U.S. v. Nettles, 74 M.J. 289

First Principles: Jurisdiction: In Personam

1. a discharge terminates in personam court-martial jurisdiction of an active duty servicemember after there is (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a clearing process as required under appropriate service regulations to separate the member from military service
2. the law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore an appellate court is free to modify it
3. in the case of an active duty servicemember, no delivery of a valid discharge can be effective if it is contrary to expressed command intent; it is also strongly suggested that delivery means actual physical receipt; however, the physical delivery rule does not apply to the reserve components
4. in cases of reserve personnel with self-executing discharge orders issued pursuant to statute, it is the effective date of those orders that determines the existence of personal jurisdiction - not physical receipt of a piece of paper
5. in this case, because 10 USC § 14505 (a statute requiring discharge for captains who failed to be selected for promotion on the second try) commanded that appellant be discharged no later than a specific date, and because appellant was not on active duty under an administrative hold on the date of the self-executing discharge orders, appellant’s discharge became effective on the date ordered - regardless of the failure physically to deliver the discharge certificate; and because appellant was arraigned after the effective date of that discharge, no military jurisdiction existed over his person
6. in cases where the accused is not on active duty pursuant to an administrative hold on the date the self-executing order sets for a reservist’s discharge, he is not subject to court-martial jurisdiction

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

1. personal jurisdiction claims are reviewed by an appellate court de novo
2. the law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore an appellate court is free to modify it
3. because of the duties imposed by military status, an appellate court reviews the laws and regulations governing enlistment and separation with sensitivity; this is especially salient in the context of most reserve personnel, who inherently occupy a gray area and are therefore most in need of clear rules so as to guide their conduct