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).
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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).
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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
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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
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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
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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
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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
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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
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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.
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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).
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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.
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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.
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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) .
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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…