The US military’s reserve components have about thirty-nine days per year, a fraction of the time available to the active component, to train their units. In effect, this requires reservists and National Guard members to make sacrifices in the periods between regularly scheduled active and inactive duty training to execute a countless number of tasks necessary to improve military readiness, which takes time away from family and civilian work commitments. Moreover, these nonduty tasks are often completed without any compensation, and despite the many admirable motivations of those who serve, no one joined the military to work for free. It is time for the military to address this issue and work to establish a clear policy to properly and effectively compensate reserve-component servicemembers for their sacrifices outside of regularly scheduled training. Failure to do so results in illegalities, evasion of discipline, and undercompensation, all of which erodes the readiness of the reserve components.
If you’re in the Reserve or Guard, your part-time service is almost certainly not limited to one-weekend-a-month, two-weeks-a-year. There are far too many administrative and training tasks that cannot be accomplished within the limited time allotted during regularly scheduled training weekends or annual training. These tasks are countless but familiar: updating a thick stack of administrative paperwork like the Servicemembers Group Life Insurance (SGLI) form, contacting subordinates to ensure attendance for training, participating in conference calls, creating and submitting travel authorizations and vouchers through the Defense Travel System (DTS), updating information during a natural disaster through a service’s disaster response system, rendering professional advice and guidance, and an endless host of other military readiness tasks. Though most reserve-component units have full-time staff members who run day-to-day duties, they often lack the time, authority, or necessary information to accomplish all of the tasks without help from part-time servicemembers. There are simply not enough hours in the day for full-time staff to input part-time servicemembers’ beneficiary preferences for an SGLI form, complete their travel arrangements through DTS, or handle other time-consuming individual tasks, especially when a small or understaffed full-time staff with too few computers or other necessary tools manages hundreds of servicemembers in a Reserve or Guard unit. It inevitably, therefore, falls to part-time servicemembers to complete these tasks in between regularly scheduled training.
The problem arises when the need to complete these tasks is emphasized without a policy to ensure part-time servicemembers are properly compensated for the time it takes to complete such tasks. Under applicable regulations, reserve-component servicemembers are compensated on an “active duty” status (which generally funds long tours or deployments) or “inactive duty” status (which funds routine weekend training). But these tasks are, for lack of a better term, “nonduty” tasks. All “nonduty” tasks are inherently uncompensated, as the task is completed without having any funding under an “active duty” or “inactive duty” status. “Nonduty” does not necessarily mean “unauthorized,” as the task itself may be authorized explicitly or implicitly by competent authority yet still lack proper funding.
There are no detailed studies on how widespread the practice of conducting nonduty tasks occurs across the reserve component. Still, the military is aware of the problem: a recent Army document based on a survey of over four hundred respondents identified a range of problems, including that the strain of meeting readiness requirements “manifests in additional time necessary to meet requirements outside of the espoused one weekend a month, two weeks a summer recruiting hook.” According to the soldiers surveyed in this document, readiness requirements “quite often ha[ve] reservists working overtime for no pay,” and “there is a greater expectation that Soldiers, on non-pay status, complete military work in order for the unit to maintain their readiness.” This creates a host of problems that should worry the military deeply.
The Legal Issue
It’s illegal for leadership and staff to direct reserve-component servicemembers to conduct tasks without compensation. The federal government, including military leadership and staff, is barred from accepting voluntary (i.e., uncompensated) services by 31 US Code § 1342 (part of the Antideficiency Act, or ADA). Absent specific statutory authority, the acceptance of voluntary services is a per se ADA violation.
There are exceptions to the ADA’s voluntary-services prohibition, but there is no known general exception that permits a reserve-component servicemember to perform nonduty tasks. The primary exception built right into the prohibitive statute is an emergency, but the emergency must involve the safety of human life or protection of property, not the ongoing, regular functions of government. Under this definition, it is an absurdity to argue that updating SGLI forms, participating in a routine conference call, or other common nonduty tasks constitute an emergency. During the 2019 government shutdown (caused by the ADA’s prohibition on unfunded government services), Secretary of Defense James Mattis stated that “training for almost our entire reserve force will stop” until Congress approved funding. Therefore, it is unlikely that nonduty tasks would fall under the “emergency” exception. Another exception permits the secretary of defense or the service secretaries to accept unpaid services from reserve officers in the form of “consultation upon matters related to the armed forces.” But again, the exception is not the same as performing routine training and tasks. Furthermore, this exception only applies to officers, not enlisted members. Lastly, an exception permits a volunteer to waive his or her right to compensation in a written agreement (including a specific exception for members of the National Guard—though, it’s important to note, this article focuses exclusively on federally funded duty for reserve-component servicemembers), though advisory opinions published by various federal agencies suggest federal employees cannot waive regular compensation if a separate statute establishes entitlement.
