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Can I Drill From Home? Telework (or the Lack Thereof) in the Army Reserve [Army Lawyer, The](Army Lawyer, The Via Acquire Media NewsEdge) I. Introduction Army Reserve Soldiers perform duty in many locations throughout the world. Reserve Soldiers typically perform duty one weekend per month, called Inactive Duty Training (IDT), and two weeks per year, called Annual Training (AT).1 The issue arises as to the extent to which these Reserve Soldiers may fulfill their training obligations from their homes or offices. To illustrate this issue, consider the following hypothetical. You are a member of the 22nd Legal Operations Detachment, Trial Defense Services, in San Antonio, Texas. You receive a call from a new client during a weekday at your office. After a long phone conversation with your client, you learn he is subject to a general officer memorandum of reprimand (GOMOR). You further learn the Soldier's response is due in two days. After receiving a series of e-mails from your client through your personal e-mail account, you assist him in drafting his GOMOR response from home. The entire action takes you approximately three hours. Can you validly receive military service credit for your representation? On 9 December 2010, President Obama signed into law the Telework Enhancement Act of 2010 (TEA).2 This legislation mandates the heads of all executive agencies, including the Department of Defense (DoD), establish telework policies for their employees.3 The intent of the TEA is for the Federal Government to reduce its energy consumption, increase job satisfaction and productivity among its employees, reduce urban transportation congestion, and increase its ability to disperse work during periods of emergency.4 Servicemembers are included within the definition of employees covered by the act.5 Under the TEA, telework is defined as a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee's position from an approved worksite (typically the employee's home) other than the location from which the employee would otherwise perform duty.6 Significantly, to be eligible for telework, the TEA mandates that each employee sign a written telework agreement outlining the terms and conditions of the employee's telework duties and receive training on telework procedures.7 Supervisors are called upon to emphasize that if productivity is negatively affected by teleworking or if employees otherwise fail to abide by their telework agreements, then such employees will lose their telework eligibility.8 The DoD implemented the TEA through DoD Instruction (DoDI) 1035.01, which "actively promotes" the adoption of teleworking policies and practices throughout military departments.9 Department of Defense Instruction 1035.01 specifically applies to both civilian employees and uniformed servicemembers.10 However, "servicemember eligibility is discretionary and determined by the relevant commander or supervisor, consistent with [DoDI 1035.1] and Component specific guidance."11 Further, servicemember responsibilities associated with telework programs are left to the discretion of each of the DoD components.12 Therefore, the military components are called upon to allow maximum flexibility for employees or servicemembers to telework to the extent mission readiness is not compromised.13 All military departments have adopted telework policies for their civilian employees.14 Telework policies have also been extended to military members of the Reserve Components (RCs).15 This extension brings into sharp contrast the differing cultures and missions of the seven RCs.16 All of the RCs utilize telework as a legitimate form of military duty except the Army Reserve.17 This article reviews the telework policies implemented by the RC. It then looks at the telework policy of the Army National Guard with regard to its full-time support personnel. Finally, it proposes the Army Reserve implement a telework policy for the benefit of both Reserve Soldiers and their units. II. Teleworking Policies in the RC Under Marine Corps Order 1001R.1K, the Commandant of the Marine Corps allows