03. Jurisdiction

Last Updated: 5/11/22

CHAPTER 3

Jurisdiction

 

1.       Introduction

2.       Jurisdiction over the Offense

3.       Jurisdiction over the Person

4.       Jurisdiction over the Reserve Component

5.       Procedural Considerations

6.       Jurisdiction over Civilians

 

I. Introduction

A. Jurisdiction means the power of a court to try and determine a case, and to render a valid judgment.  Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). Without jurisdiction, a court cannot decide issues arising in that case.  Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804). For example, courts-martial jurisdiction applies worldwide, but is limited in application to a certain class of people—members of the armed forces.  Solorio v. United States, 483 U.S. 435, 439 (1987). The government bears the burden to establish jurisdiction by a preponderance of the evidence. United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002).

B. In general, three prerequisites must be met in order for courts-martial jurisdiction to vest.  They are: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial.  United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012); United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006).

C. Whether a court-martial is empowered to hear a case—whether it has jurisdiction—frequently turns on issues such as the status of the accused at the time of the offense, or the status of the accused at the time of trial.  These issues of courts-martial jurisdiction relate to either subject matter jurisdiction (jurisdiction over the offense) or personal jurisdiction (personal jurisdiction over the accused). 

D. Subject matter jurisdiction focuses on the nature of the offense and the status of the accused at the time of the offense.  If the offense is chargeable under the Uniform Code of Military Justice (UCMJ) and the accused is a Servicemember at the time the offense is committed, subject matter jurisdiction is satisfied. 

E.  Personal jurisdiction, however, focuses on the time of trial: can the government court-martial the accused?  The answer is yes, so long as the accused has proper status; i.e., that the accused is a Servicemember at the time of trial. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 240-41 (1960) (“The test for jurisdiction . . . is one of status, 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.’ . . . .”).

E. Sources of Jurisdiction.

1. The Constitution:  Article I, section 8, clause 14

2. UCMJ, Articles 2, 3 and 36

3. MCM, 2016 ed., R.C.M. 201 - 204

4. Customary international law and treaties

F. Five Elements of Court-Martial Jurisdiction, R.C.M. 201(b):

1. Proper jurisdiction over the offense (subject matter jurisdiction).

2. Proper jurisdiction over the person (personal jurisdiction). Personal jurisdiction frequently is based on the accused’s service on active duty, but it may also arise under other circumstances. United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018) (noting that retired members of a regular component of the armed forces who are entitled to pay are subject to the UCMJ and trial by court-martial); United States v. Ali, 71 M.J. 256, 262 (C.A.A.F. 2012) (noting that “civilians serving alongside the military may be subject to courts-martial under the military justice system in some limited circumstances”). Generally a specification is not required to state the authority for personal jurisdiction over the accused when the accused is on active duty, but it in all other circumstances it is important to specify the basis for personal jurisdiction.  United States v. Miller, 78 M.J. 835, 844 (Army Ct. Crim. App. 2019).

3. Properly composed court (military judge and members must have proper qualifications.)  “A court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid.” United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008) (citing McClaughry v. Deming, 186 U.S. 49, 63–65 (1902)). Absent evidence of coercion or ineffective assistance of counsel, accused’s request to be tried by military judge alone can be inferred from the record of trial (applying "substantial compliance" doctrine to Article 16.  United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997).  Article 25 (request for enlisted members to serve on panel) is also satisfied by substantial compliance.  United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000).  See also United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002). [See Tab E (Court-Martial Personnel) of this Deskbook for additional information]

4. Proper convening authority. United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008). A properly constituted court-martial may try any person subject to the UCMJ, even if the accused is not under the command of the convening authority.  United States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990), set aside, on other grounds, 36 M.J. 8 (C.M.A. 1992); accord, United States v. Randle, 35 M.J. 789 (A.C.M.R. 1992).  See also United States v. Cantrell, 44 M.J. 711 (A.F. Ct. Crim. App. 1996). [See Tab E (Court-Martial Personnel) of this Deskbook for additional information]

5. Properly referred charges. United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008); United States v. Pate, 54 M.J. 501 (Army Ct. Crim. App. 1997).  The pretrial agreement (PTA) was not signed by the GCMCA, but instead the word "accepted" was circled and a notation made indicating a voco to the SJA.  The accused argued that since the CA never signed the PTA, the "new" charge to which the accused was pleading guilty was never referred and, therefore, the court-martial lacked jurisdiction over that charge.  The Army Court held that jurisdiction existed since a proper referral does not need to be in writing and the lack of signature was "insignificant."  See also United States v. Williams, 55 M.J. 302 (C.A.A.F. 2001).  But see United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004). [See Tab G (Initiation and Disposition of Charges) of this Deskbook for additional information]

II. Jurisdiction over the Offense

A. Historical Overview.

1.  O’Callahan v. Parker, 395 U.S. 258 (1969).  The Supreme Court establishes the “service-connection” test.  See also Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 (1971) (the Court sets-forth the Relford factors as a template to determine “service-connection”). 

