Oklahoma Bar Journal October 2021

The following is the complete article on DUI prosecution on military instillations written by the owner of Cannon & Associates, John P. Cannon, and published in the October 2021 issue of the Oklahoma Bar Journal on DUI and DUI criminal defense. 

The following is a link to the Bar Journal Website, Oklahoma Bar Journal. The following is a link to John’s published article on the Oklahoma Bar Journal website: DUI Article

THE MILITARY AND OKLAHOMA

Oklahoma has a substantial military presence and history. Since 1869, Fort Sill has played a role in every major American conflict. Additionally, Tinker Air Force Base, Vance Air Force Base, Altus Air Force Base and McAlester Army Ammunition Plant are active-duty installations with thousands of men and women stationed at these facilities that serve our nation. Moreover, Oklahoma has multiple reserve components, including Reserve and National Guard units, like the 45th Infantry Division, nicknamed “Thunderbirds.”

It is undeniable the military and the men and women who serve within its ranks play a significant role in Oklahoma. Although most Oklahomans are familiar with the military and the installations mentioned above, few are versed in the military criminal justice system or what happens to a civilian arrested on one of these military installations. The rights and constitutional protections citizens enjoy in our civilian criminal justice system are mirrored, and in some respects greater, in the military justice system. However, when, where and how someone is prosecuted for criminal offenses on a military instillation is determined by a number of factors, first and foremost the person’s status.

JURISDICTION ON MILITARY INSTALLATIONS

The federal government has exclusive jurisdiction over crimes committed on any military reservation or base, i.e., Tinker Air Force Base or Fort Sill, including the offense of driving under the influence (DUI). Although Tinker Air Force Base is geographically within Oklahoma County, or more importantly, the state of Oklahoma, our state criminal justice system does not have jurisdiction over crimes allegedly committed on any federal installation as the federal government has reserved jurisdiction over criminal actions that occur on federal territory.

Criminal offenses on military bases are investigated or reported by potentially many different federal law enforcement entities, including but not limited to military police, the Criminal Investigation Department (CID) or the Office of Special Investigations (OSI). Following the completion of an investigation within a military instillation, including DUI, the findings are presented to the relevant authority. 

Service members alleged to have committed the same conduct as a civilian, driving under the influence of alcohol, are subject to a much wider range of punishments, including non-criminal administrative action or prosecution under the Uniform Code of Military Justice (UCMJ). Conversely, as the following sections will explain, civilians who are alleged to have driven under the influence of alcohol or drugs on a military base will be prosecuted in federal court.

ORIGINS OF THE MILITARY JUSTICE SYSTEM

Our military justice system, the court-martial system, is the oldest system of justice in the United States. Our system is a derivative of the British Articles of War and the British Code of 1765. It is a system of limited jurisdiction, and its authority comes from the United States Constitution, the Uniform Code of Military Justice and the Manual for Courts-Martial.

As early as 1857, the legitimacy of our court-martial system has routinely been held lawful, including the United States Supreme Court’s decision in Dynes v. Hoover, in which the court held the Constitution grants authority for Congress to provide for criminal justice for military offenses. In 1954, Chief Justice Vinson held the following in Burns v. Wilson, “Military law … is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”

FOUNDATIONS OF THE MILITARY JUSTICE SYSTEM 

The purpose of our military justice system is in large part to allow commanders, in any setting across the world, to handle misconduct and criminal offenses by service members under the commander’s authority without substantial interference with the commander’s mission. Military commanders have the authority to prosecute service members under the UCMJ for conduct on and off post, related to and unrelated to military service. Additionally, the military may have concurrent jurisdiction with non-military law enforcement that could result in prosecution by both justice systems. However, when an offense occurs on a military installation, concurrent jurisdiction does not exist as state and local law enforcement lacks jurisdiction over military installations in most cases. 

The Uniform Code of Military Justice provides for two types of offenses: 1) common law crimes, including DUI and military-specific crimes and 2) military-specific crimes that include

offenses such as disrespect, disobedience, absent without leave (AWOL), conduct unbecoming an officer and gentleman and conduct prejudicial to good order and discipline. Military-specific offenses are designed to give commanders authority to prosecute conduct that is not found in the common law system but necessary for maintaining discipline within the military command structure. 

The military justice system includes key personnel not found in the civil justice system, including the suspect’s commander. The commander at each level has prosecutorial discretion and exercises independent judgment with the input of their subordinate leaders as well as the advice of counsel, a judge advocate. Commanders, not prosecutors, are the convening authority who determines what level of court-martial or prosecution will take place in response to a given allegation. Additionally, the staff judge advocate (SJA) is a senior attorney who advises the General Court-Martial Convening Authority (GCMCA) for the installation and is similar to in-house counsel for the GCMCA commander. 

