Should CAP Officers be subject to the UCMJ?

[Chaplaindon]

I'll take your word for it. Although I wonder how many cadet parents are aware that their adolescent, " ... in the field is considered a combatant and can be legally targeted" [by a foreign power]?

Maybe they need special parental permission slips for war --just in case.

As a former CGAux member (and aviator), I can say that I never got my GC card ... maybe Air Station Houston didn't issue them or else, maybe I was expendable ...

[RiverAux]

"in the field"..... I'm not sure running down to the airport at midnight puts me in the field with the armed forces of the US....not even enough to through a "debatedly" into the mix. 

[Al Sayre]

I think Chaplains and Health Services types fall under a completely different category...

[RiverAux]

By the way, the CG Aux doesn't get a separate Geneva Convention card --- its just a little box on the back of our regular id card.  I very sincerely doubt that 1% of Auxies ever actually serve underway on a CG vessel as part of the crew (joyride "morale" cruises wouldn't count). 

[DNall]

I'm not in the CGAux, but I believe the current cards have a statement on the back about geneva convention status. It doesn't take much to fulfill the requirement.

"in the field"..... I'm not sure running down to the airport at midnight puts me in the field with the armed forces of the US....not even enough to through a "debatedly" into the mix. 

Maybe I puncuated that badly, but "acting on order from" meets the requirement regardless of where & how you do it. If at some point AF authorized augmentation of the anti-cyber-terrorism efforts of 8AF, then sitting at your computer doing AF authorized web surfing meets the criteria.

I don't want to make a huge deal out of this, cause it isn't that big a deal, but you have to realize that ANYTHING that makes any portion of the military or govt more capable to conduct military action or security is a very valid target. The very reason we do SaR is so military resources can be preserved for military functions, and we sure as hell are doing HLS right now & aiding in military training (even if it is just as radar targets or low-level route surveys).

I think Chaplains and Health Services types fall under a completely different category...

Yes that would be the case, but it's dicey the way we do it, cause a chaplain could also be an MP on an HLS mission. If the need arises to correct the situation then I'm sure that'll be addressed.

[Major_Chuck]

As a Guardsman I am held to UCMJ standards already.  No arguement there.  As un unpaid civilian volunteer (CAP) -- If CAP floats me a paycheck and some benefits then we may discuss a change.   Not until then.

Well, kinda.  To be more correct, you are held to UCMJ while on Federal status.  While a state activated militiaman you would be subject to whatever state military code your state has.  Not on orders?  Not held to UCMJ.

True, but with a deployment to the sandbox looming closer in my future next year  Federal status is not that far off.  Plus, I don't want to find out regardless.  I'll opt not to stray to the wrong side of the law.

[lordmonar]

once you sign in you are legally a uniformed combatant under military orders.

There is a big difference between being a legal combatant and be subject to the UCMJ....and for the record you are a legal combatant even befor you sign it.  You are a legal target right now infact just by being a member.

[lordmonar]

"in the field"..... I'm not sure running down to the airport at midnight puts me in the field with the armed forces of the US....not even enough to through a "debatedly" into the mix. 

We are a force multiplier for the USAf.  We do "non-combant" jobs but we are still combatants, just like the cooks and admin specialists on base.  Under international law to be considered a combantat you must have:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly
- that of conducting their operations in accordance with the laws and customs of war.

So we have command stucture, uniforms and aircraft markings, arms (our air planes are considered weapon systems as is our communications net) and finally we conduct our operations ian accordance with U.S. laws which conform to the laws and customs of war.

Bing!  Legal combatants!

[DNall]

once you sign in you are legally a uniformed combatant under military orders.

There is a big difference between being a legal combatant and be subject to the UCMJ....and for the record you are a legal combatant even befor you sign it.  You are a legal target right now infact just by being a member.

Valid or legal? With the 2000 changes to our Aux status I'm not entirely sure one way or the other.

We are a force multiplier for the USAf.  We do "non-combant" jobs but we are still combatants, just like the cooks and admin specialists on base.  Under international law to be considered a combantat you must have:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly
- that of conducting their operations in accordance with the laws and customs of war.

