          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                             Airman Basic FRANKLIN G.U. CRUZ
                                   United States Air Force

                                           ACM 38296 (rem)

                                           10 December 2015

         Sentence adjudged 20 December 2012 by GCM convened at Andersen Air
         Force Base, Guam. Military Judge: Gregory O. Friedland.

         Approved Sentence:           Bad-conduct discharge and confinement for 18
         months.

         Appellate Counsel for Appellant: Major Nicholas D. Carter and Major
         Isaac C. Kennen.

         Appellate Counsel for the United States: Major Daniel J. Breen; Major
         Roberto Ramirez; and Gerald R. Bruce, Esquire.

                                                  Before

                                 ALLRED, HECKER, and TELLER
                                    Appellate Military Judges

                                     OPINION OF THE COURT
                                         UPON REMAND

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Senior Judge:

       A military judge sitting at a general court-martial convicted Appellant, pursuant to
his pleas, of desertion, fleeing apprehension, resisting apprehension, use of
methamphetamine, assault, child endangerment, and reckless endangerment, in violation
of Articles 85, 95, 112a, 128, and 134, UCMJ, 10 U.S.C. §§ 885, 895, 912a, 928, 934. A
panel of officer and enlisted members sentenced him to confinement for 3 years and a
bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority
lowered the confinement to 18 months and approved the remainder of the sentence as
adjudged.

        During his initial appeal to this court, Appellant argued his record of trial was not
substantially verbatim and therefore not reviewable due to its limited discussion of an
out-of-court interaction between trial defense counsel and a panel member. Finding no
error that materially prejudiced a substantial right of Appellant, we affirmed the approved
findings and sentence on 24 July 2014.

       On appeal to our superior court, Appellant, pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), raised two issues for the first time: (1) whether the military
judge erred in finding personal jurisdiction over Appellant and (2) whether Appellant’s
Fifth Amendment1 due process rights were violated. On 10 December 2014, our superior
court granted review of these issues, set aside our 24 July 2014 decision and remanded
the record of trial to us for a new review and consideration of these issues under Article
66(c), UCMJ. United States v. Cruz, 74 M.J. 175 (C.A.A.F. 2014).

       Having considered the issue of personal jurisdiction over Appellant and his
assertions that the Government violated his rights under the Fifth Amendment, and, again
having reviewed the entire record, we find no error materially prejudicial to the
substantial rights of Appellant and affirm the approved findings and sentence.

                                        Background

        This case involves Appellant’s second court-martial. Appellant’s personal
jurisdictional argument stems from the interplay between his two courts-martial and his
term of service, and he claims his second court-martial was without jurisdiction to try
him because it occurred after his enlistment ended.

       Appellant’s first court-martial involved allegations of drug use. In July 2011,
Appellant (then a staff sergeant) failed to provide a urine sample for inspection testing
and his commander suspected Appellant had used methamphetamine. Charges regarding
these allegations were preferred on 12 September 2011. The charge sheet reflected that
Appellant entered a four-year term of service on 28 September 2007, which thus made
his Expiration of Term of Service (ETS) approximately 27 September 2011.

       The trial defense counsel did not raise a jurisdictional issue at the April 2012
court-martial prior to the findings and sentence being announced and no discussion
occurred regarding the state of Appellant’s enlistment. At that litigated trial before a
military judge, Appellant was convicted of using methamphetamine but acquitted of



1
    U.S. CONST. amend V.



                                              2                               ACM 38296 (rem)
disobeying the order to provide a sample. He was sentenced to a bad-conduct discharge,
45 days of confinement, and reduction to E-1.

       Between June and July 2012, the Government lost all the exhibits from
Appellant’s court-martial. After the Government was unable to reconstruct some of the
exhibits, the military judge held two post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a),
sessions in October 2012 where, among other motions, the military judge for the first
time considered, and denied, a defense motion to dismiss Appellant’s conviction based on
a lack of personal jurisdiction.

