a. The U.S. Constitution. This is, of course, the highest source of authority under our system of government. Article I, Section 8, empowers Congress "to make rules for the government and regulation of the land and naval forces." Article II, Section 2 of the U.S. Constitution makes the President the Commander-in-Chief of the Armed Forces. The federal courts (ultimately, the U.S. Supreme Court) interpret the meaning of the U.S. Constitution.

b. Acts of Congress, i.e., the UCMJ. In furtherance of the power given it under Article I, Section 8, of the Constitution, Congress enacted the Uniform Code of Military Justice. The UCMJ is an act of Congress, and has the force and effect of such. Another example of a congressional enactment is the U.S. Code, Title 18, which sets forth the main body of federal criminal law.

c. The Manual for Courts-Martial. The President, in his role as Commander-in-Chief of the Armed Forces, has authority to issue Executive Orders pertaining to the military, and particularly military justice. Article 36, UCMJ, gave the President the power to prescribe by regulation "the procedure, including modes of proof, in cases before courts-martial." Similarly, Article 56, UCMJ, gave the President the power to provide punishments for the various offenses under the UCMJ. The President exercised his powers derived from Congress and the U.S. Constitution, promulgating the Manual for Courts-Martial (MCM). First enacted in 1951, it was substantially revised in 1969, and again in 1984.

d. Regulation. There are, of course, service wide (DOD regulations), as well as individual Army regulations, Air Force regulations, Navy regulations, etc. These may both confer certain powers, and limit others. There are regulations governing such things as the use of deadly force (AR 190-14) and the power to search, seize, and apprehend (AR 190-22).

e. Post regulations. In addition to service-level regulations, there are also installation-level regulations. These, too, have the force and effect of law.

f. SOPs. An individual PMO office may have various SOPs which deal with such things as the use of firearms, the procedure involved in making an apprehension, the conduct of juvenile investigations, including procedures for interrogating a juvenile suspect, procedures for conducting a DWI checkpoint, etc.

g. Custom. This is another source of authority. As an example, under Article 92, UCMJ, one may be court-martialed for his "dereliction in the performance of duties." Such a duty "may be imposed by treaty, statute, regulation, lawful order, standing operating procedure, or custom of the service." (MCM, paragraph 16(c)(3)(a).)

a. That the accused was a warrant officer or enlisted member;

b. That the accused did or omitted certain acts, or used certain language;

c. That such behavior was used toward and within the sight or hearing of a certain warrant, noncommissioned or petty officer;

d. That the accused then knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty officer;

e. That the victim was then in the execution of his office; and

f. That under the circumstances, the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer.

This article does not require that there be a superior-subordinate relationship. If that element exists, it is an aggravated form of the offense, and subjects the offender to a more serious punishment.

Under Article 91, the disrespect must be within the hearing or sight of the victim. Also, the victim must be in the execution of his office.

a. That the accused received a certain lawful order from a certain warrant, noncommissioned, or petty officer. That the accused was a warrant officer or enlisted member;

b. That the accused then knew that person giving the order was a warrant, noncommissioned, or petty officer; (this doesn't include an acting petty officer or acting NCO. U.S. v. Lumbus, 49 CMR 248 (CMA, 1974);

c. That the accused had a duty to obey the order; and

d. That the accused willfully disobeyed the order.

a. UCMJ, Article 134. The elements of this offense are: (1) that the accused was a commissioned or warrant officer; (2) that the accused fraternized on terms of military equality with one or more certain enlisted members in a certain manner; (3) that the accused then knew the person(s) to be (an) enlisted member(s); (4) that such fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality; and (5) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of such a nature to bring disrespect upon the armed forces. (MCM, paragraph 83c.)

It is clear that "not all contact or association between officers and enlisted persons is an offense." Instead, this "depends on the surrounding circumstances." Relevant factors include "whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority or morale. The acts and circumstances must be such as to lead a reasonable person experienced in the problems of military leadership to conclude that the good order and discipline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted persons for the professionalism, integrity, and obligations of an officer." (MCM, paragraph 83(c)1.)

