Legal Question in Military Law in Hawaii

Free Speech Rights of INACTIVE Reservists

Hi all,

I've some questions but not getting clear answers. If I received an other than honorable discharge, and I feel the command's actions were illegal/unconstitutional, can I seek REINSTATEMENT into the Reserves by going directly into federal court with a complaint on 1st Amendment grounds & procedural flaws specific to the case? DRB's do not have the power to order reinstatment, thus if I was seeking reinstatment, I have no more administrative remedies, thus Fed. Court likely to at least hear it?

Background facts of this case are I had a political disagreement with a commander while I was inactive, they tried to threaten me for disrespect for stating my beliefs while inactive (this is literally the case here), they threatened me and others with UCMJ action for spoken words disagreeing with the command, I can find no statute or case law what so ever saying that while inactive, military reservists are subject to military regulations or UCMJ meant to apply to ACTIVE personnel or inactive duty training. Given attempts to silence returning veterans recenty, this needs to be tested in the federal courts to at least clarify rules. Anyone interested in re-claiming some 1st amendment ground lost to the past administration?


Asked on 1/22/09, 5:45 pm

2 Answers from Attorneys
William J. Holmes Attorney at Military Law

Re: Free Speech Rights of INACTIVE Reservists

Before you can go to federal court, you must petition the Board for Correction of Records and seek that the discharge be overturned. BCMR does have the authority to overturn a discharge and reinstate you to active duty and this must be done before you can go to court.

I hope this has answered your question. Please feel free to contact me directly if you have any other questions.

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Answered on 1/23/09, 1:02 pm
Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: Free Speech Rights of INACTIVE Reservists

I believe your later post on this subject has been addressed.

But, while the DRB may not have the authority to "reinstate" you, the Board for Correction of Military Records - the NEXT administrative step does have that authority, and you must exhaust that process before seeking relief in federal court, an expensive process.

Good luck,

Don Rehkopf

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Answered on 1/22/09, 6:10 pm


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