                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-1996

Murphy v. Dalton
Precedential or Non-Precedential:

Docket 95-3183




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                                                                  1


                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                             No. 95-3183
                              __________

                       MICHAEL A. MURPHY,
                                                         Appellant,
                                 v.

         JOHN H. DALTON, Secretary of the Navy; GENERAL
       CARL E. MUNDY JR., Commandant of the Marine Corps;
      MAJOR GENERAL ALBERT C. HARVEY, Commanding General,
      4th Marine Division; COLONEL JERRY L. CREED, Deputy
Director, Marine Reserve Support Center, MAJOR DENNIS WILLIAMS,
   U.S. MARINE CORPS RECRUITING CENTER PITTSBURGH; BRIGADIER
        GENERAL JACK W. KLIMP, Commanding General, Marine
  Corps Recruit Depot, Parris Island, Individually and in his
              official capacity; WILLIAM J. PERRY,
    Secretary of Defense; and the UNITED STATES OF AMERICA,
                                                       Appellees.
                         _______________

          Appeal From the United States District Court
            for the Western District of Pennsylvania
                  (D. C. Civ. No. 90-cv-00357)
                        _________________

                    Argued November 28, 1995

      Before:   MANSMANN, COWEN and SEITZ, Circuit Judges.

                      Filed: April 11, 1996
                         ________________

Andrew G. Sykes, Esq. (argued)
Sammuel J. Cordes, Esq.
Ogg, Jones, Desimone & Ignelsi, L.L.P.
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

   Attorneys for Appellant

Frederick W. Thieman
United States Attorney
Paul J. Brysh (argued)
Assistant U.S. Attorney
633 U.S. P.O. and Courthouse
Pittsburgh, PA 15219
                                                                        2


Lt. Susan C. Stewart, JAGC, USN
Department of the Navy
200 Stovall Street
Alexandria, VA 22332

   Attorneys for Appellees

                       _______________________

                         OPINION OF THE COURT
                       _______________________

SEITZ, Circuit Judge.


             Michael E. Murphy ("Plaintiff"), formerly a captain in

the United States Marine Corps Reserves, initiated an action in

the district court challenging, inter alia, the authority of the

United States Marine Corps to recall him to active duty, while a

member of the Marine Corps Reserves, and to subject him to trial

by court-martial for offenses committed during a prior period of

active duty in the regular Marines Corps.        Plaintiff appeals an

order of the district court granting summary judgment in favor of

the Secretary of the Navy John H. Dalton, et al. ("Defendants").

The court held that Plaintiff was lawfully recalled to active

duty and court-martialed in accordance with constitutional

standards.    The district court had jurisdiction under 28 U.S.C.

§ 1331.   We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                    I.   FACTS

             Plaintiff served in the regular component of the United

States Marine Corps from October, 1981 to May 30, 1988, and

achieved the rank of captain.     On May 30, 1988, he resigned his

commission and received an honorable discharge from the regular

component.     Simultaneous with his discharge, Plaintiff requested
                                                                     3


and accepted a commission as a reserve officer and transferred to

the Marine Corps Reserves.    Under this arrangement, Plaintiff had

no obligated service in the reserves.

          In or around August 1988, Plaintiff joined a Marine

reserve unit and participated in inactive duty training.

Thereafter, charges were preferred against Plaintiff for

violations of various articles of the Uniform Code of Military

Justice ("UCMJ") for misconduct which occurred during his prior

period of active duty in the regular component.    Plaintiff was

called to active duty to face the charges but challenged the

military's jurisdiction over him.    At the time of his recall,

Plaintiff was not on active duty or on inactive duty training.

None of the allegations concerned conduct occurring during the

period of Plaintiff's inactive duty training in the reserves.

          Before a general court-martial, Plaintiff pleaded

guilty to two of five counts against him.    The remaining three

charges were withdrawn.    Plaintiff was fined $75,000, which was

suspended, and he was dismissed from the service.    He appealed

his conviction to the Navy-Marine Court of Military Review which

affirmed the conviction.    Thereafter, Plaintiff filed a petition

for certiorari to the United States Supreme Court which was

denied.

          After exhausting his military remedies, Plaintiff

sought relief in the district court.    Plaintiff requested 1)

compensatory and punitive damages, including attorneys fees,

against Defendants in their individual capacities, for violation

of his constitutional rights; 2) compensatory damages under the
                                                                      4


Federal Tort Claims Act for the intentional and negligent conduct

of the United States officials; 3) declaratory and equitable

relief for violation of Plaintiff's constitutional and statutory

rights; and 4) "a permanent injunction providing for Plaintiff's

reinstatement in the Marine Corp Reserve with restitution of all

financial losses and losses of benefits suffered as a result of

Defendants' conduct[,] and expungement of his conviction,

dismissal[,] and the record of all proceedings conducted without

jurisdiction by the Military Courts." (Second Amended Complaint,

App. at 22.)

