Filed: Apr. 11, 1996
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 4-11-1996 Murphy v. Dalton Precedential or Non-Precedential: Docket 95-3183 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "Murphy v. Dalton" (1996). 1996 Decisions. Paper 194. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/194 This decision is brought to you for free and open access by the Opinions of the United States Court of Appea
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 4-11-1996 Murphy v. Dalton Precedential or Non-Precedential: Docket 95-3183 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "Murphy v. Dalton" (1996). 1996 Decisions. Paper 194. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/194 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeal..
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Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
4-11-1996
Murphy v. Dalton
Precedential or Non-Precedential:
Docket 95-3183
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Murphy v. Dalton" (1996). 1996 Decisions. Paper 194.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/194
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1
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 95-3183
__________
MICHAEL A. MURPHY,
Appellant,
v.
JOHN H. DALTON, Secretary of the Navy; GENERAL
CARL E. MUNDY JR., Commandant of the Marine Corps;
MAJOR GENERAL ALBERT C. HARVEY, Commanding General,
4th Marine Division; COLONEL JERRY L. CREED, Deputy
Director, Marine Reserve Support Center, MAJOR DENNIS WILLIAMS,
U.S. MARINE CORPS RECRUITING CENTER PITTSBURGH; BRIGADIER
GENERAL JACK W. KLIMP, Commanding General, Marine
Corps Recruit Depot, Parris Island, Individually and in his
official capacity; WILLIAM J. PERRY,
Secretary of Defense; and the UNITED STATES OF AMERICA,
Appellees.
_______________
Appeal From the United States District Court
for the Western District of Pennsylvania
(D. C. Civ. No. 90-cv-00357)
_________________
Argued November 28, 1995
Before: MANSMANN, COWEN and SEITZ, Circuit Judges.
Filed: April 11, 1996
________________
Andrew G. Sykes, Esq. (argued)
Sammuel J. Cordes, Esq.
Ogg, Jones, Desimone & Ignelsi, L.L.P.
245 Fort Pitt Boulevard
Pittsburgh, PA 15222
Attorneys for Appellant
Frederick W. Thieman
United States Attorney
Paul J. Brysh (argued)
Assistant U.S. Attorney
633 U.S. P.O. and Courthouse
Pittsburgh, PA 15219
2
Lt. Susan C. Stewart, JAGC, USN
Department of the Navy
200 Stovall Street
Alexandria, VA 22332
Attorneys for Appellees
_______________________
OPINION OF THE COURT
_______________________
SEITZ, Circuit Judge.
Michael E. Murphy ("Plaintiff"), formerly a captain in
the United States Marine Corps Reserves, initiated an action in
the district court challenging, inter alia, the authority of the
United States Marine Corps to recall him to active duty, while a
member of the Marine Corps Reserves, and to subject him to trial
by court-martial for offenses committed during a prior period of
active duty in the regular Marines Corps. Plaintiff appeals an
order of the district court granting summary judgment in favor of
the Secretary of the Navy John H. Dalton, et al. ("Defendants").
The court held that Plaintiff was lawfully recalled to active
duty and court-martialed in accordance with constitutional
standards. The district court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I. FACTS
Plaintiff served in the regular component of the United
States Marine Corps from October, 1981 to May 30, 1988, and
achieved the rank of captain. On May 30, 1988, he resigned his
commission and received an honorable discharge from the regular
component. Simultaneous with his discharge, Plaintiff requested
3
and accepted a commission as a reserve officer and transferred to
the Marine Corps Reserves. Under this arrangement, Plaintiff had
no obligated service in the reserves.
In or around August 1988, Plaintiff joined a Marine
reserve unit and participated in inactive duty training.
Thereafter, charges were preferred against Plaintiff for
violations of various articles of the Uniform Code of Military
Justice ("UCMJ") for misconduct which occurred during his prior
period of active duty in the regular component. Plaintiff was
called to active duty to face the charges but challenged the
military's jurisdiction over him. At the time of his recall,
Plaintiff was not on active duty or on inactive duty training.
None of the allegations concerned conduct occurring during the
period of Plaintiff's inactive duty training in the reserves.
Before a general court-martial, Plaintiff pleaded
guilty to two of five counts against him. The remaining three
charges were withdrawn. Plaintiff was fined $75,000, which was
suspended, and he was dismissed from the service. He appealed
his conviction to the Navy-Marine Court of Military Review which
affirmed the conviction. Thereafter, Plaintiff filed a petition
for certiorari to the United States Supreme Court which was
denied.
