              UNITED STATES, Appellant/Cross-Appellee

                                    v.

               Steven S. MORITA, Lieutenant Colonel
             U.S. Air Force, Appellee/Cross-Appellant

                              No. 14-5007

                       Crim. App. No. ACM 37838

       United States Court of Appeals for the Armed Forces

                       Argued October 20, 2014

                        Decided March 16, 2015

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN, STUCKY, and OHLSON, JJ., joined.


                                 Counsel


For Appellant/Cross-Appellee: Major Rhea A. Lagano (argued);
Lieutenant Colonel Katherine E. Oler and Gerald R. Bruce, Esq.
(on brief); Lieutenant Colonel C. Taylor Smith.

For Appellee/Cross-Appellant: Matthew A. Siroka, Esq. (argued);
Captain Christopher D. James (on brief).


Military Judge:   David Castro



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Morita, No. 14-5007/AF


       Judge RYAN delivered the opinion of the Court.

       The facts in this case are quite complicated and set forth

in detail in United States v. Morita, 73 M.J. 548, 551-53 (A.F.

Ct. Crim. App. 2014).    However, the relevant facts and related

legal questions are relatively straightforward. 1   Appellee/Cross-

Appellant (Appellee), a reservist, used his knowledge of the

military travel reimbursement system, and took advantage of his

supervisor’s relative lack of knowledge of the system, to file

false claims of travel reimbursement totaling over $120,000.

Id. at 551-52.    To do this, he forged signatures on travel

vouchers and reimbursement documents, as well as travel orders,

active duty orders, and inactive duty training orders.    Id. at

552.    The question is during what period or periods of his

misconduct was Appellee subject to the Uniform Code of Military

Justice (UCMJ), since, there is no jurisdiction over a reservist

1
  This Court granted review of a certified issue and a granted
issue respectively:

       I.   WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
            WHEN IT FOUND THE COURT-MARTIAL LACKED SUBJECT MATTER
            JURISDICTION AND WHETHER THE AIR FORCE COURT OF
            CRIMINAL APPEALS ABUSED ITS DISCRETION WHEN IT REFUSED
            TO GRANT THE GOVERNMENT’S MOTION TO SUBMIT DOCUMENTS.

       II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
           BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL
           JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR
           INACTIVE DUTY TRAINING ORDERS AND BY FINDING THAT
           COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY
           PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY
           TOURS.


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United States v. Morita, No. 14-5007/AF


who commits an offense when not in a military status -- i.e., on

active duty, inactive duty training, or serving with the armed

forces.   See Article 2(a), (c), UCMJ, 10 U.S.C. § 802(a), (c)

(2012); United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003).

     First, we agree with the United States Air Force Court of

Criminal Appeals (CCA) that Appellee was subject to court-

martial jurisdiction under Article 2(a), UCMJ, for all offenses

committed during the periods Appellee was on active duty

pursuant to orders that the Government demonstrated were valid

by a preponderance of the evidence.    Morita, 73 M.J. at 557-59.

     Second, we are faced with a question of first impression --

can a reservist place himself under court-martial jurisdiction

under Article 2(a), UCMJ, by forging either active duty orders

or inactive duty training orders?    We answer this question in

the negative.   Under Article 2(a)(1), UCMJ, the military justice

system has subject matter jurisdiction over a reservist when

that reservist is lawfully ordered to duty or training in the

armed forces.   When a reservist forges his orders, he is not

“lawfully” ordered to duty or training.    Id.   Nor, with respect

to Article 2(a)(3), UCMJ, is there any evidence that Appellee

actually was “on inactive-duty training” pursuant to the forged

orders.   Article 2(a), UCMJ (emphasis added).

     Third, could a reservist nonetheless be amenable to court-

martial jurisdiction under Article 2(c), UCMJ, under forged

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United States v. Morita, No. 14-5007/AF


orders or during other periods, based solely on his capacity as

a reserve officer, without more?        Under Article 2(c), UCMJ, and

Phillips we conclude that the answer is no given the facts of

this case.   Both require that the reservist be, as a threshold

matter, “serving with” the armed forces at the time of the

misconduct, and meet the other four criteria set forth in the

statute.   In this case, the CCA found that the Government did

not establish either that Appellee was serving with the armed

forces during any period not covered by Article 2(a), UCMJ,

jurisdiction or that the other statutory criteria were met for

Article 2(c), UCMJ, jurisdiction.       Morita, 73 M.J at 557-58,

560-61.


                               I.   FACTS

      The below rendition of facts is taken in large part from

the CCA’s opinion in Morita, 73 M.J. at 551-53.        Appellee was a

reservist assigned to work at the Health Facilities office in

the Western Region (HFO-WR).    Id. at 551 (referring to the HFO-

WR as the “Health Services Office, Western Region”).       As part of

his duties, Appellee traveled frequently to various medical

units within the Western Region to aid in the planning, design,

and development of construction projects for medical facilities.

Id.   He was very experienced with the duties and operations of

the HFO-WR because he had been assigned there as an active duty


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United States v. Morita, No. 14-5007/AF


officer from 1998 until 2003.   Id.     Notably, he was the only

reservist assigned to the unit.   Id.

     At the beginning of each fiscal year, Appellee received

authorization to work 120 military personnel appropriation (MPA)

“man-days” on active duty.   Id. at 552.    Appellee’s supervisor

during the charged time period testified to requesting these 120

MPA man-day periods of active duty.     Although the MPA man-day

tours were approved on the AF Form 49s for a “block” of days,

Appellee and his supervisors had an informal agreement that he

could perform 120 days of work intermittently and non-

consecutively throughout the entire fiscal year, rather than

during the block of time specified on the AF Form 49s.

     The CCA found that beginning in roughly November 2005 and

continuing until October 2008, Appellee took advantage of his

supervisor’s unfamiliarity with the process of approving

reservist travel orders and vouchers.     Id.   Some of his trips

during this time period were properly approved.     Appellee filed

numerous travel vouchers, however, for expenses he was not

entitled to incur while on these approved trips.     Moreover, some

of his travel during this time frame was not authorized.     To

accomplish this unauthorized travel, Appellee forged his

supervisors’ signatures on numerous travel orders, travel




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United States v. Morita, No. 14-5007/AF


vouchers, reimbursement documents, active duty orders, and

records of inactive duty training (IDT). 2

       Appellee’s false claims for travel reimbursement totaled

$124,664.03, and he forged 510 signatures or initials on more

than 100 documents.    Id. at 553.




2
    Specifically, the CCA found:

    A lengthy investigation revealed the appellant forged
    signatures on the following documents:
       — Department of Defense (DD) Form 1351: Travel voucher
       used to claim reimbursement for expenses such as lodging,
       airline tickets, rental cars, mileage, tolls, parking, per
       diem entitlement, and similar costs.
       — DD Form 1610: Request and authorization for temporary
       duty travel of Department of Defense personnel. Used to
       request, review, approve, and account for official travel.
       — Air Force (AF) Form 40A: Record of individual IDTs.
       Used to record a reserve member’s IDT periods for payment
       and/or points for years of service credit, and determine
       the member’s fulfillment of the requirements for retention
       in the Ready Reserve.
       — AF Form 938: Request and authorization for active duty
       training/active duty tour. Used to request and authorize
       Air Force reservist tours of active duty as well as acting
       as a temporary duty travel order.
       — AF Form 973: Request and authorization for change of
       administrative orders. Used to change orders previously
       issued.
       — Memorandum for Record (MFR): Various MFRs authorizing
       exceptions to normal expense limitations, such as exceeding
       the maximum allowable lodging expense for a given location.

Morita, 73 M.J. at 552-53.

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United States v. Morita, No. 14-5007/AF


                     II.    CHARGES AND SENTENCE

     Appellee was charged and convicted by a panel of officer

members of seven specifications of forgery, one specification of

larceny of government money, and one specification of forgery of

signatures in connection with claims, in violation of Articles

123, 121, and 132, UCMJ, 10 U.S.C. §§ 923, 921, 932 (2012).

