United
States v. Davis, 63 MJ 171 (an essential component of court-martial
jurisdiction is in personam jurisdiction or jurisdiction over the
person of an
accused; Article 2(a)(1) and (7), UCMJ, authorize court-martial
jurisdiction
over members of the armed forces and persons serving sentences imposed
by
courts-martial).
(as
a general
matter, an individual discharged and returned to civilian life is not
subject
to the jurisdiction of a court-martial convened under the UCMJ).
(appellant,
who
had been administratively discharged while confined under a
court-martial
sentence and whose sentence was set aside, remained subject to the
jurisdiction
of a court-martial; the power of the court-martial over appellant was
established at his initial trial and the intervening administrative
discharge
did 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).
(when
an
appellate court approves the findings of a court-martial, disapproves
the
sentence, and orders a sentence rehearing, a post-trial administrative
discharge does not preclude completion of the sentencing proceedings
ordered by
an appellate court; there is “continuing jurisdiction” over a case that
has
been tried and in which the accused was convicted while in a status
that
subjected him to the UCMJ).
(once
jurisdiction attaches, it continues until the appellate processes are
complete;
a rehearing relates back to the initial trial and to the appellate
court’s
responsibility to ensure that the results of a trial are just; 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).
United
States v. Harmon, 63 MJ 98 (members of a regular component of the
armed
forces, including those awaiting discharge after expiration of their
terms of
enlistment are subject to the UCMJ; generally, a person becomes subject
to
court-martial jurisdiction upon enlistment in or induction into the
armed
forces; court-martial jurisdiction over active duty personnel
ordinarily ends
on delivery of a discharge certificate or its equivalent to the person
concerned issued pursuant to competent orders; thus, military
jurisdiction over
the person continues as long as military status exists).
(a
member of an
armed force may not be discharged or released from active duty until
his
discharge certificate and his final pay or a substantial part of that
pay, are
ready for delivery to him; to effectuate an early discharge, there must
be: (1) a delivery of a valid discharge certificate; (2) a final
accounting of pay; and (3) the undergoing of a clearing process as
required
under appropriate service regulations to separate the member from
military
service).
(if
an
individual commits an offense before his official discharge, and the
military
initiates action with a view to trial, the individual may be retained
in the
service for trial; if jurisdiction has attached by the commencement of
action
before the effective terminal date of self-executing orders, the person
may be
held for trial by court-martial beyond the effective terminal date;
actions by which
court-martial jurisdiction attaches include: apprehension;
imposition of
restraint, such as restriction, arrest, or confinement; and preferral
of
charges).
(delivery
of a
valid discharge can operate as a termination of court-martial in
personam jurisdiction;
however, the discharge authority must have intended the discharge to
take
effect).
(although
physical delivery of a discharge certificate is generally considered
the event
that terminates a servicemember’s active duty status, it is crucial to
consider
the intent of the command to determine the actual effective time and
date of
discharge).
2005
United
States v. Alexander,
61 MJ 266 (questions of jurisdiction are not subject to waiver;
jurisdiction
over the person, as well as jurisdiction over the subject matter, may
not be
the subject of waiver; a jurisdictional defect goes to the underlying
authority
of a court to hear a case; thus, a jurisdictional error impacts the
validity of
the entire trial and mandates reversal).
United
States v. Phillips, 58 MJ 217 (court-martial
jurisdiction
exists to try a person as long as that person occupies a status as a
person
subject to the UCMJ; status in the armed forces for purposes of
court-martial
jurisdiction is generally governed by Article 2, UCMJ; Article 2(c)
states that
notwithstanding any other provision of law, a person serving with an
armed
force who--(1) submitted voluntarily to military authority; (2) met the
mental
and minimum age qualifications of sections 504 and 505 of title 10 at
the time
of voluntary submission to the military authority; (3) received
military pay or
allowances; and (4) performed military duties, is subject to the UCMJ
until
such person’s active service has been terminated in accordance with law
or
regulations promulgated by the Secretary concerned).
(Article 2(c) was amended in 1979, and its legislative history
indicates
that the amendment was primarily enacted to ensure that court-martial
jurisdiction would not be defeated by assertions that military status
was
tainted by recruiter misconduct; the legislative history also makes it
clear
that the four-part test for active service applies to circumstances not
involving defective enlistments; an individual comes within the new
subsection
(c) whenever he meets the requisite four-part test regardless of other
regulatory or statutory disqualification).
