CAAF will hear oral argument in the Air Force case of United States v. Nettles, No. 14-0754/AF (CAAFlog case page), on Tuesday, March 17, 2015 (after the argument in Ward). This case was the subject of a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider Appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his allowing a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:
Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.
In 2013 Captain Nettles was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person (he was acquitted of an allegation of rape). Appellant was sentenced to confinement for two months, a reprimand, and to be dismissed.
The charges related to events that occurred in May 2007. Three months later, in August 2007, Appellant left active duty and entered the Air Force Reserves. “In March 2011, Appellant was placed in the inactive [sic] ready reserves. On 14 March 2012, the Air Force Reserve Personnel Center (ARPC) notified Appellant he had been twice passed over for promotion, and as a result, his mandatory separation date was set for 1 October 2012.” App. Br. at 3 (citations to record omitted).
Yet by that time, Appellant was already charged with the offenses at issue:
On 8 May 2012, the charges referenced above (and others) were preferred against Appellant. Instead of activating Appellant for the duration of the court-martial process, the government chose to activate him as necessary, and accordingly, activated him in May 2012 for preferral, in July 2012 for his Article 32 hearing, in October 2012 for arraignment, and then again for the actual court-martial.
App. Br. at 4 (citations to record omitted). Article 2(d), UCMJ, confers court-martial jurisdiction upon a member of a reserve component who is not on active duty so long as the alleged offense occurred while the member was on active duty or inactive-duty training.
Despite the fact that that Air Force had the ability to exercise jurisdiction, “on 25 September 2012, Reserve Order (RO) CB-001669 was generated, by direction of the President, honorably discharging Appellant from the United States Air Force, effective 1 October 2012.” App. Br. at 4. But the RO was never mailed to Appellant because the administrative office “ran out of the card stock they used to print the DD Form 256 [a commemorative certificate -zds]” App. Br. at 4. Subsequently, on November 8, 2012 (after the effective date of discharge), an order was issued rescinding RO CB-001669 and Appellant was placed on administrative hold for trial.
Appellant moved to dismiss for lack of personal jurisdiction at trial, and he renewed that issue on appeal. The trial judge rejected Appellant’s argument and the CCA affirmed, reasoning:
We conclude, as did the military judge, there was never delivery of a valid discharge certificate. The appellant never actually received a valid discharge certificate, and the mere fact that ARPC prepared an order that purported to discharge the appellant does not change the fact that no certificate was ever delivered. Therefore, the appellant remained subject to court-martial jurisdiction.
United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (link to unpub. op.). CAAF then granted review.
Appellant’s brief makes a four-part argument for why CAAF should find personal jurisdiction lacking in this case:
First, a DD Form 256, unlike a DD Form 214, is not a “discharge certificate” as that term is understood under the law. Rather, it is a ceremonial certificate, suitable for framing, signifying an Honorable service characterization. . . . Second, delivery of a discharge certificate is not required to give effect to a discharge from the inactive ready reserves, for purposes of jurisdiction, because orders transferring a member to the inactive ready reserves are the equivalent of a discharge certificate. . . . Third, if this Court finds delivery of a DD Form 256 was required, the requirement is inapplicable to this case because RO CB-001669 was a self-executing order that became effective by operation of law on 1 October 2012, and, per RCM 202(1)(B)(i), action taken by the government to rescind RO CB-001669, after the fact, by publishing order RO CB-9, was untimely and unlawful, and as such, void. Fourth, if this Court finds delivery of a DD Form 256 was required, under the specific facts of this case, and in accordance with 10 U.S.C. § 1168(a), Appellant’s DD Form 256 was in fact “ready for delivery,” as required by statute, on 1 October 2012.
App. Br. at 5-6. The Government’s responses to these arguments are that:
In this case, jurisdiction attached at the very latest on 8 May 2012 when charges were preferred on Appellant. After jurisdiction attached, it could only be severed by a valid discharge from all obligations of military service.
Gov’t Br. at 10. That:
in order for Appellant to be validly discharged from the Air Force Reserve, he must have been delivered a discharge certificate.
Gov’t Br. at 11. That:
Even supposing the Reserve Discharge Order was an equivalent to or a valid substitute for a discharge certificate, it could not discharge Appellant without first being delivered to him. Delivery unequivocally did not occur in this case before the Reserve Discharge Order was rescinded on 8 November 2012.
Gov’t Br. at 16. And that:
the Reserve Discharge Order generated . . . on 25 September 2012 was not issued in accordance with the requirements and limitations of 10 U.S.C. § 14513, and therefore was invalid and could not effect Appellant’s discharge.
Gov’t Br. at 19.
But it’s Appellant’s reply brief that presents what is perhaps the clearest explanation for why CAAF should find personal jurisdiction lacking in this case. Noting that this case does not involve the typical fact pattern of a discharge from active duty (but rather that it involves a discharge from the reserves in a manner that terminates jurisdiction under the recall provisions of Article 2(d)), Appellant’s reply brief explains that precedent and law addressing discharges from active duty are inapplicable and that service regulations should apply. In particular, Appellant’s reply brief notes that Air Force Instruction 36-3209 (Separation and Retirement Procedures for Air National Guard and Air Reserve Members) states:
Orders directing separation or discharge become effective at 2400 on the date specified if the member receives actual or constructive notice on or before the effective date specified in the orders. If a member intentionally avoids receipt of the notice or if the delivery cannot be made through normal postal channels, the effective date specified in the orders will be considered to be the date official notification was received.
Reply Br. at 3-4. The oral argument of this case will likely involve significant discussion of why CAAF should not simply enforce the plain language of this Air Force regulation and find that Appellant was discharged prior to trial (an action that the Government could have preempted if that’s really what it wanted to do).
An additional factor is that the events leading to the charges in this case occurred in Jacksonville, Florida, where the Government could easily establish jurisdiction in the civil courts. Yet the Government chose to recall Appellant for a court-martial (that occurred after Appellant’s mandatory separation date). CAAF may well be interested in the policy considerations justifying such a choice.
• AFCCA opinion
• Blog post: The AFCCA rejects constitutional protections for threesomes
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview