THE

HE LAW GENERALLY defines the jurisdictional limits within which any court must operate, and in the military the UNIFORM CODE OF MILITARY JUSTICE1 delimits the jurisdiction of courts-martial. Under the Code jurisdictional limitations govern not only who may appoint and be tried by courts-martial, but also what offenses may be tried. That a courtmartial must have "jurisdiction over the offense" before it can render a valid judgment is well established and is not a requirement which is unique to military law. The MANUAL FOR COURTS-MARTIAL states that jurisdiction of courts-martial is conditioned on the fact that the court has been vested by act of Congress with power to try the offense charged. With certain limitations in capital cases, Articles 18, 19 and 20, the articles of the Code which define the jurisdiction of the three types of military courts, vest these courts with the jurisdiction to try "any offense made punishable by this code." It is significant that the phrase "made punishable" was used, instead of the word "defined", in making the jurisdictional grant in these articles, for Article 134 has provided the basis for court-martial jurisdiction over many Federal offenses not defined in the Code.

Article 134 of the Code provides:

Although not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this code may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court.*

In stating in the latter half of this article that the disorders, discrediting conduct, and offenses not capital "shall be taken cognizance of" by

*Lieutenant Harry Lee Hall, USN, is presently assigned to the Military Justice Division, Office of the Judge Advocate General, having completed a tour of duty at the U.S. Naval Air Station, Rota, Spain. Lieutenant Hall received his B.A. and LL.B. from the University of Texas. Admitted to the Texas bar in 1956, Lieutenant Hall is a member of the American Bar Association, the Inter-American Bar Association, and the Navy-Marine Corps Junior Bar Association. 1. 10 USC 801-940.

2. For compilation of civil court cases dealing with this requirement see 14 Am. Jur. 214.

3. MCM 1951, para. 8.

4. UCMJ art. 134, 10 USC 934.

courts-martial, clearly shows that Congress has provided for courts-martial jurisdiction over the offenses mentioned. And, in conformity with the jurisdictional limitation contained in Articles 18-20 of the Code, by stating that such disorders and offenses "shall be punished at the discretion of such courts", it may be reasoned that Congress had made such offenses "punishable by this code." But while there is no question of the grant of jurisdiction in the language of the general article, it is not equally clear that the subject matter of the grant includes Federal offenses not specifically mentioned in the Code. Paragraph 213 (c) of the Manual for CourtsMartial states, in part:

Crimes and offenses not capital which are referred to and made punishable by Article 134 include those acts or omissions not made punishable by another article, which are denounced as crimes or offenses by enactments of Congress or under authority of Congress and made triable in the Federal civil courts.

5

This interpretation is supported by the legislative history of the Code. Both the House and Senate Committees on the Armed Services, which studied the Code prior to its enactment, submitted the following report on Article 134 to Congress:

Article of War 96 and AGN, article 22(a),' are both general articles. These provisions have been retained in article 134 of this code. This will permit the punishment of "disorders and neglects to the prejudice of good order and discipline in the armed forces, and all conduct of a nature to bring discredit upon the armed forces." It will also authorize trial by court-martial for 5. The Manual is promulgated pursuant to Article 36, UCMJ, which authorizes the President to prescribe the procedures and modes of proof to be used by courts-martial. The authority of the Manual stemming from the UCMJ, a fortieri, any interpretation of an Article of the UCMJ found in the Manual is only valid in so far as it represents the actual legislative intent in enacting the Article.

6. Article of War 96, which was applicable in the Army at the time of the enactment of the UCMJ (1950), provided:

Article 96. General Article.-Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court.

7. Article 22 (a), the general article applicable in the Navy at the time the UCMJ was enacted, provided:

Article 22(a) Offenses not specified-All offenses not specified in the foregoing articles shall be punished as a court-martial may direct.

violations of State and Federal crimes which are not enumerated as offenses under this code."

In hearings before a House subcommittee on Armed Services, and in the Senate floor debate on the Code, statements were made which indicated that the phrase "crimes and offenses not capital" was the specific wording in Article 134 which should be interpreted to mean Federal offenses not defined in the Code. In the House subcommittee hearing, the following colloquy took place:

Question: . . . suppose an offense is not defined under these punitive articles, is there any redress by court-martial?

Answer: We have retained a general article, No. 134. as it was provided in the Articles of War and in the Articles for the Government of the Navy Question: What do you mean in section 134 when you say "and crimes and offenses not defined in this code"?

...

Answer: It has been construed to be the offenses which are not spelled out but which are offenses under the Federal law. It is the same provision as is now found in article 96 . . .

In the Senate floor debate on the Code, one senator, in discussing amendments which had been proposed to the Code, stated that no amendment to Article 134 had been proposed because it was drawn substantially in the same words as Article of War 96. To clarify the Senate Committee's report on the article, quoted supra, the point was made that Federal offenses were punishable as such, under the "crimes and offenses not capital" phrase, but that violations of state law were punishable under the general article only when the act or omission was prejudicial to good order and discipline, or if it tended to bring discredit upon the service. To support this interpretation, definitions of the phrase "crimes or offenses not capital", as it existed under Article of War 96, were read from the Army's pre-code Manual for Courts-Martial,10 and inserted into the Congressional Record.11 THE PRESENT CONSTRUCTION of the general article supports the conclusion that Congress intended a grant of jurisdiction over three types of offenses. There is little basis in the construction to conclude that conduct 8. H. Rept. 491, 81st Cong. 1st Sess., 1949, p. 34; S. Rept. 486, 81st Cong. 1st Sess., 1949, p. 1239.

9. Hearings, Subcom. on H. Armed Services Com., 81st Cong., 1st Sess. on H.R. 2498, p. 1239.

10. Manual for Courts-Martial, U.S. Army, 1949, par. 183 (c). The definition of crimes and offenses not capital found in the Army Manual is identical to that found in par. 213(c) of the present Manual. Because of this fact, para. 213(c) has, in a unique way, become part of the legislative history of Article 134. 11. 96 Cong. Rec. 1306.

charged as a violation of a Federal statute under Article 134 must be shown to be service discrediting or prejudicial to good order and discipline before an offense has been alleged which a court-martial has been granted jurisdiction over. Coming after the two clauses defining neglects, disorders and discrediting conduct, and joined to them only by the disjunctive "and"; the phrase appears to be an independent clause. The construction of the general article has not always lent itself to this interpretation, however. The general article which was applicable in the Army in 1886 stated, in part:

Art. 62. All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles..."

The construction of this fore-runner of Article 134 did not clearly divorce the subject phrase "all crimes not capital" from the following descriptive phrase "to the prejudice of good order and military discipline." Colonel Winthrop, 13 in commenting on the meaning of the phrase "all crimes not capital" which was contained in Article of War 62, stated that this term embodied felonies other than capital, and misdemeanors made punishable by statute law of the United States, and were constituted military offenses by the article, ". . . provided. . ., they are committed under circumstances rendering them prejudicial not only to good order but also to military discipline, . . The fact that Congress did not intend this interpretation to apply to Article 134 is supported by the departure from the construction of the previous article, and by the legislative history of the Code. As noted above, in the Senate Floor debate the point was made that violations of state law, unlike Federal law, were not punishable as such under Article 134, but only when the violation involved service discrediting conduct, or conduct which was prejudicial to good order and military discipline. That violations of not capital Federal statutes are punishable as such, under the "crimes and offenses" clause of the general article was recognized at an early date by the Court of Military Appeals.14

FEDERAL OFFENSES WHICH ARE NOT CAPITAL-DEFECTIVE PLEADINGS AND PROOF

Most of the Federal crimes and offenses for which the death penalty is not authorized under

12. AW 62 RS 236 (1878).

13. Winthrop, Military Law and Precedents (2d ed., 1920 reprint) p. 721.

14. United States v. Snyder, 1 USCMA, 4 CMR 15 (1952).

Federal law are defined in Title 18, United States Code, the section entitled "Crimes and Criminal Procedure." Federal crimes are also defined in at least thirteen other titles of the United States Code, however. Such non-capital offenses as white slavery, 18 USC 2421, counterfeiting, 18 USC 471, transporting strikebreakers, 18 USC 1231, tax evasion, 26 USC 7233, knowingly selling improperly packaged butter, 26 USC 7234, unlawfully fencing public lands, 43 USC 1054, or importing or transporting lottery tickets, 18 USC 1301, have no counterpart in the punitive articles of the Uniform Code of Military Justice. Other noncapital offenses not specifically defined in the punitive articles of the Code are of special interest to the military, as they contain elements which relate their commission to the armed forces: polling members of the armed forces, 18 USC 596, attempted bribery of an officer or person acting for or on behalf of the United States, 18 USC 201, knowingly wearing unauthorized military medals or ribbons, 18 USC 704, or making a false claim for a pension to the Administrator of Veteran's Affairs, 18 USC 289. As Congress has, in the general article, made a general jurisdictional grant over all such offenses which are not defined in the punitive articles of the Uniform Code of Military Justice, it follows that these, and any other non-capital Federal offenses, can be prosecuted under the general article, unless it can be shown from the legislative history of the specific statute involved that Congress intended that the statute would not be applicable to the military, 15 or that the alleged violation of the Federal statute was committed outside the area of the intended application of the statute; e.g., The D.C. Code and the penal laws of Guam, being of limited application, would not apply to acts committed in Nebraska.

If the statute involved is not so limited the Federal and military courts would have concurrent jurisdiction over the offense, and either could proceed to try the case.16 Before under

15. As most Federal criminal statutes begin with the term "whoever", which implys no jurisdictional limitation based on the military status of the individual, the construction of the Federal statute cannot normally be relied on to deny its application to persons in the armed forces.

16. A "memorandum of understanding" between the Department of Justice and the Department of Defense, as implemented by SECNAVINST 5820.2 of 20 Oct 1955, sets out the regulations dealing with investigation and prosecution of crimes which violate both military and Federal law. Generally, prosecution in the military courts will be undertaken if the investigation of the offense is completed by the Office of Naval Intelligence. Under the instruction, whether the ONI or FBI will undertake the investigation of an offense will normally depend on the military or civilian status of suspects or victims and locus of the offense; the determination of which organization should undertake an investigation should of course depend on the exigencies of the individual case and mutual agreement.

17

taking the prosecution of a Federal offense in a court-martial, however, it is imperative that the Federal statute involved be carefully studied to determine if the conduct alleged actually violated the Federal statutes involved; many Federal statutes contain elements, words of art and jurisdictional limitations based on locus of the offense, which are not found in any of the articles of the Uniform Code. Several Federal criminal statutes contain as an element the requirement that the act be committed in "interstate or foreign commerce." 18 In some cases, a Federal case study to determine the many aspects of such commerce might be necessitated before it could be determined that a given set of facts actually constituted a violation of a Federal statute.

ALTHOUGH THE CONSTRUCTION and legislative history of Article 134 indicate that non-capital Federal offenses not defined in the Uniform Code may be prosecuted as such under the general article, a failure to allege or prove every element of the Federal statute which the accused has allegedly violated may not result in fatal error. The facts alleged in the specification may yet constitute a military offense and jurisdiction be sustained on the grounds that conduct which is service discrediting or prejudicial to good order and military discipline has been charged. In the case of United States v. Long (et al),19 the accused had been jointly charged under Article 134 with assaulting a certain person "on account of her having previously attended and testified as a witness in a court of the United States, namely a Summary Court Martial." The specification also alleged that the conduct charged violated "Title 18, section 241, United States Code . . . as amended by Section 1503, Chapter 73, Supplement IV, to the 1956 Code, a statute of the United States of America." 20 No reference was contained in the specification to the effect that the conduct alleged was service discrediting or was prejudicial to good order and military discipline. Before the Court of Military Appeals, appellate defense counsel contended that no violation of the Federal statute cited in the specification had been alleged, because a summary

17. Many of these differences are due to the fact that in enacting laws applicable to the citizenry at large Congress must act pursuant to some legislative power with which it has been vested by the Constitution. No provision in the Constitution specifically empowers Congress to enact criminal legislation. As the broadest legislative power is found in the commerce clause (U.S. Const., Art 1, sec. 8, cl. 3), several Federal Criminal statutes proscribe acts committed in "interstate or foreign commerce". 18. These terms are defined in 18 USC 10.

19. 2 USCMA 60, 6 CMR 60 (1952).

20. The Federal offense alleged is now in 18 USC 1503.

court martial was not a "court of the United States" within the meaning of the statute.

Although the specification specifically alleged a violation of 18 USC 1503, a majority of the Court felt that in construing the specification and determining the elements to be established, the Court was not controlled by the Federal statute involved. Without deciding the defense counsel's contention, the majority of the Court considered that the conduct charged constituted an offense, the essence of which was the "obstruction of interference with the administration of justice in the military system"; this offense was considered to be a disorder to the prejudice of good order and military discipline, and punishable under clause (1) of the general article. Concerning the necessity of proving all the elements of the Federal statute which the accused had allegedly violated, the majority stated:

We are of the opinion that crimes and offenses not capital, as defined by Federal statutes, may be properly tried as offenses under clause (3) of 134, but if the facts do not prove every element of the crime set out in the criminal statutes, yet meet the requirements of clause (1) and (2), they may be alleged, prosecuted and established under one of these."1

The fact that a violation of a Federal statute had been alleged, but not proven, did not prejudice the accused in their preparation or defense of the case, the majority stated; the offense had been distinctly and fully described and the accused had been apprised of the facts which they would be compelled to meet. In an opinion which concurred in the result reached by the majority, one member of the Court considered that the facts which had been alleged constituted a violation of 18 USC 1505,22 instead of 18 USC 1503, and would have affirmed the conviction on that basis. This member of the Court agreed with the majority that the statutory reference contained in the specification was not a critical and indispensable part of the allegation. 23

IT IS DIFFICULT to conceive of conduct which violates a Federal criminal statute and which could not be committed under circumstances which would be either prejudicial to good order and discipline or service discredit

21. 2 USCMA at p. 65.

22. 18 USC 1505 defines the crime of injuring a witness who has testified before an "agency or department" of the United States, while 18 USC 1503 defines the offense of injuring a witness who has testified before a "court" of the United States.

23. Citing Johnson v. Biddle, 12 F2d 366, 369 CA 8th Cir., (1926): "The offense laid in an indictment is charged by the allegations of fact, and not by reference to statute."

24

ing. This is not to say, however, that when it is intended to plead the violation of a Federal criminal statute, and the specification does not contain every element of the Federal offense, or where the proof falls short of proving every element of the Federal offense, that the facts which are alleged and actually proven will support a conviction on the grounds that the proven facts constitute conduct which is service discrediting or prejudicial to good order and discipline. In United States v. Hogsett,25 the accused had been charged under Article 134 with "wrongfully, unlawfully and knowingly, . (having) in his possession 21 cancelled United States postage stamps with the intent to use the same in the payment of postage." The Court of Military Appeals noted that the language in the specification was almost identical to that contained in 18 USC 1720, but, after study of the Federal statute, concluded that the facts alleged did not constitute the offense defined therein. A majority of the Court interpreted the Federal statute to require that cancellation marks on the stamps be removed; the statute did not prohibit the mere possession of cancelled stamps with the intent to deceive. As no facts had been alleged to support this key element, a conviction of the Federal offense could not be affirmed. The majority stated that if 18 USC 1720 were not in issue, it was indeed questionable whether the allegations spelled out an offense under the code, and ordered the charge dismissed.

Failure to allege an element of a Federal offense also resulted in dismissal of a specification charged under Article 134 in United States v. Lorenzen.26 The accused had been charged with "wrongfully and unlawfully (opening) a certain package addressed to . . . (another), before said package was actually received by the person to whom it was addressed." Counsel for the accused conceded that the military offense was patterned upon 18 USC 1702, which proscribes tampering with or obstructing the United States mail. The specification did not

24. To constitute an offense under the first clause of Article 134, para. 213(a) of the Manual states that the conduct must be "directly" (as opposed to "remotely" or "indirectly") prejudicial to good order and military discipline. Acts constituting a violation of some Federal criminal statute might not meet this standard, e.g., use of barrels below standard for packing fruit, 15 USC 235, unlawful importation of bees, 7 USC 282, unlawful dealings in onion futures, 7 USC 13-1, or the unauthorized use of "Smokey Bear", 18 USC 751. Even Federal offenses of relatively minor nature might be committed under circumstances which would render them service discrediting under clause (2) of the general article, however. In United States v. Freeman, 15 CMR 639 (pet. for rev. by USCM den. 16 CMR 292) it was held that the violation of state law may be considered in determining the service discrediting nature of conduct. 25.8 USCMA 681, 25 CMR 185 (1958). 26. 6 USCMA 512, 20 CMR 228 (1955).

allege that the package was in mail channels or was "mail matter". The Court interpreted 18 USC 1702 as clearly requiring that the object tampered with be "mail matter" in the custody of the United States Postal Service. The Court considered that tampering with or obstructing mail which did not pass out of the custody of the military postal service was not the specific offense proscribed in the Federal statute, but that this conduct would also constitute an offense to the needs of the military community did not eliminate the requirement that the object be "mail matter", however. Accordingly, no offense had been alleged, either under the Federal statute or military law (as conduct to the prejudice of good order and discipline, or which is service discrediting), and the charge was ordered dismissed. The Court did not consider that the mere act of opening a package belonging to another was per se a disorder to the prejudice of good order and discipline.

