CORRECTED COPY



## UNITED STATES ARMY COUR T 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: Willia m E. Cassara, Esquir e (argued); Captain Z achary 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 Eri c K. Stafford, JA; Cap tain Jeremy Watford , JA; Captain Brian Jones, JA (on brief).

31 July 2019

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

---------------------------------

LEVIN, Judge:

Appellant raises three assignmen ts of error, one of which merit s discussion

but no relief. In tha t one claim tha t is relevant for our purp oses, appellant contends

that the court-martia l lacked personal ju risdiction over him be cause he possessed a valid Department of D efense Form 214 [DD 214] , had clea red the installation, and

that a substantia l part of his pay was ready for delivery prior to the revoca tion of his discharge orders. For the reaso ns that follow, w e hold otherwi se.

1 Judge Levin decide d this case while on active duty.

2 CorrectedBANKS—ARMY 20170261

2 An enlisted panel sitti ng as a genera l court-martial convicted appellant, contrary to his pleas, of two specifications of sexual assault in violation of Article 120, Uniform Code of Military Justi ce, 10 U.S.C. § 920 [UCMJ]. The panel sentenced appellant t o a dishonorable discharge, confinement fo r seven years, forfeiture of all pay and allowa nces, and reduct ion to the grad e of E-1. The convening authority a pproved only so much of the sentence as pr ovided for a

dishonorable dischar ge, confinement for seven years, and reduct ion to the grade of E-1. Appellant’s case is before us under Article 66, UCMJ.

BACKGROUND

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

On 23 May 2016, appellant’s chai n of command amended his previo uslyissued flag from a Law Enforcemen t Code to an Administrative Se paration Code. On 21 July 2016, the Installati on Management Command, Headquart ers, United States Army Garrison, Fort Cars on, Colorado issued orders for a ppellant to be assigned to the trans ition point for releas e from active duty o n 23 August 2016.

On 16 August 2016 , appellant’s battalion commander signed a mem orandum extending appellant for “up to th irty (30) days b eyond his ETS date.” On 17 August 2016, appellant’s First Sergeant advised appellant of the impos ition of the Adverse Action flag. On 18 A ugust 2016, the battal ion commander’s memo randum was provided to appellant a s well as the Brigad e Retention Office. On or about 18 August 2016, appellant’s ETS date w as changed in the personnel system from 23 August 2016 to 23 Se ptember 2016.

Notwithstanding notice of the Adverse Action flag and his recei pt of the

battalion commander’s memorandum , appellant completed the clear ing procedures

for the installation by 23 August 2016. On that same day, the Fort Carson Transition Center provi ded appellant wi th a signed copy of his DD 214. On 24 August 2016,

no later than 100 9, the Installation Mana gement Command issued orders revoking the 21 July 2016 order s. The Fort Carson D efense Military Pay Office [DMPO] calculated the pay due to appellant and sent those calculations to the Defense

Finance and Accounti ng Service [DFAS] for payment processing no earlier than 24 August 2016, at 1347. App ellant was tried a nd convicted in Apr il 2017.

Appellant moved to dismiss the c harges against him for lack of personal jurisdiction. The milit ary judge ruled agai nst appellant, find ing 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 nee d not decide whether app ellant received a valid DD 214.BANKS—ARMY 20170261

3 LAW AND DISCUSSION

Appellate courts review issues o f personal juris diction de novo , accepting a military judge’s findings of fact unless they are clearly erron eous or unsu pported 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 appli cation. An individual is only subject to juris diction under the UCMJ if that individual falls into one of several specific categories set out in the code. One of these categori es states: “Members of a regular component of the arme d forces, including those awaiti ng discharge after expiration of their terms of enl istment . . . .” UCMJ, art. 2( a)(1).

In cases where jurisdi ction is asserted under Article 2(a)(1), the military justice system loses p ersonal jurisdiction over a servicemember upon that

servicemembe r’s discharge from the military. United States v. Hart , 66 M.J. 273, 275 (C.A.A.F. 2008). How ever, “the UC MJ does not state when a servicemember’s discharge from the armed forces becomes effective for jurisdict ional purposes, and thus does not specifically addre ss when a servicemember is no l onger subj ect to being court-ma rtialed.” Christiansen , 78 M.J. at 4.

