Verbal orders vs regulations

[RiverAux]

It has been asserted in another thread that the National Commander can issue a verbal order that directly contradicts CAP regulations.  Rather than clutter up the other thread, I thought this deserved one of its own.

I believe that this is totally bogus.  Unless a regulation specifically grants the use of discretion by someone in the CAP Chain of Command (for example, giving a squadron commander a choice as to uniform of the day for that squadron's meetings), no one in CAP has the authority to tell you to do it differently. 

So, someone please show me where anyone has the general authority to issue a verbal order to do something that violates CAP regulations? 

[lordmonar]

Well on further research...he does not actually have that authority except in emergency situations.

However.

In a military context...(which CAP is not but we like to think it is) the commander is not subject to his own orders and regulations. 

Now CAP is also a corporation and in such the Constitution and Bylaws say that the NB will ratify any regulations.  With that said...I would say that any order the National Commander issued would be with in his powers UNLESS it was countermanded by the NB.  Even if his order was contradicted a regulation.

If we did not operate on this level of thinking, then the National Commander would have no power at all.  He could not issue any order with out the NB's approval.

So...MG Pineda could say "wear those ribbons on your uniform"...and that would be a proper order until the next NB when they vote it down or approve it.

[DNall]

So...MG Pineda could say "wear those ribbons on your uniform"...and that would be a proper order until the next NB when they vote it down or approve it.

That's correct. A verbal order would have the same force of law as a written policy letter, meaning it would remain valid till the next NB meeting. It'd be nice to have such a thing in writing though given how fast we shed commanders these days.

In the military, a comapny commander cannot disregard regs to do things their way, a division commander can't even do that. CAP Wg CCs get a bit of latitude to write suplements, region & Nat CCs get progressively more latitude on that front. Ultimately though, all answer to the NB (it helps in seeing that structure to disregard the makeup of the NB). Then all of that CAP structure is governed by the BoG, who tends to do limited oversight only & leave the rest to the NB.

[RiverAux]

The National Commander can issue all sorts of orders that fall within the authority granted him by regulations.   There is more than enough room for him to run the organization without violating specific regulations of the NB.

Furthermore, I know that under no circumstances would I obey an order from anyone that clearly violated a CAP regulation since if something goes wrong, I'm not going to be covered by insurance.  

The only exceptions, from the CAP Constitution are:

3. The National Commander, upon declaration of a situation requiring immediate action due to a state of emergency or an unforeseen circumstance involving the preservation of life or property, may promulgate emergency regulations without the ratification of a majority vote of the National Board. Such emergency regulation shall remain in force unless revoked by a majority vote of the National Board.

What, you may ask, are the procedures for promulgating emergency regulations?  From CAPR 5-1:

4. Emergency Regulations.
a. General. Emergency regulations are regulations issued by the National Commander pursuant to Article XX paragraph 3 of the Constitution for which the National Commander declares the regulation to relate to a situation requiring immediate action due to a state of emergency or an unforeseen circumstance involving the preservation of life or property.
b. Procedures.
1) General. Emergency regulations are normally drafted by national staff to cover emergency situations not already covered by other regulations. Where there is a conflict between an emergency regulation and any other CAP
regulation, the provisions of the emergency regulation prevail. Unless the emergency regulation specifies an expiration date, an emergency regulation remains in existence until revoked by the Board of Governors or the National Board. If the National Board does not revoke an emergency regulation at its first meeting after the emergency regulation is effective, the emergency regulation shall be treated as a regular regulation.
2) Effective date. Emergency regulations become effective when issued by the National Commander. Normally, emergency regulations are sent to all members of the National Board by electronic mail and are posted on the NHQ web
site. No member will be penalized for failure to comply with an emergency regulation before it has been posted to the NHQ web site.
3) Emergency regulations that govern the conduct of the activities of CAP when it is performing its duties as a volunteer civilian auxiliary of the Air Force must be approved by CAP-USAF Commander prior to being issued by the
National Commander.
4) Publication. Emergency regulations shall be made available only in electronic form until after the first
National Board meeting following promulgation of the emergency regulation.

Nowhere in there do I see authority for the National Commander to issue a verbal order contradicting (in effect, changing) approved regulations.  It is somewhat vague as to what form  the change could take.  

Lets say there was an emergency situation requiring CAP aircraft to fly at 100' AGL, which is not allowed under current situations.  The National Commander would have to issue a writen emergency change to CAPR 60-1 and it very likely would have to be run by the AF first since this would probably be in relation to an AF mission (see para 3) above.  Since you can't be penalized for not following an emergency change until it is posted on the web, I don't see how a verbal order could count, since you couldn't be penalized for violating it but could still be penalized if you follow it (since there wasn't anything on the web).  

[lordmonar]

Of course in the military....a unit commander would have a lot of latitude as well.  A squadron commander could say "do such and such" even if it violated a regulation and it would be a legal order.  He would be answerable to his commander.  The order would stand until it was countermanded by higher authority.  

That is the catch 22 of the UCMJ.  All orders are considered lawful until proven otherwise...but we are responsible for our action even if we are ordered to do so.

Ergo....if a Platoon Commander told you to shoot up a school....and you refused...and he shot you......the platoon commander may be in trouble for ordering you to shoot up a school...not for shooting you....even if you were right to refuse the order.

Scary yes!?

So...let's talk CAP.  A squadron commander may see a need to do something and issue an order that is contrary to a regulation.  You know the regs 100% and refuse to do so.  The commander may 2b for failing to follow an order and he would be within his rights to do so.  The wing king could back up that 2b if he also backed up the order and it would then go to the NB for final resolution (if you pushed it).  Again that is why we have commanders.

We use their judgment to decide when and where we violate orders.  And they only have to justify their actions to the next level in the chain of command not to lower levels.

That is why it makes no sense for us to worry about what other units/wings/regions are doing with 39-1.  The CAWG wing king does not answer to us.  He answers to PCR and NHQ and no one else.  If you are in CAWG you have a right and responsibility to voice your concerns up your chain of command but you only have a limited response to what action you can take.

If the order is not clearly illegal (in the Federal, State, Local sense not CAP sense) then you should refuse to obey.  But if it is only against regulations you should voice your concerns, report the situation to the appropriate authorities and then follow the order.

[lordmonar]

Yes, by the bylaws all regulations have to approved by the NB.  Except in those cases where it is an emergency.

However.  If we do not respond to the National Commander's verbal orders as if they were ratified then the National Commander has not power at all.

As far as being covered by insurance.....I think that in this case/in any case where a member of the BOG gave an order then they would insure that you were covered by insurance...or they themselves would be liable to you suing them into next week.

Just as you are required to follow the regs you are required to follow orders.  And nationals insurance coverage understand that.  And it would be nothing to convince a jury that you were following orders.

This does not extend to clearly illegal orders.  The national command may say you can fly at 100' AGL but the FAA may have something to say about it.  But if you were to fly at 100' AGL because MG Pineda told you to and then clipped a power line.  It is MG Pineda who will be in trouble with the insurance company not you.

Also in you quotes for CAPR 5-1....there is no clear definition of what an "emergency" is.  The constitution kind of spells it out.  So he could not say "wear your medals" but he certainly could say fly at 100' AGL if he felt it was and 'emergency".

But either side of that.

If the general told me to do something....and it did not break a law.  I would do it.  Sorry....that is just the way I am.  It is the way I would want my troops to be.  Anything otherwise would mean the national commander was just a mouth piece for the NB.

[RiverAux]

If we do not respond to the National Commander's verbal orders as if they were ratified then the National Commander has not power at all.

You're confusing day-to-day operational orders (hey, CAP Pilot, move that airplane from x to y) with orders that contradict regulations (hey, non-CAP member, please fly this CAP aircraft from X to Y.  Don't worry about not being in CAP, its ok because I said so despite 60-1).  I've got no problem with verbal orders for regular stuff that fall within the scope of the authority of the person issuing the orders.  If the National Commander wants all CAP planes moved to FL, he can certainly do so on his verbal authority, for example.  Thats different from ordering a CAP member to not wear his seatbelt while riding in a CAP van. 

I'm not one of the pessimistic ones on this board who thinks the worst of our high leadership, but I'm not going to trust that the person who issues a verbal order contrary to regulations that results in something bad happening will admit to giving that order.  I'm more than willing to fight to the end if they wanted to 2b for not following an order that went against regulations. 

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

You all are getting your metaphors mixed up.  You keep thinking of the National Commander as if he were a military commander.  He is not.  He is basicaly the CEO of a corporation.  The board of directors has selected him to lead day to day operations and has given him great latitude in many matters but the "corporate policy manual" implies that he can only change corporate policies in writing since an "employee" cannot be punished for violating them unless they have been published to the company web site. 

[JohnKachenmeister]

In the RealMilitary, commanders are given SOME latitude with respect to regulations.  Army regulations clearly outlaw cash "Unit funds" or "Flower funds" but the regulations for actually using OFFICIAL funds is so complex and involved, and EVERYBODY does it.  That way the commander can send flowers to the funeral of a unit member or a family member, he can spring for pizza at the end of an exercise, stuff like that.  When an inspection happens, you move the cash from the safe to the bottom drawer of your desk.

The same with ammunition.  Regulations prohibit reserve units from storing ammunition more than 30 days in advance of use.  If you need ammunition to issue to weapons guards for a unit movement, you have to order it about 6 months out.  It is WAY easier to keep 100 rounds of .45 ball in the safe.  Everybody does it, just don't get caught.  IG's know it, and never ask about it.

I'm not EVEN going to address the horse-trading in supplies that happens at the NCO level.

As to orders, an order that violates a regulation MAY be within the authority of a commander to issue.  You only are correct in refusing to obey orders that are ON THEIR FACE clearly illegal.  If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

1.  "There are unarmed women and children in that building.  I want you to kill all of them."  Clearly illegal.

2.  "Once we clear the headquarters area, put your boonie caps on."  NOT clearly illegal.  If I got called on the carpet for that one, I'd point out that I gave the order to protect troops from the heat and sun exposure.

I'd apply the same rule to CAP.  If the order is clearly illegal, (and I'd add for CAP, obviously dangerous) I'd respectfully decline and take my chances on a 2B.  Otherwise, I'd carry out the order.

But... Lord M, I respectfully disagree with you on one point.  IF you face civilian criminal charges for an action, and you were ordered to do the criminal act by MG TP, YOU are still liable.  Obedience to orders of a superior is not a defense, in civilian OR in military courts.

[RiverAux]

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

[DNall]

That's a pretty good explination of the abstract theory we're talking here.

Here's the deal though. This was a verbal order involving wear of an amry civilian decoration on CAP uniform. The deal is that the decoration IS authorized for wear by military personnel if earned while in military service, but NOT if earned as a civilian prior to entering service. I guess that would apply to say someone in the AFRes whose fulltime job was aa an Army civilian employee or something like that. In this case, there is an instance under which the decoration may be worn on Af uniform, but that instance would clearly exclude these people if they enlisted today. Is the award then authorized for these people to wear on CAP uniform?

The Nat CC provided an INTERPRETATION of regs that it was authorized. I think that interpretation is wrong, but that doesn't make it illegal. NB should calrify & have that passed to AF for approval. It's not that anyone would be against it, it's just that no one ever anticipated CAP members earning military or civil service decorations for CAP service. That same discussion could involve creating the AFI we talked about around here somewhere, the one that points out to AF personnel which military decorations are awardable to CAP personnel on AFAMs, and spells out the proceedure for nominating them, hopefully streamlined w/ more reasonable approval authorities.

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

He was talking about the military, but I'd sure like to discourage you from thinking that way about CAP. It's true that you are a civilian & free to quit anytime you please, but you've chosen to be in the position you are & have a moral obligation to follow all orders given to you even if you don't like them, and are civilly liable under most circumstances if you refuse a valid order or comply with an invalid order. You don't get off scott-free just cause you're a civilian volunteer. You're still legally expected to behave as professionally as the position of authority you assume, and if you fail in that, there are very serious consequences you shouldn't try to ignore just because you're not technically in the military or bound by the UCMJ. We have to make a concerted effort to remake ourselves as unpaid professionals.

