Pleading Jurisdiction. See , R.C.M. 307(c)(3) Discussion at (C)(iv) and (F).

  • Lack of Jurisdiction: Raised by Motion to Dismiss, R.C.M. 907. May be made at any stage of the proceeding.
  • Burden of Proof. Although R.C.M. 905 states that the burden of proof in a motion contesting jurisdiction is a preponderance of the evidence, if contested at trial, the government must prove jurisdiction beyond a reasonable doubt.
    1. United States v. Bailey , 6 M.J. 965 (N.M.C.M.R. 1979); R.C.M. 905(c)(1)(preponderance); R.C.M. 905(c)(2)(B) (burden of persuasion on government).
    2. United States v. Marsh , 15 M.J. 252 (C.M.A. 1983) (for “peculiarly military” offenses like AWOL, an accused’s military status is an element of the offense which must be proved beyond a reasonable doubt to the fact finders). See also United States v. Roe, 15 M.J. 819 (N.M.C.M.R. 1983).
    3. United States v. Chodara , 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer ordered to AD for training; provided urine sample that tested positive for cocaine pursuant to a urinalysis administered within 36 hours of initiation of AD period. Held: no subject matter jurisdiction because the government failed to prove beyond a reasonable doubt that the accused was subject to the UCMJ at the time he “used” the cocaine).