Opinion of the Court
COOK, Judge.
The question before us is whether the accused was subject to court-martial trial. We conclude that he was.
THE FACTS
Accused is a member of the California Army National Guard. As provided by statute1 and regulation,2 with his consent and that of the Governor of California, he was ordered to active duty at Fort Gordon, Georgia, for a period of “21 weeks or upon completion of MOS [Military Occupational Speciality] training but not less than 4 months.” The 21-week period would haVe expired on August 7, 1975,3 but successive extensions were ordered to enable the accused to continue training in a service school to qualify in his enlisted speciality. He succeeded, and was “graduated” from school on September 4.
Two days before graduation, the commanding officer of the company restricted the accused to the company area on a complaint by a fellow reservist, Willie Lovett, that the accused had forged his name to a bank withdrawal slip and had successfully obtained $200 from Lovett’s account.
[415]*415On September 4, the general court-martial authority vacated the amendatory orders providing for accused’s release date, and, in effect retained him on active duty indefinitely. A formal charge was sworn to on September 15th, and on the same day, accused was informed of the offenses charged.
At trial, defense counsel moved to dismiss the charges on the ground the accused was not subject to court-martial jurisdiction. He contended that the initial and amendatory orders were “self-executing”4 so that on the last day of accused’s scheduled release, September 9, he was automatically relieved from amenability to trial by court-martial for any misconduct committed during his active duty. Counsel acknowledged the rule that action initiated, with a view to trial of charges, before the effective date of release from active duty authorizes retention of an accused for completion of court-martial proceedings,5 but he maintained the actions taken in respect to the accused in this case were insufficient to attach jurisdiction. The motion was denied. On review of accused’s conviction by the Court of Military Review, and on this appeal, the argument has been expanded to include contentions that the initial order was improper because it did not provide for a specific period of time for active duty training, as required by paragraph 7a (9), AR 135-200, c. 4 (13 June 1967), and that the amendatory orders were improper, with the result that no action with a view to trial had been taken prior to accused’s effective date of release from active duty.6
VALIDITY OF THE INITIAL ORDER
Paragraph 7a (9), supra7 provides that “[ojrders will specify the length of ACDUTRA [active duty for training] . expressed as a period of time (e. g., 12 days, 4 months). The period specified will not include travel time to or from the duty station.” The accused contends that the initial order was fatally flawed because it lacked specificity as to the duration of active duty as mandated by the regulation.
As noted earlier, the order provided for service for a period of “21 weeks or upon completion of MOS training but not less than 4 months.” We read it as setting forth the required training period as explicitly as permitted by the nature of the accused’s commitment. The maximum period was 21 weeks; the minimum was 4 months. The accused could serve less than 21 weeks if he completed his required MOS training at an earlier date, but he could not serve more than that time, without an authorized extension of the period. Thus, while the actual time of service might be some time between 4 months and 21 weeks, it was determinable by an identifiable event essential to accused’s required training and his MOS qualification, and, therefore, conformed to the prescription of the regulation that the period be for the required training time. We conclude, therefore, that the initial order comported with paragraph 7a (9).
VALIDITY OF THE AMENDATORY ORDERS
Retention of a reservist on active duty beyond the date provided in an initial order of call was considered in United States v. Peel, 4 M.J. 28 (C.M.A.1977). We held that upon completion of training and “conferral” of the MOS, a reservist could not be retained on active duty “unless amending orders were sought from state authorities inasmuch as theirs was the sole constitutional and statutory authority to order a national guardsman to active duty.” Id. at 29. As no evidence of explicit or implied consent by the state authorities to the reservist’s [416]*416retention appeared in Peel, we set aside the accused’s conviction of an offense committed after the prescribed date of release from active duty. This case is different.
