Duncan v. Usher

¶1(dissenting):

¶2I take issue with neither the principal opinion as it pertains to congressional history and the development of the concept of jurisdiction over members of the Armed Forces, nor the concurring opinion. Indeed, as Senior Judge Cook pointed out in his dubitante opinion in United States v. Caputo, 18 M.J. 259, 273 (C.M.A. 1984), “Congress in 1950 never considered the present amalgamation of the Reserve forces into the total-force concept of today.” Id. at 275. The answer is not readily available to us. Nevertheless, I cannot agree with the result reached in Caputoor in this case because I believe Article 2(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 802(a)(1), provides jurisdiction over a servicemember who has not been “discharged” from service. Therefore, I respectfully dissent.

¶3This Court has created a “Jack-in-the-box” concept of jurisdiction, a concept alien to my understanding of Anglo-American jurisprudence. To acquire jurisdiction, one must tag ole Jack while he is out of the box; if Jack gets back in without being tagged, he is safe. This concept belies logic.

¶4I need only answer four questions to determine if this appellant or any other accused is subject to court-martial jurisdiction:

¶5(1) Was appellant subject to the Uniform Code of Military Justice at the time of trial?

¶6Yes. Sergeant Duncan was on extended active duty at the time of trial. Art. 2(a)(1).

¶7(2) Was appellant subject to the Uniform Code of Military Justice at the time of the offense?

¶8Yes. Sergeant Duncan was on extended active duty at the time of the offense. Art. 2(a)(1).

¶9(3) Has there been a termination of his status between the time the offense was committed and the time of trial?1

¶10No. Sergeant Duncan was at all times pertinent to this case a member of the Air Force Reserve. His status in the Reserve never terminated. He was “released from active duty,” a term of art which the principal opinion equates to termination of status. Article 3(a), UCMJ, 10 U.S.C. § 803(a), is not involved because, in my view, his Reserve status never terminated. The rule of law recognized in United States v. Howard, 20 M.J. 353 (C.M.A. 1985), is not implicated because Sergeant *42Duncan was never discharged from the service.

¶11(4) Are the offenses alleged within the subject-matter jurisdiction of courts-martial?

¶12Yes. Sergeant Duncan pleaded guilty to the rape of his underage step-daughter. The offense took place in on-base, government housing at Warner-Robins Air Force Base, a crime we certainly have recognized as being within the subject-matter jurisdiction of a court-martial. Ergo, I am convinced that the court-martial had jurisdiction to try Sergeant Duncan for the alleged offenses.

¶13I would overrule the “Jack-in-the-box” concept created by the Caputodecision. A simple recognition that jurisdiction is not lost over a member of the Reserve solely because an offense is not discovered, or prosecution for the offense is not started, while the Reservist is in an active-duty status vis-a-vis Reserve status, is quite logical to me. “Lex est ratio summa, quae jubet quae sunt utilia et necessaria, et contraria prohibet. ” Black’s Law Dictionary, 819 (5th ed. 1979).2