Introduction to the Military Extraterritorial Jurisdiction Act (MEJA)
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 to a specific class of people— armed forces members. In general, three prerequisites must be met for courts-martial jurisdiction to vest.
- jurisdiction over the offense,
- personal jurisdiction over the accused, and
- 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. For example, subject matter jurisdiction is satisfied if the offense is chargeable under the Uniform Code of Military Justice (UCMJ) and the accused is a servicemember when the offense is committed. 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., the accused is a service member at the time of trial.
Sources of Jurisdiction under the Uniform Code of Military Justice (UCMJ)
- 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, RCM 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, the accused’s request to be tried by a military judge alone can be inferred from the trial record (applying “substantial compliance” doctrine to Article 16. United States v. Turner, 47 MJ 348 (1997). Article 25 (request for enlisted members to serve on panel) is also satisfied by substantial compliance.
- 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.
- Properly referred charges.
JURISDICTION OVER THE OFFENSE.
Subject matter jurisdiction is established by showing military status at the time of the offense.
Administrative Double Jeopardy Policies.
Generally, an Armed Forces member will not be tried by court-martial or punished under Article 15, UCMJ, for the same Act 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.
Jurisdiction in Capital Cases.
Loving v. United States, 116 S.Ct. 1737 (1996). Justice Stevens (concurring) raised whether a “service connection” requirement applies to capital cases. See also United States v. Simoy, 46 MJ 601 (AF Ct. Crim. App. 1996) (a capital murder case in which the court made a specific finding that the felony murder was “service-connected”).
United States v. Gray, 51 MJ 1 (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 a trial by court-martial, but does not answer the question of whether a “service connection” requirement applies to capital cases.
Subject Matter Jurisdiction Over Reservists/National Guard.
- The offense must be committed while the reservist has military status.
- Jurisdiction attaches at 0001 hours of the effective date of the orders to active duty.
- Jurisdiction may exist outside the parameters of the orders.
- Offenses committed as part of the accused’s “official duties” may be subject to court-martial jurisdiction, even if the accused is not active.
- 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.
- 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 MJ 170 (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.
JURISDICTION OVER THE PERSON.
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.
General Provisions: UCMJ, Art. 2, provides jurisdiction over categories of persons with military status:
- Academy Cadets/Midshipmen;
- Persons in custody;
Jurisdiction over retirees is constitutional. Pearson v. Bloss, 28 MJ 376 (CMA 1989); United States v. Hooper, 26 CMR 417 (CMA 1958); Sands v. Colby, 35 MJ 620 (ACMR 1992).
United States v. Huey, 57 MJ 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 sexual intercourse several times a week over nine months with his 16-year old adopted daughter. When 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 Toth v. Quarles, 350 US 11 (1955) and argued that he had “obtained civilian status” and was 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.”
United States v. Stevenson, 65 MJ 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 the accused was “entitled to pay,” even if he was not receiving pay.
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 to have jurisdiction over them. United States v. Morris, 54 MJ 898 (N-M. Ct. Crim. App. 2001) petition for review denied, 2001 CAAF LEXIS 597 (22 May 2001).
Involuntary Recall Retired Reservist.
Morgan v. Mahoney, 50 MJ 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 USC 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].
Persons in custody
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 MJ 1041 (NMCMR 1993).
Fisher v. Commander, Army Regional Confinement Facility, 56 MJ 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 active duty status but did not terminate his status as a military prisoner.
In a 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)
“Reserve Component” includes USAR and Army National Guard of the United States (ARGUS) soldiers in Title 10, US Code, duty status. (See sections II.E. and IV. of this outline).
Inception of Court-Martial Jurisdiction.
A Contract Which Changes “Status.” UCMJ, Art. 2(b). Art. 2(b) The voluntary enlistment of any person who can 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 a member of the armed forces shall be effective upon the taking of the oath of 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).
The codification of In Re Grimley, 137 US 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—
- Submitted voluntarily to military authority;
- 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;
- Received military pay or allowances; and (4) Performed military duties;
- Is subject to this chapter until such person’s active service has been terminated by law or regulations promulgated by the Secretary concerned.”
Termination of Jurisdiction Over the Person.
General Rule: Discharge Terminates Jurisdiction.
ETS/EAS by itself does not terminate jurisdiction.
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.”
RCM 202(c)(1): “Court-martial jurisdiction attaches over a person when action with a view to a 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 MJ 132 (CMA 1982); United States v. Benford, 27 MJ 518 (NMCMR 1988).
United States v. Ray, 24 MJ 657 (AFCMR 1987) (jurisdiction upheld where accused, on appellate leave, was not provided discharge due to governmental delay in executing punitive discharge).
When is discharge effective?
United States v. Melanson, 53 MJ 1 (2000). Jurisdiction existed because, under 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 MJ 316 (2000). A valid legal hold had been placed on the accused before the expiration of the date that constituted the effective date of the discharge. United States v. Scott, 11 CMA 646, 29 CMR 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).
Valid Discharge Certificate:
Discharge Authority’s Intent. Early delivery of a discharge certificate for administrative convenience (e.g., the command does not want to keep personnel office open until 2400) does not terminate jurisdiction when a certificate is clear on its face that the commander did not intend the discharge to take effect until later. United States v. Batchelder, 41 MJ 337 (1994). See United States v. Guest, 46 MJ 778 (Army Ct. Crim. App. 1997).
Final accounting of pay.
A final accounting of pay is later than the final appointment at the local finance office. Jurisdiction may still exist several days after a service member has undergone a clearing process and received their DD214. The local finance office is only the first of many steps required to accomplish a final accounting of pay.
