and then turned him over to military authorities. (Citing Grewe v. R. J. Reynolds Tobacco Co., 306 US 110, 83 L ed 536, 59 S Ct 423; Stout v. Hancock, 146 F2d 741. Distinguishing U. S. v. Schultz (No. 394), 1 USCMA 512, 4 CMR 104). United States v. Garcia (No. 3086), 5 USCMA 88, 17 CMR 88, affirming CM 358803 (Reh), 13 CMR 271. The accused was convicted by a court-martial of unpremeditated murder. The offense took place in Japan. The accused was a member of the crew of a United States Department of Commerce vessel allocated to the Military Sea Transportation Service under a General Agency Agreement between the National Shipping Authority and a private concern. Under such an agreement, the private concern agrees to manage and conduct the business of vessels assigned to it by the United States as agent and not as an independent contractor. Part of the agent's agreement is to make available to the master for engagement by him the officers and men required to fill the complement of the vessel, these persons being "procured by the general agent through the usual channels and in accordance with customary practices of commercial operators and upon the terms and conditions of the General Agent's collective bargaining agreements, if any." The accused was hired in accordance with customary practice through a union hiring hall. The accused's offense took place during the course of the Korean war and the ship's cargo was intended for the United States armed forces in Japan. However, there was no indication that the cargo was destined for immediate combat operations. The vessel was not shown to have carried military personnel, nor was it sailing in convoy. Held: The accused would have been subject to trial by courtmartial for any offense committed by him aboard the ship since, under the circumstances, he was a person accompanying the armed forces within the meaning of UCMJ, Art 2(11). (Citing Cosmopolitan Shipping Co. v. McAllister, 337 US 783, 93 L ed 1692, 69 S Ct 1317; Weade v. Ditchmann, Wright & Pugh, 337 US 801, 93 L ed 1104, 69 S Ct 1326; Fink v. Shepard Steamship Co., 337 US 810, 93 L ed 1709, 69 S Ct 1330; McCune v. Kilpatrick, 53 F Supp 80; Re Berue, 54 F Supp 252; Hammond v. Squier, 51 F Supp 227: Shilman v. U. S., 164 F2d 649, cert den 333 US 837, 92 L ed 1122, 68 S Ct 608; Op JAGN 1952/109, 2 Dig Ops Courts-Martial § 47.1; CM 367789, Redmond, 14 CMR 430; CM 366499, Patterson, 16 CMR 295.) He was not a member of the "civilian component" within the meaning of the agreement between the United States and Japan which provides in part that the United States service courts shall have exclusive jurisdiction over all offenses which may be committed in Japan by members of the United States armed forces, the civilian component and their dependents, and which defines the phrase "civilian component" as "civilian persons of the United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in Japan". However, there is nothing in the agreement which would serve to defeat concurrent military jurisdiction over the accused, although he is not part of the civilian component, if under the Uniform Code of Military Justice that jurisdiction otherwise exists. In the instant case the accused was subject to military jurisdiction while on his ship as a Courts-Martial § 49.1 person accompanying the armed forces. He did not immediately lose this status when he stepped ashore in Japan. Accordingly, since the Japanese authorities arrested the accused initially, and thereafter surrendered him to American officials, the court-martial which tried the accused had jurisdiction. (Citing Circular No. 8, Headquarters, Far East Command, 16 May 1952, pars 3a (2) and 3b; Circular No. 9, Headquarters, Far East Command, Law Enforcement Procedures in Japan, 20 May 1952, pars 6a(2), 7a and 8a; U. S. v. Weiman (No. 1403), 3 USCMA 216, 11 CMR 216; Ross v. McIntyre, 140 US 453, 35 L ed 581, 11 S Ct 897.) United States v. Robertson (No. 5441), 5 USCMA 806, 19 CMR 102. § 49. Discharge or Separation; Termination of Service § 49.1. Generally. A former airman requested the Air Force Board for the Correction of Military Records to remove a dishonorable discharge from his records. While serving a sentence which included a bad conduct discharge, he had escaped from confinement and committed other offenses. Before trial on these offenses the balance of his previous sentence was served and the bad conduct discharge was executed. Subsequently he was convicted of the later offenses and received a sentence which included a dishonorable discharge and total forfeitures. able discharge should be granted. The execution of the bad conduct discharge did not deprive the subsequent court-martial of jurisdiction to try the man for the offenses committed prior to its execution since once it attached, jurisdiction continued for the purpose of trial and sentence and punishment. However, the execution of the bad conduct discharge did release the man from the service and he was not thereafter subject to dishonorable discharge, nor was Accordhe entitled to any pay to which forfeitures could attach. ingly that part of the sentence which involved dishonorable dis(Citing Carter v. charge and total forfeitures was ineffective. McClaughry, 183 US 365, 46 L ed 236, 22 S Ct 181; Ex parte Wilson, 33 F2d 214; Mosher v. Hudspeth, 123 F2d 401, cert den 316 US 670, 86 L ed 1745, 62 S Ct 1039; Mosher v. Hunter, 143 F2d 745, cert den 323 US 800, 89 L ed 638, 65 S Ct 552; Sec 1, Ch II, Act of 4 June 1920, 41 Stat 787; Act of 24 Jun 1948, 62 Stat 604 and other cases and authorities.) Op JAGAF 1954/18. 