

   
   
   
   U.S. v. Melanson



IN THE CASE OF
 
UNITED STATES, Appellee
v.
David M. MELANSON, Private
U.S. Army, Appellant
 
No. 99-0619
Crim. App. No. 9801266
 
United States Court of Appeals for
the Armed Forces
Argued February 3, 2000
Decided April 24, 2000
EFFRON, J., delivered the opinion
of the Court, in which CRAWFORD C.J., SULLIVAN and GIERKE, JJ., and COX,
S.J., joined.
 


Counsel
For Appellant: Colonel Adele H.
Odegard (argued); Major Scott R. Morris (on brief); Colonel
John T. Phelps II and Major Leslie A. Nepper.
For Appellee: Captain Arthur L.
Rabin (argued); Colonel Russell S. Estey and Major Patricia
A. Ham (on brief); Captain John W. O'Brien.
Military Judge: Donna M. Wright
 

THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge EFFRON delivered the opinion
of the Court.
A general court-martial composed of
a military judge sitting alone convicted appellant, pursuant to his pleas,
of failing to obey a lawful order, willfully failing to obey the lawful
order of a superior commissioned officer, wrongful use of methamphetamines
(2 specifications), aggravated assault, and breaking restriction (2 specifications),
in violation of Articles 92, 90, 112a, 128, and 134, Uniform Code of Military
Justice, 10 USC §§ 892, 890, 912a, 928, and 934, respectively.
He was sentenced to a bad-conduct discharge, confinement for 30 months,
total forfeitures, and reduction to the lowest enlisted grade. The military
judge also ruled that appellant was entitled to 57 days' confinement credit
as a result of the imposition of pretrial restriction tantamount to confinement.
The convening authority approved the
sentence and awarded appellant 57 days' confinement credit. The Court of
Criminal Appeals affirmed. 50 MJ 641 (1999).
On appellants petition, we granted
review of the following issue:



WHETHER THE ARMY LACKED IN PERSONAM
JURISDICTION OVER APPELLANT BECAUSE HE HAD BEEN VALIDLY DISCHARGED FROM
ACTIVE DUTY.



For the reasons discussed below, we hold
that the Army had jurisdiction over appellant.

I. BACKGROUND
A. Legal Setting
Subject to certain narrow exceptions
that are not applicable to the present case, a court-martial does not have
jurisdiction over persons lawfully discharged from the armed forces, including
cases involving offenses allegedly committed prior to discharge. Smith
v. Vanderbush, 47 MJ 56 (1997); see United States ex rel.
Toth v. Quarles, 350 U.S. 11 (1955). 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 Department of Defense Form (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.
United
States v. King, 27 MJ 327, 329 (CMA 1989); accord United
States v. King, 42 MJ 79, 80 (1995); see 10 USC §§
1168 and 1169.
Under paragraph 1-31d of Department
of the Army Regulation (AR) 635-200 (26 June 1996), a discharge takes effect
at "2400 [hours] on the date of notice of discharge to the soldier." Even
if a discharge certificate and separation orders are delivered to a member
earlier in the day as an administrative convenience for the unit or the
servicemember, the discharge is not effective upon such a delivery unless
it is clear that it was intended to be effective at the earlier time. Compare
United States v. Batchelder, 41 MJ 337 (1994), with United
States v. Howard, 20 MJ 353 (CMA 1985); see also United States
v. Guest, 46 MJ 778 (Army Ct.Crim.App. 1997).
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. See United States v. Owens,
51 MJ 204, 209 (1999).