2. Solorio v. United States, 483 U.S. 435 (1987).  The Supreme Court overrules O’Callahan, abandoning the “service-connection” test, and holds that jurisdiction of a court-martial depends solely on the accused’s status as a member of the Armed Forces. United States v. Hennis, 79 M.J. 370, 379 (C.A.A.F. 2020).

B. BOTTOM LINE:  Subject matter jurisdiction is established by showing military status at the time the accused committed an offense under the UCMJ. See Article 18, UCMJ, 10 U.S.C. § 818(a) (“[G]eneral courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by [the UCMJ].”). The location of the accused at the time he commits an offense is irrelevant because the punitive articles of the UCMJ “applies in all places.” Article 5, UCMJ, 10 U.S.C. § 805 (2006).

C. Administrative Double Jeopardy Policies.  Generally, a member of the Armed Forces will not be tried by court-martial or punished under Article 15, UCMJ, for the same act for which a civilian court has tried the Soldier.  This policy is based on comity between the federal government and state or foreign governments.  See AR 27-10, para. 4-2 (20 Nov 2020); JAGMAN, para. 0124.

D. Capital Cases.

1. Loving v. United States, 517 U.S. 748, 774 (1996).  Justice Stevens (concurring) raised the question of whether a “service connection” requirement applies to capital cases.  See also United States v. Simoy, 46 M.J. 601 (A.F. Ct. Crim. App.  1996) (a capital murder case in which the court made a specific finding that the felony murder was “service-connected”).

2. United States v. Hennis, 79 M.J. 370, 379 (C.A.A.F. 2020). The CAAF has rejected Justice Stevens’s suggestion in Loving that the government must demonstrate a “service connection” in capital cases. 

E. Subject Matter Jurisdiction over Reservists/National Guard Members.

1. A court martial may exercise jurisdiction over an accused member of a Reserve component—including the Retired Reserves— who committed an offense while on active duty or while performing inactive-duty training and while in federal service. See Article 2, UCMJ; Willenbring v. United States, 559 F.3d 225, 228 (4th Cir. 2009); United States v. Ferrando, 77 M.J. 506, 511–12 (A.F. Ct. Crim. App. 2017); Morgan v. Mahoney, 50 M.J. 633, 636 (A.F. Ct. Crim. App. 1999) (holding that a member of the Retired Reserve was subject to court-martial jurisdiction for any offenses he committed while on active duty or inactive-duty training).

2. The offense must have been committed while the reservist had military status. See Article 2, UCMJ; United States v. Begani, 81 M.J. 273, 278-79 (C.A.A.F. 2021) (holding that a Navy court martial could exercise jurisdiction over a retired petty officer who remained a paid member of the Navy Fleet Reserve while serving as a contractor at Marine Corps Air Station, Iwakuni, Japan); United States v. Hale, 78 MJ 268, 273 (C.A.A.F. 2019) (holding that for attempt crimes, it is not necessary that every step leading up to or following that attempt occur at times where the accused is subject to the UCMJ, so long as some element of the offense occurs during such times). 

3. If an accused severed all connection to the military prior to commission of an offense, a court-martial may not exercise jurisdiction over the accused. United States ex rel. Toth v. Quarles, 350 U.S. 11, 14-15 (1955).

4. Active duty orders and inactive-duty training (IDT) orders that were forged by an accused did not subject the accused to court-martial jurisdiction for periods specified in the forged orders, because Article 2(a)(1), UCMJ, requires that a member be “lawfully called or ordered” to active duty. United States v. Morita, 74 M.J. 116, 122 (C.A.A.F. 2015).

5. The Army Court of Military Review held that the prosecution failed to establish that a court-martial enjoyed subject-matter jurisdiction when the government failed to prove that the accused Reserve warrant officer ordered to ADT was subject to the UCMJ when he used cocaine, as opposed to when he submitted a urine specimen which contained cocaine metabolites. United States v. Chodara, 29 M.J. 943, 945–46 (A.C.M.R. 1990); but see United States v. Lopez, 37 M.J. 702 (A.C.M.R.  1993) (in a case where accused on AD for several months before given urinalysis, the court, in dicta, questioned the validity of the Chodara decision). 

6. “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.” United States v. Morita, 74 M.J. 116, 120 (C.A.A.F. 2015) (internal quotation marks and alteration omitted). Jurisdiction attaches at 0001 hours of the effective date of the orders to active duty. United States v. Cline, 29 M.J. 83, 86 (C.M.A. 1989).

7. “Jurisdiction continues until ‘active service has been terminated.’” United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019) (quoting Article 2(c), UCMJ, 10 U.S.C. § 802(c)).

8. Jurisdiction extends to conduct committed on authorized “travel” days. United States v. Phillips, 58 M.J. 217, 220 (2003). 