As the ADA prohibits an “officer or employee” from accepting voluntary services, the responsibility for the illegal acceptance of voluntary services in violation of the ADA may rest on full-time staff who fail or refuse to process pay for nonduty tasks or a commander who denies a request for compensation. An ADA violation is serious; civil servants have been disciplined or had their careers terminated for such violations, and criminal prosecution is possible.
Not only are nonduty tasks illegal under the ADA, but a reserve-component servicemember who commits a criminal act while performing nonduty tasks can escape military discipline due to lack of jurisdiction. The resultant risk is an erosion of discipline.
In United States v. Morita, an Air Force Reserve officer was accused of forging 510 signatures to place himself on travel orders, receiving over $124,000 for false claims. Though the Air Force convicted him at the trial level for all 510 false claims, Lt. Col. Steven Morita appealed to the Air Force Court of Criminal Appeals and claimed that, under the Uniform Code of Military Justice (UCMJ) Art. 2(a) and 2(c), the service had no jurisdiction over him for some of the false claims because he was not on orders or any duty status. The appeals court agreed with him.
The Air Force then appealed to the Court of Appeals for the Armed Forces and argued that Morita “strived to enter into active status to reap the bountiful benefits of military service without the burden of being subject to military jurisdiction for criminal offenses committed within such status. This would lead to an absurd result. . . . [Morita’s] devious scheme to exploit the statutory peculiarities of temporary reserve duty does not obscure the reality of his status as a paid Air Force reservist. . . . This Court should not permit [Morita] to claim a lack of jurisdiction based on his own fraudulent efforts to subject himself to jurisdiction.” The court disagreed, holding that Congress intended to prosecute only those subject to valid military orders under the UCMJ. The court reduced the number of forgeries Morita committed from 510 to 178 and advised that prosecution for the remaining 332 forgeries is possible through civilian federal courts. We are left with the absurd result the Air Force warned of.
Considering the number of tasks that are often completed in a nonduty status, it is bizarre that a reserve-component servicemember could not be prosecuted by the military for committing a crime based solely on the fact that he or she was not in a duty status. Congress could resolve the problem. In fact, Congress recently passed the Military Justice Improvement Act of 2016 and closed a number of reserve-component jurisdictional gaps. However, Congress did not address disciplinary issues arising out of any nonduty tasks, so we have to continue to rely on the absurd result of Morita. Leaders must ensure their reserve-component servicemembers are in a duty status while completing tasks so that the UCMJ is not rendered useless if a disciplinary issue arises.
Failure to properly compensate reservists for nonduty tasks can lead to a loss or denial of not just pay and retirement points, but also disability and other benefits. In Pipes v. United States, Staff Sgt. Malcolm Pipes, an airman in the Air Force Reserve, engaged in the Air Force’s Self-paced Fitness Improvement Program (SFIP) and suffered a stroke. Pipes was denied disability retirement pay and benefits not only because the Air Force successfully argued that the SFIP was a voluntary program, but also because Pipes failed to show he was compensated for his time completing the SFIP, as all inactive-duty training must be performed for pay and points, or points only. Pipes alleged his commander directed him to complete the SFIP, but there was no other evidence that his commander authorized him to do so and the court denied his appeal.
