COURT-MARTIAL JURISDICTION by Jan Horbaly University of Virginia M.A. University of Virginia LL.M. Case Western Reserve University J.D. Case Western Reserve University B.A. A Dissertation Submitted in Partial Fulfillment of the Requirement for the Degree ot Doctor of Science ot Law at the Yale Law School Degree Conferred June 10, 1986
Court-Marial JurisdictionCase Western Reserve University J.D. Case Western Reserve University B.A. A Dissertation Submitted in Partial Fulfillment of the Requirement for the Degree ot Doctor of Science ot Law at the Yale Law School Degree Conferred June 10, 1986 "Military Law, trom its early origin and historical associations, its experience of many wars, its moderation in time ot peace, its scrupulous regard ot honor, its inflexible discipline, its simplicity, and its strength, is fairly entitled to consideration and stud thy[--and is] is a belief of the author which he trusts his readers will share." William W. Winthrop* * Preface to the W. WINTHRDP, I MILI TARY LAW vi <Washington, D.C.: W. H. Morrison Law Bookseller and Publisher, 1886). - ii ACKNOWLEDGMENTS I wish to thank the members of my committee for the time they spent reading and reviewing the material I submitted to them: Professor Robert H. Bork, Professor Eugene V. Rostow, Professor W. Michael Reisman, and Professor Kate Stith. I especially wish to thank Professor Joseph W. Bishop, Jr., and Professor Leon S. Lipson for serving as Chairmen of my committee and for their helpful comments and suggestions concerning my work. I also wish to thank Dean James W. Zirkle and Dean Jamienne S. Studley for their good cheer and logistical support. I am appreciative too of the grant of financial assistance I received from Yale University, and for the many good people I met and worked with at the Yale Law School. J.H. Picture on the previous page is reproduced from a United States Army Judge Advocate General's Corps brochure distributed in 1969 <RPI130, September 1969). - iv A. English Beginnings . 27 1. Military Ordinances . 29 2. Articles ot War ot 1666.. 31 3. Muti ny Act ot 1689. ... 33 4. British Articles ot War ot 1774. 33 B. The American Revolution 36 1. Revolutionary Courts-Martlal 37 2. American Articles ot War ot 1776 . 39 3. Jurlsdiction of Early American Courts-Martial. . ... 42 C. Colonists CalI tor Civilian Control of the Milltary. . . . . 45 1. The Lesson of the Roman Empire . .. 48 2. The Role ot the Military in 18th Century England • . . . . • . • . . . . . 48 3. Colonial Fear of Military Power. . . .. 52 4. Steps Taken to Insure Civilian Control of the Mil i tary . . . . . 53 - v D. Court-Martial Jurisdiction under the Constitution. 56 1. The First Stage: 1789 to 1862. 56 2. The Second Stage: 1863 to 1915 . 60 3. The Third Stage: 1916 to 1947. 64 4. The Fourth Stage: 1948 to the Present. 69 CHAP TER THREE A. Types of Military Jurisdiction . 92 1. Martial Rule . 94 2. Military Government. 101 3. Law of War . 108 4. Military Justice . 112 B. Agencies Exercising Military Court Jurisdiction. 116 1. Commanding Officers. 116 2. Courts-Martial. 122 3. Military Commissions . 131 4. Courts of Inquiry 135 C. Sources of Court-Martial Jurisdiction. 140 1. Constitutional Law. 141 2. International Law. 157 D. Elements of Court-Martial Jurisdiction . 161 l. Jurisdiction Defined . 161 2. Civilian and Military Courts . 163 3. Reluctance of Civilian Courts to Interfere in Military Triais. 167 4. Limited Jurisdiction of Courts-Martial 170 5. Collateral Review. 174 6. Deciding What is Jurisdictional. 176 7. Indispensable Prerequisites. 195 - v i PROPERLY CONVENED COURTS-MARTIAL . 204 A. Convening Authority. 207 1 President's Role. 217 2. Commander's Role. 220 3. Devolution of Command. 227 4. Authority over "Separate or Detached" Units . 241 B. Limitations on the Convening Authority . 248 1. Convening Authority Cannot be an Accuser. 249 2. Convening Authority Cannot Direct One Junior in Rank to Sign and Swear to Charges. 259 3. Convening Authority Must be Senior in Rank to the Accuser . 261 4. Reservation of Power by Superior Author i ty . 265 5. Accused is Not a Member of the Convening Authority's Command . 271 C. Proper Referral of Charges to Court-Martial. 274 1 Elements of a Proper Referral. 274 2. Court-Martial Convening Order. 275 3. 1984 Manual Provisions on Referral . 277 4. Oral Convening or Amending Orders. 282 5. Withdrawal of Properly Referred Charges. 286 CHAPTER FIVE A. Accused. 304 1 Presence of the Accused Required 304 2. Trial of the Accused in Absentia . 306 3. Voluntary and Knowing Absence. 310 4. Temporary Absence of the Accused During Trial . 313 B. Defense Counsel. 316 1. The Right to Counsel in the Military . 316 2. Absence of Defense Counsel from the Trial. 328 3. Waiver of Right to Counsel by Accused. 330 C. Trial Counsel. 335 1. Role of the Trial Counsel. 