             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                         v.

                                    Airman Basic AARON I. TEER
                                       United States Air Force

                                                 ACM S32136

                                                  02 July 2014

           Sentence adjudged 18 March 2013 by SPCM convened at Travis Air Force
           Base, California. Military Judge: W. S. Cohen (sitting alone).

           Approved Sentence: Bad-conduct discharge, confinement for 30 days, and
           a reprimand.

           Appellate Counsel for the Appellant: Lieutenant Colonel Jane E. Boomer
           and Captain Nicholas D. Carter.

           Appellate Counsel for the United States: Colonel Don M. Christensen;
           Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                      Before

                              ALLRED, MARKSTEINER, and HECKER
                                    Appellate Military Judges

                                        OPINION OF THE COURT

                        This opinion is subject to editorial correction before final release.



HECKER, Senior Judge:

      A special court-martial composed of a military judge convicted the appellant,
pursuant to his pleas, of operating a vehicle while impaired by marijuana, possessing
marijuana, and using marijuana, in violation of Articles 111 and 112a, UCMJ,
10 U.S.C. §§ 911, 912a.1 The court-martial sentenced him to a bad-conduct discharge,
confinement for 95 days, and a reprimand. Pursuant to a pretrial agreement, the

1
  The appellant was also charged with leaving the scene of an accident and disobeying a lawful order, but those
charges were withdrawn after arraignment.
convening authority lowered the confinement to 30 days. He approved the remainder of
the sentence as adjudged. On appeal, the appellant argues the military judge abused his
discretion by finding the military retained jurisdiction over the appellant. Finding no
error that materially prejudices a substantial right of the appellant, we affirm the
approved findings and sentence.

                                        Jurisdiction

       In early November 2012, the appellant received nonjudicial punishment for
wrongfully using marijuana. Based on this misconduct, he was recommended for
administrative discharge by his commander in early December 2012. An AF IMT100,
Request and Authorization for Separation, (15 September 2003), was completed on
28 December 2012. Following the direction of his unit, the appellant completed an
“out-processing” checklist and reported for his final out-processing on 3 January 2013.
The out-processing checklist was never signed by a finance technician, but on that same
day a DD Form 214, Certificate of Release or Discharge from Active Duty, (August
2009), was digitally signed by a separations technician and delivered to the appellant.

        On 7 January 2013, personnel in the separations division became aware the
appellant had never reported to finance as part of his out-processing. The purpose of this
final out appointment is for the member to provide a finance technician with information
necessary to calculate the member’s final pay. Because this appointment never occurred,
a final accounting of the appellant’s pay was never accomplished. When he was
contacted that same day and asked about his current status, the appellant said he was not
sure if he was still on active duty. The finance technician then elected not to calculate his
final pay until she had more information. As of the time of the appellant’s court-martial,
a final accounting of his pay had never been completed.

       Meanwhile, on 5 January 2013, the appellant was suspected in a hit-and-run
accident on base. When security forces personnel searched the appellant, they found a
small package of marijuana and observed the appellant acting in a manner consistent with
having ingested marijuana. The appellant admitted using and possessing marijuana, and
a urinalysis test confirmed this use. Based on this new misconduct, the appellant’s
commander preferred charges on 28 January 2013. That evening, dormitory personnel
smelled marijuana smoke coming from the vicinity of the appellant’s dormitory room and
after conducting a search found marijuana and a homemade pipe. Additional charges
were preferred based on this misconduct.

        At trial, the appellant moved to dismiss the charges based on a lack of personal
jurisdiction, arguing that he was “effectively a civilian” once he was given his
DD Form 214. The military judge denied the motion based on the lack of a final
accounting of pay or a substantial payment of such pay, citing 10 U.S.C. § 1168(a) and



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United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). The appellant has now raised this
issue on appeal.2

       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. Hart, 66 M.J. at 276.