           Motions for summary judgment were made by both

Plaintiff and Defendants.    The district court dismissed

Plaintiff's complaint and granted summary judgment for Defendants

holding that Plaintiff was lawfully recalled to active duty and

court-martialed in accordance with constitutional standards.     No

opinion was filed.   Instead, in support of its ruling, the court

adopted Defendants' memoranda of law as its rationale.      Plaintiff

filed a timely appeal to this Court.



                            II.   DISCUSSION

           This case concerns the fundamental question of whether

the military had continuing jurisdiction over Plaintiff to

subject him to recall to active duty and subsequent court-

martial.   Resolution of jurisdictional questions such as this are

historically within an Article III court's jurisdiction. See
Schlesinger v. Councilman, 420 U.S. 738, 753 n.26 (1975)(citing

United States v. Frischholz, 36 C.M.R. 306, 307 (C.M.A. 1966)).
                                                                   5


Because we are reviewing the district court's grant of summary

judgment, our review is plenary.



           A.   Elements of Court-martial Jurisdiction
          Generally, court-martial jurisdiction has three

elements: (1) the accused must be in a status subject to the UCMJ

at the time the offense was committed; (2) personal jurisdiction

must attach at the time of the court-martial; and (3) "the

accused must be `amenable' to trial by court-martial for the

alleged offense." See Earle A. Partington, Court-Martial

Jurisdiction Over Weekend Reservists After United States v.

Caputo, 37 Naval L. Rev. 183, 194 (1988).   Elements two and three

are the focus of this appeal.



           1.    The Uniform Code of Military Justice

          The UCMJ provides:
          (a) The following persons are subject to this
          chapter:

               (1) Members of a regular component of
          the armed forces . . . and other persons
          lawfully called or ordered into, or to duty
          in or for training in, the armed forces, from
          the dates when they are required by the terms
          of the call or order to obey it.

                . . . .

               (3) Members of a reserve component while
          on inactive-duty . . . .


10 U.S.C. § 802(a)(1) & (3) (1988).   Those falling into one of

the categories of persons listed above are said to be in a

"status subject to the Code."   In the present case, there is no
                                                                    6


dispute that Plaintiff was in a status subject to the Code at the

time of the alleged offenses.

          In order to satisfy the second element, i.e., personal

jurisdiction, Defendants called Plaintiff into active duty, a

status subject to the Code, pursuant to the following statutory

authority:
          (1) A member of a reserve component who is
          not on active duty and who is made the
          subject of proceedings under section 815
          (article 15) or section 830 (article 30) with
          respect to an offense against this chapter
          may be ordered to active duty involuntarily
          for the purpose of--
               (A) investigation under section 832
          (article 32) of this title;
               (B) trial by court martial; or
               (C) nonjudicial punishment under section
          815 of this title.

          (2) A member of a reserve component may not
          be ordered to active duty under paragraph (1)
          except with respect to an offense committed
          while the member was--
               (A) on active duty; or
               (B) on inactive duty training . . . .


10 U.S.C. § 802(d)(1) & (2) (1988) (emphasis added).   Under this
section, Defendants posit that Plaintiff, as a reserve officer,

was properly recalled to active duty to face court-martial for

the offenses committed while he was a member of the regular

component.   They contend that § 802(d) "expressly authorizes the

recall of reservists for investigation and court-martial with

respect to offenses committed on active duty" even if such

periods of active duty occurred in the regular component.    In

Defendants' view, because the term "active duty" is not qualified

in any way it should be given its plain meaning and be applicable
                                                                      7


to any period of active duty.     Thus, Defendants invoked 10 U.S.C.

§ 802(d) as the statutory authority for personal jurisdiction

over Plaintiff, and, by implication, the authority to order him

to stand trial by court-martial.

             Contrary to Defendants' position, Plaintiff initially

argues that the term "active duty" in § 802(d)(2)(A) refers only

to those periods of active duty served while a reservist.      As

such, it has no application to situations where the offense was

committed while on active duty in the regular component.      The

result, Plaintiff argues, is that § 802(d) cannot be used to

effect personal jurisdiction.

             Additionally, Plaintiff asserts that the third element

of court-martial jurisdiction, "amenability" to trial by court-

martial, cannot be met.     Plaintiff argues that jurisdiction over

him for past offenses committed during his prior period of

service was lost after his discharge from the regular component

of the Marines.     He asserts that to have continuing jurisdiction

over him for such past offenses requires the application of an

earlier version of 10 U.S.C. § 803(a), which provided continuing

jurisdiction over discharged military personnel when certain

conditions were met.3     Because § 803(a) could not apply,

Plaintiff argues he is not amenable to jurisdiction.

