United States v. Harmon

UNITED STATES, Appellee
v.
Nicholas A. HARMON, Private
U.S. Marine Corps, Appellant
No. 05-0172
Crim. App. No. 200300683
United States Court of Appeals for the Armed Forces
Argued October 11, 2005
Decided April 27, 2006
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J.,
filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Robert E. Salyer, JAGC, USN (argued).
For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Charles N. Purnell, JAGC, USN (on brief); Colonel William K.
Lietzau, USMC.
Military Judge: M. H. Sitler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harmon, No. 05-0172/MC
Judge CRAWFORD delivered the opinion of the Court.
Pursuant to his pleas, Appellant was convicted of attempted
kidnapping, attempted robbery, and two specifications of
conspiracy in violation of Articles 80 and 81, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 880, 881 (2000),
respectively. Pursuant to a pretrial agreement, the convening
authority approved the sentence of a dishonorable discharge, ten
years of confinement, and forfeiture of all pay and allowances,
but suspended confinement in excess of seven years. The Court
of Criminal Appeals affirmed the findings and sentence. United
States v. Harmon, 60 M.J. 776 (N-M. Ct. Crim. App. 2004).
ISSUE
WHETHER THE LOWER COURT ERRED BY HOLDING THAT FOR
THE PURPOSES OF R.C.M. 202(c), COURT-MARTIAL
JURISDICTION ATTACHES AT THE MOMENT A CRIMINAL
INVESTIGATION DIVISION AGENT RECEIVES AN ALLEGATION
OF A CRIME AND AN ALLEGATION OF A PERPETRATOR OF
SAID CRIME.
We uphold the finding of the military judge “that the
accused’s status as an active duty service member would not
terminate until 2359 on 17 May 2001.”
FACTS
Appellant was a twenty-year-old private in the Marine Corps
with about two years of service at the time of these offenses.
In the spring of 2001, Appellant’s battalion commander
recommended Appellant for an administrative separation for drug
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abuse. The Commanding General, 2d Force Service Support Group,
directed that Appellant be separated from the military no later
than May 17, 2001. Appellant acknowledged his rights and waived
his right to a hearing before a board of officers. Between May
9, 2001, and May 16, 2001, Appellant went through the steps to
out-process from the military. By the morning of May 17, 2001,
Appellant had completed all the steps to out-process except
picking up his “Certificate of Release or Discharge from Active
Duty” (DD Form 214) from the Group Consolidated Administrative
Center (GCAC).
As part of Appellant’s out-processing, a “Separation/Travel
Pay Certificate” (NAVMC 11060 Form) was prepared on May 9, 2001.
This document serves as the “orders” for Marines separated
without orders. A servicemember can use this document to obtain
advance travel and final pay, to have his or her household goods
shipped, or to obtain government-procured transportation for air
or bus travel. Appellant would have received a copy of this
document as part of his out-processing.
On Appellant’s NAVMC 11060 Form, under the “Pay
Information” section, there is a notation of “2359/2001 05 17”
typed after the unchecked block that reads “LEAVE AWAITING
SEPARATION FROM (TIME AND DATE) _____ TO (TIME AND DATE)
2359/2001 05 17.” The block “OTHER” is checked and the
following information is typed in on the form after “OTHER”:
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United States v. Harmon, No. 05-0172/MC
“SNM Request final payment be made by EFT.” Based on the
information on this form, Appellant elected to receive his final
pay by electronic funds transfer and the disbursing office was
to pay Appellant until 2359 hours on May 17, 2001.
Prior to May 17, 2001, Appellant and another Marine from
his unit, Private (PVT) John L. Piazza, conspired to rob a third
member of their command, Hospitalman (HN) Eric L. Madden.
Although Appellant and PVT Piazza took steps to carry out their
plan, their attempts failed and they called off the robbery on
the evening of May 16, 2001.
On the morning of May 17, 2001, Appellant convinced PVT
Piazza to assist him and they devised another plan to carry out
their robbery scheme. At approximately 5:00 a.m. on May 17,
2001, they attempted to carry out the plan in the parking lot of
the barracks. They concealed themselves in some bushes near the
barracks parking lot. Appellant wore a ski mask to conceal his
identity. At about 5:20 a.m., HN Madden was crossing the
parking lot. Appellant ambushed HN Madden and placed a BB
pistol against HN Madden’s back. He demanded the keys to HN
Madden’s truck. Hn Madden reached into his pocket for his keys
and produced a knife. In the ensuing struggle, HN Madden cut
Appellant on the hand. PVT Piazza joined the affray and
succeeded in separating Appellant from HN Madden. Appellant and
PVT Piazza ran off.
