                          UNITED STATES, Appellee

                                        v.

                    Larry A. OLIVER, Staff Sergeant
                 U.S. Marine Corps Reserve, Appellant

                                  No. 02-0084

                         Crim. App. No. 200000659

       United States Court of Appeals for the Armed Forces

                       Argued May 1, 2002

                       Decided August 22, 2002

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.


                                    Counsel

For Appellant: Lieutenant Colonel Dwight H. Sullivan, USMCR
(argued); Commander George F. Reilly, JAGC, USN (on brief).

For Appellee: Commander Paul Jones, JAGC, USNR (argued);
Colonel R. M. Favors, USMC (on brief); Lieutenant Jason A. Lien,
JAGC, USNR.

Military Judge:     C. R. Zelnis




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Oliver, No. 02-0084/MC



       Chief Judge CRAWFORD delivered the opinion of the Court.

       Appellant was tried by a special court-martial composed of

officer and enlisted members and, contrary to his pleas, was

found guilty of three specifications of fraud against the United

States, in violation of Article 132, Uniform Code of Military

Justice (UCMJ), 10 USC § 932.    Specification 2 of the Charge

failed to allege that appellant was on active duty at the time

of the offense.    The other two specifications alleged appellant

committed the offenses while on active duty.    All three

specifications alleged that appellant’s criminal activity

transpired “on or about 29 September 1997.”

       The convening authority approved the sentence of a bad-

conduct discharge, confinement for thirty days, and reduction to

E-1.    The Navy-Marine Corps Court of Criminal Appeals accepted

the Government’s concession that Specifications 1 and 2 were

multiplicious and dismissed Specification 1, affirmed the

findings of guilty of the remaining two specifications, and upon

reassessment, affirmed the adjudged and approved sentence.    55

MJ 763, 772 (2001).    We granted review of the following issue:

            WHETHER, IN A CONTESTED COURT-MARTIAL OF A
            RESERVIST, THE GOVERNMENT MUST PROVE
            SUFFICIENT FACTS TO ESTABLISH SUBJECT MATTER
            JURISDICTION OVER THE ALLEGED OFFENSE.

We hold that appellant was subject to military jurisdiction.




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United States v. Oliver, No. 02-0084/MC


                               FACTS

     Appellant, a member of the Marine Corps Reserve, had a

total of about 18 years of combined active and reserve service

as of the date of trial.   On August 25, 1997, he reported for a

period of active duty at Camp Lejeune, North Carolina.    That

duty was to continue until September 27, 1997.    Appellant

checked into the Bachelor Enlisted Quarters (BEQ) on August 25

and stayed there until September 7.    On September 11, he checked

back into the BEQ and remained there until September 29.

     On September 29, 1997, appellant filed a travel claim for

his period of active duty.   The Court of Criminal Appeals found

the following with respect to the travel claim:

     In doing so, he claimed $1,888.00 for lodging expenses
     and attached a supporting receipt indicating that he
     stayed at a nearby hotel from 23 August until 11
     September. It was apparent that the computer-
     generated hotel receipt had been altered by hand in
     several significant aspects: the middle initial of the
     name of the patron was written as “A,” the month of
     arrival was written as “Aug,” the date of departure
     was written as “11 Sept,” and the room rate was
     written as “1888.00.” Thus, as altered, the receipt
     indicated that a Laurence A. Oliver from York, PA
     stayed at the hotel from 23 August 1997 until 11
     September 1997 and incurred charges totaling
     $1,888.00. The receipt was also computer-printed with
     this notation: “(DUPLICATE).” Prosecution Exhibit 6,
     page 1.