3
    Section 803(a) as applied to Plaintiff provided:

             Subject to section 843 of this title, no
             person charged with having committed, while
             in a status in which he was subject to this
             chapter, an offense against this chapter,
             punishable by confinement for five years or
             more and for which the person cannot be tried
                                                                     8


           Defendants do not rely on the applicability § 803(a).

Instead, they argue jurisdiction was never lost over Plaintiff

upon his honorable discharge from the regular component because

his discharge was handled "simultaneously" with his acceptance of

a reserve commission.    As such, they assert there was no break in

service.   We undertake our review beginning with the historical

development of modern court-martial jurisdiction.



                        2. The Hirshberg Case
           Our analysis of modern court-martial jurisdiction

originates with United States ex rel. Hirshberg v. Cooke, 336

U.S. 210 (1949).   Hirshberg, a naval enlisted man, while serving

a second term of enlistment, was served with charges directing

his trial by court-martial.    The charges stemmed from misconduct

that occurred during his prior term of enlistment.    The

government alleged court-martial jurisdiction under Article 8

(Second) of the Articles for the Government of the Navy, which

provided that "such punishment as a court-martial may adjudge may

be inflicted on any person in the Navy . . . guilty of

maltreatment of, any person subject to his orders."    The

government contended that this language authorized the court-

martial for Hirshberg's conduct during a prior enlistment because

           in the courts of the United States or of a
           State, a Territory, or the District of
           Columbia, may be relieved from amenability to
           trial by court-martial by reason of the
           termination of that status.


10 U.S.C. § 803(a) (1988), amended by 10 U.S.C. § 803(a) (1992).
                                                                    9


Hirshberg was "in the Navy" when the offense was committed and

when he was tried. Id. at 212-13.
          The government conceded that had Hirshberg not re-

enlisted he would not have been subject to court-martial because

of his break in service.     However, the Court pointed out that

making such concession while "urging such a literal construction

of article 8 (Second) expose[d] the whimsical and uncertain

nature of the distinctions that would mark the boundaries of

court-martial powers." Id. at 213.     Additionally, the Court

reasoned that "[j]urisdiction to punish rarely, if ever, rests

upon such illogical and fortuitous contingencies." Id. at 214.

Thus, out of Hirshberg came the doctrine that military

jurisdiction over an individual for offenses committed during a

prior period of enlistment or obligated service lapses after the

discharge for that period.     Today, "[d]espite the enactment of

the Uniform Code of Military Justice and various amendments to

the Code, Hirshberg remains binding precedent." United States v.

Cortte, 36 M.J. 767, 769 (N.M.C.M.R. 1992)(citing United States

v. Clardy, 13 M.J. 308 (C.M.A. 1982)).      It is the Hirshberg

doctrine that applies throughout this appeal.

                  3.   Plaintiff's Military Obligation

          In Defendants' memoranda of law, adopted by the

district court as its rationale, it is continually argued that

Plaintiff's discharge was "conditioned" upon further military

service, to wit, his acceptance of a reserve commission.     This

was an attempt to show the absence of a complete break in status

under the Code.    However, this simply is not the case.   At the
                                                                    10


time Plaintiff entered the Marines, he had a statutory obligation

of six years of service. See 10 U.S.C. § 651.    After completion

of these six years, Plaintiff had no further military obligation.

Consequently, he submitted his resignation, was honorably

discharged, and accepted a reserve commission.   Discharge orders

were issued to reflect such facts.

          If Plaintiff decided not to accept the reserve

commission, new orders would have been issued honorably

discharging him with no further military obligation. See Letter

from Asst. U.S. Attorney Brysh to Third Circuit Court of Appeals

2 (Oct. 19, 1995) (On file with Clerk's office) [hereinafter

Brysh Letter].   In a letter from the Commandant of the Marine

Corps to Plaintiff regarding Plaintiff's resignation, the

Commandant stated:
               Your request for resignation . . . is approved. In
          response to your request, you have been considered for
          and are tendered a Marine Corps Reserve commission.

                 . . . .

          . . . Should you not desire the Reserve commission
          tendered you, the Commandant of the Marine Corps (MMSR-
          3) must be notified immediately. These orders are
          cancelled and new orders will be issued.

Letter from Commandant of the Marine Corps to Captain Michael A.

Murphy (April 27, 1988). (App. at 184.)   There is no indication

from any source in the record that a decision by Plaintiff not to

request the reserve commission would have changed his military

obligation.

          The following discussion contained in the Navy's

Courts-Martial Regulations also supports Plaintiff's position:
                                                                  11


          A member of a regular or reserve component remains
          subject to court-martial jurisdiction after leaving
          active duty for offenses committed prior to such
          termination of active duty if the member retains
          military status in a reserve component without having
          been discharged from all obligations of military
          service.

          . . . A "complete termination" of military status
          refers to a discharge relieving the servicemember of
          any further military service. It does not include a
          discharge conditioned upon acceptance of further
          military service.


