Potential major legal issue for the command of my unit and Battalion. To keep a long story short, the last two soldiers that have tried to ETS at the end of their 6 year contract have not been allowed to. I am positive both of these soldiers started their IRR packet 90-120 days before their ETS, as required; and that all of their paperwork and commander's counseling's were completed. Both soldiers are now 2 to 3 months past their ETS dates, and are being threatened with receiving U's if they do not continue to drill until they receive their IRR orders. I also know for a fact their IRR packets have been sitting at Battalion for over 3 months, but they have not been signed...for no reason other than to try and hold them. I would like to know if it is legal for this to happen, and what legal actions should be taken. Both of their contracts are 6 by 2. The command has threatened to give U's to any soldier to stops drilling after their ETS date, even if they did their IRR packet on time. I just don't understand how this is legal? It would be like being on active duty and coming to the end of your 4 year commitment and being told "hey we don't have ETS orders for you yet, so you have to stay"? Is this not a breach of contract? If so, should the command be required to give the soldiers excused absences after their ETS date if it is the commands fault for not having the IIR orders cut in time and not the soldiers??
It's in these Soldiers' best interest to continue going to Battle Assembly until they receive IRR orders no matter what the command or Battalion says. Have the Soldiers gone to IG or their SJA? Have they spoken to their UA/Commander/1SG about it? Are they in an MEB/PEB or facing a separation board? What is your role in this?
With more info it would be easier to respond. Research regulations and what is "legal" as well.
Posts: 131 | Location: Los Angeles, CA | Registered: 25 July 2011
You have two problems, and then I will address the legal issues. First problem, your chain of command sounds like a lot of other COC's when it comes to HOLDING soldiers. Commander's get rated on their retention rates, their enlistment numbers, etc... so many commands hold on to soldiers as long as possible. Sounds crazy, it is, it truly is about the numbers in many ways, including the budgets they are trying to get allotted. There are legal implications for any soldier held over their ETS date. Many Sm's don't understand, nor do SFB commands until it's too late. Then most SM's don't bother with a lawsuit after the fact, but it is actually illegal to hold any soldier beyond their ETS date, unless it is an involuntary war time stop loss. but even that situation requires a legal review of the individual. Be careful, especially as a USAR civilian UA, you are treading thin ice and you will make enemies fast if you ask overt questions of the chain of command, and even their JAG rep. Usually the CO has the BN or BDE JAG rep in their pocket. They will push the legal boundaries and even cross them, if their JAG rep is saying don't worry about it, these guys don't know the regs, you will find yourself fired. If you have inquired IAW regulations, and unfortunately it sounds like you have, prepare to cover your butt with the chain of command locally. What you can do is go above them as anonymously as possible, and drop an inquiry from one star and two star level G-1 reference packets not reaching their reviewing eyes.