Jurisdictional challenges in this scenario are resolved based on the principle that the UCMJ applies to service members at all times and in all places. A service member’s status as being on authorized leave does not remove them from military jurisdiction. This means the military retains the full authority to prosecute a service member for an offense they commit while on leave, regardless of where it occurs. This is known as “personal jurisdiction” based on the member’s military status.
However, if the offense also violates civilian law, a situation of “concurrent jurisdiction” arises. Both the military and the local civilian authorities (e.g., state or local police) have the authority to prosecute the case. The decision of which jurisdiction will proceed is typically handled by coordination between the local prosecutor’s office and the command’s Staff Judge Advocate (SJA). Often, for minor offenses, the military will allow the civilian jurisdiction to handle it. For more serious offenses or those with a military nexus, the military may choose to prosecute.
A military defense attorney cannot get a case dismissed simply because it happened while their client was on leave. However, they will ensure that the proper jurisdictional agreements are followed. The principle of double jeopardy applies; if the service member is tried and convicted or acquitted in a state or federal civilian court, they generally cannot be tried again by a court-martial for the same offense. The attorney’s role is to protect their client from being unfairly prosecuted by both systems.