Jurisdiction Over the Reserve Component
Overview of the jurisdiction over the reserve component:
BOTTOM LINE: Army policy states that Reserve Component soldiers are subject to the UCMJ whenever they are in a Title 10 status: Inactive Duty Training (IDT), Active Duty Training (ADT), Annual Training (AT), or Active Duty (AD). See, AR 27-10, para. 21-2.
1. United States v. Wall, 1992 WL 198418 (A.F.C.M.R. 1992) (unpub. opinion) (jurisdiction existed over the accused when absented himself during second half of training day).
2. United States v. Morse, No. ACM 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim. App. Oct. 4, 2000) petition for grant of review denied, 2001 CAAF LEXIS 1021 (Aug. 24, 2001) (accused’s duty was not complete until travel forms were signed even if he did not sign the fraudulent travel forms until after he completed his travel).
3. See also, AR 27-10, Chp. 21; Air Force Instruction 51-201; and Paragraph II.E., this outline.
UCMJ, art. 3(d). Prevents the termination of court-martial jurisdiction over a member of a Reserve Component who violates the UCMJ while in a Title 10 status by the member’s release from active duty or inactive-duty training. Closes jurisdiction gaps recognized by Duncan v. Usher, 23 M.J. 29 (C.M.A. 1986).
Procedures and Restrictions: AR 27-10, Chapter 21 establishes procedures for taking punitive action (Art. 15, court-martial) against RC Soldiers.
Procedure: Involuntary Recall to Active Duty. UCMJ, art. 2(d), authorizes a member of a Reserve Component, who is the subject of proceedings under Articles 15 or 30, UCMJ to be ordered involuntarily to active duty for: Article 32 investigations, trial by court-martial, and nonjudicial punishment.
1.Restrictions on the involuntary recall process.
a) A member may only be ordered to active duty by an active component general court-martial convening authority (GCMCA). UCMJ, art. 2(d)(4); AR 27-10, para. 21-3.
b) Unless the order to involuntary active duty was approved by the appropriate Service Secretary, the member may not be:
(1) sentenced to confinement;
(2) forced to serve any punishment involving restriction on liberty except during a period of inactive duty training or active duty; or
(3) placed in pretrial confinement. UCMJ, art. 2(d)(5).
c) General and Special Courts-Martial. Prior to arraignment the reservist must be on active duty. R.C.M. 204(b)(1).
d) Summary Courts-Martial. Can be initiated and tried within the reserve structure and without active duty involvement. R.C.M. 204(b)(2). But the summary court-martial officer must be placed on active duty. UCMJ,
art. 25; R.C.M. 1301.
Impact on the National Guard
1. 32 U.S.C. § 505 – Training in a state status – No federal military jurisdiction.
2. 10 U.S.C. § 672 – Training in a federal status – Guard member is subject to jurisdiction and the reserve jurisdiction legislation’s major provisions. This includes involuntary recall. But see In United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (holding that a Guard member in Title 10 status was not subject to an inspection under MRE 313 ordered by a commander in Title 32 status and suppressing the positive urinalysis resulting from that inspection).
3. Federal status continues until the guard member has completed his federal service (excluding AWOL time) and federal jurisdiction exists not withstanding state action to terminating jurisdiction. United States v. Wilson, 53 M.J. 327 (2000).