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.
Christensen’s brief begins with a painfully-long statement of facts. The Army Government Appellate Division’s answer gets to the point much faster:
There is no dispute between the parties . . . that Appellant received his discharge certificate in the form of a DD 214 and that he underwent a sufficient “clearing process.” The issue that was, and remains, in contention is the element requiring final accounting of pay.
Gov’t Div. Br. at 2-3 (quoting record) (marks in original). The Government Division’s brief asserts one fact, however, that will likely get CAAF’s attention:
On or about May 15, 2013, LTC JD, appellant’s rear detachment battalion commander, made the command decision to halt appellant’s Defense Finance and Accounting [hereinafter DF AS] out-processing in order to preserve options for the Army to prosecute the sexual assault allegation. (JA 317-318). This action ratified LTC AT’ s earlier action of stopping appellant’s final accounting of pay…
Gov’t Div. Br. at 4-5 (marks in original). If Christensen’s commander ratified the Chief of Justice’s decision and took action to revoke the discharge certificate as early as May 15, then the seemingly-egregious five months between discharge and revocation might really be a more-palatable one month.
Christensen’s brief makes three arguments that largely turn on the length and significance of the delay.
First, Christensen distinguishes this case from Hart, arguing that this “case was foreseen by the footnote in Hart explaining its holding did not address an intentional delay in the processing of a soldier’s separation pay.” App. Br. at 40. The Government Division responds by distinguishing the steps in the process:
While it would have been prudent for appellant’s command to revoke his DD 214 and separation orders sooner than September 30, 2013, their delay in doing so is immaterial to the question of whether appellant’s final pay and accounting was ready for delivery to him. The date of the revocation does not affect when the government halted the computation of appellant’s final pay.
Gov’t Div. Br. at 11. This argument seems like it will win or lose the case. If someone with actual command authority really did take prompt action to stop Christensen’s final pay, then there is no intentional delay in the processing of Christensen’s pay. Or, alternatively, that prompt action was merely the start of the intentional delay that continued for months (ending when the discharge was actually revoked).
Second, Christensen argues that because he had no pay due at the date of discharge (and actually owed a debt), “the plain language of [10 U.S.C § ]1168(a) was satisfied.” App. Br. at 41. The Government Division’s response is that § 1168(a) is about a process, not a result:
Appellant argues that because he owed a debt to the Army, the final accounting of pay element was met because there was no pay to issue. However, the computing of final pay is a process by which a service member settles his finances before departing; it is not simply a final paycheck. Congress requires every service member to go through final pay and accounting before separating so that both that service member and his or her respective service know which party owes money to the other, exactly how much is owed, and why that particular amount is the correct computation. It is immaterial whether that process results in determination of a final payment due a soldier or a computation of an exact debt he owes the Army. In this case, the process did not occur before appellant’s separation was halted.
Gov’t Div. Br. at 13. But the Government Division also makes the puzzling argument that:
The plain language of 10 U.S.C. § 1168(a) is not satisfied when a service member decides he is finished with the military because he owes a debt.
Gov’t Div. Br. at 14. That’s undoubtedly true, but it doesn’t account for the discharge orders, the DD-214, the abandonment, the termination of benefits, and the subsequent denial of a uniform, quarters, identification, and rations. On balance, the facts of this case suggest that the military decided it was finished with Christensen, not the other way around.
Finally, Christensen makes a policy-based argument that CAAF will likely seek to avoid:
This court should find that reason and policy dictate that Section 1168(a) is not binding in this case, as the command and attorneys erroneously believed the law allowed them to secretly “halt” DFAS processing while waiting for the grand jury findings. Based on the overall record, the unit’s efforts and intentions were clear: they wanted to “wait” to see what “the civilians” would do, without telling appellant or his family.
App. Br. at 45. All authority can be abused, but the existence of an abuse of authority (deliberate or ignorant) does not give CAAF license to rewrite a statute. Furthermore, the Government Division’s brief highlights that the discharge action taken in April was actually an early discharge:
Involuntary discharge under AR 635-200, Chapter 9, was the only reason that appellant was to be separated prior to his ETS date. Jurisdiction was therefore not “indefinitely extended” when the local finance office stopped calculating appellant’s final pay. Appellant was not entitled to leave service (and UCMJ jurisdiction) earlier than January 9, 2015. Halting the finance office’s final pay computation simply cancelled the command’s decision to early discharge appellant.
Gov’t Div. Br. at 17. It’s hard to see how requiring Christensen to complete his enlistment contract is bad policy.
The processing of Christensen’s discharge was lackadaisical at best, and CAAF’s decision in this case will likely brighten and make more bold the line delineating the limit of court-martial jurisdiction. It’s not at all clear, however, where that line will end up with respect to Christensen.