CLIFFORD M. OVERTON, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-496

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Military Appeals

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-7a) is
reported at 24 M.J. 309.  The opinion of the Navy-Marine Corps Court
of Military Review (Pet. App. 8a-14a) is reported at 20 M.J. 998.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on July
27, 1987.  The petition for a writ of certiorari was filed on
September 24, 1987.  The jurisdiction for this Court is invoked under
28 U.S.C. (Supp. III) 1259(3).

                          QUESTION PRESENTED

   Whether Article 2(a)(6) of the Uniform Code of Military Justice, 10
U.S.C. 802(a)(6), which grants jurisdiction to a court-martial over
members of the Fleet Reserve and Fleet Corps Reserve, is
unconstitutional.

                               STATEMENT

   Petitioner, a member of the Fleet Marine Corps Reserve, was
convicted by a general court-martial on three specifications of
conspiracy to commit larceny and four specifications of larceny from
the Subic Bay Navy Exchange, in violation of Articles 81 and 121 of
the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 881 and 921.
Petitioner was sentenced to be dishonorably discharged from the naval
service and to forfeit all retainer pay.  The Navy-Marine Corps Court
of Military Review affirmed the findings and sentence (Pet. App.
8a-14a).  Upon discretionary review, the Court of Military Appeals
affirmed the findings and sentence (Pet. App. 1a-7a).

   1. A person who enlists in the armed forces changes his status from
civilian to serviceman by taking the oath of allegiance.  In re
Grimley, 137 U.S. 147, 156-157 (1890);  Wickham v. Hall, 706 F.2d 713,
716 (5th Cir. 1983).  Once a person becomes a serviceman, he can
honorably terminate his military status only by completing his service
obligation and receiving a valid discharge.  United States v. Scott,
11 C.M.A. 646, 648, 29 C.M.R. 462, 464 (1960) (military jurisdiction
over a person terminated "with the delivery to him of a valid
discharge certificate");  see United States v. Cole, 24 M.J. 18
(C.M.A. 1987), cert. denied, No. 86-2012 (Oct. 5, 1987);  Wickham v.
Hall, 706 F.2d at 716-717;  Wickham v. Hall, 12 M.J. 145, 150 (C.M.A.
1981).

   The Fleet Marine Corps Reserve is comprised of enlisted Marines who
have completed at least 20 years of active service and have requested
a transfer to inactive duty service.  10 U.S.C. (& Supp. IV) 6330.
/1/ Each member of the Fleet Marine Corps Reserve is entitled, when
not on active duty, to "retainer" pay, a salary that is computed on
the basis of the basic pay received by a servicemember at the time of
his transfer to the Fleet Marine Corps Reserve and his years of active
duty service in the Marines (ibid.).  A member of the Fleet Marine
Corps Reserve is entitled to the same benefits that are enjoyed by all
Marines who are on active duty.  /2/ A member of the Fleet Marine
Corps Reserve may also be recalled to active duty in several
circumstances:  by the Secretary of the Navy under regulations
prescribed by the Secretary of Defense;  in time of war or national
emergency;  in time of peace for up to two months of training;  and
when otherwise authorized by law.  10 U.S.C. 6485;  compare 10 U.S.C.
(& Supp. IV) 688.  After 30 years of service (active duty plus
inactive duty), a member of the Fleet Marine Corps Reserve is
automatically transferred to the retired list of the regular Marine
Corps.  10 U.S.C. 6331.

   2. Petitioner served continuously on active duty in the Marine
Corps for 22 years, from May 1956 to July 1978 (2 Tr. 7 (attached
Charge Sheet, at 1);  2 Tr. 10).  At the end of that period,
petitioner was released from active duty and was transferred at his
request to the Fleet Marine Corps Reserve (GX 1).  At no time did
petitioner seek a discharge from his last enlistment, nor was he
retained against his will in the Fleet Marine Corps Reserve (2 Tr.
10-13).

   During October 1983, petitioner on three occasions conspired with
employees of the Subic Bay Navy Exchange to steal electronic equipment
from the exchange to be sold off-base in the black market (2 Tr.
39-59, 130-184, 190-219).  These conspiracies culminated in the thefts
of stereo and video equipment from the Navy exchange.

   3. Before trial, petitioner moved to dismiss all charges on the
ground that the court lacked personal jurisdiction over him, since he
was on inactive duty status.  The trial judge denied the motion (2 Tr.
22).  The Navy-Marine Corps Court of Military Review affirmed (Pet.
App. 8a-14a).  The court ruled that petitioner could validly be
court-martialed since he "has never left the Naval Service but instead
has merely been 'transferred' (in the exact words of the statute) from
one component to another -- not retired, not discharged, not separated
-- and continues to receive 'retainer' pay in return for his
membership in the Fleet Marine Reserve" (id. at 13a).  Relying on
decisions from this Court and its own precedents, the Court of
Military Appeals also upheld the constitutionality of Article 2(a)(6),
UCMJ, 10 U.S.C. 802(a)(6), as applied to petitioner's case (Pet. App.
4a-6a).

                               ARGUMENT

   Petitioner contends that the court-martial lacked personal
jurisdiction over him because he was no longer on active duty at the
time of the crime or trial.  He argues that Article 2(a)(6) of the
UCMJ, 10 U.S.C. 802(a)(6), which grants military courts jurisdiction
over members of the Fleet Marine Corps Reserve, is unconstitutional.
That claim does not warrant review by this Court, for several reasons.

   1. First, the question presented in this case has not arisen with
the frequency necessary to justify review by this Court.  To our
knowledge, in the 71 years that Article 2(a)(6) and its predecessors
have been in effect, the military has brought only two prosecutions in
addition to this case against members of the Fleet Reserve or Fleet
Marine Corps Reserve.  /3/ Moreover, there have been only a handful of
prosecutions of other military personnel who have retired, but have
not been discharged from the service and who still remain on the
military payroll.  /4/ The question presented by petitioner is
therefore of limited practical importance.  /5/

   2. Second, there is no conflict among the circuits on the issue
presented here.  The Court of Military Appeals' decision in this case
upholding the constitutionality of Article 2(a)(6) as applied to this
case is consistent with its earlier decisions in United States v.
Bowie, 14 C.M.A. 631, 34 C.M.R. 411 (1964), and United States v.
Hooper, 9 C.M.A. 637, 639-645, 26 C.M.R. 417, 419-425 (1958), which
ruled that a retired serviceman could be court-martialed under a
parallel provision of the Code, Art. 2(a)(4), UCMJ, 10 U.S.C.
802(a)(4).  The decisions of the Court of Military Appeals are
consistent with the Second Circuit's decision in United States ex rel.
Pasela v. Fenno, 76 F. Supp. 203 (D. Conn. 1947), aff'd, 167 F.2d 593,
cert. granted, 334 U.S. 847, cert. dismissed, 335 U.S. 806 (1948), and
with the Court of Claims' decision in Hooper v. United States, 326
F.2d 982, cert. denied, 377 U.S. 977 (1964), and Runkle v. United
States, 19 Ct. Cl. 396, 414 (1884), rev'd on other grounds, 122 U.S.
543 (1887), which also ruled that a retired member of the military who
still draws pay is in the armed forces and can be tried by a
court-martial.  Accord Closson v. United States ex rel. Armes, 7 App.
D.C. 460, 470-471 (1896);  Chambers v. Russell, 192 F. Supp. 425,
427-428 (N.D. Cal. 1961);  Hooper v. Hartman, 163 F. Supp. 437 (S.D.
Cal. 1958), aff'd on other grounds, 274 F.2d 429 (9th Cir. 1959);  see
also McCarty v. McCarty, 453 U.S. 210, 221-222 (1981) (citations and
footnote omitted) ("The retired officer remains a member of the Army *
* * and continues to be subject to the Uniform Code of Military
Justice.");  United States v. Tyler, 105 U.S. 244, 245-246 (1881)
(concluding, in a suit for back pay, that retired officers who receive
pay from the government are still members of the military and may be
subjected to a court-martial);  Taussig v. McNamara, 219 F. Supp. 757,
759 n.3 (D.D.C. 1963);  Lemly v. United States, 109 Ct. Cl. 760, 763
(1948);  Marvin v. United States, 78 Ct. Cl. 567, 571-572 (1933);  W.
Winthrop, Military Law and Precedents 87 n.27 (2d ed. 1920)
(concluding that "retired officers are a part of the army and so
triable by court-martial -- a fact indeed never admitting of
question");  cf. Kahn v. Anderson, 255 U.S. 1, 7 (1921) (relying on
Tyler to hold that retired officers are officers "in the military
service of the United States" and therefore are qualified to sit as
members of a court-martial).  /6/

