U.S. v. Hart, 66 M.J. 273

First Principles: Jurisdiction: In Personam

1. under Article 2(a)(1), UCMJ, members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment are subject to court-martial jurisdiction
2. it is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent same saving circumstance or statutory authorization
3. the UCMJ itself does not define the exact point in time when discharge occurs, but pursuant to 10 USC § 1168(a), a servicemember may not be discharged from active duty until his discharge certificate and his final pay, or a substantial part of that pay, are ready for delivery to him
4. for purposes of court-martial jurisdiction, three elements must be satisfied to accomplish an early discharge: (1) there must be a delivery of a valid discharge certificate; (2) there must be a final accounting of pay made; and (3) the servicemember must undergo the clearing process required under appropriate service regulations to separate him from military service
5. although appellant had received his DD Form 214 discharge certificate, his discharge from active duty was not completed and court-martial jurisdiction existed pursuant to Article 2(a)(1), UCMJ, where only the initial calculation of appellant’s separation pay had been entered in the DFAS computer system, where appellant had not received his final separation pay, or a substantial portion thereof, and that pay was not ready for delivery, and where appellant’s command stopped processing the computation of his final pay and revoked his DD Form 214

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when an accused contests personal jurisdiction on appeal, an appellate court reviews 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