Petition for Writ of Certiorari — Cline v. United States

0 bs 89-8 07 ‘j Tre “ei '

| nov 22 1a

JOSEPH F. SPANIOL., JR.

No.

In the Supreme Court of the United States

OCTOBER TERM, 1989

KEITH L. CLINE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The

Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bidg 5683

Bolling AFB, DC 20332

202) 767-1562

Counsel of Record

BERNARD E, DOYLE, JR.

Captain, Office of The

Judge Advocate General

United States Air Force

Counsel for Petitioner

NOVEMBER 1989

QUESTION PRESENTED

Whether Congress intended to permit military courts-

martial to have in personam jurisdiction over reservists

prior to their reporting for active duty.

(1)

TABLE OF CONTENTS

Page

Opinions below I

Jurisdiction ... |

Constitutional and Regulatory Provisions Involved 2

Statement of the Case ues 2

Reasons for Granting the Writ 3

Conclusion ... 8

Appendix A la

Appendix B 10a

TABLE OF AUTHORITIES

Cases:

Alien v. Grand Central Aircraft Co., 347 U.S. 534,

98 L.Ed.2d 933, 74. S.Ct. 745 (1954) 4

National R. Passenger Corp. v. National Ass'n o/

R. Passengers, 414 U.S. 453, 38 L.Ed.2d 646, 94

S.Ct. 690 (1974) ~ a 6

United States v. Cline, 29 M.J. 83 (C.M.A,. 1989) se *

6.7

United States v. Cline, 26 M.J. 1005 (A.F.C.M.R.

1988) | Ke

Vason v. United States, 369 F.Supp. 1202 (N.D

Ga. 1973) aff'd 491 F.2d (Sth Cir. 1974) 6

Constitutional, Statutory and Regulatory Authorities:

United States Constitution, Article Ll, Sec. 8 2

10 U.S.C. § 867(h) (Supp IIL 1985) |

10 U.S.C. § 1074a (1986) 5

10 U.S.C. § 1L086(c) (1986) 5

10 U.S.C. § 1475(a) (1986) 5

10 U.S.C. § 1476(a) (1986) 5

lO U.S.C. § 1480(c) (1988) 6

(111)

IV

Statutory and Regulatory Authorities — Continued: Page

28 U.S.C. § 1259(3) (Supp III 1985) .. l

38 U.S.C. § 106(d) (1986) ....... 6

44 Comp. Gen. 408 (1965) ............. 6

Pe CE Ss TR UO oo onc ccc ccsccccccce 6

Article 2(a), U.C.M.J., 10 U.S.C. 802(a) ..... 7+. + |,

Article 2(a), The Articles of War, (Sec. 1, ch. Hl,

Act of June 4, 1920 (41 Stat. 787), as amended.) . 5

H.R. Rep. No. 491, 81st Cong., Ist Sess. (1949) ... 5

S. Rep. No. 486, 81st Cong., Ist Sess. (1949) 5, 6

DODPM, Part VIII, Ch. 2, Sec. B, Para. 80211 6

os Fo A | ee 6

Uniform Code of Military Justice: Hearings Before

a Subcomm. of the Comm. on Armed Services:

House of Representatives, 8ist Cong., Ist Sess.

on H.R. 2498 (1949) ie 4,5

Miscellaneous:

Winthrop, Military Law and Precedents, (2d Ed.

1920)

In the Supreme Court of the Anited States

OCTOBER TERM, 1989

No.

KEITH L. CLINE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Keith L. Cline, respectfully prays that a

writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on September 29, 1989.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 29 M.J. 83 (C.M.A. 1989) (Appendix

A). The opinion of the Air Force Court of Military Review

is reported at 26 M.J. 1005 (A.F.C.M.R. 1988) (Appendix

B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on September 29, 1989. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1259(3)

(Supp II 1985) and 10 U.S.C. § 867(h) (Supp III 1985).

(1)

+

CONSTITUTIONAL AND REGULATORY PROVISIONS

INVOLVED

Article I, Section 8 of the Constitution of the United

States provides in relevant part:

Section 8. The Congress shall have the Power To

lay and collect Taxes, Duties, Imposts and Ex-

cises, to pay the Debts and provide for the com-

mon Defence and general Welfare of the United

States; ...

