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.

Case Links:
• 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

19 Responses to “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”

  1. Tami a/k/a Princess Leia says:

    Government has several problems:
    1.  The SCMCA, O-6, was briefed on both the sexual assault allegation and the chapter action, and was good with separating Appellant with the chapter action.  So the command made the choice to separate Appellant with the chapter, and is now stuck with that choice.
    2.  He was cleared from everything, including Finance.
    3.  This was “let’s wait to see what happens with the civilian case,” instead of “let’s do our own thing, regardless of what happens with the civilian case.”  Government can’t have it both ways. 
    If they’re going to keep jurisdiction over Appellant, I would argue they were required to do the commander and magistrate review to determine if continued confinement was warranted.  They didn’t do that.  And they didn’t take care of him when they yanked him back.  AND they let him languish in jail for 5 months without preferral of charges, you also have a speedy trial violation for your “wait and see what happens, we’re not sure if we want to keep him” attitude.

  2. A Readjusted Servicemember says:

    I don’t think this case will be decided on this issue, but, I think it has to be said that 1168 really has nothing to do with court-martial jurisdiction.
    If it weren’t clear enough by the fact that the statute was part of the GI Bill, an interpretation of 1168 that creates post service-of-discharge jurisdiction until a substantial part of final pay is made ready would also have to give a jurisdictional effect to the time the discharge certificate is “made ready,” not delivery.
    You can’t give jurisdictional effect to only the parts of the statute that helps the government while ignoring the part of the statute that would end jurisdiction at the discharge certificate being “made ready” (as long as out processing and pay were also satisfied). Let alone giving jurisdictional effect to the VA Claim portion of the original statute. 
    To the extent that Hart is interpreted by some mean that 1168 automatically gives the government a bonus 20 days after discharge to change its mind as long as employees haven’t finished punching numbers into a calculator, it might need clarification that, as CAAF already said in Nettles, 1168 is guidance.

  3. Nathan Freeburg says:

    Obviously I agree with ARS on 10 USC 1168 and am hopeful that Nettles signals a shift in CAAF’s jurisprudence.  With that said, the ID card, DFAC (and medical treatment for that matter), lack of pay, etc. issues happen in every case where a putative service member is held past ETS or separation.  I’m seeing this right now for the 4th time with a client.  The government fails every single time to make sure they get paid, get fed, get needed medical treatment, etc.  It would be nice if someone held them accountable.  Or we could find that if the government isn’t treating you like a service member (not paying and feeding you), then you’re clearly not one and therefore not subject to UCMJ jurisdiction.

  4. stewie says:

    Nate, this is clearly a problem with the regulations. I have tried as both a DC and COJ to get folks paid after they were post-ETS, and failed both times because finance does not budge. It was very very frustrating both times.

  5. Tami a/k/a Princess Leia says:

    He wasn’t past his ETS, this was an early separation for ASAP failure.  If the Government’s position was that he continued to be a Soldier, then they were obligated to revoke his orders and get him back on the payroll immediately, not take this “wait and see what happens with the civilian case” approach.  The bottom line is the Government can’t have it both ways.
    The Government’s “policy” argument is ridiculous.  Appellant was released from confinement in May.  So IF he was still subject to UCMJ, then he’s still a Soldier in May, and he’s entitled to pay and allowances when released from confinement.  But he’s been discharged, which doesn’t get revoked until September 30. 
    So for 4+ months, there is a break in service where the Army kicked this person out KNOWING about the sexual assault allegations but choosing not to keep him.  And then AFTER being alerted to what they need to do to fix the problem, the Government drags its feet for 4+ months to revoke the separation orders and DD214.  Then still doesn’t take action to get him back in the system.  Then drags its feet for another 2+ months in getting the “Soldier,” who STILL ISN’T a “Soldier” according to the Army.
    I would argue that 4+ month break between release from confinement and revocation of orders and DD214 is a sufficient break in service that results in the loss of personal jurisdiction.  As far as the final accounting of pay goes (since there was no pay to actually give him), the Government doesn’t get to deliberately avoid or delay its final accounting for the Chief of Justice, who should have nothing to do with this, to make a decision about whether the command is going to change its mind.
    And the Government wants to argue Appellant wasn’t “entitled” to leave the Army early?  Really?  How about Appellant IS entitled to rely on the Government’s informed choice to kick him out of the Army before his ETS?  How about Appellant IS entitled to rely on everyone telling him he’s out of the Army and he can move on with his life? 
    How about the Government having to live with the consequences of its choice to separate him early?  How is requiring the Government to live with the consequences of its informed choices bad policy?  How is requiring the Government to follow the rules and not act in bad faith bad policy?
    If the Government is going to claim continued personal jurisdiction over this Appellant, then why not require the Government to act consistently throughout the entire timeframe to justify that claim, instead of this “maybe we want him, maybe we don’t, it really depends on how tough the civilians will be on this sexual assault case.”  Because as we all know, the Army can’t afford to look weak on sexual assault.  United States v. Schloff, No. 20150724 (Army Ct. Crim. App. Feb. 5, 2018).  And since Appellant’s case ended up with a deal that resulted in a lesser offense with no jail time, if the Army didn’t take the case back, then the Army looked “weak.”

