Should CAP Officers be subject to the UCMJ?

[RiverAux]

In fact, I'd say that the vast majority of situations in which the UCMJ would be helpful would be OUTSIDE of AFAMs.  The missions are almost always the most professionally conducted activity that we do in CAP.  However, where the UCMJ could come in handy would be in enforcing discipline in regards to the administration of CAP itself. 

Say, Squadron Commander you better get that report to me by tomorrow, OR ELSE!

However, even then the benefits would be so minor that the effort that would have to be expended to make it happen in the first place would be all out of proportion to the results. 

[arajca]

That being said (Union Steward hat off) how many employers would want to deal with the bad press of firing a volunteer? Few if any I would think.

More than you think. When I first joined the fire department (all volunteer) ALL fire/rescue/EMS was volunteer. There were several employers (major resorts) who established a policy of "if you leave work to run a call, you don't have a job afterward." Sound like a volunteer friendly employer? Again, ALL fire/rescue/EMS was ALL volunteer. They also expected you to go off the clock to provide your fire/rescue/EMS services to the resort if the resort needed them. (Yea, right.)

Also groups like DMAT who are under the code pay people during deployments.

Which takes them out of the volunteer category that CAP is in and puts them into Paid-On-Call like some volunteer fire dept's. Also, I don't recall DMAT/USAR/DMORT/etc being under UCMJ. They usually fall under FEMA, which doe not fall under UCMJ.

Organizational respect is earned, not granted by legal codes.

True

We earned a bunch with Columbia and Katrina

Not as much as you might think, outside of the affected areas.

Being under the Uniform code is a luxury. It may be one we can't afford.

It's not a luxury, but it is something we cannot afford.

[sardak]

Employment - job protection has nothing to do with the UCMJ.  Re-employment protection for members of the uniformed services falls under the

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Title 38, United States Code CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES
which is the responsibility of the US Department of Labor.

The term 'uniformed services' means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency.

Intermittent employees of the National Disaster Medical System (NDMS) are also considered to be performing "service in the uniformed services" and protected by USERRA when activated to provide assistance in a public health emergency, to be present when there is a risk of a public health emergency, or when participating in authorized training. See 20 CFR Part 1002.5(0).

So if CAP is interested in job protection (good idea) it needs to talk with the DOL, not DOD.

Mike

[lordmonar]

The reason I even bring this up is that it seems that most SDFs, who are arguably less military then CAP fall under their State UCMJ. case in point the Texas State Guard (SDF) falls under the TCMJ (Texas Code of Military Justice) to what extent they are accountable to it I don't know. But they are a volunteer organization much the same as CAP is but with almost no budget.

 My point is that PERHAPS having us fall under the UCMJ to some extent while performing AFAMs might bring some very needed credibility to us from the AF. I think it would be problamatic is some areas but CAP needs something that ties us in closer to the AF, and perhaps having limited jurisdiction under the UCMJ might help add that extra credibility we need. How much more professional does it make us look to people if they knew we fell under the UCMJ even to a degree while performing AFAMs. As it is now, we have no legal obligation to perform to a set standard. That's part of our problem. We are a volunteer organization that wants to ACT like a bunch of volunteers and not true emergency services responders. Thats why some states do not recognize CAP ground teams or from what I have heard have even made them illegal.

The difference is that the SDF guys are ALWAYS under the state UCMJ.  Meaning if they do not respond to the call...the state troopers can come out and touch them.

Being under the UCMJ only when you are on an AFAM does not make sense.  When does it apply?  When you sign into the mission base?  The UCMJ is not something you can turn off and on anytime you want to.

Article 2...already allows the military to pull us under the UCMJ in times of war...but if that ever happened there would be a full time draft going on a the same time.  But to turn it on and off during AFAMs would not work.  You would have to issue written orders to each and every member who was participating BEFORE they arrived and process "discharge" paperwork as they left to insure that everyone know exactly when the UCMJ applies and is turned off.

[sardak]

How much more professional does it make us look to people if they knew we fell under the UCMJ even to a degree while performing AFAMs.

None.  CAP's primary role, even on AFAMs, is interfacing with civilians who don't know or care about the UCMJ.  The UCMJ has nothing to do with professionalism.  Using the UCMJ in the belief that it would force CAP to become "professional" is wrong.

