoted from E-6 to E-5 and career in jeopordy for something I shouldn’t have been punished for. I know, I know, that’s what they all say, but I’m this case it is true.
Important to note that these proceeding spanned 17 months which caused prolonged stress. I guess the input I am trying to get is what are your thoughts about ACMJ and the involuntary waiver of the right for court martial in lieu of a toxic command giving NJP.
Here is the link of the reg (section IV and app B)
Error
Posted from al.ng.mil
UCMJ
Article 15
Toxic Leadership
NGB
Posted >1 y ago
Responses: 8
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Not 100 percent sure but if you were in a drill status paid with Federal funds you should be under UCMJ.
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SSG Matt Holmes
It appears that national guard soldiers are subject to the UCMJ when called into federal title 10 service. When in title 32 status state statutes hold jurisdiction.
Wonder why Alabama’s code pretty much gives no option to turn down NJP and request the forum to be in a court martial? Seems like a lack of due process.
Wonder why Alabama’s code pretty much gives no option to turn down NJP and request the forum to be in a court martial? Seems like a lack of due process.
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LTC Stephen B.
Every paid status except for SAD is paid for with Federal funds. Jurisdiction is not determined by funding source, however. Duty status under any T32 code means that the soldier is under the jurisdiction of the Governor and therefor subject to the laws and regulations passed by the State legislature and signed by the Governor - i.e. the State version of the codes if they have any.
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I recommend you consult with the JAG office for the ALARNG to see if you have any recourse or appeal. State versions of the UCMJ are indeed very arcane. In some ways, I've seen this work put to the benefit of the Title 32 Soldier. In other cases, as in yours, poor leadership can wield it unfairly and indiscriminately.
I would prefer to see a closer adaptation of the UCMJ developed for State's legislatures to either adopt, or see their Federal Title 32 budgets slashed pending adoption. There is no reason we should have 50-odd separate versions of the UCMJ that do not afford defendants the same protections as Title 10 Soldiers.
One Team, One Fight, One Standard.
I would prefer to see a closer adaptation of the UCMJ developed for State's legislatures to either adopt, or see their Federal Title 32 budgets slashed pending adoption. There is no reason we should have 50-odd separate versions of the UCMJ that do not afford defendants the same protections as Title 10 Soldiers.
One Team, One Fight, One Standard.
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If you feel strongly, contact your Congressman and state your case. Talk to your Area Defense Counsel and get their help to fight the charges. (Remember, JAG is your Commanders' lawyer, not yours.) If you have documentation refuting what they charged you with, submit it as high up as possible. Not sure what the Army would call it, but Navy we can also request mast, which has to go up, and speak with the commander, or their boss. If you feel that this was a reprisal for the IG complaint, contact IG again and let it be known to all the other parties as well. Just remember, EVERYONE has a boss, and if you have received an injustice, it's not only in your interest to fight it, it's your duty as an NCO. Step up to the plate and swing for the fences. At this point they've already screwed you, so why not? HOWEVER, if your side of the story and the reality of the situation are not the same, buckle up for a world of hurt if you call it out. You'd better know you're right.
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