United States v. Christensen

• Court: Court of Appeals for the Armed Forces
• Decided: July 10, 2018
• Docket: 17-0604/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Christopher E. CHRISTENSEN, Private First Class United States Army, Appellant No. 17-0604 Crim. App. No. 20140372 Argued May 1, 2018—Decided July 10, 2018 Military Judges: John T. Rothwell (trial) and Jacob D. Bashore (DuBay hearing) For Appellant: Captain Cody Cheek (argued); Colonel Mary J. Bradley, Lieutenant Colonel Christopher D. Carrier, Lieutenant Colonel Tiffany Chapman, Major Christopher Coleman, and Major Brendan R. Cronin (on brief). For Appellee: Captain Meredith M. Picard (argued); Colonel Tania M. Martin and Captain Allison Rowley (on brief); Major Michael E. Korte. Judge OHLSON delivered the opinion of the Court, in which Chief Judge STUCKY and Judge SPARKS joined. Judge MAGGS filed a separate concurring opinion, in which Judge RYAN joined. _______________

Judge OHLSON delivered the opinion of the Court. Contrary to Appellant’s pleas, a military judge sitting as a general court-martial convicted Appellant of one specifica- tion of sexual assault in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).1 The military judge sentenced Appellant to confinement for eight years, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to the grade of E-1. The con- vening authority approved the sentence and credited Appel- lant with ninety days of confinement credit.

1 The military judge found Appellant not guilty of a second specification of sexual assault in violation of Article 120, UCMJ. United States v. Christensen, No. 17-0604/AR Opinion of the Court

The United States Army Court of Criminal Appeals (CCA) ordered a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to de- termine whether Appellant had been subject to the personal jurisdiction of a court-martial at the time of his military tri- al. The DuBay military judge found that the military had indeed retained personal jurisdiction over Appellant. The CCA agreed and affirmed the findings and sentence. After granting Appellant’s request for en banc reconsideration, the CCA again affirmed the findings and sentence. We granted review on the following issue: “Whether Ap- pellant was subject to court-martial jurisdiction.” United States v. Christensen, 77 M.J. __, __ (C.A.A.F. 2018) (order granting review). We conclude that on the specific facts of this case, there was no personal jurisdiction over Appellant at the time of his military trial. Accordingly, we vacate the CCA’s decision. I. Background A. Facts On March 6, 2013, Appellant’s unit—the 3rd Infantry Division at Fort Stewart, Georgia—recommended and initi- ated his administrative separation from the Army for his failure to complete an alcohol abuse rehabilitation program. Shortly thereafter, Appellant was arrested by civilian au- thorities for a suspected sexual assault involving another soldier and he was placed in civilian confinement. On March 27, the separation authority approved Appellant’s adminis- trative separation from the Army. A sergeant from the unit was assigned to clear Appellant from post while Appellant was in civilian confinement. The sergeant fully cleared Appellant from post on April 17 and Appellant’s identification card was taken from him. Until that time, noncommissioned officers (NCO) from Ap- pellant’s unit had visited him approximately once a week while he was in civilian confinement. However, once Appel- lant finished the last of his clearance paperwork, the last NCO to visit him in April told Appellant he was “ ‘out of the Army now’ ” and wished him good luck. Appellant would not see anyone from his unit again until December.

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Also on April 17, the local Defense Finance and Account- ing Service (DFAS) sought to compute Appellant’s final pay, but could not do so because of the way Appellant’s confine- ment status was coded in the system. In order for the code to be changed to a status where the local DFAS could conduct the final accounting of pay, Appellant’s case needed to be sent to DFAS Indianapolis. As of April 30, Appellant’s Leave and Earning Statement reflected that he owed the Army $1,148.51. Appellant’s discharge orders listed his discharge date as April 17. Appellant’s Department of Defense Form 214, Cer- tificate of Release or Discharge from Active Duty (DD Form 214, Aug. 2009), was completed on April 18. The transition center mailed Appellant’s DD Form 214 to him on April 19, which his father received on April 23. On April 25, the chief of justice at Fort Stewart e-mailed the local DFAS and requested that it stop the accounting of Appellant’s final pay, believing that doing so would permit the Army to exercise court-martial jurisdiction over Appel- lant. The chief of justice acted on his own authority and without coordinating with anyone in command.2 Further, neither he nor the OSJA contacted Appellant to let him know that they were halting his final pay. At the jurisdiction motions hearing, the chief of justice testified that he wanted to have the ability to exercise military jurisdiction over Ap-

