Patricia C. PHILLIPS, Lieutenant Colonel
U.S. Air Force, Appellant
Crim. App. No. 34147
United States Court of Appeals for the Armed Forces
Argued February 5, 2003
Decided May 13, 2003
For Appellant: Lieutenant Colonel Brandon Burnett (argued); Colonel Beverly B. Knott, Major Kyle R. Jacobson, and Major Terry L. McElyea (on brief); Major Jeffrey A. Vires.
For Appellee: Lieutenant Colonel William B. Smith (argued); Lieutenant Colonel LeEllen Coacher, Lieutenant Colonel Lance B. Sigmon, and Captain C. Taylor Smith (on brief); Colonel Anthony P. Datillo.
Military Judge: William E. Orr, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD delivered the opinion of the Court.
Pursuant to her pleas, Appellant was convicted of making a false official statement, wrongfully using marijuana, and conduct unbecoming an officer by seeking a substitute urine sample, in violation of Articles 107, 112a, and 133, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 907, 912a, and 933 (2000). The convening authority approved a sentence of dismissal and confinement for 45 days. The Air Force Court of Criminal Appeals affirmed the findings and sentence, United States v. Phillips, 56 M.J. 843 (A.F. Ct. Crim. App. 2002), and we granted review of the following issue:
At trial, as on appeal, Appellant contended that the armed forces did not have personal jurisdiction over her at the time of one of the three offenses of which she was convicted – the charge of wrongful use of marijuana "at or near Wright-Patterson Air Force Base, Ohio, between on or about 11 July 1999 and on or about 16 July 1999." Appellant has not challenged jurisdiction over the remaining offenses. In the course of rejecting Appellant’s motion, the military judge identified the following as uncontested facts:
Lieutenant Colonel Phillips was assigned as a reservist to the 9019th Air Reserve Squadron, Denver, Colorado, as an Individual Mobilization Augmentee. As an IMA, Lieutenant Colonel Phillips is attached to the 74th Medical Group, Wright-Patterson Air Force Base, Ohio. Pursuant to Reserve Order JA 17747, dated 24 June 1999, Lieutenant Colonel Phillips was ordered to perform her annual tour. The orders required Lieutenant Colonel Phillips to report to duty at 0730 hours on 12 July 1999, and to be released on 23 July 1999. Lieutenant Colonel Phillips departed Pittsburgh, Pennsylvania at 1200 hours on 11 July 1999 and arrived at Wright-Patterson Air Force Base, Ohio at 1630 hours on 11 July 1999.
Pursuant to Reserve Orders JA 17747, one-day travel was authorized on 11 July 1999. Lieutenant Colonel Phillips received one point in travel pay for 11 July 1999. Additionally, she received base pay, basic allowance for quarters, and basic allowance for subsistence for 11 July 1999. Lieutenant Colonel Phillips reported for duty at 0630 hours on 12 July and was released from duty on 1530 hours on 23 July 1999.
During the week of 12 July 1999, Lieutenant Colonel Phillips was selected for random urinalysis. She provided a sample. The sample tested positive for tetrahydro-cannabinol, with a THC level of 148 nannograms per milliliter. The alleged drug use occurred on 11 July 1999, after she arrived at Wright-Patterson Air Force Base, Ohio.
During the military judge’s personal colloquy with Appellant during the plea inquiry, Appellant added:
"Court-martial jurisdiction exists to try a person as long as that person occupies a status as a person subject to the [UCMJ]." United States v. Ernest, 32 M.J. 135, 139 (C.M.A. 1991). See also Solorio v. United States, 483 U.S. 435 (1987). "Status in the armed forces for purposes of court-martial jurisdiction is generally governed by Article 2 [of the UCMJ]." United States v. Cline, 29 M.J. 83, 85 (C.M.A. 1989)(citing United States v. Cole, 24 M.J. 18 (C.M.A. 1987)). Article 2(c), UCMJ, 10 U.S.C. § 802(c)(2000), states:
(1) submitted voluntarily to military authority;
(2) met the mental and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to the 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.
The statute, 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. See Article 2(10), UCMJ; Article XXXII, American Articles of War of 1775, reprinted in William Winthrop, Military Law and Precedents 956 (2d ed. 1920). 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. See, e.g., United States v. Garcia, 5 U.S.C.M.A. 88, 17 C.M.R. 88 (1954); United States v. Schultz, 1 U.S.C.M.A. 512, 4 C.M.R. 104 (1952).
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). Compare Articles 2(a)(3), 2(d) (jurisdiction over reservists not on active duty in specified circumstances).
Finally, the statute provides that once a person meets the four-part test, the individual retains status as a person in "active service," see 10 U.S.C. § 101(d)(3), until released under applicable laws and regulations.
Applying the first step of the 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. §§ 504 and 505 (2000); (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 does 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.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.