              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



UNITED STATES,                                              )                      Misc. Dkt. No. 2014-11
                           Petitioner                       )
                                                            )
                  v.                                        )
                                                            )                      ORDER
Airman First Class (E-3)                                    )
MEALOHA NANI KAWE RUSSELL,                                  )
USAF,                                                       )
                    Respondent                              )                      Panel No. 2


TELLER, Judge:


       The Government filed an interlocutory appeal under Article 62, UCMJ,
10 U.S.C. § 862, in this matter. The Government challenges the military judge’s ruling to
dismiss the Charge and its Specification for lack of personal jurisdiction over the
appellee.


                                                   Background1


       The appellee in this case was pending voluntary early separation from the
Air Force when evidence came to light that she may have used ecstasy while on active
duty in 2012. The appellee had submitted a request for a voluntary separation due to
pregnancy on or about 25 July 2013. On 31 July 2013, the separation authority,
Brigadier General Bradley Spacy, then Commander of the 81st Training Wing, approved
the appellee’s request. On 3 October 2013, the appellee was issued an AF IMT 100,2
Request and Authorization for Separation, ordering her separation from active duty,
effective 1 December 2013. On 14 November 2013, the appellee completed all
out-processing actions and began her terminal leave, which was scheduled and approved
for 14 November 2013 through 30 November 2013. On approximately 18 November
2013, the Air Force Office of Special Investigations (AFOSI) began the investigation of
the appellee that led to the Charge in the present case.

1
  This background section is provided for context leading up to the military judge’s ruling at issue. We make no
specific findings of fact in this section to support our holding, as we lack fact-finding authority in this interlocutory
appeal. The matters in this section are drawn from the military judge’s findings of fact at trial. With the exception
of actual delivery of the certificate of discharge, the parties have not asserted any of these facts are unsupported by
the record.
2 An “IMT,” or Information Management Tool, is equivalent to a form.
        Upon the recommendation of AFOSI, the appellee’s squadron commander
initiated a series of actions intended to retain the appellee on active duty. On or about
21 November 2013, the acting unit first sergeant informed the appellee that she would be
placed on administrative hold and that she was required to return to duty. The appellee
returned to duty as directed. Between 21 November 2013 and 27 November 2013, the
first sergeant exchanged e-mails with a paralegal in the base legal office about placing the
appellee on administrative hold. On 27 November 2013, the paralegal sent a
memorandum to the base personnel office requesting that the appellee and three other
individuals be placed on administrative hold in accordance with Air Force Instruction
(AFI) 36-2110, Assignments, Table 2.1, Rule 10, Code 17 (22 September 2009)
(incorporating changes through 8 June 2012). The memorandum did not mention the
appellee’s pending separation, nor did it request that her date of separation be extended or
that her discharge orders be revoked.

        While the squadron commander and base legal office were taking action to try to
retain the appellee on active duty, the processes set in motion by her approved separation
continued. On 26 November 2013, a finance final separation worksheet was prepared in
anticipation of the appellee’s separation. On 3 December 2013, the appellee’s
Department of Defense Form (DD Form) 214, Certificate of Release or Discharge from
Active Duty, was signed, reflecting her discharge from the Air Force with an honorable
discharge. On 4 December 2013, at 0436 hours, the appellee received an e-mail from the
Total Force Service Center making her DD Form 214 immediately available to her
online. On the same day, a copy of the DD Form 214 was mailed to the appellee, and she
received her final separation pay as a direct deposit into her bank account.

       When the unit learned that the appellee had been separated, they took action
intended to rescind the separation. The unit first sergeant learned of the separation from
the appellee on 3 December 2013. He contacted the base personnel office in an attempt
to determine why the appellee was no longer in the Air Force personnel system.
The base personnel office in turn contacted the Air Force Personnel Center (AFPC).
The unit was informed that the type of administrative hold placed on the appellee did not
affect her previously established date of separation. A noncommissioned officer from the
base personnel office conducted research on the issue and advised the legal office that the
proper procedure for extending the appellee beyond her separation date required sending
an extension request, signed by the Staff Judge Advocate (SJA), to AFPC.
On 4 December 2013, the SJA signed a memorandum for the AFPC Separations Branch,
requesting that the appellee retroactively be extended for 90 days past her approved date
of separation in anticipation of trial, pursuant to AFI 36-3208, Administrative Separation
of Airmen, ¶ 2.4 (9 July 2004) (incorporating changes through 2 July 2013). The SJA’s
memorandum was forwarded via e-mail to AFPC on 5 December 2013. Later that day,
AFPC responded to the base personnel office via e-mail, stating “The Med
Hold/Retention Beyond ETS on this member has been processed. If the member had a
separation, the separation has been cancelled and all orders have been revoked.”

                                             2                           Misc. Dkt. No. 2014-11
       On 19 December 2013, the appellee received an AF IMT 973, Request and
Authorization for Change of Administrative Orders, canceling her separation orders. The
appellee returned to her duty station on 6 January 2014 under threat of arrest and/or
confinement by her former command and the base legal office.

       On 30 June 2014, the squadron commander preferred one charge and specification
of wrongful use of ecstasy on divers occasions between on or about 1 May 2012 and on
or about 31 October 2012. The convening authority referred the Charge and
Specification for trial the same day.


                                       Jurisdiction


       Military appellate courts are courts of limited jurisdiction; prosecution appeals are
not favored and are available only upon specific statutory authorization. United States v.
Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008) (citations omitted). This court has jurisdiction
to hear this appeal under Article 62(a)(1)(A), UCMJ, which authorizes the Government to
appeal “[a]n order or ruling . . . which terminates the proceedings with respect to a charge
or specification” in a court-martial where a punitive discharge may be adjudged.


                                   Standard of Review


       “When an accused contests personal jurisdiction on appeal, we review that
question of law de novo, accepting the military judge’s findings of historical facts unless
they are clearly erroneous or unsupported in the record.” United States v. Hart,
66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v. Melanson, 53 M.J. 1, 2
(C.A.A.F. 2000)).


                                        Discussion


        The Government argues that the appellee’s separation was incomplete, either
because the e-mail notification by AFPC that her DD Form 214 was available for
download was not sufficient to constitute delivery, or even if delivered, the certificate
was invalid because it was contrary to her squadron commander’s intent. We do not
reach those issues because we find that the squadron commander’s actions, and those of
the SJA, were insufficient to invalidate the voluntary separation ordered by the separation
authority and the appellee’s receipt of the DD Form 214 in the mail terminated personal
jurisdiction over her.



                                             3                           Misc. Dkt. No. 2014-11
               Voluntary Separation Compared to Expiration of Term of Service

       This case concerns the voluntary separation of an Airman prior to the expiration of
her term of service (ETS). “As a general matter, members of the armed forces do not
have an unconditional right to be discharged upon their ETS. The authority to retain
servicemembers past their period of obligated service for purposes of trial by
court-martial is a longstanding feature of military law.” Smith v. Vanderbush,
47 M.J. 56, 57–58 (C.A.A.F. 1997). In the Air Force, the authority to retain someone
beyond their ETS for action by court-martial is governed by AFI 36-3208, ¶ 2.4.
The SJA or members of the SJA’s staff may extend an Airman’s ETS by notifying the
separations unit in writing or verbally, if time does not permit. Separation upon reaching
an ETS is not automatic. See AFI 36-3208, ¶ 2.1.

       By contrast, an Airman who has been lawfully approved for voluntary separation
prior to expiration of her term of service has been granted the right to separate, albeit
subject to conditions, by a commander or other official authorized to do so. Once such a
separation is pending, unit commanders are required to “report serious misconduct to the
separation authority at once,” and he “may withhold execution of a separation and, upon
review of additional evidence, may withdraw approval of a voluntary or involuntary
separation.” AFI 36-3208, ¶ 1.14. Furthermore, the instruction states “[d]ischarge
authorities may withdraw an approved voluntary separation that has not been executed
when reasons exist that make withdrawal in the best interest of the Air Force.
The separation authority must give written notification giving reason(s) for withdrawal to
the member and the [Military Personnel Flight] separations section.” AFI 36-3208,
¶ 3.5.1.

       The distinction between extending an ETS and withholding the execution of a
pending separation is a matter of substance rather than merely a matter of form.
In AFI 36-3208, the Secretary of the Air Force authorizes only senior commanders to act
as separation authorities.3 This restriction to senior levels of command implies that the
separation authority will use his judgment and experience in deciding whether the quality
of the evidence and the nature of the misconduct justifies delay or termination of the
separation. The facts of this case provide a good example. While drug use certainly
constitutes serious misconduct, once an Airman enters terminal leave status, the decision
to use scarce Air Force resources to return that Airman to duty and incur the costs of a




3
  Commanders who may exercise separation authority include: general officers who command units; commanders
of divisions or wings; commanders who exercise special or general court-martial jurisdiction; and others specifically
designated by Headquarters Air Force Military Personnel Center, Airman Separations Section. Air Force
Instruction (AFI) 36-3208, Administrative Separation of Airmen, ¶ 1.1.2 (9 July 2004) (incorporating changes
through 2 July 2013).

                                                         4                                   Misc. Dkt. No. 2014-11
trial calls for deliberation and judgment. The Secretary has limited the authority to make
such decisions accordingly. 4


                                           Validity of Discharge

        Subject to certain exceptions not applicable here, a court-martial does not have
jurisdiction over persons lawfully discharged from the armed forces. Vanderbush,
47 M.J. at 59. “A servicemember will not be considered to have been lawfully
discharged, however, unless: (1) the member received a valid discharge certificate or a
certificate of release from active duty, such as a [DD Form 214]; (2) the member’s ‘final
pay’ or ‘a substantial part of that pay’ is ‘ready for delivery’ to the member; and
(3) the member has completed the administrative clearance process required by the
Secretary of the service of which he or she is a member.” Melanson, 53 M.J. at 2
(citations omitted) (quoting 10 U.S.C. § 1168). The military judge found that the
appellee received her final pay on 4 December 2013 and that she completed
out-processing on 14 November 2013. Those findings are fairly supported by the record,
are not clearly erroneous, and are not disputed by the Government on appeal.
Accordingly, the only issue was whether the appellee received a valid certificate of
discharge.

        There is no dispute that appellee received a DD Form 214. Both the Government
and the appellee attached a copy to their written motions at trial. The DD Form 214
reflects an effective date of 1 December 2013 and bears an electronic signature dated
3 December 2013.5

       The Government contends that the DD Form 214 was invalid because it was
issued contrary to the squadron commander’s intent. In support of this proposition, the
Government cites United States v. Webb, 67 M.J. 765 (A.F. Ct. Crim. App. 2009).
In Webb, this court found that by failing to give effect to an SJA’s valid request to extend
an Airman’s ETS, AFPC violated regulations, rendering the certificate of discharge
invalid. In light of the procedural posture of this case, Webb leads to the opposite
conclusion here—that the appellee’s certificate was valid. In this case, AFPC processed

4
  Separations for pregnancy or childbirth also appear to have a unique decision-making status as compared to other
voluntary separations. According to the instruction, the separation authority is authorized to approve an Airman’s
application for this type of separation, and he/she can also approve that Airman’s request to later withdraw the
application. AFI 36-3208, ¶ 3.5, 3.17. If the separation authority wants to deny either request, however, the
package must be sent to the Airman Separations Section at Headquarters Air Force Military Personnel Center. Id.
5
  Although we need not reach the issue in this case, the court remains skeptical of the Government’s assertion that
former servicemembers who begin terminal leave without a Department of Defense Form 214, Certificate of Release
or Discharge from Active Duty, remain indefinitely subject to court-martial jurisdiction unless and until they have
physical custody of their certificate. See United States v. Melanson, 53 M.J. 1, 4 (C.A.A.F. 200) (finding that
administrative discharge was effective at 2400 hours on date of discharge despite appellant receiving only a
“courtesy copy” of the certificate); United States v. Hart, 66 M.J. 273, 277 (C.A.A.F. 2008) (Effron, C.J.,
dissenting).

                                                        5                                  Misc. Dkt. No. 2014-11
an approved separation from a duly authorized separation authority. According to
AFI 36-3208, ¶ 2.14, only the separation authority (or a staff officer delegated the
authority in writing) could withhold execution of that separation.6 While the SJA’s
memorandum that eventually reached AFPC would have been effective in extending an
ETS and preventing a separation on that basis, the SJA had no authority to direct AFPC
to withhold execution of the approved separation.

       The Government also cites to this court’s prior holding in United States v. Park,
Misc. Dkt. No. 2012-11 (A.F. Ct. Crim. App. 2012). Park involved a similar fact pattern
to the instant case. An Airman who had been approved for early separation was
implicated in suspected misconduct. The group commander initiated an administrative
hold that did not prevent that appellee’s DD Form 214 from being issued and posted
electronically. In that case, however, the appellee had not received his final pay.
Accordingly, this court, analogizing to Hart, held that the requirements for separation had
not been met, and that the Air Force retained court-martial jurisdiction over the appellee.
Id. at 16. In Park, we also discussed the appellee’s argument that the legal office
improperly interfered with his established date of separation by requesting his final pay
be withheld. That part of the opinion, however, was not essential to our holding and
therefore constitutes dicta. To the extent it suggests an SJA has authority under
AFI 36-3208 to direct that the execution of an approved voluntary separation be withheld,
we do not find it persuasive and decline to apply that rationale in this case.

         We find the other cases cited by the Government similarly inapposite. Instead, we
find the court’s reasoning in Vanderbush persuasive. “The issue here is not whether the
[Service] had authority under the Constitution, the Uniform Code of Military Justice, or
the Manual for Courts-Martial to retain [the member] on active duty through the period of
trial, sentence, and review. [Service] officials did have that authority, but, as in Howard,
they did not do so.” Vanderbush, 47 M.J. at 58 (referring to United States v. Howard,
20 M.J. 353 (C.M.A. 1985)). Under Air Force instructions, the relevant actor in
withholding execution of a pending separation is the separation authority. In the absence
of any evidence of intent by the separation authority, or a staff officer acting under his
written delegation, to withhold execution of the separation, we find no basis to declare
the DD Form 214 invalid. All the conditions precedent to a lawful discharge were met in
this case, and the trial court below did not err in dismissing the Charge and Specification
for lack of jurisdiction.




6
  “Each part of this instruction authorizing separation tells who is authorized to approve or disapprove the
separation . . . . [T]he commander exercising separation authority may designate, in writing, a staff officer to act on
the matter. The authority may not be further delegated.” AFI 36-3208, ¶ 1.1.2.

                                                          6                                   Misc. Dkt. No. 2014-11
                                         Conclusion


       On consideration of the appeal by the United States under Article 62, UCMJ, it is
by the court on this 3rd day of March, 2015,


ORDERED:


      The appeal of the United States under Article 62, UCMJ, is hereby DENIED.


Chief Judge ALLRED and Senior Judge HECKER concur.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           7                          Misc. Dkt. No. 2014-11