        Members of a regular component of the armed forces, including those awaiting
discharge after expiration of their terms of enlistment, are subject to court-martial
jurisdiction. Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). Once attached, personal
jurisdiction over the member continues until it is terminated through a proper discharge.
United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). As the UCMJ does not
expressly define the exact point in time when discharge occurs, military courts have
consistently turned to the provisions of 10 U.S.C. §§ 1168(a), 1169, for guidance on what
is required to effectuate discharge from active service. First, there must be a delivery of a
valid discharge certificate, and second, there must be a final accounting of pay such that
the member’s final pay or a substantial part of that pay is ready for delivery. 3 Hart,
66 M.J. at 276. For discharges taking effect before completion of the member’s obligated
term of service (“early discharges”), the member must also undergo the “clearing”
process as established by service regulations. Id. If these requirements have not been
met, the member is not considered discharged from active duty, and military jurisdiction
over the person continues. Id.

       Here, the evidence is undisputed that there was never a final accounting of the
appellant’s pay, and a substantial part of that pay was never paid to him as part of his
purported separation from active duty. We do not find the military judge’s findings of
fact to be clearly erroneous, and we agree with his conclusion of law that the military
retained continuous jurisdiction over the appellant.

                                      Incorrect Personal Data Sheet

       The appellant was restricted to base between 5 January 2013 and the
18 March 2013 court-martial.4 Although the appellant has not raised this issue on
appeal, we note the Personal Data Sheet (PDS), which was attached to the staff judge
advocate recommendation (SJAR) and provided to the convening authority, erroneously
indicated that there had been no pretrial restraint. Regarding this PDS, the SJAR stated,
2
  In his brief, the appellant acknowledges “current controlling case law is adverse to his position” and that he has
raised the issue “to preserve it for future review.”
3
  According to 10 U.S.C. § 1168(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.”
4
   During the trial proceedings, the prosecution stated it had made a change to the charge sheet and the personal data
sheet in order to reflect the appellant’s restriction to base. These revised documents are not in the record of trial,
and the Government is hereby directed to correct these errors.


                                                          3                                            ACM S32136
“Also attached is a personal data sheet on the accused for your consideration prior to
taking action on the sentence.” Neither the appellant’s clemency request nor the
appellant’s trial defense counsel’s submission raised any objections to the SJAR, nor did
they request any additional credit for the pretrial restriction.

       The standard of review for determining whether post-trial processing was properly
completed is de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004). Because the SJAR was properly served on trial defense counsel and the appellant,
and trial defense counsel failed to comment on the erroneous information referenced
therein, we review the omission for plain error. See Rule for Courts-Martial 1106(f)(6).
The appellant must show that (1) there was error; (2) the error was plain or obvious; and
(3) the error materially prejudiced the appellant’s substantial rights. United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000).

       Rule for Courts-Martial 1106(d)(3)(D) formerly required the SJAR to include a
statement concerning the nature and duration of any pretrial restraint. See Manual for
Courts-Martial, United States, Part II, (2008 ed.); United States v. Wheelus, 49 M.J. 283,
284-85 (C.A.A.F. 1998). The rule was later amended, however, to omit this particular
requirement. Exec. Order No. 13,552, 75 Fed. Reg. 54263, 54,265 (Sep. 3, 2010). Thus,
the only question is whether the erroneous PDS resulted in material prejudice to the
appellant’s substantial right to have his request for clemency judged on the basis of an
accurate record. United States v. Wellington, 58 M.J. 420, 427 (C.A.A.F. 2003).
Because of the highly discretionary nature of the convening authority’s action on a
sentence, we may grant relief if an appellant presents “some colorable showing of
possible prejudice” affecting his opportunity for clemency. Kho, 54 M.J. at 65;
United States v. Scalo, 60 M.J. 435, 436-37 (C.A.A.F. 2005).

       Here, the military judge was aware of the pretrial restriction when he adjudged his
sentence in the case, but the convening authority was not accurately informed of it when
he approved the sentence as agreed to in the pretrial agreement. We are convinced,
however, that knowledge of the appellant’s restriction would not have affected the
sentence as approved by the convening authority, given the appellant’s offenses, his
disciplinary record, and the low sentence cap agreed to by the convening authority.
Therefore, we do not find any “colorable showing of possible prejudice” from the
erroneous PDS.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                             4                                   ACM S32136
Accordingly, the approved findings and sentence are

                                     AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           5          ACM S32136
