United States v. Private First Class CHRISTOPHER E. CHRISTENSEN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class CHRISTOPHER E. CHRISTENSEN
United States Army, Appellant
ARMY 20140372
Headquarters, Fort Stewart
John T. Rothwell, Military Judge (trial)
Jacob D. Bashore, Military Judge (DuBay hearing)
Colonel Francisco A. Vila, Staff Judge Advocate (pretrial)
Colonel Luis O. Rodriguez, Staff Judge Advocate (recommendation)
Lieutenant Colonel Peter R. Hayden, Staff Judge Advocate (addendum)
Colonel Michael D. Mierau, Jr., Staff Judge Advocate (DuBay hearing)
For Appellant: Colonel Mary J. Bradley, JA; Lieutenant Colonel Jonathan F. Potter,
JA; Major Christopher D. Coleman, JA (on brief); Colonel Mary J. Bradley, JA;
Major Christopher D. Coleman, JA (on reply brief, reply brief in response to
specified issue, and brief and reply brief following a DuBay hearing); Colonel Mary
J. Bradley, JA; Captain Ryan T. Yoder, JA; Major Christopher D. Coleman, JA (on
brief in response to specified issue).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Tara E. O’Brien Goble, JA (on brief, brief
in response to specified issue, and brief following a DuBay hearing).
15 June 2017
--------------------------------
MEMORANDUM OPINION
--------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
TOZZI, Senior Judge:
A military judge sitting as a general court-martial convicted appellant, contrary
to his pleas, of one specification of sexual assault in violation of Article 120, Uniform
Code of Military Justice, 10 U.S.C. §920 (2006 & Supp. V 2012) [hereinafter UCMJ].
The military judge sentenced appellant to a dishonorable discharge, confinement for
CHRISTENSEN—ARMY 20140372
eight years, forfeiture of all pay and allowances, and reduction to the grade of E-1;
the military judge granted appellant ninety days credit against confinement pursuant
to Article 13, UCMJ. The convening authority approved the adjudged sentence and
ninety days of confinement credit.
Appellant, before us on appeal pursuant to Article 66, UCMJ, raises three
assignments of error, one of which concerns personal jurisdiction. Prior to this
review, we ordered a fact finding hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to further explore this issue. With the
benefit of the military judge’s findings of fact and conclusions of law at the DuBay
hearing, we resolve this issue, as well as the other assigned errors, against
appellant. 1, 2
BACKGROUND
On 6 March 2013, First Lieutenant FR initiated proceedings to involuntarily
separate appellant from the Army for alcohol abuse rehabilitation failure pursuant to
1
Appellant, in his second assignment of error, asks this court to grant him pretrial
confinement credit pursuant to United States v. Allen, 17 M.J. 126 (C.M.A. 1984),
for time spent before his court-martial in a civilian jail and then a civilian
rehabilitation facility. We find appellant waived this issue by failing to raise it at
trial. See United States v. Rosalesleonor, ARMY 20140230, 2015 CCA LEXIS 260(23 Jun. 2015). Even if we did not find waiver, we would not grant appellant Allen
credit for his time in the rehabilitation facility as he voluntarily entered the facility
for a reduced civilian bond when facing possible charges in a civilian court.
In his third assignment of error, appellant seeks sentence relief because it took
242 days to conduct post-trial processing. We find no due process violation and do
not find the sentence to be inappropriate notwithstanding the time it took to prepare
appellant’s case for convening authority action. UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sentence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post-trial delay.”). See generally United States v.
Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006).
2
The matters submitted personally by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), both with his original assignment of error
and following the DuBay hearing, to the degree they are not duplicative with the
errors assigned by his appellate counsel, do not merit individual discussion or relief.
2
CHRISTENSEN—ARMY 20140372
Army Reg. 635-200, Personnel Separations: Active Duty Enlisted Administrative
Separations, Ch. 9 (6 Jun. 2005; Rapid Action Revision 6 Sep. 2011). 3
On or about 8 March 2013, Liberty County, Georgia, officials arrested
appellant for sexual assault involving another soldier that occurred in December
2012. In response to the civilian incarceration, appellant’s unit changed his duty
status from “present for duty” to “CCA Civilian Confinement.” That arrest did not
halt appellant’s separation processing. Later that month, Lieutenant Colonel
(LTC) JD, the 1st Armored Brigade Combat Team (Rear) (Provisional) commander
and Special Court-Martial Convening Authority (SPCMCA), allowed the separation
process to proceed. On 27 March 2013, the separation authority, LTC MT, approved
appellant’s separation, apparently unaware of the sexual assault investigation by
civilian authorities. At that time, appellant was not being paid due to his
confinement status and had no final pay coming to him. In fact, he owed a debt to
the Army as he received pay for a brief period following his incarceration by
civilian authorities.
