The unsheathing of a jurisdictional sword: the application of Article 2 to reservists

Introduction

   [T]he rule is fairly clear: there is no jurisdiction
   over a reservist who commits an offense
   when not on active duty or inactive duty
   training (1)

The "rule" was fairly clear, but it is not clear anymore. Last year, the Court of Appeals for the Armed Forces (CAAF) muddied the jurisdictional water with its decision in United States v. Phillips, (2) holding that jurisdiction extends to certain reservists even if they are not on active duty or inactive duty training. How did the court extend jurisdiction? It unsheathed a jurisdictional sword--Article 2(c), Uniform Code of Military Justice (UCMJ) (3)--used by the government to cure defective enlistments, (4) but never before used as a sole basis to establish jurisdiction over reservists.

This article primarily focuses on Phillips and the ramifications it has for jurisdiction over members of the reserve component. Other than Phillips, the jurisdictional front remained relatively quiet during the CAAF's 2003 Term. (5) Nevertheless, this article addresses two additional developments in the area of military jurisdiction: (1) a 2002 change to Army Regulation (AR) 27-10, (6) addressing the validity of post-preferral discharges; and (2) the CAAF's recent decision in United States v. Henderson, (7) finding a jurisdictional defect in the referral process of a capital offense.

Overview of Jurisdiction

This article discusses all three developments within the framework of Rule for Courts-Martial (RCM) 201(b), which essentially breaks down the requirements for court-martial jurisdiction into three categories. (8) First, the offense must be subject to court-martial, i.e., subject matter jurisdiction. (9) Second, the accused must be subject to court-martial jurisdiction, i.e., personal jurisdiction. (10) to Finally, certain procedural requirements must be met: (1) the court-martial must be convened by a proper official; (2) the court-martial personnel must have the proper qualifications; and (3) the charges must be properly referred to the court-martial by a competent authority. (11)

The critical issue in determining court-martial jurisdiction is military status. (12) Both subject matter jurisdiction and personal jurisdiction depend on the military status of the accused. Subject matter jurisdiction focuses on the nature of the offense and the status of the accused at the time of the offense. (13) Personal jurisdiction focuses solely on the accused's status at the time of trial. (14) If the military has both subject matter and personal jurisdiction, the case can proceed to court-martial, provided RCM 201's procedural requirements are also met.

Subject Matter Jurisdiction

Military Status of Reservists: United States v. Phillips

Until Phillips, determining subject matter jurisdiction over reservists' misconduct was somewhat simple: If a reservist was not on active duty status or inactive duty training at the time of the offense, the military did not have subject matter jurisdiction. (15) The basis for this rule is Article 2, UCMJ, which provides a list of all persons subject to the UCMJ. Article 2(a)(1) and Article 2(a)(3) specifically address jurisdiction over reservists:

   (1) Members of a regular component of the
   armed forces, including ... other persons lawfully
   called or ordered into, or to duty in or
   for training in, the armed forces, from the
   dates when they are required by the of the
   call or order to obey it....

   (3) Members of a reserve component while
   on inactive duty training.... (16)

Article 2(a)(1) and Article 2(a)(3), therefore, apply to reservists serving on active duty (AD), active duty training (ADT), annual training (AT) and inactive-duty training. (17)

These two specific clauses are straightforward and determinative in their application to reservists. Article 2(a)(1) establishes military status based on the orders' required starting (reporting) and ending dates. (18) Article 2(a)(3), on the other hand, requires reservists to be "on inactive-duty training" for court-martial jurisdiction to vest. (19) The military, therefore, only has jurisdiction over offenses committed by reservists while on active duty status or during inactive duty training. The CAAF, however, recently stretched Article 2 to also apply to certain reservists about to enter active duty. It unsheathed a seldom-used sword, Article 2(c), the constructive enlistment clause, (20) to establish military status of reservists.

In Phillips, the CAAF affirmed the Air Force Court of Criminal Appeal's (AFCCA) expansion of jurisdiction over reservists to misconduct occurring outside the strict parameters (reporting and ending dates) of the orders requiring reservists to perform duty. (21) Lieutenant Colonel (LTC) Phillips, an Air Force reserve nurse, was ordered to perform her two-week annual training at Wright-Patterson Air Force Base (W-PAFB) from 12-23 July 1999. (22) Her orders authorized her one travel day (11 July) to get to her duty station. (23) On 11 July 1999, she left her home in Pittsburgh, Pennsylvania and traveled to W-PAFB. That evening, after checking into the base government visiting officers' quarters (VOQ), LTC Phillips ate some marijuana brownies she brought with her from home. (24)