So we have command stucture, uniforms and aircraft markings, arms (our air planes are considered weapon systems as is our communications net) and finally we conduct our operations ian accordance with U.S. laws which conform to the laws and customs of war.

Bing!  Legal combatants!

I think we actually qualify as paramilitary/irregular forces, but the above (which defines military combatants versus something like civilian LE) is a good argument that in order for the US to comply with the geneva conventions CAP should also (in at least some cases) be bound by UCMJ.

It's really not that big a deal, really. Can you tink of anything in UCMJ you wouldn't want CAP members held to? I mean I wouldn't want to weigh down the military justice system, and I don't think anyone would ever be charged except in the most extreme cases, but it all seems like very reasonable standards to me.

[lordmonar]

We are a force multiplier for the USAF.  We do "non-combatant" jobs but we are still combatants, just like the cooks and admin specialists on base.  Under international law to be considered a combatant you must have:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly
- that of conducting their operations in accordance with the laws and customs of war.

So we have command structure, uniforms and aircraft markings, arms (our air planes are considered weapon systems as is our communications net) and finally we conduct our operations in accordance with U.S. laws which conform to the laws and customs of war.

Bing!  Legal combatants!

I think we actually qualify as paramilitary/irregular forces, but the above (which defines military combatants versus something like civilian LE) is a good argument that in order for the US to comply with the Geneva conventions CAP should also (in at least some cases) be bound by UCMJ.

The GC does not make a differentiation between paramilitary/irregular forces and "military combatants".  The GC has three catagories....Non Combatants, legal combatants and illegal combatants.  Five "civilians" who tie on an armband and act in accordance with the laws of armed conflict are considered legal combatants and are afforded POW status if captured.   Local LE are also considered to be legal combatants.   

It's really not that big a deal, really. Can you tink of anything in UCMJ you wouldn't want CAP members held to? I mean I wouldn't want to weigh down the military justice system, and I don't think anyone would ever be charged except in the most extreme cases, but it all seems like very reasonable standards to me.

Okay here are immediate problems with the UCMJ and applying it to CAP.

1.  Fraternization.  How many husband/wife....parent/child teams do we have out there?  All of them would immediate violate professional relationship standards and someone would have to transfer/quit.

2. Adultry.....how much of this is going on that we would have to deal with.

3.  Financial responsibility....the military takes a very hard core stance on this.

4.  DUI....again the military takes a very hard view of this.

5.  Homosexuality.....do we really want to go there?

Do I think that we could develop some CAP UCMJ that would operate 24/7 and give the corporation some power to discipline our members other than just kicking them out and reporting them to the authorities?  Maybe....but do you want to give that power to the same guys you think are abusing their already limited power?

[DNall]

Okay here are immediate problems with the UCMJ and applying it to CAP.

1.  Fraternization.  How many husband/wife....parent/child teams do we have out there?  All of them would immediate violate professional relationship standards and someone would have to transfer/quit.

2. Adultry.....how much of this is going on that we would have to deal with.

3.  Financial responsibility....the military takes a very hard core stance on this.

4.  DUI....again the military takes a very hard view of this.

5.  Homosexuality.....do we really want to go there?

Do I think that we could develop some CAP UCMJ that would operate 24/7 and give the corporation some power to discipline our members other than just kicking them out and reporting them to the authorities?  Maybe....but do you want to give that power to the same guys you think are abusing their already limited power?

1. Don't know that it's a big problem. Lots of military marriages with both in. Parent child isn't a problem. A dad/son jumped into I think it was Grenada together in te 82nd, both in the same company, think the son was an officer & dad was a SNCO, but dn't quote me on that. Lots of similiar issues in the guard with multiple family  members in the same units. There may be situations where you need to move someone on the rolls to Gp/Wg in order to avoid the appearance of inpropriety, but I gotta be honest with you, I think we need some stronger ethics rules on this point anyway. I really have a problem with a parent being TCO/CDC/Sq CC over their kid. I know there are plenty of cases where it is done well with the utmost professionalism, but there are at least as many cases where there is the appearance of inpropriety & a few cases of real favoritism & outright breaking the rules. I think UCMJ is a good guide for what those standards should be, regardless if it is applied to CAP or not.

2. Adultry? I take a pretty dim view of it too & think it should be an offense for which you should be thrown out on your butt.

3. Financial Responsibility... that's considered more for security rating purposes, and to an extent integrity, but look at what we do in CAP. We finance out of our own pockets AFAMs & then get reimbursed later. That can't happen if you're overdrawn.

4. DUI/Drugs/etc... again share the dim view.

5. homosexuality... Ask Peter Pace about that one. Whatever man, it comes with the rest of the rules & I got no problems with the current standard.

I believe I mentioned that non CAP member (as a civilian) would be able to excercise UCMJ authority. The only ability to legally discipline anyone under UCMJ would & could only exist at CAP-USAF or possibly Air Staff (I'm not real clear on which). However I very much do think that you are 100% accountable for your actions 24/7, and if you behave in a manner not consistent with CAP officership in your private life, that should very much be grounds for your removal, and I do wish there were more teeth on the back end of that process. Apply that standard equally from national commander to the newest SM & I think things get better in a hurry. I'm not saying that's the best way to do things, and again don't want to bog down the system, but I got no issues with UCMJ & very much think CAP members should live up to at least those standards.

[lordmonar]

1. Don't know that it's a big problem. Lots of military marriages with both in. Parent child isn't a problem. A dad/son jumped into I think it was Grenada together in te 82nd, both in the same company, think the son was an officer & dad was a SNCO, but dn't quote me on that. Lots of similiar issues in the guard with multiple family  members in the same units. There may be situations where you need to move someone on the rolls to Gp/Wg in order to avoid the appearance of inpropriety, but I gotta be honest with you, I think we need some stronger ethics rules on this point anyway. I really have a problem with a parent being TCO/CDC/Sq CC over their kid. I know there are plenty of cases where it is done well with the utmost professionalism, but there are at least as many cases where there is the appearance of inpropriety & a few cases of real favoritism & outright breaking the rules. I think UCMJ is a good guide for what those standards should be, regardless if it is applied to CAP or not.

So you do have a problem and see the problem with this situation.  In the military the husband/wife, fathere/son, etc situations are the exceptions not the norm because we make an effort to insure there is no conflict of intrest.  Husband/wife are more often than not in different squadrons or workcenters.  In CAP we do not have that luxury.   

2. Adultry? I take a pretty dim view of it too & think it should be an offense for which you should be thrown out on your butt.

Cool....so let's start gearing up the CAP court martial.

3. Financial Responsibility... that's considered more for security rating purposes, and to an extent integrity, but look at what we do in CAP. We finance out of our own pockets AFAMs & then get reimbursed later. That can't happen if you're overdrawn.

Yes....but if we are under the UCMJ we have to prosecute all bounced checks the same way the USAF does.  Even the ones to Mc Donald's and the Wal Mart.

4. DUI/Drugs/etc... again share the dim view.

Again...let's start gearing up the Article 15 process and processing the demotions.

5. homosexuality... Ask Peter Pace about that one. Whatever man, it comes with the rest of the rules & I got no problems with the current standard.

The current USAF standard or the current CAP standard?

I believe I mentioned that non CAP member (as a civilian) would be able to exercises UCMJ authority. The only ability to legally discipline anyone under UCMJ would & could only exist at CAP-USAF or possibly Air Staff (I'm not real clear on which). However I very much do think that you are 100% accountable for your actions 24/7, and if you behave in a manner not consistent with CAP officership in your private life, that should very much be grounds for your removal, and I do wish there were more teeth on the back end of that process. Apply that standard equally from national commander to the newest SM & I think things get better in a hurry. I'm not saying that's the best way to do things, and again don't want to bog down the system, but I got no issues with UCMJ & very much think CAP members should live up to at least those standards.

