CAAFlog » October 2017 Term » United States v. Christensen

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).

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Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Hendrix, No. 18-0133/AR (CAAFlog case page): Oral argument audio.

United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page), on Tuesday, May 1, 2018, after the argument in Hendrix. A single granted issue bluntly questions the existence of personal jurisdiction:

Whether Appellant was subject to court-martial jurisdiction.

Private First Class (E-3) Christensen “had a history of being drunk on duty.” App. Br. at 3. That won him an early administrative separation (for alcohol abuse rehabilitation failure). But before he was separated, civilian authorities confined him on suspicion of sexual assault. Then Christensen received his separation orders with an effective date of April 17, 2013, and his DD-214 was mailed to his father on April 23, 2013. After that, Christensen was cut loose: his command stopped visiting him, it advised his father to sell his uniforms, his eligibility for military health insurance ended, and the Department of Veterans Affairs started sending him letters.

But the Army wasn’t done with him yet.

A week after the effective date of Christensen’s separation orders, the Chief of Justice (senior prosecutor) at Fort Stewart, GA, decided that “we are not quite ready for [Christensen] to be out of the Army yet.” App. Br. at 12 (quoting record). The Chief of Justice then contacted finance personnel and delayed the final accounting of Christensen’s pay (which included a debt to the Government based on Christensen’s civilian confinement prior to his discharge). A Chief of Justice doesn’t ordinarily have the power or responsibility to do this, but he did it nonetheless. It wasn’t until September 30, 2013 – a whopping five months later – that the separation orders and DD-214 were revoked. Then, on December 11, 2013, military authorities went to the residential alcohol rehabilitation program where Christensen was a patient, shackled him, and returned him to Fort Stewart where he was initially denied a uniform, an identification card, quarters, and even access to the dining facility. Christensen’s brief to CAAF explains that:

When appellant tried to eat at the dining facility, the noncommissioned officer in charge of providing a meal card said appellant “wasn’t in the system.” (JA 434–35). The unit then provided appellant with a memorandum to take to the dining facility, but a dining facility employee told him, “I can’t let you in with that.” (JA 434–35). After being rebuffed again, appellant “went back to the company,” and a sergeant major had to call the dining facility before appellant could eat. (JA 434–35).

App. Br. at 7.

That was in 2013 and Christensen was charged with a sexual offense. He challenged the existence of jurisdiction at trial, but lost. Then a general court-martial composed of a military judge alone convicted Christensen of one specification of sexual assault in violation of Article 120(a) (2012), and sentenced him to confinement for eight years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Christensen renewed his jurisdictional challenge on appeal but the Army CCA rejected it, concluding that “the processing of appellant’s pay stopped at a stage similar to that in [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)], and we find the reasoning of the Hart court persuasive and controlling.” United States v. Christensen, No. 20140372, slip op. at 9 (A. Ct. Crim. App. June 15, 2017) (link to slip op.). Hart was something of a seminal case in the year of jurisdiction. Airman First Class Hart confessed to numerous drug offenses and was subsequently discharged for physical disability. Hart received his certificate of discharge (DD Form 214) on March 5, 2004, but two days later Hart’s squadron commander moved to stop Hart’s final pay and revoke the DD-214. Within a week Hart was reported as in an unauthorized absence status, and before the end of the month he was apprehended and returned to military control.

Hart mounted aggressive challenges to the existence of court-martial jurisdiction over him, but they were denied based on the provisions of 10 U.S.C. §§ 1168(a) and 1169, which are personnel statutes outlining the requirements for a discharge. §1168 states:

§1168. Discharge or release from active duty: limitations
(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.

(b) This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.

(emphasis added). The question in Hart – and in Christensen – was whether the final pay or a substantial part of it was ready for delivery.

A deeply-divided CAAF ultimately affirmed the existence of personal jurisdiction in Hart. The majority concluded that:

The payment process was halted at the command’s request before the twenty days expired. The language of 10 U.S.C § 1168(a) setting limitations on discharge or release from active duty plainly precludes discharge unless “final pay or a substantial part of that pay” is “ready for delivery.” On the facts of this case, these criteria were not fulfilled. Accordingly, Hart was not effectively discharged and remained subject to court-martial jurisdiction pursuant to Article 2(a)(1), UCMJ.

Hart, 66 M.J. at 277. But a footnote to the first sentence quoted above included an important caveat:

This case does not involve any delay in the processing of Hart’s separation pay. We have not had occasion to address the jurisdictional effects if payment were not accomplished within a reasonable time frame established by applicable regulation for completion of the payment process.

66 M.J. at 277 n.5. The dissenters, however, rejected any binding effect of 10 U.S.C § 1168(a):

[Here] we have a case in which the discharge was ordered at the highest level within the military department, the servicemember cooperated in the separation process with no allegation of fraud on his part, the local command did not place a legal hold on the servicemember, the local command issued a discharge certificate to the servicemember, and the command did not seek to revoke the discharge until several days after the certificate was issued. Under these circumstances, Hart’s military status terminated on the date that the command delivered the discharge certificate to him.

66 M.J. at 280 (Effron, C.J., dissenting). Of the five CAAF judges who decided Hart, only two remain on the court: Chief Judge Stucky (who joined the dissent in Hart), and Judge Ryan (who was in the majority).

Now, in Christensen, CAAF will revisit both the underlying holding of Hart (that final pay must be ready for delivery for a discharge to terminate court-martial jurisdiction), and also the caveat from footnote 5 (the effect, if any, of delay) because where Hart involved only days of delay between issuance and revocation of the discharge certificate, Christensen involves a great many months and a plethora of aggravating factors.

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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.