Section 400.115  Jurisdiction to Try Certain Personnel

a)         Jurisdiction Over the Person

1)         The following persons are subject to jurisdiction under the Code:

A)        a member of the SMF when in State active duty or OTAD, but at no other times;

B)        a person in custody of the SMF before trial or serving a sentence imposed by a court-martial;

C)        a person who has voluntarily enlisted in the SMF and who has the capacity to understand the significance of enlisting in the SMF.  The enlistment shall be valid for purposes of jurisdiction and a change of status from civilian to member of the SMF.  This form of jurisdiction shall be effective upon the taking of the oath of enlistment; and

D)        notwithstanding any other provision of law, a person serving in the SMF who:

i)          submitted voluntarily to military authority;

ii)         met the mental competence and minimum age qualifications of 10 USC 504 and 505 at the time of voluntary submission to military authority;

iii)        received military pay or allowances; and

iv)        performed military duties.

2)         A person remains subject to this Manual until the person's active status has been terminated in accordance with the law of the armed forces (10 USC) and the Military Code of Illinois [20 ILCS 1805] or the State Guard Act [20 ILCS 1815] and any of the applicable regulations of the National Guard Bureau or of that person's active component service, unless termination of status has been effectuated through the person's fraudulent activity.  If a person is charged and found guilty at court-martial of fraudulently obtaining discharge, Code Section 3 applies and the person may thereafter be charged for all offenses that were committed under the Code prior to the discharge, subject to the statute of limitations provided for in Code Section 43.

3)         The Adjutant General may, without the member's consent, order a member of the SMF to State Active Duty for the purposes of implementing any proceedings initiated under the Code.

4)         No person who has deserted from the SMF may be relieved from amenability to the jurisdiction of the Code by virtue of a separation from any later period of service. (Code Section 3(b))

b)         Subject Matter Jurisdiction

1)         Military Offenses.  Offenses of a military nature contained in Code Section 1(a)(14) may be the subject of administrative measures, nonjudicial punishment, or courts-martial jurisdiction, except as provided in subsection (b)(2).  Offenses of a military nature are derived from the UCMJ and, to the extent not inconsistent with the Code, this Manual reflects each element of the offense as described in the UCMJ, with the following clarifications:

A)        Insofar as an element refers to the United States, the element also will refer to the State of Illinois.

B)        Insofar as an element refers to individuals in the service of the United States or federal officials, the element also will include individuals in the service of the SMF or State officials as provided Code Sections 1(a)(14) and 88.

C)        Insofar as an element refers to the property of the United States, the element also will include property of the State of Illinois.

2)         Non-military Offenses

A)        A non-military offense is an offense that violates the Code and the criminal law of the United States, a state or a local jurisdiction. (Code Section 2(b)) Non-military offenses may be disposed of by nonjudicial punishment or courts-martial, provided jurisdiction exists under the Code and this Manual. Non-military offenses may be subject to prosecution under U.S., state or local jurisdiction (see Code Sections 133, 134 and/or 149).

B)        A proper civilian court has primary jurisdiction when an act or omission violates both the Code and the criminal law of the United States or of the state where the offense occurred.  In such cases, a State court-martial or NJP proceeding may be initiated only after the civilian authority has declined to prosecute or has dismissed charges, provided jeopardy has not attached, as provided in Section 400.835. (Code Sections 2(b) and 44)  However, nothing in this Manual precludes a commander from taking administrative action even if the civilian authority exercises jurisdiction. Administrative remedies shall not be considered double jeopardy.

C)        An SMF member who is subject to jurisdiction under the Code may be ordered to duty involuntarily for any purposes under this Manual or the Code.

D)        Coordination with the Attorney General or other appropriate prosecutorial authorities is essential to ensure that judge advocates prosecute with the cooperation of the local State's Attorney.  A commander shall refer all suspected civilian offenses to a judge advocate who shall coordinate with the proper authorities when appropriate.