Part G - The jurisdiction of a Court

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

CONFINEMENT?

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

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.)

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

oath of enlistment."

b. The

"constructive

enlistment"

issue.

The

issue

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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