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

(15.) See generally Harder, supra note 1, at 15.

(16.) UCMJ art. 2(a) (2002)

(17.) Id. See also MCM, supra note 8, R.C.M. 103 discussion.

(18.) United States v. Cline, 29 M.J. 83 (C.M.A. 1989).

(19.) UCMJ art. 2(a)(3) (2002).

(20.) UCMJ art. 2(c). The CAAF acknowledged that Article 2(c) was "primarily enacted to ensure the court-martial jurisdiction would not be defeated by assertions that military status was tainted by recruiter misconduct." United States v. Phillips, 58 M.J. 217,219 (2003). Nevertheless, the CAAF held that Article 2(c) applies to circumstances not involving defective enlistments. Id.

(21.) Phillips, 58 M.J. at 219.

(22.) Id. at 218.

(23.) Id.

(24.) Id. at 219.

(25.) United States v. Phillips, 56 M.J. 843, 845 (A.F. Ct. Crim. App. 2002).

(26.) Id.

(27.) Id.

(28.) Id.

(29.) Phillips, 58 M.J. at 218.

(30.) Id.

(31.) Phillips, 56 M.J. at 845. Jurisdiction over the other two of the offenses, conduct unbecoming an officer and false official statement, was not an issue on appeal. First, she was serving on active duty in accordance with her orders when she solicited the second lieutenant to provide a urine sample. Second, she was performing inactive duty training when she made the false official statement to AFSOI. Id.

(32.) Id.

(33.) Id.

(34.) Id. The service court stated:

   But, her orders provided her a choice. She could have been called to
   duty on the date she was required to start her training, 12 July, or
   she could have exercised her option to take a day of travel and be
   called to duty on 11 July. The appellant chose the latter option.

Id.

(35.) Id.

(36.) Id.

(37.) UCMJ art. 2(c).

(38.) Phillips, 56 M.J. at 846. Note, however, in establishing that LTC Phillips voluntarily submitted to military authority, the service court contradicts its Article 2(a)(1) analysis by emphasizing that "[t]he orders specifically authorized, but did not require, a travel day...." Id.

(39.) Id. at 846-47.

(40.) Id. at 847.

(41.) See United States v. Morse, No. 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim App. Oct. 4, 2000) (unpublished). In Morse, the accused was convicted of attempted larceny and filing false travel vouchers for active duty tours and inactive duty training. At trial he stipulated that "the offenses, if they occurred, were committed while the accused was either on active duty or inactive duty for training." On appeal, however, he claimed that he actually signed the travel vouchers two days after he was released from active duty. Therefore, he argued, the court-martial lacked subject matter jurisdiction. Despite an apparent inconsistency between the dates on the travel vouchers and the parties' stipulations at trial, the AFCCA found the evidence demonstrated that LTC Morse signed the travel vouchers before he was released from active duty and departed the military installation. The AFCCA then made a bold assertion in dicta:

   Finally, even if we were to ignore the overwhelming evidence of
   subject matter jurisdiction noted above, we would still find
   jurisdiction based upon the simple and undeniable fact that the
   appellant signed these forms in his official capacity as a reserve
   officer in the United States Air Force. It was part of his duty
   incident to these reserve tours or training to complete these forms
   with truthful information and that duty was not complete until the
   forms were signed, regardless or whether or not he completed travel
   pursuant to his orders. See Cline. Therefore, it is immaterial if
   the appellant did not sign these forms until after completing his
   travel. He did so in duty status.