2020 (October Term)
United States v. Begani, 81 M.J. 273 (pursuant to its plenary authority to make rules for the government and regulation of the land and naval forces, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the UCMJ, and an offense need not be military in nature to be tried by court-martial; the only question is the military status of the accused - namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term land and naval forces).
(retired members of all branches of service of the armed forces who continue to receive pay are still a part of the land and naval forces and subject to the UCMJ).
(although retirees are still part of the armed forces and subject to the UCMJ, persons who have completely separated from the military are not).
(civilian dependents of servicemembers and civilian employees of the military are not part of the armed forces and not subject to the UCMJ).
(the test for jurisdiction is one of status, namely, whether the accused in a court-martial proceeding is a person who can be regarded as falling within the term land and naval forces).
(a member of the Fleet Reserve who receives retainer pay, is subject to recall, and is required to maintain military readiness remains a member of the land and naval forces and is thus subject to court-martial jurisdiction).
(court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection; accordingly, appellant, a member of Fleet Reserve and thus a member of the land and naval forces, was properly subject to jurisdiction under Article 2(a)(6), UCMJ).
2019 (October Term)
United States v. Hennis, 79 M.J. 370 (although there was a break in service between appellant’s acquittal of the murder charges in state court and his subsequent reenlistment, appellant was still subject to court-martial jurisdiction for the same murder charges where, consistent with Article 3(a), UCMJ (1982), (1) he was subject to the UCMJ both at the time of the murders and at the time of preferral of charges, (2) the offenses were punishable by confinement for five or more years, and (3) because double jeopardy barred his prosecution in the state using newly available DNA evidence, no other court of the United States could try him where there was no federal statute under Title 18, triable in a US district court, that covered his conduct).
(Article 3(a), UCMJ (1982) is applied at the time court-martial charges are preferred rather than at the time the offenses are committed).
(in Solorio v. US, 483 US 435 (1987), the Supreme Court held that the test for jurisdiction was one of status, namely, whether the accused in the court-martial proceeding was a person who can be regarded as falling within the term land and naval Forces; Solorio applies to both capital and non-capital cases).
(the Army did not lose jurisdiction over appellant, a retired member of the Regular, when it recalled him to active duty from retired status to face a court-martial for the murders of three military dependents where (1) the Army had personal jurisdiction over appellant because of his retired status (Article 2(a)(4), UCMJ), and (2) the Army was also statutorily authorized to and did recall him to active duty under regulations prescribed by the Secretary of Defense; appellant was subject to court-martial jurisdiction under either status and the Army did not lose personal jurisdiction over him by choosing to recall him).
(at the time of appellant’s recall to active duty, under regulations prescribed under 10 USC 688 (2000), the service secretary could assign the recalled member to such duties as the Secretary considered necessary in the interests of national defense; although the term “interests of national defense” was undefined, it includes recalling a retiree to face court-martial charges of killing three military dependents).2018 (October Term)
United States v. Hale, 78 M.J. 268 (an inquiry into court-martial jurisdiction focuses on whether the person is subject to the UCMJ at the time of the offense).
(court-martial jurisdiction is determined by Article 2, UCMJ).
(beginning in January, 2019, jurisdiction over reservists performing IDTs under Article 2(a)(3) extends to (1) members traveling to and from the IDT training site, (2) intervals between consecutive periods of IDT on the same day, pursuant to orders or regulations, and (3) intervals between IDTs on consecutive days, pursuant to orders or regulations).
(at the time of the offenses in this case, jurisdiction for reservists hinged on satisfying Article 2(a) or Article 2(c), UCMJ; Article 2(c) 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; jurisdiction continues until active service has been terminated; Article 2(a)(3), UCMJ, in relevant part, extends jurisdiction to members of a reserve component while on inactive-duty training).
(the military does not have jurisdiction over a reservist who had forged his active duty and IDT orders; simply being a member of a reserve component is not sufficient to find that an accused was serving with the armed forces).
(jurisdiction over a reservist covers the travel day prior to the reservist reporting for active duty).
(determining whether someone is serving with the military requires a case-specific analysis of the facts and requires a more direct relationship than simply accompanying the armed forces into the field).
(based on Article 2, UCMJ, and supporting case law, no authority existed at the time of the alleged larceny offenses in this case to extend military status to appellant while engaged in IDTs beyond the designated four-hour blocks of his IDT time; Article 2(a)(3) very clearly extends jurisdiction to members of a reserve component while on inactive-duty training; unlike other types of reserve duty, an IDT is not a tour but a block of time; specifically, it is a designated four-hour period of training, duty or instruction; the member performing the IDT is paid for and receives a point for that designated four-hour block of time; appellant was no exception; rather, he received pay and points solely for the IDT blocks he was authorized to complete).
2017 (October Term)
United States v. Christensen, 78 M.J. 1 (it is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization).
(the UCMJ does not state when a servicemember’s discharge from the armed forces becomes effective for jurisdictional purposes, and thus does not specifically address when a servicemember is no longer subject to being court-martialed; three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdictional purposes are: (1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations; however, this guidance is not binding when it goes against reason or policy; to be clear, if all three of the criteria have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction, but if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances).
(in this case, appellant was not subject to court-martial jurisdiction at the time of his military trial because to hold otherwise, under the totality of the circumstances, would clearly go against reason or policy where (1) a DD Form 214 was delivered to appellant, (2) the government did not act in a timely manner when attempting to revoke the discharge, (3) in light of the facts that not only had appellant received his DD Form 214, cleared post, turned in his military identification card, and been told by the unit’s official representative that he was out of the Army now, but for months afterward he received no visits from his command, used private funds for his rehabilitation facility and dental work, received no communication from the unit informing him that his status was in question, received no pay or military benefits, did not have his DD Form 214 revoked, received correspondence from the Department of Veterans Affairs about the benefits he now was entitled to receive as a veteran, and expected no final pay because he owed the government money, appellant held an objectively reasonable belief that he was no longer in the Army, and (4) the final accounting of pay was not accomplished within a reasonable time frame).
2014 (September Term)
United States v. Nettles, 74 M.J. 289 (a discharge terminates in personam court-martial jurisdiction of an active duty servicemember after there is (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).
(the law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore an appellate court is free to modify it).
(in the case of an active duty servicemember, no delivery of a valid discharge can be effective if it is contrary to expressed command intent; it is also strongly suggested that delivery means actual physical receipt; however, the physical delivery rule does not apply to the reserve components).
(in cases of reserve personnel with self-executing discharge orders issued pursuant to statute, it is the effective date of those orders that determines the existence of personal jurisdiction - not physical receipt of a piece of paper).
(in this case, because 10 USC § 14505 (a statute requiring discharge for captains who failed to be selected for promotion on the second try) commanded that appellant be discharged no later than a specific date, and because appellant was not on active duty under an administrative hold on the date of the self-executing discharge orders, appellant’s discharge became effective on the date ordered - regardless of the failure physically to deliver the discharge certificate; and because appellant was arraigned after the effective date of that discharge, no military jurisdiction existed over his person).
(in cases where the accused is not on active duty pursuant to an administrative hold on the date the self-executing order sets for a reservist’s discharge, he is not subject to court-martial jurisdiction).
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).
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
(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).
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).