Article 2 of the Uniform Code of Military Justice, 10

U.S.C. § 802 provides in relevant part:

(a) The following persons are subject to this

chapter:

(1) 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 in-

duction 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.

STATEMENT OF THE CASE

The petitioner, an Air Force Reserve Staff Sergeant

(E-5), was tried by a special court-martial in a judge alone

trial at Norton Air Force Base, California on June 17,

1987 and January 29, 1988. He pled not guilty to one

specification of wrongful distribution of marijuana. The

petitioner was found guilty of the offense and was sen-

tenced to a bad conduct discharge and reduction in rank to

airman basic (E-1).

The distribution occurred at petitioner’s residence in

Highland, California at approximately 8:30 a.m. on April

25, 1987. Petitioner reported for his annual active duty

training requirement at approximately 4 p.m. that same

day pursuant to valid military order.

The distribution had been arranged by an informant for

the Air Force Office of Special Investigations (AFOSI)

who had been directed to set up the buy on that morning

before petitioner reported for duty, rather than on the

night before active duty was to begin. AFOSI agents

searched the informant and then maintained continuous

surveillance upon the informant until after the distribu-

tion.

Upon return from a two week tour of duty at Kadena

Air Base, Japan, petitioner was apprehended by the

AFOSI and retained on active duty to be tried by court-

martial.

The United States Air Force Court of Military Review

affirmed appellant’s conviction by citing an Air Force

strength accounting regulation and interpreting the term in

Article 2(a)(1), U.C.M.J., “from the dates” to mean that

the military had court-martial jurisdiction over the ap-

pellant for the entire day from 0001 hours to 2400 hours.

The Court of Military Appeals affirmed on the basis of

the same strength accounting regulation and by applying

the principle of statutory interpretation expressio unis est

exclusio alterius (“expression of one thing is the exclusion

of another”) to the language in Article 2(a)(1).

REASONS FOR GRANTING THE WRIT

In affirming petitioner’s conviction, the Court of

Military Appeals has departed far from the accepted and

usual course of judicial proceedings by violating the clear,

controlling language and intent of the Congress concerning

the limitations of court-martial jurisdiction over reserve

members of the military. The court has expanded the

power of the U.S. military to exercise U.C.M.J. jurisdic-

tion over the approximately 1,695,000 civilians who are

members of the Reserves or the National Guard. In par-

ticular, the court violated the well accepted principle that

whenever the legislature enacts a provision with a previous

Statute in mind relating to the same subject matter, and

absent an express repeal or amendment, the new provision

should be presumed in accord with the policy embodied in

the previous statute. A/len v. Grand Central Aircraft Co.

347 U.S. 535, 98 L.Ed.2d 933, 74 S.Ct. 745 (1954).

The legislative history clearly shows that the drafters in-

tended to follow precedent established under the Articles

of War on when reservists would become subject to mili-

tary jurisdiction. Mr. Felix Larkin, Assistant General

Counsel of the Department of Defense and executive

secretary to the Department of Defense committee on the

Uniform Code of Military Justice, testified before the

House Hearings on Article 2(a)(1):

Now, the concluding clause in the sentence says all

other than those drafted under the Selective Serv-

ice Act. As to the calling in or perhaps the drafting

in of the Reserves to active duty—the National

Guard and any other organizations which may be

called to active duty, as to them since they are

already members on inactive duty and already

have been sworn in, why the jurisdiction will arise

from the-dates they are required to obey them — |

think the construction there would be when they

actually report for duty or perhaps when they

leave home on their way to report for duty.'