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United States v. Harmon, No. 05-0172/MC
At approximately 5:45 a.m., HN Madden reported the
attempted robbery and kidnapping to the military police. He
also gave a description of Appellant. Shortly after 8:00 a.m.,
an investigator with the Criminal Investigation Division (CID)
interviewed HN Madden who identified Appellant and indicated
that Appellant lived in either room 126 or 127 of barracks FC-
571. The investigator went to the crime scene to evaluate the
situation and seize any evidence.
In the meantime, at approximately 7:30 a.m., Appellant
reported to the Separations Office of the GCAC to obtain his
discharge paperwork. He was informed he had to return there at
about 9:00 a.m., which he did. At that time, the separations
clerk gave Appellant the original (Copy 1) and Copy 4 of his DD
Form 214. On the DD Form 214, the date of separation was
annotated in Block 12b, Separation Date This Period, as “2001 05
17.” Appellant’s terminal date for his reserve obligation was
annotated in Block 6, Reserve Obligation Termination Date, as
“20010517.” At that time, there were no further administrative
or other clearing processes Appellant needed to perform to
accomplish discharge.
During the motion session, Chief Warrant Officer-2 (CWO2)
Rochelle Bilski, Officer in Charge of the Separation Section of
the GCAC, testified that based on the information on the NAVMC
11060 Form, Appellant was on active duty until 2359 hours on May
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United States v. Harmon, No. 05-0172/MC
17, 2001. CWO2 Bilski stated that as a matter of policy and
administrative convenience, the discharge paperwork is not held
until 2359 to give to the separated Marine. She stated that
there would be no Marines from the GCAC available to give the
departing Marines their discharge papers at midnight. She
claimed, however, it is normal practice for the clerks in the
GCAC office to remind departing Marines that they are on active
duty and subject to the UCMJ until 2359 of the day they are
discharged so they will not do anything “stupid.”
After receiving his DD Form 214, Appellant left the base
and purchased a bus ticket. He returned to the installation
briefly. After he left the installation, he went to the home of
a friend in the civilian community of Jacksonville, North
Carolina.
Based on information that Appellant was a suspect in the
robbery, the command notified the GCAC to place a legal hold on
Appellant and not to deliver his DD Form 214. However,
Appellant had already received his DD Form 214. At 3:00 p.m.,
Appellant’s commander issued a “Deserter/Absentee Wanted by the
Armed Forces” (DD Form 553) for his apprehension. On that same
day, the Commanding General, 2d Force Service Support Group,
revoked Appellant’s administrative discharge and directed that
Appellant’s separation be held in abeyance pending the
6
United States v. Harmon, No. 05-0172/MC
investigation and disposition of the attempted robbery
allegations.
About 5:00 p.m. that day, Appellant was taken into custody
in the civilian community. He was placed in pretrial
confinement where he remained until trial.
At trial, Appellant moved to dismiss the charges and
specifications, arguing that he had been discharged and was no
longer subject to in personam court-martial jurisdiction. The
military judge denied the motion to dismiss the charges for lack
of personal jurisdiction. He found that the discharge documents
indicated the discharge authority intended for Appellant’s
discharge to become effective at 2359 on May 17, 2001, thus,
Appellant’s status as a military member continued until that
time. Because the command acted to revoke the discharge prior
to that time, Appellant’s military status was not terminated on
May 17, 2001, and the court-martial had personal jurisdiction
over Appellant.
Appellant renewed his argument at the Court of Criminal
Appeals. The Court of Criminal Appeals held “an investigatory
action constitutes sufficient official action to preserve
military jurisdiction” and that “because the investigation of
serious violations of the UCMJ was initiated and focused on
Appellant before delivery of his discharge, we find that
jurisdiction of Appellant attached prior to 0900 hours on 17 May
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United States v. Harmon, No. 05-0172/MC
2001.” Harmon, 60 M.J. at 779. That court did not review the
military judge’s determination that the effective time of
separation was 2359 because it concluded that jurisdiction
attached prior to the 9:00 a.m. delivery of the DD Form 214.