9. Current Rule: Pursuant to the Military Justice Act of 2016, after 1 January 2019, jurisdiction attaches to reservists and national guard members (when in federal service) while on inactive-duty training (IDT) and during the below designated periods. See Article 2(a)(3), UCMJ.

a) Travel to and from the IDT site of the member, pursuant to orders or regulations;

b) Intervals between consecutive periods of IDTs on the same day, pursuant to orders or regulations; and

c) Intervals between IDTs on consecutive days, pursuant to orders or regulations.

10. Old Rule: Prior to 1 January 2019, personal jurisdiction was lacking during the periods between IDTs.  See United States v. Wolpert, 75 M.J. 777 (C.A.A.F. 2016)

11. Jurisdiction for offenses committed outside of orders is limited.  United States v. Morita, 74 M.J. 116, 121-22 (C.A.A.F. 2015) (holding that merely being a member of the Reserve Component was not sufficient to establish that the accused was serving with the armed force for purposes of  jurisdiction, and the accused’s act of forging military orders did not change the analysis).

7. If a member of the National Guard is performing duties in a Title 10 status, a unit or commander in Title 32 status does not have jurisdiction over him.  United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005).

8. Jurisdiction “is an interlocutory issue, to be decided by the military judge, with the burden placed on the Government to prove jurisdiction by a preponderance of the evidence.”  United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002) (holding that medical records submitted on appeal established that the accused had been retained on active duty beyond the expiration of his orders, thus providing subject-matter jurisdiction over the offense); see United States v. Hennis, 79 M.J. 370, 374–75 (C.A.A.F. 2020) (“When challenged, the Government ‘must prove jurisdiction by a preponderance of evidence.’”) (quoting United States v. Morita, 74 M.J. 116, 121 (C.A.A.F. 2015)); United States v. Hale, 78 M.J. 268, 270 (C.A.A.F. 2019) (same).

F. Time of the Offense.

1. United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  Prior to joining the Navy, accused posted sexually explicit image of a child to his Yahoo! email account profile. The image was accessible to other Internet users.  After accused enlisted, he continued to access his account and did not remove the image. NCIS investigators accessed the accused’s profile and viewed the image. Accused was charged and convicted at a court-martial with distributing child pornography.  The C.A.A.F. held that the accused committed an offense while on active duty because he continued to maintain control over his account and others viewed the image he had posted on the account.        

2. Morita, 74 M.J. at 122.  Where the accused was not lawfully called to active duty or performing duty in IDT status at the time of some of his offenses, the court-martial lacked jurisdiction over those offenses under Article 2(a).  The court-martial also lacked jurisdiction under Article 2(c) because the Government did not present sufficient evidence to show either that the accused was “serving with the armed forces” at the time of those offenses or that any of the other criteria under Article 2(c) were met. 

III. Jurisdiction over the Person

A. General Rule:  In general, a person becomes subject to court-martial jurisdiction upon enlistment in or induction into the Armed Forces, acceptance of a commission, or entry onto active duty pursuant to order.  Reid v. Covert, 354 U.S. 1, 23 (1957) (recognizing that it might be constitutional for Congress to authorize court-martial jurisdiction over someone who had only been sent a notice of induction but who had not yet been formally inducted into the military).

B.  Military jurisdiction generally “continues until a servicemember’s military status is terminated by discharge from his enlistment.”  United States v. Poole, 30 M.J. 149, 150 (C.M.A. 1990). In “personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization.” United States v. Christensen, 78 M.J. 1, 4 (C.A.A.F. 2018).  Thus, 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. United States ex rel. Toth v. Quarles, 350 U.S. 11, 14 (1955); United States v. Davis, 63 M.J. 171, 176 (C.A.A.F. 2006); Smith v. Vanderbush, 47 M.J. 56, 59 (C.A.A.F. 1997).   Generally, the three elements enumerated in 10 U.S.C § 1168(a) and § 1169—delivery of a final discharge certificate, a final accounting of pay, and completion of the clearing process required under Service regulations—are necessary to effect a valid discharge. United States v. Christensen, 78 M.J. 1, 4 (C.A.A.F. 2018); United States v. King, 27 M.J. 327, 329 (C.A.A.F. 2018); United States v. Nettles, 74 M.J. 289, 290 (C.A.A.F. 2015).

C.  A discharge, however, will not defeat a retrial ordered by an appellate court. United States v. Stanton, 80 M.J. 415, 418 (C.A.A.F. 2021) (holding that the accused’s discharge during the pendency of the court-martial proceedings did not remove him from the jurisdiction of the court-martial); United States v. Davis, 63 M.J. 171, 177 (C.A.A.F. 2006) (holding that an administrative discharge while a rehearing is pending does not terminate jurisdiction over the accused); Steele v. Van Riper, 50 M.J. 89, 91-92 (C.A.A.F. 1999) (holding that the administrative discharge of the accused  while appellate review of his unexecuted punitive discharge was pending did not affect the power of the convening authority or appellate tribunals to act on findings and sentence).

