United States v. Hout

Opinion Quinn, Chief Judge: Brought to trial before a general court-martial at McCoy Air Force Base, Florida, on seven specifications of larceny of Government money, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, the accused moved to dismiss the charges on the ground the court-martial had no jurisdiction over him and because he was allegedly denied a speedy trial. The motions were denied. Thereupon, the accused entered a plea of guilty, and the court-martial imposed a sentence extending to a dishonorable discharge.1 On this appeal, the accused challenges the correctness of the denial of his motions. We consider first the jurisdictional question. The accused was assigned to duty in the Base Finance Office. Discrepancies in the accounts handled by him and others in the office came to the attention of the authorities on January 10, 1968. The next day, the accused was questioned by an agent of the Office of Special Investigations. When he requested counsel, the interview was rescheduled. The events that transpired thereafter are set out in the Appendix to this opinion. It is sufficient to note here that the accused’s term of enlistment expired on January 14, 1968, but he was not released from active duty at that time, and formal charges were not preferred against him until September 30, 1968. In essence, the accused contends that sometime during this in [301] terval military jurisdiction over his person ended by operation of law, and he was not triable by court-martial at the time of his arraignment. Enlistment in an armed force does not establish a contract relationship between the individual and the Government, but a status. United States v Blanton, 7 USCMA 664, 665, 23 CMR 128 (1957). As a result, passage of the date provided for release from the service in the terms of enlistment does not operate of its own force to effect a discharge. United States v Klunk, 3 USCMA 92, 11 CMR 92 (1953); United States v Dickenson, 6 USCMA 438, 20 CMR 154 (1955). In other words, the scheduled date of discharge is not self-executing. Cf. United States v Brown, 12 USCMA 693, 31 CMR 279 (1962) ; United States v Schuering, 16 USCMA 324, 36 CMR 480 (1966). This principle is embodied in Article 2(1), Code, supra, 10 USC § 802, which, in material part, provides that persons “awaiting discharge after expiration of their terms of enlistment” remain subject to the Uniform Code and trial by court-martial. See United States v Griffin, 13 USCMA 213, 32 CMR 213 (1962). As of January 14, 1968, the date of expiration of his enlistment, the accused was undeniably entitled to be separated from the service. No effort, however, was made to process him for discharge. The Government contends that the steps it took, as disclosed in the chronology, conformed with the Manual for Courts-Martial provision as to “action . . . initiated with a view to trial” and, therefore, justified the accused’s retention “in the service for trial to be held after his period of service would otherwise have expired.” Manual for Courts-Martial, United States, 1951, paragraph lid. Oppositely, the accused maintains that the “administrative hold” placed in effect, unlike arrest or restraint which requires probable cause (United States v Haynes, 15 USCMA 122, 35 CMR 94 (1964)), was insufficient action to justify his retention on active duty beyond the expiration of his enlistment. See Chief Judge Quinn’s opinion in United States v Rubenstein, 7 USCMA 523, 22 CMR 313 (1957). The merits of the opposing contentions need not be considered. At the expiration of enlistment, a serviceman is, as the Air Force regulations on the subject indicate, “absolutely entitled to separation from active duty.” Air Force Manual 39-10, August 22, 1966, chapter 3, section A, paragraph 3-1, amended by change 4, May 21, 1969. In a limited number of circumstances, however, he may be retained past the expiration date, despite his personal objection to continued service. One occasion for retention, for example, is that he make good time lost by his own misconduct during the period of service. 10 USC § 972. When no good cause exists to retain him beyond expiration of the enlistment, the serviceman may demand his release, and the Government is bound to grant it. However, if the Government does not affirmatively act to effect his discharge and the accused is satisfied to remain on active duty, the existing status is continued. Performance of assigned duties and receipt of the emoluments and benefits of his rank indicate the serviceman’s consent to continuation of his status. United States v Downs, 3 USCMA 90, 11 CMR 90 (1953) ; United States v Scott, USCMA 655, 29 CMR 471 (1960) United States v Scheunemann, 14 US CMA 479, 34 CMR 259 (1964). Should the serviceman indicate a desire to be discharged, as provided