Argument Preview: Was the soldier who received a discharge certificate and then abandoned for five months still subject to the UCMJ, in United States v. Christensen
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.
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.