D. General Provisions:  UCMJ, Art. 2, provides jurisdiction over categories of persons with military status:

1. Enlistees; Inductees; Academy Cadets/Midshipmen.  Note: Reserve Officer Training Corps (ROTC) cadets are generally not subject to the UCMJ absent special facts and a clear tie to Title 10 status.

2. Retirees

a) It is constitutional for courts-martial to exercise jurisdiction over retirees who receive retired pay. United States v. Begani, 81 M.J. 273, 280 (C.A.A.F. 2021) (noting that “Congress can subject retirees to jurisdiction under the UCMJ”); Pearson v. Bloss, 28 M.J. 376, 380 (C.M.A. 1989) (holding that a court-martial could exercise jurisdiction over an Air Force retiree who received retired pay); United States v. Hooper, 26 C.M.R. 417, 420 (C.M.A. 1958); Joseph W. Bishop, Jr., Court–Martial Jurisdiction Over Military–Civilian Hybrids: Retired Regulars, Reservists, and Discharged Prisoners, 112 U. Pa. L. Rev. 317, 356 (1964).

b) United States v. Stevenson, 65 M.J. 639, 643-44 (N-M. Ct. Crim. App. 2006) (noting that a member of the temporary disability retirement list who has waived military disability retired pay in favor of Department of Veterans Affairs disability compensation is still “entitled to pay,” and thus is subject to court-martial jurisdiction pursuant to article subjecting military retirees who are entitled to pay), rev’d on other grounds, 66 M.J. 15 (C.A.A.F. 2008).

c) Headquarters Dept. of the Army (HQDA) approval is required before prosecuting retirees (AR 27-10, para. 5-4 (20 Nov 2020)).  Failure to follow “policy” and obtain HQDA approval to try a retiree, however, is not a jurisdictional error.  United States v. Sloan, 35 M.J. 4 (C.M.A. 1992).

d) The Article 2(d), UCMJ, involuntary recall process required for members of a reserve component, is not required to bring retirees and members of the Fleet Reserve or Fleet Marine Corps Reserve on to active duty in order to have jurisdiction over them. United States v. Begani, 81 M.J. 273, 278-79 (C.A.A.F. 2021); United States v. Morris, 54 M.J. 898 (N-M. Ct. Crim. App. 2001

e) Involuntary Recall Retired Reservist. Morgan v. Mahoney, 50 M.J. 633, 635-36 (A.F. Ct. Crim. App. 1999) (holding that a retired Air Force reserve officer could be recalled to active duty involuntarily to face a court-martial for offenses committed while on AD or IDT).  Retired Reserve Component personnel who are receiving hospitalization from an armed force are subject to court-martial jurisdiction without being recalled to active duty.   

f) United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018) (holding that a court-martial is not prohibited from sentencing a retiree to a punitive discharge or any other authorized punishment).

3. Persons in custody

a) Jurisdiction terminates once an accused’s discharge is ordered executed (or enlistment expires) and he or she is released from confinement.  The remaining suspended punishments are automatically remitted. Steele v. Van Riper, 50 M.J. 89, 91-92 (C.A.A.F.1999) (holding that an administrative discharge of the accused before sentence could be executed had the effect of remitting the bad-conduct discharge and reduction in rank that had been adjudged); United States v. Gurganious, 36 M.J. 1041 (N-M. Ct. Crim. App. 1993), AR 27-10, para 5-22 (20 Nov. 2020), now provides that after any charge is preferred, the DD Form 458 automatically suspends all favorable action and that any discharge certificate is void until the charge is dismissed or the convening authority takes initial action on the case.

b)  An accused that still has military confinement to serve pursuant to a court-martial sentence, is still a military prisoner subject to military jurisdiction under the concept of “continuing jurisdiction,” notwithstanding the execution of his punitive discharge and receipt of the DD Form 214. Fisher v. Commander, Army Regional Confinement Facility, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). This is true even where the prisoner is serving time in a state civilian prison.  The discharge merely terminated his status of active duty, but did not terminate his status as a military prisoner.

4. P.O.W.s

5. In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.  (covered in more detail in Part VI of this outline).  United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012) (holding that an Iraqi national serving with U.S. forces in the field in Iraq was subject to the UCMJ).

6. Reservist Component includes USAR and Army National Guard of the United States (ARNGUS) soldiers in Title 10, U.S. Code, duty status.  (See sections II.E. and IV. of this outline).

C. Inception of Court-Martial Jurisdiction.

1. Enlistment:  A Contract Which Changes “Status.”  UCMJ, Art. 2(b).  The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

2. Involuntary enlistment will deny a court-martial of personal jurisdiction.  United States v. Catlow, 23 C.M.A. 142, 145, 48 C.M.R. 758, 761 (C.M.A. 1974) (reversing the accused’s court-martial conviction after determining that the accused’s enlistment was involuntary); see United States v. Lightfoot, 4 M.J. 262, 263 (C.M.A. 1978) (holding that the accused’s enlistment, which he instigated on the advice of counsel, was not involuntary merely because he enlisted to avoid criminal punishment in a civilian court); United States v. Ghiglieri, 25 M.J. 687, 689-90 (A.C.M.R. 1987) (holding that enlistment that was an alternative to civil prosecution was not the product of coercion and thus the court-martial enjoyed personal jurisdiction).

3. Constructive Enlistment.  The codification of In Re Grimley, 137 U.S. 147 (1890).  UCMJ, Art. 2(c) (as amended in 1979):

Art. 2(c):  Notwithstanding any other provision of law, a person serving with an armed force who—

(1) Submitted voluntarily to military authority;

(2) Met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to 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.”

D. Termination of Jurisdiction over the Person.

1. General Rule:  Discharge Terminates Jurisdiction. “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.” United States v. Christensen, 78 M.J. 1, 4 (C.A.A.F. 2018); United States v. Poole, 30 M.J. 149, 150 (C.M.A. 1990) (noting that “military jurisdiction continues until a servicemember’s military status is terminated by discharge from his enlistment”).

2. Personal jurisdiction over the accused is lost upon the discharge of the accused from the Armed Forces, even after a court-martial is  convened to try the accused. Smith v. Vanderbush, 47 M.J. 56, 59 (C.A.A.F. 1997). In Smith, the Army administratively discharged the accused after a special court-martial had been convened and after the accused had been arraigned, but before trial.  The CAAF held that, by discharging the accused, the Army divested itself of jurisdiction to try the accused.  Id.; United States v. Reid, 46 M.J. 236, 238 (C.A.A.F. 1997) (“A lawful discharge from military service normally terminates the constitutional and statutory power of a court-martial to try such a person, even for offenses allegedly committed prior to the discharge.”).

3. ETS/EAS by itself does not terminate jurisdiction. 

a) R.C.M. 202(a) discussion: “Completion of an enlistment or term of service does not by itself terminate court-martial jurisdiction . . . court-martial jurisdiction normally continues past the time of scheduled separation until a discharge certificate or its equivalent is delivered or until the Government fails to act within a reasonable time after the person objects to continued retention.”

b)  Jurisdiction to court-martial a Servicemember exists despite delay—even unreasonable delay—by the government in discharging that person at the end of an enlistment.  Even if the member objects, it is immaterial—the significant fact is that the member has yet to receive a discharge. United States v. Poole, 30 M.J. 149, 150 (C.M.A. 1990) (holding that “military jurisdiction continues until a servicemember’s military status is terminated by discharge from his enlistment” and the UCMJ “makes no express exception for the situation arising when an unreasonable delay has taken place in accomplishing the discharge”). Caveat:  Unreasonable delay may provide a defense to “some military offenses.”

c) R.C.M. 202(c)(1):  Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken.  Actions by which court-martial jurisdiction attaches include:  apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges. R.C.M. 202(c)(2); See United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006); United States v. Self, 13 M.J. 132 (C.M.A. 1982); This “list of examples is not exclusive, and other definitive actions taken by military authorities ‘with a view to trial’ also trigger attachment of court-martial jurisdiction.” Webb v. United States, 67 M.J. 765, 768 ((A.F. Ct. Crim. App. 2009) (quoting United States v. Self, 13 M.J. 132, 138 (C.M.A.1982)); see, e.g., United States v. Lee, 43 M.J. 794, 797 (N.M. Ct. Crim. App.1995). “Placing a valid legal hold on a member before the effective date of discharge, if done with a view toward trial, is also sufficient.” Webb v. United States, 67 M.J. 765, 768 ((A.F. Ct. Crim. App. 2009) (citing United States v. Williams, 53 M.J. 316, 317 (C.A.A.F. 2000)).

IV. Jurisdiction over the Reserve Component

A. BOTTOM LINE:  Army policy states that Reserve Component soldiers are subject to the UCMJ whenever they are in a Title 10 status:  Inactive Duty Training (IDT), Active Duty for Training (ADT), Annual Training (AT), Active Guard Reserve (AGR), or Active Duty (AD).  See AR 27-10, para. 20-2 (20 Nov 2020). After 1 January 2019, UCMJ jurisdiction exists over reservists during travel to and from the IDT training site of the member, during intervals between consecutive periods of IDTs on the same day, and during intervals between IDTs on consecutive days, pursuant to orders or regulations.  Article 2(a), UCMJ (2019).

1. United States v. Wall, 1992 WL 198418 (A.F.C.M.R. 1992) (unpub.) (jurisdiction existed over the accused who absented himself during second half of training day).

2. United States v. Morse, No. ACM 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim. App. Oct. 4, 2000) pet. for rev. den., 2001 CAAF LEXIS 1021 (Aug. 24, 2001) (accused’s duty was not complete until travel forms were signed even if he did not sign the fraudulent travel forms until after he completed his travel).