by his enlistment, the Government must comply with his request within a reasonable time or risk the conclusion that his continued performance of duty was not consensual but involuntary. United States v Johnson, 6 USCMA 320, 20 CMR 36 (1955); United States v Overton, 9 USCMA 684, 26 CMR 464 (1958). Here, there is, in my opinion, no evidence that the accused desired discharge immediately after the expiration of his enlistment. From the Government’s evidence and his own testimony, it fairly appears that he performed his assigned duties without [302] protest; that at the end of each day’s work he left the base to spend the night with his family in his apartment in the civilian community and returned voluntarily to the base each morning; that he had the “weekends off” and regularly returned to the base; that he applied for, and received, leave from February 20th to March 21st; and that, without reservation of any kind, he received his allowance for quarters and his regular pay each payday from January through September. On the latter date, according to the chronology, he was informed of the charges. He wrote a letter to the Base Commander requesting individual defense counsel. In that letter, he represented, for the first time, that he had been detained “against [his] will since 13 January 1968.” The representation is contrary to the evidence cited above and has no support in the chronology of events. Despite the accused’s assertion, the record amply demonstrates that, until the letter, he consented to his retention in the service.2 From January 14th to Sepember 30th, therefore, the accused retained the unqualified status of a person on active duty subject to the Uniform Code of Military Justice. United States v Downs, supra. Turning to the effect of the accused’s letter of September 30th, it is apparent that, as of that date, the accused was still in a miliary status. His protest against retention did not automatically effect his discharge. At best, it indicated, as above, that he did not consent to further retention in the service notwithstanding his continued performance of duty and continued receipt of pay and allowances. On that day, however, the accused’s right to discharge changed. Where previously he was “absolutely entitled to separation” because of the expiration of the period of his enlistment, the filing of charges on September 30th qualified his right to discharge. From that point on he could be retained, even over his protest, until the charges were disposed of by dismissal or trial. Manual for Courts-Martial, supra, paragraph lid; United States v Schuering, supra. With the filing of charges against him, the accused was entitled to a speedy disposition of them. United States v Keaton, 19 USCMA 64, 41 CMR 64 (1969). The chronology of events from September 30, 1968, to December 11,1968, the date of trial, indicates that, allowing for the periods of delay attributable to the accused, the proceedings were reasonably expeditious. United States v Przybycien, 19 USCMA 120, 41 CMR 120 (1969). The decision of the board of review is affirmed. Footnotes [1] On review, the convening authority mitigated the dishonorable discharge to a period of confinement, [2] The dissenting opinion indicates that the accused’s leave was subject to unusual limitation on his freedom of movement. The base legal officer testified that the only “guidance . . . [he] gave” in the matter was to the effect that all the individuals involved in the investigation “leave information with the orderly room where they could be contacted in the event it was necessary to contact them.” Staff Sergeant D. W. Obenshain, who processed the accused’s application for leave, testified that the application contained no telephone number where the accused could be reached during his leave. Since he knew the accused was under investigation, he telephoned the base legal office. He was informed the accused could go on leave “as long as he can be contacted”; then, either he or the accused “suggested” that the accused call “in a few days.” According to Sergeant Obenshain, it was not “something out of the ordinary” to ask a man going on leave to call in “if he’s going to be needed at the base”; he had himself gone on leave “under these conditions.” At no time did Obenshain tell the accused he could not “leave town.” Staff Sergeant K. L. Gavin, who was in the base legal office, testified that, on four or five occasions during the period of the accused’s leave, the accused telephoned the office. He described each conversation as a “routine call” to determine the status of the investigation and whether the matter was “going to trial.” I do not construe the circumstances of the accused’s leave as any sort of objection to continuation of his military status during the period of the investigation.