On or about 17 April 2013, Sergeant MD cleared the Fort Stewart installation
on behalf of appellant, as appellant was not able to personally perform this task due
to his confinement. This process included a meeting with a representative of the
Fort Stewart finance section, who provided an estimate of appellant’s final pay.
Upon completion of the clearing process, the Fort Stewart transition center
published orders discharging appellant with an effective date of 17 April 2013. On
18 April 2013, the transition center completed appellant’s Dep’t of Def., Form 214,
Certificate of Release or Discharge from Active Duty (1 Aug. 2009) (DD Form 214)
and mailed it to appellant’s next of kin.
On 17 April 2013, the Fort Stewart finance office sent appellant’s case to the
Defense Finance and Accounting Service-Indianapolis (DFAS), where it was routed
to the Reconciliation and Technical Branch. At that time, appellant’s pay account
was in a suspended, or “T” status, and also coded with a “K” status as a result of
appellant’s confinement by civilian authorities. In order to compute appellant’s
final pay, his pay account needed an active “NT” line. Fort Stewart forwarded
appellant’s case to DFAS because appellant’s “K” status required special processing
by DFAS in order to issue the NT line.
Lieutenant Colonel AT served as the chief of justice in the 3rd Infantry
Division staff judge advocate’s office. In that role, he monitored the status of
sexual assault cases, both on and off post, involving soldiers assigned to Fort
Stewart, to include appellant’s case with the civilian authorities. He did so in
3
This separation action sought to discharge appellant before the expiration of his
term of service; his enlistment did not expire until 2015.
3
CHRISTENSEN—ARMY 20140372
consultation with Captain (CPT) AC, a rear brigade judge advocate and trial counsel,
who was also monitoring appellant’s case. In late April 2013, LTC AT and CPT AC
learned of appellant’s separation action. Captain AC was not aware of the
separation package because it had been staffed between the rear detachment
command and rear detachment paralegal staff. Lieutenant Colonel AT was likewise
unaware of the decision to administratively separate appellant. Both LTC AT and
CPT AC were concerned the local authorities might plead appellant’s case down to a
lesser charge and, therefore, wanted to retain options concerning possible court-
martial jurisdiction. Additionally, a memorandum from the Secretary of Defense, 4
reinforced by a Fort Stewart command policy, withheld disposition authority of
sexual assault allegations from commanders who did not possess special court-
martial convening authority and were not in the grade of O-6 (colonel) or higher.
On 25 April 2013, LTC AT contacted finance personnel at Fort Stewart to
stop the final pay and accounting in appellant’s discharge case in order to preserve
the Army’s jurisdiction over the appellant. Fort Stewart finance personnel, in turn,
called DFAS to return appellant’s case. On or about 1 May 2013, the DFAS
Reconciliation Branch referred the case to Mr. MJ at DFAS. In the normal course of
business, Mr. MJ took the kinds of actions on a pay account for a soldier in a “K”
status needed to complete final accounting of pay. Based on the Fort Stewart
request, Mr. MJ closed appellant’s account without action. On 2 May 2013, the Fort
Stewart finance office closed appellant’s separation case without any computation of
appellant’s final accounting of pay.
On or about 14 May 2013, CPT AC emailed LTC JD with an update
concerning appellant’s status and an explanation why the legal office had halted
appellant’s pay processing. Captain AC presented LTC JD with several options, to
include allowing appellant to be fully separated. Based on this exchange, on 15 May
2013, LTC JD directed CPT AC to hold the DFAS processing so the command could
make a disposition decision concerning the sexual assault allegations. Lieutenant
Colonel JD believed that stopping appellant’s final accounting of pay would suffice
to prevent appellant’s separation so the command could make a disposition decision
regarding the sexual assault allegations.
From 25 April 2013 to 28 June 2013, LTC AT took several steps and
communicated with a number of people at the Fort Stewart personnel and finance
offices and Army Human Resources Command (HRC) to revoke appellant’s
separation orders and DD Form 214. On 13 June 2013, LTC AT sent an email to
Mr. SK, the Chief, Transitions Branch, at the HRC, requesting the revocation of
appellant’s DD Form 214. As of 18 June 2013, the Army personnel system showed
4
Secretary of Defense Memorandum, Subject: Withholding Initial Disposition
Authority Under the Uniform Code of Military Justice in Certain Sexual Assault
Cases (20 Apr. 2012).
4
CHRISTENSEN—ARMY 20140372
appellant’s separation had been revoked and listed him in the active component.
However, his separation orders and DD Form 214 had not been revoked. His finance
records at the time still reflected him in a suspended and confined status.