Appellate defense counsel concede that accused’s commitment to serve on active duty is determinable by “applicable laws and regulations” in effect at his enlistment. A National Guard regulation then in effect required, as a “condition of enlistment,” that a person “without prior military service . . . enter on active duty for training in a Federal status.” Paragraph 2-12, NGR 600-200 (30 March 1973). The accused belonged in this category. The minimum period of training was 4 months; the maximum depended upon the time required for qualification in a MOS. Before the applicant took the enlistment oath, he had to be instructed as to his service requirements. In material part, he was to be informed that if he did not “complete [his] training during the period for which . initially ordered to active duty for training” he “must agree to:
a. Remain on active duty for training for such additional period as is required to complete your training, or,
b. Accept training in an alternate military occupational speciality if offered and remain on active duty for such additional period as is required to complete such training.”
NGB Form 21b (1 Sep 1973). The regulation further required that an executed writing, titled “Acknowledgment of Understanding of Service Requirements,” which sets out the instructions, be attached to the enlistment record. Id., para. 2-12. A photocopy of what trial counsel described as the “original” enlistment contract was admitted into evidence, but the Acknowledgment is not with it. However, in his testimony on the motion to dismiss, the accused acknowledged he had been advised, at his enlistment, that he had to “complete . basic and . . MOS training” before he could return to his reserve unit and be “considered as a civilian.”
Considering the enlistment procedure and the evidence at trial, it may fairly be concluded that the accused and the state authorities anticipated that the time specified in the original order to active duty might not be enough to enable the reservist to complete his training for MOS qualification, and, therefore, they agreed, as part of the enlistment contract, to accept such extensions of time for that purpose as might be deemed necessary by the Army. The anticipation and the agreement are implicit in a provision in the initial order to the effect that the period of active duty could be “extended by proper authority.” Nevertheless, appellate defense counsel maintain that the Army could not extend accused’s training for MOS qualification, without first obtaining his written consent.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
COOK, Judge.
The question before us is whether the accused was subject to court-martial trial. We conclude that he was.
THE FACTS
Accused is a member of the California Army National Guard. As provided by statute1 and regulation,2 with his consent and that of the Governor of California, he was ordered to active duty at Fort Gordon, Georgia, for a period of “21 weeks or upon completion of MOS [Military Occupational Speciality] training but not less than 4 months.” The 21-week period would haVe expired on August 7, 1975,3 but successive extensions were ordered to enable the accused to continue training in a service school to qualify in his enlisted speciality. He succeeded, and was “graduated” from school on September 4.
Two days before graduation, the commanding officer of the company restricted the accused to the company area on a complaint by a fellow reservist, Willie Lovett, that the accused had forged his name to a bank withdrawal slip and had successfully obtained $200 from Lovett’s account.
[415]*415On September 4, the general court-martial authority vacated the amendatory orders providing for accused’s release date, and, in effect retained him on active duty indefinitely. A formal charge was sworn to on September 15th, and on the same day, accused was informed of the offenses charged.
At trial, defense counsel moved to dismiss the charges on the ground the accused was not subject to court-martial jurisdiction. He contended that the initial and amendatory orders were “self-executing”4 so that on the last day of accused’s scheduled release, September 9, he was automatically relieved from amenability to trial by court-martial for any misconduct committed during his active duty. Counsel acknowledged the rule that action initiated, with a view to trial of charges, before the effective date of release from active duty authorizes retention of an accused for completion of court-martial proceedings,5 but he maintained the actions taken in respect to the accused in this case were insufficient to attach jurisdiction. The motion was denied. On review of accused’s conviction by the Court of Military Review, and on this appeal, the argument has been expanded to include contentions that the initial order was improper because it did not provide for a specific period of time for active duty training, as required by paragraph 7a (9), AR 135-200, c. 4 (13 June 1967), and that the amendatory orders were improper, with the result that no action with a view to trial had been taken prior to accused’s effective date of release from active duty.6
VALIDITY OF THE INITIAL ORDER
Paragraph 7a (9), supra7 provides that “[ojrders will specify the length of ACDUTRA [active duty for training] . expressed as a period of time (e. g., 12 days, 4 months). The period specified will not include travel time to or from the duty station.” The accused contends that the initial order was fatally flawed because it lacked specificity as to the duration of active duty as mandated by the regulation.
