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 

2 

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

3 

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 courtmartial 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 courtmartial jurisdiction under Article 2(c), UCMJ, under forged 
United States v. Morita, No. 14-5007/AF 

4 

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

5 

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

6 

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

7 

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

8 

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

9 

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

10 

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

11 

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

12 

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

13 

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

14 

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

15 

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

16 

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

17 

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

18 

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

19 

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

20 

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

21 

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.