Therefore, unlike our civilian criminal justice system, our military justice system gives commanders very wide discretion to determine what, if any, course of action to take in response to misconduct, even criminal offenses. Commanders have access to one or potentially many judge advocates (uniform attorneys) for non-binding advice on what level of action to take for misconduct. Although most crimes, including DUI offenses, are investigated by military police or Criminal Investigation Command (CID), commanders retain discretion to determine the disposition of an offense. Commanders consider at least the following in evaluating what course of action to take for a given offense: speed of the resolution and necessity for the same, good order and discipline (impact on command and society) and justice (evaluation of service member and each case on its own merit).

Additionally, the Rules of Courts-Martial, Rule 306 Initial Disposition states, “Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of disposition listed in subsection (c) of this rule.” The dispositions listed in Rule 306(c) including the following:

  1. No Action. A commander may decide to take no action on an offense. If charges have been preferred, they may be dismissed. 
  2. Administrative action. A commander may take or initiate administrative action, in addition to or instead of other action taken under this rule … include[ing] corrective measures such as counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, extra military instruction, or the administrative withholding of privileges, or any combination of the above.
  3. Nonjudicial punishment. A commander may consider the matter pursuant to Article 15, nonjudicial punishment.
  4. Disposition of charges. Charges may be disposed of in accordance with R.C.M. 401
  5. Forwarding for disposition. A commander may forward a matter concerning an offense, or charges, to a superior or subordinate authority for disposition.

COMMANDER DISCRETION IN MILITARY PUNISHMENT

Rules of Courts-Martial, Rule 306(c)(2) administrative actions, provides one of the greatest contrasts between the military justice system and the civilian system as commanders have the authority to enforce a gambit of punishments in lieu of or in addition to criminal prosecution. Although court-martial proceedings require proof beyond a reasonable doubt, commanders are held to a lower standard of “preponderance of the evidence” in administrative actions. Some of the most commonly exercised forms of administrative action are as follows:

  • Counseling
  • Corrective training
  • Letter of reprimand
  • Nonjudicial punishment (NJP)
  • Bar to reenlistment
  • Revocation of security clearance
  • Adverse annual evaluation, i.e., Non-Commissioned Officer Evaluation Report (NCOER) or Officer Evaluation Report (OER)
  • Reduction in rankAdministrative separation

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice is one of the most common forms of punishment in the military. The title of these proceedings will vary based on the specific service, i.e., “NJP” or “Captain’s Mast.” However, the purpose is always to educate, reform or correct service members under the specific commander and to dispose of minor offenses without a court-martial. The nonjudicial aspect largely stems from the fact the commander determines guilt or innocence at the conclusion of evidence, not a jury, attorney or judicial officer. This authority and principle is codified in federal statutes at 10 U.S.C. §815, “Any commanding officer, may in addition to in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial.”

One of the greatest benefits of an Article 15 instead of a court-martial is the fact an Article 15 does not result in a conviction on a criminal record. However, service members have the right to refuse an Article 15 and proceed to court-martial. Military members facing an allegation of DUI may be subject to one or many of the above-mentioned forms of administrative action or nonjudicial punishment; however, it may coincide with court-martial proceedings.

CRIMINAL PROSECUTION IN THE MILITARY

The criminal charge for a DUI committed by a military member on base is “Drunken or Reckless Operation of a Vehicle, Aircraft, or Vessel,” which is found in Article 111 of the UCMJ. However, as mentioned above, service members face multiple potential punishments for a DUI offense on base, largely at the discretion of their commander. As discussed above, commanders have a wide range of discretion in how to handle punishment on suspicion of DUI by a service member. 

Courts-martial are the only form of criminal prosecution in the military and can result in imprisonment, negative discharge characterization and federal conviction. Only the most serious military-specific offenses and criminal allegations are handled by court-martial proceedings. Service members facing an allegation of DUI during military service may or may not face a court-martial proceeding for DUI, dependent upon the facts and circumstances of the DUI allegation and the discretion of the commander at each level of the service member’s chain of command.

TYPES OF COURTS-MARTIAL  

There are three types of court-martial proceedings with increasing severity and increasing rights: Summary Courts-Martial, Special Courts-Martial and General Courts-Martial.

