CAAF decided the Army case of United States v. Christensen, 78 M.J. 1, No. No. 17-0604/AR (CAAFlog case page) (link to slip op.), on Tuesday, July 10, 2018. In a narrowly-written opinion, the court distances itself from (but does not overrule) its precedent regarding when a servicemember is discharged from the service and court-martial jurisdiction ends. CAAF concludes that under the specific facts of this case, reason and policy dictate that the appellant was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him. The court reverses the findings and sentence, and the decision of the Army CCA, and dismisses the charges.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Maggs writes separately, concurring, joined by Judge Ryan.

CAAF granted review of a single issue:

Whether Appellant was subject to court-martial jurisdiction.

In 2014, Private First Class (E-3) Christensen was convicted by a general court-martial of one specification of sexual assault in violation of Article 120 (2012), and sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge.

A year before the trial – in March 2013 – Christensen was pending administrative separation from the Army and “was arrested by civilian authorities for a suspected sexual assault involving another soldier and he was placed in civilian confinement.” Slip op. at 2. While in that civilian confinement, Christensen’s administrative separation was approved by the separation authority, a sergeant “fully cleared [Christensen] from post,” his military identification card was taken from him, and a noncommissioned officer visited him in April and told him “he was ‘out of the Army now’ and wished him good luck.” Slip op. at 2.

That, however, is not enough to discharge a servicemember from the Armed Forces under CAAF’s precedent. Rather, a servicemember is discharged (and court-martial jurisdiction ends) only after three things happen: “(1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations.” Slip op. at 7 (citing United States v. Hart, 66 M.J. 273, 276-79 (C.A.A.F. 2008)).

Christensen was cleared, and a DD-214 was mailed to his home (stating his date of discharge as April 17, 2013), but his final accounting of pay was delayed by the chief of justice (senior prosecutor) at Fort Stewart, GA. That military prosecutor:

acted on his own authority and without coordinating with anyone in command. Further, neither he nor the OSJA contacted Appellant to let him know that they were halting his final pay. At the jurisdiction motions hearing, the chief of justice testified that he wanted to have the ability to exercise military jurisdiction over Appellant until he could “confirm that the civilians were going to prosecute this [sexual assault case] in a way that we felt was appropriate.”

Slip op. at 3-4 (marks in original). Judge Ohlson’s majority opinion also observes that:

Despite the actions of the chief of justice beginning in April 2013, it was not until August or September when the brigade commander formally requested a revocation of Appellant’s DD Form 214. Then on September 26, the Government preferred one charge and specification against Appellant. On September 30, the soldier processing center voided Appellant’s DD Form 214 and revoked his discharge. However, it was not until December that anyone from Appellant’s unit notified him that he was still considered a member of the armed forces and that he was going to be court-martialed.

Slip op. at 5. Thereafter Christensen “had difficulty using many of the facilities that would be readily available to active duty soldiers—such as the dining hall—because he was not on the roster of active duty military personnel. He likewise did not have an identification card, assigned quarters, or any of his own uniforms. Moreover, [Christensen] was not paid from April 2013 until January 2014.” Slip op. at 5-6.

Christensen challenged the existence of jurisdiction at trial and also on appeal at the Army CCA, but the challenge was denied on the basis that “there was no final accounting of pay” (as required under CAAF’s precedent, including Hart), and so there was no valid discharge. Slip op. at 6.

CAAF does not disagree with the conclusion that there was no final accounting of pay, but the majority nevertheless finds no jurisdiction to try Christensen by court-martial in 2014 because “to hold otherwise would clearly go against ‘reason or policy.'” Slip op. at 7 (quoting United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (CAAFlog case page)).

Judge Maggs’ concurring opinion agrees with the majority’s conclusion that there was no jurisdiction, but it “prioritize[s] statutes and regulations over judge-made law.” Con. op. at 3. Seemingly uncomfortable with the majority’s embrace of a reason or policy exception to the three-part test from Hart, Judge Maggs and Judge Ryan would determine the existence of a jurisdiction-ending discharge by first identifying whether a statute or regulation “specifies when a discharge has occurred,” and if one does then “the Court would simply apply that statute or regulation.” Con. op. at 2. And in this case there is such a regulation: Army Regulation 635-200, “which provides, with certain exceptions not relevant here, that a discharge ‘is effective at 2400 on the date of notice of discharge to the Soldier.'” Con. op. at 2 (quoting AR 635-200 at ¶ 1-29.c).

