United States v. Melanson

50 M.J. 641, 1999 CCA LEXIS 93, 1999 WL 243394
CourtArmy Court of Criminal Appeals
DecidedApril 21, 1999
DocketARMY 9801266
StatusPublished
Cited by6 cases

This text of 50 M.J. 641 (United States v. Melanson) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Melanson, 50 M.J. 641, 1999 CCA LEXIS 93, 1999 WL 243394 (acca 1999).

Opinion

OPINION OF THE COURT

SQUIRES, Judge:

Pursuant to his pleas, Private (PVT) Me-lanson was convicted on 10 September 1998 of disobeying a lawful order, disobeying a superior commissioned officer, wrongfully using methamphetamines, committing an aggravated assault, and breaking restriction, in violation of Articles 90, 92, 112a, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 912a, 928, and 934 [hereinafter UCMJ]. Appellant’s approved sentence includes a bad-conduct discharge, confinement for thirty months, forfeiture of all pay and allowances, and notwithstanding the fact he was already a Private El, reduction to Private El. The convening authority credited PVT Melanson with fifty-seven days of credit against the sentence to confinement.

PROCEDURAL HISTORY

Twelve days after contesting the Army’s in personam jurisdiction to court-martial him, and then pleading guilty, PVT Melanson filed a Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus with this Court. Melanson v. Wright, ARMY MISC 9801349 (Army Ct.Crim.App. 6 Nov. 1998)(unpub). After receiving briefs from both government and defense counsel and hearing oral argument, we determined that the issue of in personam jurisdiction should be litigated in the normal appellate process and denied the writ. Id. at 2, 6. Private Melanson’s writ appeal to the Court of Appeals for the Armed Forces was denied on 2 December 1998. Appellant’s petition for reconsideration was denied by our superior court on 14 January 1999.

The case is now before us for review pursuant to Article 66(c), UCMJ. In a lone assignment of error, appellant renews his argument that the Army lacked in personam jurisdiction over him because he had received his discharge certificate as well as an accounting of his final pay, and had outpro-cessed from his unit. We find the military judge’s legal conclusion that the United States retained court-martial jurisdiction over appellant to be correct and affirm the findings and sentence.

FACTS

On 10 May 1998, Staff Sergeant (SSG) Dunn was assaulted outside of the Nashville Club in Vilseck, Germany. His head injuries required hospitalization. Staff Sergeant Dunn was unable to identify his assailants.

During the next week, German Polizei (police), and agents from the local Criminal Investigation Command and Military Police Investigations (MPI) attempted to identify the attackers. As investigators found eyewitnesses to the 10 May fracas, some suspects were “cleared” and other soldiers (to include appellant) became suspects in the investigation of the assault on SSG Dunn.

On 19 May, MPI Investigator (INV) Dillard met with Captain (CPT) Finn, the company commander of appellant and several soldiers who were present at the Nashville Club when SSG Dunn was assaulted. Cap[643]*643tain Finn believed that the description of one of the assailants fit PVT Melanson. Investigator Dillard then photographed appellant (and other soldiers) to aid the eyewitnesses in their identification process.

While police agents were busily attempting to identify SSG Dunn’s attackers, appellant was outprocessing from his unit pursuant to his approved separation under Army Reg. 635-200, Enlisted Personnel, para. 14-12c(2)(17 Oct. 1990)[hereinafter AR 635-200] for wrongful drug use. To comply with U.S. Army Europe’s implementation of transition processing,1 PVT Melanson completed his preseparation administrative outprocessing on 19 May. Pursuant to his separation orders, he was to fly from Germany to his Massachusetts home of record at government expense on 20 May. These orders reflected a discharge date of 20 May. Captain Finn had received both command and legal advice to let PVT Melanson depart unless an eyewitness could positively identify appellant as one of SSG Dunn’s attackers.

At 0008, 20 May 1998, PVT Melanson signed out of his Vilseck unit and was escorted to the Nuernberg airport. From there he flew to Frankfurt, Germany, where he boarded an airplane bound for Washington, D.C. While PVT Melanson was enroute to Frankfurt, INV Dillard was conducting a photographic lineup with two eyewitnesses that he had been unable to find the previous day. Both witnesses identified PVT Melanson as one of SSG Dunn’s attackers.

Captain Finn directed INV Dillard to stop appellant from boarding his flight in Frankfurt. In response to this command directive, the German polizei took PVT Melanson into custody. Later that day, the command revoked appellant’s AR 635-200 administrative separation. On 24 June, CPT Finn preferred court-martial charges against PVT Melanson for the aggravated assault of SSG Dunn and other offenses.

IN PERSONAM JURISDICTION

The question of in personam jurisdiction in appellant’s case was extensively briefed by the parties and addressed through the taking of testimony and evidence at trial. The military judge correctly determined that under military law, a discharge is effective upon receipt of a valid discharge certificate, a final accounting of pay, and completion of the clearing process. See United States v. King, 42 M.J. 79 (1995). Applying the law to the facts developed at trial, she found that while appellant had received copy 4 of his DD 214, that certificate of release from active duty was neither a discharge certificate nor the equivalent thereof. The military judge also found that PVT Melanson had never received his final pay. She did find that appellant had completed the clearing process.

We review a military judge’s legal conclusions under a de novo standard. See United States v. Miller, 48 M.J. 49, 54 (1998)(citing United States v. Davis, 36 M.J. 337, 340 (C.M.A.1993)); Steven Alan Childress and Martha S. Davis, Federal Standards of Review § 2.13, at 2-92 (2d ed.1992). Insofar as her legal conclusion that in personam jurisdiction over PVT Melanson was never lost or extinguished is concerned, she appropriately applied the law.

Court-martial jurisdiction generally is lost when a soldier receives proper notice that his military status has terminated. See 10 U.S.C. §§ 1168, 1169; UCMJ art. 2(a)(1); United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); United States v. Batchelder, 41 M.J. 337 (1994); United States v. Garvin, 26 M.J. 194, 195-96 (C.M.A.1988)(citing United States v. Griffin, 13 U.S.C.M.A. 213, 215-16, 32 C.M.R. 213, 215-16, 1962 WL 4480 (1962)); United States v. Howard, 20 M.J. 353 (C.M.A.1985); United States v. Scott, 11 U.S.C.M.A. 646, 29 C.M.R. 462, 1960 WL 4532 (1960); The Judge Advocates General, [644]*644Annotation, Discharge, Digest of Opinions of the Judge Advocates General of the Army H1IVIIIA-XXB, at 443-61 (1912) (citations omitted); see also

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50 M.J. 641, 1999 CCA LEXIS 93, 1999 WL 243394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melanson-acca-1999.