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I am currently in the AF reserves and went through my chain…

Good morning. I am...

Good morning. I am currently in the AF reserves and went through my chain of command to get transfered back to the inactive reserves for financial reasons, but i was informed that our current commander would not sign my release because i have a failed pt test. Does he have the legal right to do that if i am trying to transfer out or get discharged for hardship reasons? Also alittle about my situation. I did 4 years active duty then was discharged to the inactive reserves. then i came back into the reserves and was going to swear in under a new oath, but there was so much confusion that i have not taken the oath of enlistment again. So what i have been told by the flight chief of recruiting for my base was that i do not really have any contract with the military. Is that true since i am technically serving to finish up my IRR obligation?

Lawyer's Assistant: Are you overseas or stateside?

Stateside

Lawyer's Assistant: Have you talked to anyone in the chain of command about this?

Yes i have gone to our first sergeant and he talked to the commander, but my shirt was more in talking to me about staying in because of the benefits and i just want to get out since my wife doesnt work and i am the only income for the house hold. My wife and i are getting ready to have our first child in june and she hasnt really been able to work because of being so sick with the pregnancy.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that i can think of.

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Answered in 44 minutes by:
3/7/2018
Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,567
Experience: Lawyer and current JAG officer.
Verified

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. (The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

Yes, he does. Releasing someone to the inactive reserves is a discretionary function of the commander. They never have to do it. It is always optional. When acting on a discretionary function then, the commander may take into consideration any legal factor he/she wishes. PT tests can be a factor that they take into consideration (unlike race or gender for example) because no rule has been made against taking that into consideration.

Because hardship separations are entirely at the discretion of command, they can choose to give them to those that have no other potential legal issues, like a PT test failure separation that could be the result of future failed PT tests.

If you have any further questions or other facts that you would like me to consider, 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 three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 4 months ago
Okay thank you sir. I do have another question i had a flight chief of recruiting look at my file and say that since i don't have a current contract obligation that technically i can stop showing up and nothing can be done is that true? Right now im just serving my IRR obligation and have not taken the oath again since i came back in the reserves.

I can't review your contract situation, so I don't really know. That being said, flight chiefs aren't attorneys and they regularly say things (in my experience) that sound good and are entirely wrong.

If that is the approach you wish to take, you need to run it by a trial defense counsel first rather than trusting your legal future to a non-attorney.

Plenty of people are in the IRR without ever serving at a reserve unit, so I'm not 100% sure that I agree with what you've been told here. You would be serving actively for some reason and though it may not have been formalized, it can be be formal enough to cause you a punitive discharge if you simply stop showing up.

Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,567
Experience: Lawyer and current JAG officer.
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Allen M., Esq. and 87 other Military Law Specialists are ready to help you
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Customer reply replied 4 months ago
Okay thank you very much sir.
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