Uniform Code of Military Justice: Hearings before a Subcomm

of the Comm. on Armed Services; House of Representatives, 81st

The Department of Defense committee which drafted

the U.C.M.J. followed the Articles of War language very

closely.? In fact, they included the words “drafted” and

“draft” in the clause pertaining to calling up reservists or

national guardsmen because it had been used in the Ar-

ticles of War.’ Additionally both the House and Senate

reports on this legislation said that Article 2(a)(1) is an

adaptation of Article of War 2(a).*

It is without question that under the Articles of War,

reservists were not subject to military criminal jurisdiction

until their arrival at their place of duty. See Winthrop,

Military Law and Precedents, 95 (2d ed. 1920). Addi-

tionally, a variety of statutes, administrative regulations,

and court decisions have displayed the continu: ng vitality

of this concept since the adoption of the U.C.M.J.°

Cong., Ist Sess. on H.R. 2498 (1949) at p. 855. (Hereatter House

Hearings).

? Article 2(a) of the Articles of War stated the following persons

were subject to military jurisdiction: “(a) All officers, warrant of-

ficers, and soldiers belonging to the Regular Army of the United

States; all volunteers, from the dates of their muster or acceptance in

the military service of the United States; and all other persons /aw/ull)

called, drafted, or ordered into or to duty or for training in, the said

service, from the dates they are required by the terms of the call, draft,

or order to obey the same,” The Articles of War, (Sec. 1, ch. I], Act of

june 4, 1920 (41 Stat. 787), as amended.) (Emphasis added.)

> See House Hearings at-858. The use of the term “draft” created a

great deal of comment because although it did not apply to Selective

Service inductees, many witnesses interpreted it in that manner. As a

result, the Congress changed the language of the Article as it applies to

volunteers and inductees and removed references to “draft” from the

provision relating to Reservists and National Guardsmen tn the final

version of the provision

* See H.R. Rep. No. 491, 8ist Cong., Ist Sess. at 10 (1949), and S

Rep. No. 486, 8ist Cong., Ist Sess. at 7 (1949)

>See 10 U.S.C. § 1074a (1986); 10 U.S.C. § LO86(c) (1986); 10

U.S.C. § 1475(a) (1986); 10 U.S.C. § 1476(a) (1986); 10 U.S.¢

6

The Court of Military Appeals attempted to avoid the

clear intent of the Congress by applying the general princi-

ple of interpretation of statutory interpretation: expressio

unis est exclusio alterius.® Their reliance on this concept

was misplaced for two reasons. First, this Court has stated

that even the most basic principles of statutory interpreta-

tion must yield to clear, contrary evidence of legislative in-

tent. National R. Passenger Corp. v. National Ass’n of R.

Passengers, 414 U.S. 453, 38 L.Ed.2d 646, 94 S.Ct. 690

(1974). The legislative intent of the Congress clearly shows

that they meant the expression “from the dates when” to

mean that reservists or national guardsmen are subject to

the U.C.M.J. beginning at the moment they reported for

duty.

Second, expressio unis est exclusio alterius is simpty-n-

applicable under the circumstances presented in the

legislative history. The maxim is inapplicable if there is

some reason for excluding a matter which would otherwise

be within the statute. Congress had clearly discernible

reasons for referring to draftees and reservists in separate

clauses of Article 2. The legislative history and the Senate

Report clearly show that the difference in this wording ex-

ists to insure that the statute was consistent with language

in the Selective Service Act of 1948.’

The differences in the language used in the provision as

it applies to volunteers and inductees (“from the time of”)

against the language as it applies to other persons (“from

the dates when”) does not mean that Congress intended to

§ 1480(c) (1958); 38 U.S.C. § 106(d) (1986); AFR 35-67, para. 1-2b(1);

DODPM, Part VIII, Ch. 2, Sec. B, para. 80211; 44 Comp. Gen. 408

(1965); 54 Comp. Gen. 523 (1974); and Vason v. United States, 369

F.Supp. 1202 (N.D. Ga. 1973) aff'd, 491 F.2d 1271 (Sth Cir. 1974).

* United States v. Cline, 29 M.J. 83, 86 (C.M.A. 1989).

’ See S. Rep. No. 486, 81st Cong., Ist Sess. at 7 (i949).

change the amenability of reservists and national guards-

men to the U.C.M.J. in the statute.* Existing law, under

the Articles of War, recognized the beginning of military

jurisdiction when a reservist arrived for duty. Congress

sought to avoid confusion by maintaining nearly the same

language in the U.C.M.J. Thus, the purpose for the dif-

ferent wording does not indicate a desire of the legislature

to change the interpretation of the applicable language.

Also, newcomers to the military, inductees and

volunteers, become amenable to the U.C.M.J. at a slightly

different time than Reservists, national guardsmen and

any other persons who are reporting for active duty. The

newcomers are responsible under the Code only after hav-

ing been sworn, not from the moment when they arrive at

the place where they will be sworn. Although this time dif-

ference may often be small, it still could be an important

distinction when a person has last minute second thoughts

about joining the military. Therefore, the different

language employed between these two classes merely

clarifies the slight distinction in the amenability of the two

groups to the U.C.M.J.

§ In his decision, Judge Sullivan indicated that he believed that

members of the National Guard are called into federal service under a

different provision of Article 2, U.C.M.J. Cline, supra at 86.

However, this is an incorrect reading of the provision. The United

States calls National Guardsmen into federal service under the same

provision of Article 2(a)(1), U.C.M.J. as it calls Reservists to active

duty. Therefore, Judge Sullivan’s efforts to distinguish the two

Organizations was pointless.

CONCLUSION

The petitioner submits that he has suffered a denial of

due process of law. Therefore, his petition for writ of cer-

tior2ri should be granted.

RICHARD F. O’HAIR

Colonel, Office of The

Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

BERNARD E. DOYLE, JR.

Captain, Office of The

Judge Advocate General

United States Air Force

Counsel for Petitioner

NOVEMBER 1989

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 61,572

ACM 827577

UNITED STATES, APPELLEE

Vv.

KEITH L. CLINE, STAFF SERGEANT

U.S. AIR FORCE RESERVE, APPELLANT

September 29, 1989

Accused, a staff sergeant in the United States Air Force

Reserve, was convicted by special court-martial convened

at Norton Air Force Base, California, Charles E. Steven-

son, Jr., J., and he appealed. Following limited hearing by

the court, Linda D. Carter, J., on the issue of jurisdiction,

the United States Air Force Court of Military Review, 26

M.J. 1005, affirmed. The United States Court of Military

Appeals, Sullivan, J., held that member of Air Force

Reserve became subject to military jurisdiction at one

minute past midnight on the date on which he was to

report for active duty.

Affirmed.

For Appellant: Captain Bernard E. Doyle, Jr. (argued);

Colonel Richard F. O’Hair and Major Mark R. Bell (on

brief).

For Appellee: Captain Morris D. Davis (argued); Colonel

Joe R. Lamport and Lieutenant Colonel Robert E.

Giovagnoni (on brief).

(la)

2a

OPINION OF THE COURT

SULLIVAN, Judge:

On June 17, 1987, appellant was tried by a military

judge sitting alone as a special court-martial at Norton Air

Force Base, California. Contrary to his pleas, he was

found guilty of wrongful distribution of marijuana, in

violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a. He was sentenced to a bad-

conduct discharge and reduction to the lowest enlisted

grade. The convening authority approved the sentence as

adjudged. On November 24, 1987, the Court of Military

Review ordered a limited hearing on the issue of jurisdic-

tion. After that hearing took place on January 29, 1988,

the Court of Military Review affirmed the findings and

sentence. 26 MJ 1005 (1988).

This Court granted review of the following issue:

WHETHER THE COURT-MARTIAL LACKED

PERSONAM JURISDICTION TO TRY THE

APPELLANT FOR AN OFFENSE COMMIT-

TED PRIOR TO HIS REPORTING FOR AC-

TIVE DUTY.

We hold that court-martial jurisdiction existed over ap-

pellant because he was a reservist On active duty at the time

he committed the charged offense. See Art. 2(a)(1), UC-

MJ, 10 USC § 802(a)(1); Duncan v. Usher, 23 MJ 29, 34

(CMA 1986).

The facts of this case are set forth in the opinion below:

The appellant was a reserve non-commissioned

officer who, along with other members of his

unit, had been called to active duty for deploy-

ment to an overseas locaton [Kadena Air Base,

Japan] for a period of two weeks to satisfy re-

serve requirements. At approximately 0830 hours

3a

on the morning of 25 April 1987, the date he was

| to report for active duty, the charged offense oc-

curred. He pled not guilty to the charge and de-

fended on the theory of entrapment. The military

judge found him guilty as charged.