335 2. Disqualification of Trial Counsel from Participating in a Court-Martial. 336 D. Military Judge . 339 1. Qualifications ot the Military Judge . 340 2. Detailed Military Judge. 342 3. Request for Trial by Military Judge Alone. 347 E. Court Members. 357 1. Selection of Court Members . 359 2. Request for Trial by Enlisted Members. 362 3. Need for Personal Selection of Court Members by the Convening Authority. 364 4. Excusal of Court Members . 366 5. Presence of a Nondetailed Court Member. 372 CHAPTER SIX JURISDICTION OVER THE PERSON. 375 A. When Jurisdiction Attaches . 383 l. Enl istees. 384 2. I nductees. 404 3. Reservists. 411 4. Fleet Reserve. 424 5. Civilians. 429 B. Continuing Jurisdiction. 438 1 After Expiration of Term ot Service. 439 2. Held with a View toward Trial. 440 3. Self-Executing Orders. 444 - viii C. When Jurisdiction Terminates . 447 1. Artice 3(a) Offense Exception . 450 2. Fraudulent Discharge Exception . 458 3. Desertion Exception. 462 4. Prisoner in Mi litary Custody Exception. 465 5. Uninterrupted Status Exception 469 6. Retired Personnel Exception. 472 CHAPTER SEVEN A. Offenses Triable by Court-Martial. 484 1. Punitive Artices. 484 2. Genera Articles . 484 3. Concurrent Jurisdiction. 485 B. An Appropriate Standard. 488 1. Miitary Status Standard. 488 2. Service Connection Standard. 491 C. Development of the Service Connection Standard 499 1. Military Crimes. 501 2. Crimes Against Military Personne. 502 3. Crimes Against Military Property . 507 4. Crimes Committed On Post . 509 5. Crimes Committed Off Post. 512 6. Crimes Committed At or Near Post. 515 7. Crimes Committed On Post and Off Post. 520 8. Crimes Involving the Use of Military Status. 525 9. Crimes Committed While in Uniform. 530 10. Drug Offenses. 532 - ix A. The Code . 552 1 Maximum Punishments for Offenses . 552 2. Types of Courts. 556 3. Special Sentencing Provisions. 559 B. Manual Provisions on Sentencing. 560 1. Maximum Punishment Chart. 560 2. Other Limitations on Punishments . 562 CHAP TER NINE EXTRAORDINARY RELIEF. 575 " A. Extraordinary Writs in Military Courts . 576 1. Court of Military Appeals. 578 2. Courts of Military Review. 589 B. Extraordinary Writs in Federal Civilian Courts . 590 1. Military Justice System is Separate and Complete. 592 - )( - A. Matters Deserving Attention. 619 1. Lack of Uniformity in Imposition of Article 15 Punishment .. 620 2. Unfai r Wi thdrawa I of Char ges . .. ... 623 3. Failure to Strictly Construe Detailing Provisions ot the Code....••. 626 4. Exercise ot Jurisdiction over Reservists . 631 5. Expanding Reach ot Court-Martial Jurisdiction. . .. 636 B. An Approach to Deciding JurisdictionaI Issues. . . . . .. 638 1. Jurisdictional Worksheet . . . 639 2. Emphasis on the Elements ot Court-Martial Jurisdiction.. 640 CHAPTER ELEVEN Philadelphia by delegates from the 12 States who partici pated in the Constitutional Convention. 1 The delegates to the Convention had agreed that the proposed Constitu tion would become effective when nine States voted to approve it. On June 21, 1788,' New Hampshire, the ninth State, ratified the Constitution by a vote of 57 to 47, and on that date a new form of government for the United states of America became a reality.2 The State of Rhode Island was not represented at the Constitutional Convention. 2 The Constitution was ratified by the original 13 States on the following dates: De l aware. • . (30 unanimous) .. December 7, 1787 Pennsylvania. (vote 46 to 23) .. December 12, 1787 New Jersey.. (38 unanimous) .. December 18, 1787 Georgia . (26 unanimous). . January 2, 1788 Connecticut . (v~te 128 to 40) .January 9, 1788 Massachusetts . (vote 187 to 168). February 6, 1788 Maryland•.•• (vote 63 to 11> ... April 28, 1788 South Carolina. (vote 149 to 73). . May 23, 1788 New Hampshire (vote 57 to 47). .June 21, 1788 Virginia. (vote 89 to 79). .June 26, 1788 New York•.. (vote 30 to 27>'. .July 26, 1788 North Carolina. (vote 194 to 77) .November 21, 1789 Rhode Island. (vote 34 to 32). . May 29, 1790 - 1 Continental Congress was advised that nine States had ratified the Constitution of the United States. 3 The documents of ratification from the nine States were referred "to a com[mittee of the Continental CongressJ to examine the same and [to] report an Act of Congress for putting the . constitution into operation in pur suance of the resolutions of the late federal Conven tion."4 Three and a half weeks later, on July 28, 1788, a committee consisting of Edward Carrington, Pierpont Edwards, Abraham Baldwin, Samuel Allyne Otis, and Thomas Tudor Tucker, presented the following recommendation to the Continental Congress: That the first Wednesday in January next be the day for appointing electors in the several States which have Ol" shall before the said day have ratified the said constitution; that the first Wednesday in [FebruaryJ next be the day for the electors to assemble in their respective states and vote for a presi dent and that the first Wednesday in March be the time and the place for, commencing proceedings under S. BLOOM, THE STORY OF THE CONSTITUTION 87 (Washington. D.C.: United States Constitutional Sesquicentennial Commission, 1937). 