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Class A service and AWOL

ModlrMike

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Question: is it possible to successfully charge a Class A reservist under Sect 90 for having missed a duty watch?

It is generally accepted wisdom that reserve members are only subject to the CSD under specific circumstances. That being said, I note that QR&O 103.23 does not explicitly mention reserve service in the context of AWOL. In fact, if you read down to sub para (K) on drafting charges, it stats that:

"failing to obey an order of which he ought to have been aware (although misapprehension arising from want of clarity in the order may be ground for excuse)."

I would submit that in order to rely on this principle, one would have to ensure that the member was aware of the duty. Given that Routine Orders are emailed out to everyone, and that there is a requirement under the NDA to acquaint oneself with orders and directives, I propose that you could make a case for AWOL in this instance. Even if the member claimed they did not get the email, they're still bound by the requirement to be aware of the contents of Routine Orders, which are available to them. Provided they're not NES during the period the ROs were promulgated, they're still liable in my mind.

Opinions... thoughts... comments...

QR&O 103.23
 
About 15 or so years ago we charged a member for being absent during a weekend course. mbr had signed the pay sheets on Friday evening and sometime the next day he decided to just walk away from the armoury.
 
Problem: If they are not subject to the CSD at the time of the offence, they cannot be found guilty of an offense under the CSD.

So, if your charge sheet states that they were not present when they were on duty, but they were not subject to the CSD at that time because the conditions under s60 were not met, you lack jurisdiction and the charge gets tossed.  (Plus your local JAG gets upset with you).

There's 294 of the NDA, but that's under a civilian court. (Text below)

However, nothing would preclude administrative action for the same problem... and admin action can lead to a less than favourable release item...



Failure to attend parade
294 (1) Every officer or non-commissioned member of the reserve force who without lawful excuse neglects or refuses to attend any parade or training at the place and hour appointed therefor is guilty of an offence and liable on summary conviction for each offence, if an officer, to a fine not exceeding fifty dollars and, if a non-commissioned member, to a fine not exceeding twenty-five dollars.

Marginal note:Each absence an offence
(2) Absence from any parade or training referred to in subsection (1) is, in respect of each day on which the absence occurs, a separate offence.

R.S., 1985, c. N-5, s. 294; R.S., 1985, c. 31 (1st Supp.), s. 60.
 
Yes,
It's possible and been discussed on the site before.

I don't have the time to search, but use this search template on Google.

"site:navy.ca ???" and you come close to your answer.
 
dapaterson said:
Problem: If they are not subject to the CSD at the time of the offence, they cannot be found guilty of an offense under the CSD.

So, if your charge sheet states that they were not present when they were on duty, but they were not subject to the CSD at that time because the conditions under s60 were not met, you lack jurisdiction and the charge gets tossed.  (Plus your local JAG gets upset with you).

There's 294 of the NDA, but that's under a civilian court. (Text below)

However, nothing would preclude administrative action for the same problem... and admin action can lead to a less than favourable release item...



Failure to attend parade
294 (1) Every officer or non-commissioned member of the reserve force who without lawful excuse neglects or refuses to attend any parade or training at the place and hour appointed therefor is guilty of an offence and liable on summary conviction for each offence, if an officer, to a fine not exceeding fifty dollars and, if a non-commissioned member, to a fine not exceeding twenty-five dollars.

Marginal note:Each absence an offence
(2) Absence from any parade or training referred to in subsection (1) is, in respect of each day on which the absence occurs, a separate offence.

R.S., 1985, c. N-5, s. 294; R.S., 1985, c. 31 (1st Supp.), s. 60.

Bingo. That's the DS answer.

One very minor add-on. While the member may not be subject to the CSD when he is not there to perform the duty, he might be, coincidentally, subject to the CSD for one of the other stated reasons (for example, he attends at the armouries and goes to the mess for a drink when he should be on duty. He would at the time be subject to the CSD under s 60(1)(c)(viii) by virtue of being in a defence establishment at the relevant time)

:cheers:
 
Except, on reflection, one of the situations where a Res F member is subject to the CSD is when they are "on duty".  Defined in s33 in a way that's almost as vague as "active service".