After exhausting his military remedies, Plaintiff
sought relief in the district court. Plaintiff requested 1)
compensatory and punitive damages, including attorneys fees,
against Defendants in their individual capacities, for violation
of his constitutional rights; 2) compensatory damages under the
4
Federal Tort Claims Act for the intentional and negligent conduct
of the United States officials; 3) declaratory and equitable
relief for violation of Plaintiff's constitutional and statutory
rights; and 4) "a permanent injunction providing for Plaintiff's
reinstatement in the Marine Corp Reserve with restitution of all
financial losses and losses of benefits suffered as a result of
Defendants' conduct[,] and expungement of his conviction,
dismissal[,] and the record of all proceedings conducted without
jurisdiction by the Military Courts." (Second Amended Complaint,
App. at 22.)
Motions for summary judgment were made by both
Plaintiff and Defendants. The district court dismissed
Plaintiff's complaint and granted summary judgment for Defendants
holding that Plaintiff was lawfully recalled to active duty and
court-martialed in accordance with constitutional standards. No
opinion was filed. Instead, in support of its ruling, the court
adopted Defendants' memoranda of law as its rationale. Plaintiff
filed a timely appeal to this Court.
II. DISCUSSION
This case concerns the fundamental question of whether
the military had continuing jurisdiction over Plaintiff to
subject him to recall to active duty and subsequent court-
martial. Resolution of jurisdictional questions such as this are
historically within an Article III court's jurisdiction. See
Schlesinger v. Councilman, 420 U.S. 738, 753 n.26 (1975)(citing
United States v. Frischholz,
36 C.M.R. 306, 307 (C.M.A. 1966)).
5
Because we are reviewing the district court's grant of summary
judgment, our review is plenary.
A. Elements of Court-martial Jurisdiction
Generally, court-martial jurisdiction has three
elements: (1) the accused must be in a status subject to the UCMJ
at the time the offense was committed; (2) personal jurisdiction
must attach at the time of the court-martial; and (3) "the
accused must be `amenable' to trial by court-martial for the
alleged offense." See Earle A. Partington, Court-Martial
Jurisdiction Over Weekend Reservists After United States v.
Caputo, 37 Naval L. Rev. 183, 194 (1988). Elements two and three
are the focus of this appeal.
1. The Uniform Code of Military Justice
The UCMJ provides:
(a) The following persons are subject to this
chapter:
(1) Members of a regular component of
the armed forces . . . and other persons
lawfully called or ordered into, or to duty
in or for training in, the armed forces, from
the dates when they are required by the terms
of the call or order to obey it.
. . . .
(3) Members of a reserve component while
on inactive-duty . . . .
10 U.S.C. § 802(a)(1) & (3) (1988). Those falling into one of
the categories of persons listed above are said to be in a
"status subject to the Code." In the present case, there is no
6
dispute that Plaintiff was in a status subject to the Code at the
time of the alleged offenses.
In order to satisfy the second element, i.e., personal
jurisdiction, Defendants called Plaintiff into active duty, a
status subject to the Code, pursuant to the following statutory
authority:
(1) A member of a reserve component who is
not on active duty and who is made the
subject of proceedings under section 815
(article 15) or section 830 (article 30) with
respect to an offense against this chapter
may be ordered to active duty involuntarily
for the purpose of--
(A) investigation under section 832
(article 32) of this title;
(B) trial by court martial; or
(C) nonjudicial punishment under section
815 of this title.
(2) A member of a reserve component may not
be ordered to active duty under paragraph (1)
except with respect to an offense committed
while the member was--
(A) on active duty; or
(B) on inactive duty training . . . .
10 U.S.C. § 802(d)(1) & (2) (1988) (emphasis added). Under this
section, Defendants posit that Plaintiff, as a reserve officer,
was properly recalled to active duty to face court-martial for
the offenses committed while he was a member of the regular
component. They contend that § 802(d) "expressly authorizes the
recall of reservists for investigation and court-martial with
respect to offenses committed on active duty" even if such
periods of active duty occurred in the regular component. In
Defendants' view, because the term "active duty" is not qualified
in any way it should be given its plain meaning and be applicable
7
to any period of active duty. Thus, Defendants invoked 10 U.S.C.
§ 802(d) as the statutory authority for personal jurisdiction
over Plaintiff, and, by implication, the authority to order him
to stand trial by court-martial.
Contrary to Defendants' position, Plaintiff initially
argues that the term "active duty" in § 802(d)(2)(A) refers only
to those periods of active duty served while a reservist. As
such, it has no application to situations where the offense was
committed while on active duty in the regular component. The
result, Plaintiff argues, is that § 802(d) cannot be used to
effect personal jurisdiction.
Additionally, Plaintiff asserts that the third element
of court-martial jurisdiction, "amenability" to trial by court-
martial, cannot be met. Plaintiff argues that jurisdiction over
him for past offenses committed during his prior period of
service was lost after his discharge from the regular component
of the Marines. He asserts that to have continuing jurisdiction
over him for such past offenses requires the application of an
earlier version of 10 U.S.C. § 803(a), which provided continuing
jurisdiction over discharged military personnel when certain
conditions were met.3 Because § 803(a) could not apply,
Plaintiff argues he is not amenable to jurisdiction.