2 The chief of justice testified as follows: [Defense counsel]: You were acting without command direction at that point. You were acting on your own authority as the Chief of Justice? [Witness]: Yes. …. [Defense counsel]: You’re acting with no guid- ance from the command, just with coordination in- side the OSJA [Office of the Staff Judge Advocate]? [Witness]: Up to that point, I had not even co- ordinated that upward. At that point, one, I don’t work for the command that was separating him. At that point, I felt like the decision was not the cor- rect one at the division level, and so I asked to stop it. So, yes, I was the one that did that.

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pellant until he could “confirm that the civilians were going to prosecute this [sexual assault case] in a way that we felt was appropriate.” When the chief of justice initially reached out to the transition center about Appellant’s status, an employee re- sponded that “everything has been completed and [Appel- lant] is out of the Army. Sorry.” The chief of justice replied that because Appellant’s “DFAS account is on hold and final accounting of pay has not been completed … the Army has not lost its ability to act on this Soldier.” On or about May 2, the local DFAS received the formal notification to halt Appellant’s final accounting of pay. The local DFAS notified DFAS Indianapolis, which still had Ap- pellant’s case. DFAS Indianapolis closed Appellant’s case without changing the code regarding his confinement status. On May 14, the brigade rear detachment commander e-mailed a member of the OSJA seeking clarification about Appellant’s status. He stated: “On the one hand, I’m track- ing him as still incarcerated down-town, awaiting his grand jury, and separated from the army through [an administra- tive discharge]. [However,] I’ve also heard that the [adminis- trative discharge] has been ‘held up’ by legal.” The OSJA re- sponded that the office halted the final accounting of pay and recommended continuing to halt the pay until it was certain the local authorities would properly prosecute the sexual assault case. Sometime later in May, the brigade rear detachment commander instructed the OSJA to continue to halt the final accounting of Appellant’s pay. The civilian authorities released Appellant on bond to a substance abuse rehabilitation facility on May 14. Appellant had not received any notification that he was entitled to medical care or other military benefits as an active duty member after his outprocessing in April 2013 and Appel- lant’s family used private funds to pay for Appellant’s reha- bilitation and dental care.3 In October and November, Ap- pellant received letters from the Department of Veterans

3 When asked why he did not seek to have the Army pay for his rehabilitation or his dental work, Appellant responded, “I didn’t think I was in the Army.”

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Affairs and the Veterans’ Group Life Insurance program out- lining his benefits as a veteran and noting his transition to veteran status. Despite the actions of the chief of justice beginning in April 2013, it was not until August or September when the brigade commander formally requested a revocation of Ap- pellant’s DD Form 214. Then on September 26, the Govern- ment preferred one charge and specification against Appel- lant. On September 30, the soldier processing center voided Appellant’s DD Form 214 and revoked his discharge. How- ever, it was not until December that anyone from Appel- lant’s unit notified him that he was still considered a mem- ber of the armed forces and that he was going to be court-martialed. The reason Appellant’s unit decided to court-martial him regarding the sexual assault case was because the civilian authorities were “looking to plea him down to probation and a much lesser charge.” A judge advocate from the OSJA not- ed in an e-mail: We have [been] working the last two months to get [Appellant] out of the civilian system without them completely dropping the case and also keep him in rehab while he in-processes, goes to his Art[icle] 32[, UCMJ] hearing, arraignment, and tri- al…. However the continuing rehab is not going to work, the Army would have to pay for it and cur- rently he is paying. On December 12, the Government preferred an addition- al charge with two specifications against Appellant. Two military police officers then arrested Appellant at the civil- ian rehabilitation facility. It was the first time since April that anyone from Appellant’s unit had visited or communi- cated with him. Once Appellant was again in military control, he had dif- ficulty using many of the facilities that would be readily available to active duty soldiers—such as the dining hall— because he was not on the roster of active duty military per- sonnel. He likewise did not have an identification card, as-

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signed quarters, or any of his own uniforms.4 Moreover, Ap- pellant was not paid from April 2013 until January 2014, when his pay was restarted. The charge against Appellant was referred on January 23, 2014.

B. DuBay Ruling The DuBay military judge relied on United States v. Hart, 66 M.J. 273, 277 (C.A.A.F. 2008), and 10 U.S.C. § 1168(a) (2012), in concluding that in personam jurisdiction over a military servicemember is not terminated until all three of the following criteria are met: (1) delivery of a DD Form 214 discharge certificate; (2) completion of the clear- ance process; and (3) a final accounting of pay. Since neither party disputed that Appellant received his DD Form 214 and completed the clearance process, the DuBay military judge focused solely on the “final accounting of pay.” He found that there was no final accounting of pay, and thus there was personal jurisdiction over Appellant. II. Applicable Law We review issues of personal jurisdiction de novo, “ac- cepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record.” United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000). “As this court recognized long ago, ‘It is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent s[o]me saving circumstance or statutory authorization.’ ” Hart, 66 M.J. at 275 (quoting United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985)). However, the UCMJ does not state when a servicemember’s discharge from the armed forces becomes effective for jurisdictional purposes, and thus does not spe- cifically address when a servicemember is no longer subject to being court-martialed. In making this determination, this Court has instead looked to 10 U.S.C. §§ 1168 and 1169 “for

4 Appellant slept in the Charge of Quarters room and wore an- other soldier’s uniform that was dirty and “full of cigarette butts.”

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guidance as to what is required to effectuate discharge.” Hart, 66 M.J. at 275 (emphasis added).5 Based on these statutory provisions, this Court has iden- tified three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdic- tional purposes: (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. Id. at 276–79. Importantly, however, we have explicitly held that this guidance is “not binding when we find that [it] go[es] against reason or policy.” United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015). III. Analysis Consistent with our recent decision in Nettles, we hold that Appellant was not subject to court-martial jurisdiction at the time of his military trial. To hold otherwise would clearly go against “reason or policy.” Id. In reaching this conclusion, we have considered the totality of the following circumstances. First, Army policy declares that a discharge becomes “ef- fective at 2400 [hours] on the date of notice of discharge to the Soldier.” Dep’t of the Army, Reg. 635-200, Personnel Separations, Active Duty Enlisted Administrative Separa- tions § V, para. 1-29.c. (June 6, 2005, rapid action revision issue date, Sept. 6, 2011). Here, Appellant’s father received Appellant’s DD Form 214 on April 23, 2013. Second, the Government did not act in a timely manner when attempting to revoke the discharge. The command waited more than four months after the brigade rear de- tachment commander instructed the OSJA to halt Appel- lant’s pay before revoking Appellant’s DD Form 214. The Government likewise waited months to restart Appellant’s pay and military benefits, conduct command visits, and

5 See also United States v. Watson, 69 M.J. 415, 417 (C.A.A.F. 2011) (“[This] Court has identified three generally applicable ele- ments of a valid discharge.” (emphasis added)); United States v. King, 27 M.J. 327, 329 (C.M.A. 1989) (“We read [§§ 1168 and 1169] as generally requiring that three elements be satisfied to accomplish an early discharge.” (emphasis added)).