During this time, and throughout the summer, CPT AC continued to monitor
the status of the civilian prosecution of appellant. In late August or early September
2013, Colonel JC, the brigade commander who had been forward deployed, signed
the memorandum directing the revocation of appellant’s separation orders. On
30 September 2013, the Fort Stewart Transition Office rescinded appellant’s
separation orders and his DD Form 214. On 26 September 2013, a member of the
brigade judge advocate’s office preferred a charge against appellant. On
12 December 2013, military policemen brought appellant back to military control.
On the same date, another set of charges were preferred, which ultimately were the
charges referred to trial.
LAW AND DISCUSSION
“‘When an accused contests personal jurisdiction on appeal, we review 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.’” United States v.
Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v. Melanson, 53 M.J.
1, 2 (C.A.A.F. 2000). A factual “‘finding is clearly erroneous when although there
is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’” United States v.
Martin, 56 M.J. 97, 106 (C.A.A.F. 2001) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). While appellant argues at great length that
the DuBay military judge’s findings are erroneous and contradicted by various items
in the record, we find the military judge’s findings and conclusions are supported
upon a reading of the entire record, especially concerning the key issues surrounding
jurisdiction in this case. Accordingly, we adopt those findings here.
“Generally, there are three prerequisites that must be met for courts-martial
jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction over
the accused, and (3) a properly convened and composed court-martial. United States
v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006); see Rule for Courts-Martial
[hereinafter R.C.M.] 201(b). Only the second of these requirements is at issue in
this case.
“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. UCMJ art. 2(a)(1). “In general, a person becomes subject
to court-martial jurisdiction upon enlistment in or induction into the armed
forces . . . .” R.C.M. 202(a) discussion. Once attached, jurisdiction continues until
the member is discharged. “It is black letter law that in personam jurisdiction over a
5
CHRISTENSEN—ARMY 20140372
military person is lost upon his [or her] discharge from the service, absent some
saving circumstance or statutory authorization.” United States v. Howard, 20 M.J.
353, 354 (C.M.A. 1985).
As our superior court has long recognized, the UCMJ does not define an exact
point when a discharge occurs, so it has turned to two personnel statutes, 10 U.S.C.
§§ 1168 and 1169, for guidance in determining what is required to complete a
discharge and terminate jurisdiction. Hart, 66 M.J. at 275 (citations omitted). The
first statue states:
A member of an armed force may not be discharged or
released from active duty until his discharge certificate or
certificate of release from active duty, respectively, and
his final pay or a substantial part of that pay, are ready for
delivery to him or his next of kin or legal representative.
10 U.S.C. § 1168(a). Similarly, the second statue provides:
No regular enlisted member of an armed force may be
discharged before his term of service expires, except—
(1) as prescribed by the Secretary concerned;
(2) by sentence of a general or special court martial; or
(3) as otherwise provided by law.
10 U.S.C. § 1169. For an early discharge, that is, a discharge prior to the expiration
of a member’s term of service, these statutes have been read to require three things:
First, there must be a delivery of a valid discharge
certificate. . . . Second, there must be a final accounting
of pay made. This is an explicit command set forth by
Congress in 10 U.S.C. § 1168(a). . . . Third, appellant
must undergo the “clearing” process required under
appropriate service regulations to separate him from
military service.
Hart, 66 M.J. at 276 (quoting United States v. King, 27 M.J. 327, 329 (C.M.A.
1989)).
Here, the parties do not dispute that the first and third of these requirements
were satisfied in this case. Sergeant MD took the steps necessary to clear appellant
from Fort Stewart and the Fort Stewart transition center issued orders discharging
appellant and mailed a completed DD Form 214 to appellant’s next of kin.
6
CHRISTENSEN—ARMY 20140372
As to the second requirement, the DuBay military judge found that processing
the final pay and accounting for a Fort Stewart soldier in civilian confinement
involved six discreet steps:
1) The Soldier, or his representative, attends a group
briefing given by the Fort Stewart separation section of
finance.
2) The Soldier, or his representative, attends a one-on-one
briefing with the same section, where the Soldier is given
an estimate of what he will receive, but a final accounting
of pay is not yet done.
3) The confined Soldier’s packet must be sent to DFAS-
Indianapolis via the [Case Management System] for DFAS
to take the Soldier out of a confined status, “K status,”
and put in an active status so that the final accounting of
pay can be computed and paid. This process takes on
average forty-five days, but it can take as long as ninety
days to complete. 5
4) The case is transferred back to the Fort Stewart
separation section of finance for computation of final pay.
A finance clerk at Fort Stewart computes the final
accounting of pay.
5) The computation is sent for audit to the military pay
and review section to ensure accuracy of the final
computation. On average, steps 4 and 5 take
approximately one calendar week.