We can do that with out being under the UCMJ.  Saying that the UCMJ authority only rests with CAP-USASF or Air Staff does nothing at all.  In order for the UCMJ (specifically Article 15) to work is to put it in the hands of the lowest echelon possible.  You can't be going up to the Air Staff every time a cadet or SM is late for a show time or mouths off to his superior.

Also the UCMJ would put a lot of power in the hands of CAP leadership.  This site for instance could be legally shut down by CAP and everyone who posts here could get article 15's for disrespect.

Should we follow the principles of the UCMJ?  Sure.  Should we be held to high standards and kicked out if we fail to meet them?  Sure.  But do we really want to give UCMJ powers to our CAP leadership?  This is real power...federal conviction....going to jail.....taking money from your pay check....sort of power.  That really scares me.

[DNall]

Sorry for the excessive quoting...

1. Don't know that it's a big problem. Lots of military marriages with both in. Parent child isn't a problem. A dad/son jumped into I think it was Grenada together in te 82nd, both in the same company, think the son was an officer & dad was a SNCO, but dn't quote me on that. Lots of similiar issues in the guard with multiple family  members in the same units. There may be situations where you need to move someone on the rolls to Gp/Wg in order to avoid the appearance of inpropriety, but I gotta be honest with you, I think we need some stronger ethics rules on this point anyway. I really have a problem with a parent being TCO/CDC/Sq CC over their kid. I know there are plenty of cases where it is done well with the utmost professionalism, but there are at least as many cases where there is the appearance of inpropriety & a few cases of real favoritism & outright breaking the rules. I think UCMJ is a good guide for what those standards should be, regardless if it is applied to CAP or not.

So you do have a problem and see the problem with this situation.  In the military the husband/wife, fathere/son, etc situations are the exceptions not the norm because we make an effort to insure there is no conflict of intrest.  Husband/wife are more often than not in different squadrons or workcenters.  In CAP we do not have that luxury. 

I understand. In CAP we should also be making a very strong effort to address that same conflict of interest & appearance of inpropriety. Like I said, it really is only a problem if a family member is a line commander or TCO in a position to grant favoritism with little checks & balances. UCMJ or not, we should have ethics rules that prevent that, which may indeed at times require reassignment. I can easily be assigned to Gp/Wg & still attend & be functional at a Sq my wife or girlfriend is in. And I can be a Deputy cdr for cadets when my girlfriend is ES officer.

2. Adultry? I take a pretty dim view of it too & think it should be an offense for which you should be thrown out on your butt.

Cool....so let's start gearing up the CAP court martial.

Alright sounds good. I'm serious, that's messed up. If you can lie & break your oath on that level, behave on that level of immorality, then how can you possibly serve duty as a CAP officer with core values? And if you can't do that you're of no use to us.

3. Financial Responsibility... that's considered more for security rating purposes, and to an extent integrity, but look at what we do in CAP. We finance out of our own pockets AFAMs & then get reimbursed later. That can't happen if you're overdrawn.

Yes....but if we are under the UCMJ we have to prosecute all bounced checks the same way the USAF does.  Even the ones to Mc Donald's and the Wal Mart.

Yes I understand, and that's fine. I explained why CAP members have to be financially responsible from a practical standpoint, and I would stick to that. I think you'd get some administrative trouble, but not prosecuted (see below)

4. DUI/Drugs/etc... again share the dim view.

Again...let's start gearing up the Article 15 process and processing the demotions.

Okay.

5. homosexuality... Ask Peter Pace about that one. Whatever man, it comes with the rest of the rules & I got no problems with the current standard.

The current USAF standard or the current CAP standard?

I got no problem with the current UCMJ standard. I think a lot of parents would have trouble with an openly gay officer over their kids. I don't want to get into boy scout like issues with this, and frankly I wouldn't make this a CAP rule, but if we're debating going under UCMJ or not, this particular rule doesn't sway me one way or the other.

