(CMA, 1985). There, the accused finished his out-processing and signed out of the
command on the morning of 22 August, at which time he was given his discharge
certificate. The commander, however, believed that the discharge was not effective
until 2400 hours.
The court concluded otherwise, and held that when the soldier
was given the discharge certificate earlier, military jurisdiction ended.
The
court explained that the discharge "is effective upon delivery of the discharge
certificate." The delivery of the discharge certificate shows that the transaction
is complete.
Although AR 635-200 authorized the commander to hold the soldier
until 2400 hours, "the commander made an informed decision to allow appellant to be
discharged at an earlier time when he authorized him to pick up his discharge
certificate, as well as his DD Form 214 and travel pay, and allowed him to be
released form the boundaries of the military reservation before any action was
taken with a view to trial by court-martial."
One way to avoid this problem would be to have the discharge itself specify a time
when it is effective. When the discharge, as in the Howard case, does not contain
a specific time, the discharge is effective on delivery.
There are a couple of
exceptions to this rule.
First, the discharge is not effective if there is an
erroneous delivery of a discharge certificate.
An example is the case of United
States v. Garvin, 26 M.J. 194 (C.M.A. 1988)), where a Bad Conduct Discharge
certificate was delivered when it was not legally permissible to do so.
Another
exception is where a discharge is delivered for the purpose of effecting an
enlistment. In United States v. King, 27 M.J. 327 (C.M.A. 1989), the soldier was
given an early discharge certificate solely for the purpose of reenlistment. When
informed of the discharge, the soldier refused to enlist and absent himself without
authority.
The Court held that the soldier was still subject to the UCMJ, and
states that three elements must exist to accomplish an early discharge:
a. Delivery of a valid discharge certificate.
b. A final accounting of pay.
c. Undergoing a "clearing" process as required under
appropriate
service
regulations to separate the member from the military.
QUESTION:
SUPPOSE A SOLDIER IS GOING TO ETS IN TWO DAYS.
IS THERE ANYTHING WE
CAN DO TO PREVENT THE LOSS OF COURT-MARTIAL JURISDICTION?
ANSWER:
YES.
RCM 202(c)(2) STATES: "ACTIONS BY WHICH COURT-MARTIAL JURISDICTION
ATTACHES
INCLUDE:
APPREHENSION,
IMPOSITION
OF
RESTRAINT,
SUCH
AS
RESTRICTION, ARREST, OR CONFINEMENT, AND PREFERRAL OF CHARGES.
ONCE
ATTACHED, THAT JURISDICTION CONTINUES NOTWITHSTANDING THE EXPIRATION OF
THAT PERSON'S TERMS OF SERVICE." (RCM 202(c)(1).) SUCH A SOLDIER. THEN,
REMAINS SUBJECT TO THE UCMJ. U.S. V. BENFORD, 27 MJ 518 (NMCMR 1988).
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