Id. at 780.
DISCUSSION
Jurisdiction is the power of a court to try and determine a
case and to render a valid judgment. Jurisdiction “is a legal
question which we review de novo.” See, e.g., United States v.
Henderson, 59 M.J. 350, 352 (C.A.A.F. 2004). 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. See Rule for Courts-
Martial (R.C.M.) 201(b). The focus in this case is whether the
court-martial had personal or in personam jurisdiction over
Appellant at the time of trial.
“Members of a regular component of the armed forces,
including those awaiting discharge after expiration of their
terms of enlistment” are subject to the UCMJ. Article 2(a)(1),
UCMJ, 10 U.S.C. § 802(a)(1) (2000). Generally, “a person
becomes subject to court-martial jurisdiction upon enlistment in
or induction into the armed forces . . . . Court-martial
jurisdiction over active duty personnel ordinarily ends on
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United States v. Harmon, No. 05-0172/MC
delivery of a discharge certificate or its equivalent to the
person concerned issued pursuant to competent orders.” R.C.M.
202(a) Discussion (2). Thus, military jurisdiction over the
person continues as long as military status exists. Solorio v.
United States, 483 U.S. 435, 439 (1987) (jurisdiction of a
court-martial depends solely on the accused’s status as a member
of the armed forces).
“A member of an armed force may not be discharged or
released from active duty until his discharge certificate . . .
and his final pay or a substantial part of that pay, are ready
for delivery to him . . . .” 10 U.S.C. § 1168(a) (2000). To
effectuate an early discharge, there must be: (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. United States v. King, 27 M.J. 327, 329
(C.M.A. 1989) (discharge certificate delivered to sailor for the
purposes of executing a reenlistment does not deprive military
authorities of court-martial jurisdiction).
If an individual commits an offense before his official
discharge, and the military initiates action with a view to
trial, the individual may be retained in the service for trial.
R.C.M. 202(c)(1). “If jurisdiction has attached [by the
commencement of action] before the effective terminal date of
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United States v. Harmon, No. 05-0172/MC
self-executing orders,1 the person may be held for trial by
court-martial beyond the effective terminal date.” R.C.M.
202(c)(1) Discussion. “Actions by which court-martial
jurisdiction attaches include: apprehension; imposition of
restraint, such as restriction, arrest, or confinement; and
preferral of charges.” R.C.M. 202(c)(2).
Delivery of a valid discharge can operate as a termination
of court-martial in personam jurisdiction. See Smith v.
Vanderbush, 47 M.J. 56, 58 (C.A.A.F. 1997) (in personam
jurisdiction was lost when accused was discharged after
arraignment but before lawful authority resolved the charges and
the Court found no evidence that the discharge authority
intended to discharge the accused on his expiration term of
service (ETS)). However, the discharge authority must have
intended the discharge to take effect. See United States v.
Batchelder, 41 M.J. 337, 339 (C.A.A.F. 1994) (it was clear from
face of certificate the commander did not intend the discharge
to take effect until later).
Military services are required to ensure that “every member
. . . being separated from the Military Services is given a
completed DD Form 214 describing relevant data regarding the
1
Self-executing orders are those that “by their own terms
automatically become effective on the specified effective date
without any further action being required.” United States v.
Smith, 4 M.J. 265, 266 n.3 (C.M.A. 1978).
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United States v. Harmon, No. 05-0172/MC
member’s service, and the circumstances of termination. . . .
DD Forms 214 are not intended to have any legal effect on
termination of the member’s service.” Dep’t of Defense, Instr.
1336.1, Certificate of Release or Discharge from Active Duty (DD
Form 214/5 Series) para. 3.2 (Jan. 6, 1989, incorporating
through Change 3, Feb. 28, 2003) (emphasis added).
At the time of the incident in this case, the Marine Corps
Separation and Retirement Manual (MARCORSEPMAN), Marine Corps
Order (MCO) P1900.16E ch. 1, para. 1007(1), at 1-22 (Aug. 18,
1995),2 provided that “[a] discharge or separation takes effect
upon delivery of a valid discharge or separation document.”
However, paragraph 3 1007(3) recognized that “[f]or the purpose
of entitlement benefits administered by the Department of
Veterans Affairs (DVA), 38 U.S.C. 106(c) provides that a Marine
discharged or released from a period of active duty shall be
deemed to have continued on active duty . . . until midnight of
the date of such discharge or release.” Id. at 1-23.
