UNITED STATES, Appellant/Cross-Appellee
v.
Steven S. MORITA, Lieutenant Colonel U.S. Air Force, Appellee/Cross-Appellant
No. 14-5007
Crim. App. No. ACM 37838
United States Court of Appeals for the Armed Forces
Argued October 20, 2014
Decided March 16, 2015
RYAN, J., delivered the opinion of the Court, in which BAKER, C.J., ERDMANN, STUCKY, and OHLSON, JJ., joined.
Counsel
For Appellant/Cross-Appellee: Major Rhea A. Lagano (argued); Lieutenant Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief); Lieutenant Colonel C. Taylor Smith.
For Appellee/Cross-Appellant: Matthew A. Siroka, Esq. (argued); Captain Christopher D. James (on brief).
Military Judge: David Castro
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. United States v. Morita, No. 14-5007/AF
Judge RYAN delivered the opinion of the Court.
The facts in this case are quite complicated and set forth
in detail in United States v. Morita, 73 M.J. 548, 551-53 (A.F.
Ct. Crim. App. 2014). However, the relevant facts and related
legal questions are relatively straightforward. 1 Appellee/Cross-
Appellant (Appellee), a reservist, used his knowledge of the
military travel reimbursement system, and took advantage of his
supervisor’s relative lack of knowledge of the system, to file
false claims of travel reimbursement totaling over $120,000.
Id. at 551-52. To do this, he forged signatures on travel
vouchers and reimbursement documents, as well as travel orders,
active duty orders, and inactive duty training orders. Id. at
552. The question is during what period or periods of his
misconduct was Appellee subject to the Uniform Code of Military
Justice (UCMJ), since there is no jurisdiction over a reservist
1 This Court granted review of a certified issue and a granted issue respectively:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THE COURT-MARTIAL LACKED SUBJECT MATTER JURISDICTION AND WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT THE GOVERNMENT’S MOTION TO SUBMIT DOCUMENTS.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.
2 United States v. Morita, No. 14-5007/AF
who commits an offense when not in a military status -- i.e., on
active duty, inactive duty training, or serving with the armed
forces. See Article 2(a), (c), UCMJ, 10 U.S.C. § 802(a), (c)
(2012); United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003).
First, we agree with the United States Air Force Court of
Criminal Appeals (CCA) that Appellee was subject to court-
martial jurisdiction under Article 2(a), UCMJ, for all offenses
committed during the periods Appellee was on active duty
pursuant to orders that the Government demonstrated were valid
by a preponderance of the evidence. Morita, 73 M.J. at 557-59.
Second, we are faced with a question of first impression --
can a reservist place himself under court-martial jurisdiction
under Article 2(a), UCMJ, by forging either active duty orders
or inactive duty training orders? We answer this question in
the negative. Under Article 2(a)(1), UCMJ, the military justice
system has subject matter jurisdiction over a reservist when
that reservist is lawfully ordered to duty or training in the
armed forces. When a reservist forges his orders, he is not
“lawfully” ordered to duty or training. Id. Nor, with respect
to Article 2(a)(3), UCMJ, is there any evidence that Appellee
actually was “on inactive-duty training” pursuant to the forged
orders. Article 2(a), UCMJ (emphasis added).
Third, could a reservist nonetheless be amenable to court-
martial jurisdiction under Article 2(c), UCMJ, under forged
3 United States v. Morita, No. 14-5007/AF
orders or during other periods, based solely on his capacity as
a reserve officer, without more? Under Article 2(c), UCMJ, and
Phillips we conclude that the answer is no given the facts of
this case. Both require that the reservist be, as a threshold
matter, “serving with” the armed forces at the time of the
misconduct, and meet the other four criteria set forth in the
statute. In this case, the CCA found that the Government did
not establish either that Appellee was serving with the armed
forces during any period not covered by Article 2(a), UCMJ,
jurisdiction or that the other statutory criteria were met for
Article 2(c), UCMJ, jurisdiction. Morita, 73 M.J at 557-58,
560-61.
