United States v. Douse

OPINION COOK, Judge: We are asked to decide whether the Government retained jurisdiction over the accused after the expiration of his term of enlistment. 10 M.J. 251. The military judge found it did; we agree and affirm. It is important at the outset to point out that this Court has only limited authority in this area. We cannot independently assess the credibility of witnesses or attach more or less weight to particular items of evidence, as our personal conviction dictates. We can only inquire whether as a matter of law evidence of record and the inferences that can properly be drawn therefrom support the trial judge’s determination that the Government “mov[ed] along at a fairly rapid pace” to attach court-martial jurisdiction by commencement of action with a view to trial. See Article 67(d), Uniform Code of Military Justice, 10 U.S.C. § 867(d). At the time of the events in issue, the accused was stationed at Clark Air Base, Republic of the Philippines. His initial separation date was November 28,1978, but he voluntarily extended it to April 28, 1979. In due course, a port call was scheduled for him on March 27, 1979, for his return to the United States for discharge. However, he was apprehended for wrongful possession of marihuana on March 15. The port call and accused’s request for early separation were cancelled and he was placed on administrative hold on March 16. These actions are not challenged by the accused. Resultantly, April 28, 1979, is the acknowledged date of expiration of accused’s term of enlistment. On April 5, the accused was identified as being involved in the larceny which formed the basis of the charge of which he stands convicted.1 On the following day he was interviewed by the security police and the investigation was closed. On April 9, the accused received Article 15, UCMJ, 10 U.S.C. § 815, punishment for possession of marihuana. The larceny investigation was reopened on April 19 and closed again on April 24.2 The next day the investigation was forwarded to the accused’s squadron commander. Charges were preferred on June 1. Between mid-April and June 1, 1979, the accused requested separation through his First Sergeant and, on another occasion pri- or to his termination date, he requested discharge from his commanding officer. The accused’s testimony is indeed to the effect that in his several conversations with the First Sergeant and his meeting with the commanding officer, he indicated he “wanted to be separated.” However, the stipulated testimony of the First Sergeant is materially different. According to the sergeant, the accused “came to the orderly room about three times and .. . complained about being retained at Clark, but” the accused “never demanded that he be sepa — 475 — rated.” The stipulated testimony of the commander is also different from that of the accused. It is to the effect that the accused “approached . . . [the commander] about when he would be able to leave Clark Air Base”; nothing in the stipulation indicates that the accused requested separation from the service. The stipulated testimony and other testimony by the accused support a finding by the trial judge that not until May 14 did the accused indicate dissatisfaction with his retention in the service, as distinguished from dissatisfaction with continuation of duty at Clark Air Base. On that date, the accused conferred with the military lawyer who later represented him at trial. He told the lawyer he “was supposed to have been discharged,” but “there was no paperwork [on it] or anything voluntarily extending .. . [his] tour of service in the Air Force.” As a result of his consultation with counsel, the accused went to the Consolidated Base Personnel Office “to request to be separated.” We granted review (10 M.J. 251) on the following issue: WHETHER THE COURT-MARTIAL LACKED PERSONAL JURISDICTION OVER THE APPELLANT AS THE GOVERNMENT FAILED TO TAKE ACTION WITH A VIEW TO TRIAL PRIOR TO THE EXPIRATION OF THE APPELLANT’S TERM OF ENLISTMENT. Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1), provides for continuation of court-martial jurisdiction over “[m]embers of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment’ (emphasis supplied). Accused’s counsel contend that the “awaiting discharge” clause was intended by Congress only “to permit the completion of court-martial actions [begun before expiration of the term of enlistment] against accused members whose terms of enlistment expire during the proceedings.” From that premise, counsel conclude that expiration of a service member’s term of enlistment precludes exercise of court-martial authority over him for an offense committed before such expiration, unless action with a view to trial by court-martial is commenced before the expiration date, as provided in paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition).3 If they are correct, this Court was wrong to hold, as it has, that “[a] person subject to the Code continues in service until the formalities of a discharge or release from active duty have been met or he objects to his continued retention and a reasonable time expires without appropriate action by the Government.” United States v. Hutchins, 4 M.J. 190, 192 (C.M.A.1978); most recently reaffirmed in United States v. Wheeley, 6 M.J. 220 (C.M.A.1979). Appellate defense counsel refer to three comments in the legislative background materials of the Uniform Code to support their construction of the “awaiting discharge” clause of Article 2(a)(1). Two of the references are to a comment in the respective reports of the House and Senate Armed Services Committees on the bill recommended to Congress. The comment is incapable of supporting a construction having the meaning attributed to it by counsel. The comment appears in each report in a — 476 — section providing analysis of the bill. Each report reads as follows: House Report No. 491 on H.R. 4080, 81st Cong., 1st Sess., p. 10 (1949) Article 2. Persons subject to the code Paragraph (1) is an adaptation of AW 2(a).