(Article 2(c), by its express terms, establishes a specific
analytical
framework; first, the person must be "serving with an armed force" at
the pertinent point in time; the phrase "serving with" an armed force
has been used to describe persons who have a close relationship to the
armed
forces without the formalities of a military enlistment or commission;
the
question of whether a person is "serving with" the armed forces is
dependent upon a case-specific analysis of the facts and circumstances
of the
individual’s particular relationship with the military, and means a
relationship that is more direct than simply accompanying the armed
forces in
the field; second, the statute provides that a person serving with the
armed
forces also must meet the four-part test; merely serving with the armed
forces
as a reservist or a civilian is not sufficient to establish
jurisdiction under
Article 2(c); finally, the statute provides that once a person meets
the
four-part test, the individual retains status as a person in "active
service," until released under applicable laws and regulations.
(applying the first step of the of the four-part analysis to the
present
case, Appellant’s status as a person "serving with" the armed forces
on July 11, 1999, is established by the following uncontested facts:
(1) on
that day, she was a member of a reserve component of the armed forces;
(2) she
traveled to a military base on that day pursuant to military orders,
and she
was reimbursed for her travel expenses by the armed forces; (3) the
orders were
issued for the purpose of performing active duty; (4) she was assigned
to
military officers’ quarters, she occupied those quarters, and she
committed the
pertinent offense in those quarters; (5) she received military service
credit
in the form of a retirement point for her service on that date; and (6)
she
received military base pay and allowances for that date; in terms of
the second
step of the analysis, Appellant’s status on July 11 as a person in
active
service under the four-part test in Article 2(c) is established by the
following uncontested facts: (1) Appellant submitted voluntarily to
military
authority; (2) Appellant’s date of birth and record of service
reflected that
there was no issue as to whether she met the mental and minimum age
qualifications under 10 U.S.C. §§ 503 and 504; (3) as noted in
connection with
the first step, she received military pay and allowances for her
service on
that date; and (4) her military duty on that day, which she voluntarily
agreed
to perform, was to travel to the base preparatory to report to a
specific
organization on July 12; she performed that duty; the fact that her
orders did
not require her to report to a specific organization until July 12 did
not
detract from her voluntary performance of the duty, pursuant to orders,
to
travel on July 11; finally, it is uncontested that during the period in
question, she was not released pursuant to law or regulation; under
these
circumstances, Appellant was subject to military jurisdiction on the
day of
travel to her active-duty site at the time of her offense).
2002
United
States v. Oliver, 57 MJ 170 (Article 2(a)(1) indicates that
servicemembers, including reservists, who are "lawfully called or
ordered
into, or to duty in or for training in, the armed forces," are subject
to
jurisdiction).
(a "reserve component" servicemember who is on active duty prior
to arraignment is subject to court-martial jurisdiction).
(the beginning language of Article 132 -- "`[a]ny person subject to
this chapter' -- does not establish an element of the offense but,
rather, sets
forth the baseline for jurisdiction under the UCMJ common to all
offenses"
- Congress set forth the "any person" language as a basic
jurisdictional prerequisite, not as an element of a particular offense
or
offenses that are not peculiarly military).
(medical hold is a valid reason for extending the active duty of a
reservist, or any servicemember, and entitles him or her to the full
pay and
benefits of being on active duty; where the medical records submitted
clearly
indicate that appellant was retained on active duty beyond the
expiration of
his orders, the court-martial possessed subject matter jurisdiction
over the
offense committed during that period of extension for medical hold).
2000
United States
v.
Melanson, 53 MJ 1 (court-martial does not have
jurisdiction over persons lawfully discharged from the armed forces,
including
cases involving offenses allegedly committed prior to discharge).
(a servicemember is lawfully discharged when: (1) the member
receives
a valid discharge certificate of release from active duty, such as a
Department
of Defense Form 214; (2) the member’s final pay or a substantial part
of that
pay is ready for delivery to the member; and (3) the member has
completed the
administrative clearance process required by the Secretary of the
service of
which he or she is a member).
(where pertinent Army Regulation
provided that an administrative discharge was “effective at 2400
[hours] on the
date of notice of discharge to the soldier”, the discharge is not
effective
where a copy was provided to the member earlier in the day as a matter
of
administrative convenience unless it is clear that the discharge was
intended
to be effective at the earlier time).
(where pertinent Army Regulation provided that an administrative
discharge
was “effective at 2400 [hours] on the date of notice of discharge to
the
soldier”, and where the military judge’s findings of fact were not
clearly
erroneous on this point, appellant’s administrative discharge was not
effective
until 2400 hours on the date specified on the approved discharge).