Morita, 73 M.J. at 551.    The members sentenced Appellee to

dismissal, confinement for twelve months, a fine of $75,000, and

contingent confinement for an additional twelve months in the

event the fine was not paid.    The convening authority approved

the sentence as adjudged.    Id.



                  III.    CHALLENGE OF JURISDICTION

     In his Article 32, UCMJ, 10 U.S.C. § 832 (2012), report,

the investigating officer noted that there were unresolved

issues related to jurisdiction.    At trial, Appellee argued that

the Government had not established that he was subject to the

UCMJ under Article 2(a), UCMJ, or Article 2(c), UCMJ, during the

time the offenses were alleged to have occurred.      The Government

defended jurisdiction primarily on the grounds that Appellee

made the forgeries in his official capacity as a reserve

officer.   To support jurisdiction, the Government also submitted

the three approved applications for 120 MPA man–days for each

year in the charged time frame.

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United States v. Morita, No. 14-5007/AF


     The military judge denied Appellee’s motion to dismiss,

relying on Article 2(c), UCMJ, and United States v. Morse, No.

ACM 33566, 2000 CCA LEXIS 233, 2000 WL 1663459 (A.F. Ct. Crim.

App. Oct. 4, 2000) (unpublished).    Tellingly, “[t]he military

judge accepted the Government’s argument that it was not

necessary for the Government to prove [Appellee] committed the

charged misconduct while on active duty orders or while

performing IDTs.”   Morita, 73 M.J. at 554.   The military judge

concluded that “the appellant’s actions took place in his

capacity as a reserve officer, thereby establishing subject

matter jurisdiction based on this fact alone” and “that subject

matter jurisdiction was established pursuant to the four-part

test in Article 2(c), UCMJ, 10 U.S.C. § 802(c).”    Id.

     Appellee raised the issue of subject matter jurisdiction

again before the CCA, once more arguing that the Government had

failed to prove that he was subject to the UCMJ during the

charged time frame.   In ruling on jurisdiction, the CCA

identified three separate statuses that Appellee occupied during

the charged time frame:   (1) valid active duty status obtained

through authorized 120 MPA man-day tours, Morita, 73 M.J. at

558; (2) active duty status or inactive duty status based on

documents that contained forgeries, although there was no

evidence that Appellee actually reported for duty during the

time periods covered by the forgeries, id. at 559; and (3)

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United States v. Morita, No. 14-5007/AF


reserve status, held during the remainder of the charged time

frame.     Id. at 560.   The CCA held that the first two categories

conferred subject matter jurisdiction under Article 2(a), UCMJ.

Id. at 559.     Regarding the third category, the CCA found that

the record did not show enough facts to conclude that Appellee’s

activities as a reservist rose to the level of “serving with”

the armed forces under Phillips, 58 M.J. at 220, nor to show

that the remaining statutory criteria were fulfilled, and thus

there was no subject matter jurisdiction under Article 2(c),

UCMJ.     Morita, 73 M.J. at 560.   It rejected the military judge’s

reliance on dicta from Morse, which predicated jurisdiction not

on the plain language of Article 2, UCMJ, but rather on the

commission of any act “related to” military duties.     Morita, 73

M.J. at 561-62.

        The CCA dismissed two of the seven specifications of the

Article 123, UCMJ, forgery offense for lack of subject matter

jurisdiction and modified the remaining five specifications to

reflect only the forgeries committed while the court-martial had

subject matter jurisdiction.     Id. at 568-71.   The CCA also

dismissed the larceny offense because it could not determine if

the panel convicted Appellee of two or more larcenies at a time

when the court-martial had subject matter jurisdiction.     Id. at




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United States v. Morita, No. 14-5007/AF


563-64, 568.   The CCA reassessed the sentence, imposing

dismissal and confinement for three months. 3    Id. at 567-68, 571.



                          IV.   DISCUSSION

     We review questions of jurisdiction de novo.      United States

v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F. 2009).      “Court-martial

jurisdiction exists to try a person as long as that person

occupies a status as a person subject to the [UCMJ].”      Rule for

Courts-Martial 202 Discussion; see also Solorio v. United

States, 483 U.S. 435, 439-40 (1987) (holding that military

status is the sole test of jurisdiction); United States v.

