U.S. v. Wilson, 53 M.J. 327

First Principles: Jurisdiction: In Personam

1. for the purposes of federal court-martial jurisdiction, a member of the National Guard must be in federal service/status at both the time of the offense and at the time of trial
2. 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: (1) if a member has completed a required period of federal service and been returned to a 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), UCMJ; (2) 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; (3) 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 by action with a view toward trial while the person is still subject to the UCMJ; and (4) 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 extension 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
3. amenability to court-martial jurisdiction is not terminated by discharge 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
4. servicemembers may be retained past their scheduled time of separation, over protest, by action with a view toward trial while that member is still subject to the Code; actions with a view toward trial include apprehension, imposition of restraint, preferral of charges, and investigations highly likely to result in criminal charges against the member
5. a period of unauthorized absence which commenced while a Guardsman was in an active federal status suspended the termination date of his active duty orders, and the Guardsman remained on federal active duty during the period of his unauthorized absence
6. an order to perform federal active duty places a guardsman in exclusive federal status for the entire period of duty reflected in those orders
7. a Guardsman’s period of active federal service was properly extended by an order issued while that Guardsman was in federal status and absent without authority; this order accomplished by officials in the State Guard and “by order of the Secretary of the Air Force” met the requirements of 10 USC § 12301(d) – action by federal officials with the consent of state officials
8. state officials have no unilateral authority to shorten a Guardsman’s period of active federal service once that individual has moved from state to federal status; upon commencement of a period of active federal service state affiliation is suspended in favor of an entirely federal affiliation during the period of active federal service
9. absent a delegation of authority from the federal government, a state has no unilateral authority to terminate a Guardsman’s period of federal service, whether through modification of his federal orders or termination of his state status
10. discharge documents issued by the state “by order of the Governor” had no effect on the authority of the federal government to retain jurisdiction over a Guardsman until he was relieved by federal authorities from his federal status
11. even if the state had been delegated authority by the federal government to terminate a Guardsman’s federal status, actions taken by the state did not comply with applicable laws and regulations and did not terminate federal status by discharge because: (1) those actions were not taken by competent authority; (2) they were based upon a misinterpretation of Air Force Instructions; (3) they did not comport with applicable regulations; and (4) they were not accompanied by any of the steps necessary to complete the discharge process
12. actions with a view toward court-martial taken before the expiration of a Guardsman’s federal active duty obligation were valid to retain that individual on active duty past his expiration of federal active duty date; those actions included the member’s apprehension, imposition of pretrial confinement, preferral of charges, and investigation under Article 32, UCMJ