Court Martial Jurisdiction
UCMJ gives courts-martial jurisdiction over all servicemembers
The UCMJ gives courts-martial jurisdiction over all servicemembers (U.S. Army, U.S. Marine Corps, U.S. Navy, U.S. Air Force, and the U.S. Coast Guard). The UCMJ also provides for jurisdiction over several other categories of individuals, including retired members of a regular component of the Armed Forces entitled to pay; retired members of a reserve component who are hospitalized in a military hospital; persons in custody of the military serving a sentence imposed by a court-martial; members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations, when assigned to serve with the military; enemy prisoners of war in custody of the military; and persons with or accompanying the military in the field during “times of war,” limited to declared wars. Article 2, UCMJ; 10 U.S.C. § 802.
Under the MCM, jurisdiction of a court-martial means “the power to hear a case and to render a legally competent decision.” See discussion to R.C.M. 201(a)(1). Under R.C.M. 201(b), a court-martial has jurisdiction if the following is true:
- The court-martial must be convened by an official empowered to convene it;
- The court-martial must be composed in accordance with the Rules for Courts- Martial with respect to number and qualifications of its personnel (military judge and members must have proper qualifications);
- Each charge before the court-martial must be referred to it by competent authority;
- The accused must be a person subject to court-martial jurisdiction (personal jurisdiction); and
- The offense must be subject to court-martial jurisdiction (subject matter jurisdiction).
- The nuances of court-martial jurisdiction are beyond the scope of this outline, however, it is enough that you understand generally that jurisdiction of a court-martial does not depend on where the offense was committed; it depends solely on the status of the accused. See Solorio v. United States, 483 U.S. 435, 447 (1987).
COURT–MARTIAL JURISDICTION – INTRODUCTION
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.
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.
Sources of Jurisdiction.
- The Constitution: Article I, section 8, clause 14
- UCMJ, articles 2, 3 and 36
- MCM, 2005 ed., RCM 201 – 204
- Customary international law and treaties
Five Elements of Court-Martial Jurisdiction, R.C.M. 201(b):
- Proper jurisdiction over the offense (subject matter jurisdiction).
- Proper jurisdiction over the person (personal jurisdiction).
- 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 (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 (2000). See also United States v. Morgan, 57 M.J. 119 (2002).
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).
Properly referred charges. United States v. Pate, 54 M.J. 501 (Army Ct. Crim. App. 1997). The 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 (2001). But see United States v. Henderson, 59 M.J. 350 (2004).
JURISDICTION OVER THE OFFENSE.
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”).
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. Subject matter jurisdiction is established by showing military status at the time of the offense.
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; JAGMAN, para. 0124.
Subject Matter Jurisdiction Over Reservists/National Guard. 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).
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).
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. Offenses committed as part of the accused’s “official duties” may be subject to court-martial jurisdiction even where the accused is not on active duty. See United States v. Morse, No. ACM 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim. App. Oct. 4, 2000) petition for grant of review denied, 2001 CAAF LEXIS 1021 (Aug. 24, 2001) (finding subject matter jurisdiction existed even if the reserve officer signed his false travel vouchers after he completed his travel following active duty or inactive duty training).
JURISDICTION OVER THE PERSON.
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;
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 based upon a violation of constitutional due process under the Fifth Amendment. 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). 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) HQDA approval is required before prosecuting retirees (AR 27-10, para. 5-2). Failure to follow “policy” and obtain HQDA approval to try a retiree, however, is not 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, 2001 CAAF LEXIS 597 (May 22, 2001).
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. [Note: Retired Reservists who are receiving hospitalization from an armed force are subject to court-martial jurisdiction without being recalled to active duty].
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).
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.
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).
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)
6. Reservists. “Reserve 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).
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) of this section, 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 (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) RCM 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) RCM 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).
3. When is discharge effective?
a) On delivery. United States v. Melanson, 53 M.J. 1 (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 (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 (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).
b) 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 (1994). See also United States v. Guest, 46 M.J. 778 (Army Ct. Crim. App. 1997).
c) Final accounting of pay. Final accounting of pay is 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 is 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.C.C.A. 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).
d) 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.