Ernest, 32 M.J. 135, 139-40 (C.M.A. 1991).      For reservists,

military status is defined by and dependent upon Articles 2(a)

and 2(c), UCMJ, which prescribe two alternative bases for court-

martial jurisdiction.

     Article 2(a), UCMJ, jurisdiction for a reservist hinges on

whether the charged events occurred during active duty status or

IDTs.   Article 2(a)(1), UCMJ, applies to reservists “lawfully

called or ordered into, or to duty,” while Article 2(a)(3),


3
  The CCA also held that forgery under Article 123, UCMJ, is a
lesser included offense of the Article 132, UCMJ, offense --
forgery of signatures in connection with claims. Id. at 564-67.
Accordingly, the CCA set aside and dismissed the Article 132,
UCMJ, offense on the grounds that the two charges were
multiplicious. Id. at 566-67. Additionally, following a review
of the post-trial delay issue, the CCA approved “only so much of
the sentence as provides for a dismissal.” Id. at 568.
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United States v. Morita, No. 14-5007/AF


UCMJ, applies to “[m]embers of a reserve component while on

inactive-duty training.”    For the purposes of Article 2(a),

UCMJ, jurisdiction, “active duty is an all-or-nothing

condition.”    Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986).     A

reservist is subject to jurisdiction under Article 2(a), UCMJ,

“‘from the date[]’” of activation, and answerable under the UCMJ

for any offense committed thereafter.      United States v. Cline,

29 M.J. 83, 85-86 (C.M.A. 1989).      However, “Article 2(a)(1) does

not delineate how a person is lawfully called to active duty for

purposes of court-martial jurisdiction.”     Ernest, 32 M.J. at

139.    While Article 2(a)(3), UCMJ, has not been the subject of

much analysis, little analysis is required to conclude that the

operative statutory language refers to, and thus is limited to,

a “member[] of a reserve component” “while on inactive-duty

training.”    See Robinson v. Shell Oil Company, 519 U.S. 337, 340

(1997) (“Our first step in interpreting a statute is to

determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the

case.    Our inquiry must cease if the statutory language is

unambiguous . . . .”).    Second, Article 2(c), UCMJ, while not

referencing reservists at all, extends jurisdiction

“[n]otwithstanding any other provision of law” to “a person

serving with an armed force” who “(1) submitted voluntarily to

military authority; (2) met the mental competency and minimum

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United States v. Morita, No. 14-5007/AF


age qualifications . . . at the time of voluntary submission to

military authority; (3) received military pay or allowances; and

(4) performed military duties.”    “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.”    Phillips, 58 M.J. at 220;

see also United States v. McDonagh, 14 M.J. 415, 417 (C.M.A.

1983) (noting that Article 2(c), UCMJ, incorporated the

“constructive enlistment” concept this Court previously employed

when there was a formal defect in enlistment but the individual

served with an armed force).   But meeting that threshold

criterion of “serving with” does not obviate the need to satisfy

the additional statutory requirements, set forth in subsections

(c)(1)-(4), which include, inter alia, receipt of military pay

or allowances, and performance of military duties.    United

States v. Fry, 70 M.J. 465, 469 (C.A.A.F. 2012).

     When challenged, the Government must prove jurisdiction by

a preponderance of evidence.   United States v. Oliver, 57 M.J.

170, 172 (C.A.A.F. 2002).   The CCA noted that the record

contains three AF Form 49s establishing that Appellee was

approved to perform MPA active duty tours from November 14,

2005, to March 14, 2006; December 1, 2006, to March 20, 2007;

and October 1, 2007, to January 28, 2008.    Morita, 73 M.J. at

557-58.   Those were the dates for which he was actually credited

                                  12
United States v. Morita, No. 14-5007/AF


and compensated, and Appellant was not charged with forging the

AF Form 49s that approved his MPA tours.    Id. at 559 n.11.   The

CCA held that the three AF Form 49s introduced at the trial

level showing that Appellee was properly approved to perform

three 120 MPA man-day tours constituted sufficient proof that

Appellee was subject to court-martial jurisdiction under Article

2(a), UCMJ, for those three time periods.   Id. at 557-58.     The

CCA found that the record as to his military status and

performance of duties was “incomplete” for the remainder of the

charged time frame.   Id. at 558.