I. FACTS
The below rendition of facts is taken in large part from
the CCA’s opinion in Morita, 73 M.J. at 551-53. Appellee was a
reservist assigned to work at the Health Facilities office in
the Western Region (HFO-WR). Id. at 551 (referring to the HFO-
WR as the “Health Services Office, Western Region”). As part of
his duties, Appellee traveled frequently to various medical
units within the Western Region to aid in the planning, design,
and development of construction projects for medical facilities.
Id. He was very experienced with the duties and operations of
the HFO-WR because he had been assigned there as an active duty
4 United States v. Morita, No. 14-5007/AF
officer from 1998 until 2003. Id. Notably, he was the only
reservist assigned to the unit. Id.
At the beginning of each fiscal year, Appellee received
authorization to work 120 military personnel appropriation (MPA)
“man-days” on active duty. Id. at 552. Appellee’s supervisor
during the charged time period testified to requesting these 120
MPA man-day periods of active duty. Although the MPA man-day
tours were approved on the AF Form 49s for a “block” of days,
Appellee and his supervisors had an informal agreement that he
could perform 120 days of work intermittently and non-
consecutively throughout the entire fiscal year, rather than
during the block of time specified on the AF Form 49s.
The CCA found that beginning in roughly November 2005 and
continuing until October 2008, Appellee took advantage of his
supervisor’s unfamiliarity with the process of approving
reservist travel orders and vouchers. Id. Some of his trips
during this time period were properly approved. Appellee filed
numerous travel vouchers, however, for expenses he was not
entitled to incur while on these approved trips. Moreover, some
of his travel during this time frame was not authorized. To
accomplish this unauthorized travel, Appellee forged his
supervisors’ signatures on numerous travel orders, travel
5 United States v. Morita, No. 14-5007/AF
vouchers, reimbursement documents, active duty orders, and
records of inactive duty training (IDT). 2
Appellee’s false claims for travel reimbursement totaled
$124,664.03, and he forged 510 signatures or initials on more
than 100 documents. Id. at 553.
2 Specifically, the CCA found:
A lengthy investigation revealed the appellant forged signatures on the following documents: — Department of Defense (DD) Form 1351: Travel voucher used to claim reimbursement for expenses such as lodging, airline tickets, rental cars, mileage, tolls, parking, per diem entitlement, and similar costs. — DD Form 1610: Request and authorization for temporary duty travel of Department of Defense personnel. Used to request, review, approve, and account for official travel. — Air Force (AF) Form 40A: Record of individual IDTs. Used to record a reserve member’s IDT periods for payment and/or points for years of service credit, and determine the member’s fulfillment of the requirements for retention in the Ready Reserve. — AF Form 938: Request and authorization for active duty training/active duty tour. Used to request and authorize Air Force reservist tours of active duty as well as acting as a temporary duty travel order. — AF Form 973: Request and authorization for change of administrative orders. Used to change orders previously issued. — Memorandum for Record (MFR): Various MFRs authorizing exceptions to normal expense limitations, such as exceeding the maximum allowable lodging expense for a given location.
Morita, 73 M.J. at 552-53.
6 United States v. Morita, No. 14-5007/AF
II. CHARGES AND SENTENCE
Appellee was charged and convicted by a panel of officer
members of seven specifications of forgery, one specification of
larceny of government money, and one specification of forgery of
signatures in connection with claims, in violation of Articles
123, 121, and 132, UCMJ, 10 U.S.C. §§ 923, 921, 932 (2012).
Morita, 73 M.J. at 551. The members sentenced Appellee to
dismissal, confinement for twelve months, a fine of $75,000, and
contingent confinement for an additional twelve months in the
event the fine was not paid. The convening authority approved
the sentence as adjudged. Id.
