Petition for Writ of Certiorari — Hart v. United States (No. 08-193)

Supreme Court, U.S.

4 FILED

(1) 08-193 AUG 12 2008

____QFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

AIRMAN FIRST CLASS DUSTIN M. HART,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

Shannon A. Bennett

Major, U.S. Air Force

Counsel of Record

Air Force Appellate

Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20032

(202) 767-1562

QUESTION PRESENTED

Whether the exercise of court-martial jurisdiction

over a previously discharged member of the

Armed Forces exceeds Congress’ authority under

Article 1, § 8, clause 14?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING PETITION

I. Discharged former members of the armed

forces are not part of the land and naval

ta ioc ou ha nic naounbawive ayaa dwewanal 6

II. 10 U.S.C. § 1168 is a_ personnel

management provision which does not define

court-martial jurisdiction under the Uniform

Code of Military Justice ................ ccc ceccee ee eeees 7

CONCLUSION

APPENDIX A

a di, sy csi caviersvanvnievecvasian 22a

1

TABLE OF AUTHORITIES

Constitutional Provisions

U.S. CONST. art. I, § 8, cl. 14 passim

Supreme Court of the United States Cases

Kinsell v. United States,

361 U.S. 234 (1960)

Reid v. Covert,

354 U.S. 1 (1957)

Toth v. Quarles,

350 U.S. 11 (1955) passim

United States Court of Appeals Cases

Crist v. United States,

Be Oe, Ta a oki cas cdcevsensseveccvens pibasiallndelcan 9

Hamon v. United States,

10 Ct. Cl. 681 (1986)

United States v. Hart.

66 M.J. 273 (C.A.A.F. 2008)

United States v. Hart, No. ACM 36253 (A.F. Ct.

Crim. App. Nov. 30, 2006)

Federal Statutes

I seen enc sesasvestuaiepshavie lea 1-2,:

10 U.S.C. § 803.......... atch i coat aie ee

10 U.S.C. § 867

OT, BI iirc he ssenoivecqiansdevessaces 4, 5, 7, 8, 9, 10

28 U.S.C. § 1259.0... ial ata et

1V

Legislative History

The Servicemen’s Readjustment Act of 1944, Pub.

L. No. 346, § 104, 58 Stat. 284 (1944)

Pub.L. No. 87-651, § 106(b), 76 Stat. 506

(1962)

The Petitioner, Airman First Class Dustin M. Hart,

respectfully prays that a writ of certiorari issue to

review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in his

case on May 14, 2008.

OPINIONS BELOW

The order of the United States Court of Appeals

for the Armed Forces (CAAF), United States v. Hart,

66 M.J. 273 (C.A.A.F. 2008), is located at Appendix

(App.) la-2la. The unpublished opinion of the

United States Air Force Court of Criminal Appeals

(AFCCA), United States v. Hart, No. ACM 36253

(A.F. Ct. Crim. App. Nov. 30, 2006), is located at

App. 22a-3la.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces was entered on May

14, 2008. This Court’s jurisdiction ts invoked under

28 U.S.C. § 1259(3) (2000) and 10 U.S.C. § 867a(a)

(2000).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, § 8, clause 14 of the United States

Constitution vests with Congress the authority “[tlo

make Rules for the Government and Regulation of

the land and naval Forces.”

Article 2(a)(1) of the Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 802(a)Q), permits the

exercise of court-martial jurisdiction over:

2

Members of a regular component of the

armed forces, including those awaiting

discharge after expiration of their terms of

enlistment; volunteers from the time of their

muster or acceptance into the armed forces;

inductees from the time of their actual

induction into the armed forces; and other

persons lawfully called or ordered into, or to

duty in or for training in, the armed forces

from the dates when they are required by the

terms of the call or order to obey it.

STATEMENT OF THE CASE

Similar to the petition for writ of certiorari filed by

Walter S. Stevenson, No. 07-1397, before this Court

on May 12, 2008, this case presents a significant

issue of court-martial jurisdiction with far-reaching

implications for the Department of Defense, the

Department of Veterans Affairs, the United States

courts of appeals, and this Court. The lower court’s

decision, in effect, permits the armed forces to

maintain court-martial jurisdiction over former

military members simply by delaying, intentionally

or unintentionally, the delivery of “final pay or a

substantial part. of that pay.” The harm caused by

this decision is two-fold. First, the armed forces can

involuntarily extend a member’s service simply by

delaying the delivery of the final pay. Second, it

opens the floodgates to potential litigation over pay

claims, medical claims, and insurance claims of

former members who did not receive their final

accounting of pay contemporaneously with their

discharge certificate. This Court’s review is

3

necessary to ensure a clear demarcation between the

termination of military status and the

commencement of civilian status.

Petitioner began his six-year term of enlistment

in the Air Force on November 28, 2001. In fall 20038,

agents from the Air Force Office of Special

Investigations (AFOSD © started investigating

Petitioner for drug use. On January 2, 2004, AFOSIL

obtained a statement from Petitioner admitting to

drug use and formed an agreement with Petitioner

for him to work with them as a confidential

informant to gather information about drug use by

other active duty military members.

Also in fall 2003, medical personnel began

processing a medical evaluation board (MEB) on

Petitioner to access his medical fitness to remain on

active duty. On January 8, 2004, the mulitary

personne] flight (MPF) received a message from the

Air Force Personnel Center (AFPC) that’ the

Secretary of the Air Force found Petitioner unfit for

active duty and he was to be medically discharged.

On January 23, 2004, AFPC informed the MFP that

Petitioner’s discharge would be effective March 3,

2004. The MPF notified Petitioner to start out-

processing his unit and the base which he did.

As part of this out-processing, Petitioner met

with personnel from the base finance office. On

February 24, 2004, he completed his final out-

processing appointment with finance. At that

appointment, the finance’ personnel obtained

everything they needed to calculate Petitioner's final

pay but did not complete the calculation at that

4

time. On February 26, 2004, the Defense Finance

and Accounting System (DFAS) performed an initial

calculation of Petitioner’s final pay.

On March 3, 2004, Petitioner received his

discharge certificate. Two days later AFOSI agents

learned of the discharge and contacted Petitioner's

chain-of-command and the base legal oifice. The

base legal office advised the finance office to stop

processing Pctitioner’s final pay informing them that

action would stop the discharge. On March 5, 2004,

the base finance office had not yet calculated

Petitioner’s final pay. ‘They had not started the

calculation due to their administrative workload

backlog. Under the DFAS regulations, they could

take up to twenty days after the date of discharge to

calculate the final pay and, if they were unable to do

it in that time, DFAS could finalize the pay account

in some indeterminate amount of time after that.

On March 23, 2004, the military preferred drug

charges against Petitioner. Petitioner was tried by a

general court-martial of officer members, was found

guilty of all charges, and was sentenced to a bad-

conduct discharge and 185 days confinement.

