U.S. v. Begani, 81 M.J. 273

First Principles: Jurisdiction: Generally

1. pursuant to its plenary authority to make rules for the government and regulation of the land and naval forces, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the UCMJ, and an offense need not be military in nature to be tried by court-martial; the only question is the military status of the accused - namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term land and naval forces
2. retired members of all branches of service of the armed forces who continue to receive pay are still a part of the land and naval forces and subject to the UCMJ
3. although retirees are still part of the armed forces and subject to the UCMJ, persons who have completely separated from the military are not
4. civilian dependents of servicemembers and civilian employees of the military are not part of the armed forces and not subject to the UCMJ
5. the test for jurisdiction is one of status, namely, whether the accused in a court-martial proceeding is a person who can be regarded as falling within the term land and naval forces
6. a member of the Fleet Reserve who receives retainer pay, is subject to recall, and is required to maintain military readiness remains a member of the land and naval forces and is thus subject to court-martial jurisdiction
7. court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection; accordingly, appellant, a member of Fleet Reserve and thus a member of the land and naval forces, was properly subject to jurisdiction under Article 2(a)(6), UCMJ

First Principles: Jurisdiction: In Personam

1. pursuant to its plenary authority to make rules for the government and regulation of the land and naval forces, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the UCMJ, and an offense need not be military in nature to be tried by court-martial; the only question is the military status of the accused - namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term land and naval forces
2. retired members of all branches of service of the armed forces who continue to receive pay are still a part of the land and naval forces and subject to the UCMJ
3. although retirees are still part of the armed forces and subject to the UCMJ, persons who have completely separated from the military are not
4. civilian dependents of servicemembers and civilian employees of the military are not part of the armed forces and not subject to the UCMJ
5. the test for jurisdiction is one of status, namely, whether the accused in a court-martial proceeding is a person who can be regarded as falling within the term land and naval forces
6. a member of the Fleet Reserve who receives retainer pay, is subject to recall, and is required to maintain military readiness remains a member of the land and naval forces and is thus subject to court-martial jurisdiction
7. court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection; accordingly, appellant, a member of Fleet Reserve and thus a member of the land and naval forces, was properly subject to jurisdiction under Article 2(a)(6), UCMJ

First Principles: Constitutional Matters: Generally

1. the Constitution gives Congress the power to set rules for the land and naval forces

First Principles: Constitutional Matters: Equal Protection

1. the federal government is prohibited from violating a person’s due process rights by denying him the equal protection of the laws; the core concern of equal protection is to act as a shield against arbitrary classifications; that is, the government must treat similar persons in a similar manner
2. the initial question on any equal protection challenge is whether the groups are similarly situated, that is, are they in all relevant respects alike
3. it does not violate the equal protection component of the Fifth Amendment to subject members of the Fleet Reserve, but not retired reservists, to military jurisdiction where the two groups are not similarly situated; members of the Fleet Reserve receive retainer pay, are subject to recall at any time, and are required to maintain military readiness; retired reservists, on the other hand, receive no pay until they reach statutory eligibility at age sixty, are not required to maintain any level of readiness, and can be recalled only in the event of a declaration of war or national emergency by Congress, and even then, only if other tiers of available manpower have been exhausted

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether by his guilty pleas appellant waived the issue of whether subjecting members of the Navy’s Fleet Reserve but not members of the Retired Reserve to UCMJ jurisdiction violated the equal protection component of the Fifth Amendment is a matter reviewed by an appellate court de novo
2. the question of jurisdiction is a question of law that an appellate court reviews de novo
3. the constitutionality of a statute is a question of law, and therefore the standard of review of an appellate court is de novo

Trial Stages: Appeals: Waiver

1. although pursuant to a pretrial agreement appellant agreed to waive all waivable motions, his guilty pleas did not waive the issue of whether subjecting members of the Navy’s Fleet Reserve but not members of the Retired Reserve to UCMJ jurisdiction under Article 2(a)(6), UCMJ violated the equal protection component of the Fifth Amendment where (1) RCM 705(c)(1)(B) prohibits a term of a pretrial agreement from depriving an accused of the right to challenge the jurisdiction of a court-martial, and (2) if appellant prevailed and Article 2(a)(6) was unconstitutional, the court-martial had no jurisdiction to try him