3
Section 803(a) as applied to Plaintiff provided:
Subject to section 843 of this title, no
person charged with having committed, while
in a status in which he was subject to this
chapter, an offense against this chapter,
punishable by confinement for five years or
more and for which the person cannot be tried
8
Defendants do not rely on the applicability § 803(a).
Instead, they argue jurisdiction was never lost over Plaintiff
upon his honorable discharge from the regular component because
his discharge was handled "simultaneously" with his acceptance of
a reserve commission. As such, they assert there was no break in
service. We undertake our review beginning with the historical
development of modern court-martial jurisdiction.
2. The Hirshberg Case
Our analysis of modern court-martial jurisdiction
originates with United States ex rel. Hirshberg v. Cooke, 336
U.S. 210 (1949). Hirshberg, a naval enlisted man, while serving
a second term of enlistment, was served with charges directing
his trial by court-martial. The charges stemmed from misconduct
that occurred during his prior term of enlistment. The
government alleged court-martial jurisdiction under Article 8
(Second) of the Articles for the Government of the Navy, which
provided that "such punishment as a court-martial may adjudge may
be inflicted on any person in the Navy . . . guilty of
maltreatment of, any person subject to his orders." The
government contended that this language authorized the court-
martial for Hirshberg's conduct during a prior enlistment because
in the courts of the United States or of a
State, a Territory, or the District of
Columbia, may be relieved from amenability to
trial by court-martial by reason of the
termination of that status.
10 U.S.C. § 803(a) (1988), amended by 10 U.S.C. § 803(a) (1992).
9
Hirshberg was "in the Navy" when the offense was committed and
when he was tried. Id. at 212-13.
The government conceded that had Hirshberg not re-
enlisted he would not have been subject to court-martial because
of his break in service. However, the Court pointed out that
making such concession while "urging such a literal construction
of article 8 (Second) expose[d] the whimsical and uncertain
nature of the distinctions that would mark the boundaries of
court-martial powers."
Id. at 213. Additionally, the Court
reasoned that "[j]urisdiction to punish rarely, if ever, rests
upon such illogical and fortuitous contingencies."
Id. at 214.
Thus, out of Hirshberg came the doctrine that military
jurisdiction over an individual for offenses committed during a
prior period of enlistment or obligated service lapses after the
discharge for that period. Today, "[d]espite the enactment of
the Uniform Code of Military Justice and various amendments to
the Code, Hirshberg remains binding precedent." United States v.
Cortte,
36 M.J. 767, 769 (N.M.C.M.R. 1992)(citing United States
v. Clardy,
13 M.J. 308 (C.M.A. 1982)). It is the Hirshberg
doctrine that applies throughout this appeal.
3. Plaintiff's Military Obligation
In Defendants' memoranda of law, adopted by the
district court as its rationale, it is continually argued that
Plaintiff's discharge was "conditioned" upon further military
service, to wit, his acceptance of a reserve commission. This
was an attempt to show the absence of a complete break in status
under the Code. However, this simply is not the case. At the
10
time Plaintiff entered the Marines, he had a statutory obligation
of six years of service. See 10 U.S.C. § 651. After completion
of these six years, Plaintiff had no further military obligation.
Consequently, he submitted his resignation, was honorably
discharged, and accepted a reserve commission. Discharge orders
were issued to reflect such facts.
If Plaintiff decided not to accept the reserve
commission, new orders would have been issued honorably
discharging him with no further military obligation. See Letter
from Asst. U.S. Attorney Brysh to Third Circuit Court of Appeals
2 (Oct. 19, 1995) (On file with Clerk's office) [hereinafter
Brysh Letter]. In a letter from the Commandant of the Marine
Corps to Plaintiff regarding Plaintiff's resignation, the
Commandant stated:
Your request for resignation . . . is approved. In
response to your request, you have been considered for
and are tendered a Marine Corps Reserve commission.
. . . .
. . . Should you not desire the Reserve commission
tendered you, the Commandant of the Marine Corps (MMSR-
3) must be notified immediately. These orders are
cancelled and new orders will be issued.
Letter from Commandant of the Marine Corps to Captain Michael A.
Murphy (April 27, 1988). (App. at 184.) There is no indication
from any source in the record that a decision by Plaintiff not to
request the reserve commission would have changed his military
obligation.
The following discussion contained in the Navy's
Courts-Martial Regulations also supports Plaintiff's position:
11
A member of a regular or reserve component remains
subject to court-martial jurisdiction after leaving
active duty for offenses committed prior to such
termination of active duty if the member retains
military status in a reserve component without having
been discharged from all obligations of military
service.
