U.S. v. Phillips, 58 M.J. 217

First Principles: Jurisdiction: In Personam

1. court-martial jurisdiction exists to try a person as long as that person occupies a status as a person subject to the UCMJ; status in the armed forces for purposes of court-martial jurisdiction is generally governed by Article 2, UCMJ; Article 2(c) states that notwithstanding any other provision of law, a person serving with an armed force who--(1) submitted voluntarily to military authority; (2) met the mental and minimum age qualifications of sections 504 and 505 of title 10 at the time of voluntary submission to the military authority; (3) received military pay or allowances; and (4) performed military duties, is subject to the UCMJ until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned
2. Article 2(c) was amended in 1979, and its legislative history indicates that the amendment was primarily enacted to ensure that court-martial jurisdiction would not be defeated by assertions that military status was tainted by recruiter misconduct; the legislative history also makes it clear that the four-part test for active service applies to circumstances not involving defective enlistments; an individual comes within the new subsection (c) whenever he meets the requisite four-part test regardless of other regulatory or statutory disqualification
3. (Article 2(c), by its express terms, establishes a specific analytical framework; first, the person must be "serving with an armed force" at the pertinent point in time; 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; the question of whether a person is "serving with" the armed forces is dependent upon a case-specific analysis of the facts and circumstances of the individual’s particular relationship with the military, and means a relationship that is more direct than simply accompanying the armed forces in the field; second, the statute provides that a person serving with the armed forces also must meet the four-part test; merely serving with the armed forces as a reservist or a civilian is not sufficient to establish jurisdiction under Article 2(c); finally, the statute provides that once a person meets the four-part test, the individual retains status as a person in "active service," until released under applicable laws and regulations
4. applying the first step of the of the four-part analysis to the present case, Appellant’s status as a person "serving with" the armed forces on July 11, 1999, is established by the following uncontested facts: (1) on that day, she was a member of a reserve component of the armed forces; (2) she traveled to a military base on that day pursuant to military orders, and she was reimbursed for her travel expenses by the armed forces; (3) the orders were issued for the purpose of performing active duty; (4) she was assigned to military officers’ quarters, she occupied those quarters, and she committed the pertinent offense in those quarters; (5) she received military service credit in the form of a retirement point for her service on that date; and (6) she received military base pay and allowances for that date; in terms of the second step of the analysis, Appellant’s status on July 11 as a person in active service under the four-part test in Article 2(c) is established by the following uncontested facts: (1) Appellant submitted voluntarily to military authority; (2) Appellant’s date of birth and record of service reflected that there was no issue as to whether she met the mental and minimum age qualifications under 10 U.S.C. §§ 503 and 504; (3) as noted in connection with the first step, she received military pay and allowances for her service on that date; and (4) her military duty on that day, which she voluntarily agreed to perform, was to travel to the base preparatory to report to a specific organization on July 12; she performed that duty; the fact that her orders did not require her to report to a specific organization until July 12 did not detract from her voluntary performance of the duty, pursuant to orders, to travel on July 11; finally, it is uncontested that during the period in question, she was not released pursuant to law or regulation; under these circumstances, Appellant was subject to military jurisdiction on the day of travel to her active-duty site at the time of her offense