              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38880
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Alexander J. ROWE
                Airman Basic (E-1), U.S. Air Force, Appellant
                          ________________________

           Appeal from the United States Air Force Trial Judiciary
                           Decided 8 February 2017
                          ________________________

Military Judge: Marvin W. Tubbs, II.
Approved sentence: Dishonorable discharge and confinement for 20 years. Sen-
tence adjudged 27 April 2015 by GCM convened at Mountain Home Air Force
Base, Idaho.
For Appellant: Major Michael A. Schrama, USAF.
For Appellee: Major Rebecca A. Magnone, USAF; Major Mary Ellen Payne,
USAF; and Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Senior Judge J. BROWN delivered the opinion of the Court, in which Chief
Judge DREW and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
J. BROWN, Senior Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas, of attempted abusive sexual con-
tact, attempted forcible sodomy, abusive sexual contact, and forcible sodomy—
in violation of Articles 80, 120, and 125, UCMJ, 10 U.S.C. §§ 880, 920, 925. The
                     United States v. Rowe, No. ACM 38880


adjudged and approved sentence was a dishonorable discharge and confine-
ment for 20 years.
    Appellant raises two assignments of error: (1) whether the military judge
abused his discretion by permitting the victim to provide an unsworn state-
ment during the presentencing proceedings, and (2) whether the court-martial
had personal jurisdiction over Appellant. 1 Finding no error materially prejudi-
cial to a substantial right of Appellant, we affirm the findings and sentence.

                                  I. BACKGROUND
    Appellant entered a six-year enlistment on active duty on 4 December 2007.
On 16 August 2013, a prior general court-martial sentenced Appellant to two
years of confinement. Based on his monthly earned time abatement, Appel-
lant’s scheduled release date from confinement was 1 March 2015. While Ap-
pellant was still in confinement the charges in this case were preferred and
referred to a general court-martial. On 1 March 2015, the Government placed
Appellant into pre-trial confinement.
    In the presentencing portion of Appellant’s second court-martial, one of the
four victims of Appellant’s crimes provided an unsworn statement through his
attorney. The Defense objected to the form and substance of this evidence. The
Defense argued that the victim was required to be sworn, the evidence was
cumulative, and a portion of the unsworn statement exceeded the bounds of
appropriate sentencing evidence because it provided facts about the offenses
that went beyond Appellant’s in-court admissions. The military judge heard
argument from the trial defense counsel, trial counsel, and special victims’
counsel. The military judge determined that Article 6b, 10 U.S.C. § 806b, per-
mits a victim to provide an unsworn statement. The military judge reasoned
that in 10 U.S.C. § 806b:
       Congress recognized the right to be reasonably heard at a sen-
       tencing hearing related to the offense on the part of the victim
       of any offense under this Chapter. Congress certainly could have
       seen fit to say, “The right to testify” but chose to use different
       words. Those different words have to have meaning, so the Court
       will permit . . . [the victim] to present information in this format
       through his special victim’s counsel, and . . . a written exhibit.
    The military judge conducted a Mil. R. Evid. 403 balancing test and deter-
mined the evidence was not cumulative and related to the Appellant’s convic-
tions. Thus, the military judge permitted the victim to provide an unsworn

1The second issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).


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                    United States v. Rowe, No. ACM 38880


statement through his attorney and admitted a written version of the state-
ment as an exhibit in the record of trial.

