United States v. Phillips , 2003 CAAF LEXIS 430 ( 2003 )

UNITED STATES, Appellee
v.
Patricia C. PHILLIPS, Lieutenant Colonel
U.S. Air Force, Appellant
No. 02-0657
Crim. App. No. 34147
United States Court of Appeals for the Armed Forces
Argued February 5, 2003
Decided May 13, 2003
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Colonel Brandon Burnett (argued);
Colonel Beverly B. Knott, Major Kyle R. Jacobson, and Major
Terry L. McElyea (on brief); Major Jeffrey A. Vires.
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon
(on brief); Colonel Anthony P. Datillo and Lieutenant Colonel
William B. Smith.
Military Judge: William E. Orr, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Phillips, No. 02-0657/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Pursuant to her pleas, Appellant was convicted of making a
false official statement, wrongfully using marijuana, and
conduct unbecoming an officer by seeking a substitute urine
sample, in violation of Articles 107, 112a, and 133, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 907,
912a, and 933 (2000). The convening authority approved a
sentence of dismissal and confinement for 45 days. The Air
Force Court of Criminal Appeals affirmed the findings and
sentence, United States v. Phillips, 56 M.J. 843 (A.F. Ct. Crim.
App. 2002), and we granted review of the following issue:
WHETHER A COURT-MARTIAL HAS IN PERSONAM JURISDICTION
OVER A RESERVIST’S CONDUCT THAT OCCURS ON A TRAVEL DAY
PRECEDING HER ANNUAL ACTIVE-DUTY TOUR.
For the reasons set forth below, we affirm.
FACTS
At trial, as on appeal, Appellant contended that the armed
forces did not have personal jurisdiction over her at the time
of one of the three offenses of which she was convicted – the
charge of wrongful use of marijuana “at or near Wright-Patterson
Air Force Base, Ohio, between on or about 11 July 1999 and on or
about 16 July 1999.” Appellant has not challenged jurisdiction
over the remaining offenses. In the course of rejecting
Appellant’s motion, the military judge identified the following
as uncontested facts:
2
United States v. Phillips, No. 02-0657/AF
Lieutenant Colonel Patricia C. Phillips is a
member of the United States Air Force Reserve and has
been a member of the Reserve since 28 April of 1989,
without a break in service. During all the times
relevant, Lieutenant Colonel Phillips was a member of
the Air Force Reserves.
Lieutenant Colonel Phillips was assigned as a
reservist to the 9019th Air Reserve Squadron, Denver,
Colorado, as an Individual Mobilization Augmentee. As
an IMA, Lieutenant Colonel Phillips is attached to the
74th Medical Group, Wright-Patterson Air Force Base,
Ohio. Pursuant to Reserve Order JA 17747, dated 24
June 1999, Lieutenant Colonel Phillips was ordered to
perform her annual tour. The orders required
Lieutenant Colonel Phillips to report to duty at 0730
hours on 12 July 1999, and to be released on 23 July
1999. Lieutenant Colonel Phillips departed
Pittsburgh, Pennsylvania at 1200 hours on 11 July 1999
and arrived at Wright-Patterson Air Force Base, Ohio
at 1630 hours on 11 July 1999.
Pursuant to Reserve Orders JA 17747, one-day travel
was authorized on 11 July 1999. Lieutenant Colonel
Phillips received one point in travel pay for 11 July 1999.
Additionally, she received base pay, basic allowance for
quarters, and basic allowance for subsistence for 11 July
1999. Lieutenant Colonel Phillips reported for duty at
0630 hours on 12 July and was released from duty on 1530
hours on 23 July 1999.
During the week of 12 July 1999, Lieutenant Colonel
Phillips was selected for random urinalysis. She provided
a sample. The sample tested positive for tetrahydro-
cannabinol, with a THC level of 148 nannograms per
milliliter. The alleged drug use occurred on 11 July 1999,
after she arrived at Wright-Patterson Air Force Base, Ohio.
After the military judge denied the jurisdictional motion,
Appellant entered a plea of guilty. During the plea inquiry,
Appellant agreed to the admission into evidence of a stipulation
of fact, which contained detailed information about the
3
United States v. Phillips, No. 02-0657/AF
circumstances of her offenses, including the following
information regarding the use of marijuana:
On 11 July 1999, the Accused drove from her home in
Pittsburgh, Pennsylvania, to Wright-Patterson Air
Force Base, Ohio, where she checked into lodging at
the Wright-Patterson Air Force Base Visiting Officers’
Quarters (VOQ) that same day. On her trip to Wright-
Patterson Air Force Base, Ohio, the Accused brought
with her three brownies containing marijuana. On 11
July 1999, after checking in to her VOQ, the Accused
ate the marijuana brownies in her VOQ on Wright-
Patterson Air Force Base, Ohio. At the time she
consumed the brownies, the Accused knew that the
brownies contained marijuana, that substance she was
consuming was marijuana, and that she had no legal
justification or authority to use marijuana at the
time she used it. The Accused knew the brownies
contained marijuana because the Accused had previously
purchased the marijuana on a street corner in
Pittsburgh, Pennsylvania and because she subsequently
made the marijuana brownies herself, for her own use
and consumption.
The stipulation also described selection at random to
participate in the drug-testing program on July 16, her
unsuccessful attempt on July 16 to persuade another officer to
provide a substitute urine sample, her provision of the sample,
and the subsequent positive test result.
During the military judge’s personal colloquy with
Appellant during the plea inquiry, Appellant added:
On the 11th of July I drove from Pittsburgh,
Pennsylvania to Wright-Patterson Air Force Base for my
active-duty tour and I brought marijuana on base. I
checked in, I ate those brownies on the 11th of July,
and I reported to duty at seven-thirty, July 12, 1999.
