Trends. The UCMJ today reflects centuries of experience in criminal law and military justice. The military justice system has evolved from one that permitted commanders to impose and carry out the death penalty to a system of justice that guarantees service members rights and privileges similar to, and in some cases greater than, those enjoyed by their civilian counterparts.
Jurisdiction of Military Courts. Whether a civilian court has jurisdiction to decide a particular case depends upon several factors, including the status of the parties (age, legal residence, etc.), the type of legal issue involved (criminal or civil, contract dispute, tax delinquency, marital dispute, etc.), and geographical factors (crime committed in New York, contract dispute regarding Florida real estate, etc.). Courts-martial jurisdiction is concerned primarily with the following two questions:
- Personal jurisdiction; that is, is the accused a person subject to the UCMJ?
- Subject-matter jurisdiction; that is, is the conduct prescribed by the UCMJ?
If the answers are "yes" in both instances, then, and only then, does a courts-martial panel have jurisdiction to decide the case.
Personal Jurisdiction: Courts-martial jurisdiction does not exist over a person unless he or she is subject to the UCMJ, as defined by Article 2, UCMJ. Article 2 states the following persons are among those subject to the UCMJ:
- Members of a regular component of the Armed Forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the Armed Forces; inductees from the time of their actual induction into the Armed Forces; and other persons lawfully called or ordered into, or to duty in or for training in, the Armed Forces, from the dates when they are required by the terms of the call or order to obey it.
- Cadets, aviation cadets, and midshipmen.
- Members of a Reserve component while on inactive-duty training; but, in the case of members of the US Army National Guard and US Air National Guard, only when in Federal service.
- Retired members of a Regular component of the Armed Forces entitled to pay.
Since the enactment of the UCMJ, the Supreme Court has held that the military cannot constitutionally exercise jurisdiction over civilian dependents of members of the Armed Forces. Additionally, the US Court of Appeals for the Armed Forces has held that the military lacked jurisdiction over civilian employees of the Armed Forces during the Vietnam Conflict, even though the alleged crimes were committed within the combat zone. The court held that the phrase "in time of war" contained in Article 2(10), UCMJ, means a war formally declared by Congress.
Subject-Matter Jurisdiction. Generally, courts-martial have power to try any offense under the code except when prohibited from so doing by the Constitution. Jurisdiction of courts-martial depends solely on the accused's status as a person subject to the UCMJ, and not on the "service-connection" of the offense charged. For example, a person subject to the UCMJ is caught shoplifting from a local merchant. The member could be tried by courts-martial, even though the offense itself is not service-connected in a traditional sense.
Continued in Part 2-- Counseling, Reprimands, and Extra Training.
