CAAFlog » September 2014 Term » United States v. Nettles

CAAF decided the Air Force case of United States v. Nettles, 74 M.J. 289, No. 14-0754/AF (CAAFlog case page) (link to slip op.), on Monday, July 6, 2015. Declining to apply the requirement for physical delivery of a discharge certificate to reservists not on active duty, CAAF concludes that the appellant was validly discharged on the effective date of his self-executing discharge orders and was not subject to trial by court-martial, despite the fact that his command attempted to retain him in a military status pending trial. The court reverses the decision of the Air Force CCA and the appellant’s sexual offense convictions, and dismisses the charges.

Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue in this case:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

In 2013 the appellant (a captain in the Air Force Reserve) was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person (he was acquitted of an allegation of rape). He was sentenced to confinement for two months, a reprimand, and to be dismissed.

The charges related to events that occurred in May 2007, while the appellant was on active duty. Three months later, in August 2007, the appellant left active duty and entered the Air Force Reserve. Nearly five years later, in March 2012, he was notified that he was twice passed over for promotion to major and, as a result, was to be separated from the reserves on October 1, 2012, pursuant to 10 U.S.C. § 14505.

But in May 2012, the appellant was charged with the offenses at issue. Because of the charges:

The Secretary of the Air Force approved the recall of Appellant to active duty for the purposes of court-martial on July 18, 2012. The special court-martial convening authority’s staff judge advocate asked the Air Reserve Personnel Center (ARPC) to place an administrative hold on Appellant so that he would not be discharged from the service, but the ARPC never did so. Accordingly, a discharge order was generated on September 25, 2012, with an effective date of October 1, 2012.

Slip op. at 2. However, the discharge order was never formally delivered to the appellant because of a shortage of a special card stock used to print an accompanying certificate. Then, “in early November, 2012, the convening authority learned of the erroneously generated order, contacted ARPC, and ARPC rescinded the prior discharge order.” Slip op. at 3.

CAAF’s jurisprudence generally requires three things in order for a discharge to sever personal jurisdiction for a court-martial:

(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations to separate the member from military service.

Slip op. at 3-4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)). These requirements are “based on a civil personnel statute, 10 U.S.C. § 1168(a) (2012).” Slip op. at 4 (citing United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008)). The delivery requirement is at issue in this case. However, delivery cannot “be effective if it is contrary to expressed command intent.” Slip op. at 4. Further, delivery generally requires “actual physical receipt” of the discharge. Slip op. at 5. Under the facts of the case, neither command intent nor actual receipt favor the appellant.

But CAAF “decline[s] to employ the 10 U.S.C. § 1168(a) framework here.” Slip op. at 5.

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Today I discovered (the hard way) that CAAF suffered some sort of technical difficulty with its audio recording system during Tuesday’s oral arguments in Ward and Nettles. Both files are of incredibly poor quality.

However, I was able to enhance them significantly, such that you can hear the arguments relatively well. Those enhanced recordings are available (in mp3 format) at the following links:

United States v. Ward, No. 15-0059/NA (CAAFlog case page): Oral argument audio.

United States v. Nettles, No. 14-0754/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Nettles, No. 14-0754/AF (CAAFlog case page), on Tuesday, March 17, 2015 (after the argument in Ward). This case was the subject of a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider Appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his allowing a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

In 2013 Captain Nettles was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person (he was acquitted of an allegation of rape). Appellant was sentenced to confinement for two months, a reprimand, and to be dismissed.

The charges related to events that occurred in May 2007. Three months later, in August 2007, Appellant left active duty and entered the Air Force Reserves. “In March 2011, Appellant was placed in the inactive [sic] ready reserves. On 14 March 2012, the Air Force Reserve Personnel Center (ARPC) notified Appellant he had been twice passed over for promotion, and as a result, his mandatory separation date was set for 1 October 2012.” App. Br. at 3 (citations to record omitted).

