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3. Jurisdiction

CHAPTER 3

Jurisdiction

 

  1.       Introduction

  2.       Jurisdiction over the Offense

  3.       Jurisdiction over the Person

  4.       Jurisdiction over the Reserve Component

  5.       Procedural Considerations

  6.       Jurisdiction over Civilians

 

I. Introduction

A. Jurisdiction means the power of a court to try and determine a case, and to render a valid judgment.  Courts-martial are courts of special and limited jurisdiction.  For example, courts-martial jurisdiction applies worldwide, but is limited in application to a certain class of people—members of the armed forces.  In general, three prerequisites must be met in order for courts-martial jurisdiction to vest.  They are: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial.

B. Whether a court-martial is empowered to hear a case—whether it has jurisdiction—frequently turns on issues such as the status of the accused at the time of the offense, or the status of the accused at the time of trial.  These issues of courts-martial jurisdiction relate to either subject matter jurisdiction (jurisdiction over the offense) or personal jurisdiction (personal jurisdiction over the accused).  Subject matter jurisdiction focuses on the nature of the offense and the status of the accused at the time of the offense.  If the offense is chargeable under the Uniform Code of Military Justice (UCMJ) and the accused is a Servicemember at the time the offense is committed, subject matter jurisdiction is satisfied.  Personal jurisdiction, however, focuses on the time of trial: can the government court-martial him?  The answer is yes, so long as the accused has proper status; i.e., that the accused is a Servicemember at the time of trial.

C. Sources of Jurisdiction.

1. The Constitution:  Article I, section 8, clause 14

2. UCMJ, Articles 2, 3 and 36

3. MCM, 2016 ed., R.C.M. 201 - 204

4. Customary international law and treaties

D. Five Elements of Court-Martial Jurisdiction, R.C.M. 201(b):

1. Proper jurisdiction over the offense (subject matter jurisdiction).

2. Proper jurisdiction over the person (personal jurisdiction).

3. Properly composed court (military judge and members must have proper qualifications.)  Absent evidence of coercion or ineffective assistance of counsel, accused’s request to be tried by military judge alone can be inferred from the record of trial (applying "substantial compliance" doctrine to Article 16.  United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997).  Article 25 (request for enlisted members to serve on panel) is also satisfied by substantial compliance.  United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000).  See also United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002). [See Tab E (Court-Martial Personnel) of this Deskbook for additional information]

4. Proper convening authority.  A properly constituted court-martial may try any person subject to the UCMJ, even if the accused is not under the command of the convening authority.  United States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990), set aside, on other grounds, 36 M.J. 8 (C.M.A. 1992); accord, United States v. Randle, 35 M.J. 789 (A.C.M.R. 1992).  See also United States v. Cantrell, 44 M.J. 711 (A.F.Ct.Crim.App. 1996). [See Tab E (Court-Martial Personnel) of this Deskbook for additional information]

5. Properly referred charges. United States v. Pate, 54 M.J. 501 (Army Ct. Crim. App. 1997).  The pretrial agreement (PTA) was not signed by the GCMCA, but instead the word "accepted" was circled and a notation made indicating a voco to the SJA.  The accused argued that since the CA never signed the PTA, the "new" charge to which the accused was pleading guilty was never referred and, therefore, the court-martial lacked jurisdiction over that charge.  The Army Court held that jurisdiction existed since a proper referral does not need to be in writing and the lack of signature was "insignificant."  See also United States v. Williams, 55 M.J. 302 (C.A.A.F. 2001).  But see United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004). [See Tab G (Initiation and Disposition of Charges) of this Deskbook for additional information]

II. Jurisdiction over the Offense

A. Historical Overview.

1. O’Callahan v. Parker, 395 U.S. 258 (1969).  The Supreme Court establishes the “service-connection” test.  See also Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 (1971) (the Court sets-forth the Relford factors as a template to determine “service-connection”). 

2. Solorio v. United States, 483 U.S. 435 (1987).  The Supreme Court overrules O’Callahan, abandoning the “service-connection” test, and holds that jurisdiction of a court-martial depends solely on the accused’s status as a member of the Armed Forces.

B. BOTTOM LINE:  Subject matter jurisdiction is established by showing military status at the time of the offense.

C. Administrative Double Jeopardy Policies.  Generally, a member of the Armed Forces will not be tried by court-martial or punished under Article 15, UCMJ, for the same act for which a civilian court has tried the Soldier.  This policy is based on comity between the federal government and state or foreign governments.  See AR 27-10, para. 4-2 (11 May 2016); JAGMAN, para. 0124.

D. Capital Cases.

1. Loving v. United States, 116 S.Ct. 1737 (C.A.A.F. 1996).  Justice Stevens (concurring) raised the question of whether a “service connection” requirement applies to capital cases.  See also United States v. Simoy, 46 M.J. 601 (A.F. Ct. Crim. App.  1996) (a capital murder case in which the court made a specific finding that the felony murder was “service-connected”).

2. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999).  The CAAF gives credence to Justice Stevens’ concurring opinion in Loving.  The CAAF makes a specific finding that there are sufficient facts present in Gray, a capital case, to establish a service connection to warrant trial by court-martial, but does not answer the question of whether a “service connection” requirement applies to capital cases.

E. Subject Matter Jurisdiction over Reservists/National Guard.

1. The offense must be committed while the reservist has military status.  See United States v. Chodara, 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer ordered to AD for training; provided urine sample that tested positive for cocaine pursuant to a urinalysis administered within 36 hours of initiation of AD period. Held: no subject matter jurisdiction because the government failed to prove beyond a reasonable doubt that the accused was subject to the UCMJ at the time he “used” the cocaine); United States v. Morita, 74 M.J. 116 (C.A.A.F. 2015) (Reserve Component officer who forged active duty and inactive duty training orders was not subject to jurisdiction under Article 2(a)(1), UCMJ, because that provision requires a reservist to be lawfully ordered to active duty or training in the armed forces; officer was not subject to jurisdiction under Article 2(c) for misconduct while he was not in a duty status because a reservist must be “‘serving with’ the armed forces at the time of the misconduct[] and meet the other four criteria set forth in the statute”). But see United States v. Lopez, 37 M.J. 702 (A.C.M.R.  1993) (in a case where accused on AD for several months before given urinalysis, the court, in dicta, questioned the validity of the Chodara decision).  See also, United States v. Smith, Case No. 9500065, WL35319910, (unpub.) (Army Ct. Crim. App. 1998) (holding there was no federal court-martial jurisdiction over an offense that the accused allegedly committed while he was enlisted in the Mississippi National Guard).

