The Sixth Circuit yesterday, in a published opinion, affirmed the conviction of PFC Steven Green under MEJA, here.  The Court rejected Green’s argument that he had not been through the clearing process for discharge and thus was still subject to UCMJ jurisdiction and not MEJA.  The Court adopted CAAF’s standard for determining when a discharge is complete from United States v. King, 27 M.J. 327 (C.M.A. 1989) and United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), and thus found the District Court applied the wrong standard.  The Court went on to find, however, that Green had failed to prove he was not discharged: 

Green contends that his discharge was invalid because it failed to comply with Army Regulations 635-10, 635-19, and 635-200, which required the Army to: (1) collect his identification card; (2) conduct a departure ceremony; (3) advise him to apply for compensation; and (4) provide him with formal counseling. However, Green has cited no authority holding that these regulations are essential parts of the clearing process such that strict compliance is necessary to effectuate a valid discharge. These regulations involve ceremonies and briefings intended to aid a soldier’s transition to civilian life, and they are thus related to the separation process. They are not the sort of formal requirements that determine whether the administrative clearing process required for discharge has been completed.

The Court also rejected Green’s constitutional challenges to MEJA.  After swiftly disposing of the non-delegation and separation of powers arguments, the Court finds that Green’s class-of-one equal protection claim fails to show (1) that he was similarly situated with his active duty military conspirators, (2) that the decision to prosecute was improperly motivated, and (3) that the decision to prosecute was otherwise irrational.  It concludes by quickly dispensing of an odd substantive due process argument.

Judge Mul Thapar (sitting by designation) concurs to diverge from a very out of place colloquy by the majority opinion about leadership failures and Green’s unsuitability for enlistment.

H/t Anon

6 Responses to “Sixth Circuit Affirms Green MEJA Conviction”

  1. Mike "No Man" Navarre says:

    I should have added that on the list of things that Green contended the Army was required to do, I asked myself, “So which one does not look like the others?” Number (1) seemed out of place, but the opinion did not address it separately.

  2. Nomadic says:

    “By letter dated February 15, 2007, Green volunteered to reenlist in the Army in order to subject himself to the military justice system. The Army declined his request.” I bet he did. He knew if he were given the death penalty it would never be carried out. And I disagree that the discussion about leadership failures and his unsuitability for recruitment. Judge Thapar’s position is like telling a beat reporter he has no business writing about baseball because he never played it. This case is a disgrace not only because of what Green did, but also because of how hard the unit tried to cover things up.

  3. WarLawyer says:

    Food for thought, Where in the language of this statute does it limit its reach to American citizens? I have always believed that the core question of its extraterritorial reach begs for a classic Scalia analysis. Can we ask too much to analize this statute in the same vein as the question posed in Crawford? Did our framers envision our laws reaching into foreign countries where no impact in this country can be alleged? There is a case brewing out of the Virginia district involving a South African with no ties to this country beyond the pay check received from a company providing support to our foreign operations.

    Would we view MEJA in the same light if China had a similar statute?

  4. John O'Connor says:

    So who gets to decide which civilians get court-martiald and which ones go to federal court?

  5. John O'Connor says:

    Er, martialed.

  6. Mike "No Man" Navarre says:

    JO’C–Mike Brady?