[RiverAux]

I don't have a significant problem with a commander issuing an interpretation of a regulation, especially if it is unclear.  I deal with real-world regulations all the time and I fully understand that they often need interpretation.  However, if the regulation obviously, clearly, states to do one thing and you are instructed to do it differently, that is a different story in my book. 

I'm also not talking about orders I don't like.  I'm talking about an order that is in clear, direct contradiction of CAP regulations. 

And, lets broaden the discussion a bit.  For those who believe a verbal order can contradict regulations.....Just who has the authority to issue an order that violates a regulation?  Just the National Commander?  Any corporate officer (including Wing Commanders)?  What about a squadron commander?  Can a Lt. Col. Mission Pilot order a Major Mission Obsever to drop something out of a plane even though 60-1 says you can't? 

You see where I'm going here.  No where is anyone authorized (with the possible exception of the National Commander --I'll grant there may be some leeway there depending on how you "intrepret" his authority to issue emergency regulation changes) to do something that violates CAP regulations or order someone else to do so. 

[Major Carrales]

Hummm...interesting topic.

I some time go back to the US Constitution and US Government on issues like this.

We are not a nation of "men and women" but rather a nation of laws.  Thus, it is the Constitution which rules us.  That is why we can the President's "regime" (as a friend of mine like to say abliet in the pejoritive) an "administration."  The reason being that the President, as the Chief Executive, administers the Constitution and Statues of Congress to the people.

There are times when the Congress, the President and the Court go beyond for an interperation.  For example, the process of Judicial Review that allows the Supreme Court to declare a law UNCONSTITUTIONAL is not in the Constitution per se, rather it is the result of the Marshall Court's Marbury vs Madison.

Now...let us apply this to CAP...

The Regs are the "Supreme Law of CAP," the Executive is the National Commander, the Legislative is the various Boards and the Judicial must be the IG.  Thus, the ultimate word is the Regs.  That being said, the National Commander et al from time to time have to make judgement calls.

I would say that CAP-USAF and the USAF utlimately keep that power in check.

Comments?

[RiverAux]

At least in terms of regulations that affect CAP when it is serving as the AF Aux they could be a big check on things since emergency changes to regs in those areas have to be approved by them before they take effect. 

[Eclipse]

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

As this particular situation does NOT violate any CAP regs, it is a poor example.

[Eclipse]

So...let's talk CAP.  A squadron commander may see a need to do something and issue an order that is contrary to a regulation.  You know the regs 100% and refuse to do so.  The commander may 2b for failing to follow an order and he would be within his rights to do so.  The wing king could back up that 2b if he also backed up the order and it would then go to the NB for final resolution (if you pushed it).  Again that is why we have commanders.

It is also why we have IG's, and would likely never get farther than that. Any Squadron CC issuing "orders" contrary to regs, deserves everything he gets thrown at him, including a 2b his own way.

That is why it makes no sense for us to worry about what other units/wings/regions are doing with 39-1.  The CAWG wing king does not answer to us.  He answers to PCR and NHQ and no one else.  If you are in CAWG you have a right and responsibility to voice your concerns up your chain of command but you only have a limited response to what action you can take.

Except...that these Wing CC's believe their authority extends beyond their state - so what about situations where they are sending their members out of state, out of uniform?
(i.e. HMRS)  Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

This is an ongoing problem for those of us running events which attract national participation.

[ZigZag911]

Now...let us apply this to CAP...

The Regs are the "Supreme Law of CAP," the Executive is the National Commander, the Legislative is the various Boards and the Judicial must be the IG.  Thus, the ultimate word is the Regs.  That being said, the National Commander et al from time to time have to make judgment calls.


Comments?

You're right that the National CC (in fact, ALL commanders) have to use their judgment.

I don't think the IG is our "judicial branch"....IG function (regarding complaints, violation of regs, or other nefarious deeds) is limited to investigation and reporting....IG does not even get to make a recommendation anymore, if I read the most recent regs on the topic correctly.

We have no judiciary...and too little accountability, from wing CC on up.

[DNall]

I would say that CAP-USAF and the USAF utlimately keep that power in check.

Unlikely since they have no such authority & are legally restricted for even making suggestions in such areas. CAP-USAF only provides limited oversight of operational missions & use of appropriated funds. That's it. NHQ can & has many times flat out violated CAP regs to do anything they please & the AF can not ony do nothing about it, CAP-USAF literally cannot mention it. There have been AF IG investigations & all kinds of stuff spelling out the case law on all this. The AF has ZERO oversight authority over the administration of CAP. That's what teh BoG is for since 2000, and they've never done anything, despite being formed in the face of major problems.

I don't know what Wg CC anyone is concerned with. If you're talking about those dumb orange hats in Cali, encampment is a dif world, for that alone when going in their backyard I'd play by their rules. Otherwise, state in teh opplan that 39-1 will be enforced to  NATIONAL standards & people not in correct uniform will be asked to change or leave, as they will not be covered by insurance, & CAP will not take responsibility for stubborn morons.

Regs are not the ultimate law. The Law is the ultimate law. Title X, that kinda thing. AF regs come next on a range of issues & do not apply at all to other issues, all depending on varrious sections of the US Code. Then comes CAP regs. BoG has higest authority, followed by NB & NEC. The Nat CC has been delgated the power to enact temporary emergency measures (whcih should never include uniform items of any kind), that power could just as easily be delegated to NHQ staff & never involve the Nat CC, that might even be more appropriate actually. An interpretation on teh other hand is no big deal. NHQ staff already does that w/ no one double checking their work.

[Major Carrales]

Don't be incredulous...CAP regs are what govern CAP activities.

The regs say, and I will allow you the honor of looking it up, that CAP officers have no special dispensation before the law.  Thus, even according to CAP regs, one must follow the law.

We can safely assume that the Regs have been given a legal screening to insure they are in accordance with the LAW.

The AF REGS do not necessarily apply to CAP, neither does the UCMJ...thus, we should push for logical and clear regs.  They are what utlimately govern our actions in our CAP capacity.

Commanders have a certain latitude so long as that latitude is in the spirit of the reg...and not in that of the letter of it.  All other unethical use of a commander's authority is subject to the IG. 

[lordmonar]

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

As far as I know...there is no regulation forbidding me from driving any cadet home.  It may not be smart from a CYA point of view.  But there is no reg that says you can't do it.

You all are getting your metaphors mixed up.  You keep thinking of the National Commander as if he were a military commander.  He is not.  He is basically the CEO of a corporation.  The board of directors has selected him to lead day to day operations and has given him great latitude in many matters but the "corporate policy manual" implies that he can only change corporate policies in writing since an "employee" cannot be punished for violating them unless they have been published to the company web site.

Then why are you so wrapped up about following orders written or verbal?  If I fail to follow corporate policy I will be fired.  If I fail to do what my boss tells me to do I will get fired.  There is almost no difference.  The major difference is in the military I can get shot for not following orders and can spend some time in jail before I get fired.

I am not mixing my metaphores...I am treating CAP like a military organization.  Is that not what you want?  You keep saying the USAF thinks we are a joke.  Why do you think that?  Because CAP members keep swapping back and forth about how they think about CAP and its structure. 

[lordmonar]

But... Lord M, I respectfully disagree with you on one point.  IF you face civilian criminal charges for an action, and you were ordered to do the criminal act by MG TP, YOU are still liable.  Obedience to orders of a superior is not a defense, in civilian OR in military courts.

No, of course...I am sorry if gave you that idea....as you say...if the order is clearly illegal you must do all you can to refuse that order.  In the military you always have the out that they will shoot you if you don't do it.  That IS an acceptable defense in military and international courts.

[fyrfitrmedic]

 Kee-ripes.

I swear I'm gonna write a version of Godwin's Law that substitutes 'HMRS' for Naziism.

Let it go already - there's been enough whine about HMRS and bloody orange t-shirts to fill up the bloody Napa Valley.

[RiverAux]

I am treating CAP like a military organization.  Is that not what you want?  You keep saying the USAF thinks we are a joke.  Why do you think that?

I think you're mixing me up with someone else.  I've never said USAF thinks we're a joke.  I think 99% of the USAF has no clue who we are or what we do.

If I fail to follow corporate policy I will be fired.  If I fail to do what my boss tells me to do I will get fired.  There is almost no difference.

The difference is that the National Commander is not a military person.  He answers to various corporate boards and he only has limited authority to contradict policies (regulations) approved by them. 

Quote from: Major Carrales on Yesterday at 09:59:11 PM
"I would say that CAP-USAF and the USAF utlimately keep that power in check."


Unlikely since they have no such authority & are legally restricted for even making suggestions in such areas. CAP-USAF only provides limited oversight of operational missions & use of appropriated funds. That's it. NHQ can & has many times flat out violated CAP regs to do anything they please & the AF can not ony do nothing about it, CAP-USAF literally cannot mention it. There have been AF IG investigations & all kinds of stuff spelling out the case law on all this. The AF has ZERO oversight authority over the administration of CAP. That's what teh BoG is for since 2000, and they've never done anything, despite being formed in the face of major problems.

At least as far as doing anything as the AF Aux, CAP-USAF does have quite a bit of authority.  In regards to the topic of this thread, the National Commander couldn't issue an emergency change to CAPR 60-3 in regards to AFAM without CAP-USAF approval according to the regulation I previously quoted, and which I assume is based on other agreements with the AF.

[Eclipse]

Kee-ripes.

I swear I'm gonna write a version of Godwin's Law that substitutes 'HMRS' for Naziism.

Let it go already - there's been enough whine about HMRS and bloody orange t-shirts to fill up the bloody Napa Valley.

The day their performance outweighs their nonsense, I'll leave them alone.

In this cases, however, they are a legitimate example of a Wing CC causing problems all over the country with extra-regulatory uniform directives.

[JohnKachenmeister]

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

River:

There's nothing that says you HAVE to oney any order, legal or illegal, moral or immoral, fatening or healthy.  We are volunteers.  We can quit. 

I used the military as an example, from which we may derive some measure of guidance.

How's this example:

You are a ground team leader, working with an aircraft on a high-profile SAR mission.  Your current assignment is to search an area around a non-towered airport near where the target plane disappeared from radar.  Suddenly, your aircraft observer says that the search plane has to land immediately, and sets down at the airport.

You take your team over, and discover that the Mission Pilot has become ill, and could no longer fly the aircraft.  An ambulance is taking him away as you get to the airport.  The rest of the crew consists of an unrated scanner and a non-pilot observer.

You call the Mission Base, and explain the problem to the Incident Commander.  After an expletive delected or two, the IC tells you that there is a hot lead regarding a low-flying aircraft over some woods about 20 miles away, that matches the description of the target aircraft.  The IC says that there are no other close aircraft.

Then the IC drops a bomb on you. 

"Captain, you're a pilot, aren't you?  Can you turn command of your team over to your second-in-command and fly the CAP plane back to the base?"

You explain that you are FAA current, but your CAP Form 5 ride is 2 months expired.

The IC then says:  "I need that plane.  I have a qualified crew here ready to go, but no plane.  I have a plane there, but not a full crew.  I want you to bring it here."

What would YOU do?  The order is clearly in violation of 60-1.  You probably won't be covered by insurance in the event of a crash.  But on the other hand, there is a clear mission requirement, and you can fly the mission without violating any laws or FAA regulations.

[Ned]

Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

Pardon me? Where did that come from?

[DNall]

Don't be incredulous...CAP regs are what govern CAP activities.

The regs say, and I will allow you the honor of looking it up, that CAP officers have no special dispensation before the law.  Thus, even according to CAP regs, one must follow the law.

We can safely assume that the Regs have been given a legal screening to insure they are in accordance with the LAW.

The AF REGS do not necessarily apply to CAP, neither does the UCMJ...thus, we should push for logical and clear regs.  They are what utlimately govern our actions in our CAP capacity.

Commanders have a certain latitude so long as that latitude is in the spirit of the reg...and not in that of the letter of it.  All other unethical use of a commander's authority is subject to the IG. 

