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Court-Martial Jurisdiction Under the Uniform Code Seymour W NORTH CAROLINA LAW REVIEW Volume 32 | Number 1 Article 4 12-1-1953 Court-Martial Jurisdiction under the Uniform Code Seymour W. Wurfel Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Seymour W. Wurfel, Court-Martial Jurisdiction under the Uniform Code, 32 N.C. L. Rev. 1 (1953). Available at: http://scholarship.law.unc.edu/nclr/vol32/iss1/4 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. COURT-MARTIAL JURISDICTION UNDER THE UNIFORM CODE SEYMOUR W. WURFEL* I. SCOPE OF INQUIRY The modest pretension of this discussion is to collect the more im- portant pronouncements of the United States Court of Military Appeals' during its first two years of operation2 and of the Boards of Review3 on the fundamental subject of jurisdiction. No attempt is made to review the centuries-long development of foreign and American military court jurisdiction 4 beyond the basic statement that Congress in enacting the Uniform Code of Military Justice5 merely exercised once more its ex- press constitutional power "to make Rules for the Government and Regulation of the land and naval forces." 6 The considerable body of textual7 and periodics material treating military jurisdiction in the era * Visiting Professor of Law, Vanderbilt University School of Law, summer session 1953; Colonel, Judge Advocate General Corps, United States Army. This article reflects the personal opinion of the author and does not necessarily express the views of the Office of the Judge Advocate General of the Army nor of any other government instrumentality. 1 The court of last resort in the system of military law as prescribed by Art. 67 of the Uniform Code of Military Justice, 64 STAT. 129 (1950), 50 U. S. C. § 654 (Supp. 1952). 'Although the Uniform Code became effective on May 31, 1951 pursuant to PuB. L. No. 506, 81st Cong., § 5, c. 169 (May 5, 1950), the first decision by the Court of Military Appeals was not rendered until November 8, 1951 in United States v. McCrary, 1 CMR 1 (U. S. C. M. A. 1951). Accordingly, the actual period of productivity to May 31, 1953 is slightly less than nineteen months. De- cisions through October 1, 1953 are considered herein. For an excellent general survey and analysis of the decisions of the Court of Military Appeals up to July 25, 1952, see Aycock, The Court of Military Appeals-The First Year, 31 N. C. L. Rsv. 1 (1952). Mr. Aycock extends this scholarly analysis to the decisions ren- dered by the Court of Military Appeals during its second year in an article appear- ing in the January 1954 issue of the EmoRY UNInVRSITY JOURNAL OF Pt.Lic LAW. Army, Navy, Coast Guard and Air Force Boards of Review are the interme- diate appellate tribunals in the military justice system. They are provided for by Art. 66 of the Uniform Code, 50 U. S. C. § 653 (Supp. 1952). ' For a brief treatment of the history of the jurisdiction of military tribunals, see Wurfel, Military Habeas Corpus, 49 MicH. L. REv. 493-505 (1951). 'Act of May 5, 1950, 64 STAT. 108 (1950), 50 U. S. C. §§ 551-736 (Supp. 1952). 'U. S. CoNsT. Art. I, § 8, cl.14. An Air Force Board of review has had occa- sion to hold that the words "land and naval forces" in the Constitution refer not only to the Army and Navy but equally to the Air Force. This was done in United States v. Naar (ACM 4215), 2 CMR 739, 745 (1951) in rejecting the contention of an Air Force lieutenant that since he was not in the land or naval forces he was entitled under the Fifth Amendment to grand jury indictment before being brought to trial. The same accused endeavored to raise the same issue by seeking an in- junction to restrain the air force court-martial in a proceeding before a three judge federal court. On May 22, 1951 the District Court for the District of Columbia dismissed this complaint on the ground that it failed to state a cause of action. (Civil Action No. 2061-51). The outstanding text is WINTHROP, MILITARY LAW AND PRECEDENTS (2d ed. NORTH CAROLINA LAW REVIEW [Vol. 32 before the Uniform Code will not be surveyed. Pre-Code Board of Review opinions9 dealing with jurisdiction are not extensively discussed. No effort is made to consider all the facets presented in the Code's cluster of some fifteen essentially jurisdictional Articles.10 The appellate juris- diction vested in the Boards of Review by Article 66,11 and in the Court of Military Appeals by Article 67,12 is not explored. The versatile jurisdiction of military