                          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:


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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




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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.




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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;



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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



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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.


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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


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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.




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