At trial, as before us, the appellant argues that

the military was without [in] personam jurisdic-

tion to prosecute him for the charged offense, as

such offense was committed prior to the appel-

lant’s commencing travel to his reporting loca-

tion to begin his active duty tour. To fully under-

stand the complicated issue before us it is neces-

| sary to set forth a factual scenario.

| THE AF Form 938, REQUEST AND AU-

| THORIZATION FOR ACTIVE DUTY TRAIN-

ING/ACTIVE DUTY TOUR, is dated 9 March

1987. Since there was no attack on this order

) there is a presumption that it is valid and proper.

| Block 11 of this order contains the reporting

) data. The information contained therein reads

) “0500 1987 APR 25.” The people affected by this

order include the appellant. On 5 April 1987, a

briefing was conducted for all people being de-

ployed as per the above cited order, including the

appellant. Among the items discussed was the

itinerary, which changed the reporting time from

0500 hours to 1600 hours on 25 April 1987. Ar-

tendees were informed that they would be subject

to the Uniform Code of Military Justice one

minute past midnight on the effective date of the

orders.

Because of the change in the reporting hour,

the appellant did not leave his off base residence

to meet the 1600 hour reporting time at Norton

Air Force Base until 1535 hours on 25 April 1987.

earn

4a

26 MJ at 1006-07 (emphasis added).

The evidence of record additionally establishes that the

informant for the Office of Special Investigations was in-

structed not to purchase marijuana from appellant on the

night before he was scheduled to begin active duty but to

wait until the day of April 25, 1987, to consummate the

transaction. Appellant was arrested for the charged of-

fense when he returned from Japan. He was then held on

active duty pending court-martial.

Appellant avers that his status as a civilian did not

change until he departed his home at 1535 hours to report

for active duty at 1600 hours on April 25, 1987. Accord-

ingly, he asserts that his conduct at 0830 hours on that

date was not subject to prosecution at a court-martial.

In support of this contention, he argues that Article 2,

properly construed, imposes a “departure for duty” touch-

stone to determine when a reservist becomes subject to the

military jurisdiction. He asserts that his construction of

this statute is supported by its legislative history, prior

practice with respect to the militia under the Articles of

War, case.law from other courts, and the existence of

special travel pay statutes and regulations for reservists.

We disagree.

To the extent that appellant perceives the critical ques-

tion as One of status, he is correct. In Solorio v. United

States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364

(1987), the Supreme Court recognized that military juris-

diction existed Over a service-member for crimes commit-

ted on or off post as a result of his status as a member of

the armed forces. Status in the armed forces for purposes

of court-martial jurisdiction is generally governed by Arti-

cle 2. See United States v. Cole, 24 MJ 18 (CMA), cert.

denied, U.S. _., 108 S.Ct. 97, 98 L.Ed.2d 58 (1987).

na

Sa

) See generally In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34

L.Ed. 636 (1890). Accordingly, we must turn to the appli-

| cable portions of this status to determine when appellant’s

status changed. United States v. Caputo, 18 MJ 259, 265

(CMA 1984); United States v. Handy, 14 MJ 202 (CMA

1982).

Article 2 states in relevant part:

(a) The following persons are subject to this

chapter:

(1) 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 accept-

ance into the armed forces; inductees

from the time of their actual induction

into the armed forces; and other per-

sons lawfully called or ordered into, or

to duty in or for training in, the armed

forces, from the dates when they are re-

quired by the terms of the call or order

to obey it.

* * > * *

+

(3) Members of a reserve component

while on inactive-duty training, but in

the case of members of the Army Na-

tional Guard of the United States or the

Air National Guard of the United

States only when in Federal service.

(Emphasis added.) Clearly, by the express terms of this

statute, a precise point of inception of jurisdiction (/.e.,

“from the time of”) exists for “volunteers” and “inductees”

under Article 2(a)(1), and for National Guardsmen under

_

;

;

;

;

6a

Article 2(a)(3) (/.e., “only when in Federal service”).