Besides the potential loss of disability benefits, the failure to compensate servicemembers with both pay and retirement points results in lost wages. Under 2019 compensation tables, a servicemember who retired at the grade of E-8 and who was entitled to twelve extra retirement points per year over the course of a twenty-year career would have received an additional $89.76 more retirement pay per month—over $21,500 during a twenty-year period. One former National Guard officer complained of receiving no compensation for thirty to forty hours of work per month and noted it as one of the reasons he resigned his commission. An Army Reserve major reported taking vacation days from a civilian job to keep up with mission requirements. These anecdotes highlight a problem whose scale is substantial. Reserve components are, as one officer said of the Army Reserve, “cashing in on uncompensated sacrifices of its Soldiers that must be in the tens of millions of dollars, and is a violation of trust, stewardship, and the Army Values.” In the private sector, failure to pay wages resulted in about $8.8 billion in fines in 2018—a recognition that we as a society believe such undercompensation to be a serious offense. There is no reason for that belief not to be reflected in the military’s treatment of servicemembers, as well. It is inexcusable for reserve-component servicemembers to receive no compensation for tasks completed outside of regularly scheduled training.
How to Fix it
The good news is that the military is a heavily regulated profession, which means solutions are possible. We do not have to look very far to find procedures and authorizations that can be compiled to address the problem adequately. The following details should be reflected in any efforts to fix the problem:
- Make use of commander-driven policy. Commanders are in charge of and must authorize any and all training. In its ruling in Pipes v. United States, the court maintained that the Secretary of the Air Force requires that all inactive-duty training must have “advance authorization from the [service] member’s unit commander (or designated representative) for unit personnel.” The same requirement holds true for all services.
- Mirror similar federal employee policies. Many of the military’s human-resources policies mirror their civilian counterparts in the federal government, so examining such civilian policies, such as those covered on the Office of Personnel Management’s extensive gov website, may provide a starting point.
- Ensure fixes are sufficiently broad, yet not so vague and ambiguous as to allow for arbitrary application. Commanders must understand such a policy is an enforcement of federal statute and adhere to administrative law principles. Put simply, they should ensure any such policy is detailed enough to avoid an arbitrary or capricious interpretation or clearly contrary to statute.
- Clearly identify tasks which are voluntary and are not compensable. There must be a limit to what tasks can count as nonduty tasks and eligible for compensation, otherwise such a compensation policy could be misused to pay for clearly voluntary or other unrelated tasks.
- Use the appropriate funding source. Two major fiscal law stipulations govern this issue: first, expenditure of public funds is proper only when authorized by Congress; and second, if there is another, more specific appropriation available, it must be used in preference to the more general appropriation. For instance, Army Regulation 140-1 identifies Readiness Management Assemblies as four-hour pay periods that can be used broadly for administrative readiness tasks and would seem the most appropriate funding source for tasks completed outside regular training.
- Aggregate time used for tasks for the appropriate pay period. Typically, reserve-component servicemembers are paid in four- or eight-hour blocks for inactive duty training. To accommodate this pay structure, servicemembers should be authorized to aggregate the time it takes to complete multiple tasks into four- or eight-hour blocks to be properly compensated, which is already permissible for distance-learning courses.
- Mandate accountability. Servicemembers should be required to account for their time in some manner, whether using a simple log, spreadsheet, or timekeeping software.
- Provide a means of appeal. A simple appeals process should be included within any policy to allow servicemembers some redress if a claim for compensation is denied.
- Enable easy access to the proper tools to work from home. Units should issue Common Access Card readers to servicemembers and provide a list of commonly used resources and weblinks for use outside training, such as the Army Reserve’s new Double Eagle app, the Air Force’s custom Linux operating system, TENS, the Defense Logistics Agency’s partnership with Microsoft to provide discounted Office products, and the Army Reserve’s Remote Access Portal, which provides personal laptop access to the Army Reserve Network (ARNET) through Citrix.
Chief of Army Reserve Lt. Gen. Charles Luckey stated recently, “We have to exercise flexibility and sound judgment so we don’t lose motivated, talented Soldiers simply because we made it too hard for them to thrive in other aspects of their lives.” When leaders and managers fail to find a way to compensate their servicemembers for their sacrifices, they drive servicemembers away from the reserve component. We have the tools and guidance to establish an effective compensation policy and ensure servicemembers’ time and hard work to improve military readiness is respected and compensated.
Alan Peña received his Juris Doctor from Florida International University and is licensed to practice in Florida. He has eleven years of continuous service in the Army and Army Reserves, including serving as an executive officer, commander for three separate units, battalion adjutant, and judge advocate. When he isn’t in uniform, he is with his family or is representing the best interests of children through Florida’s Guardian ad Litem Program.
The views expressed are those of the author and do not reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Image credit: Stephanie Ramirez, US Army Reserve