As it is now, we have no legal obligation to perform to a set standard. That's part of our problem. We are a volunteer organization that wants to ACT like a bunch of volunteers and not true emergency services responders.

So what does that say about all the other volunteer emergency services organizations that have far fewer regs than CAP, and in no way would ever fall under the UCMJ?

If CAP is only acting and isn't professional, as is implied, that is a problem of leadership and management.  Putting CAP under the UCMJ would not solve that problem, but in fact would quite possibly make it worse, because the poor managers and leaders would have one more, powerful, tool to misuse (the beatings will continue until morale improves).  Having been on both sides of the aisle in disciplinary and 2b proceedings involving CAP members, the thought of some people yielding the UCMJ is scary.   This is an organization of civilian volunteers.

Thats why some states do not recognize CAP ground teams or from what I have heard have even made them illegal.

I'm not sure how CAP ground teams could be made illegal, but not using them or recognizing them in some areas, and even threatening to have them arrested, are indeed real issues.  I've been in all these situations in the CAP and non-CAP roles.  The root causes of these issues go well beyond this thread, into the very structure of the organization.  The proposed solution is not the answer.

Mike

[flyerthom]

That being said (Union Steward hat off) how many employers would want to deal with the bad press of firing a volunteer? Few if any I would think.

More than you think. When I first joined the fire department (all volunteer) ALL fire/rescue/EMS was volunteer. There were several employers (major resorts) who established a policy of "if you leave work to run a call, you don't have a job afterward." Sound like a volunteer friendly employer? Again, ALL fire/rescue/EMS was ALL volunteer. They also expected you to go off the clock to provide your fire/rescue/EMS services to the resort if the resort needed them. (Yea, right.)

Also groups like DMAT who are under the code pay people during deployments.

Which takes them out of the volunteer category that CAP is in and puts them into Paid-On-Call like some volunteer fire dept's. Also, I don't recall DMAT/USAR/DMORT/etc being under UCMJ. They usually fall under FEMA, which doe not fall under UCMJ.

Organizational respect is earned, not granted by legal codes.

True

We earned a bunch with Columbia and Katrina

Not as much as you might think, outside of the affected areas.

Being under the Uniform code is a luxury. It may be one we can't afford.

It's not a luxury, but it is something we cannot afford.

I was recruited by the local DMAT team. They are under Public Health and are covered by the same job protections as the Guard etc. I filled out an ap but never filed it.

[SAR-EMT1]

Thats why some states do not recognize CAP ground teams or from what I have heard have even made them illegal.




I'm not sure how CAP ground teams could be made illegal, but not using them or recognizing them in some areas, and even threatening to have them arrested, are indeed real issues.  I've been in all these situations in the CAP and non-CAP roles. 

Mike






I would SERIOUSLY be interested to hear about this. A CAP GT being arrested? AFRCC would have the PD involved at Leavenworth making gravel.

[arajca]

I'm not sure how CAP ground teams could be made illegal, but not using them or recognizing them in some areas, and even threatening to have them arrested, are indeed real issues.  I've been in all these situations in the CAP and non-CAP roles. 

Mike

I would SERIOUSLY be interested to hear about this. A CAP GT being arrested? AFRCC would have the PD involved at Leavenworth making gravel.

No, they wouldn't. CAP ground teams have no rights or privileges beyond that of ordinary citizens - unless otherwise specified in state law. Trespassing is still a crime. The fact that you are on a mission is irrelevant. Also, if the local law enforcement folks say go away, you go away. Simple. If you do not, you can be arrested. In some states, CAP is recognized as an emergency agency, while in others it is not.

[lordmonar]

The one major reason is for employment. Groups like DMAT are covered like this and therefore employers must hold their jobs for them and release them for duty. CAP is not covered therefore the employer is not required to release you for duty and hold your job.  Many would simply because of the bad PR if CAP volunteers  weren't released for something like Katrina. But they are not so required. If we were under the Uniform Code we would acquire those protections.

Even those under the UCMJ do not really get very good protection.  The federal government has not been very......vigorous....in enforcing the laws that are supposed to protect the Guard and Reserves....in fact there are instances where the federal government (including the DoD!) have violated the law!

It would be easier and better to pass specific legislation to get CAP volunteer (and other volunteer ES organizations) job protection.