Equally as clear, a different and more general inception

point (/.e., “from the dates when”) exists for “other per-

sons” listed under Article 2(a)(1). Accordingly, our pre-

liminary task is‘to determine appellant’s proper classifi-

cation under this statute.

First, we do not find that appellant was a “volunteer”

within the meaning of Article 2. A “volunteer” is a person

who, for a temporary purpose, fights with the regular mili-

tary forces. See G. Davis, A Treatise on The Military Law

of the United States 27-27a (1913); W. Winthrop, Military

Law and Precedents 87 (2d ed. 1920 Reprint). Cf. Art.

2(b). Appellant had a pre-established membership in an

existing military organization of the United States armed

forces, and he held military rank.

Also, appellant was not a civilian involuntarily receiving

his initial call to military service. He was a member of the

United States Air Force Reserve who was activated for

training. Hence, he is not an “inductee” within the mean-

ing of Article 2(a)(1). Cf. United States v. Ornelas, 2

USCMA 96, 98-99, 6 CMR 96, 98-99 (1952); Winthrop,

supra at 87-88.

Moreover, appellant was not a member of the Air Na-

tional Guard. The Air Force Reserve is a separate

organization, established under 10 USC § 261(a)(6). The

Air National Guard of the United States is established

under 10 USC § 261(a)(5). Pursuant to 10 USC § 261(b),

“Except as otherwise provided in this title, no person may

be a member of more than one reserve component at the

same time.” Moreover, appellant has advanced no argu

ment suggesting any kind of dual membership.

Appellant does, however, qualify as an “other person”

under Article 2. As defined, an “other person” is one who

is NOt a member of a regular component, a volunteer, o1

an inductee. Moreover, he is one who may be “lawfully

7a

called or ordered into, or to duty in or for training in, the

armed forces.” This is precisely what occurred. Appellant

was called for active duty: training, and he does not chal-

lenge the Government’s lawful right to do so.

As a result of his status, appellant was subject to the

Uniform Code of Military Justice and court-martial juris-

diction “from the date[ ]” he was ordered to appear for

training. See Art. 2(a)(1). Inasmuch as the date of April

25, 1987, began one minute past midnight of April 25,

1987, he was subject to the Code and military jurisdiction

from that time. Cf. AFM 30-130, Vol. I, Chapter 22, Sec-

tion B (1986). Accordingly, as he had been previously in-

formed, he was subject to court-martial jurisdiction at the

time of his offense, 0830 hours on April 25, 1987. See

Duncan v. Usher, supra; cf. Woodrick v. Divich, 24 MJ

147, 150 (CMA 1987).

_Appellant’s arguments to the contrary are unpersuasive.

He has cited precatory testimony, made during the House

hearings on Article 2, which tends to support a construc-

tion of “from the dates” language as imposing a departure-

for-duty requirement.' We note, however, that this testi-

mony applied to an earlier version of Article 2, which used

the same “from the dates” language for inductees and

volunteers as well. Yet, the Senate eventually imposed the

more particular time requirement for jurisdiction only on

inductees, volunteers, and members of the National

Guard.? Applying the principle of statutory construction,

“expressio unius est exclusio alterius,” see generally 2A

Sutherland Stat Const § 47.23-25 (Sands 4th ed. 1984

Revision), members of the Reserves do not gain the benefit

' Hearings on H.R. 2498 Before a Subcomm. of the House Armed

Services Comm. 81st Cong., Ist Sess. 855 (1949), reprinted in Index

and Legislative History, Uniform Code of Military Justice (1950)

? S.Rep. No. 486, 81st Cong., Ist Sess. 4 (1949)

8a

Congress intended these other special groups to have. See

United States v. Douse, 12 MJ 473, 476 (CMA 1982).

Appellant’s argument that reservists are equivalent to

members of the militia who were purportedly subject to a

departure-for-duty requirement is equally without merit.

Appellant is a member of the Air Force Reserve. See 10

USC § 261(a)(6). His military service is of a national

character. See 10 USC § 262. The militia, on the other

hand, primarily serves the needs of the individual states.

