Do you have to reemploy vets — no matter what?
September 18, 2008 by Fred HosierPosted in: Here comes the judge, Special Report
A federal law that ensures employees can return to their jobs after being called to service in the U.S. military mandates that a police department has to hire an officer back — even though he was charged with conduct unbecoming an officer.
Brian Petty was a police officer for the Metropolitan Government of Nashville-Davidson County. He left the department for active duty with the U.S. Army and sought reemployment with the department after completion of his military service.
Simple, give him his job back, right? Actually, it was more complicated than that.
While serving in Kuwait, the military charged Petty with violation of a lawful order and conduct unbecoming an officer.
The charges came after Petty’s quarters were inspected. The inspector turned up a five-gallon can Petty was using to make wine.
Petty admitted he was making wine and said it was “mainly” to give to a local farmer so he’d help cut down trees. However, Petty also said he eventually might drink some of the wine himself.
Petty was also accused of offering alcohol to enlisted soldiers, something he also admitted.
When he appeared before a military judge, Petty offered to resign “for the good of the service.” He was relieved of his command, and the Army formally dismissed all charges against him.
On an official military form, Petty’s discharge was characterized as “under honorable conditions.”
He asks for his civilian job back
When Petty returned from overseas, he asked to return to his police department position as a patrol sergeant.
The department had a return-to-work procedure that applied to all officers who had been away from work for some time, for whatever reason. The procedure includes a personal history update questionnaire, a medical exam, a computer voice stress analysis, a drug screening and a debriefing with a department psychologist. For those returning from the military, they must authorize the department to be able to access their military records.
Petty provided his discharge form, which provided some but not all the information about the military’s discipline action against him.
Then the department launched an investigation into whether he’d been completely truthful in submitting his paperwork. It also denied his request to moonlight as a security guard — a job that he had before leaving for overseas.
Petty filed suit alleging the department’s return-to-work requirements and investigation violated his rights under the Uniformed Service Employment and Reemployment Rights Act (USERRA). Petty alleged that the department delayed rehiring him, didn’t return him to the position to which he was entitled and denied him the ability to work off-duty security jobs.
The department argued the purpose of the return-to-work rules is to make sure the person is still physically, emotionally and temperamentally qualified to be a police officer.
But the court ruled for Petty, saying that USERRA “supersedes any contract, agreement, policy, plan, practice, or other matter that reduces, limits or eliminates in any manner any right or benefit provided by this chapter.”
What do you think of the court’s ruling? Let us know by sending a message in the Comments Box.
Tags: police, reemployment, USERRA
September 19th, 2008 at 12:09 pm
Well, first off, the law requires them to return to work (if within 3 years) into a position that is at the same pay grade and receives the same benefits as they had before they were activated to service. Therefore, the precautionary tests they required were unnecessary and, in my interpretation, a violation of USERRA. However, the right to be allowed security officer duties is not a portion of his normal job description and I would think, therefore, not a protected portion of his job. I could be wrong about that, but USERRA applies to the actual job and the requirements it held before the member left for service.
September 19th, 2008 at 12:13 pm
I believe the court did the right thng.
September 19th, 2008 at 12:27 pm
I feel the courts were wrong in this incident. The officer was discharged from the services in a dishonorable manner for making and distributing alchol, isn’t that an illegal act within itself? I would have to wonder what kind of a police officer he would make in my community.
September 19th, 2008 at 12:27 pm
Who cares and in my opinion he did nothing wrong overseas and the Army should lighten up. I was Mailing my son vodka and cranberry in cranberry bottles when he served in Iraq. Also, being a vet myself & in combat I have seen some guys drink shaving lotion so why not let them have a little taste to make all the pain go away for a while. If not some would turn to pot like many did in Viet Nam.
Give him his job back he will be a better police officer because of what he did and saw.
September 19th, 2008 at 12:29 pm
To me this means that regardless of the crime committed, any returning military person has a “right” to be reemployed at his/her old job? I’m not sure which is more screwed up, the USERRA law or the judge that interpreted it.
