                                  CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, SCHASBERGER, and LEVIN 1
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                             Sergeant TONY E. BANKS
                            United States Army, Appellant

                                    ARMY 20170261

                               Headquarters, Fort Carson
                           Tiernan P. Dolan, Military Judge
                     Colonel Gregg A. Engler, Staff Judge Advocate


For Appellant: William E. Cassara, Esquire (argued); Captain Zachary A. Gray, JA;
William E. Cassara, Esquire (on brief).

For Appellee: Captain Lauryn D. Carr, JA 2 (argued); Colonel Steven P. Haight, JA;
Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watford, JA; Captain Brian
Jones, JA (on brief).


                                       31 July 2019

                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

LEVIN, Judge:

       Appellant raises three assignments of error, one of which merits discussion
but no relief. In that one claim that is relevant for our purposes, appellant contends
that the court-martial lacked personal jurisdiction over him because he possessed a
valid Department of Defense Form 214 [DD 214], had cleared the installation, and
that a substantial part of his pay was ready for delivery prior to the revocation of his
discharge orders. For the reasons that follow, we hold otherwise.


1
    Judge Levin decided this case while on active duty.
2
    Corrected
BANKS—ARMY 20170261

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 [UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for seven years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved only so much of the sentence as provided for a
dishonorable discharge, confinement for seven years, and reduction to the grade of
E-1. Appellant’s case is before us under Article 66, UCMJ.

                                   BACKGROUND

       On 30 November 2014, appellant sexually assaulted KP. The next day, KP
filed a report with the Colorado Springs Police Department.

       On 23 May 2016, appellant’s chain of command amended his previously-
issued flag from a Law Enforcement Code to an Administrative Separation Code.
On 21 July 2016, the Installation Management Command, Headquarters, United
States Army Garrison, Fort Carson, Colorado issued orders for appellant to be
assigned to the transition point for release from active duty on 23 August 2016.

      On 16 August 2016, appellant’s battalion commander signed a memorandum
extending appellant for “up to thirty (30) days beyond his ETS date.” On 17 August
2016, appellant’s First Sergeant advised appellant of the imposition of the Adverse
Action flag. On 18 August 2016, the battalion commander’s memorandum was
provided to appellant as well as the Brigade Retention Office. On or about 18
August 2016, appellant’s ETS date was changed in the personnel system from 23
August 2016 to 23 September 2016.

       Notwithstanding notice of the Adverse Action flag and his receipt of the
battalion commander’s memorandum, appellant completed the clearing procedures
for the installation by 23 August 2016. On that same day, the Fort Carson Transition
Center provided appellant with a signed copy of his DD 214. On 24 August 2016,
no later than 1009, the Installation Management Command issued orders revoking
the 21 July 2016 orders. The Fort Carson Defense Military Pay Office [DMPO]
calculated the pay due to appellant and sent those calculations to the Defense
Finance and Accounting Service [DFAS] for payment processing no earlier than 24
August 2016, at 1347. Appellant was tried and convicted in April 2017.

       Appellant moved to dismiss the charges against him for lack of personal
jurisdiction. The military judge ruled against appellant, finding that appellant had
never received either a valid discharge certificate or a final accounting of pay.
Because we agree that he did not receive a final accounting of pay ready for
delivery, we need not decide whether appellant received a valid DD 214.




                                           2
BANKS—ARMY 20170261

                              LAW AND DISCUSSION

       Appellate courts review issues of personal jurisdiction de novo, accepting a
military judge’s findings of fact unless they are clearly erroneous or unsupported by
the record. United States v. Christiansen, 78 M.J. 1, 4 (C.A.A.F. 2018).

       The UCMJ is a legal code of limited application. An individual is only
subject to jurisdiction under the UCMJ if that individual falls into one of several
specific categories set out in the code. One of these categories states: “Members of
a regular component of the armed forces, including those awaiting discharge after
expiration of their terms of enlistment . . . .” UCMJ, art. 2(a)(1).

       In cases where jurisdiction is asserted under Article 2(a)(1), the military
justice system loses personal jurisdiction over a servicemember upon that
servicemember’s discharge from the military. United States v. Hart, 66 M.J. 273,
275 (C.A.A.F. 2008). However, “the UCMJ does not state when a servicemember’s
discharge from the armed forces becomes effective for jurisdictional purposes, and
thus does not specifically address when a servicemember is no longer subject to
being court-martialed.” Christiansen, 78 M.J. at 4.