Regardless, the charge would go to court martial, and the JAG's prosecutors and defenders would bash each other all over the head over it, and make a mess...
 
kratz said:
Yes,
It's possible and been discussed on the site before.

I don't have the time to search, but use this search template on Google.

"site:navy.ca ???" and you come close to your answer.

Was that some time ago now?  I can't imagine an instance nowadays where a Cl A or even Cl B reservist who wasn't subj to the CSD was found guilty of a service offense.  Or that, even if it happened, it wasn't thrown out on review by the AJAG.

If I was doing the UDI and looking at the elements of the offense, they could not be met and my recommendation to the Charge Layer would be to not proceed.

Whether the unit decided to pursue admin actions could be entirely different, however. 
 
dapaterson said:
Except, on reflection, one of the situations where a Res F member is subject to the CSD is when they are "on duty".  Defined in s33 in a way that's almost as vague as "active service".

Not really.  Cl B pers are on duty as detailed in the Unit ROs, or something like that where duty hours are published by the CO.  If a Mon-Fri 8 to 4 worker on CL B at their reserve unit gets into a fight downtown on Saturday night, they are not 'on duty' and not subj to the CSD.  There would have to be evidence to show the mbr was 'on duty'.  I'm sure most CL B folks working at reserve units don't know they aren't subj ot the CSD 24/7 during their class B employment.  If the mbr is on CL B with a Reg Force unit, that is different and they are subj to the CSD 24/7.

When looking at the 'elements of the offense' items, while it might not be covered in Vol 2, Chap 103, it is covered in Vol 2, Chap 102 Disciplinary Jurisdiction, Art 102.01:

"60. (1) The following persons are subject to the Code of Service Discipline:

c.an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

i.undergoing drill or training, whether in uniform or not,
ii.in uniform,
iii.on duty,
iv.[Repealed, S.C. 1998, c. 35, s. 19],
v.called out under Part VI in aid of the civil power,
vi.called out on service,
vii.placed on active service,
viii.in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,
ix.serving with any unit or other element of the regular force or the special force, or
x.present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

I've seen Cl A mbr's not show up for a weekend trg event, but show up that Sat night at the Jnr Ranks mess and then proceed to argue with their superiors about why they weren't able to make it for trg but could make it for beers.  He didn't think he was subj to the CSD because he wasn't 'signed in or in uniform' but he found out later he was during the disciplinary proceedings.  That one saw a MCpl go back to Tpr.

* this topic is (or was, in my case) covered in fairly significant detail during my UDI/CL training with the AJAG;  I'd say 99% of the audience (MCpls to Majors) learned a thing or two about A and B class reserve mbrs and when the CSD applies to them. 

** reference site on the DWAN:  AJAG (Atlantic Region): http://halifax.mil.ca/AJAG/ ;  specifically the documents under the tabs on the left side of the page called “Military Justice” and “Chief’s Corner”. 
 
Ok...

Let's say that they parade on tuesday and they're told "you're on duty watch next thursday, ensure you're here.", and they subsequently don't show up. Then they parade at the next scheduled night.

There has to be some recourse for the chain of command.
 
There is: 

http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-5000/5019-0.page

http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-5000/5019-4.page

Administrative Actions Versus Disciplinary Actions

3.13 Administrative actions are not punishments under the Code of Service Discipline.
3.14 Both disciplinary actions under the Code of Service Discipline and administrative actions are meant to address a CAF member's conduct or performance deficiency. They may operate independently or one may complement the other.
3.15 Disciplinary actions and administrative actions serve different purposes. Disciplinary actions possess a punitive aspect that administrative actions do not. Disciplinary action is initiated only if there are sufficient grounds to justify the laying of a charge under the Code of Service Discipline against a CAF member.