See U.S. Const. amend. II; cf. United States v. Miller, 307

U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); see generally

10 USC § 311. Accordingly, a reservist is not the equival-

ent of a member of the militia, so prior practice concern-

ing the latter should not control.

Appellant’s contention that case law from other sources

supports his position is likewise unpersuasive. In one in-

Stance, appellant cites a decision of the Comptroller

General regarding a deceased National Guardsman. 54

Comp. Gen. 523 (1974). That decision is not controlling,

given the distinction made in Article 2 between reservists

and National Guardsmen. Compare Art. 2(a)(1) with Art.

2(a)(3). A second Comptroller General decision also cited

is not On point, for it is premised upon a statutory con-

struction of 10 USC § 8721(2), payment of benefits. See 44

Comp. Gen. 408 (1965). That decision does not involve

construction of Article 2. See Pearson v. Bloss, 28 MJ 376

(CMA 1989). Moreover, appellant's reliance on Vason vy.

United States, 369 F.Supp. 1202 (N.D.Ga.1973), affd,

491 F.2d 1271 (Sth Cir.1974), is unwarranted. There, the

District Court held that a reserve officer’s family was not

entitled to benefits when the officer died the day before his

active duty date. Here, appellant was arrested for an of-

tense committed on the day of his activation, not the day

before.

9a

Appellant’s final argument is that the existence of cer-

tain statutes or regulations covering travel for reservists in-

dicates that a departure-for-duty rule applies for court-

martial jurisdiction over them. We decline to adopt ap-

pellant’s strained extrapolation of these statutes and

regulations. Statutes or regulations which authorize travel

pay do not themselves measure status. See Duncan vy.

Usher, 23 MJ at 31. In any event, appellant was paid a full

day's wage for his service on April 25, 1987. Accordingly,

it is immaterial whether his actual reporting time was 0500

hours, as originally planned, or 1600 hours, as actually oc-

curred.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge Everett and Judge Cox concur.

' See Matthew 20:12-16.

10a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 827577 (f rev)

UNITED STATES

V.

STAFF SERGEANT KEITH L. CLINE, FR 281-54-8380

UNITED STATES AIR FORCE

18 August 1988

Sentenced adjudged 17 June 1987 by SPCM con-

vened at Norton Air Force Base, California.

Military Judge: Charles E. Stevenson, Jr. (sitting

alone).

Approved Sentence: Bad conduct discharge and

reduction to airman basic.

Appellate Counsel for the Appellant: Colonel

Leo L. Sergi and Major Mark R. Bell. Appellate

Counsel for the United States: Colonel Joe R.

Lamport, Lieutenant Colonel Robert E. Gio-

vagnoni, Lieutenant Colonel Morris A. Tanner,

Jr. and Captain Morris D. Davis.

Before

HODGSON, FORAY and HOLTE

Appellate Military Judges

lla

DECISION UPON FURTHER REVIEW

HOLtTE, Judge:

Before a judge alone special court-martial the appellant

was convicted of one charge of wrongful distribution of

marijuana in violation of Article 112a, UCMJ.

The appellant was a reserve non-commissied officer

who, along with other members of his unit, had been

called to active duty for deployment to an overseas loca-

tion for a period of two weeks to satisfy reserve require-

ments. At approximately 0830 hours on the morning of 25

April 1987, the date he was to report for active duty, the

charged offense occurred. He pled not guilty to the charge

and defended on the theory of entrapment. The military

judge found him guilty as charged.

At trial, as before us, the appellant argues that the mili-

tary was without personam jurisdiction to prosecute him

for the charged offense, as such offense was committed

prior to the appellant’s commencing travel to his reporting

location to begin his active duty tour. To fully understand

the complicated issue before us it is necessary to set forth a

factual scenario.

The AF Form 938, REQUEST AND AUTHORIZA-

TION FOR ACTIVE DUTY TRAINING/ACTIVE DU-

TY TOUR, is dated 9 March 1987. Since there was no at-

tack on this order there is a presumption that it is valid and

proper. Block 11 of this order contains the reporting data.