As noted earlier, the order provided for service for a period of “21 weeks or upon completion of MOS training but not less than 4 months.” We read it as setting forth the required training period as explicitly as permitted by the nature of the accused’s commitment. The maximum period was 21 weeks; the minimum was 4 months. The accused could serve less than 21 weeks if he completed his required MOS training at an earlier date, but he could not serve more than that time, without an authorized extension of the period. Thus, while the actual time of service might be some time between 4 months and 21 weeks, it was determinable by an identifiable event essential to accused’s required training and his MOS qualification, and, therefore, conformed to the prescription of the regulation that the period be for the required training time. We conclude, therefore, that the initial order comported with paragraph 7a (9).
VALIDITY OF THE AMENDATORY ORDERS
Retention of a reservist on active duty beyond the date provided in an initial order of call was considered in United States v. Peel, 4 M.J. 28 (C.M.A.1977). We held that upon completion of training and “conferral” of the MOS, a reservist could not be retained on active duty “unless amending orders were sought from state authorities inasmuch as theirs was the sole constitutional and statutory authority to order a national guardsman to active duty.” Id. at 29. As no evidence of explicit or implied consent by the state authorities to the reservist’s [416]*416retention appeared in Peel, we set aside the accused’s conviction of an offense committed after the prescribed date of release from active duty. This case is different.
Appellate defense counsel concede that accused’s commitment to serve on active duty is determinable by “applicable laws and regulations” in effect at his enlistment. A National Guard regulation then in effect required, as a “condition of enlistment,” that a person “without prior military service . . . enter on active duty for training in a Federal status.” Paragraph 2-12, NGR 600-200 (30 March 1973). The accused belonged in this category. The minimum period of training was 4 months; the maximum depended upon the time required for qualification in a MOS. Before the applicant took the enlistment oath, he had to be instructed as to his service requirements. In material part, he was to be informed that if he did not “complete [his] training during the period for which . initially ordered to active duty for training” he “must agree to:
a. Remain on active duty for training for such additional period as is required to complete your training, or,
b. Accept training in an alternate military occupational speciality if offered and remain on active duty for such additional period as is required to complete such training.”
NGB Form 21b (1 Sep 1973). The regulation further required that an executed writing, titled “Acknowledgment of Understanding of Service Requirements,” which sets out the instructions, be attached to the enlistment record. Id., para. 2-12. A photocopy of what trial counsel described as the “original” enlistment contract was admitted into evidence, but the Acknowledgment is not with it. However, in his testimony on the motion to dismiss, the accused acknowledged he had been advised, at his enlistment, that he had to “complete . basic and . . MOS training” before he could return to his reserve unit and be “considered as a civilian.”
Considering the enlistment procedure and the evidence at trial, it may fairly be concluded that the accused and the state authorities anticipated that the time specified in the original order to active duty might not be enough to enable the reservist to complete his training for MOS qualification, and, therefore, they agreed, as part of the enlistment contract, to accept such extensions of time for that purpose as might be deemed necessary by the Army. The anticipation and the agreement are implicit in a provision in the initial order to the effect that the period of active duty could be “extended by proper authority.” Nevertheless, appellate defense counsel maintain that the Army could not extend accused’s training for MOS qualification, without first obtaining his written consent.
Paragraph 14a, AR 135-200, c. 2 (25 June 1965), refers to extensions of tours of active duty for training. In material part, it provides that trainees enrolled in a service school to obtain proficiency in a technical MOS “may, if the period of ACDUTRA remaining in the ACDUTRA tour is insufficient for completion of the training, have their tours extended in accordance with AR 612-200 [now AR 612-201 (30 June 1972)].” A trainee “must agree in writing to the extension by executing [an] indorsement to the enlistment agreement,” in the form specified in the regulation. Paragraph 14a, AR 135-200 (11 Sep 1964). No indorsement executed by the accused appears in the record.
