Termination of Jurisdiction Over the Person
Overview of the termination of jurisdiction over the person
Discharge Terminates Jurisdiction.
ETS/EAS by itself does not terminate jurisdiction.
a) RCM 202(a) discussion: “Completion of an enlistment or term of service does not by itself terminate court-martial jurisdiction . . . court-martial jurisdiction normally continues past the time of scheduled separation until a discharge certificate or its equivalent is delivered or until the Government fails to act within a reasonable time after the person objects to continued retention.”
b) United States v. Poole, 30 M.J. 149 (C.M.A. 1990). Jurisdiction to court-martial a service member exists despite delay—even unreasonable delay—by the government in discharging that person at the end of enlistment. Even if the member objects, it is immaterial—the significant fact is that the member has yet to receive a discharge. Caveat: Unreasonable delay may provide a defense to “some military offenses.”
c) RCM 202(c)(1): “Court-martial jurisdiction attaches over a person when action with a view to the trial of that person is taken. Actions by which court-martial jurisdiction attaches include apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges.” See United States v. Self, 13 M.J. 132 (C.M.A. 1982); United States v. Benford, 27 M.J. 518 (N.M.C.M.R. 1988).
d) United States v. Lee, 43 M.J. 794 (N.M. Ct. Crim. App. 1995). Focusing investigation on the accused as prime suspect is enough to establish a “view towards trial” and preserve military jurisdiction beyond ETS/EAS. The court cites to apprehension, imposition of restraint, and preferral of charges as other actions, which attach court-martial jurisdiction, i.e., indicate a “view towards trial.” See also Webb v. United States, 67 M.J. 765 (A.F.C.C.A. 2009)(initiation of criminal investigation and SJA memorandum placing accused on administrative hold were each sufficient to trigger attachment of court-martial jurisdiction).
e)Appellate Leave. United States v. Ray, 24 M.J. 657 (A.F.C.M.R. 1987) (jurisdiction upheld where accused, on appellate leave, was not provided discharge due to governmental delay in executing punitive discharge).
When is discharge effective?
a) On delivery. United States v. Melanson, 53 M.J. 1 (2000). Jurisdiction existed because pursuant to AR 635-200, a discharge takes effect at 2400 hours on the date of notice of discharge to the soldier. See also United States v. Williams, 53 M.J. 316 (2000). A valid legal hold had been placed on the accused prior to the expiration of the date that constituted the effective date of the discharge. United States v. Scott, 11 C.M.A. 646, 29 C.M.R. 462 (1960). A discharge takes effect at 2400 hours on the date of discharge; even if the discharge is delivered earlier in the day (unless it is clear that it was intended to be effective at the earlier time).
b) Valid Discharge Certificate: Discharge Authority’s Intent. Early delivery of a discharge certificate for administrative convenience (e.g., the command does not want to keep personnel office open until 2400) does not terminate jurisdiction when the certificate is clear on its face that the commander did not intend the discharge to take effect until later. United States v. Batchelder, 41 M.J. 337 (1994). See also United States v. Guest, 46 M.J. 778 (Army Ct. Crim. App. 1997).
c) Final accounting of pay. A final accounting of pay is later than the final appointment at the local finance office. Jurisdiction may still exist several days after a service member has undergone a clearing process and received their DD214 since the local finance office is only the first of many steps required to accomplish a final accounting of pay. See United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). See also United States v. Howard, 20 M.J. 353 (C.M.A. 1985) (jurisdiction terminates on delivery of discharge and final pay); United States v. Coker, 67 M.J. 571 (C.G.C.C.A. 2008) (finance office having all the information it needed to compute final pay did not make final pay “ready for delivery” within the meaning of the statute governing discharge); United States v. Wieczorek, NMCCA 201100036 (NMCCA 2011). (No in personam jurisdiction where no final accounting of pay, even when lack of final accounting is due to government pay clerk’s negligence).
d) Undergo a clearing process. United States v. King, 27 M.J. 327 (C.M.A. 1989) (sailor refused to complete re-enlistment ceremony after he received a discharge certificate). Three elements per King to effectuate an early discharge:
(1) Delivery of a valid discharge certificate;
(2) A final accounting of pay; and
(3) Undergoing a “clearing” process as required under appropriate service regulations to separate the member from military service.
Erroneous delivery will not terminate jurisdiction. United States v. Garvin, 26 M.J. 194 (C.M.A. 1988) (premature delivery of a BCD certificate); United States v. Brunton, 24 M.J. 566 (N.M.C.M.R. 1987) (early delivery of discharge, in violation of Navy regulations, meant discharge was not effective on receipt).
A valid discharge of a soldier prior to trial operates as a formal waiver and abandonment of court-martial in personam jurisdiction, whether or not such jurisdiction had attached prior to discharge. Smith v. Vanderbush, 47 M.J. 56 (1997). In personam jurisdiction was lost when the accused was discharged after arraignment but before lawful authority resolved the charges.
The court considered the intent of the discharge authority and found that there was no evidence to show that the discharge authority (not CA) did not intend to discharge the accused on his ETS. In determining a valid discharge the court considered: 1) delivery of discharge certificate; 2) final accounting of pay; and 3) intent of discharge authority. Note: AR 27-10, para 5-16, now provides that after any charge is preferred, the DD Form 458 will automatically act to suspend all favorable action and that any issuance of a discharge certificate is void until the charge is dismissed or the convening authority takes initial action on the case (thus avoiding the issue raised in Smith v. Vanderbush).
a) Effect on Appellate Review and Power of Convening Authority
(1) Steele v. Van Riper, 50 M.J. 89 (1999). After a court-martial conviction, but before the convening authority took action, the government honorably discharged the accused. When the convening authority finally took action, he approved the findings and sentence (which included a punitive discharge), declared that the honorable discharge was erroneous, and placed the accused in an involuntary appellate leave status. The accused challenged the invalidation of his honorable discharge. In a supplemental brief, the government concurred. As such, the CAAF denied the accused’s writ-appeal but advised that the honorable discharge does not affect the power of the convening authority or appellate tribunals to act on the findings and sentence. See also United States v. Stockman, 50 M.J. 50 (1998).
(2) United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006). Held: Where the appellate courts are invoked by an appellant and a rehearing is authorized, an intervening administrative discharge does not serve to terminate jurisdiction over the person of the accused of purposes of that rehearing. The power of the court-martial over the appellant was established at his initial trial, and the intervening administrative discharge does not divest the appellate courts of the power to correct the error, order further proceedings, and maintain appellate jurisdiction over the person during the pendency of those proceedings.
b) Post-conviction but Pre-Initial Action. United States v. Estrada, 69 M.J.45 (C.A.A.F. 2010). Accused sentenced to a BCD. Prior to initial action, the accused erroneously issued an administrative honorable discharge. Issue: Whether the administrative (honorable) discharge resulted in remission of the bad-conduct discharge. Held. The honorable discharge was automatically voided in accordance with Army Regulation (AR) 27-10, para. 5-16.
c) Post-conviction and Post-Initial Action. United States v. Watson, 69 M.J. 415(C.A.A.F. 2011). The HRC Commander issued CPT Watson an administrative honorable discharge after a BCD was adjudged at her trial and after the Convening Authority took initial action. Despite an affidavit from the HRC Commander stating that she “did not intend the discharge to act…as a remission of the conviction” the CAAF held, 3-2, that the administrative discharge remitted the BCD. See also, United States v. McPherson, 68 M.J. 526 (Army Ct.Crim.App. 2009). Accused sentenced to a BCD. Accused received two administrative honorable discharges from HRC – one before initial action, and one after the initial action. Held: The honorable discharge given prior to initial action was void pursuant to AR 27-10, but the honorable discharge given after initial action served to remit the punitive discharge. (Note: As of June 2011, a “gap” continues to exist in Army regulations. The next edition of AR 27-10 may fill the gap).
Execution of Punitive Discharge
a) United States v. Keels, 48 M.J. 431 (1998). Promulgation of a supplemental court-martial convening order that ordered executed a punitive discharge does not terminate court-martial jurisdiction. Even when there is a punitive discharge, jurisdiction does not terminate until delivery of the discharge certificate and final accounting of pay. There is no instantaneous termination of status upon completion of appellate review.
b) United States v. Byrd, 53 M.J. 35 (2000). In October 1996, the Navy-Marine Corps Court affirmed the accused’s conviction and sentence, which included a punitive discharge. The accused did not petition CAAF for review until 22 January 1997. On 2 January 1997, the convening authority executed his sentence under Article 71. The service court held that since the accused did not petition CAAF for review within 60 days(a CAAF rule), the intervening discharge terminated jurisdiction. CAAF vacated the lower court’s decision on the grounds that the Govt. failed to establish the petition for review as being untimely and, therefore, the sentence had been improperly executed. CAAF also held that jurisdiction existed notwithstanding the execution of a punitive discharge under Article 71, and it was only a question of whether to consider the case under direct review or collateral review. See also United States v. Engle, 28 M.J. 299 (C.M.A. 1989).
In Personam Jurisdiction in a Foreign Country
United States v. Murphy, 50 M.J. 4 (1998). The accused was convicted of premeditated murder and sentenced to death for murders he committed while stationed in Germany. The accused challenged the jurisdiction of the court-martial. He argued that the military investigators misled the German Government to believe that the United States had primary jurisdiction of the case under the NATO SOFA. Based on this information, the German Government waived its jurisdiction. Had the German Government asserted jurisdiction, the accused could not have been sentenced to death because the Constitution of Germany prohibits the death penalty. The CAAF held that the accused lacked standing to object to which sovereign prosecuted the case. The important jurisdictional question to answer is: Was the accused in a military status at the time of the offense and at the time of trial? The court found that the accused was. The case was set aside and remanded on other grounds.
