FIRST PRINCIPLESJurisdiction: In Personam

2011 (September Term)

United States v. Ali, 71 M.J. 256 (Article 2(a)(10), UCMJ, provides for UCMJ jurisdiction in time of declared war or contingency operation over persons serving with or accompanying an armed force in the field). 

(the court-martial’s jurisdiction over the offense alone is not sufficient to establish jurisdiction; the Constitution conditions the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused; thus, an inquiry into court-martial jurisdiction focuses on the person’s status, i.e., whether the person is subject to the UCMJ at the time of the offense; in this case, whether jurisdiction over the offense existed requires an analysis of the criteria found in Article 2(a)(10), UCMJ). 

(with respect to whether a person is serving with or accompanying an armed force as provided in Article 2(a)(10), UCMJ, the test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel; also, an accused may be regarded as accompanying or serving with an armed force, even though he is not directly employed by such a force or the government, but, instead, works for a contractor engaged on a military project). 

(appellant, a foreign national working as a civilian contractor in Iraq, was both serving with and accompanying the armed forces, as required to subject him to court-martial jurisdiction under Article 2(a)(10), UCMJ, where he was virtually indistinguishable from the US military police squad he was serving with and faced the same daily routines and threats as they did; specifically, he served as an interpreter for the squad on every mission the squad went on, he was not only an integral part of the team, but was a necessary part of the team, without whom the mission could not be accomplished, he wore a tape stating “U.S. Army” and the unit patch on his uniform, he wore body armor and a helmet like the soldiers, he lived in a combat outpost, he received mission orders from the squad leader/team chief and reported for operational purposes to the squad leader/team chief, and he faced daily threats from enemy insurgents). 

(with respect to whether a person is serving with or accompanying an armed force in the field as provided in Article 2(a)(10), UCMJ, the meaning of in the field means in an area of actual fighting). 

(appellant, a foreign national working as a civilian contractor in Iraq, was serving with or accompanying the armed forces in the field, as required to subject him to court-martial jurisdiction under Article 2(a)(10), UCMJ, where he served as an interpreter for a US military police squad, lived at a combat outpost, and conducted missions with the squad in an area where he faced attacks from enemy insurgents on a daily basis). 

(the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person; the only difference is that jurisdiction over the person depends on the person’s status as a person subject to the Code both at the time of the offense and at the time of trial). 

(even though appellant, a foreign national working as a civilian contractor in Iraq, was no longer serving with the armed forces after his civilian employment contract was terminated prior to trial, jurisdiction remained because he was still accompanying the force at the time of trial by the fact that he was confined awaiting trial). 

United States v. Fry, 70 M.J. 465 (perhaps no relation between the government and a citizen is more distinctively federal in character than that between it and members of its armed forces; for this reason, the scope, nature, legal incidents, and consequences of the relation between persons in service and the government are fundamentally derived from federal sources and governed by federal authority; federal law, not state law, is the benchmark by which courts measure whether a person is subject to court-martial jurisdiction).

(under Article 2(c), UCMJ, which makes persons subject to court-martial jurisdiction, notwithstanding any other provision of law, if they submit voluntarily to military authority, meet the mental competence and minimum age qualifications, receive military pay or allowances, and perform military duties, courts-martial need not concern themselves with the legal effect of other clauses in statutes, contracts, or other legal instruments, when deciding whether they have jurisdiction). 

(Congress has the power to override state law that would interfere with the servicemember-military relationship, given its distinctively federal character). 

(in assessing whether the accused met the mental competency requirements for court-martial jurisdiction pursuant to Article 2(c), UCMJ, the military judge was not bound by a state court order that established a limited conservatorship over the accused, even assuming it was directly on point; the military judge was only required to review the relevant evidence, including the order, to determine whether the requirements for military jurisdiction under Article 2(c), UCMJ, were met).

(Article 2(c), UCMJ, sets out a three-part analytical framework for finding jurisdiction; the threshold question is whether the person is serving with an armed force; if that can be established, the analysis proceeds to the four-part test laid out in Article 2(c), which requires findings that the accused: voluntarily submitted to military authority; met the mental and age requirements; received military pay or allowances; and performed military duties; if all four parts of the test are met, then the person is subject to court-martial jurisdiction, until the person is released pursuant to law or regulation).

(voluntariness is a separate and distinct requirement for court-martial jurisdiction under Article 2(c), UCMJ, that retains its usual meaning; furthermore, voluntariness remains a question evaluated under the traditional rubric of looking at the totality of the relevant circumstances, including the individual’s mental state). 

(evidence either that appellant’s actions were compelled by an outside influence, like duress or coercion, or that appellant could not understand the nature or significance of his actions might be reasons to find that he has not acted voluntarily in submitting to military authority for purposes of determining if he is subject to court-martial jurisdiction under Article 2(c), UCMJ). 

(if appellant met the mental competence requirement of Article 2(c)(2) (i.e., not insane under 10 USC § 504), then it is surely evidence that he had the requisite mental capacity to understand the significance of submitting to military authorities, i.e., it would tend to show that he acted voluntarily in that regard).

