Moving towards the apex: recent developments in military jurisdiction

The accused, Petty Officer First Class Huey, served twenty years on active duty in the Marine Corps and the Navy. He was transferred to the Fleet Reserve on 1 August 1982, and then placed on the retired list on 1 January 1989. (37) In 1996, the accused, his wife, and their three adopted children moved from Hawaii to Okinawa, where the accused worked as a Navy civilian employee. Shortly after arriving on Okinawa, he began engaging in forcible sexual intercourse with his teenage daughter several times a week over a nine-month period. Around March 1997, the rapes stopped, but not before the accused's daughter was pregnant with his child. (38) In August 1997, Mrs. Huey requested an early return of dependents for her pregnant daughter and revealed her belief that her husband was molesting their daughter. Following an investigation,the accused was charged, and a court-martial convicted him of rape, forcible sodomy, and indecent assault. (39)

At trial, the military judge denied the accused's motion to dismiss the charges for lack of personal jurisdiction. On appeal, the accused argued that the military judge erred in denying his motion because the exercise of court-martial jurisdiction over him was a violation of constitutional due process under the Fifth Amendment. (40) While he conceded that Article 2(a)(4), UCMJ, and case law subjected retirees to court-martial jurisdiction, the accused, citing United States ex rel. Toth v. Quarles, (41) argued that he had obtained "civilian status" as a factual matter. He argued that it was highly unlikely he would ever be recalled to active duty to defend his country, pointing to his retirement pay as the only remaining connection he had with the military. This de facto civilian status entitled him to all the due process rights available in a civilian courtroom, and it was his contention that trial by court-martial deprived him of those constitutional rights. (42)

The service court quickly dispatched this argument, noting that Toth had been "decided in the infancy of our modern system of military justice." (43) Disagreeing with the accused's characterization of his status as a "civilian," the NMCCA found his likelihood of being recalled to active duty irrelevant, stating that there "is no doubt that a court-martial has the power to try a person receiving retired pay." (44)

While Huey is no new revelation of law, it still contains two points worth noting. First, it reaffirms the fact that retirees from a regular component are forever subject to military jurisdiction. The accused had been off active duty for over fifteen years at the time he was charged with these offenses. It appears that under the circumstances, the case was prosecuted at a court-martial because it was the only option available. (45) Nonetheless, it is clear that military jurisdiction continues to exist over retired members of a regular component even long after they leave active duty. Second, in answering a rather easy jurisdictional question, the NMCCA may have touched upon a deeper issue. When the UCMJ was enacted in 1950, Congress provided for military jurisdiction over civilians in several situations. (46) The first Supreme Court decisions restricting this congressional grant of jurisdiction over civilians were decided almost fifty years ago. (47) The military justice system has undergone significant changes in the interim, and if the Supreme Court were faced with similar situations today, it is entirely possible that the Court would decide these issues differently. In Huey, the accused argued that his de facto civilian status entitled him to "due process rights unavailable to him in a court-martial." (48) As the NMCCA noted, "Given the broad panoply of due process accorded a military accused in our current system of military justice, the general concerns expressed by the U.S. Supreme Court in Toth v. Quarles do not support the appellant's argument." (49) Could not the same Supreme Court that overruled O'Callahan v. Parker agree with the NMCCA's sentiments regarding civilians accompanying the armed forces overseas during peacetime? This is certainly something to consider. (50)