Of course CAP regs govern CAP activities, as does the underlying law, both the regular law & the specific sections governing CAP. There is NO screening to ensure CAP regs follow the law, certainly not that they comply with state laws. Right now they have a restriction on medical services. If one of your GTMs is a doctor & they provide anything beyond basic first aid, they WILL be kicked out of CAP cause that's the orders & we got no insurance to cover them. Yet, in Texas & most other states, that same doctor would be required by law to stop & render aid to the extent of their training, and if they refuse (citing CAP orders or not) they will lose their license & be civilly AND criminally liable. Don't assume CAP has it together, that's just not the case.

You have to follow the law, and whatever the sections of US oir state law that govern CAP say, THEN you can look at regs, THEN where regs are unclear you can count on interpretations from people with teh authority to do so, and in extreme cases there will be temporary written or verbal changes by people that have that authority. Of course there is a little lattitude. I'm not about to follow a stupid rule when it clearly creates a safety problem. It's not that hard to figure out right from wrong in the world, & in this case we're given a whole book to help spell it out for us. Just do your best, try not to stretch the limits, and ask for help if you need it. Pretty easy.

[Major Carrales]

What is your point other than contention? 

Point is the LAW must be followed. 

This discuss concerns itself only within CAP structures of activities and how much latitude a commander has.  If a commander orders you to shot someone...that is wrong.  If you do pull the trigger you are on your own, the murder will be your undoing.  The crime will only be attached to the Commander as an accomplice.

This thread, however, is aimed at a Commander's mobility and command within CAP structures. 

[DNall]

No it's not. It started out talking about the nat CC's ability to modify regs on a word to allow wear of uniform items. YOU brodened it to talk about the constitution & underlying law. Others specified the military way of doing things & how CAP differs from that in a techincal legal sense & how that dif is tempered by a moral obligation. I'm not being contetious at all.

I stated each time that commanders have latitude to teh extent they have legal authority to modify those rules. In other words, the Nat CC can change any reg at any time verbally or in writting if it relates to health/safety; a Wg (or reg) CC can temporarily allow VERY small modifications within the range that have been approved by NHQ previously, but otherwise needs their consent. A Sq CC does not have the latitude to tell people it's informally okay to wear a dif hat at Sq meetings, because the Sq CC does not have the authority to fomally modify that reg. The Sq CC does have the authority to say cadets will stay out of this room, cause that's not covered in regs & only effects that individuals jurisdiction of command.

[Major Carrales]

No it's not. It started out talking about the nat CC's ability to modify regs on a word to allow wear of uniform items. YOU brodened it to talk about the constitution & underlying law. Others specified the military way of doing things & how CAP differs from that in a techincal legal sense & how that dif is tempered by a moral obligation. I'm not being contetious at all.

I stated each time that commanders have latitude to teh extent they have legal authority to modify those rules. In other words, the Nat CC can change any reg at any time verbally or in writting if it relates to health/safety; a Wg (or reg) CC can temporarily allow VERY small modifications within the range that have been approved by NHQ previously, but otherwise needs their consent. A Sq CC does not have the latitude to tell people it's informally okay to wear a dif hat at Sq meetings, because the Sq CC does not have the authority to fomally modify that reg. The Sq CC does have the authority to say cadets will stay out of this room, cause that's not covered in regs & only effects that individuals jurisdiction of command.

I brought up the Constitution to parallel how things might work in CAP as an example to illumanate how a person might interpret the regs but how the regs are the "Supreme Law of how CAP works." 

The SQ CC can set uniform(s) of the day and the like.

As an aside, we often "speculate" on these forum and then fool ourselves into thinking those "specuations" are "truths."  That is what happens in the tread like this one.

Obviously, someone has a problem with something and then manifests a thread like this to see if they can get "the general will."

The "General Will," as defined by people like Jean Jacques Rousseau is a fine way to run Switzerland...but a poor way to run the Civil Air Patrol.  Fact is, no matter how swaying your points might be, imagined or genuine, they still fall to the regs.

Now, the regs in a vacuum too can create "dangerous" interptations.  That is, in fact, the crux of this thread.

[BillB]

One of the problems of a verbal order is, how long is it valid for? Also if a vebal order is questionable as to validity and made impossable under normal Squadron operating conditions.
While a Commander legally can give a verbal order, is it valid for six months without being put into writing?

[Major Carrales]

One of the problems of a verbal order is, how long is it valid for? Also if a vebal order is questionable as to validity and made impossable under normal Squadron operating conditions.
While a Commander legally can give a verbal order, is it valid for six months without being put into writing?

I owuld say that verbal orders are precarious and best and invalid to a degree at worse.  If I want an order to stick, I'll write it out. 

Why?

Documentation.

Suppose I issue a verbal order that no one else heard but one Officer.  Hummmm....sounds like "trees falling in the forest."

Then there is the issue BillB brings up...standing order?

[fyrfitrmedic]

Kee-ripes.

I swear I'm gonna write a version of Godwin's Law that substitutes 'HMRS' for Naziism.

Let it go already - there's been enough whine about HMRS and bloody orange t-shirts to fill up the bloody Napa Valley.

The day their performance outweighs their nonsense, I'll leave them alone.

In this cases, however, they are a legitimate example of a Wing CC causing problems all over the country with extra-regulatory uniform directives.

C'mon, you can do better than that. Even your whinging on Capblog a year ago was better than that.

One of these days you're going to cite something concrete and incontrovertible re: PAWG and HMRS other than your 'the-color-of-orange' whinge and Hell will freeze over.

[RiverAux]

DNall, I started this thread and I know what I wanted to talk about --- who, if anybody in CAP can give an order that violates a CAP regulation?  Not about orders that violate a law and not about discretion given to specific commanders within existing CAP regulations. 

I have yet to see a citation in any CAP document (regulation, constitution, etc.) that gives anybody such discretion.  The closest thing I've found relates to emergency regulation changes and it pretty strongly implies that these have to be in writing and posted on the webpage in order to be enforced. 

To answer an earlier question, would I break a regulation in order to save a life?  If I thought it could be safely done, you bet your azz I would.  However, I wouldn't be doing it because someone "ordered" be to, I would be doing it as a voluntary individual choice (because, as pointed out earlier, CAP members don't "have" to do anything) and I would fully expect to be punished for it afterwards as should the person who gave the "order". 

Regarding the example I gave about driving in a car with a cadet with no other senior present...although this isn't an explicit regulation I consider it a violation of our duty under the cadet protection policy to avoid even the appearance of impropriety. 

[lordmonar]

DNall, I started this thread and I know what I wanted to talk about --- who, if anybody in CAP can give an order that violates a CAP regulation?  Not about orders that violate a law and not about discretion given to specific commanders within existing CAP regulations. 

I have yet to see a citation in any CAP document (regulation, constitution, etc.) that gives anybody such discretion.  The closest thing I've found relates to emergency regulation changes and it pretty strongly implies that these have to be in writing and posted on the webpage in order to be enforced. 

The discretion is implied in the mission statement of the commanders appointed over you.

It is that simple.

Yes everyone is supposed to follow the regulations....but there are situations that may not fit the regulations and that is why we appoint people to leadership positions.  They make the decisions and issue the orders.  You follow them (even if you think they violate a reg) at your peril.  The commander is weighing his duty to complete the mission and his duty to follow the regulations.  It is a judgment call every leader needs to be prepared to make.  When do you throw the BS flag to get the mission done. 

So...if we are talking real world getting the mission done sort of thing.  Every commander has some ability to countermand regulations.  He will have to justify that action to his superiors but not to his subordinates.  You may raise your objections...he may say "noted, proceed" and you carry on.  At that point it is his ass on the line not yours. (we are only talking regs here not laws).

Is this written anywhere?  NO.  Not even in the USAF will you find AFI 1-666 para 1.2.4 that says....In the following circumstance a commander may countermand written instructions.  You will not find that written because the whole point is that if you find your self in a gray area between Regs and Mission....you have to use your judgment and not a written instruction.  You will then get hid bound into what you can or cannot do and never get the mission done.

A commander can get fired for not following a regulations (just as anyone else can) but he can get fired quicker by failing to get his required mission done.

That is the high level leadership that CAP has consistently failed to teach (and the USAF too).  This level of leadership can almost never be taught out of a book.  Sometimes it can be passed on from an experienced mentor to a younger leader, but usually it has to be learned by doing.

[RiverAux]

Actually, if anyone follows this belief system it is a recipe for the stereotypical view of CAP leaders doing what they want despite the regulations. 

You may raise your objections...he may say "noted, proceed" and you carry on.  At that point it is his ass on the line not yours.

A CAP member can't use "I was just following orders" as an excuse.  As has been pointed out, you can't really order a CAP member to do anything.  Every CAP member makes an individual choice about following each and every "order" given to them.  If a CAP member decides to follow an order that contradicts regulations he is just as open to getting kicked out or not being covered by insurance, etc. as the person who gave it.  He also decided to do something that violated a regulation.  Now, if there was some gray area and the person giving the order was doing their best to interpret a regulation, maybe they're ok.  But if they decided to follow an order that clearly violated a regulation, they also voluntarily decided to break the regulations. 

[DNall]

DNall, I started this thread and I know what I wanted to talk about --- who, if anybody in CAP can give an order that violates a CAP regulation?  Not about orders that violate a law and not about discretion given to specific commanders within existing CAP regulations. 

I have yet to see a citation in any CAP document (regulation, constitution, etc.) that gives anybody such discretion.  The closest thing I've found relates to emergency regulation changes and it pretty strongly implies that these have to be in writing and posted on the webpage in order to be enforced. 

The discretion is implied in the mission statement of the commanders appointed over you.

It is that simple.

Yes everyone is supposed to follow the regulations....but there are situations that may not fit the regulations and that is why we appoint people to leadership positions.  They make the decisions and issue the orders.  You follow them (even if you think they violate a reg) at your peril.  The commander is weighing his duty to complete the mission and his duty to follow the regulations.  It is a judgment call every leader needs to be prepared to make.  When do you throw the BS flag to get the mission done. 

So...if we are talking real world getting the mission done sort of thing.  Every commander has some ability to countermand regulations.  He will have to justify that action to his superiors but not to his subordinates.  You may raise your objections...he may say "noted, proceed" and you carry on.  At that point it is his ass on the line not yours. (we are only talking regs here not laws).

Is this written anywhere?  NO.  Not even in the USAF will you find AFI 1-666 para 1.2.4 that says....In the following circumstance a commander may countermand written instructions.  You will not find that written because the whole point is that if you find your self in a gray area between Regs and Mission....you have to use your judgment and not a written instruction.  You will then get hid bound into what you can or cannot do and never get the mission done.

A commander can get fired for not following a regulations (just as anyone else can) but he can get fired quicker by failing to get his required mission done.

This is right.

There are VERY limited circumstances under which a commander can issue orders that contradict regs. One is when a higher law is on his side (ie Federal law, state law, AF regs in areas they have oversight, THEN CAP regs). A second case is when that commander has the authority to change/alter/supplement/etc a reg thru a formal proceedure, then they have a degree of latitude to do so informally (such as verbal orders) on a case by case or short term basis. And finally, there is a degree of latitude within your command to interpret broad or incomplete regs that not only leave themselves opme to interpretation but require it (so most CAP regs then).

Of course this contributes to CAP's image of peopel going off in their own direction & not following orders. It can be easily corrected by well thought out & thurough regs that don't leave a lot of room for movement, and by strong leadership that takes control of the situation & guides it to acceptable solutions. AF regs are better than ours, but they aren't spelled out as much as maybe ours should be, and that's cause they have a culture & trustworthy accountable leadership at most levels to keep things in the lines.

In CAP you do have to follow orders, and failing to do so is very much cause for permenant dismissal from the org. You volunteer for the org & are free to quit the org at any time. You are also free to accept or decline positions or missions. However, once you are in a position or on a mission, you do have to complete the orders given to you by the officers appointed over you, or you are & should be subject to disciplinary action up to & including a 2b. The only way that varries from the military is that you aren't bound by the UCMJ & you are free to drop your membership card on the table & resign from CAP if you disagree with orders you've been given.

That is the high level leadership that CAP has consistently failed to teach (and the USAF too).  This level of leadership can almost never be taught out of a book.  Sometimes it can be passed on from an experienced mentor to a younger leader, but usually it has to be learned by doing.

Leadership is caught, not taught.

I think that's what in-res ACSC & AWC are about, but I'm just going by what I've been told. In CAP we teach the material from OTS at RSC for Majors & LtCols Of course we don't teach upper level leadership. We bearly expect our most senior leaders with more than decade experience to function at entry level officer standards.

[Eclipse]

Kee-ripes.

I swear I'm gonna write a version of Godwin's Law that substitutes 'HMRS' for Naziism.

Let it go already - there's been enough whine about HMRS and bloody orange t-shirts to fill up the bloody Napa Valley.

The day their performance outweighs their nonsense, I'll leave them alone.

In this cases, however, they are a legitimate example of a Wing CC causing problems all over the country with extra-regulatory uniform directives.

C'mon, you can do better than that. Even your whinging on Capblog a year ago was better than that.

One of these days you're going to cite something concrete and incontrovertible re: PAWG and HMRS other than your 'the-color-of-orange' whinge and Hell will freeze over.

That's what I love about PAWG people - no matter how much evidence you
produce, they always >think< its about the uniform.

I couldn't care less about their orange t-shirts, and if they want to run around in white parade belts and call themselves "medics", whatever.

My issues are concrete, personally witnessed, and supported by documents, photographs, and AARs.

Despite being one of the best-funded, most "well-trained" Wings in CAP, when they actually were called to do something important, they couldn't even follow basic instructions, risked their own safety and the safety of the people they were there to help, and were ORDERED TO GO HOME.

What color t-shirts they were wearing doesn't seem too important in light of that, does it?

[fyrfitrmedic]

Kee-ripes.

I swear I'm gonna write a version of Godwin's Law that substitutes 'HMRS' for Naziism.

Let it go already - there's been enough whine about HMRS and bloody orange t-shirts to fill up the bloody Napa Valley.

The day their performance outweighs their nonsense, I'll leave them alone.

In this cases, however, they are a legitimate example of a Wing CC causing problems all over the country with extra-regulatory uniform directives.

C'mon, you can do better than that. Even your whinging on Capblog a year ago was better than that.

One of these days you're going to cite something concrete and incontrovertible re: PAWG and HMRS other than your 'the-color-of-orange' whinge and Hell will freeze over.

That's what I love about PAWG people - no matter how much evidence you
produce, they always >think< its about the uniform.

I couldn't care less about their orange t-shirts, and if they want to run around in white parade belts and call themselves "medics", whatever.

My issues are concrete, personally witnessed, and supported by documents, photographs, and AARs.

Despite being one of the best-funded, most "well-trained" Wings in CAP, when they actually were called to do something important, they couldn't even follow basic instructions, risked their own safety and the safety of the people they were there to help, and were ORDERED TO GO HOME.

What color t-shirts they were wearing doesn't seem too important in light of that, does it?

It's not about the uniform, it never was. It's about ignorant people spewing nonsense that always seems to start with references to uniform items. Whinge, whinge, whinge, and seldom anything of substance. I congratulate you in upholding that standard quite nicely.

If you and I are thinking of the same document, the one I read was at best poorly written and hardly met anything approaching any sort of acceptable standard of professional writing. If you can produce something that's not scurrilous and doesn't come off as bearing the taint of onanism, I'll be more than happy to read it. I've waited this long to see something worth reading; I expect the wait may probably be considerably longer still.

I've yet to see anyone from PAWG refer to their home wing as anything near perfect, least of all me. Then again, I haven't seen anyone in PAWG engage in public namecalling of other wings lately either.

[lordmonar]

Actually, if anyone follows this belief system it is a recipe for the stereotypical view of CAP leaders doing what they want despite the regulations. 

You may raise your objections...he may say "noted, proceed" and you carry on.  At that point it is his ass on the line not yours.

A CAP member can't use "I was just following orders" as an excuse.

To a point he can.  In the situation I am considering I was just following orders is a legitimate excuse.  Because all orders are considered lawful until proven otherwise.  This is a maxim on Active Duty as well.  Of course there are lines that must not be crossed and no one should follow a clearly unlawful order.  But we are not talking about that.  Unlawful is not the same as against regulations.  It is this distinction that we are talking about.  So no one can ever tell you to bust an FAA rule....but a commander can tell you to bust a CAP rule.  It is right and proper the you point out the rule violation but is also right and proper that you follow the direction of your commanders.

As has been pointed out, you can't really order a CAP member to do anything.  Every CAP member makes an individual choice about following each and every "order" given to them.  If a CAP member decides to follow an order that contradicts regulations he is just as open to getting kicked out or not being covered by insurance, etc. as the person who gave it.

Not necessarily.  Obviously if the member and the commander were trying to circumvent a regulation for their own convenience then yes they both could be kicked out.  But if the member acted in good faith and challenged the order and was told to do it any way he is between a rock and a hard place.  He can get kicked out for not following the order.  If he refused and the commander 2b him and the chain of command agreed that the order was proper even if it was against regulations....then the 2b would be up held and the member would be on the street.

He also decided to do something that violated a regulation.  Now, if there was some gray area and the person giving the order was doing their best to interpret a regulation, maybe they're ok.  But if they decided to follow an order that clearly violated a regulation, they also voluntarily decided to break the regulations.

That is true...but here is where everything breaks down.  Either you treat CAP as a military organization or you don't.  We are all volunteers and we are free to walk away at any time.  We don't have that luxury on active duty.  If we look at from a completely civilian point of veiw...then it does not matter any way at all.  We can be kicked out for any number of reason.  Debating about who can or can not countermand regulations is stupid.  The CEO of a corporation can do as he please so long as his board members don't get mad at him...no matter what the charter or by-laws say.  The same is true of CAP in that instance.  So CAWG and PAWG and all those other units out there that do their own thing are completely within their rights unless someone in the chain of command steps up and stops them.

Ergo any commander may do as he pleases until someone stops him.  We are not criminally liable for following CAP regulations.  We can be kicked out or even sued by the corporation but that is all.

So...how do you want to run the conversation?  Do we treat CAP and the regulations and verbal orders as if it were the military (even though they are not) or do we treat it just like IBM or any other corporation?

[RiverAux]

but a commander can tell you to bust a CAP rule.

All I'm asking for guys is some sort of citation that backs up this point of view.  So far no one has been able to provide one. 

Either you treat CAP as a military organization or you don't.

I treat it as what it is... a civilian organization in which leaders have the exact same authority to tell someone else what to do as they do in the Boy Scouts or Lions Club.  I would expect the leaders in those organizations to follow their own rules just as we should. 

all those other units out there that do their own thing are completely within their rights unless someone in the chain of command steps up and stops them.

Just because someone has been getting away with breaking the regulations does not justify breaking them in the first place.  This would be a failure on both the parts of the persons breaking the regs and those not calling them on it.  It doesn't make it right and it doesn't mean that they had the authority to break them in the first place.

I'm actually for a more "military" CAP, but the point of view you guys seem to be espousing is that the rules don't really matter and that they can be broken with inpunity.  That hardly seems to follow the "military' example.   

[Eclipse]

Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

Pardon me? Where did that come from?

You have to take in context,

That is why it makes no sense for us to worry about what other units/wings/regions are doing with 39-1.  The CAWG wing king does not answer to us.  He answers to PCR and NHQ and no one else.  If you are in CAWG you have a right and responsibility to voice your concerns up your chain of command but you only have a limited response to what action you can take.

Except...that these Wing CC's believe their authority extends beyond their state - so what about situations where they are sending their members out of state, out of uniform?
(i.e. HMRS)  Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

This is an ongoing problem for those of us running events which attract national participation.[/quote]

Certain CAWG encampments, and some in other states, require everyone wear a Wing patch on their BDU's, despite what their home state may require.  This is outside their authority, IMHO, just as I would not tell a CAWG or PAWG member to remove a counter-regulatory insignia if they showed up for an ILWG event.

I would consider that member to be under their home jurisdiction in this regard.

[Eclipse]

If you and I are thinking of the same document, the one I read was at best poorly written and hardly met anything approaching any sort of acceptable standard of professional writing. If you can produce something that's not scurrilous and doesn't come off as bearing the taint of onanism, I'll be more than happy to read it. I've waited this long to see something worth reading; I expect the wait may probably be considerably longer still.

Ok, first "whinge"? 

scur•ri•lous  (skûr-ls, skr-) 1. Given to the use of vulgar, coarse, or abusive language; foul-mouthed.

o•nan•ism   (oh-nuh-niz-uhm) 1. self-love

What I am referring to, of course, are the Katrina AAR's, which to the chagrin of many, we will all live with for the rest of our CAP careers, written by the IC's (from several different states).  They fall into neither of the above, unless you consider self-flagellation ononism. 

Though I obviously wasn't everywhere referred to in the reports, I can attest that I was personally witness to much of what is referred to regarding PAWG, and it is factual and accurate.  That being the case, I hold the entire document to be accurate.

I've yet to see anyone from PAWG refer to their home wing as anything near perfect, least of all me. Then again, I haven't seen anyone in PAWG engage in public namecalling of other wings lately either.

Few other wings export the same issues that PAWG does - training in skills outside CAP's missions, extra-regulatory uniform parts and insignia placement, etc.

However, the core of most of the frustration which is vented their way, is that despite the FACTS, PAWG is constantly held up as an example both internally and externally.  This is as much because of the close historical relationship between CAPFLT001 and the PAWG/CC, as because of any mission performance.

I am also sure that this thread’s author doesn’t want it hijacked for another PAWG-bash.  Goodness knows there are plenty of those in other places.  I simply used HMRS as a legit example of one state’s program causing issues for other states by pushing their members, and graduates of their programs, to violate uniform regulations.

[lordmonar]

but a commander can tell you to bust a CAP rule.

All I'm asking for guys is some sort of citation that backs up this point of view.  So far no one has been able to provide one.

Already told you there is none.  It is just established fact.  If you tie your commander's hands that tight then you may as well just hire a computer that spouts the regs column and verse..because you won't be able to get your mission done.

Either you treat CAP as a military organization or you don't.

I treat it as what it is... a civilian organization in which leaders have the exact same authority to tell someone else what to do as they do in the Boy Scouts or Lions Club.  I would expect the leaders in those organizations to follow their own rules just as we should.

In that case...yes...it does not matter what the written regs say.  It only matters what the chain of command thinks.  Totally.  If you are a BSA leader...you have complete autonomy of what you do.  If you bust a rule...they can fire you.  If your DE tells you to do it some other way....no matter what the written rule is....you do it his way.  He answers to the Council Exec who answers up his chain...but they don't care about regs that much.  The written rule in civilian life is not sacred as it is in the military.  No one is sitting around with all the minute rules BSA has....just as most employees do not even bother to read their company manuals.  They are trained by their bosses and coworkers and they do what they are told. That is why CAP is different than any other private organization.  CAP has a distinct military flavor and as such it has a certain awe for the REGS!  They are holy scripture written on high and only the most wisest of us can read them.  But when the rubber meets the road...and short of an IG inspection the regs are not all that.  The old military maxim is "No Combat Ready unit was ready for an IG Inspection and no Inspection Ready Unit was ready to go to combat." 

Just because someone has been getting away with breaking the regulations does not justify breaking them in the first place.  This would be a failure on both the parts of the persons breaking the regs and those not calling them on it.  It doesn't make it right and it doesn't mean that they had the authority to break them in the first place.

Exactly...failure on both parts.  Any rule not enforce is not a rule.  That is Pat's 78th Law.  It makes no sense to [censored] about what the National Commander is doing in regards to 39-1 if the NB or the BoG don't care.  Enforcement comes from above.  Compliance comes from below.  

If you say only black T-shirts and someone else say...but in PAWG we can wear Orange...and no one stomps on them....then you have just established DE FACTO that wings have the authority to violate 39-1 despite the fact that 39-1 says you can't.

If national Knowledge Base says you can wear the First Sergeant Diamond...then you can wear the first sergeant diamond....because NHQ sayso...for get what the reg says.  NHQ trumps everyone below that level!

This is not rocket science.  General Pineda says fly as low as the FAA will let you...I fly as low as the FAA will let me (and is safe to do so of course safety always trumps regulations  ) and I will continue to do so until someone higher than the National Commander says not to.

I'm actually for a more "military" CAP, but the point of view you guys seem to be espousing is that the rules don't really matter and that they can be broken with impunity.  That hardly seems to follow the "military' example.

Just last week I went to my active duty commander a Lt Col...who asked me to do something with our equipment.  I told him the T.O. says we can't and he said "noted....now proceed".  That is because he is the commander and his first responsibility is to the mission, not the regs, not safety and not my wishes or expectations.  He does not answer to me.  I provided him with the book answer and he said proceed.  I am covered both with my personal integrity and by the UCMJ.  Any court that tries to get me for violating a written regulation or order will see that it was superseded by the man in charge.  It will be his ass that gets boot for bad judgment or conduct unbecoming or dereliction of duty not me.

[MIKE]

Ok, first "whinge"? 

1. whinge Mainly brit variant of to [censored], whine, complain.

Quit yer whinging and go to sleep.

[RiverAux]

Yes, please move this discussion back on track....but you did do some good by bringing up the matter of whether a Wing Commander is still in charge of members who are physically outside his Wing.   While researching this I found this in the position description for Wing Commander:

Establish plans, policies, and procedures necessary to the proper conduct of wing affairs that are not in conflict with National Headquarters and region policies and directives.

That pretty clearly says that a Wing Commander (and the same language can be found in the Region Commander, Group Commander, and Squadron Commander job descriptions) cannot issue a policy/order that contradicts NHQ.  

The Squadron Commander job description has even stronger language:

Comply with all policies, regulations, and directives of higher headquarters and require the same compliance by all members of the squadron.

.

None of these quotes from the regulations seem to allow commanders any latitude for breaking regulations.  

Note...there isn't a specific description of the National Commander's duties and authority in 20-1.  

If you tie your commander's hands that tight then you may as well just hire a computer that spouts the regs column and verse

Saying that no one is authorized to break a CAP regulation or order someone else to doesn't tie anyone's hands. 

[Eclipse]

Just last week I went to my active duty commander a Lt Col...who asked me to do something with our equipment.  I told him the T.O. says we can't and he said "noted....now proceed".  That is because he is the commander and his first responsibility is to the mission, not the regs, not safety and not my wishes or expectations.  He does not answer to me.  I provided him with the book answer and he said proceed.  I am covered both with my personal integrity and by the UCMJ.  Any court that tries to get me for violating a written regulation or order will see that it was superseded by the man in charge.  It will be his ass that gets boot for bad judgment or conduct unbecoming or dereliction of duty not me.

I would say that this is the ultimate final answer,  UCMJ or not, in CAP as well. 

With that said, however, and especially owing to our corporate status, it would likely not fly if the issue was regarding life or CPPT.

[shorning]

For goodness sake, since there are like three conversations going on here can we either break them out or just lock the darn thing? 

[RiverAux]

So, what is a CAP member to do if given an order that contradicts a regulation? 

Well, CAPR 123-2 offers this:

b. Responsibilities. CAP members have a responsibility to report Fraud, Waste and Abuse violations (FWA); violations of policies, or directives; abuse (including abuse of authority); cadet protection issues, or misconduct; to an
appropriate commander or IG. In

Miisconduct is defined as:

s. "Misconduct" means improper conduct (acts or omissions) undertaken with the knowledge the conduct violates a standard (an identifiable directive, instruction, policy, regulation, rule, statute, or other standard without regard to knowledge, motive or intent) or willful disregard for that possibility with intent to harm or purpose of personal profit, advantage or gain.

So, if CAP members have a responsibility to report violations of regulations, wouldn't it stand to reason that no one has the authority to violate (or order a violation) of the regulations in the first place?  Note that a regulation violation is defined as misconduct no matter what they motive or intent. 

[JohnKachenmeister]

River:

A page or so back I provided a hypothetical example for discussion.  I'm interested in how YOU would handle a request to violate a regulation in order to accomplish a mission.

I'm also interested in how others would handle the same situation.

I'll repeat it if you can't find it, but I'm interested in whether you are process-oriented or results-oriented.

[JohnKachenmeister]

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

River:

There's nothing that says you HAVE to oney any order, legal or illegal, moral or immoral, fatening or healthy.  We are volunteers.  We can quit. 

I used the military as an example, from which we may derive some measure of guidance.

How's this example:

You are a ground team leader, working with an aircraft on a high-profile SAR mission.  Your current assignment is to search an area around a non-towered airport near where the target plane disappeared from radar.  Suddenly, your aircraft observer says that the search plane has to land immediately, and sets down at the airport.

You take your team over, and discover that the Mission Pilot has become ill, and could no longer fly the aircraft.  An ambulance is taking him away as you get to the airport.  The rest of the crew consists of an unrated scanner and a non-pilot observer.

You call the Mission Base, and explain the problem to the Incident Commander.  After an expletive delected or two, the IC tells you that there is a hot lead regarding a low-flying aircraft over some woods about 20 miles away, that matches the description of the target aircraft.  The IC says that there are no other close aircraft.

Then the IC drops a bomb on you. 

"Captain, you're a pilot, aren't you?  Can you turn command of your team over to your second-in-command and fly the CAP plane back to the base?"

You explain that you are FAA current, but your CAP Form 5 ride is 2 months expired.

The IC then says:  "I need that plane.  I have a qualified crew here ready to go, but no plane.  I have a plane there, but not a full crew.  I want you to bring it here."

What would YOU do?  The order is clearly in violation of 60-1.  You probably won't be covered by insurance in the event of a crash.  But on the other hand, there is a clear mission requirement, and you can fly the mission without violating any laws or FAA regulations.

OK, I bumped it without waiting to be asked.

Seriously, how would you handle this?

[SJFedor]

I'd say "I'd be glad to fly the aircraft for you. I'll just need you to call the Wing and Region commander, as well as the NOC, and get the blessing from all of them before I'll do it. Otherwise, my apologies, I'd recommend you mobilize your crew into a car and get them driven down here"

Flying a CAP aircraft without a current F5 is an insta-2B, regardless of what the IC wants or needs. Send the GT to start working the area 20 north until they can get the plane to the crew or the crew to the plane.

If all above requirements were met, Wing, Region, and NOC all approve me operating the aircraft, and verbally agree to hold harmless, I might begin to consider flying the aircraft, but, sorry, the crew that came with the plane aren't leaving with it.

Not to mention, if I'm humping it out on a GT mission, I doubt I have any of my flight gear with me, specifically my medical, which I keep inside my logbook, which I keep with the rest of my flight gear.

[Ned]

Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

You have to take in context,
Certain CAWG encampments, and some in other states, require everyone wear a Wing patch on their BDU's, despite what their home state may require.  This is outside their authority, IMHO, just as I would not tell a CAWG or PAWG member to remove a counter-regulatory insignia if they showed up for an ILWG event.

I would consider that member to be under their home jurisdiction in this regard.

Bob,

At the risk of [further] derailing the thread, I have to point out that this simply isn't true.

No CAWG encampment commander has ever "required" non-CAWG folks to wear a wing patch on their BDU's.

First, let's note that there has only been one CAWG encampment since the wing patches became "optional" in March of this year.  I've spoken the the CAWG encampment CC on this very issue, and she says it was simply not an issue at encampment this year.  Nobody brought it up at any meetings, and she certainly did not make any order to that effect. 

(She's actually sitting next to me as I type this.)

As with any large activity with hundreds of CAP members involved, it always possible that communications problems occurred within the encampment.  But I was there for most of the encampment, and didn't hear any controversy in this regard.

What, specifically, are you talking about?


It is always fair to point out when CAP officers have acted "outside of their authority" if those officers have, in fact, done so.  The reverse is also true.  It is not fair to assert that volunteer leaders have acted outside their authority when they have not done so.


Finally, I should note that even if she had directed non-CAWG folks to wear a wing patch on their BDUs last August,  Maj Gen Pineda's implementing memorandum of 15 MAR merely said that the wearing of wing patches on BDU's was "optional," without saying whose choice it was.  Among the possible choices (member, local unit commander, activity commander, wing commander, region commander, or some other person) there is simply nothing to suggest that an activity commander could not require the patch for uniformity's sake, as part of specifying the UOD.

[DNall]

I agree, I'd ask for written permission from Wg CC or NOC to go flying, otherwise no go. Provide refs of the last check pilot that fm5'd you or has flown with you enough to know you're not going to drill in. The medical is no big deal since they are going to release you unseen anyway. Faxing a copy the next day is nice if you want people to sleep easier.

[RiverAux]

JohnK -- you obviously missed my earlier reply.  If there is a choice between breaking a reg and saving a life, I'm going to save the life and fully expect to get kicked out of CAP, and I can live with that.  In the example you gave I would follow DNALLs approach since I've chased far too many "hot leads" to risk my CAP career on one easily.  A better example would be that the CG Aux is prohibited from entering the water even to save someone's life.  If a little kid went in the drink while I was on a patrol and there was no other way to get him, you bet I'd jump in after him and I'd take the consequences.  However, these situations are so rare they aren't actually relevant to the conversation.

Here are some quotes from CAPR 35-3 which apply to this topic: Causes to terminate senior members:

(7) Serious or willful violations of CAP regulations or directives.

and

(9) Failure to obey rules, regulations, and orders of higher authority.

So, sort of a catch 22.  You can be kicked out for violating a regulation and you can get kicked out for not following an order.  Note that #9 doesn't say "valid" order or otherwise indicate that the order must have been in accordance with regulations. 

Either way, a CAP member given an order to do something that contradicts a regulation could very possibly be screwed. 

So, given all the reg quotes I found (you guys were no help at all!) here is what I would do if given a verbal order to break a regulation:
1.  Call the next higher commander to confirm the order.
2.  If it is "confirmed" I would do it so long as it wouldn't be some sort of safety risk.  If there was a safety hazard of some kind involved, I don't care who tells me to do it I'm not going to do it unless it is an extraordinary circumstance such as I gave above.  If it is an order to set up a file system in a way other than prescribed by CAP regs, I would do it after confirmation. 
3.  Then, in all situations where an order to break a reg was given whether or not I carried it out, I would report it to the IG. 

This is the only way I can see to handle this situation so as to keep the risk of getting kicked out afterward as low as possible. 

Oh, and by the way, I still stand by my statement that no CAP officer has any authority to issue an order that contradicts regulations.  The only exception being a written emergency change to regulations by the National Commander. 

For the person who broke a military reg recently, are you under any obligation to report this similar to what CAP members are supposed to do (as directed in the reg I quoted yesterday)?

Hey CA-PA Wing people--- get outta my thread and start your own on Wing CC authority.

[SJFedor]

I agree, I'd ask for written permission from Wg CC or NOC to go flying, otherwise no go. Provide refs of the last check pilot that fm5'd you or has flown with you enough to know you're not going to drill in. The medical is no big deal since they are going to release you unseen anyway. Faxing a copy the next day is nice if you want people to sleep easier.

Medical is required to be on your person per FAR's, not CAP regs.

FAR 61.3 http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2003/14cfr61.3.htm

You get caught jumping in or out of an aircraft where you intend to be or were the pilot in command by a FSDO inspector, and you don't have your pilot certificate, medical, and photo identification, your [expletive] is grass, and the FAA shall be smoking it.

I've had time to really ponder this, and I really think that, in this situation, me operating this aircraft is probably not in my best interest, nor in the best interest of CAP. There's some secondary things about this that make me nervous, and being pressured by an IC that needs the aircraft may put me into a position where I'm not flying or operating safely.

