The Army Lawyer | Issue 3 2021View PDF

null Making the UCMJ More Uniform

The 167th Theater Sustainment Command Judge Advocate General section and the Alabama National Guard Trial Defense Service carried out a mock trial. (Credit: SSG Katherine Dowd)

No. 3

Making the UCMJ More Uniform


[I]t will be sufficient that perfect Uniformity should be established throughout the Continent, and pervade, as far as possible, every Corps, whether of standing Troops or Militia . . . [and] that Congress should employ some able hand, to digest a Code of Military Rules and regulations, calculated immediately for the Militia and other Troops of the United States. 1

George Washington’s Sentiments on a Peace Establishment marked his early influence in suggesting a uniform military policy for the United States that contemplated a military organization which would include a well-disciplined militia.2 Much can be drawn from George Washington’s writings, but one transcendent theme is the emphasis toward a disciplined and uniform military force. It is the nature of discipline and uniformity that resurfaced in 1950 when the 81st Congress considered a basic question: How uniform is “uniform”?3 In that year, Congress deliberated the unification of the Armed Forces’ military justice systems. In broad terms, this question became a central and guiding principle spurred by the events of the time. In particular, injustices and inconsistencies with the administration of military justice compelled Congress to embark on an effort to “consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard.”4 History has borne the efficacy of congressional efforts to reform military justice, not only in terms of efficiency, but as a system of justice that provided the accused with statutory protections that exceeded those protections found in state and federal jurisdictions.5 Indeed, the establishment of the Uniform Code of Military Justice (UCMJ) in 1950 marked a historical watershed for the Armed Forces that endures.6

Notwithstanding this military justice milestone, a glaring and intentional omission exists, and that is the jurisdictional separation of the National Guard not in federal service (National Guard) from the UCMJ and, more broadly, the federal military justice system.7 This article examines this decision by exploring the early militia in terms of the U.S. Constitution, the militia’s historical context, the UCMJ’s legislative history, developments toward fostering uniform military justice systems among the states, and the elusive nature of uniformity. This article concludes with a conceptual proposal, referred to as “cooperative military justice,” that draws inspiration from over two centuries of military cooperation between the federal and state governments to train, equip, and modernize the state militias. The conceptual proposal’s primary claim is that, with the administration of military justice, true uniformity requires a National Guard path to the federal military justice system. While the concept’s locus is grounded in military justice, its broad strategic implications draws upon efforts to further integrate elements of the National Guard and Armed Forces into a cohesive Total Force.8

The Militia and the Constitution

The historical development of the National Guard in relation to the Constitution is a necessary foundation to understanding the relative autonomy that states and territories have enjoyed in crafting their own unique military justice systems. This uniqueness is a derivative of federal–state relations and the tensions that surround the role of the militia in contributing to the national defense. This tension was palpable early on during the Constitutional Convention and the ensuing ratification struggle. The debate centered on the intolerable nature of maintaining a standing army that could threaten individual liberty9 with the danger of relying on poorly-trained militia Soldiers who would serve as the primary means for the national defense.10 The ensuing debate led to a compromise that struck the balance between the Federal Government’s need to raise and support armies and the states’ interest in preserving the vestiges of the colonial militia.11 This is apparent with the constitutional power over the national defense. Textually, this information is found within Congress and the Army Clause, where Congress is authorized “[t]o raise and support Armies.”12 Further constitutional power rests with the Militia Clause, which authorizes Congress to organize, arm, and discipline the militia; but, when the militia was not in federal service, control was left to the states. The Militia Clause provides:

The Congress shall have the power . . .

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .13

The Militia and Army Clauses serve as the underlying law that has contributed to the inherent tension that exists between federal and state control over the militia system,14 a tension that had led Congress early on to intervene and begin the slow process of federalizing state militias.

The first attempt to impose federal standards on state militias occurred with the passage of the Militia Act of 1792.15 Significant headwinds from Congress diluted the Act to a set of aspirations left to the control of the states rather than a nationally-focused and funded policy directed at standardization and readiness of the militia.16 Not until passage of the Militia Act of 1903 (commonly referred to as the Dick Act) did Congress redress the shortcomings of the Militia Act of 1792 and interpose its dormant power to organize, direct, and fund the militia.17 The Dick Act provided the much needed overhaul of the militia system and, equally significant, created the first statutory usage of the term “National Guards.”18 The meaningful usage of the term came to bear legal distinction with the passage of the Act of June 15, 1933, where Congress created the National Guard of the United States pursuant to the Army Clause of the Constitution rather than the Militia Clause.19 The selection of Congress’s plenary power20 to raise an army provided the needed authority to confer a new status to the National Guard as a reserve component of the Army, and therein circumvented the constraints the Militia Clause historically imposed on federal power to muster National Guard units for federal service.21 Further, it provided dual status for every guardsman who took an oath to both the federal and relevant state government.22 With the passage of the Armed Forces Reserve Act of 1952, Congress consolidated additional federal power over the National Guard authorizing the President to call guardsman for fifteen days of federal service for any reason—unless the Governor did not consent.23 Finally, dramatic reductions in the standing Army at the end of the Vietnam War, smaller defense budgets, and enduring global commitments forced Congress to assert a major change in U.S. defense policy. That change led to shifting more of the direct burden of national defense to the reserve components to shore up the void of a reduced standing Army.24 The change of defense policy is known as the Total Force concept. It is best captured by then-Secretary of Defense James Schlesinger and his forward-looking memorandum where he stated, the “Total Force is no longer a concept. It is now the Total Force Policy which integrates the Active, Guard, and Reserve forces into a homogenous whole.”25 The Total Force Policy remains one of the most important organizing principles for the national defense and, with the National Guard, has led to its modern significance within the national defense strategy. While forward-looking with integrating the Active, Guard, and Reserve forces, the uniform administration of military justice has not occurred; as an element of the “homogenous whole,” it has remained elusive.

