The Untouchable TAGs – A World in Which the “Administrative State” Rules

LTC (Ret) Francesca Graham (Retired, Army – United states Military Academy), COO & Chief Advisor with the Walk the Talk Foundation, authored this article. (Published October 26th, 2024)

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Did You Know: 10 U.S. Code § 938 - Art. 138. (part of “Title 10”) is the only formal legal mechanism within the Armed Services for uniformed service members to file grievances against their commanding officers. The most senior National Guard officer with command authority in each state is The Adjutant General (TAG). TAGs are under Title 32 instead of Title 10 authority. TAGs are employees of their state, and the governor is their immediate supervisor. There is no equivalent to 10 U.S. Code § 938 - Art. 138. in Title 32.

Here are some potential implications of these facts:

1. A Governor’s willingness or ability to hold a TAG accountable for grievances filed by Guard members is influenced by political considerations in states where military matters are highly politicized.
2. TAGs / Title 32 commanders are exempted from being held legally accountable by their subordinates. These same commanders will, however, issue orders placing their subordinates on Title 10 duty status – sometimes covertly – to punish their subordinates under Title 10 (UCMJ) authorities.
3. National Guardsmen must exclusively rely on DoD or state-level administrative tools – tools that are racked with corruption and conflicts of interest – to seek redress for their grievances. This fact probably guarantees their requests for redress will fail.
4. Given 10 U.S. Code § 938 - Art. 138. is a legal mechanism, uniformed service members using this tool are afforded the right to legal counsel via their Judge Advocate General (JAG) defense services office. No such rights or equivalent legal support exists when filing an administrative complaint.
5. TAGs / Title 32 commanders, have JAGs assigned to advise their office. These commanders will use their JAGs to craft legal arguments to destroy administrative complaints.
6. State administrative systems, while nominally prepared to handle grievance complaints from Guardsmen, are likely woefully unprepared – even hostile – to receive / manage these complaints.
7. State Military Law that lacks a comprehensive grievance procedure for their Guardsmen leaves these uniformed service members woefully vulnerable to abuses of authority.
8. National Guardsmen who reside in a state different than their TAG / Title 32 commander must somehow determine the correct “jurisdiction” to file an administrative complaint.
9. Without a standardized, federally mandated grievance process in Title 32, state-level policies and protections will vary widely, leading to inconsistency in grievance handling across states.
10. Any attempt to navigate either the DoDs opaque administrative system or a states opaque administrative system to file a grievance is likely so exhausting that many Guardsmen do not even bother, thus further reducing leadership accountability.
11. Administrative investigations (IG, EO) are typically limited to fact-finding and recommending corrective action rather than enforcing change, which can limit the recourse available for Guard members facing serious issues with their command.

Given the disparities in accountability mechanisms between Title 10 and Title 32, it's essential for state and National Guard leadership, congressional members, and the American people to advocate for clear, consistent protections and grievance procedures for all National Guard members, regardless of their duty status.

To state leaders: Strengthen state military codes and grievance procedures, ensuring all Guard members have reliable, transparent channels to report grievances without fear of reprisal.

To Congress: Consider establishing a standardized grievance mechanism within Title 32 to mirror Article 138 protections, providing equitable recourse for Guard members serving under state authority.

To the American people: Support these reforms by urging your representatives to recognize the unique service of National Guard members, who often operate between state and federal duties, and deserve consistent rights and protections.

?Together, let’s ensure that all who serve are treated with fairness, respect, and accountability, regardless of where they’re called to serve.

If you feel that you have been a victim of these types of concerns, feel free to reach out privately at [email protected], or share your story in the comments.

PETITIONS:

1. SIGN THIS PETITION urging the Supreme Court of the United States to hear the case of Staff Sergeant Ryan Carter who was paralyzed from the chest down following a routine surgery at Walter Reed.
2. SIGN THIS PETITION demanding that our leaders in Congress change the DoD’s unjust administrative investigatory system.
3. SIGN THIS PETITION demanding real anti-harassment reform in the Military and Coast Guard now.

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Graphic Information: National Guard troops from around US continue to pour into DC for inauguration security.