2. Jurisdiction attaches at 0001 hours of the effective date of the orders to active duty. United States v. Cline, 29 M.J. 83 (C.M.A. 1989), cert. denied, 493 U.S. 1045 (1990).

3. Jurisdiction may exist outside the parameters of the orders.  United States v. Phillips, 58 M.J. 217 (2003).  The accused was a reserve nurse ordered to perform her two-week annual training from 12-23 July 1999.  Her orders authorized her one travel day (11 July) to get to her duty station.  The accused traveled to her duty station on 11 July and checked into her government quarters.  That evening, she consumed some marijuana brownies that she had brought with her from home.  The accused tested positive for marijuana as part of a random urinalysis test conducted on 16 July.  On appeal, the accused argued that the court lacked jurisdiction over her wrongful use of marijuana, because the use occurred prior to the start of her two-week active duty period.  The CAAF disagreed and affirmed AFCCA’s decision holding that jurisdiction existed over all of the offenses.  The CAAF held that jurisdiction existed pursuant to Art 2(c), UCMJ, which “by its express terms, establishes a specific analytical framework.”  Applying a two-step analysis, the CAAF first held that the accused was “serving with” the armed forces on 11 July, because she was a reservist traveling to her duty station pursuant to orders issued for the purpose of performing active duty, she occupied government quarters, and she received compensation in the form of travel reimbursement, retirement credit, and base pay and allowances.  For the second step in the analysis, the CAAF applied Art 2(c)’s four-part test, finding that on 11 July the accused: (1) submitted voluntarily to military authority; (2) met the minimum age and mental qualifications; (3) received pay and allowances; and (4) performed military duties by traveling to her duty station.  The CAAF emphasized that “[t]he fact that her orders did not require her to report to a specific organization until July 12 does not detract from her voluntary performance of the duty, pursuant to orders, to travel on July 11.”

4. New Rule: Pursuant to the Military Justice Act of 2016, after 1 January 2019, jurisdiction attaches to reservists and national guard members (when in federal service) while on inactive-duty training (IDT) and during the below designated periods. See Article 2(a)(3), UCMJ.

a) Travel to and from the IDT site of the member, pursuant to orders or regulations;

b) Intervals between consecutive periods of IDTs on the same day, pursuant to orders or regulations; and

c) Intervals between IDTs on consecutive days, pursuant to orders or regulations.

5. Old Rule: Prior to 1 January 2019, no personal jurisdiction during the periods between IDTs.  See United States v. Wolpert, 75 M.J. 777 (CAAF 2016) (Accused allegedly committed sexual assaults between periods of IDT sessions over a weekend.  Holding: reserve component Servicemembers are only subject to UCMJ jurisdiction when performing active duty or IDT under Article 2(a)(3), UCMJ, not during the period between IDT drills.  CAAF distinguished Wolpert from Phillips, ruling that Wolpert was not ordered to active duty or on orders of any kind, therefore he was not serving with the Armed Forces at the time of the criminal offense for purposes of personal jurisdiction.)

6. Jurisdiction outside of orders is limited.  In Morita, the court held that being a member of the Reserve Component, by itself, is not enough to establish that the accused was “serving with the armed forces” for purposes of Article 2(c).  It affirmed the Air Force Court of Criminal Appeals’ rejection of the military judge’s finding that the fact the accused committed the offenses in his capacity as a military officer was enough for jurisdiction.  The court reversed the lower court’s determination that the accused was in an active duty status based on orders he forged, holding that forged orders do not place a reservist within an active duty or inactive duty training (IDT) – or drilling – status for purposes of Article 2(a)(1) and (3), UCMJ, especially since the record did not establish that he performed any military duties for the periods he was alleged to be IDT status, thus failing to establish jurisdiction under Article 2(a)(3).  Article 2(a)(1) requires the accused to be lawfully called to active duty, so the accused’s forged orders did not establish jurisdiction under that provision, for a “forgery is the antithesis of a lawful order.”  Morita, 74 M.J. at 122.  As the government failed to demonstrate that the accused was receiving military pay or retirement credit for the days in question, or otherwise performed military duties during those times as required under Article 2(c), it failed to meet its burden to show personal jurisdiction over the accused for these offenses.    

7. If a member of the National Guard is performing duties in a Title 10 status, a unit or commander in Title 32 status does not have jurisdiction over him.  In United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005), the appellant was a member of the Air National Guard in Arizona who had been mobilized under Title 10 and was performing duty at Davis-Monthan Air Force Base.  The commander of his Air National Guard unit, while in Title 32 status, ordered a unit urinalysis inspection of the appellant’s Air National Guard unit during a Unit Training Assembly.  The appellant submitted to the inspection and had a positive result for cocaine metabolites.  He subsequently confessed.  The military judge suppressed the urinalysis and the confession, ruling that while in a Title 10 status and attached to a Title 10 unit, the appellant was not subject to an inspection ordered by a commander from a unit that was in Title 32 status.  The AFCCA affirmed.

8. Jurisdiction “is an interlocutory issue, to be decided by the military judge, with the burden placed on the Government to prove jurisdiction by a preponderance of the evidence.”  United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002).  The CAAF found that the medical records submitted on appeal established that the accused had been retained on active duty beyond the expiration of his orders, thus satisfying subject-matter jurisdiction over the offense.

F. Time of the Offense.

1. United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  Prior to joining the Navy, accused posted sexually explicit image of a child to his Yahoo! email account profile. The image was accessible to other Internet users.  After accused enlisted, he continued to access his account and did not remove the image. NCIS investigators accessed the accused’s profile and viewed the image. Accused was charged and convicted at a court-martial with distributing child pornography.  The C.A.A.F. held that the accused committed an offense while on active duty because he continued to maintain control over his account and others viewed the image he had posted on the account.        

2. Morita, 74 M.J. at 122.  Where the accused was not lawfully called to active duty or performing duty in IDT status at the time of some of his offenses, the court-martial lacked jurisdiction over those offenses under Article 2(a).  The court-martial also lacked jurisdiction under Article 2(c) because the Government did not present sufficient evidence to show either that the accused was “serving with the armed forces” at the time of those offenses or that any of the other criteria under Article 2(c) were met. 

III. Jurisdiction over the Person

A. General Rule:  In general, a person becomes subject to court–martial jurisdiction upon enlistment in or induction into the Armed Forces, acceptance of a commission, or entry onto active duty pursuant to order.  Court–martial jurisdiction terminates upon a valid discharge.

B. General Provisions:  UCMJ, Art. 2, provides jurisdiction over categories of persons with military status:

1. Enlistees; Inductees; Academy Cadets/Midshipmen.  Note: Reserve Officer Training Corps (ROTC) cadets are generally not subject to the UCMJ absent special facts and a clear tie to Title 10 status.

2. Retirees

a) Jurisdiction over retirees is constitutional.  Pearson v. Bloss, 28 M.J. 376 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417 (C.M.A. 1958); Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992).

b) United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002).  The accused had served 20 years on active duty and was placed on the retired list on 1 January 1989.  In 1996, he worked as a Naval civilian employee in Okinawa.  He confessed to engaging in sexual intercourse several times a week over a nine-month period with his 16-year old adopted daughter.  By the time the raping stopped, the accused was 58 years old and his daughter was pregnant with his child.  At trial, the accused moved to dismiss for lack of personal jurisdiction.  The accused cited to Toth v. Quarles, 350 U.S. 11 (1955) and argued that he had “obtained civilian status” and was being deprived of due process rights available only in a civilian courtroom.  The service court disagreed stating that there “is no doubt that a court-martial has the power to try a person receiving retired pay.”*      

c) United States v. Stevenson, 65 M.J. 639 (N.M.Ct.Crim.App. 2006), rev’d on other grounds, 66 M.J. 15 (C.A.A.F. 2008). Accused was a sailor on the Temporary Disability Retirement List who waived his military disability pay in favor of Veteran’s Affairs disability compensation. Held: Court-martial had personal jurisdiction because accused was “entitled to pay”, even if he was not receiving pay.

d) Headquarters Dept. of the Army (HQDA) approval is required before prosecuting retirees (AR 27-10, para. 5-2 (11 May 2016)).  Failure to follow “policy” and obtain HQDA approval to try a retiree, however, is not a jurisdictional error.  United States v. Sloan, 35 M.J. 4 (C.M.A. 1992).

e) The Article 2(d), UCMJ, involuntary recall process required for members of a reserve component, is not required to bring retirees and members of the Fleet Reserve or Fleet Marine Corps Reserve on to active duty in order to have jurisdiction over them.  United States v. Morris, 54 M.J. 898 (N-M. Ct. Crim. App. 2001), petition for review denied, 55 M.J. 161 (May 22, 2001).  Practitioners seeking or challenging jurisdiction over certain classes of retirees/reservists should carefully review United States v. Begani, 79 M.J. 767 (N-M. Ct. Crim. App. 2020) (reversing its previous holding that treating the Fleet Reserve differently from retirees was unconstitutional under the Equal Protection Clause). 

f) Involuntary Recall Retired Reservist. Morgan v. Mahoney, 50 M.J. 633 (A.F.Ct.Crim.App. 1999). Air Force retired reserve officer was involuntarily recalled to active duty under Art. 2(d)(1). Court held that the accused was subject to court-martial jurisdiction because: [1] he was a “person lawfully called or ordered into…duty” under Art. 2(a)(1); [2] he could be ordered involuntarily to AD under Art. 2(d)(1) & (2)  for offenses committed while the accused was on AD or IDT (within the statute of limitations); [3] he was amenable to the UCMJ under Art. 3(d) despite the termination of AD/IDT; [4] the AF Reserve is a “reserve component of the armed forces;” [5] he was in a “retired status” under 10 U.S.C. 10141(b); and [6] at the time of his recall, he was a member of the Retired Reserve.  Practitioners should note that retired Reserve Component personnel who are receiving hospitalization from an armed force are subject to court-martial jurisdiction without being recalled to active duty.   

g) United States v. Dinger, 77 M. J. 447 (C.A.A.F. 2018) (holding that a court-martial is not prohibited from sentencing a retiree to a punitive discharge or any other authorized punishment).

3. Persons in custody

a) Jurisdiction terminates once an accused’s discharge is ordered executed (or enlistment expires) and he or she is released from confinement.  The remaining suspended punishments are automatically remitted.  United States v. Gurganious, 36 M.J. 1041 (N.M.C.M.R. 1993), rev. denied, 45 M.J. 13 (C.A.A.F. 1996).

b) Fisher v. Commander, Army Regional Confinement Facility, 56 M.J. 691 (N-M. Ct. Crim. App. 2001).  An accused that still has military confinement to serve pursuant to a court-martial sentence, is still a military prisoner subject to military jurisdiction under the concept of “continuing jurisdiction,” notwithstanding the execution of his punitive discharge and receipt of the DD Form 214.  This is true even where the prisoner is serving time in a state civilian prison.  The discharge merely terminated his status of active duty, but did not terminate his status as a military prisoner.

4. P.O.W.s

5. In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.  (covered in more detail in Part VI of this outline).  United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012) (holding that an Iraqi national serving with U.S. forces in the field in Iraq was subject to the UCMJ).

6. Reservist Component includes USAR and Army National Guard of the United States (ARNGUS) soldiers in Title 10, U.S. Code, duty status.  (See sections II.E. and IV. of this outline).

C. Inception of Court-Martial Jurisdiction.

1. Enlistment:  A Contract Which Changes “Status.”  UCMJ, Art. 2(b).  The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

2. Involuntary enlistment:  United States v. Catlow, 23 C.M.A. 142, 48 C.M.R. 758 (C.M.A. 1974) (coercion); United States v. Lightfoot, 4 M.J. 262 (C.M.A. 1978); and United States v. Ghiglieri, 25 M.J. 687 (A.C.M.R. 1987) (proposed enlistment as alternative to civil prosecution -no coercion).

3. Constructive Enlistment.  The codification of In Re Grimley, 137 U.S. 147 (1890).  UCMJ, Art. 2(c) (as amended in 1979):

Art. 2(c):  Notwithstanding any other provision of law, a person serving with an armed force who—

(1) Submitted voluntarily to military authority;

(2) Met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) Received military pay or allowances; and

(4) Performed military duties;

is subject to this chapter until such person’s active service has been terminated in accordance with law or  regulations promulgated by the Secretary concerned.”