commissions to try law of war violations, 18 war crimes,14 offenses under military government 1 and to sit as martial law courts16 is beyond the ambit of this article. Also excluded, most reluctantly, are the inviting international law problems concerning the exercise of conflicting jurisdiction over members of visiting armed forces stationed in or passing through friendly foreign countries." At this juncture the reader may well cry out, "With what area of jurisdiction are we here to cope?" The answer is, with the decisions of jurisdictional matters by the Court of Military Appeals and the Boards of Review' 8 under the Uniform Code and the salient United States 1920). See c. VIII, pp. 81-109 on jurisdiction. Also significant is DAVIS, A TREA- TISE ON THE MILITARY LAW OF THE UNITED STATES (3d ed. 1915). ' Representative of the best law review articles of that period is Underhill, Jurisdiction of Military Tribunals in the United States Over Civilians, 12 CALIF. L. REv. 75, 159 (1924). ,In the thirty years before the Code, Army Board of Review opinions alone ran into thousands of pages contained in some 141 volumes. "oArts. 2, 3, 5, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 56, which, respec- tively, are 50 U. S. C. §§ 552, 553, 555, 577, 578, 579, 580, 581, 586, 587, 588, 589, 590, 591, and 637 (Supp. 1952). %50 U. S. C. § 653 (Supp. 1952). For example, United States v. Bigger (No. 456), 7 CMR 97 (U. S. C. M. A. 1953) holding Boards of Review have jurisdiction to commute a death sentence when reducing the finding to unpremeditated murder. The case of United States v. Washington (CM 362541, Docket 3451) where a death sentence was similarly reduced without reduction of the finding has been cer- tified to the Court and is now pending decision. See also United States v. Reeves (No. 453), 3 CMR 122 (U. S. C. M. A. 1953) and United States v. Weeden (No. 3338), 12 CMR 161 (U. S. C. M. A. 1953) holding a Board of Review has power to entertain a motion for reconsideration of a decision rendered by it. 1250 U. S. C. § 654 (Supp. 1952). "Examined in the able opinion by Chief Justice Stone in Ev parte Quirin, 317 U. S. 1 (1942). " In re Yamashita, 327 U. S. 1 (1946). 1"Madsen v. Kinsella, 343 U. S. 341 (1952). "' Ex parte Milligan, 4 Wall. 2 (U. S. 1866) ; Duncan v. Kahanamoku, 327 U. S. 304 (1945). Fairman, The Law of Martial Ride and the National Emergency, 55 HARv. L. REv. 1253 (1942). "' This problem was first grappled with by Chief Justice John Marshall in Schooner Exchange v. M'Fadden, 7 Cranch 116 (U. S. 1812) in which he concluded that members of the visiting force remained exclusively subject to the criminal and civil jurisdiction of the sovereign by whom employed. It is case and treaty law of this type which Congress had in mind in prefacing both paragraphs (11) and (12) of Article 2, dealing with jurisdiction "without the continental limits of the United States" with the language, "Subject to the provisions of any treaty or agreement to which the United States is or may be a part or to any accepted rule of internation law, . " See United States v. Weiman (No. 1403), 11 CMR 216 (U. S. C. M. A. 1953). " Board of Review opinions of the four services under the Uniform Code have burgeoned in the first ten volumes of Court-Martial Reports into a total of more 1953] COURT-MARTIAL UNDER THE UNIFORM CODE 3 Supreme Court decisions in the field of military habeas corpus. That is to say, the current case law from which the military bar19 must seek its enlightenment and direction in matters of courts-martial jurisdiction. It must be remembered that jurisdiction is the only aspect of a court- martial proceeding which may be inquired into by the regular federal courts, 20 this only by habeas corpus collateral attack and not by appeal,21 and then only after the petitioner has first exhausted all appellate and new trial remedies within the military law system.22 The Supreme Court has thus defined the test of jurisdiction to be applied to military courts: "'The single inquiry, the test is jurisdiction' ... In this case the court-martial had jurisdiction of the person of accused and the offense charged, and acted within its lawful powers. The correc- tion of any errors it may have committed is for the military au- '23 thorities which are alone authorized to review its decisions. Boards of Review and the Court of Military Appeals monitor courts- martial jurisdiction in the exercise of their normal appellate functions.
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