On Tuesday CAAF granted review in this Army case:

No. 17-0604/AR. U.S. v. Christopher E. Christensen. CCA 20140372. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT WAS SUBJECT TO COURT-MARTIAL JURISDICTION.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant was in civilian confinement and pending involuntary administrative separation (for alcohol abuse rehabilitation failure) when military authorities decided to retain him on active duty for a possible court-martial. But the administrative separation processing continued, he received separation orders and a DD-214, and DFAS began processing his final pay. The Army CCA, however, found that there was never a final accounting of pay made to the appellant, and so his discharge was not final:

Here, the processing of appellant’s pay stopped at a stage similar to that in Hart, and we find the reasoning of the [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)] court persuasive and controlling. The initial calculations, or snapshot, of appellant’s pay were entered into the DFAS system. Further action to calculate appellant’s final pay depended upon the removal of a code by DFAS. This never occurred since LTC AT acted to halt this calculation and, later LTC JD, as the SPCMCA, effectively ratified this action in a timely manner. Accordingly, we concur with the DuBay military judge that appellant’s “‘final pay or a substantial part of that pay’ were never computed or made ready for delivery to him” and that the Army retained jurisdiction over appellant.

Slip op. at 9.

19 Responses to “CAAF grants review to determine whether an accused was discharged before trial”

  1. Seems Obvious says:

    Assuming the facts in the Army CCA opinion are correct, I’m having trouble seeing why this was granted as an issue.  Aren’t there more interesting things to do, than revisit jurisdiction cases from ten years ago?

  2. Vulture says:

    Being a reservist is synonymous with having a pay issue.  By a GAO examination, fully 100% of NG troups activated in 2002 from 5/19th SF had a pay problem.  So yeah, this deserves a look.

  3. Sam Horn says:

    In this case, the accused’s final accounting of pay was never completed because the CoJ told DFAS to sit on it indefinitely. Not because a commander requested, just because he thought it was a good idea. They pushed the chapter through when they thought prosecution would occur in the civilian jurisdiction. That all changed when the civilian jurisdiction decided to drop it (dead docket the case) and they found out that DFAS never went back and processed the final pay and accounting. So, Christensen was not in the IRR, received a general discharge, and the government preferred charges 9 months after the discharge date on his DD214. I guess my question is, how long can DFAS sit on final pay and accounting based on an email from a JA (and not a commander)? I would request DFAS to stall their procedures as long as possible with every service member exiting the service through ETS or chapter. Indefinite jusrisdiction retained for all!

  4. tinfoil wars says:

    Seems Obv., exactly when citizens can be tried in a court-martial is the most important, and thus most interesting, thing that appellate courts review.  

  5. Nathan Freeburg says:

    Seems Obvious,
    As we saw in Nettles (with some interesting dicta if I recall right), CAAF has started to question whether the “final pay and accounting” lens is the right one to look at.  Likewise even in Hart, I think the majority noted that “final pay and accounting” may not be applicable if it was a government subterfuge in order to preserve jurisdiction.  Reading the tea leaves, the cert here may well indicate that CAAF intends to revisit this.

  6. AdlawGuy says:

    This is not so obvious.  The authority to separate resides not with DFAS, but with the Secretary of the Service concerned, in this case the Secretary of the Army.  That authority is distributed by regulation.  Therefore, the jurisdictional question should make reference to the authorities in place and whether or not the hold on the separation was lawfully ordered by competent authority.  First, we have the question of whether the separation order issued by the SPCMCA was valid pursuant to the Secretary regulation on point.  Pursuant to AR 635-200, the SPCMCA was authorized to approve a Chapter 9.  The CCA opinion refers to two withholding policies.  The DoD O-6 withholding policy referenced withholds disposition of preferred charges, which did not exist at the time of the hold.  The local policy is not described but the only policy that would have affected the validity of the chapter is a withholding under AR 635-300, paragraph 1-19e.  The Secretary of the Army gave the O-5 the authority to order separation under Chapter 9 in 1-19d.  He gave his superior commander the authority to withhold in 1-19e.  He gave TJAG and the SJAs no say in the matter.  Based on the facts presented the separation order was valid when issued.  This fact leads the analysis beyond AR 635-200 to AR 635-8 the regulation governing processing of separations.  Unfortunately for COL Vila’s crew at Fort Stewart, AR 635-8 grants the local MPD office authority to rescind a separation order if it is issued in error.  This is AR 635-8, paragraph 5-5j, permits the local center to correct an erroneous DD 214.  However, once the form is properly issued, the separation process may only be halted by the Human Resources Command.  This rule comes from AR 635-8, paragraph 8-1b grants the Commander, HRC authority to make corrections following proper issuance of a DD 214.  In otherwords, the ministerial act of final pay performed by DFAS following a properly issued DD 214 can only be halted by three authorities.  First, the CG, HRC as named in regulation, second, the exception authority to the regulation, DCS, G-1 and finally, the Secretary of the Army himself.  Neither the local commander, the MPD, or any attorney (to include TJAG) had authority to stop that processing.  Therefore, the Soldier should have been outprocessed by the time charges were preferred.  
    The best ruling would be to hold the Army to its own standards and require the claw back of a separation following an issued DD 214 to be accomplished by proper authority pursuant to standing regulations.  To rule otherwise is to aid and abet those who would issue orders to DFAS on behalf of the Secretary of the Army with no authority to do so.  No court-martial should find its roots in a lawless instruction.
     