[4] The term “inductees” has been added to make the paragraph consistent with section 12 of Public Law 759, “the Selective Service Act of 1948.” Senate Report No. 486 on H.R. 4080, 81st Cong., 1st Sess., p. 7(1949) Article 2. Persons subject to the code Paragraph (1) is an adaptation of AW 2(a) and is consistent with section 12 of the Selective Service Act of 1948. See Index and Legislative History, Uniform Code of Military Justice (1950). Part of a letter by Senator Pat McCarran, Chairman of the then Committee on the Judiciary, to Senator Millard E. Tydings, Chairman of the Senate Armed Services Committee, constitutes the third reference relied upon by appellate defense counsel. The letter is included in the record of the hearings by a Senate Subcommittee. Hearings on S. 857 and H.R. 4080 Before a Subcommittee of the Senate Armed Services Committee, 81st Cong., 1st Sess. 102 (1949). It refers to Senator McCarran’s “long” interest in the courts-martial system and the “intensive study” he had made of the Senate bill. Plainly, it expresses only the Senator’s personal recommendations, not those of the Committee on the Judiciary. As to Article 2, Senator McCarran said (id. at 103): Article 2 lists the persons who are subject to the code. Included are persons “awaiting discharge after the expiration of their terms of enlistment.” The commentary of the Committee on a Uniform Code of Military Justice found on page 5 of Uniform Code of Military Justice-— Text, References, and Commentary * * * merely states that paragraph 1 in which this provision appears “is an adaptation of A. W. 2 (a).” However, a perusal of that section fails to disclose any such authority to hold a man subject to the Articles of War after the expiration of an enlistment. If this is to remain in the code it should be qualified to make certain that the code applies only to personnel held after the expiration of their enlistments pursuant to the legal order of a court-martial as provided in paragraph (7). [Article 2(a)(7), UCMJ, provides for continuing jurisdiction over “[pjersons in custody of the armed forces serving a sentence imposed by a court-martial.”] Since the “awaiting discharge” provision was enacted without change, the Armed Services Committees and Congress obviously were not persuaded by Senator McCarran’s letter — either to entirely preclude continuing jurisdiction after expiration of a term of enlistment or to limit such jurisdiction in that instance to persons in military custody while serving a court-martial sentence. Eight of the nearly 30 witnesses who testified on the bill at the House Subcommittee Hearing commented on Article 2. Many recommended elimination of or changes to various subdivisions of the Article, including subdivision (1). No one, however, questioned the literal language or the facial meaning, of the “awaiting discharge” clause. Hearings on H.R. 2498 Before a Subcommittee of the House Armed Services Committee, 81st Cong., 1st Sess. 683, 691, 706-09, 743 — 48, 768, 771, 799, 810, 817, 825, 833-35 (1949) (hereafter House Hearings). See also summary of the recommendations in House Report No. 491, supra at 4 — 5, 9. The concept has long been a part of military law, although not expressed in a statute. In In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890), the Supreme Court noted that enlistment in an armed force is more than a contract obligation; it creates a status. That status does not end eo instanti on “expiration of the regular period of enlistment.” United States v. Dickenson, 6 U.S.C.M.A. 438, 448, 20 C.M.R. 154, 164 (1955), jurisdiction sustained sub nom. Dickenson v. Davis, 245 F.2d 317 (10th Cir. 1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958). Continuation of the status continues amenability to the Uniform Code and trial by court-martial de — 477 — spite expiration of the term of enlistment. United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970). Attachment of court-martial jurisdiction before expiration of the term of enlistment, as provided in paragraph lid of the Manual, supra, is but one example of involuntary retention beyond the established date of separation. With worldwide deployment of American forces abroad, which was well known to Congress when it enacted the Uniform Code, recurrent alerts and crises situations must be expected to require cancellation or postponement of the scheduled departure of many service persons from a foreign country for the United States for discharge. Such postponements of departure are likely to result in postponements of discharge beyond the service members’ respective terms of enlistment. Within the United States, a service member while processing for discharge may be seriously injured so as to necessitate postponement of discharge to a time past the expiration date of the term of enlistment. Cf. Article 2(a)(5). Flood or other national disaster may also compel postponement of the discharge of service members because the medical and administrative personnel regularly assigned to process them for discharge are needed to care for victims of the disaster. As long as a service member is “awaiting discharge after expiration of . . . [his term] of enlistment,” he remains subject to court-martial for an offense committed before or after expiration of his enlistment, without regard to whether action has been taken with a view to trial. Cf. United States v. Smith, 4 M.J. 265, 267 (C.M.A.1978) (Fletcher, C. J., concurring in the result). How long may a person remain “awaiting discharge” after expiration of his term of enlistment? As indicated earlier, Hutchins held that the condition “continues . .. until the formalities of a discharge . . . have been met, or” the person “objects to his continued retention and a reasonable time expires without appropriate action by the Government.” 