                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                     Keith R. BREVARD, Sr., Sergeant
                           U.S. Army, Appellant

                                    No. 03-6002
                           Crim. App. No. 20020711

       United States Court of Appeals for the Armed Forces

                           Argued February 4, 2003

                            Decided March 5, 2003

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.


                                       Counsel

For Appellant: Captain Fansu Ku (argued); Colonel Robert D.
    Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
    David Court, Esquire (on brief); Major Jeanette K. Stone.

For Appellee: Captain Mark A. Visger (argued); Lieutenant
    Colonel Lauren B. Leeker and Lieutenant Colonel Paul H.
    Turney (on brief).



Military Judges:      Donna L. Wilkins and Stephen R. Henley




        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Brevard, No. 03-6002/AR




   Judge EFFRON delivered the opinion of the Court.

   Charges against Appellant have been referred to two separate

courts-martial.   The first court-martial, which has been abated,

involves charges that Appellant committed a variety of offenses

against persons, property, and military authority.    The second

court-martial, which is the subject of the present appeal,

involves a separate charge of fraudulent separation, in

violation of Article 83, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 883 (2002).   The military judge

at Appellant’s second court-martial dismissed the charge of

fraudulent separation on the grounds that the Government had

violated Appellant’s right to a speedy trial under Article 10,

UCMJ, 10 U.S.C. § 810 (2002).   Upon appeal by the Government

under Article 62, UCMJ, 10 U.S.C. § 862 (2002), the Army Court

of Criminal Appeals reversed the military judge’s ruling

dismissing the fraudulent separation charge, thereby allowing

the second court-martial to proceed.   We granted Appellant’s

petition for review and hold that the military judge erred in

ruling that there was a speedy trial violation.   Accordingly,

the record of trial is returned to the military judge so that

Appellant’s second court-martial may proceed on the charge of

fraudulent separation.




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                            I.   BACKGROUND

               A.     Appellant's First Court-Martial

     On February 13, 2002, Appellant was arraigned at a general

court-martial on charges alleging desertion, disobeying a lawful

order from his superior commissioned officer, damage to military

property, larceny, assault on a noncommissioned officer,

obstruction of justice, and false swearing, in violation of

Articles 85, 90, 108, 121, 128, and 134, UCMJ, 10 U.S.C. §§ 885,

890, 908, 921, 928, 934 (2002).     Judge Donna Wilkins presided.

Before entering pleas, the defense moved to dismiss all charges,

contending that the court-martial did not have personal

jurisdiction over Appellant because he had been discharged from

the Army on August 11, 2001.     See Article 2(a)(1), UCMJ, 10

U.S.C. § 802(a)(1).    Citing United States v. Melanson, 53 M.J. 1

(C.A.A.F. 2000), the Government responded that Appellant had not

received a lawful discharge because he had not received his

discharge certificate, he had not received a final accounting of

his final pay, and he had not completed the required

administrative clearing process.

     After extensive litigation of the jurisdictional issue, the

military judge ruled by a preponderance of the evidence that

Appellant had been discharged upon expiration of his term of

service when Appellant successfully made fraudulent



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representations to separation officials that enabled him to

overcome steps that had been taken by his command to prevent his

discharge.   In light of evidence that the discharge had been

obtained by fraud and upon consideration of applicable

legislation, she further ruled that the Government could not

proceed on the charges pending before that court-martial unless

the Government obtained a conviction for fraudulent separation.

See Article 3(b), UCMJ, 10 U.S.C. § 803(b) (2002); United States

v. Reid, 46 M.J. 236 (C.A.A.F. 1997).

     The military judge then abated the proceedings.   Trial

counsel and the military judge agreed on the record that the

Government had three options at that point: (1) request

reconsideration of the military judge's ruling, (2) appeal that

ruling to the Court of Criminal Appeals under Article 62, or (3)

endeavor to convict Appellant of fraudulent separation as a

predicate to proceeding on the abated charges.   The military

judge added that she would reconvene the court-martial at a

future date to assess actions taken in response to her ruling.