Discussion to Rules for Courts-Martial 204(d) (1995) (emphasis

added).   Moreover, Plaintiff's Honorable Discharge Certificate

contains no conditions to discharge. (App. at 55.)   Lastly, it is

indicated in a Memorandum to the Secretary of the Navy that

Plaintiff requested a reserve commission which was "Not

Obligated." (App. at 60.)   Thus, Plaintiff's military obligation

was completely terminated in that his discharge was not

conditioned on further military service, i.e., acceptance of a

reserve commission.

           In an attempt to show continuing jurisdiction over

Plaintiff and avoid the application of Hirshberg, Defendants now
contend on appeal that because Plaintiff chose to submit his

resignation with a request for a reserve commission, his

resignation and acceptance of commission as a reserve officer

were "handled as a single transaction."   Brysh Letter at 2.

Therefore, they argue, there was no lapse in military service and

Plaintiff remained subject to court-martial jurisdiction.

Defendants have cited no authority to support their position nor

has any come to our attention.   Even if we were to assume that
                                                                     12


Plaintiff's resignation and acceptance of a reserve commission

were handled as a "single transaction," his status under the Code

still lapsed upon his honorable discharge from the regular

component.

           Additionally, Plaintiff's situation is unlike those

cases holding that there is no interruption in one's "status

subject to the Code" upon an early discharge for the purpose of

reenlistment. See, e.g., Clardy, 13 M.J. at 315-16.
             Defendants also attach some relevance to the fact that

Plaintiff remained a commissioned officer, albeit a reservist.

However, this fact is of no consequence.     For it is not "status"

as a officer which is determinative of court-martial

jurisdiction; rather, it is status as a person belonging to the

general category of persons subject to the Code. See United

States v. Poole, 20 M.J. 598, 600 (N.M.C.M.R. 1985); see also

United States v. Spradley, 41 M.J. 827, 830 (N.M.C.C.A 1995)

(noting "`subject to recall' is not the same as `subject to the

Code'").

             It is apparent to this Court that Plaintiff was under

no obligation to accept a reserve commission.    When discharged,

Plaintiff's status as a person subject to the Code "completely

terminated" upon his separation from the regular component,

notwithstanding his reserve affiliation.    Moreover, Plaintiff did

not join a reserve unit for more than three months after his

discharge from the regular component.    This alone evidences a

clear break in status under the Code.    Accordingly, we hold that

at the moment Plaintiff's discharge from the regular component
                                                                   13


became effective, his status as a person subject to the Code

terminated subject only to a subsequent restoration of that

status through possible applicable statutory exceptions.    We turn

to that possibility.



                       4.   Title 10 U.S.C. § 803

          Title 10 U.S.C. § 803 is entitled "Jurisdiction to try

certain personnel."    The section contains exceptions to Hirshberg
when military jurisdiction is terminated by a discharge at the

end of a period of enlistment or obligated service.   Because of

his complete termination in status subject to the Code, Plaintiff

argues that to have continuing jurisdiction over him, he must be

brought within the application of 10 U.S.C. § 803(a) (1988). See

supra note 1.   Before its recent amendment which is not

applicable to the present facts, § 803(a) acted as a grant of

continuing jurisdiction, notwithstanding a discharge, when the

offense committed (1) was punishable by five years or more of

confinement, and (2) was not triable in any federal or state

court.

          It is noteworthy that "[t]he language of [10 U.S.C.

§803(a)] was drawn to cover only the most serious offenses and

restricted to those instances in which the guilty would otherwise

escape trial or punishment in any American courts." United Sates

ex rel. Toth v. Quarles, 350 U.S. 11, 27 (1955) (Reed, J.,

dissenting).    Significantly, we note that § 803(a) was never

tendered by Defendants as a basis for jurisdiction.
                                                                   14


          Plaintiff ultimately was charged with the following

violations of the UCMJ: 1) Conspiracy, 2) Fraudulent Separation,

3) Violation or Failure to Obey Lawful General Order or

Regulation and Dereliction in Performance of Duties, 4) False

Official Statement, and 5) Conduct Unbecoming an Officer and a

Gentleman. (See App. at 199-202 (General Court-Martial Order
containing charges.)   As part of a plea agreement, Plaintiff

