1. MEMORANDUM
To: Scottie Kleypas
From: Christy Leftridge
Re: Employee defies order to work for military duty
Date: January 16, 2009
ISSUE
Whether an employee's defiance of an order to report to work to participate in
military duty constitutes dismissal of his employment?
BRIEF ANSWER
No. An employee has a good chance of challenging his dismissal when not
reporting to work was to participate in military duty.
STATEMENT OF FACTS
Our client, Mr. Lawrence McKay "McKay", was employed for the Oregon
Department of Corrections "prison" as a prison guard. McKay is also a reservist in the
United States Army Reserve. McKay had previously requested and obtained a leave of
absence from his employer to attend reservist training for a two-week summer camp.
McKay had been pressured into joining a voluntary drill team competition that would
take place during summer camp. One month before summer camp was to begin, Colonel
Harris, a superior officer, ordered McKay and the other drill team members to report the
following week for three-weeks of drill competition training. Colonel Harris and other

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officers lacking official army approval arranged this particular drill training session.
McKay immediately requested an additional three-weeks leave of absence from the
prison. The request was denied and McKay was ordered to report to work until he began
the summer camp. McKay reported to Colonel Harris for drill training and did not report
to work. After five weeks of military duty, three for drill training and two for summer
camp, McKay reported to work at the prison. McKay was then told that he had been
dismissed on charges of absence without leave and insubordination. McKay requested a
hearing on these charges that are scheduled for next week.
DISCUSSION
1. Dismissal for Absence without leave.
Our client, McKay, has a good chance of successfully challenging his termination
because military leave is statutorily allowed without the consequence of dismissal from
an employer. The only available case on point interpreting this statute is unfavorable to
our client, ruling that an intentional defiance of the order to report to work was only to
question the authority of the order. This exception is illogical and should be challenged
by forcefully asserting that the order to report to work was illegal because military leave
is allowed unconditionally by statute, therefore McKay's dismissal was improper.
Oregon law governing a leave of absence from a position of employment in order
to participate in military duty states:
" Whenever any public officer or employee leaves a position, whether voluntarily
or involuntarily, in order to perform military duty, such office or position may not
become vacant, nor shall the officer or employee be subject to removal as a consequence
thereof." Or. Rev. Stat. § 408.240 (1973).

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The case of Stephens v. Dep't of State Police, 526 P.2d 1043, 1045 (Or. App.
1974) (where a police officer did not report to work to attend a military training course)
interpreted that the statute granted military leave automatically. Authorization from an
employer or any other superior is not required. Id. McKay did not report to work at the
prison to attend a three-week training session that resulted in his termination of
employment. The statute clearly commands that McKay's leave for military duty is
allowed without the permission of the prison and McKay cannot be dismissed as a result.
2. Training and Service.
The Oregon department of corrections may argue that McKay's training does not
constitute military duty because the drill training session was for training only and not
associated with military service.
Military duty is defined as:
training and service performed by an inductee, enlistee or reservist or any
entrant into a temporary component of the Armed Forces of the United
States, and authorized time spent reporting for and returning from such
training or service, or, if a rejection occurs, from the place reported
therefor; but does not include active duty training as a reservist in the
Armed Forces of the United States or as a member of the National Guard
of the United States where the call is for a period of 15 days or less.
Or. Rev. Stat. § 408.210 (1973).
The Stephens case clarified that the words training and service are synonymous
terms within the definition of "military service". 526 P.2d at 1046. McKay's drill training
session is considered training by a reservist lasting for more than 15 days, which
constitutes military service. Thus, McKay's leave for drill training constitutes military
duty.

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3. Official approval
Military leave of absence is granted for military training and service, yet the army
did not officially approve McKay's drill training. The Oregon Department of Corrections
may argue that because the army did not approve the drill training it does not constitute
military duty. Military duty includes training performed by a reservist unless it is active
duty training lasting less than 15 days. § 408.210. McKay performed the drill training
session lasting three weeks in his capacity as a reservist at the order of Colonel Harris of
the Army. Therefore, the drill training session qualifies as military duty.
4. Insubordination
McKay's employer may argue that his refusal obey the order to report to work
constitutes insubordination. The Oregon Department of Corrections is given the power to
dismiss any employee for insubordination. Or. Rev. Stat. § 1226.788 (1973). A definition
for insubordination is provided in the Stephens case as "refusal to obey some order which
a superior officer is entitled to give and is entitled to have obeyed." 526 P.2d at 1046.
Under this definition, McKay is insubordinate if the superior's order was legally valid and
if McKay is legally required to comply. The Oregon Department of Corrections denied
McKay's request for military leave. The statute grants leave to McKay without consent
from the prison. The order to report to work is not valid because the prison cannot deny
McKay leave that is allowed by statute. McKay's order to report to work does not have to
be complied with because the leave is allowed by statute. Thus, the order to report to
work is invalid and McKay cannot be found insubordinate.

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5. Exception to Rule
The rule given in the Stephens case was that insubordination cannot occur when
the order given was not lawful to give. Id. Yet, the court found that an exception existed.
Willfully disregarding an employer's order only to test the authority of the order is an
exception resulting in insubordination. Id. at 1047. The court did not expand upon its
rationale of the exception, which directly contradicts the rule. McKay is not insubordinate
when the order to report to work was not valid. The state grants military leave
automatically and without further authorization of the employer. McKay was not required
to obey this order, as his employment is not allowed to be terminated for military leave.
Furthermore, Judge Foley, in the Stephens case dissented and asserted that the
opinion of the majority establishes the options are to either obey an illegal order or be
discharged for insubordination. Id. McKay should challenge his dismissal as the
exception is without merit.
CONCLUSION
McKay has a good chance of challenging his dismissal from the Oregon
Department of Corrections because leave for military service is granted by statute without
resulting in dismissal of his employment. McKay's three-week drill training constitutes
military service that is granted automatically, without requiring permission from the
employer. McKay cannot be dismissed from his employment for being insubordinate, as
the order given was invalid and not required to be obeyed. The insubordination exception
should be challenged as illogical and contradictory to Washington statute.