The majority’s approach does not overrule the three-part test from Hart, but it does weaken it. Judge Ohlson relies on the court’s 2015 decision in Nettles for the holding that the three-part test is merely guidance, and

this guidance is “not binding when we find that [it] go[es] against reason or policy.”

Slip op. at 7 (quoting Nettles, 74 M.J. at 291) (marks in original). In Nettles, CAAF found no jurisdiction to try an Air Force reservist who received self-executing discharge orders (based on his failure of selection for promotion and the applicable statute requiring his separation under those circumstances). The issue in Nettles was that the physical discharge certificate was delayed because of a shortage of special paper on which the certificate was to be printed. Writing for a unanimous court, then-Judge Stucky rejected such a delay as a valid extension of jurisdiction, explaining that:

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.

Nettles, 74 M.J. at 292. The facts of Christensen are different – involving a final accounting of pay rather than delivery of a certificate – but the pragmatic underpinnings are the same. Judge Ohlson explains that “consistent with our recent decision in Nettles, we hold that [Christensen] was not subject to court-martial jurisdiction . . . in reaching this conclusion, we have considered the totality of the following circumstances.” Slip op. at 7. Those circumstances are:

First, that “Army policy declares that a discharge becomes effective at 2400 hours on the date of notice of discharge to the Soldier.” Slip op. at 7 (marks and citation omitted).

Second, that “the Government did not act in a timely manner when attempting to revoke the discharge.” Slip op. at 7.

Third, “in light of the attendant circumstances, Appellant held an objectively reasonable belief that he was no longer in the Army.” Slip op. at 8.

Fourth, “[b]ecause the instant case did involve a delay in the processing of separation pay, Hart is readily distinguishable.” Slip op. at 8-9.

“And finally, in Hart we explicitly stated as follows: ‘We have not had occasion to address the jurisdictional effects if payment [to a discharged servicemember was] not accomplished within a reasonable time frame established by applicable regulation for completion of the payment process.’ Here, the final accounting of pay was ‘not accomplished within a reasonable time frame.'” Slip op. at 9 (marks in original) (citation omitted).

None of these factors is given special emphasis, except that a footnote places blame for the delay of the final accounting of pay:

We note that this failure to act “within a reasonable time frame” was not the result of typical bureaucratic delays and miscues. Rather, the delay was due largely to the unilateral action of the chief of justice at Fort Stewart. He was the one who initially halted Appellant’s pay process without command authority, and he did so with the express intention of manipulating the finance process in such a manner as to maintain jurisdiction over Appellant until and unless the chief of justice decided he was satisfied with the civilian prosecutor’s handling of the case. These facts weigh against the Government’s position in this case.

Slip op. at 9 n.7. Unstated – but pretty clearly implied – is that the chief of justice had no legal authority to take such action.

Another footnote explains that the three-part test from Hart is dispositive, but not exclusive:

To be clear, if all three of the criteria cited above have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction. Nettles, 74 M.J. at 290. However, if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances in making a jurisdictional determination. Id. at 291.

Judge Maggs’ concurring opinion largely stops after the first of the majority’s five factors: the Army policy that a discharge is effective at midnight on the date of discharge. Judge Maggs explains that the regulation states “that a discharge is effective at 2400 on the date of notice of discharge to the Soldier,” and that “only if this regulation were somehow invalid would we need to resort to our judicially created three-part test and its exception for determining when Appellant’s discharge occurred.” Con. op. at 2-3 (marks and citation omitted). This reads like a conclusion that Army discharges self-execute, and that the clearing process and final accounting of pay don’t matter, but Judge Maggs’ concurring opinion doesn’t actually say that. Rather, Judge Maggs and Judge Ryan suggest that CAAF “should reconsider our approach for determining when a servicemember has been discharged for the purposes of terminating court-martial jurisdiction.” Con. op. at 2. But they save that reconsideration for another day, with Judge Maggs explaining that:

