FIRST PRINCIPLES: Jurisdiction: Subject Matter         

2014 (September Term)

United States v. Morita, 74 M.J. 116 (there is no UCMJ jurisdiction over a reservist who commits an offense when not in a military status – i.e., on active duty, inactive duty training, or serving with the armed forces). 

(in this case, appellee was subject to court-martial jurisdiction under Article 2(a), UCMJ, for all offenses committed during the periods that he was on active duty pursuant to orders that the government demonstrated were valid by a preponderance of the evidence). 

(a reservist cannot place himself under court-martial jurisdiction under Article 2(a), UCMJ, by forging either active duty orders or inactive duty training orders; under Article 2(a)(1), UCMJ, the military justice system has subject matter jurisdiction over a reservist when that reservist is lawfully ordered to duty or training in the armed forces; however, when a reservist forges his orders, he is not “lawfully” ordered to duty or training). 

(a reservist cannot be amenable to court-martial jurisdiction under Article 2(c), UCMJ, under forged orders or during other periods, based solely on his capacity as a reserve officer, without more; Article 2(c), UCMJ, requires that the reservist be, as a threshold matter, serving with the armed forces at the time of the misconduct, and meet the other four criteria set forth in the statute, i.e., a person who (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties). 

(court-martial jurisdiction exists to try a person as long as that person occupies a status as a person subject to the UCMJ; for reservists, military status is defined by and dependent upon Articles 2(a) and 2(c), UCMJ, which prescribe two alternative bases for court-martial jurisdiction; Article 2(a), UCMJ, jurisdiction for a reservist hinges on whether the charged events occurred during active duty status or IDTs; Article 2(a)(1), UCMJ, applies to reservists lawfully called or ordered into, or to duty, while Article 2(a)(3), UCMJ, applies to members of a reserve component while on inactive-duty training; for the purposes of Article 2(a), UCMJ, jurisdiction, active duty is an all-or-nothing condition; a reservist is subject to jurisdiction under Article 2(a), UCMJ, from the date of activation, and answerable under the UCMJ for any offense committed thereafter; however, Article 2(a)(1) does not delineate how a person is lawfully called to active duty for purposes of court-martial jurisdiction; while Article 2(a)(3), UCMJ, has not been the subject of much analysis, little analysis is required to conclude that the operative statutory language refers to, and thus is limited to, a member of a reserve component while on inactive-duty training; second, Article 2(c), UCMJ, while not referencing reservists at all, extends jurisdiction notwithstanding any other provision of law to a person serving with an armed force who (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; 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; but meeting that threshold criterion of “serving with” does not obviate the need to satisfy the additional statutory requirements, set forth in subsections (c)(1)-(4), which include, inter alia, receipt of military pay or allowances, and performance of military duties). 

(in this case, appellee was lawfully in an active duty status, and subject to the UCMJ, pursuant to Article 2(a)(1) for offenses committed during his three approved military personnel appropriation tour periods). 

(forged orders to active duty or to IDTs do not place a reservist within Article (2)(a), UCMJ, status; Article 2(a)(1), UCMJ, requires that a member be lawfully called or ordered to active duty; a forged order to active duty has no legal effect on the duty of the reservist to report to active duty; indeed, a forgery is the antithesis of a lawful order; further, Article 2(a)(3), UCMJ, extends jurisdiction over members of the reserve component while on inactive-duty training; the forged orders did not in fact place appellee on inactive-duty training). 

(that only reservists who meet the statutory requirements are subject to the UCMJ reflects Congress’s determination that for other misconduct they are subject to the jurisdiction of the civilian courts; while this may deprive the military of jurisdiction over reservists who fraudulently obtained orders through forgery and benefited from them in some instances, they may be prosecuted by a U.S. Attorney under any one of several federal criminal and civil statutes and subjected to both criminal sanction and civil forfeitures upon conviction; Congress is understandably chary of the exercise of military jurisdiction over civilians unless they are, in fact, in a military status under Article 2, UCMJ; a forged order, without more, is insufficient to subject a reservist not in an actual military status to military jurisdiction under Article 2(a), UCMJ). 

(in this case, appellee was not subject to military jurisdiction under Article 2(c), UCMJ, for any period during which forged orders purported to place him in military status or any period, excepting the IMA tour days, during which he was subject to military jurisdiction under Article 2(a), UCMJ, during the charged offenses; the threshold consideration under Article 2(c) is the phrase “serving with;” and the fact that appellee was a member of a reserve component alone was not sufficient to find that he was “serving with” the armed forces under Article 2(c), UCMJ; actions incident to status as a reservist without more are simply insufficient to confer jurisdiction; where appellee was not performing military duties, but rather exploiting his knowledge of the system to generate orders and travel vouchers to support private boondoggles, appellee was not subject to jurisdiction under Article 2(c), UCMJ). 

2011 (September Term)

United States v. Ali, 71 M.J. 256 (general courts-martial have jurisdiction to try persons subject to the UCMJ for any offense made punishable by it; additionally, the UCMJ applies in all places; where appellant, a foreign national working as a civilian contractor in Iraq and serving with the Army in the field during a contingency operation, was charged with and convicted of misconduct punishable by the UCMJ, the court-martial had jurisdiction over the offenses). 

(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). 

United States v. Humphries, 71 M.J. 209 (in the absence of subject-matter jurisdiction, a charge must be dismissed).


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. Gray, 51 MJ 1 (assuming that there is a requirement for subject matter jurisdiction or service connection in a capital case, then capital appellant’s crimes were service connected where:  (1) one murder victim was a military member; (2) one murder victim was a civilian who did business on post; (3) both bodies were found on post; and, (4) overwhelming evidence indicated that the murders were committed on post).

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