III. CHALLENGE OF JURISDICTION
In his Article 32, UCMJ, 10 U.S.C. § 832 (2012), report,
the investigating officer noted that there were unresolved
issues related to jurisdiction. At trial, Appellee argued that
the Government had not established that he was subject to the
UCMJ under Article 2(a), UCMJ, or Article 2(c), UCMJ, during the
time the offenses were alleged to have occurred. The Government
defended jurisdiction primarily on the grounds that Appellee
made the forgeries in his official capacity as a reserve
officer. To support jurisdiction, the Government also submitted
the three approved applications for 120 MPA man–days for each
year in the charged time frame.
7 United States v. Morita, No. 14-5007/AF
The military judge denied Appellee’s motion to dismiss,
relying on Article 2(c), UCMJ, and United States v. Morse, No.
ACM 33566, 2000 CCA LEXIS 233, 2000 WL 1663459 (A.F. Ct. Crim.
App. Oct. 4, 2000) (unpublished). Tellingly, “[t]he military
judge accepted the Government’s argument that it was not
necessary for the Government to prove [Appellee] committed the
charged misconduct while on active duty orders or while
performing IDTs.” Morita, 73 M.J. at 554. The military judge
concluded that “the appellant’s actions took place in his
capacity as a reserve officer, thereby establishing subject
matter jurisdiction based on this fact alone” and “that subject
matter jurisdiction was established pursuant to the four-part
test in Article 2(c), UCMJ, 10 U.S.C. § 802(c).” Id.
Appellee raised the issue of subject matter jurisdiction
again before the CCA, once more arguing that the Government had
failed to prove that he was subject to the UCMJ during the
charged time frame. In ruling on jurisdiction, the CCA
identified three separate statuses that Appellee occupied during
the charged time frame: (1) valid active duty status obtained
through authorized 120 MPA man-day tours, Morita, 73 M.J. at
558; (2) active duty status or inactive duty status based on
documents that contained forgeries, although there was no
evidence that Appellee actually reported for duty during the
time periods covered by the forgeries, id. at 559; and (3)
8 United States v. Morita, No. 14-5007/AF
reserve status, held during the remainder of the charged time
frame. Id. at 560. The CCA held that the first two categories
conferred subject matter jurisdiction under Article 2(a), UCMJ.
Id. at 559. Regarding the third category, the CCA found that
the record did not show enough facts to conclude that Appellee’s
activities as a reservist rose to the level of “serving with”
the armed forces under Phillips, 58 M.J. at 220, nor to show
that the remaining statutory criteria were fulfilled, and thus
there was no subject matter jurisdiction under Article 2(c),
UCMJ. Morita, 73 M.J. at 560. It rejected the military judge’s
reliance on dicta from Morse, which predicated jurisdiction not
on the plain language of Article 2, UCMJ, but rather on the
commission of any act “related to” military duties. Morita, 73
M.J. at 561-62.
The CCA dismissed two of the seven specifications of the
Article 123, UCMJ, forgery offense for lack of subject matter
jurisdiction and modified the remaining five specifications to
reflect only the forgeries committed while the court-martial had
subject matter jurisdiction. Id. at 568-71. The CCA also
dismissed the larceny offense because it could not determine if
the panel convicted Appellee of two or more larcenies at a time
when the court-martial had subject matter jurisdiction. Id. at
9 United States v. Morita, No. 14-5007/AF
563-64, 568. The CCA reassessed the sentence, imposing
dismissal and confinement for three months. 3 Id. at 567-68, 571.
IV. DISCUSSION
We review questions of jurisdiction de novo. United States
v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F. 2009). “Court-martial
jurisdiction exists to try a person as long as that person
occupies a status as a person subject to the [UCMJ].” Rule for
Courts-Martial 202 Discussion; see also Solorio v. United
States, 483 U.S. 435, 439-40 (1987) (holding that military
status is the sole test of jurisdiction); United States v.
Ernest, 32 M.J. 135, 139-40 (C.M.A. 1991). For reservists,
military status is defined by and dependent upon Articles 2(a)
and 2(c), UCMJ, which prescribe two alternative bases for court-
martial jurisdiction.