   Petitioner has cited no decision to the contrary.  The cases cited
by petitioner hold only that court-martial jurisdiction does not
extend to civilians or to former servicemen who have severed all their
ties to the military and its institutions.  McElroy v. United States
ex rel. Guagliardo, 361 U.S. 281 (1960) (civilian military employee
working overseas);  Grisham v. Hagan, 361 U.S. 278 (1960) (same);
Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960)
(military dependent living overseas);  Reid v. Covert, 354 U.S. 1
(1957) (same);  United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955) (honorably discharged serviceman).  Petitioner was never
discharged;  these cases are therefore inapposite.

   3. Finally, the decision below is correct.  The Constitution vests
in Congress the authority to regulate "the land and naval Forces"
(Art. I, Section 8, Cl. 14), and that authority includes the power to
establish courts-martial and to define their jurisdiction.  Solorio v.
United States, No. 85-1581 (June 25, 1987), slip op. 3;  Kinsella v.
United States ex rel. Singleton, 361 U.S. at 246.  Under that
authority, a court-martial may exercise jurisdiction over any crime
committed by a servicemember.  Solorio v. United States, supra.  At
the same time, a court-martial may not exercise jurisdiction over a
crime committed by a former servicemember who has severed all ties to
the military.  United States ex rel. Toth v. Quarles, supra.  That
principle, however, applies only to persons, unlike petitioner, who
are fully and finally separated from military service.

   The Fleet Reserve and Fleet Marine Corps Reserve are inactive
branches of the Navy and Marine Corps that were created by Congress
pursuant to its authority "(t)o provide and maintain a Navy" (U.S.
Const. Art. I, Section 8, Cl. 13;  see 10 U.S.C. 5001(a)(1) and (2),
6330, and 6331;  United States ex rel. Pasela v. Fenno, supra).  These
Reserves are an expression of Congress's judgment that the nation's
military needs are served by offering servicemen who have completed a
lengthy period of military service the opportunity to request a
transfer to an inactive duty status rather than be discharged.  The
Reserves are composed of trained personnel who are subject to recall
to active duty.  /7/ A serviceman who belongs to the Fleet Marine
Corps Reserve therefore is not in the same position as a former
serviceman who has completely severed his ties to the military.

   Congress's judgment that members of the Fleet Marine Corps Reserve
should be subject to the UCMJ is entirely reasonable.  The
preparedness of Reservists depends in part on their state of
discipline, and requiring such persons to be subject to the UCMJ is a
reasonable means of enforcing that discipline.

   History supports that conclusion.  Retired army and naval officers
have been subject to court-martial jurisdiction since the Civil War.
Act of Aug. 3, 1861, ch. 42, Sections 18, 24, 12 Stat. 290, 291;  Rev.
Stat. Sections 1256, 1457 (1878 ed.).  Article 2(a)(6), in particular,
traces its lineage to the Naval Service Appropriations Act of 1916,
ch. 417, 39 Stat. 589-591.  See also Naval Reserve and Marine Corps
Reserve Act of 1925, ch. 374, Sections 6, 10, 43 Stat. 1081-1082,
1083;  Naval Reserve Act of 1938, ch. 690, Section 6, 52 Stat. 1176.
Before enacting Article 2(a)(6) of the UCMJ in 1950, Congress
considered the testimony of several witnesses that court-martial
jurisdiction over persons in an inactive duty status was unnecessary
and unfair and should be limited.  Uniform Code of Military Justice:
Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed
Services, 81st Cong., 1st Sess. 706, 749, 864-870 (1949);  Hearings on
S. 857 and H.R. 4080 Before a Subcomm. of the Senate Comm. on Armed
Services, 81st Cong., 1st Sess. 329-330 (1949).  Congress rejected the
argument that these persons were simply pensioners who were no longer
members of the armed forces in favor of the conclusion that these
persons were still members of the military who receive lesser pay for
current but reduced services and thus should continue to be subject to
court-martial jurisdiction.  Because "Congress has primary
responsibility for the delicate task of balancing the rights of
servicemen against the needs of the military" (Solorio v. United
States, slip op. 12) and because "'judicial deference * * * is at its
apogee when legislative action under the congressional authority to
raise and support armies and make rules and regulations for their
governance is challenged'" (ibid. (citation omitted)), Congress's
judgment on this subject is entitled to respect from the courts.