This specific offense (Article 134) does not cover relationships between two officers or two enlisted persons. Such relationships may, however, be proscribed by service wide and local regulations. (MCM, paragraph 83(c)2.) Also under this definition, the parties needn't be of different sexes.

b. AR 600-20, paragraph 5-7f. This is a much broader prohibition than the specific one found in Article 134 that we just discussed. Relationships between soldiers of different ranks which involve (or give the appearance of) partiality, preferential treatment, or the improper use of rank or position for personal gain, are prejudicial to good order and discipline and high unit morale. Such relationships, therefore, are improper where they have one of the following effects:

• Cause actual or perceived partiality or unfairness;
• Involve the improper use of a rank or position for personal gain;
• Can otherwise reasonably be expected to undermine discipline, authority, or morale.

Relationships are not, then, inherently wrong. What is important is the effect of the relationship. Many Army regulations, for example, recognize the fact that soldiers of different rank are going to marry one another. Examples are AR 215-2, paragraph 5-13(a)l (use of the Army club system), AR 210-50, paragraph 3-9 (eligibility for post housing), and AR 614-200, paragraph 5-8 (assignments).

A HQDA memorandum for DCSPER (HQDA Ltr 600-84-2), dated 23 Nov 84, subject "Fraternization and Regulatory Policy Regarding Relationships Between Members of Different Ranks," explained:

"When the senior member has direct command or supervisory authority over the lower ranking member or has the capacity to influence personnel or disciplinary actions, assignments, or other benefits or privileges, there is the strongest justification for exercising restraint on social, commercial, or duty assignments. At the same time, when the senior does not have direct command or supervisory authority over or the capacity to exercise official influence regarding the lower ranking member, relationships between soldiers are not inherently improper. Commanders should advise service members, however, that even these relationships can lead to perceptions of favoritism and exploitation."

This regulatory prohibition is not limited to officer-enlisted relationships. It applies to "service members of different ranks." This includes officers, NCOs, etc.

Known as the "Elton Letter," the guidance form HQDA DSCPER refers to "an actual or clearly predictable adverse impact upon discipline, authority, or morale." An adverse action "must address the behavior that results form the relationship, or the actual or clearly predictable results of the relationship, and not merely the relationship itself."

The Army policy "is one of tolerance," and not a per se prohibition. The problem is to watch for "the possibility for exploitation and favoritism."

The Elton letter set out various factual situations which illustrate the application of the Army's policy. A few are as follows:

c. Relationships with students and trainees. These relationships are stringently regulated, due to the dangers that are inherent in them.

In another case, the accused was a second lieutenant, and acting platoon leader, in a company of male students. All women students were assigned to another platoon. The accused kept asking one of the female privates to go out on a date with him. The court explained why this was improper:

"Because of their typical lack of experience and maturity, trainees in the armed forces are to some extent at the mercy of the officers and NCOs who supervise them. In recognition of this circumstance and of the potential for disruption of good order and discipline if their superiors take advantage of the opportunity to victimize trainees, many training companies have issued directives concerning fraternization with trainees." U.S. v. Mayfield, 21 MJ 418 (CMA, 1986).

Fort Gordon's regulation on the subject was at issue in U.S. V. Sartin, 24 MJ 873 (ACMR, 1987). This regulation prohibited social fraternization "between permanent party personnel and a soldier in a training status, a status defined to last until the soldier departs Fort Gordon on permanent change of station. The accused, a staff sergeant, had sexual intercourse with a female student "on the night of her graduation from her training course, prior to her signing out from the school at Fort Gordon on the following day." The court held that the prohibition was necessary "to promote good order and discipline due to the likely susceptibility of trainees to improper influence from those in whose care they have been committed for duty purposes." It "does further a legitimate military need" and is directly connected with "the maintenance of good order and discipline." It is "justified by a compelling military interest." The accused argued that his conduct was not improper as the student had already graduated. The court disagreed:

"We believe that both the susceptibility to improper influence and the actual improper influence are as likely to exist when the act consummating the relationship occurs at the completion of the training cycle as when it occurs during the training cycle. The appellant's relationship with a trainee...could reasonably be expected to adversely affect discipline and authority, such as by causing a perception of partiality or favoritism during an earlier period of the training cycle."

Another example of a local regulation is Fort McClellan Reg 632-1. The general superior-subordinate prohibition states that one "will not engage in any nonprofessional relationship which results in either actual favoritism or improper exploitation of rank or position by the superior, or some actual or clearly predictable adverse impact on discipline, authority, or morale" (paragraph 9). This, of course, is consistent with the Army's regulatory policy we previously discussed.

