       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
   Christopher E. CHRISTENSEN, Private First Class
             United States Army, Appellant
                          No. 17-0604
                    Crim. App. No. 20140372
           Argued May 1, 2018—Decided July 10, 2018
          Military Judges: John T. Rothwell (trial) and
               Jacob D. Bashore (DuBay hearing)
   For Appellant: Captain Cody Cheek (argued); Colonel Mary
   J. Bradley, Lieutenant Colonel Christopher D. Carrier,
   Lieutenant Colonel Tiffany Chapman, Major Christopher
   Coleman, and Major Brendan R. Cronin (on brief).
   For Appellee: Captain Meredith M. Picard (argued);
   Colonel Tania M. Martin and Captain Allison Rowley (on
   brief); Major Michael E. Korte.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge SPARKS joined.
   Judge MAGGS filed a separate concurring opinion, in
   which Judge RYAN joined.
                      _______________

   Judge OHLSON delivered the opinion of the Court.
    Contrary to Appellant’s pleas, a military judge sitting as
a general court-martial convicted Appellant of one specifica-
tion of sexual assault in violation of Article 120, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).1
The military judge sentenced Appellant to confinement for
eight years, a dishonorable discharge, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The con-
vening authority approved the sentence and credited Appel-
lant with ninety days of confinement credit.



   1  The military judge found Appellant not guilty of a second
specification of sexual assault in violation of Article 120, UCMJ.
          United States v. Christensen, No. 17-0604/AR
                      Opinion of the Court

    The United States Army Court of Criminal Appeals
(CCA) ordered a factfinding hearing pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to de-
termine whether Appellant had been subject to the personal
jurisdiction of a court-martial at the time of his military tri-
al. The DuBay military judge found that the military had
indeed retained personal jurisdiction over Appellant. The
CCA agreed and affirmed the findings and sentence. After
granting Appellant’s request for en banc reconsideration, the
CCA again affirmed the findings and sentence.
    We granted review on the following issue: “Whether Ap-
pellant was subject to court-martial jurisdiction.” United
States v. Christensen, 77 M.J. __, __ (C.A.A.F. 2018) (order
granting review). We conclude that on the specific facts of
this case, there was no personal jurisdiction over Appellant
at the time of his military trial. Accordingly, we vacate the
CCA’s decision.
                        I. Background
                           A. Facts
    On March 6, 2013, Appellant’s unit—the 3rd Infantry
Division at Fort Stewart, Georgia—recommended and initi-
ated his administrative separation from the Army for his
failure to complete an alcohol abuse rehabilitation program.
Shortly thereafter, Appellant was arrested by civilian au-
thorities for a suspected sexual assault involving another
soldier and he was placed in civilian confinement. On March
27, the separation authority approved Appellant’s adminis-
trative separation from the Army. A sergeant from the unit
was assigned to clear Appellant from post while Appellant
was in civilian confinement.
    The sergeant fully cleared Appellant from post on April
17 and Appellant’s identification card was taken from him.
Until that time, noncommissioned officers (NCO) from Ap-
pellant’s unit had visited him approximately once a week
while he was in civilian confinement. However, once Appel-
lant finished the last of his clearance paperwork, the last
NCO to visit him in April told Appellant he was “ ‘out of the
Army now’ ” and wished him good luck. Appellant would not
see anyone from his unit again until December.



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             United States v. Christensen, No. 17-0604/AR
                         Opinion of the Court

   Also on April 17, the local Defense Finance and Account-
ing Service (DFAS) sought to compute Appellant’s final pay,
but could not do so because of the way Appellant’s confine-
ment status was coded in the system. In order for the code to
be changed to a status where the local DFAS could conduct
the final accounting of pay, Appellant’s case needed to be
sent to DFAS Indianapolis. As of April 30, Appellant’s Leave
and Earning Statement reflected that he owed the Army
$1,148.51.
    Appellant’s discharge orders listed his discharge date as
April 17. Appellant’s Department of Defense Form 214, Cer-
tificate of Release or Discharge from Active Duty (DD Form
214, Aug. 2009), was completed on April 18. The transition
center mailed Appellant’s DD Form 214 to him on April 19,
which his father received on April 23.
   On April 25, the chief of justice at Fort Stewart e-mailed
the local DFAS and requested that it stop the accounting of
Appellant’s final pay, believing that doing so would permit
the Army to exercise court-martial jurisdiction over Appel-
lant. The chief of justice acted on his own authority and
without coordinating with anyone in command.2 Further,
neither he nor the OSJA contacted Appellant to let him
know that they were halting his final pay. At the jurisdiction
motions hearing, the chief of justice testified that he wanted
to have the ability to exercise military jurisdiction over Ap-

