HomeEthics Program ResourcesDoD Ethics GuidanceSOCO Advisories2014 SOCO AdvisoriesAdvisory 14-03 December 5, 2014

Advisory 14-03 December 5, 2014

CLARIFICATION OF APPLICATION OF JER
TO MEMBERS OF THE NATIONAL GUARD OR RESERVE

 

The following provides clarification regarding the applicability of DoD 5500.07-R, the Joint Ethics Regulation (JER), to members of the National Guard and Reserve as "DoD Employees" as that term is defined in section 1-209(e). Specifically, it provides:

Any Reserve or National Guard member while performing official duties or functions under the authority of either title 10 or title 32, United States Code, or while engaged in any activity related to the performance of such duties or functions, including any time the member uses his Reserve or National Guard of the United States title or position, or any authority derived there from.

In general, the JER utilizes a "status" test for applying the JER to members of the National Guard or Reserve. Determining status for National Guard members is complicated by the fact that a Guardsman's position and authority of office derive either from service in the State National Guard or as a member of a reserve component.

There is no question that when members of the National Guard or Reserve are in a title 10 status, or when members of the National Guard are in a title 32 status, the JER applies. The JER also applies where a member of the National Guard or Reserve not in a title 10 or title 32 status, takes an affirmative action to use his or her DoD (title 10 or 32) title, position, or authority. In those instances, a member not in a title 10 or title 32 status would be considered to be "engaged in any activity related to the performance of such duties or functions".

Below are some illustrative examples of this policy.

  • At the request of the National Guard Bureau, The Adjutant General (TAG) of a state travels on title 32 military orders to Washington, DC, to attend a 2-day senior leader conference with other National Guard officials. Following the conference and expiration of those orders, he remains in Washington on travel orders issued by his state, in order to visit with his Congressional Delegation and with industry representatives regarding National Guard matters of importance to his state. TAG wears civilian clothes and is the only National Guard member in attendance. During a dinner, a prohibited source pays for TAG's meal, valued at $50. Under these facts, the JER does not apply to TAG. He is not in either a title 10 or title 32 status, and he has not taken an affirmative action to use his DoD title, position, or authority.
  • A commander of a Reserve unit, not on military orders, drafts a letter on official unit stationery soliciting contributions from outside sources for an upcoming fundraising effort to support the unit's informal fund. She signs the solicitation letter and lists "Commander" as her position. Under these facts, the JER applies to the unit Commander. Although she is not in a title 10 or title 32 status, she has taken an affirmative action to use her DoD title, position, or authority (using official letterhead and her official title/position).
  • A community group that is not a prohibited source wishes to show its support for its local Reserve unit that is redeploying. Following the unit's redeployment and release from active duty, the group holds a community event. Members of the unit are invited to attend, and many voluntarily come, all in civilian clothes and on their own time. At the event, the group provides checks in the amount of $250 to each attending member of the unit. The members did not solicit the funds and did not affirmatively seek out such gifts or recognition. Under these facts, the JER does not apply to the members of the unit. They were not in a title 10 or title 32 status, and they did not take any affirmative action to use their DoD titles, positions, or authority.
  • A state Governor declares a state emergency and mobilizes members of the National Guard in a state active duty status (state-funded). Members of the National Guard perform their assigned tasks wearing Federal military uniforms (as permitted by regulation) and using military equipment provided to the state by the DoD. Under these facts, the JER does not apply to these members while wearing uniforms and/or while using Federal equipment because they were not in a title 10 or title 32 status, and they did not take any affirmative action to use their DoD title, position, or authority. Here, wearing the uniform and using DoD equipment are essential elements of their state active duty status and not an affirmative act using their DoD title, position, or authority.
  • A traditional (drilling) member of the National Guard has returned from a deployment and has demobilized. He has been selected to receive an award by a non-federal entity for work he did in that prior Federal status. He decides that he will wear his federal uniform at the award presentation (which he is permitted to do) even though he will not be in a title 10 or title 32 status. During the presentation, he is also presented a substantial gift. Under these facts, the JER does not apply to the member. He was not in a military status (title 10 or title 32); nor did he take an affirmative action to use his DoD title, position, or authority. Here, merely wearing the uniform is not considered to be taking such an affirmative act and does not trigger applicability of the JER.
  • A traditional (drilling) member of the Reserves has returned from a deployment and has been demobilized. He has been selected by a non-federal entity to receive an award for work he did in that prior Federal status. He decides to wear his Federal uniform to accept the award (which he is permitted to do) even though he will not be in a title 10 or title 32 status. While at the ceremony he solicits contributions to benefit his unit's informal fund. Under these facts, the JER applies to him. Although he was not in a title 10 or title 32 status, by wearing his Federal uniform while soliciting funds he is taking an affirmative act using the authority of his official position.
 

DISCLAIMER: The purpose of this advisory is to disseminate relevant information and sources of general guidance, policy and law on Government Ethics issues to the Department of Defense ethics community. Advisories are not intended to be and should not be cited as authoritative guidance, DoD policy, or law.