Article 2(a), UCMJ, jurisdiction for a reservist hinges on
whether the charged events occurred during active duty status or
IDTs. Article 2(a)(1), UCMJ, applies to reservists “lawfully
called or ordered into, or to duty,” while Article 2(a)(3),
3 The CCA also held that forgery under Article 123, UCMJ, is a lesser included offense of the Article 132, UCMJ, offense -- forgery of signatures in connection with claims. Id. at 564-67. Accordingly, the CCA set aside and dismissed the Article 132, UCMJ, offense on the grounds that the two charges were multiplicious. Id. at 566-67. Additionally, following a review of the post-trial delay issue, the CCA approved “only so much of the sentence as provides for a dismissal.” Id. at 568. 10 United States v. Morita, No. 14-5007/AF
UCMJ, applies to “[m]embers of a reserve component while on
inactive-duty training.” For the purposes of Article 2(a),
UCMJ, jurisdiction, “active duty is an all-or-nothing
condition.” Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986). A
reservist is subject to jurisdiction under Article 2(a), UCMJ,
“‘from the date[]’” of activation, and answerable under the UCMJ
for any offense committed thereafter. United States v. Cline,
29 M.J. 83, 85-86 (C.M.A. 1989). However, “Article 2(a)(1) does
not delineate how a person is lawfully called to active duty for
purposes of court-martial jurisdiction.” Ernest, 32 M.J. at
139. While Article 2(a)(3), UCMJ, has not been the subject of
much analysis, little analysis is required to conclude that the
operative statutory language refers to, and thus is limited to,
a “member[] of a reserve component” “while on inactive-duty
training.” See Robinson v. Shell Oil Company, 519 U.S. 337, 340
(1997) (“Our first step in interpreting a statute is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the
case. Our inquiry must cease if the statutory language is
unambiguous . . . .”). Second, Article 2(c), UCMJ, while not
referencing reservists at all, extends jurisdiction
“[n]otwithstanding any other provision of law” to “a person
serving with an armed force” who “(1) submitted voluntarily to
military authority; (2) met the mental competency and minimum
11 United States v. Morita, No. 14-5007/AF
age qualifications . . . at the time of voluntary submission to
military authority; (3) received military pay or allowances; and
(4) performed military duties.” “The phrase ‘serving with’ an
armed force has been used to describe persons who have a close
relationship to the armed forces without the formalities of a
military enlistment or commission.” Phillips, 58 M.J. at 220;
see also United States v. McDonagh, 14 M.J. 415, 417 (C.M.A.
1983) (noting that Article 2(c), UCMJ, incorporated the
“constructive enlistment” concept this Court previously employed
when there was a formal defect in enlistment but the individual
served with an armed force). But meeting that threshold
criterion of “serving with” does not obviate the need to satisfy
the additional statutory requirements, set forth in subsections
(c)(1)-(4), which include, inter alia, receipt of military pay
or allowances, and performance of military duties. United
States v. Fry, 70 M.J. 465, 469 (C.A.A.F. 2012).
When challenged, the Government must prove jurisdiction by
a preponderance of evidence. United States v. Oliver, 57 M.J.
170, 172 (C.A.A.F. 2002). The CCA noted that the record
contains three AF Form 49s establishing that Appellee was
approved to perform MPA active duty tours from November 14,
2005, to March 14, 2006; December 1, 2006, to March 20, 2007;
and October 1, 2007, to January 28, 2008. Morita, 73 M.J. at
557-58. Those were the dates for which he was actually credited
12 United States v. Morita, No. 14-5007/AF
and compensated, and Appellant was not charged with forging the
AF Form 49s that approved his MPA tours. Id. at 559 n.11. The
CCA held that the three AF Form 49s introduced at the trial
level showing that Appellee was properly approved to perform
three 120 MPA man-day tours constituted sufficient proof that
Appellee was subject to court-martial jurisdiction under Article
2(a), UCMJ, for those three time periods. Id. at 557-58. The
CCA found that the record as to his military status and
performance of duties was “incomplete” for the remainder of the
charged time frame. Id. at 558.
