United States v. Imler

17 M.J. 1021
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 26, 1984
DocketNMCM 83 3124
StatusPublished
Cited by1 cases

This text of 17 M.J. 1021 (United States v. Imler) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Imler, 17 M.J. 1021 (usnmcmilrev 1984).

Opinion

MIELCZARSKI, Judge:

Contrary to his pleas, appellant was convicted by a military judge sitting as a general court-martial of three instances of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. The adjudged sentence extended to forfeiture of $100.00 pay per month for six months and a letter of reprimand. The convening authority approved the findings but reduced the sentence to forfeitures of pay as adjudged. The record was forwarded to the Office of the Judge Advocate General for examination under Article 69, UCMJ, 10 U.S.C. § 869, and the Judge Advocate General has in turn forwarded it for review by this Court pursuant to Article 66, UCMJ, 10 U.S.C. § 866, with attention to be given to the following issues:

I
DOES THE EXISTENCE OF A VOIDABLE ENLISTMENT CONTRACT, COUPLED WITH A REQUEST TO VOID IT BY ONE OF THE PARTIES COMPEL A DIFFERENT RESULT UNDER THE FACTS IN THIS CASE FROM THAT IN UNITED STATES V. JARRELL, 12 M.J. 917 (N.M.C.M.R.1982)?
[1023]*1023II
IN LIGHT OF THE DETERMINATION BY THE MILITARY JUDGE THAT THE GOVERNMENT ALLOWED AN UNREASONABLE AMOUNT OF TIME TO ELAPSE FROM THE ACCUSED’S FORMAL REQUEST FOR DISCHARGE UNTIL HE COMMENCED HIS UNAUTHORIZED ABSENCE, WAS THE DENIAL OF THE DEFENSE MOTION TO DISMISS DUE TO LACK OF IN PERSONAM JURISDICTION CORRECT? UNITED STATES V. DOUSE, 12 M.J. 473 (C.M.A. (1982); UNITED STATES V. HUTCHINS, 4 M.J. 190 (C.M.A.1978).

Appellant has in turn made two assignments of error which incorporate those issues. We find the court-martial possessed in personam jurisdiction over appellant and affirm. The first issue as posed by the Judge Advocate General of the Navy is answered in the negative; the second issue is answered in the affirmative. Our reasons follow.

Appellant enlisted in the regular component of the United States Navy on 11 December 1980 for a period of four years. His enlistment options provided for an occupational specialty school guarantee in the “OJ” category. Under the guarantee appellant was promised assignment to a class A school in AE, AW, EM, or IC fields as the needs of the Navy required. Continuing participation in the guaranteed program was conditioned on appellant remaining eligible for the required security clearance and the physical qualifications of the program, and provision was made for rechecking these qualifications during recruit training and subsequent schooling. Ineligibility would result in reassignment or separation at the option of the Navy if it was caused by factors known by appellant and not included in his application for enlistment. On the other hand, ineligibility resulting from factors not known to him or disclosed by him in his enlistment application gave appellant the options of requesting reassignment to another program in which a vacancy existed and for which he was qualified or an honorable discharge. A final condition of the contract provided that, if the guaranteed program training stopped because of disciplinary reasons or failure to meet the Navy’s academic or professional standards during any phase of appellant’s training, he would be reassigned duties as the needs of the Navy required.

On 26 February 1981 appellant began AW (Air) School in Pensacola, Florida. He was found physically qualified for the school, but an examination of appellant’s ears caused medical personnel to be suspicious of his ability to perform flight duties. A notation of such findings was made in appellant’s health record. On 6 March appellant was not able to “pop” his ears during a pressure chamber exercise. A medical examination that same day resulted in appellant being placed on medical hold. The record is not clear but appellant claims that he was also withdrawn from the rolls of AW (Air) School on this date. Appellant immediately initiated the first of what he alleges were numerous request chits to be discharged from the Navy.

On 19 March appellant had an operation to drain his ears. After the operation appellant and two other students in similar circumstances were taken to the senior chief of the command who informed them that appellant’s case had not been decided but that the two other students would be discharged. On 24 March a notation was made in appellant’s medical record that he also had a perforated eardrum. On 2 April medical personnel determined that appellant was not physically qualified for air school and recommended a physical evaluation to determine his fitness for further duty.

Overlapping this medical determination that appellant was not physically qualified for aviation programs was the first of several disciplinary infractions by appellant which resulted in a succession of nonjudicial punishments for him. On 9 March appellant was found in wrongful possession of more than one validated armed forces identification card. He received nonjudicial punishments on 7 May, 29 May, and 14 July [1024]*1024for this offense and several other offenses which postdate the medical determination that he was not physically qualified for aviation programs.

On 1 September 1981 his unit notified personnel detailers in Washington that appellant was dropped from AW (Air) School because of his non judicial punishments and that he was available for reassignment. The message notification did not mention his medical disqualification and omitted any reference to appellant’s demands for discharge. Thereafter, appellant was transferred to the USS FORRESTAL (CV-59) for duty. Appellant reported to the FORRESTAL where he told several petty officers and a chief that the Navy had breached his enlistment contract. No action was taken on his complaints. On 16 November 1981 appellant began the first of three unauthorized absences which resulted in this general court-martial.

The statutory basis of court-martial jurisdiction over active duty members of the armed forces is contained in Article 2 of the Uniform Code of Military Justice, 10 U.S.C. § 802. The amended Article 2, applicable in appellant’s case, provides that members of a regular component of the armed forces are subject to court-martial jurisdiction. Article 2(a)(1), UCMJ. The oath of enlistment, when taken by a person who has the capacity to understand the significance of enlisting and who is voluntarily enlisting, effects a change of status from civilian to member of the armed forces and confers valid court-martial jurisdiction. Article 2(b), UCMJ. In addition the Article provides that, notwithstanding any other provision of law, a person serving with the armed forces who submitted voluntarily to military authority, met the mental competency and minimum age qualifications required by statute at the time of voluntary submission to military authority, received military pay or allowances, and performed military duties is subject to court-martial jurisdiction until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. Article 2(c), UCMJ.

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Bluebook (online)
17 M.J. 1021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-imler-usnmcmilrev-1984.