Some thoughts about Webb

Senior Airman Webb reached the end of his enlistment contract on 23 October 2008. Webb was informed that he was under investigation for criminal misconduct (AWOL and drug use) and would be put on legal hold. He nevertheless went to the Air Force Personnel Center (AFPC), which is tasked with (among other missions) discharging service members. Even though Webb didn't properly complete the discharge procedures, AFPC mailed him a DD 214 on 24 October 2008. The form indicated that Webb was discharged as of 23 October 2008. On 12 November 2008, DFAS issued Webb his final accounting of pay.

Finally, on 21 November 2008, Webb's unit realized that he was gone. He was apparently declared a deserter and was apprehended on 5 December 2008. Initial charges were preferred against him on 11 December 2008.

The issue in Webb is whether, under these facts, the military still has personal jurisdiction to court-martial him. Yes, held AFCCA in a published 2-0 opinion written by Senior Judge Francis. (One of the judges on the panel didn't participate in the case and no judge was substituted for her.)

The key statute at issue is 10 U.S.C. § 1168(a), which provides: "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." It would appear that both of those conditions were satisfied. Not so, ruled AFCCA.

AFCCA notes that "Section 1168(a), imposes only two requirements: a discharge certificate and a final accounting of pay." United States v. Webb, __ M.J. __, No. 2009-01 (pet), slip op. at 8 (A.F. Ct. Crim. App. March 20, 2009). The court acknowledges that Webb received his final accounting of pay on 12 November 2008. Id., slip op. at 9. AFCCA also observes that it is "undisputed that on 24 October 2008, a 'separations technician' at AFPC mailed the petitioner a discharge certificate, bearing an effective date of 23 October 2008, The DD Form 214 appears on its face to be correct and nothing within the document purports to preclude it from taking effect on the date indicated." Id. But the court holds that the discharge wasn't effective because it "was issued in violation of applicable Air Force regulatory guidance and was therefore without legal effect. Accordingly, the petitioner was not legally 'discharged' from the Air Force and remains subject to military jurisdiction." Id.

AFCCA cites an Air Force Instruction indicating that AFPC is only supposed to discharge a service member upon the member's "completion of the clearing process established by the Air Force." Id. (quoting AIr Force Instruction 36-3208, ¶ 1.11.14). Part of the proper outprocessing for Webb would have been to check out with his unit and with the Military Personnel Flight. Id., slip op. at 10. Had he done either, his discharge likely would have been prevented. Id. The court also indicates that AFPC shouldn't have issued the discharge because the SJA had tried to notify AFPC to place Webb on legal hold before he was discharged. Id. Accordingly, "the separations technician's clerical act of issuing the DD Form 214 was in direct violation of the limitations imposed by the Secretary of the Air Force through applicable regulations and therefore exceeded the technician's authority." Id. "Because the discharge certificate was issued in contravention of requirements established by order of the Secretary of the Air Force, and against the intent of the petitioner's commander, it was without legal effect and therefore void or voidable. The petitioner therefore remained subject to military jurisdiction." Id. (internal citations omitted).

CAAF usually summarily denies writ appeals. But assuming that Webb files a writ appeal, I hope that CAAF gives it plenary review. There may be an early test of CAAF's view of the case because the opinion tells us that Webb's court-martial is set to resume on 30 March, id. at 2 n.2, so presumably CAAF will soon receive a request to enjoin the court-martial from proceeding until it hears a writ appeal in the case.

AFCCA's opinion has some troubling implications. There seems to be no question that an individual who has the actual authority to issue discharge certificates issued one to Webb. The government's argument essentially is that its own agent shouldn't have done what she did. If that argument prevails, then there seems to be no temporal limit on the government's ability to court-martial a former servicemember as long as the government can later point to some defect in the check-out procedures. I've been mobilized twice in the last six years. I was issued DD 214s by different units when I completed each mobilization. One unit was very methodical. The other, well, wasn't. I would be more surprised if the less methodical unit actually did everything it was supposed to before discharging me from active duty than if it didn't. And if it missed a step and if AFCCA's reasoning in Webb were to govern throughout the military justice system, then I guess I'm still subject to court-martial jurisdiction for anything I did during my mobilization and since.

Presumably Congress adopted 10 U.S.C. § 1168(a) to establish a fairly bright line to divide those still in the military from those who aren't. Webb considerably dulls that line's brightness. Of course, that doesn't necessarily mean the opinion is wrong. But it does suggest that the opinion is extremely important and is thus worthy of CAAF's full review on the merits.