In sum, federal control over state militias has increased dramatically since the founding of the Constitution, with the modern-day establishment fixed as a reserve component of the Armed Forces prepared to defend national interests. A characteristic of federal control is the imposition of standardized and uniform rules for the National Guard to ensure its readiness posture for wartime contingencies.26 It is this trend toward federal control and uniform rules that serves as a platform to reexamine the nature of state military justice systems in the context of the UCMJ and its relationship with the National Guard.

Legislative History of the UCMJ

In testimony before the subcommittee of the Committee on Armed Services in 1949, Major General Kenneth Cramer, who represented the National Guard Bureau and the National Guard Association, pointedly expressed his view that the UCMJ “would not apply to the National Guard [except] in [the] event where the guard were mobilized and inducted, or ordered into Federal service.”27 In later testimony, Major General Cramer objected to language found in the proposed Article 2 that would assert court-martial jurisdiction over Reserve personnel when engaged in inactive duty training.28 He claimed that this article “should not apply to the National Guard except when in Federal Service.”29 His particular objection rested with his claim that the proposed Article 2 would violate the U.S. Constitution’s Militia Clause.30

The non-inclusion of the National Guard within the jurisdiction of the UCMJ resurfaced in the congressional floor debates that same year. In those debates, Senator Spessard Holland posed a question to Senator Estes Kefauver asking whether the bill (the proposed UCMJ) would apply to the National Guard of the several states. Kefauver responded that it would not “unless members of the National Guard are on Federal service.”31 This brief exchange became the beginning and the end as to whether the UCMJ applied to the National Guard. That is, no further discussion occurred in the congressional debates considering the applicability of the UCMJ to National Guard personnel in a non-federal status. Congress recognized National Guard autonomy as it related to the UCMJ in 1956 by codifying military justice provisions where the states and territories held the authority to exercise court-martial jurisdiction over National Guard personnel while in a Title 32 status.32 The consequence and deference of these legislative decisions, and the historical independence that state militias maintained before and after the inception of nationhood, has permitted a high degree of autonomy and authority to the states and territories that make up the National Guard to craft their own military justice systems in a way that has produced variability in their structure, form, and process.33

Efforts Toward Structure and Uniformity

Congress sought to address the lack of structure and uniformity with state military justice systems in 2003 when it required the Secretary of Defense to prepare a Model State Code of Military Justice (Model State Code) and a Model State Manual for Courts-Martial (state MCM) for the National Guard not in federal service.34 The desired outcome for drafting a Model State Code and the state MCM was to propose to the states a common structure and language for military justice within the states and territories.35 The impetus for Congressional action stemmed from a report issued by the Department of Defense (DoD) in 1998 examining military justice in the National Guard.36 The combination of the report and Congressional edict led to efforts in creating a Model State Code and state MCM. The principal agency that led this endeavor was the National Guard Bureau. In 2003, the National Guard Bureau produced a first draft of the Model State Code and a draft model for a state MCM.37 From 2003 to 2005, the draft Model State Code and state MCM received comments from the DoD, Army, and Air Force, with final approval by the DoD in 2005.38 Since that time, states have slowly begun to adopt the Model State Code to replace their respective and dated state military justice systems.39

In addition to the creation and state-by-state adoption of the Model State Code and state MCM, the National Guard Bureau has established a fully functional Trial Defense Service (TDS) for the states, territories, and the District of Columbia for members performing duty under Title 32.40 The importance of establishing this organization is apparent: 1) it provides necessary legal defense services for members of the National Guard; 2) it ensures the professionalism and supervision of defense counsel; and 3) it eliminates perceptions of conflicts of interest. Eliminating conflicts of interest bolsters the integrity of defense services, which is critical for the operations of any fair justice system. Holistically, it also shows efforts the National Guard Bureau has committed to achieve some degree of parallel uniformity with defense services that formally began in 1980 with the Army’s establishment of the U.S. Army Trial Defense Service (USATDS).41

In continuing the National Guard’s structural transformation in relation to military justice, the National Guard Bureau is moving forward to establish, with voluntary participation from the states and territories, a Joint National Guard Trial Judiciary with eight regional circuits.42 The purpose of this state opt-in judicial enterprise is to provide and support military justice services in the supported state or territory as well as to have interstate judicial services that facilitate military justice in the states.43 This effort is significant in scope and coordination. While still in its creation, the establishment of a Joint National Guard Trial Judiciary continues the positive trend toward increasing the capability and professionalization of military justice in the states. While recent efforts to structurally transform and unify the National Guard’s fifty-four military justice systems into a loose, yet coordinated system is ongoing, deficiencies exist that cannot be corrected because of the aforementioned constitutional, statutory, and organizational constraints. The next section highlights prominent areas of non-uniformity and results from a Military Justice Survey administered by the author. The section concludes with a Wisconsin appellate case that showcases the inevitable structural non-uniformity that exists within the present system.

The Elusive Nature of Uniformity

One goal of reforming state military justice systems is to establish consistency, uniformity, and some degree of alignment with the UCMJ. However, a primary barrier to fully achieving this goal is the current effort to modernize state military justice systems on a state-by-state basis. This is problematic because the fifty-four state and territorial jurisdictions that make up the National Guard have different levels of expertise, motives, and resources to support or adopt a uniform system, either in whole or in part. The divergence of state interests leads to non-uniformity that exposes important questions for states to consider. For instance, and to highlight a few notable and known areas: 1) what is the scope of jurisdiction over National Guard Service members;44 2) what is the applicability of the Military Rules of Evidence (MRE); 3) what is the applicability of the Rules for Courts-Martial (RCM); and 4) what appellate courts and procedures (military or civilian) will apply?45 With state appellate courts, will they defer to military precedent when it may conflict with the respective state law or constitution? These important questions fueled the creation of a Military Justice Survey46 to assess the variability with the states’ military justice systems and, equally important, to understand the pace of progress with the adoption of the Model State Code that became available in 2005.47

The Military Justice Survey

The fifty-four states and territories that encompass the National Guard were the subjects of a Military Justice Survey. Eighty-seven percent of states responded to the questionnaire. With the addition of data gathered by the Maryland National Guard, the survey findings revealed substantial variability with the states’ military justice systems.48 For instance, the data revealed that 28 percent of states surveyed (n=54) either adopted the Model State Code or adopted it with changes, while 61 percent of states maintained a system substantively similar to the UCMJ. Seven percent of the states surveyed used a unique military justice code that is substantively dissimilar from the Model State Code and the UCMJ, while two states had no code at all.49 The court-martial appellate process held greater variety with 28 percent employing some form of military appellate court, 9 percent using the respective state supreme court, 29 percent using the respective intermediate appellate court, 28 percent having no codified process, and 3 percent using alternative review methods, to include appealing to the governor or to the state district court.50

The Military RCM were used in 55 percent of the states surveyed (n=47), and in regards to the MRE, 53 percent of states surveyed (n=47) responded in the affirmative that such evidentiary rules were in place in court-martial proceedings. In relation to jurisdiction, 38 percent responded that jurisdiction is determined by duty status, 7 percent require a nexus with one’s military duties, 40 percent require both duty status and a nexus to military duties, and 13 percent asserted that jurisdiction exists regardless of a nexus requirement or one’s duty status.51

Ninety-three percent of the states surveyed (n=47) provided for incarceration upon conviction by court-martial, yet the place where incarceration occurred varied from county jail, city jail, regional jail, state penitentiary, or, in some cases, the respective state statute was silent or the issue had not been resolved.52 Seventy-five percent of the states surveyed (n=43) responded that a court-martial conviction is a criminal conviction under the respective state law, and 57 percent of the states surveyed (n=44) responded that some offenses in the state military code are considered felonies.53 Finally, 94 percent of states surveyed (n=47) maintained non-judicial punishment, with 56 percent (n=44) providing the accused the ability to turn down the forum and request a court-martial.54 In broad terms, the findings from the Military Justice Survey reflect a trend toward some degree of uniformity and consistency, but the data clearly suggests that substantial differences continue to pervade. It is these structural and substantive differences that lend themselves to uncertainty in the law as it relates to military justice in the states.

A Case Study of Uncertainty

An exemplar of military law’s uncertainty in the states and territories is found in Wisconsin v. Riemer.55 In that case, Sergeant First Class (SFC) Riemer was charged with thirteen offenses stemming from his misconduct as a military recruiter while serving in a Title 32 status. In a negotiated plea deal, SFC Riemer was convicted and sentenced to thirty days’ confinement and a bad conduct discharge.56 Sergeant First Class Riemer appealed his sentence, alleging that the military judge misused his discretion during sentencing; and, on due process grounds, the military judge exhibited bias, failed to consider all of the evidence, and assumed facts not in the record.57

The appellate court affirmed the conviction and sentence, but not after closely examining the Wisconsin Code of Military Justice and the role it served to inform the court’s dueling standards of review.58 The court looked closely at language found in Wisconsin Statute section 322.143 where it provided that the “[Wisconsin Code of Military Justice] shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, [with the UCMJ].”59 In determining whether to conduct appellate review in accord with the UCMJ and federal military law, the court reasoned that it is not practical to do so. As a result, the court applied Wisconsin state law rather than federal military law in reviewing sentencing determinations.60 The court’s reasoning in selecting Wisconsin’s standard of review in sentencing rested with the observation that “Wisconsin’s appellate judges lack the military judges’ experience and ‘accumulated knowledge’ necessary to inform such an independent review of sentencing decisions.”61 The court further opined that it is “not practical for Wisconsin appellate judges to attempt to apply federal military law to the review of sentencing discretion.”62 With SFC Riemer’s due process claims, the court reasoned that “[i]f there is an argument that our review of any of these three issues should be based on federal law, we leave that question for another day.”63

The implications of Riemer and the results of the Military Justice Survey illustrate uncertainty in the law and procedure as it relates to military justice in the states. While momentum to modernize military justice is ongoing, the inescapable conclusion is that uniformity will remain elusive because of the nature of state control and autonomy that has historically existed with the National Guard. The broad strategic implications for this non-uniformity run counter to building a cohesive Total Force as envisioned by Secretary of Defense James Schlesinger. That is, maintaining fifty-four different military justice systems that are different from the federal military justice system does not further a homogeneous whole. Indeed, the goal of a cohesive Total Force is frustrated to some degree because the administration of good order and discipline is disparate in that it does not produce efficient and consistent employment of judicial maintenance and operations, which runs counter to uniformity and the Total Force concept. This is the stark challenge that has an answer.

