Straight Dope Message Board

[muldoonthief]

I'm reading Band of Brothers by Stephen Ambrose again, and I just got through the part where E company is in Haguenau. They send a patrol across the river at night, lose 2 men, and bring back 2 German prisoners. Colonel Sink is so pleased that they brought back some prisoners that he orders another patrol for the next night. Major Winters thinks another patrol would be dangerous and useless, so he gathers the men, tells them to sit tight in a cellar for a few hours, then goes back to Sink and tells him the patrol has returned, but couldn't find any Germans to capture.

So my question is - Winters told Ambrose this long after the incident occurred, well after he had left the Army. Could he be legally prosecuted for this under the UCMJ? (realistically it'll never happen of course) He clearly disobeyed a direct order from a direct superior under combat conditions. If it had come out the next morning, Sink could have had him court-martialed. Can a person be prosecuted for crimes they committed in the military after they leave? Is it different for matters that are only military crimes (e.g. disobeying an order) vs. matters that are civilian crimes also (e.g. murder)?

[mbh]

I am told that there is no statute of limitations on murder. If you murder someone, then the authority that has jurisdiction can pursue you forever. So, I think you could be prosecuted under the UCMJ even after you returned to civilian life.

[Elendil's Heir]

My understanding was that the UCMJ applied only to those individuals enlisted in, or commissioned by, the U.S. military. If a murder which you committed while in uniform came to light long after you'd been discharged, you'd be prosecuted by Federal or state authorities (depending on the alleged facts of the case), I believe, but not by court-martial. In the OP's example, you'd probably get off scot-free for an alleged crime under military law which remained undetected during your term of service.

[Mr. Moto]

This happens quite frequently.

A common sentence imposed by courts-martial, along with imprisonment, is dishonorable discharge. Now, after discharge, the person in confinement is no longer in the military, but is still subject to the UCMJ and court martial jurisdiction while he is a prisoner.

There are a few other times where this is applies as well, but this is the most frequent time this happens, and makes perfect sense on the face of it.

[friedo]

Originally Posted by Mr. Moto

This happens quite frequently.

A common sentence imposed by courts-martial, along with imprisonment, is dishonorable discharge. Now, after discharge, the person in confinement is no longer in the military, but is still subject to the UCMJ and court martial jurisdiction while he is a prisoner.

I was under the impression that the discharge did not occur until after the sentence had ended.

[Gfactor]

General rule: honorable discharge bars military prosecution. http://supreme.justia.com/us/350/11/case.html

Exceptions:

(a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status.
(b) 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 and is after apprehension subject to this chapter while in the custody of the armed forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge.
(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.
(d) 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

http://www.law.cornell.edu/uscode/10...3----000-.html

[Loach]

Statute of Limitations is mostly 5 years except in cases that may carry the death penalty. So Winters was safe when he talked to Ambrose. cite

My understanding was that the UCMJ applied only to those individuals enlisted in, or commissioned by, the U.S. military. If a murder which you committed while in uniform came to light long after you'd been discharged, you'd be prosecuted by Federal or state authorities (depending on the alleged facts of the case), I believe, but not by court-martial.

The way I read this that is not true. It is not exactly written in English so I could be wrong but it goes along with what I remember being taught.

a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status.

[Loach]

Originally Posted by Gfactor

General rule: honorable discharge bars military prosecution. http://supreme.justia.com/us/350/11/case.html

Exceptions:

http://www.law.cornell.edu/uscode/10...3----000-.html

Section 843 is the statute of limitations. So when I translate it to English I get that discharge does not protect you as long as the SOL has not passed.

[Gfactor]

Originally Posted by Loach

Section 843 is the statute of limitations. So when I translate it to English I get that discharge does not protect you as long as the SOL has not passed.

Well, I'm not an expert on this stuff, but here's my read:

(a) says "Subject to section 843 of this title (article 43)," which is the SOL, "a person who is in a status in which the person is subject to this chapter."

That refers to section 802, which is longer, but here it is:

(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into 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.
(2) Cadets, aviation cadets, and midshipmen.
(3) Members of a reserve component while 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.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(13) Lawful enemy combatants (as that term is defined in section 948a (2) of this title) who violate the law of war.
(b) 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 under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving with an armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.
(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.
(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.
(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.
(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—
(A) be sentenced to confinement; or
(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).
(e) The provisions of this section are subject to section 876b (d)(2) of this title (article 76b(d)(2)).

http://www.law.cornell.edu/uscode/10...2----000-.html

so it includes anyone who meets these criteria at the time of the prosecution,

"and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter"

As long as they met the same criteria (perhaps with a different status) at the time of the offense.

"is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status."

So if you get discharged and then re-enlist, for example, you are subject to prosecution for your previous conduct, within the SOL. See, e.g., Vanderbush v Smith (1996, ACCA) 45 MJ 590, 1996 CCA LEXIS 346; United States v Erickson (2006, AFCCA) 63 MJ 504, 2006 CCA LEXIS 94.

[Gfactor]

Originally Posted by friedo

I was under the impression that the discharge did not occur until after the sentence had ended.

Apparently that's not always the case. This JAG report discusses some cases involving discharged prisoners:

one of which involves a service-member who was discharged before his court-martial and who was on terminal leave when apprehended, are currently before the 10th Circuit Court of Appeals. The appellate court should definitively decide the applicability of Feres to post-discharge military prisoners soon. These decisions will have broad ramifications for the USDB and all RCFs.

http://www.armfor.uscourts.gov/annua...ArmyReport.pdf

[Tripler]

Originally Posted by Gfactor

(4) Retired members of a regular component of the armed forces who are entitled to pay.

I was just telling my wife that in purely anecdotal evidence, I had remembered that somewhere, I heard of a case where a retired member drawing retired pay can be held liable under the UCMJ (IIRC, the charge was 'Conduct Unbecoming' and 'Sexual Misconduct'). For the life of me, I can't recall specifics.

However, I wonder if they do stretch what Gfactor posted to include those charges they really want to press. . .

Tripler
I knew I wasn't completely barking up a non-existent tree. . ._{as sapling-esque as it is. . .}