Members of reserve components are subject to the UCMJ, but only when actually performing reserve duty. For example, Article 2(a)(3) limits jurisdiction to:

Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

Notably absent is the time between periods of inactive-duty training. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight (creating interesting jurisdictional questions when reservists commit misconduct during a break). Congress eliminated those jurisdictional gaps in the Military Justice Act of 2016, amending Article 2(a)(3) to specifically include:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.

Sec. 5102, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2894, 2895 (Dec. 23, 2016).

But back in January the Air Force CCA issued a published decision in a case involving the current rule. In United States v. Hale, 77 M.J. 598 (A.F. Ct. Crim. App. Jan 19, 2019) (link to slip op.), a three-judge panel explained:

This case is essentially about a reserve officer who committed travel fraud. The principal issue on appeal is Appellant’s status at the time of each offense and whether the court-martial had jurisdiction over each of the specifications for which Appellant was convicted. As a threshold matter, we find that the court-martial lacked jurisdiction over one of the larceny specifications, but had jurisdiction over the lesser-included offense of attempted larceny. We also modify part of the charged time-frame of a second larceny specification by exception and substitution.

The convictions relate to lodging reimbursements for periods when the appellant (a lieutenant colonel) stayed with relatives but created and submitted receipts for lodging expenses (in violation of regulations and despite the appellant incurring no actual expense). The jurisdiction issue, however, arises from the fact that it’s not clear when the appellant committed some of the misconduct; whether during a four-hour period of inactive-duty training or not.

On Wednesday CAAF granted review:

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues raised by appellate defense counsel:

I. THE LOWER COURT FOUND AS A MATTER OF LAW THAT PERSONAL JURISDICTION DOES NOT EXIST OUTSIDE OF THE HOURS OF INACTIVE-DUTY TRAINING. THE LOWER COURT PROCEEDED TO FIND PERSONAL JURISDICTION EXISTED OVER APPELLANT BECAUSE HE WAS “STAYING” WITH HIS IN-LAWS. WAS THIS ERROR?

II. WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED THE MILITARY JUDGE CORRECTLY INSTRUCTED THE MEMBERS THEY COULD CONVICT APPELLANT FOR CONDUCT “ON OR ABOUT” THE DATES ALLEGED IN EACH SPECIFICATION

And the following issue specified by the Court:

III. WHETHER THE LOWER COURT ERRED IN CONCLUDING THE COURT-MARTIAL HAD JURISDICTION OVER SPECIFICATION 2 OF ADDITIONAL CHARGE I, AS MODIFIED TO AFFIRM THE LESSER INCLUDED OFFENSE OF ATTEMPTED LARCENY.

Briefs will be filed under Rule 25.

3 Responses to “CAAF grants review of reserve jurisdiction issue involving the (soon-to-be) old Article 2(a)(3)”

  1. Charlie Gittins says:

    Doesn’t the GOV have to plead and prove actual jurisdiction when it is a contested issue?  Isn’t that one a BRD issue?  And is “on or about” good enough when the on or about could include periods of no military jurisdiction?  I’ll be interested to read this one when CAAF decides it. 

  2. Insert Fake Name Here says:

    This is an odd thing to grant review on, as it seems it won’t have much/any applicability to anyone other than Hale.  Perhaps the second issue will be relevant to SOL cases?  

  3. stewie says:

    It’s also about to be mooted soon as the new changes coming into effect at the beginning of next year involve stretching jurisdiction across the whole reserve weekend IIRC.