Cooperative Military Justice

Efforts to modernize the National Guard’s military justice systems reflect a broader tension between federal and state relations and the proper scope of Congress’s plenary power to raise an Army juxtaposed with the state’s interest in maintaining a high degree of autonomy with its National Guard. This tension is illustrated in the codification of military justice in Title 10 for the Armed Forces and Title 32 for the National Guard of the United States.64 What has emerged are two statutory layers of military justice. One layer is a robust federal military justice system, and the other, less than robust military justice authorities for the states’ National Guards.65 Merging these layers into a framework that is cooperative, efficient, and seamless in relation to the administration of military justice is timely and needed. This framework is a construct and contemplates a different paradigm that advances “cooperative”66 military justice. To advance this construct to policy, a new legal architecture is needed that ties Title 10 and Title 32 authorities in a way that integrates elements of state military justice into the federal system. There are ten components that highlight the essential features of this construct, and they are identified in turn.

Congress’s Plenary Authority to Raise an Army

The first component rests with Congress’s plenary authority to raise an army coupled with its power to provide for “organizing, arming, and disciplining, the Militia.”67 These constitutional authorities support a policy change that permits the blending of state military justice systems with the UCMJ.68 First, the Army Clause is significant in relation to federal power. In Perpich v. Department of Defense, the Court noted that “[Congress’s] . . . control over [raising and supporting armies and regulating land and naval forces] is plenary and exclusive.”69 Second, the historical context of the Militia Clause is illuminating. The word “discipline” is a focal point, and arguments provided during the Constitutional Convention and the Virginia Ratifying Convention provide persuasive evidence that “Congress maintains the power to regulate courts-martial in the state militia when not in federal service . . . .”70 For instance, during the Constitutional Convention, James Madison remarked that “disciplining” did not include “penalties and courts-martial for enforcing them.”71 Rufus King responded, stating that “[disciplining] must involve penalties and everything necessary for enforcing penalties.”72 In addition, the North Carolina, Virginia, Pennsylvania, and New York ratifying conventions attempted to limit or amend the word “discipline” to a narrow construction confined to a “system of drills” or to fines and punishments directed by state law.73 These and similar amendments failed.74 Consequently, the historical record suggests that Congress held the power to prescribe punishments for the militia not in federal service.75

The Make Rules Clause and the Jurisdictional Implications

The second component rests with Congress’s authority to “make Rules for the Government and Regulation of the land and Naval Forces . . . .”76 The Make Rules Clause is persuasive as to Congress’s plenary authority to shape and expand the scope of the military justice system. Solorio v. United States is instructive.77 There, the Court held that “the requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the Armed Forces at the time of the offense charged.”78 The importance of Solorio is the Court’s expansive reading of the Make Rules Clause that pivots court-martial jurisdiction from service connection to the Service member’s status.79 Service connection required a nexus between a Service member’s military duties and the alleged crimes in order for court-martial jurisdiction to attach. For example, a Service member who committed non-military crimes off the installation against a person who is not affiliated with the military would lack a service-connection for purposes of court-martial jurisdiction.80 In contrast, Solorio turned to the Service member’s status at the time of the offense charged to determine court-martial jurisdiction; this change limited those who are subject to court-martial jurisdiction (civilians and dependents)81 and expanded it. With expanding jurisdiction, the Make Rules Clause and case precedent appear to provide a basis to assert jurisdiction over Service members in a Title 32 status.82 With jurisdiction hinged on Service member status, and the constitutional authorities tipped toward federal supremacy in regulating military affairs, this article does not suggest a mandated military justice system for the states and territories. Rather, cooperation implies some degree of non-encroachment and voluntariness between the federal and state governments, where state control over the essential features of military justice would remain. Stated another way, voluntariness and cooperation are central to a federal pathway.

The Voluntary Pathway to the Federal Military Justice System

The third component is state control of its military justice system and the state’s willingness to structurally align itself into the federal military justice system. The implications of a state’s election of a federal pathway would require state National Guards to employ the substantive and procedural law of the federal military justice system. To achieve that policy end, amending 32 U.S.C. §§ 326 and 327 is necessary. These sections provide for the courts-martial of National Guard not in federal service in terms of composition, jurisdiction, procedures, and convening authorities.83 In relation to the National Guard, the inclusion of federal pathway language for opt-in states would define the jurisdiction of the federal military appellate courts and the federal courts. And, with sources of law, the UCMJ, the Manual for Courts-Martial, and all associated regulations would require employment. The states’ acquiescence to a federally-coordinated and funded path to military justice provides the foundation needed to achieve uniformity between the federal and state military justice systems.

Referral to the Federal Military Justice System

The fourth component with a federal pathway is the convening authority and the court-martial itself. In accordance with 32 U.S.C. § 327 governors, adjutants general, or designees identified in federal and state statute, would continue under this construct to serve as the convening authority and refer charges to one of the three types of federal courts-martial: summary, special, or general.84 State military judges would conform to the competency and certification requirements outlined in Article 26.85 Both the convening authority and military judge would remain dual-hatted; when on State Active Duty (SAD)86 or in the federal system, they would be capable of directing and hearing cases on matters involving misconduct under the state military justice code—including when the misconduct occurred in a Title 32 status. Stated another way, when Soldiers and Airmen are in SAD status, nothing prevents the state National Guard from utilizing its state military code and military justice system. Indeed, the nature of SAD status is non-federal, and—consequently—a nexus to Title 32 jurisdiction as envisioned with this construct is absent. The novelty of this approach is its flexibility. As defined by 32 U.S.C. § 327, when Soldiers and Airmen are in a Title 32 status, a convening authority may refer cases to the federal system; but, it also allows cases that are uniquely non-federal to be disposed of in accordance with state law.

