Moving towards the apex: recent developments in military jurisdiction

(32.) UCMJ art. 2(a)(6).

(33.) MCM, supra note 1, R.C.M. 204(b)(1) ("[A] member of a reserve component must be on active duty prior to arraignment at a general or special court-martial.") (emphasis added).

(34.) Morris, 54 M.J. at 904. The Commander, Marine Reserve Forces, had requested and received permission from the Secretary of the Navy to recall the accused to active duty, but the NMCCA held that Staff Sergeant Morris did not need to be recalled to active duty for purposes of exercising court-martial jurisdiction. Id. at 902; see Harder, Apr. 2002, supra note 27, at 6 (discussing Morris in greater detail).

(35.) 57 M.J. 504 (N-M. Ct. Crim. App. 2002).

(36.) UCMJ art. 2(a)(4).

(37.) Huey, 57 M.J. at 505. Transfer from the Regular Marine Corps or Marine Corps Reserve to the Fleet Marine Corps Reserve is made at the member's request following twenty or more years of active service. Once transferred, the member begins receiving retainer pay. See 10 U.S.C. [section] 6330 (2000). After the member has completed thirty years of service, the member is then transferred to the retired list of the Regular Marine Corps or the Marine Corps Reserve and begins receiving retired pay. See id. [section] 6331. For jurisdictional purposes, there is no distinction between retired pay and retainer pay. See Morris, 54 M.J. at 899.

(38.) Huey, 57 M.J. at 506.

(39.) Id. at 507.

(40.) Id. at 506.

(41.) 350 U.S. 11 (1955) (holding that it is unconstitutional to subject a former service member to trial by court- martial after he had been discharged from the Air Force).

(42.) Huey, 57 M.J. at 506.

(43.) Id.

(44.) Id.

(45.) The offenses occurred in Okinawa before passage of the Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C.S. [subsection] 3261-3267 (LEXIS 2003). Huey, 57 M.J. at 506. Thus, unless the host nation was willing to prosecute or the accused was charged under a statute having extraterritorial jurisdiction in a federal civilian court, the only other option was a court-martial.

(46.) See UCMJ art. 2(10) (1951) (extending UCMJ jurisdiction to "persons serving with or accompanying an armed force during time of war"); UCMJ art. 2(11) (extending UCMJ jurisdiction to "persons serving with, employed by, or accompanying the armed forces outside the United States"); UCMJ art. 2(12) (extending UCMJ jurisdiction to "persons within an area leased by, reserved or acquired for the United States and under control by a Department Secretary which is outside the United States").

(47.) See, e.g., Reid v. Covert, 354 U.S. 1 (1957); United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

(48.) Huey, 57 M.J. at 506.

(49.) Id.

(50.) The service court set aside the findings and sentence, dismissed the charges, and abated the proceedings in Huey on 29 August 2002, due to the accused's death on 2 July 2002 (ten days before the court decided the case). United States v. Huey, No. 200000995, 2002 CCA LEXIS 186 (N-M. Ct. Crim. App. Aug. 29, 2002).