Reserve Marines to perform IDT via telecommuting.18 This policy is very narrow in that only certain forms of IDT associated with special projects and additional duties may be used in connection with telework.19 To use telework, the task, assignment, or project task must not require Reserve Marines to be present at their regular places of duty.20 Therefore, the Marine Reserve telework policy takes advantage of the Reserve Marine's availability while negating the impact of physically commuting to home station.21 Pursuant to Commander, Naval Reserve Forces Instruction 1001.5E, Reserve commanders are encouraged to implement telework policies for the performance of IDT.22 "Telecommuting" is the practice of performing assigned military duties at home or some other nonmilitary location.23 For the Naval Reserve, telework is viewed as a management option meant to increase flexibility and productivity by maximizing resources, and is not to be used solely for the convenience of the Sailor.24 Participants are required to sign a written agreement acknowledging their accountability and personal responsibility, including coverage by the UCMJ and other regulations concerning determinations for line of duty, injury or illness, and misconduct.25 Reserve Sailors that have been authorized to perform drills via telecommuting must perform at least two drills per quarter at their assigned unit to ensure completion of organization and administrative requirements.26 Under Air Force Instruction 36-2254, telework is also viewed as a management tool and "is a complementary way of doing business, which moves work and training to the people instead of moving the people to the work or training."27 In general, telecommuting means working or training from an alternate location away from the official duty location.28 Telecommuting may be used to allow Reserve Airmen to work/train in an official capacity for pay and/or points away from their official duty location in either an active duty or IDT status.29 However, under no circumstances may Reserve Airmen perform all of their reserve duty via telework.30 Air Force Instruction 36-2254 makes clear that the UCMJ applies during telecommuting, line of duty procedures will be followed in the event of an injury, and a written telework agreement must be signed prior to the commencement of telecommuting.31 Similarly, Air Force National Guard (AFNG) Instruction 36-8001 allows Air National Guardsmen to perform both active duty and IDT via telework.32 Telecommuting, as a management tool, authorizes commanders to allow AFNG drilling status guard members to work in an official capacity for pay and/or points away from the official duty location.33 Interestingly, AFNG judge advocates and medical doctors are specifically limited to a maximum of two drills (eight periods of IDT) and no more than five days AT in a telecommute status.34 To begin a teleworking project, the telecommuter, supervisor, and approval authority must sign a written telework agreement and complete a telecommuter inspection checklist.35 Telecommuters are also subject to applicable military laws, regulations, and instructions.36 However, the wear of the uniform during performance of duty by telework is not required.37 Under Commandant Instruction 12630.1, Coast Guard members assigned to both active and reserve billets are qualified to participate in the Coast Guard's telecommuting program.38 A Coast Guard member is required to sign a written telework agreement prior to the commencement of activities and receive an orientation on organizational goals and policies regarding telework.39 However, there are no specific duty limitations regarding the use of telework by either active duty or reserve Coast Guard members.40 The Coast Guard's telework policy is consistent with DoD goals in its declaration that the use of technology via telework can help improve employee job satisfaction and quality of life, while also ameliorating transportation issues by decreasing traffic, parking congestion, energy use, and air and noise pollution.41 III. Army National Guard Telework Policy On 23 March 2010, the Chief, National Guard