The National Guard Trial Judiciary

The fifth component incorporates efforts to establish the proposed National Guard Trial Judiciary.87 The structural elements to forming a loosely-coupled specialized national court system are numerous; but, as of this writing, and to highlight a few features, it would include eight regional circuits with a regional chief judge, links to the U.S. Army Trial Judiciary,88 training and certification for military judges, and some degree of synchronization with the respective state’s appellate court system.89 The establishment of military trial courts that harmonize military justice across the states is needed. It is at this juncture where a deviation from current state practice is necessary. That is, review by the respective state appellate courts is problematic. As identified in the Military Justice Survey, the type and form of appeal from state to state is eclectic.90 In addition, the substantive and procedural law that the National Guard Trial Judiciary will draw from is as varied as the law that is applied in the respective state.91 Consequently, a different path is needed to achieve uniform application of military law, which is addressed by the sixth component.

The Court of Criminal Appeals

The sixth component envisions appellate review by a Court of Criminal Appeals (CCA), which is the first appellate tier that makes up the military appellate courts.92 Article 66 requires that each Judge Advocate General establish a CCA, which in turn has led to the creation of the Army, Air Force, Navy-Marine Corps, and Coast Guard Courts of Appeal.93 In addition, Article 66 governs the composition, procedures, and jurisdiction of the CCA.94 Jurisdiction is central to putting into force a federal pathway, a trajectory that lands a state court-martial conviction under the auspices of Title 32 and, by extension, within the Army or Air Force CCA. The novelty of state court-martial convictions coming before a CCA is markedly different, but the potential harmony it brings to the predictive nature of military law is profound. This claim is exemplified by Riemer, where the Wisconsin appellate court maneuvered away from applying military law by employing a statutory escape route, and defaulted to the comfortable terrain of state law.95 While the decision is not fatal as to outcome, it reflects the broader challenges of unifying military law around common substantive and procedural language that advances a law-based, predictive jurisprudence. Article 66 provides for appellate review from state court-martial convictions when in a Title 32 non-federal status.96 Amending Article 66 would capture the relative incoherence that presently exists when applying military law in state courts, and free it to navigate in a legal environment that maintains federal uniform rules and procedures that have largely stood the test of time.

The Court of Appeals for the Armed Forces

The seventh component conforms to current statutory appellate review found in Article 67,97 which provides when the Court of Appeals for the Armed Forces (CAAF) shall review the record in cases originating from the CCA.98 As an Article I “court of record,” the CAAF is the second tier within the military appellate structure, and it maintains both mandatory and discretionary appellate review.99 The CAAF’s appellate authority as envisioned with this construct is broadly framed to encapsulate a Title 32 court-martial conviction that has properly been reviewed by the CCA. This is because the CAAF’s appellate review presumes that court-martial convictions reviewed by the CCA are, within the limits found in Article 67, fit for appellate review. Notwithstanding the plain text of Article 67 and for purposes of clarity, clear authorizing language is needed to ensure Title 32 court-martial convictions are within the subject-matter jurisdiction of the CAAF.

The U.S. Supreme Court

The eighth component is the U.S. Supreme Court. It is an Article III court of last resort authorized to exercise subject matter jurisdiction over the CAAF pursuant to statutory authority found under Article 67a and 28 U.S.C. § 1259.100 An exemplar of the Court exercising such jurisdiction is found in Ortiz v. United States.101 In Ortiz, the Court insisted that the “judicial character and constitutional pedigree of the court-martial system enable [the Court to review CAAF decisions].”102 The significance of Ortiz is not so much its holding that the Supreme Court can exercise Article III appellate jurisdiction over the CAAF; but, for purposes of this framework, it highlights the overall structural and procedural flow of how a Title 32 court-martial conviction with tied Title 10 and Title 32 military justice authorities can find itself before the U.S. Supreme Court.

Clemency in the Proposed Construct

The ninth component involves clemency, which is generally understood to mean the power of the executive branch (state or federal) to reduce a criminal sentence. In terms of a court-martial, clemency is defined as “[a]n action to remit or suspend the unexecuted part of an approved court-martial sentence, to include upgrading a discharge and the restoration or reenlistment of an individual convicted by a court-martial.”103 Article 60a establishes the parameters by which the general court-martial convening authority may exercise clemency.104 In addition, Article 74(a) authorizes the Secretary of the Army to “remit or suspend any part or amount of the unexecuted part of any sentence.”105 With the Department of the Army, cases concerning confinement or parole are left to the Army Clemency and Parole Board, which is charged with making determinations on clemency and parole actions. In special cases or denial of parole, the Deputy Assistant to the Secretary of the Army of the Army Review Boards Agency may take final action.106 The significance of this brief review on clemency is to articulate how the envisioned Title 32 court-martial conviction blends with clemency actions administered at the federal level. Logically, any Title 32 court-martial conviction would be a federal conviction and subject to federal law and military regulations.

Amending Article 74

Consequently, and in the interest of ensuring a sense of comity between the states and the federal government, the ninth component suggests amending Article 74. The objective is to authorize the governor of the respective state or territory to submit a non-binding yet persuasive recommendation to the Secretary of the Army on matters concerning clemency or parole in cases of a Title 32 Service member convicted by a court-martial. Such a mechanism is necessary because the governor’s power to exercise clemency and reduce sentences would realize some erosion within the understanding of this framework. Consequently, a non-binding yet persuasive recommendation to the Secretary of the Army is a viable technique to partially restore the governor’s role in clemency actions when it involves a Title 32 court-martial conviction.

A Recognition of Trade-Offs

The tenth component is a recognition of trade-offs. On one hand, governors and adjutants general would lose some control over military justice. On the other hand, states electing a federal pathway would address problems that have plagued the competing federal and state military justice systems. For instance, with this framework, National Guard Service members who engage in misconduct while on active duty—but later returned to state status—could still face federal court-martial proceedings that originated while in a federal active status without being ordered into federal service.107 The jurisdictional nuance that separated federal and state status for purposes of court-martial would be obviated.