       Without controlling law within the UCMJ, our superior court has looked to 10
U.S.C. §§ 1168-69 for guidance on the effective time and date of discharge. Id.
(citing Hart, 66 M.J. at 275). Our superior court “has identified three criteria to
consider when determining whether a servicemember’s discharge has been finalized
for jurisdictional purposes: (1) the delivery of a [DD 214]; (2) a ‘final accounting of
pay;’ and (3) the completion of the ‘clearing’ process that is required under service
regulations.” Id. (citing Hart, 66 M.J. at 276-79).

       Even if a servicemember has not satisfied all three of the criteria from Hart,
he or she may nevertheless be discharged if concluding otherwise would “go against
reason or policy.” United States v. Nettles, 74 M.J. 289, 292 (C.A.A.F. 2015).

       Under the law discussed above, the test for whether a service member has
been discharged—at least for jurisdictional purposes—can be summarized as
follows: If a servicemember has received his DD 214, final accounting of pay, and
has completed clearing, that servicemember is discharged. If any of these three
requirements is not met, the servicemember is nevertheless considered discharged if
reason and policy require a finding of discharge based on the totality of the
circumstances. See Christiansen, 78 M.J. at 5 n.6.

       Appellant argues that he was discharged from the Army after he cleared the
installation, received his DD 214, and a substantial part of his pay was ready for
delivery. We disagree. Appellant’s final accounting of pay was not ready for
delivery before his discharge orders had been revoked. While this deficiency would



                                           3
BANKS—ARMY 20170261

not necessarily be fatal to appellant’s claim if reason and policy weighed in his
favor, they do not. We will discuss each issue in turn.

                 A. Appellant Did Not Receive Final Accounting of Pay

      The third criterion for a valid discharge under Hart is “a final accounting of
pay.” Christiansen, 78 M.J. at 4. During the motions hearing, the former Chief of
Transitions at Fort Carson, Colorado, testified that appellant’s DD 214 had been
revoked on 24 August 2016 at 1007. The Deputy Director for Military Pay at Fort
Carson, Colorado, testified that there was no final accounting of pay prior to the
revocation of appellant’s discharge orders. Based on this testimony, the military
judge found as a matter of law that the pay was not ready for delivery at the time
appellant’s orders were revoked. We agree and find that even if appellant’s DD 214
was valid, he had not received a final accounting of pay ready for delivery and thus
did not satisfy the third Hart criterion.

      B. Reason and Policy Weigh Against Finding Appellant was Discharged

       Even if a servicemember has not satisfied all three requirements for a valid
discharge under Hart, he or she may still be discharged if so required by reason and
policy. Christiansen, 78 M.J. at 4.

       In United States v. Majstorovic, ARMY 20180045, 2019 CCA LEXIS 291
(Army Ct. Crim. App. 21 Jun. 2019) (mem. op.), this court conducted a “reason and
policy” analysis related to personal jurisdiction. As the central part of its analysis,
this court noted the stark contrast with the facts of Christensen:

             For example, in Christiansen, the accused had not
             received his final accounting of pay at the time he was
             taken into military custody approximately four months
             after he received his DD 214. Nevertheless, our superior
             court found that, under the totality of the circumstances,
             he was discharged prior to the preferral of charges against
             him and his subsequent court-martial. As a result, the
             military had no jurisdiction over him; he was no longer a
             servicemember—he was Mr. Christiansen. This case is
             entirely different.

             ....

             Under the totality of these circumstances, neither reason
             nor policy favor a conclusion that appellant was
             discharged prior to his conviction at court-martial.




                                           4
BANKS—ARMY 20170261

Majstorovic, 2019 CCA LEXIS 291 at *14-15. 3

        We reach a similar conclusion to Majstorovic in this case. Notably, Mr.
Christiansen was administratively separated by his unit and a unit representative told
him that he was out of the Army. By contrast, appellant’s unit initiated an Adverse
Action flag against him and specifically counseled appellant that he would be
staying in the Army beyond his initial ETS date. In sum, under the specific facts
and circumstances of this case, we conclude that “neither reason nor policy favor a
conclusion that appellant was discharged prior to his conviction at court-martial.”
Id. at *15.

                                   CONCLUSION

      Based on reason, policy, and the Hart criteria, the court-martial did not lack
personal jurisdiction over appellant.

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                                          FOR THE
                                          FOR THE COURT:
                                                  COURT:



                                          JOHN P. TAITT
                                          JOHN Clerk
                                          Acting P. TAITT
                                                     of Court




3
 This court added that, “Mr. Christensen had every reason to believe he received a
valid discharge; appellant did not.” Id. at *14.



                                          5