                                II. DISCUSSION
A. Jurisdiction.
    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant argues that the second court-martial lacked personal jurisdiction, assert-
ing that the Government had not taken any action with a view to trial at the
time his term of enlistment expired. We are unpersuaded.
    We review questions of jurisdiction de novo. United States v. Kuemmerle,
67 M.J. 141, 143 (C.A.A.F. 2009). We determine jurisdiction by looking at the
status of the accused as a member of the armed forces. Solorio v. United States,
483 U.S. 435, 439 (1987). Jurisdiction under the UCMJ exists for “[m]embers
of a regular component of the armed forces, including those awaiting discharge
after expiration of their terms of enlistment.” Article 2(a)(1), UCMJ, 10 U.S.C.
§ 802(a)(1); see also United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006).
    Jurisdiction is extinguished when a service member is discharged from the
armed forces, United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985), but the
expiration of a period of enlistment does not automatically result in a dis-
charge. Smith v. Vanderbush, 47 M.J. 56, 57–58 (C.A.A.F. 1997); United States
v. Hutchins, 4 M.J. 190, 191 (C.M.A. 1978). As stated by our superior court over
60 years ago, “[m]ere expiration of the regular period of enlistment does not
alter a serviceman’s status as a person subject to the Uniform Code.” United
States v. Dickenson, 20 C.M.R. 154, 164 (C.M.A. 1955). Instead, for the expira-
tion of a term of enlistment to result in a discharge that terminates jurisdiction
there must also be delivery of a valid discharge certificate and a final account-
ing of pay. Webb v. United States, 67 M.J. 765, 771 (A.F. Ct. Crim. App. 2009);
United States v. Cruz, ACM 38296 (rem) unpub. op. at 4 (A.F. Ct. Crim. App.
10 Dec. 2015); see also Howard, 20 M.J. at 354 (“Discharge is effective upon
delivery of the discharge certificate.”); 10 U.S.C. § 1168(a) (“A member of an
armed force may not be discharged or released from active duty until his dis-
charge certificate . . . and his final pay or a substantial part of that pay, are
ready for delivery . . . .”); Rule for Courts-Martial (R.C.M.) 202, Discussion
(“Completion of an enlistment or term of service does not by itself terminate
court-martial jurisdiction. . . . [C]ourt-martial jurisdiction normally continues
past the time of scheduled separation until a discharge certificate or its equiv-
alent is delivered or until the Government fails to act within a reasonable time
after the person objects to continued retention.”); Air Force Instruction (AFI)
36-3208, Administrative Separation of Airmen, ¶ 2.1.1 (9 July 2004) (“[S]epa-
ration [of Airmen on date of ETS] is not automatic. They are members of the
Air Force until they are separated by administrative action.”).

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                      United States v. Rowe, No. ACM 38880


    It is notable that Appellant does not contend that the Government prepared
or delivered a discharge certificate or that a final accounting of pay occurred.
Nor is there any evidence in the record of trial that Appellant requested a dis-
charge when his term of enlistment expired. Instead, he merely asserts that
the Government had not taken sufficient action with a view to trial at the time
his term of enlistment expired.
    Appellant’s reliance on the mere expiration of his term of enlistment is mis-
placed. To have a valid discharge that would remove jurisdiction, Appellant
needed to receive a discharge certificate and final accounting of pay. As neither
of these necessary steps occurred, there was no discharge and, therefore, no
impact on jurisdiction. The Government preferred charges while Appellant was
subject to the jurisdiction of the UCMJ, and jurisdiction continued throughout
the pendency of the second court-martial. R.C.M. 202(c) (“Once court-martial
jurisdiction over a person attaches, such jurisdiction shall continue for all pur-
poses of trial, sentence, and punishment, notwithstanding the expiration of
that person’s term of service . . . .”). Therefore, we reject this assignment of er-
ror.
B. Victim’s Unsworn Statement.
    Appellant also alleges that he suffered material prejudice when one of the
victims of his crimes provided an unsworn statement to the military judge dur-
ing the presentencing proceedings. Appellant’s assignment of error on appeal
only relates to the manner in which the evidence was presented, via an un-
sworn statement read by the victim’s attorney, rather than the substance of
the evidence submitted. 2 We conclude that the military judge did not abuse his
discretion in permitting sentencing evidence in this manner under the facts of
this case. See United States v. Wareham, ACM 38820 (20 Oct. 2016) (unpub.
op.) (holding that the military judge did not abuse her discretion when permit-
ting a victim to submit an unsworn statement in sentencing).
    We review a military judge’s admission or exclusion of sentencing evidence
for an abuse of discretion. United States v. Stephens, 67 MJ 233, 235 (C.A.A.F.
2009) (citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). When
a military judge conducts a balancing test under Mil. R. Evid. 403 on the rec-




2At the trial level, the Defense also objected to the substance of the unsworn statement
by asserting that it was cumulative and exceeded the bounds of appropriate sentencing
evidence. Though Appellant abandons that portion of the argument on appeal, we also
considered it and concluded that under the facts of this case Appellant is not entitled
to any relief based upon this theory.