The Summary Courts-Martial (SCM)is the lowest level court-martial and is designed to deal with minor offenses for infractions a commander determines to warrant more punishment than nonjudicial punishment. Service members have the right to refuse trial by SCM; however, this may result in referral to more serious action. Although confinement is a possibility in SCM actions, it is limited to a brief period of time. This type of court-martial cannot result in a punitive discharge from the military, and the service member does not have a right to representation; however, they may retain counsel. This type of proceeding is limited to misdemeanor-level misconduct, including DUI allegations. 

The Special Courts-Martial (SPCM) is designated to handle more serious, military-specific misconduct and minor criminal offenses that are too serious to handle by an SCM. Soldiers are entitled to representation; however, they may receive up to 12 months confinement and a bad-conduct discharge (BCD). Additionally, this type of court-martial is heard by a panel of three members unless the service member elects to proceed by judge alone. The SPCM is the most common form of court-martial and shares many characteristics with prosecution in state and federal courts. This type of proceeding may be used for a DUI offense by a service member; however, it is the most serious form of punishment a service member will face for a DUI unless some element of the case makes the offense comparable to a felony under common law, i.e., manslaughter as a result of DUI. 

The General Courts-Martial (GCM) is the most serious court-martial and is reserved for felony offenses under common law and the most serious military-specific offenses. This level of court-martial is reserved for offenses more serious than DUI. These proceedings entitle a service member to an Article 32 hearing, which is an investigative hearing comparable to a preliminary hearing in Oklahoma state court. In place of the grand jury indictment in federal court, the military provides the right to this pretrial investigation. The Article 32 is investigatory in nature, and the finds are the only recommendation the convening authority may adopt or ignore. GCM proceedings are heard by a panel of a least five senior service members unless the service member elects to proceed by judge alone. The potential punishment in a GCM is comparable to Oklahoma and federal felony offenses in that the punishment range is specific to the charges and specifications and may range from short periods of confinement to life in prison or even death in capital cases. 

DUI COMMITTED BY NON-SERVICE MEMBERS ON BASE

Generally, in Oklahoma, when a person is arrested for suspicion of DUI, they will be prosecuted in municipal court or state district court. However, that is not the case when the events giving rise to the suspicion of DUI occur on a military base within Oklahoma. Criminal offenses, including DUI, that allegedly take place on military installations in Oklahoma are not prosecuted in state courts. All criminal offenses that take place on military installations in Oklahoma are handled under federal criminal law. Non-service members do not have a status authorizing a command authority to prosecute them; therefore, federal courts outside the military must prosecute these actions. A non-service member arrested for suspicion of DUI on a military installation will be charged in federal court pursuant to the authority granted to the federal government by the United States Constitution, federal law and state law. 

Prior to 1940, it was presumed under federal law that the United States had exclusive jurisdiction on lands obtained within any state. After 1940, exclusive jurisdiction was only obtained by affirmative action by the federal government. The state of Oklahoma has given consent to the federal government to acquire land in the state. Our state has granted exclusive jurisdiction to the federal government over federally obtained land, except for service of process on federal land, “Exclusive jurisdiction in and over any lands so acquired by the United States shall be, and the same is hereby ceded to the United States for all purposesexcept the service upon such sites of all civil and criminal process of the courts of this state; but the jurisdiction so ceded shall continue no longer than the said United States shall own such lands.”

The Oklahoma Legislature has ceded exclusive jurisdiction to the United States for all lands acquired by the United States, which is in conformity with the United States Constitution and 50 U.S.C. §175. The Oklahoma Attorney General stated the following in relation to this question: 

[O]n federal property under the exclusive jurisdiction of the federal government, the State may serve process on persons located thereon, but has no authority to enforce Oklahoma laws against violations of those laws committed on such federal land. To put it another way, an act committed on land under the exclusive jurisdiction of the federal government is a crime only to the extent that federal law makes it a crime, despite any State law which would make the act a crime.

The federal government retains jurisdiction over criminal matters taking place on military installations under the federal enclave doctrine. The doctrine dictates the United States government retains jurisdiction in a specific geographical area under the control of a specific branch of the federal government. Military installations and federal courthouses are two of the most common examples of federal enclaves – such was the case of State v. Smith, where the Supreme Court of North Carolina held Marine Corps Base Camp Lejeune was a federal enclave. Oklahoma courts have not specifically ruled on the issue of military installations as federal enclaves; however, The Oklahoma Supreme Court stated in the 2003 opinion of Local 514 Transport Workers Union of America v. Keating “the trial court held the right to work amendment … did [not] have any application to federal enclaves, such as military bases.” 

More importantly, since at least 1930, the United States Supreme Court has determined the federal government has exclusive jurisdiction to prosecute offenses on federal enclaves. Earlier in 2021, the Oklahoma Court of Criminal Appeal, citing the Major Crimes Act,held in Bosse v. State, “Congress provides that crimes committed in certain locations or under some specific circumstances are within the sole and exclusive jurisdiction of the United States.” 