Although physical delivery of a discharge certificate is
generally considered the event that terminates a servicemember’s
2
Although MCO P1900.16F replaced MCO P1900.16E on May 30, 2001,
the relevant language in paragraph 1007 remained the same.
MARCORSEPMAN, MCO P1900.16F, ch. 1, para. 1007(1), at 1-20 (May
30, 2001). On July 18, 2003, paragraph 1007 of MCO P1900.16F
was modified to specify the effective “time” of the discharge as
2359 on the date of the discharge or separation. MARCORSEPMAN,
MCO P1900.16F, ch. 1, para. 1007(1), at 1-20 (July 18, 2003).
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United States v. Harmon, No. 05-0172/MC
active duty status, it is crucial to consider the intent of the
command to determine the actual effective time and date of
discharge. See United States v. Melanson, 53 M.J. 1, 4
(C.A.A.F. 2000) (jurisdiction existed because pursuant to Dep’t
of the Army, Reg. 635-200, a discharge takes effect at 2400
hours on the date of notice of discharge to the soldier);
Batchelder, 41 M.J. at 339 (delivery of a discharge certificate
for administrative convenience does not terminate jurisdiction
when a certificate is clear on its face that the commander did
not intend that the discharge take effect until a later time).
See also Hamon v. United States, 10 Cl. Ct. 681, 683 (1986)
(legislative history indicates that 10 U.S.C. § 1168(a) is not
concerned with the actual receipt of the discharge documents,
but rather with facilitating the veteran’s return to civilian
life and that all that is required is that the discharge
document be ready for delivery on the separation date).
In this case, Appellant was being administratively
separated from the military for misconduct prior to his
scheduled end of active service (EAS) date. His scheduled
discharge date, based on the administrative discharge and order
of the commander, was established as May 17, 2001. On May 17,
2001, at 9:00 a.m., Appellant received a copy of his DD Form
214. The date of his discharge was noted on the DD Form 214,
Block 12b, as May 17, 2001. There was no effective “time” for
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United States v. Harmon, No. 05-0172/MC
discharge indicated on the DD Form 214.3 At some point during
out-processing, Appellant received a copy of the NAVMC 11060.
The NAVMC 11060 Form, however, indicated “2359/2001 05 17” as
the end date and “time” of Appellant’s active duty service.
The DD Form 214 in conjunction with the NAVMC 11060 Form,
clearly indicated the command’s intent to discharge Appellant at
2359 hours on May 17, 2001. It was not the command’s intent
that Appellant’s discharge would be effective at some arbitrary
point in time when a personnel clerk decided to deliver the
copies of the DD Form 214 to Appellant. Until 2359 hours on May
17, 2001, Appellant “was merely a person in possession of [an
order] not yet operative.” Batchelder, 41 M.J. at 339. See
also United States v. Guest, 46 M.J. 778, 780 (A. Ct. Crim. App.
1997) (the intent of parties was germane to whether the courtesy
copy of DD Form 214 operated as the official discharge
certificate); In re Shattuck, 63 Comp. Gen. 251, 252 (1984)) (the
effective date of the discharge is not dependent on the delivery
of the certificate but on the intent of the command and
servicemember that discharge is effective on a given date).
Prior to 2359 hours on May 17, 2001, the command placed a
legal hold on Appellant. As a result, in personam jurisdiction
3
The Department of Defense instructions and the service
instructions or regulations do not require that the effective
end of service “time” be included in Blocks 12b or 6 of the DD
Form 214. The instructions only require that the EAS date be
noted.
13
United States v. Harmon, No. 05-0172/MC
over Appellant was never lost. See United States v. Williams,
53 M.J. 316, 317 (C.A.A.F. 2000) (jurisdiction over the accused
did not terminate because a valid legal hold was placed on the
accused on the same day the discharge certificate was mailed to
him).
In light of our holding, it is not necessary for us to
determine whether the court below was correct in concluding that
jurisdiction over Appellant attached when Appellant became the
focus of a criminal investigation. We hold that the military
judge’s findings were correct. The discharge was not effective
until 2359 hours on May 17, 2001. A valid legal hold was placed
on Appellant and his discharge was revoked before the time and
date his discharge was supposed to take effect. Thus, we find
the military had in personam jurisdiction over Appellant at the
time of his trial.