     We agree that the AF Form 49s established the dates of

Appellee’s active duty service, irrespective of any informal

arrangement made to permit him to work on other days for which

he was not compensated and to which the AF Form 49s did not

refer.   Cf. Cline, 29 M.J. at 87 (finding that the appellant was

under court-martial jurisdiction on a date for which he was

receiving pay regardless of the time at which he actually

reported).   Appellee was lawfully in an active duty status, and

subject to the UCMJ, pursuant to Article 2(a)(1) for offenses

committed during the three approved MPA tour periods.

     We do not agree that Appellee was otherwise subject to the

UCMJ under Article 2(a), UCMJ, during the remaining time frames.

The CCA noted that “[i]n its effort to prove [that] [Appellee]

committed forgery . . . the Government introduced a limited

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United States v. Morita, No. 14-5007/AF


number of documents that also contained evidence of [Appellee]’s

military status.”   Morita, 73 M.J. at 558; supra note 2.    These

documents were primarily purported records of IDTs.   Morita, 73

M.J. at 558.    The CCA determined that, regardless of whether

they were forged, these documents showed Appellee was in

military status during seven time frames under Article 2(a),

UCMJ, in addition to the three 120 MPA man-day tours. 4   Id.

     The CCA stressed that, other than the MPA periods of active

duty, and the forged orders, there was no other evidence

presented for the purpose of establishing Appellee’s military

status throughout the charged time periods.   Id.   Moreover, it

concluded that it did not matter if he actually performed

military duties in conjunction with forged orders, as “Article

2(a), UCMJ, conditions subject matter jurisdiction on the

member’s official status at the time of the offenses.     It does

not concern itself with how the member got into that status or

whether he was doing official Government business pursuant to

that status.”   Id. at 559.




4
  These documents purported to show that Appellee was on paid
active duty training or IDTs for the following time frames:
September 10, 2007, to September 12, 2007; February 11, 2008, to
February 15, 2008; February 18, 2008, to February 22, 2008;
February 25, 2008, to February 26, 2008; September 8, 2008, to
September 12, 2008; September 15, 2008, to September 19, 2008;
and September 22, 2008, to September 26, 2008. Morita, 73 M.J.
at 559.
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United States v. Morita, No. 14-5007/AF


     We are left to conclude, therefore, that the CCA based

Article 2(a), UCMJ, jurisdiction for these additional periods on

the mere fact of forged orders, without more.   While no prior

case from this Court establishes whether forged orders to active

duty or to IDTs may place a reservist within Article (2)(a),

UCMJ, we conclude that forged orders do not place a reservist in

such a status.

     Article 2(a)(1), UCMJ, requires that a member be “lawfully

called or ordered” to active duty.   A forged order to active

duty has no legal effect on the duty of the reservist to report

to active duty.   Cf. United States v. Harrison, 5 M.J. 476, 480

(C.M.A. 1978) (“In the present case, there is no doubt as to the

invalidity of the appellant’s original enlistment contract

[because he was underage] and its lack of legal effect to change

his status from civilian to sailor.”); Ryan v. Barkley, 342 F.

Supp. 362, 364-65 (E.D. Pa. 1972) (finding that an active duty

order issued contrary to the Marine Corps’ regulations was void

and granting a preliminary injunction staying activation of the

order).   Indeed, a forgery is the antithesis of a lawful order.

Cf. United States v. Watson, 69 M.J. 415, 417 (C.A.A.F. 2011)

(explaining that a “void administrative discharge, such as one

obtained by fraud,” has no legal effect and does not terminate

court-martial jurisdiction).   Further, Article 2(a)(3), UCMJ,

extends jurisdiction over members of the reserve component

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United States v. Morita, No. 14-5007/AF


“while on inactive-duty training.”    The forged orders did not in

fact place Appellee “on inactive-duty training,” and the record

does not show that he performed IDT training pursuant to the

forged orders during any of the periods referenced above.

Morita, 73 M.J. at 558.