Accused’s counsel contend that an executed form is “absolutely required”; without it, the accused’s active duty commitment ended on the date of expiration of active duty provided in the initial order. Their argument does not take account of apparent differences of treatment in the regulation of trainees enlisted under the Reserve Enlistment Program of 1963, P.L. 88-110, 88th Cong., and without previous service, as this accused, and trainees on active duty for training as a result of other commitments. We shall consider this circumstance in more detail later. Suffice it here to note that, assuming this part of the regulation applied to accused, his enlistment contract required him to qualify for a [417]*417specified MOS and obligated him to “agree” to remain on active duty for training “for such additional period as is required to complete” his training. As applied to the accused, therefore, the provision that the trainee submit his written consent to an extension of time for training to qualify for his MOS added nothing to his legal obligation to remain on active duty for that purpose and to his previous consent to such extensions of time as might be deemed appropriate by the Army. The requirement of a written consent, therefore, appears not as a necessary condition to retention in the service to complete the MOS qualification, but merely as an administrative measure to obtain recordable evidence of accused’s awareness of the particular additional period of active duty for training.8 We conclude, therefore, that the absence of accused’s written consent, if in fact required by paragraph 14a of AR 135-200, did not invalidate the amendatory orders.
In a second challenge to the validity of the amendatory orders, appellate defense counsel contend that limitations on extensions of training imposed by paragraph 3-23, AR 612-201 (19 Aug 1974), precluded training beyond August 22, 1975, which was prior to any action that could operate to attach jurisdiction over his person. The cited paragraph is captioned, “Disposition of personnel who are unable to complete advanced individual training.” Subdivision a of the paragraph provides for “[a ]cademic recycling ” of a trainee taking a course of more than eight weeks duration, and limits such recycling “to not more than two . of 2 weeks each, only one of which may be permitted in the last 6 weeks of the course.” Counsel note that qualification-for the accused’s MOS required 11 weeks of training and, therefore, he came within this provision. Counting backward from accused’s graduation from school on September 4, they argue that, as both amendatory orders were issued within the last six weeks of school, neither order could extend the period of active duty for more than two weeks. As we construe the provision, however, it does not apply to trainees like the accused.
The regulation governs processing procedures at Army reception stations and training centers. Several classes of persons come under its provisions. One class is that to which the accused belongs, i. e., persons without prior service who entered active duty under the Reserve Enlistment Program of 1963, designated in the regulation as “REP 63 initial ADT personnel”; another consists of enlisted persons “who transit” Examining and Entrance Stations and elements of the U.S. Army Recruiting Command. Id., para. 1-1. Under the regulation, REP 63 personnel cannot
be released to their parent unit without having . . . fulfilled their ADT [active duty for training] commitment as specified by the enlistment contract unless they have been recommended for discharge. . . Fulfillment of [that] commitment occurs when the individual is qualified for the MOS for which he enlisted.
Id., para. 1-4i. This requirement is again stressed in paragraph 3-23. Subdivision c provides as follows:
[418]*418(1) REP 63 initial ADT personnel will be MOS qualified before being released to the ARNGUS or USAR. See paragraph 3-29 c.
Paragraph 3-29e is captioned “Extensions for REP 63 initial ADT personnel.” In material part, it provides as follows:
(1) Commander’s evaluation. Commanders will continually evaluate the individual’s progress and recycle him when appropriate. An individual may be recycled one or more weeks for additional training. In such instance, care will be taken to insure that the individual will complete the course during ADT. If the course cannot be completed during this period, the individual will be retained to complete the course in accordance with his training agreement. The training activity commander will issue amendatory orders extending the individual’s period of ADT for the period required to complete the course of training. ... If for any reason the individual cannot satisfactorily complete the required training in the MOS for which he originally entered on active duty for training, he will be required to train for the purpose of qualifying in an alternate MOS in accordance with his training agreement. Request for training in an alternate MOS will be referred to the appropriate State adjutant general, in case of ARNGUS personnel ... for determination of the alternate MOS for which training is desired.
Considering the separate and detailed treatment of the class of trainees to which the accused belongs, we conclude that he was not within the provisions of subdivision a, as contended by appellate defense counsel, but within subdivision c. Nothing in the latter subdivision limits the number of extensions that may be granted, or the time within which they can be granted. On the contrary, the general command is that persons within that class “will be kept at the training activity unless they are considered untrainable.” Id., para. 3-23c(2). The orders extending the accused’s term of active duty were, therefore, in conformity with this aspect of the regulation.9
ACTION TO ATTACH JURISDICTION
The second of the amendatory orders extended accused’s release date to September 9. Both of the orders were revoked on September 4. The intent of the revocation order is not clear. In view of the limited purpose for which the accused was on active duty, it could not, after attainment of his MOS, retain him indefinitely on active duty, without his consent and the “authorization” of the state reserve authority. United States v. Peel, supra at 29.
