2008 edition - Fort Sam Houston - U.S. Army

220 (C.M.A. 1979); United States v. Smith, 4 M.J. 265 (C.M.A.
1978); United States v. Hutchins, 4 M.J. 190 (C.M.A. 1978);
U n i t e d S t a t e s v . H o u t , 1 9 U . S . C . M . A . 2 9 9 , 4 1 C . M . R . 2 9 9
(1970). See also Dickenson v. Davis, 245 F.2d 317 (10th Cir.
1957).
Subsection (B)(ii) describes what jurisdiction remains under
Article 3(a) in light of United States ex rel. Toth v. Quarles, 350
U.S. 11 (1955). See also United States v. Clardy, 13 M.J. 308
(C.M.A. 1982).
The exceptions is subsection (B)(iii) are restated in slightly
different language for clarity from paragraph 11 b of MCM, 1969
(Rev.). Exception ( b) is based on United States v. Clardy, supra.
See also 14 M.J. 123 (C.M.A. 1982). As to exception (c), jurisdiction
over prisoners in the custody of the armed forces, see
Kahn v. Anderson, 255 U.S. 1 (1921); United States v. Nelson, 14
U.S.C.M.A. 93, 33 C.M.R. 305 (1963). See also Mosher v. Hunter,
143 F.2d 745 (10th Cir. 1944), cert. denied, 323 U.S. 800
(1945). Although it has not been judicially interpreted, the sentence
of paragraph 11b of MCM, 1969 (Rev.) has been included
here. The principle it expressed has long been recognized. See the
last sentence in paragraph 11b of MCM, 1951; the last sentence
of the third paragraph of paragraph 10 of MCM (Army), 1949;
and the last sentence of the fourth paragraph of paragraph 10 of
MCM, 1928. As to jurisdiction under Article 3(b), see Wickham
v. Hall, 12 M.J. 145 (C.M.A. 1981); Wickham v. Hall, 706 F.2d
713 (5th Cir. 1983).
Subsection (3) described the jurisdiction under Article 2(a)(8).
See also 33 U.S.C. § 855; 42 U.S.C. § 217.
Subsection (4) of the discussion points out that jurisdiction
over civilians has been restricted by judicial decisions. See generally
Reid v. Covert, 354 U.S. 1 (1957); Toth v. Quarles, supra.
The MCM 1969 (Rev.) referred to such limitations only in footnotes
to Articles 2(a)(10) and (11) and 3(a). The discussion of
R.C.M. 202 is a more appropriate place to bring attention to these
matters. A brief reference in the discussion was considered sufficient,
while the analysis provides primary sources of law in the
area, should an issue arise on the subject.
The second sentence in the subsection (4) of discussion is
based on McElroy v. United States ex rel. Guagliardo, 361 U.S.
281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Kinsella v.
United States ex rel. Singleton, 361 U.S. 234 (1960); Reid v.
Covert, supra. It is not settled whether “peacetime” as used in
these decisions means all times other than a period of declared
war or whether “peacetime” ceases when armed forces are involved
in undeclared wars or hostilities. There is some authority
for the latter view. See W. Winthrop, Military Law and Precedents,
101 (2d ed. 1920 reprint).
With respect to Article 2(a)(10), the Court of Military Appeals
has held that “time of war” means a formally declared war (based
on U.S. Const., art. I, sec. 8, cl. 11). United States v. Averette, 19
U.S.C.M.A. 363, 41 C.M.R. 363 (1970). But cf. Latney v. Ignatius,
416 F.2d 821 (D.C. Cir. 1969) (assuming without deciding
t h a t A r t i c l e 2 ( a ) ( 1 0 ) c o u l d b e i n v o k e d d u r i n g p e r i o d o f u n -
declared war, no court-martial jurisdiction existed over civilian
merchant seaman for murder in Vietnam because crime and accused
were not sufficiently connected with the military). See also
Analysis, R.C.M. 103(19).
The words “in the field” and “accompanying an armed force”
have also been judicially construed. “In the field” implies military
ANALYSIS
App. 21, R.C.M. 202(b)
operations with a view to the enemy. 14 Ops. Atty Gen. 22
(1872). The question whether an armed force is “in the field” is
not to be determined by the locality in which it is found, but
rather by the activity in which it is engaged. Hines v. Mikell, 259
F.28, 34 (4th Cir. 1919). Thus, forces assembled in the United
States for training preparatory for service in the actual theater of
war were held to be “in the field.” Hines v. Mikell, supra. A
merchant ship and crew transporting troops and supplies to a
battle zone constitute a military expedition “in the field.” In re
Berue, 54 F. Supp. 252 (S.D. Ohio 1944); McCune v. Kilpatrick,
53 F.Supp. 80 (E.D. Va. 1943). See also Ex parte Gerlach, 247
F.616 (S.D.N.Y. 1917); United States v. Burney, 6 U.S.C.M.A.
776, 21 C.M.R. 98 (1956); Hearings on H.R. 2498 Before a
Subcomm. of the House Comm. on Armed Services, 81st Cong.,
1st Sess. 872–3 (1949). But see, W. Winthrop, supra at 100–102;
Reid v. Covert, supra at 34 n. 61.
One may be “accompanying an armed force” although not
directly employed by it or the Government. For example, an
employee of a contractor engaged on a military project or serving
on a merchant ship carrying supplies or troops is “accompanying
an armed force.” Perlstein v. United States, 151 F.2d 167 (3d Cir.
1945), cert. dism., 328 U.S. 822 (1946); In re DiBartolo, 50
F.Supp. 929 (S.D.N.Y. 1943); In re Berue, supra; McCune v.
Kilpatrick, supra. To be “accompanying an armed force” one’s
presence within a military installation must be more than merely
incidental; it must be connected with or dependent upon the
activities of the armed forces or its personnel. Although a person
“accompanying an armed force” may be “serving with” it as well,
the distinction is important because even though a civilian’s contract
with the Government ended before the commission of an
offense, and hence the person is no longer “serving with” an
armed force, jurisdiction may remain on the ground that the
person is “accompanying an armed force” because of continued
connection with the military. Perlstein v. United States, supra;
Grewe v. France , 75 F.Supp. 433 (E.D. Wis. 1948).
McElroy v. Guagliardo, supra at 285–87, discusses possible
methods for extending court-martial jurisdiction over civilians in
some circumstances. To date these methods remain undeveloped.
See also Everett and Hourcle, Crime Without Punishment—Exservicemen,
Civilian Employees and Dependents, 13 A.F.JAG L.
Rev. 184 (1971). Civilians may be tried by general court-martial
under Article 18 and the law of war. See R.C.M. 201(f)(1)(B);
202(b). See also Article 21. This includes trial by court-martial in
places where the United States is an occupying power. See e.g.,
Madsen v. Kinsella, 343 U.S. 341 (1952) [upholding jurisdiction
of military commission to try a dependent spouse in occupied
Germany in 1950. Although a state of war with Germany still
t e c h n i c a l l y e x i s t e d ( s e e P r o c l a m a t i o n N o . 2 9 5 0 , 3 C . F . R .
(1948–53 Comp.) 135 (1951)) hostilities were declared terminated
on 31 December 1946 ( see Proclamation No. 2714, 3 C.F.R.
(1948–53 Comp.) 99 (1947)) and the United States Supreme
Court observed in dicta that military courts might have jurisdiction
in occupied territory even in peacetime, 343 U.S. at 360)].
See also Wilson v. Bohlender, 361 U.S. 281, 283 n. 2 (1960);
Kinsella v. Singleton, supra at 244.
(b) Offenses under the law of war. This subsection is based on
Article 18. See also Article 21. The phrase “offense subject to
trial by court-martial” or “offense triable by court-martial” is used
in the R.C.M. in recognition of the fact that the Manual for
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