     Nor can the understandable policy concerns detailed by the

CCA be dispositive of the legal question before us.   That only

reservists who meet the statutory requirements are subject to

the UCMJ reflects Congress’s determination that for other

misconduct they are subject to the jurisdiction of the civilian

courts.   See Phillips, 58 M.J. at 219-20 (“‘[Article 2(c)] is

not intended to affect reservists not performing active service

or civilians.’” (quoting S. Rep. No. 96-197, at 122-23 (1979)));

see also Morita, 73 M.J. at 560-61.    While this may deprive the

military of jurisdiction over reservists who fraudulently

obtained orders through forgery and benefited from them in some

instances, they may be prosecuted by a U.S. Attorney under any

one of several federal criminal and civil statutes and subjected

to both criminal sanction and civil forfeitures upon conviction.

See, e.g., False Claims Act, 31 U.S.C. §§ 3729-3733 (imposing

liability for defrauding government programs); False Statements

Accountability Act of 1996, 18 U.S.C. §§ 1001, 1515, 6005, 28

U.S.C. § 1365 (imposing liability for false statements or

representations in connection with government matters).

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United States v. Morita, No. 14-5007/AF


Congress is understandably chary of the exercise of military

jurisdiction over civilians unless they are, in fact, in a

military status under Article 2, UCMJ.    See Willenbring v.

Neurauter, 48 M.J. 152, 157-58 (C.A.A.F. 1998) (noting that the

military has no court-martial jurisdiction over former

servicemembers who have severed all ties with the military and

are not serving with an armed force); cf. United States v.

Denedo, 556 U.S. 904, 912 (2009) (stating that “it is for

Congress to determine the subject matter jurisdiction of federal

courts,” including Article I courts).    We do not think that a

forged order, without more, is sufficient to subject a reservist

not in an actual military status to military jurisdiction under

Article 2(a), UCMJ.   Cf. Solorio, 483 U.S. at 439.

     This leaves us to consider whether Appellee was nonetheless

subject to military jurisdiction under Article 2(c), UCMJ, for

any period during which forged orders purported to place him in

military status or any period, excepting the IMA tour days,

during which he was subject to military jurisdiction under

Article 2(a), UCMJ, during the charged offenses.    The threshold

consideration for this analysis is the phrase “serving with,”

Article 2(c), UCMJ, and it “has been used to describe persons

who have a close relationship to the armed forces without the

formalities of a military enlistment or commission.”   Phillips,

58 M.J. at 220 (citations omitted).

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United States v. Morita, No. 14-5007/AF


     Appellant was not subject to jurisdiction under Article

2(c), UCMJ, during periods for which the CCA found that the

Government did not proffer sufficient facts to show Appellee was

“serving with” the armed forces.      Morita, 73 M.J. at 560.    These

include the periods during which Appellee may (or may not) have

performed MPA make-up time, the time during which Appellee was

“under” forged orders and may, or may not have had any contact

with the military at all, 5 and other times for which there is no

documentation -- forged or otherwise -- showing military status.

The CCA distinguished Appellee’s case from Phillips, in which a

reservist’s criminal conduct took place while on base, on the

travel day before she began her annual active duty training

tour, and while receiving military pay and credit towards

retirement.    Morita, 73 M.J. at 560.    In this case no such

evidence was produced for any of the remaining time periods at

issue.   Id.   According to the CCA, only one of the six factors

identified in Phillips to determine if the appellant there was

“serving with” the armed forces was present in Appellee’s case,


5
  Indeed, to the extent the record shows Appellee’s whereabouts
during some of these periods it suggests that he was enjoying
sporting events, such as a Notre Dame football game. This is
not, therefore, a case where the record reflects that a
reservist forged orders to active duty or IDT, reported and
performed such duties, and obtained pay and allowances pursuant
to those orders. That case, which would look much more like the
theory under which we have found Article 2(c), UCMJ,
jurisdiction for defective but “constructive enlistment[s],”
McDonagh, 14 M.J. at 417, is not before us.
                                 18
United States v. Morita, No. 14-5007/AF


namely, the fact that he was a member of a reserve component.