this case is not a proper vehicle for overruling our precedents. The parties have not asked us to change how we decide when a servicemember has been discharged. And the alternative approach of looking first to statutes and regulations most likely would produce the same result in this case as the Court has reached under our existing precedents. The only regulation cited by the parties would indicate that Appellant was indeed discharged before his court-martial, and thus, no military jurisdiction existed over him. I therefore concur in the Court’s opinion, which applies our existing precedents, and I leave reconsideration of the Court’s long-standing approach to determining when a discharge occurs for the purposes of terminating court-martial jurisdiction for another case.

Con. op. at 3.

CAAF’s resolution of this case seems to be a subtly-written seismic shift in the law of court-martial jurisdiction. The three-part test from Hart is generally viewed as a prerequisite for the termination of jurisdiction, but Christensen holds that it is non-exclusive and that jurisdiction may terminate even if one (or maybe even more) of the three-parts of the test is not satisfied. Moreover, that holding is not tied to a specific statute (as was the case in Nettles), but rather is based entirely on the circumstances of the case.

Combined, Nettles and Christensen support the argument that a servicemember may be discharged (and court-martial jurisdiction may end), even if the person does not receive a discharge certificate (Nettles) and does not receive a final accounting of pay (Christensen). That’s a repudiation of two parts of the three-part test from Hart; the only part that remains (for now) is the completion of the clearing process that is required under service regulations.

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief 
• Appellee’s (Army Gov’t App. Div.) brief 
• Appellant’s reply brief 
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

42 Responses to “Opinion Analysis: CAAF applies a reason-and-policy standard to determine the existence of court-martial jurisdiction, in United States v. Christensen”

  1. Sam Horn says:

    Excellent result.  I agree with the concurring opinion though.  It makes more sense to terminate service, and thus jurisdiction, at 2400 on the date of the notice of discharge.  It makes no sense that a CoJ could instruct DFAS to sit on its hands indefinitely to wait and see what the civilian jurisdiction will do.  It’s too bad Christensen had to sit in jail for 4 years awaiting this result.

  2. Duderino says:

    So CAAF, now being fully aware of the conundrum of Hart’s flaw, elevated to not correct said flaw. WEAK!
    thoughts:
    1. Giant lawsuit for unlawful detention
    2. How will his Criminal background be corrected

  3. Duderino says:

    3. The precedent, IMO, creates too enticing of an incentive for the services to manipulate the already cumbersome military personnel processes to subject a citizen to jurisdiction of a constitutionaly unbalanaced system of justice.  
     
    It should/could be factored that a member only agrees in their contract and by subsequent oath to be subject of the UCMJ for a specified period of time.  

  4. Nathan Freeburg says:

    Duderino’s #3 is something we see again and again. CAAF showed tremendous naïveté in the past. 

  5. Cloudesley Shovell says:

    Exactly what Duderino said.  The prior (awful) precedent on the existence of jurisdiction invited underhanded administrative sleight-of-hand.  This decision moves things in the right direction. 
     
    –CS

  6. stewie says:

    Time to simplify. Final accounting of pay was always a dumb prong upon which to hang jurisdiction. So was delivery of a DD 214 IMO.
     
    The military sets a discharge date. At 2400 on that day, jurisdiction is lost. If you don’t want to lose jurisdiction, change the date beforehand, or prefer charges, or do something else that tolls or moves the date. If you don’t, it’s over.
     
    simple, bright line, and because it’s the service that sets the date, not the Soldier, then the onus is where it should be to get it right.

  7. Abe Froman says:

    Stewie is right on as that would clarify squishy bright lines that aren’t so bright. 
    Also, correct me if I am wrong: we are just waiting on one opinion for this term, Barry?

  8. Michael Lowrey says:

    Abe,
    I could be wrong, but I think there are still three cases out: Barry, Burris, and Jones.