September 19th, 2008 at 12:37 pm
good for the courts, finally a sound decision from these folks. a person serves the public in protecting property and lives to the best of his ability, as a police officer, is motivated enough to have a second job (security) then serves his country in military role only to be disciplined for making wine. Here is a soldier who from day to day does not know if he will sustain life time injuries or die for his country and is exposed in his records again for making wine. ENOUGH IS ENOUGH WAKE UP AND LET’S START PRACTICING THE GOLDEN RULE OF “FORGIVNESS”. Just who would want to ruin a man’s life for such a petty incident. He did not harm anybody physically or mentally. He did not steal, or make a profit at the military’s expense, hell who knows how many of our young men need a drink or some kind of relaxtion for what the go through each day and night in serving our country
September 19th, 2008 at 12:43 pm
I think he should have been completely honest about the incident in Kuwait. It’s illegal to drink there, but legal to drink in the USA. Although he violated a rule there, since drinking in the USA is legal, I would think the police department would be able to make an exception to the violation and return him to duty.
I’ve worked in Kuwait and it’s horrible. The culture is horrible and he probably needed a little escape. I’m so glad that USERRA overruled the police department’s policies and that he got his job back. He served our country and he deserves better.
For those of you who may respond that he should be held to a higher standard and what he did was wrong, I suggest that you try to go over there and live in that horrible culture. You have no idea.
September 19th, 2008 at 12:51 pm
You go Al!
September 19th, 2008 at 12:55 pm
AMEN
September 19th, 2008 at 1:10 pm
I think that it was a good ruling, since he did not denied anything during his time. As a person an soldier they do need time off to spare their minds, and that was nonting compare to what we have heard from others deploy officers. Any civil job should not have any access to military records the DD-214 should be enough. Good for the judge!!! thanks to our soldiers we can sleep, work and our children go to school more safe.
September 19th, 2008 at 1:12 pm
Yes, he broke the rules, but he was discharged honorably. The police dept’s rule does not take precedence over the USERRA, therefore he should be returned to the police job. Forgiveness aside, it has nothing to do with the rule of law.
September 19th, 2008 at 1:52 pm
I agree with the outcome on this one – making wine doesn’t seem like that serious an offense, and the whole point of USERRA is to protect the veteran’s job. However, what if he had been dishonorably discharged? Or more seriously, what if the tests he took for the police department showed that he was no longer mentally or emotionally capable of working as a police officer? Then you would have a situation of an unfit person carrying a gun, with the authority to use it, and USERRA saying the PD had no right to test him, much less deny him the job. I’m assuming the PD at that point could hire him and give him a desk job? It’s not so black and white . . .
September 19th, 2008 at 1:52 pm
I cannot believe our armed service would discharge someone for making home made wine. What is wrong with that? Was he drunk while on duty? These men risk their lives for us and this is how they are treated? Where is our sense of morality, loyalty, and good judgement? This country is really going down the tubes fast. God help us all!
September 19th, 2008 at 1:56 pm
I could see not rehiring him had he actually be guilty of a crime and dishonorably discharged. It sounds as if someone at the county was trying to use it as an excuse to not hire the vet.
September 19th, 2008 at 2:23 pm
He was honorably discharged. No further investigation was needed. He was owed his job back immediately.
September 19th, 2008 at 2:26 pm
In this instance I don’t think it was right for them to try and deny him the job he had prior to leaving. But I can see why the departments policies are in place. Would you want an officer who was no longer physically able to perform to the standards because of an injury acquired in battle? What about a soldier/ex-soldier who suffered from a mental disability caused by things he or she had seen or done in battle? All applicants go through the testing process for the safety of the officer and the people they want to protect.
September 19th, 2008 at 2:30 pm
There must be more to Petty’s discharge than is in your article. Most Military courts when the defendant is cooperating will put the best light in published records of a court martial for the good of the service. Petty’s conduct is forgiveable given the circumstances in which they occured.
Give him his job back. Judge him only on his conduct of being a Police Sergeant in the US.
September 19th, 2008 at 2:32 pm
Also, I wanted to mention that I think the crime committed should be taken into account. let’s change the scenario a little bit. What if he had raped a civilian? Would you want someone like that to be a police officer in your neighborhood? To me that screams abuse of power. Just think of the movie Full Metal Jacket. Scary thought.
Like I said, in this instance it shouldn’t have even been a question. But not everything is black and white.
September 19th, 2008 at 2:42 pm
Al, I could not have said it any better!
September 19th, 2008 at 2:42 pm
USERRA is clear on this issue. He can’t be barred from returning to his job unless he was dishonorably discharged and his DD-214 reflected this fact.
September 19th, 2008 at 2:47 pm
The court did the right thing by applying the law, period. I am, however, appalled at these comments, which represent a mindless, knee-jerk “compassion” (i.e., feelings, not thought) run amok. This person was a menace to his fellow soldiers (they’re “on duty” i.e. at risk, 24/7 and need to be prepared for any unexpected threats, e.g., a terrorist attack), a threat to the military’s mission (a US soldier manufacturing and distributing alcoholic beverages to locals in a Muslim country is borderline sociopathic), and displayed a contempt for military discipline, which, after all, is designed for the safety of all. His personal corruption and contempt for the rules obviously makes him unfit to be a police officer and clearly undermines the police department’s mission to keep bad apples out. Nonetheless the statute is clear and the court properly suppressed what I hope were its sympathies for the police department. If the officer had a sense of honor he would resign. Let’s hope the officer has learned something and that the community and its police department don’t someday pay a heavy price for having to put a uniform on him.
September 19th, 2008 at 3:00 pm
I’m not sure from the information provided whether he received an honorable discharge or a general discharge under honorable conditions. He committed a crime under the Uniform Code of Military Justice (UCMJ) which he apparently did not deny. Granted he did not rape or pillage, but I’m not sure I would want to employ anyone in any capacity who knowingly violates company rules or the law. I think the police department erred by not immediately reinstating him perhaps at a desk job and then I think they would have been within their rights to test him to ensure he could still perform all his previous duties at an appropriate level. As a veteran of Vietnam and Desert Storm, I understand the reason for USERRA, but I think, in this case, the court set a dangerous precedent. What happens when the police department must rehire a vet who then commits a violent crime after being rehired? The police dept. will be found to be liable by the same court.
September 19th, 2008 at 3:13 pm
Pat – you don’t know what you are talking about – most of the military in Kuwait CANNOT go off base. However, as a person who has lived off base, many nationals from Kuwait DRINK!!! Get real! Remember prohibition? The police are even lenient on it. As a matter of fact, several top police officials came to my house for dinner and brought WINE. You are blowing smoke. Also, I am most likely sure that if he did drink, he drank during his off time. They do need that you know….
September 19th, 2008 at 3:25 pm
Hold on folks! Alot of things are not allowed in Kuwait based on their culture. The lists of no-nos includes ALCOHOL and PORNOGRAPHY! This is a condition of our being there and the US Military not only respects but strongly enforces these rules. Each and every military person is thoroughly briefed on this prior to their departing for Kuwait area operations! Alcohol is not available in country and in fact is not sold at the base exchange. This soldier was flagrantly and knowingly violating the rules. His discharge may have said honorable but he didn’t serve honorably!! Giving alcohol to the locals he can be grateful the Religious Police didn’t get ahold of him and i wouldn’t want him serving on the police force in my town!!
September 19th, 2008 at 3:36 pm
I think the court was correct here as the law provides a guaranteed reeentry to anyone honorably discharged. Its not like the guy raped or pillaged. True, he may have bent the rules, but we have many servicemen that have done far worse. He didn’t My’Lai anyone.
That said, I do agree with the fact the PD had the tests. I think they were necessary, but Tom had it right. Hire him back immediately to a desk job at the same salary he had when he left pending the tests. If the tests came back positive, fine, but if they tests came back with problems then require him to stay at the desk job and explain why.
I also have to agree with the PD on the kaboshing of the other job. We’ve had a problem here in our area with police working up to 100 hours a week at other jobs and falling asleep on duty. Pay the officers a fair wage and you wouldn’t have that problem, but the moonlighting does lead to a safety issue.
If you don’t have rules like USERRA, why should someone sign up for the military if they aren’t confident they will keep their job due to some action beyond their control.