Paragraph 8 of the regulation covers relationships between permanent party and trainee personnel. It prohibits any "business or business-related activities with trainees, receptees, or students." This includes such things as commercial solicitation and the borrowing of money. It also prohibits the following:

"Engage in any actual or attempted nonprofessional social relationship of a personal nature with any trainee or receptee, on or off Fort McClellan, that is outside of duty association. This includes, but is not limited to, dating, any type of sexual activity, any touching of a sexual nature, hugging or kissing, hand holding or physical caressing, or attempting or soliciting to do these things with trainees or receptees; drinking or alcoholic beverages with trainees or receptees for any purpose of entertainment, dining, recreation, sport, or intimacy" (paragraph 8c).

Similar prohibitions cover relationships between instructors and students (paragraph 10), and those between students and trainees/receptees (paragraph 12).

a. General.

An apprehension is the taking of a person into custody. An apprehension "is made by clearly notifying the person to be apprehended that person is in custody. This notice should be given orally or in writing, but it may be implied by the circumstances." (RCM 302(d)(1).) It "involves substance rather than form. No specific words or any words at all need be used." U.S. V. Repp, 23 MJ 589 (AFCMR 1986). Telling a suspect to freeze and get up against a wall was held to be sufficient in U.S. V. Walker, 13 MJ 982 (ACMR 1982).

b. UCMJ/MCM provisions. Article 7, UCMJ, states: "Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this chapter and to apprehend persons subject to this chapter who take part therein." RCM 302(b) states that "the following officials may apprehend any person subject to trial by court-martial...all commissioned, warrant, petty, and noncommissioned officers."

Article 7, UCMJ, also provides that "any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it." Also, RCM 302(b)(1) states that "the following officials may apprehend any person subject to trial by court-martial...military law enforcement officials. Security police, military police, master-at-arms personnel, members of the shore patrol, and persons designated by proper authorities to perform military criminal investigative, guard, or police duties, whether subject to the Code or not, when, in each of the forgoing instances, the official making the apprehension is in the execution of law enforcement duties." The authority under Article 7 and RCM 302 is not limited to on-post apprehensions.

"An Army MP may, of course apprehend a sailor or an airman. Article 7, UCMJ, and RCM 302 apply to the apprehension of "any person subject to trial by court-martial." One may lawfully apprehend a superior, but there are a couple of cautionary notes to be made here. First, RCM 302(b)(2) adds that "noncommissioned and petty officers not otherwise performing law enforcement duties should not apprehend a commissioned officer unless directed to do so by a commissioned officer or in order to prevent disgrace to the service or the escape of one who has committed a serious offense." Also, RCM 302(b)(1) points out: "whenever enlisted persons, including police and guards, apprehend any commissioned or warrant officer, such persons should make an immediate report to the commissioned officer to whom the apprehending person is responsible."

c. Regulations. There are various regulations that deal with the power to apprehend. As was explained, these constitute sources of authority.

d. The apprehension of civilians.

a. General. We have already seen that our military police may apprehend civilians on post. As we will see shortly, there is no court-martial jurisdiction over civilians, except during times of declared war. If the military cannot prosecute the offender the question is simple: who can? Obviously, if the answer is "nobody," we have a very serious problem--civilians could commit crimes on post with immunity. Fortunately, that is not the case. Civilians who commit crimes on post ARE subject to criminal prosecution. The question is: By who? First, they may be subject to prosecution by the federal government for the violation of federal criminal law. The federal criminal law is called the United States Code. Title 18 contains the main body of federal criminal law.

Another possibility is that the civilian may be subject to prosecution by the state authorities for a violation of state law. The problem is: how do you tell which it is? The answer depends on what sort of territorial (area) jurisdiction that may exist on post. Note that several different areas may exist on a single installation.

b. Exclusive federal jurisdiction. This means that the federal government has all of the authority here, "with no reservation by the state of any authority except the right to serve civil and criminal process." (DA Pam 27-21, paragraph 2-5(b)(1).) Stated simply, the federal government has the power to prosecute an offender for a violation of federal law committed here; the state, however, does not have the power to prosecute here. Federal law applies here, but state law does not. If a civilian commits a crime here, then he can be prosecuted by the U.S. Government for a violation of the U.S. Code. The state, on the other hand, will not have the power to prosecute for a violation of state law.

c. The Assimilative Crimes Act (18 USC Section 13).

This law applies to crimes that are committed on areas of "special maritime an territorial jurisdiction of the United States," which includes areas under either exclusive or concurrent jurisdiction (18 USC Section 7).