I believe I mentioned that non CAP member (as a civilian) would be able to exercises UCMJ authority. The only ability to legally discipline anyone under UCMJ would & could only exist at CAP-USAF or possibly Air Staff (I'm not real clear on which). However I very much do think that you are 100% accountable for your actions 24/7, and if you behave in a manner not consistent with CAP officership in your private life, that should very much be grounds for your removal, and I do wish there were more teeth on the back end of that process. Apply that standard equally from national commander to the newest SM & I think things get better in a hurry. I'm not saying that's the best way to do things, and again don't want to bog down the system, but I got no issues with UCMJ & very much think CAP members should live up to at least those standards.

We can do that with out being under the UCMJ.  Saying that the UCMJ authority only rests with CAP-USASF or Air Staff does nothing at all.  In order for the UCMJ (specifically Article 15) to work is to put it in the hands of the lowest echelon possible.  You can't be going up to the Air Staff every time a cadet or SM is late for a show time or mouths off to his superior.

Also the UCMJ would put a lot of power in the hands of CAP leadership.  This site for instance could be legally shut down by CAP and everyone who posts here could get article 15's for disrespect.

Should we follow the principles of the UCMJ?  Sure.  Should we be held to high standards and kicked out if we fail to meet them?  Sure.  But do we really want to give UCMJ powers to our CAP leadership?  This is real power...federal conviction....going to jail.....taking money from your pay check....sort of power.  That really scares me.

I understand the desire to put UCMJ at the lowest echelon (Sq, not Flight), and if something like that were to be the case I'd revive my argument that local units be redesignated flights & all the other good reasons that come with that. The law is that civilians cannot excercise UCMJ authority over anyone, period. It doesn't matter that our whole chain of command are civilians. The power to bring charges, by law, reverts to the next higher echelon till that commander is an AF officer. That means the LOWEST it could legally get would be the Region LO, but I'm not positive on how CAP-USAF is defined. I believe the way it is written now that CAP-USAF is an advisory & oversight org w/o direct authority over CAP & that the direct authority that the AF hold exists at A3/SHA. I really don't know on that one though.

The reason I make that point though is it means you have to do something pretty dang serious to have the charges rise all that way & be formally filed. You commit adultry for instance, the CAP IG investigates, recommends charges to the Gp CC, Wg CC, Reg CC, Nat CC... at any poiont in this process they can address it administratively (meaning our existing disciplinary system resulting in you being thrown out)... only when it is the most extreme of situations could that charge make it all the way thru the process to the AF for formal charges (meaning almost impossible).

The big thing that would come from this is AF investigators would have authority to look at situations in CAP. And that all members including leadership would be bound by the same rules, which are basically fair.

I would absolutely agree with you though that this isn't strictly necessary. What we should do instead is look to UCMJ as a guide, and from it write our own CAP-CMJ, which equate more to ethics rules & spell out penalties for offenses, while better defining penalties & expanding the range of options available.

[lordmonar]

The law is that civilians cannot excercise UCMJ authority over anyone, period. It doesn't matter that our whole chain of command are civilians.

Well that's the point.....not only do civilians never exercise UCMJ authority over military....the military does not exercise UCMJ over civialians (except in very limited circumstances)...hence if CAP were to come under the UCMJ we would no longer be civilians....ergo....your argument about only CAP-USAF having authority would is null.

[Hoser]

CAP under the Uninformed Code of Military Injustice? That is the most absurd idea I have heard in ages. This isn't the military. This is a volunteer organization. If I wanted to be under the UCMJ I'd have stayed in the military

[DNall]

The law is that civilians cannot excercise UCMJ authority over anyone, period. It doesn't matter that our whole chain of command are civilians.

Well that's the point.....not only do civilians never exercise UCMJ authority over military....the military does not exercise UCMJ over civialians (except in very limited circumstances)...hence if CAP were to come under the UCMJ we would no longer be civilians....ergo....your argument about only CAP-USAF having authority would is null.

That's the gray area we're talking about right there. The very limited circumstances under which CAP is acting on military orders to perform a military mission & using military provided resources to do it. That is pretty clearly within the bounds. However, it doesn't make any of us officers capable of being delegated UCMJ authority over other civilians. That authority cannot be delegated even to a civilian director of an AF agency (even if that were by some crazy chance happen to be a MAJCOM) sitting in a postion that if it were held by a military officer they would have that authority.  There's just no circumstance under which CAP members could bring UCMJ charges against each other, ever. It would always have to be a recommendation that CAP-USAF or higher would have to look at, do their own investigation, and choose to proceed of their own accord.

