United States v. Bailey

11 M.J. 730

• Court: U S Air Force Court of Military Review
• Decided: January 22, 1981
• Docket: ACM S24888
• Status: Published

Opinions

DECISION

KASTL, Judge:

The issue before us is whether court-martial jurisdiction existed over the accused, who was in the process of being discharged for the convenience of the Government. Finding that the military possessed jurisdiction, we affirm.

The accused was scheduled for early separation for government convenience pursuant to Air Force Regulation 39-10.¹ His Request and Authorization for Separation (AF Form 100) was dated 7 November 1979. He received an approved copy of the document on 8 November; it provided an effective separation date of Tuesday, 13 November 1979.

On Sunday, 11 November, after consuming many beers and frozen daiquiris, the accused was involved in on-base drunken driving and assaults upon a security policeman. He fled the scene, and area military and civilian police were alerted to apprehend him. After unsuccessful police efforts and an intervening Monday holiday, he was apprehended on 13 November around 0800 hours and placed in pre-trial confinement. He neither completed outproeessing nor received a discharge certificate, and he subsequently continued to receive military pay.

On 15 November, the accused was charged with driving while intoxicated and twice assaulting a security policeman in the execution of her duties, violations of Articles 111 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 911 and 928.

At trial, he contested in personam jurisdiction of the court. The judge ruled against the accused, who then pleaded guilty to driving while intoxicated but not guilty to the two assaults. He was found guilty of all offenses by a special court-martial consisting of members and sentenced to a bad conduct discharge, confinement at hard labor for two months, and forfeiture of $299.00 per month for two months. The convening authority approved the sentence as adjudged.

I

Before this court, the accused renews his objections to the jurisdiction of the court-martial which tried him.

As then in effect, AFR 39-10 (C 2), para. l-10c, 1 January 1979, provided:

1-10. Method, Effective Date, and Time of Separation:

c. Effective time. Except for court-martial jurisdiction purposes, the discharge or release from active duty of an airman takes effect at 2400 hours on the day of discharge. For the purpose of determining court-martial jurisdiction, discharge or release is effective:

(1) At 0001 hours on the day of discharge if the airman has the separation order, or

(2) At the precise time the separation order is delivered on the day of discharge, [emphasis added]

On its face, this provision suggests that in the case at bar: (a) the accused’s apprehension and pre-trial confinement beginning around 0800 hours on 13 November occurred while he was still a member of the Air Force; but (b) court-martial jurisdiction over him had been relinquished.

We decline to reach such a bizarre conclusion. To the contrary, we find paragraph 1-10c of AFR 39-10, void to the degree it conflicts with Article 2 of the Code, supra.

By its terms, Article 2, 10 U.S.C. § 802 subjects the following individuals to court-martial jurisdiction:

... (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment....

The Congressional intent expressed in Article 2 is clear, and service regulations cannot restrict such jurisdictional scope in a manner contrary to the stated intent of Congress. See United States v. Hutchins, 4 M.J. 190 (C.M.A.1978).² Accordingly, we hold paragraph 1-10c of AFR 39-10 to be a nullity when it seeks to delimit court-martial jurisdiction within the last 24 hours of an enlistment.

Consequently, when the military commenced action with a view to trial by apprehending the accused and placing him in pre-trial confinement, it did so prior to his effective date of discharge and at a time when in personam jurisdiction existed over him.³ Having attached by commencement of action with a view to trial, jurisdiction continued. Paragraph lid, Manual for Courts-Martial, 1969 (Rev.).⁴

II

Our affirmance does not rest solely on the basis that the regulation in question cannot restrict court-martial jurisdiction and that jurisdiction existed on the given facts. We also hold that the military judge did not err when he used a slightly different approach to determine that jurisdiction existed — namely, his decision that jurisdiction had attached on 11 November.