Second, the nature of a state court-martial conviction does not bear the same meaning in relation to a federal retirement. For instance, federal retirement hinges on eligibility, and a disqualifying feature of a court-martial conviction for purposes of a federal retirement is a dishonorable discharge, bad conduct discharge, and, in the case of an officer, dismissal.108 State court-martial convictions are not contemplated as a disqualifying conviction because they are not conducted pursuant to the UCMJ.109 While administrative procedures exist to effect an outcome denying military retirement benefits for a state court-martial conviction, the additional burden to do so would become a nullity when incorporating the federal UCMJ into Title 32. Third, American Bar Association Rule 5.5 provides for the multijurisdictional practice and the unauthorized practice of law.110 This rule prohibits “a lawyer from practic[ing] law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction . . . .”111 States have adopted this rule to varying degrees.112 Since state military justice codes are, by definition, creatures of state law, judge advocates not admitted to practice in a respective state would be prohibited, absent an exception, from prosecuting or representing clients subject to any action related to the state military justice code. A Title 32 federal pathway addresses this limitation because the practice of law would become exclusively federal. Consequently, the ability to provide interstate judge advocate services on matters related to military justice would spark a higher degree of comity and utility. Finally, the examples provided are not exhaustive, and a learned practitioner of military justice may quickly identify additional virtues of transitioning to a legal regime that is more seamless and uniform, and at the same time, produces tangible benefits.

Conclusion

George Washington’s normative statement emphasizing uniform rules for the standing army and militia have largely come to pass, yet organizational and statutory non-uniformity continues to pervade. The untethering of Title 10 and Title 32 military justice authorities from their statutory moors is the first step in projecting a new architecture that fosters cooperative military justice. Such a transformation would align with Schlesinger’s prophetic statement that the Armed Forces should work toward a homogenous whole. While substantial gains have been made to modernize state military justice systems, the fact remains that the only true pathway to uniformity that leverages efficiencies and the proper administration of military justice is a federal pathway. Absent a federal pathway, uniformity will remain elusive. TAL


COL Simon is the Staff Judge Advocate for the Minnesota National Guard.


Notes

1. George Washington, Sentiments on a Peace Establishment (May 2, 1783), in 26 The Writings of George Washington from the Original Manuscript Sources, 1745–1799, at 374, 391 (John C. Fitzpatrick ed., 1938).

2. Colonel William L. Shaw, The Interrelationship of the United States Army and the National Guard, 31 Mil. L. Rev. 39, 42–43 (1966).

3. This innocuous question actually held a high degree of importance, with such a question posed in the Cornell Law Quarterly in 1949. The article explored perceived flaws with the proposed uniform code of military justice. Later introduced into the Congressional Record, the authors identified, among other perceived flaws, the inclusion of three Judge Advocate Generals (rather than one) as contrary to the goal of uniformity. 95 Cong. Rec. 269–71 (1950) (letter from Arthur John Keefe and Morton Moskin submitted into the congressional record by Sen. Wayne Morse).

4. Id. at 2.

5. Lieutenant Colonel Theodore Essex & Major Leslea Tate Pickle, A Reply to the Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice (May 2001): “The Cox Commission, 52 A.F. L. Rev. 233, 234 (2002).

6. See 10 U.S.C. §§ 801–946a.

7. The National Guard not in Federal Service is defined as the fifty states and the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. See 32 U.S.C. §§ 326–327.

8. The Total Force concept became policy in 1973 when Secretary of Defense James Schlesinger wrote a memo articulating the long-term strategy of integrating Active, National Guard, and Reserve forces. See Memorandum from Sec’y of Def. to Chairman of the Joint Chiefs of Staff et al., subject: Readiness of the Selected Reserves (Aug. 23, 1973) [hereinafter Schlesinger Memo].

9. Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 184 (1940).

10. Alexander Hamilton reminded those who opposed a standing army of the limitations of fighting a war with untrained men. He classically expressed his view, stating:

Here I expect we shall be told that the militia of the country is its natural bulwark and would be at all times equal to the national defence. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them fell and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance by time, and by practice.

The Federalist No. 25, at 125 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).

11. Jeffrey A. Jacobs, Reform of the National Guard: A Proposal to Strengthen the National Defense, 78 Geo. L.J. 625, 627 (1990).

12. U.S. Const. art. I, § 8, cl. 12.

13. U.S. Const. art. I, § 8, cls. 15, 16. Clauses 15 and 16 are read together as the Militia Clause.

14. See, e.g., Perpich v. Dep’t of Def., 496 U.S. 334 (1990).

15. Samuel J. Newland, The National Guard: Whose Guard Anyway?, 28 Parameters 40, 42 (1988).

16. Michael D. Doubler, I Am The Guard: A History of the Army National Guard, 1636–2000, at 68 (2001) (commenting on the near complete control that states held over their militias with no sanction regime by the federal government to ensure compliance). See also Newland, supra note 15, at 42.

17. Patrick Todd Mullins, Militia Clauses, the National Guard, and Federalism: A Constitutional Tug of War, 57 Geo Wash. L. Rev. 328, 333 (1988).

18. Id. at 333–34. While the Dick Act was transformative, exigencies of the time compelled Congress in 1916 to expand federal control over the National Guard with the passage of the National Defense Act of 1916. Sweeping changes resulted, but of significance, the increase in federal funding, compliance mechanisms, and Presidential authority to draft members of the Guard into federal service furthered its transformation. Jacobs, supra note 11, at 630.

