The Court of Appeals for the Armed Forces (CAAF) recently decided the case of United States v. Taylor. SSG Taylor was a member of the Air Force Reserve in December 2019 when he attended a drill weekend for his unit. This weekend consisted of two four-hour blocks of inactive duty training on Saturday and two additional four-hour blocks of inactive duty training on Sunday. On Saturday night, he went to a party where a member of his unit alleged that he sexually assaulted her while she was sleeping.
Charges against SSG Taylor were preferred and referred and he was involuntarily recalled to active duty for two days in March 2022 for the purpose of conducting his arraignment and a motion session. At that session, the defense disputed the court-martial’s jurisdiction over their client, arguing that the proper paperwork had not been completed to allow for his recall. The Military Judge disagreed, and arraigned SSG Taylor. The court-martial eventually convicted SSG Taylor of one specification of sexual assault and one specification of abusive sexual contact for his actions on the drill weekend. He was sentenced to 19 months confinement, reduction to E-1, and a dishonorable discharge.
On appeal to the Air Force Court of Criminal Appeals, SSG Taylor raised a different issue related to his recall to active duty. This issue highlighted an inconsistency between two sections of Article 2 of the UCMJ. Article 2(a) details who is subject to the Uniform Code of Military Justice. It lays out who exactly has to follow the laws laid out in the UCMJ. Until January 2019, reservists lawfully ordered onto active duty and reservists on inactive duty training were subject to the UCMJ. Had this version been in place in December 2019, SSG Taylor would not have been able to be court-martialed at all. The “inactive duty training” was conducted in four four-hour blocks over one weekend, but did not include any time outside of, or between, those blocks. In January 2019, Congress changed this provision to make reservists subject to the UCMJ when on active duty, on inactive duty training, or during periods when traveling to inactive duty training and between consecutive periods of inactive duty training on the same day or consecutive days. This change was made to ensure that incidents like the one at issue here would be able to be handled by military authorities. So, under Article 2(a) as it read in December 2019, SSG Taylor’s actions were subject to military criminal law.
However, a separate portion of Article 2, UCMJ, had not been amended, creating an important inconsistency. Article 2(d)(1)(B) states that a reservist who is not on active duty may be involuntarily recalled to active duty for purposes of trial by court-martial, but Article 2(d)(2) says that this recall may only occur when the offense was committed while the reservist was on active duty or on inactive duty training. The additional language regarding the periods between inactive duty training or travel to inactive duty training had not been added to this paragraph of Article 2(d).
SSG Taylor’s defense argued to the Air Force appellate court that he was improperly recalled to active duty because, even though his actions were subject to the jurisdiction of the UCMJ under Article 2(a), he could not be involuntarily recalled to active duty for court-martial because his offense did not occur while he was on active duty or on inactive duty training. The Air Force Court decided that this interpretation of the two provisions would produce an “absurd” result that would contradict Congress’s intentions. The Court upheld the conviction.
SSG Taylor then appealed to the CAAF, making the same argument. CAAF agreed with the defense. The Court found that the plain language of Article 2(d)(2) said that SSG Taylor could not be involuntarily recalled to active duty to face court-martial for this offense because it did not occur while he was on active duty or on inactive duty training. The Court also disagreed with the Air Force Court that this was an absurd result, finding that an “unintentional drafting gap” was not enough to allow for judicial correction. Congress would have to go back and amend this section to comport with Article 2(a) to fix this gap.
As a result, CAAF set aside SSG Taylor’s guilty finding and sentence. However, the Court did not dismiss the charges, because SSG Taylor was subject to the UCMJ’s jurisdiction at the time of the alleged offenses. The Government will have to find another way to bring him back onto active duty in order to retry SSG Taylor.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.