SENTENCE IN THE HOST NATION'S PRISON. THE SOFA WILL PROVIDE FOR VISITS BY
AN AMERICAN REPRESENTATIVE ON A REGULAR BASIS.
QUESTION:
CAN WE ADMINISTRATIVELY DISCHARGE A SOLDIER WHILE HE IS IN A FOREIGN
ANSWER:
NO. OUR POLICY IS NOT TO ABANDON OUR PEOPLE. WE MAY CONDUCT A DISCHARGE
PROCEEDING AND EVEN APPROVE A DISCHARGE, BUT IT WILL NOT BE EXECUTED UNTIL
THE SOLDIER IS RELEASED FROM THE FOREIGN CONFINEMENT AND RETURNED TO THE
UNITED STATES.
PART G - THE JURISDICTION OF A COURT-MARTIAL
1.
General. "Jurisdiction is the power of a court to try and determine a case.
If a court has the power to try and determine a case, its judgement is valid. If a
court does not have the power to decide a case, its judgement is void." (DA Pam
27-174, paragraph 4-2.)
2.
Jurisdiction over the person--who is subject to the UCMJ?
a. General. The general rule may be states as follows: "To have jurisdiction
over a person, the accused must not only be a person subject to the Code at the
time of the offense and at the time of trial by court-martial, but also his status
must not validly have been terminated between these two events." (DA Pam 27-174,
paragraph 4-2a.)
Under Article 2, UCMJ, "the voluntary enlistment of any person
who has the capacity to understand the significance of enlisting in the armed
forces shall be valid for purposes of jurisdiction...and a change of status from
civilian to member of the armed forces shall be effective upon the taking of the
b. The
"constructive
enlistment"
issue.
The
issue
of
recruiter
misconduct/fraudulent enlistment was one which plagued the courts for many years.
People used to enlist while under the influence of drugs or alcohol; after serving
in the military for a year or so, they might commit a crime and face a court-
martial jurisdiction, because the enlistment was void at its inception. The same
was true for those who enlisted when underage, or who were involved in situations
of recruiter malpractice.
In some cases, for example, the recruiter might
allegedly have provided the enlistee with the answers to the Armed Forces
Qualification Exam, or have accomplished the enlistment of someone who was
illiterate, or somehow disqualified from enlisting. After serving in the military
for a year or so, the enlistee might commit an offense and face court-martial.
However, the court-martial lacked jurisdiction to try this soldier because his
enlistment was void at its inception.
The situation was remedied, in November, 1979, through an amendment to
Article 2, UCMJ.
The current law reads: "Notwithstanding any other provision of
law, a person serving with an armed force who--(l) submitted voluntarily to
military authority; (2) met the mental competency and minimum age qualifications at
the time of voluntary submission to military authority; (3) received military pay
or allowances; and (4) performed military duties" is
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