(1) Authority under the UCMJ. Article 2 lists classes of persons who are subject to the UCMJ. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midshipmen (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3)); members of the Fleet Reserve and Fleet Marine Corps Reserve (Article 2(a)(6)); persons in the custody of the armed forces serving a sentence imposed by court-martial (Article 2(a)(7)); and, under some circumstances, specified categories of civilians (Article 2(a)(10), (11), and (12)); see paragraphs (3) and (4) of this discussion. In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the UCMJ apparently has ended may, nevertheless, be amendable to trial by court-martial. See Articles 3, 4, and 73. A person need not be subject to the UCMJ to be subject to trial by court-martial under Articles 103, 103b, and 104a. See also Article 48 and R.C.M. 809 concerning who may be subject to the contempt powers of a court-martial. (2) Active duty personnel. Court-martial jurisdiction is most commonly exercised over active duty personnel. In general, a person becomes subject to court-martial jurisdiction upon enlistment in or induction into the armed forces, acceptance of a commission, or entry onto active duty pursuant to orders. Generally, three criteria are considered to determine when military jurisdiction over active duty personnel terminates: (1) the delivery of a discharge certificate; (2) a final accounting of pay; and (3) completion of any clearing process required under Military Service regulations. Orders transferring a person to the inactive reserve are the equivalent of a discharge certificate for purposes of jurisdiction over reserve personnel. There are several important qualifications and exceptions to these general guidelines.” (A) Inception of court-martial jurisdiction over active duty personnel. (i) Enlistment . “The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under [Article 2(a)] and a change of status from civilian to member of the armed forces shall be effective upon taking the oath of enlistment.” Article 2(b). A person who is, at the time of enlistment, insane, intoxicated, or under the age of 17 does not have the capacity to enlist by law. No court-martial jurisdiction over such a person may exist as long as the incapacity continues. If the incapacity ceases to exist, a “constructive enlistment” may result under Article 2(c). See discussion of “constructive enlistment” of this rule. Similarly, if the enlistment was involuntary, court-martial jurisdiction will exist only when the coercion is removed and a “constructive enlistment” under Article 2(c) is established. Persons aged 17 (but not yet aged 18) may not enlist without parental consent. A parent or guardian may, within 90 days of the enlistment’s inception, terminate the enlistment of a 17-year-old who enlisted without parental consent, if the person has not yet reached the age of 18. 10 U.S.C. § 1170. See also DOD Instruction 1332.14 and Service regulations for specific rules on separation of persons aged 17 based on a parental request. Absent effective action by a parent or guardian to terminate such an enlistment, court-martial jurisdiction exists over the person. An application by a parent for release does not deprive a court-martial of jurisdiction to try a person for offenses committed before action is completed on such an application. Even if a person lacked capacity to understand the effect of enlistment or did not enlist voluntarily, a “constructive enlistment” may be established under Article 2(c). Even if a person never underwent an enlistment or induction proceeding of any kind, court-martial jurisdiction could be established under this provision. (ii) Induction. Court-martial jurisdiction does not extend to a draftee until: the draftee has completed an induction ceremony which was in substantial compliance with the requirements prescribed by statute and regulations; the draftee, by conduct after an apparent induction, has waived objection to substantive defects in it; or a “constructive enlistment” under Article 2(c) exists. The fact that a person was improperly inducted (for example, because of incorrect classification or erroneous denial of exemption) does not of itself negate court-martial jurisdiction. When a person has made timely and persistent efforts to correct such an error, court-martial jurisdiction may be defeated if improper induction is found, depending on all the circumstances of the case. (iii) Call to active duty. A member of a reserve component may be called or ordered to active duty for a variety of reasons, including training, service in time of war or national emergency, discipline, or as a result of failure to participate satisfactorily in unit activities. When a person is ordered to active duty for failure to satisfactorily participate in unit activities, the order must substantially comply with procedures prescribed by regulations, to the extent due process requires, for court-martial jurisdiction to exist. Generally, the person must be given notice of the activation and the reasons therefor, and an opportunity to object to the activation. A person waives the right to contest involuntary activation by failure to exercise this right within a reasonable time after notice of the right to do so. (B) Termination of jurisdiction over active duty personnel. As indicated in this rule, the delivery of a valid discharge certificate or its equivalent ordinarily serves to terminate court-martial jurisdiction. (i) Effect of completion of term of service. Completion of an enlistment or term of service does not by itself terminate court-martial jurisdiction. An original term of enlistment may be adjusted for a variety of reasons, such as making up time lost for unauthorized absence. Even after such adjustments are considered, court-martial jurisdiction normally continues past the time of scheduled separation until a discharge certificate or its equivalent is delivered and certain other criteria are satisfied or until the Government fails to act within a reasonable time after the person objects to continued retention. As indicated in subsection (c) of this rule, service members may be retained past their scheduled time of separation, over protest, by action with a view to trial while they are still subject to the UCMJ. 