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1987 Army Law. 9 (1987)
Operational Law - A Concept Comes of Age

handle is hein.journals/armylaw1987 and id is 395 raw text is: training period to serve adjudged punishment. Addition- ally, confinement is not an available punishment for a summary court-martial held during inactive duty training. 49 Correspondingly, pretrial confinement, as a practical matter, will not be available during IDT periods. To impose pretrial confinement under this legislation, the soldier must be involuntarily activated to active duty and that activation must be approved by the supporting Active Component general court-martial convening authority. so The practical effect of the rule makes pretrial confinement for offenses committed during weekend drill improbable, if not impossi- ble. It should also be noted that pretrial confinement cannot be the sole purpose of calling a reservist involuntarily to ac- tive duty. 1' Speedy Tial Special rules are also provided in the area of speedy trial. The requirements of the 120 day rule under R.C.M. 707 are still generally applicable. Consistent with' that intent, the speedy trial clock will begin to run on notice of preferral of charges or when the member is involuntarily ordered to ac- tive duty in cases where charges have not yet been preferred. Up to sixty days in processing and implement- ing disciplinary action against the reservist within the Reserve Component chain of command is excludable, how- ever. 13 This excludable delay ends when the reservist is involuntarily activated. .. Conclusion The original provisions addressing reserve jurisdiction were difted some thirty-six years ago. In these past thirty- six years, the Reserve Components have experienced an un- precedented growth in structure and mission, changes simply not contemplated by the original drafters of that leg- islation. The new reserve jurisdiction legislation conforms the UCMJ to the total force concept by subjecting mem- bers of the United States Army Reserve and the National Guard while in Federal service to the same disciplinary standards as their active counterparts. It is not, however, without critics. Ordering the part-time soldier to a trial by court-martial not only separates the soldier from his or her home and job, but from the Constitution's full protections. 15 It should be remembered that the part-time soldier is also a part-time ci- vilian and many differences exist between the de jure status of a member of the Reserve Components and that of a member who is on active duty. 56 Substantial litigation may accompany the first cases. More important, however, military practitioners should note the two-phased approach to this legislation. The key is that there is still time during the training phase to meaning- fully influence how this legislation is actually put into effect. It is a rare opportunity to participate in making legis- lation effective. 49 Amendments to MCM, 1984, R.C.M. 1003(c)(3)(A)(i). 50Reserve LOI, supra note 30. 5'Id. 52 Amendments to MCM, 1984, R.C.M. 707(a)(3). 53 Amendments to MCM, 1984, R.C.M. 707(c)(8). 54 1& 55 Those rights include the right to trial byjury a d grand jury indictment. See O'Callahan v. Parker,. 395 U.S. 258 (i9). T&. special statusof National Guard soldiers should also be-noted. While members of the'United States Army Reserve have a continuing Federal status upon which to base jurisdiction, National Guard members generally have no-continuing Federal service nexus upon which to base their recall to active duty under this new legislation. The sole basis for their recall will be their status at the time of the offense, a status now terminated. 56See Duncan v. Usher, 23 M.J. 29, 31 (C.M.A. 1986). Operational Law-A Concept Comes of Age Lieutenant Colonel David E. Graham Chief, International Law Division, TJA GSA. Introduction Lest there be any doubt, OPLAW is a new concept. It is The past several years have f an increasing amount not simply a modified form of internationaf law, as tradi- of attention on an evolving body of w rearing'to the con- tionally practiced b Army judge advocates, dressed in a b.odyraiof lawerelating' R hed co- battle dress uniform and given a catchy name. As it is re- duct of U.S. military operations overseas. Referred to, ltdamsexuivytovres _prtonhsnw appropriately, as operational law (OPLAW) this-legal dii- lated almost exclusively to overseas operations, this new app op ia el , s per ti na l w O P A W) t isle al di -7 discipline does ne-cssarily req uiire a close w orking relation- cipline has quickly moved from conceptual discussion to practical curriculum at The Judge Advocate General's ship with international law and thus falls, functionally, School, U.S. Army (TJAGSA) and concerted efforts at im- within the international law ambit. It is important to note plementation by judge advocates in the field. also that the advent of OPLAW does not presage a move away from traditional judge advocate international law re- sponsibilities, particularly those involving the Law of War and stationing arrangements. Every effort will be made to JULY 1987 THE ARMY LAWYER *A PAM 27-50-175 9

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