And unless we're way out in the middle of nowhere, 100 miles from the ICP, I'd recommend the crew just drives to the aircraft, and let the last crew from the sortie drive their car back to the ICP. By the time they get all the clearances I want from Wing, Region, and the NOC, they probably coulda just driven there anyway.

[DNall]

That's fair enough, but I'd argue fairly hard at an FAA inspector that preservation of life & property superceed the FARs, especially when ordered to the contrary by competant authroity who you knew to be in active contact w/ AFRCC. That would be a consideration by the way. If you're talking about getting a plane to a crew cause you need to track down an ELT signal, I'm going to be quite hesitant. On the other hand if you have a missing 8yo in the mountains north of you with weather a day out & you're losing light, you might convince me. I'm not getting someone potentially hurt or killed to CYA, and that applies equally to CAP regs, the FARs, & the military. In the military you're expected to spend subordinates at times to accomplish a mission, and bound by some tighter rules, so the dynamic is the same, but shifted slightly.

Regs are never going to tell you when it's okay to break regs. They're neer going to set a precence by which you'll follow one at the cost of another. Really, there's almost no situation under which you can ever be ordered to grossly violate regs. What you'll run into is a commander interpreting a reg in a way you disagree with & ordering you to proceed anyway. In that case you do have to proceed & take up the request up teh chain for clarification after the fact, or like I said, drop your membership card & walk. You volunteered into CAP, just like folks volunteer into the military, and you have to follow orders just like they do & there are consequences if you dont. The only difference is you can quit CAP at any time & they can't just walk out on the AF cause they don't like what they've been told to do - imagine fighting a war that way.

[JohnKachenmeister]

I guess I'm easier than all you guys.

I would have put the IC on speaker, and had him acknowledge the order, and acknolwledge my flight status, so my second-in-command and the remaining flight crew could hear it.  Then I'd fly the plane back.

I assumed in the situation that the only regs violated would be CAP's, so I will assume I have photo ID, pilot license, medical, and I haven't had alcohol within the previous 8 hours.  I already indicated I was FAA current.

As far as flying the remainder of the crew back, I would take them with me, especially the qualified observer.  He's got the radio frequencies, airport information, and stuff I might need.

The Scanner?  I don't know.  IF I had a team of cadets that my departure would leave with only one officer to supervise, I'd leave the scanner with the team as a second officer.  Otherwise, I'd take the scanner home.  He probably doesn't even have a canteen of water, and is not equipped to stay in the field.  Or maybe I'd give him my gear if he had an honest face.

I also would not report it to anyone.  No harm, no foul.  Plus, my immediate commander on the mission is the IC, and I trust his integrity enough to make it a part of his report.

And I'd understand why he would not put me in for a Commander's Comendation for my quick action in response to his request, too!

[BlackKnight]

...What would YOU do?  The order is clearly in violation of 60-1.  You probably won't be covered by insurance in the event of a crash.  But on the other hand, there is a clear mission requirement, and you can fly the mission without violating any laws or FAA regulations.

Seriously, how would you handle this?

This is a no-brainer.

I kick members off my ground team on SAREXs if I discover their CAPF-101s are invalid.  I've stood down entire teams on real SAR missions for that nonsense. No one on my team is allowed to drive a CAP vehicle without having a valid CAP drivers license.  And no one rides in said vehicle on a mission without being in proper uniform.  Orange vests go on whenever we deploy in the woods.  The bottom line is that we don't violate regs except to save a life. And as has been stated earlier, that scenario is so rare that most of us will thankfully never have to make that call. Can you imagine what my reply to Mr. Cowboy IC  would be?   

Seriously, the correct response is to offer the IC alternative solutions that permit accomplishing the objective while remaining in compliance with approved regs.  Sometimes that doesn't work. Almost all of us have experienced managers, commanders, or ICs who, like Custer, make it up as they go and refuse to listen to sound advice.  When that happens you have to stand your ground and listen to them scream at the other end of the phone until they either run out of 4-letter words or regain their composure. 

This is the slippery slope. Once you start ignoring approved regulations you end up with rule of man instead of rule of law.  Society has been down that road before.  We don't ever want to go there.

[Major Carrales]

John,

Interesting senario...hummmmmmm?!

I am not a pilot, but if I were at the IC's command center or on the ground by the aircraft and the IC was ordering a non-form 5 or BFR pilot ro fly that aircraft because of immediate need...

I would protest to the point of CAPF 2b.  I would first offer a strong opposition to the IC stating that this was a violation of REGs.  If I were on the ground I would seriously consider preventing that pilot from getting on the plane.

We are a nation of LAWS.  Regulations like CAPR 60-1, contrary to the common belief, are not their to annoy us.   They are there to establish a pattern of operation.  Many are the result of past failures to which the reg as been changed to mitigate the fact.

This is not STAR TREK, where the USS Enterprise is "the only ship in the quadrant."  If it looks like the objective is near the downed (for pilot illness) aircraft...then launch another.

Yes, its a command descision that has to be made and the responsibilty of the IC is ultimate and, also YES, the life of the person from whom we are looking is sometimes measured in MINUTES...but, there is a reason that the reg forbids it.

Yes, a slippery slope indeed.  I have written very strong words on this matter here.  I guess the real answer will come when that actually happens.

May it never...

Major Carrales

[Eclipse]

It is always fair to point out when CAP officers have acted "outside of their authority" if those officers have, in fact, done so.  The reverse is also true.  It is not fair to assert that volunteer leaders have acted outside their authority when they have not done so.


Finally, I should note that even if she had directed non-CAWG folks to wear a wing patch on their BDUs last August,  Maj Gen Pineda's implementing memorandum of 15 MAR merely said that the wearing of wing patches on BDU's was "optional," without saying whose choice it was.  Among the possible choices (member, local unit commander, activity commander, wing commander, region commander, or some other person) there is simply nothing to suggest that an activity commander could not require the patch for uniformity's sake, as part of specifying the UOD.

I'll take my lumps if I called out CAWG with regards to the patch issue and visitors.  I'm busted from a SAREx today or I would go looking for the threads we disccused this in to see if it was a different wing - I have no reason to believe you're not better informed than I.

On the "optional" issue, I disagree that an activity Commander could require a participant from another state to counter-mand a directive from their home state's Wing CC, and I would hope that good practive and common sense would dictate that no one require a member to incur cost, or put needle to thread, for a single week, especially a cadet.

[Eclipse]

...What would YOU do?  The order is clearly in violation of 60-1.  You probably won't be covered by insurance in the event of a crash.  But on the other hand, there is a clear mission requirement, and you can fly the mission without violating any laws or FAA regulations.

Seriously, how would you handle this?

My direct answer is "go salute yourself, SIR!"   

My next act would be to call the Wing CC, or State Director and have that IC immediately relieved of Command.

Your FIRST responsibility is self and crew safety, including liability.  It is stressed at every training session, etc., that regs and rules are there to protect you, not hamper the mission.

The "don't be a cowboy" sentiment is correct here.

If they need the plane that bad, all they have to do is fly a transport pilot down to it and move it - the plane could be signed out of the mission until its moved - without a Mission Pilot its effectively grounded anyway.

Too often IC's get tunnel vision and start believing they really are the calvary and no one else is around to help.

This is also what ORM is for.

[SJFedor]

Your FIRST responsibility is self and crew safety, including liability.  It is stressed at every training session, etc., that regs and rules are their to protect you, not hamper the mission.

Amen. That's why I made the statement that, even if I got the blessing from everyone from the Wing king to the NOC, and everyone said "yeah, fly the plane", there's no way I'd be putting anyone else on board that aircraft. It's bad enough if there's a mishap and I'm not covered under the liability insurance, it's worse if there's someone else on board who's also not covered, and whom I am responsible for as pilot in command.

[JohnKachenmeister]

You guys all make very good points, and I can't say that I disagree with any of them. 

But... and I did this on purpose... I specified that this was a high-profile mission.  One being scrutinized by the media.

Also, you do not have the full knowledge of the IC's predicament. 

Now, lets say you guys do as you have mentioned, which range from "Salute" you, Sir  to secure clearance from the Wing/Region/National commander.  The IC then trucks a crew up to your position, you truck your GT to the new search site, and a couple of hours of search time is lost. 

The plane is found eventually, and evidence shows that the pilot, a popular senator, and his family survived the crash but died of injuries awaiting rescue.

Now:  Respond to the CNN Reporter asking why a pilot, qualified under FAA rules but a mere 2 months late on a checkride that is NOT required by the FAA, did not return the plane to the base in time to save the beloved Senator and his lovely family.  Why, Captain, did you leave those poor children to die after watching their parents die?

And no fair saying the PAO has to answer it.   

[SJFedor]

"All requests for information must go through the mission information officer."


Assuming I have permission to discuss this from the IC/Wing king, I would explain that simply holding a pilot's license does not give anyone permission to operate a CAP aircraft, and that our standardization and evaluation program is there for the protection of our pilots, aircrew, property, and aircraft. And since the member in question is not a current CAP airplane pilot or mission pilot, he was forbidden by regulation to operate the aircraft. It is a sad situation, and it's unfortunate that the chain of events played out this way, however, sending an aircraft up with a non-CAP qualified pilot plays a huge risk in making another casualty for us to have to find.

Plus, since when do CNN reporters have MD licenses? How do THEY know that kids had to watch their parents die? How do THEY know the time and cause of death of any of the passengers on board? They could have been dead 2 hours prior to the forced landing of the CAP aircraft, which makes this a mute argument.


This is why they don't let me talk to people with cameras.

[Major Carrales]

You guys all make very good points, and I can't say that I disagree with any of them. 

But... and I did this on purpose... I specified that this was a high-profile mission.  One being scrutinized by the media.

Also, you do not have the full knowledge of the IC's predicament. 

Now, lets say you guys do as you have mentioned, which range from "Salute" you, Sir  to secure clearance from the Wing/Region/National commander.  The IC then trucks a crew up to your position, you truck your GT to the new search site, and a couple of hours of search time is lost. 

The plane is found eventually, and evidence shows that the pilot, a popular senator, and his family survived the crash but died of injuries awaiting rescue.

Now:  Respond to the CNN Reporter asking why a pilot, qualified under FAA rules but a mere 2 months late on a checkride that is NOT required by the FAA, did not return the plane to the base in time to save the beloved Senator and his lovely family.  Why, Captain, did you leave those poor children to die after watching their parents die?

And no fair saying the PAO has to answer it.   

As for PAO element, we take OPSEC to mitigate the problem of people like terrorists and journalists.

Seriously...

Well, its the "9-11" comission all over again.  Finger pointing...CAP gets a bad rep. for having procedures that led to the death of a family.

It's the no-win senario played out.

What's the answer Kach?

[Eclipse]

There is no answer.  [mess] happens and sometimes people die.

Life isn't a movie and you're not Ethan Hunt. 

We cannot staff or fund for every contingency. There are plenty of times that FD and PD departments fail their mission because of lack of funding or broken equipment.

We are a volunteer organization, doing all we can with limited resources, and like all other professional organizations, we have rules and regs that protect everybody.

What do you tell YOUR kids when they are homeless and destitute because, through no fault of your own, you break the plane and it is found that you are not legal to fly it, thus have to pay for it.

If you're not legal, you don't fly.  Period.

[Major Carrales]

There is no answer.  [mess] happens and sometimes people die.

Life isn't a movie and you're not Ethan Hunt. 

We cannot staff or fund for every contingency. There are plenty of times that FD and PD departments fail their mission because of lack of funding or broken equipment.

We are a volunteer organization, doing all we can with limited resources, and like all other professional organizations, we have rules and regs that protect everybody.

What do you tell YOUR kids when they are homeless and destitute because, through no fault of your own, you break the plane and it is found that you are not legal to fly it, thus have to pay for it.

If you're not legal, you don't fly.  Period.

I agree totally...my initial response to the "Senario" placed merit on Regs being their for a reason...not an annoyance.

[JohnKachenmeister]

Eclipse is right, there is no right answer.  Either action, fly or don't fly, carries with it an element of risk.  Events beyond your control sometimes determine the outcome.

Real world:  I had to take a company I commanded on a two-day road movement from home station in Inkster, Michigan (near Detroit) to Ft. McCoy, in western Wisconsin.  Being the dedicated, professional officer that I am, I found the movement order in the files that the previous company commander used, changed the dates, times, and signature block, and had my clerk type it up.  Among the coodinating instructions in the movement order were instructions for an armed security force to guard the weapons.

A colonel who commanded another unit, and who didn't like me, pointed out to our commanding general that only a field grade officer in command could authorize armed security on a convoy.  I was then a captain.  The general then told me hat I should not arm my security element.

I wrote a memo asking the CG to reconsider, and pointing out that I had to take the convoy through several high-crime areas, and several areas where right-wing militias were operating.  I also pointed out that armed security on convoys had been standrad for many years, including the year from which I copied the movement order.

The CG's aide came to me the night bfore my convoy was to leave, and said:  "Captain, the General has read your recent memorandum, and has directed me to tell you that there will be no change to the weapons policy.  Do you understand?"

I said:  "No, I do not understand.  Which policy is unchanged?  The policy we have followed for several years, or the policy he announced Wednesday?"

The aide looked upset, then said, "The General said you might ask that, and I am authorized to tell you only that the policy is not changed."

In other words, use your own judgement but if you screw up, or if you lose weapons to a robbery, you're on your own.  Everything goes well, then nothing happens.  Anything bad that happens is your fault.

Welcome to the world of being an officer.  Y'all ain't just "Senior Members" anymore!

[DNall]

Of course there's no right answer, that's where being btwn a rock & a hard place comes from. You make the best decision you can based on the info you have & say a little prayer when you're hanging it out over the line. Crap does happen & people do die, and to the best of your ability you try to keep that from being on your watch (and don't screw the next guy either). Clearly that doesn't mean you blow the bugle & charge even though it might break you & your family financially. There's a risk in both directions that you're assuming personally no matter what you do, you have to look at the big picutre & make a personal judgement about how much you're willing to risk & if the situation on the ground is worth it. You have cover of law if you choose not to fly, but what if that kid freezes to death overnight cause we lost the light when we couldn't put a plane up? You made that call & that kid died cause you wanted to CYA. Sure it goes the other way too & people do crazy stuff when the fangs are hanging out & the eyes are lasered in. You just have to do the best you can & try to stick to the book as best you can.

I said this I think in another thread... if an IC orders you to do something, & you refuse for whatever reason (including things like training & experience), and someone ends up hurt or dead cause you didn't follow orders, you will be personally liable above & beyond CAP's insurance. You may also be criminally liable; just like the CAP doctor who follows CAP regs & watches someone die despite the state requiring him to stop & render all aid he's capable of.

Now, to blow this example out of the water right quick... why doesn't the qual'd crew back at base RENT a plane & fly over the the CAP plane, then on to the search area? Even if that ends up not being reimbursed it's preferable to a non-current pilot being cleared (wouldn't want to be that FRO).

John, that's classic military CYA right there. Get caught carrying weps & the order was not to do so, get hit in transit & the order was to carry. That's politician slick right there. Long as the aide winked appropriately to let you know that was the deal, then I guess that's par for the course.

[RiverAux]

someone ends up hurt or dead cause you didn't follow orders, you will be personally liable above & beyond CAP's insurance.

I think you're forgetting that the Good Sam law protects you if you decide to do nothing.  Doctors and others are often not covered by that law however. 

[DNall]

OH NO, the good samaritan law, which is dif from state to state, protects you if you DO decide to help within the range of your ability & it goes bad. If you do nothing & life, injury, property, or loss occurs because you chose to do nothing despite your training, you WILL go to jail. If a nurse drives past a car accident w/o stopping where there are people visably injured & no ambulance yet on the scene, he/she would lose their license, be open to a fat lawsuit, and would be prosecuted. It has & does happen. It would be the same thing if an ER doctor refused to treat you cause they didn't like the way you looked - that's against the law. You can debate to what extent the insurance would or would not cover you, and in that fight you should listen to Eclipse tell you to go by the book. CAP may still pay out the whazzoo, but it shouldn't come out of your pocket. If you refuse an IC order cause you disagree with the search plan & just feel like being a jackass, and if that action can later be connected to harming someone or something, then you're on the hook for that one. CAP & govt lawyers will protect their client, which ain't you, and they can VERY easily argue you out from under their coverage & come with a hammer after that to make sure their client doesn't pay a dime - that's what they get paid for.

[RiverAux]

You keep bringing up examples of professionals who are duty bound to act by state law.  A regular John Doe CAP member is a whole nother story. 

That being said, anyone can sue anyone over anything. 

[Hotel 179]

Hello All,

I'm new to the board but have read many of the posts and feel as if I know many of you already.  Greetings from the Gulf South.  One of the provisions of CAPR60-1 is that a CAPF5 ride can be performed prior to the expiration date.  Since we don't know when these missions are coming up and if you are getting close, get out there and schedule a ride.  We all know about weather, equipment failure, scheduling issues.....

Semper vi....ya'll

Stephen
Foley, Alabama

[Eclipse]

someone ends up hurt or dead cause you didn't follow orders, you will be personally liable above & beyond CAP's insurance.

I think you're forgetting that the Good Sam law protects you if you decide to do nothing.  Doctors and others are often not covered by that law however. 

Also, in the case cited, this would be an "unlawful order", so the member would be duty-bound to disobey.

In a coffee-house setting, I would be willing to at least entertain the idea that a Wing or Regional CC, as well as Nat CC could issue a directive counter-manding regulations on an emergency basis, only in as much as they are board members and therfore officers of the corporation.

You better believe I would want it in writing with a wet signature.

An IC, however, has no such standing whatsoever.

[JohnKachenmeister]

someone ends up hurt or dead cause you didn't follow orders, you will be personally liable above & beyond CAP's insurance.

I think you're forgetting that the Good Sam law protects you if you decide to do nothing.  Doctors and others are often not covered by that law however. 

Also, in the case cited, this would be an "unlawful order", so the member would be duty-bound to disobey.

In a coffee-house setting, I would be willing to at least entertain the idea that a Wing or Regional CC, as well as Nat CC could issue a directive counter-manding regulations on an emergency basis, only in as much as they are board members and therfore officers of the corporation.

You better believe I would want it in writing with a wet signature.

An IC, however, has no such standing whatsoever.

I'm not so sure such is the case, Eclipse.  The IC is appointed by the Wing King.  As such, I believe he would have the authority of the Wing King with respect to that mision.

And in the hypothetical situation, a wet signature isn't going to happen, given the realities of time and space.  That's why I had the order, and the current flight status, acknowledged in the presence of witnesses.

I'm not a lawyer (But I play one on TV).  I think I could make a good case in defense of the IC and the GT Leader/Pilot before the MARB in authorizing a short ferry flight by a pilot less than 90 days out of Form 5 currency, given the exigencies of the mission.

[JohnKachenmeister]

DNall:

Actually, the aide didn't wink.  He was VERY uncomfortable caught in the middle like that.  But that's why the CG sent the aide to wash his socks.  I would have pressed the CG for either a clear order.  I coudn't press the aide to give me something that he himself did not have.

A little perverse justice came out of it.  We left Ft. Sheridan (North of Chicago) on time.  The unit that the colonel who started the dust-up commanded did NOT leave until 4 hours after its scheduled departure time.  It seems that he authorized armed security on his weapons, but didn't screen his people too good.  One of the guards was playing with his weapon, had the fire selector on "Rock and roll," and busted off 5 or 6 rounds accidentally. 

When the MP's at Sheridan took the report they discovered that the guy who fired the M-16A1 had two felony warrants in Detroit for robbery.

I saw the 1st Lt who was commanding his convoy at the MP station before I left, since 2 of my troopers were witnesses, and had to give statements.  He didn't look too good, and was waiting to see the post commander.  I was glad I wasn't him.

[DNall]

No doubt. And inexperienced officer there with the aide. To be sure in that situation you don't want to clarify an order the CG didn't give yo to pass on, and any good Company commander would try to trap the kid to have an extra fall back if it came to it, but he should have known what was going on & played straight. You're still just as trapped, but at least you can respect the kid & have no doubt what you're getting into.

Eclipse is right here on not taking that order from the IC alone. Again, you get those fangs hanging out & ICs, just like PICs & GTLs, will go charging over the hill w/o thinking at all. I think you do for sure have to get a written sign off by someone in a position to do so. Wg CC is logical, maybe even a chief check pilot type, pref both (cause that covers both your bases), NOC would be even better but they get the fangs hangin out too on big missions & go flat stupid. In the end, of course protect yourself & your people, but there may be a situation in the big picture (life vs. ELT) where you personally are willing to take the risk. Just so you've thought it all the way thru (use your ORM there), and have some back up on side-stepping the reg. It's a tough call.

And by the way, not remotely worth any kind of commendation. More like show up at base & get a handshake & "thanks buddy, we really appreciate it, phone's over there if you need to call a ride, or you can hang out in the other room if you want, just stay out of the way." My ass you're getting a commendation, you find the governor, six nuns, and a girl scout troop, then fight off the bear about to have them for lunch & you might get a pat on the back & a lifesaving medal, maybe. I've done some pretty crazy stuff that didn't rate one. On the other hand, I got a comcom for making coffee & driving people to lunch at an SMC course - just refuse to wear it is all.

Oh and River... "Mr CAP officer, can you describe for the court your training, background, & experience in SaR please? I have an SQTR here for GTM, can you explain this to me? And you've held that rating for how many years? Would you describe yourself as a SaR expert? How about experienced operator, would that make you feel more comfortable? Fine. So you were asked to search this area, but refused to do so cause the IC was mean to you, the coffee & donuts weren't the right brand, and you didn't feel like walking around the mountains all day when you could be driving around in the AC instead. Yet this little girl's body was found right where you were told to go & the ME says she was irrefutably alive when you were told to go there. Hmm, if we walk outside this courthouse & someone gets hit by a car, will you use your first aid skills on them, or will you refuse to stop & render aid in the area & to the extent of your expertise again?   You honor, because this guy is going to prison for 5-10, we'd request summary judgment so his holdings may be liquidated & wages garnished to pay 10mil to this poor family victimized by this selfish malfeasant monster."

[Major Carrales]

It has been my experience that if one is "in the right," has faith in their training and confidence (because of the prior) that one tends to fair well in these sorts of situation.

Now...one must ask on one's self...

1) Do we have the training?

2) Are we are part of offering said training to others?

3) Do we know it to the level of unblinking confidence?

4) are we actually "in the right?"

Failure on these questions is a formula for a meshegas!!!

[SJFedor]

I'm surprised that someone hasn't brought up the topic of scene safety yet. One of the first things that any first responder, RN, MD, person with an ice pack and a piece of gauze in their glovebox should be assessing before they go running in anywhere is scene safety. Regardless of whether or not the person is FAA current, they're not CAP current, which is yourself making the scene unsafe.

Don't forget, not all RN's and doctors know everything about everything in saving lives from a roadside car accident. Most people don't carry a first in bag in their car or anything like that, plus there's so many different types of RN's and docs out there, it doesn't always make a difference. Nursing home RN's are usually BLS trained only, and know how to dispense pills, take care of the patients, and that's about it. Same with an urology doctor. Unless you've got kidney stones in that car accident, there's not a lot he can do, because he doesn't have the specialized training. ACLS, BTLS, PALS, all those fun certs, not all of the docs or RN's have. And they usually NEVER have the required equipment with them to accomplish any of it.

I work in a teaching hospital/level 1 trauma center in Nashville in the main ED, and we have nurses down there who know more then a lot of our residents, just in training and lifesaving measures. Then, somewhere else in the hospital,we have nurses that, when someone codes, you're lucky if they manage to call the operator to have it called out, have the crash cart in or near the room, and someone maybe has begun compressions on the patient before the code team arrives. This is usually with most of the RN's, PCT's, MR's, and housekeeping from that and adjoining floors all piled in the room to see what's going on.

