Webb v. United States

67 M.J. 765, 2009 CCA LEXIS 131, 2009 WL 1513287
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 20, 2009
DocketMisc. Dkt. No. 2009-01(pet)
StatusPublished
Cited by7 cases

This text of 67 M.J. 765 (Webb v. United States) is published on Counsel Stack Legal Research, covering United States Air Force 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
Webb v. United States, 67 M.J. 765, 2009 CCA LEXIS 131, 2009 WL 1513287 (afcca 2009).

Opinion

FRANCIS, Senior Judge:

Multiple charges were preferred against the petitioner on 11 December 2008, with an additional charge preferred on 19 December 2008. By order of 24 December 2008, all charges were referred to trial by general court-martial. At the start of his trial on 5 January 2009, prior to entering pleas, the petitioner moved to dismiss all charges and specifications, arguing that he was discharged from the Air Force effective 23 October 2008 and that the court-martial therefore lacked in personam jurisdiction. After an evidentiary hearing on the issue, the military judge denied the motion. The petitioner subsequently filed with this Court a petition for extraordinary relief, seeking a writ of mandamus ordering the dismissal of all charges and specifications.2 We deny the petition.

Background

On 22 October 2002, the petitioner entered the Air Force with a six-year active duty service commitment. Based upon his commitment, his normal Expiration of Term of Service (ETS) would have been 23 October 2008. From entry on active duty until the events here at issue, he remained in an active duty status, with no breaks in service.

On 16 July 2008, the petitioner was questioned by security forces investigators for suspected absence without leave (AWOL), in violation of Article 86, UCMJ, 10 U.S.C. § 886. In conjunction with that investigation, he consented to a urinalysis, which ultimately reported positive for methamphetamine. On 25 August 2008, the petitioner was questioned by security forces investigators for suspected wrongful use of methamphetamine, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.

Based on those allegations, the petitioner’s commander determined that court-martial was appropriate. Acting through the unit first sergeant, the commander advised the servicing staff judge advocate (SJA) that he [767]*767wanted the petitioner placed on administrative hold for that purpose.

In accordance with the commander’s request, the SJA on 15 October 2008 issued a memorandum addressed to the Air Force Personnel Center (AFPC), requesting that the petitioner be involuntarily extended on active duty. The memorandum indicated the petitioner was a “Code 17”, meaning he was under investigation and not to be separated. It also indicated that the extension was required because the petitioner was “under investigation with a view toward court-martial” and was being taken “in anticipation of the preferring of charges.” The memorandum was transmitted by e-mail to the servicing Military Personnel Flight (MPF) the same day. The e-mail transmission re-iterated the request to place the petitioner “on admin hold”, asserting that “[h]e is currently facing court-martial charges that we hope to prefer this month.” On 16 October 2008, the MPF forwarded the SJA memorandum by email to AFPC.

On 20 October 2008, the petitioner, who had already started out processing from the unit in anticipation of separating from the Air Force at the end of his term of service, talked to the unit first sergeant. During that conversation, the first sergeant told the petitioner that he was on administrative hold, and directed him to stop all out-processing actions and go back to work.

All members separating from the Air Force are required to complete certain out-processing actions, which are tracked through an on-line checklist. The petitioner, after being told by his first sergeant to stop all out processing, nonetheless visited the MPF separations office on 22 October 2008. However, he never completed all of the out-processing actions required by the on-line checklist. Specifically, he did not out process through either his unit orderly room or the MPF. Had the petitioner attempted to complete those actions, he would have been prevented from separating because he was on administrative hold.

On 24 October 2008, AFPC mailed the petitioner a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty. The form reflected a discharge date of 23 October 2008. On 12 November 2008, the Defense Finance and Accounting Service (DFAS) issued the petitioner his final pay.

On 21 November 2008, the first sergeant discovered that the petitioner, who was at the time assigned to a geographically separated unit, was missing. Efforts to locate him proved unsuccessful, and he was subsequently placed in deserter status.

Also on 21 November 2008, the local MPF queried AFPC about the petitioner’s military status. On 24 November 2008, AFPC voided the previously issued DD Form 214. On 5 December 2008, the petitioner was apprehended in Chicago and was subsequently returned to military control.

Discussion

This Court has authority to issue extraordinary writs when “necessary or appropriate in aid of [our jurisdictional mandate].” Andrews v. Heupel, 29 M.J. 743, 746 (A.F.C.M.R.1989) (quoting 28 U.S.C. § 1651(a)); see also Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F.1997) (writ of prohibition appropriate where Army took no action to halt pending discharge of soldier facing court-martial, and soldier subsequently legally discharged). However, “issuance of an extraordinary writ is a drastic remedy which should only be invoked in those situations which are truly extraordinary. An extraordinary writ is not to be a substitute for an appeal even though hardship may ensue from delay and perhaps an unnecessary trial.” Andrews, 29 M.J. at 746-47. “Traditionally, extraordinary writs have been used in aid of appellate jurisdiction at common law and in the federal court system ‘to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction.’ ” Id. at 747 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953)). Petitions for extraordinary relief based on assertions that a member pending trial has been discharged and is therefore no longer subject to court-martial jurisdiction are appropriate for consideration under this authority. Van-derbush, 47 M.J. 56; see also Wickham v. Hall, 12 M.J. 145 (C.M.A.1981) (member al[768]*768leged court-martial lacked jurisdiction to try her for fraudulent separation).

We review jurisdictional challenges de novo, accepting the military judge’s findings of fact unless they are clearly erroneous or are not supported by the record. United, States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008). The military judge’s denial of the petitioner’s motion to dismiss set forth extensive findings of fact, which are amply supported by the evidence and are not clearly erroneous. We accordingly accept such findings for purposes of this review.

As the petitioner correctly notes, “[i]t is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization.” United States v. Howard, 20 M.J. 353, 354 (C.M.A.1985). However, the mere expiration of a member’s term of service (ETS) does not automatically equate to a “discharge” or a resulting loss of military jurisdiction under this rule.

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Bluebook (online)
67 M.J. 765, 2009 CCA LEXIS 131, 2009 WL 1513287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-united-states-afcca-2009.