                       UNITED STATES, Appellee

                                    v.

                  Dustin M. HART, Airman First Class
                       U.S. Air Force, Appellant

                              No. 07-0247

                         Crim. App. No. 36253

       United States Court of Appeals for the Armed Forces

                        Argued January 7, 2008

                         Decided May 14, 2008

ERDMANN, J., delivered the opinion of the court, in which BAKER
and RYAN, JJ., joined. EFFRON, C.J., filed a dissent, in which
STUCKY, J., joined.

                                 Counsel

For Appellant: Major Shannon A. Bennett (argued); Lieutenant
Colonel Mark R. Strickland (on brief); Captain Christopher L.
Ferretti.

For Appellee: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce, Colonel George F. May, and Major Matthew S.
Ward (on brief).

Military Judge:    Kevin P. Koehler


       This opinion is subject to revision before final publication.
United States v. Hart, No. 07-0247/AF

       Judge ERDMANN delivered the opinion of the court.

       Two days after Airman First Class Dustin M. Hart received

his Discharge from Active Duty (DD Form 214), but before he

received separation pay, his command stopped processing the

computation of his final pay and revoked his DD Form 214.

Several weeks later various drug charges were preferred against

him.   We granted review of this case to consider whether the

charge and specifications must be dismissed for lack of personal

jurisdiction.   65 M.J. 322 (C.A.A.F. 2007).

       Pursuant to 10 U.S.C. § 1168(a) (2000), a servicemember may

not be discharged from active duty until his discharge

certificate “and his final pay or a substantial part of that

pay, are ready for delivery to him.”      We agree with the military

judge and the United States Air Force Court of Criminal Appeals

which concluded that Hart’s final pay, or a substantial portion

thereof, was not ready for delivery.      See United States v. Hart,

No. ACM 36253, 2006 CCA LEXIS 314, at *11-*12, 2006 WL 3513949,

at *4 (A.F. Ct. Crim. App. Nov. 30, 2006) (unpublished).

Accordingly, the discharge action was not completed and court-

martial jurisdiction existed.   We affirm.

                             BACKGROUND

       Hart confessed to various drug offenses during an interview

with the Air Force Office of Special Investigations (AFOSI) on

January 2, 2004.   Following his confession he worked with AFOSI



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United States v. Hart, No. 07-0247/AF

for several months as a confidential informant gathering

information about illegal drug use by active duty members.

During this time no charges were preferred against him.

Unbeknownst to AFOSI, on January 8, 2004, a Medical Evaluation

Board found Hart physically unfit for military service.

Officials from the Office of the Secretary of the Air Force

notified the separations section of his unit that he was to be

administratively separated with a disability discharge.

     Notwithstanding a memorandum from the base’s legal office

requesting that he “be placed on administrative hold for 120

days pending an administrative proceeding,” Hart was instructed

to begin outprocessing from the Air Force.1   The separations

section gave him a Request and Authorization for Separation for

Discharge (AF Form 100) to show that he was being outprocessed

for a disability discharge as well as an outprocessing

checklist.   As part of the outprocessing procedure he was

required to checkout with the finance section.   That office

required completion of a separate “finance” checklist and a

final interview with finance personnel.

     After the checklists were completed, Hart met with a

finance technician on February 24, 2004, and provided the

information necessary for the calculation of his final pay.


1
  None of the personnel in the separations section were aware of
the legal office memorandum until after Hart received his DD
Form 214.

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United States v. Hart, No. 07-0247/AF

That same day, Hart’s section commander cleared Hart for final

outprocessing.2   Two days later, the initial calculation of

Hart’s separation pay was entered into the computer system of

the Defense Finance and Accounting System (DFAS).   The military

judge found this entry to be a “snapshot” of the projected

separation settlement based upon the information in the DFAS

computer at the time and “not a final pay calculation.”   On

March 3, 2004, the separations section issued Hart his DD Form

214 reflecting that date as the effective date of separation.

     On March 5, 2004, Hart’s squadron commander, AFOSI, and the

legal office learned that Hart had received his DD Form 214.

The legal office directed the finance office not to take any

further action in calculating Hart’s final pay.   Hart’s squadron

commander issued a memorandum to the support squadron asking

that the DD Form 214 be revoked and that Hart be retained on

active duty “due to his involvement with a number of serious

offenses under the Uniform Code of Military Justice.”   Hart was

reported absent without leave on March 9, 2004, and arrested by

civilian authorities on March 18, 2004.   He was returned to

military control and charges were preferred against him on March

23, 2004.




2
  Hart’s section commander was aware that Hart had been working
with AFOSI, but was unaware that he was personally implicated in
criminal activity.

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United States v. Hart, No. 07-0247/AF

     Prior to trial, Hart moved to dismiss the charges based

upon lack of personal jurisdiction.   The military judge

conducted a hearing on the motion and found, among other things,

that there was never a final calculation of pay.   At the time

the pay process was halted, certain steps in the process of

calculating final pay required by the DFAS manual, DFAS-DEM

7073-1, ch. 52 (Jan. 15, 1998), had not been accomplished.    In

light of these findings the military judge concluded:

     I find that the government has proven by a
     preponderance of evidence that they have personal
     jurisdiction in this case, and the Accused can be
     tried by court-martial. The Accused was never finally
     discharged from active duty service in the United
     States Air Force, as there was never a final
     accounting of pay -- his final pay, or a substantial
     portion thereof was never made ready for delivery to
     him as required by 10 U.S.C. § 1168(a) and military
     case law. The military retains jurisdiction over the
     Accused.

     Hart filed a writ of mandamus with the lower court, which

was denied.   He subsequently filed a writ-appeal with this

court, which was denied without prejudice.   60 M.J. 434

(C.A.A.F. 2004).   At trial, Hart entered guilty pleas and was

convicted of wrongful use, possession and distribution of

various controlled substances.3   Following his conviction, the

Court of Criminal Appeals considered the question of


3
  Hart was convicted of wrongful use of marijuana, Diazepam, and
Alprazolam, wrongful possession of Diazepam and wrongful
distribution of Alprazolam, in violation of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a
(2000).

                                  5
United States v. Hart, No. 07-0247/AF

jurisdiction in the ordinary course of appeal and agreed with

the military judge that neither “‘final pay’ nor a ‘substantial

part of that pay’ were ready for delivery within the meaning of

10 U.S.C. § 1168(a).”   Hart, 2006 CCA LEXIS 314, at *11-*12,

2006 WL 3513949, at *4.   The lower court concluded that

“[a]bsent a final accounting of pay, the appellant’s early

discharge was not legally effectuated and he remained subject to

military court-martial jurisdiction.”      Id. at *12, 2006 WL

3513949, at *4.

                              ANALYSIS

     Under Article 2(a)(1), UCMJ, “[m]embers 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.      10 U.S.C. § 802(a)(1)

(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 same saving

circumstance or statutory authorization.”      United States v.

Howard, 20 M.J. 353, 354 (C.M.A. 1985); see also United States

v. King, 42 M.J. 79, 80 (C.A.A.F. 1995) (quoting Howard, 20 M.J.

at 354).

     This case requires us to determine whether a valid

discharge occurred which would deprive the Air Force of in

personam jurisdiction over Hart.       The UCMJ itself does not



                                   6
United States v. Hart, No. 07-0247/AF

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.    See, e.g., United

States v. Harmon, 63 M.J. 98, 101-02 (C.A.A.F. 2006); United

States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000); United States

v. Keel, 48 M.J. 431, 432 (C.A.A.F. 1998);    King, 42 M.J. at 80;

King, 27 M.J. at 329; see also Howard, 20 M.J. at 354 (noting

that “[d]ischarges are governed by 10 U.S.C. § 1168(a)”).    We do
                   4
so here as well.

     Section 1168(a), which governs “Discharge or release from

active duty:   limitations,” states as follows:

     A member of an armed force may not be discharged or
     released from active duty until his discharge

4
  The dissent suggests that the majority opinion is ignoring the
settled precedent of this court while the dissent follows such
precedent. United States v. Hart, __ M.J. __ (5-11) (C.A.A.F.
2008) (Effron, C.J., with whom Stucky, J., joins, dissenting).
In fact, just the opposite is true. Despite the representations
in the dissent, this court has turned to 10 U.S.C. § 1168(a)
since 1985 to assist in determining whether a discharge has
occurred for UCMJ purposes. See United States v. Howard, 20
M.J. 353, 354 (C.M.A. 1985). The dissent would have the date
contained in the DD Form 214 determine the effective date of
discharge without regard to the criteria found in 10 U.S.C. §
1168(a) or United States v. King, 27 M.J. 327, 329 (C.M.A.
1989), which the dissent would overrule sub silentio. There are
no prior decisions of this court that have held that the date on
the DD Form 214 determines the effective date of discharge for
UCMJ purposes and the dissent cites none. Nor has the
application of 10 U.S.C. § 1168(a) ever been limited by this
court to only those situations where “the unsettled state of the
record requires consideration of multiple factors.” Hart, __
M.J. at __ (9) (Effron, C.J., with whom Stucky, J., joins,
dissenting).

                                 7
United States v. Hart, No. 07-0247/AF

     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.

10 U.S.C. § 1168(a).   Section 1169, provides further:

     No regular enlisted member of an armed force may be
     discharged before his term of service expires, except--

     (1)   as prescribed by the Secretary concerned;

     (2)   by sentence of a general or special court martial; or

     (3)   as otherwise provided by law.

10 U.S.C. § 1169.   In King, this court reasoned:

     We read these statutes as generally requiring that
     three elements be satisfied to accomplish an early
     discharge. First, there must be a delivery of a valid
     discharge certificate. . . . Second, there must be a
     final accounting of pay made. This is an explicit
     command set forth by Congress in 10 U.S.C. § 1168(a).
     . . . Third, appellant must undergo the “clearing”
     process required under appropriate service regulations
     to separate him from military service.

27 M.J. at 329 (citations omitted).

     The jurisdictional rulings of the military judge and the

Court of Criminal Appeals hinge on the determination that there

was no final accounting of pay.   That is, Hart was not

effectively discharged because the criteria under § 1168(a) that

“his final pay or a substantial part of that pay, are ready for

delivery to him” were not met.    Hart argues that neither 10

U.S.C. § 1168(a) nor King define or address the meaning of

“final accounting of pay” or “ready for delivery.”     He further

argues that since the finance office had all the information



                                  8
United States v. Hart, No. 07-0247/AF

they needed to compute the final pay, the criteria of § 1168(a)

were satisfied once his “clearing process” was complete.      The

Government maintains that on the undisputed facts of the case,

Hart’s final pay had not undergone a final accounting and was

not ready for delivery.   Therefore, the Government urges that

under 10 U.S.C. § 1168(a), Hart’s discharge process was not

completed and the Air Force retained court-martial jurisdiction

over him.

      “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.”      Melanson, 53 M.J. at

2.   Here, neither party claims that the factual findings of the

military judge are clearly erroneous.      Accordingly, we accept

the military judge’s factual findings.

      Our review of the military judge’s factual findings compels

the conclusion that neither final pay nor a substantial part of

that pay were ready for delivery within the meaning of the plain

language of 10 U.S.C. § 1168(a).       We therefore reject Hart’s

contention that the facts here are sufficient to establish these

essential criteria for discharge.

      Based on the DFAS manual and the procedures of the base

finance office, the military judge found that the following




                                   9
United States v. Hart, No. 07-0247/AF

steps are required under DFAS regulations to calculate final

pay:

(1) DFAS generates an initial preliminary calculation of final
pay;

(2) A finance technician manually calculates the final pay on a
spreadsheet, balancing moneys owed to the member with debts owed
by the member;

(3) The finance technician reconciles any discrepancy between
the DFAS calculation and the manual calculation;

(4)    The technician completes a payment authorization request;

(5) The technician forwards the member’s file along with a
payment request to the noncommissioned officer in charge of the
unit’s customer service, who reviews the technician’s
calculations;

(6) The noncommissioned officer in charge, who is the only one
who can approve payment, forwards payment authorization to a
separate section of the finance section for quality examination;

(7)    A technician forwards disbursement authorization to DFAS.

       The military judge found that “only the initial DFAS,

‘snap-shot’ calculation had been accomplished.”   As such,

critical calculations, reconciliations, and authorizations of

final pay pursuant to DFAS regulations had not yet started.    The

lower court was correct to conclude that DFAS could not have

issued separation pay to Hart under these circumstances so

neither “‘final pay’ nor a ‘substantial part of that pay’ were

ready for delivery within the meaning of 10 U.S.C. § 1168(a).”

Hart, 2006 CCA LEXIS 314, at *11-*12, 2006 WL 3513949, at *4.

       The military judge also found that there was no evidence

that the finance personnel were “deliberately trying to slow


                                 10
United States v. Hart, No. 07-0247/AF

down the processing of [Hart’s] pay.”   Rather, “[i]t was a

normal processing of accounts based on workload and manning.”

The military judge found that this finance office had a twenty-

day window to manually compute a person’s pay and forward that

computation to DFAS for disbursement.   The payment process was

halted at the command’s request before the twenty days expired.5

The language of 10 U.S.C § 1168(a) setting limitations on

discharge or release from active duty plainly precludes

discharge unless “final pay or a substantial part of that pay”

is “ready for delivery.”   On the facts of this case, these

criteria were not fulfilled.   Accordingly, Hart was not



5
  This case does not involve any delay in the processing of
Hart’s separation pay. We have not had occasion to address the
jurisdictional effects if payment were not accomplished within a
reasonable time frame established by applicable regulation for
completion of the payment process. The dissent’s criticism that
as a result of our ruling members will be held on active duty
indefinitely sounds a false alarm and is unwarranted for several
reasons. Hart, __ M.J. at __ (5-6) (Effron, C.J., with whom
Stucky, J., joins, dissenting). First, as just noted, we have
not addressed the case where DFAS has acted outside its own
regulations, which provide a time certain for delivery of a
final accounting of pay. Second, contrary to the dissent’s
suggestion, this is not new law. We have relied on 10 U.S.C. §
1168(a) for guidance in determining the moment of discharge for
purposes of UCMJ jurisdiction since 1985. See Howard, 20 M.J.
at 354. Third, we are, of course, only addressing matters of
UCMJ jurisdiction. Finally, to the extent the dissent’s
argument is founded in legal policy, it ignores the sound public
policy reasons why the public’s interest as well as the
interests of military members and their dependents may be better
served during the transition from military to civilian life by a
system that allows flexibility in accounting for moneys due as
well as in providing for health and other coverage during
transitional travel.

                                11
United States v. Hart, No. 07-0247/AF

effectively discharged and remained subject to court-martial

jurisdiction pursuant to Article 2(a)(1), UCMJ.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                12
United States v. Hart, No. 07-0247/AF


     EFFRON, Chief Judge, with whom STUCKY, Judge, joins
(dissenting):

     The Air Force discharged Appellant and did not have

authority to revoke his discharge.   The cases cited by the

majority are informative regarding the factors that may be

considered in evaluating jurisdictional issues, but those cases

do not resolve the question presented today regarding the

relationship between court-martial jurisdiction and the

personnel management provisions of 10 U.S.C. § 1168 (2000).

Accordingly, I respectfully dissent from the conclusion of the

majority opinion that the court-martial had personal

jurisdiction in the present case.


Discharge and status

     On January 23, 2004, the Air Force Personnel Center ordered

the discharge of Airman First Class Dustin Hart by reason of

physical disability, effective March 3, 2004.   On March 3, 2004,

the Air Force discharged Hart, changing his status from military

to civilian.

     At the time of discharge, the Air Force provided Hart with

an official record of the action, DD Form 214 (“Certificate of

Release or Discharge from Active Duty”).   Consistent with the

direction from the Office of the Secretary of the Air Force, the

DD Form 214 documenting the separation described the action as a
United States v. Hart, No. 07-0247/AF


“discharge” and set forth the reason as “disability.”   The DD

Form 214 listed the separation date as March 3, 2004.

     Hart’s discharge severed his connection with the armed

forces, and terminated his status as a person subject to the

Uniform Code of Military Justice (UCMJ).   Following his

discharge, Hart did not fall within the categories of persons

subject to military jurisdiction based upon their ongoing

relationship with the armed forces.    See Article 2, UCMJ, 10

U.S.C. § 802 (2000).   Likewise, he did not fall within the

categories of persons expressly designated by Congress as

subject to military justice jurisdiction following discharge.

See Article 3, UCMJ, 10 U.S.C. § 803 (2000).


Post-discharge court-martial charges

     In the months preceding his discharge, Hart had served as a

confidential informant for the Air Force Office of Special

Investigations (OSI), gathering information about illegal drug

use by other active-duty servicemembers.   OSI had recruited him

in January 2004 during an investigation into his illegal drug

activity.   In the course of this investigation, Hart admitted to

various drug offenses, but no charges were preferred against him

prior to his discharge.   Instead, the Air Force relied on Hart

as an undercover informant.   At the time of his discharge, OSI




                                 2
United States v. Hart, No. 07-0247/AF


planned to utilize Hart’s assistance in an undercover drug

operation scheduled for March 6-8, 2004.

     After his return to civilian life, Hart notified an OSI

agent that he was no longer a member of the Air Force and that

he would not engage in further work as an OSI informant.   OSI,

which had been unaware of the discharge proceedings, informed

the base legal office, which in turn informed Hart’s former

command.   On March 5, 2004, the acting commander requested that

the support squadron revoke the discharge action.   On March 23,

2004, Hart was returned to military control and the command

preferred charges against him for pre-discharge drug offenses.

The charges preferred against Hart all involve offenses that

constitute violations of generally applicable federal law.    See

21 U.S.C. §§ 841, 844 (2000).   Although it appears that Hart

could have been prosecuted in a federal civilian court on these

charges, the record contains no indication that the Air Force

referred the allegations for prosecution by civilian

authorities.

     The Air Force, like the other armed forces, has a procedure

for placing an administrative “hold” on servicemembers facing

possible courts-martial to preclude discharge prior to the

disposition of offenses under investigation.   See Rule for

Courts-Martial (R.C.M.) 202(c)(1); Dep’t of the Air Force,

Instr. 36-3208, Administrative Separation of Airmen para. 1.14


                                 3
United States v. Hart, No. 07-0247/AF


(July 9, 2004).    Although the record in the present case

reflects discussion of a hold by various officials prior to

Hart’s discharge, the military judge did not reach a conclusion

as to whether a legally effective hold had been placed on Hart.

Accordingly, the present appeal does not involve the question of

whether Hart’s discharge was issued contrary to a valid hold,

rendering the discharge void or voidable.   See, e.g., Smith v.

Vanderbush, 47 M.J. 56, 58 (C.A.A.F. 1997).


Post-discharge analysis of pay and allowances

     In the present case, the command purported to revoke Hart’s

discharge, relying on the command’s failure to comply with 10

U.S.C. § 1168(a), which provides that a “member of an armed

force may not be discharged or released from active duty until

. . . his final pay or a substantial part of that pay . . . [is]

ready for delivery to him.”   Section 1168 is a personnel

management statute designed to protect servicemembers and their

families from the adverse financial consequences of premature

separation.   See United States v. Keels, 48 M.J. 431, 432

(C.A.A.F. 1998).   The pertinent legislation originated in World

War II as part of the Servicemen’s Readjustment Act of 1944,

Pub. L. No. 346, § 104, 58 Stat. 284, 285 (1944).   This

legislation, commonly known as the “G.I. Bill of Rights,”

provided “Federal Government aid for the readjustment in



                                  4
United States v. Hart, No. 07-0247/AF


civilian life of returning World War II veterans.”      58 Stat.

284.   Among other provisions, the Act offered federal aid to

veterans in areas such as education, home ownership, and

unemployment insurance.   Id. at 287-300.      This discharge

provision ensured the efficient administration of disability

claims and the timely discharge of servicemembers.      See H.R.

Rep. No. 78-1418, at 5-6 (1944).       Nearly twenty years later, the

provision was recodified at 10 U.S.C. § 1168.      See Pub. L. No.

87-651, § 106(b), 76 Stat. 506, 508 (1962); S. Rep. No. 87-1876

(1962), as reprinted in 1962 U.S.C.C.A.N. 2456, 2458-59.

Section 1168 does not address jurisdiction under the UCMJ; nor

does the statute require the government to revoke a discharge

when the government subsequently discovers that it has failed to

perform its obligation to ensure timely accounting of military

pay for a servicemember facing a discharge.


Section 1168 and status

       Notwithstanding the language and purpose of § 1168, the

majority opinion holds that if the government fails to comply

with § 1168, the statute “precludes discharge” of a

servicemember.   United States v. Hart, __ M.J. __ (11) (C.A.A.F.

2008).   Under the majority opinion’s interpretation of § 1168,

the effective date of separation set forth in a discharge

document, such as a DD-214, must be disregarded if personnel in



                                   5
United States v. Hart, No. 07-0247/AF


the finance office have overlooked or failed to make sufficient

progress in calculating a departing servicemember’s pay at the

time of separation.   Similarly, under the majority opinion’s

approach, if military authorities provide a person with a DD-214

and inform that person on the effective date that the individual

is no longer on active duty, those actions have no effect on the

member’s military status.   Despite the effective date provided

in the discharge document, the person would remain on active

duty until an uncertain future time, the date on which his or

her “final pay or a substantial part of that pay” becomes “ready

for delivery.”

     The majority opinion would eliminate the ability of

servicemembers and the government to rely on the certainty

provided by the effective date set forth in a discharge

document.   The effective date of discharge is critical to the

termination of a person’s entitlement to pay, allowances, and

costly military benefits, such as medical care.   In addition,

the effective date is critical to a person’s availability to

military orders, including deployment.   Recipients of a DD-214

who had returned to civilian life could be ordered to active

duty on the theory that they had never been “effectively

discharged” from the armed forces.   Hart, __ M.J. at __ (12).




                                 6
United States v. Hart, No. 07-0247/AF


Pay administration and corrective action

     Military justice jurisdiction, while important, pales in

significance to the other aspects of military life to which the

distinction between military and civilian status is crucial.

The majority opinion would remove the certainty of an effective

date on the DD-214, which has spawned relatively little

litigation, and replace it with the necessity of determining on

a case-by-case basis the date on which an individual’s pay was

“ready for delivery.”   This uncertainty is further magnified by

the fact that each year, the Defense Finance and Accounting

Service (DFAS) must accomplish millions of actions involving

basic pay, a complex array of allowances, travel reimbursements,

and a host of other unrelated financial transactions.     See

Defense Finance and Accounting Service,

http://www.dfas.mil/about.html (last visited May 7, 2008).

Although DFAS undoubtedly endeavors to accomplish these myriad

tasks in a timely fashion, there is a significant potential for

delays and mistakes, as reflected in the lengthy record of the

finance proceedings set forth in the present case.   Under the

interpretation of § 1168 set forth in the majority opinion, an

administrative deficiency in the computation of a member’s final

pay will render the discharge ineffective.   Aside from

disrupting a member’s transition to civilian life, such an

interpretation carries the potential for extensive litigation


                                 7
United States v. Hart, No. 07-0247/AF


about military pay and benefits, with the possibility of

significant costs to the government.

     Section 1168 does not require such a result.   If the

government fails in its obligation to provide a departing

servicemember with an important benefit for transition to

civilian life, the error may be remedied by completing the

required paperwork and making the requisite payment to the

servicemember.   If the result is not satisfactory, the member

can apply to the Board for Correction of Military Records, see

10 U.S.C. § 1552 (2000), or seek relief before the United States

Court of Federal Claims, see 28 U.S.C. § 1491 (2000).

     Section 1168 does not contemplate, much less require, that

the government inform the individual that the discharge is

invalid, that the individual abandon civilian employment and the

other attributes of civilian life, or that failure to repair to

duty post-haste will constitute a violation of the UCMJ.     See

United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985)

(describing the purpose and effect of § 1168); Hamon v. United

States, 10 Cl. Ct. 681, 683 (1986) (noting that the plain

language of § 1168 and its legislative history “indicate concern

not with actual receipt of discharge documents but rather with

facilitating veterans’ return to civilian life”); In re

Shattuck, 63 Comp. Gen. 251, 252 (1984) (failure to have a




                                 8
United States v. Hart, No. 07-0247/AF


member’s final pay ready for delivery did not invalidate an

otherwise proper discharge).


Section 1168 and jurisdiction

     To the extent that our Court has cited § 1168 in

jurisdictional cases, we have done so where the unsettled state

of the record requires consideration of multiple factors in

determining whether an individual remained in military status.

United States v. King, 27 M.J. 327, 328 (C.M.A. 1989), for

example, involved a servicemember who requested an early

discharge for purposes of reenlistment.    At the reenlistment

ceremony, King was given a discharge certificate.    Id.   Upon the

suggestion that he was now a civilian, King refused to complete

the reenlistment ceremony, retrieved his personal effects, and

departed.   Id.   Our Court had no trouble concluding that an

early discharge for purposes of reenlistment does not return a

servicemember to civilian status.     See id. at 328-29 (citing

United States v. Clardy, 13 M.J. 308 (C.M.A. 1982); United

States v. Johnson, 6 C.M.A. 320, 20 C.M.R. 36 (1955)).     We cited

10 U.S.C. § 1168(a) and the related provisions of 10 U.S.C. §

1169 as “generally requiring” the following steps to accomplish

an early discharge:   (1) delivery of a valid discharge

certificate; (2) a final accounting of pay; and (3) completion

of an administrative clearing process.    Id. at 329 (observing



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United States v. Hart, No. 07-0247/AF

that there was no evidence of any accounting of pay under the

facts of the case).   In noting that the discharge statutes

“generally” require three steps, the opinion sought to describe

the general practice applicable in most instances, rather than

set forth an absolute rule.   See id.; see also Merriam-Webster’s

Collegiate Dictionary 485 (10th ed. 1998) (defining “generally”

to include “usually” and “in disregard of specific instances and

with regard to an overall picture”).

     The present appeal does not involve any of the past

circumstances in which the delivery of a discharge certificate

failed to terminate military status, such as fraudulent

procurement of a discharge, Wickham v. Hall, 12 M.J. 145, 150

(C.M.A. 1981); apprehension for fraudulent amendment of

discharge orders prior to separation, United States v. King, 42

M.J. 79, 80 (C.A.A.F. 1995); continuous military service in the

event of a discharge for purposes of reenlistment, King, 27 M.J.

at 328; delivery of a discharge certificate before the time of

day on which the discharge became effective, United States v.

Melanson, 53 M.J. 1, 4 (C.A.A.F. 2000); or placement of a legal

hold prior to the time of day on which the discharge became

effective, United States v. Harmon, 63 M.J. 98, 103 (C.A.A.F.

2006).

     Instead, we have a case in which the discharge was ordered

at the highest level within the military department, the


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United States v. Hart, No. 07-0247/AF

servicemember cooperated in the separation process with no

allegation of fraud on his part, the local command did not place

a legal hold on the servicemember, the local command issued a

discharge certificate to the servicemember, and the command did

not seek to revoke the discharge until several days after the

certificate was issued.   Under these circumstances, Hart’s

military status terminated on the date that the command

delivered the discharge certificate to him.   See Howard, 20 M.J.

at 354 (citing United States v. Scott, 11 C.M.A. 646, 648, 29

C.M.R. 462, 464 (1960); William Winthrop, Military Law and

Precedents 548 (2d ed. 1920 reprint)).   As a result, the

military judge erred when he rejected the defense motion to

dismiss the charges for lack of personal jurisdiction.




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