Similarly under Article 134, if there is no applicable provision of the UCMJ covering an offense, a soldier may be court-martialed for a violation of a state law which has been assimilated.

d. Concurrent jurisdiction. As the name implies, this means that the state has reserved the right to exercise its authority "concurrently with the United States." (DA Pam 27-21, paragraph 2-5(b)2.) One who commits a crime here, then, could be prosecuted by the state government. He could also be prosecuted by the federal government. Remember, BOTH governments have authority here, and the laws of both apply.

An interesting example of this principle is Heath v. Alabama, 474 US 82, 88 LEd 2d 387, 106 SCt 433 (1985). The victim was kidnapped in Alabama, but her body was found in Georgia (after she had been murdered in Georgia). Both states pursued an investigation into the matter. The defendant was arrested in Georgia and prosecuted for "malice murder." He was convicted and given a life sentence. He was then prosecuted by Alabama for the crime of "murder during a kidnapping." Although the kidnapping itself began in Alabama, the murder had occurred in Georgia. The Alabama law, however, provided that if the crime began in Alabama, it could be punished there, even if the actual murder occurred elsewhere. The defendant was convicted, again, and given another life sentence.

The Supreme Court ruled that "successive prosecutions by two states for the same conduct are not barred by the double jeopardy clause." The Court explained that the federal government is a "separate sovereign" from a state government. At the same time, "the states are no less sovereign with respect to each other than they are with respect to the federal government." Each state, then, is an independent sovereign entity.

The military is, of course, a part of the federal government. Consequently, a soldier could be prosecuted by the military (Court-martialed) and also be prosecuted by the state. This would be a possibility, for example, if the crime was committed on an area of concurrent jurisdiction. As we will see shortly, this could also happen if the soldier committed the crime off post. DA policy, however, is that "a person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not be tried by court-martial or punished under Article 15, UCMJ, for the same act over which the civilian court has exercised jurisdiction." (AR 27-10, paragraph 4-2.)

When a soldier commits a crime on an exclusive or concurrent jurisdiction area, the federal civilian authorities may also want to prosecute him (for a violation of the U.S. Code). If the military also wants to prosecute the offender at a court-martial, a conflict may result. Since both represent the same sovereign (the U.S. federal government), they could not both prosecute him for the same crime, as this would be a double jeopardy violation. To avoid possible conflicts in the area there is a memorandum of understanding (MOU) between DOJ and DOD. This MOU "established policy for the Department of Justice and the Department of Defense with regard to the investigation and prosecution of criminal matters over which the two departments have jurisdiction." (AR 27-10, paragraph 2-7.) Its goal is "to encourage joint and coordinated investigative efforts." As an example, crimes involving bribery and conflict of interest involving military or civilian DOD personnel will be referred to the FBI.

e. Proprietary jurisdiction. Here, the federal government "has not obtained any measure of the state's legislative authority over the area." (DA Pam 27-21, paragraph 2-5(b)(4).) The military, for example, may simply be using the area, such as by renting space. As a general rule, the state has the power to prosecute an offender for a violation of its law; state law applies, but federal law generally does not. Consequently, a civilian who commits a crime here would be prosecuted by the state authorities, not by the federal government. The federal government would lack the authority to prosecute. Keeping mind that a soldier may be prosecuted no matter where the crime has been committed; i.e., on post, or off post. We will return to this concept shortly.

f. Federal crimes of nationwide applicability. With respect to proprietary jurisdiction areas, remember that the general rule is that state law applies, but not federal law. There are, however, exceptions. Some federal criminal statutes apply on a nationwide basis, meaning that they also apply even in areas of proprietary jurisdiction. They apply nationwide, everywhere throughout the United States, even off post. If a person commits a violation of one of these laws, he may be prosecuted by the federal government, whether he committed the crime on a military installation or not, whether the crime was committed on an exclusive, concurrent, or proprietary jurisdiction area.

An example of a law which applies nationwide is 18 USC Section 1751. This statute makes it a federal crime to kill, to attempt to kill or to kidnap the President of the United States or the Vice-President. The language of this law does not say that it applies only in areas of "the special maritime and territorial jurisdiction of the United States." It is not, then, limited to crimes that are committed in areas of exclusive or concurrent federal jurisdiction. Instead it applies everywhere.

Another example of a law which applied nationwide is 18 USC Section 1114, as well as Section 1111. These laws, you will recall, make it a federal criminal offense to murder or assault various federal law enforcement officials. As we saw, they apply even outside of the United States, which is also true of Section 1751 (the law covering the assassination of the President).

Some other examples of federal laws which apply nationwide are robbery when personal property of the U.S. is taken (18 USC Section 2112), bank robbery (18 USC Section 2113), robbery of a post officer or a postal employee (18 USC Section 2114), and burglary of a post officer (18 USC Section 2115).

g. Federal crimes of extraterritorial applicability. Examples of crimes which apply on an extraterritorial basis include bribery (18 USC Section 201), conflict of interest (18 USC Section 208), counterfeiting (18 USC Section 25), and false, fictitious, or fraudulent claims (18 USC Section 287). In U.S. V. Glaude, 4 MJ 1 (CMA, 1977), the court explained that Congress clearly has the power to provide for extraterritorial applicability of a federal criminal statute. The issue is not whether it CAN do so, but whether it HAS done so.

In U.S. v. Glaude, 4 MJ 1 (CMA, 1977), the court explained that the "application of a penal statute is not automatically limited to crimes committed within the territorial jurisdiction of the sovereign just because a penal provision lacks express language that it should be applied extraterritorially." Instead, it depends on the purpose of the law. In U.S. V. Bowman, 260 US 94, 67 LEd 149, 43 SCt 39 (1977), the Supreme Court explained that it is a question of "statutory construction: "

"Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement, and frauds of all kinds which affect the peace and good order of the community, must, of course, be committed within the territorial jurisdiction of the government where it may properly exercise it (jurisdiction). If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute...But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government's jurisdiction, but are enacted because of the right of the government to defend itself against obstruction or fraud, wherever perpetrated, especially if committed by its own citizens, officers, or agents...to limit their focus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute, and leave open a large immunity for frauds...In such cases, Congress has not thought it necessary to make specific provisions in the law that the laws shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense."

A good illustration of this principle is U.S. V. Mosley, 14 MJ 852 (ACMR, 1982). There, the court was dealing with 18 USC Section 500, which prohibited the forgery and counterfeiting of U.S. Postal Service money orders. The statute did not specifically state whether or not it applied overseas. The court explained that it "must examine the thrust of the statute to determine whether the congressional intent is to protect a governmental rather than (a) private interest." Here, the "primary thrust" of the law "is the protection of the U.S. Postal Service." The court, therefore, concluded:

"The United States government has an absolute duty to maintain the integrity of the U.S. Postal System, which includes its postal money orders, both within the borders and in foreign countries...It is reasonable to assume that Congress was aware that the integrity of the postal system and its money orders would be threatened abroad as well as at home, and it is proper to infer that Congress intended to protect the government against forgery of these papers wherever the postal system operated."

The U.S. government, then, "has a paramount interest in protecting its property, wherever located, by assertions of its penal laws... laws punishing fraud against the government include by implication acts committed in foreign countries." Based on these factors, 18 USC Section 500 was deemed to have extraterritorial effect.

Congress recently passed 18 USC Section 2331, which prohibits the commission of terrorist acts (including murder and certain other forms of physical violence) when committed "abroad against United States Nationals." This is an example of a criminal law which applies on an extra-territorial basis. It explicitly prohibits the commission of certain acts when committed "abroad against United States Nationals." This language obviously shows that Congress intended this law to apply outside the Continental United States.

Another antiterrorism law is 18 USC Section 1203, which prohibits hostage taking overseas, if the offender or victim is a U.S. national, or if the offenders make demands of the United States government. Again, by its language, this law applies on an extraterritorial basis. You can tell this from the wording of the law itself. Its language clearly shows that Congress intended for this law to apply overseas. Unless the laws were to be given extraterritorial effect, this language would be rendered totally meaningless. Remember, Congress has the power to pass extraterritorial criminal laws--the only issue is whether it HAS done so. Here, the answer is yes. Where terrorists kidnap Americans overseas and hold them hostage, or where they subject the victims to various forms of violent treatment (including death), the terrorists can be tried in federal courts for their criminal acts. The statutes mentioned here were Congress' response to the terrorist threat--and the need to protect Americans outside the boundaries of the United States.

h. The U.S. Magistrate's court system. As we have already seen, a civilian who commits a crime on post may be apprehended by military law enforcement officials. Since there is no court-martial jurisdiction over civilians, except during declared wars, the civilian offender can only be prosecuted in civilian court. Not all crimes, however, are going to be referred to the U.S. Attorney for prosecution. While felonies will generally be so referred, this is not true of all misdemeanors. The U.S. Attorney's Office may be too involved with the prosecution of other felony cases to handle all of the military cases, particularly the misdemeanors. An alternative is the U.S. Magistrate's Court System: "Any individual military or civilian, who commits a misdemeanor in an area of exclusive or concurrent federal jurisdiction a military installation located within the judicial district of a U.S. District Court may be prosecuted before a U.S. Magistrate." (AR 27-40, paragraph 6-5a.)