The Air Force Court of Criminal Appeals held that

neither Petitioner’s “final pay” nor a “substantial

part of that pay” were ready for delivery within the

meaning of 10 U.S.C. § 1168. App. 3la

After granting review, the Court of Appeals for

the Armed Forces found Petitioner was _ not

discharged from the Air Force on March 3, 2004.

App. la-2la. The majority held that “neither final

5

pay nor a substantial part of that pay were ready for

delivery within the meaning of the plain language of

10 U.S.C. § 1168.” App. lla. The court concluded

that only a “snapshot’ calculation had _ been

accomplished” by DFAS. App. lla. The court

further found there was no issue involving delay in

the processing of Petitioner’s final pay because the

DFAS regulation permitted the base finance office

_up to twenty days to calculate the final pay. App.

lla.

In his dissenting opinion, Chief Judge Effron

joined by Judge Stucky, concluded “[t]he Air Force

discharged [Petitioner] and did not have authority to

revoke his discharge.” App. 12a. Chief Judge Effron

found that neither Article 2, UCMdJ, 10 U.S.C. § 802

(2000) (which subjects members to military

jurisdiction based upon their ongoing miulitary

relationship) nor Article 3, UCMJ, 10 U.S.C. § 803

(2000) (which provided express exceptions subjecting

members to military jurisdiction following discharge)

applied to Petitioner. App. 13a-14a. He opined

“(ulnder the interpretation of § 1168 set forth in the

majority opinion, an administrative deficiency in the

computation of a member's final pay will render the

discharge ineffective.” App. 18a.

REASONS FOR GRANTING THE WRIT

Like the case presented to this Court in the

Stevenson petition, supra, this case presents a

further example of a military court subjecting a

discharged servicemember to court-martial

jurisdiction. See Toth v. Quarles, 350 U.S. 11 (1955).

I.

Discharged former members of the armed forces are

not part of the land and naval Forces.

As pointed out by Petitioner’s counsel in

Stevenson, civilians are not subject to court-martial

jurisdiction. See Toth, 350 U.S. at 23. Article I, § 8,

clause 14 of the Constitution permits Congress to

regulate the “land and naval Forces.” However,

“Itlrial by court-martial is constitutionally

permissible only for persons who can, on a fair

appraisal, be regarded as falling within the

authority given to Congress under Article I to

regulate the ‘land and naval Forces.” Aznsel/ v.

United States, 361 U.S. 234, 240 (1960) (quoting

Reid v. Covert, 354 U.S. 1, 42 (1957) (Frankfurter,

J., concurring)) (emphasis in the original).

In Toth, this Court prohibited the application of

court-martial jurisdiction over discharged military

members even if their crimes were committed on

active duty. 350 U.S. at 20-21, 23. The Court

reasoned that to permit otherwise would allow court-

martial jurisdiction to “encroach [J on the

jurisdiction of federal courts set up under Article III

of the Constitution where persons on trial are

7

surrounded with more constitutional safeguards

than in military tribunals.” /d. at 15.

As discussed in the dissenting opinion in this

case, the Air Force could have “referred the

allegations for prosecution by civilian authorities.”

App. 15a. Since Petitioner had been discharged,

federal jurisdiction in an Article III court would have

been the appropriate forum for his alleged offenses.

Instead, the majority opinion in effect permits court-

martial jurisdiction to exist indefinitely — until such

a time when the base finance office or DFAS decide

administratively that they are ready to process the

final accounting of pay.

This Court’s issuance of a writ of certiorari would

provide a definitive date of scparation for members

facing discharge prior to the computation of their

final accounting of pay and would foreclose the

possibility of potential litigation over pay claims,

medical claims, and insurance claims of former

members who did not receive their final accounting

of pay contemporaneously with their discharge

certificate.

II.

10 U.S.C. § 1168 is a personnel management

provision which does not define court-martial

jurisdiction under the Uniform Code of Military

Justice.

As properly noted by Chief Judge Effron in his

dissenting opinion, “[slection 1168 is a personnel

management statute designed to protect

servicemembers and their families from the adverse

8

financial consequences of premature separation.”

App. 15a-16a. Cengress passed the _ original

legislation during World War II and it was intended

to assist in the efficiency of delivery of various

veterans’ benefits to returning soldiers after their

discharge from the military. See The Servicemen’s

Readjustment Act of 1944, Pub.L. No. 346, § 104, 58

Stat. 284, 285 (1944). It was recodified at 10 U.S.C.

§1168. See Pub.L. No. 87-651, § 106(b), 76 Stat. 506,

508 (1962). Nothing in this statute specifically

mentions court-martial jurisdiction.

10 U.S.C. §1168(a) requires that two items be

“ready for delivery” before a member of an armed

force may be discharged from active duty: (1) a

discharge certificate and (2) “his final pay or a

substantial part of that pay.” These items do not

actually have to be delivered; they must only be

“ready for delivery.”

Both the U.S. Claims Court and the Comptroller

General have construed this phrase to mean the

clearing process by which both the member and the

service understand that the member is_ being

discharged from active duty. Under this

construction, the hteral preparation of the discharge

certificate or the final pay is irrelevant. After all,

the preparation of these items is exclusively within

the control of the service and the extent of their

preparation after the purported discharge date

cannot be known or anticipated by the member.

More often than not, the preparation of these items

depends on the bureaucratic workload of a clerk and

not on any official act by a commander.

9

Thus, the U.S. Claims Court held that the

physical delivery of a discharge certificate was only

required when the member was not aware of his

status. See, e.g., Crist v. United States, 124 Ct. Cl.

825 (1952) (actual delivery of discharge documents

were required when the plaintiff was not aware of

his status). On the other hand, the same Court held

in Hamon v. United States, 10 Ct. Cl. 681 (1986),

that the actual delivery of a DD Form 214 was not

required when the plaintiff did not misunderstand

his status. The Court there did not discuss whether

anyone had actually prepared, but not delivered, the

DD Form 214. After all, “the plain statutory

language [of 10 U.S.C. §1168(a)], in tandem with the

legislative history, indicate concern not with actual

receipt of discharge documents but rather with

facilitating veterans’ return to civilian life.” Hamon,

10 Cl. Ct. at 683 (citing Comm. On World War

Veterans’ Legislation, Providing Federal

Government Aid for the Readjustment in Civilian

Life of Returning World War II Veterans, H.R. Rep.

No. 1418, 78 Cong., 2d Sess. (1944)); see also B-

212684, March 13, 1984, 68 Op. Comp. Gen. 251

(“We do not view any possible failure to comply with

10 U.S.C. §1168(a), in that final pay and a certificate

of release or discharge from active duty may not

have been ready for delivery, as invalidating an

otherwise proper discharge.”)

To appreciate why the reasoning of the US.