pleaded guilty to charges three and five.   The remaining charges

were dismissed. Id.    Of the five charges, only two of the five

were punishable by confinement for five years, i.e., Fraudulent

Separation and False Official Statement. See Part IV of the

Manual for Courts-Martial ¶¶ 8(e) & 31(e) and Appendix 12.4

          The charge for Fraudulent Separation is a separate

exception to Hirshberg and forms the basis for jurisdiction under

10 U.S.C. § 803(b).5   However, a conviction for such offense is


4
  A review of the allegations in Charge I (Conspiracy), appears to
indicate that the offense which is the subject of the conspiracy
was for the offenses described in Charge III (Violation or
Failure to Obey Lawful General Order or Regulation and
Dereliction in Performance of Duties). (App. at 199-200.) The
maximum punishment for conspiracy is the maximum punishment
authorized for the offense which is the object of the conspiracy.
See Part IV of the Manual for Courts-Martial ¶ 5(e). Under our
analysis, the charge of conspiracy in this case would carry with
it a maximum punishment of two years and six months. (See App. at
70 (Defendants' Response to Plaintiff's First Request for
Admissions and Interrogatories).)
5
  Section 803(b) provides:
           Each person discharged from the armed forces
           who is later charged with having fraudulently
           obtained his discharge, is, subject to
           section 843 of this title (article 43),
           subject to trial by court-martial on that
           charge . . . . Upon conviction of that charge
           he is subject to trial by court-martial for
                                                                     15


needed under § 803(b) before a servicemember can be tried for

other prior offenses.     Hence, we do not feel it appropriate to

consider the charge of Fraudulent Separation when reviewing the

applicability of § 803(a).6

          As to the charge of making a false official statement,

we find no evidence in the record to show that Plaintiff could

not have been tried in another court in the United States for an

offense of similar import.     Accordingly, we hold that Plaintiff's

case does not fall within the statutory exception of § 803(a).



                 B.   Plaintiff's Recall Under § 802(d)
          Defendants invoked 10 U.S.C. § 802(d) to achieve

personal jurisdiction over Plaintiff and subject him to trial by

court-martial.    They contend that § 802(d) "expressly authorizes

the recall of reservists for investigation and court-martial with

respect to offenses committed on active duty" even if committed

in the regular component.     Of course, in Plaintiff's case, this

argument must presuppose that there was no break in Plaintiff's

           all offenses under this chapter committed
           before the fraudulent discharge.
10 U.S.C. § 803(b) (1988).
6
  It appears that Plaintiff initially was not charged with
Fraudulent Separation. See Murphy v. Garrett, 729 F. Supp. 461,
471 n.12 (W.D. Pa. 1990). We do not feel compelled to address
the applicability of § 803(b) because the record indicates
§802(d) was used by Defendants as the basis for jurisdiction over
Plaintiff. More important, the charge for Fraudulent Separation
was never adjudicated in the military court but was dismissed as
part of the plea agreement. Thus, if § 803(b) was used to effect
jurisdiction over Plaintiff, we would question whether, under the
present circumstances, the military had jurisdiction to convict
Plaintiff on the two charges to which he ultimately pleaded
guilty in that the jurisdictional prerequisite of § 803(b), i.e.,
a conviction for Fraudulent Separation, was never met.
                                                                   16


status under the Code upon his "simultaneous" resignation from

the regular component and acceptance of a reserve commission.

However, we have rejected this position.

          The only other plausible argument for continuing

jurisdiction over Plaintiff is that § 802(d) acts as an

independent exception to Hirshberg.   We note that Defendants have

never expressly argued that § 802(d) acts as such an exception.

But cf. Murphy v. Garrett, 29 M.J. 469, 472 (C.M.A. 1990)

(Everett, C.J., and Sullivan, J., concurring).   Instead,

Defendants have conceded that had Plaintiff experienced a two-day

lapse in time between his discharge and acceptance of the reserve

commission, court-martial jurisdiction would have been lost.

Obviously, this concession militates against Defendants' position

because, as we noted earlier, the Supreme Court expressly stated

in Hirshberg that, "jurisdiction to punish rarely, if ever, rests

upon such illogical and fortuitous contingencies." Hirshberg, 336

U.S. at 214.   Despite our earlier holding that Plaintiff's status

under the Code terminated upon his discharge from the regular

component, we feel compelled to ask whether § 802(d) is an

exception to Hirshberg.

          Section 802(d) provides a mechanism for the recall of

reservists to active duty when the offense was committed while

the member was (A) on active duty; or (B) on inactive duty

training. See 10 U.S.C. § 802(d)(1) & (2) (1988).   Defendants

argue that "active duty" means any period of active duty

performed by Plaintiff.   We observe that the term "active duty"

in § 802(d)(2)(A) can support the argument that Plaintiff is
                                                                   17


subject to military jurisdiction for the offenses previously

committed while on active duty in the regular component. However,

§ 802(d)(2)(A), when read in light of the former §803(a), could

just as well support the argument that the Marines could not

recall Plaintiff for offenses committed prior to his honorable

discharge from the regular component unless an exception can be

met, i.e., the two requirements of § 803(a). Cf. Hirshberg, 336
U.S. at 261.