3. See also, AR 27-10, Ch. 20 (20 June 2020); Air Force Instruction 51-201; and Paragraph II.E., this outline.

4. United States v. Wolpert, 75 M.J. 777 (CAAF 2016) (no personal jurisdiction over member of reserve component who committed a sexual assault between IDT periods) Military Justice Act of 2016 changed Article 2(a), therefore the Wolpert ruling only applies to crimes committed prior to 1 January 2019.

5. United States v. Hale, 78 M. J. 268 (C.A.A.F. 2019) (finding personal jurisdiction over a reserve officer where the accused committed an attempted larceny by submitting a fraudulent voucher for reimbursement of lodging with family during a period in which he was completing a series of inactive duty training (IDT) work blocks and staying at the home of his in-laws).  The Court explained that determining whether someone is serving with the military requires a “case-specific analysis of the facts” and the focus is on whether the person is subject to the UCMJ at the time of the offense.  The Court concluded that the members were entitled to consider evidence of conduct that occurred while the accused was not subject to court-martial jurisdiction, circumstantial evidence, and the accused’s actions when he was subject to jurisdiction, when determining whether the evidence was sufficient to establish the requisite substantial step towards commission of the offense of attempted larceny.  The Court also noted that the jurisdiction questions in this case would have limited application given Congress’s recent changes to Article 2, UCMJ.

B. UCMJ, Art. 3(d).  Prevents the termination of court-martial jurisdiction over a member of a Reserve Component who violates the UCMJ while in a Title 10 status by the member’s release from active duty or inactive-duty training.   Closes jurisdiction gaps recognized by Duncan v. Usher, 23 M.J. 29 (C.M.A. 1986).

C. Procedures and Restrictions: AR 27-10, Chapter 20 (20 Nov 2020) establishes procedures for taking punitive action (Art. 15, court-martial) against RC Soldiers.

D. Procedure: Involuntary Recall to Active Duty.  UCMJ, Art. 2(d), authorizes a member of a Reserve Component, who is the subject of proceedings under Articles 15 or 30, UCMJ to be ordered involuntarily to active duty for: Article 32 investigations, trial by court-martial, and nonjudicial punishment.

1. Restrictions on the involuntary recall process.

a) A member may only be ordered to active duty by an active component general court-martial convening authority (GCMCA).  UCMJ, Art. 2(d)(4); AR 27-10, para. 20-3 (20 Nov 2020).

b) Unless the order to involuntary active duty was approved by the appropriate Service Secretary, the member may not be:

(1) sentenced to confinement;

(2) forced to serve any punishment involving restriction on liberty except during a period of inactive duty training or active duty; or

(3) placed in pretrial confinement.  UCMJ, Art. 2(d)(5).

c) General and Special Courts-Martial.  Prior to arraignment the reservist must be on active duty.  R.C.M. 204(b)(1). 

d) Summary Courts-Martial.  Can be initiated and tried within the reserve structure and without active duty involvement.  R.C.M. 204(b)(2).  But the summary court-martial officer must be placed on active duty.  UCMJ, Art. 25; R.C.M. 1301.

E. Impact on the National Guard.

1. 32 U.S.C. § 505 - Training in a state status - No federal military jurisdiction.

2. 10 U.S.C. § 672 - Training in a federal status - Guard member is subject to jurisdiction and the reserve jurisdiction legislation’s major provisions.  This includes involuntary recall.  But see United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (holding that a Guard member in Title 10 status was not subject to an inspection under M.R.E. 313 ordered by a commander in Title 32 status and suppressing the positive urinalysis resulting from that inspection).

3. Federal status continues until the guard member has completed his federal service (excluding AWOL time) and federal jurisdiction exists notwithstanding state action to terminating jurisdiction.  United States v. Wilson, 53 M.J. 327 (2000).

V. Procedural Considerations

A. Pleading Jurisdiction.  See, R.C.M. 307(c)(3) Discussion at (C)(iv) and (F).

B. Lack of Jurisdiction:  Raised by Motion to Dismiss, R.C.M. 907.  May be made at any stage of the proceeding.

C. Burden of Proof. Although R.C.M. 905 states that the burden of proof in a motion contesting jurisdiction is a preponderance of the evidence, if contested at trial, the government must prove jurisdiction beyond a reasonable doubt.   

1. United States v. Bailey, 6 M.J. 965 (N.M.C.M.R. 1979); R.C.M. 905(c)(1)(preponderance); R.C.M. 905(c)(2)(B) (burden of persuasion on government); see also United States v. Hoxie, 14 M.J. 713 (N.M.C.M.R. 1982) (burden is preponderance at motions hearing before the military judge, but if raised as a defense during trial the burden is beyond a reasonable doubt).

2. United States v. Marsh, 15 M.J. 252 (C.M.A. 1983) (for “peculiarly military” offenses like AWOL, an accused’s military status is an element of the offense which must be proved beyond a reasonable doubt to the fact finders); see also United States v. Roe, 15 M.J. 819 (N.M.C.M.R. 1983).

