20 M.J. 998 | U.S. Navy-Marine Corps Court of Military Review | 1985
At a general court-martial, military judge alone, the appellant on 20 June 1984 was, contrary to his pleas, convicted of three violations of Article 81, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 881, conspiring with two others to steal property of the Navy Exchange at Naval Station, Subic Bay, Republic of the Philippines, and four violations of Article 121, UCMJ, 10 U.S.C. § 921, larceny of property from that Navy Exchange. He was sentenced to a dishonorable discharge from the U.S. Marine Corps Fleet Reserve and total forfeiture of all retainer pay.
Before us the appellant has raised one assignment of error:
ARTICLE 2(A)(6), UNIFORM CODE OF MILITARY JUSTICE, AS APPLIED TO APPELLANT IN THIS CASE IS UNCONSTITUTIONAL AND THEREFORE THE COURT-MARTIAL LACKED JURISDICTION TO TRY APPELLANT.
The appellant first enlisted in the Marine Corps on 27 May 1956 and served continuously until 2 July 1978 (a period exceeding 22 years), when he was transferred to the U.S. Fleet Marine Corps Reserve. He commenced working as a .civilian employee of
Several statutory provisions are directly applicable to this case. Article 2, UCMJ, purports to establish jurisdiction and states:
(а) The following persons are subject to this chapter:
(б) Members of the Fleet Reserve and Fle.et Marine Corps Reserve.
The terms “Fleet Reserve” and “Fleet Marine Corps Reserve” are explained in other federal statutes. Title 10 U.S.C. section 6330 states:
(a) The Fleet Reserve and the Fleet Marine Corps Reserve are composed of members of the Naval Service transferred thereto under—
(1) Title II of the Naval Reserve Act of 1938 (52 Stat. 1178), as amended; or
(2) this section.
(b) ... An enlisted member of the Regular Marine Corps or the Marine Corps Reserve who has completed 20 years of active service in the armed forces may, at his request, be transferred to the Fleet Marine Corps Reserve.
Title 10 U.S.C. section 6485 subjects a member of the Fleet Marine Corps Reserve to specific obligations:
(a) A member of the Fleet Reserve or the Fleet Marine Corps Reserve may be ordered by competent authority to active duty without his consent—
(1) in time of war or national emergency declared by Congress, for the duration of the war or national emergency and for six months thereafter;
(2) in time of national emergency declared by the President; or
(3) when otherwise authorized by law.
(b) In time of peace any member of the Fleet Reserve or Fleet Marine Corps Reserve may be required to perform not more than two months’ active duty for training in each four-year period.
A member of the Fleet Reserve and Fleet Marine Corps Reserve receives a “retainer” pay computed on the basic pay received at the time of transfer to the Fleet Reserve or Fleet Marine Corps Reserve and years of active service. 10 U.S.C. section 6330(c).
Accordingly, the findings and sentence, as approved on review below, are affirmed.
Thus, contrary to the appellant’s claims, we see a direct and substantial connection between him and the Marine Corps which continues to make him part of the “land and naval forces.” Considering our own determination and the unequivocal position of military and federal case law on the subject, we conclude that Article 2(a)(6), UCMJ, is a constitutionally permissible extension of court-martial jurisdiction.