7.2 All forms referred to in this DAOD and all correspondence indicating conclusion of a monitoring period shall be kept permanently on the CAF personnel record.
---------------------------------------------

If there are valid CM (Corrective Measures) that can be detailed in the RM "member shall report, at the earliest known time, to their superior officer(s) once it becomes known to them that they require to miss any scheduled and published trg events...failure to do so may result in further, more severe, administrative actions being taken...".


This is one of the big differences between now and the old "verbal warning/written warning/C & P" days;  unlike a fine of $50 -$100, all RMs are retained on the mbr's file indefinitely and should follow them until they release whereas for minor fines etc they'll eventually be removed from their Conduct Sheet.

Also, if the mbr is a 'first time offender', you could also give issue them a 5B/adverse PDR and up the score to RMs if they continue to do what they're doing (less formal than a RM but supporting doc's if it continues and RMs are sought).

Don't get me wrong;  I'm not saying what they're doing is "ok" because their A Class;  to not even have the decency to phone so a replacement can be sought is very irresponsible;  that is why you can help the member 'overcome their deficiences' and help themselves thru things like Remedial Measures.  ;D

 
ModlrMike said:
Ok...

Let's say that they parade on tuesday and they're told "you're on duty watch next thursday, ensure you're here.", and they subsequently don't show up. Then they parade at the next scheduled night.

There has to be some recourse for the chain of command.

All kinds of consequences are available but at the time that the offence of not being there happens, the Class A reservist is not subject to the CSD and therefore cannot be tried for an offence of being absent.

Basically you have to look at the structure of reserve service. It's still tied to the old system from over a century ago. Basically most reservists on Class A are operating under NDA s 33(2)(a) which is "ordered to train". Very rarely are they "called out on service to perform any military duty ..." under NDA s 33(2)(b).
By virtue of QR&O 9.04(2) the CDS has, by regulation, prescribed that a reservist may be order to train no more than 15 days on Class B service and no more than 60 days Class A service in a year.

Where a reservist does not show up for the ordered training, he may be charged BUT it has to be before a civilian court under the provisions of NDA 294(1).

The bottom line is that the law, as set forth by the legislature is complete. The NDA provides a judicial remedy for the very offence that you describe. The fact that you do not like the law as stated is not the problem. The problem is that when I was DJAG/Res I tried for seven years to get this provision worked on and in brief, I could not muster the backing either within JAG or at the Chief of Res and Cadets Council level to move it forward to where it had to be dealt with: Parliament.

:cheers:
 
ModlrMike said:
Let's say that they parade on tuesday and they're told "you're on duty watch next thursday, ensure you're here.", and they subsequently don't show up. Then they parade at the next scheduled night.

While this may stray a bit from the theme of disciplinary vs administrative measure, I'm a little confused about Class A reservists standing duties at their unit location on days other than scheduled parade nights.  Is this common?  It's been a long time since I served in/commanded a reserve unit and the memory may be affected by aluminum mess tins but I don't remember a Class A soldier ever being scheduled for duties other than Duty Cpl (or Duty Sgt) on a parade night (and that was mainly for the messes).  What does the sailor do when he stands "duty watch"?  It's not like your stone frigate is a threat to navigation.
 
Blackadder1916 said:
While this may stray a bit from the theme of disciplinary vs administrative measure, I'm a little confused about Class A reservists standing duties at their unit location on days other than scheduled parade nights.  Is this common?  It's been a long time since I served in/commanded a reserve unit and the memory may be affected by aluminum mess tins but I don't remember a Class A soldier ever being scheduled for duties other than Duty Cpl (or Duty Sgt) on a parade night (and that was mainly for the messes).  What does the sailor do when he stands "duty watch"?  It's not like your stone frigate is a threat to navigation.

Our duty watch consists of safety, security, and access control. We're in the middle of the city, and not the best part of town. Security is probably the most important thing we do.
 
ModlrMike said:
Our duty watch consists of safety, security, and access control. We're in the middle of the city, and not the best part of town. Security is probably the most important thing we do.

Not to derail this, but do sailors enjoy this? This sounds like it would be extremely boring and not a good use of their time. Is it voluntarily or does everyone do one every X days? I'm just generally curious.
 
