Posted on Aug 27, 2018
Is an order that violates Army regulations, and exceeds the authority of the issuer, "unlawful"?
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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.)
Orders
Congress
Posted >1 y ago
Responses: 11
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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.
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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.
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.
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SSG (Join to see)
I've already spoken to the "cut and run" bs..
As for the differentiation between state and federal, I'd call your attention to the "applicability" portions of the regulations. In this case, they apply to National Guard as well.
As for the differentiation between state and federal, I'd call your attention to the "applicability" portions of the regulations. In this case, they apply to National Guard as well.
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SSG James Bloodworth
As you stated, you have brought it to the attention of your state IG, DAIG, and a congressman... 3 very influential components of the military, if they havent done anything in five years, chances are they are not going to do anything. Maybe if you can get a JAG attorney to look at the evidence and make an argument, but it really doesnt look likely to change.
It may be more productive to find out why the General reversed the requirement instead of focusing on the "unlawful" order itself. Officers do have the authority to give direct orders. Even if it is believed to be "unlawful". Truly, if niether the state IG nor the Dept of Army IG will not touch it, there isnt much you can do except drive on.
It may be more productive to find out why the General reversed the requirement instead of focusing on the "unlawful" order itself. Officers do have the authority to give direct orders. Even if it is believed to be "unlawful". Truly, if niether the state IG nor the Dept of Army IG will not touch it, there isnt much you can do except drive on.
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SSG (Join to see)
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.
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.
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SSG (Join to see)
Funny you mention that 1SG, untold numbers of Soldiers were affected by that policy. An NCO died of a heart attack during the next AT, (doing a detail he'd otherwise be supervising) when the 40th ID was operating at 40% strength, and still trying to accomplish 100% of the mission. (That's the AT I wasn't allowed to attend, because of that policy).
after my rating chain was changed as part of an Article 138 complaint of wrong, against a previous OIC, my 1SG was changed to my Rater. So after that, when my BC tried having him "sign off" on an extremely biased, intentionally false and misleading NCOER for me, he twice refused.. So she had to change my rating chain (unofficially, so not on the UMR) so her CSM was my Rater on that NCOER. My 1SG was the only Soldier in my chain to try to do the right thing. Anyway, that turned into the first of several refused requests for Commander's Inquiry IAW AR623-3. About that time, I was being accused of AWOL and FFO (though my actions didn't meet the definition of AWOL, and they weren't going to allow me to perform duty anyway, they called me AWOL for reporting for "accountability" only. Since it was over 400 miles, I'd requested reassignment IAW AR 135-91 para 5-5.. Ignored. Interestingly, my BC did ask 40th ID JAG "can he do that?" and the response in my Article 15 paperwork, was COMPLETELY redacted. They know what they're doing is wrong, just no one is holding them accountable. Eventually I'll make it to the right desk, but how many Soldiers lives are negatively affected by it, and junior officers are corrupted by it, before it's corrected? (sorry, bit of word vomit.. it's been going for 5 years, so a lot to cover). Thanks for your input.
after my rating chain was changed as part of an Article 138 complaint of wrong, against a previous OIC, my 1SG was changed to my Rater. So after that, when my BC tried having him "sign off" on an extremely biased, intentionally false and misleading NCOER for me, he twice refused.. So she had to change my rating chain (unofficially, so not on the UMR) so her CSM was my Rater on that NCOER. My 1SG was the only Soldier in my chain to try to do the right thing. Anyway, that turned into the first of several refused requests for Commander's Inquiry IAW AR623-3. About that time, I was being accused of AWOL and FFO (though my actions didn't meet the definition of AWOL, and they weren't going to allow me to perform duty anyway, they called me AWOL for reporting for "accountability" only. Since it was over 400 miles, I'd requested reassignment IAW AR 135-91 para 5-5.. Ignored. Interestingly, my BC did ask 40th ID JAG "can he do that?" and the response in my Article 15 paperwork, was COMPLETELY redacted. They know what they're doing is wrong, just no one is holding them accountable. Eventually I'll make it to the right desk, but how many Soldiers lives are negatively affected by it, and junior officers are corrupted by it, before it's corrected? (sorry, bit of word vomit.. it's been going for 5 years, so a lot to cover). Thanks for your input.
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1SG (Join to see)
SSG (Join to see) - Message me with a direct message, so we can talk more freely than open forum. I might have an idea or two.
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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.
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.
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SSG (Join to see)
Thanks.. I've been working it but one of the first things they point out is JAG is there to support the command.. Plus, they've already provided at least two examples I'm aware of, of bad legal advice. (the 2013 training guidance, and a change of policy stopping CANG Family Readiness Groups (FRGs) from collecting donated goods on behalf of the units) So.. I'm left with TDS, Trial Defense Service, which I've attempted to employ but haven't had much success with. For example, at this time, at The Adjutant General level, I've submitted for a "set aside" IAW AR 27-10 (can do a Ctrl/F search to find it in the reg), because I wasn't guilty of anything I was accused of, and I had "ineffective assistance counsel" which was the TDS assigned to help me. I'm expecting it to be denied again, after which I'll be able to get that request to NGB where it should have a better chance of objective review, since it's outside the CANG system. ~What I'm really after is maximum possible dissemination so maybe I can get some help and it's not JUST me fighting..
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CPO Glenn Moss
SSG (Join to see) - I wish you the best of luck. Sounds like you've got your hands full!
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SSG (Join to see)
CPO Glenn Moss - Thanks CPO, I'm workin it (and many other issues), but without help, I'm near dead in the water.
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SSG (Join to see) 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.
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SSG (Join to see)
Roger Sir. I wasn't sure about how to approach Gov. Brown.. I may be attempting that in the near future. I was also looking into getting into the Army Reserves, but there's been a few hurdles thrown at me so my ETS is now extended into next year.. Meaning I will be going through ANOTHER Enlisted Qualitative Retention Board, and if they can continue to mangle my records as they have in the past, then it's very likely I'll be boarded out in stead of retained.. Also pretty sure this year I'd be up to regain my E7, which would protect me from the EQRB, but I'm pretty sure the timing is to do EQRB first. ~As for joining the Air Force Reserve, I'm at 26 years, so I'm not sure I have that option, couldn't hurt to look though if it gets that far. Marines, would involve going through boot camp, think I'll pass this time.. pretty sure a leg would fall off if I tried it now!
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SSG (Join to see)
MAJ (Join to see) - Roger, Sir. Never know who might be reading and able to get it on the right desk. Worth a shot.
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As long as the court-martial board and you agree on what is legal and what is not, No Worries.
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SSG (Join to see)
courts martial boards aren't involved in this. Problem is I think everyone knows it's an unlawful policy, just no one seems willing to DO anything about it.
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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.
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SSG (Join to see)
That's what every level concludes.. JAG says if a 2 star says it, it must be legal, then IG says JAG "vetted" it.. Then DAIG says state IG already examined it.. What I'm trying to do here, is get a wider audience to be conscious of it. They retired the 2 star, but he's still in command.. Drawing that 2 star pay, as a civilian in faux uniform, in stead of putting in a federally recognized general. (BUT, they still have him posted as not retired (http://www.nationalguard.mil/portals/31/Features/ngbgomo/bio/1/1972.html ) See AR600-20 para 1-5. So his decisions supposedly, now, are "signed off" by another general who is fed rec..
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Why would you want to waste time taking nondeployables to the field? If they are medically nondeployable shouldn't they be on the street?
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SSG (Join to see)
I'm not crazy about the nonchalant way you say they should "be on the street", but to answer your question.. No. The focus is on getting Soldiers OFF the MND, or if they can't heal in a years time, they're med boarded.. ALL IAW AR 40-501. THESE Soldiers, are being deprived of participation credit as well as pay and even access to Active Duty care while on AT orders. I know in my case, I had a temporary MND for high cholesterol.. My Dr. signed off, which should have meant I would have to do the AT. I wasn't allowed. AFTER, I submitted the request for a waiver (mandating a waiver to justify an unlawful action is wrong in the first place), I was again told no.. Then finally they said there were no (federally provided) funds available for my mandatory Annual Training, or any plan for Equivalent Training. SO.. SFC, you enjoy your retirement and all the perks it enjoys, while others are actively denied the courtesy of following the prescribed regulations that are in place.
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