16 M.J. 746 | United States Court of Military Appeals | 1983
DECISION UPON FURTHER REVIEW
Continuing jurisdiction over the accused is the critical issue in this case. Finding in personam jurisdiction present, we affirm the accused’s conviction for larceny, in violation of Article 121, U.C.M.J., 10 U.S.C. § 921.
This case was before us earlier. In United States v. Fairchild, 14 M.J. 918 (A.F.C.M.R.1982), we noted that the accused was disputing jurisdiction for the first time on appeal, claiming that his offense of larceny occurred prior to his discharge and reenlistment, thereby preempting military jurisdiction over him. United States v. Ginyard, 16 U.S.C.M.A. 512, 37 C.M.R. 132 (1967); see also United States v. Clardy, 13 M.J. 308 (C.M.A.1982). Reasoning that the record was insufficient to permit an informed decision on the matter, we directed a limited hearing in accord with United States v.
The military judge ably developed the complex factual pattern; we adopt his findings of fact 1 through 21 as our own. We now set out those findings, together with copies of the relevant documents (Appendix A); the documents are themselves reproductions and additional copying may lose some fidelity. Be that as it may they will be presented and cross-referenced for reading ease and an A-B-C guide employed to show the reader the exact point being referenced. The military judge found as follows:
1. The OSI [Office of Special Investigations] investigation of the thefts of which the accused was eventually convicted was begun on 14 September 1981 and was not closed until 4 February 1982.
2. On 1 October 1981, OSI went to the accused’s residence, advised him of his rights and the nature of the offenses of which he was suspected.
3. On 2 October 1981, the accused was transferred from Indian Springs Air Force Auxiliary Field to Nellis AFB.
4. On 12 November 1981, the accused’s term of service under his enlistment of 13 May 1976 and a subsequent six month extension was due to expire. On that date the accused was in Pitts-burg, California, on emergency leave.
5. On that same date SMSgt L.R. Heberling and TSgt David Lewis, of the Nellis AFB Consolidated Base Personnel Office, discovered the impending expiration of the accused’s service and telephoned him at his leave location. They advised him of the situation and told him to go to Travis AFB to reenlist or extend his current enlistment. They were concerned that the accused would be separated without retirement benefits unless he took steps to stay on active duty.
6. The accused told SMSgt Heberling and TSgt Lewis that he was under investigation at Nellis AFB. They told him that the computer showed no charges pending and showed the accused eligible for reenlistment. They again told him to go to Travis AFB to attend to the matter.
7. There was coordination between the personnel offices at Travis AFB and Nellis AFB in regard to this matter. The Nellis personnel office advised the Travis office that the accused was eligible to reenlist and authorized Travis to proceed with reenlistment.
8. The accused again volunteered that he was under investigation. As a result, TSgt Gene A. Urabe, the Travis AFB Reenlistment and Separations NCOIC, again checked with Nellis AFB to insure the accused eligible to reenlist and was satisfied that it was appropriate to proceed with the reenlistment.
9. Before executing the oath of reenlistment the accused executed AF Form 901, Reenlistment Eligibility Annex to DD Form 4, [Figure 1] and DD Form 4, Enlistment/Reenlistment Document— Armed Forces of the United States (Prosecution Exhibit 2). [Figure 2] The AF Form 901 [Figure 1] was not completely executed. The CBPO action in Section II which calls for a review of the member’s records to insure eligibility and also provides for any reenlistment waiver was not executed. [A] The member’s action in Section III was executed but not dated. [B] In that section the accused’s signature indicates acknowledgement in part A that he was not at that time under investigation by military authorities. [E] The unit commander’s action in Section IY is not completed. [C] In that section the commander confirms eligibility and the absence of an investigation. Section V serves as the discharge order. The parties stipulated and the Court has found that this section was never signed. [D]
10. The AF Form 901 is referenced in Item 10 of the DD Form 4 as an additional detail of the reenlistment. [F] Item 15 of the DD Form 4, the acceptance of the applicant on behalf of the Air Force, is not properly executed. [G]
11. Despite the above noted discrepancies the accused was administered an oath of reenlistment at 1500 hours on 12*748 November 1981 at Travis AFB by Major C.G. May. [¶]
12. Within an hour of the reenlistment oath TSgt Urabe received a telephone call and thereafter asked for the accused’s copy of the DD Form 4. He advised the accused that his reenlistment was invalid and tore the original and copy in half. Prosecution Exhibit 2 is a copy of the torn forms. [The copies at Figures 1 and 2 reflect such tearing].
13. No separation order, discharge order or discharge certificate was ever accomplished or issued.
14. Prior to these events the accused knew that he was under investigation for theft of government property. He had been informed of this by the OSI when he was questioned on 1 October 1981. He had also consulted a military defense counsel and discussed the matter. He had not, however, been notified in writing by his commander regarding his enlistment ineligibility in accordance with AFR 35-16, Volume 1,25 May 1981, paragraph 6-6b. (Appellate Exhibit II.)
15. In accordance with AFR 35-16, Volume I, 25 May 1981, Table 6-2, item 9 (Appellate Exhibit II), the accused was ineligible to reenlist due to the ongoing OSI investigation.
