What are my options in regards to treatment and punishment for behavior "off duty" of a Reservist?

SFC Private RallyPoint Member — Tue, 01 Jan 2019 09:18:51 -0500

Reserve SM arrested for drunk/disorder & failure to obey police. I expect a higher standard off duty - what are my options in regards to treatment and punishment? What forms do I push up?

Response by 1SG Private RallyPoint Member made Jan 1 at 2019 9:47 AM

1SG Private RallyPoint Member — Tue, 01 Jan 2019 09:47:48 -0500

You push nothing forward because he wasn't subject to the UCMJ. Further, an arrest is NOT a conviction.
However, IF the Soldier has a security clearance and/or is in a position of public trust, it may be an issue with regard to those with regard to whether, if convicted, are disqualifying for his position.

Response by SGM Private RallyPoint Member made Jan 1 at 2019 10:52 AM

SGM Private RallyPoint Member — Tue, 01 Jan 2019 10:52:56 -0500

Your Company Commander signs a DA 268 to flag the Soldier code L (law enforcement investigation), and you suspend, (not revoke, SUSPEND), the soldier's clearance pending the results of that law enforcement investigation.

Response by MAJ Private RallyPoint Member made Jan 1 at 2019 3:39 PM

MAJ Private RallyPoint Member — Tue, 01 Jan 2019 15:39:23 -0500

Sit down with Top, the Commander and your friendly servicing Judge Advocate to discuss options. Your command might have local policy on discipline. You should probably have your JA pull the police report to see how serious or not serious the incident is. You may have to refer to ASAP. Disciplinary options include reduction in rank, letter of reprimand. You could talk to him to get his side of the story, just make sure you read him a DA 3881. Depending on the situation, I usually advise to wait the outcome of the case to discipline if you decide to do that. Hope you can set the troop on the right path.

Response by Lt Col Bill Fletcher made Jan 2 at 2019 8:00 AM

Lt Col Bill Fletcher — Wed, 02 Jan 2019 08:00:05 -0500

The Cpt’s responses is a good one. Depending on how the Command wants to treat it along with UCMJ options there is also the option to not allow re-enlistment based upon this behavior. Police report and JAG advice for sure and consider waiting for the outcome in a court, but recognize it could take som time and plea bargains are often available, which is why I mentioned not allowing the troop to re-enlist.

Response by CW3 Private RallyPoint Member made Jan 2 at 2019 11:10 AM

CW3 Private RallyPoint Member — Wed, 02 Jan 2019 11:10:41 -0500

While its true that while not in drill status a reservist is not technically subject to the UCMJ (and for most National Guard members we would still only be subject to our state's military code which mirrors the UCMJ unless we are federalized), that only means the military wouldn't handle the criminal investigation and prosecution. It doesn't mean there wouldn't be any action by his reserve unit. First, in terms of court martial or NJP, it would likely not happen if there is no military connection and the SM was not in duty status as described--because as I said, they would let the civilian justice system handle it.

The SM can still be affected though depending on the details (and depending on what his Commander wants to do). The SM has an obligation to keep his CoC informed of what the outcome of this is, and I believe the Commander still has the authorty to flag him as well (DA Form 268) preventing the SM from being promoted, schools, etc., in addition to event-oriented counseling by his first-line supervisor (and potentially affect his next NCOER if this is an NCO). And, if the SM has a clearance, this will also need to be reported and could very well affect it.

Response by SSG Private RallyPoint Member made Jan 2 at 2019 12:00 PM

SSG Private RallyPoint Member — Wed, 02 Jan 2019 12:00:33 -0500

Yeah, not sure you have many options at your level, we had a SSG who was arrested for Drunk driving and this lead to some other issues, basically he lost his clearance, they would not recommend him for promotion, but outside of that they could not do anything else at the time. He did lose his government job because of his actions.