Arkansas Supreme Court Engages with Military Justice

A very recent opinion from the Arkansas Supreme Court weighed in on military justice issues in the state’s national guard system.
 
On December 12, 2016, a small group of Arkansas Guardsmen, including Defendant Childers, gathered at 7:00 a.m. to head for a National Guard Bureau Aviation Safety and Standardization conference. Sometime between 6:00 p.m. and 12:00 a.m., Childers allegedly sexually assaulted a member of his unit. At a court-martial of the Arkansas Army National Guard, Childers entered a negotiated guilty plea to two specifications of Cruelty and Maltreatment and two specifications of Failure to Obey an Order or Regulation. Childers was also charged with Sexual Misconduct. Childers’ motion to dismiss based on his inactive duty status was denied. In his negotiated guilty plea, Childers reserved the right to appeal the court-martial’s decision on jurisdiction. The court-martial sentenced Childers to dismissal from the Arkansas Guard, 180-days confinement, a fine of 100% of all base pay and allowances for 180 days, and punitive reprimand.

Here is a report of the state supreme court’s decision:
 
Issues: (1) Whether there is appellate jurisdiction over Childers’ appeal and (2) whether the court-martial had jurisdiction over Childers.
 
Holding:
 
Regarding the appellate jurisdictional issue, the Court first acknowledged a conflict in procedural rules:

• Arkansas presumption of compliance with Federal military law: Ark. Code Ann. § 12-64-402 (Repl. 2015) (stating “Each force of the organized militia has court-martial jurisdiction and powers over all persons subject to this code and shall follow the forms and procedures provided for similar courts of the US Army and US Air Force)
• Federal law permitting appeals of guilty pleas: Rule 910(a)(2) from the US RCM (stating that with respect to conditional pleas, with the approval of the military judge and consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review/appeal, to review of the adverse determination of any specified pretrial motion)
• Arkansas statute barring appeals from guilty pleas: Ark. Code Ann § 12-64-714(a)(1)(B) (stating that there shall be no appeal from a guilty plea except as provided in Arkansas Rule of Criminal Procedure 24.3(b)—which lists exceptions—none of which are present in Childers’ case).

 
Noting the explicit availability of this appellate procedure in the US Court-martial proceedings and Ark. Code Ann. § 12-64-402’s endorsement thereof, the Court resolved the conflict in favor of Childers, finding that it did have appellate jurisdiction.
 
Regarding the personal jurisdiction issue, under Ark. Code Ann. § 12-64-801, “[n]o person may be tried or punished for any offense...unless it was committed while he or she was in a duty status.” Appellee did not argue that Childers was on active duty at the time of the alleged offense, and neither party disputed that Childers was on AFTPP (Additional Flight Training Period Program) and inactive-duty training (“IDT”) status between 7:00 a.m. and 6:00 p.m. However, it was undisputed that the alleged offense occurred after this time: between 6:00 p.m. and 12:00 a.m. To resolve the question of personal jurisdiction the court relied on an ACCA opinion, United States v. Wolpert, 75 M.J. 777 (2016). ACCA concluded in that case that while members of a reserve unit are subject to the UCMJ during IDT and therefore subject to court-martial jurisdiction, jurisdiction did not extend to periods between/after IDT. Therefore, Childers’ duty status ended after completing his IDTs for the day at 6:00 p.m., before the alleged offense occurred; no court-martial jurisdiction existed.

Shlomo Amar

Intern