At trial, the military judge determined that: (1) probable cause existed for the gate guard to believe appellant violated Article 111, UCMJ, supra; (2) the guard lawfully exercised custody over the accused; and (3) such conduct constituted commencement of activities with a view to trial under paragraph lid of the Manual, supra, and established continuing jurisdiction over the accused.

In United States v. Buckingham, 9 M.J. 514 (A.F.C.M.R.1980), pet. granted, 9 M.J. 241 (C.M.A.1980), we indicated that when the issue of in personam jurisdiction is raised, it will be decided by the trial judge as an interlocutory matter, applying a preponderance of the evidence standard. Reviewing the decision below for abuse of discretion, we find no error. See also United States v. Barbeau, supra, at 574.⁵

We have considered the other errors assigned by accused and decide them adversely to him.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

MILLER, Judge, concurs.

1 . Air Force Regulation 39-10, Enlisted Personnel, Separation Upon Expiration of Term of Service, for Convenience of Government, Minority, Dependency, and Hardship, dated 3 January 1977.

2 . In United States v. Hutchins, 4 M.J. 190 (C.M. A. 1978), the Court of Military Appeals considered an Army regulation requiring the convening authority to take certain procedural steps before court-martial jurisdiction would continue over an accused being processed for discharge. Private Hutchins contended that the Government failed to follow its own regulation and that such failure precluded exercise of jurisdiction. The Court swiftly disposed of this contention, holding that regulations cannot diminish the effectiveness of jurisdiction mandated by Congress. Military regulations enjoy the force of law, the Court explained, but they must be consistent with Congressional enactments:

As Congress has commanded that jurisdiction continues past the termination of enlistment, the regulation cannot restrict jurisdiction in a manner contrary to the intent of Congress as interpreted by this Court.... Id. at 192.

3 . Any other result would lead to the anomaly that an enlisted member being separated under the then-operative AFR 39-10 could commit purely military crimes on the last day of service and, under certain conditions, claim sanctuary from court-martial. Such mischief cannot be the intent of Congress. See Judge Costello’s thoughtful concurring opinion in United States v. Torres, 3 M.J. 659, 665 (A.C.M.R.1977). See also United States v. Maurer, 23 C.M.R. 503 (A.B.R.1957).

4 . AFR 39-10 has been amended; today, all aspects of discharge — including court-martial jurisdiction — are governed by a single standard of 2400 hours on the date of discharge. IMC 80-1, dated 20 June 1980.

5 . Our conclusion is buttressed by precedents holding that successful completion of a period of military service does not, in itself, serve to automatically discharge a service member. United States v. Hutchins, supra; United States v. Leonard, 19 U.S.C.M.A. 353, 41 C.M.R. 353, (1970); United States v. Hout, 19 U.S.C. M.A. 299, 41 C.M.R. 299 (1970); United States v. Barbeau, 9 M.J. 569 (A.F.C.M.R.1980); United States v. Milam, 22 C.M.R. 862 (A.F.B.R. 1956); United States v. Entrekin, 42 C.M.R. 530 (A.C.M.R.1970). To the contrary, various steps must be taken to terminate military status. Among them are completion of administrative processing, United States v. Griffin, 13 U.S.C. M.A. 213, 32 C.M.R. 213 (1962); United States v. Barbeau, supra; see also United States v. Shenefield, 40 C.M.R. 393, 394 (A.C.M.R.1968), rev’d on other grounds, 18 U.S.C.M.A. 453, 40 C.M.R. 165 (1969); receipt of a discharge certificate, United States v. Leonard, supra; United States v. Scott, 11 U.S.C.M.A. 646, 29 C.M.R. 462 (1960); United States v. Cox, 49 C.M.R. 350 (N.C.M.R.1974); receipt of final military pay, United States v. Barbeau, supra; United States v. Milam, supra; and sufficient notice to the individual whose status is being terminated, United States v. Leonard, supra. Since this accused did not receive a discharge certificate, did not complete administrative outprocessing, and continued to receive military pay, precedents support the concept of continuing military jurisdiction over him.