We agree that the AF Form 49s established the dates of
Appellee’s active duty service, irrespective of any informal
arrangement made to permit him to work on other days for which
he was not compensated and to which the AF Form 49s did not
refer. Cf. Cline, 29 M.J. at 87 (finding that the appellant was
under court-martial jurisdiction on a date for which he was
receiving pay regardless of the time at which he actually
reported). Appellee was lawfully in an active duty status, and
subject to the UCMJ, pursuant to Article 2(a)(1) for offenses
committed during the three approved MPA tour periods.
We do not agree that Appellee was otherwise subject to the
UCMJ under Article 2(a), UCMJ, during the remaining time frames.
The CCA noted that “[i]n its effort to prove [that] [Appellee]
committed forgery . . . the Government introduced a limited
13 United States v. Morita, No. 14-5007/AF
number of documents that also contained evidence of [Appellee]’s
military status.” Morita, 73 M.J. at 558; supra note 2. These
documents were primarily purported records of IDTs. Morita, 73
M.J. at 558. The CCA determined that, regardless of whether
they were forged, these documents showed Appellee was in
military status during seven time frames under Article 2(a),
UCMJ, in addition to the three 120 MPA man-day tours. 4 Id.
The CCA stressed that, other than the MPA periods of active
duty, and the forged orders, there was no other evidence
presented for the purpose of establishing Appellee’s military
status throughout the charged time periods. Id. Moreover, it
concluded that it did not matter if he actually performed
military duties in conjunction with forged orders, as “Article
2(a), UCMJ, conditions subject matter jurisdiction on the
member’s official status at the time of the offenses. It does
not concern itself with how the member got into that status or
whether he was doing official Government business pursuant to
that status.” Id. at 559.
4 These documents purported to show that Appellee was on paid active duty training or IDTs for the following time frames: September 10, 2007, to September 12, 2007; February 11, 2008, to February 15, 2008; February 18, 2008, to February 22, 2008; February 25, 2008, to February 26, 2008; September 8, 2008, to September 12, 2008; September 15, 2008, to September 19, 2008; and September 22, 2008, to September 26, 2008. Morita, 73 M.J. at 559. 14 United States v. Morita, No. 14-5007/AF
We are left to conclude, therefore, that the CCA based
Article 2(a), UCMJ, jurisdiction for these additional periods on
the mere fact of forged orders, without more. While no prior
case from this Court establishes whether forged orders to active
duty or to IDTs may place a reservist within Article (2)(a),
UCMJ, we conclude that forged orders do not place a reservist in
such a status.
Article 2(a)(1), UCMJ, requires that a member be “lawfully
called or ordered” to active duty. A forged order to active
duty has no legal effect on the duty of the reservist to report
to active duty. Cf. United States v. Harrison, 5 M.J. 476, 480
(C.M.A. 1978) (“In the present case, there is no doubt as to the
invalidity of the appellant’s original enlistment contract
[because he was underage] and its lack of legal effect to change
his status from civilian to sailor.”); Ryan v. Barkley, 342 F.
Supp. 362, 364-65 (E.D. Pa. 1972) (finding that an active duty
order issued contrary to the Marine Corps’ regulations was void
and granting a preliminary injunction staying activation of the
order). Indeed, a forgery is the antithesis of a lawful order.
Cf. United States v. Watson, 69 M.J. 415, 417 (C.A.A.F. 2011)
(explaining that a “void administrative discharge, such as one
obtained by fraud,” has no legal effect and does not terminate
court-martial jurisdiction). Further, Article 2(a)(3), UCMJ,
extends jurisdiction over members of the reserve component
15 United States v. Morita, No. 14-5007/AF
“while on inactive-duty training.” The forged orders did not in
fact place Appellee “on inactive-duty training,” and the record
does not show that he performed IDT training pursuant to the
forged orders during any of the periods referenced above.
Morita, 73 M.J. at 558.
