Saturday, March 21, 2009

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.


Cloudesley Shovell said...

Another interesting question is what "final accounting of pay" really means. Does it mean the time point when the amount of your final pay is actually tabulated, or does it mean the time point when the amount of your final pay is actually disbursed? "Accounting of pay" and "disbursal of pay" are two different things.

It is my understanding from afar (from over here on the east side of the pond) that DFAS only sends out money twice a month, around the first or the fifteenth. Does that mean that no person is ever discharged until that pay is sent out?

What if the personnel clerk makes a mistake on a demobilizing reservist's pay account, and the reservist is not paid his last $100 of pay until a year after his orders expire? Was that reservist really still subject to UCMJ jurisdiction for an entire extra year? What if the reservist was overpaid, and the error is not discovered for three years? Still subject to jurisdiction?

10 USC 1168 seems to be a statutory obligation placed upon the gov't to conduct a final accounting of pay at the time of the servicemember's discharge. The failure of the gov't to properly execute that statutory duty should not be a basis for finding continued in personam jurisdiction under Article 2, UCMJ.

Using the government's willful or negligent failure to fulfill its statutory obligations as a basis for criminal jurisdiction stands the law on its head.

Dew_Process said...

Let's see - the government screws up multiple ways, to include not insuring that he's placed on Admin "hold" pending the investigation, and that inures to the BENEFIT of the Government?

The absence of any reference to Toth v. Quarles is equally as puzzling, just as is the AF's claiming that he's somehow a "deserter!"

Dew_Process said...

PS - this raises the long simmering dispute in the AF as to whether or not an "instruction" is a "regulation" as a matter of law.

Dwight Sullivan said...

Sir Cloudesley, your comments about delay in final accounting of pay (insightful, as always) are reminiscent of some of the debate between the majority and dissent in United States v. Hart, 66 M.J. 273, 277 (C.A.A.F. 2008).

Anonymous said...

The separation was "void or voidable . . . . " Is that really what AFCCA wanted to say? Contract 101, isn't there a legal distinction between a void document and a voidable document?

Anonymous said...

Who else sees this coming next?

"The evidence clearly indicates that the defendant's final checkout list was signed by the supply chief when standing instructions of the commanding officer required the supply warehouse clerk to sign the sheet.

Thus, the DD-214 was improperly issued and the .mil has lifetime jurisdiction over the defendant."

Anonymous said...

10 USC 1168(a) states as follows:

(a) 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.

That doesn't read like it was meant to establish a bright-line rule as to jurisdiction over military members or when an accused is discharged. It says that he can't be dischaged before he receives a discharge certificate and pay, not when a discharge is effective.

It appears to me that the statute was not meant to be jurisdictional but rather to protect military members from situations occurring in the old days when military personnel were told to go home and await further orders and then, after they had waited a couple of months, and the service had decided they no longer needed the member, the service would discharge them effective the date they were sent home, thus making the militry member lose several months pay, and perhaps credit for retirement pay, while still being at the beck and call of the miliary. See Crist v. United States, 124 Ct. Cl. 825 (1952).

Cloudesley Shovell said...

Having now read Hart, 66 MJ 273, esp. the dissent, I am still convinced that 10 USC 1168 imposes statutory obligations upon the gov't to properly discharge a servicemember, and does not serve as a court-martial jurisdiction savings statute. It merely mandates what the gov't must do no later than the date of a person's discharge.

I believe it to be entirely improper to use a statute that is not part of the UCMJ to "save" jurisdiction under the UCMJ. If it's not contained with the UCMJ, it doesn't count.

Under the majority view in Hart, the gov't retains jurisdiction if the gov't screws up the final pay accounting. That's an absurd result, because the theory does not survive testing it to its limits. Namely, any pay screwup, whether an over- or underpayment, serves to extend jurisdiction indefinitely until the pay problem is solved. That's just stupid.

(footnote 5 in Hart seems to indicate that jurisdiction would only extend for a "reasonable time frame" but that just pure judicial legislating. Article 2, UCMJ, controls. A DD-214 is called a "Certificate of Release or Discharge from Active Duty" for a reason--its issuance certifies that you are off active duty. Period. The date of issuance of that certificate is dispositive, and not subject to some wishy-washy we-know-it-when-we-see-it standard of reasonableness.)

Anonymous said...

The problem with the AFCCA's analysis has been noted. Where does it stop? In my opinion, once the discharge has been issued, that is the generally the end of the story.

Of course, if you have obtained that discharge by fraud, the military can re-obtain court martial jurisdiction over you by providing that, and, once proved, re-obtains jurisdiction for pre-discharge offences. Of course, that isn't what occurred here (though the AFCCA sort of hints around it, insofar as it alleges that the defendant took off without finishing all outprocessing).

Anonymous said...

Of note, the opinion never identifies the actual Base or SJA office involved - protect the derelict, I guess, but it appears to be Randolph AFB, TX, since that's where AFPC is at.

And, ANON 0902 - I agree. Major differences between a document that's void and one that's voidable. But, speaking of contracts, since this was an ETS separation, the language of the Accused's Enlistment Contract could have been important as well.

Any procurement lawyers out there? Curious how DoD procurement deals with the "void" versus "voidable" issue.

Anonymous said...

Procurement wonk says: Void as in void ab initio is a better theory. Voidable is loose language -- nearly all govt contracts include a termination for govt convenience clause, but an allegedly wrongly issued DD214 doesn't seem terminable/revokable by convenience, only correctable.

Not mentioned much by AFCCA, but if fraudulently procuring discharge was charged, seems more sensible to allow trial to proceed vice Cap'n Crunch's boot 'em then recall 'em standard.

One other change not discussed -- heard AFPC recently moved from having local bases issue DD214s to centralizing the function. If so, not sure how that cuts, but does create systemic disconnects like those seen here.

Anonymous said...

Recently had this in an OVERSEAS case...which is much worse. Not only does AFPC issue the certificate centrally, they do so well in advance of the separation date, at least they did so in my case. Snuffy received the certificate, said something to the first sergeant, and suddenly a new DD 214 with a "void" across it is now in existence...all after the ETS. And the "final accounting of pay" was done so that when they finally decided to correct the government error and properly place Snuffy on admin hold, he didn't get paid for three months. Yet the MJ quickly found that jurisdiction still existed...even though the government had already sent Snuffy's family home and moved all his stuff.

How on EARTH does this statute serve to protect the idiots who can't even properly draft a letter to place a guy on admin hold...these are LAWYERS for goodness sake. And, as we all now certify yearly in the AF JAG corps, they're licensed in one of the 50 states, DC or another territory. WHAT????

Anonymous said...

ANON 1700 - the Statute is now being referred to as the "AF JAG Malpractice Protection Act!"

I agree, it's both a fiction and a fraud upon the Court, but if it saves a conviction, so be it!

Kumahito said...

An update on this case - we're going to trial on Tuesday, 31 March, at Nellis AFB, Nevada, unless CAAF steps in and grants us an emergency stay. I'm the trial defense counsel on the case ... wish us luck!

Anonymous said...

I did some research!!!!
Has anyone brought up the fact that he served his country for many years and just returned from Iraq. Has anyone considered what our troops go through upon return! Has anyone considered he had not seen his two little boys or wife for two years and he still followed what he thought was the process? He was moving along as told by the process while his commander was on leave? Maybe his command did not follow through because he just returned also and he did not follow his procedure. Who says its Webb's fault! The report from his absent commander?
The Air force who blindly did not do their job on discharge and made him think he was following procedures and did not fill him in on proper procedures or again his command or USAF who did not tell him he was on any type of hold or serve him any legal paper work that he was on hold (but says they told him...Hmmm).
Where was his command when he was doing all this paper work did no one check with them.? This totally looks like the USAF fell out not Webb who just came back from Iraq!
Again just returned from Iraq and his time was up...
Again he just returned form Iraq and followed the information given: 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.) as required.
If Webb was naive to anything further the USAF required, especially knowing he just returning from Iraq you the US government should have sent him to school to be a lawyer because the small print only suites you! this is very petty!!!!!
Stop wasting our tax dollars on a returning Vet's who's leg was messed up in Iraq!!!!!!!!!
Please everyone STAND UP and help Ronald J. Webb Jr. before it is to late to get through their bureaucracy!
The great thing in this world is not so much where we stand, but in what direction we are moving.

Anonymous said...

Does any one have an update on this case? Kumahito?