B. Factual Setting
On April 27, 1998, appellant's command
processed him administratively for an early involuntary separation because
of drug abuse. See para. 14-12c, AR 635-200. A general discharge
was approved by appropriate authority on May 13, 1998. The approved discharge
orders stated: "Date of discharge unless changed or rescinded: May 20,
1998."
On May 19, the day before his scheduled
discharge, appellant completed all required steps to outprocess from his
unit. As part of that process, he visited his local finance office and
completed all finance outprocessing, as evidenced by a finance clerk's
signature on the appropriate line of appellant's Unit Installation Clearance
Record. His final pay was computed, and he made the necessary arrangements
for his final pay to be sent to him following the required review all of
his financial records, which could take up to 45 days after clearance.
On the question of whether appellant
received a discharge certificate, a transition specialist from the local
transition center testified that under standard operating procedures, the
member would receive Copy 4 of DD Form 214, a courtesy copy of the document,
if he or she was undergoing processing on a date prior to the date of his
discharge. The original of the DD Form 214, Copy 1, would be mailed to
the member within 5 days of the date of his discharge. The transition specialist
testified that he recalled giving appellant the courtesy copy (Copy 4)
of DD Form 214 on May 19. The specialist did not recall giving appellant
the original (Copy 1).
At 12:08 a.m. on May 20, appellant
signed out of his unit, and a noncommissioned officer signed the departure
block on his leave form, which purported to place appellant on leave status
for May 20 and 21. Appellant was escorted to the Nurnberg airport by a
noncommissioned officer from his unit, where he boarded a commercial plane
with a government-purchased ticket, headed for the United States via Frankfurt.
Appellant's escort returned to the installation by 9:00 a.m.
In the meantime, Army investigators
had identified appellant as possibly involved in an assault committed on
May 10. On the morning of May 20, the investigators determined that they
had sufficient evidence of appellant's involvement to treat him as a suspect.
When an investigator told appellant's commander later that morning that
an eyewitness to the assault had identified appellant as an assailant,
the commander told the investigator to try to stop appellant from boarding
his connecting flight in Frankfurt. At 6:00 p.m. on May 20, at the direction
of the brigade commander, appellant's separation from the Army was cancelled,
and he was retained on active duty for the purpose of an investigation
and possible court-martial.
At the request of the military police
in Frankfurt, the local German police intercepted appellant in Frankfurt
and returned him to military control. Appellant arrived at his unit at
approximately 11:00 p.m, May 20, 1998. At 11:37 p.m., appellant waived
his rights under Article 31, UCMJ, 10 USC § 831, and admitted that
he had participated in the assault. Appellant was restricted to his battalion
area on May 21, and charges were preferred on June 24, 1998.

II. DISCUSSION
Appellant contends that both the trial
evidence and other documents filed as appellate exhibits in the Court of
Criminal Appeals and this Court demonstrate that he received Copy 1 of
the DD Form 214, and that such action reflects the command's intent for
his discharge to be effective immediately upon delivery of the document,
not at 2400 hours. The record of trial, however, amply supports the finding
of the military judge that appellant did not receive Copy 1, and the documents
filed in the appellate courts do not demonstrate that the finding was clearly
erroneous.
Appellant acknowledged in the Stipulation
of Fact admitted at trial in support of his guilty pleas that he received
Copy 4 of the DD Form 214, and he made no mention at trial of having received
Copy 1. The military judge's finding is further supported by the testimony
of the transition specialist that the standard procedure at the transition
point was to mail the original copy to the member at the member's leave
address after the discharge date. Moreover, the copy of appellant's DD
Form 214 in the record reflects that appellant had initialed box 30, requesting
Copy 4 of the form. In short, there is no significant evidence demonstrating
that the military judge clearly erred when she found that appellant received
Copy 4 of his DD Form 214, not Copy 1.
As noted in Part I.B., supra,
appellant's discharge orders stated that the date of discharge was May
20, 1998. Under the applicable regulation, an administrative discharge
"is effective at 2400 [hours] on the date of notice of discharge to the
soldier." In the absence of a clear showing of an intent to discharge a
servicemember prior to 2400 hours, we will presume that a discharge has
taken effect in accordance with the regulation.
Appellant argues that the intent to
discharge him prior to 2400 hours is apparent from the testimony of Captain
Finn, his company commander. Finn testified that he discussed the case
with his battalion commander at a point in time when the investigation
had produced no firm evidence of appellant's involvement, noting that the
commander told him, "Unless you've got [eyewitness identification of appellant],
you're going to have to let him go." This comment, which at best is ambiguous,
reflects a recognition that the Army could not extend appellant's active
duty beyond May 20 without evidence of his criminal involvement. It does
not reflect a clear statement of intent to bypass normal regulatory practice
and discharge appellant prior to 2400 hours on May 20.
We do not agree with appellant that
the present case is controlled by United States v. Howard, supra.
In Howard, the military judge entered findings of fact as to each
element of the three-part test for completion of a discharge and concluded
that the servicemember had been discharged. In the absence of a determination
that the military judge's findings were clearly erroneous, we concluded
that the servicemember's commander had made an informed decision to discharge
him prior to 2400 hours. The military judge did not enter such findings
in the present case, however, and her findings of fact were not clearly
erroneous. Under the circumstances, we conclude that appellant's administrative
discharge was not effective until 2400 hours on May 20, 1998. Because the
discharge was withdrawn prior to that time for purposes of an investigation
with a view towards a possible court-martial, the Army did not lose jurisdiction
over appellant.
In light of our conclusion, it is not
necessary for us to determine whether the military judge and the court
below were correct in concluding that jurisdiction would have continued
based upon issues concerning the procedures for clearance and accounting
of pay.

III. DECISION
The decision of the United States Army
Court of Criminal Appeals is affirmed.

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