6) The final accounting of pay is then ready for delivery,
and the Fort Stewart separation section of finance
disburses any funds due through DFAS.
5
Appellant asserts the military judge erred by accepting as fact the testimony of a
Fort Stewart pay technician that in the case of incarcerated soldiers, processing by
DFAS to place the soldier in an active status can take forty-five to ninety days. By
contrast, appellant cites the testimony of Mr. MJ from DFAS who testified he
usually processes requests on confined soldiers within one week. We do not find an
abuse of discretion by the military judge in relying on the testimony of a Fort
Stewart pay technician who based her assessment of the time it takes to process a
pay request upon years of practical experience.
7
CHRISTENSEN—ARMY 20140372
Sergeant MD completed the first two of these steps in clearing Fort Stewart
on behalf of appellant. The last four steps remained unfinished after LTC AT from
the division legal office, about a week after the effective date of appellant’s
separation orders, succeeded in halting further processing of appellant’s final pay
and DFAS returned the case to Fort Stewart finance personnel without the required
entries necessary to compute appellant’s final pay.
Based upon these factors, the DuBay military judge concluded the Army
retained jurisdiction over appellant because appellant’s final pay, or a substantial
part of that pay, was never computed or made ready for delivery to him. 6 See 10
U.S.C. § 1168(a); King, 27 M.J. at 329. We agree.
This case is analogous to the facts set forth in our superior court’s decision in
Hart. There, Airman First Class (A1C) Dustin M. Hart was placed on an
administrative hold pending a court-martial. Despite this hold, he was processed for
a medical discharge. As part of the clearing process, A1C Hart provided a finance
technician with the information necessary to calculate his final pay. Two days after
receiving his final clearance, the finance office entered the initial calculation of
A1C Hart’s separation pay into the DFAS computer system. Next, A1C Hart
received his DD Form 214 and separation orders, effective about a week later.
Several days after his separation, the legal office and commander learned A1C Hart
received his DD Form 214. In response, the legal office directed the finance office
not to take any further action in calculating A1C Hart’s pay and his commander
issued a memorandum to revoke the DD Form 214. The Air Force brought A1C Hart
back to military control soon thereafter.
At trial, A1C Hart moved to dismiss the charges against him for a lack of
personal jurisdiction. Hart, 66 M.J. at 274. In ruling on the motion, the military
judge found the DFAS entry to be a “snapshot” of the projected separation
settlement, but not a final calculation. Id. The military judge, therefore, concluded
the Air Force retained personal jurisdiction over A1C Hart since his final pay was
never made ready for delivery as required by 10 U.S.C. § 1168(a). As a result, he
was never finally discharged. Id. at 275. The Court of Appeals for the Armed
Forces (CAAF) upheld the military judge’s ruling. In so doing, the CAAF noted the
military judge’s finding that there was no evidence finance personnel were
deliberately trying to slow the payment process and that the payment was halted
within the twenty-day window established by regulation to complete the final
disbursement. Id.6
Like the DuBay military judge, we reject appellant’s argument that this element
was met because appellant owed a debt and was not to receive pay.
8
CHRISTENSEN—ARMY 20140372
Here, the processing of appellant’s pay stopped at a stage similar to that in
Hart, and we find the reasoning of the Hart court persuasive and controlling. The
initial calculations, or snapshot, of appellant’s pay were entered into the DFAS
system. Further action to calculate appellant’s final pay depended upon the removal
of a code by DFAS. This never occurred since LTC AT acted to halt this calculation
and, later LTC JD, as the SPCMCA, effectively ratified this action in a timely
manner. Accordingly, we concur with the DuBay military judge that appellant’s
“‘final pay or a substantial part of that pay’ were never computed or made ready for
delivery to him” and that the Army retained jurisdiction over appellant.
Although we find the Army retained jurisdiction over appellant, we agree with
the DuBay military judge that the delay in the official action in revoking appellant’s
separation orders was not a “standard to emulate[.]” A number of factors,
compounded by what we perceive as poor communication, led to the delay in
revoking the discharge orders and DD Form 214, and confusion over appellant’s
status. We, however, do not see this as an effort by the government to indefinitely
postpone appellant’s final pay while trying to decide whether to court-martial him.
Lieutenant Colonel AT’s communications with personnel at Fort Stewart and HRC to
revoke appellant’s separation paperwork bear this out. The government did not
exercise bad faith in bringing appellant back to active duty. Whether a showing of
bad faith on the part of the government would produce a different result is a question
we do not reach under the facts of this case.
CONCLUSION
On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.
Judge CELTNIEKS and Judge BURTON concur.
FORTHE
FOR THECOURT:
COURT:
JOHN
JOHNP. P.
TAITT
TAITT
Chief Deputy Clerk
Chief Deputy of Court
Clerk of Court
9