Exceptions to General Rule that Discharge Terminates Jurisdiction
a) Exception: UCMJ, art. 3(a).
(1) a person is subject to the UCMJ at the time of the offense;
(2) the person is discharged without trial; and
(3) the person subsequently re-enters the service and is thus subject to the UCMJ at the time of trial.
b) Willenbring v. Neurauter, 48 M.J. 152 (1998). The CAAF holds that under the 1986 version of Article 3(a), UCMJ, court-martial jurisdiction exists to prosecute a member of the reserve component for misconduct committed while a member of the active component so long as there has not been a complete termination of service between the active and reserve component service. In dicta, however, the CAAF advises that the current version of Article 3(a), UCMJ, “clearly provides for jurisdiction over prior-service offenses without regard to a break in service.” See also Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009) (affirming District Court denial of Willenbring’s habeas corpus petition and reasoning that his service was not terminated because his early release and discharge from the regular component was conditioned upon a contractual obligation to immediately begin service in the reserve component. But see, Murphy v. Dalton, 81 F.3d 343 (3d Cir. 1996) (holding that it is improper to involuntarily recall a member of the reserve component to active duty for an Article 32(b) investigation when the alleged misconduct occurred while the service member was a member of the active component). [Note: Murphy v. Dalton notwithstanding, the CAAF decision in Willenbring is controlling legal authority]
c) Break-In-Service. United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006). Appellant was convicted of violating a lawful order, rape and sodomy of a female under the age of 12, and indecent acts and liberties with a female under the age of 16. The crimes were committed while he was on active duty in the Army, he was discharged and subsequently enlisted in the Air Force. He was sentenced to a DD and confinement for life with the possibility of parole. Where appellant was on active duty in the Army when he committed misconduct, was discharged and subsequently enlisted in the Air Force, and was on active duty at the time of trial, as here, the court-martial had jurisdiction over the appellant by virtue of Article 3(a), UCMJ.
d) Exception: UCMJ, art. 3(b), the person obtaining a fraudulent discharge.
(1) Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981). May the government prosecute a soldier whose delivered discharge (Chapter 8 – pregnancy) was revoked for being obtained by fraud? C.M.A. allowed the court-martial proceedings to continue. The 5th Circuit affirmed the district court’s denial of Wickham’s request for habeas corpus relief. The court-martial may proceed. Wickham v. Hall, 706 F.2d 713 (5th Cir. 1983).
(2) United States v. Reid, 46 M.J. 236 (1997). The government must secure a conviction for fraudulent discharge prior to prosecuting the accused for other offenses. Article 3(b) clearly requires a two-step trial process. QUERY: What about offenses committed after the fraudulent discharge? Article 3(b) does not confer jurisdiction over offenses committed after the fraudulent discharge. The service court, in dicta, reasoned that after conviction for the fraudulent discharge, jurisdiction would exist over offenses committed after the discharge under UCMJ, art. 2.
(3) United States v. Pou, 43 M.J. 778 (A.F. Ct. Crim. App. 1995). Accused faked his own death. Air Force initially designated him as “missing” before declaring him “dead.” Held: Declaring a missing person “dead” is not the equivalent of a discharge of that person, therefore, art. 3(b) is inapplicable, and court-martial jurisdiction exists.
e) Exception: UCMJ, art. 3(c) – Deserter obtaining a discharge for a subsequent period of service. United States v. Huff, 7 C.M.A. 247, 22 C.M.R. 37 (1956).
f) Exception: UCMJ, art. 2(a)(7) – Persons in custody of the armed forces serving a sentence imposed by a court-martial. United States v. Harry, 25 M.J. 513 (A.F.C.M.R. 1987) (punishment cannot include another punitive discharge); United States v. King, 30 M.J. 334 (C.M.A. 1990) (prosecuted after BCD executed but still in confinement).
g) Exception: UCMJ, art. 3(d) – Separation from Active Components to Reserve Status. Leaving a Title 10 status does not terminate court-martial jurisdiction.
h) Exception: Intent of the Discharge Authority – When the command places a hold on the accused prior to 2359 on the date of discharge, even though the discharge certificate had been delivered earlier that day, the discharge does not terminate jurisdiction. In United States v. Harmon, 63 M.J. 98 (2006), the appellant was scheduled to be administratively separated from active duty on 17 May 2001. Early in the morning of 17 May, he participated in the robbery of another service member. By 0815, NIS had identified him as a suspect. At 0900, the appellant received his DD 214 (which listed his effective discharge date and time as 2359 on 17 May) and got on a bus to go home. At 1020, the appellant’s command learned of his involvement in the robbery and revoked his administrative discharge. The CAAF held that because the command placed a hold on the appellant prior to the time his discharge became effective, jurisdiction was never lost.