Opinion Analysis: Holding that reserve discharges may self-execute, CAAF finds no personal jurisdiction in United States v. Nettles, No. 14-0754/AF
CAAF decided the Air Force case of United States v. Nettles, 74 M.J. 289, No. 14-0754/AF (CAAFlog case page) (link to slip op.), on Monday, July 6, 2015. Declining to apply the requirement for physical delivery of a discharge certificate to reservists not on active duty, CAAF concludes that the appellant was validly discharged on the effective date of his self-executing discharge orders and was not subject to trial by court-martial, despite the fact that his command attempted to retain him in a military status pending trial. The court reverses the decision of the Air Force CCA and the appellant’s sexual offense convictions, and dismisses the charges.
Judge Stucky writes for a unanimous court.
CAAF granted review of a single issue in this case:
Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.
In 2013 the appellant (a captain in the Air Force Reserve) was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer 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). He was sentenced to confinement for two months, a reprimand, and to be dismissed.
The charges related to events that occurred in May 2007, while the appellant was on active duty. Three months later, in August 2007, the appellant left active duty and entered the Air Force Reserve. Nearly five years later, in March 2012, he was notified that he was twice passed over for promotion to major and, as a result, was to be separated from the reserves on October 1, 2012, pursuant to 10 U.S.C. § 14505.
But in May 2012, the appellant was charged with the offenses at issue. Because of the charges:
The Secretary of the Air Force approved the recall of Appellant to active duty for the purposes of court-martial on July 18, 2012. The special court-martial convening authority’s staff judge advocate asked the Air Reserve Personnel Center (ARPC) to place an administrative hold on Appellant so that he would not be discharged from the service, but the ARPC never did so. Accordingly, a discharge order was generated on September 25, 2012, with an effective date of October 1, 2012.
Slip op. at 2. However, the discharge order was never formally delivered to the appellant because of a shortage of a special card stock used to print an accompanying certificate. Then, “in early November, 2012, the convening authority learned of the erroneously generated order, contacted ARPC, and ARPC rescinded the prior discharge order.” Slip op. at 3.
CAAF’s jurisprudence generally requires three things in order for a discharge to sever personal jurisdiction for a court-martial:
(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations to separate the member from military service.
Slip op. at 3-4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)). These requirements are “based on a civil personnel statute, 10 U.S.C. § 1168(a) (2012).” Slip op. at 4 (citing United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008)). The delivery requirement is at issue in this case. However, delivery cannot “be effective if it is contrary to expressed command intent.” Slip op. at 4. Further, delivery generally requires “actual physical receipt” of the discharge. Slip op. at 5. Under the facts of the case, neither command intent nor actual receipt favor the appellant.
But CAAF “decline[s] to employ the 10 U.S.C. § 1168(a) framework here.” Slip op. at 5.
Judge Stucky begins his analysis by noting that “the discharge and delivery jurisprudence that has been created for active duty personnel is of questionable applicability to the reserves, and there are strong reasons for taking a different approach in this context.” Slip op. at 6. Specifically, Judge Stucky focuses on the needs for certainty and finality with respect to military status:
The overarching interest implicated by the law of personal jurisdiction, and especially discharge jurisprudence, is the need — of both servicemember and service — to know with certainty and finality what the person’s military status is and when that status changes. See United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985) (emphasizing significance of determining the moment of discharge, as this is the moment that the “transaction is complete [and] that full rights have been transferred”).
Slip op. at 6-7. Because of these interests, CAAF rejects outright the physical delivery requirement for the reserve components:
We conclude that that these weighty interests are frustrated by a rule requiring the physical delivery of a discharge certificate for reservists. A reservist relies on the mail and the service’s administrative apparatus to process the certificate and deliver it to him. A panoply of intervening forces can work to prevent this, as is well illustrated by this case, but the member’s status ought not hinge on their occurrence or nonoccurrence. Because certainty of status is so crucial in the discharge context, we decline to apply the physical delivery rule to the reserve components.
Slip op. at 7-8. In its place CAAF looks to the reason for the discharge:
we think it more appropriate to apply the statute that actually discharged Appellant: 10 U.S.C. § 14505 (2012) (“Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy”). The statute reads:
[A] captain on the reserve active-status list . . . who has failed of selection for promotion to the next higher grade for the second time . . . shall be separated . . . not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.
Id. Notably, no mention is made of delivery or even of a certificate. Instead, the statute contemplates a definite date and provides for its computation. This provides finality and certainty, and insulates the process from the potential problems associated with administrative oversight or the mail. Accordingly, in cases of reserve personnel with self-executing discharge orders issued pursuant to statute, it is the effective date of those orders that determines the existence of personal jurisdiction — not physical receipt of a piece of paper. The law has generally moved beyond imbuing formalistic acts with such significance, and we should not require what amounts to livery of seisin to effectuate a discharge.
Slip op. at 8-9 (omissions in original) (emphasis added). A footnote kindly defines livery of seisin:
“[T]he ceremonial procedure at common law by which a grantor conveyed land to a grantee . . . . The ceremony involved going on the land and having the grantor symbolically deliver possession of the land to the grantee by handing over a twig, a clod, or a piece of turf.” Bryan A. Garner, A Dictionary of Modern Legal Usage 534 (2d ed. 1995); see generally Frederic William Maitland, Mystery of Seisin, 2 L.Q. Rev. 481 (1886).
Slip op. at 9 n.4. And while this conclusion appears to be narrowly-tailored to the facts of this case, Judge Stucky ends with a broader holding:
We hold that, in cases where the accused is not on active duty pursuant to an administrative hold on the date the self-executing order sets for a reservist’s discharge, he is not subject to court-martial jurisdiction.
Slip op. at 10.
Yet for its breadth, CAAF’s ultimate holding embodies an unusual fact of this case. After the appellant was charged, the Secretary of the Air Force authorized his recall to active duty for the pretrial and trial process. Yet despite this authorization, the convening authority elected not to recall the appellant outright, but instead only recalled him for discreet events (the Article 32 investigation, pretrial sessions, and then the actual trial proceedings). Because of this, the appellant “oscillated between brief periods of active duty and lengthy periods in a nonduty status.” Slip op. at 10.
It is those oscillations that are crucial to CAAF’s ultimate holding because the appellant was not on active duty on the statutory date for his discharge from the reserves, and it is clear that had the appellant been permanently recalled and retained on active duty for the purpose of trial, then the result in this case would be very different.
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