  9. Anonymous says:

    So the CoJ acted on his own accord, not having command authority to do so, because he thought what the civilian judicial system with regard to the sexual assault allegation wasn’t “correct?” Therefore Christensen was unlawfully incarcerated by a court system that didn’t have jurisdiction over him to begin with. Which cost him lost wages, lost medical care, etc. Sounds like a bar complaint to be filed an a civil suit against the CoJ.

  10. Brian Bouffard says:

    Agree with Anonymous. A bar complaint and civil action are necessary and appropriate, because the likelihood the CoJ’s misconduct will be addressed within the military justice system is holding steady at zero percent.

  11. Sam Horn says:

    Not sure how a civil suit would go. The CoJ’s actions were essentially ratified by the trial judge, the DuBay judge, and ACCA. They all thought he had this authority. Not sure why.  Going one step further, his actions were also ratified by the SJA and the CG through the referral process. The SJA was certainly tracking that Christensen was “recalled to active duty” prior to preferral.  the CoJ is also a reservist so I’m assuming that further decreases the chances of anything being addressed through military channels. Not sure how to compensate a young man for taking 4 years of his life. 

  12. Kettle Black says:

    While I might agree that the three-prong test was always stupid, the reactions here over the CoJ’s actions are borderline histrionic.  Like it or not, the state of the law appeared to permit the CoJ’s action.  He/She should have gone about it better (such as getting the SJA’s input…that part perplexes me), but legal offices are able to put various administrative holds on members.  I can’t speak for the Army, but I believe AF legal offices can request that the personnel office place members on investigative and/or court-martial hold.  For a case where the investigation was ongoing and disposition was still pending, it seems at least potentially reasonable that the member be put on hold pending an outcome (again, under what appeared at the time to be the state of the law).  I am not seeing the cause for outrage – and certainly not for the throwing around the E-word (which admittedly has a very low threshold on this blog). 
    The 3-part test is needlessly confusing for servicemembers.  Once the separation date hits, jurisdiction should end; plain and simple.  This case, while perhaps seeming to reign in the potential excesses of the DD214-outprocessing-DFAS evaluation, really just makes it more confusing.  Now, in addition to having a bad test, we are going to add some unpredictability to the scheme with a “reasonable time” analysis.
    Supervisor: Amn Snuffy, you’ve been discharged. 
    Amn Snuffy:  Yes, Sir.
    Supervisor:  Wait, actually you are technically still in the Air Force until you finish outprocessing.
    Amn Snuffy; Understood.
    Supervisor: …and receive your DD 214.
    Amn Snuffy:  Um, OK.
    Supervisor: …and receive your final pay.  Not the pay you just received.  The one you will receive a few months from now, you know, after you have already left base and stopped working here. 
    Amn Snuffy: Uh…
    Supervisor:…unless, of course, Finance takes too long to close your final pay.  If they don’t complete the final pay within a “reasonable time,” then you may be considered to have separated sooner.  Don’t ask me what a “reasonable time” is.  Five people at a court you’ve never heard of will make that decision.
    Amn Snuffy:  *Blink* *Blink*
       

  13. Zachary D Spilman says:

    Also, correct me if I am wrong: we are just waiting on one opinion for this term, Barry?

    If only there were a website that tracked CAAF’s opinions, with a page for each term of court.

  14. Nathan Freeburg says:

    1.  Since Mr. Christensen was not in the Army it would appear that he is not Feres-barred from a suit.  Whether he will have an actionable claim is another matter. 
    2.  As for legal holds, in the Army a commander can place one either by preferring charges or (if of sufficient rank) ordering a hold with a view toward court-martial.  But it’s a command decision pursuant to regulation.  A lawyer doesn’t have the authority to do it and “waiting to see if the civilians take a hard enough line” isn’t a reason.

