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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33291
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I'm in the Marine Reserves and came upon a question you

Customer Question

I'm in the Marine Reserves and came upon a question you answered previously regarding what reservists can be tasked to do between drills. You said that the questioner's "platoon sergeant has no independent authority to task a reservist with duties outside the drill period" but that "In theory, the Battalion Commander could give such a task, but there would need to be a military necessity for such an order. It is not something that can be tasked routinely." Can you point me to a reference for those two assertions? I've been looking all over for a regulation or order that says one way or the other, but can't find one. Thanks!
Submitted: 7 months ago.
Category: Military Law
Expert:  P. Simmons replied 7 months ago.

Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help

Also, if you would like to chat on the phone, let me know and I can make that happen.

Marine, I recall that question.

The issue is one of jurisdiction. Under the UCMJ (military law) a Marine on active duty is subject to the UCMJ always (on duty 24/7)

For a reservist?

The rules are different. The UCMJ will apply during periods when a Marine Reservist is "on duty" or "called to duty"

So, for example, say you commit a crime during a drill weekend? Since you are in a duty status you could be prosecuted under the UCMJ.

But say the crime was committed during the week (not during a drill weekend)?

Since not in a duty status? There is no basis to hold the Marine reservist accountable under UCMJ

The authority for this is Art 2, UCMJ and United States v. Morita, 74 M.J. 116 (there is no UCMJ jurisdiction over a reservist who commits an offense when not in a military status – i.e., on active duty, inactive duty training, or serving with the armed forces).

You can read the case here
http://www.armfor.uscourts.gov/newcaaf/opinions/2014SepTerm/145007.pdf

The commander, by nature of their position, has the power to call a member to duty...so in theory they could require the Marine to show up and perform duties...but only pursuant to a lawful order that puts the Marine into a duty status so Art 2 UCMJ will apply

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 7 months ago.
Thanks for your quick response, but I'm still a bit confused. My question doesn't really pertain to whether an off-duty reservist can be charged under the UCMJ, but whether it's proper to assign an off-duty reservist with extra work, and if so, how much? That off-duty reservist probably isn't worried so much about getting charged for failure to obey a lawful order, so much as he/she is worried about getting a poor fitness report or getting harassed during the next drill weekend. Is there a regulation or relevant caselaw that reservist can point to in order to demonstrate that such assignments are improper?I guess a parallel might be a platoon sergeant who assigns one of his Marines to wash his car. This would obviously be an improper assignment, and there are regulations in place to protect the subordinate, well beyond ensuring that he won't be court-martialed. Is it the same for the reservist?Ultimately, my goal is to find a clear, unambiguous answer to this question that I can point to, regardless of what that answer is. Hopefully this is all clear, and if not, I'd be happy to discuss it by phone. BTW, I'm also more than willing to increase the fee if you need to spend extra time on this.Thanks!
Expert:  P. Simmons replied 7 months ago.

I sent the offer for a phone call...that would include any additional research needed after we initially speak.

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