Bureau (NGB) issued a memorandum to all adjutant generals regarding telework for Title 32 employees.42 In this memorandum, the Chief, NGB provides full support for efforts to implement telework policies throughout the Army National Guard.43 Specifically, such policies help recruit and retain qualified individuals, benefit society through decreased energy consumption, pollution, and traffic, and make up a part of each state's response to a pandemic health event.44 The memorandum also makes clear that the establishment of telework policies is the responsibility of each state's adjutant general.45 Accordingly, the use of operations and maintenance funds administered by the NGB are authorized for telework purposes.46 Many states have implemented telework policies for their Title 32 employees and servicemembers.47 An example is the Arkansas Adjutant General issued policy 2010-05, which institutes a telework policy for the Arkansas National Guard.48 This policy applies to all full-time federal employees.49 These employees include Title 32 Active Guard Reserve (AGR) Soldiers and military technicians.50 The policy does not cover drilling National Guard Soldiers and, consequently, does not apply to IDT or active duty with respect to these Soldiers.51 Similar to the telework policies implemented by the other RCs, the Arkansas National Guard telework policy calls for a written telework agreement to be signed by the Soldier/employee and requires telework orientation prior to beginning a telework project.52 Telework may be performed on a regular or recurring basis, or on a situational basis (ad hoc).53 Only motivated, dependable employees may be chosen by supervisors for telework, as telework is a management tool and not a benefit of employment.54 IV. Current Army Policy and the Need for Telework in the Army Reserve Current Army policy does not support the use of telework for active duty or IDT for members of the Army Reserve.55 Under Army Regulation (AR) 140-1, Army Reserve Mission, Organization, and Training, Soldiers performing IDT in the form of unit training assemblies (UTAs) must perform duty of at least four hours in duration including roll call and rest periods to receive credit for pay and retirement points.56 At least one day's pay, one retirement point, or both, are authorized for each Soldier who satisfactorily completes the entire UTA.57 Additionally, no more than two UTAs of equal duration may be conducted per day regardless of the number of hours of training conducted (time for meals is not included in the computation of minimum training periods).58 This means that UTAs are a minimum of four hours in duration and a maximum of 12 hours.59 Most importantly, UTAs may only be conducted at a home station, an appropriate field training area, or a special training facility.60 Similarly, pursuant to AR 140-185, table 2-1, IDT periods pertaining to TPU Soldiers fall within the "4-hour rule" regarding the minimum number of duty hours required to earn retirement points.61 The 4-hour rule allows one point for each scheduled four-hour period of IDT performed in the form of UTAs, rescheduled training (RST), equivalent training (ET), additional training assemblies (ATA), or make-up assemblies.62 A maximum of two points in one calendar day may be earned.63 Interestingly, when individuals perform "certain" legal duties and are judge advocates, they may earn additional retirement points under the "2 hour/8 hour rule."64 This rule allows Soldiers to earn one point for every two hours or greater period of duty.65 However, the award of a second point in the same day requires additional hours to bring the day's total to a minimum of eight hours.66 Again, a maximum of two points may be earned in one calendar day.67 Nonetheless, Soldiers are not credited with attendance at any training (to include training for retirement points only) unless they are in the prescribed uniform of the day, are neat and soldierly in appearance, and are performing duty at home station, an appropriate field training area, or a special training facility.68 All of the RCs except the Army Reserve recognize telework as a valuable tool for the accomplishment of their missions.69 Both the Navy and Marines authorize IDT to be performed through telework.70 The Marine Reserve policy is the most restrictive in that only special forms of IDT may be performed for telework purposes.71 The Navy Reserve places no limitations on the type of IDT that may be performed via telework, but excludes active duty from their program.72 The Air Force Reserve and Air Force National Guard both allow active duty and IDT to be performed via telework, but with limitations on the number of duty days that can be performed under their programs.73 The Coast Guard Reserve is the most elastic in its telework policy by placing no restrictions on the type of duty or the number of duty days that may be performed through telework.74 This gives local commanders maximum flexibility in utilizing this management tool.75 In recognition of the restraints under which Army RC personnel may perform duty, the Army National Guard only allows full-time support personnel to perform telework.76 This means that Title 32 AGRs and dual status military technicians are allowed to perform duty via telework while drilling National Guardsmen are not.77 Therefore, due to current policy constraints, commanders are not allowed to utilize telework for traditional Army RC personnel under even the most restrictive conditions.78 The Army Reserve is composed of combat support and combat service support units.79 This means there are many professionals in its ranks.80 These are the types of Soldiers that could greatly benefit from a telework option where they could perform discrete projects from their homes. For example, Reserve judge advocates could perform legal reviews from their homes. These projects would not likely require face-to-face interactions and would produce discrete work products for their supervisors to review. With a formal telework policy, the Army Reserve could require both Soldiers and commanders to sign written telework agreements delineating the responsibilities of both parties and reiterating that Soldiers are in a military status during telework and that the UCMJ and other important administrative regulations (e.g., AR 608-100, Line of Duty) would apply. Without such formal arrangements, both Soldiers and their commands would be violating DoD policy and depriving Soldiers of potentially important benefits. IV. Conclusion The Army Reserve should follow the other RCs and adopt a telework policy to allow commanders to formally utilize Soldiers readily available to perform duty from their homes or offices. In an era of fiscal austerity and ubiquitous technology, telework could provide needed savings to the Army Reserve while allowing Soldiers to earn retirement points and compensation from their homes or offices. Department of Defense Instruction 1035.01 makes clear that it is the policy of the DoD to provide opportunities to deserving servicemembers to perform duty in the most flexible manner to increase job satisfaction while improving the environment through decreased traffic and energy consumption. A telework policy in the Army Reserve would accomplish this DoD goal. Under current Army policy, Army Reserve Soldiers may perform duty at alternate military locations and times via RST.81 However, this form of IDT does not contemplate telework.82 Important issues concerning UCMJ jurisdiction and line of duty considerations are all associated with performing military duty. Without a valid Telework Policy to deal with these issues, Soldiers attempting to perform duty from their homes or offices would not only be violating current policy, but be creating serious issues regarding the application of military jurisdiction and line of duty procedures.83 This is unfair to Soldiers and their units. In the hypothetical posed above, the Soldier representing her client and performing military services on his behalf would not have a mechanism under which to receive credit for her service. This is because she is performing duty from a non-military location while out of uniform and for less than the minimum four hours of service necessary to constitute an IDT period.84 A valid telework policy promulgated by the Army Reserve could assist this Soldier in obtaining the credit she deserves for the services she performed. 