  15. Sam Horn says:

    How would you put someone on a legal hold when you already administratively separated him? That seems counter intuitive. Wouldn’t you just sit on the separation? If he’s in civilian confinement, he’s in a no pay due status anyways. Even after he’s released, you could just hold off on the chapter and see what the civilian court does.  It doesn’t make sense to say, we want to separate this guy but also put him on a “legal hold.”  He didn’t ETS. The BN CDR approved his chapter and the BDE CDR was informed about both the chapter and the 120 allegation prior to the chapter being approved. And he didn’t say anything about it until he signed the memo requesting Christensen be “returned to active duty” some 5 months after the effective date of his discharge. 

  16. CDR X says:

    Is there a way for a service member to waive the final accounting of pay?  Would be an interesting strategy for someone who saw the jurisdictional issue coming.

  17. J.M. says:

    Does he get 4 years back pay? He was originally chaptered for alcohol abuse, then spent another 4 years in uniform. Does this mean that the 4 years he spent in prison count as active duty time? Whole new Dd214 issued with that 4 years counted as honorable service?
    Or is he simply dropped off at a bus station and forgotten?

  18. Sam Horn says:

    My guess is he gets dropped off at a bus station.  I don’t know how he would be entitled to any back pay since CAAF said he was completely severed from military service.  They court-martialed a civilian and kept him in military confinement for four years.  Giving him back pay or some type of credible time in service would be an acknowledgment that he was in some type of military status which, based on the decision, we know he was not.

  19. Kf says:

    Shouldn’t he be able to file a claim under the FTCA?  If he was not in the military then he can’t be barred by Feres.

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

    I would think he has a claim for 4 years of wrongful imprisonment, and it’s not Feres barred since he wasn’t in the military.  Violation of his 4th Amendment rights to be free from unlawful arrest.  I believe this would be an FTCA claim that the Army needs to settle PDQ.  I think a bar complaint would be appropriate too.
     
    Kettle Horn, the reaction to the CoJ’s actions are hardly “histrionic.”  He had no authority to do what he did, period.  A command decision, not his.  The brigade commander was aware of the Article 120 charge and the separation action and authorized approval to separate him.  The CoJ had no business sticking his nose where it didn’t belong, and the civilian prosecutor negotiating a plea bargain the CoJ didn’t like, well, that’s the way it goes–not the military’s problem anymore.

  21. stewie says:

    No to your question CDR X because sometimes Soldiers owe money as they go out the door…bonus money they have to pay back, debt due to missing equipment, or some other reason, it’s not uncommon.
     
    And I’ve always thought the final accounting of pay and clearing post was a dumb standard. There was never a reason you couldn’t simply establish a date/time when you are no longer on active duty. That simple bright line was an option before, and it’s one now, and 99% of the time it would work just fine. And 1% of the time the government would screw something up and be SOL.

  22. Anonymous says:

    The CoJ isn’t a DA. He doens’t get to arbitrially decide who he charges with crimes, and who he doesn’t. That’s the CA’s authority to do so, as he/she is so advised to do by the SJA. What’s completely disgusting is he took the position that he did what he did based on how he “felt” the local civilian DA was doing with regard to the sexual assault case. Why did he do what he do, who knows? Maybe he had a “high moral compass” and felt that he needed to charge Christensen to satisfy justice. Maybe it’s because he wanted OER fodder by making Commanders look “tough” on the Art 120 train to Congress. Who knows? Either way, he didn’t have the authority to do what he did, his actions falsely incarcerated a civilian, Christensen isn’t bound by Feres, so he’s able to file a civil suit, and a bar complaint is completely appropriate. Because recent history has taught us with he JAG Corps in all branches, there is little to no ethical accountability for Government/Prosecution/Convening Authority misconduct.

  23. Alfonso Decimo says:

    The facts in this case are truly extreme! As for back pay, I think instead the Army will calculate the pay he received after his DD-214 was canceled and add that to his debt to the government.

  24. Sam Horn says:

    At the motions hearing at trial, the CoJ claimed he was just trying to preserve options for the CG. He felt that was his responsibility as a staff officer on the division staff.  It makes little sense to me since they could have just halted the chapter and preserved all their options. Part of the problem may have been that both the division and brigade were deployed leaving a skeleton crew at both brigade legal office and the OSJA during the time of the chapter.  The rear BDE TC/BJA claimed he had never even seen the chapter paperwork and had no idea how it got processed. Strange since it came out of his shop.  Not saying it’s an excuse but people were clearly operating out of their depth. Of course, all this was ratified when the brigade and division redeployed. 

