A discharge from active duty ends court-martial jurisdiction, though a service member who transfers to the reserves – even the inactive reserves – to fulfill a reserve obligation can be recalled to active duty for prosecution for misconduct that occurred while on active duty. Accordingly, for some people a discharge certificate is like a security blanket (note: I have no affiliation with, and no endorsement is implied by, the link).
But sometimes it’s not clear whether or exactly when a service member was discharged, and court-martial jurisdiction hangs in the balance. That was the case in United States v. Christensen, 78 M.J. 1 (C.A.A.F. Jul. 10, 2018) (CAAFlog case page), when Private Christensen was apparently separated from the Army in April 2013, was charged with a sexual assault and had his discharge certificate invalidated in September 2013, and was involuntarily returned to military control in December 2013. A general court-martial, a conviction of one specification of sexual assault, and a sentence that included confinement for eight years followed.
But CAAF reversed it all, concluding that under the specific facts of the case reason and policy dictate that Christensen was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him. That dramatic reversal is the #4 Military Justice Story of 2018.
CAAF’s decision was hardly a sure thing. Precedent established three requirements for a valid discharge: “(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.” 78 M.J. at 4 (citing United States v. Hart, 66 M.J. 273, 276-79 (C.A.A.F. 2008)). Only the first and third of those things occurred in Christensen, because a senior military prosecutor (“act[ing] on his own authority and without coordinating with anyone in command,” 78 M.J. at 3) delayed the final accounting of Christensen’s pay in a deliberate effort to retain court-martial jurisdiction over the sexual assault allegation at issue. That prosecutor:
testified that he wanted to have the ability to exercise military jurisdiction over [Christensen] until he could “confirm that the civilians were going to prosecute this [sexual assault case] in a way that we felt was appropriate.”
78 M.J. at 3 (second modification in original). We, under the circumstances, seems to have meant he.
Christensen challenged the existence of jurisdiction at trial, but his challenge was denied. He renewed his challenge on appeal, but the Army CCA rejected it based on the reasoning of Hart and the fact that the processing of Christensen’s final pay was halted (properly or not), and so one of the three requirements for a valid discharge was not met. It seemed like a paradigmatic case; Christensen looked like a civilian after issuance of his discharge certificate – he had the certificate, he wasn’t receiving military pay or benefits, he had no uniforms or military identification, and nobody in the service was looking out for him – but under the law he was still in the Army and still subject to court-martial. But then CAAF changed the paradigm.
Writing for a three-judge majority of the court, Judge Ohlson did not explicitly overrule the three requirements but he did de-emphasize them. Relying on the court’s earlier decision in United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (CAAFlog case page)), Judge Ohlson explained that the three requirements are merely guidance and that “guidance is not binding when we find that it goes against reason or policy.” 78 M.J. at 4 (marks and citation omitted). And in Christensen the totality of the circumstances supported the existence of a valid discharge even though Christensen did not receive a final accounting of pay. Those circumstances included:
First, that “Army policy declares that a discharge becomes effective at 2400 hours on the date of notice of discharge to the Soldier.” 78 M.J. at 5. (marks and citation omitted).
Second, that “the Government did not act in a timely manner when attempting to revoke the discharge.” Id.
Third, “in light of the attendant circumstances, [Christensen] held an objectively reasonable belief that he was no longer in the Army.” Id.
Fourth, “[b]ecause the instant case did involve a delay in the processing of separation pay, Hart is readily distinguishable.” Id.
“And finally, in Hart we explicitly stated as follows: ‘We have not had occasion to address the jurisdictional effects if payment [to a discharged servicemember was] not accomplished within a reasonable time frame established by applicable regulation for completion of the payment process.’ Here, the final accounting of pay was ‘not accomplished within a reasonable time frame.’” Id. (marks in original) (citation omitted).
Judges Ryan and Maggs did not join Judge Ohlson’s majority opinion, but they did concur with the result. Writing for them both, Judge Maggs explained that “this case is not a proper vehicle for overruling our precedents.” 78 M.J. at 7. Nevertheless, they avoided the three requirements by applying an Army Regulation that states that the discharge mailed to Christensen was effective at 2400 hours on the date Christensen received notice of the discharge. “Only if this regulation were somehow invalid,” wrote Judge Maggs, “would we need to resort to our judicially created three-part test and its exception for determining when [Christensen]’s discharge occurred.” 78 M.J. at 6. Such a regulations-first approach avoids potential uncertainty in applying the reason and policy exception relied on by the majority, and Judge Maggs emphasized that “uncertainty has significant costs.” 78 M.J. at 6.
Under either approach the three requirements of certificate, final pay, and clearing process are still enough to end court-martial jurisdiction in any case. But after Christensen they are not the only way to end jurisdiction.