  6. Nathan Freeburg says:

    but if the government can’t pay the accused like a service member (and last time I checked DFAS is part of the government), then maybe the accused isn’t a service member (i.e. we have a constructive discharge if nothing else).  Heck with enlisted service members it’s actually called a “contract”….seems to me that one side is in breach.

  7. k fischer says:

    I think that this should be considered Article 13 punishment, but I know there is a case that says otherwise.  In fact, I wish Article 13 had an appearance test, which the Government would have to disprove beyond a reasonable doubt, kind of like Article 37.  
    I bet Christensen feels like this guy.

  8. Anonymous says:

    So, even if I’m discharged and not accruing pay nor performing any duties anytime after my discharge date, the government still has jurisdiction over me because of the inefficiencies of the military finance system taking weeks after to send my final pay/debt?
    And the command decided to process him for early separation. The CoJ, himself, decided to halt the process due to wanting to look tough on sexual assault, in case the civilians didn’t. What authority does a CoJ, who isn’t a commander, have to do that? It would’ve been one thing to advise the CO about it, have him make the decision to do it, then execute said decision. But to do it himself carte blance THEN advise the CO and get approval is pretty shady.

  9. Cloudesley Shovell says:

    Hart is bad law and should be overruled, as should the entire line of cases that purport to rely on 10 USC 1168 for UCMJ jurisdictional purposes.  10 USC 1168 is not a statute that has anything to do with jurisdiction under the UCMJ.  Rather, it imposes an affirmative duty upon the government to properly process discharges.  Pursuant to the statute, the government is mandated by Congress to (1) provide a discharge certificate (the DD-214) and (2) “ensure his final pay or a substantial part of that pay” is ready for delivery.
    This law was originally passed in 1962 as part of an Act “To amend title 10, United States Code, to codify recent military laws, and to improve the Code.” Pub.L. 87-651 (7 Sep 1962).  There weren’t any computers in 1962, and pay was all done manually.  I would bet that Congress imposed these statutory obligations on the military because the military had gotten in the habit of sending service members home at the expiration of their enlistment or draft obligation, and then didn’t bother with the appropriate paperwork or pay, leading to complaints to Congress.
    I have been pondering this issue for a few days. Is there any other instance in the law, anywhere, where a party may gain a legal advantage through malfeasance?  After all, that’s what Hart invites, and that’s what the government is doing here.  The government is intentionally disobeying a statutory mandate from Congress to gain a legal advantage.  Post-Hart, such malfeasance appears to have been institutionalized, given the facts of the instant case.  What a bizarre world that a court at CAAF’s level would create a legal rule that invites such malfeasance and disrespect for the law.  Such a response to Hart was entirely foreseeable, and in fact CAAF foresaw it, thus footnote 5 in the Hart opinion. 
    Footnote 5, by the way, in light of the facts in this instant case, Christensen, is pretty amusing.  The majority scoffs, “The dissent’s criticism that as a result of our ruling members will be held on active dutyindefinitely sounds a false alarm and is unwarranted for several reasons.”  Ha!  How ’bout them apples?
    Any finally, a personal experience note.  I’m just a retired old fogey, searching around for my emerald ring after that Scilly Islands thing, but I have to wonder, just what is this “final accounting of pay” thing?  I have 6 (!) DD-214’s in my service record, having been on and off active duty many times, and never ever have I ever received any additional pay or any paperwork relating to a final accounting of said pay other than the normal monthly LES, after the date of discharge stated on the DD-214.  How is it, given this age of computers and databases and all that, that DFAS is somehow unable, as required by 10 USC 1168, to have a service members “final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative” at the moment of discharge? 
    Kind regards,

  10. ARS says:

    It’s worse. 1168 was originally in the 1944 GI Bill. It was first codified at 38 USC 693d (1946).
    It also used the same language about discharges for VA claims. And discussed prosthetic devices. 