3. United States v. Chodara, 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer ordered to AD for training; provided urine sample that tested positive for cocaine pursuant to a urinalysis administered within 36 hours of initiation of AD period. Held: no subject matter jurisdiction because the government failed to prove beyond a reasonable doubt that the accused was subject to the UCMJ at the time he “used” the cocaine).

VI. Jurisdiction over Civilians

A. MEJA.  Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261, Pub. L. No. 106-523.      

1. The MEJA was approved by Congress and signed into law by the President on 22 November 2000.  This legislation does not expand military jurisdiction; it extends federal criminal jurisdiction over certain civilians (DOD employees, contractors, and dependents thereof, and military dependents) accompanying the military overseas.  The implementing regulations went into effect on 3 March 2005.  The Act was amended in 2005 to cover civilian employees, contractors, and contractor employees of any Federal agency “to the extent such employment relates to supporting the mission of the Department of Defense overseas.”  See 2005 NDAA, Sec. 1088. 

2. The Act applies to felony level offenses that would apply under federal law if the offense had been committed within the "special maritime and territorial jurisdiction of the United States."

3. The Act provides for an initial appearance proceeding, which may be carried out telephonically, conducted by a Federal magistrate judge.  At this proceeding, the magistrate will determine if there is probable cause to believe a crime was committed and if the person committed it.  If pretrial detention is an issue, the magistrate will also conduct a detention hearing as required by federal law.  This detention hearing may also be conducted telephonically if the person so requests.

4.The Act directly involves the military in two ways.

a) The Act, depending on implementing rules, may authorize DOD law enforcement personnel to arrest those civilians covered by the Act.

b) The Act entitles those civilians covered by the Act, to representation by military counsel (i.e. judge advocates) at the initial hearing, if determined by the Federal magistrate.

5. MEJA Resources

a) DODI 5525.11 (3 Mar 2005) 

b) DA Message (13 May 2005)

c) OTJAG Info Paper (24 May 2005)

d) AR 27-10, Ch. 26 (11 May 2016)

e) Secretary of Defense Memorandum, “UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations.” (10 March 2008)

f) DoD General Counsel DTM 09-015 (16 February 2010)

6. United States v. Brehm, 691 F.3d 547 (4th Cir. 2012)

a) On Thanksgiving Day 2010, Sean Brehm (a South African), who was a contractor working for a U.S. company on Kandahar Airfield, Afghanistan (KAF), stabbed another contractor in the arm and stomach causing serious injuries.  As part of his “Foreign Service Agreement” Brehm acknowledged and accepted that he may be subject to U.S. federal civilian criminal jurisdiction under MEJA (Military Extraterritorial Jurisdiction Act – passed in 2000 MEJA allows for the prosecution of civilians accompanying American troops overseas), by virtue of the fact that he was accompanying the U.S. Armed Forces outside the United States. 

b) Brehm pleaded guilty in Federal District Court in the Eastern District of Virginia to assault resulting in serious bodily injury. In exchange he was allowed to challenge, through appeal, the jurisdictional basis of the indictment. On appeal Brehm argued: 1) The indictment’s reliance on MEJA was misplaced, in that the statute cannot be applied to him in a manner consistent with the Constitution, and 2) there lacked a sufficient nexus between himself and the United States to support the exercise of criminal jurisdiction. The court rejected Brehm’s arguments and affirmed the district court conviction.

7. United States v. Santiago, 987 F. Supp. 2d 465 (S.D.N.Y. 2013)

a) Defendant was a Marine corporal who had a reputation for playing quick-draw with his weapon and who shot a Navy Corpsman serving with him while on active duty in Iraq in 2008.  Agents from NCIS identified him as the shooter by obtaining statements from an Iraqi interpreter who witnessed the shooting and eventually obtaining a confession.  The Marine Corps never initiated court-martial proceedings against him, and he was allowed to leave the service.  In 2013, the United States Attorney’s Office in New York initiated a prosecution against him under MEJA.  By that time, the interpreter had disappeared.  The interpreter had denied that the defendant had been playing with his weapon prior to the shooting and made other statements favorable to the defendant.

b) The District Judge hearing the case dismissed a count of reckless assault for the shooting based on a due process violation, and allowed to false statement counts to proceed.  The prejudice was the loss of the interpreter’s testimony, which was favorable to the defendant.  The Judge faulted the Marine Corps for recklessly delaying the case,  In a previous order, United States v. Santiago,  966 F. Supp. 2d 247 (S.D.N.Y. 2013), she discussed how her research revealed very few MEJA cases against former military members, and this one appeared to be the only one where the military was aware of the misconduct and could have court-martialed the defendant.  The Judge did not find that the Marine Corps intentionally delayed the case to avoid potential problems Article 31 might cause for the prosecution, and admitted the statements that would have likely been inadmissible under Article 31 because they were not inadmissible under Miranda.  The Judge expressed deep concern, however, that the case was allowed to languish with such obviously time-sensitive issues given the draw-down in Iraq, the significance of the interpreter’s testimony, and the defendant’s looming EAS date.

8. United States v. Bello Murillo, 826 F.3d 152 (4th Cir. 2016)

a) The court employed the Brehm test to uphold the extraterritorial prosecution of a Colombian taxi driver who killed a DEA agent as part of a conspiracy among taxi drivers to rob affluent passengers.  The due process inquiry for extraterritorial prosecutions from Brehm is similar to that in other circuits:  whether there is a sufficient nexus between the defendant and the United States so that applying a particular statute to an accused would not be arbitrary or unfair.  It is not arbitrary to prosecute a defendant in the United States if his actions affected significant American interests regardless of the defendant’s intent.  The court relied on Brehm for the proposition that a prosecution was not fundamentally unfair even if the accused did not know that his victim was an American; the accused must only be on notice that his conduct was criminal and would subject him to prosecution somewhere.

b) An accused has less of a due process concern where his conduct – like the kidnapping and murder in Bello Murillo – is self-evidently criminal, according to Brehm.  The relevant treaty afforded Bello Murillo sufficient notice to satisfy due process, for where a treaty provides “global notice” that certain generally-condemned acts could be prosecuted by any party to the treaty it satisfies due process.

B. Patriot Act.  Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107–56. 

One reason there was a jurisdictional gap prior to MEJA was that the definition of “special maritime and territorial jurisdiction of the United States,” (SMTJ) was interpreted as excluding U.S. military installations overseas.  See United States v. Gatlin, 216 F. 3d 207 (2d Cir. 2000).  In 2001, the Patriot Act amended the definition to include military installations overseas, however the definition excludes anyone already covered by the MEJA.  See 18 U.S.C. § 7. 

C. Court-martial Jurisdiction under Amended Article 2(a)(10), UCMJ. 

1. The 2007 National Defense Authorization Act amended Article 2(a)(10) as follows: 

a) OLD:  In time of war, persons serving with or accompanying an armed force in the field.

b) NEW:  In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

2. “Contingency Operation,” 10 U.S.C. Sec. 101(a)(13):  The term “contingency operation” means a military operation that-

a) is designated by the SECDEF as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force;  or

b) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

c) Current operations in Afghanistan and Iraq clearly meet the definition of “contingency operation” above.

3. The only significant guidance to date on implementation of the amended Article 2(a)(10), UCMJ, is contained in a SECDEF Memorandum dated 10 March 2008.   This memo reserves the authority to prefer charges or initiate NJP against a civilian to the GCMCA level, however each case must be sent up to SECDEF and over to DOJ first, for a decision on whether to prosecute under the MEJA rather than under the UCMJ.  See Memorandum from the Secretary of Defense to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense and Commanders of the Combatant Commands, subject:  UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations (10 Mar. 2008). 

4. United States v. Ali, 70 M.J. 514 (Army Ct. Crim. App. 2011)

a) There has been one civilian tried by court-martial using Article 2(a)(10) jurisdiction.  The accused, a Canadian/Iraqi citizen, pled guilty to three specifications involving possessing, hiding, and lying about a knife (the original charge was aggravated assault for stabbing another interpreter in the chest), and was sentenced to five months confinement (time already served in PTC).  The Judge Advocate General of the Army directed the Army Court of Criminal Appeals to review the case of United States v. Ali pursuant Article 69(d), UCMJ. TJAG requested that the court give attention to two issues: a) whether the court-martial had jurisdiction over the accused pursuant to Article 2(a)(10), UCMJ; and b) whether the court-martial had subject matter jurisdiction over the offenses.  First, the Court held that appellant and his conduct fit within the statutory jurisdictional framework of the UCMJ.  The Court found the offense and trial occurred during a “contingency operation,” finding that the offense and court-martial occurred during Operation Iraqi Freedom, a military operation that meets the definition of “contingency operation.  The Court also found that appellant served “with or accompanied and armed force, finding that appellant had moved with a military operation and his presence was not merely incidental but directly connected with or dependent upon the activities of the armed force or its personnel.  Article 2(a)(10), UCMJ is specifically drafted to limit military jurisdiction over civilians by requiring either a formal declaration of war by Congress or to the existence of “contingency operations” as defined by section 101(a)(13), Title 10.  Moreover, jurisdiction over civilians is limited to only those civilians who are “serving with or accompanying an armed force” and that the civilian be “in the field.”  (Practitioner’s note: It would seem that the commander would lose jurisdiction of this case by transferring it to the rear or the cessation of hostilities.  Potentially, even transferring the case to a peaceful portion of Iraq would be fatal to the case.)

b) In July of 2012 CAAF ruled that the court-martial had jurisdiction over Ali under the provisions of Article 2(a)(10), and that the application of 2(a)(10) to Ali did not violate the Constitution “under the circumstances of this case.”  United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012).  Significant to the CAAF’s resolution of the constitutional issues were the facts that Ali was not an American citizen, his crime occurred overseas, and his prosecution occurred overseas.