Claims Court and the Comptroller General is the

correct one, a _ hypothctical will illustrate the

difficulties with the court’s conclusion that the

requirements of 10 U.S.C. §1168(a) were not met in

10

this case. Suppose that an ordinary military

member (not under investigation) was to be

discharged on 38 March 2004 and that he had

received a DD Form 214 and had outprocessed just

as Petitioner had in this case. Suppose also that the

final calculation of his pay was not completed until

23 March 2004 and that DFAS did not make a final

payment until 28 March 2004. Suppose further that

the member was seriously injured in a _ vehicle

accident on 18 March 2004 and was placed in

intensive care, where he died on 21 March 2004.

Was the member still on active duty on 18 or 21

March 2004 such that the hospital could be

reimbursed for the medical care it provided? Are his

dependents, if any, entitled to survivor’s benefits and

to a typical Servicemen’s Group Life Insurance

(SGLD payment of $400,000? Is his estate entitled

to claim loss of pay and allowances and other

benefits any period after 3 March 2004? Petitioner

submits that the answer to each of these questions

is, “No.” And it should be “No” when the government

attempts to assert court-martial jurisdiction over

Petitioner under 10 U.S.C. §1168(a).

In summary, neither the plain language of 10

U.S.C. §1168 nor its legislative history supports the

lower court’s decision. In passing this provision,

Congress did not intent to dcfine court-martial

jurisdiction. This Court should grant review to

correct this clear error in the interpretation of 10

U.S.C. §1168.

11

CONCLUSION

The Petitioner’ respectfully requests’ this

Honorable Court grant his petition for a writ of

certiorari.

Respectfully submitted,

SHANNON A. BENNETT

Major, U.S. Air Force

Counsel of Record

AF Legal Operations Agency

Appellate Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-1562

Counsel for Petitioner

la

APPENDIX A

66 M.J. 5 (2008)

UNITED STATES, Appellee

Vv.

Dustin M. HART, Airman First Class

U.S. Air Force, Appellant

No. 07-0247

Crim. App. No. 36253

United States Court of Appeals for the Armed Forces

Argued January 7, 2008

Decided May 14, 2008

ERDMANN, J., delivered the opinion of the court, in

which BAKER and RYAN, JJ., joined. EFFRON,

C.J., filed a dissent, in which STUCKY, J., joined.

Counsel

For Appellant: Major Shannon A. Bennett (argued);

Lieutenant Colonel Mark R. Strickland (on brief):

Captain Christopher L. Ferretti.

For Appellee: Captain Jason M. Kellhofer (argued);

Colonel Gerald R. Bruce, Colonel George F. May, and

Major Matthew S. Ward (on brief).

2a

Military Judge: Kevin P. Koehler

Judge ERDMANN delivered the opinion of the court.

Two days after Airman First Class Dustin M.

Hart received his Discharge frem Active Duty (DD

Form 214), but before he received separation pay, his

command stopped processing the computation of his

final pay and revoked his DD Form 214. Several

weeks later various drug charges were preferred

against him. We granted review of this case to

consider whether the charge and specifications must

be dismissed for lack of personal jurisdiction. 65 M.J.

322 (C.A.A.F. 2007).

Pursuant to 10 U.S.C. § 1168(a) (2000), a

servicemember may not be discharged from active

duty until his discharge certificate “and his final pay

or a substantial part of that pay, are ready for

delivery to him.” We agree with the military judge

and the United States Air Force Court of Criminal

Appeals which concluded that Hart’s final pay, or a

substantial portion thereof, was not ready for

delivery. See United States v. Hart, No. ACM 36253,

2006 CCA LEXIS 314, at *11-*12, 2006 WL 3513949,

at *4 (A.F. Ct. Crim. App. Nov. 30, 2006)

(unpublished). Accordingly, the discharge action

was not completed and court-martial jurisdiction

existed. We affirm.

BAC {GROUND

Hart confessed to various drug offenses during an

interview with the Air Force Office of Special

3a

Investigations (AFOSI) on January 2, 2004.

Following his confession he worked with AFOSI for

several months as a_ confidential informant

gathering information about illegal drug use by

active duty members. During this time no charges

were preferred against him. Unbeknownst to

AFOSI, on January 8, 2004, a Medical Evaluation

Board found Hart physically unfit for mulitary

service. Officials from the Office of the Secretary of

the Air Force notified the separations section of his

unit that he was to be administratively separated

with a disability discharge.

Notwithstanding a memorandum from the base’s

legal office requesting that he “be placed on

administrative hold for 120 days pending an

administrative proceeding,” Hart was instructed to

begin outprocessing from the Air Force.' The

separations section gave him a Request and

Authorization for Separation for Discharge (AF

Form 100) to show that he was being outprocessed

for a disability discharge as well as an outprocessing

checklist. As part of the outprocessing procedure he

was required to checkout with the finance section.

That office required completion of a_ separate

“finance” checklist and a final interview with finance

personnel.

After the checklists were completed, Hart met

with a finance technician on February 24, 2004, and

J ° ° .

None of the personnel in the separations section were aware

of the legal office memorandum until after Hart received his

DD Form 214.

4a

provided the information necessary for’ the

calculation of his final pay. That same day, Hart’s

section commander cleared Hart for final

outprocessing.2 Two days later, the initial calculation

of Hart’s separation pay was entered into the

computer system of the Defense Finance and

Accounting System (DFAS). The military judge

found this entry to be a “snapshot” of the projected

separation scttlement based upon the information in

the DFAS computer at the time and “not a final pay

calculation.” On March 3, 2004, the separations

section issued Hart his DD Form 214 reflecting that

date as the effective date of separation.

On March 5, 2004, Hart’s squadron commander,

AFOSI, and the legal office learned that Hart had

received his DD Form 214. The legal office directed

the finance office not to take any further action in

calculating Hart’s final pay. MHart’s squadron

commander issued a memorandum to the support

squadron asking that the DD Form 214 be revoked

and that Hart be retained on active duty “due to his

involvement with a number of serious offenses under

the Uniform Code of Miltary Justice.” Hart was

reported absent without leave on March 9, 2004, and

arrested by civilian authorities on March 18, 2004.

He was returned to military control and charges

were preferred against him on March 23, 2004.

Prior to trial, Hart moved to dismiss the charges

based upon lack of personal jurisdiction. The

, > °

“ Hart’s section commander was aware that Hart had been

working with AFOSI, but was unaware that he was personally

implicated in criminal activity.

5a

military judge conducted a hearing on the motion

and found, among other things, that there was never

a final calculation of pay. At the time the pay process

was halted, certain steps in the _ process of

calculating final pay required by the DFAS manual,

DFAS-DEM 7073-1, ch. 52 (Jan. 15, 1998), had not

been accomplished. In light of these findings the

military judge concluded:

I find that the government has proven by a

preponderance of evidence that they have

personal jurisdiction in this case, and the

Accused can be tried by court-martial. The

Accused was never finally discharged from

active duty service in the United States Air

Force, as there was never a final accounting

of pay ~ his final pay, or a_ substantial

portion thereof was never made ready for

delivery to him as required by 10 U.S.C. §

1168(a) and military case law. The military

retains jurisdiction over the Accused.

