Final accounting of pay and personal jurisdiction

In United States v. Hart, __ M.J. ___, No. 07-0247/AF (C.A.A.F. Aug. 16, 2007), CAAF granted review of the following uninformative issue: "WHETHER THE CHARGE AND SPECIFICATIONS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION." Fortunately the decision below is available on the Air Force Court's web site. United States v. Hart, No. ACM 36253 (A.F. Ct. Crim. App. Nov. 30, 2006). That opinion explains that "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." Id., slip op. at 2.

In Hart, an airman first class who was pending investigation for drug offenses was issued a DD 214 for medical reasons on 3 March 2004. "The form reflected an effective separation date of" that same date, 3 March 2004." Id., slip op. at 3. The Air Force Court tells us, "On 5 March 2004, the appellant's squadron commander, AFOSI, and the legal office," all of whom believed Hart was on legal hold, "learned of his disability separation. None were pleased." Id. But aha! Due to standard military bureaucratic inertia, Hart hadn't yet received his final pay. The command seized on this loophole to argue for continued court-martial jurisdiction.

Also on 5 March 2004, Hart's acting squadron commander issued a memorandum "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 contacted and told the appellant was required to return to his unit no later than 7 March 2004. The appellant did not do so." He was then reported as being UA and was arrested by civilian authorities.

The Air Force Court explained that "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." Hart, slip op. at 4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)).

Everyone agreed Hart had been delivered a valid discharge certificate and had gone through a clearing process. So the "sole issue" that confronted the Air Force Court was "whether the appellant received a 'final accounting of pay' within the meaning of relevant case law and the requirements of 10 U.S.C. § 1168(a)." Hart, slip op. at 4. No, said the Air Force Court. We'll see, says CAAF.