          Officials at the disbursing office reviewed the
     claim package and notified the Naval Criminal
     Investigative Service (NCIS) of these apparent
     irregularities. Special Agent Ball was assigned to
     the investigation. He testified that during an
     interrogation of 28 October 1997, he advised the


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United States v. Oliver, No. 02-0084/MC


      appellant that he was suspected of forgery, false
      official statement and fraud, advised him of his
      rights and obtained a waiver. During the subsequent
      conversation, the appellant admitted that: (1) he was
      on active duty, (2) he did not stay at the hotel, (3)
      he made the marks on the hotel receipt, and (4) ... he
      submitted the travel claim. He also explained that
      the marks on the receipt were a mistake. When asked
      if he would put that information in writing, the
      appellant refused, and asked to speak to a lawyer.
      The interrogation ended at that point.

           A front desk manager from the hotel testified
      that a Lawrence T. Oliver stayed there for three
      nights in June 1997 but that, after checking their
      records for the last two years, a Larry A. Oliver had
      never stayed there. She also testified that hotel
      employees don’t normally write on the receipts, but
      that if they do, they would always initial that
      handwriting. In response to a member’s question, she
      added that the hotel does not ask for identification
      if somebody requests a copy (or duplicate) of a
      receipt. If somebody asks for a receipt copy, one is
      provided.

55 MJ at 765-66.

      At the beginning of the trial, the trial counsel

represented to the court that the charges were properly

referred.   When the judge asked if appellant had been

“involuntarily extended on active duty,” the trial counsel noted

that appellant was on “medical hold” and would not “be allowed

to terminate his active duty” until the medical problems cleared

up.   There was no objection or clarification by the defense.

During his opening statement, the trial counsel asserted that

appellant was “a reservist who had been on active duty

orders....”   The defense counsel also admitted in his opening



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United States v. Oliver, No. 02-0084/MC


statement that appellant was on active duty and “continues on

active duty as a reservist here today.”

     Corporal Nichole M. Martin testified that when a reservist

comes on active duty and government quarters and meals are not

provided, he or she is entitled to full per diem.   In this case,

appellant was authorized full reimbursement until September 30,

1997.

     Unchallenged medical documentation submitted on appeal in

response to appellant’s jurisdictional challenge indicates that

appellant was extended on active duty past September 28, 1997,

for medical observation and treatment, and that this extension

continued well past September 29, 1997.

     During his closing argument, the prosecutor argued that

appellant was on active duty at least up until October 28, 1997.

This was not contradicted by any evidence at trial.

                           DISCUSSION

               The Constitution grants to Congress the power
          “[t]o make Rules for the Government and
          Regulation of the land and naval Forces.” U.S.
          Const., Art. I, § 8, cl. 14. Exercising this
          authority, Congress has empowered courts-martial
          to try servicemen for the crimes proscribed by
          the UCMJ[.]

Solorio v. United States, 483 U.S. 435, 438 (1987).   Such a

trial requires both in personam and subject matter jurisdiction,

in addition to a properly constituted, see, e.g., United States

v. Schneider, 38 MJ 387, 393 (CMA 1993), and referred court-


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United States v. Oliver, No. 02-0084/MC


martial.    Article 2, UCMJ, 10 USC § 802, addresses subject

matter jurisdiction, and Article 2(a)(1) indicates that

servicemembers such as appellant, who are “lawfully called or

ordered into, or to duty in or for training in, the armed

forces,” are subject to jurisdiction.          RCM 204(b)(1), Manual for

Courts-Martial, United States (2000 ed.),∗ provides that a

“reserve component” servicemember who is “on active duty prior

to arraignment” is subject to court-martial jurisdiction.

      Appellant’s jurisdictional argument rests on his belief

that his status as an individual subject to court-martial

jurisdiction is an element of Article 132, supra.            However, the

beginning language of Article 132 -- “[a]ny person subject to

this chapter” -- does not establish an element of the offense

but, rather, sets forth the baseline for jurisdiction under the

UCMJ common to all offenses.        Historically, the Manuals for

Courts-Martial have not treated the “[a]ny person subject to

this chapter” language as an element of the offense.             Similarly,

the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9

(1 April 2001 and 30 Sept. 1996), does not include such an

instruction.    This longstanding practice underscores the fact

that Congress set forth the “any person” language as a basic




∗
  This provision is identical to the one in effect at the time of appellant’s
court-martial.