DECISION
Accordingly, the findings and the sentence as approved on
review below, are affirmed.
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United States v. Harmon, No. 05-0172/MC
ERDMANN, Judge (dissenting):
The majority opinion finds that Harmon’s status as an
active duty member of the Marine Corps did not terminate until
2359 on May 17, 2001 and that his discharge was properly revoked
before that time. Because I find that Harmon’s discharge was
validly completed at 0900, I respectfully dissent.
Harmon was discharged before the end of his term of service
and this court has held that three conditions must be met before
an early discharge is effective: (1) nonfraudulent and
authorized delivery of a valid discharge certificate, (2) a
final accounting of pay, and (3) completion of the clearing
process required by the service’s regulations. United States v.
King, 27 M.J. 327, 329 (C.M.A. 1989); see also United States v.
Batchelder, 41 M.J. 337, 339 (C.A.A.F. 1994) (holding that early
discharge was not valid because the separations clerk was not
following the instructed procedures); Wickham v. Hall, 12 M.J.
145, 150 (C.M.A. 1981) (holding that separation from military
service procured by fraudulent means is not a valid separation).
There is no dispute that Harmon received a valid discharge
certificate –- an original (Copy 1) of his “Certificate Of
Release Or Discharge From Active Duty” (DD Form 214) -– at 0900.
The facts also establish that there was no further
administrative clearing or accounting of pay to be performed
when Harmon picked up his discharge certificate. Thus, the
United States v. Harmon, No. 05-0172/MC
question is whether there was a nonfraudulent and authorized
delivery of the DD Form 214.
There has been no assertion at any time that Harmon acted
to fraudulently “procure[] his own separation from the armed
forces by knowingly false representation or deliberate
concealment as to his eligibility for that separation.” Article
83(2), Uniform Code of Military Justice, 10 U.S.C. § 883(2)
(2000). In fact, there is no dispute that Harmon was eligible
for separation as his administrative discharge had been approved
and processed. Nor is there any allegation that the clerk who
delivered the DD Form 214 to Harmon was working outside his
authority.
The majority concludes, however, that Harmon’s DD Form 214
did not take effect when it was physically transferred to him at
0900 because the command expressed a clear intent to keep Harmon
on active duty until 2359. In reaching this conclusion the
majority relies on an entry in Harmon’s “Separation/Travel Pay
Certificate” (NAVMC 11060 Form) as evidence of the command’s
intent to extend the effective date of Harmon’s discharge and on
this court’s holding in Batchelder.
NAVMC 11060 Form contains a section entitled “Pay
Information”. That section has a number of blanks that are to
be completed by the command when a person is discharged. One
such blank reads as follows: “Leave Awaiting Separation From
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United States v. Harmon, No. 05-0172/MC
(Time And Date) _______ To (Time And Date) _______”. The
official who completed the form did not make an entry in the
first blank but in the second blank inserted “2359/2001 05 17”.
This entry is cited by the majority as evidence of the command’s
intent to discharge Harmon at 2359 on May 17, 2001.
The entry relied upon by the majority appears to be an
entry related to leave that simply indicates the time through
which Harmon would be charged leave rather than the effective
date of the discharge. This entry on the NAVMC 11060 Form would
alert finance authorities to deduct this leave from a Marine’s
leave balance before determining any separation pay for accrued
leave. It appears, however, that Harmon took no leave and this
entry is therefore meaningless.
A separate blank on the form does reference the “Effective
Date Of Separation From ACDU”1 and contains the following entry:
“2001 05 17”. This blank does not ask for the effective “time”
of discharge, which is consistent with a Marine Corps regulation
in effect at that time that provided that “[a] discharge or
separation takes effect upon delivery of a valid discharge or
separation document.” Marine Corps Separation and Retirement
Manual (MARCORSEPMAN), Marine Corps Order (MCO) P1900.16E, ch.
1
“ACDU” is a Navy/Marine Corps abbreviation for “active duty”.
3
United States v. Harmon, No. 05-0172/MC
1, para. 1007(1) at 1-22 (Aug. 18, 1995).2 The regulation
clearly dictates the effective time of the discharge as the time
of delivery, which in this case was 0900. Even if the entry in
the pay section of the form did evidence the local commander’s
intent to extend the effective time of Harmon’s discharge, the
regulation does not authorize individual commanders to alter the
effective time of a discharge. Id.; see also United States v.
