Phil “My Liege” Cave calls our attention to this unpublished 5th Circuit opinion dealing with when a dishonorable discharge is legally effective. United States v. Butler, No. 10-10148 (5th Cir. March 21, 2011) (per curiam).
Butler was a former Air Force Senior Airman who was convicted of theft of government property in 2007 and received a sentence including a dishonorable discharge. AFCCA affirmed his conviction and sentence in this opinion and CAAF denied his petition for review. For reasons known only to himself, after his release from confinement, Butler thought it would be a good idea to walk around in uniform while packing heat. He was promptly arrested by the FBI and charged under a federal statute making it illegal for anyone who has been dishonorably discharged to possess a firearm or ammunition that’s been in interstate commerce. Butler maintained that he didn’t know he had been discharged and that his discharge wasn’t legally effective at the point he possessed firearms. He was allowed to enter a conditional plea in U.S. district court and was sentenced to a whopping 37 months’ confinement — far longer than the 17 months of confinement approved by the CA following his court-martial conviction.
In last Monday’s opinion, the 5th Circuit rejected Butler’s challenge to his conviction. In the part of its opinion less interesting for military justice purposes, the 5th Circuit held that to be convicted of violating 18 U.S.C. 922(g)(6), a defendant need not know that he has received a dishonorable discharge; the only knowledge element is that the defendant knew he was in possession of a firearm.
The more interesting issue is whether Butler had been discharged. A DD-214 had been prepared for Butler, but it was never actually mailed to him “because the Air Force incorrectly believed it did not have a valid mailing address for him.” But like the honey badger, the 5th Circuit doesn’t care. The Fifth Circuit held that “Butler was discharged at the time of his arrest because his discharge documents were ready for delivery and Butler had notice of his discharge.” The court cited 10 U.S.C. 1168(a), which provides: “A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.” (emphasis supplied by 5th Circuit). The 5th Circuit didn’t even address whether Butler’s final pay was ready for delivery — an issue that has proved important in some recent military justice cases finding continued personal jurisdiction over a servicemember. Additionally, the 5th Circuit appears to transform a statutory limitation on executing discharges (a servicemember “may not be discharged or released from active duty until . . . .”) into a statutory definition of when it takes effect — a construction at odds with both the statute’s plain language and legislative history. See United States v. Hart, 66 M.J. 273, 278 (C.A.A.F. 2008) (Effron, C.J., dissenting) (“Section 1168 is a personnel management statute designed to protect servicemembers and their families from the adverse financial consequences of premature separation. . . . The pertinent legislation originated in World War II as part of the Servicemen’s Readjustment Act of 1944, Pub.L. No. 346, § 104, 58 Stat. 284, 285 (1944). This legislation, commonly known as the ‘G.I. Bill of Rights,’ provided ‘Federal Government aid for the readjustment in civilian life of returning World War II veterans.’ 58 Stat. 284.”).
The 5th Circuit maintained that “[m]ilitary case law provides several scenarios when discharge can be effected without actual delivery of a DD-214. First, actual delivery is not necessary when the discharge documents are ready for delivery, and the service member had notice of the discharge. . . . Similarly, when a service member’s discharge documents are ready for delivery and both parties understand the situation, delivery is not crucial.” Applying that understanding of the law, the 5th Circuit concluded:
In Butler’s case, actual delivery was not necessary to effect Butler’s discharge because it is undisputed that the DD-214 was ready for delivery, and Butler could not reasonably have misunderstood his status. Butler was convicted by general court-martial and sentenced to dishonorable discharge from the military nearly two years prior to the date of the instant offense. A complete forfeiture of his military pay took effect on the date of his sentence. [Wrong.] The final forum for appellate review of his conviction had denied his petition for review and affirmed his discharge, more than six months before his firearms possession offense. Because his final appeal had been denied, he could no longer reasonably believe he had appellate leave status.
Former Senior Airman Butler appears to be a first-class knucklehead. But the 5th Circuit is absolutely wrong in contending that one can’t reasonably believe one is on appellate leave following denial of the final step in the appellate process. In fact, an Air Force Regulation requires the issuance of another document — the final order — between the completion of appellate review and the execution of the discharge. See AFI 51-201 at para. 10.9.5 (21 Dec 2007). Thus, in the Air Force, there will ALWAYS be a delay between completion of appellate review and execution of the discharge and, in practice, that delay usually lasts months. So the completion of appellate review is a necessary condition for execution of the discharge, but not a sufficient condition. Yet the 5th Circuit seemed to treat it as the latter. Nor is that the only point at which the opinion confuses necessary and sufficient conditions.
The Butler case’s outcome may be right or wrong. But the 5th Circuit’s rationale for its decision is certainly flawed. At least the court had the sense to provide that its opinion “should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.” Butler, No. 10-10148, slip op. n.*.