Interestingly, in Akin v. Big Three Industries, the 5th Circuit held that a toxic tort case arising out of Tinker Air Force Base properly invoked enclave jurisdiction, thereby prohibiting that tort action to continue in state court. The 5th Circuit held “all plaintiffs performed all duties on Tinker Air Force Base. And the plaintiffs now claim these very duties repairing jet engines resulted in personal injuries … enclave jurisdiction is properly invoked.”

The United States is the largest holder of real estate in America, and a very large part of the government’s land holdings are military installations, including (in Oklahoma) Tinker Air Force Base and Fort Sill. These territories and other categories of federal territory are known as “federal enclaves.” The source of federal enclave doctrine is found in the U.S. Constitution, which provides at Article I, Section 8, Clause 17:

Congress shall have power … to exercise exclusive Legislation in all Cases whatsoever over such District[s] … as may, by Cession of particular States … become the Seat of the government of the United States, and to exercise like authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings.

Government property can be categorized in three ways pertaining to federal criminal jurisdiction: exclusive jurisdiction, concurrent jurisdiction and proprietary jurisdiction, in which the federal government has no criminal jurisdiction. There are three means that provide the United States exclusive or concurrent jurisdiction over federal land in Oklahoma or any state, including military bases: 1) reservation of federal land upon a state’s admission to the union, 2) state statute consenting to the purchase of land by the federal government or 3) state cession. The jurisdictional status of federal land dictates the application of federal enclave statutes, specifically 18 U.S.C. §7 “Special Maritime and Territorial Jurisdiction of the United States” that includes, “Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

DUI offenses committed by non-service members upon military installations are prosecuted in the federal district court in which the military installation is found. The Western District of Oklahoma is the federal forum for offenses on Fort Sill, Tinker Air Force Base and Vance Air Force Base. These offenses are prosecuted in federal court but under Oklahoma DUI laws pursuant to the Assimilative Crimes Act.  This act give the federal government the authority to prosecute under state criminal law when, as the Supreme Court held in United States v. Sharpnack, no “enactment of Congress” covers the conduct. As federal criminal law is limited in scope to the powers granted by the Constitution, including the 10th Amendment that dictates the powers not reserved by the federal government are bestowed on the states, i.e., general policing power.

DUI offenses in federal court are typically handled by special U.S. attorneys who are full-time military judge advocates assigned to handle criminal offenses by non-service members on base, subsequent to an appointment by the attorney general. Code of Federal Regulations, Title 32 National Defense provides, “Army attorneys … will prosecute cases, in which the Army has an interest, in federal court.” The military commanders have many interests in the enforcement of criminal law upon base, including the safety of the service members and families on post. 

Most DUI offenses by civilans, including those on military bases, are prosecuted as misdemeanor offenses, specifically Class B misdemeanors, which carry up to six months in federal prison. DUI allegations prosecuted in federal court are usually handled by a magistrate judge, and their prosecution is governed under the Federal Rules of Criminal Procedurefor petty offenses.

CONCLUSION

An accused facing prosecution for a DUI on a military base is better off if they are a service member. The benefits afforded a service member are greater than required under the Constitution, and defense counsel and the commander have more options for resolution in the military criminal justice system than a defendant facing federal prosecution for a DUI offense on a military base. Although substantial protections exist for a civilian facing federal prosecution for a DUI on a military base, the options are limited to largely contesting the case through motion practice and eventually trial or entering a plea of guilty and being sentenced by a federal magistrate judge. 

Alternatively, as discussed above, the service member client faced with a DUI offense on a military base in Oklahoma provides defense counsel the opportunity to craft a wide variety of dispositions that may potentially allow the client to avoid criminal prosecution via the means of non-judicial punishment or administrative action, including a letter of reprimand if the commander is inclined to provide the service member with the opportunity to avoid criminal prosecution. Additionally, if prosecution in the court-martial system is inevitable, the opportunity for a pretrial agreement (PTA) or resolution with the guarantee of no confinement and the opportunity to seek relief from higher commanders if a bad outcome is reached is only part of the rights afforded a service member facing criminal prosecution for DUI on a military base or any other comparable offense. 

This primer on the differences between prosecution for a DUI occurring on a military base for a service member versus a civilian is only a glimpse at the contrast between the criminal justice system for these similarly situated hypothetical defendants. However, it is highly interesting to consider the rights and options afforded to a service member in this setting based on their status as such. Hopefully, this has inspired some defense attorneys to seek the privilege of defending those that defend our nation or at least shed light on the contrasts between these two criminal justice systems. 