Without controlling law within t he UCMJ, our sup erior court has looked to 10 U.S.C. §§ 1168-69 for guidance on the effect ive time and date o f discharge. Id. (citing Hart , 66 M.J. at 275). Our superior court “has identifie d three cr iteria to

consider when determ ining whether a servi cemember’s discharge h as been finalized for jurisdictional p urposes: (1) the del ivery of a [DD 214]; (2 ) a ‘final a ccounting of pay;’ and (3) the completion of t he ‘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 crit eria from Hart

, he or she may neverthe less be discharged i f concluding otherwis e would “go against

reason or p olicy.” 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 m ember has been discharged—at leas t for jurisdictional purposes— can be sum marized as

follows: If a servicemember has received his DD 214, final acco unting of pay, and has completed clearin g, that servicemember is discharged. If a ny of these three requirements is not me t, the servicemember is nevertheless cons idered discharged if reason and policy req uire a finding of discha rge based on the t otality of the

circumstances. See Christiansen , 78 M.J. at 5 n.6.

Appellant argues that he was dis charged from the Army after he cleared the installation, receiv ed his DD 214, and a su bstantial part of hi s pay was ready for delivery. We disagree . Appellant’s final accounting of pay wa s not re ady for delivery before his discharge orders ha d been revoked. While t his deficiency wouldBANKS—ARMY 20170261

4 not necessarily be fatal to appe llant’s claim if reason and pol icy weighed in his favor, they do not. We will discuss each i ssue 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 motio ns hearing, the former Chief o f Transitions at Fort Carson, Color ado, testified that appellant’ s DD 214 had been revoked on 24 August 2016 at 1007. The Deput y Director for Mil itary Pay at Fort Carson, Colorado, tes tified that there wa s no final accounting of pay prior to the revocation of appellan t’s discharge orders . Based on this test imony, the military judge found as a matter of law tha t the pay was not ready for d elivery at the time appellant’s orders were revoked . We agree and fin d that even i f appellant’s DD 214 was valid, he had not received a final acc ounting of pay ready for delivery and thus did not satisfy the third Hart criterion.

B. Reason and Policy Wei gh Against Finding Appe llant was Discharged

Even if a servicemember has not satisfied all th ree requiremen ts for a valid discharge under Hart , he or she may still b e discharged if so r equired by reason an d policy. Christiansen , 78 M.J. at 4.

In United States v. Majstorovic , ARMY 20180045, 20 19 CCA LEXIS 291 (Army Ct. Crim. App. 21 Jun. 2019) (mem. op. ), this court condu cted a “reason and policy” analysis relate d to personal jurisdiction. As the cent ral part of its analysis,

this court not ed the stark contras t 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 approximatel y four months

after he received his DD 214. Neverthe less, our superior court found that, under the to tality of the circumstances, he was discharged pr ior to the preferral of charges against him and his subsequent court -martial. As a result, the military had no juris diction over him; h e was no longer a

servicemember—he was Mr. C hristiansen. This case is entirely different.

. . . .

Under the totalit y of these circumstanc es, neither reason nor policy favor a conclusion that appellant was discharged prior t o his conviction at court-martial.BANKS—ARMY 20170261

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

We reach a simila r conclusion to Majstorovic in this case. Notably, Mr.

Christiansen was administrativel y separated by hi s unit and a u nit representative told

him that he was out of the Army. By contrast, appellant’s unit initiated an Adverse Action flag against h im and specifically c ounseled a ppellant th at he would be staying in the Army be yond his initial ETS date. In sum, under the specific facts and circumstances of this case, we conclude that “neither reaso n nor polic y favor a conclusion that appellant was discharged prior to his convictio n at court-martial.”

Id . at *15.

CONCLUSION

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

The findings of guilty and th e sentence are AFFIRMED.

Senior Judge MULLI GAN and Judge SCHASBERGER concur.

FOR THE COURT:

JOHN P. TAITT

3 This court added that, “Mr. Chris tensen had every reason to be lieve he received a valid discharge ; appellant did not.” Id . at *14. JOHN P. TAITT Acting Clerk of Court FOR THE COURT: