nature of his discharge is arguably a tag put on him for future dealings with civilian society. Should the military characterize a discharge which will have affect in the civilian society? Should an agency independent of the armed forces, such as the Veteran's Administration or other civilian agency characterize a discharge based upon a background file provided by the military? As a commander, what is the scope of your concern when wishing to get rid of a problem soldier: simply get rid of him or, characterize the nature of his discharge, or both.

CHAPTER 5

THE COURT-MARTIAL SYSTEM

JURISDICTION

Since the American Revolution, soldiers serving in the Armed Forces of the United States have observed laws designed to promote and maintain discipline and security within the military. In cases where a soldier in the Armed Forces has failed to comply with the law as set forth, the military has failed to comply with the law as set forth, the military has been empowered to exercise jurisdiction over the individual and the offense.

The sources authorizing the exercise of military jurisdiction in such cases may be divided under two headings: constitutional provisions and international law. The pertinent provisions of the United States Constitution serving as a source of military jurisdiction are found in the power granted to the Congress (Article I, Section 8), in the authority vested in the President (Article 11, Section 2), and in the guarantees prescribed in the Fifth Amendment. The sources of military jurisdiction in international law are the law of war, the visiting forces doctrine, and express agreements concerning the exercise of jurisdiction.

All of the military law that has developed within the military criminal law system can be traced to one of the sources set forth above. It is these sources and the laws that have been enacted on the basis of these sources that serve as the authority for the exercise of jurisdiction in the military. Court-martial jurisdiction therefore is defined as a courtmartial's power to try and determine a case. If a court-martial has the power under law to try a case, its judgment is valid. If a court-martial does not have the power under law to decide a case, its judgment is not valid and is void.

The Uniform Code of Military Justice requires that three elements must be established if the judgment of a court-martial is to be valid. First, the court-martial must be convened by an official empowered to convene it. The Uniform Code of Military Justice provides that only certain persons have the power to order that soldiers be tried by court-martial. For example, at most large military installations, only the Commanding General of the post can order that a soldier be tried by general court-martial. (See Article 22, UCMJ)

Second, it must be established that the membership of the court

martial was in accordance with the law with respect to the number and competency to sit on the court. For example, the Uniform Code of Military Justice provides that in general courts-martial there must be at least five persons serving as jurors. If it is found that there were less than five jurors serving on a general court-martial, the court-martial membership would not be in accordance with the law and the judgment rendered by the court-martial would be void (See Article 29(b), UCMJ).

Third, it must be established that the court-martial had the power to try the person and the offense charged. If an accused has been inducted improperly into military service or if an accused has been discharged from military service, a court-martial may not have the power to try him. Also, if an offense having no service connection is committed in the civilian community, the court-martial does not have the power to try the accused. If it can be established that the court-martial which tried a soldier did not have the power to try him or the offense he was charged with committing, the judgment of the court-martial would be void.

The type of jurisdiction problems that arise most often in military law are those involving allegations that the court-martial which tried an accused did not have jurisdiction to try him or the offense with which he was charged. With respect to jurisdiction over the person, Article 2(1) of the Uniform Code of Military Justice lists those persons who can be tried by military court-martial:

Members of a regular component of the armed forces including those awaiting discharge after the expiration of their terms of enlistment; volunteers from the time of their muster or acceptance 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 term of the call or order to obey it.

Article 2 also lists 11 other types of persons who are subject to courtmartial jurisdiction. Within this group are service academy cadets and midshipmen, persons serving sentences imposed by courts-martial, prisoners of war in custody of the armed forces, and civilians serving in time of war. Many of the problems involving jurisdiction over the person concern inception and termination of inductions and enlistments.

With respect to the exercise of court-martial jurisdiction over of fenses committed by servicemen, some major changes have occurred in recent years which have limited severely the power of courts-martial to try such offenses. Since the time of the American Revolution, the military has been given broad discretion in dealing with its own personnel in matters relating to the trial of military offenses. As early as 1863, the Supreme Court of the United States recognized the importance of the military's exercising jurisdiction over its personnel and offenses committed by its personnel. For this reason, the Court has refrained from involvement in cases where the military establishment has dealt with its own personnel.

Consonant with a recognition of the broad discretion of the military, it generally was assumed that military status was a sufficient basis for the

exercise of military jurisdiction over an accused and the offenses committed by him. In 1969, however, the Supreme Court in the landmark case of O'Callahan v. Parker, 395 U.S. 258 (1969), disspelled this assumption and significantly changed the law in the military as it related to jurisdiction over the offense.

In O'Callahan, the accused was charged with attempted rape, housebreaking and assault with intent to commit rape. He was tried and convicted by general court-martial and sentenced to a dishonorable discharge, confinement at hard labor for 10 years and reduction to the lowest enlisted grade. His conviction was affirmed by an Army Board of Review and the United States Court of Military Appeals denied his petition for review.

In 1966, while serving the confinement imposed as a result of the court-martial O'Callahan filed a petition for a writ of habeas corpus in federal district court alleging that the court-martial which convicted and sentenced him did not have jurisdiction to try him for nonmilitary offenses committed off-post. The federal district court denied O'Callahan relief and the United States Court of Appeals for the Third Circuit affirmed the lower court's decision.

The Supreme Court granted certiorari in the case and held that the offenses for which O'Callahan was charged were not service connected, and therefore were not triable by court-martial. In writing the majority opinion, Justice Douglas noted that O'Callahan was off-post, off duty and dressed in civilian clothing when the offenses for which he was tried were committed. In addition Justice Douglas noted that O'Callahan's offenses were perpetrated against a civilian victim and were of no military significance. Hence, Justice Douglas concluded that O'Callahan's offenses were not service connected and therefore could not be tried by court-martial. The effect of the Supreme Court's ruling in O'Callahan was to hold that a serviceman could not be tried by courtmartial unless the offenses for which he was charged were service connected.

In writing the majority opinion, Justice Douglas did not define "service connected." However, 2 years later in Relford v. Commandant, 401 U.S. 355 (1971), the Supreme Court set forth the following twelve factors which could be considered by courts in determining the existence of service connection:

1. The serviceman's proper absence from the base.

2. The crime's commission away from the base.

3. Its commission at a place not under military control.

4. Its commission within our territorial limits and not in an occupied zone of a foreign country.

5. Its commission in peacetime and its being unrelated to authority stemming from the war power.

6. The absence of any connection between the defendant's military duties and the crime.

7. The victim's not being engaged in the performance of any duty relating to the military.

8. The presence and availability of a civilian court in which the case can be prosecuted.

9. The absence of any flouting of military authority.

10. The absence of any. threat to a military post.

11. The absence of any violation of military property.

12. The offense's being among those traditionally prosecuted in civilian courts.

Military courts have adopted the "service connected" standard in the trial of courts-martial cases and have been guided by these factors set forth above in determining which cases can be tried by court-martial. Once it is determined that an offense is service connected and can be tried by court-martial, a commander must give thought to preferring charges against the soldier suspected of committing the offense.

PREFERRING CHARGES

When a criminal offense is committed in the civilian community, the victim signs a formal complaint against the suspect and the police investigate the incident. At the conclusion of the investigation, the state's attorney either draws up the information or presents the evidence to a grand jury for a determination as to whether the case should be tried in a criminal trial. In the military, any civilian or military person can initiate a complaint against a serviceman by reporting an offense to the proper authorities. Initiating charges merely means starting the procedure which results in a formal charge. Only persons subject to the UCMJ may sign or prefer formal charges. The person who prefers charges is known as the accuser, and most often the accuser is the immediate commander of the offender.

A formal military accusation is made under oath and is set forth on a Charge Sheet. The accusation consists of two parts: the charge which identifies the article of the UCMJ the accused is alleged to have violated; and the specification which sets forth the specific facts and circumstances surrounding the offense. Together, these two parts are referred to as "the charges" or "the charges and specifications."

In the civilian community, the law enforcement agency investigation report often precedes formal charges. Upon the completion of the police report, the state's attorney draws up the information presents the evidence to a grand jury for a determination as to whether there is sufficient evidence to warrant a trial of the accused. If the grand jury finds that there is sufficient evidence, they return a true bill of indictment which specifies the offense for which the accused is to stand trial. In the military, an alleged violation of the UCMJ is investigated by the military police and the Criminal Investigation Detachment and formal reports are furnished to the suspect's commanding officer. Upon