3 34 JOURNALS OF THE CONTINENTAL CONGRESS 281 (Washington, D.C.: U.S. Government Printing Office, Roscoe R. Hill, ed., 1937) . 4 .L9... The committee made no recommendation as to where the new Government should sit and left a blank space in their recommendation concerning this matter. The subject ot where the Government should be located was to become a topie of considerable debate and discussion. 6 Among the cities proposed were Philadelphia, New York, Baltimore. Lancaster, and Annapolis. "The problem was solved by the resolve of September 13 fixing the time for the several steps in the election and New York as the place ot meeting for the new administration."7 On Wednesday, February 4, 1789, the Electoral College met in New York City and unanimously elected General George Washington to be the first President of the United States of America. On April 30, 1789, President Washington was inaugurated, and on March 4, 1789, the first Wednesday in March, the Constitution became effective and a new government was established. Provisions for the creation of the land and naval forces were an important part of the new Constitution. The Framers of the Constitution alI agreed, especially after the experience of the American Revolution, th~t a ~. at 359 (blank space in the original). • ~. at 359, 367, 383, 395, 402, 415-18, 455-57, 481, 487-88, 495-97, 515-19, 521-22. 7 ~. at viii. See ~. at 521-23. - 3 protect and defend the republic from attack by foreign nations. The Framers also were in agreement that the military should be governed and control led by the Congress, and they provided in the Constitution that Congress should have the power to "make Rules for the Government and Regulation of the land and naval Forces."B This power, set forth in Article 1, Seqtion 8, Clause 14 of the Constitution, was taken almost verbatim from Article IX, Section 4 of the Articles of Confedera tion, which provided that the "United States in congress assembled shall. . have the sole and exclusive right and power of. . making rules for the government and regulation of the said land and naval forces, and directing their operations."9 In granting to Congress the power to make rul~s for governing the armed forces, the Framers gave Congress authority to create a criminal justice system for the military and to enact rules regarding its operation. granted to it by the Constitution, the Congress of the United States enacted, the American Articles of War of B U.S. CONST. art. I, § 8, cI. 14. 9 U.S. ARTS. OF CONFED. art. IX, sec. 4 (1778), reprinted in J. GILMORE, ARTICLES OF CONFEDERATION AND CONSTITUTION OF THE UNITED STATES AND NOTES OF A COURSE OF LECTURES ON THE CONSTITUTION OF THE UNITED STATES 22-23 (Washington, D.C.; James Blakey, 1891). - 4 1789. 10 Thus, exactly 208 days atter the tormation ot the new Government, the nation had--in addition to a tederal court system and numerous state court systems--a military court system which was empowered to try soldiers who were charged with committing criminal and military ottenses while serving on active duty in the armed torces ot the United States. The Articles ot War ot 1789 were much like the Articles ot War ot 1776. Wha t i s' s i gn if i cant about the Articles of War of 1789 is the importance Congress placed on having a spec(al code ot criminal conduct for the military, and the speed with which Congress acted to put such a code in place. In the beginning, the number ot soldiers in the states who were subject to court-martial jurisdiction under the American Articles of War were few. In 1789 only 672 soldiers were on active duty in the army, and the navy had been disbanded. 11 Today, the number ot those who are subject to court-martial jurisdiction is significant indeed. Over twa mil lian men and women who are presently serving in the armed torces ot the United States are subject to the military criminal justice system--a group large~ than the number ot citizens subject to criminal codes in the States of Alaska, l o See intra notes 346-64 and accompanying text. II See general ly infra notes 133-207 and accompany ing text for a discussion ot the tour stages in the development ot the law ot court-marti~l jurisdiction. - 5 Wyoming, Vermont, Delaware, North Dakota, South Dakota, Mon tana, Nevada, New Hamps h i re, I da ho , Rhode I s I and, Hawaii, Maine, New Mexico, Utah, Nebraska, and West Virginia. 12 justice is the largest single system of criminal justice in the natlon, not only in time ot war, but also in time of peace."