   Petitioner has neven been discharged from his last enlistment (Tr.
10-13);  in fact, he concedes (Pet. 5) that he is a member of the
Fleet Marine Corps Reserve.  Moreover, petitioner does not dispute
that the Fleet Marine Corps Reserve is a part of the military.
Petitioner therefore remained a member of the military in an inactive
duty status at the time of his crimes and his trial.  He was free to
resign from the Fleet Marine Corps Reserve and to receive a discharge
at any time.  Op. Judge Advocate Gen. of the Navy, JAG:131.5, at 6
(May 11, 1971) (reproduced at Gov't C.A. Br. App. II).  Had petitioner
done so, he would no longer have been subject to the UCMJ and,
correspondingly, would not have been entitled to the benefits that
members of the Fleet Marine Corps Reserve earn by their service.
There is no unfairness in respecting petitioner's judgment that the
benefits of remaining in the Fleet Marine Corps Reserve outweighed the
cost.  /8/

   Petitioner argues (Pet. 9-10) that "membership in the Fleet Reserve
or Fleet Marine corps Reserve is not military 'status' at all, but
merely an administrative convenience," because it is an inactive duty
status.  /9/ Petitioner erroneously equates military status (and
therefore amenability to court-martial jurisdiction) with active duty
status.  The difference between active and inactive duty status,
however, is entirely a creation of statute.  Congress drew a different
distinction for purposes of court-martial jurisdiction, and that
distinction is binding as long as it is within Congress's power under
Clauses 13 and 14.  For the reasons discussed above, the line drawn by
Congress is within its constitutional authority.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WENDELL A. KJOS

      Capt., JAGC, USN

   FRANK F. KRIDER

      Maj., USMC

   THOMAS D. MILLER

      Capt., USMC Appellate Government Counsel Appellate Government
      Division Navy-Marine Corps Appellate Review Activity

   NOVEMBER 1987

   /1/ Members of the Army and the Air Force who complete 20 or more
years of active service "retire" pursuant to 10 U.S.C. 3914 and 8914,
respectively.  As retirees they are subject to court-martial
jurisdiction to the same extent as members of the Fleet Reserve and
Fleet Marine Corps Reserve.  Compare Art. 2(a)(4), UCMJ, 10 U.S.C.
802(a)(4) (retired members of the armed forces who are entitled to
pay), with Art. 2(a)(6), UCMJ, 10 U.S.C. 802(a)(6) (members of the
Fleet Reserve or Fleet Marine Corps Reserve).

   /2/ These benefits include unlimited privileges at armed services
exchanges;  free medical and dental care;  commissary privileges;
military funeral support;  and issuance of an identification card
reserved for members of the uniformed services.

   /3/ One case was prosecuted before the UCMJ was adopted in 1950.
United States ex rel. Pasela v. Fenno, 76 F. Supp. 203 (D. Conn.
1947), aff'd, 167 G.2d 593 (2d Cir.), cert. granted, 334 U.S. 857,
cert. dismissed, 335 U.S. 806 (1948).  The only prosecution other than
this case brought under Article 2(a)(6) against a member of the Fleet
Reserve or Fleet Marine Corps Reserve is United States v. Allen, which
is currently pending before the convening authority on a post-trial
review of Allen's conviction.  Allen, a U.S. Navy Fleet Reservist, was
convicted by a general court-martial for his activities in passing
classified and unclassified information related to the national
defense to intelligence agents of a foreign nation.

