South Korea Military Lawyers

Jurisdiction in the Military

Will: So EJ, when a soldier is facing a court martial or even an administrative separation, why does the Army or any of the other services have the ability to act? Is there something like jurisdiction in the military?

EJ: Absolutely, there is. Jurisdiction basically extends under the UCMJ to anybody — what it says is anybody subject to the Code. Basically, that means anyone on active duty can be court martialed if they’re under the control of the military, and that subjects them to a court martial, to an administrative separation board, or anything like that.

Can Soldiers Get in Trouble for Off-Duty Conduct?

Will: So, can a soldier get in trouble for stuff they do off duty when they’re not on duty?

EJ: Yes.

Will: Why is that?

EJ: Because jurisdiction extends to everything basically that they do. If it’s something that the military could prosecute, then they’re still subject to it even if they’re off duty.

Will: That means soldiers need to be really careful out there.

Can the Military Prosecute Non-Military Offenses?

Will: So, can the Army or any of the other services, for instance, prosecute a soldier for obviously the military offenses — going AWOL, disobeying their commander — but also for nonmilitary offenses like rape, kidnapping, sexual assault?

EJ: Yes, and there are a few different ways they can do it. If it’s something that happened on a military installation, they likely have exclusive jurisdiction to do that. If it happened off post, there may be a tossup, and local authorities may snap it up. The military can still request it if they do that.

When Do Civilian or Military Courts Take the Case?

Will: So, you mentioned that sometimes civilians will have jurisdiction. What is the deciding factor whether or not the local civilians will prosecute or the military will prosecute?

EJ: Well, generally it’s an agreement between the military installation in question and the surrounding civilian authorities. Sometimes there’s what’s called concurrent jurisdiction, which means either party can pick it up. Sometimes it’s exclusive jurisdiction, where either the military takes it or the civilians side take it. Now, if the civilians take it, they have the authority to release it to the military. So, the military can still request release of jurisdiction if they want to court martial a soldier.

Can a Soldier Be Court-Martialed and Face Civilian Prosecution?

Will: Can a soldier be court martialed in the military and then also face charges by the civilian authorities?

EJ: Unfortunately, yes. And you hear a lot about double jeopardy, but there’s an exception to that, and it’s called the separate sovereigns doctrine. Basically, that means if a state agency and a federal agency want to prosecute for the same thing — and the civilian court wants to take the soldier to trial and the military wants to court martial the soldier at the same time — they can do that. Now, there are certain considerations that the military has to look at before actually doing that, because it is frowned upon. But yes, they are technically allowed to do it.

Jurisdiction Over Part-Time Service Members (Guard & Reserve)

Will: And we’ve got millions of National Guard, Reserve soldiers, and people who are part-time service members. Now, does jurisdiction apply the same way to them? If they’re not on orders, or they’re not drilling, or they’re not doing their AT time, and they commit an offense — a civilian offense, a DUI for instance — can the military prosecute them for that?

EJ: They are a little bit different. Generally, they have to be drilling or on some kind of active duty, for training or whatever it is, but there has to be some kind of active status.

Will: The Reservist or the National Guard has to have the right status to be prosecuted by the military.

EJ: Yes, exactly.

Will: That status is usually determined by their orders, right, or what authority the government has them on duty?

EJ: Yes. And those orders will tell you for sure whether or not they’re subject to court martial jurisdiction.

Jurisdiction of Foreign Authorities Under SOFA Agreements

Will: Okay. I imagine this even gets more tricky when you’re dealing with foreign authorities — the Germans, the Japanese, the South Koreans — in terms of jurisdiction.

EJ: Absolutely. Generally, with foreign authorities, say in Germany or Korea or anywhere else where we have service members stationed, there’s going to be something called a Status of Forces Agreement, or SOFA, that lays out basically who can do what. Typically, soldiers are going to be put on an international hold if they are picked up by foreign authorities, and there’s not going to be a whole lot the military can do until that hold is lifted.

Will: Right. So, my understanding of the foreign authorities is there’s a cooperation between the Army or the military service.

EJ: Yes.

Will: And then the local prosecutors, and they make a decision amongst themselves: “Hey, are we going to release the foreign authorities? Are we going to release our jurisdiction pursuant to the Status of Forces Agreement to the military and let them take the case, or are they going to retain it?”

EJ: Right.

Will: My personal experience has been that, more times than not — almost exclusively — the foreign authorities will release that jurisdiction to the military.

EJ: That’s interesting, because I’ve had the opposite experience, in most cases I’ve experienced, more in Korea than in Germany. The Korean authorities would tend to keep the prosecution themselves. and that’s if they committed an offense in Korea.

Will: And that’s if they committed an offense in Korea. Yes. Or on the base.

EJ: Okay. On the base, that’s something that’s retained, as I said, in the exclusive jurisdiction of the military.

Will: So, if they commit the offense on post, then the military has the primary jurisdiction there.

EJ: That’s right.

Will: And then the foreign authorities would not.

EJ: Right.

Will: Okay. But if they were downtown, say, at one of the juicy bars, and they committed an offense, the South Koreans would look at it first.

EJ: Yes.

Will: Then determine whether or not they want to keep the jurisdiction.

EJ: Yes.

Will: If they want to keep the jurisdiction, they will.

EJ: Yes.

Will: Unless there’s some type of agreement between the international law section of the Army, or whatever service you’re in, and the South Koreans.

EJ: Right. And that’s going to just depend on what that agreement is and what the SOFA says. From what I’ve seen, particularly if it’s in a place like Korea, if it’s off post and it’s against a local national, for example, the Korean authorities are generally going to want to keep that.

Will: Okay. In those instances that they release it, does the military usually prosecute those cases?

EJ: In most cases, yes.

End of Service and Jurisdiction: What to Watch Out For

Will: Is there anything else that soldiers, sailors, airmen, Marines, and Coast Guardsmen need to know about jurisdiction when they’re facing problems or adverse action in the military?

EJ: Well, the military can lose jurisdiction. If, say, a soldier or an airman or sailor ETSs’s — gets out of the military, separated, or term of service is expired, or however they do it — if they are completely out, then the military has no more jurisdiction over them.

Will: Right. In my understanding, to be completely out, you have to go through the clearing process.

EJ: Yes.

Will: You have to get your DD214.

EJ: That’s right.

Will: And you have to get your final pay and accounting.

EJ: Yes.

Will: Sometimes that happens after your clearing date, two or three or four weeks later.

EJ: Right.

Will: So, the military actually has a little string that they can pull that lasts about a month after you get your DD214.

EJ: That’s right. And that’s where you want to be careful, because if they decide in that little period of time — where you’re transitioning out and you’re still waiting on all of that stuff — they can put a hold on you and decide to court martial you, because they still have jurisdiction until all that stuff is done.

Will: Yeah. Well, it’s very interesting. There are a lot of rules affecting jurisdiction, but if you find yourself facing a court martial or an adverse action in the military, reach out and call us. We are the Warrior Advocates at the Law Office of Will M. Helixon. You DEFEND the NATION — WE Defend YOU!