Wheeler, 27 C.M.R. 981, 989 (A.F.B.R. 1959) (“Regulations issued
by the military service on matters within their authority have
the force of law if not in conflict with the Constitution or
Congressional enactments.”).
The majority also relies on Batchelder, where this court
held that a discharge did not go into effect when a
servicemember received his DD Form 214 because (1) his orders
and discharge package clearly identified the discharge time as
2400, and (2) the clerk who delivered the paperwork to
Batchelder at 1400 was breaking the command’s rules with regard
to how discharge paperwork should be handled. 41 M.J. at 339.
Here the form does not clearly identify the discharge time, the
Marine Corps regulation specified that the discharge was
effective upon the delivery of the DD Form 214 and there is no
2
As noted by the majority, this regulation was amended in July
2003 to specify 2359 as the effective time of all discharges.
See MARCORSEPMAN, MCO P1900.16F, ch. 1, para. 1007(1), at 1-20
(July 18, 2003).
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United States v. Harmon, No. 05-0172/MC
allegation that the clerk who issued the DD Form 214 to Harmon
was working outside of his authority.
I also do not agree with the alternative argument presented
by the Government –- that the Navy-Marine Corps Court of
Criminal Appeals was correct in its conclusion that under Rule
for Courts-Martial (R.C.M.) 202(c)(2), court-martial
jurisdiction attached before 0900 because action with a view to
trial was taken prior to the delivery of the discharge
certificate.3 United States v. Harmon, 60 M.J. 776, 779 (N-M.
Ct. Crim. App. 2004). Examples of actions with a view to a
trial include “apprehension; imposition of restraint, such as
restriction, arrest, or confinement; and preferral of charges.”
R.C.M. 202(c)(2). We have also held that R.C.M. 202(c)(2) does
not provide an exhaustive list and that “other affirmative
action can also be taken ‘with a view to trial.’” United States
v. Self, 13 M.J. 132, 138 (C.M.A. 1982). We have further
explained that “[a]ny acts of military officials which
3
In Smith v. Vanderbush this court made it clear that once
court-martial jurisdiction attaches the command may choose to
take steps to defer an upcoming discharge and continue the
accused’s active service, but such action does not occur
automatically. 47 M.J. 56, 58 (C.A.A.F. 1997). The Navy-Marine
Corps court recognized this precedent, but added a qualification
to the Vanderbush requirements -- that the command be fully
informed about the nature of the investigation at the time the
discharge certificate is delivered. United States v. Harmon, 60
M.J. 776, 779-80 (N-M. Ct. Crim. App. 2004). This qualification
is not supported by Vanderbush or other precedent of this court.
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United States v. Harmon, No. 05-0172/MC
authoritatively presage a court-martial” can constitute actions
that trigger the attachment of jurisdiction. Id.In Self we concluded that sufficient actions had been taken
to create jurisdiction where, prior to receiving his discharge,
the accused was identified as a suspect, summoned to the Army
Criminal Investigation Division (CID) office, informed of the
offenses for which he was being investigated, informed of his
rights and then interviewed. Id. Here the Government argues
that court-martial jurisdiction had attached because “the
criminal investigation into the crimes committed upon HN Madden
had reach the point where the guilt of Appellant seemed
particularly clear.”
Sometime between 0815 and 1015 Harmon became a possible
suspect based on the victim’s statement to the CID that “the
suspect may be a PFC Harmon”. The record does not disclose
whether this occurred prior to 0900. At approximately 1020 CID
notified Harmon’s command that “he was a possible suspect in the
investigation” (emphasis added). At 1500 a “Deserter/Absentee
Wanted by the Armed Forces” (DD Form 553) was issued for
Harmon’s arrest and he was apprehended at approximately 1700.
At most, these facts support a finding that the victim may have
identified Harmon as a possible suspect prior to 0900. They do
not support a conclusion that the acts of “military officials .
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United States v. Harmon, No. 05-0172/MC
. . authoritatively presage[d] a court-martial” prior to 0900.
Self, 13 M.J. at 138.
Harmon was validly discharged at 0900 and there was no in
personam jurisdiction over him from that point forward. For
these reasons, I would reverse the decision of the lower court,
set aside the findings and sentence and dismiss all charges.
7