United States v. Wilson

53 M.J. 327, 2000 CAAF LEXIS 910, 2000 WL 1218439
CourtCourt of Appeals for the Armed Forces
DecidedAugust 25, 2000
Docket99-0120/A
StatusPublished
Cited by11 cases

This text of 53 M.J. 327 (United States v. Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wilson, 53 M.J. 327, 2000 CAAF LEXIS 910, 2000 WL 1218439 (Ark. 2000).

Opinions

Judge EFFRON

delivered the opinion of the Court.

A general court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of desertion and larceny of $320.00, in violation of Articles 85 and 121, Uniform Code of Military Justice, 10 USC §§ 885 and 921, respectively. He was sentenced to a dishonorable discharge and confinement for 10 months. The convening authority approved that portion of the sentence that provided for a dishonorable discharge and confinement for 7 months. The Court of Criminal Appeals affirmed in an unpublished opinion.

While awaiting trial, appellant filed a petition for extraordinary relief in the form of a writ of habeas corpus at the Court of Criminal Appeals. In that petition, appellant challenged the court-martial’s jurisdiction over his person. The court denied appellant’s writ in a published opinion. Wilson v. Courier, 46 MJ 745 (A.F.Ct.Crim.App.1997). Our Court denied appellant’s writ-appeal of that decision “without prejudice to appellant’s right to raise the issue asserted in the writ-appeal petition during the course of normal review.” 47 MJ 80 (1997). In addition, appellant filed an unsuccessful petition for habeas corpus in the United States District Court for the Western District of Texas, challenging the jurisdiction of the court-martial. Wilson v. Windall, No. SA-97-CA-[329]*3290310, which was dismissed on September 23, 1997.

On appellant’s petition, we granted review of the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE COURT-MARTIAL HAD IN PERSONAM JURISDICTION TO TRY APPELLANT WHERE HE HAD ALREADY BEEN GIVEN HIS DD FORM 214.

For the reasons set forth below, we affirm.

I. JURISDICTION OVER MEMBERS OF THE NATIONAL GUARD

Members of the National Guard are subject to’ service under state and federal authority, which makes it important to identify which authority has jurisdiction over a member of the Guard at a particular point in time. As the Supreme Court has noted, “since 1933 all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. . . . [U]nder the ‘dual enlistment’ provisions of the statute that have been in effect since 1933, a member of the Guard who is ordered to active duty in the federal service is thereby relieved of his or her status in the state Guard for the entire period of federal service.” Perpich v. Department of Defense, 496 U.S. 334, 345-46,110 S.Ct. 2418, 110 L.Ed.2d 312 (1990) (citations omitted)(answering affirmatively the question of “whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime without either the consent of a State Governor or the declaration of a national emergency”). Members of the National Guard “must keep three hats in their closets — a civilian hat, a state militia hat, and an army hat — only one of which is worn at any particular time.” Id. at 348, 110 S.Ct. 2418; see 10 USC §§ 12102, 12105-07, 12201, 12211, 12212, 12301, 12401, 12403, and 12405; 32 USC § 325.

There are a number of statutes providing for federal court-martial jurisdiction over members of the Guard. See, e.g., Art. 2(a)(1), 10 USC § 802(a)(1) (jurisdiction over persons lawfully called or ordered to duty or training); id. at (a)(3) (jurisdiction over members of the Guard when on inactive-duty training in federal service); see also id. at (d) (authority to order a member of the Guard to active duty for purposes of military justice proceedings with respect to offenses committed while on active duty or while on inactive-duty training when in federal service). For purposes of federal court-martial jurisdiction, a member of the Guard must be in federal service at both the time of the offense and at the time of trial. See Rule for Courts-Martial (RCM) 201(b)(4) and (5), Manual for Courts-Martial, United States (1998 ed.); see also RCM 202(a)(5) (Discussion); RCM 204(a) (Discussion).

There are four main principles that apply to the question of whether federal court-martial jurisdiction over a member of the Guard has been terminated. First, if a member has completed a required period of federal service and been returned to state status, a court-martial will have jurisdiction only if the member has been ordered to active duty for purposes of court-martial proceedings under Article 2(d). Cf Willenbring v. Neurauter, 48 MJ 152 (1998). Second, a discharge which terminates a person’s military status as a member of a federal military component normally precludes the exercise of federal court-martial jurisdiction. See RCM 202(a)(Discussion at (2)(B)). A service-member’s amenability to court-martial jurisdiction is not terminated by discharge, however, unless: (1) the member receives a valid discharge certificate or certificate of release from active duty; (2) there is a final accounting of pay such that the member’s “final pay” or “a substantial part of that pay” is “ready for delivery” to the member; and (3) the member has completed any final clearing procedures required by service regulations. See United States v. King, 27 MJ 327, 329 (CMA 1989).

Third, if jurisdiction attaches “before the effective terminal date of self-executing orders, the person may be held for trial by court-martial beyond the effective terminal date.” RCM 202(c)(1) (Discussion). “[S]er[330]*330vicemembers may be retained past then-scheduled time of separation, over protest, by action with a view to trial while they are still subject to the Code. Thus, if action with a view to trial is initiated before discharge or the effective terminal date of self-executing orders, a person may be retained beyond the date that the period of service would otherwise have expired or the terminal date of such orders.” RCM 202(a)(Discussion at (2)(B)(i)); see also United States v. Colley, 46 CMR 1131, 1141-42, 1973 WL 14570 (ACMR), affirmed, 22 USCMA 534, 48 CMR 19 (1973). Actions with a view toward trial include “apprehension; imposition of restraint, such as restriction, arrest, or confinement; [ ] preferral of charges,” and investigations highly likely to result in criminal charges against the member. RCM 202(c)(2); see United States v. Self, 13 MJ 132, 137-38 (CMA 1982); see also United States v. Smith, 4 MJ 265 (CMA 1978). When an obligated term of service has expired and the Government has failed to take steps within a reasonable time to bring that person to trial, jurisdiction may be terminated if the person objects to court-martial jurisdiction. See RCM 202 (Discussion); United States v. Fitzpatrick, 14 MJ 394 (CMA 1983); United States v. Smith, 4 MJ 265 (CMA 1978).

Fourth, when a member of the Guard has been ordered to active federal service with the consent of the state, the period of service subject to court-martial jurisdiction includes any extensions of such service authorized under the Manual for Courts-Martial or other applicable rules and regulations, regardless of whether the state formally consents to the extension of a particular individual. United States v. Self, supra at 135.

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Cite This Page — Counsel Stack

Bluebook (online)
53 M.J. 327, 2000 CAAF LEXIS 910, 2000 WL 1218439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wilson-armfor-2000.