The U.S. Magistrate is a federal judge "designated to try misdemeanors committed on an installation." (AR 27-40, paragraph 6-5b.) An attorney from the SJA office will normally act as the prosecutor (AR 27-40, paragraph 6-3-1). The Magistrate "shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors." (18 USC Section 3401a.) The U.S. Magistrate's Court also has jurisdiction over juveniles who commit on-post misdemeanors (18 USC Section 3401(g).

The purposes of this system include "convenience to the public" and the "enforcement of misdemeanor laws on Army installations." (AR 190-29, paragraph 6.) It is a federal court, as was noted. Cases most frequently tried here include larceny, assault, and traffic offenses. Since the court's jurisdiction is limited to the trial of misdemeanor cases, it may not impose a sentence of imprisonment in excess of one year. The magistrate may not sentence a juvenile who is tried as a juvenile to any period of confinement. [18 USC Section 3401(g)].

Offenders are cited to appear in U.S. Magistrate's Court by the issuance of DD Form 1805 (Citation). Some offenses allow for a mail-in fine, while others require a court appearance (AR 190-29, paragraph 7). The trial of a juvenile may necessitate a certification by the U.S. Attorney that the state juvenile court "lacks jurisdiction, refuses to assume jurisdiction, or does not have adequate programs and services available." (AR 190-29, paragraph 15.) This will, of course, require coordination between the SJA and the local civil authorities.

The offender may, of course, be a soldier. The U.S. Magistrate will have jurisdiction over on-post misdemeanors, whether committed by civilians or soldiers. However, "personnel subject to the UCMJ who pay a fine or forfeit collateral or whose cases are disposed of under the (magistrate's court system) will not be punished under the UCMJ for the same violation." (AR 190-29, paragraph 14.) This is because the military and the federal government both represent the same sovereign. Consequently, both may not prosecute an individual for the same crime, as to do so would violate the double jeopardy prohibition in the U.S. Constitution. To avoid a possible problem here, "installation commanders should establish policies on how to refer active duty Army personnel to the U.S. magistrate for disposition when the violator's conduct constitutes a misdemeanor within the magistrate's jurisdiction and is also a violation of the UCMJ" (AR 190-29, paragraph 14). As an example, the post commander may want to keep jurisdiction over certain traffic offenses (DUI) that were committed by officers and/or senior enlisted personnel. This is only an illustration, and much will depend on the particular situation facing an individual installation.

a. Exclusive jurisdiction. The receiving state is given exclusive jurisdiction over U.S. military personnel, members of the civilian component, and dependents with respect to conduct which violates the law of the receiving state but not the law of the sending state (U.S.). The U.S. would have exclusive jurisdiction over conduct which violates U.S. law, but not the law of the receiving state. This would include military offenses under the UCMJ, including disrespect to and disobedience of commissioned, warrant, and noncommissioned officers.

b. Concurrent jurisdiction. Most crimes committed overseas by our soldiers fall into this category. Within the United States, concurrent jurisdiction means that both the federal and state governments can prosecute (since the laws of both were violated). Overseas, this term means that both the United States and the host nation can prosecute (since the laws of both were violated).

c. Due process rights. The SOFA sets out the rights of our people who are being prosecuted by the host nation. These are similar to the rights which apply at U.S. criminal trials. The purpose of these provisions is to assure that the accused receives a fair trial.