       This defense jurisdictional motion arose after an incident occurred on 27
September 2012 that ultimately led to Appellant’s second court-martial. Appellant had
been released from confinement from his first court-martial in late May 2012 and initially
was informed by his first sergeant that he was on appellate leave and thus did not need to
report to work. He therefore returned to his home in the local area. In early September
2012, however, Appellant’s first sergeant informed him that he needed to return to duty.
After Appellant stopped reporting to work after several days, his unit officially
designated him a deserter. The following day, gate guards attempted to stop Appellant
from leaving base. He responded by driving his vehicle into concrete barriers and
injuring two guards. Appellant fled from law enforcement but ultimately was
apprehended. This incident led to Appellant’s second court-martial.

        Appellant’s trial defense counsel learned certain information about Appellant’s
military status during a pretrial confinement hearing following this incident, which then
led the trial defense counsel to contend Appellant had actually not been subject to the
jurisdiction of his first court-martial. Following an evidentiary hearing, the military
judge denied the defense motion on 22 October 2012, concluding jurisdiction over
Appellant had attached when the initial charges were preferred on 12 September 2011
and that he remained subject to jurisdiction because his ETS had thereafter been extended
and he had not received a discharge certificate or final accounting of pay.

       On the same day as the military judge’s ruling, charges were preferred regarding
the 27 September 2012 incident and related offenses. The court-martial for these charges
took place on 18–20 December 2012. Meanwhile, on 14 December 2012, the lack of a
complete record of trial had led the convening authority to disapprove the bad-conduct
discharge that had been adjudged at the first court-martial.

        Prior to entering pleas at his second court-martial before a new military judge,
Appellant again raised a motion to dismiss the charges based on lack of personal
jurisdiction. The military judge denied the motion, finding Appellant’s ETS had been
adjusted to 27 January 2013 and that he had not been outprocessed or issued separation
orders. Appellant then pled guilty to desertion, fleeing and resisting apprehension, using
methamphetamine, assault, child endangerment, and reckless endangerment.



                                             3                             ACM 38296 (rem)
        During his initial appeal to this court, Appellant did not raise the jurisdictional
issue. His case has now been returned to this court to address whether the military judge
at the second court-martial abused his discretion when he ruled there was personal
jurisdiction over Appellant and whether Appellant’s Fifth Amendment due process rights
were violated when he was not discharged at the expiration of his ETS.2

                                                   Jurisdiction

       We review questions of jurisdiction de novo. United States v. Kuemmerle, 67 M.J.
141, 143 (C.A.A.F. 2009). “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.” United
States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v. Melanson, 53
M.J. 1, 2 (C.A.A.F. 2000)).

       Military jurisdiction over a person continues as long as military status exists.
United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006); Solorio v. United States, 483
U.S. 435, 439 (1987) (stating that jurisdiction of a court-martial depends solely on the
accused’s status as a member of the armed forces). “It is black letter law that in
personam jurisdiction over a military person is lost upon his discharge from the service,
absent some saving circumstance or statutory authorization.” United States v. Howard,
20 M.J. 353, 354 (C.M.A. 1985).

       The mere expiration of a period of enlistment, however, does not automatically
equate to a discharge or alter an individual’s status under the UCMJ. United States v.
Hutchins, 4 M.J. 190, 191 (C.M.A. 1978). Instead, an ETS discharge is effectuated when
there has been delivery of a valid discharge certificate and a final accounting of pay.
Webb v. United States, 67 M.J. 765, 771 (A.F. Ct. Crim. App. 2009); see also 10 U.S.C. §
1168(a) (“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.”); Air Force Instruction (AFI) 36-3208, Administrative
Separation of Airmen, ¶ 2.1.1 (9 July 2004) (incorporating changes through 23 June
2015) (“[S]eparation [of Airmen on date of ETS] is not automatic. They are members of
the Air Force until they are separated by administrative action.”).

