

   
   
   
   U.S. v. Williams



UNITED STATES, Appellee
v.
Sean K. WILLIAMS, Private First Class
U.S. Marine Corps, Appellant
 
No. 99-0973
Crim. App. No. 98-0213
 
United States Court of Appeals for the Armed
Forces
Argued April 4, 2000
Decided August 24, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which SULLIVAN, GIERKE, and EFFRON, JJ., and COX, S.J., joined.

Counsel
For Appellant: Mr. George A. Gallenthin
(argued); Lieutenant John D. Holden, JAGC, USNR (on brief).
For Appellee: Lieutenant William C. Minick,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: R.G. Sokoloski
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
Pursuant to his pleas, appellant was convicted
of conspiracy to commit larceny and forgery, making a false official statement,
larceny (3 specifications), forgery (5 specifications), making and using
false military identification cards, and removing and disposing of property
to prevent its seizure, in violation of Articles 81, 107, 121, 123, and
134, Uniform Code of Military Justice, 10 USC §§ 881, 907, 921,
923, and 934, respectively. Appellant was sentenced to a dishonorable discharge,
6 years confinement, total forfeitures, and reduction to the lowest enlisted
grade. Pursuant to a pretrial agreement, the convening authority suspended
all confinement in excess of 54 months. The Court of Criminal Appeals affirmed
the findings and sentence. 51 MJ 592 (1999). While appellants appeal was
pending before this Court, his habeas corpus motion alleging a lack of
jurisdiction, filed in the Eastern District of North Carolina, was denied
on February 17, 2000. We granted a review of the following issues:



I. WHETHER THE COURT-MARTIAL LACKED JURISDICTION
TO TRY APPELLANT.
II. WHETHER THE LOWER COURT ERRED IN REFUSING
TO
REMAND THIS CASE FOR A DUBAY HEARING
IN VIOLATION
OF UNITED STATES V. GINN, 47 MJ 236
(1997).
III. WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL WHERE HIS CIVILIAN COUNSEL
WAS NOT AUTHORIZED TO PRACTICE LAW DUE TO
THE INACTIVE STATUS OF ALL OF HIS STATE BAR MEMBER-
SHIPS.*



We affirm the decision below.

FACTS - Issues I & II
In a post-trial affidavit signed November 20,
1998, appellant alleges he was evaluated by a physical evaluation board
(PEB) and determined to be unfit for duty. Separation action was initiated,
and on December 18, 1996, he turned in all the items that were assigned
to him and was sent home to await final disposition of the PEB.
On January 15, appellant received his final
pay and accounting by direct deposit. On the same day, a certificate of
discharge was mailed to appellant and was received by his mother-in-law
the following day. On January 17, appellant was sent a letter terminating
his orders awaiting final disposition of the PEB board. He was directed
to proceed no later than January 22, 1997, to Camp Lejeune. He returned
to his unit as directed.
The Government on motion submitted an affidavit
by Lieutenant Colonel (LtCol) Carroll, the executive officer of the School
of Infantry, Camp Lejeune, stating that appellant was placed on legal hold
on January 15, 1997, hours before the effective date of the discharge.
In response, appellant presented an affidavit
of Gunnery Sergeant (GSgt) Davis, dated December 22, 1998, stating that
appellant was placed on legal hold after he returned on January 22. However,
in a second affidavit, dated June 3, 1999, GSgt Davis recanted his prior
statement. Davis said he had no personal knowledge of appellants legal
hold paperwork.

DISCUSSION
Generally, other than a few narrow exceptions,
jurisdiction over active duty military personnel continues until the member
receives a valid discharge; there is a final accounting of pay; and the
member has completed administrative clearance processes required by his
or her service Secretary. United States v. King, 27 MJ 327, 329
(CMA 1989); see also United States v. Melanson, 53
MJ 1 (2000).
In this case, a discharge certificate with
the discharge date of January 15, 1997, was mailed to appellant on January
15, 1997, the same day LtCol Carroll placed appellant on valid legal hold.
This is a fact which remains unrebutted.
We find no termination of jurisdiction under
these circumstances. A valid legal hold was placed on appellant before
the expiration of the date that constitutes the effective date of the discharge.
Cf.
United
States v. Garvin, 26 MJ 194 (CMA 1988). Thus, we agree with the court
below and hold that appellants discharge was properly rescinded and the
military had in personam jurisdiction.
We find no error by the lower court in refusing
to remand this case for a hearing under United States v. DuBay,
17 USCMA 147, 37 CMR 411 (1967), because the initial conflict between the
affidavit of LtCol Carroll and GSgt Davis was resolved by the second affidavit
submitted by GSgt Davis.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* We resolved this
issue against the appellant. See United States v. Steele,
No. 99-0314, ___ MJ ___ (2000).


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
