Argument Preview: Reviewing a reservist’s travel frauds for gaps in jurisdiction, in United States v. Hale
CAAF will hear oral argument in the Air Force case of United States v. Hale, No. 18-0162/AF (CAAFlog case page), on Tuesday, October 23, 2018, after the argument in Hamilton. The case involves jurisdiction over offenses committed by a drilling reservist, and CAAF granted review of two issues and specified a third:
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.
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.
Lieutenant Colonel (O-5) Hale – an Air Force reservist – was convicted of multiple specifications of larceny and attempted larceny, and also of making a false official statement, and sentenced to confinement for one month, total forfeitures, and a dismissal. The convictions relate to Hale’s submission of fraudulent travel claims involving his reserve service. Hale stayed (lodged) with relatives while performing reserve duty, and he submitted fraudulent travel claims for lodging expenses with his in-laws.
The granted issues present fact-specific challenges to some of Hale’s convictions based on a unique facet of jurisdiction over reservists. 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 that create jurisdictional gaps. Hale’s convictions cross some of those gaps.
But 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 for Hale those gaps still matter, and CAAF’s review will determine whether some of his convictions involve conduct during periods when he was not subject to the UCMJ.