CORRECTED COPY 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, SCHASBERGER, and LEVIN1

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, JA2

 (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 

2 

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 previouslyissued 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. 
BANKS—ARMY 20170261 

3 

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 
BANKS—ARMY 20170261 

4 

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. 
BANKS—ARMY 20170261 

5 

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 COURT: 

JOHN P. TAITT 

 

3

 This court added that, “Mr. Christensen had every reason to believe he received a 

valid discharge; appellant did not.” Id. at *14. 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: