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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
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Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I was just wondering about RCM 707 and RCM 204. When a reservist

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I was just wondering about RCM 707 and RCM 204. When a reservist is brought on active duty strictly for judicial process, my understanding is the 120 day clock starts at time of entry for the reservist. If the case does not go before 120 days and the reservist charges are dismissed with prejudice due to the 120 day time period. Do you need to deactivate the reservist and reactivate to active duty to be counted as a new 120 day time period?
Submitted: 8 months ago.
Category: Military Law
Expert:  Marsha411JD replied 8 months ago.
Hello,

Thank you for the information and your question. If the charges are dismissed "with prejudice" they can never be refiled. That means there isn't a second chance for the Command to charge and prosecute the Reservist for the same crime. So, the issue of deactivation and reactivation is really moot. That said, the military service could keep them activated or other reasons if those reasons are legitimate under the regulations.

But, for arguments purposes, if the charges had not been dismissed with prejudice, then if the reservist was held on active-duty to be assigned actual duties or deployment, then the clock would start again when the Reservist was actually either given notice of repreferral of charges, or pretrial restraint.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 8 months ago.

My typo graphical error on dismissed with prejudice but thank you for answering without prejudice. But here is the situation I am trying to understand.


 


Judge dismissed the charges without prejudice for 120 day speedy clock violation. The reservist was only brought on active duty for judicial process. Do you need to deactivate the reservist and activate him again to start a new 120 day clock and where is that in the manual? THanks

Expert:  Marsha411JD replied 8 months ago.
Hello again and thank you for the clarification. I probably was not clear in my reply in the last paragraph of my answer, which was meant to address the situation of a dismissal without prejudice. So, I will reword that and try to make it more clear. The Manual would not have a section for the steps to take if a case is dismissed. It only contains the basic rules and then the courts have to make a determination on specific cases if there is a motion by a defense counsel to dismiss the case base on (in this case) a violation of the RCM, or if there is an appeal of a conviction.

However, based on my experience, it would not be required that the Service release the Reservist from active-duty and then recall them again in order to start the clock over. What would start the clock over is the repreferral of charges. In other words, this was "without" prejudice, which means the charges can be rereferred and then that is that start of the new clock since the reservist is already on active-duty and preferral of charges is one of the 3 actions that start the clock.
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 16973
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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