4
United States v. Phillips, No. 02-0657/AF
In response to a question from the military judge, Appellant
confirmed that she consumed the marijuana on base in the
Visiting Officers’ Quarters. Other uncontested evidence
submitted during trial demonstrated that Appellant, who was born
in 1951, entered the Air Force in 1989, was successively
promoted to Lieutenant Colonel, and met mental and minimum age
qualifications under 10 U.S.C. §§ 504 and 505 (2000).
DISCUSSION
“Court-martial jurisdiction exists to try a person as long
as that person occupies a status as a person subject to the
[UCMJ].” United States v. Ernest, 32 M.J. 135, 139 (C.M.A.
1991). See also Solorio v. United States, 483 U.S. 435 (1987).
“Status in the armed forces for purposes of court-martial
jurisdiction is generally governed by Article 2 [of the UCMJ].”
United States v. Cline, 29 M.J. 83, 85 (C.M.A. 1989)(citing
United States v. Cole, 24 M.J. 18 (C.M.A. 1987)). Article 2(c),
UCMJ, 10 U.S.C. § 802(c)(2000), states:
Notwithstanding any other provision of law, a
person serving with an armed force who--
(1) submitted voluntarily to military authority;
(2) met the mental and minimum age qualifications
of sections 504 and 505 of this title at the time of
voluntary submission to the military authority;
(3) received military pay or allowances; and
(4) performed military duties;
5
United States v. Phillips, No. 02-0657/AF
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.
The foregoing provision was added to Article 2 in 1979.
Department of Defense Authorization Act, 1980, Pub. L. No. 96-
107, § 801, 93 Stat. 803, 811 (1979). The legislative history
indicates that the amendment was primarily enacted to ensure
that court-martial jurisdiction would not be defeated by
assertions that military status was tainted by recruiter
misconduct. See S. Rep. No. 96-197, at 121-22 (1979). The
legislative history also makes it clear that the four-part test
for active service applies to circumstances –- such as those
present in United States v. King, 11 U.S.C.M.A. 19, 28 C.M.R.
243 (1959) -- not involving defective enlistments. S. Rep. No.
96-197, at 122. In describing the scope of the legislation, the
Senate Report observed:
The new subsection is not intended to affect
reservists not performing active service or civilians.
It is intended only to reach those persons whose
intent it is to perform as members of the active armed
forces and who met the four statutory requirements.
It thus overrules such cases as United States v. King,
[supra]. An individual comes within new Subsection
(c) whenever he meets the requisite four-part test
regardless of other regulatory or statutory
disqualification.
Id. at 122-23.
The statute, by its express terms, establishes a specific
analytical framework. First, the person must be “serving with
6
United States v. Phillips, No. 02-0657/AF
an armed force” at the pertinent point in time. The phrase
“serving with” an armed force has been used to describe persons
who have a close relationship to the armed forces without the
formalities of a military enlistment or commission. See Article
2(10), UCMJ; Article XXXII, American Articles of War of 1775,
reprinted in William Winthrop, Military Law and Precedents 956
(2d ed. 1920). The question of whether a person is “serving
with” the armed forces is dependent upon a case-specific
analysis of the facts and circumstances of the individual’s
particular relationship with the military, and means a
relationship that is more direct than simply accompanying the
armed forces in the field. See, e.g., United States v. Garcia,
5 U.S.C.M.A. 88, 17 C.M.R. 88 (1954); United States v. Schultz,
1 U.S.C.M.A. 512, 4 C.M.R. 104 (1952).
Second, the statute provides that a person serving with the
armed forces also must meet the four-part test. Merely serving
with the armed forces as a reservist or a civilian is not
sufficient to establish jurisdiction under Article 2(c).
Compare Articles 2(a)(3), 2(d) (jurisdiction over reservists not
on active duty in specified circumstances).
Finally, the statute provides that once a person meets the
four-part test, the individual retains status as a person in
“active service,” see 10 U.S.C. § 101(d)(3), until released
under applicable laws and regulations.
7
United States v. Phillips, No. 02-0657/AF
Applying the first step of the analysis to the present
case, Appellant’s status as a person “serving with” the armed
forces on July 11, 1999, is established by the following
uncontested facts: (1) on that day, she was a member of a
reserve component of the armed forces; (2) she traveled to a
military base on that day pursuant to military orders, and she
was reimbursed for her travel expenses by the armed forces; (3)
the orders were issued for the purpose of performing active
duty; (4) she was assigned to military officers’ quarters, she
occupied those quarters, and she committed the pertinent offense
in those quarters; (5) she received military service credit in
the form of a retirement point for her service on that date; and
(6) she received military base pay and allowances for that date.
In terms of the second step of the analysis, Appellant’s
status on July 11 as a person in active service under the four-
part test in Article 2(c) is established by the following
uncontested facts: (1) Appellant submitted voluntarily to
military authority; (2) Appellant’s date of birth and record of
service reflected that there was no issue as to whether she met
the mental and minimum age qualifications under 10 U.S.C. §§ 504
and 505 (2002); (3) as noted in connection with the first step, she
received military pay and allowances for her service on that
date; and (4) her military duty on that day, which she
voluntarily agreed to perform, was to travel to the base
8
United States v. Phillips, No. 02-0657/AF
preparatory to report to a specific organization on July 12.
She performed that duty. The fact that her orders did not
require her to report to a specific organization until July 12
does not detract from her voluntary performance of the duty,
pursuant to orders, to travel on July 11. Finally, it is
uncontested that during the period in question, she was not
released pursuant to law or regulation.
Under these circumstances, Appellant was subject to
military jurisdiction on the day of travel to her active-duty
site at the time of her offense.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
9