16. This ineligibility should have been input into the personnel computer as a reenlistment ineligibility code. Such action was not initiated by the Security Police until 24 November 1981 (Prosecution Exhibit 3).
17. On 12 November 1981 a charge of a violation of Article 121, UCMJ, was preferred against the accused and was received on behalf of the officer exercising summary court-martial jurisdiction at 1830 hours the same day.
18. Although the accused’s leave address and telephone number were available to the unit commander, he did not inform the accused of the charge until the accused returned from leave on 25 November 1981.
19. In January 1982, 554CSG/DPMQ initiated action under AFR 35-16 to void the accused’s reenlistment (Prosecution Exhibit 6).
20. On 22 March 1982, the reenlistment was declared void by the Air Force (Prosecution Exhibit 11). On 29 March 1982 the reenlistment was voided in the Personnel Data System (PDS) and the accused’s prior enlistment was extended to 12 May 1982 under AFR 35-10, [sic] paragraph 3-3c and AFM 30-130, Volume I, Table 17-6, Rule 3.
21. AFR 39-10, 3 January 1977, paragraph 3-1, states that although airmen are absolutely entitled to separation from active duty on expiration of term of service, separation from the service is not automatic, and members remain in the service until administrative action is taken to discharge or separate them.
In a supplemental assignment of error appellate defense counsel claim that the military judge exceeded his authority by making conclusions of law. This issue need not detain us long. We will adopt the factual findings of the judge and render our own conclusions, without reference to the conclusions he found. This moots the matter.
Armed with thése facts, we find that in personam jurisdiction existed over the accused. United States v. Buckingham, 11 M.J. 184, 187 (C.M.A.1981).
During the DuBay hearing, individual defense counsel insisted that the accused’s taking of an oath was the single moving act of discharge and reenlistment — the historical “taking of the king’s shilling,” as it were. Such argument has a surface appeal. However, upon reflection, we reject such claim, finding no magic talisman to the swearing-in portion of the process.
It is immediately evident from AFR 35-16 and the relevant reenlistment documents that the oath is today but one step in the entire discharge and reenlistment process; the DD Form 4 must be completed and the conditions precedent met. More specifically, within AFR 35-16 three portions of the directive compel this conclusion. First, paragraph 6-2 provides that:
*749 When completed, the DD Form 4, Enlistment/Reenlistment Document — Armed Forces of the United States, becomes a mutually acceptable agreement between the airman and the United States Air Force... Once completed, it is a binding agreement by which the airman agrees to meet all aspects of the oath in return for compensation and benefits prescribed for the service concerned (emphasis added).
Second, paragraph 6-11 addresses processing of reenlistees, stating that Table 6-7 governs. Table 6-7 provides, at Step 7, that the unit commander of the reenlistee must confirm reenlistment eligibility by certification in Section IV of the AF Form 901; the table further provides at Step 8 that the Enlisting Officer conducts the reenlistment ceremony on the scheduled day by administering the oath of enlistment and recording the event on the DD Form 4. Third, Table 6-2, Item 9, Conditions Barring Immediate Reenlistment, notes that an applicant is ineligible to reenlist if under investigation by military authority.
Evaluating these provisions, we find it self-evident that the accused was not discharged from his enlistment of May 1976. The so-called “reenlistment” of 12 November 1981 was a nullity. Factually, it was initiated by conscientious personnel officials concerned with protecting the accused’s retirement. These events transpired even though the accused — commendably—told personnel at Travis AFB of the investigation in Nevada rendering him ineligible to reenlist.
Despite such activity, we find that the accused was not successfully discharged from his May 1976 enlistment; to the contrary, he was still bound by that enlistment and its oath. Our decision as to this matter is buttressed by four factors: (1) the data furnished by the accused himself that he was ineligible to reenlist; (2) the three important provisions of AFR 35-16 cited above; (3) the lack of the unit commander’s certification of eligibility for reenlistment; and (4) the absence of a discharge order.
It follows that the preferral of charges on 12 November 1981, prior to the expiration of the accused’s ongoing enlistment, extended that enlistment. Accordingly, the Air Force had in personam jurisdiction over the accused at the time of trial. See United States v. Barbeau, 9 M.J. 569, 573 (A.F.C.M.R.1980). See also United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970); United States v. Griffin, 13 U.S.C.M.A 213, 32 C.M.R. 213, 32 C.M.R. 213 (1962); United States v. Noble, 13 U.S.C.M.A. 413, 32 C.M.R. 413 (1962). See also Moyer, Justice and the Military §§ 1-211 and 1-242 (1972).
Finally, the accused raises the matter of sentence appropriateness. The accused is a senior noncommissioned officer who failed in his obligation by stealing in excess of $1,400.00 in property of the United States Government. We find the sentence entirely appropriate.
The findings of guilty and the sentence are
AFFIRMED.
This court has refused to utilize a simple automatic discharge standard in the parallel area of accused airmen who claim they have become civilians due to “self-executing” orders. See United States v. Barbeau, 9 M.J. 569 (A.F.C.M.R.1980). The same analysis and result obtains here.