Yet by that time, Appellant was already charged with the offenses at issue:

On 8 May 2012, the charges referenced above (and others) were preferred against Appellant. Instead of activating Appellant for the duration of the court-martial process, the government chose to activate him as necessary, and accordingly, activated him in May 2012 for preferral, in July 2012 for his Article 32 hearing, in October 2012 for arraignment, and then again for the actual court-martial.

App. Br. at 4 (citations to record omitted). Article 2(d), UCMJ, confers court-martial jurisdiction upon a member of a reserve component who is not on active duty so long as the alleged offense occurred while the member was on active duty or inactive-duty training.

Despite the fact that that Air Force had the ability to exercise jurisdiction, “on 25 September 2012, Reserve Order (RO) CB-001669 was generated, by direction of the President, honorably discharging Appellant from the United States Air Force, effective 1 October 2012.” App. Br. at 4. But the RO was never mailed to Appellant because the administrative office “ran out of the card stock they used to print the DD Form 256 [a commemorative certificate -zds]” App. Br. at 4. Subsequently, on November 8, 2012 (after the effective date of discharge), an order was issued rescinding RO CB-001669 and Appellant was placed on administrative hold for trial.

Appellant moved to dismiss for lack of personal jurisdiction at trial, and he renewed that issue on appeal.  The trial judge rejected Appellant’s argument and the CCA affirmed, reasoning:

We conclude, as did the military judge, there was never delivery of a valid discharge certificate. The appellant never actually received a valid discharge certificate, and the mere fact that ARPC prepared an order that purported to discharge the appellant does not change the fact that no certificate was ever delivered. Therefore, the appellant remained subject to court-martial jurisdiction.

United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (link to unpub. op.). CAAF then granted review.

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Last term, in the Army case of United States v. Goings, 72 M.J. 202 (C.A.A.F. May 23, 2013) (CAAFlog case page), CAAF affirmed a conviction for indecent acts in violation of Article 134 based upon the appellant’s actions permitting a third-party to watch and videotape consensual sexual activity between the appellant and his partner. In the decision, CAAF rejected an as-applied constitutional challenge to the charge. Writing for a four-judge majority Judge Ryan explained:

No one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence. But that does not answer the altogether different question whether permitting a third party to observe and memorialize one’s sexual activity on videotape is categorically protected as “wholly private and consensual sexual activity” where the trier of fact has deemed the conduct to be prejudicial to good order and discipline in the armed forces and service discrediting. We hold that, under the circumstances of this case, it is not.

Goings, 72 M.J. at __, slip op. at 11 (emphasis added). Notably, CAAF reviewed Goings for plain error because the appellant did not make the as-applied constitutional challenge until appeal. Further, the appellant’s trial strategy was to try and convince the members that “his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting.” Id., slip op. at 7 n.3. Because of this strategy, the appellant did not litigate the issue in a way that would have produced a record sufficient to establish constitutional protection for his actions where their criminal nature is drawn from something other than the actions themselves. As Judge Ryan explained:

When the conduct being charged does not fall directly within the focal point of Lawrence — sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself –- and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial.

Id., slip op. at 12 (emphases added).

But in a recent per curiam opinion in United States v. Nettles, No 38336 (A.F. Ct.Crim.App. Apr. 21, 2014) (link to unpub. op.), a three-judge panel of the Air Force CCA applies this passage from Goings in a way that focuses not on the additional factor at issue (in Nettles it’s conduct unbecomming), but instead focuses on the number of people involved in the sexual activity (in Nettles it’s three).

Captain Nettles was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person. He was sentenced to confinement for two months, a reprimand, and to be dismissed.

The convictions arose from two sexual encounters involving the appellant, another man (a lieutenant colonel identified only as SC), and two women (one in each encounter). “At trial, the military judge denied the appellant’s motion to dismiss these specifications because he found that the alleged conduct did not fall within a protected liberty interest.” Slip op. at 5.

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