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Weingarten and the UCMJ

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  • Weingarten and the UCMJ

    Question for anyone who can answer this...

    We had a reservist on our facility (we have UCMJ authority) who is also a civilian employee. Said employee is under investigation for an administrative offense as a civilian and committed said offense as a member of the reserve while on property. Subject was apprehended per the UCMJ and invoked his right to remain silent. Subject is stating that since activity occured as a civilian employee that he may only be subject to Weingarten rather than the UCMJ. My thought is that the the person is on reserve duty and is subject to the UCMJ and anything he states can be used against them in the admin investigation as a civilian employee.

    Any help would be appreciated.
    I don't answer recruitment messages....

  • #2
    Originally posted by orlandofed5-0 View Post
    Question for anyone who can answer this...

    We had a reservist on our facility (we have UCMJ authority) who is also a civilian employee. Said employee is under investigation for an administrative offense as a civilian and committed said offense as a member of the reserve while on property. Subject was apprehended per the UCMJ and invoked his right to remain silent. Subject is stating that since activity occured as a civilian employee that he may only be subject to Weingarten rather than the UCMJ. My thought is that the the person is on reserve duty and is subject to the UCMJ and anything he states can be used against them in the admin investigation as a civilian employee.

    Any help would be appreciated.

    Just to clarify, in which capacity was the person acting when the offense was committed, as a reservist or as a civilian employee?
    Going too far is half the pleasure of not getting anywhere

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    • #3
      Originally posted by L-1 View Post
      Just to clarify, in which capacity was the person acting when the offense was committed, as a reservist or as a civilian employee?
      He was caught during his reserve duty by my agency.
      I don't answer recruitment messages....

      Comment


      • #4
        Originally posted by orlandofed5-0 View Post
        My thought is that the the person is on reserve duty
        30+ years ago I knew the UCMJ pretty well. Man, you gave me a headache on this one, so I tried to narrow it down to the portion of the quote above. What is your determining factor(s) that places subject on duty at the time of the offense?

        L-1 beat me to it.
        Last edited by zeplin; 04-04-2010, 12:08 AM. Reason: added last line
        sigpic

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        • #5
          Originally posted by zeplin View Post
          30+ years ago I knew the UCMJ pretty well. Man, you gave me a headache on this one, so I tried to narrow it down to the portion of the quote above. What is your determining factor(s) that places subject on duty at the time of the offense?

          L-1 beat me to it.
          Subject was in full uniform, in a GOV and it being 11:30 am prior to being released for lunch when we caught them. Subject was caught by his boss about a week earlier doing the same offense and it was brought to the attention of hr, section supervisor etc..

          I guess my question would be, if he recieves whatever punishment the military dishes out (counselling letter, reprimand letter, art. 15) can this be used against him in his civilian employment reprimand or would Weingarten cover this?
          I don't answer recruitment messages....

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          • #6
            Before I respond, can you tell me what he did? Knowing that would help greatly.
            Going too far is half the pleasure of not getting anywhere

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            • #7
              Originally posted by L-1 View Post
              Before I respond, can you tell me what he did? Knowing that would help greatly.
              I was wondering the same. Two like crimes at different times & places.

              Orlando, have you talked to legal about this?
              sigpic

              "Po Po coming through!" all rights reserved DJS



              'Do we really need 'smart bombs' to drop on these dumb bastards?'

              http://www.snipercompany.com/

              M16/AR15/M4 Armorer

              Comment


              • #8
                Originally posted by orlandofed5-0 View Post
                Subject was in full uniform, in a GOV and it being 11:30 am prior to being released for lunch when we caught them.
                UCMJ if he's on orders..... Ask/check for his orders....


                Originally posted by orlandofed5-0 View Post
                can this be used against him in his civilian employment reprimand or would Weingarten cover this?
                Civilian employment can/will use it against him....

                Comment


                • #9
                  L-1, subject was caught with a contract employee in mutual masterbation.

                  Unfortunatly, our legal doesnt handle this as it goes to the USAO. Since we did not catch this during his civilian employment it goes the HR/ boss route.

                  Bearcat, unit drills every first weekend of the month so we know he was on his weekend drill.

                  Bearcat, he refused to answer any questions and is lawyering up through AFGE. We deciede to go UCMJ route since his case would of been stuck at the magistrate level. We feel the unit's punishment would be harsher than what he would of got at the US district court.
                  I don't answer recruitment messages....

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                  • #10
                    Get copies of his orders.... and it's UCMJ all the way. No issues at all there.... It will clearly state he's .mil during on the time/date you caught him...

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                    • #11
                      lol


                      please tell me it wasnt another dude..
                      In the end we're all just chalk lines on the concrete drawn only to be washed away, for the time that I've been given, I am what I am. I'd rather you hate me for everything I am, Than have you love me for being something that Im not

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                      • #12
                        I Think You Have A Double Whammy

                        Actually, I believe there are grounds to take action both under the UCMJ and for administrative discipline by his employer as well. Follow my logic here for a second.

                        First, he was acting in his capacity as a Reserve and under orders when the incident occurred, so as Bearcat said, UCMJ is a done deal.

                        However, even though he was off duty from his civilian job and acting in his capacity as a Reserve, that still doesn't relieve him of his duty to refrain from engaging in misconduct on his employer's premises. Let's assume he was not acting as a Reserve but was simply off duty from his regular employment. He would still be subject to punishment if caught engaging in lewd acts on his employer's premises while off duty.

                        Under the circumstances, I believe he is liable for disciplinary actions from both employers. UCMJ investigations are not subject to Weingarten. Assuming information from the UCMJ investigation is public record, using it as evidence in any administrative action in his civilian employment should not be a problem. However, should you choose to do so, I would suggest that any administrative investigation not commence until after the UCMJ matter has been adjudicated, Otherwise, the employee may allege that information from the administrative interrogation is being improperly used against him in the UCMJ matter.

                        OTOH, if there is a desire to fire this guy ASAP, have two different agencies conduct separate investigations to ensure nothing from the administrative side is shared with the UCMJ side.
                        Going too far is half the pleasure of not getting anywhere

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                        • #13
                          Originally posted by L-1 View Post
                          Weingarten.
                          http://www.umass.edu/usa/weingartenqa.htm

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                          • #14
                            Man you are in a “sticky” situation what advice did your attorney give you?

                            He is screwed on both sides, military gets him he was on drill status, civilian side can get him on conduct unbecoming a federal employee. Weingarten only applies to his actions as a civilian employee; it will not cover him for his actions as military. Same thing with AFGE they can only rep him for the actions as a civilian employee and cannot touch any of the actions from the military.
                            It could be that the purpose of your life is only to serve as a warning to others.

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                            • #15
                              If he was reserve on drill weekend, then he falls under UCMJ. The only issue would be if he was National Guard, where drill weekends fall under title 32 status, and he would have to be charged under his state's version of the UCMJ. Either way, the military has him.

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