1 See U.S. DEP'T OF ARMY, REG. 140-1, ARMY RESERVE MISSION, ORGANIZATION, AND TRAINING para. 3-1 (20 Jan. 2004) [hereinafter AR 140-1]. Inactive duty training (IDT) periods performed by Reserve Soldiers assigned to Reserve units, called Troop Program Units (TPUs), are called unit training assemblies (UTAs). Id. para. 3-4. A UTA is an authorized and scheduled training assembly of at least four hours, including roll call and rest periods. Id. At least one day's pay or one retirement point, or both, is authorized for each assigned or attached person who satisfactorily completes the entire UTA. Id. This assembly is mandatory for all TPUs. Id. Two or more UTAs conducted consecutively are called multiple unit training assemblies (MUTAs). Id. No more than two UTAs may be performed in one day. Id. 2 See 5 U.S.C. § 6501 (2013). 3 See id. § 6502. 4 See id. § 6506(b)(2)(F). 5 See id. § 6501. Section 6501 refers to the definition of employee found in 5 U.S.C. § 2105, which includes servicemembers within its scope. Id. 6 See id. § 2105. 7 See id. § 6502. 8 Id. 9 See U.S. DEP'T OF DEF., INSTR. 1035.01, TELEWORK POLICY para. 4 (4 Apr. 2012) [hereinafter DoDI 1035.01]. 10 See id. para 2. 11 See id. encl. 3. 12 See id. encl. 2. 13 See id. encl. 3. 14 See Telework, U.S. ARMY CIVILIAN PERSONNEL (Apr. 23, 2012), http://cpol.army.mil/library/permiss/5020.html; Telework, U.S. MARINE CORPS HUMAN RESOURCES AND ORGANIZATIONAL MANAGEMENT, http://www.hqmc.marines.mil/hrom/AdvisoryServ/EmployeeRelations/Tele work.aspx (last visited Mar. 31, 2014); Telework , U.S. NAVY CIVILIAN HUMAN RESOURCES, http://www.donhr.navy.mil/Benefits/Pages/ Default.aspx#worklife, last visited (Apr. 1, 2014); U.S. DEP'T AIR FORCE POLICY DIR. 36-8 (10 Feb. 2009); Telework, U.S. COAST GUARD, OFFICE OF CIVILIAN HUMAN RESOURCES (Feb. 7, 2014), http://www. uscg.mil/yotf/cg121/benefits/telework.asp. 15 See U.S. MARINE CORPS, ORDER 1001R.1K, MARINE CORPS RESERVE ADMINISTRATIVE MANAGEMENT MANUAL (22 Mar. 2009) [hereinafter MCRAMM]; U.S. DEP'T OF NAVY, COMMANDER, NAVAL RESERVE FORCE INSTR. 1001.5E, ADMINISTRATIVE PROCEDURES FOR THE DRILLING RESERVE AND PARTICIPATING MEMBERS OF THE INDIVIDUAL READY RESERVE (21 Mar. 2005) [hereinafter COMMNAVRESFOR INSTR. 1001.5E]; U.S. DEP'T OF AIR FORCE, INSTR. 36-2254, RESERVE PERSONNEL TELECOMMUTING/ADVANCED DISTRIBUTED LEARNING GUIDELINES (18 June 2010) [hereinafter AFI 36-2254]; AIR NATIONAL GUARD, INSTR. 36- 8001, AIR NATIONAL GUARD TRADITIONAL GUARD MEMBER TELECOMMUTING PROGRAM (21 Jan. 2012) [hereinafter ANGI 36-8001]; U.S. COAST GUARD, COMMANDANT, INSTR. 1230.1, COAST GUARD TELECOMMUTING PROGRAM (15 July 1997) [hereinafter COMDTINST 1230.1]; Memorandum from Chief, National Guard Bureau, to State Adjutant Generals, subject: National Guard Title 32 Telework Policy Guide (23 Mar. 2010) [hereinafter NGB Title 32 Memo]. 16 MCRAMM, supra note 15; COMMNAVRESFOR INSTR. 1001.5E; AFI 36-2254; ANGI 36-8001; COMDTINST 1230.1; NGB Title 32 Memo. The seven Reserve Components are the Army National Guard of the United States, Air National Guard of the United States, Army Reserve, Air Force Reserve, Navy Reserve, Marine Corps Reserve, and Coast Guard Reserve. See 10 U.S.C. § 10101(2011). 17 Id. The Army National Guard allows their full-time support (FTS) personnel to perform duty through telework. See NGB Title 32 Memo, supra note 15. The FTS personnel are composed of Active Guard Reserve (AGR) Soldiers and military technicians. Id. 18 See MCRAMM, supra note 15, para. 5400. 19 Id. The types of IDT used for telework include additional training periods (ATP) and readiness management periods (RMP). Id. para. 3200. These two forms of IDT are used for special projects and duties that are in addition to the regular forty-eight IDT periods completed by all RC Marines. Id. 20 Id. para. 5402. 21 Id. 22 See COMMNAVRESFOR INSTR. 