Civilians and the UCMJ

[wingnut55]

It seems that This blog repeats itself because of members who do not keep current in events or they are new.

This thread discusses UCMJ having authority over civilian workers in time of war or national emergency.
I suggest you google it because several years ago congress approved changes and signed by president Bush  that allows this. Look it up.

I really don't want to do it because we went into it in ad nauseum, and it seems that some people use this blog for their education rather then do their own research.

[JohnKachenmeister]

Those CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.

I doubt that. Seems like the fact that we're a corporation and volunteer (and paying for it to boot) there probably wouldn't be any real avenue to charge a CAP member under it. Now, if the state paid the yearly dues and had specific criteria for enlistment, it might be a case worth mentioning.

I'm really not sure, Hawk.  In some states, the relationship with the NG is basically the same as an MOU, in which case we would be acting as a corporation.  In other states, the state law places CAP under the AG.  I'm really not sure if state military law covers them or not.

[JohnKachenmeister]

If they commit crimes while on IDT status, or weekend drill, they ARE subject to the UCMJ.

that would not be entirely acurate......

State police at Jonestown on Wednesday accused Alan Ledford, 26, of South Coopersburg, and Sean McMenamin, 24, of Pottstown, of rape. Along with Matthew Taggart, 23, of Springfield, they face sexual assault and related charges following an alleged incident Dec. 15 in a barracks on Clement Avenue.

I cant find the same cite I saw before, but basically they are being charged as civilians not as military (ie UCMJ) because federal status only applies to the "2 weeks" part of NG service or title 10 mobilization, the rest of the time you are a "state" soldier.

mk

The authority exists to use the UCMJ, but that does not mean that it is always the best tool.  Being subject to the UCMJ does not provide exemption from civil law.

When I was a 2LT, I and my MP's apprehended 6 NG soldiers who had committed an armed robbery of three active duty soldiers on a National Guard post.  The mix of jurisdictions generated a big meeting, where it was decided (between me, the PM, the AD unit commander, and the NG SJA) that the best course of action was to turn the thugs over to civil authority. 

I used the UCMJ during IDT weekends as a company commander of a USAR unit only for pure "Military offenses."  AWOL, and stuff like that.  It was way easier to turn actual crimes over to civil authorities for prosecution.

[RiverAux]

  In other states, the state law places CAP under the AG.  I'm really not sure if state military law covers them or not.

No, no, no, no.  CAP is not "under" the AG no matter what the state law says about having an office in the AG department that deals with CAP issues, even if the local Wing Commander is head of that office.  The AG still can't tell that Wing Commander do do a darn thing and has no command authority over CAP. 

[JohnKachenmeister]

  In other states, the state law places CAP under the AG.  I'm really not sure if state military law covers them or not.

No, no, no, no.  CAP is not "under" the AG no matter what the state law says about having an office in the AG department that deals with CAP issues, even if the local Wing Commander is head of that office.  The AG still can't tell that Wing Commander do do a darn thing and has no command authority over CAP. 

That may be the case in your state, but in the 52 wings of CAP there are variations on the theme.  Colorado, for example, (and all I know is what I get from their website) places CAP as a co-equal subordinate agency with the Army Guard and Air Guard under the Adjutant General.  I think Kentucky places CAP under the "Military Department of Kentucky" under the supervision of the Asst. AG for Air.

What I do not know is if any of these relationships translate into criminal jurisdiction under the state codes of military justice at any time.  I know such prosecutions are so rare that I have never heard of one, but then, they are very rare even among guardsmen.  Filing civil charges or seeking administrative remedies to misconduct is way easier.

[RiverAux]

No state law can give command of a private organization to the state government and CAP regulations specifically preclude such an arrangement.  Those offices are there to provide support for CAP and/or coordinate actions between CAP and the state -- nothing more. 

[JohnKachenmeister]

No state law can give command of a private organization to the state government and CAP regulations specifically preclude such an arrangement.  Those offices are there to provide support for CAP and/or coordinate actions between CAP and the state -- nothing more. 

I think your analysis is off the mark.  First, we are not a private organization.  Even outside of our role as an instrumentality of the federal government, we are a public charter corporation.  Since we are chartered to, in part, provide services to state and local governments, state laws creating situations where CAP is utilized in that role would not conflict with our federal charter.

I really don't know of any regulation in CAP which would preclude CAP from being activated as an instrumentality of state government under the AG.  Since at least a handful of states already have CAP functioning as an element of the state's national guard, it is POSSIBLE that there might be some state military justice jurisdiction over CAP members mobilized on state missions.

I have never served in any of those states, so I cannot say if such is the case or not, but I think the law certainly would allow for such a condition to exist.

[RogueLeader]

Such was (is?) the case in Iowa, was that when being used as a State Asset, Cap Members had some of the samethings as NG troops.  We had the option, as individual members, of accepting the call.  At no time were we under UCMJ or state equivalent.  The State called, we answered, and no change in the game we played.

[JohnKachenmeister]

I just looked up the law in Kentucky, and it now gets even more confusing.

The CAP is, by law, under the Military Affairs Dept. of Kentucky.  The KCMJ states that it has jurisdiction over any person in "The National Guard or active militia," except those persons called into federal service.

The law further defines "Active militia" as "any volunteer defense force other than the National Guard."

So I think the case could be made either way...

CAP may come under the KCMJ when serving on duty as an asset of the state, but not when serving as an asset of the federal government, or...

CAP is not a "Volunteer defense force" within the meaning of the KCMJ, and would not fall under such jurisdiction.

In any case, any act of misconduct by a CAP member on duty would be way easier to resolve with civil charges, but it is an interesting consideration.

[RiverAux]

Since we are chartered to, in part, provide services to state and local governments, state laws creating situations where CAP is utilized in that role would not conflict with our federal charter.

There is a vast difference between using CAP for state missions, which is very common, and there being a command relationship.  The Governor of a state cannot call a Wing Commander and order them to launch a mission or to fire a squadron commander or to change the sort of uniform worn by CAP members in that state.  The Governor can request that CAP perform a mission for the state, which if CAP NHQ or the AF (depending on the mission) says okay, CAP will then perform it. 

I really don't know of any regulation in CAP which would preclude CAP from being activated as an instrumentality of state government under the AG.

Here are a few.  Somewhere there is a more comprehensive statement regarding control of CAP assets, but I can't find it, but these more or less make the point. 

CAPR 60-3 1-9

g. Basic policies of CAP directives remain in effect while acting under a joint agreement such as with the American Red Cross or state emergency response agency.

CAPR 60-3 1-15

e. The CAP incident commander or agency liaison will coordinate with the controlling agency while any assistants appointed will coordinate with the incident commander. Unless relieved by the appointing authority, the designated incident commander or agency liaison will make the final decision on all matters pertaining to CAP participation in the mission.

Also keep in mind that in every state there is an MOU between the state and CAP which lays out exactly how command and control over CAP is maintained and I don't think you're going to find one that says that the state can order CAP to pick up a gum wrapper much less launch a mission.

Now, keep in mind that I'm not saying that CAP can willy-nilly go do missions.  The appropriate state or local agency can definetely tell CAP whether or not they can participate in a mission.  However, if they say CAP can participate, at any time CAP can pull out of that mission or tell the overall IC that CAP will or will not carry out any particular task based on our own regulations and the CAP IC's judgement.  And when it comes right down to it, every CAP member has the right to quit right on the spot if they don't want to do something.  No state law is going to change all that. 

I know that you wish this could be the case (since you started a thread based on this premise a while back), but it could only be done if federal laws were changed and even no CAP member would fall under the state version of military law unless CAP members were also required to be members of a state militia unit such as a State Defense Force.  I'm not actually opposed to such a thing, but the state alone doesn't have the power to make it happen.