U.S. v. Christensen, 78 M.J. 1

First Principles: Jurisdiction: In Personam

1. it is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization
2. 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; three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdictional purposes are: (1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations; however, this guidance is not binding when it goes against reason or policy; to be clear, if all three of the criteria have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction, but if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances
3. in this case, appellant was not subject to court-martial jurisdiction at the time of his military trial because to hold otherwise, under the totality of the circumstances, would clearly go against reason or policy where (1) a DD Form 214 was delivered to appellant, (2) the government did not act in a timely manner when attempting to revoke the discharge, (3) in light of the facts that not only had appellant received his DD Form 214, cleared post, turned in his military identification card, and been told by the unit’s official representative that he was out of the Army now, but for months afterward he received no visits from his command, used private funds for his rehabilitation facility and dental work, received no communication from the unit informing him that his status was in question, received no pay or military benefits, did not have his DD Form 214 revoked, received correspondence from the Department of Veterans Affairs about the benefits he now was entitled to receive as a veteran, and expected no final pay because he owed the government money, appellant held an objectively reasonable belief that he was no longer in the Army, and (4) the final accounting of pay was not accomplished within a reasonable time frame

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. 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; three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdictional purposes are: (1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations; however, this guidance is not binding when it goes against reason or policy; to be clear, if all three of the criteria have been met, then an accused unequivocally is no longer subject to court-martial jurisdiction, but if one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances

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

1. an appellate court reviews issues of personal jurisdiction de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record