The Active Guard Reserve Program: A New Military Personnel Status

• Author: by Maor Thomas Frank England
• Pages: 01

This article ezarnines the meation of the Active Guard/Reserue pro-gram, Q new military personnel status dedicated to the full-time suppert of theReserue cmponentsof the UnitedStates A m d

Forces

and of the Notiaal Guard. he history of thepogrom's meation isreviewed (UI a predicate to 5% amlgsis of military personnel andnimznal law concerns for the future. The a~ticleconcludes that a r m e d elfort should be made to define the full dimensions of the Status of National Guard participants, and that chawes should be made to the Manual for Courts.Martial to fully implemat the crim-inal jurisdiction 09811 Resmes ufofforded by Article 3(a) of the UnUom Code ofMilitary Justice.

PREFACE

This article is a personnel law analysis of a new military status. Such an analysis is the main business of a military permnnel law attorney, yet the methods used in such a study are not confined to a particular field of law. At a practical level, a client must be fully in. formed of all possible ramifications from creating such a new status. At a philosophical lwei, military personnel law is, by definition, rn interdisciplinary profession. The indicia of a particular personnel status are evidenced only in the context of many subcategories of the law. In addition to addressing the many administrative law topics that directly concern the management of a pemnnel category, such BS accession, promotion, and separation, the military personnel law attorney must provide information BS to the military

Status of a personnel classification to other, equally specialized attorneys.

*Judge Advocate General 9 Corps. United States Army Currently aosimed ai Officer-In-Charge. Office a1 the Staff Judge Advocate. VI1 Corps, Heilbrann Branch Office. Federal Republlc of Germany, 1884 to presenr. Formerly aoamed TO Admminranve Law Dwslon. Office of The Judge Advocate General. C S Army, 1980-83,

Chief.

Mammate Court Branch, Office of the Staff Judge Advocate Ill Corps and Command Judge Advocate, 13th Corps Support Command, Fort Hood. Texao, 1877-80 J D , Lniverslfy af Pittsburgh, 1876; B A,, Un~vemty of Tenne~see,

1973 Completed 32d

Judge Advocate Offlcer Graduate Course, 1884. 836 Judge Advocate Officer Besic Course. 1817. Author of DOPMA Cmmtton M t G .Mere Technzcalzli. The Amy Lawyer. Aug 1881. at 13 Member of the bars of the States of Texes and Penn-~yliama. Thla article IS based upon a them submitted m partial safvfacfian of the ~equlremenls of the 3Zd Judge Advocate Officer Graduate Coune mls article Ededicated to the memory of the late Colonel Thomao H Davls

MILITARY JAW REVIEW [Vol. 106

A complexity that arises in this synthesis of many disciplines into a single analysis IS that the nature of a military status may not be uniform across vanous fields of law. For example, the fact that a soldier is said to be on "active duty" for the purposes of receiving pay, aliowances, and benefits, does not always mean that he is similarly situated for the purpose of cnminai law. Therefore, an inductive analytical approach in the practice of military personnel law is doomed to failure; military personnel lawyers must reason deductwe1y.

hnally, the practice of military personnel law requires the epitome of the staffing principle termed "coordination " Because the law is so detailed and specialized, the military personnel lawyer makes his greatest contnbution as ageneral practitioner, recognizing the issues that specialists must resolve.

1. INTRODUCTION: MILITARY PERSONNEL LAW IN THE EARLY 1980s

   In the past five years, Congress has rewoven the fabric of military personnel management. A new active-duty management Structure for Reserves was created at the same time that the traditional active forces were encouraged to became "all-Regular." Specifically, the "anomaly of the career Reservist," discouraged by the Defense Officer Personnel Management Act (DOPMA),' has been resurrected in the Active GuardIReserve tAGR) program.z

   The creation of the AGR program is part of an increasing emphasis on the use of Reserves to augment active forces, as was demonstrated in late October and early November 1983. During this period, Philadelphia-area Army Reservists received telephone calls explaining that they were needed to support an Active Army Operational mission.a These Reserves represented a cross-section of civilian backgrounds: an educational administrator, an airline pilot, the head

   of a construction firm, a senior official in city government, a vice-president of a water treatment company, and a supervisory iron worker. With aniy minimal notice, they became active-duty soldiers, participating in operation "Urgent Fury," the deployment of United States combat troops in Grenada.4

   This article examines military personnel and criminal law concerns within the Active Guard'Reserve program. This requires, first, an introduction to the AGR program for those unfamiliar with its history and purposes Thereafter, a full spectrum of military personnel law issues is analyzed. Finally, the issue of criminal jurisdiction over AGR personnel is explored in a series of practical scenarios.

   11. GENESIS OF THE ACTIVE GUARDIRESERVE PROGRAM

   1. INTRODUCTION

      Congress IS authorized by the Constitution to "raise and support Armies,"s to "provide and maintain a tia>T,"B and to "make [rlules for the [glovemment and [r]egulation of the land and naval [flor~es.''~

      In addition to creating the full-time armed farcq8 Con-gress has also exercised this constitutional authority by creating

      various part-time military organizations. These organizations are the seven reserve components of the armed farces. The Army National Guard of the United States (ARNGUS); The,Army Reserve (USAR), The Nz,'al Reserve (USNR); The Marine Corps Reserve (USMCR); The Air ti'ational Guard of the United States (AXGUS), The Air Force Reserve (USAFR); and The Coast Guard Reserve (USCGR).o

      It is important to not confuse the Army and AirNationai Guards ofthe United States, ARNGUS and ANGUS, respectively, with the tia-tional Guard of the various states. The Xationai Guard, including both the Army National Guard and the Air National Guard, is not defined as a reserve component of the armed forces. Rather, it 1s

      part of the organized miiitia10 of the states, territones, Puerto Rico,

      'Idlid at cI 13'Id at cI 14'IOU S C 8 lOI(4) (1982) [Arm) Kar). An Force. >kine Corp, and Coast Guard) JOSeiL'S Const art 1,$8,ck 15 16 Sernko10USC g311(1882)(generally the able-bodled males ' between 17 and 45, and 13 dlulded into an organlied

      nus conit art I. § 8, CI I2 st 3 261(a)

      mlllfla 18 allmilitia and an unorganized rnhtlal

      and the District of Columbia.1L Further, the Sarional Guard does not

      become part of the Armed Forces of the United States unless it 1s

      "called" mto federal service for one a€ three reasons specified in the Constitution: to execute the laws of the United States; to suppress insurrections; and to repel invasions.'2 So that the National Guard may be prepared for such a "call" to federal service, the Constitution authorizes Congress to "provide for organizing, arming, and disciplining" the National Guard.13 Although the authority to train the Baaonal Guard LS reserved to the states, Congress LS authanzed to prescribe the substance of the train~ng.~'

      In 1933. Congress anticipated that these constitutional constrants on the Satmnal Guard might hinder the modern use of militaly force and, therefore, created the concept of a National Guard of the United States." Under this concept, two reserve components, the ARSGUS and the ANGUS were formed. Essentially, these organizations permit qualifying members of the National Guard to acquire a second military status as Reserves of the United States Armed Forces. Thus, all members of the ARSGUS and the ANGUS are also members of the National Guard.LB

      Certain distinctions between the National Guard and the Satianal Guard of the United States must be explored. As discussed above, members of the National Guard are "called" into federal service under the Constitution for only three reasons. In contrast, the members of the ARNGUS and ABGUS are "ordered" to active duty for any purpose specified in a statute." While ARNGUS and ABGUS personnel are on active duty, they serve as Reserves of the United States Armed Forces,1B and are relieved from their duties in the Sa-tional Guard I* While these various organizations are, in common parlance, referred to as "The Guard," the technical distinctions are crucial in analyzing the applicability of laws and regulations to service members.

      "Id at 5 lOI(O), (IO). (12) 32 US C 5 101(3). (4) (6)(lQR2). The characferYfrer of the National Guard are ~t 11 a land or sir force, II

      LS tralnod and har Its offleers BP-pornled underU S Constii~~~un,

      Arriclel, Section8 Clause 16. ifisorganlzed, armed. and equipped rholly 01 partly at federal expense. and ~f 13 federally recomned Id

      'wee u s Const art I, s 8, cI 16 see a m Lo U.5 C $5 3600. 8600 (1082)

      I T S Const an I. 5 8. cI 16"The fiaining of rhe militi~.ineluding the Safiond Guard. must be 'accordmg to ~~Acfofl5

      June 1033. 48 Stat 165(eurrenfversron codifiedinvarloui ~ro~~isioni of

      "IO U S.C 5 LOl(l1) and (13) (1082). 32 U S C "Id at $5 3405,

      8505 "Id at 55 3487 8487js32 L S C 5 325 (1882)

      the discipline prescribed by Congress ' I d

      I O V S C ) 5 lOL(5) and (7) (1882)

      The remainder of this section focuses upon the mission of the modern Reserve components, the reasons propelling creation of the AGR program, and the legislative origins af the program. This synthesis of the historical information availabie from myriad sources provides a framework for the practical applications in subsequent chapters

   2. THE MISSION OF THE RESERVE COMPONENTS The mission of the reserve components IS described in 10 U S.C.

      5 262 as fallows The purpose of each resen-e component 1s to provide trained units and qualified persons available for active duty in the armed forces, in time of war or national emer-gency and at such other rimes as...