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

p e r s o n s u n d e r t h e l a w o f w a r . S e e R . C . M .
201(f)(1)(B).
(c) Attachment of jurisdiction over the person.
(1) In general. Court-martial jurisdiction attaches
over a person when action with a view to trial of
that person is taken. Once court-martial jurisdiction
over a person attaches, such jurisdiction shall continue
for all purposes of trial, sentence, and punishment,
notwithstanding the expiration of that person’s
term of service or other period in which that person
was subject to the code or trial by court-martial.
When jurisdiction attaches over a servicemember on
active duty, the servicemember may be held on active
duty over objection pending disposition of any
offense for which held and shall remain subject to
the code during the entire period.
Discussion
Court-martial jurisdiction exists to try a person as long as that
person occupies a status as a person subject to the code. See also
Article 104 and 106. Thus, a servicemember is subject to courtmartial
jurisdiction until lawfully discharged or, when the servicemember’s
term of service has expired, the government fails to
act within a reasonable time on objection by the servicemember
to continued retention.
Court-martial jurisdiction attaches over a person upon action
with a view to trial. Once court-martial jurisdiction attaches, it
continues throughout the trial and appellate process, and for purposes
of punishment.
If jurisdiction has attached before the effective terminal date
of self-executing orders, the person may be held for trial by courtmartial
beyond the effective terminal date.
(2) Procedure. Actions by which court-martial jurisdiction
attaches include: apprehension; imposition
of restraint, such as restriction, arrest, or confinement;
and preferral of charges.
Rule 203. Jurisdiction over the offense
T o t h e e x t e n t p e r m i t t e d b y t h e C o n s t i t u t i o n ,
courts-martial may try any offense under the code
and, in the case of general courts-martial, the law of
war.
Discussion
(a) In general. Courts-martial have power to try any offense
under the code except when prohibited from so doing by the
Constitution. The rule enunciated in Solorio v. United States, 483
U.S. 435 (1987) is that jurisdiction of courts-martial depends
solely on the accused’s status as a person subject to the Uniform
Code of Military Justice, and not on the “service-connection” of
the offense charged.
R.C.M. 204(b)(1)
(b) Pleading and proof. Normally, the inclusion of the accused’s
rank or grade will be sufficient to plead the service status
of the accused. Ordinarily, no allegation of the accused’s armed
force or unit is necessary for military members on active duty.
See R.C.M. 307 regarding required specificity of pleadings.
Rule 204. Jurisdiction over certain reserve
component personnel
( a ) S e r v i c e r e g u l a t i o n s . T h e S e c r e t a r y c o n c e r n e d
shall prescribe regulations setting forth rules and
procedures for the exercise of court-martial jurisdiction
and nonjudicial punishment authority over reserve
component personnel under Article 2(a)(3) and
2(d), subject to the limitations of this Manual and
the UCMJ.
Discussion
Such regulations should describe procedures for ordering a reservist
to active duty for disciplinary action, for the preferral,
investigation, forwarding, and referral of charges, designation of
c o n v e n i n g a u t h o r i t i e s a n d c o m m a n d e r s a u t h o r i z e d t o c o n d u c t
nonjudicial punishment proceedings, and for other appropriate
purposes.
See definitions in R.C.M. 103 (Discussion). See paragraph 5e
and f, Part V, concerning limitations on nonjudicial punishments
imposed on reservists while on inactive-duty training.
Members of the Army National Guard and the Air National
Guard are subject to Federal court-martial jurisdiction only when
the offense concerned is committed while the member is in Federal
service.
(b) Courts-Martial
(1) General and special court-martial proceedings.
A member of a reserve component must be on
active duty prior to arraignment at a general or special
court-martial. A member ordered to active duty
pursuant to Article 2(d) may be retained on active
duty to serve any adjudged confinement or other
restriction on liberty if the order to active duty was
a p p r o v e d i n a c c o r d a n c e w i t h A r t i c l e 2 ( d ) ( 5 ) , b u t
such member may not be retained on active duty
pursuant to Article 2(d) after service of the confinement
or other restriction on liberty. All punishments
remaining unserved at the time the member is released
from active duty may be carried over to subsequent
periods of inactive-duty training or active
duty.
Discussion
An accused ordered to active duty pursuant to Article 2(d) may
be retained on active duty after service of the punishment if
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