D. Termination of Jurisdiction over the Person.

1. General Rule:  Discharge Terminates Jurisdiction.

2. ETS/EAS by itself does not terminate jurisdiction. 

a) R.C.M. 202(a) discussion: “Completion of an enlistment or term of service does not by itself terminate court-martial jurisdiction . . . court-martial jurisdiction normally continues past the time of scheduled separation until a discharge certificate or its equivalent is delivered or until the Government fails to act within a reasonable time after the person objects to continued retention.”

b) United States v. Poole, 30 M.J. 149 (C.M.A. 1990).  Jurisdiction to court-martial a Servicemember exists despite delay—even unreasonable delay—by the government in discharging that person at the end of an enlistment.  Even if the member objects, it is immaterial—the significant fact is that the member has yet to receive a discharge.  Caveat:  Unreasonable delay may provide a defense to “some military offenses.”

c) R.C.M. 202(c)(1):  Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken.  Actions by which court-martial jurisdiction attaches include:  apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges. See United States v. Self, 13 M.J. 132 (C.M.A. 1982); United States v. Benford, 27 M.J. 518 (N.M.C.M.R. 1988).

d) United States v. Lee, 43 M.J. 794 (N.M. Ct. Crim. App.  1995). Focusing investigation on accused as prime suspect is enough to establish a “view towards trial” and preserve military jurisdiction beyond ETS/EAS.  The court cites to apprehension, imposition of restraint, and preferral of charges as other actions, which attach court-martial jurisdiction, i.e., indicate a “view towards trial.” See also Webb v. United States, 67 M.J. 765 (A.F.C.C.A. 2009)(initiation of criminal investigation and SJA memorandum placing accused on administrative hold were each sufficient to trigger attachment of court-martial jurisdiction).

e) Appellate Leave. United States v. Ray, 24 M.J. 657 (A.F.C.M.R. 1987) (jurisdiction upheld where accused, on appellate leave, was not provided discharge due to governmental delay in executing punitive discharge).

g) United States v. Hennis, 79 M. J. 370 (C.A.A.F. 2020) (holding: 1) that a break in service between accused’s acquittal of murder charges in state court, and his subsequent enlistment, did not deprive the court martial of jurisdiction; 2) Solorio v. United States, 483 U.S. 435 (1987) applies to capital cases and the accused’s offenses, the murders of an Air Force officer’s wife and children, were service connected for purposes of establishing subject matter jurisdiction over the accused; and 3) the Army had personal jurisdiction over the accused, a retired member of the Regular Army, because the Army was statutorily authorized to and did recall him to active duty for court martial).  The Court explained that the accused was subject to the UCMJ both at the time and place of the offenses and at the time charges were preferred.  Additionally, at the time charges were preferred no other entity other than the military could try him because double jeopardy applied to bar the state from prosecuting the accused on the basis of new DNA evidence. 

3.When is discharge effective? 

a) General Rule: 10 U.S.C. §§ 1168 and 1169 serve as guidance when it comes to determining whether discharge has been effectuated for jurisdictional purposes.  Discharge becomes effective upon: 1) delivery of DD-214, 2) completion of the clearance process, and 3) a final accounting of pay; unless such a result would clearly go against reason or public policy.

b) On delivery. United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000). Jurisdiction existed because pursuant to AR 635-200, a discharge takes effect at 2400 hours on the date of notice of discharge to the soldier.  See also United States v. Williams, 53 M.J. 316 (C.A.A.F. 2000).  A valid legal hold had been placed on accused prior to expiration of the date that constituted the effective date of the discharge.  United States v. Scott, 11 C.M.A. 646, 29 C.M.R. 462 (C.M.A. 1960).  A discharge takes effect at 2400 hours on the date of discharge; even if the discharge is delivered earlier in the day (unless it is clear that it was intended to be effective at the earlier time).

c) Valid Discharge Certificate:  Discharge Authority’s Intent.  Early delivery of a discharge certificate for administrative convenience (e.g., command does not want to keep personnel office open until 2400) does not terminate jurisdiction when certificate is clear on its face that the commander did not intend the discharge to take effect until later.  United States v. Batchelder, 41 M.J. 337 (C.A.A.F. 1994); see also United States v. Guest, 46 M.J. 778 (Army Ct. Crim. App. 1997).

d) Final accounting of pay.  10 U.S.C. §§ 1168 requires that the Gov’t make final pay ready for delivery prior to discharge, which may occur at the local installation level.  Final accounting of pay may also occur later than the final appointment at the local finance office.  Jurisdiction may still exist several days after a Servicemember has undergone a clearing process and received their DD214, since the local finance office may be only the first of many steps required to accomplish a final accounting of pay.  See United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008).  See also United States v. Howard, 20 M.J. 353 (C.M.A. 1985) (jurisdiction terminates on delivery of discharge and final pay); United States v. Coker, 67 M.J. 571 (C.G. Ct. Crim. App. 2008) (finance office having all the information it needed to compute final pay did not make final pay “ready for delivery” within the meaning of the statute governing discharge); United States v. Wieczorek, NMCCA 201100036 (N.M. Ct. Crim. App. 2011) (unpub.) (No in personam jurisdiction where no final accounting of pay, even when lack of final accounting is due to government pay clerk’s negligence).

(1) See United States v. Christensen, 78 M.J. 1 (C.A.A.F. 2018) for discussion of a final accounting of pay delayed at the request of the Gov’t.

e) Undergo a clearing process.  United States v. King, 27 M.J. 327 (C.M.A. 1989) (sailor refused to complete re-enlistment ceremony after he received a discharge certificate).  Three elements per King to effectuate an early discharge:

(1) Delivery of a valid discharge certificate;

(2) A final accounting of pay; and

(3) Undergoing a “clearing” process as required under appropriate service regulations to separate the member from military service. See United States v. Green, 654 F.3d 637 (6th Cir. 2011) (holding that former soldier was properly discharged despite lack of formal clearing ceremony and certain other adminstrative requirements).

f) Contrary to reason or public policy.  CAAF held the three part test (from 10 U.S.C. §§ 1168 and 1169) serves as guidance- not as prerequisites- when it comes to determining whether a discharge has been effectuated for jurisdictional purposes.  If all three of the criteria have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction.  If one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances in making a jurisdictional determination. See United States v. Christensen, 78 M.J. 1 (C.A.A.F. 2018) (based on specific facts of the case, there was no personal jurisdiction over the accused at the time of the court-martial after the chief of justice requested delay of final of accounting of pay and then Gov’t waited eight months to prefer charges against the accused and to complete his reintegration into the military). 

g) Discharge pursuant to failure to promote statute. United States v. Nettles, 74 M.J. 289 (CAAF 2014). 10 USC § 14505 requires discharge no later than a specific date for captains who failed to be selected for promotion on the second try.  Since the Servicemember was not placed on active duty under an administrative hold on the date of the self-executing discharge orders, the Servicemember’s discharge became effective on the date ordered- regardless of the failure to physically deliver the discharge certificate; and because the Servicemember was arraigned after the effective date of that discharge, personal jurisdiction no longer existed.

4. Erroneous Delivery.  Erroneous delivery will not terminate jurisdiction. United States v. Garvin, 26 M.J. 194 (C.M.A. 1988) (premature delivery of a BCD certificate); United States v. Brunton, 24 M.J. 566 (N.M.C.M.R. 1987) (early delivery of discharge, in violation of Navy regulations, meant discharge was not effective on receipt).