19. Mullins, supra note 17, at 337.

20. See Perpich v. Dep’t of Def. 496 U.S. 334, 344 (1990) (quoting Cox v. Wood, 247 U.S. 3, 6 (1918) that “the plenary power to raise armies was ‘not qualified or restricted by the provision of the militia clause’”).

21. See Wiener, supra note 9, at 208. The Act also restructured the War Department by changing the supervisory agency responsible for the National Guard from the Militia Bureau to the National Guard Bureau. Id. at 209.

22. See Mullins, supra note 17, at 337.

23. Id.

24. Id. at 338.

25. See Schlesinger Memo, supra note 8.

26. See Doubler, supra note 16, at 241.

27. A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the Comm. on Armed Servs. H.R., 81st Cong. 565, 771 (1949) (statement of Major General Kenneth Cramer).

28. The proposed Article 2, UCMJ, Persons subject to the code, read “(3) Reserve personnel who are voluntarily on inactive duty training authorized by written orders.” Id. at 567. The language did not clearly specify Article 2’s jurisdictional scope with the National Guard.

29. Id. at 771–73.

30. Id.

31. 95 Cong. Rec. 226 (1950)

32. Title 32 provides for court-martial jurisdiction over National Guard personnel in a non-federal status. See 32 U.S.C. §§ 326–327.

33. See Colonel Douglas L. Simon, Results of Military Justice Survey (1 Feb. 2020) (on file with author) (unpublished summary of data collected from National Guard Military Justice Survey conducted from 1 December 2019 to 1 February 2020) [hereinafter Military Justice Survey]. See also Major Robert L. Martin, Military Justice in the National Guard: A Survey of the Laws and Procedures of the States, Territories, and the District of Columbia, Army Law., Dec. 2007, at 30, 36.

34. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 512, 116 Stat. 2458, 2537–38 [hereinafter NDAA 2003].

35. Bridget J. Wilson & John A. Carr, Nat’l Inst. of Mil. Just., Analysis of the Model State Code of Military Justice and Model State Manual for Courts-Martial for National Guard Units (2010).

36. See 116 Stat. 2458.

37. See Martin, supra note 33, at 51.

38. Id.

39. The state of Oklahoma became the latest state to adopt the Model State Code of Military Justice on 16 May 2019. See, e.g., Okla. Stat. tit. 44, §§ 800–946 (2019).

40. The Chief, Army National Guard Trial Defense Service, is a National Guard Bureau officer and provides technical supervision, management, and direction for the Regional Trial Defense Teams. See Nat’l Guard Bureau, Reg. 27-12, Judge Advocate Cross Jurisdictional Practice of Law for Legal Defense Services para. 1-1 (15 Sept. 2014) [hereinafter NGR 27-12].

41. Fact Sheet: US Army Trial Defense Service, Army Law., Jan. 1981, at 27.

42. Brigadier General Daniel J. Hill, Assistant to the Chief Couns., National Guard Bureau, NG Trial Judiciary, at slides 5–7 (unpublished PowerPoint presentation) (on file with the author) [hereinafter BG Hill Presentation].

43. Id. slide 13.

44. Military Justice Survey, supra note 33.

45. See Wilson & Carr, supra note 35.

46. Military Justice Survey, supra note 33.

47. Compare Martin, supra note 33, with Military Justice Survey, supra note 33.

48. Lieutenant Colonel Rose M. Forrest, Deputy Staff Judge Advocate, Maryland National Guard State Comparison Chart (July 22, 2019) (unpublished Excel spreadsheet) (on file with author) [hereinafter Maryland Chart].

49. Military Justice Survey, supra note 33, tbl.1.1.

50. Id. tbl.1.2.

51. Id. tbl.1.3.

52. Id.

53. Id.

54. Id.

55. State v. Riemer, 2017 WI App 48, 377 Wis. 2d 189, 900 N.W.2d 326.

56. Id. ¶ 1.

57. Id. ¶ 2.

58. Id. ¶¶ 10–19. Wisconsin adopted and amended the Model State Code of Military Justice. See Wis. Stat. §§ 322.0001–322.144.

59. Riemer, 2017 WI App at ¶ ١٤ (emphasis added).

60. Id. at ¶ 14.

61. Id. at ¶ ١٩.

62. Id.

63. Id. at ¶ 3.

64. The Army National Guard of the United States is defined as the “reserve component of Army all of whose members are members of the Army National Guard.” 32 U.S.C. § 101(5). The Air National Guard of the United States is defined as the “reserve component of the Air Force all of whose members are members of the Air National Guard.” 32 U.S.C. § 101(7).

65. Compare 32 U.S.C. §§ 326–327, with 10 U.S.C. §§ 801–946a (illustrating textually the significant difference between the federal military justice system and the military justice system for the states and territories).

66. The term “cooperative” is used to fix the form of federal–state relationship to a paradigm of federalism recognized broadly from 1930–1960. A central premise to this period is that the functions and powers of government is impossible without it functioning as a whole, and secondly, from a functional perspective, the funding and administration of government encompasses a sharing of responsibilities that is cooperative rather than adversarial. See David B. Walker, The Rebirth of Federalism: Slouching Toward Washington 92–95 (1995).

67. U.S. Const. art. I, § 8, cl. 16 (emphasis added).

68. See Perpich v. Dep’t of Def., 496 U.S. 334, 340–346 (discussing the interpretation of the Militia Clause and Congress’s supremacy over military affairs in relation to calling National Guard units into federal service).

