CHAPTER 2 LEGAL ASPECTS OF MILITARY LAW

In civilian life, criminal law seeks to protect society from the ravages of its irresponsible members. It seeks to provide this protection without hasty, illconsidered actions that show prejudice toward any person's fundamental rights. However, military law must not only restrain individuals for the protection of military society but also be an instrument that encourages teamwork and morale. For these reasons, certain acts that are considered inalienable rights in civilian society are offenses in military society. For instance, "telling off the boss" is a right of an American civilian; but in the military service, it may well constitute an offense punishable by court-martial.

Military law also promotes discipline in the Armed Forces. Discipline is that attribute of a military organization that enables it to function in a coordinated manner under different circumstances. Many factors contribute to the building of a welldisciplined organization. One of the more important factors is military law.

Traditional military law has always applied standards of behavior to the Armed Forces that were different and more strict than those applied to civilians. However, the role of the military in protecting our nation justifies the requirement for strict standards of behavior. With that in mind, Congress established a system of military justice for all members of the armed forces. This system is the Uniform Code of Military Justice (UCMJ).

A court-martial has jurisdiction over those offenses described in the UCMJ's punitive articles, Articles 77-134. Many of these articles describe conduct that is purely military in nature, such as unauthorized absence and misbehavior of a sentinel. However, many of the other articles define offenses that are also prohibited in any society, such as murder, theft, and rape.

You are responsible for keeping your knowledge of military law up-to-date; as an MA, you must be thoroughly familiar with the essentials of military law. Now let's look more at the concept of jurisdiction in military law,

JURISDICTION

LEARNING OBJECTIVES: Identify and explain two sources of jurisdiction. Describe jurisdiction over the person, the offense, and the location or place.

All personnel performing law enforcement work for the Navy in the continental United States or overseas need a basic understanding of the legal concepts of jurisdiction and authority to apprehend. Both of these areas are complex legal subjects, susceptible to change by legislation or court decision. Personnel with specific legal and policy questions should be referred to the local staff judge advocate for guidance and resolution.

Jurisdiction is defined in the judicial sense as the power of a court, military or civilian, to consider a controversy and render a valid judgment. To have such power, a court must have jurisdiction over several areas. But first, let's look at the sources of law that govern jurisdiction.

SOURCES OF JURISDICTION

The sources of federal court jurisdiction are the Constitution of the United States and various federal statutes.

The Constitution

The power of a court-martial to try service persons is contained in Article I, Section 8 of the Constitution, which gives Congress authority to make rules and regulations for the Armed Forces. Article II of the Constitution makes the President of the United States the Commander in Chief of the Armed Forces. The Congress has exercised its rule-making power by enacting the UCMJ: Title 10, U.S. Code, Sections 801-940. And the President has exercised his constitutional power by issuing the Manual for Courts-martial (MCM). Both the UCMJ and the MCM discuss and define court-martial jurisdiction.

Federal Statutes

The federal statutes of the United States, as well as the Constitution, are sources of jurisdiction. Article III of the Constitution established the United States Supreme Court and also authorized the Congress, by federal statutes, to establish the lower courts. Magistrate and district courts are established under federal statutes. Military law-enforcement officials will often come into contact with civilian violators of federal law. Now let's look at jurisdiction over the person, the offense, and the location or place.

JURISDICTION OVER THE PERSON

To try a person, a court must have authority "over his person." Courts-martial normally have no authority, or power, over civilians. Thus a courtmartial could not try a civilian, even though his or her conduct might have been criminal and directly detrimental to the military.

JURISDICTION OVER THE OFFENSE

To try a person for an offense, a court must have jurisdiction over the offense. All courts are limited in the classes of offenses that they may hear and decide. For example, a federal or state civilian court has no authority to try a military person for unauthorized absence from his or her unit. That offense, punishable under Article 86 of the UCMJ, can only be adjudicated by the military.

JURISDICTION OVER LOCATION OR PLACE

The jurisdiction of the courts is also limited by the location or place of the offense. For example, the courts of New York State have no jurisdiction to consider cases involving criminal conduct in the state of Florida. Similarly, the United States federal civilian courts have no jurisdiction, generally, to try American citizens for offenses committed in another country. Nevertheless, under Article 5 of the UCMJ, a court-martial has jurisdiction to try military personnel for service-connected offenses occurring in "all places."

TYPES OF JURISDICTION

LEARNING OBJECTIVES: Explain military and civilian jurisdiction and how the service connection issue relates to jurisdiction. Describe jurisdiction as it relates to federal offenses, Explain investigative jurisdiction and how the Federal Assimilative Crimes Act affects jurisdiction. Define territorial, maritime waterway, and security zone jurisdiction, Explain the Posse Comitatus Act.

As an MA, you must be concerned with the various types of jurisdiction. To begin with, jurisdiction deals with the type of offense, where it was committed, and by whom it was committed. Many other factors also govern jurisdiction, as you will see in the following discussion.

MILITARY JURISDICTION

Courts-martial have jurisdiction to try only certain specific classes of personnel as delineated in Article 2 of the UCMJ. The following describes these classes:

Service members on active duty. Article 2(1) of the UCMJ identifies certain active-duty personnel as subject to its jurisdiction. . Reserve members attending drill. Reservists on

inactive duty training, usually weekend drills, are subject to UCMJ jurisdiction during drill periods if the orders assigning them to duty so state. The orders of reservists in some branches of the service do not state that the drilling reservist is subject to UCMJ jurisdiction. Specific situations should be referred to a local JAG officer.

. Retired persons. Retired members of a Regular component of the armed forces who are entitled to pay, retired members of the Reserves who are hospitalized by the service, and members of the Fleet Reserve or the Marine Corps Reserve are all subject to UCMJ. This rule continues military jurisdiction over specified categories of retired service members who retain financial or other ties to the armed forces.

CIVILIAN JURISDICTION

The Supreme Court has ruled that civilians are not under court-martial jurisdiction in peacetime despite UCMJ, Article 2(11). That article provides for

jurisdiction over "persons serving with, employed by, or accompanying the armed forces outside the United

States." Our Government has allowed the trial of civilians under military jurisdiction in time of war. However, the United States Court of Military Appeals has interpreted the term war to include only a war declared by Congress.

SERVICE-CONNECTION ISSUE

Law-enforcement personnel may encounter some offenses that are not purely military crimes. When that happens, they must evaluate the offense to show a connection between the crime and the military service. If they find no "service-connection," the military has no jurisdiction, even if the offender is on active duty in the military. Offenses that are not service connected are legal issues that must be referred to the staff judge advocate on a case-by-case basis. The more closely related the crime is to the base, military authority, or military duties, the more apt the courts are to find it a service-connection issue and thus under military jurisdiction.

This service-connection jurisdiction problem does not exist when the crime is committed aboard ship or overseas. In addition, even if no court-martial jurisdiction exists because of a lack of service connection, the crime may still be under the jurisdiction of nonjudicial punishment or of local, federal, or state civilian courts.

JURISDICTION OVER FEDERAL OFFENSES

Title 18 of the United States Code delineates the majority of federal crimes. These crimes are generally major felonies. They apply to both civilians and military personnel and are prosecuted in the federal district courts. Offenses prohibited involve a wide range of serious activities, such as mail fraud, kidnapping, and theft of U.S. property.