At trial, government counsel argued that the revocation order, which was apparently promulgated in response to a formal request by accused’s commanding officer to retain him “pending completion of the investigation” of the charges against him, constituted approval by the GCM authority to preserve jurisdiction previously attached, as provided by paragraph 2-4, AR 635-200 (July 1966).10 Accordingly, we assume for [419]*419the purpose of this appeal that the revocation order had no effect on the earlier extensions of the period of training, with the result that the effective date of release continued to be September 9. The remaining question is whether sufficient action had been taken previous to that date to attach jurisdiction for the purpose of continuing the proceedings against accused.
Military status does not ordinarily terminate automatically at the instant of expiration of a period of prescribed active duty. United States v. Hutchins, 4 M.J. 190 (C.M.A.1978). A “self-executing” order, however, effects a change of status at the exact time provided in the order. United States v. Smith, 4 M.J. 265, 266 (C.M.A. 1978). But, even such an order does not free the individual from military jurisdiction, if before the prescribed time, action on a court-martial charge against him has been taken with a view to trial. Paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition), lists “apprehension, arrest, confinement, or filing of charges” as sufficient evidence of “commencement of action with a view to trial” to allow continuation of military jurisdiction over the individual. The list is illustrative, not exclusive.
In United States v. Smith, supra, two general definitions were propounded by which to assess the sufficiency of action to satisfy the requisites for continuing jurisdiction. The principal opinion noted that the action must be “official ” and of a nature that “authoritatively signaled . [the sovereign’s] intent to impose its legal processes upon the individual.” Id. at 267. The separate concurring opinion posited that the action must be of a kind to provide the accused with “sufficient notice to give rise to legal remedy in the event of a wrong committed in the process of justice.” Id.
The testimony of the accused and that of his commanding officer indicate that in late August, Willie Lovett, a fellow trainee and friend of the accused, “signed a statement saying” that the accused had taken $200 from Lovett’s account in the Georgia Railroad Bank and Trust Company by forging a withdrawal slip in Lovett’s name. On August 29, at the company orderly room, a bank investigator interviewed the accused. The representative showed the accused “a bank withdrawal thing” and obtained from him samples of his handwriting. On September 2, CID agents questioned the accused at their office; when they returned him to the company, they “formally charg[ed] him with these two violations.” Captain Seacord, the company commander, brought the accused into his office. He also informed him of Lovett’s complaint and “restricted him to the company.” A writing entitled, “Limits of Restriction” was signed by Captain Seacord and given to the accused; at the foot of the statement, the accused certified that he understood those limits.
The restriction document defined the company area. It authorized the accused to attend service at Chapel 10 on the post, provided he signed out on leaving and in on returning, with the Charge of Quarters. The accused was also required to sign in and out with the Charge of Quarters during non-duty hours and on weekends; the Charge of Quarters was required to make periodic bedchecks of the accused during the night. The accused was allowed to attend school without escort “because . [he] |went with the other students,” but when he went to mess, he was “escorted back and forth.”
Captain Seacord also informed the accused that if “the handwriting analysis came out positive,” the charges would “probably” be referred to a GCM, and advised him “to get an attorney.” When the accused asked about “get[ting] a discharge [420]*420so I can go home,” he was told he could not “go anywhere until . [Lovett’s] case was resolved.”
The accused was not placed in confinement or under apprehension, but the restraints imposed upon his freedom of movement were unquestionably severe. We entertain no doubt that the Government had “authoratively” imposed “its legal processes upon” him and the he had “sufficient notice” of commencement of legal actions calculated to insure his presence for probable trial by court-martial on the charges lodged by Lovett. We conclude that the actions taken attached jurisdiction over him before the date of his scheduled return to non-active duty status, and sustained continuation of the court-martial proceedings after that date.
The decision of the United States Army Court of Military Review is affirmed.
Judge PERRY concurs.