   /4/ Since 1894, there have been a total of only eight prosecutions
under Art. 2(a)(4) (or its predecessor) against retired members of the
Navy.  There have been even fewer such prosecutions by the Army and
Air Force.  E.g., United States v. Bowie, 14 C.M.A. 631, 34 C.M.R. 411
(1964);  Chambers v. Russell, 192 F. Supp. 425 (N.D. Cal. 1961)
(retiree court-martialed for offenses committed while on active duty);
 United States v. Hooper, 9 C.M.A. 637, 26 C.M.R. 417 (1958);  United
States ex rel. Boscola v. Bledsoe, 152 F. Supp. 343 (W.D. Wash. 1956),
aff'd per curiam on the basis of the district court's opinion, 245
F.2d 955 (9th Cir. 1957) (two servicemen);  United States v. Kearney,
3 B.R. 63 (1931), cited at Blair, Court-Martial Jurisdiction Over
Retired Regulars:  An Unwarranted Extension of Military Power, 50 Geo.
L. Rev. 79, 79 n.3 (1961);  Closson v. United States ex rel. Armes, 7
App. D.C. 460, 470-471 (1896).

   /5/ The Secretary of the Navy must authorize a prosecution against
a member of the Fleet Reserve or the Fleet Marine Corps Reserve under
Art. 2(a)(6), or against a retired member of the Navy under Art.
2(a)(4).  Manual of the Judge Advocate General para. 0116 (Apr. 22,
1987).  The Air Force also must obtain authorization from the
Secretary of the Air Force to prosecute a retired serviceman under
Art. 2(a)(4).  Air Force Reg. No. 111-1, Military Justice Guide ch. 1,
para. 2-5 (July 8, 1985).  The relevant Army regulation does not
contemplate the prosecution of retired members of that branch of the
armed forces.  Army Reg. No. 27-10 (July 10, 1987).

   /6/ Other courts have also concluded that a retired officer is a
member of the military under a variety of other statutes.  See
Morgenthau v. Barrett, 108 F.2d 481, 484-485 (D.C. Cir. 1939) (statute
disqualifying members of the service from certain employment in the
Treasury Department);  White v. Treibly, 19 F.2d 712, 713 (D.C. Cir.
1927) (statute authorizing involuntary commitment of insane officers);
 United States v. Gillmore, 189 F. 761 (S.D.N.Y. 1911) (L. Hand, J.).

   The decision in United States ex rel. Boscola v. Bledsoe, supra, is
not to the contrary.  There, the court ruled that the armed forces
lacked statutory authority to recall a retired serviceman to active
duty for the purpose of court-martialing him.  152 F. Supp. at 347.
The court did not address the question whether the court-martial
itself was unlawful.  See ibid.; 245 F.2d at 955.

   /7/ The salary paid to members of the Reserves is not simply a
reward for their past services, but a means of paying present
compensation to assure their availability and preparedness for future
contingencies.  United States ex rel. Pasela v. Fenno, 167 F.2d at
595;  United States ex rel. Pasela v. Fenno, 76 F. Supp. at 207;
United States v. Hooper, 9 C.M.A. at 645, 26 C.M.R. at 425;  see
Haynes v. Miller, 679 F.2d 718 (7th Cir.), cert. denied, 459 U.S. 970
(1982).

   /8/ Petitioner contends (Pet. 8) that "the 'voluntary' aspect of
(his) decision to join the Fleet Marine Corps Reserve should not be
overemphasized." But petitioner's decision to be transferred to the
Fleet Marine Corps Reserve rather than to be discharged clearly is
significant if not largely dispositive even under petitioner's own
theory.  Petitioner concedes (id. at 9) that a person can subject
himself to court-martial jurisdiction by signing an agreement to
submit himself to its authority.  That procedure is not materially
different from what happened here.  Petitioner voluntarily accepted a
transfer to the Fleet Marine Corps Reserve (id. at 5).  Petitioner
therefore consented to his status as a member of the Fleet Marine
Corps Reserve, just as he consented to his original status as a Marine
on active duty.

   /9/ Petitioner erroneously suggests (Pet. 6) that "cases arising in
the land or naval forces" are exempt from the Fifth Amendment
requirement of indictment by a grand jury only when a case arises "in
actual service in time of war or public danger." The latter phrase
refers only to the "Militia" of the states, not to the "land and naval
forces" of the United States.  Johnson v. Sayre, 158 U.S. 109 (1895).