(Article 3(d), UCMJ.)
"A member of a reserve component who is not on active
duty...may be ordered to active duty involuntarily for the purpose of...trial by
court-martial (or) nonjudicial punishment...with respect to an offense committed
while the member was (A) on active duty; or (B) on inactive duty training." (UCMJ,
2(d).)
The order to active duty must be done by "a person empowered to convene
general courts-martial in a regular component of the armed forces." (UCMJ, Article
2(d)4.)
National guardsmen are subject to the UCMJ when on six-month initial
active duty for training, or when federalized under Title 10, United States Code.
Otherwise, they are under state control.
District of Columbia National Guardsmen
are in a unique situation in that they enter the National Guard in a federal status
under Title 32, United States code. Although they are federal employees, they are
not subject to the UCMJ except when on six-month active duty for training or when
federalized under Title 10 United States Code.
As National Guardsmen, when not
subject to the UCMJ, they are subject to the Uniform Code of the District of
Columbia (39 DC Code 704).
(4) Retired members of a regular component of the armed forces who are
entitled to pay.
Person v. Bloss, 28 MJ 376 (CMA 1989).
In Pearson, court-martial
jurisdiction was found to exist over a retired enlisted accused for offenses he
committed both while on active duty and while in a retired status.
A retired
member of the Regular Armed Forces may be ordered to active duty by the Secretary
of the military department concerned at any time (10 USC Section 688). Therefore,
Article 2(a)(4), UCMJ, which provides that, "[retired members of a regular
component of the armed forces who are entitled to pay]" are subject to the UCMJ is
constitutional.
In U.S. v. Hooper, 26 CMR 417 (CMA, 1958), a retired Naval rear admiral
was court-martialed for sodomy and conduct unbecoming an officer.
The court
explained that "retired personnel are a part of the land or naval forces."
The
military retiree, then, is not simply a civilian. The court held that the admiral
was "a part of the military forces of this country."
He was described as "an
officer of the Navy of the United States, entitled to wear the uniform and to draw
pay as such." Nonetheless, it is DA policy that "retired personnel subject to the
Code will not be tried for any offense by any military tribunal unless
extraordinary circumstances are present." (DA Pam 27-174, paragraph 4-5.)
(5) Members of the Fleet Reserve and the Fleet Marine Corps Reserve.
In
U.S. v. Overton, 24 MJ 309 (CMA, 1987), the court upheld court-martial jurisdiction
over "members of the fleet reserve and the fleet marine corps reserve," which is
provided for in Article 2(a)(6), UCMJ. The accused had completed 20 or more years
of active service, and was subject to being ordered by competent authority to
active duty. This was also based on 10 USC section 6485(a): "In time of peace any
member of the fleet reserve or the fleet marine corps reserve may be required to
perform not more than two months' active duty for training in each four-year
period." Finally, he was receiving "retainer pay."
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