Moving towards the apex: recent developments in military jurisdiction

Introduction

   "A court-martial always has jurisdiction to
   determine whether it has jurisdiction." (1)

Military jurisdiction has undergone significant changes since the enactment of the Uniform Code of Military Justice (UCMJ) fifty-three years ago. Although the current list of persons subject to military jurisdiction found in Article 2, UCMJ, has not changed substantially from the original Article 2 language of 1950, several watershed events have significantly altered the jurisdictional landscape of today. For example, Supreme Court decisions in the 1950s clarified and limited the grant of jurisdiction over civilians that Congress had initially extended to the military. (2) In 1969, the Supreme Court ushered in the service-connection era with its decision in O'Callahan v. Parker, (3) only to reverse itself eighteen years later in United States v. Solorio. (4) Reacting to obvious shortcomings in jurisdiction over Reservists, Congress passed legislation in 1986 that would subject Reservists "in Federal status to the same disciplinary standards as their regular component counterparts." (5) More recently, at the end of 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA), (6) extending federal jurisdiction over U.S. civilians accompanying the armed forces overseas.

So what will be the next historical milestone to alter the jurisdictional landscape in the military? Time will tell, but some noteworthy changes this past year may have moved us nearer to the apex of the next watershed event than many realize. The Court of Appeals for the Armed Forces (CAAF) had its hand in settling a few minor jurisdictional issues, refining the law regarding court-martial jurisdiction. The service courts took on several interesting issues, addressing areas such as fraudulent discharges and reserve jurisdiction. Perhaps the most telling (but thus far, least talked-about) new development is a provision in the 2003 National Defense Authorization Act calling for a model state code of military justice and a model state manual for courts-martial. (7)

This article discusses the significant changes in military jurisdiction in 2002. The first part addresses the cases decided by the CAAF and the various service courts, while the second part discusses the recent congressional amendment to 32 U.S.C. [subsection] 326-333 found in the 2003 National Defense Authorization Act.

Court-Martial Jurisdiction

Rule for Courts-Martial (RCM) 201(b) lists five requirements for a court-martial to have jurisdiction. Those are: (1) the court-martial must be convened by a proper official; (2) the court-martial must be properly composed with respect to the number and qualifications of the members and the military judge; (3) the charges must be properly referred to the court-martial by a competent authority; (4) there must be jurisdiction over the accused; and (5) there must be jurisdiction over the offense. (8) The first part of this article is divided into three sections, with each section addressing a different jurisdictional element. The first section discusses a recent CAAF decision focusing on the second element listed above, proper court-martial composition. The second section discusses three opinions touching on the fourth element, jurisdiction over the accused, otherwise known as personal jurisdiction. The final section discusses two opinions addressing the fifth element, jurisdiction over the offense, or subject-matter jurisdiction.

A Properly Composed Court-Martial: Substantial Compliance Revisited

The second element needed to perfect court-martial jurisdiction is a properly composed court. Rule for Courts-Martial 201(b)(2) requires that the court-martial be composed in accordance with the rules addressing the requisite number and qualifications of the members and the military judge. (9) Articles 16 and 25, UCMJ, are two such rules addressing court-martial composition. Article 16 authorizes a court-martial consisting of only a military judge, without any members, if the accused requests. (10) Similarly, Article 25 authorizes enlisted members to serve on courts-martial if requested by an enlisted accused. (11) In 1997, the CAAF addressed the requirements of Article 16 in United States v. Turner. (12) The CAAF held that there had been a violation of Article 16 but that the violation did not require reversal of the conviction. Although the accused, and not the defense counsel, should have made the request for trial by a military judge alone, the court determined that it was a non-jurisdictional procedural error. The court found that under the circumstances, there had been substantial compliance with Article 16. (13)

Three years later, the CAAF extended the substantial compliance doctrine to Article 25 in United States v. Townes. (14) The accused in Townes never personally requested that enlisted members serve on his court-martial panel, as required by Article 25. Rather, the defense counsel made the request on the record in the accused's presence. Nonetheless, the CAAF found "sufficient indication" that the accused had personally requested enlisted members. Just as in Turner, the CAAF held that although there was error, it was not jurisdictional error. (15)