COURT-MARTIAL

JURISDICTION OVER "CAPITAL" OFFENSES

The use of the term "not capital" in the third clause of the general article clearly indicates Congressional intent to deny to courts-martial the power to try under the general article Federal offenses for which the death penalty is authorized. The legislative history of the Code does not indicate exactly what standard should be used to determine whether an offense is "not capital", however. As the crimes and offenses referred to in Article 134 are those defined by Federal criminal statute, it would be logical to assume that Congress intended to deny jurisdiction over any Federal offense not defined in the Code for which the death penalty is authorized under Federal law. But Article 49 (f) of the Code recognizes the power of the convening authority to direct, in cases where the death penalty is permissible but not mandatory, that the case be treated as not capital. It might be reasoned that the phrase "not capital" contained in the third clause of the general article refers to the specific punishment authorized in the individual case, rather than the maximum punishment authorized for the offense charged. Or, as Articles 18 and 52 deny to courts-martial the power to adjudge the death penalty except when specifically provided for in the Code, trying a Federal offense under Article 134, for which the death penalty would not be specifically provided for in the Code, would, by operation of law, render such an offense non-capital. If this latter meaning were intended, however, the use of the phrase "not capital" in the general

article would be redundant, and to allow a convening authority to actually vest a court-martial with jurisdiction over an offense by controlling the sentence which could be adjudged in the individual case, would be an unprecedented grant of authority by Congress.

The phrase "not capital" was also contained in Article of War 62, supra, and was commented on in Colonel Winthrop's treatise, in part, as follows:

Not capital. The article, by these words, expressly excludes from the jurisdiction of courts-martial, and by necessary implication reserves for the cognizance of the civil courts (in times of peace), all capital crimes of officers or soldiers under whatever circumstances committed-whether upon or against military persons or civilians. By capital crimes is to be understood crimes punished or made punishable by death by the common law, or by statute of the United States, applicable to the case, as, for example, murder, arson or rape.27

It is clear that under the Articles of War, as they existed in Winthrop's time, the test of whether an offense was "not capital" rested on whether the death sentence was authorized by the law which proscribed the offense. To interpret the phrase otherwise, and enable courts-martial to exercise jurisdiction over capital Federal offenses by an administrative decision to limit the punishment which could be adjudged in the individual case, would have completely frustrated Congressional intent to reserve serious civil offenses for the cognizance of the Federal courts in peacetime.28 While Congress has expanded the jurisdiction of courts-martial to include most serious civil offenses, this expansion has always been effected by the enactment of specific punitive articles such as these now found in the Code describing murder and rape.29

27. Winthrop, ibid, at p. 721.

28. Article of War 92, 64 Stat. 108 (enacted 5 May 1950), contained a proviso "That no person shall be tried by court-martial for murder or rape committed within the geographical limits of the states of the union and the District of Columbia in time of peace" Article 6 of the Articles for the Government of the Navy, 59 Stat. 595 (enacted December 4, 1945) provided that murder could be punished by courts-martial if committed "without the territorial jurisdiction of any state, or the District of Columbia." For cases generally supporting the proposition that Congress has been reluctant to grant to courts-martial the authority to try non-military offenses, and any grant to try capital offenses should be construed strictly, see Teth v. Quarles, 350 US 11 (1955), Reid v. Covert, 354 US 1 (1956), and Lee v. Madigan, 358 US 228 (1959).

29. The continental Congress vested Navy courts-martial with the authority to try the offense of murder in the first laws applicable to the Navy (Act of November 28, 1775; until the enactment of the UCMJ, however, Navy courts-martial had never been authorized to try the offense of rape. The articles of War first provided for the punishment of murder and rape in the Army in 1863 (12 Stat. 736), but only then in times of "war, insurrection or rebellion."