3 November 1954. Held: The request for removal of the dishonor Subse An airman made a false claim against the United States. quently he was discharged because of an unconditional resignation. He then reenlisted. Held that: the airman was not subject to court-martial jurisdiction. Under current regulations any airman who has completed three years of an enlistment of an unspecified period may submit an unconditional resignation. Except in certain instances this resignation must be accepted. It is unlike a resignation in lieu of demotion or a resignation for the good of the service, both of which are for cause, and [4 ANA Dig] neither of which requires acceptance. A discharge because of an unconditional resignation is not like a discharge before expiration of enlistment for the purpose of reenlistment, but rather it is similar to a discharge given upon the expiration of an enlistment. Its validity does not depend upon reenlistment. The general rule is that court-martial jurisdiction ceases upon discharge and is not revived by reentry into the service. There appears to be no statutory exception which provides for a continuation of jurisdiction if there is no break in service between discharge because of an unconditional resignation or discharge upon expiration of enlistment and a subsequent reenlistment. Accordingly, jurisdiction after reenlistment for an offense prior to discharge because of an unconditional resignation cannot be based upon continuous service between the discharge and reenlistment in the absence of statutory authority. (Citing pars 4, 5, 6, and 9, AFR 39–15, 22 Nov 1954; U. S. ex rel Hirshberg, 336 US 210, 93 L ed 621, 69 S Ct 530; U. S. v. Solinsky (No. 594), 2 USCMA 153, 7 CMR 29; CM 212084, Johnson, 10 BR 213; MCM, 1951, par 11a; UCMJ, Art 2.) - under the Uniform Code of Military Justice, court-martial jurisdiction to try a person for the offense of a false claim against the United States does not continue after that person's valid separation or discharge unless the offense is punishable by confinement for at least five years and the person cannot be tried in any of the courts of the United States, or any state or territory thereof or the District of Columbia (UCMJ, Arts 2, 3a; MCM, 1951, par 11a and b). In the case of the airman herein no obstacle is shown which would prevent his trial in an appropriate federal district court. Therefore, he is not triable by court-martial. - current regulations concerning resignations, unconditional or otherwise, provide that they need not be accepted for a period of six months following the submission thereof if the airman is under investigation or in default with respect to public property or public funds. The facts herein do not disclose whether the airman, at the time he submitted his resignation, was under investigation or in default to the United States for the money collected by him on the false claim against the United States. However, even if he was under investigation or in default and failed to disclose these temporary disqualifying factors, his discharge cannot be regarded as fraudulently obtained since the airman is not required by regulations to state in his letter of unconditional resignation that he is under investigation or in default. The responsibility in this regard is upon the unit commander in his first indorsement to the letter of resignation. Thus, there being no duty to speak, there can be no concealment which would make the discharge one that was fraudulently obtained. Op JAGAF 1955/8. 17 February 1955. $49.2. Persons awaiting discharge. An accused was in confinement on 10 May 1954 and was still in that confinement at the time of trial on 20-22 October. On 11 May he was formally charged with the use of marihuana between 10 March and 10 April. This charge was investigated and forwarded to the general court-martial authority who returned it to the special court-martial authority with the statement that the charge was withdrawn. The date of this action was 21 July. However, the accused was not released from confinement and on 8 or 12 September new charges alleging use of marihuana on 3 May were sworn out. This was the charge upon which he was convicted. In the meantime, the accused's enlistment had expired on 8 June and, presumably, he would have been discharged had not the charges dated 11 May been pending against him. Held: The court-martial had jurisdiction of the accused. Notwithstanding that the original charges were withdrawn on 21 July 1954, after the normal expiration date of the accused's enlistment, and though he might then have been discharged, the important fact is that he was not discharged. The charges upon which he was tried were not the same charges originally preferred and ultimately withdrawn by the general court-martial authority. Though the nature of the offenses may have been the same, they were nevertheless otherwise unrelated. Therefore the convening authority's action in withdrawing the original charges resulted in no termination of the proceedings insofar as concerns the charges upon which the accused was brought to trial. Though the original charges were withdrawn, investigation of other activities of the accused was being performed and until such other charges or possible charges were disposed of it was proper to withhold his discharge until disposition thereof. The investigation unearthed sufficient facts to warrant the preference of new charges, and the latter were formally sworn out. The accused was ultimately tried upon them. He had never actually been discharged, and jurisdiction of the Air Force therefore continued. The accused was in the status of those awaiting discharge after expiration of their terms of enlistment who are subject to the Uniform Code of Military Justice. (Citing UCMJ, Art 2(1); MCM, 1951, par 11d; ACM S-3519, Eaton, 6 CMR 675.) ACM 10045, Estrada, Stephens & Cooper (1955) 18 CMR 872. § 49.3. Discharge while absent without leave. Court-martial jurisdiction as affected by execution of dishonorable discharge while absent without leave, see Op JAGAF 1955/6, SENT & PUN § 13.1. Jurisdiction as affected by execution of bad conduct discharge, see Op JAGAF 1955/15, SENT & PUN § 13.1. § 49.35. Discharge of member pursuant to sentence of court-martial. While serving in an enlistment in the Air Force, the accused committed a number of offenses as a result of which he was convicted by a court-martial and received a sentence which included confinement and a dishonorable discharge. While serving his confinement the discharge was executed and he was dishonorably discharged from the Air Force. It was later discovered he had committed certain other offenses while serving the same Air Force enlistment. He was thereupon tried and convicted of these offenses by a court-martial consisting solely of Army personnel and convened by the commanding officer of the disciplinary barracks. Held that: the accused was subject to trial by court-martial since, while his discharge effected a change in his status from that of airman to civilian, it did not alter his continuing and uninterrupted status as a person subject to the Code who would continue to serve the sentence imposed upon him by the earlier military court and who by reason of that fact, and UCMJ, Art 2(7), would continue to be amenable to trial by court-martial. (Citing MCM, 1951, par 11b; U. S. v. Solinsky (No. 594), 2 USCMA 153, 7 CMR 29.) the term "personnel" as used in UCMJ, Art 17(a) and par 13, MCM, 1951, relating to the exercise of jurisdiction by one armed force over personnel of another armed force, is used interchangeably with the word "member”. Thus the concept of reciprocal jurisdiction is applicable only to members of the armed forces. Since the accused had been dishonorably discharged from the Air Force he was no longer a member of the armed forces, but was, instead, a civil person subject to the Code. Therefore the regulations governing reciprocal jurisdiction were inapplicable and he was properly subject to trial by an Army court-martial. - under UCMJ, Art 17(b), so long as a record of trial is that of a member of a particular service, review must be by a board of review of that service and no other. However, since the accused had been discharged, Art 17 (b) was inapplicable. Thus review by a board of a particular service was not required although his sentence was such as to require review by a board of some one of the services. - the primary responsibility for insuring the completion of appellate review devolves upon that service which has assumed jurisdiction over an accused by trying him. However, the service trying the accused may, for appropriate reasons, refer the case for review by a board of the service of which the accused was formerly a member and such an act is neither abdication nor delegation of a statutory duty. It is merely a waiver of authority to exercise appellate review by one service in favor of another deemed to have a greater interest in the case. Accordingly, the record in the instant case may properly be reviewed by an Air Force board of review even though the accused was tried by an Army court-martial. ACM 10196, Macaluso (1955) 19 CMR — § 51. § 51.1. Generally. Offenses Punishable by Confinement for Airman making false claim as not subject to court-martial jurisdiction after discharge and reenlistment where there is nothing to indicate he could not be tried in federal court, see Op JAGAF 1955/8, supra § 49.1. Discharge because of unconditional resignation as not fraudulently obtained by reason of airman's failure to disclose whether he |