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United States v. Oliver, No. 02-0084/MC


jurisdictional prerequisite, not as an element of a particular

offense or offenses that are not peculiarly military.

     Jurisdiction is an interlocutory issue, to be decided by

the military judge, with the burden placed on the Government to

prove jurisdiction by a preponderance of the evidence.     See

United States v. McDonagh, 14 MJ 415, 422, 424 (CMA

1983)(Everett, C.J.; Cook, J., concurring in part); see also

United States v. Laws, 11 MJ 475, 476-77 (CMA 1981)(Cook, J.;

Everett, C.J., concurring in the result); see also 1 Francis A.

Gilligan and Fredric I. Lederer, Court-Martial Procedure § 2-

52.10 at 85 (2d ed. 1999)(“the government has the burden of

proving jurisdiction on a preponderance basis”).

     When appellant challenged the jurisdiction of the court-

martial at the Court of Criminal Appeals, the Government

recognized its burden and filed a Motion to Attach appellant’s

medical records to demonstrate that he was continued on active

duty in a “medical hold” status beyond the expiration of his

active duty orders.   Medical hold is a valid reason for

extending the active duty of a reservist, or any servicemember,

and entitles him or her to the full pay and benefits of being on

active duty.   See In the Matter of First Lieutenant Larry R.

Hughes, USMCR, 567 Comp.Gen. 451 (1978); Peiffer v. United

States, 96 Ct.Cl. 344 (1942); 10 USC § 1074a(a); DoD Dir.

1241.1, Reserve Components Incapacitation Benefits (Dec. 3,


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United States v. Oliver, No. 02-0084/MC


1992); SECNAVINST 1770.3C, Management and Disposition of

Incapacitation and Incapacitation Benefits for Members of Navy

and Marine Corps Reserve Components (Apr. 3, 2002).   The medical

records submitted clearly indicate that appellant was retained

on active duty beyond the expiration of his orders and,

therefore, establish that the court-martial possessed subject

matter jurisdiction over the offense.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Oliver, No. 02-0084/MC


    SULLIVAN, Senior Judge (concurring in the result):


    Preliminarily, I note that the premise of appellant’s

argument in this case is that his status as a person subject to

the Uniform Code of Military Justice at the time of the offense

was an element of the offense for which he was found guilty.     See

United States v. McDonagh, 14 MJ 415, 422 (CMA 1983) (Everett,

C.J.); United States v. Ornelas, 2 USCMA 96, 6 CMR 96 (1952).     No

legal authority has been provided for appellant’s premise, but

instead, it is based on his view of language in Article 132,

UCMJ.   His view of this statute is not supported by the

President’s explanation of this offense in paragraph 58, Part IV,

Manual for Courts-Martial, United States (1998 ed.), and

paragraph 211, Manual for Courts-Martial, United States, 1969

(Rev. ed.) and 1951, nor by our case law.   See United States v.

Steele, 2 USCMA 379, 9 CMR 9 (1953); United States v. Perry, 45

MJ 339 (1996); cf. United States v. Prentiss, 256 F.3d 971, 981-

85 (10th Cir. 2001).



    With regard to the substance of the jurisdictional issue

before us, my view is that the undisputed facts in the record

decide this case.   Trial counsel, defense counsel, and appellant

all clearly indicated on the record that appellant was a

reservist on active duty (by reason of a medical hold) at the

time of the offenses and at the time of the trial. (R. 42, 99,

101, 189, 191-92)   Accordingly, this record was sufficient to
United States v. Oliver, No. 02-0084/MC

establish court-martial jurisdiction.   See United States v.

Wilson, 53 MJ 327, 329-30 (2000); United States v. Self, 13 MJ

132, 135 (CMA 1982); see generally United States v. Meadows, 13

MJ 165, 168 n.4 (CMA 1982).   The post-trial evidence submitted by

the Government, and uncontroverted by appellant, reaffirms this

point.




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