   2   The chief of justice testified as follows:
             [Defense counsel]: You were acting without
         command direction at that point. You were acting
         on your own authority as the Chief of Justice?
             [Witness]: Yes.
             ….
             [Defense counsel]: You’re acting with no guid-
         ance from the command, just with coordination in-
         side the OSJA [Office of the Staff Judge Advocate]?
              [Witness]: Up to that point, I had not even co-
         ordinated that upward. At that point, one, I don’t
         work for the command that was separating him. At
         that point, I felt like the decision was not the cor-
         rect one at the division level, and so I asked to stop
         it. So, yes, I was the one that did that.



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         United States v. Christensen, No. 17-0604/AR
                     Opinion of the Court

pellant until he could “confirm that the civilians were going
to prosecute this [sexual assault case] in a way that we felt
was appropriate.”
   When the chief of justice initially reached out to the
transition center about Appellant’s status, an employee re-
sponded that “everything has been completed and [Appel-
lant] is out of the Army. Sorry.” The chief of justice replied
that because Appellant’s “DFAS account is on hold and final
accounting of pay has not been completed … the Army has
not lost its ability to act on this Soldier.”
    On or about May 2, the local DFAS received the formal
notification to halt Appellant’s final accounting of pay. The
local DFAS notified DFAS Indianapolis, which still had Ap-
pellant’s case. DFAS Indianapolis closed Appellant’s case
without changing the code regarding his confinement status.
    On May 14, the brigade rear detachment commander
e-mailed a member of the OSJA seeking clarification about
Appellant’s status. He stated: “On the one hand, I’m track-
ing him as still incarcerated down-town, awaiting his grand
jury, and separated from the army through [an administra-
tive discharge]. [However,] I’ve also heard that the [adminis-
trative discharge] has been ‘held up’ by legal.” The OSJA re-
sponded that the office halted the final accounting of pay
and recommended continuing to halt the pay until it was
certain the local authorities would properly prosecute the
sexual assault case. Sometime later in May, the brigade rear
detachment commander instructed the OSJA to continue to
halt the final accounting of Appellant’s pay.
    The civilian authorities released Appellant on bond to a
substance abuse rehabilitation facility on May 14. Appellant
had not received any notification that he was entitled to
medical care or other military benefits as an active duty
member after his outprocessing in April 2013 and Appel-
lant’s family used private funds to pay for Appellant’s reha-
bilitation and dental care.3 In October and November, Ap-
pellant received letters from the Department of Veterans


   3  When asked why he did not seek to have the Army pay for
his rehabilitation or his dental work, Appellant responded, “I
didn’t think I was in the Army.”



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         United States v. Christensen, No. 17-0604/AR
                     Opinion of the Court

Affairs and the Veterans’ Group Life Insurance program out-
lining his benefits as a veteran and noting his transition to
veteran status.
    Despite the actions of the chief of justice beginning in
April 2013, it was not until August or September when the
brigade commander formally requested a revocation of Ap-
pellant’s DD Form 214. Then on September 26, the Govern-
ment preferred one charge and specification against Appel-
lant. On September 30, the soldier processing center voided
Appellant’s DD Form 214 and revoked his discharge. How-
ever, it was not until December that anyone from Appel-
lant’s unit notified him that he was still considered a mem-
ber of the armed forces and that he was going to be
court-martialed.
    The reason Appellant’s unit decided to court-martial him
regarding the sexual assault case was because the civilian
authorities were “looking to plea him down to probation and
a much lesser charge.” A judge advocate from the OSJA not-
ed in an e-mail:
          We have [been] working the last two months to
      get [Appellant] out of the civilian system without
      them completely dropping the case and also keep
      him in rehab while he in-processes, goes to his
      Art[icle] 32[, UCMJ] hearing, arraignment, and tri-
      al…. However the continuing rehab is not going to
      work, the Army would have to pay for it and cur-
      rently he is paying.
   On December 12, the Government preferred an addition-
al charge with two specifications against Appellant. Two
military police officers then arrested Appellant at the civil-
ian rehabilitation facility. It was the first time since April
that anyone from Appellant’s unit had visited or communi-
cated with him.
    Once Appellant was again in military control, he had dif-
ficulty using many of the facilities that would be readily
available to active duty soldiers—such as the dining hall—
because he was not on the roster of active duty military per-
sonnel. He likewise did not have an identification card, as-




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           United States v. Christensen, No. 17-0604/AR
                       Opinion of the Court

signed quarters, or any of his own uniforms.4 Moreover, Ap-
pellant was not paid from April 2013 until January 2014,
when his pay was restarted. The charge against Appellant
was referred on January 23, 2014.

                        B. DuBay Ruling
   The DuBay military judge relied on United States v.
Hart, 66 M.J. 273, 277 (C.A.A.F. 2008), and 10 U.S.C.
§ 1168(a) (2012), in concluding that in personam jurisdiction
over a military servicemember is not terminated until all
three of the following criteria are met: (1) delivery of a DD
Form 214 discharge certificate; (2) completion of the clear-
ance process; and (3) a final accounting of pay. Since neither
party disputed that Appellant received his DD Form 214 and
completed the clearance process, the DuBay military judge
focused solely on the “final accounting of pay.” He found that
there was no final accounting of pay, and thus there was
personal jurisdiction over Appellant.
                        II. Applicable Law
   We review issues of personal jurisdiction de novo, “ac-
cepting the military judge’s findings of historical facts unless
they are clearly erroneous or unsupported in the record.”
United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000).
    “As this court recognized long ago, ‘It is black letter law
that in personam jurisdiction over a military person is lost
upon his discharge from the service, absent s[o]me saving
circumstance or statutory authorization.’ ” Hart, 66 M.J. at
275 (quoting United States v. Howard, 20 M.J. 353, 354
(C.M.A. 1985)). However, the UCMJ does not state when a
servicemember’s discharge from the armed forces becomes
effective for jurisdictional purposes, and thus does not spe-
cifically address when a servicemember is no longer subject
to being court-martialed. In making this determination, this
Court has instead looked to 10 U.S.C. §§ 1168 and 1169 “for




   4 Appellant slept in the Charge of Quarters room and wore an-
other soldier’s uniform that was dirty and “full of cigarette butts.”



                                 6
          United States v. Christensen, No. 17-0604/AR
                      Opinion of the Court

guidance as to what is required to effectuate discharge.”
Hart, 66 M.J. at 275 (emphasis added).5
    Based on these statutory provisions, this Court has iden-
tified three criteria to consider when determining whether a
servicemember’s discharge has been finalized for jurisdic-
tional purposes: (1) the delivery of a discharge certificate (a
DD Form 214); (2) a “final accounting of pay”; and (3) the
completion of the “clearing” process that is required under
service regulations. Id. at 276–79. Importantly, however, we
have explicitly held that this guidance is “not binding when
we find that [it] go[es] against reason or policy.” United
States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015).
                          III. Analysis
    Consistent with our recent decision in Nettles, we hold
that Appellant was not subject to court-martial jurisdiction
at the time of his military trial. To hold otherwise would
clearly go against “reason or policy.” Id. In reaching this
conclusion, we have considered the totality of the following
circumstances.
    First, Army policy declares that a discharge becomes “ef-
fective at 2400 [hours] on the date of notice of discharge to
the Soldier.” Dep’t of the Army, Reg. 635-200, Personnel
Separations, Active Duty Enlisted Administrative Separa-
tions § V, para. 1-29.c. (June 6, 2005, rapid action revision
issue date, Sept. 6, 2011). Here, Appellant’s father received
Appellant’s DD Form 214 on April 23, 2013.
   Second, the Government did not act in a timely manner
when attempting to revoke the discharge. The command
waited more than four months after the brigade rear de-
tachment commander instructed the OSJA to halt Appel-
lant’s pay before revoking Appellant’s DD Form 214. The
Government likewise waited months to restart Appellant’s
pay and military benefits, conduct command visits, and


   5 See also United States v. Watson, 69 M.J. 415, 417 (C.A.A.F.
2011) (“[This] Court has identified three generally applicable ele-
ments of a valid discharge.” (emphasis added)); United States v.
King, 27 M.J. 327, 329 (C.M.A. 1989) (“We read [§§ 1168 and
1169] as generally requiring that three elements be satisfied to
accomplish an early discharge.” (emphasis added)).



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           United States v. Christensen, No. 17-0604/AR
                       Opinion of the Court

communicate with the Appellant about his status. During
the intervening months, the command treated Appellant as
a civilian.
    Third, in light of the attendant circumstances, Appellant
held an objectively reasonable belief that he was no longer in
the Army. Not only had Appellant received his DD Form
214, cleared post, turned in his military identification card,
and been told by the unit’s official representative that he
was “ ‘out of the Army now,’ ” but for months afterward he
received no visits from his command, used private funds for
his rehabilitation facility and dental work, received no com-
munication from the unit informing him that his status was
in question, received no pay or military benefits, did not
have his DD Form 214 revoked, received correspondence
from the Department of Veterans Affairs about the benefits
he now was entitled to receive as a veteran, and expected no
final pay because he owed the government money.
    Fourth, although it concedes the fact that Appellant had
received his DD Form 214 and had cleared from post, the
Government cites our decision in Hart as binding precedent
and latches onto the argument that Appellant’s discharge
was not effectuated because a final accounting of pay had
not been conducted. However, in analyzing the Govern-
ment’s argument, we begin by reiterating that the three cri-
teria derived from 10 U.S.C. §§ 1168 and 1169 serve as
guidance—not as prerequisites—when it comes to determin-
ing whether a discharge has been effectuated for jurisdic-
tional purposes. Hart, 66 M.J. at 277 n.5 (“We have relied on
10 U.S.C. § 1168(a) for guidance in determining the moment
of discharge for purposes of UCMJ jurisdiction ….” (empha-
sis added)).6 Next, in Hart we expressly noted the following:
“This case does not involve any delay in the processing of
Hart’s separation pay.” Id. Because the instant case did in-
volve a delay in the processing of separation pay, Hart is


   6   To be clear, if all three of the criteria cited above have been
met, then an accused unequivocally is no longer subject to court-
martial jurisdiction. Nettles, 74 M.J. at 290. However, if one or
more of these criteria have not been fully met, then the military
trial judge must consider the totality of the circumstances in mak-
ing a jurisdictional determination. Id. at 291.



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          United States v. Christensen, No. 17-0604/AR
                      Opinion of the Court

readily distinguishable. And finally, in Hart we explicitly
stated as follows: “We have not had occasion to address the
jurisdictional effects if payment [to a discharged
servicemember was] not accomplished within a reasonable
time frame established by applicable regulation for comple-
tion of the payment process.” Id. Here, the final accounting
of pay was “not accomplished within a reasonable time
frame.”7 Thus, Hart is not dispositive of the case before us.
    Unlike Hart, however, our recent decision in Nettles is
directly on point. In Nettles we held that the guidance and
criteria derived from § 1168 are “not binding when we find
that they go against reason or policy.” Nettles, 74 M.J. at
291. And under the totality of the circumstances in the in-
stant case, it is eminently clear that “reason [and] policy”
dictate our conclusion that the military retained no jurisdic-
tion over Appellant at the time of his court-martial.
                          IV. Decision
   The decision of the United States Army Court of Crimi-
nal Appeals is vacated. The findings and sentence are set
aside and dismissed.




   7  We note that this failure to act “within a reasonable time
frame” was not the result of typical bureaucratic delays and mis-
cues. Rather, the delay was due largely to the unilateral action of
the chief of justice at Fort Stewart. He was the one who initially
halted Appellant’s pay process without command authority, and
he did so with the express intention of manipulating the finance
process in such a manner as to maintain jurisdiction over Appel-
lant until and unless the chief of justice decided he was satisfied
with the civilian prosecutor’s handling of the case. These facts
weigh against the Government’s position in this case.




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            United States v. Christensen, No. 17-0604


   Judge MAGGS,          with   whom      Judge    RYAN      joins,
concurring.
    A servicemember who has been discharged from the mili-
tary is no longer subject to trial by court-martial. See Article
2(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 802(a) (listing persons who are subject to court-martial);
see also Toth v. Quarles, 350 U.S. 11, 23 (1955) (holding that
Congress cannot constitutionally extend court-martial juris-
diction to former servicemembers). In many cases, however,
determining when a discharge has occurred is difficult. Be-
cause the UCMJ does not address the question of when a
discharge is complete, we have had to look elsewhere for the
answer. In United States v. Howard, 20 M.J. 353, 354
(C.M.A. 1985), the government argued that this Court
should “permit the Secretary of the Army, by regulation, to
establish the moment of discharge.” We declined to do so.
Shortly afterward, we developed our own three-part test for
determining when a discharge occurs. We held that a dis-
charge generally requires delivery of a valid discharge certif-
icate, a final accounting of pay, and the completion of a
clearing process under appropriate service regulations.
United States v. King, 27 M.J. 327, 329 (C.M.A. 1989); ac-
cord United States v. King, 42 M.J. 79, 80 (C.A.A.F. 1995).
    Although we have cited and applied this three-part test
for many years, recent cases reveal significant dissatisfac-
tion with some of its results. In United States v. Hart, 66
M.J. 273 (C.A.A.F. 2008), two dissenting judges asserted
that the three-part test should not be applied as “an abso-
lute rule.” Id. at 280 (Effron, J., joined by Stucky, J., dissent-
ing). In United States v. Nettles, 74 M.J. 289 (C.A.A.F. 2015),
this Court initially considered the three-part test, but decid-
ed not to apply the test to a reservist based on a newly craft-
ed “reason or policy” exception. Id. at 291. Instead, the Court
turned to “the statute that actually discharged” the reserv-
ist, 10 U.S.C. § 14505 (2012),1 for the answer on when a dis-
charge occurred. Id. at 292. The present case goes further
and applies the “reason or policy” exception in Nettles to an

   1 This statute specified the exact date of discharge for a “cap-
tain on the reserve active-status list” who was not selected for
promotion.
          United States v. Christensen, No. 17-0604/AR
                  Judge MAGGS, concurring

active duty servicemember. We decide today that the totality
of circumstances, including Army policy, Government delay,
and Appellant’s reasonable expectations, preclude strict re-
liance on the three-part test.
    While the “reason or policy” exception may prevent the
three-part test from producing undesirable results, relying
on the exception has its own difficulty. The exception may
leave military judges with insufficient guidance in deciding
whether a court-martial may go forward. Uncertainty has
significant costs. In this case, for instance, Appellant was
tried, found guilty, and sentenced by a court-martial that we
only now determine had no jurisdiction.
    These considerations suggest that the Court may have
made a wrong turn in Howard and that we should
reconsider our approach for determining when a
servicemember has been discharged for the purposes of
terminating court-martial jurisdiction. One possible
alternative would be to ask first whether an existing statute
or regulation specifies when a discharge has occurred. If
such a statute or regulation exists, the Court would simply
apply that statute or regulation. In a case in which no
specific statute or regulation exists, or in the case that the
Court concludes that the applicable regulation is invalid,
then, and only then, would we need to turn to the judicially
created three-part test and considerations of “reason or
policy.”
    For example, when we decided Nettles, we might have
started and ended our analysis with 10 U.S.C. § 14505.
Because the statute specified when the discharge occurred,
we would not have had to consider either the three usual
criteria or the “reason or policy” exception. Similarly, in this
case, we might have begun by considering Dep’t of the Army,
Reg. 635-200, Personnel Separations, Active Duty Enlisted
Administrative Separations § V, para. 1-29.c. (June 6, 2005,
rapid action revision issue date, Sept. 6, 2011), which
provides, with certain exceptions not relevant here, that a
discharge “is effective at 2400 on the date of notice of
discharge to the Soldier.”2 Only if this regulation were

   2 The Secretary of the Army has claimed authority to promul-
gate this regulation under 10 U.S.C. § 1169(1) (2012), which pro-




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          United States v. Christensen, No. 17-0604/AR
                  Judge MAGGS, concurring

somehow invalid would we need to resort to our judicially
created three-part test and its exception for determining
when Appellant’s discharge occurred.
    This alternative approach would have jurisprudentially
firmer underpinnings than our current approach because it
would prioritize statutes and regulations over judge-made
law. It would address concerns about undesirable results by
leaving most policy questions about when discharges should
occur to Congress and the service secretaries. The alterna-
tive approach also might promote greater certainty than the
current approach by subordinating inherently uncertain
questions of “reason or policy.”
    Despite these considerations, this case is not a proper
vehicle for overruling our precedents. The parties have not
asked us to change how we decide when a servicemember
has been discharged. And the alternative approach of look-
ing first to statutes and regulations most likely would pro-
duce the same result in this case as the Court has reached
under our existing precedents. The only regulation cited by
the parties would indicate that Appellant was indeed dis-
charged before his court-martial, and thus, no military ju-
risdiction existed over him. I therefore concur in the Court’s
opinion, which applies our existing precedents, and I leave
reconsideration of the Court’s long-standing approach to de-
termining when a discharge occurs for the purposes of ter-
minating court-martial jurisdiction for another case.




vides: “No regular enlisted member of an armed force may be dis-
charged before his term of service expires, except—(1) as pre-
scribed by the Secretary concerned.” The regulation appears to be
a successor of the regulation that the Government asked this
Court to follow in Howard.




                               3