Hart filed a writ of mandamus with the lower

court, which was denied. He subsequently filed a

writ-appeal with this court, which was denied

without prejudice. 60 M.J. 434 (C.A.A.F. 2004). At

trial, Hart entered guilty pleas and was convicted of

wrongful use, possession and distribution of various

controlled substances.* Following his conviction, the

Court of Criminal Appeals considered the question of

3 . > . : °

Hart was convicted of wrongful use of marijuana, Diazepam,

and Alprazolam, wrongful possession of Diazepam and

wrongful distribution of Alprazolam, in violation of Article

6a

jurisdiction in the ordinary course of appeal and

agreed with the military judge that neither “final

pay nor a ‘substantial part of that pay’ were ready

for delivery within the meaning of 10 U.S.C. §

1168(a).” Hart, 2006 CCA LEXIS 314, at *11-*12,

2006 WL 3513949, at *4. The lower court concluded

that “lalbsent a final accounting of pay, the

appellant’s early discharge was not legally

effectuated and he remained subject to military

court-martial jurisdiction.” Id. at *12, 2006 WL

3513949, at *4.

ANALYSIS

[1] Under Article 2(a)Q), UCMJ, “[m]lembers of a

regular component of the armed forces, including

those awaiting discharge after expiration of their

terms of enlistment” are subject to court-martial

jurisdiction. 10 U.S.C. § 802(a)(1) (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

same saving circumstance or statutory

authorization.” United States v. Howard, 20 M.dJ.

353, 354 (C.M.A. 1985); see also United States v.

King, 42 M.J. 79, 80 (C.A.A.F. 1995) (quoting

Howard, 20 M.J. at 354).

[2] This case requires us to determine whether a

valid discharge occurred which would deprive the

Air Force of in personam jurisdiction over Hart. The

UCMJ itself does not define the exact point in time

112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

912a (2000).

7a

when discharge occurs, but for nearly twenty years,

this court has turned to 10 U.S.C. §§ 1168 a) and

1169 (2000), a personnel statute, for guidance as to

what is required to effectuate discharge. See, e.g.,

United States v. Harmon, 63 M.J. 98, 101-02

(C.A.A.F. 2006); United States v. Melanson, 53 M.J.

1, 2 (C.A.A.F. 2000); United States v. Keel, 48 M.J.

431, 432 (C.A.A.F. 1998); King, 42 M.J. at 80; King,

27 M.J. at 329; see also Howard, 20 M.J. at 354

(noting that “[dlischarges are governed by 10 U.S.C.

§ 1168(a)”). We do so here as well.4

Section 1168(a), which governs “Discharge or

release from active duty: limitations,” states as

follows:

* The dissent suggests that the majority opinion is ignoring the

settled precedent of this court while the dissent follows such

precedent. United States v. Hart, 66 M.J. 278-80 (C.A.A.F.

2008) (Effron, C.J., with whom Stucky, J., joins, dissenting). In

fact, just the opposite is true. Despite the representations in

the dissent, this court has turned to 10 U.S.C. § 1168(a) since

1985 to assist in determining whether a discharge has occurred

for UCMJ purposes. See United States v. Howard, 2© M.J. 353,

354 (C.M.A. 1985). The dissent would have the date contained

in the DD Form 214 determine the effective date of discharge

without regard to the criteria found in 10 U.S.C. § 1168(a) or

United States v. King, 27 M.J. 327, 329 (C.M.A. 1989), which

the dissent would overrule sub si/entio. There are no prior

decisions of this court that have held that the date on the DD

Korm 214 determines the effective date of discharge for UCMJ

purposes and the dissent cites none. Nor has the application of

10 U.S.C. § 1168(a) ever been limited by this court to only those

situations where “the unsettled state of the record requires

consideration of multiple factors.” Hart, 66 M.J. at 280 (Effron,

C.J., with whom Stucky, J., joins, dissenting).

8a

A member of an armed force may not be

discharged or released from active duty until

his discharge certificate or certificate of

release from active duty, respectively, and

his final pay or a substantial part of that

pay, are ready for delivery to him or his next

of kin or legal representative.

U.S.C. § 1168(a). Section 1169, provides further:

No regular enlisted member of an armed

force may be discharged before his term of

service expires, except~

(1) as prescribed by the Secretary concerned;

(2) by sentence of a general or special court

martial; or

(3) as otherwise provided by law.

U.S.C. § 1169. In King, this court reasoned:

We read these statutes as_ gencrally

requiring that three elements be satisfied to

accomplish an early discharge. First, there

must be a delivery of a valid discharge

certificate. .. . Second, there must be a final

accounting of pay made. This is an explicit

command set forth by Congress in 10 U.S.C.

§ 1168(a). ... Third, appellant must undergo

the “clearing” process required’ under

appropriate service regulations to separate

him from military service.

27 M.J. at 329 (citations omitted).

Ga

[3] The jurisdictional rulings of the military

judge and the Court of Criminal Appeals hinge on

the determination that there was no final accounting

of pay. That is, Hart was not effectively discharged

because the criteria under § 1168 a) that “his final

pay or a substantial part of that pay, are ready for

delivery to him” were not met. Hart argues that

neither 10 U.S.C. § 1168a) nor Ayng define or

address the meaning of “final accounting of pay” or

“ready for delivery.” He further argues that since the

finance office had all the information they needed to

compute the final pay, the criteria of § 1168(a) were

satisfied once his “clearing process” was complete.

The Government maintains that on the undisputed

facts of the case, Hart’s final pay had not undergone

a final accounting and was not ready for delivery.

Therefore, the Government urges that under 10

U.S.C. § 1168(a), Hart’s discharge process was not

completed and the Air Force retained court-martial

jurisdiction over him.

“When an accused contests personal jurisdiction

on appeal, we review that question of law de novo,

accepting the military judge’s findings of historical

facts unless they are clearly erroneous’ or

unsupported in the record.” Me/anson, 53 M.J. at 2.

Here, neither party claims that the factual findings

of the military judge are clearly erroneous.

Accordingly, we accept the military judge’s factual

findings.

Our review of the military judge’s factual findings

compels the conclusion that neither final pay nor a

substantial part of that pay were ready for delivery

10a

within the meaning of the plain language of 10

U.S.C. § 1168(a). We therefore reject Hart's

contention that the facts here are sufficient to

establish these essential criteria for discharge.

