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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18854
Experience:  Lawyer and current JAG officer.
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I'm looking way our of the national guard. It is conflicting

Customer Question

I'm looking for a way our of the national guard. It is conflicting with my civilian job and causing me to lose too much money.
JA: OK. The Military Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: No
JA: Please tell me everything you can about this issue so the Military Lawyer can help you best.
Customer: I travel the United States for work, which means I have to plan time off for my drill weekends which causes me to have to take more days off from work to begin with. Now this month I have to take off entirely for annual training. Didn't sign up for full months out. I'm losing roughly $10,000 by doing this.
JA: Is there anything else the Military Lawyer should be aware of?
Customer: I just got out of active duty last September. I'm not sure if they are supposed to be touching me for stuff like this for at least 2 years as well.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Military Lawyer about your situation and then connect you two.
Submitted: 9 months ago.
Category: Military Law
Expert:  Allen M., Esq. replied 9 months ago.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. Unfortunately, the legal loopholes that exist for separation are the tools of commanders, not the soldiers. What that means is that, if your command agrees, you absolutely have the facts that would justify a separation. You could make an argument for financial hardship, present paperwork to show that, etc. However, the problem with this type of separation is that, if the command is not behind it, it won't happen. There is no legal method to compel separation. There are simply options that the commander has available to him/her, provided you meet the facts to allow it. Even if you meet the facts, the command is not obligated to separate. Very few things legally compel a commander to even process a separation. Drug use and a civilian conviction, neither of which would result in a good situation for you. About the only other option you have here is to simply stop going. This is also problematic, because depending on the commander this can result in a negative discharge at best (a General or Other than Honorable) or a warrant being issued for your arrest, at worst. Now, the criminal law route is very uncommon and depends entirely on the motivation of the commander, because it is not easy to do. JAG's discourage it in the NG, because it's not really a practical option, but just as in separations, commanders are in charge of what action takes place. Commanders can and will (and have) ignore our advice and try things the hard way. If a warrant is issued, usually what happens is you go on with your life and then, perhaps a few years from now, you get pulled over for speeding or swerving or whatever, and then are placed under arrest for having an outstanding warrant. Even then, they rarely process a court martial and end up just separating you with an OTH following a board hearing, but it can be a major inconvenience. I know this is not a very favorable response. I wish I could tell you differently. I certainly understand the impact service can have on certain types of work. However, this is the truth of the law. If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.
Customer: replied 9 months ago.
Another thing is I got my full set of orders for this AT yesterday. How much time are they required to give?
Expert:  Allen M., Esq. replied 9 months ago.
There is nothing in the law that mandates how much notice you are supposed to be given. They can technically call you the day of and ask you to report. Now, in operation they don't tend to do that, but they could. The USERRA act protects your employment from termination, so the government can take the position that they have priority. The employer legally has to simply accept the orders, grant the time off and not punish you for it or they are subject to the Department of Justice coming after them. For this reason, knowing that you are protected by that law, commander's don't typically accept employer issues as a basis for separation.
Expert:  Allen M., Esq. replied 9 months ago.
Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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