# Petition for Writ of Certiorari — Cline v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0634%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1045 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0634%3A1. Public record. Not legal advice.