Based on the DFAS manual and the procedures

of the base finance office, the military judge found

that the following steps are required under DFAS

regulations to calculate final pay:

(1) DFAS generates an initial preliminary

calculation of final pay;

(2) A finance technician manually calculates

the final pay on a spreadsheet, balancing

moneys owed to the member with debts owed

by the member;

(3) The finance technician reconciles any

discrepancy between the DFAS calculation

and the manual calculation;

(4) The technician completes a payment

authorization request:

(5) The technician forwards the member’s file

along with a payment request to the

noncommissioned officer in charge of the

unit’s customer service, who reviews the

technician’s calculations;

(6) The noncommissioned officer in charge,

who is the only one who can approve

payment, forwards payment authorization to

a separate section of the finance section for

quality examination;

(7) A technician forwards disbursement

authorization to DFAS.

lla

The military judge found that “only the initial

DFAS, ‘snap-shot’ calculation had been

accomplished.” As_ such, critical calculations,

reconciliations, and authorizations of final pay

pursuant to DFAS regulations had not yet started.

The lower court was correct to conclude that DFAS

could not have issued separation pay to Hart under

these circumstances so neither “final pay’ nor a

‘substantial part of that pay’ were ready for delivery

within the meaning of 10 U.S.C. § 1168(a).” Hart,

2006 CCA LEXIS 314, at *11-*12, 2006 WL 3513949,

at *4.

The military judge also found that there was no

evidence that the finance’ personnel were

“deliberately trying to slow down the processing of

[Hart's] pay.” Rather, “lilt was a normal processing

of accounts based on workload and manning.” The

military judge found that this finance office had a

twenty-day window to manually compute a person’s

pay and forward that computation to DFAS for

disbursement. The payment process was halted at

the command’s request before the twenty days

expired.5 The language of 10 U.S.C § 1168(a) setting

* This case does not involve any delay in the processing of

Hart’s separation pay. We have not had occasion to address the

jurisdictional effects if payment were not accomplished within a

reasonable time frame established by applicable regulation for

completion of the payment process. The dissent’s criticism that

as a result of our ruling members will be held on active duty

indefinitely sounds a false alarm and is unwarranted for

several reasons. Hart, 66 M.J. at 278-79 (Effron, C.J., with

whom Stucky, J., joins, dissenting). First, as just noted, we

have not addressed the case where DFAS has acted outside its

own regulations, which provide a time certain for delivery of a

final accounting of pay. Second, contrary to the dissent’s

12a

limitations on discharge or release from active duty

plainly precludes discharge unless “final pay or a

substantial part of that pay” is “ready for delivery.”

On the facts of this case, these criteria were not

fulfilled. Accordingly, Hart was not effectively

discharged and remained subject to court-martial

jurisdiction pursuant to Article 2(a)(1), UCMJ.

DECISION

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

EFFRON, Chief Judge, with whom STUCKY, Judge,

joins (dissenting):

The Air Force discharged Appellant and did not

have authority to revoke his discharge. The cases

cited by the majority are informative regarding the

factors that may be considered in evaluating

jurisdictional issues, but those cases do not resolve

the question presented today regarding’ the

suggestion, this is not new law. We have relied on 10 U.S.C. §

1168(a) for guidance in determining the moment of discharge

for purposes of UCMJ jurisdiction since 1985. See Howard, 20

M.J. at 354. Third, we are, of course, only addressing matters of

UCMJ jurisdiction. Finally, to the extent the dissent’s

argument is founded in legal policy, it ignores the sound public

policy reasons why the public’s interest as well as the interests

of military members and their dependents may be better served

during the transition from military to civilian life by a system

that allows flexibility in accounting for moneys due as well as

in providing for health and other coverage during transitional

travel.

13a

relationship between court-martial jurisdiction and

the personnel management provisions of 10 U.S.C. §

1168 (2000). Accordingly, I respectfully dissent from

the conclusion of the majority opinion that the court-

martial had personal jurisdiction in the present case.

Discharge and status

On January 23, 2004, the Air Force Personnel

Center ordered the discharge of Airman First Class

Dustin Hart by reason of physical disability,

effective March 3, 2004. On March 3, 2004, the Air

Force discharged Hart, changing his status from

military to civilian.

At the time of discharge, the Air Force provided

Hart with an official record of the action, DD Form

214 (“Certificate of Release or Discharge from Active

Duty”). Consistent with the direction from the Office

of the Secretary of the Air Force, the DD Form 214

documenting the separation described the action as a

“discharge” and set forth the reason as “disability.”

The DD Form 214 listed the separation date as

March 3, 2004.

Hart’s discharge severed his connection with the

armed forces, and terminated his status as a person

subject to the Uniform Code of Military Justice

(UCMJ). Following his discharge, Hart did not fall

within the categories of persons subject to military

jurisdiction based upon their ongoing relationship

with the armed forces. See Article 2, UCMJ, 10

U.S.C. § 802 (2000). Likewise, he did not fall within

the categories of persons expressly designated by

14a

Congress as subject to military justice jurisdiction

following discharge. See Article 3, UCMJ, 10 U.S.C.

§ 803 (2000).

Post-discharge court-martial charges

In the months preceding his discharge, Hart had

served as a confidential informant for the Air Force

Office of Special Investigations (OSI), gathering

information about illegal drug use by other active-

duty servicemembers. OSI had recruited him in

January 2004 during an investigation into his illegal

drug activity. In the course of this investigation,

Hart admitted to various drug offenses, but no

charges were preferred against him prior to his

discharge. Instead, the Air Force relied on Hart as

an undercover informant. At the time of his

discharge, OSI planned to utilize Hart’s assistance

in an undercover drug operation scheduled for

March 6-8, 2004.

After his return to civilian life, Hart notified an

OSI agent that he was no longer a member of the Air

Force and that he would not engage in further work

as an OSI informant. OSI, which had been unaware

of the discharge proceedings, informed the base legal

office, which in turn informed Hart’s former

command. On March 5, 2004, the acting commander

requested that the support squadron revoke the

discharge action. On March 23, 2004, Hart was

returned to military control and the command

preferred charges against him for pre-discharge drug

offenses. The charges preferred against Hart all

involve offenses that constitute violations of

15a

generally applicable federal law. See 21 U.S.C. §§

841, 844 (2000). Although it appears that Hart could

have been prosecuted in a federal civilian court on

these charges, the record contains no indication that

the Air Force referred the allegations for prosecution

by civilian authorities.

The Air Force, like the other armed forces, has a

procedure for placing an administrative “hold” on

servicemembers facing possible courts-martial to

preclude discharge prior to the disposition of offenses

under investigation. See Rule for Courts-Martial

(R.C.M.) 202(c)(1); Dep’t of the Air Force, Instr. 36-

3208, Administrative Separation of Airmen para.

1.14 (July 9, 2004). Although the record in the

present case reflects discussion of a hold by various

officials prior to Hart’s discharge, the military judge

did not reach a conclusion as to whether a legally

effective hold had been placed on Hart. Accordingly,

the present appeal does not involve the question of

whether Hart’s discharge was issued contrary to a

valid hold, rendering the discharge void or voidable.

See, e.g.. Smith v. Vanderbush, 47 M.J. 56, 58

(C.A.A.F. 1997).

Post-discharge analysis of pay and allowances

In the present case, the command purported to

revoke Hart’s discharge, relying on the command’s

failure to comply with 10 U.S.C. § 1168(a), which

provides that a “member of an armed force may not

be discharged or released from active duty until...

his final pay or a substantial part of that pay . . . [is]

ready for delivery to him.” Section 1168 is a

16a

personnel management statute designed to protect

servicemembers and their families from the adverse

financial consequences of premature separation. See

United States v. Keels, 48 M.J. 431, 432 (C.A.A.F.

1998). The pertinent legislation originated in World

War II as part of the Servicemen’s Readjustment Act

of 1944, Pub. L. No. 346, § 104, 58 Stat. 284, 285

(1944). This legislation, commonly known as the

“G.I. Bill of Rights,” provided “Federal Government

aid for the readjustment in civilian life of returning

World War II veterans.” 58 Stat. 284. Among other

provisions, the Act offered federal aid to veterans in

areas such as education, home ownership, and

unemployment insurance. /d. at 287-300. This

discharge provision ensured the efficient

administration of disability claims and the timely

discharge of servicemembers. See H.R. Rep. No. 78-

1418, at 5-6 (1944). Nearly twenty years later, the

provision was recodified at 10 U.S.C. § 1168. See

Pub. L. No. 87-651, § 106(b), 76 Stat. 506, 508

(1962); S. Rep. No. 87-1876 (1962), as reprinted in

1962 U.S.C.C.A.N. 2456, 2458-59. Section 1168 does

not address jurisdiction under the UCMJ; nor does

the statute require the government to revoke a

discharge when the government’ subsequently

discovers that it has failed to perform its obligation

to ensure timely accounting of military pay for a

servicemember facing a discharge.

Section 1168 and status

Notwithstanding the language and purpose of §

1168, the majority opinion holds that if the

government fails to comply with § 1168, the statute

17a

“precludes discharge” of a servicemember. United

States v. Hart, 66 M.J. at 277 (C.A.A.F. 2008). Under

the majority opinion’s interpretation of § 1168, the

effective date of separation set forth in a discharge

document, such as a DD-214, must be disregarded if

personnel in the finance office have overlooked or

failed to make sufficient progress in calculating a

departing servicemember’s pay at the time of

separation. Similarly, under the majority opinion’s

approach, if military authorities provide a person

with a DD-214 and inform that person on the

effective date that the individual] is no longer on

active duty, those actions have no effect on the

member’s military status. Despite the effective date

provided in the discharge document, the person

would remain on active duty until an uncertain

future time, the date on which his or her “final pay

or a substantial part of that pay” becomes “ready for

delivery.”

The majority opinion would elzminate the ability

of servicemembers and the government to rely on the

certainty provided by the effective date set forth in a

discharge document. The effective date of discharge

is critical to the termination of a _ person’s

entitlement to pay, allowances, and costly military

bencfits, such as medical care. In addition, the

effective date is critical to a person’s availability to

military orders, including deployment. Recipients of

a DD-214 who had returned to civilian life could be

ordered to active duty on the theory that they had

never been “effectively discharged” from the armed

forces. Hart, 66 M.J. at 277.

18a

Pay administration and corrective action

Military justice jurisdiction, while important,

pales in significance to the other aspects of military

life to which the distinction between military and

civilian status is crucial. The majority opinion would

remove the certainty of an effective date on the DD-

214, which has spawned relatively little litigation,

and replace it with the necessity of determining on a

case-by-case basis the date en which an individual’s

pay was “ready for delivery.” This uncertainty is

further magnified by the fact that each year, the

Defense Finance and Accounting Service (DFAS)

must accomplish millions of actions involving basic

pay, a complex array of allowances, travel

reimbursements, and a host of other unrelated

financial transactions. See Defense Finance and

Accounting Service, http://www.dfas.m1il/about.html

Gast visited May 7, 2008). Although DFAS

undoubtedly endeavors to accomplish these myriad

tasks in a timely fashion, there is a significant

potential for delays and mistakes, as reflected in the

lengthy record of the finance proceedings set forth in

the present case. Under the interpretation of § 1168

set forth in the majority opinion, an administrative

deficiency in the computation of a member’s final

pay will render the discharge ineffective. Aside from

disrupting a member’s transition to civilian life, such

an interpretation carries the potential for extensive

litigation about military pay and benefits, with the

possibility of significant costs to the government.

Section 1168 does not require such a result. If the

government fails in its obligation to provide a

19a

departing servicemember with an important benefit

for transition to civilian life, the error may be

remedied by completing the required paperwork and

making the requisite payment to the servicemember.

If the result is not satisfactory, the member can

apply to the Board for Correction of Maiulitary

Records, see 10 U.S.C. § 1552 (2000), or seek relief

before the United States Court of Federal Claims,

see 28 U.S.C. § 1491 (2000).

Section 1168 does not contemplate, much less

require, that the government inform the individual

that the discharge is invalid, that the individual

abandon civilian employment and the _ other

attributes of civilian life, or that failure to repair to

duty post-haste will constitute a violation of the

UCMJ. See United States v. Howard, 20 M.J. 353,

354 (C.M.A. 1985) (describing the purpose and effect

of § 1168); Hamon v. United States, 10 Cl. Ct. 681,

683 (1986) (noting that the plain language of § 1168

and its legislative history “indicate concern not with

actual receipt of discharge documents but rather

with facilitating veterans’ return to civilian life”); Zn

re Shattuck, 63 Comp. Gen. 251, 252 (1984) (failure

to have a member’s final pay ready for delivery did

not invalidate an otherwise proper discharge).

Section 1168 and jurisdiction

To the extent that our Court has cited § 1168 in

jurisdictional cases, we have done so where the

unsettled state of the record requires consideration

of multiple factors in determining whether an

individual remained in miulitary status. United

20a

States v. King, 27 M.J. 327, 328 (C.M.A. 1989), for

example, involved a servicemember who requested

an early discharge for purposes of reenlistment. At

the reenlistment ceremony, King was given a

discharge certificate. /d. Upon the suggestion that he

was now 4a civilian, King refused to complete the

reenlistment ceremony, retrieved his_ personal

effects, and departed. /d. Our Court had no trouble

concluding that an early discharge for purposes of

reenlistment does not return a servicemember to

civilian status. See rd. at 328-29 (citing United

States v. Clardy, 13 M.J. 308 (C.M.A. 1982); United

States v. Johnson, 6 C.M.A. 320, 20 C.M.R. 36

(1955)). We cited 10 U.S.C. § 1168(a) and the related

provisions of 10 U.S.C. § 1169 as “generally

requiring’ the following steps to accomplish an early

discharge: (1) delivery of a valid discharge

certificate; (2) a final accounting of pay;“and (3)

completion of an administrative clearing process. /d.

at 329 (observing that there was no evidence of any

accounting of pay under the facts of the case). In

noting that the discharge statutes “generally”

require three steps, the opinion sought to describe

the general practice applicable in most instances,

rather than set forth an absolute rule. See id; see

also Merriam-Webster’s Collegiate Dictionary 485

(10th ed. 1998) (defining “generally” to include

“usually” and “in disregard of specific instances and

with regard to an overall picture”).

The present appeal does not involve any of the

past circumstances in which the delivery of a

discharge certificate failed to terminate military

status, such as fraudulent procurement of a

2la

discharge, Wickham v. Hall, 12 M.J. 145, 150

(C.M.A. 1981); apprehension for fraudulent

amendment of discharge orders prior to separation,

United States v. King, 42 M.J. 79, 80 (C.A.A.F.

1995); continuous military service in the event of a

discharge for purposes of reenlistment, Aing, 27 M.J.

at 328; delivery of a discharge certificate before the

time of day on which the discharge became effective,

United States v. Melanson, 53 M.J. 1, 4 (C.A.A.F.

2000); or placement of a legal hold prior to the time

of day on which the discharge became effective,

United States v. Harmon, 63 M.J. 98, 103 (C.A.A.F.

2006). Instead, we have a case in which the

discharge was ordered at the highest level within the

military department, the servicemember cooperated

in the separation process with no allegation of fraud

on his part, the local command did not place a legal

hold on the servicemember, the local command

issued a discharge certificate to the servicemember,

and the command did not seek to revoke the

discharge until several days after the certificate was

issued. Under these circumstances, Hart’s military

status terminated on the date that the command

delivered the discharge certificate to him. See

Howard, 20 M.J. at 354 (citing United States v.

Scott, 11 C.M.A. 646, 648, 29 C.M.R. 462, 464 (1960);

William Winthrop, Military Law and Precedents 548

(2d ed. 1920 reprint)). As a result, the military judge

erred when he rejected the defense motion to dismiss

the charges for lack of personal jurisdiction.

22a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class DUSTIN M. HART

United States Air Force

ACM 36253

30 November 2006

Sentence adjudged 20 December 2004 by GCM

convened at Charleston Air Force Base, South

Carolina. Military Judge: Kevin P. Koehler.

Approved sentence: Bad-conduct discharge,

confinement for 185 days, forfeiture of all pay and

allowances, reduction to E-1, and a reprimand.

Appellate Counsel for Appellant: Colonel Nikki A.

Hall, Licutenant Colonel Mark R. Strickland, and

Major Sandra K. Whittington.

Appellate Counsel for the United States: Colonel

Gary F. Spencer, Lieutenant Colonel Robert V.

Combs, and Major Jin-Hwa L. Frazier.

23a

Before

ORR, THOMPSON, and FRANCIS

Appellate Military Judges

FRANCIS, Judge:

Pursuant to his pleas, the appellant was

convicted of three specifications of divers wrongful

use of controlled substances (marijuana, Diazepam,

and Alprazolam), one specification of wrongful

possession of Diazepam, and one specification of

divers wrongful distribution of Alprazolam, in

violation of Article 112a, UCMJ, 10 U.S.C. § 912a. A

general court-martial composed of officer members

sentenced him to a_ bad-conduct’ discharge,

confinement for 185 days, forfeiture of all pay and

allowances, reduction to the grade of E-1, and a

reprimand. The convening authority approved the

sentence as adjudged.

The appellant asserts one assignment of error.

Specifically, the appellant contends he was

administratively discharged prior to trial and the

court-martial therefore lacked personal jurisdiction

to try him for the offenses sub judice. Finding no

error, we affirm.

Background

On 28 November 2001, the appellant began a six-

year term of enlistment. His Expiration of Term of

Service (ETS) date for that enlistment was 27

November 2007. For the entire period encompassed

24a

by the events discussed below, he was assigned to

the 437th Maintenance Squadron, 437th Airlift

Wing, Charleston Air Force Base, South Carolina.

In the fall of 2003, the appellant became the

subject of an Air Force Office of Special

Investigations (AFOSD drug investigation. In early

January 2004, after being interviewed by AFOSI

agents and confessing to the offenses of which he

now stands convicted, the appellant began working

as an AFOSI informant. In that capacity, he was

scheduled to participate in an AFOSI drug

investigation operation from 6-8 March 2004. The

appellant's squadron commander was aware of the

appellant’s own drug offenses and that he was

working for AFOSI. His squadron - section

commander knew only that the appellant was

working for AFOSI. He did not know the appellant

himself was the subject of an AFOSI drug

investigation.

On 8 January 2004, Headquarters, Air Force

Personnel Center (HQ AFPC) notified the

separations section of the appellant’s servicing base

personnel office that the appellant, as the result of a

Medical Evaluation Board (MEB), had been found

physically unfit for continued military service and

was to he administratively separated with a

disability discharge.

On 9 January 2004, the base legal office sent a

memorandum to the 437th Mission Support

Squadron, requesting the appellant be placed on

administrative hold for 120 days. The memorandum

25a

further provided that the appellant was not to be

released from active duty without prior legal office

coordination. The memorandum was sent to several

offices in the servicing personnel flight, but was not

seen by the superintendent of the separations

section, who claimed he would have taken more

interest in the appellant’s situation if he had seen

the letter.

On 23 January 2004, HQ AFPC sent a follow-up

notification to the separations section, establishing 3

March 2004 as the appellant’s effective date of

separation. On 24 January 2004, separations

forwarded a copy of the HQ AFPC message to the

appellant and his unit orderly room, advising of the

disability discharge determination. Shortly

thereafter, the appellant started outprocessing,

working from a checklist provided to him by the

separations section. The appellant’s squadron

section commander knew the appellant was

outprocessing. His squadron commander knew the

appellant was the subject of an MEB, but did not

know the appellant was outprocessing the unit. The

squadron commander intended to retain’ the

appellant until completion of the AFOSI

investigation into the appellant’s own offenses and

completion of any resulting disciplinary action. He

believed the administrative hold memorandum

issued by the legal office on 9 January 2004 was

sufficient to preclude the appellant from separating

administratively until these actions could be

completed. The squadron section commander knew

about the administrative hold, but believed the MEB

determination took precedence over that action.

26a

On 24 February 2004, as part of his

outprocessing, the appellant met with the finance

technician responsible for calculating his final pay.

the technician took all of the required information

but did not, at that time, make the final calculations

required to determine the exact amount of pay due

the appellant. That same day, the appellant’s

squadron section commander signed off on the

appellant's outprocessing checklist, indicating he

had completed all necessary outprocessing actions

and was “cleared to final out-process.”

