Can You Be Subject to the UCMJ After Discharge?

On behalf of Law Offices of David P. Sheldon on Wednesday, October 28, 2015.

It actually happens more often than many people realize...after a service member leaves the military he or she is charged with a criminal offense that occured during his or her time in service. The question arises, does the Uniform Code of Military Justice (UCMJ) still apply?

In 1955, one important case put this question to the test all the way up to the Supreme Court of the United States (SCOTUS), when an airman was arrested five months after his date of discharge and charged with conspiracy to commit murder while serving out his tour of duty in Korea. At the time of the arrest, the man no longer had any connection with the U.S. military.

So Was His Lawyer Right?

Under Art. 3(a) of the UCMJ, he was taken to Korea to stand trial before a court-martial. His attorney argued that the UCMJ should no longer apply, but to no avail. Initially, the defendant, Robert W. Toth, was found guilty and his attorney immediately appealed to the United States Court of Appeals, District of Columbia Ciruit. Grounds for the appeal centered on the reach of authority granted by the U.S. Congress to the Armed Forces. He won his appeal and the conviction was overturned but the military didn't give up.

The government petitioned the Supreme Court for an appeal, arguing on grounds for a broad interpretation of Article 1 of the Constitution, granting Congress the right to 'To make Rules for the Government and Regulation of the land and naval Forces.'

The military's petition claimed that since the offense was perpetrated during Toth's time in military service, the UCMJ should be the system of justice under which the trial was conducted. After all, a crime had been committed while on their watch.

SCOTUS agreed to hear the case and initial arguments were set for early February of 1955, then restored to docket for reargument in October of that year. In November, the majority of SCOTUS justices agreed with the District of Columbia Circuit Court of Appeals to overturn the conviction. Robert Toth was a free man.

Writing for the court, Justice Black noted (in part):

"It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces."

It must be noted, however, that over the years there have been some modifications to this general rule. Ex-service members who perpetrated a fraudulent act in order to secure an honorable discharge may, indeed, be subject to the UCMJ, on the grounds that the discharge is invalid and the individual is still considered a member of the armed forces.

If you are a discharged veteran facing a legal problem dating back to your time in service, talk to an attorney at the Law Offices of David P. Sheldon, PLLC, in Washington, D.C.