           In the Court of Military Appeals in this case, the

court found that the term "active duty" should be given its plain

and ordinary meaning and encompass active duty in both the

regular and reserve components. Murphy, 29 M.J. at 470.    However,

with the exception of Murphy, there is no case law interpreting

"active duty" in § 802(d)(2)(A).    We recognize that ruling of the

military court as persuasive authority, nonetheless, we are not

bound by its holdings.   Necessarily then, we undertake the task

of statutory interpretation.

           The Supreme Court has repeatedly stated: "Where . . .

the resolution of a question of federal law turns on a statute

and the intention of Congress, we look first to the statutory

language and then to the legislative history if the statutory

language is unclear."    Blum v. Stenson, 465 U.S. 886, 896 (1984);

see also Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir.

1995).   Contrary to Defendants' position, we find the language of

§ 802(d) unclear.    Hence, we turn to the statute's legislative

history.

                1.   Legislative History of § 802(d)
                                                                    18


             In 1984, the Court of Military Appeals decided the case

of United States v. Caputo, 18 M.J. 259 (C.M.A. 1984).     Caputo, a

reservist on active duty, was arrested and held by civilian

authorities.     Weeks later, Caputo reported for his regularly

scheduled inactive duty training.      He was advised of the charges

against him stemming from the earlier incident and ordered into

pretrial confinement.     Caputo's commanding officer extended

Caputo's inactive-duty training status for an indefinite time to

facilitate prosecution of the charges and Caputo contested court-

martial jurisdiction. Id. at 261.

             The Court of Military Appeals held that at the time of

the alleged offense, Caputo was in a status which subjected him

to military jurisdiction.      However, that status was terminated by

his release from active duty training, notwithstanding, his

subsequent return to inactive-duty training.     This "hiatus" of

being subject to the Code precluded court-martial jurisdiction

unless an exception to the Hirshberg rule applied. Id. at 266. As

no exception applied, personal jurisdiction was found to be

lacking.     The court called on Congress to consider "whether

express authority should be granted for the Armed Services to

order a reservist to active-duty for purposes of court-martial

with respect to an offense that occurred during an earlier period

of military service and which falls within the purview of Article

3(a)." Id. at 267-68.     Congress responded to the court's

suggestion with the enactment of both §§ 802(d) and 803(d).7

7
    Section 803(d) provides:
                                                                  19


          The legislative history of §§ 802(d) and 803(d)

indicates that the amendments "would conform [the UCMJ] to the

military's total-force policy by subjecting members of the

reserve components in Federal status to the same disciplinary

standards as their regular-component counterparts." H.R. Rep. No.

718, 99th Cong., 2d Sess., at 225 (1986)[hereinafter "H.R.

Rep."].   Among other things, the House Report of the legislation

indicates:
          The proposed amendments . . . permit the call
          or order to active duty of a member of the
          reserve component for the purpose of
          disciplinary action; and correct the lapse of
          jurisdiction over an offense committed by a
          reservist during a period of duty that ends
          before the offense is discovered.

                 . . . .

               The amendments would also permit the
          call or order to active duty members of
          reserve components for investigation under
          Article 32 [of the UCMJ], for trial by court-
          martial, or for nonjudicial punishment.
          Presently, no statutory authority exists to
          call or order reservists to active duty
          solely for disciplinary purposes, even when
          they are otherwise amenable to the
          jurisdiction of the [UCMJ].

               The amendments would further, bridge the
          jurisdictional gap identified in United
          States v. Caputo . . . .



             A member of a reserve component who is subject to this
             chapter is not, by virtue of the termination of a
             period of active duty or inactive-duty training,
             relieved from amenability to the jurisdiction of this
             chapter for an offense against this chapter committed
             during such period of active duty or inactive-duty
             training.

     10 U.S.C. § 803(d) (1992).
                                                                    20


H. Rep. at 226-27.

           The legislative history of these amendments is quite

telling.   This history coupled with the language of the

amendments leads us to believe that §§ 802(d) and 803(d) were

intended to work jointly and enacted in direct response to Caputo
to "bridge the jurisdictional gap" presented in that case.    The

enactment of § 802(d) was to provide a mechanism to call or order

reservists to active duty solely for disciplinary purposes in

cases such as Caputo in order to satisfy the personal

jurisdiction requirement of court-martial jurisdiction.    And, the

enactment of § 803(d) created one more exception to Hirshberg;

this time to act as a continuing grant of jurisdiction over

reservists for offenses committed while on active duty "in the

reserves," notwithstanding, a termination of such active duty.

Nowhere is there evidence of a congressional intent to subject a

reservist to court-martial jurisdiction for offenses committed on

active duty while in the regular component.   More   to the fact,

the legislative history shows no evidence of an intent to reach

beyond the situation faced in Caputo to reach a result

inconsistent with Hirshberg.

           Curiously, in the Court of Military Appeals in Murphy,

the concurrence suggested that while the exercise of military

jurisdiction over Plaintiff may be inconsistent with the result

reached in Hirshberg, Congress was free to change such result. 29

M.J. at 472 (Everett, C.J., and Sullivan, J., concurring).

Apparently, the concurrence believed that Congress had indeed

done so.   However, the congressional history shows that Congress
                                                                 21


did not intend to change the result in Hirshberg.   The House

Report on the legislation reads:
          With respect to the proposed amendment of
          Article 3, the committee intends not to
          disturb the jurisprudence of United States ex
          rel. Hirshberg v. Cooke, 336. U.S. 210
          (1949).


H. Rep. at 227.

          Thus, we hold the term "active duty" in 10 U.S.C.

§802(d)(2)(A) refers to those periods of active duty served by a

reservist while performing such duty in the reserves.    Moreover,

§ 802(d) does not act as an independent exception to the

Hirshberg doctrine.

                           III.   CONCLUSION

          The order of the district court will be vacated, and

the case remanded for further appropriate proceedings.



                      ___________________________
                                                                  22


Michael A. Murphy v. John H. Dalton et. al., No. 95-3183


MANSMANN, dissenting.

          I respectfully dissent because I would hold that the

military did, in fact and in law, have continuing jurisdiction

over Murphy to subject him to recall to active duty and

subsequent court-martial.   Consistent with Supreme Court

jurisprudence, I find that the circumstances surrounding Murphy's

discharge from the regular component of the Marine Corps and his

acceptance of a commission in the Marine Corps Reserve did not

constitute a true break in service.   Assuming arguendo that such

a break did occur, however, I would hold that Congress intended,

with the enactment of the 1986 amendments to 10 U.S.C. §802 and

10 U.S.C. §803, more specifically 10 U.S.C. §802(d) and 10 U.S.C.

§803(d), to integrate the reserve components into the total-force

policy of the military by subjecting members of the reserve

components to the same disciplinary standards as their regular

component counterparts.



                                I.

           Irrespective of whether Murphy did not have further

military obligation to the Marine Corps as a matter of law, the

fact remains that, as the majority opinion states, he requested

and accepted, simultaneously with his discharge, a commission as

a reserve officer and transferred to the Marine Corps Reserve.

Therefore, consistent with United States ex rel. Hirshberg v.

Cooke, 336 U.S. 210 (1949), no actual physical break in service
                                                                  23


occurred which would have created a lapse in status during which

Murphy was not subject to military jurisdiction.     This is

consistent with the Supreme Court's holding in Hirshberg that the
Navy did not have court-martial jurisdiction over a member of its

regular component who was honorably discharged and who re-

enlisted the next day for offenses allegedly committed during an

initial term of enlistment.   The fact that Murphy did not join a

reserve unit immediately is not compelling in that he accepted

the commission as a reserve officer simultaneously with his

discharge from the regular component.   Further, although

Plaintiff received a DD-214 (Honorable Discharge Certificate),

the Uniform Code of Military Justice delineates exceptions to the

rule that "delivery of the discharge certificate terminates

status."   These exceptions include re-enlistment discharges,

Article 3(a) offenses8, and fraudulent discharge.9    I would first

8
  We note that the government does not raise the issue of
continuing jurisdiction under §803(a) in its brief as all of the
charges to which Murphy pled guilty pursuant to the plea
agreement individually carried a period of confinement of less
than five years. However, the language of §803(a) specifically
addresses those actions with which a "...person [is] charged with
having committed...." and not the charges for which a person is
ultimately convicted.
9
           Fraudulent discharge involves the member of the
military who obtained the discharge on fraudulent pretenses. It
does not appear that the government is relying on this exception
in this appeal.

          As noted in the majority opinion, the record is not
clear as to whether the charges as originally raised against
Murphy contained the charge of Fraudulent Discharge. The General
Court Martial-Order dated November 5, 1990 which listed the
disposition of all of the charges as ultimately raised against
Murphy does contain a charge for alleged false representations
and concealment of facts material to separation from the Funded
Legal Education Program and subsequent misrepresentations to a
                                                                   24


apply the exception for re-enlistment discharges, which refers to

the practice of discharging a member of the military at the

termination of the period of enlistment or earlier, and then

immediately re-enlisting the member.

          With respect to the second exception to the Code rule

that "delivery of the discharge certificate terminates status" --

Article 3(a) offenses, 10 U.S.C. §803 permits military

prosecution if the member of the military is not on active duty

status at the time of the court-martial but the alleged offense

which occurred prior to the discharge is not actionable in any

civilian court and the punishment for the action is incarceration

for a period of five or more years.    Of the charges raised

against Murphy, fraudulent separation and false official

statements individually carried a punishment of five or more

years confinement.   In addition, fraudulent separation is not a

charge for which a person may be tried "in the courts of the

United States or of a State, a Territory, or the District of

Columbia..." pursuant to 10 U.S.C. §803(a).10   As a result, I

would hold that the jurisdictional requirements of §803(a) were

met and Murphy was indeed a member of the military subject to the



superior which procured a separation from the regular component
of the United States Marine Corps.

           Pursuant to a plea agreement, Murphy pled guilty to two
of the five charges; the remaining three charges, including the
charge of fraudulent discharge, were withdrawn by the Government.
10
  The discussion of the charge of fraudulent discharge is limited
herein as it applies to the Article 3(a) offenses exception and
not as the charge may apply to a basis of jurisdiction under 10
U.S.C. §803(b).
                                                                 25


Uniform Code of Military Justice both at the time the alleged

offenses were committed and at the time of the court-martial.

          Thus, Murphy was eligible to be ordered to active duty

status because he did not have a break in service and further

because he falls squarely within exceptions to the delivery of

the discharge certificate rule.



                              II.

          Assuming arguendo that Murphy had a break in service

between his active duty/regular component status and his reserve

officer status, I would still hold that he could be ordered to

active duty for trial by court-martial.   Section 802(d)(1)

specifically provides that:
          (d)(1) A member of a reserve component who is not on
          active duty and who is made the subject of proceedings
          under section 815 (article 15) or section 830 (article
          30) with respect to an offense against this chapter may
          be ordered to active duty involuntarily for the purpose
          of --

               (A) investigation under section 832 of this title
               (article 32);
               (B) trial by court-martial; or
               (C) nonjudicial punishment under section 815 of
               this title (article 15).

          (2) A member of a reserve component may not be ordered
          to active duty under paragraph (1) except with respect
          to an offense committed while the member was --
               (A) on active duty; or
               (B) on inactive-duty training, but in the case of
               members of the Army National Guard of the United
               States or the Air National Guard of the United
               States only when in Federal service.
                            *   *   *
                                                                   26


The plain language of the statute sets forth clearly that Murphy,

as "a member of a reserve component" may be ordered to active

duty if he committed an offense "while [he] was on active duty."

           I cannot find any support in the statute for the

majority's holding that the term "active duty" should apply only

to periods of active duty while Murphy was a member of the

reserve component and not the regular component; the language of

the statute does not limit or qualify "active duty" in any

manner.   Indeed, the legislative history of §802(d) as well as

§803(d) indicates that Congress intended to promote a full

amalgamation of the reserve component with the regular component

by expanding court-martial jurisdiction for the reserve

component.   It was the intent of Congress, with the enactment of

the 1986 amendments to §802 and §803, to update court-martial

jurisdiction as it applies to members of the reserve component;

("The provisions of the UCMJ addressing jurisdiction over

reservists were drafted more than 35 years ago.   At that time,

the reserve was viewed as a separate force."   H. Rep. 99-718,

99th Cong., 2d Sess. p. 226.)   Therefore, it would be

inconsistent with the total-force concept to hold that a lapse in

court-martial jurisdiction occurs each time a member of the

military transfers between components.

           Most importantly, the House Report states that "[t]he

proposed amendments would . . . permit the call or order to

active duty of a member of a reserve component for the purpose of

disciplinary action; and correct the lapse of jurisdiction over

an offense committed by a reservist during a period of duty that
                                                                     27


ends before the offense is discovered."   Id. at 226.   This was in

direct response to the decision of the Court of Military Justice

in United States v. Caputo, 18 M.J. 259 (C.M.A. 1984), in which

jurisdiction over a reservist was relinquished as he was alleged

to have committed offenses against the UCMJ during one period of

active duty but the offenses were not discovered or acted upon by

the military until a subsequent period of active duty.    The

Caputo example of "fortuitous circumstances" -- and Murphy's

situation -- are the types of instances which Congress sought to

address and remedy with the 1986 amendments to the statutes.

          We recognize the comment in the House Report that

"[w]ith respect to the proposed amendment of Article 3, the

committee intends not to disturb the jurisprudence of

[Hirshberg]."   H. Rep. 99-718, 99th Cong., 2d Sess. p. 227. While

the Supreme Court in Hirshberg held that a break in service

terminates court-martial jurisdiction over a member of the

military, our task is to consider the statutes and amendments of

§802 and §803 applicable to Murphy to analyze properly his

situation as a present day member of the reserve component.     In

finding that Murphy was a member of the military subject to the

UCMJ both at the time the alleged offenses were committed and at

the time he was called to court-martial, we are not disturbing

the jurisprudence of Hirshberg because Hirshberg was not subject

to Article 3(a) offenses. As the 1986 amendment §803(d) states:
          A member of the reserve component who is
          subject to this chapter is not, by virtue of
          the termination of a period of active duty or
          inactive-duty training, relieved from
          amenability to the jurisdiction of this
                                                            28


          chapter for an offense against this chapter
          committed during such period of active duty
          or inactive-duty training.

          10 U.S.C. §803(d)

          Accordingly, I would affirm the decision of the

district court.
