Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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LAW REVIEW 1002

Voluntary v. Involuntary Service—Continued 

By Captain Samuel F. Wright, JAGC, USN (Ret.) 

1.1.3.1—USERRA Applies to Voluntary Service

On Dec. 20, 2004, the Chief of Army Reserve (then Lieutenant General James R. Helmly) sent a memorandum to the Army Chief of Staff.  Although the memorandum was not intended for public consumption, several newspapers published it or quoted snippets from it.  I quoted from the memorandum and commented upon its implications in Law Review 161 (March 2005).  All previous Law Review articles are available at www.roa.org/law_review.

General Helmly made clear his understanding that the right to reemployment under the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies equally to voluntary and involuntary military service, but he nonetheless expressed his firm policy preference for primary reliance on involuntary mobilization, and his successor (Lieutenant General Jack C. Stultz) has retained this policy.  General Helmly wrote, “Requirement to use other than involuntary mobilization authorities places the burden of responsibility for service on the Soldier’s back instead of the Army’s back.  While the Soldier is still protected under USERRA, the Soldier is seen as having a clear choice by his family and employer.”

The Air Force Reserve and Air National Guard have followed a very different policy, choosing to rely primarily on volunteers to meet the ongoing requirements of the Global War on Terrorism (GWOT).  As of Dec. 29, 2009, there were 1445 Air Force Reservists on active duty involuntarily and 4314 (75% of the total) on active duty voluntarily.  For the Air National Guard, there were 2695 members on active duty involuntarily and 7252 (73% of the total) on active duty voluntarily. The GWOT (by whatever name) is likely to continue for a generation or more.  We need to formulate and implement policies that will work for the long term.  Accordingly, I urge the Air Force Reserve and Air National Guard to consider adopting the Army Reserve policy of relying primarily upon involuntary call-up authorities.[1]

The repeated call-up of Reserve Component members puts a major burden on civilian employers, and employers are increasingly complaining about the burden.  Employers are willing to put up with a lot, if military leaders will patiently explain that the burden is necessary for national defense, and if employers are convinced that the burden is being spread around fairly.  When a Component chooses to rely primarily upon volunteers, it is likely that a handful of members will volunteer repeatedly and most members will not volunteer.  This inevitably means that an inordinate share of the burden will be borne by the employers of the serial volunteers.  It is better to make the burden predictable and fairly distributed, by recalling members involuntarily and on an announced schedule. 


[1] This is my personal opinion and does not reflect the position of the Reserve Officers Association.

 

If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.

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