  25. Tami a/k/a Princess says:

    On March 12, 2013, LTC Denius (the rear detachment brigade commander) briefed COL Crider (the forward brigade commander) on appellant’s sexual assault allegations and pending separation for ASAP failure.  (JA 147–51, 312–14).  Pursuant to this briefing, COL Crider did not express any desire to pursue a court martial, nor did he object to appellant’s pending separation.  (JA 147–51, 312–14).   Even though the command knew about appellant’s situation “in Hinesville concerning sexual assault,” 1LT Ramos received the “go ahead” to “push through” the Chapter 9 separation from LTC Garkey, the forward battalion commander, who communicated through video teleconference.  (JA 73).
    On March 26, 2013, MSG Jones, Chief Paralegal NCO, Military Justice, OSJA, 3d Infantry Division and Fort Stewart, requested updates on soldiers in confinement.  (JA 533).  Master Sergeant Jones copied the Chief of Justice (LTC Thalacker) and trial counsel (CPT Carter) on this e-mail.  (JA 533).  The attachment to the email listed appellant as being in civilian pre-trial confinement and pending charges for sexual assault.  (JA 534–35).  On March 27, 2013, LTC Townsend, the 3BSB Commander, approved appellant’s ASAP failure separation.  (JA 94, 537–38).  During the deployment, LTC Denius “acted as the brigade commander, rear” and LTC Townsend “adjudicated the separation actions, the chapters, and the field grade articles 15’s in order that we might keep them in the brigade level.”  (JA 94).  When he signed appellant’s separation action, LTC Townsend knew the action was prepared by the legal office.  (JA 98).  The unit sent appellant’s separation action to the Fort Stewart Transition Center on April 3, 2013.  (JA 561).
     
    In his capacity as Chief of Justice, LTC Thalacker was unhappy with the decision to separate appellant for ASAP failure.  (JA 32–33).  On April 25, 2013, LTC Thalacker emailed Mr. Melvin Dougherty, Chief, Fort Stewart Transition Center, asking if appellant had received his DD 214 and final pay.  (JA 566).  He also wrote, “PFC Christensen will likely be chaptered, but we are not quite ready for him to be out of the Army yet.  Before finalizing, we want to make sure the civilians are going to prosecute the case.”  (JA 566). 
    On April 26, 2013, Ms. Wanda Wright, head of the Human Resources Department for the Fort Stewart Transition Center, responded to LTC Thalacker and said, “[E]verything has been completed and he is out of the Army.  Sorry.” (JA 566).  More specifically, Ms. Wright explained, “The unit cleared him on 18 APR and his DD 214 was completed and mailed out.  Finance stated he was in confinement in their system but they cleared him and DFAS will administratively pay him as of his separation date which was 17 APR.”  (JA 566).

    In what world is it acceptable for a Chief of Justice who disagrees with an informed command decision to unilaterally take action to change the decision?  None.  This wasn’t a case where the rear and the forward weren’t communicating with each other about this guy.  The command chose not to halt the chapter, it went through, that’s the end of it.

  26. Sam Horn says:

    I don’t disagree that there wasn’t commincation. The commander forward was briefed about the case and the pending chapter 9 and his inaction presumably meant he was fine with that decision. I’m just wondering if things would have unfolded differently had the rear TC not have been in that position of running the shop. Like I said, they were operating way out of their depth in the rear. Not that it matters, Christensen was administratively discharged and the CoJ did everything he could to try to preserve jurisdiction. My biggest issue with this case is the trial judge, the DuBay judge, and the ACCA judges backed his actions despite how obviously erroneous the result was.