4 M.J. at 192. If the Government fails to discharge the accused on the date fixed by his term of enlistment, and the accused does not object, the Government cannot deny the accused the privileges, prerogatives, and emoluments of his status and rank; conversely, the service member cannot set aside his duties and responsibilities as a person belonging to “a regular component of the armed forces.” Article 2(a)(1); see United States v. Noyd, 18 U.S.C.M.A. 483, 40 C.M.R. 195 (1969). Should a member object to retention beyond the term of enlistment, as the accused did here, he cannot just walk away on the date of expiration of his enlistment, saying that his status has ended and he is no longer in the service. However, this Court has held that the member’s objection has legal significance. It operates to circumscribe the right of the military to subject him to trial by court-martial for a violation of the Code. Under the limitation, the Government has only “a reasonable time ... [to take] appropriate action.” United States v. Hutchins, supra at 192. What kind of action is appropriate? Obviously, actual discharge is an appropriate action5; so is “action with a view to trial,” as provided in paragraph lid, Manual, supra, before expiration of the “reasonable time” allowed the Government. Our cases on continuing jurisdiction, therefore, are complementary, not contradictory. They manifest two bases for assertion of jurisdiction beyond the term of enlistment. One is the provision of Article 2(a)(1) that a service member “awaiting discharge after” the term of enlistment remains subject to trial by court-martial under the Code. The second basis is the taking “of action with a view to trial” sufficient to attach jurisdiction before the occurrence of an event that would otherwise terminate the service member’s amendability to trial by court-martial. Two situations are comprehended within this category: (a) The service mem — 478 — ber objects to retention beyond his term of enlistment, but, within a “reasonable time” thereafter, the Government acts “with a view to trial” in respect to an offense committed before expiration of the term of enlistment or one committed after that date but within the “reasonable time” period; or (b) the Government acts “with a view to trial” in respect to an offense committed before expiration of the term of service, and thereafter, the accused has demanded discharge (United States v. Hout, supra), or is, in fact, discharged. United States v. Robertson, 8 U.S.C.M.A. 421, 24 C.M.R. 231 (1957); United States v. Speller, 8 U.S.C.M.A. 363, 24 C.M.R. 173 (1957). Application of both bases for continuing jurisdiction requires an understanding of the concept of “action with a view to trial.” Application of basis (a) also requires an understanding of the term “reasonable time.” As the accused affirmatively requested his discharge in this case, both the concept and the term require consideration. In United States v. Hudson, 5 M.J. 413 (C.M.A.1978), the majority opinion points out that two standards were propounded to test “the sufficiency of action to satisfy the requisites for continuing jurisdiction”; and both were considered. The opinion states the situation as follows: In United States v. Smith, supra, two general definitions were propounded by which to assess the sufficiency of action to satisfy the requisites for continuing jurisdiction. The . . . [majority] opinion noted that the action must be “official’ and of a nature that “authoritatively signaled .. . [the sovereign’s] intent to impose its legal processes upon the individual.” Id. at 267. The separate concurring opinion posited that the action must be of a kind to provide the accused with “sufficient notice to give rise to legal remedy in the event of a wrong committed in the process of justice.” Id. at 419. I agree fully with the implication of Judge Perry’s opinion in Smith that action taken to continue jurisdiction need not be communicated to the accused to give it legal efficacy. For example, attachment of jurisdiction occurs on the “filing of charges” (para, lid, Manual, supra), which can occur a considerable time before the accused is apprised of them. See Article 30(b), UCMJ, 10 U.S.C. § 830(b). Mr. Felix Larkin, Chairman of the working group that developed the Uniform Code bill for the Morgan Committee on the Uniform Code of Military Justice, advised the House Subcommittee, that an accused may be absent from the command, with or without authority, at the time of filing of the formal charges, and so he cannot be apprised of them at that time. House Hearings at 983. We are satisfied, therefore, that the concept of jurisdiction — attaching actions as explicated in paragraph lid does not demand that notice be given the accused as a prerequisite to their legal vitality. As to the term “reasonable time,” it is undeniably elastic. But its elasticity does not deprive it of rational containment. In that respect, it is like the requirement that. individual military counsel desired by an accused be “reasonably available,” Articles 32(b) and 38(b), UCMJ, 10 U.S.C. §§ 832(b) and 838(b); or like the requirement of proof “beyond reasonable doubt” for a finding of guilty. Article 51(c), UCMJ, 10 U.S.C. § 851(c). Necessarily, determination of what constitutes a reasonable period of time for accomplishment of a specified action requires consideration of the totality of the relevant circumstances. That was the test this Court used in its first consideration of a congressional command that designated government action be completed within a period of time not measured by the calendar. That instance involved Article 10, UCMJ, 10 U.S.C. § 810, which provides that, “[w]hen a ... [service member] is placed in arrest or confinement . .. immediate steps . . . [must] be taken ... to try him or to dismiss the charges and release him.” Initially, the Court measured the immediacy of the Government’s post-confinement steps by the totality of circumstances that bore upon the bringing of the accused to trial. United States v. Hounshell, 7 U.S.C.M.A. 3, 21 C.M.R. 129 (1956). — 479 — Later, when it became apparent that a stricter prophylactic rule was needed to guard against violation of Article 10, the Court introduced a rebuttable presumption that delay in excess of 90 days between imposition of restraint upon the accused’s freedom of movement and trial constituted a violation of Article 10 that was prejudicial to the accused. See United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974). So few attachment-of-court-martial-jurisdiction cases appear in the reports of this Court and the service Courts of Military Review6 that we discern no need for adoption of a similar time-lapse presumption in determination of the “reasonable time” requirement.7 Paragraph lid of the Manual notes that the “filing of charges” constitutes “action with a view to trial” sufficient to continue court-martial jurisdiction beyond the date of expiration of service. Neither the Uniform Code nor the Manual defines specifically the “filing of charges.” The phrase, however, appears in the comments of several persons in the record of the hearings before the House Subcommittee on the Uniform Code in connection with the receipt of charges by a summary court-martial authority of the command for the tolling of the statute of limitations. House Hearings at 1036, 1040 — 43. It may be that the term is used synonymously with the “preferring of charges,” which consists of signing them with a sworn certification of personal knowledge or investigation of the facts “and that they are true in fact to the best of ... [affiant’s] knowledge and belief.” Article 30(a), UCMJ, 10 U.S.C. § 830(a). Cf. United States v. Smith, supra at 266. Both actions in this case were taken on June 1, 1979. Thus, the period between what the trial judge could have found to be accused’s first objection to retention past his extended term of enlistment would be that between May 14 and June 1, a total of 18 days. The trial judge concluded that the Government had proceeded “at a fairly rapid pace.” As the trial judge had shortly before referred to the statement in Hutch-ins that after accused objects to continued retention, he remains subject to trial by court-martial until “a reasonable time expires without appropriate action by the Government,” 4 M.J. at 192, we construe the judge’s conclusion to mean that he found the period stated to be reasonable. Certainly, the Government’s action in filing the charges rather than processing the accused for discharge was appropriate. Others, more anxious about the possibility of losing jurisdiction over the accused, might have proceeded more expeditiously. We cannot say, however, that, as a matter of law, the action taken here, in a major command in a foreign country, was too long delayed. We, therefore, sustain the trial judge’s ruling and affirm the decision of the United States Air Force Court of Military Review. Footnotes [1] The accused was tried by general court-martial and was convicted, despite his pleas, of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. He was acquitted of a related charge of burglary, in violation of Article 129, UCMJ, 10 U.S.C. § 929. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 2 years, forfeiture of $350.00 pay per month for 24 months, and reduction to Airman Basic. [2] This case is a companion to United States v. Bennett, 12 M.J. 463 (C.M.A.1982). The peculiar facts surrounding discovery of the involvement in the larceny of the several participants are detailed there. [3] Paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition), states: Jurisdiction having attached by commencement of action with a view to trial — as by apprehension, arrest, confinement, or filing of charges — continues for all purposes of trial, sentence, and punishment. If action is initiated with a view to trial because of an offense committed by an individual before his official discharge — even though the term of enlistment may have expired — he may be retained in the service for trial to be held after his period of service would otherwise have expired. Similarly, if jurisdiction has attached by the commencement of action before the effective terminal date of self-executing orders, a person may be held for trial by court-martial beyond that terminal date. See also Article 2(1). [[4]] 4. Article of War 2(a), Sec. 1, Chap. 2, Act of June 4, 1920 (41 Stat. 787), as amended in succeeding years through Act of June 24, 1948 (P.L. 759, 80th Cong., 2d Sess.). [5] We need not consider here what remedies the service member has for improper retention beyond expiration of his term of enlistment. [6] Allowing for a 5 percent margin of error in computer search, only 45 cases appear to have considered the subject. This Court alone has, to date, docketed more than 40,000 regular appeals. [7] We do not intend the analogy to Article 10, UCMJ, 10 U.S.C. § 810, cases to suggest that the excess of 90-day period in those cases is appropriate for all retention cases. See text discussion, 12 M.J. 473, 479.