As discussed in the CLA/2 class material, internal discipline in the Auxiliary uses the Uniform Code of Military Justice (UCMJ) as its template. The Auxiliary is not precisely a military unit, but it is a hierarchical structure which sometimes must operate in dangerous circumstances within a chain of command. We are, however, quite a bit smaller than an organization like the US military. The State of Missouri, which is also smaller than the US military, adapts and simplifies the UCMJ for use with its national and state guard units in RsMO 40. We do the same thing in our policies with respect to Missouri Chapter 40. Some of these refinements must be made over time as we discover what works and what does not.
Among key differences between ourselves and the US military or the state/national guard units is that we are volunteers. That makes an entire array of disciplinary punishments inapplicable: we cannot readily garnish wages, fine, incarcerate volunteers, etc. If we attempted to do so--- even for a serious offense--- the volunteer may simply leave. Therefore, any offense so serious that it would merit such actions will be turned over to civil or criminal law, or, where that cannot be done, dismissal with cause may be the most serious action we can take.
For a variety of smaller offenses, a balance must be struck between too much focus on discipline which may drive volunteers away and too little which will prevent us from operating effectively in the field (and would likely drive volunteers away). A similar balance must be struck to maintain fairness: in a small organization, bulky disciplinary processes cannot work and yet, efforts must be made to ensure that discipline is fairly and evenly applied, to sort true accusations of misconduct from false ones.
This subsection of our policies will note critical departures in our process from RsMO 40.
As noted in RsMO 40.043, the accused may elect to submit themselves to discipline "before the mast", to be judged administratively by their commanding officer. The Commander's Mast will consider the accusation, hear the accused, solicit testimony of those on hand, and determine appropriate action. Also as noted in the Missouri and Federal UCMJ, administrative punishment does not preclude the possibility of formal process and punishment at a later date or administrative discharge by the Sheriff's Office, but willingness to submit to administrative discipline and completion of punishment imposed shall be taken into consideration in any later formal action.
Temporary Suspension: For (alleged) violations which prejudice the honor of the service, or which potentially impugn the trust of the volunteer such that they may not be permitted to perform their duties until the matter is resolved, the volunteer may, at the discretion of the commanding officer (or the Sheriff), be temporarily suspended until this administrative hearing can be held and a decision reached. This delay shall not normally be longer than the time to the next regularly scheduled meeting. Such suspension may be considered as time served if suspension is later imposed as punishment.
Ideally, most Auxiliary disciplinary matters which rise or may rise above admonition or reprimand should be handled before the mast, with court-martials only being convened for rare complicated issues where fair action is not clear or where culpability cannot readily be determined.
40.280. Contemptuous words, used against certain officials — court-martial. — Any person subject to sections 40.005 to 40.490 who uses contemptuous words against the President of the United States, Vice President of the United States, Congress, Secretary of Defense, or a secretary of a department, the governor of the state of Missouri, the Missouri general assembly or the adjutant general of the state of Missouri, the governor or the legislature of any state, territory or other possession of the United States in which he is on duty or present shall be punished as a court-martial may direct.
In the Sheriff's Auxiliary, this offense also includes conduct against the County Sheriff & County Coroner, the County Commission, and County department heads as they are effectively our executive, legislature, and cabinet secretaries, respectively.
Shall Include conduct by officers and enlisted: In federal service, this offense is limited to commissioned officers. As above, Missouri extends it to "all persons...". The Auxiliary follows Missouri in this respect.
Shall not cover mere political conduct: By tradition and precedent, this offense does not extend to mere political conduct or political disagreement, even contentious political debate. The offense requires contempt to be expressed to or of the person of the official and their authority, not a mere disagreement over policy. Note that political speech in uniform or otherwise representing the Auxiliary or the Sheriff's Office, not directly related to our duties or the needs of the service, may still be inappropriate or against policy even when exempted from this offense.
Against other officials: Contemptuous actions toward other or lesser officials would then be covered under what is referred to as the "General Article" offense: "40.410. Neglecting or prejudicing discipline of the military — bringing discredit to state military services..." or, if the conduct is serious enough, "40.395. Provocative gestures or words, constituting a threat of violence...". The offense of "40.408 Officer's conduct, unbecoming to an officer and a gentleman..." is similar to and more serious than 40.410 but applies only to commissioned officers.
This offense, depending on the seriousness of the specific act, may be punishable by any means within the power of the Auxiliary, including dishonorable discharge.
No JAG: One of the key differences between ourselves and any larger military or para-military organization is that we do not have any equivalent of a JAG (Judge Advocate General) Office, no dedicated corps of attorneys to act as judges or representatives. Almost all discipline must therefore occur within the chain-of-command, formal process must be simplified, and cannot take volunteers too long away from their regular duties. A year-long General Courts Martial is simply not an option.
Appointed Counsel: As a matter of fairness, a volunteer undergoing a disciplinary process should have access to counsel to advocate for them and help them understand that process. Such counsel shall consist of an active or retired officer or NCO. However, the restrictions in RsMo 40.098 apply that such an advocate may not be involved in prosecution, witness for the prosecution, etc. in the same matter. In a small unit, there may be no such officer or NCO available. In that event, the accused and command staff shall jointly request the assistance of an eminent member of the community to advocate for the accused. Command staff shall cooperate fully with the advocate to provide information needed for a proper defense and to come to agreement on fair procedures.
Attorney Not Required: The requirement in 40.098 that an appointed advocate be an attorney and specially qualified for the task shall not applied. A volunteer may always obtain their own attorney to advise or represent them at their own expense.
There shall be no distinction between Special and General Court-Martials. If a volunteer objects to trial by Summary Court-Martial, the matter shall be handled by a court-martial consisting of a judge and three or more jurists (more jurists may be used if command-staff can do so within pragmatic constraints). Regardless of how many jurists present when convened, three shall be the minimum number for purposes of RsMO 40.105.
In the UCMJ, the Commander-In-Chief (President, or, at state level, Governor) may dismiss any subordinate with cause at any time (https://revisor.mo.gov/main/OneSection.aspx?section=40.010&bid=1070&hl=). In our service, the Commander-In-Chief is the county Sheriff. A dismissal with cause may be appealed to a court-martial proceeding, but the court-martial is only empowered to consider converting the dismissal-with-cause to an administrative discharge (at least as far as the Auxiliary service record of the volunteer is concerned; an Auxiliary court-martial has no power over the Sheriff's Office to amend or change its policies). In either case, the volunteer leaves the service and may only be restored by an act of the Sheriff. An administrative discharge (with or without stated cause) by the county Sheriff may not be appealed.
In the Sheriff's Auxiliary, dismissal with cause or administrative discharge may be considered by any court-martial, regardless of size or type and the volunteer may be indefinitely suspended until the decision is reached.