  27. Kettle Black says:

    Tami,
    As I said, the manner in which the CoJ issued the hold was poor.  However, as Sam Horn pointed out, the actions were essentially ratified through the subsequent preferral/referral.  The command could have just as easily expressed disapproval when it learned of the hold, disciplined the CoJ, and then released the member’s pay and been done with it.  They didn’t…their actions show that they approved (if retroactively) of the hold.  The issue was apparently litigated at trial, where a panel convicted him of the offense.  The reaction is indeed histrionic under those circumstances – as in, exaggerated and over-the-top.  I see nothing rising to the level of “extreme” or “unethical,” as some of the peanut gallery are apparently exclaiming.  It isn’t even close. 
    And again, the CoJ was still operating under what, at the time, seemed to be the existing state of the law before CAAF decided to add the “reasonable time” analysis to what is already a mess of a test. It’s reasonable to fault the CoJ for being out ahead of the commander, but CAAF is to blame for creating the environment where these sorts of games can be – and essentially are encouraged – to be played.  The CoJ was working within the scheme CAAF created. 
     
     

  28. Bell Bivens Devoe says:

    Kettle Black, 
    The calls for ethical complaints, Bivens actions, and civili/criminal liability are par for the course in the comments of this blog (which is great!). 
    But I’d read pages 20-21 of the appellant’s brief before giving the CoJ and OSJA the benefit of the doubt. Rather than blaming CAAF for Hart, I’d say the OSJA exploited the lack of clarity in the law, knowing that the case for jurisdiction was poor. You can lean that far over the line when the likelihood of a trial judge or ACCA remedying the situation is nil. 

  29. Vulture says:

    2010ish a Advance Legal Officers Course student wrote a piece on this for the Army Lawyer.  Wendy Cox I think.  That spells it out pretty well, if somewhat to the issue that is disagreeable here.  COJ is not part of the process of out processing.  According to the article, each post has its own process, but COJ isn’t in that process.  Trying to stop the pay of a person is called theft, correct?  This COJ didn’t just lean over the line.  If he is a reservist, and an LTC, he has been in and out of the Army several times.  He knew the implications of what he was doing.

  30. Alfonso Decimo says:

    I agree the COJ’s issuance of the legal hold was subsequently ratified at multiple levels from the CA to ACCA. The adverse actions proposed on this blog would obviously not pan out against him. I still think the action had extreme consequences and hopefully the MILJUS community will absorb this as a cautionary tale. Many of us have been in a similar situation as young judge advocates and the temptation is strong to take a bold legal action similar to the bold line-officer actions we see from everyone else in the command. This was an overly-bold action IMHO, but is was ratified over-and-over again so adverse action against him would be just another overly-bold legal action by someone else with something to prove.

  31. J.M. says:

    So doing the wrong thing is ok as long as your leadership supports it? I think we found one of the root causes for all the caaflog posts about prosecutor’s making improper arguments and/or committing misconduct. 

  32. Ganthet says:

    Comparing this COJ’s actions to that of young judge advocates is spot on.  Who can’t remember how impressionable and rash we were when we were just starting out as young, know-nothing, precocious 05’s?  To paraphrase a movie, those who abuse their power thrive on the indulgence of society’s ‘understanding.’ 

  33. stewie says:

    J.M. doing wrong isn’t ok, but if it’s vetted and approved by multiple senior folks including courts then yes it’s probably not something a State Bar is going to take action on.
     
     

  34. Vulture says:

    Enabler.

  35. Robert W. Toth says:

    If I’m not mistaken, every ruling or opinion, even one by the trial judge, criticized the CoJ/OSJA. I’m not saying this in support of a claim of civil/bar action. Just saying the courts all expressed displeasure in what the justice shop did, even if they ultimately weren’t going to make the (obvious IMHO) ruling. 
    Also, nothing in the Army Lawyer article would support the way the OSJA handled this. Only if you misread a Coast Guard subject matter jurisdiction ruling. 

  36. Vulture says:

    Toth.  I’m not saying that it does.  If the article is correct, and I have not reason not to believe that it isn’t, each post has it’s own process to carry out.  Also, a very long time ago, CAAFLog had a posting on Hart.  I think that someone said it was a bait and switch.  Did CAAF do the same thing here?  It doesn’t make sense that they would, they want that mess to go away.  But things like clearing the library, the MP station, and finance are different than check in with JAG.  Imagine that – Uh, hey do you guys have any criminal actions going on against me?  Please initial here.