September 19th, 2008 at 3:44 pm
Though I agree with AL we have to remember its men AND women that are serving our country.
September 19th, 2008 at 3:59 pm
Well, I keep seeing things about him “serving honorably.” I just can’t agree that a violation of some standard that a froeign country places on our soldiers constitutes a totally dishonorable service. This may be the real reason he was not dishonorably discharged. he in no way shape or form dishonorably served his platoon, but the original question was basically if USERRA was interpreted correctly. That is a definite yes.
USERRA specifically states: “…You have not been separated from service with a disqualifying
discharge or under other than honorable conditions.” This man was released under honorable conditions, and by doing so became eligible to return to his job providing he met the other qualifications under USERRA.
September 19th, 2008 at 4:43 pm
What in the world are some of you missing. The charges were dismissed!!! and he has an Honorable Discharge! You can legally make wine and beer here with limits etc…. Any way. He was serving our country in a place that I am sure many of us would not want to be. The article told us the details but the charge was made but dropped. That really is the bottom line. It is like being guilty or not guilty. This man was found not guilty. USERRA also has specifics. His DD214 reads Honorable discharge so he should have had his job back. If there were emotional/unstable issues in his psychological tests that would have made him unstable I would be saying something different being the nature of his job. Not the case he deserved to win. Trust me my husband was in the Gulf War and we do not know everything and do not want to either.
September 19th, 2008 at 5:26 pm
Are you kidding me??? Do you really want a police officer who snubs his nose at the law? I don’t think so! This was a Muslin country…no alcohol. I’m sure Sgt Petty got the briefing before he deployed. So, he flagrantly disregarded this law. What will he turn his eyes away from as a police officer? I won’t be surprised if the next thing we hear re Sgt Petty is that he was caught doing something illegal or not reporting something illegal. The courts were wrong. This looks like a great officer to get arrested by – Wonder what I can do to get out of a ticket/summons in Nashville-Davidson county?
September 22nd, 2008 at 1:55 pm
Actually, I thought the law requires them to return to work (if within 5 years not 3 years as indicated above) into a position that is at the same pay grade and receives the same benefits as they had before they left. And I agree with the courts. He should have been returned to his job.
September 22nd, 2008 at 2:59 pm
My husband just got back from Iraq and believe me after what they go through for our country …it is the least we can do. Let the man make the wine he wishes to.
September 22nd, 2008 at 3:03 pm
It is easy to apply judge a person based on our own experience. Many today have never experienced being in a war zone or under fire. It can make you a little crazy and you can do things that looking back were not well advised. You will have Vet’s returning who may have screwed up. Had they never been placed in such an environment, sometimes right out of high school, they would have never been placed in a position to make the mistake. Don’t expect your vets to come back in shining armor and then spit on those who may be a little tarnished. The fact is, the vet made the sacrifice and placed him/herself in such a position to defend our country. A consequence of that sacrifice is that some may make mistakes and may need some help.
As Vet’s return with PTSD and other disorders, don’t look at them as “the walking wounded.” When I left the military after 18 years, I had plenty who were willing to buy me a beer, but when trying to get employment, recruiters, unemployment, and HR managers determined that I was only suited for a “militaristic environment” like police work. I was trained and worked as a Nuclear Elctronics Technician on submarines. I never did police work before. I watched Senator Kerry get trashed during the last presidential election and I heard the claims against Senetar McCain as being “damaged” as a POW.
There will be those who feel they are “right” and for the good of their companies and profit margins (and risk managment) they will find a way to refer any vet’s to employment that is more suited to their “skill set.” I would encourage you to look closely and check your biases at the door. If the vet has problems, they need EAP or VA to help and can be a great asset to any organization. If there are signs of serious problems (they need to be referred for help and that help should be made a condition of employment).
Please don’t be part of the “weekend Americans” who wrap themselves up in “old glory” and buy vets beers and then forget about them. They deserve your respect and any understanding you can muster up. They are our sons and daughters. They have been changed permanently by their experience. Just like metal gets stronger if your work it, it can also become brittle. Our returning vets will be stronger for the experience, but they now may have some problems they will have to deal with.