69. Id. at 353 n.27 (quoting Tarbel’s Case, 80 U.S. 397, 408 (1871)).

70. See Wiener, supra note 9, at 214.

71. Id. at 214 n.189 (citing 2 Max Farrand, The Records of the Federal Convention 385 (Max Farrand ed., 1911).

72. Id.

73. Id. at 214–15.

74. Id. at 215 (citing Blair M’Clenahan, Proceedings of the Meeting at Harrisburg, in Pennsylvania, reprinted in 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 546 (Jonathan Elliot ed., 2d ed. 1836); see also Robert R. Livingston, The Debates on the Convention of New York, reprinted in 2 The Debates in the Several State Conventions on the Adoption of t he Federal Constitution 406 (referring to The Debates in the Convention of The State of New York)).

75. See Wiener, supra note 9, at 215 n.191 (discussing the failure of Pennsylvania and New York to recommend an amendment that would limit the word discipline to not include fines, penalties and punishments).

76. U.S. Const. art. I, § 8, cl. 14.

77. 483 U.S. 435 (1987).

78. Id. at 450–51.

79. See O’Callahan v. Parker, 395 U.S. 258, 273–74 (1969) (holding that a service connection to a crime is required for court-martial jurisdiction to exist, overruled by Solorio v. United States, 483 U.S. 435, 450–51 (1987)).

80. Id. at 273.

81. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955) (holding that Congress cannot subject a civilian who was honorably discharged to trial by court-martial for offenses committed while a member of the Armed Forces); Reid v. Covert, 354 U.S. 1, 40–41 (1957) (invalidating a court-martial conviction for civilian dependents for committing capital offenses during peacetime); Kinsella v. United States, 361 U.S. 234, 249 (1960) (invalidating court-martial convictions for civilian dependents for committing non-capital offenses during peacetime). See, e.g., Stephen I. Vladeck, Military Courts and Article III, 103 Geo. L.J. 933, 951–56 (2015) (summarizing Congress’s authority under the Make Rules Clause to subject civilians, dependents, and former Service members to court-martial jurisdiction).

82. Solorio v. United States, 483 U.S. 435, 441–442 (1987) (discussing Congress’s plenary authority to regulate Service member conduct through the Make Rules Clause).

83. See 32 U.S.C. §§ 326–327.

84. See 32 U.S.C. § 327.

85. UCMJ art. 26 (2016).

86. See, e.g., Minn. Stat. § 190.05(5a) (1997). The statute defines state active service as service that “excludes federal active service and federally funded state active service.” The statute defines service under the authority of Title 32 as “‘Federally funded state active service’ [that] means service or duty under United States Code, title 32.” Id. § 190.05(5b).

87. See BG Hill Presentation, supra note 42.

88. See JAGCnet, https://www.jagcnet.army.mil/USATJ (last visited August 10, 2021). The U.S. Army Trial Judiciary had its origins with the implementation of the Military Justice Act of 1968 which established the modern-day military judge. Id.

89. See BG Hill Presentation, supra note 42.

90. See Military Justice Survey, supra note 33, app. 2, tbl.1.2.

91. See generally id. app. 2, tbls.1.1–1.3.

92. UCMJ art. 66 (2017). The CCA is made up of three-judge panels of either officers or civilians. See Ortiz v. United States, 138 S. Ct. 2165, 2171 (2018) (holding that an Air Force military judge who held simultaneous appointments on the Air Force Criminal Court of Appeals (AFCCA) and the Court of Military Commission Review (CMCR) did not violate a federal office holding ban or the Constitution’s Appointments Clause). Id. at 2184.

93. The National Guard of the United States is composed of the Army National Guard and the Air Force National Guard. As a result, the CCAs relevant to this study are the ACCA and AFCCA.

94. UCMJ art. 66 (2017).

95. See State v. Riemer, 2017 WI App 48, 377 Wis. 2d 189, 900 N.W.2d 326.

96. UCMJ art. 66 (2017).

97. The CAAF is made up of five civilian judges appointed by the President to serve 15-year terms. See Ortiz, 138 S. Ct. at 2171.

98. See UCMJ art. 67 (2016). The CAAF’s appellate review is exercised in cases in which the sentence is death, when the service Judge Advocate General orders it sent for review, and by petition from the accused who can demonstrate good cause. UCMJ art. 67(a)(1)–(3) (2016).

99. See Ortiz v. United States, 138 S. Ct. 2165, 2172 (2018).

100. See UCMJ art. 67(a) (2016). See also 28 U.S.C. § 1259.

101. Ortiz, 138 S. Ct. 2165.

102. Id. at 2173.

103. U.S. Dep’t of Army, Reg. 15-130, Army Clemency and Parole Board 33 (19 Nov. 2018) [hereinafter AR 15-130].

104. UCMJ art. 60a (2019); See also Manual for Courts-Martial, United States, R.C.M.1107 (2019) [hereinafter MCM].

105.UCMJ art. 74(a) (2001).

106. See generally AR 15-130, supra note 103, paras. 4-2–4-3.

107. See U.S. v. Wilson, 53 M.J. 327 (2000) (citing MCM, supra note 104, R.C.M. 201(b)(4)–(5) for the proposition that court-martial jurisdiction exists when members of the Guard are in federal service at the time of the offense and the time of trial).

108. 10 U.S.C. § 12740. The statute reads: “a person who (1) is convicted of an offense under the [UCMJ] and who sentence includes death; or (2) is separated pursuant to sentence of a court-martial with a dishonorable discharge, a bad conduct discharge or (in the case of an officer) a dismissal, is not eligible for retired pay.” Id.

109. Id.

110. Model Rules of Pro. Conduct r. 5.5 (Am. Bar Ass’n 2020).

111. Id.

112. See generally CPR Pol’y Implementation Comm., Am. Bar Ass’n, Variations of the ABA Model of Rules of Professional Conduct: Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law (Feb. 20, 2020).

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