ABOUT THE AUTHOR

John P. Cannon is the founder of Cannon & Associates in Edmond. His practice focuses on empowering his team to provide the best in criminal defense and family law. Additionally, he serves in the Oklahoma Army National Guard as the brigade judge advocate for the 45th Field Artillery Brigade. 

  1. Encyclopedia of Oklahoma History and Culture. “Fort Sill,” by Lance Janda.
  2. It is “a system of military justice that is notably more sensitive to due process concerns than the one prevailing through most of our country’s history …” Justice Ginsburg, concurring opinion, Weiss v. United States, 510 U.S. 163, 194 (1994).
  3. The United States Supreme Court held in Solorio v. United States, 483 U.S. 435 (1987) that jurisdiction of a court-martial depends on the accused’s status as a service member alone.
  4. Exclusive jurisdiction.
  5. 10 U.S.C. §§801 et seq.
  6. Article II, Section 2, “The President shall be Commander in Chief of the Army and Navy of the United States …” and Article I, Section 8, clause 14, “The Congress shall have Power … [t]o make rules for the Government and Regulation of the land and naval forces.”
  7. 10 U.S.C. §§801-946.
  8. R.C.M. 201-204.
  9. Dynes v. Hoover, 61 U.S. (20 How.) 65, (1857).
  10. Burns v. Wilson, 346 U.S. 137, 140 (1954).
  11. UCMJ, Article 89 and 91.
  12. UCMJ, Articles 90-92.
  13. UCMJ, Article 86.
  14. UCMJ, Article 133.
  15. UCMJ, Article 134.
  16. RCM 306(b).
  17. RCM 401 is the introduction to Chapter IV of the Manual for Courts-Martial, Forwarding and Disposition of Charges that holds only commanders authorized to convene courts-martial or nonjudicial punishment may dispose of charges. 
  18. RCM 306(c).
  19. AR 600-20.
  20. Id. 
  21. AR 600-37, AR 25-400-2, Para. B-80.
  22. UCMJ, Article 15, 10 U.S.C. §815, AR 27-10, Chapter 3 for the Army. 
  23. AR 601-280.
  24. AR 380-67.
  25. AR 600-8-19, Chap. 6.
  26. Army administrative actions include formal counseling (AR 600-20), corrective training (AR 600-20, Para. 4-6b) and Personnel Separations-Enlisted Personnel (AR 635-200).
  27. 10 U.S.C. §815 (emphasis added).
  28. MCM, Chapter XIII Summary Courts-Martial.
  29. 10 U.S.C. §819.
  30. UCMJ, Article 119.
  31. OKLA. STAT. tit. 22 §258.
  32. U.S. v. Roberts, 10 M.J. 308 (C.M.A. 1981) and R.C.M. 405(a).
  33. 10 U.S.C. §382.
  34. 54 Stat. 19 (Feb. 1, 1940) and 40 U.S.C. §255.
  35. OKLA. STAT. tit. 80 §1.
  36. OKLA. STAT. tit. 80 §2 (emphasis added).
  37. Okla. Op. Att’y Gen. No. 1998 OK AG 21, ¶7 (emphasis added). 
  38. State v. Smith, 328 N.C. 161 (1991).
  39. Local 514 Transport Workers Union of America v. Keating, 2003 OK 110, ¶5.
  40. United States v. Unzeuta, 281 U.S. 138 (1930).
  41. 18 U.S.C. §§1153 et seq.
  42. Bosse v. State, 2021 OK CR 3, ¶23 (emphasis added).
  43. Akin v. Big Three Industries, 851 F. Supp. 819 (1994).
  44. Id. at 822.
  45. U.S. Const. art. I, §8, cl. 17.
  46. See 18 U.S.C. §§81, 661, 662, 1363 and 2111.
  47. See Collins v. Yosemite Park Co., 304 U.S. 518 (1938).
  48. 18 U.S.C. §7(3).
  49. OKLA. STAT. tit. 47 §11-902.
  50. 18 U.S.C. §13, state crimes not codified in the UCMJ may be incorporated by the Assimilated Crimes Act and UCMJ Article 134.
  51. United States v. Sharpnack, 355 U.S. 286 (1957).
  52. United States Constitution, Article 1, Section 8 details the majority of the powers granted by the Constitution.
  53. United States Constitution, Bill of Rights, 10th Amendment.
  54. 28 U.S.C. §543.
  55. 32 C.F.R. §516.4(e)(1).
  56. Federal Rules of Criminal Procedure, Rule 58 Petty Offenses and Other Misdemeanors.