. . . A "complete termination" of military status
refers to a discharge relieving the servicemember of
any further military service. It does not include a
discharge conditioned upon acceptance of further
military service.
Discussion to Rules for Courts-Martial 204(d) (1995) (emphasis
added). Moreover, Plaintiff's Honorable Discharge Certificate
contains no conditions to discharge. (App. at 55.) Lastly, it is
indicated in a Memorandum to the Secretary of the Navy that
Plaintiff requested a reserve commission which was "Not
Obligated." (App. at 60.) Thus, Plaintiff's military obligation
was completely terminated in that his discharge was not
conditioned on further military service, i.e., acceptance of a
reserve commission.
In an attempt to show continuing jurisdiction over
Plaintiff and avoid the application of Hirshberg, Defendants now
contend on appeal that because Plaintiff chose to submit his
resignation with a request for a reserve commission, his
resignation and acceptance of commission as a reserve officer
were "handled as a single transaction." Brysh Letter at 2.
Therefore, they argue, there was no lapse in military service and
Plaintiff remained subject to court-martial jurisdiction.
Defendants have cited no authority to support their position nor
has any come to our attention. Even if we were to assume that
12
Plaintiff's resignation and acceptance of a reserve commission
were handled as a "single transaction," his status under the Code
still lapsed upon his honorable discharge from the regular
component.
Additionally, Plaintiff's situation is unlike those
cases holding that there is no interruption in one's "status
subject to the Code" upon an early discharge for the purpose of
reenlistment. See, e.g., Clardy, 13 M.J. at 315-16.
Defendants also attach some relevance to the fact that
Plaintiff remained a commissioned officer, albeit a reservist.
However, this fact is of no consequence. For it is not "status"
as a officer which is determinative of court-martial
jurisdiction; rather, it is status as a person belonging to the
general category of persons subject to the Code. See United
States v. Poole, 20 M.J. 598, 600 (N.M.C.M.R. 1985); see also
United States v. Spradley,
41 M.J. 827, 830 (N.M.C.C.A 1995)
(noting "`subject to recall' is not the same as `subject to the
Code'").
It is apparent to this Court that Plaintiff was under
no obligation to accept a reserve commission. When discharged,
Plaintiff's status as a person subject to the Code "completely
terminated" upon his separation from the regular component,
notwithstanding his reserve affiliation. Moreover, Plaintiff did
not join a reserve unit for more than three months after his
discharge from the regular component. This alone evidences a
clear break in status under the Code. Accordingly, we hold that
at the moment Plaintiff's discharge from the regular component
13
became effective, his status as a person subject to the Code
terminated subject only to a subsequent restoration of that
status through possible applicable statutory exceptions. We turn
to that possibility.
4. Title 10 U.S.C. § 803
Title 10 U.S.C. § 803 is entitled "Jurisdiction to try
certain personnel." The section contains exceptions to Hirshberg
when military jurisdiction is terminated by a discharge at the
end of a period of enlistment or obligated service. Because of
his complete termination in status subject to the Code, Plaintiff
argues that to have continuing jurisdiction over him, he must be
brought within the application of 10 U.S.C. § 803(a) (1988). See
supra note 1. Before its recent amendment which is not
applicable to the present facts, § 803(a) acted as a grant of
continuing jurisdiction, notwithstanding a discharge, when the
offense committed (1) was punishable by five years or more of
confinement, and (2) was not triable in any federal or state
court.
It is noteworthy that "[t]he language of [10 U.S.C.
§803(a)] was drawn to cover only the most serious offenses and
restricted to those instances in which the guilty would otherwise
escape trial or punishment in any American courts." United Sates
ex rel. Toth v. Quarles, 350 U.S. 11, 27 (1955) (Reed, J.,
dissenting). Significantly, we note that § 803(a) was never
tendered by Defendants as a basis for jurisdiction.
14
Plaintiff ultimately was charged with the following
violations of the UCMJ: 1) Conspiracy, 2) Fraudulent Separation,
3) Violation or Failure to Obey Lawful General Order or
Regulation and Dereliction in Performance of Duties, 4) False
Official Statement, and 5) Conduct Unbecoming an Officer and a
Gentleman. (See App. at 199-202 (General Court-Martial Order
containing charges.) As part of a plea agreement, Plaintiff
pleaded guilty to charges three and five. The remaining charges
were dismissed. Id. Of the five charges, only two of the five
were punishable by confinement for five years, i.e., Fraudulent
Separation and False Official Statement. See Part IV of the
Manual for Courts-Martial ¶¶ 8(e) & 31(e) and Appendix 12.4
The charge for Fraudulent Separation is a separate
exception to Hirshberg and forms the basis for jurisdiction under
10 U.S.C. § 803(b).5 However, a conviction for such offense is
4
A review of the allegations in Charge I (Conspiracy), appears to
indicate that the offense which is the subject of the conspiracy
was for the offenses described in Charge III (Violation or
Failure to Obey Lawful General Order or Regulation and
Dereliction in Performance of Duties). (App. at 199-200.) The
maximum punishment for conspiracy is the maximum punishment
authorized for the offense which is the object of the conspiracy.
See Part IV of the Manual for Courts-Martial ¶ 5(e). Under our
analysis, the charge of conspiracy in this case would carry with
it a maximum punishment of two years and six months. (See App. at
70 (Defendants' Response to Plaintiff's First Request for
Admissions and Interrogatories).)
5
Section 803(b) provides:
Each person discharged from the armed forces
who is later charged with having fraudulently
obtained his discharge, is, subject to
section 843 of this title (article 43),
subject to trial by court-martial on that
charge . . . . Upon conviction of that charge
he is subject to trial by court-martial for
15
needed under § 803(b) before a servicemember can be tried for
other prior offenses. Hence, we do not feel it appropriate to
consider the charge of Fraudulent Separation when reviewing the
applicability of § 803(a).6
As to the charge of making a false official statement,
we find no evidence in the record to show that Plaintiff could
not have been tried in another court in the United States for an
offense of similar import. Accordingly, we hold that Plaintiff's
case does not fall within the statutory exception of § 803(a).
B. Plaintiff's Recall Under § 802(d)
Defendants invoked 10 U.S.C. § 802(d) to achieve
personal jurisdiction over Plaintiff and subject him to trial by
court-martial. They contend that § 802(d) "expressly authorizes
the recall of reservists for investigation and court-martial with
respect to offenses committed on active duty" even if committed
in the regular component. Of course, in Plaintiff's case, this
argument must presuppose that there was no break in Plaintiff's
all offenses under this chapter committed
before the fraudulent discharge.
10 U.S.C. § 803(b) (1988).
6
It appears that Plaintiff initially was not charged with
Fraudulent Separation. See Murphy v. Garrett, 729 F. Supp. 461,
471 n.12 (W.D. Pa. 1990). We do not feel compelled to address
the applicability of § 803(b) because the record indicates
§802(d) was used by Defendants as the basis for jurisdiction over
Plaintiff. More important, the charge for Fraudulent Separation
was never adjudicated in the military court but was dismissed as
part of the plea agreement. Thus, if § 803(b) was used to effect
jurisdiction over Plaintiff, we would question whether, under the
present circumstances, the military had jurisdiction to convict
Plaintiff on the two charges to which he ultimately pleaded
guilty in that the jurisdictional prerequisite of § 803(b), i.e.,
a conviction for Fraudulent Separation, was never met.
16
status under the Code upon his "simultaneous" resignation from
the regular component and acceptance of a reserve commission.
However, we have rejected this position.
The only other plausible argument for continuing
jurisdiction over Plaintiff is that § 802(d) acts as an
independent exception to Hirshberg. We note that Defendants have
never expressly argued that § 802(d) acts as such an exception.
But cf. Murphy v. Garrett, 29 M.J. 469, 472 (C.M.A. 1990)
(Everett, C.J., and Sullivan, J., concurring). Instead,
Defendants have conceded that had Plaintiff experienced a two-day
lapse in time between his discharge and acceptance of the reserve
commission, court-martial jurisdiction would have been lost.
Obviously, this concession militates against Defendants' position
because, as we noted earlier, the Supreme Court expressly stated
in Hirshberg that, "jurisdiction to punish rarely, if ever, rests
upon such illogical and fortuitous contingencies."
Hirshberg, 336
U.S. at 214. Despite our earlier holding that Plaintiff's status
under the Code terminated upon his discharge from the regular
component, we feel compelled to ask whether § 802(d) is an
exception to Hirshberg.
Section 802(d) provides a mechanism for the recall of
reservists to active duty when the offense was committed while
the member was (A) on active duty; or (B) on inactive duty
training. See 10 U.S.C. § 802(d)(1) & (2) (1988). Defendants
argue that "active duty" means any period of active duty
performed by Plaintiff. We observe that the term "active duty"
in § 802(d)(2)(A) can support the argument that Plaintiff is
17
subject to military jurisdiction for the offenses previously
committed while on active duty in the regular component. However,
§ 802(d)(2)(A), when read in light of the former §803(a), could
just as well support the argument that the Marines could not
recall Plaintiff for offenses committed prior to his honorable
discharge from the regular component unless an exception can be
met, i.e., the two requirements of § 803(a). Cf. Hirshberg, 336
U.S. at 261.