United
States v. Williams, 53 MJ 316 (other than a few narrow
exceptions, jurisdiction over active duty military personnel continues
until
the member receives a valid discharge; there is a final accounting of
pay; and
the member has completed administrative clearance processes required by
his or
her service Secretary).
(jurisdiction over appellant did not terminate where a valid legal
hold was
initiated before the expiration of the date that constituted the
effective date
of the discharge).
United
States v. Wilson, 53 MJ 327 (for the purposes of
federal
court-martial jurisdiction, a member of the National Guard must be in
federal
service/status at both the time of the offense and at the time of
trial).
(there are four main principles that apply to the question of
whether
federal court-martial jurisdiction over a member of the Guard has been
terminated: (1) if a member has completed a required period of
federal
service and been returned to a state status, a court-martial will have
jurisdiction only if the member has been ordered to active duty for
purposes of
court-martial proceedings under Article 2(d), UCMJ; (2) a discharge
which
terminates a person’s military status as a member of a federal military
component normally precludes the exercise of federal court-martial
jurisdiction; (3) if jurisdiction attaches before the effective
terminal date
of self-executing orders, the person may be held for trial by
court-martial
beyond the effective terminal date by action with a view toward trial
while the
person is still subject to the UCMJ; and (4) when a member of the Guard
has
been ordered to active federal service with the consent of the state,
the
period of service subject to court-martial jurisdiction includes any
extension
of such service authorized under the Manual for Courts-Martial or other
applicable rules and regulations, regardless of whether the state
formally
consents to the extension of a particular individual).
(amenability to court-martial jurisdiction is not terminated by
discharge
unless: (1) the member receives a valid discharge certificate or
certificate of release from active duty; (2) there is a final
accounting of pay
such that the member’s final pay or a substantial part of that pay is
ready for
delivery to the member; and (3) the member has completed any final
clearing
procedures required by service regulations).
(servicemembers may be retained past their scheduled time of
separation,
over protest, by action with a view toward trial while that member is
still
subject to the Code; actions with a view toward trial include
apprehension, imposition of restraint, preferral of charges, and
investigations
highly likely to result in criminal charges against the member).
(a period of unauthorized absence which commenced while a Guardsman
was in
an active federal status suspended the termination date of his active
duty
orders, and the Guardsman remained on federal active duty during the
period of
his unauthorized absence).
(an order to perform federal active duty places a guardsman in
exclusive
federal status for the entire period of duty reflected in those
orders).
(a Guardsman’s period of active federal service was properly
extended by an
order issued while that Guardsman was in federal status and absent
without
authority; this order accomplished by officials in the State Guard and
“by
order of the Secretary of the Air Force” met the requirements of 10 USC
§
12301(d) – action by federal officials with the consent of state
officials).
(state officials have no unilateral authority to shorten a
Guardsman’s
period of active federal service once that individual has moved from
state to
federal status; upon commencement of a period of active federal service
state
affiliation is suspended in favor of an entirely federal affiliation
during the
period of active federal service).
(absent a delegation of authority from the federal government, a
state has
no unilateral authority to terminate a Guardsman’s period of federal
service,
whether through modification of his federal orders or termination of
his state
status).
(discharge documents issued by the state “by order of the Governor”
had no
effect on the authority of the federal government to retain
jurisdiction over a
Guardsman until he was relieved by federal authorities from his federal
status).
(even if the state had been delegated authority by the federal
government to
terminate a Guardsman’s federal status, actions taken by the state did
not
comply with applicable laws and regulations and did not terminate
federal
status by discharge because: (1) those actions were not taken by
competent authority; (2) they were based upon a misinterpretation of
Air Force
Instructions; (3) they did not comport with applicable regulations; and
(4)
they were not accompanied by any of the steps necessary to complete the
discharge process).
(actions with a view toward court-martial taken before the
expiration of a
Guardsman’s federal active duty obligation were valid to retain that
individual
on active duty past his expiration of federal active duty date;
those
actions included the member’s apprehension, imposition of pretrial
confinement,
preferral of charges, and investigation under Article 32, UCMJ).
1999
Steele v. Van Riper,
50 MJ 89 (issuance of an administrative discharge after trial
does not negate
the convening authority’s responsibility or power to act on findings or
sentence).
United
States v. Murphy, 50 MJ 4 (concerning whether American
authorities obtained jurisdiction over appellant in contravention of
treaty
(the NATO SOFA), appellant has no standing to object to the process as
the
determination of which nation will exercise jurisdiction is a matter
for the
nations and not a right of the suspect or accused).