5. Post-arraignment Discharge.  A valid discharge of a soldier prior to trial operates as a formal waiver and abandonment of court-martial in personam jurisdiction, whether or not such jurisdiction had attached prior to discharge. Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997).  In personam jurisdiction was lost when accused was discharged after arraignment but before lawful authority resolved the charges.  The court considered the intent of the discharge authority and found that there was no evidence to show that the discharge authority (not CA) did not intend to discharge accused on his ETS.  In determining a valid discharge the court considered:  1) delivery of discharge certificate; 2) final accounting of pay; and 3) intent of discharge authority.  Note: AR 27-10, para 5-16 (11 May 2016), now provides that after any charge is preferred, the DD Form 458 will automatically act to suspend all favorable action and that any issuance of a discharge certificate is void until the charge is dismissed or the convening authority takes initial action on the case (thus avoiding the issue raised in Smith v. Vanderbush).

6. Post-conviction Discharge

a) Effect on Appellate Review and Power of Convening Authority

(1) Steele v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999).  After a court-martial conviction, but before the convening authority took action, the government honorably discharged the accused.  When the convening authority finally took action, he approved the findings and sentence (which included a punitive discharge), declared that the honorable discharge was erroneous, and placed the accused in an involuntary appellate leave status.  The accused challenged the invalidation of his honorable discharge.  In a supplemental brief, the government concurred.  As such, the CAAF denied the accused’s writ-appeal, but advised that the honorable discharge does not affect the power of the convening authority or appellate tribunals to act on the findings and sentence.  See also United States v. Stockman, 50 M.J. 50 (C.A.A.F. 1998). 

(2) United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006).  Held:  Where the appellate courts are invoked by an appellant and a rehearing is authorized, an intervening administrative discharge does not serve to terminate jurisdiction over the person of the accused for purposes of that rehearing.  The power of the court-martial over appellant was established at his initial trial, and the intervening administrative discharge does not divest the appellate courts of the power to correct error, order further proceedings, and maintain appellate jurisdiction over the person during the pendency of those proceedings. 

b) Post-conviction but Pre-Initial Action.  United States v. Estrada, 69 M.J.45 (C.A.A.F. 2010).  Accused sentenced to a BCD. Prior to initial action, accused erroneously issued an administrative honorable discharge. Issue: Whether the administrative (honorable) discharge resulted in remission of the bad-conduct discharge.  Held. The honorable discharge was automatically voided in accordance with AR 27-10, para. 5-16. 

c) Post-conviction and Post-Initial Action. United States v. Watson, 69 M.J. 415(C.A.A.F. 2011).  The HRC Commander issued CPT Watson an administrative honorable discharge after a BCD was adjudged at her trial and after the Convening Authority took initial action. Despite an affidavit from the HRC Commander stating that she “did not intend the discharge to act…as a remission of the conviction” the CAAF held, 3-2, that the administrative discharge remitted the BCD. See also United States v. McPherson, 68 M.J. 526 (Army Ct.Crim.App. 2009). Accused sentenced to a BCD.  Accused received two administrative honorable discharges from HRC – one before initial action, and one after initial action. Held: The honorable discharge given prior to initial action was void pursuant to AR 27-10, but the honorable discharge given after initial action served to remit the punitive discharge.

7. Execution of Punitive Discharge. 

a) United States v. Keels, 48 M.J. 431 (C.A.A.F. 1998).  Promulgation of a supplemental court-martial convening order that ordered executed a punitive discharge does not terminate court-martial jurisdiction.  Even when there is a punitive discharge, jurisdiction does not terminate until delivery of the discharge certificate and final accounting of pay.  There is not instantaneous termination of status upon completion of appellate review.

b) United States v. Byrd, 53 M.J. 35 (C.A.A.F. 2000). In October 1996, the Navy-Marine Corps Court affirmed the accused’s conviction and sentence, which included a punitive discharge.  The accused did not petition CAAF for review until 22 January 1997.  On 2 January 1997 the convening authority executed his sentence under Article 71.  The service court held that since the accused did not petition CAAF for review within 60 days (a CAAF rule), the intervening discharge terminated jurisdiction.  CAAF vacated the lower court's decision on the grounds that the Govt. failed to establish the petition for review as being untimely and, therefore, the sentence had been improperly executed.  CAAF also held that jurisdiction existed notwithstanding execution of a punitive discharge under Article 71, and it was only a question of whether to consider the case under direct review or collateral review. See also United States v. Engle, 28 M.J. 299 (C.M.A. 1989).

8. In Personam Jurisdiction in a Foreign Country.  United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998).  The accused was convicted of premeditated murder and sentenced to death for murders he committed while stationed in Germany.  The accused challenged the jurisdiction of the court-martial.  He argued that the military investigators misled the German Government to believe that the United States had primary jurisdiction of the case under the NATO SOFA.  Based on this information, the German Government waived its jurisdiction.  Had the German Government asserted jurisdiction, the accused could not have been sentenced to death because the Constitution of Germany prohibits the death penalty. CAAF held that the accused lacked standing to object to which sovereign prosecuted the case.  The important jurisdictional question to answer is: Was the accused in a military status at the time of the offense and at the time of trial?  The court found that the accused was.  The case was set aside and remanded on other grounds.

9. Exceptions to General Rule that Discharge Terminates Jurisdiction.

a) Exception:  UCMJ, Art. 3(a).

(1) a person is subject to the UCMJ at the time of the offense;

(2) the person is discharged without trial; and

(3) the person subsequently re-enters the service and is thus subject to the UCMJ at the time of trial.

b) Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998).  The CAAF holds that under the 1986 version of Article 3(a), UCMJ, court-martial jurisdiction exists to prosecute a member of the reserve component for misconduct committed while a member of the active component so long as there has not been a complete termination of service between the active and reserve components. In dicta, however, the CAAF advises that the current version of Article 3(a), UCMJ, “clearly provides for jurisdiction over prior-service offenses without regard to a break in service.”  See also Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009) (affirming District Court denial of Willenbring’s habeas corpus petition and reasoning that his service was not terminated because his early release and discharge from the regular component was conditioned upon a contractual obligation to immediately begin service in the reserve component); but see Murphy v. Dalton, 81 F.3d 343 (3d Cir. 1996) (holding that it is improper to involuntarily recall a member of the reserve component to active duty for an Article 32(b) investigation when the alleged misconduct occurred while the service member was a member of the active component). [Note:  Murphy v. Dalton notwithstanding, the CAAF decision in Willenbring is controlling legal authority]

c) Break-In-Service.  United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App.  2006).  Appellant was convicted of violating a lawful order, rape and sodomy of a female under the age of 12, and indecent acts and liberties with a female under the age of 16.  The crimes were committed while he was on active duty in the Army, he was discharged, and subsequently enlisted in the Air Force.  He was sentenced to a DD and confinement for life with the possibility of parole.  Where appellant was on active duty in the Army when he committed misconduct, was discharged and subsequently enlisted in the Air Force, and was on active duty at the time of trial, as here, the court-martial had jurisdiction over the appellant by virtue of Article 3(a), UCMJ.

d) Exception:  UCMJ, Art. 3(b), person obtaining a fraudulent discharge.