She explained, "That way I keep track of this case and it's not

sitting out there."

     The Government did not seek reconsideration of the military

judge’s ruling, nor did it perfect an appeal of that ruling

under Article 62.   Although the Government began the appeal

process by filing a timely written notice of appeal, the


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Government's Appellate Division "elect[ed] not to appeal" after

the Government "fail[ed] to timely file all necessary

documentation" in the Court of Criminal Appeals.    United States

v. Brevard, 57 M.J. 789, 792 (A. Ct. Crim. App. 2002).


               B.   Appellant's Second Court-Martial

     On April 1, 2002, a charge of fraudulent separation in

violation of Article 83 was preferred against Appellant.    On May

15, that charge was referred to a court-martial, Appellant’s

second court-martial.   The fraudulent separation charge was the

sole charge referred to the second court-martial.

     The military judge assigned to Appellant’s second court-

martial was Judge Wilkins, the same military judge who presided

at the first court-martial.   Appellant was arraigned before the

second court-martial on May 23, 2002.   In the course of

explaining Appellant’s rights to counsel, Judge Wilkins referred

to the first court-martial, emphasizing that the second court-

martial for fraudulent separation was “a new and separate

trial."   While indicating confidence that it was appropriate for

her to preside over Appellant’s arraignment, she added that,

following arraignment, she would arrange for transfer of the

responsibility for the case to a different military judge.

     Appellant’s second court-martial resumed on June 10, with

Judge Henley presiding.   After Appellant moved to dismiss the



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fraudulent separation charge based on lack of speedy trial, the

parties presented evidence, and the military judge took the

matter under advisement.

     When the session pursuant to Article 39(a), UCMJ, 10 U.S.C.

§§ 839(a)(2002), reconvened on July 3, the military judge ruled

that Appellant's speedy trial rights under Article 10 had been

violated, and he dismissed the fraudulent separation charge with

prejudice.   According to the military judge, the Government’s

decision to proceed on the larceny-related charges rather than

on fraudulent separation at Appellant’s first court-martial “was

based on a grossly negligent and unreasonable interpretation of

both the undisputed facts and the existing case law,” and the

Government “could have proceeded to trial on the fraudulent

separation charge much sooner than 1 April 2002 but negligently

chose not to do so."


     C.   The Government Appeal of the Speedy Trial Ruling at
                  Appellant's Second Court-Martial

     The Government filed a timely appeal under Article 62 of

the military judge’s dismissal of the fraudulent separation

charge at Appellant’s second court-martial.   The Court of

Criminal Appeals reversed the dismissal of the charge, holding

that the military judge erred in concluding that the Government

was grossly negligent and unreasonable in not proceeding first

on the fraudulent separation charge.   Brevard, 57 M.J. at 794.


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United States v. Brevard, No. 03-6002/AR



                          II.   DISCUSSION

   A.   Review of the Speedy Trial Ruling at Appellant's Second
                           Court-Martial

     In Appellant’s first court-martial, the military judge made

a jurisdictional ruling that Appellant had been discharged, and

the Government did not appeal or seek reconsideration of that

ruling.   The question of whether Appellant was discharged as a

matter of law or fact is not the subject of the present appeal,

which addresses the validity of the military judge’s speedy

trial ruling in Appellant’s second court-martial.     The issue

before us is whether the Government, in not first proceeding

against Appellant on the fraudulent separation charge, failed to

act with reasonable diligence for speedy trial purposes.     See

United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003).

     Although the present case does not call upon us to review

the validity of the military judge’s ruling as to Appellant’s

discharge in the first trial, it is appropriate for us to look

at the facts concerning the discharge issue in the first trial

to determine whether the Government was reasonably diligent in

the manner in which it chose to proceed.     Under these

circumstances, we may consider whether the Government had a

reasonable, good faith belief that Appellant had not been

lawfully or fraudulently discharged when it decided to proceed




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United States v. Brevard, No. 03-6002/AR


initially on the underlying charges rather than on the issue of

fraudulent separation.

     In Melanson, this Court stated that one of the conditions

precedent to a lawful discharge is that "the member's final pay

or a substantial part of that pay is ready for delivery to the

member.”    53 M.J. at 2 (citations and internal quotations

omitted).    In that regard, we note the following facts from the

record of trial in Appellant’s first court-martial, as outlined

by the court below:

     [T]he installation-level Finance personnel computed an
     estimate of [Appellant’s] final pay on a Separations
     Worksheet and reviewed the results with him . . . .

          On 16 August 2001, [Appellant] failed to appear
     at his Article 32, UCMJ, hearing [on the original
     charges]. Later that day, at trial counsel's request,
     the Finance commander directed no further processing
     of [Appellant’s] final pay. Installation-level
     Finance had not yet conducted their required computer
     check with the Department of Defense Finance and
     Accounting Service (DFAS) to determine if [Appellant]
     owed money to the government. Moreover, the
     installation-level Finance auditor had not yet
     conducted the final audit before payment of 80% of
     [Appellant’s] pay. An authorizing official at
     installation-level did not approve any payments to
     [Appellant], and no money was, in fact, transferred or
     deposited into [Appellant’s] bank account until after
     he returned to military control.

Id. at 791 (footnote omitted).

     We need not reach the question in the present appeal of

whether Appellant was lawfully or fraudulently discharged.

Likewise, we need not decide whether, or in what manner,



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United States v. Brevard, No. 03-6002/AR


Melanson might apply to the present case.   The facts outlined by

the court below demonstrate that the Government had a

reasonable, good faith basis, in light of Melanson, for

proceeding on the basis that Appellant had not been discharged.

Under these circumstances, the Government did not violate its

reasonable diligence responsibilities when it decided to proceed

against Appellant in the first trial without initially obtaining

a fraudulent separation conviction.   Accordingly, the military

judge in Appellant’s second court-martial erred in dismissing

the fraudulent separation charge for a speedy trial violation.


             B. Status of the Pending Courts-Martial

     Appellant’s second court-martial may proceed on the charge

of fraudulent separation, the only charge pending before that

court-martial.   That court does not have jurisdiction over

Appellant’s first court-martial, a distinct legal proceeding.

Accordingly, we do not agree with the suggestion by the Court of

Criminal Appeals, 57 M.J. at 794 n.15, that the military judge

in the second case may take action with respect to the charges

pending in the first trial.

     The posture of Appellant’s first court-martial is that the

trial on the merits stands abated -- a posture from which the

Government did not seek recourse either through a motion for

reconsideration or through an interlocutory appeal under Article



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United States v. Brevard, No. 03-6002/AR


62.   Although it was appropriate for the Court of Criminal

Appeals to consider matters from the first trial for the limited

purpose of reviewing the speedy trial ruling in the second

trial, the Court of Criminal Appeals in an appeal from a ruling

at Appellant’s second court-martial did not have jurisdiction

over Appellant’s first court-martial -- a separate trial.     See

Article 62(a)(1).

      We express no opinion as to the validity of the rulings

made in that first court-martial, in which the trial on the

merits remains abated.   In ruling on the question of law as to

whether the court-martial had jurisdiction over Appellant, the

military judge at Appellant’s first court-martial determined by

a preponderance of the evidence that Appellant had been

discharged.   Whether Appellant committed the offense of

procuring a fraudulent separation is a matter that must be

proved beyond a reasonable doubt at Appellant's second court-

martial.   See Manual for Courts-Martial, United States (2002

ed.), Part IV, para. 7.b(2).     The issue of what, if any, action

may be taken with respect to the charges in the first court-

martial is not before this Court in the present appeal.



                          III.    DECISION

      The decision of the United States Army Court of Criminal

Appeals, which reversed the military judge’s dismissal of the


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United States v. Brevard, No. 03-6002/AR


fraudulent separation charge, is affirmed.   The record of trial

of Appellant’s second court-martial is returned to the Judge

Advocate General of the Army for remand to the court-martial.

Appellant’s second court-martial may proceed on the fraudulent

separation charge in a manner not inconsistent with this

opinion.




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