The UCMJ is not the way to go.  It does not turn on and off very well.  If it only works when you are assigned to and AF Mission....and you only get assigned to those missions when you volunteer for them....it is pretty hard to say we need this protection because of the UCMJ.  The UCMJ (or let's call it the CAPCMJ) would have to be in force 24/7.  It would take away all of your Constitutional Rights!

Thats right....each and every solder, airman, sailor and marine has not Constitutional rights under the UCMJ.

Many of our rights are mirrored in the the UCMJ but not all of them.  Freedom of Speech, movement, due process, self incrimination, sexual preferences, assembly, association, the are all gone.

Do you really want to give some of our squadron commanders UCMJ authority?  Look how well we do with 2b actions.

[Major_Chuck]

No.  Nix.  Nein. 

CAP Officers can be held accountable under established civilian laws depending upon what ever the case may be.

UCMJ probably has more safeguard protections built into in then civil laws but doesn't apply to us volunteers.

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.

[sardak]

I'm not sure how CAP ground teams could be made illegal, but not using them or recognizing them in some areas, and even threatening to have them arrested, are indeed real issues.  I've been in all these situations in the CAP and non-CAP roles. 

Mike

I would SERIOUSLY be interested to hear about this. A CAP GT being arrested? AFRCC would have the PD involved at Leavenworth making gravel.

No, they wouldn't. CAP ground teams have no rights or privileges beyond that of ordinary citizens - unless otherwise specified in state law. Trespassing is still a crime. The fact that you are on a mission is irrelevant. Also, if the local law enforcement folks say go away, you go away. Simple. If you do not, you can be arrested. In some states, CAP is recognized as an emergency agency, while in others it is not.

Taking Andrew's correct comments one step higher, 

In the normal state of affairs in the US, there is nothing at the federal level that would allow the  AFRCC or USAF to even try to "send a local LEO to Leavenworth" for arresting or threatening to arrest a CAP GT.

The belief that CAP has some special authority while on missions is not uncommon within CAP and is not unique to ground teams.  There are ICs, DO/DOSs and commanders who believe this, and as a result, they put CAP forces in situations  that lead to problems.  Ground/UDF teams are most often involved because they are the CAP representatives who most frequently come face-to-face with other emergency services agencies and the public.

In the cases to which I referred (multiple situations in two large wings), the CAP GT in some manner failed to heed the order of a LEO.  Bad thing to do.  Even when the GT was in the right, the GTL didn't handle the situation properly.  Instead of doing as told, or backing off and notifying the IC, the GTL either ignored the LEO or got in his/her face.  This happened because of the personality of the GTL or because the GTL believed in the "special authority" or because of some combination of the two.

Mike

[ZigZag911]

The belief that CAP has some special authority while on missions is not uncommon within CAP and is not unique to ground teams.  There are ICs, DO/DOSs and commanders who believe this, and as a result, they put CAP forces in situations  that lead to problems.  Ground/UDF teams are most often involved because they are the CAP representatives who most frequently come face-to-face with other emergency services agencies and the public.

You are absolutely correct....further, it is a smart practice for an IC to give local LE a 'heads up' when sending a GT into their jurisdiction....especially if the mission is an ELT hunt in the dead of night.....forewarning the cops or sherriff that a group of strangers  wearing BDUs and carrying techno-gizmos will be meandering about their turf is always a good idea.

[ddelaney103]

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.

[DNall]

Let me try to pick up some issues that were mentioned...

CAP is bound to a degree. That's established in international law, from which the UCMJ draws those provisions. It is confusing to what degree & in what circumstances it exists, and I don't don't know the answers either. I appreciate the issue, but I'm also in the camp of not seeing what is gained by clearing this up with policy letters or explicit changes in the law. It may be there's some good points, but I'm not seeing it yet.

I am a CAP Capt.....and a USAF MSgt.....what happens to me when I order a CAP 2nd Lt who is also a USAF 2nd Lt around?

Nothing. UCMJ authority exists in unit command positions above a certain echelon & has nothing to do with grade. Civilians can command such units (as directors) even including MAJCOMs, but in that case the UCMJ authority reverts to the next echelon. The only time the UCMJ addresses grade is with regard to obeying the lawful orders of those appointed over you. As a mil NCO you know & have stated before how there are appropriate circumstances where you can & should ignore a Col outside your command in favor of a Capt from your unit.