(section 504 of Title 10 (persons not qualified for enlistment) sets out the mental standard for enlistment in relevant part as no person who is insane may be enlisted in any armed force; the general definition section states that the word insane shall include every idiot, lunatic, insane person, and person non compos mentis; non compos mentis requires something more than merely suffering from a mental disease; the concept envisions someone who is incapable of handling her own affairs or unable to function in society). 

(the clear purpose of 10 USC § 504 (persons not qualified for enlistment) was to codify something approximating the common law concept of capacity to contract, in that only those people may enlist who have the ability to understand what it means to enlist).

(given that the concept codified in 10 USC § 504 (persons not qualified for enlistment) is akin to capacity to contract, the events that occurred before and after enlistment are relevant to determining the person’s mental condition on the date the enlistment was executed in determining the mental capacity to enlist). 

(the weight of authority seems to hold that mental capacity to contract depends upon whether the allegedly disabled person possessed sufficient reason to enable him to understand the nature and effect of the act in issue; even average intelligence is not essential to a valid bargain). 

(in this case, the military judge’s conclusion that jurisdiction existed pursuant to Article 2(c) because appellant was mentally competent to enlist was not clearly erroneous; the evidence of record fairly supported the conclusion that appellant had the capacity to understand the significance of his enlistment and acted voluntarily; although expert testimony conflicted as to whether appellant had the mental capacity to understand the significance of his enlistment, and a state court order entered prior to enlistment established a limited conservatorship over appellant, the military judge concluded that the surrounding circumstances did not sufficiently support appellant’s claim of impulsivity because appellant ultimately managed to conform his conduct to the requirements of the law, orders, and directives and complete recruit training). 
 
(when faced with conflicting evidence on whether a party is competent, the military judge does not err merely because some evidence points in the opposite direction of the military judge’s ultimate conclusion).

2010 (September Term)

United States v. Watson, 69 M.J. 415 (a pretrial administrative discharge terminates court-martial jurisdiction over an accused, returning him to civilian status by virtue of the discharge). 

 

(a void administrative discharge, such as one obtained by fraud, does not preclude either the exercise of court-martial jurisdiction or the approval of an unexecuted punitive discharge). 


(for purposes of ascertaining the impact of an administrative discharge on court-martial proceedings, there are three generally applicable elements of a valid discharge: first, there must be a delivery of a valid discharge certificate; second, there must be a final accounting of pay made; and third, appellant must undergo the clearing process required under appropriate service regulations to separate him from military service). 

2008 (September Term)
 

United States v. Kuemmerle, 67 M.J. 141 (courts-martial may only exercise jurisdiction over a servicemember who was a member of the Armed Services at the time of the offense charged). 

2008 (Transition)

United States v. Hart, 66 M.J. 273 (under Article 2(a)(1), UCMJ, members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment are subject to court-martial jurisdiction).

 

(it is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent same saving circumstance or statutory authorization). 

 
(the UCMJ itself does not define the exact point in time when discharge occurs, but pursuant to 10
USC § 1168(a), a servicemember may not be discharged from active duty until his discharge certificate and his final pay, or a substantial part of that pay, are ready for delivery to him).    

 

(for purposes of court-martial jurisdiction, three elements must be satisfied to accomplish an early discharge: (1) there must be a delivery of a valid discharge certificate; (2) there must be a final accounting of pay made; and (3) the servicemember must undergo the clearing process required under appropriate service regulations to separate him from military service). 

 

(although appellant had received his DD Form 214 discharge certificate, his discharge from active duty was not completed and court-martial jurisdiction existed pursuant to Article 2(a)(1), UCMJ, where only the initial calculation of appellant’s separation pay had been entered in the DFAS computer system, where appellant had not received his final separation pay, or a substantial portion thereof, and that pay was not ready for delivery, and where appellant’s command stopped processing the computation of his final pay and revoked his DD Form 214). 


2006

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).

 

(in this case, the Court holds that the accused’s status as an active duty service member did not terminate until 2359 on 17 May 2001; the discharge documents (the DD Form 214 in conjunction with the NAVMC 11060 Form) indicated the command’s intent to discharge the accused at 2359 hours on May 17, 2001; it was not the command’s intent that the accused’s discharge would be effective at some arbitrary point in time when a personnel clerk decided to deliver the copies of the DD Form 214 to the accused; thus, the accused’s status as a military member continued until 2359 hours on May 17, 2001; until that time, the accused was merely a person in possession of an order not yet operative; because prior to 2359 hours on May 17, 2001, the command placed a valid legal hold on the accused and acted to revoke the discharge, the accused’s military status was not terminated on May 17, 2001, the court-martial had personal jurisdiction over him, and in personam jurisdiction over the accused was never lost).


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). 

 

2003

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).

(even if US military authorities misled German authorities with respect to jurisdictional process under the NATO SOFA, court-martial was not without jurisdiction over appellant who was at all times a soldier in the US Army and thus had required military status to confer jurisdiction in the court-martial).



Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site