Id.   We agree with the CCA that this factor alone is not

sufficient to find that Appellee was “serving with” the armed

forces under Article 2(c), UCMJ.

      Nor were the other statutory criteria for jurisdiction

under Article 2(c), UCMJ, met.   For example, the CCA found that

the “Government did not demonstrate that [Appellee] received any

compensation or retirement credit for days on which he merely

initiated the issuance of or completed travel forms (apart from

the days where he was in proper Article 2(a), UCMJ, status),” 73

M.J. at 560, or establish that Appellee otherwise performed

military duties during these times. 6   Id. at 561.   Under these

facts, where the Government’s theory of the case was that

Appellee was not performing military duties, but rather

exploiting his knowledge of the system to generate orders and

travel vouchers to support private boondoggles, we agree with

the CCA that Appellee was not subject to jurisdiction under

Article 2(c), UCMJ, during the remaining periods during which

misconduct was alleged.



6
  We agree with the CCA’s conclusion that the dicta in Morse is
an incorrect basis for establishing jurisdiction under Article
2(c), UCMJ, “where the Government simply did not demonstrate how
the appellant’s criminal actions corresponded to genuine reserve
obligations and periods of military service.” Morita, 73 M.J.
at 562. Actions incident to status as a reservist without more
are simply insufficient to confer jurisdiction so broadly.
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United States v. Morita, No. 14-5007/AF


                            V.   Decision

     The first portion of the certified issue is answered in the

negative. 7   We affirm the CCA with respect to its resolution that

jurisdiction did exist over the misconduct that occurred within

the dates of the three lawfully requested and approved 120 MPA

man-day tours, Morita, 73 M.J. at 557-58, and that jurisdiction

did not exist under Article 2(c), UCMJ, and Phillips for the

remainder of the time.    73 M.J. at 560.   We reverse the CCA with


7
  Given that the CCA held, in the alternative, that, based on its
review of the documents the Government belatedly sought to
introduce, “even if we considered the documents, we find they
would not satisfy the Government’s burden of proof as to
jurisdiction sufficiently to affect out ultimate conclusion,”
United States v. Morita, No. ACM 37838, slip op. at 3-4 (A.F.
Ct. Crim. App. Feb. 26, 2014) (denying the Government’s motion
for reconsideration en banc), there is no justiciable issue for
us to resolve. See United States v. Clay, 10 M.J. 269, 269
(C.M.A. 1981) (“We have previously declined to resolve certified
issues which would not result in ‘a material alteration of the
situation for the accused or for the Government.’” (quoting
United States v. McIvor, 21 C.M.A. 156, 158, 44 C.M.R. 210, 212
(1972))). Further, Appellee’s contention that certification of
this question was improper under Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2) (2012), and 10 U.S.C. § 8037(d)(3) (2012), is
without merit. Cf. United States v. Burns, 73 M.J. 407, 407-08
(C.A.A.F. 2014) (summarily disposing of the certified issue
despite the appellee’s argument that certification was improper
because the Deputy Judge Advocate General signed the certified
question before his retirement but it was filed by Major General
(Maj Gen) Kenny after the Deputy Judge Advocate General’s
retirement (Appellee’s Answer at 3-5, United States v. Burns, 73
M.J. 407 (C.A.A.F. 2014) (No. 14-5004))). Maj Gen Kenny was
Chief of Acquisitions Law -- a major division in the Office of
the Judge Advocate General, which fulfills the statutory
requirements of Article 67(a)(2), UCMJ, and 10 U.S.C. §
8037(d)(3). See Appellant and Cross-Appellee’s Motion to
Supplement the Record, United States v. Morita, No. 14-5007,
(C.A.A.F. June 30, 2014).
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United States v. Morita, No. 14-5007/AF


respect to those periods related to forged active duty, IDT, or

travel orders.   Id. at 558-59 n.11.   The decision of the Air

Force Court of Criminal Appeals is affirmed in part and reversed

in part.   The record of trial is returned to the Judge Advocate

General of the Air Force for remand to the Court of Criminal

Appeals for reassessment of the sentence or to order a rehearing

on sentencing consistent with this decision.




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