In the Court of Military Appeals in this case, the
court found that the term "active duty" should be given its plain
and ordinary meaning and encompass active duty in both the
regular and reserve components. Murphy, 29 M.J. at 470. However,
with the exception of Murphy, there is no case law interpreting
"active duty" in § 802(d)(2)(A). We recognize that ruling of the
military court as persuasive authority, nonetheless, we are not
bound by its holdings. Necessarily then, we undertake the task
of statutory interpretation.
The Supreme Court has repeatedly stated: "Where . . .
the resolution of a question of federal law turns on a statute
and the intention of Congress, we look first to the statutory
language and then to the legislative history if the statutory
language is unclear." Blum v. Stenson, 465 U.S. 886, 896 (1984);
see also Deutsch v. United States,
67 F.3d 1080, 1085 (3d Cir.
1995). Contrary to Defendants' position, we find the language of
§ 802(d) unclear. Hence, we turn to the statute's legislative
history.
1. Legislative History of § 802(d)
18
In 1984, the Court of Military Appeals decided the case
of United States v. Caputo, 18 M.J. 259 (C.M.A. 1984). Caputo, a
reservist on active duty, was arrested and held by civilian
authorities. Weeks later, Caputo reported for his regularly
scheduled inactive duty training. He was advised of the charges
against him stemming from the earlier incident and ordered into
pretrial confinement. Caputo's commanding officer extended
Caputo's inactive-duty training status for an indefinite time to
facilitate prosecution of the charges and Caputo contested court-
martial jurisdiction.
Id. at 261.
The Court of Military Appeals held that at the time of
the alleged offense, Caputo was in a status which subjected him
to military jurisdiction. However, that status was terminated by
his release from active duty training, notwithstanding, his
subsequent return to inactive-duty training. This "hiatus" of
being subject to the Code precluded court-martial jurisdiction
unless an exception to the Hirshberg rule applied. Id. at 266. As
no exception applied, personal jurisdiction was found to be
lacking. The court called on Congress to consider "whether
express authority should be granted for the Armed Services to
order a reservist to active-duty for purposes of court-martial
with respect to an offense that occurred during an earlier period
of military service and which falls within the purview of Article
3(a)."
Id. at 267-68. Congress responded to the court's
suggestion with the enactment of both §§ 802(d) and 803(d).7
7
Section 803(d) provides:
19
The legislative history of §§ 802(d) and 803(d)
indicates that the amendments "would conform [the UCMJ] to the
military's total-force policy by subjecting members of the
reserve components in Federal status to the same disciplinary
standards as their regular-component counterparts." H.R. Rep. No.
718, 99th Cong., 2d Sess., at 225 (1986)[hereinafter "H.R.
Rep."]. Among other things, the House Report of the legislation
indicates:
The proposed amendments . . . permit the call
or order to active duty of a member of the
reserve component for the purpose of
disciplinary action; and correct the lapse of
jurisdiction over an offense committed by a
reservist during a period of duty that ends
before the offense is discovered.
. . . .
The amendments would also permit the
call or order to active duty members of
reserve components for investigation under
Article 32 [of the UCMJ], for trial by court-
martial, or for nonjudicial punishment.
Presently, no statutory authority exists to
call or order reservists to active duty
solely for disciplinary purposes, even when
they are otherwise amenable to the
jurisdiction of the [UCMJ].
The amendments would further, bridge the
jurisdictional gap identified in United
States v. Caputo . . . .
A member of a reserve component who is subject to this
chapter is not, by virtue of the termination of a
period of active duty or inactive-duty training,
relieved from amenability to the jurisdiction of this
chapter for an offense against this chapter committed
during such period of active duty or inactive-duty
training.
10 U.S.C. § 803(d) (1992).
20
H. Rep. at 226-27.
The legislative history of these amendments is quite
telling. This history coupled with the language of the
amendments leads us to believe that §§ 802(d) and 803(d) were
intended to work jointly and enacted in direct response to Caputo
to "bridge the jurisdictional gap" presented in that case. The
enactment of § 802(d) was to provide a mechanism to call or order
reservists to active duty solely for disciplinary purposes in
cases such as Caputo in order to satisfy the personal
jurisdiction requirement of court-martial jurisdiction. And, the
enactment of § 803(d) created one more exception to Hirshberg;
this time to act as a continuing grant of jurisdiction over
reservists for offenses committed while on active duty "in the
reserves," notwithstanding, a termination of such active duty.
Nowhere is there evidence of a congressional intent to subject a
reservist to court-martial jurisdiction for offenses committed on
active duty while in the regular component. More to the fact,
the legislative history shows no evidence of an intent to reach
beyond the situation faced in Caputo to reach a result
inconsistent with Hirshberg.