       Furthermore, if an individual commits an offense before his official discharge and
the military initiates “action with a view to trial,” court-martial jurisdiction attaches and
the individual may thereafter be retained in the service “for all purposes of trial, sentence,
and punishment, notwithstanding the expiration of that person’s term of service.” Rule
for Courts-Martial (R.C.M.) 202(c)(1); R.C.M. 202(c)(1), Discussion (“Once court-
martial jurisdiction attaches, it continues throughout the trial and appellate process, and

2
    On remand, these issues were not raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).



                                                           4                                      ACM 38296 (rem)
for purposes of punishment.”) Such an individual “may be held on active duty over
objection pending disposition of any offense for which held and shall remain subject to
the [UCMJ] during the entire period.” R.C.M. 202(c)(1); see also Smith v. Vanderbush,
47 M.J. 56, 57–58 (C.A.A.F. 1997) (holding the military’s “authority to retain
servicemembers past their period of obligated service for purposes of trial by court-
martial is a longstanding feature of military law” and a member does not have an
unconditional right to be discharged upon his ETS); Article 2(a)(1), UCMJ, 10 U.S.C. §
802(a)(1) (stating the armed forces have jurisdiction over military personnel “awaiting
discharge after expiration of their terms of enlistment.”)

       The military judge at Appellant’s first court-martial found UCMJ jurisdiction
attached on 12 September 2011 when the original charges were preferred. At that point,
Appellant was still within his enlistment period, which was due to expire on 27
September 2011. Therefore, pursuant to R.C.M. 202(c)(1), court-martial jurisdiction
attached at preferral and Appellant could then be retained in the Air Force past his
upcoming ETS, and through his April 2012 trial and the convening authority’s 14
December 2012 action in the case.3 See R.C.M. 202(c)(2) (“Actions by which court-
martial jurisdiction attaches include . . . preferral of charges.”); United States v. Davis, 63
M.J. 171, 177 (C.A.A.F. 2006) (“Upon trial and conviction, and a sentence subject to
appellate review approved by the convening authority, jurisdiction over [the accused is]
fixed for purposes of appeal . . . .”). Once those charges were preferred, Appellant could
not be administratively discharged until the UCMJ action was complete. See AFI 36-
3208, ¶ 1.9.

       In order for such a retained member to receive pay after his original ETS has
passed, the Air Force adjusts the member’s ETS/date of separation (DOS) when
requested to do so by the staff judge advocate. The Government’s disjointed efforts to
accomplish these adjustments created the issue raised by Appellant during this appeal.4

3
  On 21 May 2015, Appellant filed a petition for extraordinary relief with this court in relation to certain alleged
defects in his first trial. Because his first trial did not result in an approved sentence of a punitive discharge or
confinement for a year or more, and the case was not referred to this court by the Judge Advocate General pursuant
to Article 69(d)(2), UCMJ, we lacked jurisdiction to hear his petition. See United States v. Arness, 74 M.J. 441, 443
(C.A.A.F. 2015).
4
  There is no paperwork indicating how Appellant’s Expiration of Term of Service (ETS) was initially moved from
27 September 2011. Then, on 22 February 2012, the staff judge advocate sent a memorandum to the Air Force
Personnel Center (AFPC), requesting an involuntary extension of Appellant’s ETS for 90 days “in order to complete
the court-martial action.” Based on other information in the record, it appears this memorandum was requesting an
ETS extension through 27 April 2012. This memorandum cited to paragraph 2.4 of Air Force Instruction (AFI) 36-
3208, Administrative Separation of Airmen (9 July 2004) (incorporating changes through 23 June 2015), which
“authorizes the retention of airmen beyond ETS in anticipation of the preferring of charges.” By this point,
however, charges had already been preferred and this paragraph of the AFI was therefore inapplicable. Furthermore,
no such request was required in order to retain Appellant on active duty through his court-martial and any
subsequent punishment and/or appeal. See Rule for Courts-Martial 202(c)(1) and Discussion. On 17 and 18
September 2012, the staff judge advocate sent four memoranda to AFPC requesting retroactive involuntary
extensions on active duty. These memoranda asked for four 90-day extensions past 1 June 2012, 27 July 2012, 29
August 2012, and 17 September 2012.



                                                          5                                       ACM 38296 (rem)
Ultimately, however, these efforts are irrelevant as to whether there was personal
jurisdiction to try Appellant at his second court-martial.

       While Appellant remained subject to court-martial jurisdiction based on his first
conviction, he was released from confinement on 21 May 2012. By this time, his
ETS/DOS had been adjusted to 27 July 2012 and he continued to receive pay until that
date.5

       After he was informed by his first sergeant that he was on appellate leave and not
required to report for duty, Appellant returned to his home in the local area. By early
September 2012, the legal office became aware Appellant had not been served with
appellate leave paperwork and that he therefore should have returned to duty after he left
confinement. See AFI 51-201, ¶¶ 9.38.2, 9.38.6. Appellant was then ordered to report to
work. After working for several days, Appellant stopped showing up and was ultimately
declared a deserter. Later that month, he was involved in the incident that injured two
guards and ended in his apprehension. He was placed in pretrial confinement on that
same day.

       For this course of conduct, Appellant was charged on 22 October 2012 with
desertion, fleeing and resisting apprehension, using methamphetamine, child
endangerment, and reckless endangerment. At the time of this misconduct and when
these new charges were preferred, Appellant’s first court-martial was still not finalized
and the convening authority had not taken action in that case. Appellant was thus still
held on active duty and subject to the UCMJ pending the disposition of those charges
from his first court-martial. See R.C.M. 202(c)(1), Discussion. Appellant’s ETS/DOS
was again adjusted and his pay resumed on 30 October 2012, along with back pay for the
time since his pay stopped in July 2012.

      On 14 December 2012, the convening authority took action in Appellant’s first
court-martial, disapproving the adjudged bad-conduct discharge due to the lack of a
complete record of trial. Four days later, Appellant’s second court-martial began.

        At that trial, Appellant raised a motion to dismiss the charges based on lack of
personal jurisdiction. He contended that the Government had failed to properly extend
his ETS/DOS and that both had passed. He recognized that no discharge certificate had
been issued but argued the Government had failed to act within a reasonable time to
retain jurisdiction under R.C.M. 202(a) or (c) and thus there was no court-martial
jurisdiction over him. See R.C.M. 202(a), Discussion (“Court-martial jurisdiction
normally continues . . . until a discharge certificate . . . is delivered or until the
Government fails to act within a reasonable time after the person objects to continued
retention.”); R.C.M. 202(c)(1), Discussion (“[A] servicemember is subject to court-

5
 Due to a paperwork error, Appellant apparently continued to be paid as an E-5 throughout his time in confinement
and up until 27 July 2012.



                                                        6                                     ACM 38296 (rem)
martial jurisdiction until lawfully discharged or, when the servicemember’s term of
service has expired, the government fails to act within a reasonable time on objection by
the servicemember to continued retention.”).

      The military judge denied the defense motion, finding the Government had shown
by a preponderance of the evidence that Appellant was subject to military jurisdiction.
He found Appellant remained subject to the court-martial jurisdiction that had attached
before his first court-martial, no discharge certificate had been issued, and no final
accounting of pay had been accomplished.

       Here, the evidence is undisputed that there was never a final accounting of
Appellant’s pay and no discharge certificate was issued. We do not find the military
judge’s findings of fact to be clearly erroneous, and we agree with his conclusion of law
that the military retained continuous jurisdiction over Appellant. The disjointed actions
taken by the staff judge advocate to extend Appellant’s ETS did not create a gap in that
jurisdiction.

                                  Due Process Violation

        Appellant also contends his Fifth Amendment6 rights to due process were violated
in two ways. First, he argues that he was not provided adequate notice and an
opportunity to be heard during the steps taken by the Government to exercise personal
jurisdiction over him for his second court-martial. Second, he contends he was denied
due process because the panel in his second court-martial was informed that he had been
previously convicted at another court-martial.

       On the first issue, Appellant argues he had a constitutional liberty interest in being
discharged at his ETS and the due process clause therefore prohibits him from being
involuntarily extended for court-martial action without notice of the Government’s
intention and an opportunity to be heard. As we have found Appellant was not
unlawfully retained on active duty and had no right to be separated at his ETS, we find no
merit to this argument.

        As to the second argument, the panel at Appellant’s second court-martial was
informed about his first court-martial as part of the Government’s sentencing case.
Appellant’s due process argument is predicated on his claim that the Government’s
failure to compile a complete record of trial was a deprivation of his right to due process.
We disagree with that assertion and find no merit in his constitutional argument.




6
    U.S. CONST. amend. V.



                                              7                               ACM 38296 (rem)
                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.




             FOR THE COURT


             LEAH M. CALAHAN
             Clerk of the Court




                                             8                             ACM 38296 (rem)