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                     United States v. Rowe, No. ACM 38880


ord, their ruling will not be overturned absent a clear abuse of discretion; how-
ever, the ruling of a military judge who fails to do so receives less deference.
United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001); Manns, 54 M.J. at 166.
    The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No.
113-66, 127 Stat. 672, 952 (2013), incorporated the Crime Victims’ Rights Act
(CVRA), 18 U.S.C. § 3771, into Article 6b, UCMJ. Wareham, unpub. op. at 6
n.2. The CVRA gives crime victims “[t]he right to be reasonably heard at any
public proceeding . . . involving . . . sentencing.” 18 U.S.C. § 3771(a)(4). Article
6b states that a victim has “[t]he right to be reasonably heard . . . at [a] sen-
tencing hearing related to the offense.” 10 U.S.C. § 806b(a)(4)(B). Although Ar-
ticle 6b does not describe the manner in which a victim may exercise the right
to be reasonably heard, federal courts have consistently found that the CVRA’s
right to be reasonably heard at sentencing includes the right to provide an un-
sworn statement during presentencing proceedings. See United States v. Grigg,
434 Fed. Appx. 530, 533 (6th Cir. 2011); United States v. Myers, 402 F. Appx.
844, 845 (4th Cir. 2010); Kenna v. United States Dist. Court, 435 F.3d 1011,
1014–16 (9th Cir. 2006); United States v. Degenhardt, 405 F. Supp. 2d 1341,
1351 (D. Utah 2005). Given that the language in Article 6b is nearly identical
to that of the CVRA, the military judge did not abuse his discretion in reaching
the same conclusion as the federal courts interpreting the CVRA—a judge may
permit an unsworn statement during presentencing as a mechanism to be rea-
sonably heard.
    We agree with the military judge that the use of the words “right to be
reasonably heard” provides the military judge with additional flexibility to per-
mit sentencing evidence beyond permitting a victim the right to testify under
oath. Prior to the enactment of Article 6b, victims were permitted to testify in
sentencing. See R.C.M. 1001(b)(4); United States v. Terlep, 57 M.J. 344, 346–
47 (C.A.A.F. 2002); United States v. Fontenot, 29 M.J. 244, 252 (C.M.A. 1989).
The inclusion of the right to be reasonably heard in Article 6b thus meant
something different. Indeed, in the context of other rights afforded to victims,
our superior court determined that the right to be heard means more than just
the right to testify. LRM v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013)
(“[E]very time that the [Mil. R. Evid.] and the R.C.M. use the term ‘to be heard,’
it refers to occasions when the parties can provide argument through counsel
to the military judge on a legal issue, rather than an occasion when a witness
testifies.”) 3 We find that the military judge correctly determined that the right


3The newly promulgated Rule for Courts-Martial 1001A, unambiguously states that a
victim has the right to provide an unsworn statement during presentencing proceed-
ings. Though prior to this new rule a victim may not have had an explicit right to




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                     United States v. Rowe, No. ACM 38880


to be reasonably heard was different than the right to testify. Furthermore, he
did not abuse his discretion in determining that an unsworn statement was
part of the right to be reasonably heard.

                                 III. CONCLUSION
    The findings and sentence are correct in law and fact, and no error materi-
ally prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and
sentence are AFFIRMED.


                  FOR THE COURT



                  KURT J. BRUBAKER
                  Clerk of the Court




provide an unsworn statement, a victim did have a right to be reasonably heard. In
this case, the military judge determined that an unsworn statement was an appropri-
ate mechanism for exercising this right, and a military judge retains discretion in de-
termining the mode of presentation of evidence. Military Rule of Evidence 611.


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