\3 This observation is based on theract that the armed forces consist mostly of young men from 17 to 40 years of age, a group which statistical Iy at least is responsible for committing the highest number of crimes in the nation. 14 for committing criminal and military offenses. "There were about eighty thousand genera court-martial convic tions during the war, an average of nearly sixty convic 12 STATE DEMOGRAPHICS: POPULATlON PROFILES OF THE 50 STATES VII (Homewood, Illinois; Dow Jones-Irwin, The American Demographics Magazine Editors eds., 1984). See Cook, Courts-Martial: The Third System in American Criminal Law, 1978 S. ILL. U.L.J. L In World War II, there were over 12,300,000 young men and women who served in the armed forces and who were subject to the military justice system. Karl~n & Pepper, The Scope of Military Justice, 43 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 285, 286 (1952). 13 Karlen & Pepper, The Scope of Military Justice, 43 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 285, 298 (1952). 1 4 .!...Q.. at 286-87. - 6 tions by the highest form of .military court, somewhere in the world, every day ot the war."I~ In addition, many service members were tried by special and summary courts. By the end ot the war, it is estimated that approximately "two mil lion convictions [werel handed down by American courts-martial."l. the first American Articles ot War were enacted in 1789, the jurisdiction exercised by military courts has been the subject ot much litigation in both civilian and military courts. During periods ot armed contlict and especially during the Civil War, World War I, World War II, the Korean War and the Vietnam War, those charged with committing military offenses frequently challenged the exercise ot jurisdiction by military courts. In the last 30 years, the number of decisions rendered by courts on the subject ot court-martial juris diction has increased dramatically.17 This is due in part to the enactment by Congress of the Uniform Code of Military Justice ot 1950, to the creation by Congress ot 1~ W. GENEROUS, JR., SWORDS AND SCALES: THE DEVELOPMENT OF THE UNAFORM CODE OF MILITARY JUSTICE 14 (Port Washington, New York: Kennikat Press, 1973) [hereinatter cited as SWORDS AND SCALESl. 1 • lS· 17 Not alI are pleased with this development. See ~, Heinl, Mi litary Justice Under Attack, 110 ARMED FORCES J. INTER. 38 (June 1973). the United States Court of Military Appeals, to a number of important decisions handed down by civilian and military courts, and to the trend in recent years toward the civilianization of the military justice system. The enactment by Congress of the Uniform Cod e of Military Justice is the major reason for the growth of litigation on the subject of court-martial jurisdiction. The new Uniform Code of Military Justice, commonly referred to as the Code or UCMJ, was signed by President Harry S. Truman on May S, 195011 and became effective on May 31, 1951. l 9 The Uniform Code of Military Justice was a major reform in military law. 20 lts purpose was to consolidate l 8 Act of May S, 1950, 64 Stat. 107 (current version at 10 U. S. C. §§ 801-940 (1983)). The Uniform Code of Military Justice was enacted as part of the act of S May 1950 which contained 16 additional sections. It was thereafter revised, codified, and enacted into law as part of title lO, United States Code, by the act of 10 August 1956 . MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969 (REV. ED.), App. 2, Uniform Code of Military Justice, at A2-1 (Washington, D.C.; U.S. Government Printing Office, 1969) (footnotes omitted). The MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1984 (Washington, D.C.; U.S. Government Printing Office, 1984) omits this interesting bit of legislative history. The Uniform Code of Military Justice was amended again in 1968, 1979 and 1983. l 9 Act of May S, 1950, Art. 140, § 5, 64 Stat. 145. 20 See generally Hearin~s on the Uniform Cod e of Military Justice before the House Subcommittee of the Committee on Armed Services, 81st Cong., 1st Sess. ( 1949) . - 8 the disciplinary rules of the Army, the Navy (including the Marine Corps), the Air Force and the Coast Guard into a single criminal code and to improve the overall quality ot military justice in the armed forces. This was accomplished in 140 articles: the first 76 of which dealt with procedur es to be foliowed in the operation and administration of the military justice system, and the remaining 64 which defined the criminal offenses triable by court-martial. armed torces. In addition, it provided important procedural rights and protections for soldiers and civilians charged with violations ot the Code. The Uniform Code of Military Justice also made significant changes too in court-martial procedure, and in the manner in which military court decisions are reviewed by appellate…