subject to the UCMJ (Article 2c, UCMJ). In other words, even if the enlistment was
defective at its inception, the court may uphold court-martial jurisdiction based
on the finding of a "constructive enlistment."
U.S. v. Hirsch, 26 MJ 800 (ACMR
c. Article 2. UCMJ. This provision lists various categories of person who
are subject to the UCMJ, and therefore, to the jurisdiction of a court-martial.
This list includes the following:
(1) Members of a regular component of the armed forces.
persons "awaiting discharge after expiration of their terms of enlistment,"
inductees, etc. This covers, of course, persons on active duty.
The "constructive discharge" issue was raised in U.S. v. Poole, 30 M.J.
149 (CMA 1990). In that case, seaman Poole's term of enlistment had expired and he
was waiting discharge a few weeks later at which time he went AWOL. Prior to his
unauthorized absence, Poole had asked if he were scheduled to be discharged. Poole
was referred to the vessel legal officer.
Poole went AWOL while his vessel was
preparing for an imminent 8 month deployment.
Poole claimed that since the Navy
failed to discharge him within a "reasonable time" after the expiration of his
enlistment, he was no longer subject to court-martial jurisdiction. The court, in
stating that Article 2, UCMJ, 10 USC Section 802 is to be given its plain and
ordinary meaning, held military jurisdiction continues until a service member's
military status is terminated by discharge from enlistment, and that the UCMJ
contains no express exception for situations such as here in which the military
reasonably delays discharge subsequent to the end of enlistment.
(2) Cadets of the service academies. This includes West Point, Annapolis,
the Air Force Academy, and the Coast Guard Academy.
It does not include ROTC
(3) Reservists and national guardsmen. Reservists are subject to the UCMJ
when performing six months' "active duty for training." They are also subject to
the UCMJ when performing annual 2-week training.
Under recent amendments to the
UCMJ (effective 1 July 1988), they are also subject to UCMJ jurisdiction when
performing weekend training (inactive duty training).
This is covered in Article
2(a) 3, UCMJ. A reservist would also be subject to the UCMJ if he is otherwise on
active duty status.
Once ordered to active duty for training in the armed forces, a
reservist is subject to the UCMJ and court martial jurisdiction from the date he
was ordered to appear for training, starting one minute past midnight on the date
he was ordered to appear for training. U.S. v. Cline, 29 MJ 83 (CMA 1989).
These amendments also provide that "a member of a reserve component who
is subject to [the UCMJ] is not, by virtue of the termination of a period of active
duty or inactive duty training, relieved [from being subject to court-martial
jurisdiction] for an offense [under the UCMJ] committed during such period of
active duty or inactive duty training."