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.