  11. k fischer says:

    I received a “final accounting of pay” when I outprocessed from Finance at Ft. Benning as a JAG Officer.  In fact, the local finance office advised me that I was to receive approximately $10,000 for my unused leave.  They said it was $10k for only a certain amount of days instead of my full unused leave because they could only pay up to a certain point.  The problem was that, unbenknownst to the local finance office, I had taken all but 5 days of my leave to study for the Georgia bar, then returned to Benning to outprocess.  I was TDS, so my leave form went through some office at some other post.
    The devil on my left shoulder said, “Awesome.  Don’t say anything.  Get paid, make and record a couple of calls where you attempted to inquire where to send overpayments unsuccessfully, and keep the money in an investment account until the statute of limitations for theft have run.”  The angel on my right shoulder said, “Fix this right now and let them know about your leave form.”  The angel on my right should won.  It also had a little to do with the fact that the SJA would have had no qualms about getting his SAUSA to indict me for theft if the overpayment was noticed.  I was slightly unpopular with the Ft. Benning SJA.  Shocking, isn’t it?
    So, I had a piece of paper that showed my final accounting for accrued leave and pay.  Is that the “accounting” that Christensen would have needed?  I can’t remember what I got at Ft. Ben Harrison finance when I ETS’d as a Specialist on my final out. 
    btw, I was the first Spec 4 Mafia UnFLEP candidate who returned as consigliere. Video Et Taceo.

  12. stewie says:

    The rule should be either that jurisdiction is lost at midnight on:
    1. The actual date of ETS, regardless of anything other than a valid flag or preferral of charges.
    2. The date of separation as determined by an administrative discharge of any type, again regardless of anything other than a valid flag or preferral of charges.
    Outprocessing, accounting of pay, delivery of a DD 214, none of that should matter. Jurisdiction should have a bright line to it.
    That would solve a lot of problems. It would also force the government to be diligent if they suspect an accused of a crime, they know they have a ticking clock. And most crimes can be charged and processed by a different sovereign so just refer to the appropriate authority if you uncover something a day later.

  13. Nathan Freeburg says:

    That would be great.  But it doesn’t work because the different sovereign may not take an alleged butt grab seriously enough.  So we have to have a mechanism available for the military to prosecute an almost, kind of sort of former service member…

  14. Sam Horn says:

    k fishcer, Christensen did outprocess from the local finance office prior to completion of his clearing process (or at least an NCO was appointed to outprocess him).  I can see where there would be some hold up from the DFAS end with a Soldier who is outprocessed while in civilian confinement and they have to go back and perhaps calculate when he fell into a no leave do status and how much leave he had accumulated, since that might also need to be adjusted.  But based on testimony from DFAS, that process would usually take 45 days and could maybe take as long as 90.  Certainly, it doesn’t seem (and according to DFAS) it won’t take as long as 5 months.
    There was also testimony from both the local finance office and the local personnel office (who cut the DD214).  Individuals from both sections indicated to the CoJ that the accused could not be brought back on active duty because he had already been processed through the system.  Of course, the government failed to disclose some of the emails because quite frankly, the TC was never cc’d so I guess they weren’t in the possession of the government since the TC didn’t have them.  And the CoJ PCS’d prior to the date of trial.  Of course, when you have the BDE CDR sign a memo (which was conveniently left undated) recalling the accused to active duty, it’s at least a tacit admission that he wasn’t on active duty at the time the memo was signed.  The CoJ testified that even though the BDE wanted Christensen administratively separated, he saw it as his roll as a DIV staff officer to preserve options for the CG.  So, he decided that he could essentially overrule the desires of the BDE CoC without any actual input from the CG because that’s just what good staff officers do.

  15. K fischer says:

    Certainly, if the Accused is being held in civilian confirnement pending civilian trial, then an Ad Sep should placate Gillibrand, McCaskill, Graham, Speier, Sanchez, Boxer, Kirby Dick, Ariana Klay, Rose McGowan, Ashley Judd, and any other advocate of feminist jurisprudence, and provide the Separation Authority an excuse when he is being considered for promotion.  They can then point the finger at the civilians and say, “We thought they had this under control.”

  16. Anonymous says:

    So, when’s the CoJ being charged?

  17. ARS says:

    Does anyone think that if the government was pleased with the civilian decision in that they would have re-outprocessed Christensen and given him a new DD214 with a new date of separation? Of course not. 

  18. Sam Horn says:

    Maybe not a need to reissue the DD214. But since few folks were even aware of the back room deal the CoJ made with DFAS until they started digging into the jurisdiction issue, if they were happy with the outcome in the civilian trial, would anyone have gone back and instructed DFAS to finish their process considering the CoJ has returned to his civilian job. Because it is pretty clear the folks at DFAS were waiting for the word to click the button in their system to conduct the “final pay and accounting.”  The MJ shop was so confused as to which company Christensen would belong to upon his return, the TC swore the BJA to the charge sheet and he then signed as the accuser which all happened under the following CoJ! Of course, the BJA turned around and continued to provide legal advice to the BDE CDR, including having the BC sign the return to active duty memo after signing as the accuser on the charge sheet. An unusual practice of law. 

  19. J says:

    Seems appropriate: