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Gerald, Esq
Gerald, Esq, Lawyer
Category: Military Law
Satisfied Customers: 3433
Experience:  30 years of experience
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I have been in the national guard now over 4 years.

Customer Question

I have been in the national guard now for just over 4 years. Recently, i transitioned my civilian career and my compensation is 100% commission. I have drill one Friday, Saturday, and Sunday a month, as well as 2 weeks in the summer. It is hurting myself and my employer enough that I miss 2 big selling days a month, and will hurt more for the 2 week A.T. I just found out at this past months drill, for 'TY' 2017, we will be moving to Muta 8's, Thursday, Friday, Saturday, and Sunday. And our Annual Training will be a 3 week period instead of a 2 week period. I need to get out now, or I won't be able to financially support myself.
Submitted: 1 year ago.
Category: Military Law
Expert:  Gerald, Esq replied 1 year ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

Here is the Pennsylvania Statute regarding the discharge of enlisted personnel:

51 Pa.C.S.A. § 2312
§ 2312. Discharge of enlisted personnel
(a) General rule.--An enlisted person discharged from service in the Pennsylvania National Guard shall receive a discharge in writing in such form and with such classification as shall be prescribed by the National Guard Bureau, and in time of peace discharges may be given prior to the expiration of terms of enlistment, under such regulations as the Governor may prescribe, subject to the restrictions of the National Defense Act,1 or amendments thereto.

(b) Termination of Federal service.--On termination of an emergency in which enlisted personnel of the Pennsylvania National Guard shall have been called into the Federal service by the President of the United States in accordance with the provisions of the National Defense Act, such enlisted personnel shall continue to serve in the National Guard until the dates upon which their enlistment entered into prior to their call into the Federal service would have expired if uninterrupted.
(c) Termination of enlistment.--The term of enlistment of every enlisted person's enlistment contract will be for the period of his enlistment or until terminated by reason of any of the following:
(1) Death.
(2) Reaching the maximum age-in-grade limitations provided in Army and Air National Guard regulations.
(3) Physical disqualification.
(4) Any other reason enumerated in this title or for reasons specified in Army or Air National Guard regulations.
(d) Failure to meet qualifications.--In addition to the provisions of subsection (c), if during the term of enlistment it is determined that an enlisted person does not meet all the prescribed qualifications specified by the Federal regulations and if a waiver is not appropriate or authorized, then the enlisted person shall be discharged.

Essentially if your enlistment period is not up you have two other options to get out:

1) Physical Disqualification. That is not being able to meet the physical qualifications for service. This may be a medical condition, or failure to pass the periodic physical.

2) The other catch all is: Failure to meet qualifications. This pertains to numerous regulatory requirements under both the federal and the state regulation of National Guard and Reserve. Chief among these is failure to meet the drill requirement. If you fail to meet your drill requirement (AWOL) you will receive an administrative separation from the Guard.

Neither the federal nor state law provides any civil or criminal penalty for this situation. You may lose earned benefits but there is no penalty assessed at this time.

You can expect push back, perhaps some threats and intimidation, but if you send your CO and the Command JAG your resignation letter and cease attending drill you will receive the Administrative Separation.

Here are the regulations on Administrative Separations:

http://www.apd.army.mil/pdffiles/r135_178.pdf

(Note there have been bills introduced in the Pa General Assembly to provide for treating AWOL as a criminal Summary Offense. But no bill has passed the Pa House and Senate in this regard. A summary offense is the lowest level criminal charge for which the penalties are monetary fines. Since the proposed legislation has never passed it is not a concern for you.)

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

Please do not forget to give me a positive rating. It adds nothing to your costs but it helps me greatly. Thank you.

If you are dissatisfied with my response PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you and only ask the same from you.

Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

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