Just remember, letters at the end of the name don't always mean competence in all situations.  Should a nursing home RN stop at the scene of an accident when there's no medical professionals on scene? Yes, probably. Is she going to be able to do much other then call 911, and maybe do CPR if someone is unresponsive and pulseless? Not really.

People die. It sucks. Whether it's because of slow reaction times, equipment failures, weather, or just that it was beyond our control, it's going to happen. We try our best, but we do so with the spirit of safety in mind, so that we don't add more casualties to an already crappy situation. Sometimes we make the save, sometimes we don't.

[ /rant ]

[Psicorp]

It has been my experience that if one is "in the right," has faith in their training and confidence (because of the prior) that one tends to fair well in these sorts of situation.

I think I'd have to add one more to that...faith in their leadership to stand behind them, even if things do go South. 


SJFedor,

I've encountered that situation as well.  I was a volunteer firefighter who rolled up on a vehicle accident with injuries.  My Captain was an EMT (at the time, under law EMT's in a volunteer department are like they are in CAP, no more than First Responders).  We were performing an assessment of a vicitim and a gentleman runs up and tells us he's a Doctor.  I made a move to step back, willing to yeild to someone with more experience/expertice, when my Captain grabs my arm and turns to look at the Doctor and says, "What kind of Doctor?"  The gentleman replies, "I'm a Podiatrist."  The Captain smirked and said, "Her feet are fine Doc, please step back." 

[JohnKachenmeister]

Fedor:

IF a pilot is FAA current, but not CAP current, how is is flying "Unsafe?"  CAP has administrative rules to make CERTAIN that pilots are current and safe, which amount to doubling the check rides required of pilots.  FAA says one every two years, CAP says annual.  If I can step into my C-172 and fly safely and legally, why am I less safe in a C-172 owned by CAP?

The answer is, of course, that the flight SAFETY is not the issue.  The issue is the insurance coverage.  We guarantee to our insurance carrier that pilots will meet certain minimum standards, and they give us a rate based on those standards.  They also reserve the right to deny coverage when those standrads are not met.

But, in this scenario, IF an accident occured, and IF the insurance carrier denied coverage (Or the Federal Government denied a tort claim in the case of an injury) then MY lawyers go to work.  It is not entirely a done deal, since 12 ordinary folks will be sitting in a box to decide if the insurance company or the government should pay.  Thank God the law doesn't provide for 12 insurance company executives.

My guess in this case, based on dealing with those weasel lawyers for most of my life, they would settle rather than establish a legal precedent that a 60 to 90 day grace period existed in CAP checkride currency.

[DNall]

I'm surprised that someone hasn't brought up the topic of scene safety yet. One of the first things that any first responder, RN, MD, person with an ice pack and a piece of gauze in their glovebox should be assessing before they go running in anywhere is scene safety. Regardless of whether or not the person is FAA current, they're not CAP current, which is yourself making the scene unsafe.

Don't forget, not all RN's and doctors know everything about everything in saving lives from a roadside car accident. Most people don't carry a first in bag in their car or anything like that, plus there's so many different types of RN's and docs out there, it doesn't always make a difference. Nursing home RN's are usually BLS trained only, and know how to dispense pills, take care of the patients, and that's about it. Same with an urology doctor. Unless you've got kidney stones in that car accident, there's not a lot he can do, because he doesn't have the specialized training. ACLS, BTLS, PALS, all those fun certs, not all of the docs or RN's have. And they usually NEVER have the required equipment with them to accomplish any of it.

I work in a teaching hospital/level 1 trauma center in Nashville in the main ED, and we have nurses down there who know more then a lot of our residents, just in training and lifesaving measures. Then, somewhere else in the hospital,we have nurses that, when someone codes, you're lucky if they manage to call the operator to have it called out, have the crash cart in or near the room, and someone maybe has begun compressions on the patient before the code team arrives. This is usually with most of the RN's, PCT's, MR's, and housekeeping from that and adjoining floors all piled in the room to see what's going on.

Just remember, letters at the end of the name don't always mean competence in all situations.  Should a nursing home RN stop at the scene of an accident when there's no medical professionals on scene? Yes, probably. Is she going to be able to do much other then call 911, and maybe do CPR if someone is unresponsive and pulseless? Not really.

People die. It sucks. Whether it's because of slow reaction times, equipment failures, weather, or just that it was beyond our control, it's going to happen. We try our best, but we do so with the spirit of safety in mind, so that we don't add more casualties to an already crappy situation. Sometimes we make the save, sometimes we don't.

I'm not disagreeing with any of that. My mom & brother are both RNs here in town. My brother at County ER dodging bullets between tackling people. My mom on the other hand is flaoting pediatric charge nurse at Tx Childrens & does a couple wknds a month up your way at Vanderbilt. Neither one carries any kind of first aid kit in the car, much less trama bag, and the only thing they'd do passing an accident in the city is duck a little so no one sees them in scrubs. A major accident in a more rural area when no medical personnel are on scene would be an entirely dif situation.

The law here says they have RN after their name, so they are required to stop even if medical personnel are on scene, and are required to render aide within the limits of their training & ability. The problem comes when you DO have the ability but choose not to use it for your own reasons. That's what's illegal here. While applying it to medical professionals is an easy example, it does also aply to CAP members as trained, experienced, certified (on a 101) SaR personnel. You un-volunteering for a less than appropriate reason will get you tossed in the can with a fat fine on top. Granted it's probably not going to be prosecuted, but you won't know that till you see how big the stink is after the fact. If there's lawsuits flying around & some bad PR, you may very well get hit w/ a criminal charge.

Far as not having a current fm5 making you unsafe, I have to go w/ Kach here in saying that's not how the FAA sees it. It is a violation of insurance conditions, and that is a serious risk to be taking on. A member shouldn't be placed in that position, if anything the org should accept the liability (NOC) & let him fly, otherwise you're stuck. The above law would not be an issue as you are not currently qualified to do the job. You might get some argument given the FAA says you are, but generally if you stick to the book you'll be fine. It's where that can't be done or it doesn't spell things out (all the time) that you get caught in a tight spot.

[RiverAux]

I'm not a laywer but I think that in most situations such as this your liability (civil or criminal) is based upon what a "reasonable person" would do in your situation. 

With the non-form 5 pilot I'm fairly sure that a reaonable person could not be expected to break the rules of the organization in order to fly a CAP plane to an area that might have a wreck in it.  Especially if he was worried that someone higher in CAP might decide that since he didn't have proper authorization to fly the plane he technically stole the airplane (I've heard rumors of this charge being made against people.  Don't know if its true). 

With the GTL refusing orders of an IC.  Lets say the GTL did a hazard assessment and in his opinion it was unsafe to search where the IC told him to go.  A reasonable person wouldn't expect him to take his team and do something unsafe. 

Now, lets say the GT found a badly injured survivor but did nothing.  They were First Aid qualified and did nothing.  They had excellent radio contact but didn't tell anyone they had a survivor.  They had cell coverage and didn't call 911.  The latter two inactions were in opposition to noraml CAP procedure.  And then the survivor died.  Those folks might definetely be open to civil or criminal charges since a reasonable person would especially have made the radio or cell call for help. 

Now just because the reasonable person argument might let you win the lawsuit, the family could still file it anyway if they wanted and you might or might not get CAP help in defending it. 

[JohnKachenmeister]

I'd LOVE to see a prosecutor take a case before a judge that the GTL "stole" the airplane.

"Let's see, a CAP member flying a CAP airplane... Who stole what?"

And also, in the scenario, the IC was asking that the GTL merely ferry the plane back to base, not act as a Mission Pilot.

[TankerT]

What is this thread... like... CAP Pilot D&D?

The IC casts "Power of Flight" on the GTL.  The GTL gains flight +4.

GTL flies the airplane, but runs into the Level 6 CAP Regulation of Doom.

GTL is banninated from this realm, and forced to join the Sea Cadets.

/My story is more realistic... and entertaining...
//Was an Adult Instructor with the Sea Cadets until my unit disbanded.

[Al Sayre]

Tanker, you owe me a keyboard!

[DNall]

What is this thread... like... CAP Pilot D&D?

The IC casts "Power of Flight" on the GTL.  The GTL gains flight +4.

GTL flies the airplane, but runs into the Level 6 CAP Regulation of Doom.

GTL is banninated from this realm, and forced to join the Sea Cadets.

/My story is more realistic... and entertaining...
//Was an Adult Instructor with the Sea Cadets until my unit disbanded.

Holy crap, that's brain hemeroging from my ear.

I guess you could make a case for unauthorized use, not theft. Kid can't just drive off in mom's car cause they're related.

I wasn't pushing the good samaritan/legal obligation argument to be silly about this. I was trying to draw the CAP civilian volunteer parallel to UCMJ. Too many people talk about us being volunteers & act like we're really free to do what we want. That's crap & gets us treated like crap (off the street volunteers) by the AF & professional emergency responders. There's certainly a moral obligation to follow orders, a reg obligation unless you feel like quitting CAP, and I was trying to make a case for a basis in state law that I don't think a lot of people have thought about but may find useful in motivating their people to think of this as a disciplined paramilitary organization rather than a habbiest flying/SaR club.

The no answer moral quandry of this conversation is useful to test our minds occationally as officers. Lord knows I'd prefer not to be faced with such a situation & that be the first time I'd ever considered the possibility that regs aren't going to tell me how to do everything including wipe my butt, where else I might look for guidance, and hey maybe prod the common sense nerve to make sure it still works when needed.

[lordmonar]

You keep bringing up examples of professionals who are duty bound to act by state law.  A regular John Doe CAP member is a whole nother story. 

That being said, anyone can sue anyone over anything. 

Well there is the rub.

In CAP we have only a personal oath forcing us to obey any order or regulation. 

In the simplest context....you can violate regs as far as your want to remain with the organization and as far as the organization will let you run with it.

That is the rub.   Let's forget the FAA, insurance, the victums.....what will CAP do?  Will cap 2b you because you refused to follow an order that violated regs?  NO...heck no!  On the same note...would they 2b you because you followed an order to violate regs?  Maybe....depends on the reg, the individual giving the order and the situation.

For example...Regional has not fired PAWG or CAWG CC's for their orders that violate 39-1 and they have not 2b'ed anyone in those wings for following those orders.

ERGO....we have a defacto example of that yes.....local commanders can issue orders that violate regulations and get away with it.

Because the rule enforcers don't care about THIS situation.  But if a wing commander said to heck with the form 5 process....I think that national would have some words with him.

It's called situational leadership.  It's what we teach our cadets (or should be).

[ADCAPer]

That is the catch 22 of the UCMJ.  All orders are considered lawful until proven otherwise...but we are responsible for our action even if we are ordered to do so.

I don't think that's exactly right. I can't find it in the UCMJ, but according to the Manual for Courts Martial, Section 916(d), (Discussion) "An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful."

[lordmonar]

I don't think that's exactly right. I can't find it in the UCMJ, but according to the Manual for Courts Martial, Section 916(d), (Discussion) "An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful."

(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring
the performance of a military duty or act may be
inferred to be lawful and it is disobeyed at the peril
of the subordinate. This inference does not apply to
a patently illegal order, such as one that directs the
commission of a crime.

So...unless it is "patently" illegal we must infer it to be legal.  So any gray order is considered to be legal.

[JohnKachenmeister]

Lord M:

You are correct.  You disobey an order at your peril.  In combat, disobeying an order can be a capital offense.

But, an order that is ON ITS FACE illegal, should not be obeyed.

Illegal does not mean "Contrary to regulations."  I wish I was paid on the basis of how many times I've heard general officers say:  "I don't care what the reg says, here's what I want done..."

Note to the congenitally stupid:  It got done.

In the Army, Cavalry units are FAMOUS for aggressively violating uniform regulations.  They wear unauthorized crossed sabre branch brass (the authorized "Armor" branch brass is crossed sabres with a tank superimposed over them) and they wear cavalry Stetson hats with their dress blues. 

Its all a part of their charm.