The real issue is we can debate if & to what extent CAP members are bound by UCMJ under very narrow circumstances like on AFAM, but it seems like it doesn't apply the rest of the time. That being the case, I'd say again that we should look to a lot (not necessarily all) of the UCMJ for guidance in writting our own code of ethics & behavior with spelled out penalties & such, and tie that in with other federal laws to the best of our ability.

[RiverAux]

The real issue is we can debate if & to what extent CAP members are bound by UCMJ under very narrow circumstances like on AFAM, but it seems like it doesn't apply the rest of the time.

No, it doesn't apply any of the time under any circumstances.

[lordmonar]

Dnall....have you ever tired to cut military orders?  It takes a lot longer than most SAR missions last.

It would not matter because no one would ever be on orders long enough to actually come under the UCMJ and the additional paperwork would do nothing to increase accountablity...nor would it help with military investigations into our daily operations because we would not be under them at that time.

Like I said we would have to be under the UCMJ 24/7...not just for the duration of the AF Assigned mission.

Also those limited circumstances I mentioned is if you are actually integrated with a military unit in the field.  As far as I know it has never been involked in the last 20 years or so.

[DNall]

The point made earlier is US treaty seems to require the US to bind certain people under certain circumstances to UCMJ, and CAP would fit those circumstances in some instances. A military prosecutor could make that case I think fairly successfuly in court given the right case, but you'd have to really piss them off pretty bad to find out.

There's some cases where CAP officers have been charged with federal crimes for things done as CAP officers, but never under UCMJ. Why would you try to make the extra layer of complexity when they've done something you can convict on w/o it.

I understand... the only benefit I can see from being under UCMJ would in fact come from it being in force 24/7. That is clearly not the case now, and it would take some serious changes that aren't going to happen to make it the case.

This is why I'm saying the better idea is to look at UCMJ (and some DoD regs) as a guide in writing a code of conduct, behavior, & ethics. And in doing that I'd take the opportunity to spell out right under the rule when the stated behavior is also a violation of federal law (other than UCMJ) and that it be mandatory for those cases to be referred for prosecution in addition to the CAP disciplinary system (which also needs a lot of work).

Opening it up to AF investigators & brining everyone in CAP under the same rules regardless of grade or position would be a good thing... well really it'd be a massive pain in the butt, but it'd set the ethics issues right or at least make it less flagrant. I think you'd find general support from membership to bring CAP to heel under AF governance... again a different issue, but I think that may be part of the motivation behind this thought process.

[lordmonar]

Well let me tell you how it is overseas.  U.S. Civilians are not under the UCMJ and not under U.S. laws....depending on the Status of Forces Agreement (SOFA) it details who gets jurisdiction over a criminal.

The UCMJ does not normally...in peace time...apply to civilains.  DoD contractors, GS Employees, NAF Employees, Local Hires or SOFA Dependants.

All the military can do is turn over criminals over to the local police for prosecution.  In japan and Germany the local police would not normally touch a crime committed on base.  So I have seen civilians and dependants get caught red handed stealing tens of thousands of dollars and get off scott free....the just got sent back to the states. 

The limited circumstances where civilians come under the UCMJ is where they are in the field with a combatant unit.

Could a military prosecutor maybe try to apply this to us?  Sure....but I highly doubt any military judge would ever let it fly....not to mention the ACLU.

In the mean time....who pays for the investigation?  Who pays for the defense attorney?  Who pays for the pre-trial confinement?  Who pays for the witnesses, and court board?

Just moving us under the UCMJ would entail more money than we currently have in our budget just to set up the infrastructure to support it.  There would have to be a CAP JAG working full time and Area Defense Counselors for the defense.  A military (and he would have to be CAP) judge (or judges) to run a circuit and sit on all these trials.

Then it would make all active duty enlisted military personnel ineligible for CAP membership because it would put us into a split enlisted/officer status.