Jurisdiction

Under the Uniform Code of Military Justice (UCMJ), jurisdiction refers to the authority of the military justice system to try someone for an offense. It has two main aspects: who can be tried (in personam jurisdiction) and for what offenses and under what circumstances (subject matter jurisdiction)

In Personam Jurisdiction: Who Can Be Tried

The UCMJ applies to specific categories of people. Article 2 of the UCMJ outlines these categories, which include:

• Members of the regular component of the armed forces
• active duty soldiers, sailors, airmen, and Marines)
• Retired members of the regular component of the armed forces
• Members of the reserve component while on active duty or inactive duty training
• Members of the Navy or Marine Corps who have been transferred to the Fleet Reserve list.

Subject Matter Jurisdiction: What Offenses and When

The UCMJ applies to a wide range of offenses, including crimes that would be illegal under civilian law (like theft or assault) as well as violations specific to military order and discipline. Military courts have jurisdiction over these offenses wherever they occur, as long as the accused is someone subject to the UCMJ at the time of the offense.

There are some limitations. For instance, the UCMJ generally doesn’t apply to civilians who have no connection to the military. However, in certain situations, like during wartime, the UCMJ can extend to civilians accompanying the armed forces while deployed, for example Iraq during Gulf-II.

In United States v. Solorio, the Supreme Court reversed itself and decided it is unnecessary to show a “service-connection” between the offense and the offender. The Supreme Court addressed the court-martial jurisdiction over military personnel for crimes committed against civilians. Previously, the O’Callahan v. Parker decision (1969) established the “service-connection” test, requiring a clear military connection for court-martial jurisdiction.

Solorio, an active duty Coast Guardsman, sexually assaulted the daughters of fellow service members. The Court, in overruling O’Callahan, argued that Congress, not the courts, held primary authority for military justice. They emphasized the importance of military readiness and discipline, which could be compromised by serious crimes committed by service members, even against civilians.

By eliminating the “service-connection” test, Solorio broadened the military’s court-martial jurisdiction. This decision prioritized military needs over civilian court systems in handling such offenses.

Key Points to Remember

• Jurisdiction under the UCMJ is about who the military justice system can try and for what offenses.
• It involves two main aspects: in personam (who) and subject matter (what and when).
• The UCMJ applies to specific categories of people, primarily active duty and reserve members under certain conditions.
• The UCMJ covers a broad range of offenses and has worldwide reach for those subject to it.

This rule is what a military defense lawyer should tell you about your personal jurisdiction for court-martial.

If you are in TDRL or PDRL status and receiving medical care from a military hospital, you are subject to court-martial jurisdiction under the UCMJ. The Court of Appeals for the Armed Forces (CAAF) and the Navy-Marine Corps Court of Criminal Appeals (NMCCA) have said this. The Supreme Court has not decided the jurisdictional question. See my article on this here.

If you are in the Navy or Marine Corps Fleet Reserve, you are–currently–subject to court-martial for offenses after or before transfer. This part of the UCMJ has been decided by the Court of Appeals for the Armed Forces (CAAF). The Supreme Court has not definitively answered the question. A recent case, Larrabee, sought Supreme Court review but they denied it.

If you are in a retired status, your military defense counsel should be or should get familiar with the special rules applied to retirees. We have been military defense counsel for many retirees. If you are a regular component retiree, you are subject to court-martial for offenses committed before retirement (even if not discovered until after retirement) and for offenses after retirement.

If you are a Retired Reserve you are not subject to the UCMJ and court-martial.

Article 2, UCMJ, sets out a long list of people in and out of uniform who are subject to the UCMJ and who could then face court-martial for misconduct.

• Active duty.
• Reserves on orders.
• Guardsmen on Title 10 orders (note here that they may be subject to their own state “UCMJ” when not federalized).
• TDRL/PDRL.
• Prisoners, regardless of their having received a DD 214.
• Cadets and Midshipmen.
• Certain civilians “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”
• NOAA and USPHS in certain circumstances.
• Enemy POWs.

Since the Supreme Court case of United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), it has been generally considered that an enlisted person discharged at the end of their commitment is not subject to court-martial, even for crimes committed before discharge. However, there is an interesting article discussed by the writers at Volokh Conspiracy blog which suggests that the Supreme Court got it wrong in Toth. It is however, unlikely that the military would charge someone and it reach the appellate courts for decision.

If you are a retiree, or anyone, being investigated for a violation of the UCMJ, reach out to us as military defense lawyers for a consult.