Court-martial jurisdiction over civilians

(6) Persons in custody of the armed forces serving a sentence imposed by a

court-martial.

This includes prisoners in a military stockade and at the U.S.

Disciplinary Barracks at Fort Leavenworth, Kansas.

This is true even if the

soldier received a punitive discharge as part of his court-martial sentence. U.S.

v. Harry, 25 MJ 513 (AFCMR 1988).

(7)

Prisoners of war in custody of the armed forces.

There are several

other categories of persons listed in Article 2, UCMJ, as being subject to the

jurisdiction of a court-martial.

These other categories, however, are rarely

invoked and rarely litigated.

Court-martial jurisdiction over civilians.

Article 2(a)(10), UCMJ, states

that there is court-martial jurisdiction over "in time of war, persons serving with

or accompanying an armed force in the field."

In U.S. v. Averette, 41 CMR 363

(CMA, 1970), the court held that this only applied to "a war formally declared by

Congress."

QUESTION:

CAN WE COURT-MARTIAL A CIVILIAN DEPENDENT OR A DA CIVILIAN EMPLOYEE IN

PEACETIME?

ANSWER:

NO. IN KINSELLA V. KRUEGER, 354 U.S. 1, LEd 2d 1148, 77 SCt 1222 (1957),

A DEPENDENT WIFE ACCOMPANIED HER SOLDIER-HUSBAND OVERSEAS TO JAPAN, WHERE

SHE MURDERED HIM.

THE HOST NATION (JAPAN) DECLINED PROSECUTION.

STATE

LAW OBVIOUSLY DID NOT APPLY OVERSEAS IN JAPAN, AND THE U.S.

FEDERAL

CIVILIAN STATUTE AGAINST MURDER DID NOT APPLY EXTRATERRITORIALLY.

CONSEQUENTLY, THE MILITARY ELECTED TO COURT-MARTIAL THE WIFE, AND SHE

RECEIVED A SENTENCE OF LIFE IMPRISONMENT. THE U.S. SUPREME COURT REVERSED

THE CONVICTION, EXPLAINING THAT A "A STATUTE CANNOT BE FRAMED BY WHICH A

CIVILIAN CAN LAWFULLY BE MADE AMENDABLE TO THE MILITARY JURISDICTION IN

TIME OF PEACE." THE RESULT WAS THE SAME IN REID V. COVERT, 354 U.S. 1,

LEd 2d 1148, 77 SCt 1222 (1957), A COMPANION CASE TO KINSELLA.

THIS

INVOLVED THE DEPENDENT WIFE OF AN AIR FORCE SERGEANT WHO MURDERED HIM

OVERSEAS IN ENGLAND. THE CONVICTION, AGAIN, WAS REVERSED.

Kinsella v. Singleton, 361 US 234, 4 LEd.2d 268, 80 SCt 297 (1960), involved

dependent wife who was court-martialed along with her soldier-husband for

involuntary manslaughter in the death of their child overseas in Germany.

The

Supreme Court explained that the test for jurisdiction is one of STATUS, "namely

whether the accused in the court-martial can be regarded as falling within the term

'land and naval forces.'" Again, the conviction was overturned.

The accused in Grisham v. Hagan, 361 US 278 4LEd.2d 279, 80 SCt 310

(1960), was a civilian employee of the Army, overseas in France. He was working on

an Army installation, and was court-martialed for premeditated murder. Again, the

conviction was reversed. In McElroy v. U.S., 361 US 281 4 LEd.2d 282, 80 SCt 305

(1960), a civilian employee of the Air Force was court-martialed in Morocco for the

offense of larceny. Again, the conviction was reversed. It appears clear, then,

that peacetime court-martial jurisdiction

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