1001.5E, supra note 15, art. 617, at 21. There is no limitation regarding the type of IDT that may be performed via telework. Id. 23 Id. 24 Id. 25 Id. 26 Id. Interestingly, The Navy Judge Advocate General has adopted a specific telework policy for legal services. See U.S. DEP'T OF NAVY, JAGINST 12620, TELEWORK PROGRAM (10 Jan. 2011) [hereinafter JAGINST 12620]. Under this policy, both active duty and civilian employees of the Navy JAG Corps may perform their duties via telework. Id. 27 See AFI 36-2254, supra note 15, para 1.1. 28 Id. 29 Id. para. 1.2. 30 Id. para. 1.3. 31 Id. para. 1.7. 32 See ANGI 36-8001, supra note 15, para. 2. 33 Id. 34 Id. para. 2.1.2. 35 Id. para. 3. 36 Id. para. 6.1. 37 Id. para. 8.2. 38 See COMDTINST 1230.1, supra note 15, para. 6. 39 Id. para. 10. 40 Id. para. 6. 41 Id. para. 7. 42 See NGB Title 32 Memo, supra note 15. Title 32 refers to the section of U.S. code under which National Guard Soldiers and employees serve when they are performing duties under state control, but are funded with federal funds. See 10 U.S.C. § 101(d)(6)(A) (2013). 43 Id. 44 Id. 45 Id. 46 Id. 47 See, e.g., GEORGIA NATIONAL GUARD, TELEWORK POLICY, GEORGIA NATIONAL GUARD HUMAN RESOURCES PERSONNEL POLICY 12-01 (14 Sept. 2012); MARYLAND NATIONAL GUARD, FULL TIME SUPPORT TELEWORK PROGRAM (1 Feb. 2006); Memorandum from Ohio Adjutant Gen., to Ohio National Guard Commanders, subject: Telework Policy (8 Dec. 2011). 48 See Memorandum from Ark. Adjutant General, to Ark. National Guard Commanders, subject: TAG Policy 2010-05, Arkansas National Guard (AR NG) Telework Policy for Full-time Federal Employees (10 June 2010) [hereinafter AR NG Telework Policy]. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 See AR 140-1, supra note 1; cf. U.S. DEP'T OF ARMY, PAM. 690-8, HEADQUARTERS, DEP'T OF ARMY TELEWORK PROGRAM, (30 Oct. 2009) [hereinafter DA PAM. 690-8]. Note that rescheduled training (RST) allows a Soldier to perform UTAs from which they are absent at alternate times and locations from their TPUs. Id. para. 3-12. However, the performance of RST still falls under the normal IDT rules regarding the duration and place of duty. Id. Thus, RST should not be confused with Telework. Id. 56 See AR 140-1, supra note 1, para. 3-4b. 57 Id. 58 Id. para. 3-4c. 59 Id. 60 Id. 61 See U.S. DEP'T OF ARMY, REG. 140-185, TRAINING AND RETIREMENT POINT CREDITS AND UNIT LEVEL STRENGTH ACCOUNTING RECORDS tbl. 2- 1 (15 May 1987) [hereinafter AR 140-185]. 62 Id. 63 Id. para. 2-4. 64 Id. tbl. 2-1. The regulation does not define the nature and extent of "certain" legal duties, only their duration. Id. 65 Id. 66 Id. 67 See id. para. 4-5. 68 See AR 140-1, supra note 1, para. 3-9h; see also AR 140-185, supra note 61, para. 2-4b (stating IDT must be performed in accordance with AR 140-1 for the award of retirement points). 69 See MCRAMM, supra note 15; COMMNAVRESFOR INSTR. 1001.5E, supra note 15; AFI 36-2254, supra note 15; ANGI 36-8001, supra note 15; COMDTINST 1230.1, supra note 15; NGB Title 32 Memo, supra note 15. 70 See MCRAMM, supra note 15; COMMNAVRESFOR INSTR. 1001.5E, supra note 15. 71 See MCRAMM, supra note 15. 72 See COMMNAVRESFOR INSTR. 1001.5E. 73 See AFI 36-2254, supra note 15; ANGI 36-8001, supra note 15. 74 See COMDTINST 1230.1, supra note 15. 75 Id. 76 See NGB Title 32 Memo, supra note 15. 77 Id.; see also DA PAM. 690-8, supra note 55. 78 See AR 140-1, supra note 1; DA PAM. 690-8, supra note 55. 79 See The Army Reserve Mission, ARMY RESERVE, http://www. usar.army.mil/ourstory/Pages/default.aspx (last visited Mar. 31, 2014). 80 Id. 81 See AR 140-1, supra note 1, para. 3-12. For example, a Soldier could perform RST at a local Reserve Unit that is not his unit of record while working at a summer internship during law school. Id. 82 Id. 83 See cf. MCRAMM, supra note 15; COMMNAVRESFOR INSTR. 1001.5E, supra note 15; AFI 36-2254, supra note 15; ANGI 36-8001, supra note 15; COMDTINST 1230.1, supra note 15; NGB Title 32 Memo, supra note 15. 84 Id. The two-hour rule would also not apply to allow the officer to receive a retirement point because she was not in uniform during the military duty, and she performed duty from a non-military location. See AR 140-185, supra note 61, para. 2-4. Major T. Scott Randall* (c) 2014 Superintendent of Documents |