(1) Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981).  May the government prosecute a soldier whose delivered discharge (Chapter 8 - pregnancy) was revoked for being obtained by fraud?  C.M.A. allowed the court-martial proceedings to continue.  The 5th Circuit affirmed the district court’s denial of Wickham’s request for habeas corpus relief.  The court-martial may proceed.  Wickham v. Hall, 706 F.2d 713 (5th Cir. 1983).

(2) United States v. Reid, 46 M.J. 236 (C.A.A.F. 1997).  The government must secure a conviction for fraudulent discharge prior to prosecuting the accused for other offenses.  Article 3(b) clearly requires a two-step trial process.  QUERY:  What about offenses committed after the fraudulent discharge?  Article 3(b) does not confer jurisdiction over offenses committed after the fraudulent discharge.  The service court, in dicta, reasoned that after conviction for the fraudulent discharge, jurisdiction would exist over offenses committed after the discharge under UCMJ, Art. 2.

(3) United States v. Pou, 43 M.J. 778 (A.F. Ct. Crim. App. 1995).  Accused faked his own death.  Air Force initially designated him as “missing” before declaring him “dead.” Held: Declaring a missing person “dead” is not the equivalent of a discharge of that person, therefore, Art. 3(b) is inapplicable, and court-martial jurisdiction exists.

e) Exception:  UCMJ, Art. 3(c) - Deserter obtaining discharge for subsequent period of serviceUnited States v. Huff, 7 C.M.A. 247, 22 C.M.R. 37 (C.M.A. 1956).

f) Exception:  UCMJ, Art. 2(a)(7) - Persons in custody of the armed forces serving a sentence imposed by court-martial.   United States v. Harry, 25 M.J. 513 (A.F.C.M.R. 1987) (punishment cannot include another punitive discharge); United States v. King, 30 M.J. 334 (C.M.A.  1990) (prosecuted after BCD executed but still in confinement).

g) Exception:  UCMJ, Art. 3(d).  Separation from Active Components to Reserve Status.  Leaving a Title 10 status does not terminate court-martial jurisdiction. 

h) Exception: Intent of the Discharge Authority – When the command places a hold on the accused prior to 2359 on the date of discharge, even though the discharge certificate had been delivered earlier that day, the discharge does not terminate jurisdiction.  In United States v. Harmon, 63 M.J. 98 (C.A.A.F. 2006), the appellant was scheduled to be administratively separated from active duty on 17 May 2001.  Early in the morning of 17 May, he participated in the robbery of another Servicemember.  By 0815, NIS had identified him as a suspect.  At 0900, appellant received his DD 214 (which listed his effective discharge date and time as 2359 on 17 May) and got on a bus to go home.  At 1020, appellant’s command learned of his involvement in the robbery and revoked his administrative discharge.  The CAAF held that because the command placed a hold on appellant prior to the time his discharge became effective, jurisdiction was never lost.

IV. Jurisdiction over the Reserve Component

A. BOTTOM LINE:  Army policy states that Reserve Component soldiers are subject to the UCMJ whenever they are in a Title 10 status:  Inactive Duty Training (IDT), Active Duty for Training (ADT), Annual Training (AT), Active Guard Reserve (AGR), or Active Duty (AD).  See AR 27-10, para. 20-2 (11 May 2016). After 1 January 2019, UCMJ jurisdiction exists over reservists during travel to and from the IDT training site of the member, during intervals between consecutive periods of IDTs on the same day, and during intervals between IDTs on consecutive days, pursuant to orders or regulations.  Article 2(a), UCMJ (2019).

1. United States v. Wall, 1992 WL 198418 (A.F.C.M.R. 1992) (unpub.) (jurisdiction existed over the accused who absented himself during second half of training day).

2. United States v. Morse, No. ACM 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim. App. Oct. 4, 2000) pet. for rev. den., 2001 CAAF LEXIS 1021 (Aug. 24, 2001) (accused’s duty was not complete until travel forms were signed even if he did not sign the fraudulent travel forms until after he completed his travel).

3. See also, AR 27-10, Chp. 20 (11 May 2016); Air Force Instruction 51-201; and Paragraph II.E., this outline.

4. United States v. Wolpert, 75 M.J. 777 (CAAF 2016) (no personal jurisdiction over member of reserve component who committed a sexual assault between IDT periods) Military Justice Act of 2016 changed Article 2(a), therefore the Wolpert ruling only applies to crimes committed prior to 1 January 2019.

5. United States v. Hale, 78 M. J. 268 (C.A.A.F. 2019) (finding personal jurisdiction over a reserve officer where the accused committed an attempted larceny by submitting a fraudulent voucher for reimbursement of lodging with family during a period in which he was completing a series of inactive duty training (IDT) work blocks and staying at the home of his in-laws).  The Court explained that determining whether someone is serving with the military requires a “case-specific analysis of the facts” and the focus is on whether the person is subject to the UCMJ at the time of the offense.  The Court concluded that the members were entitled to consider evidence of conduct that occurred while the accused was not subject to court-martial jurisdiction, circumstantial evidence, and the accused’s actions when he was subject to jurisdiction, when determining whether the evidence was sufficient to establish the requisite substantial step towards commission of the offense of attempted larceny.  The Court also noted that the jurisdiction questions in this case would have limited application given Congress’s recent changes to Article 2, UCMJ.

B. UCMJ, Art. 3(d).  Prevents the termination of court-martial jurisdiction over a member of a Reserve Component who violates the UCMJ while in a Title 10 status by the member’s release from active duty or inactive-duty training.   Closes jurisdiction gaps recognized by Duncan v. Usher, 23 M.J. 29 (C.M.A. 1986).

C. Procedures and Restrictions: AR 27-10, Chapter 20 (11 May 2016) establishes procedures for taking punitive action (Art. 15, court-martial) against RC Soldiers.

