Reveille - The Newsletter of the MLC
The MLC produces its own biannual newsletter called REVEILLE. Below is an excerpt from the Summer 2009 issue.
RECALLED RESERVIST SUBJECT TO COURT-MARTIAL JURISDICTION
In Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009), the U.S. Court of Appeals for the Fourth Circuit held that a court-martial has jurisdiction over a member of the reserve component who was recalled to active duty to stand trial for offenses that occurred during active duty in the regular component.
Willenbring was court-martialed in the late 1990s, while serving in the Army’s reserve component, for three rape offenses committed in the late 1980s, when he was serving in the Army’s regular component. He pleaded guilty and was sentenced to confinement for 36 years. During his service in the regular component, Willenbring had asked to be discharged early, and he was given permission to do so only upon agreeing to enlist in the Army reserve the day after his discharge, which he did. In pursuing habeas corpus relief in federal court, Willenbring contended that he was not subject to court-martial prosecution because the Uniform Code of Military Justice (UCMJ) did not provide jurisdiction where he had experienced a complete termination of military service by his honorable discharge from the Army’s regular component and only later entered its reserve component.
At issue in this case is an interpretation of 10 U.S.C. § 802 (Article 2, UCMJ). Section 802(d)(2) provides, in part, that “a member of a reserve component may not be ordered to active duty [for trial by court-martial] ... except with respect to an offense committed while the member was ... (A) on active duty.” Willenbring argued that the phrase “on active duty” covered only offenses committed while he was on active duty in the reserves, citing as his authority a decision by the U.S. Court of Appeals for the Third Circuit in Murphy v. Dalton, 81 F.3d 343 (3d Cir. 1996). The government countered that Section 802(d)(2)(A) plainly did not distinguish between regular or reserve status with regard to the active duty during which the offenses were committed.
In finding court-martial jurisdiction over Willenbring in this case, the Fourth Circuit parted ways with the Third Circuit and decided that “on active duty” covered active duty in either the reserve or the regular components of the military. According to the court, this was made clear in the definition of “active duty” at 10 U.S.C. § 101(d)(1), which excludes the National Guard but not the regular or reserve components from its coverage. The court asserted that “when Congress has desired to limit a provision to a specific component of the military, it has consistently done so. And, Congress simply did not do so in writing and adopting subpart (2)(A) of Article 2(d).”
A petition for certiorari in this case was filed on May 29, 2009. [Note that Willenbring was convicted in on unrelated rape and kidnapping charges and is currently serving a sentence of life imprisonment there. Execution of his military sentence of confinement has been deferred.]