On 3 March 2004, the separations section issued

the appellant a DD Form 214, Certificate of Release

or Discharge from Active Duty. The form reflected an

effective separation date of 3 March 2004.

On 5 March 2004, the appellant’s squadron

commander, AFOSI, and the legal office learned of

his disability separation. None were pleased. The

legal office contacted the servicing finance office,

discovered the appellant’s final pay had not yet been

calculated, and directed no further action be taken.

Based on that direction, the noncommissioned officer

in charge (NCOIC) of the pay section removed the

appellant’s paperwork from the desk of the finance

technician responsible for calculating his final pay

and stopped all further processing. The same day,

the appellant’s acting squadron commander issued a

memorandum to the 437th Mission Support

Squadron, stating the appellant’s discharge was in

error and asking that the DD Form 214 be revoked.

In addition, the appellant’s civilian attorney was

27a

contacted and told the appellant was required to

return to his unit no later than 7 March 2004. The

appellant did not do so.

On 9 March 2004, the appellant’s unit reported

him as absent without leave. On 18 March 2004,

civilian authorities arrested the appellant. He was

returned to Air Force control on 23 March 2004 and

charges were preferred against him the same day.®

At the start of his trial, the appellant moved to

dismiss the charge and specifications for lack of

personal jurisdiction. The trial judge denied the

motion. The appellant then unsuccessfully sought a

Writ of Mandamus from this Court to force the trial

judge to dismiss. When his Writ application was

denied, the appellant appealed to the Court of

Appeals for the Armed Forces. That appeal was also

denied. ‘The appellant now _ continues his

jurisdictional challenge.

Discussion

Jurisdiction is a legal question which appellate

courts review de novo. United States v. Tamez, 63

M.J. 201, 202 (C.A.A.F. 2006), pet. denied, 63 M.J.

471 (C.A.A.F. 2006). When conducting such a review,

we accept the military judge's findings of historicai

facts unless they are clearly erroneous’ or

°“ The original charges included, :nter alia, one Charge and

Specification of AWOL, in violation of Article 86, UCMJ. That

Charge and Specification were withdrawn at the order of the

convening authority prior to entry of pleas.

28a

unsupported in the _ record. United States _ v.

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000).

"In general, a person becomes subject to court-

martial jurisdiction upon enlistment in or induction

into the armed forces.” Rule for Courts-Martial

(R.C.M.) 202(a), Discussion (2). Once attached,

personal jurisdiction over the member continues

until it is terminated through a proper discharge.

United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F.

2006).

“To effectuate an early discharge, there must be:

(1) a delivery of a valid discharge certificate; (2) a

final accounting of pay; and (3) the undergoing of a

"clearing" process as required under appropriate

service regulations to separate the member from

military service.” /d. (citing United States v. King,

27 M.J. 327, 329 (C.M.A. 1989)). The requirement fo1

a final accounting of pay is not a creation of the

courts, but 1s well grounded in statute. “A member of

an armed force may not be discharged or released

from active duty until his... final pay or a

substantial part of that pay, are ready for delivery to

him or his next of kin or legal representative.” 10

U.S.C. § 1168(a).

Both the appellate defense counsel and the

appellate government counsel agree the appellant

was issued a valid discharge certificate and that .1e

completed the required “clearing” process. The

record supports that conclusion. The sole issue is

whether the appellant received a “final accounting of

pay’ within the meaning of relevant case law and

29a

the req..rements of 10 U.S.C. § 1168(a). The

appellan: asserts this prong of the Azng test has

been met. The government contends it has not, as

further additional steps to calculate the appellant’s

final pay still remained to be done. We find there

was no final accounting of pay. The appellant’s early

discharge was therefore incomplete and the court-

martial retained jurisdiction.?

In ruling on the appellant’s motion to dismiss for

lack of personal jurisdiction, the trial judge made

extensive findings of fact. The evidence of record

supports his findings and we adont them as our own.

On 26 February 2004, the Defense Finance and

Accounting Service (DFAS) conducted an_ initial

calculation of separation pay for the appellant. That

calculation was not final, but was simply a point in

time “snapshot” of the appellant’s pay account as of

that date. It was subject to change based on further

input by base-level finance officials servicing the

appellant’s unit. DFAS regulations in effect at the

time of the appellant’s separation on 3 March 2004

required that base-level finance officials manually

calculate the appellant’s separation pay before DFAS

could disburse it. The manual calculation was

required to take into account items such as the

member’s basic pay and allowances, the amount of

’ The government also argues the appellant’s discharge was

incomplete because his squadron commander never intended he

be discharged at that time. Having concluded there was no

required final accounting of pay, we do not address that

additional argument.

30a

any special pay and allowances due, and the amount

of any unused leave to be sold back. It was also

required to account for any outstanding debts known

to base-level officials that would not be visible to

DFAS. Within the appellant’s servicing finance

office, a pay technician was_ responsible for

conducting the required manual calculations for any

member separating from the Air Force. The result

then had to be reviewed by the NCOIC of the

military pay section and quality checked by still a

third individual before being entered into the DFAS

pay system. Only after all of these steps were

complete was DFAS authorized to disburse the pay.

Base-level officials had a 20-day window to

complete their manual calculations and enter the

results into the DFAS system. Although the base-

level pay actions were supposed to be completed

prior to a member's separation, that did not always

occur. Depending on workload in the finance office,

completion of the required calculations often

extended beyond a member’s effective separation

date.

On 24 February 2004, the appellant provided the

finance office with all the information needed to

calculate his final separation pay. However, the

finance technician responsible for making the

required calculations did not complete them at that

time. Further, the required manual calculations had

not been completed, or even started, when the

appellant was issued a DD Form 214 on 3 March

2004 or when the appellant’s acting squadron

commander initiated action on 5 March 2004 to

3ia

revoke the discharge certificate. The information

provided by the appellant was on the desk of the

finance technician waiting to be worked and

remained there until retrieved by the NCOIC of the

pay section, who halted the payment process. As a

result, no final calculations were ever entered into

the DFAS pay system and DFAS could not and did

not issue separation pay to the appellant. Under

these circumstances, neither the appellant’s “final

pay nor a “substantial part of that pay” were ready

for delivery within the meaning of 10 U.S.C. §

1168(a). Accordingly, there was no final accounting

of pay. Absent a final accounting of pay, the

appellant's early discharge was not legally

effectuated and he remained subject to military

court-martial jurisdiction.

Conclusion

The approved findings and sentence are correct in

law and fact, and no error prejudicial to the

substantial rights of the appellant occurred. Article

66(c), UCMJ, 10 U.S.C. §866(c); United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly,

the approved findings and sentence are AFFIRMED.

Senior Judge ORR participated in this decision prior

to his reassignment.