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CAAF Approves Review of Article 2(a)(3) & Reserve Jurisdiction Problem

A reservist of the United States Armed Forces must still comply with the Uniform Code of Military Justice (UCMJ), as long as they are performing a duty that directly coincides with their reservist status. Within Article 2(a)(3), a court-martial jurisdiction’s power is further limited to reservists on inactive-duty training, or to Army National Guard and Air National Guard reservists performing a Federal service.

The specific definitions once left noticeable gaps of time during which a reservist’s behaviors may or may not be subject to UCMJ regulations. In particular, inactive-duty training is scheduled for four hours followed by a break for rest, either lunch or sleep. It had been argued that reservists were protected from the UCMJ during those breaks, excusing them from behavior that otherwise would have been labeled as misconduct and met with penalties.

In 2016, Congress successfully amended Article 2(a)(3) to seal those breaks in UCMJ “coverage”. New wordage in the article made reservists subject to the UCMJ when they are traveling to or from inactive-duty training to comply with an order. UCMJ expectations also now applied to reservists who were on a break in-between inactive-duty training periods within one day, or on break in-between inactive-duty training periods for consecutive days. Effectively, meal breaks and nightly breaks for sleep were no longer a dark zone for UCMJ regulations.

U.S. v. Hale Challenges Article 2(a)(3) Regulations

The modifications to Article 2(a)(3) in 2016 did not last long before essentially being challenged. In United States v. Hale, 77 M.J. 598 (A.F. Ct. Crim. App. Jan 19, 2019), an Air Force Criminal Court of Appeals judicial panel questioned when and why the UCMJ would apply to a reserve member.

Within the case, Hale, a lieutenant colonel officer in reserves, was accused of committing travel fraud by submitting lodging receipts for reimbursement despite lodging for free with relatives. The court-martial exercised its apparent jurisdiction and convicted Hale for the crime, finding Article 2(a)(3) removed “gaps in reserve service” protections and, thus, made him subject to the UCMJ at the time of his criminal violations. However, after reviewing the timeline of the alleged offenses, the Air Force CCA saw the matter differently. It held Hale’s act of travel fraud, technically a form of larceny, should not have been ruled upon by the court-martial. The Air Force CCA did also hold he could be brought to court-martial for attempted larceny, a significantly lesser criminal offense.

The underlying confusion stems from exactly when Hale completed the misconduct – the filing of receipts for reimbursement after not actually incurring travel expenses. If he filed for reimbursement during one of his standard four-hour inactive-duty training sessions, then it would be safe to say the UCMJ did apply to his conduct. Yet, if he filed those reimbursement requests while on a break, or well outside of a typical inactive-duty training day, then the UCMJ would arguably not apply and a court-martial would not have the jurisdiction to decide his case, i.e. convict him.

U.S. Court of Appeals for the Armed Forces Grants Review

The gray area created by U.S. v. Hale brought the issue up to the United States Court of Appeals for the Armed Forces (CAAF). The appellate defense counsel argued it was erroneous for lower courts to hold Hale to a double-standard, in which the court found personal jurisdiction does not apply outside inactive-duty training yet seemingly did apply to Hale only. It also questioned the legitimacy of the lower court’s judgement that found Hale could be convicted on knowledge of approximate times and dates, which were noted as “on or about” within the decision.

The CAAF found the appellate defense counsel’s arguments were valid and approved the case for review. In effect, the CAAF has granted a review of Article 2(a)(3) and its somewhat unclear definitions. If it is found that Hale was wrongfully convicted and wrongfully held under court-martial jurisdiction, then similar future cases will need to be exactly specific for claims of when criminal activity was actually conducted by a reservist. Stating that it happened “approximately around” when a reservist was conducting inactive-duty training would not be legally satisfactory.

Military Criminal Defense Attorney Joseph Jordan has the skills and experience needed to successfully represent those accused of committing a military crime, or those scheduled for military court-martial. He proudly defends the rights and reputations both reserve members of the United States Armed Forces and active duty members. As a civilian defense lawyer, Attorney Joseph Jordan has a valuable outside perspective for casework that is advantageous for his clients. To learn more about his legal services or your options as a reservist accused of a UCMJ or criminal violation, contact his law firm at your first opportunity.