## Facts

- Raymond G. Averette was a civilian employee of a private contractor supporting the U.S. Army in Vietnam and lived and worked on a U.S. military installation.
- He was accused of participating in a scheme involving the attempted theft of a large quantity of U.S. government-owned batteries.
- The government charged him with conspiracy to commit larceny and attempted larceny.
- Rather than prosecuting in a civilian court, the government tried Averette by court-martial under Article 2(10) of the Uniform Code of Military Justice (UCMJ), which applies to certain persons “serving with or accompanying an armed force in the field” “in time of war.”
- Averette was convicted at court-martial.
- The Army Court of Military Review affirmed the findings with modifications and upheld court-martial jurisdiction.
- Averette appealed, arguing that Article 2(10) did not apply because Congress had not declared war in connection with the Vietnam conflict.

## Issues

1. Whether “in time of war” in Article 2(10), UCMJ, includes an undeclared armed conflict such as Vietnam, permitting court-martial jurisdiction over a civilian contractor employee accompanying U.S. forces in the field.
2. Whether, absent a congressional declaration of war, a court-martial may exercise personal jurisdiction over a civilian under Article 2(10).

## Decision

- The Court of Military Appeals reversed the jurisdictional ruling.
- The court held that Article 2(10) did not authorize court-martial jurisdiction over Averette because the Vietnam conflict was not a war formally declared by Congress.
- The court set aside Averette’s conviction for lack of jurisdiction.

## Legal Principles

- Grants of court-martial jurisdiction over civilians are construed strictly and narrowly, consistent with constitutional limits on military adjudication of civilian offenses.
- For Article 2(10), UCMJ, “time of war” requires a war formally declared by Congress, not hostilities or armed conflict in fact.
- Reading “time of war” broadly to include undeclared conflicts would improperly allow civilian prosecutions in military courts based largely on executive determinations, raising separation-of-powers and constitutional concerns.

## Conclusion

The Court of Military Appeals held that Article 2(10) UCMJ did not permit trying a civilian contractor employee by court-martial during the Vietnam conflict because “time of war” in that provision requires a formal congressional declaration of war, and it therefore vacated the conviction for lack of jurisdiction.


United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970)