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. “(ii) Effect of discharge and reenlistment. For offenses occurring on or after October 23, 1992, under the 1992 National Defense Authorization Act’s amendment to Article 3(a), a person who reenlists following a discharge may be tried for offenses committed during the earlier term of service. For offenses occurring prior to October 23, 1992, a person who reenlists following a discharge may be tried for offenses committed during the earlier term of service only if the offense was punishable by confinement for five years or more and could not be tried in the courts of the United States or of a State, a Territory, or the District of Columbia. But see (iii)(a) of this discussion.” (iii) Exceptions . There are several exceptions to the general principle that court-martial jurisdiction terminates on discharge or its equivalent. (a) A person who was subject to the UCMJ at the time an offense was committed may be tried by court-martial for that offense despite a later discharge or other termination of that status if: (1) For offenses occurring on or after October 23, 1992, the person is, at the time of the court-martial, subject to the UCMJ, by reentry into the armed forces or otherwise. See Article 3(a), as amended by the National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992); (2) For offenses occurring before October 23, 1992, (A) The offense is one for which a court-martial may adjudge confinement for 5 or more years; (B) The person cannot be tried in the courts of the United States or of a State, Territory, or the District of Columbia; and (C) The person is, at the time of the court-martial, subject to the UCMJ, by reentry into the armed forces or otherwise. See Article 3(a) prior to the 1992 National Defense Authorization Act Amendment. (b) A person who was subject to the UCMJ at the time the offense was committed is subject to trial by court-martial despite a later discharge if— (1) The discharge was issued before the end of the accused’s term of enlistment for the purpose of reenlisting; (2) The person remains, at the time of the court-martial, subject to the UCMJ; and (3) The reenlistment occurred after 26 July 1982. (c) Persons in the custody of the armed forces serving a sentence imposed by a court-martial remain subject to the UCMJ and court-martial jurisdiction. A prisoner who has received a discharge and who remains in the custody of an armed force may be tried for an offense committed while a member of the armed forces and before the execution of the discharge as well as for offenses committed after it. (d) A person discharged from the armed forces who is later charged with having fraudulently obtained that discharge is, subject to the statute of limitations, subject to trial by court-martial on that charge, and is after apprehension subject to the UCMJ while in the custody of the armed forces for trial. Upon conviction of that charge such a person is subject to trial by court-martial for any offenses under the UCMJ committed before the fraudulent discharge. (e) No person who has deserted from the armed forces is relieved from court-martial jurisdiction by a separation from any later period of service. (f) When a person’s discharge or other separation does not interrupt the status as a person belonging to the general category of persons subject to the UCMJ, court-martial jurisdiction over that person does not end. For example, when an officer holding a commission in a Reserve component of an armed force is discharged from that commission while on active duty because of acceptance of a commission in a Regular component of that armed force, without an interval between the periods of service under the two commissions, that officer’s military status does not end. There is merely a change in personnel status from temporary to permanent officer, and court-martial jurisdiction over an offense committed before the discharge is not affected. (3) Public Health Service and National Oceanic and Atmospheric Administration. Members of the Public Health Service and the National Oceanic and Atmospheric Administration become subject to the UCMJ when assigned to and serving with the armed forces. (4) Limitations on jurisdiction over civilians. Court-martial jurisdiction over civilians under the UCMJ is limited by the Constitution and other applicable laws, including as construed in judicial decisions. The exercise of jurisdiction under Article 2(a)(11) in peace time has been held unconstitutional by the Supreme Court of the United States. Before initiating court-martial proceedings against a civilian, relevant statutes, decisions, Service regulations, and policy memoranda should be carefully examined. (5) Members of a Reserve Component . Members of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training or during any of the periods specified in Article 2(a)(3)(B), are subject to the UCMJ. Moreover, members of a reserve component are amenable to the jurisdiction of courts-martial notwithstanding the termination of a period of such duty. See R.C.M. 204.