FJAG said:
All kinds of consequences are available but at the time that the offence of not being there happens, the Class A reservist is not subject to the CSD and therefore cannot be tried for an offence of being absent.

Thanks for that... I thought as much, and I can't see anyone invoking NDA 294(1).

Well, it looks like remedial measures are the way to go.
 
runormal said:
Not to derail this, but do sailors like this? This sounds like it would be extremely boring and not a good use of their time. Is it voluntarily or does everyone do one every X days? I'm just generally curious.

As with all duty watches, there's going to be an element of boredom... like doesn't really enter into it. The frequency of duty watch depends on one's rank. For OS-LS once or twice per year. MS-P1 twice to three times per year, and SLt-Lt(N) likely 3-4 times per year. It's really just a numbers game. The watch itself is two days out of the week; the regular parade and admin nights, so in the end not too bad a deal. Much better than the watch schedule at sea.

 
ModlrMike said:
Our duty watch consists of safety, security, and access control. We're in the middle of the city, and not the best part of town. Security is probably the most important thing we do.
 

We have multiple buildings throughout the city, you could consider them middle of the city, some not in great locations either. We don't have any extra Duty personnel other than the daily assigned Duty NCO (Cl B) and at one location in particular, a Commissionaire.

Making a Duty Watch on someone's day off simply because the people actually working in the building on that day/the commissionaire can't be bothered is really silly. Not to mention you have your local police/nearby MP's to help support the safety and security part.

If access control is a problem, maybe you need to have a PSS conducted and put in work orders to have a proper control system out in place.  Ordering Class A Reservists to do a Duty Watch on a building outside the minimum service obligation, and expecting them to show up when honestly there's better things they could be doing, is kind of a dick move. Maybe those that don't have much work or are students it's not so bad but this seems a bit ridiculous and honestly, other than giving someone an IC I don't think you can/should do much else unless it's a repeat offence.

I would make it a voluntary task, ask people if there's anyone that would like some extra paid days to do it, but beyond that any Duty Personnel or Lockup Personnel are usually an NCO that is Class B and regularly works in the building as to not disrupt the lives/careers/studies of the Cl A folks.

That's just my opinion though, maybe your people don't mind.
 
You're missing the point:

Regular parade night duty watch. Same number of hours involved. Not something extra that they have to do on their "day off".

 
ModlrMike said:
You're missing the point:

Regular parade night duty watch. Same number of hours involved. Not something extra that they have to do on their "day off".

Who does it outside of the normal Admin/Parade nights? I'm not telling you how to run the show, but personally I have night classes 2 nights a week, 2 nights a week with the army and the other night is a social sports league. I don't really have any free time during the week and if my COC was "wasting" my time throughout the week the, I'd consider missing another night to make up for it. I'm busy, but I generally enjoy coming in on admin/parade nights.

If OS Bloggins can only commit one night a week and next week is his duty watch, then he/she has just missed another week of training. Likewise, looking at your breakdown the higher your rank the more often you do it. While I admire this, this then makes key players more often unavailable during parade/admin nights, which ultimately contributes to their inefficiency.

As a student getting paid to be pass control would be great, because I could do my homework and be paid for it. However once I graduate, you are just cutting in my free time, because I have work that needs to be done on the admin night that now gets shifted to my weekend. Yes, I could do my night school homework while essentially being a commissionaire, but I still need do whatever needed to be done that night outside of the army which makes it much less enjoyable. It's the people that make the job, not the job itself.

Paying LT (N) - $92 -> $122 / a night to be a commissionaire is expensive security.. Plus then you should be paying them for the work that they do on their personal time to make up for it.

Perhaps, I'm missing something or over simplifying the task at hand, but I don't know why this function isn't just out-sourced to the commissionaires.
 
ModlrMike said:
The watch itself is two days out of the week; the regular parade and admin nights . . .
ModlrMike said:
Well, it looks like remedial measures are the way to go.

So that we are all reading from the same page, did the sailor miss the "regular parade" or the "admin night"?  If a regular parade night, did any other sailors not show up that particular evening?  How many of those other sailors are being considered for remedial measures?

Okay, not wanting to sound like a barrack room lawyer (however, anticipating a barrack room lawyer's reasoning is sometimes a good thing) but, is your intention to find someway to punish the transgressor because this is a last straw WRT this sailor or is it more "pour encourager les autres"?  Don't answer that, else the offender if he visits this forum may be able to use your statement in a possible grievance.  I admit that my awareness of Naval Reserve culture is minimal and that such culture is likely much different from Militia Army Reserve Health Services Reserve culture.  Did the sailor in question violate a specific instruction (DAOD, CFAO, QR&O, Navy Orders, Unit Standing Orders, etc) when he did not show up or is the establishment of this "duty watch" something that just evolved organically to meet a perceived need?  Are there terms of reference for the duty that includes language that imposes a greater expectation or legal requirement to show up that exceeds current higher level regulations?  If the sailor, by not showing up for this particular parade night, was not much different than any (or a significant percentage of) other sailors, what makes his performance deficient to the point that remedial measures are required.

I found this, from the C Scots R, that clearly lays out their policy about attendance and the measures that will be followed if a member does not show up.  Does your NRD have a similar published policy?

http://www.canadianscottishregiment.ca/index.php?area_id=1011&page_id=1059
ATTENDANCE POLICY- (CLASS A RESERVE)

As with any employment, members are expected to attend all training sessions just as they would with a civilian organization. A training calendar is issued every September for the year indicating when training dates are and soldiers shall be governed accordingly. It is recognized that not all soldiers will be available at all times, because of school or civilian jobs. For this, there is an administrative form, named the Leave of Absence (LOA) form, which is in place to allow for absences from training in advance. You must call in, or fill out this form, to inform your supervisors if you know you will not be able to attend any specific training dates.

There are two separate periods that can be defined as a training session.  A full day of training, or any training that lasts more than six hours, and a half-day of training that is less than six hours, are both counted as training sessions. If you miss five consecutive training sessions you will be declared Non Effective Status (NES). The Battalion Orderly Room (BOR) will be notified and the NES member will be moved to an NES position, their record of service will be annotated and a letter will be sent to the member notifying them of their change in status.

NES personnel are automatically subject to the following sanctions:

1.        Immediate cessation of pay privileges;
2.        Immediate cessation of promotion eligibility;
3.        Cessation of mess privileges;
4.        No accrual of time towards time-in-rank, Canadian Decoration (CD),CFGP or Incentive Pay Category;
5.        No course nominations;
6.        Those mbrs already course loaded will be deleted;
7.        Immediate termination of health benefits including dental, SISIP Long Term disability coverage;
8.        Every effort will be taken to recover DND equipment on charge to the member, including contents of lockers held in unit locations;
9.        All applications for transfers will be ceased. If a member is reinstated, they must attend scheduled parades without an incident of AWOL or NES for six months before they may re-apply;
10.    Release after 44 days as Unsuitable for Further Service.

Those members wishing to be reinstated with the unit after being moved to the NES list must undergo counselling and receive approval from the Commanding Officer prior to being paid to parade.

LEAVE OF ABSENCE (LOA) and EXCUSED DRILL AND TRAINING (ED&T):

A LOA form is used when you need to miss one or two training sessions only. You must come to the base to complete the form a minimum of 5 days prior to the day or days you will be absent. If you fail to submit an LOA, you will be marked as absent. Three consecutive absences and you will be given a Recorded Warning by the CSM. Phoning in on the date of the training session is considered Short Notice; three short notices will result in a Recorded Warning.

Occasionally soldiers need to be away for longer periods due to travel or long distance work for 1-3 months. An ED&T formmust be completed and forwarded several weeks before you plan to start your absence. It must be approved prior to your absence and a basic out clearance from the unit must be done, which includes the storage of all kit at the company level by the CQMS. This is a cost saving measure in the event that you are unable to return.
 
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