Undergo a clearing process.
United States v. King, 27 MJ 327 (CMA 1989) (sailor refused to complete re-enlistment ceremony after receiving a discharge certificate). Three elements per King to effectuate an early discharge:
- Delivery of a valid discharge certificate;
- A final accounting of pay; and
- Undergoing a “clearing” process as required under appropriate service regulations to separate the member from military service.
A valid discharge of a soldier before trial operates as a formal waiver and abandonment of court-martial in personam jurisdiction, whether or not such jurisdiction had attached before discharge. Smith v. Vanderbush, 47 M.J. 56 (1997).
a) Effect on Appellate Review and Power of Convening Authority
Execution of Punitive Discharge.
United States v. Keels, 48 MJ 431 (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 pay accounting. There is not instantaneous termination of status upon completion of appellate review.
In Personam Jurisdiction in a Foreign Country.
United States v. Murphy, 50 MJ 4 (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 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. The 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 trial? The court found that the accused was. The case was set aside and remanded on other grounds.
Exceptions to General Rule that Discharge Terminates Jurisdiction.
Exception: UCMJ, art. 3(a).
- a person is subject to the UCMJ at the time of the offense;
- the person is discharged without trial; and
- the person subsequently re-enters the service and is thus subject to the UCMJ at the time of trial.
United States v. Erickson, 63 MJ 504 (AF Ct. Crim. App. 2006). Appellant was convicted of violating a lawful order, rape and sodomy of a female under 12, and indecent acts and liberties with a female under 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. Here, the court-martial had jurisdiction over the appellant under Article 3(a), UCMJ.
Exception: UCMJ, Art. 3(b), a person is obtaining a fraudulent discharge.
Exception: UCMJ, Art. 3(c) – Deserter obtaining a discharge for a subsequent period of service. United States v. Huff, 7 CMA 247, 22 CMR 37 (1956).
Exception: UCMJ, Art. 2(a)(7) – Persons in custody of the armed forces serving a sentence imposed by a court-martial. United States v. Harry, 25 MJ 513 (AFCMR 1987) (punishment cannot include another punitive discharge); United States v. King, 30 MJ 334 (CMA 1990) (prosecuted after BCD executed but still in confinement).
Exception: UCMJ, Art. 3(d) – Separation from Active Components to Reserve Status. Leaving a Title 10 status does not terminate court-martial jurisdiction.
Exception: Intent of the Discharge Authority – When the command places a hold on the accused before 2359 on the date of discharge, even though the discharge certificate had been delivered earlier that day, the discharge does not terminate jurisdiction.
Jurisdiction Over the Reserve Component.
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 Training (ADT), Annual Training (AT), or Active Duty (AD). See AR 27-10, para. 21-2.
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 MJ 29 (CMA 1986).
Procedures and Restrictions:
AR 27-10, Chapter 21 establishes procedures for taking punitive action (Art. 15, court-martial) against RC Soldiers.
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.
Restrictions on the involuntary recall process.
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.
Unless the appropriate Service Secretary approved the order to involuntary active duty, the member may not be:
- sentenced to confinement;
- forced to serve any punishment involving restriction on liberty except during a period of inactive duty training or active duty; or
- placed in pretrial confinement. UCMJ, Art. 2(d)(5).
General and Special Courts-Martial.
Before arraignment, the reservist must be on active duty. R.C.M. 204(b)(1).
Can be initiated and tried within the reserve structure and without active duty involvement. RCM 204(b)(2). But the summary court-martial officer must be placed on active duty. UCMJ, Art. 25; RCM 1301.
Impact on the National Guard.
- 32 USC § 505 – Training in a state status – No federal military jurisdiction.
- 10 USC § 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 In United States v. Dimuccio, 61 MJ 588 (AF Ct. Crim. App. 2005) (holding that a Guard member in Title 10 status was not subject to an inspection under MRE 313 ordered by a commander in Title 32 status and suppressing the positive urinalysis resulting from that inspection).
- The 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 MJ 327 (2000).
- Pleading Jurisdiction. See RCM 307(c)(3) Discussion at (C)(iv) and (F).
- Lack of Jurisdiction: Raised by Motion to Dismiss, RCM 907. It may be made at any stage of the proceeding.
- The burden of Proof. Although RCM 905 states that the Burden of Proof in a motion contesting jurisdiction is a preponderance of the evidence, the government must prove jurisdiction beyond a reasonable doubt if contested at trial.
- 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).
Jurisdiction over Civilians
MEJA. Military Extraterritorial Jurisdiction Act of 2000, 18 USC § 3261, Pub. L. No. 106-523.
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, dependents, 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.
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.”
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.
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 before MEJA was that the definition of “special maritime and territorial jurisdiction of the United States,” (SMTJ) was interpreted as excluding US 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 USC § 7.
Court-martial Jurisdiction under Amended Article 2(a)(10), UCMJ.
The 2007 National Defense Authorization Act amended Article 2(a)(10) as follows:
- In a time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.
- “Contingency Operation,” 10 USC Sec. 101(a)(13): The term “contingency operation” means a military operation that-
- 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 an opposing military force; or
- 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 a national emergency declared by the President or Congress.
Current operations in Afghanistan and Iraq meet the definition of “contingency operation” above.
One civilian tried by court-martial using Article 2(a)(10) jurisdiction.
In United States v. Ali, 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. His case did not receive an automatic review by the Army Court of Appeals because it was subjurisdictional.