The USERRA Act requires us to do what we should already be doing for the Vets returning home. It is the bare minimum required by law. In my opinion, employers and citizens should be so far on the side of helping vets return home, the USERRA Act shouldn’t even have to be thought of or referenced. Unfortunately, in the real world of war, politics, and business we usually do what we are FORCED to do and no more. I say that we all have a part to play in this conflict and the Vet’s are doing their part, we need to do our part when they return. And our part should be so much more than a cold beer and the directions to the VA.
September 26th, 2008 at 8:35 am
I applaud those supporting the military and what they go through, I did 20 years myself.
That said, we’re not talking about morals or what a country does or does not allow, we’re talking the rights to reinstatement guaranteed by USERRA.
USERRA doesn’t say you’re allowed to apply your morals, bias thoughts or any other criteria to your decision to return someone to their job – it says you do it if all the eligibility criteria is met. Given that Petty was discharged under honorable conditions and requested his position back within the guidelines of USERRA he’s entitled to his job back…no questions asked!
September 29th, 2008 at 6:12 pm
WOW!! This is a hot button issue for sure! All ya’ll can set down the stones in your hands and ponder about this more tonite as you sit at your comfortable home sipping on a beer or glass of wine – or whatever else you might desire to indulge in…
I wonder what led to the inspection of an military officer’s quarters to begin with – those type of activities are normally reserved for enlisted folks, sounds to me like someone had…. well, it doesn’t pay to speculate does it…. Anyway, Army Regulations (AR’s) are not quite the same as law but are pretty close – particularly when it comes to violating them – as “guidance for commanders”.
In more than 24 years of total military service I have seen a bunch of violations of AR’s – even committed some myself and explained it away as the “field expedient method” – particularly when caught between 2 conflicting orders. In situations where violators were caught, sometimes the regs were used by commanders – and sometimes not. Not quite the same as M.A.S.H., but sometimes people got away “easy”. Obviously, the commander elected (or maybe received some encouragement) to not just give a little letter for a 201 (personnel) file, or even a verbal and destroy the offending substance, (see paragraph above), but could also not in good conscience proceed with the UCMJ which was an obvious option. Every day police officers in this country confiscate alcohol or drugs and simply write an appearance order (unless intoxicated). It appears that Lieutenant or Captain Petty (I will assume he was company grade) was truthful it what he revealed about providing wine (versus cash or other like kind payment) to a local (says something about how the local felt about “their” laws) and his soldiers. I am also familiar with municipalities and local governments and those all-powerful Chiefs and Sheriffs. All of the LEO’ (Law Enforcement Officers) I know (from patrol to Platoon Leaders) perform “security detail” during their off-time at up to 2 times their normal hourly rate) to supplement their regular salary but is dependent upon them being sworn officers, so if they were to deny his return to the department, the moonlighting is a moot point.
None of the above really matters – but thanks for reading. I agree with most of the other respondents, the military CHARGES against Petty have nothing to do with the application of the the USERRA LAW.
If the department really has a case about this and just does not want Petty, then they should have (listened to their HR person) simply reinstated Petty placed him on a desk or admin leave with pay and started documenting for fitness for retention in order to separate the issues. If they had kept him on a desk, he would of probably went somewhere else anyway – doesn’t strike me as much of a desk sittin’, paper pushin’ type.
Making 5 gallons (or maybe more) of wine was for sure not the smartest thing to do and was ill advised at best, and I do not condone violating AR’s or Laws, but I am also feel pretty strongly that he must have thought it would help his unit and his Army – if he didn’t care about either one, he wouldn’t even have been “over there”.
As for me and my house, we give our thanks and ask blessings to now Mr. Petty and all others for their response to the call of (honorable) service to this country.
October 8th, 2008 at 4:55 pm
I believe the court did the right thing, he was just discharged for making wine and giving it out to people, including himself. It may have been against the rules and policies in the service but it’s not like he went out and just killed another person for kicks or raped anybody just because he thought he could get away with it….He just made wine! I have never served in the service but I’m sure, after what I have heard from people that have served that if I was over there I would need a boost every now and again!
He’s fighting for us and his country…let them have a drink once in awhile!