D. Procedure: Involuntary Recall to Active Duty.  UCMJ, Art. 2(d), authorizes a member of a Reserve Component, who is the subject of proceedings under Articles 15 or 30, UCMJ to be ordered involuntarily to active duty for: Article 32 investigations, trial by court-martial, and nonjudicial punishment.

1. Restrictions on the involuntary recall process.

a) A member may only be ordered to active duty by an active component general court-martial convening authority (GCMCA).  UCMJ, Art. 2(d)(4); AR 27-10, para. 21-3 (11 May 2016).

b) Unless the order to involuntary active duty was approved by the appropriate Service Secretary, the member may not be:

(1) sentenced to confinement;

(2) forced to serve any punishment involving restriction on liberty except during a period of inactive duty training or active duty; or

(3) placed in pretrial confinement.  UCMJ, Art. 2(d)(5).

c) General and Special Courts-Martial.  Prior to arraignment the reservist must be on active duty.  R.C.M. 204(b)(1). 

d) Summary Courts-Martial.  Can be initiated and tried within the reserve structure and without active duty involvement.  R.C.M. 204(b)(2).  But the summary court-martial officer must be placed on active duty.  UCMJ, Art. 25; R.C.M. 1301.

E. Impact on the National Guard.

1. 32 U.S.C. § 505 - Training in a state status - No federal military jurisdiction.

2. 10 U.S.C. § 672 - Training in a federal status - Guard member is subject to jurisdiction and the reserve jurisdiction legislation’s major provisions.  This includes involuntary recall.  But see United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (holding that a Guard member in Title 10 status was not subject to an inspection under M.R.E. 313 ordered by a commander in Title 32 status and suppressing the positive urinalysis resulting from that inspection).

3. Federal status continues until the guard member has completed his federal service (excluding AWOL time) and federal jurisdiction exists notwithstanding state action to terminating jurisdiction.  United States v. Wilson, 53 M.J. 327 (2000).

V. Procedural Considerations

A. Pleading Jurisdiction.  See, R.C.M. 307(c)(3) Discussion at (C)(iv) and (F).

B. Lack of Jurisdiction:  Raised by Motion to Dismiss, R.C.M. 907.  May be made at any stage of the proceeding.

C. Burden of Proof. Although R.C.M. 905 states that the burden of proof in a motion contesting jurisdiction is a preponderance of the evidence, if contested at trial, the government must prove jurisdiction beyond a reasonable doubt.   

1. United States v. Bailey, 6 M.J. 965 (N.M.C.M.R. 1979); R.C.M. 905(c)(1)(preponderance); R.C.M. 905(c)(2)(B) (burden of persuasion on government); see also United States v. Hoxie, 14 M.J. 713 (N.M.C.M.R. 1982) (burden is preponderance at motions hearing before the military judge, but if raised as a defense during trial the burden is beyond a reasonable doubt).

2. United States v. Marsh, 15 M.J. 252 (C.M.A. 1983) (for “peculiarly military” offenses like AWOL, an accused’s military status is an element of the offense which must be proved beyond a reasonable doubt to the fact finders); see also United States v. Roe, 15 M.J. 819 (N.M.C.M.R. 1983).

3. United States v. Chodara, 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer ordered to AD for training; provided urine sample that tested positive for cocaine pursuant to a urinalysis administered within 36 hours of initiation of AD period. Held: no subject matter jurisdiction because the government failed to prove beyond a reasonable doubt that the accused was subject to the UCMJ at the time he “used” the cocaine).

VI. Jurisdiction over Civilians

A. MEJA.  Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261, Pub. L. No. 106-523.      

1. The MEJA was approved by Congress and signed into law by the President on 22 November 2000.  This legislation does not expand military jurisdiction; it extends federal criminal jurisdiction over certain civilians (DOD employees, contractors, and dependents thereof, and military dependents) accompanying the military overseas.  The implementing regulations went into effect on 3 March 2005.  The Act was amended in 2005 to cover civilian employees, contractors, and contractor employees of any Federal agency “to the extent such employment relates to supporting the mission of the Department of Defense overseas.”  See 2005 NDAA, Sec. 1088. 

2. The Act applies to felony level offenses that would apply under federal law if the offense had been committed within the "special maritime and territorial jurisdiction of the United States."

3. The Act provides for an initial appearance proceeding, which may be carried out telephonically, conducted by a Federal magistrate judge.  At this proceeding, the magistrate will determine if there is probable cause to believe a crime was committed and if the person committed it.  If pretrial detention is an issue, the magistrate will also conduct a detention hearing as required by federal law.  This detention hearing may also be conducted telephonically if the person so requests.

4.The Act directly involves the military in two ways.

a) The Act, depending on implementing rules, may authorize DOD law enforcement personnel to arrest those civilians covered by the Act.

b) The Act entitles those civilians covered by the Act, to representation by military counsel (i.e. judge advocates) at the initial hearing, if determined by the Federal magistrate.

5. MEJA Resources

a) DODI 5525.11 (3 Mar 2005) 

b) DA Message (13 May 2005)

c) OTJAG Info Paper (24 May 2005)

d) AR 27-10, Ch. 26 (11 May 2016)

e) Secretary of Defense Memorandum, “UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations.” (10 March 2008)

f) DoD General Counsel DTM 09-015 (16 February 2010)

6. United States v. Brehm, 691 F.3d 547 (4th Cir. 2012)

a) On Thanksgiving Day 2010, Sean Brehm (a South African), who was a contractor working for a U.S. company on Kandahar Airfield, Afghanistan (KAF), stabbed another contractor in the arm and stomach causing serious injuries.  As part of his “Foreign Service Agreement” Brehm acknowledged and accepted that he may be subject to U.S. federal civilian criminal jurisdiction under MEJA (Military Extraterritorial Jurisdiction Act – passed in 2000 MEJA allows for the prosecution of civilians accompanying American troops overseas), by virtue of the fact that he was accompanying the U.S. Armed Forces outside the United States. 

b) Brehm pleaded guilty in Federal District Court in the Eastern District of Virginia to assault resulting in serious bodily injury. In exchange he was allowed to challenge, through appeal, the jurisdictional basis of the indictment. On appeal Brehm argued: 1) The indictment’s reliance on MEJA was misplaced, in that the statute cannot be applied to him in a manner consistent with the Constitution, and 2) there lacked a sufficient nexus between himself and the United States to support the exercise of criminal jurisdiction. The court rejected Brehm’s arguments and affirmed the district court conviction.

7. United States v. Santiago, 987 F. Supp. 2d 465 (S.D.N.Y. 2013)

a) Defendant was a Marine corporal who had a reputation for playing quick-draw with his weapon and who shot a Navy Corpsman serving with him while on active duty in Iraq in 2008.  Agents from NCIS identified him as the shooter by obtaining statements from an Iraqi interpreter who witnessed the shooting and eventually obtaining a confession.  The Marine Corps never initiated court-martial proceedings against him, and he was allowed to leave the service.  In 2013, the United States Attorney’s Office in New York initiated a prosecution against him under MEJA.  By that time, the interpreter had disappeared.  The interpreter had denied that the defendant had been playing with his weapon prior to the shooting and made other statements favorable to the defendant.

b) The District Judge hearing the case dismissed a count of reckless assault for the shooting based on a due process violation, and allowed to false statement counts to proceed.  The prejudice was the loss of the interpreter’s testimony, which was favorable to the defendant.  The Judge faulted the Marine Corps for recklessly delaying the case,  In a previous order, United States v. Santiago,  966 F. Supp. 2d 247 (S.D.N.Y. 2013), she discussed how her research revealed very few MEJA cases against former military members, and this one appeared to be the only one where the military was aware of the misconduct and could have court-martialed the defendant.  The Judge did not find that the Marine Corps intentionally delayed the case to avoid potential problems Article 31 might cause for the prosecution, and admitted the statements that would have likely been inadmissible under Article 31 because they were not inadmissible under Miranda.  The Judge expressed deep concern, however, that the case was allowed to languish with such obviously time-sensitive issues given the draw-down in Iraq, the significance of the interpreter’s testimony, and the defendant’s looming EAS date.

8. United States v. Bello Murillo, 826 F.3d 152 (4th Cir. 2016)

a) The court employed the Brehm test to uphold the extraterritorial prosecution of a Colombian taxi driver who killed a DEA agent as part of a conspiracy among taxi drivers to rob affluent passengers.  The due process inquiry for extraterritorial prosecutions from Brehm is similar to that in other circuits:  whether there is a sufficient nexus between the defendant and the United States so that applying a particular statute to an accused would not be arbitrary or unfair.  It is not arbitrary to prosecute a defendant in the United States if his actions affected significant American interests regardless of the defendant’s intent.  The court relied on Brehm for the proposition that a prosecution was not fundamentally unfair even if the accused did not know that his victim was an American; the accused must only be on notice that his conduct was criminal and would subject him to prosecution somewhere.

b) An accused has less of a due process concern where his conduct – like the kidnapping and murder in Bello Murillo – is self-evidently criminal, according to Brehm.  The relevant treaty afforded Bello Murillo sufficient notice to satisfy due process, for where a treaty provides “global notice” that certain generally-condemned acts could be prosecuted by any party to the treaty it satisfies due process.

B. Patriot Act.  Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107–56. 

One reason there was a jurisdictional gap prior to MEJA was that the definition of “special maritime and territorial jurisdiction of the United States,” (SMTJ) was interpreted as excluding U.S. military installations overseas.  See United States v. Gatlin, 216 F. 3d 207 (2d Cir. 2000).  In 2001, the Patriot Act amended the definition to include military installations overseas, however the definition excludes anyone already covered by the MEJA.  See 18 U.S.C. § 7. 

C. Court-martial Jurisdiction under Amended Article 2(a)(10), UCMJ. 

1. The 2007 National Defense Authorization Act amended Article 2(a)(10) as follows: 

a) OLD:  In time of war, persons serving with or accompanying an armed force in the field.

b) NEW:  In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

2. “Contingency Operation,” 10 U.S.C. Sec. 101(a)(13):  The term “contingency operation” means a military operation that-

a) is designated by the SECDEF as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force;  or

b) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

c) Current operations in Afghanistan and Iraq clearly meet the definition of “contingency operation” above.

3. The only significant guidance to date on implementation of the amended Article 2(a)(10), UCMJ, is contained in a SECDEF Memorandum dated 10 March 2008.   This memo reserves the authority to prefer charges or initiate NJP against a civilian to the GCMCA level, however each case must be sent up to SECDEF and over to DOJ first, for a decision on whether to prosecute under the MEJA rather than under the UCMJ.  See Memorandum from the Secretary of Defense to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense and Commanders of the Combatant Commands, subject:  UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations (10 Mar. 2008). 

4. United States v. Ali, 70 M.J. 514 (Army Ct. Crim. App. 2011)

a) There has been one civilian tried by court-martial using Article 2(a)(10) jurisdiction.  The accused, a Canadian/Iraqi citizen, pled guilty to three specifications involving possessing, hiding, and lying about a knife (the original charge was aggravated assault for stabbing another interpreter in the chest), and was sentenced to five months confinement (time already served in PTC).  The Judge Advocate General of the Army directed the Army Court of Criminal Appeals to review the case of United States v. Ali pursuant Article 69(d), UCMJ. TJAG requested that the court give attention to two issues: a) whether the court-martial had jurisdiction over the accused pursuant to Article 2(a)(10), UCMJ; and b) whether the court-martial had subject matter jurisdiction over the offenses.  First, the Court held that appellant and his conduct fit within the statutory jurisdictional framework of the UCMJ.  The Court found the offense and trial occurred during a “contingency operation,” finding that the offense and court-martial occurred during Operation Iraqi Freedom, a military operation that meets the definition of “contingency operation.  The Court also found that appellant served “with or accompanied and armed force, finding that appellant had moved with a military operation and his presence was not merely incidental but directly connected with or dependent upon the activities of the armed force or its personnel.  Article 2(a)(10), UCMJ is specifically drafted to limit military jurisdiction over civilians by requiring either a formal declaration of war by Congress or to the existence of “contingency operations” as defined by section 101(a)(13), Title 10.  Moreover, jurisdiction over civilians is limited to only those civilians who are “serving with or accompanying an armed force” and that the civilian be “in the field.”  (Practitioner’s note: It would seem that the commander would lose jurisdiction of this case by transferring it to the rear or the cessation of hostilities.  Potentially, even transferring the case to a peaceful portion of Iraq would be fatal to the case.)

b) In July of 2012 CAAF ruled that the court-martial had jurisdiction over Ali under the provisions of Article 2(a)(10), and that the application of 2(a)(10) to Ali did not violate the Constitution “under the circumstances of this case.”  United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012).  Significant to the CAAF’s resolution of the constitutional issues were the facts that Ali was not an American citizen, his crime occurred overseas, and his prosecution occurred overseas. 

 

* The service court set aside the findings and sentence, dismissed the charges, and abated the proceedings in this case on 29 Aug 2002 due to the accused’s death on 2 July 2002 (ten days before the opinion was decided).  See United States v. Huey, 2002 CCA LEXIS 186 (Aug. 29, 2002).

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