The information contained therein reads “0500 1987 APR

25.” The people affected by this order include the appel-

lant. On 5 April 1987, a briefing was conducted for all

people being deployed as per the above cited order, in-

cluding the appellant. Among the items discussed was the

itinerary, which changed the reporting time from 0500

hours to 1600 hours on 25 April 1987. Attendees were in-

formed that they would be subject to the Uniform Code of

iia cate in e

12a

Military Justice one minute past midnight on the effective

date of the orders.

Because of the change in the reporting hour, the appel-

lant did not leave his off base residence to meet the 1600

hour reporting time at Norton Air Force Base until 1535

hours on 25 April 1987.

To resolve the issue as to whether the military had per-

sonam jurisdiction to prosecute the appellant requires an

analysis of procedures involved in bringing reserve person-

nel on active duty for their annual tour of duty. The

authority for these procedures are contained in Air Force

Regulation 10-7, Administrative Orders (Sept 86); Air

Force Manual 30-130, Base Level Military Personnel

System, Users Manual, Volume I, chapters 22, (Oct 86);

and DoD Military Pay and Allowances Entitlements

Manual, Table 1-2-1, Rule 7. It is these authorities that

were used by the personnel specialists who testified at trial

in explaining the various statuses of reserve personnel.

We start this analysis be defining the terms (1) self ac-

tivating orders, (2) active duty status and (3) active duty

service. Self executing orders are those, which if properly

authenticated, require no further action to become effec-

tive. Active duty status is the customary term utilized to

maintain an individual in a proper format and for ac-

countability by the military personnel system. Active ser-

vice is the term applied to the time when an individual ac-

tually reports and is ready to perform military duties.

Applying these defined terms to the evidence of record

we arrive at the following conclusions. The AF Form 938,

dated 9 March 1987, was a properly authenticated order.

This order is what is known as a self activating or self ex-

ecuting order, which means that at 0001 hours, on 25 April

1987, the appellant was on active duty status. It should be

noted that according to the AF Form 938, appellant’s ac-

tive service was to start at 0500 on 25 April 1987, however

ne eae E NGS

Se eee ee

l3a

this time was later changed to 1600 on the same date. For

clarification, it is noted that duty status does not depend

on duty service. There is no relationship between status

and duty, however a reservist must be in status to perform

duty. It is status, as Opposed to duty, that determines

when pay and other entitlements and benefits accrue.

Although the appellant did not have to report for duty un-

til 1600 hours on 25 April 1987, the evidence establishes

that his pay and other entitlements started as of 0001

hours on that date. The 1600 hour reporting time is of no

significance in determining jurisdiction. This time element

is controlled by the organization and its only purpose is to

determine when the member must be present to begin ac-

tive duty service. It would be illogical to conclude that

under these circumstances the military did not have in per-

sonam jurisdiction over the appellant.

Article 2(a)(1) of the Uniform Code of Military Justice

states that “. . . persons lawfuliy 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” are subject to the UCMJ. The appellant

argues that he was not subject to the Code until 1600 hours

on 25 April 1987 because that was the hour that his

military duties were to begin. To accept this argument is to

deny the uniformed services a means for a systematic ac-

counting of force strength during any given 24 hour period

of time. The cited code provision refers to “from the dates

when they are required by the terms of the call or order to

obey it.” It does not refer to hours of the day or when

reporting to active duty. We interpret the term “from the

dates” to mean that a day is that time between the hours of

0001 hours and 2400 hours. Therefore, we conclude that at

0001 hours on 25 April the appellant was under jurisdic-

tion of the military for prosecution purposes for the

charged offense which occurred at approximately 0830 on

l4a

that morning. The assigned issue is decided against the

appellant.

We have examined the record of trial and conclude that

the findings of guilty and sentence are correct in law and

fact and that no error materially prejudicial to the

substantial rights of the appellant was committed. Accord-

ingly, the findings and sentence are

AFFIRMED.

Chief Judge HODGSON and Senior Judge Foray concur.

[SEAL]

OFFICIAL:

/s/ Mary V. Fillman

MARY V. FILLMAN

Captain, USAF

Chief Commissioner

US. GOVERNMENT PRINTING OFFICE 1989—252-264/62085