  7. Tami a/k/a Princess Leia says:

    It was a sexual assault case, of course they will go out of their way to bend the rules.  They were happy to get rid of him and not pay him and let him be the civilians’ problem, then apparently oops, they look weak on sexual assault.  I hope CAAF overturns.

  8. Sam Horn says:

    The kicker in this case was when the OSJA sent the MPs out to arrest Christensen while he was in rehab and transport him back to Ft. Stewart for the purposes of preferral.  The BDE CDR signed a memo recalling him to active duty which is interesting because what duty status would have been in that would subject him to being recalled?  Of course, you need that memo, otherwise you have MPs arresting a civilian not on a military installation which is problematic.

  9. stewie says:

    Since when can MPs ordinarily arrest anyone off a military installation??

  10. Just Another JAG says:

    stewie,
     
    when they violate the Posse Comitatus act

  11. Charlie Gittins says:

    Violation of civil rights by the MPs.  If there is no court-martial jurisdiction, the US might have a problem. 

  12. Nathan Freeburg says:

    Actually MPs and CID/NCIS/OSI can and do arrest service members off of installations routinely.  They even use force.  They usually do it in cooperation with local law enforcement so as to avoid friendly fire etc.
     

  13. Tami a/k/a Princess Leia says:

    Actually the “military purpose doctrine” is an exception to the Posse Comitatus Act that allows military to perform law enforcement activities on civilians off-post.  The alleged sexual assault involved another soldier, so they can say there was a “military purpose” with a straight face, regardless of Christiansen’s status.

  14. stewie says:

    Disagree Nathan, they “usually do it with cooperation with local law enforcement” because of PCA concerns not “to avoid friendly fire.”
     
    Why would you need to avoid friendly fire if they don’t have to involve the local LE in the first place??
     
    I’ve never been at an installation where, just send the MPs to arrest them was ever remotely considered or uttered by the JAG office.  It was obviously proposed quite frequently by commanders.

  15. Nathan Freeburg says:

    Stewie,
    Maybe PCA played a role but “friendly fire” is definitely a concern cause you have CID running around in football jerseys with concealed firearms conducting buy busts of soldiers in town.

  16. Sam Horn says:

    I’m assuming it was the only option in this case.  How else can we get custody over a civilian off a military installation other than having the MPs arrest him? 
    The ACCA memorandum opinion misstates several facts in this case.  The rear BJA and the forward TC and BJA were absolutely aware of the off post sexual assault allegation prior to the discharge.  In fact, the forward BDE CDR received a brief highlighting the alleged offenses and received notification that the rear BDE CDR (LTC JD) was going to pull the trigger on the Chapter 9.  I also find it laughable that the rear BJA (CPT AC) was unaware of a chapter action generated in his office by his paralegals and presented to the rear BDE CDR for approval.  I don’t see how that even happens. 
    In Hart, it took the squadron commander all of two days to send an order to revoke Hart’s DD 214 and Hart was returned to military custody in a matter of weeks.  Here, it was over 5 months for the order from the BDE CDR to revoke the DD 214 and more than 8 months from the date of separation until return to military custody.  It seems pretty clear based on the timeline that there was a decision to indefinitely withhold final pay and accounting until the civilian jurisdiction made a determination on whether they were moving forward with a trial.  And apparently, DFAS was happy to just sit on everything until given the word from the legal office. 
    Hart and these other PJ cases that hinged on final pay and accounting to sever jurisdiction involved situations where DFAS or the local finance office was still within their normal processing window.  So, final pay and accounting wasn’t available because finance was still working on it when they received the order to stop.  In this case, the judge in the DuBay hearing determined that for DFAS to move a Soldier out of a confined status and put in an active status takes 45-90 days.  DFAS wasn’t even working on completing that task after getting an email from the CoJ.  Both DFAS and the local finance office were well outside their window before commander involvement and revocation of the DD 214 and preferral of charges.  Delaying the process intentionally to retain jurisdiction indefinitely just seems like it shouldn’t be allowed to me.

  17. Vulture says:

    I did not remember this until just now.  There was a dissent in Hart.  It was by Effron and Stucky.  There may be a lot to explore on this issue.

  18. Nathan Freeburg says:

    vulture: yeah I referred to the majority’s response to that dissent above. 

  19. Vulture says:

    File under Fake News then.