Friday, January 04, 2008

All DD 214 delivery all the time

CAAF's daily journal today included a grant of review and an accompanying summary disposition. The granted issue asked: "WHETHER THE COURT-MARTIAL HAD PERSONAL JURISDICTION OVER APPELLANT WHERE HE RECEIVED HIS DD-214 PRIOR TO SENTENCING." United States v. Pope, __ M.J. ___, No. 07-0788/AR (C.A.A.F. Jan 3, 2008). ACCA's opinion in the case doesn't appear to be available online, so it's impossible to tell exactly what's going on. But CAAF summarily affirmed in light of United States v. Harmon, 63 M.J. 98, 101-03 (C.A.A.F. 2006). [CAAF's order transposes the numbers in the first page of the Harmon opinion; the preceding cite is correct.]

In Harmon, a Marine received his DD 214 on 17 May 2001. After his receipt of the DD 214, but before 2359 when it was to take effect, the Marine Corps discovered his criminal misconduct. The Marine Corps then revoked his discharge. In a 4-1 opinion, over Judge Erdmann's dissent, CAAF found that the Marine Corps retained jurisdiction to court-martial Private Harmon.

This Monday, CAAF will consider a somewhat similar issue in United States v. Hart. The AFCCA opinion from that case is available online here. United States v. Hart, No. ACM 36253 (A.F. Ct. Crim. App. Nov. 30, 2006). As we previously discussed here:
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.


Anonymous said...

The "final accounting of pay" prong sounds suspiciously like a contrived loophole.

It reminds me of the critique of just-war theory's requirement that the war be a "last resort." The critique being that, by logic, there is no such thing as "lastness." There is always one last possible preventative action that could be taken before undertaking the war.

Likewise, it seems that some accountant could always find some 1 cent error that requires fixing...hence making the "final accounting" a mirage.

Is there any label on the final LES, anyway? "This is Your Final Accounting Of Pay." I doubt it.

Guert Gansevoort said...

This case demonstrates why Harmon was such a terrible ruling. And it appears it is about to be made worse by a CAAF affirmation of this case. In the days before Harmon, your military status was terminated upon issuance of a valid DD 214. Now, military jurisdiction continues inevitably so long as a personnel clerk forgets to comply with service regulations regarding final accounting. Servicemembers with valid DD 214's in hand would be well advised to stop by their personnel shop at 2359 of their last day of service and demand final pay and accounting.

John O'Connor said...

I think you guys have the wrong side trying to use a loophole. I guess I'm just not going to shed any tears for a servicemember who commits a crime and then doesn't succeed in the "you screwed up and discharged me" gambit.

Guert Gansevoort said...

JOC, I think the sentiment that you express is exactly why the CAAF has abandoned long-established precedent for judicial realism in this area. I can think of no other explanation for Harmon. I don't consider a properly issued certificate of discharge a loophole. Rather it is an official statement by the service that the member no longer has the status of an active duty sailor or Marine. And only civilian aliens and servicemembers are subject to the jurisdiction of military courts.

Phil Cave said...

“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).

This language from the CCA opinion is what leads me to think they are wrong, and that jurisdiction was terminated.
"substantial part" avoids the missing one cent problem, and then "are ready for delivery" is covered by the finance folks inputing the discharge into the system. Apparently there's no requirement it actually be delivered?

Anonymous said...

The desparation here to hold onto military jurisdiction is distressing.

America is not even supposed to have a standing army. Military standards are higher and military sentences are tougher. So military jurisdiction is a big deal, not a technicality or loophole.

JOC's support of vigilante jurisdiction (its ok because justice is being done) is alarming. If someone is willing to bend a rule of jurisdiction, then they will be willing to bend any rule. If the crime in question is not significant enough for the local district attorney to prosecute after a quick phone call, then the real motive is probably ego, not good order and discipline.

Dwight Sullivan said...

Harmon committed his offenses on board Camp Lejeune. My understanding is that the feds maintain exclusive criminal jurisdiction over Camp Lejeune -- North Carolina couldn't have tried him for his offenses. See State v. Smith, 400 S.E.2d 405 (N.C. 1991).

I've never been a SAUSA and we likely have readers of this blog who have not only been a SAUSA, but have performed such duties at Lejeuene. If Harmon had successfully challenged his susceptibility to court-martial jurisdiction, couldn't the feds have prosecuted him in U.S. district court for robbery and attempted kidnapping? If nothing else, it would seem that they could charge him under the Federal Assimilative Crimes Act. And if so, then we aren't talking about letting Harmon get away with it, but rather about who should hold Harmon accountable.

John O'Connor said...

Mr. or Ms. Anonymous:

I think you misunderstand what I am saying. I am not at all for bending the rules to find jurisdiction. I am not an expert on the law regarding termination of court-martial jurisdiction through discharge (my crim law instructor at NJS was an idiot).

You assume the courts have been bending the rules to find jurisdiction. As a non-expert on thsi subject, I don't know whether it's true or not. If that is true, I am against it. But if a fair reading of the rules finds jurisdiction, even if it is by a technicality, all I am saying is the accused can cry me a river if there is proper jurisdiction through a technicality, because I'm just not particularly sympathetic.

That's not vigilante justice, because I only support the exercise of court-martial jurisdiction where permitted by the UCMJ and Constitution. But I have no problem with exercise of that jurisdiction to the fullest extent.

Also, I tend to credit people throwing around accusations like vigilante justice more if they have attached their name to their accusation.

Anonymous said...

Chill out, JC, if that is your real name. This is a blog. So please don't take anything personally.

Anonymous said...


I used the term "vigilante jurisdiction" (not justice). It was a pun, a characature, of your position.

I tend to credit people's opinions more when they have a sense of humor - because it shows some humanity. So please chil' and don't take it personally. I enjoy your posts.

"Don't taz me bro!"

John O'Connor said...

I have a sense of humor (I think). I wasn't really offended. I also enjoy your posts, Mr. Anonymous. You'e quite prolific (wink).

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