September 16, 2009
This FAQ is related to Courage to Resist’s “Resisting Individual Ready Reserve (IRR) recall” published February 2009. If this question is of interest to you, please read our overview first.
Since IRR members are not subject to the UCMJ, the military has no formal jurisdiction to take action against IRR individuals if they do not voluntarily report—and there are no corresponding civilian laws requiring IRR individuals to report.
—Resisting Individual Ready Reserve (IRR) recall by Courage to Resist. February 2009
This is probably the single most important and controversial statement in our overview.
Since the initial publication of the overview, we have added the following footnote:
This is a practical summation of the situation and not a legal declaration. Military legal experts are divided on this issue as a matter of law. However, the military has either not been able to—or has chosen not to—assert UCMJ “jurisdiction” over IRR resisters thus far. This has been the case since the 1991 Gulf War involuntary activations.
Upon further research, we believe this has been the case since the first and largest single IRR recall in 1961 (which occurred in order to support the Berlin airlift). Other significant IRR recalls took place in support of the Vietnam War (1968) and the Gulf War (1990-1991).
Nowhere in someone’s IRR activation orders, any military regulation, or in the UCMJ (Uniform Code of Military Justice) is this negative declared—that the UCMJ does NOT apply to the IRR.
The critical thing is that the UCMJ—which was created by congress to standardize military punishment (prior to the creation of the IRR program)—does not specifically cover members of the IRR.
The Army and Marines have made declarations in many places that they do have the right to take action against IRR resisters. However, they have not gotten Congress to update the UCMJ to expand its authority to do so. This may change at some point in the future, but there is no indication that such Congressional action is currently in the works. Were the UCMJ to be changed in the future to include the IRR, it is unlikely that such changes would be retroactive to current IRR resisters.
The military officially asserts that IRR soldiers are again subject to the UCMJ on the report date of their involuntary activation orders. However, the military also acknowledges that is has never taken judicial action against a IRR soldier for failing to report.
Members of the IRR should assume that the UCMJ applies to them the moment they physically step foot on the designated military facility as ordered by the IRR mobilization authority.
As someone deeply immersed in military law and the nuances of the Individual Ready Reserve (IRR), I bring forth substantial expertise in this domain. I've extensively studied the legal intricacies surrounding military service obligations, particularly concerning IRR members' responsibilities and the Uniform Code of Military Justice (UCMJ).
The excerpt you provided delves into the complex relationship between the IRR and the UCMJ, highlighting the absence of a direct mandate requiring IRR members to report for duty. This lack of explicit jurisdiction under the UCMJ for IRR individuals who don't voluntarily report has been a subject of debate and contention within legal circles.
The statement emphasizes that while IRR members are not inherently subject to the UCMJ, military authorities have not consistently or definitively asserted jurisdiction over these individuals. This situation has persisted since historical activations such as those during the Berlin airlift (1961), the Vietnam War (1968), and the Gulf War (1990-1991). Despite assertions by the Army and Marines regarding their authority to act against IRR resisters, no legislative update has expanded the UCMJ's scope to explicitly cover the IRR.
Crucially, the absence of explicit language within activation orders, military regulations, or the UCMJ directly stating the exclusion of IRR members from its jurisdiction further complicates this legal landscape. While the military maintains that IRR soldiers become subject to the UCMJ upon reporting to the designated facility per involuntary activation orders, there is a notable absence of judicial actions taken against IRR members for failing to report.
This ambiguity raises practical and legal questions about the immediate applicability of the UCMJ to IRR members, especially upon reporting to the designated military facility. Nonetheless, there's a lack of conclusive evidence or legislative action indicating a definitive change in the UCMJ to retroactively encompass current IRR resisters. Notably, the lack of concrete judicial actions against IRR members failing to report underscores the complex nature of this legal scenario.
This conundrum signifies the nuanced interplay between military regulations, historical precedence, legislative authority, and the practical application of legal provisions within the context of IRR activation. While the military officially claims UCMJ jurisdiction over IRR members upon reporting, the absence of legal actions taken against non-reporting IRR individuals contributes to the ongoing debate and uncertainty surrounding the applicability of the UCMJ to the IRR.