Curiously, in the Court of Military Appeals in Murphy,
the concurrence suggested that while the exercise of military
jurisdiction over Plaintiff may be inconsistent with the result
reached in Hirshberg, Congress was free to change such result. 29
M.J. at 472 (Everett, C.J., and Sullivan, J., concurring).
Apparently, the concurrence believed that Congress had indeed
done so. However, the congressional history shows that Congress
21
did not intend to change the result in Hirshberg. The House
Report on the legislation reads:
With respect to the proposed amendment of
Article 3, the committee intends not to
disturb the jurisprudence of United States ex
rel. Hirshberg v. Cooke, 336. U.S. 210
(1949).
H. Rep. at 227.
Thus, we hold the term "active duty" in 10 U.S.C.
§802(d)(2)(A) refers to those periods of active duty served by a
reservist while performing such duty in the reserves. Moreover,
§ 802(d) does not act as an independent exception to the
Hirshberg doctrine.
III. CONCLUSION
The order of the district court will be vacated, and
the case remanded for further appropriate proceedings.
___________________________
22
Michael A. Murphy v. John H. Dalton et. al., No. 95-3183
MANSMANN, dissenting.
I respectfully dissent because I would hold that the
military did, in fact and in law, have continuing jurisdiction
over Murphy to subject him to recall to active duty and
subsequent court-martial. Consistent with Supreme Court
jurisprudence, I find that the circumstances surrounding Murphy's
discharge from the regular component of the Marine Corps and his
acceptance of a commission in the Marine Corps Reserve did not
constitute a true break in service. Assuming arguendo that such
a break did occur, however, I would hold that Congress intended,
with the enactment of the 1986 amendments to 10 U.S.C. §802 and
10 U.S.C. §803, more specifically 10 U.S.C. §802(d) and 10 U.S.C.
§803(d), to integrate the reserve components into the total-force
policy of the military by subjecting members of the reserve
components to the same disciplinary standards as their regular
component counterparts.
I.
Irrespective of whether Murphy did not have further
military obligation to the Marine Corps as a matter of law, the
fact remains that, as the majority opinion states, he requested
and accepted, simultaneously with his discharge, a commission as
a reserve officer and transferred to the Marine Corps Reserve.
Therefore, consistent with United States ex rel. Hirshberg v.
Cooke, 336 U.S. 210 (1949), no actual physical break in service
23
occurred which would have created a lapse in status during which
Murphy was not subject to military jurisdiction. This is
consistent with the Supreme Court's holding in Hirshberg that the
Navy did not have court-martial jurisdiction over a member of its
regular component who was honorably discharged and who re-
enlisted the next day for offenses allegedly committed during an
initial term of enlistment. The fact that Murphy did not join a
reserve unit immediately is not compelling in that he accepted
the commission as a reserve officer simultaneously with his
discharge from the regular component. Further, although
Plaintiff received a DD-214 (Honorable Discharge Certificate),
the Uniform Code of Military Justice delineates exceptions to the
rule that "delivery of the discharge certificate terminates
status." These exceptions include re-enlistment discharges,
Article 3(a) offenses8, and fraudulent discharge.9 I would first
8
We note that the government does not raise the issue of
continuing jurisdiction under §803(a) in its brief as all of the
charges to which Murphy pled guilty pursuant to the plea
agreement individually carried a period of confinement of less
than five years. However, the language of §803(a) specifically
addresses those actions with which a "...person [is] charged with
having committed...." and not the charges for which a person is
ultimately convicted.
9
Fraudulent discharge involves the member of the
military who obtained the discharge on fraudulent pretenses. It
does not appear that the government is relying on this exception
in this appeal.
As noted in the majority opinion, the record is not
clear as to whether the charges as originally raised against
Murphy contained the charge of Fraudulent Discharge. The General
Court Martial-Order dated November 5, 1990 which listed the
disposition of all of the charges as ultimately raised against
Murphy does contain a charge for alleged false representations
and concealment of facts material to separation from the Funded
Legal Education Program and subsequent misrepresentations to a
24
apply the exception for re-enlistment discharges, which refers to
the practice of discharging a member of the military at the
termination of the period of enlistment or earlier, and then
immediately re-enlisting the member.
With respect to the second exception to the Code rule
that "delivery of the discharge certificate terminates status" --
Article 3(a) offenses, 10 U.S.C. §803 permits military
prosecution if the member of the military is not on active duty
status at the time of the court-martial but the alleged offense
which occurred prior to the discharge is not actionable in any
civilian court and the punishment for the action is incarceration
for a period of five or more years. Of the charges raised
against Murphy, fraudulent separation and false official
statements individually carried a punishment of five or more
years confinement. In addition, fraudulent separation is not a
charge for which a person may be tried "in the courts of the
United States or of a State, a Territory, or the District of
Columbia..." pursuant to 10 U.S.C. §803(a).10 As a result, I
would hold that the jurisdictional requirements of §803(a) were
met and Murphy was indeed a member of the military subject to the
superior which procured a separation from the regular component
of the United States Marine Corps.