Nor can the understandable policy concerns detailed by the
CCA be dispositive of the legal question before us. That only
reservists who meet the statutory requirements are subject to
the UCMJ reflects Congress’s determination that for other
misconduct they are subject to the jurisdiction of the civilian
courts. See Phillips, 58 M.J. at 219-20 (“‘[Article 2(c)] is
not intended to affect reservists not performing active service
or civilians.’” (quoting S. Rep. No. 96-197, at 122-23 (1979)));
see also Morita, 73 M.J. at 560-61. While this may deprive the
military of jurisdiction over reservists who fraudulently
obtained orders through forgery and benefited from them in some
instances, they may be prosecuted by a U.S. Attorney under any
one of several federal criminal and civil statutes and subjected
to both criminal sanction and civil forfeitures upon conviction.
See, e.g., False Claims Act, 31 U.S.C. §§ 3729-3733 (imposing
liability for defrauding government programs); False Statements
Accountability Act of 1996, 18 U.S.C. §§ 1001, 1515, 6005, 28
U.S.C. § 1365 (imposing liability for false statements or
representations in connection with government matters).
16 United States v. Morita, No. 14-5007/AF
Congress is understandably chary of the exercise of military
jurisdiction over civilians unless they are, in fact, in a
military status under Article 2, UCMJ. See Willenbring v.
Neurauter, 48 M.J. 152, 157-58 (C.A.A.F. 1998) (noting that the
military has no court-martial jurisdiction over former
servicemembers who have severed all ties with the military and
are not serving with an armed force); cf. United States v.
Denedo, 556 U.S. 904, 912 (2009) (stating that “it is for
Congress to determine the subject matter jurisdiction of federal
courts,” including Article I courts). We do not think that a
forged order, without more, is sufficient to subject a reservist
not in an actual military status to military jurisdiction under
Article 2(a), UCMJ. Cf. Solorio, 483 U.S. at 439.
This leaves us to consider whether Appellee was nonetheless
subject to military jurisdiction under Article 2(c), UCMJ, for
any period during which forged orders purported to place him in
military status or any period, excepting the IMA tour days,
during which he was subject to military jurisdiction under
Article 2(a), UCMJ, during the charged offenses. The threshold
consideration for this analysis is the phrase “serving with,”
Article 2(c), UCMJ, and it “has been used to describe persons
who have a close relationship to the armed forces without the
formalities of a military enlistment or commission.” Phillips,
58 M.J. at 220 (citations omitted).
17 United States v. Morita, No. 14-5007/AF
Appellant was not subject to jurisdiction under Article
2(c), UCMJ, during periods for which the CCA found that the
Government did not proffer sufficient facts to show Appellee was
“serving with” the armed forces. Morita, 73 M.J. at 560. These
include the periods during which Appellee may (or may not) have
performed MPA make-up time, the time during which Appellee was
“under” forged orders and may, or may not have had any contact
with the military at all, 5 and other times for which there is no
documentation -- forged or otherwise -- showing military status.
The CCA distinguished Appellee’s case from Phillips, in which a
reservist’s criminal conduct took place while on base, on the
travel day before she began her annual active duty training
tour, and while receiving military pay and credit towards
retirement. Morita, 73 M.J. at 560. In this case no such
evidence was produced for any of the remaining time periods at
issue. Id. According to the CCA, only one of the six factors
identified in Phillips to determine if the appellant there was
“serving with” the armed forces was present in Appellee’s case,
5 Indeed, to the extent the record shows Appellee’s whereabouts during some of these periods it suggests that he was enjoying sporting events, such as a Notre Dame football game. This is not, therefore, a case where the record reflects that a reservist forged orders to active duty or IDT, reported and performed such duties, and obtained pay and allowances pursuant to those orders. That case, which would look much more like the theory under which we have found Article 2(c), UCMJ, jurisdiction for defective but “constructive enlistment[s],” McDonagh, 14 M.J. at 417, is not before us. 18 United States v. Morita, No. 14-5007/AF
namely, the fact that he was a member of a reserve component.
Id. We agree with the CCA that this factor alone is not
sufficient to find that Appellee was “serving with” the armed
forces under Article 2(c), UCMJ.
Nor were the other statutory criteria for jurisdiction
under Article 2(c), UCMJ, met. For example, the CCA found that
the “Government did not demonstrate that [Appellee] received any
compensation or retirement credit for days on which he merely
initiated the issuance of or completed travel forms (apart from
the days where he was in proper Article 2(a), UCMJ, status),” 73
M.J. at 560, or establish that Appellee otherwise performed
military duties during these times. 6 Id. at 561. Under these
facts, where the Government’s theory of the case was that
Appellee was not performing military duties, but rather
exploiting his knowledge of the system to generate orders and
travel vouchers to support private boondoggles, we agree with
the CCA that Appellee was not subject to jurisdiction under
Article 2(c), UCMJ, during the remaining periods during which
misconduct was alleged.
6 We agree with the CCA’s conclusion that the dicta in Morse is an incorrect basis for establishing jurisdiction under Article 2(c), UCMJ, “where the Government simply did not demonstrate how the appellant’s criminal actions corresponded to genuine reserve obligations and periods of military service.” Morita, 73 M.J. at 562. Actions incident to status as a reservist without more are simply insufficient to confer jurisdiction so broadly. 19 United States v. Morita, No. 14-5007/AF
V. Decision
The first portion of the certified issue is answered in the
negative. 7 We affirm the CCA with respect to its resolution that
jurisdiction did exist over the misconduct that occurred within
the dates of the three lawfully requested and approved 120 MPA
man-day tours, Morita, 73 M.J. at 557-58, and that jurisdiction
did not exist under Article 2(c), UCMJ, and Phillips for the
remainder of the time. 73 M.J. at 560. We reverse the CCA with
7 Given that the CCA held, in the alternative, that, based on its review of the documents the Government belatedly sought to introduce, “even if we considered the documents, we find they would not satisfy the Government’s burden of proof as to jurisdiction sufficiently to affect out ultimate conclusion,” United States v. Morita, No. ACM 37838, slip op. at 3-4 (A.F. Ct. Crim. App. Feb. 26, 2014) (denying the Government’s motion for reconsideration en banc), there is no justiciable issue for us to resolve. See United States v. Clay, 10 M.J. 269, 269 (C.M.A. 1981) (“We have previously declined to resolve certified issues which would not result in ‘a material alteration of the situation for the accused or for the Government.’” (quoting United States v. McIvor, 21 C.M.A. 156, 158, 44 C.M.R. 210, 212 (1972))). Further, Appellee’s contention that certification of this question was improper under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2012), and 10 U.S.C. § 8037(d)(3) (2012), is without merit. Cf. United States v. Burns, 73 M.J. 407, 407-08 (C.A.A.F. 2014) (summarily disposing of the certified issue despite the appellee’s argument that certification was improper because the Deputy Judge Advocate General signed the certified question before his retirement but it was filed by Major General (Maj Gen) Kenny after the Deputy Judge Advocate General’s retirement (Appellee’s Answer at 3-5, United States v. Burns, 73 M.J. 407 (C.A.A.F. 2014) (No. 14-5004))). Maj Gen Kenny was Chief of Acquisitions Law -- a major division in the Office of the Judge Advocate General, which fulfills the statutory requirements of Article 67(a)(2), UCMJ, and 10 U.S.C. § 8037(d)(3). See Appellant and Cross-Appellee’s Motion to Supplement the Record, United States v. Morita, No. 14-5007, (C.A.A.F. June 30, 2014). 20 United States v. Morita, No. 14-5007/AF
respect to those periods related to forged active duty, IDT, or
travel orders. Id. at 558-59 n.11. The decision of the Air
Force Court of Criminal Appeals is affirmed in part and reversed
in part. The record of trial is returned to the Judge Advocate
General of the Air Force for remand to the Court of Criminal
Appeals for reassessment of the sentence or to order a rehearing
on sentencing consistent with this decision.