As CAP members (on orders) we are considered cvilian emplyees of the AF, and in that capacity during those circumstances can be appointed above or below any other mil or civilian employee (think ICS) the govt should determine. The ability to excercise UCMJ authority reverts to either CAP-USAF or A3/SHA (I don't know which). There are no circumstances under which a civilian employee (or CAP member) can bring charges against each other or others. NOTE: Congressionally confirmed civilians are a different story.

[SAR-EMT1]

Ok.. taking this a bit farther... have there EVER been any situations where a CAP group was put under the direct command of RealMilitary either in the field or elsewhere?
Or vice versa? Military under command of a CAP IC or somesuch?
- For the sake of brevity I'll specify my questions to the POST WWII period.

[lordmonar]

Ok.. taking this a bit farther... have there EVER been any situations where a CAP group was put under the direct command of RealMilitary either in the field or elsewhere?
Or vice versa? Military under command of a CAP IC or somesuch?
- For the sake of brevity I'll specify my questions to the POST WWII period.

Well back in the day....the CAP National Command was a serving active duty officer and our chain of command was directly under USAF-CAP.  I don't know when this changed...problably in the 1950's when the UCMJ was adopted.

[RogueLeader]

Ok.. taking this a bit farther... have there EVER been any situations where a CAP group was put under the direct command of RealMilitary either in the field or elsewhere?
Or vice versa? Military under command of a CAP IC or somesuch?
- For the sake of brevity I'll specify my questions to the POST WWII period.

Well back in the day....the CAP National Command was a serving active duty officer and our chain of command was directly under USAF-CAP.  I don't know when this changed...problably in the 1950's when the UCMJ was adopted.

Too bad we can't have an Active Duty AFD MG NC or even a Retired MG

[DNall]

Too bad we can't have an Active Duty AFD MG NC or even a Retired MG

No kidding... it was a cost savings thing.

Well back in the day....the CAP National Command was a serving active duty officer and our chain of command was directly under USAF-CAP.  I don't know when this changed...problably in the 1950's when the UCMJ was adopted.

Actually it was a lot later then that. Again, cost savings, not UCMJ. There are some newer rules that prevent it though. Ethics rules mainly. CAP is treated as a contractor in the relationship rather than a civilian agency reporting to the AF, as it should be.


CAP is regularly under AF orders. That's all AFAMs. AFRCC as an example... the CAP-IC works for a SAR Controller (who is probably a SrA working under a duty officer Capt). Any mission directed by the AF, once you sign in you are legally a uniformed combatant under military orders. Obviously the military is also bound by some restrictions on how we can be legally used, but you are at that point, debatablly at least, bound to some degree by UCMJ. It's the same debate about contractors in a combat zone under the command of a military unit, and trust me when I say there is no motivation to clear up the rules on that one. If you want more direct command situations... it's jus tlike joint ICS. We've been in joint missions w/ AF & CG where we've been under their command on a field level. I've been on those missions & taken orders from those appointed over me.

[Chaplaindon]

Dennis,

Although you are correct on most of what you've just written, I question this statement regarding member status on AFAMs, "once you sign in you are legally a uniformed combatant under military orders."

I do not believe that CAP members, under orders or not, are ever considered "combatants." I know that during WWII CAP personnel were issued Geneva Convention approved ID cards listing them as "Belligerents" to prevent any captured from being shot as spies.

I would like to see the citation from the USC to support that assertion.

[DNall]

The geneva conventions state any individual regardless of status who is acting on orders from a military force or willfully accompanying them in the field is considered a combatant and can be legally targeted. That is particularly if they possess the capability to relay information potentially harmful to allied forces. CAP is further covered as a "paramilitary or irregular" force.

The statement in title 10 that orders the SAF to use CAP for non-combat missions of the AF is there to legally restrict the SAF from putting CAP in combat jobs, not that it would ever happen but there needed to be a legal basis restricting it. You'll find the exact same interpretation applies to CGAux, and they are issued Geneva convention cards because they are potentially at sea where they could potentially meet foreign forces. CAP doesn't get such cards because they would only apply under Aux status & being inland we don't need them. You can debate if border flying creates a potential need or not, that would be up to AF.

You can ask Kach about this stuff, he's much more knowledgable than I am.