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communicate with the Appellant about his status. During the intervening months, the command treated Appellant as a civilian. Third, in light of the attendant circumstances, Appellant held an objectively reasonable belief that he was no longer in the Army. Not only had Appellant received his DD Form 214, cleared post, turned in his military identification card, and been told by the unit’s official representative that he was “ ‘out of the Army now,’ ” but for months afterward he received no visits from his command, used private funds for his rehabilitation facility and dental work, received no com- munication from the unit informing him that his status was in question, received no pay or military benefits, did not have his DD Form 214 revoked, received correspondence from the Department of Veterans Affairs about the benefits he now was entitled to receive as a veteran, and expected no final pay because he owed the government money. Fourth, although it concedes the fact that Appellant had received his DD Form 214 and had cleared from post, the Government cites our decision in Hart as binding precedent and latches onto the argument that Appellant’s discharge was not effectuated because a final accounting of pay had not been conducted. However, in analyzing the Govern- ment’s argument, we begin by reiterating that the three cri- teria derived from 10 U.S.C. §§ 1168 and 1169 serve as guidance—not as prerequisites—when it comes to determin- ing whether a discharge has been effectuated for jurisdic- tional purposes. Hart, 66 M.J. at 277 n.5 (“We have relied on 10 U.S.C. § 1168(a) for guidance in determining the moment of discharge for purposes of UCMJ jurisdiction ….” (empha- sis added)).6 Next, in Hart we expressly noted the following: “This case does not involve any delay in the processing of Hart’s separation pay.” Id. Because the instant case did in- volve a delay in the processing of separation pay, Hart is

6 To be clear, if all three of the criteria cited above have been met, then an accused unequivocally is no longer subject to court- martial jurisdiction. Nettles, 74 M.J. at 290. However, if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances in mak- ing a jurisdictional determination. Id. at 291.

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readily distinguishable. 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 comple- tion of the payment process.” Id. Here, the final accounting of pay was “not accomplished within a reasonable time frame.”7 Thus, Hart is not dispositive of the case before us. Unlike Hart, however, our recent decision in Nettles is directly on point. In Nettles we held that the guidance and criteria derived from § 1168 are “not binding when we find that they go against reason or policy.” Nettles, 74 M.J. at 291. And under the totality of the circumstances in the in- stant case, it is eminently clear that “reason [and] policy” dictate our conclusion that the military retained no jurisdic- tion over Appellant at the time of his court-martial. IV. Decision The decision of the United States Army Court of Crimi- nal Appeals is vacated. The findings and sentence are set aside and dismissed.

7 We note that this failure to act “within a reasonable time frame” was not the result of typical bureaucratic delays and mis- cues. Rather, the delay was due largely to the unilateral action of the chief of justice at Fort Stewart. He was the one who initially halted Appellant’s pay process without command authority, and he did so with the express intention of manipulating the finance process in such a manner as to maintain jurisdiction over Appel- lant until and unless the chief of justice decided he was satisfied with the civilian prosecutor’s handling of the case. These facts weigh against the Government’s position in this case.

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Judge MAGGS, with whom Judge RYAN joins, concurring. A servicemember who has been discharged from the mili- tary is no longer subject to trial by court-martial. See Article 2(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802(a) (listing persons who are subject to court-martial); see also Toth v. Quarles, 350 U.S. 11, 23 (1955) (holding that Congress cannot constitutionally extend court-martial juris- diction to former servicemembers). In many cases, however, determining when a discharge has occurred is difficult. Be- cause the UCMJ does not address the question of when a discharge is complete, we have had to look elsewhere for the answer. In United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985), the government argued that this Court should “permit the Secretary of the Army, by regulation, to establish the moment of discharge.” We declined to do so. Shortly afterward, we developed our own three-part test for determining when a discharge occurs. We held that a dis- charge generally requires delivery of a valid discharge certif- icate, a final accounting of pay, and the completion of a clearing process under appropriate service regulations. United States v. King, 27 M.J. 327, 329 (C.M.A. 1989); ac- cord United States v. King, 42 M.J. 79, 80 (C.A.A.F. 1995). Although we have cited and applied this three-part test for many years, recent cases reveal significant dissatisfac- tion with some of its results. In United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), two dissenting judges asserted that the three-part test should not be applied as “an abso- lute rule.” Id. at 280 (Effron, J., joined by Stucky, J., dissent- ing). In United States v. Nettles, 74 M.J. 289 (C.A.A.F. 2015), this Court initially considered the three-part test, but decid- ed not to apply the test to a reservist based on a newly craft- ed “reason or policy” exception. Id. at 291. Instead, the Court turned to “the statute that actually discharged” the reserv- ist, 10 U.S.C. § 14505 (2012),1 for the answer on when a dis- charge occurred. Id. at 292. The present case goes further and applies the “reason or policy” exception in Nettles to an

