ARTICLE 14, UCMJ

When a request for custody does not invoke the Interstate Agreement on Detainers Act, delivery of custody is governed by Article 14, UCMJ, and JAG-MAN, sections 0603 through 0610. The request will be honored unless, in the exercise of discretion, there is an overriding reason for retaining the accused in military custody; for example, additional courts-martial are to be convened or the delivery would severely prejudice the prisoner's appellate rights.

Execution of the agreement discussed previously is a condition precedent to delivery to state authorities. It is not required before delivery to federal authorities. Unlike delivery under the Detainers Act, delivery of custody pursuant to Article 14, UCMJ, interrupts execution of the court-martial sentence.

The form shown in figure 10-3 with proper modification should be used in reporting refusal of delivery of prisoners.

REQUEST FOR DELIVERY OF PERSONNEL SERVING SENTENCE OF A STATE COURT

Ordinarily, personnel serving protracted sentences resulting from a state criminal conviction will be processed for administrative discharge by reason of misconduct. See the MILPERSMAN. It may, however, be in the best interest of the naval service to retain a member, charged with a serious offense subject to military jurisdiction, to try the member by court-martial. The vehicle available for obtaining temporary custody of incarcerated personnel for prosecution is a request to the state under the Interstate Agreement on Detainers Act.

Military authorities may use the Interstate Agreement on Detainers Act to obtain temporary custody of a member incarcerated in a state institution, pursuant to conviction by a state court and to resolve criminal charges against the member that are cognizable before a court-martial.

DETAINER

If a command chooses to use the Detainers Act, the CO of the responsible NLSO must file a detainer with the warden, commissioner of corrections, or other state official having custody of the member. The detainer must identify the member with exactness, listing the military charges pending against the member, and requesting the command be notified in advance of any intention to release the member from confinement.

REQUEST FOR DELIVERY

As soon as possible after filing the detainer, the CO of the cognizant NLSO must prepare a written request for temporary custody of the incarcerated member addressed to the state official charged with administration of the state penal system. The request must designate the person(s) to whom the member is to be delivered and must be sent via the military judge to whom the member's case has been assigned. If the request is properly prepared, the military judge will approve, record, and send the request to the addressee official. The Detainers Act provides the state with a 30-day period after receipt of the request before the request is to be honored. Within that period of time the governor of the state may disapprove the request, either on his or her own motion or upon the prisoner's request. If the governor disapproves the request, the requesting command should coordinate any further action with the Office of the Judge Advocate General (Litigation Division).

RESPONSIBILITIES

The responsible command must make sure the responsibilities of a receiving jurisdiction shown in Section 2, Article IV, of the Detainers Act, are discharged. In particular, the Detainers Act requires that the receiving state: 

. begins the prisoner's trial within 120 days of the prisoner's arrival, unless the court for good cause shown during an Article 39(a) session grants a continuance that is necessary or reasonable to promote the ends of justice. 

l holds the prisoner in a suitable jail or other facility regularly used for persons awaiting prosecution, except for the period during which the prisoner attends court or travels to or from any place that his or her presence may be required. 

l returns the prisoner to the state at the earliest practical time, but not before the charges that underlie the request have been resolved (premature returning of the prisoner will result in the dismissal of the charges). 

. pays all costs of transporting, caring for, keeping, and returning the prisoner to the state, unless the command and the state should otherwise agree on some other allocation of the costs or responsibilities.

SERVICE OF PROCESS AND SUBPOENAS UPON PERSONNEL

Afloat and ashore COs may permit service of process of federal or state courts upon service members, civilian employees, dependents, or contractors residing at or located on a naval installation, if located within their commands. Service is not to be made within the command without the CO's consent. The intent of this provision is to protect against interference with mission accomplishment and to preserve good order and discipline, while not unnecessarily impeding the court's work.

SERVICE OF PROCESS

Service of process is generally defined as establishing the court's jurisdiction over a person by the handing of a court order to a person advising him or her of the subject of the litigation and ordering this person to appear or answer the plaintiff's allegations within a specified period or else be in default. When properly served, the process will make this person subject to the jurisdiction of a civil court.

Overseas

A service member's amenability to service of process issued by a foreign court depends on international agreements (such as the North Atlantic Treaty Organization Status of Forces Agreement [NATO SOFA]). Where there is no agreement, guidance should be sought from a local judge advocate or OJAG.

Within the United States

Within the jurisdiction. Where the member is within the jurisdiction of the court issuing the process, the CO will permit the service except in unusual cases where he or she concludes that compliance with the mandate of the process would seriously prejudice the public interest. Personnel serving on a vessel within the territorial waters of a state are considered within the jurisdiction of that state for the purpose of service of process. Process should not be allowed within the confines of the command until permission of the CO first has been obtained. Where practical, the CO should require that process be served in his or her presence or in the presence of an officer designated by the CO. COs are required to make sure the nature of the process is explained to the member. This can be done by a legal assistance officer.

Beyond the jurisdiction. Where the member is beyond the jurisdiction of the court issuing the process, COs should permit the service under the same conditions as within the jurisdiction, but need to make sure the member is advised that he or she need not indicate acceptance of service. Furthermore, in most cases, the CO should advise the person concerned to seek legal counsel. When a CO has been forwarded process with the request that it be delivered to a person within the command, it may be delivered if the service member voluntarily agrees to accept it. When the service member does not voluntarily accept the service, it should be returned with a notation that the named person has refused to accept it.

Arising from official duties. Whenever a service member or civilian employee is served with federal or state court civil or criminal process arising from activities performed in the course of official duties, the CO should be notified and provided copies of the process and pleadings. After the pertinent facts are learned, notify JAG (Code 14) immediately by telephone and send the pleadings and process to the office.

A military member may remove civil or criminal prosecutions from state to federal court when the action is done under color of office or when authority is claimed under a law of the United States respecting the armed forces. The purpose of this action is to assure a federal forum for cases when service members must raise defense arising out of their official duties.

If a federal employee is sued in his or her individual capacity, that employee may be represented by Justice Department attorneys in state criminal proceedings and in civil and congressional proceedings. When an employee believes he or she is entitled to representation, a request-together with pleadings and process-must be submitted to JAG via the individual's CO. The CO will endorse the request and submit all pertinent data as to whether the employee was acting within the scope of employment at the time of the incident out of which the suit arose. If the Justice Department determines that the employee's actions reasonably appear to have been performed within the scope of employment and that representation is in the interest of the United States, representation will be provided.

Service Not Allowed

In any case where the CO refuses to allow service or process, a report is made to SECNAV (JAG) as expeditiously as the circumstances allow or warrant.

Leave/Liberty

In those cases where personnel either are served with process or voluntarily accept service of process, leave or liberty should be granted to comply with the process, unless it will prejudice the best interests of the naval service.