Pursuant to a plea agreement, Murphy pled guilty to two
of the five charges; the remaining three charges, including the
charge of fraudulent discharge, were withdrawn by the Government.
10
The discussion of the charge of fraudulent discharge is limited
herein as it applies to the Article 3(a) offenses exception and
not as the charge may apply to a basis of jurisdiction under 10
U.S.C. §803(b).
25
Uniform Code of Military Justice both at the time the alleged
offenses were committed and at the time of the court-martial.
Thus, Murphy was eligible to be ordered to active duty
status because he did not have a break in service and further
because he falls squarely within exceptions to the delivery of
the discharge certificate rule.
II.
Assuming arguendo that Murphy had a break in service
between his active duty/regular component status and his reserve
officer status, I would still hold that he could be ordered to
active duty for trial by court-martial. Section 802(d)(1)
specifically provides that:
(d)(1) A member of a reserve component who is not on
active duty and who is made the subject of proceedings
under section 815 (article 15) or section 830 (article
30) with respect to an offense against this chapter may
be ordered to active duty involuntarily for the purpose
of --
(A) investigation under section 832 of this title
(article 32);
(B) trial by court-martial; or
(C) nonjudicial punishment under section 815 of
this title (article 15).
(2) A member of a reserve component may not be ordered
to active duty under paragraph (1) except with respect
to an offense committed while the member was --
(A) on active duty; or
(B) on inactive-duty training, but in the case of
members of the Army National Guard of the United
States or the Air National Guard of the United
States only when in Federal service.
* * *
26
The plain language of the statute sets forth clearly that Murphy,
as "a member of a reserve component" may be ordered to active
duty if he committed an offense "while [he] was on active duty."
I cannot find any support in the statute for the
majority's holding that the term "active duty" should apply only
to periods of active duty while Murphy was a member of the
reserve component and not the regular component; the language of
the statute does not limit or qualify "active duty" in any
manner. Indeed, the legislative history of §802(d) as well as
§803(d) indicates that Congress intended to promote a full
amalgamation of the reserve component with the regular component
by expanding court-martial jurisdiction for the reserve
component. It was the intent of Congress, with the enactment of
the 1986 amendments to §802 and §803, to update court-martial
jurisdiction as it applies to members of the reserve component;
("The provisions of the UCMJ addressing jurisdiction over
reservists were drafted more than 35 years ago. At that time,
the reserve was viewed as a separate force." H. Rep. 99-718,
99th Cong., 2d Sess. p. 226.) Therefore, it would be
inconsistent with the total-force concept to hold that a lapse in
court-martial jurisdiction occurs each time a member of the
military transfers between components.
Most importantly, the House Report states that "[t]he
proposed amendments would . . . permit the call or order to
active duty of a member of a reserve component for the purpose of
disciplinary action; and correct the lapse of jurisdiction over
an offense committed by a reservist during a period of duty that
27
ends before the offense is discovered." Id. at 226. This was in
direct response to the decision of the Court of Military Justice
in United States v. Caputo,
18 M.J. 259 (C.M.A. 1984), in which
jurisdiction over a reservist was relinquished as he was alleged
to have committed offenses against the UCMJ during one period of
active duty but the offenses were not discovered or acted upon by
the military until a subsequent period of active duty. The
Caputo example of "fortuitous circumstances" -- and Murphy's
situation -- are the types of instances which Congress sought to
address and remedy with the 1986 amendments to the statutes.
We recognize the comment in the House Report that
"[w]ith respect to the proposed amendment of Article 3, the
committee intends not to disturb the jurisprudence of
[Hirshberg]." H. Rep. 99-718, 99th Cong., 2d Sess. p. 227. While
the Supreme Court in Hirshberg held that a break in service
terminates court-martial jurisdiction over a member of the
military, our task is to consider the statutes and amendments of
§802 and §803 applicable to Murphy to analyze properly his
situation as a present day member of the reserve component. In
finding that Murphy was a member of the military subject to the
UCMJ both at the time the alleged offenses were committed and at
the time he was called to court-martial, we are not disturbing
the jurisprudence of Hirshberg because Hirshberg was not subject
to Article 3(a) offenses. As the 1986 amendment §803(d) states:
A member of the reserve component who is
subject to this chapter is not, by virtue of
the termination of a period of active duty or
inactive-duty training, relieved from
amenability to the jurisdiction of this
28
chapter for an offense against this chapter
committed during such period of active duty
or inactive-duty training.
10 U.S.C. §803(d)
Accordingly, I would affirm the decision of the
district court.