1 This statute specified the exact date of discharge for a “cap- tain on the reserve active-status list” who was not selected for promotion. United States v. Christensen, No. 17-0604/AR Judge MAGGS, concurring

active duty servicemember. We decide today that the totality of circumstances, including Army policy, Government delay, and Appellant’s reasonable expectations, preclude strict re- liance on the three-part test. While the “reason or policy” exception may prevent the three-part test from producing undesirable results, relying on the exception has its own difficulty. The exception may leave military judges with insufficient guidance in deciding whether a court-martial may go forward. Uncertainty has significant costs. In this case, for instance, Appellant was tried, found guilty, and sentenced by a court-martial that we only now determine had no jurisdiction. These considerations suggest that the Court may have made a wrong turn in Howard and that we should reconsider our approach for determining when a servicemember has been discharged for the purposes of terminating court-martial jurisdiction. One possible alternative would be to ask first whether an existing statute or regulation specifies when a discharge has occurred. If such a statute or regulation exists, the Court would simply apply that statute or regulation. In a case in which no specific statute or regulation exists, or in the case that the Court concludes that the applicable regulation is invalid, then, and only then, would we need to turn to the judicially created three-part test and considerations of “reason or policy.” For example, when we decided Nettles, we might have started and ended our analysis with 10 U.S.C. § 14505. Because the statute specified when the discharge occurred, we would not have had to consider either the three usual criteria or the “reason or policy” exception. Similarly, in this case, we might have begun by considering Dep’t of the Army, Reg. 635-200, Personnel Separations, Active Duty Enlisted Administrative Separations § V, para. 1-29.c. (June 6, 2005, rapid action revision issue date, Sept. 6, 2011), which provides, with certain exceptions not relevant here, that a discharge “is effective at 2400 on the date of notice of discharge to the Soldier.”2 Only if this regulation were

2 The Secretary of the Army has claimed authority to promul- gate this regulation under 10 U.S.C. § 1169(1) (2012), which pro-

2 United States v. Christensen, No. 17-0604/AR Judge MAGGS, concurring

somehow invalid would we need to resort to our judicially created three-part test and its exception for determining when Appellant’s discharge occurred. This alternative approach would have jurisprudentially firmer underpinnings than our current approach because it would prioritize statutes and regulations over judge-made law. It would address concerns about undesirable results by leaving most policy questions about when discharges should occur to Congress and the service secretaries. The alterna- tive approach also might promote greater certainty than the current approach by subordinating inherently uncertain questions of “reason or policy.” Despite these considerations, this case is not a proper vehicle for overruling our precedents. The parties have not asked us to change how we decide when a servicemember has been discharged. And the alternative approach of look- ing first to statutes and regulations most likely would pro- duce the same result in this case as the Court has reached under our existing precedents. The only regulation cited by the parties would indicate that Appellant was indeed dis- charged before his court-martial, and thus, no military ju- risdiction existed over him. I therefore concur in the Court’s opinion, which applies our existing precedents, and I leave reconsideration of the Court’s long-standing approach to de- termining when a discharge occurs for the purposes of ter- minating court-martial jurisdiction for another case.

vides: “No regular enlisted member of an armed force may be dis- charged before his term of service expires, except—(1) as pre- scribed by the Secretary concerned.” The regulation appears to be a successor of the regulation that the Government asked this Court to follow in Howard.