Bottom-line
There is absolutely NO legal requirement for the Command to serve legal papers and the Command should know this.
Discussion
See 32 C.F.R. 516.12 – Service of civil process outside the U.S.
516.12(c) Process of state courts. If a Department of the Army (DA) official receives a request to serve state court process on a person overseas, he will determine if the individual wishes to accept service voluntarily. Individuals will be permitted to seek counsel. If the person will not accept service voluntarily, the party requesting service will be notified and advised to follow procedures prescribed by the law of the foreign country concerned.
516.13 – Assistance in serving process overseas.
516.13(a) – Europe – For information and assistance concerning service of process of persons assigned to or accompanying U.S. Forces in Europe, contact the Foreign Law Branch, International Law Division, Office of The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army, Unit 29351, (Heidelberg, Germany) APO AE 09014.
Additionally, the Servicemembers Civil Relief Act (SCRA) provides for a stay in all civil proceeding when a servicemember is unable to appear due to military duty.
The SCRA is codified under 50 U.S.C.
Section 522 – Stay of proceedings when servicemember has notice – is what the servicemember is looking for.
Basically, the unit commander has to send a letter to the issuing court that
- The Servicemembers military duty requirements in Germany
materially affect the Servicemember’s ability to appear, but that the Servicemember will be available after (provide date the Soldier’s tour in Germany is up); 2. Current military mission requirements prevent the Servicemember’s appearance and that military leave is not authorized at this time.
If the Command is not aware of all this, which I am sure they are, the Soldier needs to reach out to the servicing legal office or legal assistance office.
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