  37. Vulture says:

    I have not reason not to believe that it isn’t,
    Eww, sorry about that one.   Talk about bait and switch.

  38. Sam Horn says:

    Isn’t that problematic as well? All these judges criticize the actions taken explaining this is not the ideal process but ultimately ratifying the actions by denying the original defense motion and subsequent appeals?  The courts agreed this isn’t how MJ shops should operate but ultimately it’s ok. If I were a CoJ (prior to this CAAF ruling), I might think I could do this exact thing and at worse face a wagging finger from ACCA. We still keep the conviction and my chain of command looks even tougher on sexual assaults than your average civilian jurisdiction. The entire process was broken from the start and had the trial judge granted the original defense motion, it wouldn’t have been yet another highlight of how broken many MJ shops actually are. Of course, that’s a risk the CoJ took when he doubled down at the PJ 39a. It’s like the guy was sick the day they taught law at law school. I guess it’s a way to get noticed amongst the Corps, though. 

  39. stewie says:

    If I were a COJ prior to this, I’d have realized this wasn’t my role and at a minimum I needed to fold in the command and the SJA before taking this action…thing is, it strikes me that if this particular COJ HAD done that, all of those folks would have signed on to his proposed COA.
     
    That appears to be the evidence as I see it, so again, while I think it’s the wrong way to go, and CAAF agrees, the calls for effectively punishment are based on what exactly? His actions were ratified by his superiors. If one wants to focus outrage, seems to me that’s where it should be focused, because if the COJ had simply proposed this COA to his superiors vice acting first and proposing later, the exact same result seems likely.

  40. Sam Horn says:

    There were many people involved in this decision.  Shortly after taking action, the CoJ exchanged emails with JAs at HRC to determine the best method to bringing Christensen back on active duty should that trigger need to be pulled.  I’m sure folks at crim law OTJAG were involved too.  The SJA was certainly tracking shortly after the message to halt final pay and accounting was made.  While the initial decision may have been made in a vacuum, there was lots of buy in pretty quickly. 
     
    But what if the command did agree with the COA before the message was sent to DFAS?  Is the lesson from this decision that as long as I get the command and SJA to agree to my COA, I can indefinitely sit on a Soldier’s final pay and accounting until I’m satisfied with the actions a civilian jurisdiction takes?  Why not do that with every Soldier who is being chaptered or ETSing under the cloud of an accusation?  Have the command issue an order to DFAS to wait five years to conduct the final pay and accounting audit.  I realize the decision focuses on the actions the CoJ took and his lack of authority to take those actions but does anyone in the command actually have the authority to do such a thing and if so, how long can the process be delayed? 

  41. stewie says:

    The answer is two-fold:
     
    1. Our ethics rules make VERY clear that if you have buy-in by a senior attorney, you are more or less off the hook except for exceptionally extreme cases (and this ain’t that).
    2. We tend to focus, both ethically and logically, our ire and culpability on those most likely to understand and know the wrongness of their actions.
     
    The answer from this decision is probably that no, you can’t just sit on a Soldier’s final accounting and pay indefinitely, and if you do, that “prong” is going to cease to be meaningful for the purposes of jurisdiction. Just like if you somehow held off on delivery of a DD 214 for no reason other than to extend jurisdiction while you wait for the civilian jurisdiction to complete.  Of course, the EASIEST thing to do would have simply been to prefer charges, but that would have violated both the normal practice of not charging when the civilians do, and the speedy trial clock would have come into play.  So ultimately this case is as much about a 707 violation in my mind as a jurisdictional problem (although it’s certainly the latter as well).
     
    My whole point is, stop obsessing over the COJ, focus on the leadership.

  42. Sam Horn says:

    That was my point as well. The CoJ May have acted unilaterally at the outset but several other attorneys were involved with this process.  There’s a reason the Government was ordered to produce all the SJA’s emails involving this case/accused.