                         UNITED STATES, Appellee

                                         v.

                     Kirkland C. NETTLES, Captain
                       U.S. Air Force, Appellant

                                  No. 14-0754
                           Crim. App. No. 38336

       United States Court of Appeals for the Armed Forces

                          Argued March 17, 2015

                           Decided July 6, 2015

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.


                                     Counsel


For Appellant:    Captain Jeffrey A. Davis (argued).


For Appellee: Major Mary Ellen Payne (argued); Lieutenant
Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief);
Captain Thomas J. Alford.


Military Judge:    Michael J. Coco


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nettles, No. 14-0754/AF


      Judge STUCKY delivered the opinion of the Court.

      We granted review to determine whether the Air Force had

personal jurisdiction over Appellant at the time of his court-

martial.   We hold that it did not, and that therefore the

judgment of the United States Air Force Court of Criminal

Appeals (CCA) is vacated, the findings and sentence are set

aside, and the case is dismissed.

                           I.   Background

      Appellant was on active duty between September 2001 and

August 2007.   He then served in the Ready Reserve and

transferred to the Individual Ready Reserve (IRR) on April 1,

2011.   On March 14, 2012, Appellant was notified that he was to

be discharged from the IRR on October 1, 2012, as he had twice

been passed over for promotion.    Two months later, on May 8,

2012, charges were preferred against him relating to sexual

misconduct.    The Secretary of the Air Force approved the recall

of Appellant to active duty for the purposes of court-martial on

July 18, 2012.   The special court-martial convening authority’s

staff judge advocate asked the Air Reserve Personnel Center

(ARPC) to place an administrative hold on Appellant so that he

would not be discharged from the service, but the ARPC never did

so.   Accordingly, a discharge order was generated on September

25, 2012, with an effective date of October 1, 2012.     The order

and discharge certificate were never delivered, though, because


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the responsible office had run out of the special card stock

used to print the certificate, and the order and the certificate

were normally sent out together.       In early November, 2012, the

convening authority learned of the erroneously generated order,

contacted ARPC, and ARPC rescinded the prior discharge order.

     From January 28 to February 2, 2013, a general court-

martial composed of officer members tried and convicted

Appellant, contrary to his pleas, of various sexual offenses.

He was sentenced to a dismissal, confinement for two months, and

a reprimand.   At trial, Appellant challenged the court-martial

as lacking personal jurisdiction over him.       The military judge

and the CCA both held that personal jurisdiction remained

despite the erroneous discharge order, because there was never

any delivery of a discharge certificate.       See United States v.

Nettles, No. ACM 38336, 2014 CCA LEXIS 254, at *9, 2014 WL

2039108, at *3 (A.F. Ct. Crim. App. Apr. 21, 2014)

(unpublished).   Appellant now reasserts his personal

jurisdiction claim before this Court.       This claim is reviewed de

novo.   United States v. Fry, 70 M.J. 465, 470 (C.A.A.F. 2012).

                           II.   Discussion

                     A.   Personal Jurisdiction

  We have held that a discharge terminates in personam court-

martial jurisdiction after there is “(1) a delivery of a valid

discharge certificate; (2) a final accounting of pay; and


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(3) the undergoing of a ‘clearing’ process as required under

appropriate service regulations to separate the member from

military service.”    United States v. Harmon, 63 M.J. 98, 101

(C.A.A.F. 2006).    This is based on a civil personnel statute,

10 U.S.C. § 1168(a) (2012):

    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.

See United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008)

(“The UCMJ itself does not define the exact point in time when

discharge occurs, but for nearly twenty years, this court has

turned to 10 U.S.C. §§ 1168(a) and 1169 (2000), a personnel

statute, for guidance as to what is required to effectuate

discharge.”).

      In this case only the first requirement, “delivery,” is at

issue. 1   The delivery requirement has generated its own body of

jurisprudence, the analysis of which yields two conclusions.

      First, no delivery can be effective if it is contrary to

expressed command intent.    See Harmon, 63 M.J. at 101 (informal

practice of clerk to deliver certificate before effective time

did not sever jurisdiction at the earlier time); United States

v. Melanson, 53 M.J. 1, 4 (C.A.A.F. 2000) (early receipt of

1
  As a member of the IRR, Appellant had previously received a
final accounting of pay and undergone the “clearing” process.

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United States v. Nettles, No. 14-0754/AF


duplicate copy of discharge certificate did not terminate

jurisdiction before the intended effective date); United States

v. Batchelder, 41 M.J. 337, 339 (C.A.A.F. 1994) (early delivery

for administrative convenience not effective in terminating

jurisdiction); United States v. King, 27 M.J. 327, 329 (C.M.A.

1989) (formalistic “discharge” for purposes of immediate

reenlistment did not terminate jurisdiction).   Next, it is

strongly suggested that “delivery” means actual physical

receipt.   See Harmon, 63 M.J. at 102 (“physical delivery of a

discharge certificate is generally considered the event that

terminates a servicemember’s active duty status”); United States

v. Wilson, 53 M.J. 327, 333 (C.A.A.F. 2000) (“[W]e also note

that there is no evidence that a discharge was ever delivered to

appellant.   Even though two copies of the DD Form 214 were

mailed . . . appellant has presented no evidence of receipt.”).

     Were we to apply the above analysis to the current case (as

did the lower courts), the result would be clear.    The command

did not intend for the discharge to take effect, as the

convening authority intended to prevent discharge by placing

Appellant on administrative hold.    Nor was there physical

receipt of the discharge certificate, due to the paper shortage.

For the reasons below, though, we decline to employ the

10 U.S.C. § 1168(a) framework here.




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            B.   Personal Jurisdiction Over Reservists

     Crucially, and unlike in the above cases, Appellant was a

reservist at the time of his court-martial, and was not on

extended active duty during the events relevant to this case.

The discharge and delivery jurisprudence that has been created

for active duty personnel is of questionable applicability to

the reserves, and there are strong reasons for taking a

different approach in this context.

     First, the statute that has guided our discharge

jurisdiction law fails to mention the reserves, and instead

states only that a member “may not be discharged or released

from active duty” until its requirements are met.    10 U.S.C.

§ 1168(a) (2012) (emphasis added).    Even on its own terms, then,

the statute is inapplicable.

     Moreover, since we do not apply § 1168 when determining

jurisdiction -- but instead look to it only for “guidance,”

Hart, 66 M.J. at 275 -- its demands are not binding when we find

that they go against reason or policy. 2   Such is the case here,

primarily because of the requirement for actual physical

delivery.

     The overarching interest implicated by the law of personal

jurisdiction, and especially discharge jurisprudence, is the

2
  The law of discharges for the purposes of criminal jurisdiction
is judicially created, and therefore we are free to modify it
without being constrained by § 1168. See Hart, 66 M.J. at 275.

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United States v. Nettles, No. 14-0754/AF


need -- of both servicemember and service -- to know with

certainty and finality what the person’s military status is and

when that status changes.    See United States v. Howard, 20 M.J.

353, 354 (C.M.A. 1985) (emphasizing significance of determining

the moment of discharge, as this is the moment that the

“transaction is complete [and] that full rights have been

transferred”).   This is important for the armed forces both

abstractly and concretely:    abstractly, because certainty of

status indicates who actually is in the service and subject to

the Uniform Code of Military Justice (UCMJ), and concretely,

because such certainty provides clear guideposts for prosecutors

and commanders when taking actions with a view towards

litigation (thus preventing the waste of time and resources).

Certainty and finality are also important to the servicemember,

of course, so that he can guide his conduct with awareness of

the potential (or not) for criminal liability under the UCMJ.

     We conclude that these weighty interests are frustrated by

a rule requiring the physical delivery of a discharge

certificate for reservists.    A reservist relies on the mail and

the service’s administrative apparatus to process the

certificate and deliver it to him.    A panoply of intervening

forces can work to prevent this, as is well illustrated by this

case, but the member’s status ought not hinge on their

occurrence or nonoccurrence.   Because certainty of status is so


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United States v. Nettles, No. 14-0754/AF


crucial in the discharge context, we decline to apply the

physical delivery rule to the reserve components.

      Instead, we think it more appropriate to apply the statute

that actually discharged Appellant:     10 U.S.C. § 14505 (2012)

(“Effect of failure of selection for promotion:     reserve

captains of the Army, Air Force, and Marine Corps and reserve

lieutenants of the Navy”). 3   The statute reads:

      [A] captain on the reserve active-status list . . .
      who has failed of selection for promotion to
      the next higher grade for the second time . . .
      shall be separated . . . not later than the first
      day of the seventh month after the month in which
      the President approves the report of the board
      which considered the officer for the second time.

Id.   Notably, no mention is made of delivery or even of a

certificate.   Instead, the statute contemplates a definite date

and provides for its computation.     This provides finality and

certainty, and insulates the process from the potential problems

associated with administrative oversight or the mail.

      Accordingly, in cases of reserve personnel with self-

executing discharge orders issued pursuant to statute, it is the

effective date of those orders that determines the existence of

personal jurisdiction -- not physical receipt of a piece of

paper.   The law has generally moved beyond imbuing formalistic



3
  Like 10 U.S.C. § 1168(a), this statute does not directly
control court-martial jurisdiction over a reservist, but we turn
to it for guidance.

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United States v. Nettles, No. 14-0754/AF


acts with such significance, and we should not require what

amounts to livery of seisin 4 to effectuate a discharge.

            C.   Personal Jurisdiction Over Appellant

     We turn now to the facts of this case.    Appellant was a

member of the IRR, a status which did not require him to perform

any duty and in which he was not paid. 5   He was passed over for

promotion for the second time on March 14, 2012, meaning that

10 U.S.C. § 14505 required the Air Force to discharge Appellant

by October 1, 2012.   This is what the President ordered in the

reserve order, which had an effective date of October 1, 2012.

This self-executing order accomplished what the statute

commanded; physical receipt of a discharge certificate was not

required to terminate jurisdiction.

     The Government makes much of the fact that, while the ARPC

issued the discharge order so as to comply with the statute, the

convening authority concurrently attempted to place Appellant on

administrative hold and retain him in the service.    But in fact

Appellant was never placed on administrative hold.

4
  “[T]he ceremonial procedure at common law by which a grantor
conveyed land to a grantee . . . . The ceremony involved going
on the land and having the grantor symbolically deliver
possession of the land to the grantee by handing over a twig, a
clod, or a piece of turf.” Bryan A. Garner, A Dictionary of
Modern Legal Usage 534 (2d ed. 1995); see generally Frederic
William Maitland, Mystery of Seisin, 2 L.Q. Rev. 481 (1886).
5
  There is a statute, 10 U.S.C. § 12319 (2012), providing for one
day of “muster duty” per year for ready reservists. The statute
is not mandatory and there is no indication that Appellant was
ever required to perform it.

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United States v. Nettles, No. 14-0754/AF


     The Secretary of the Air Force authorized the recall of

Appellant to active duty, as needed, so that Appellant would be

subject to disciplinary proceedings.   The convening authority,

however, did not recall Appellant to active duty for the period

until the court-martial was completed, as he could have done.

See Article 2(d), UCMJ, 10 U.S.C. § 802(d) (2012).    Instead, for

whatever reason, the convening authority ordered him to active

duty for specific proceedings -- preferral, Article 32, UCMJ, 10

U.S.C. § 832 (2012), arraignment -- and then apparently allowed

him to return to a nonduty, nonpay status. 6   Hence, Appellant

oscillated between brief periods of active duty and lengthy

periods in a nonduty status.   We hold that, in cases where the

accused is not on active duty pursuant to an administrative hold

on the date the self-executing order sets for a reservist’s

discharge, he is not subject to court-martial jurisdiction.

     This conclusion flows both from the facts of this case and

from deeper concerns relating to personal jurisdiction.    As we

recently stated, because of the duties imposed by military

status, “we review the laws and regulations governing enlistment

and separation with sensitivity.”    United States v. Watson, 69


6
  The military judge found that Appellant was not activated
permanently but had instead been activated on three distinct
occasions -- in May 2012 for preferral of charges, in July 2012
for the pretrial investigation under Article 32, UCMJ, and in
October 2012 for arraignment. Neither party argued that these
findings were clearly erroneous.

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United States v. Nettles, No. 14-0754/AF


M.J. 415, 416 (C.A.A.F. 2011).   This is especially salient in

the context of most reserve personnel, who inherently occupy a

gray area and are therefore most in need of clear rules so as to

guide their conduct.

     Because 10 U.S.C. § 14505 commanded that Appellant be

discharged no later than October 1, 2012, and because Appellant

was not on active duty under an administrative hold on the date

of the self-executing discharge orders, Appellant’s discharge

became effective on the date ordered -- regardless of the

failure physically to deliver the discharge certificate.    No

military jurisdiction therefore existed over his person at the

time of his arraignment in October 2012 or his court-martial in

January and February of the following year.

                         III.    Judgment

     The judgment of the United States Air Force Court of

Criminal Appeals is vacated.    The findings and sentence are set

aside, and the case is dismissed.




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