Opinion Analysis: CAAF applies a reason-and-policy standard to determine the existence of court-martial jurisdiction, in United States v. Christensen
CAAF decided the Army case of United States v. Christensen, __ M.J. __, 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.
• 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
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• CAAF opinion
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