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 of 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 subject to the UCMJ (Article 2c, UCMJ). In other words, even if the enlistment was defective at its inception, the court may uphold court-martial jurisdiction based on the finding of a "constructive enlistment." U.S. V. Hirsch, 26 MJ 800 (ACMR 1988).

c. Article 2. UCMJ. This provision lists various categories of person who are subject to the UCMJ, and therefore, to the jurisdiction of a court-martial. This list includes the following:

a. Delivery of a valid discharge certificate.

b. A final accounting of pay.

c. Undergoing a "clearing" process as required under appropriate service regulations to separate the member from the military.

a. Off duty. The Act does not apply to military members "when off-duty and in a private capacity." A soldier is not acting in a private capacity, however, "when assistance to law enforcement officials is rendered under direction, control, or suggestion of DOD authorities." The Act similarly does not apply to civilian employees, unless they are acting "under direct command and control of a military officer." (AR 500-51, paragraph 3-2(c) and (d).)

b. Reservists and national guardsmen. The Act does not apply to members of a Reserve Component "when not on active duty or active duty for training." Also, it does not apply to members of the national guard "when not in federal service." (AR 500-51, paragraph 3-2(a) and (b).

c. Military purpose. The Act does not prohibit "actions taken for furthering a military or foreign affairs function of the United States, regardless of incidental benefit to civilian authorities." (AR 500-51, paragraph 3-4a.)

Examples of actions that further a "military purpose" are listed in AR 500-51, paragraph 3-4(a), and include the following: "(1) actions related to enforcement of the Uniform Code of Military Justice; (2) actions likely to result in administrative proceedings by DOD, regardless of related civil or criminal proceedings; (3) actions related to the commander's inherent authority to maintain law and order on a military installation or facility; (4) protection of classified military information or equipment; (5) protection of DOD personnel, DOD equipment, and official guests of DOD; (and)(6) other actions that are undertaken primarily for military or foreign affairs purposes."

AR 195-2, paragraph 3-1(b), similarly explains that CID's investigative jurisdiction is limited to matters in which there is an "Army Interest." Examples of this are: "(1) the crime is committed on a military installation or facility; (2) there is a reasonable basis to believe that a suspect may be subject to the UCMJ; (3) there is a reasonable basis to believe that a suspect may be a civilian employee of DOD who has committed an offense in connection with his or her assigned duties; (4) the Army is the victim of the crime; e.g., the offense involves the loss or destruction of government property or allegations of fraud...relating to Army programs or personnel; (and)(5) there is a need to protect personnel, property, or activities on Army installations from criminal conduct on military installations that has a direct adverse effect on the Army's ability to accomplish its mission; e.g., the introduction of controlled substances onto Army installations."

After Solorio, the Army may be investigating more off-post incidents. The civil authorities, of course, may also be investigating them, due to their concurrent jurisdiction to both investigate and prosecute. In such cases, "investigative responsibility will be determined in coordination with that authority. When concurrent jurisdiction or authority to investigate exists and neither the Army nor the civil authorities accede to the other's primary responsibility to investigate, both may pursue the investigation in fulfillment of their respective interests, with neither impeding the other." (AR 195-2, paragraph 3-2a.) Overseas, of course, the off-post investigation must not be prohibited by a SOFA or other host nation law. If there is no applicable local agreement, off-post investigations will still require "coordination with appropriate host country authorities." (AR 195-2, paragraph 3-2b.) In this regard, TJAG policy Memorandum 87-5 (28 Jul 87) states that military jurisdiction over off-post offenses "will, by necessity, require greater coordination with civilian law enforcement agencies and prosecutors...staff and command judge advocates should review any...MOU in effect with local, state, and federal prosecutors and law enforcement officials in light of Solorio...Solorio should be discussed with these officials as soon as possible and plans made for coordination on further cases."

Also, remember that the authority to investigate off-post offenses does not confer the authority to apprehend civilians off post, or to execute civilian search warrants. As we saw earlier, these situations require coordination with the civil authorities (AR 195-2, paragraph 3-21c.)

d. Emergency (the Constitution exceptions). In an emergency, the federal government may act to "prevent loss of life or wanton destruction of property" or to "restore governmental functioning and public order." Such a situation might exist "when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property, and disrupt normal governmental functions so much that duly constituted local authorities are unable to control the situation." A similar situation would exist when "prompt and vigorous federal action" is necessary for the "protection of federal property and functions...when (a) the need for protecting exists (and) (b) duly constituted local authorities are unable to provide adequate protection." (AR 500-50, paragraph 2-4.)

Remember, the protection of life and property and the maintenance of order within the territorial jurisdiction of a state are "the primary responsibilities of state and local civil governments. Federal armed forces are used only after state and local civil authorities have utilized all of their own forces which are reasonably available for use, and are unable to control the situation, or when the situation is beyond the capabilities of state or local civil authorities." (AR 500-50, paragraph 1-3a.)

This emergency exception applies, then, "in cases of sudden and unexpected invasion or civil disturbance, including civil disturbances incident to earthquake, fire, flood, or other public calamity endangering life or federal property or disrupting federal functions or the normal process of government, or other equivalent emergency." Also, if the situation is "so imminent as to make it dangerous to await instructions from the Department of the Army requested through the most expeditious means of communication available", then the local commander may act "before the receipt of instructions." (AR 500-50, paragraph 2-4a.) Note, however, that "in view of the availability of rapid communications capabilities, it is unlikely that actions under this authority would be justified without prior Department of the Army approval while communications facilities are operating."

When such emergency action is taken, persons not subject to military law who are taken into custody "will be transferred, as soon as possible, to the civil authorities."

e. Statutory exceptions (10 USC Sections 331-334). There are several federal statutes "which permit the commitment of federal forces to restore order in conditions of civil disturbance, including terrorism... Congress has enacted legislation providing that the President may, upon request of a state legislature, or its governor if the legislature cannot be convened, use such of the armed forces as he consider necessary to suppress the insurrection." (DA Pam 27-21, paragraph 3-8.) This is very similar to the constitutional exception we just looked at, and reflects similar interests.

An example of this is 10 USC Section 331, which states: "Whenever there is an insurrection in any state against its government, the President may, upon request of its legislature or of its governor if the legislature cannot be convened, call into federal service such of the militia of the other states, in the number requested by that state, and use such of the armed forces, as he considered necessary to suppress the insurrection." This requires "a formal request by a state for the assistance of federal armed forces," which "must originate with the legislature of the state concerned, or with the governor." (DA Pam 27-21, paragraph 3-8a.)

A similar state is 10 USC Section 332: "Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, makes it impracticable to enforce the laws of the United States is any state or territory by the ordinary course of judicial proceedings, he may call into federal service such of the militia of any state, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion." Another example is 10 USC Section 333, which states that the President "by using the militia or the armed forces, or both...shall take such measures as he considers necessary to suppress in a state, any insurrection, domestic violence, unlawful combination, or conspiracy, if it (1) so hinders the execution of the laws of that state, and of the United States within the state, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that state are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws."

In using federal armed forces, the President shall, by proclamation, "immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time." (10 USC Section 334.) If the proclamation is not obeyed, an executive order is issued, "directing the Secretary of Defense to employ such National Guard of federal troops as are necessary to restore law and order,"(DA Pam 27-21, paragraph 3-8d.) Pursuant to these laws, federal troops were dispatched to Arkansas (1957), to Mississippi (1962), and to Alabama in 1963.

f. Terrorist incidents. A terrorist incident is regarded as a form of civil disturbance. It is DOD policy "to protect DOD personnel and family members, facilities, and equipment from terrorists' acts." (DOD DIr. 2000.12, July 16, 1986.) Although the FBI is the lead agency for combating domestic terrorists, the installation commander will provide the initial and immediate response to any incident occurring on a military installation. The FBI will be notified immediately, and will assume jurisdiction if it is determined that such an incident is of "significant federal interest." Even if the FBI does assume jurisdiction, "the military commander may take immediate action, as dictated by the situation, to prevent loss of life or mitigate property damage before the FBI response force arrives."

Overseas, the State Department will be immediately notified (as opposed to the FBI), as it has the "primary responsibility for dealing with terrorism involving Americans abroad and for enhancing the security of all U.S. government personnel overseas." The host nation, however, remains overall in charge, and the U.S. response must be coordinated with that nation. The use of our forces overseas must be IAW the applicable SOFA with that nation.

Within the United States, the use of military forces in dealing with an off-post terrorist incident will normally necessitate presidential approval. Unless there is an overwhelming emergency preventing communication with higher headquarters, the provision of military forces in such a situation will require this approval in advance. This is IAW a Memorandum of Understanding (MOU) between DOD and DOJ, which deals with the use of federal military force in domestic terrorist incidents. This would not, as we shall soon see, prevent the giving of advice, sharing intelligence information, loaning equipment, the delivery of equipment, or the training of civilian personnel in its use.

g. Recent amendments to Title 10, U.S. Code.

h. Joint patrols. AR 190-24, paragraph 3-3(b), states that the presence of the military police officer in this situation is "for the sole purpose of enforcing the UCMJ among persons subject to the Code." This does not confer any general authority over the civilian police or the civilian population. The purposes of this program include reducing the incidence of off-installation military offenses committed by armed forces personnel, and to "enforce the UCMJ and other pertinent regulations, directives, and orders among persons subject to the UCMJ" (paragraph 3-1).