Where the Personal Jurisdiction Ends:
A Bright-Line Rule for Determining When the Military Loses in Personam Jurisdiction

The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds.1

I. Introduction

The Court of Appeals for the Armed Forces (CAAF) has struggled with personal jurisdiction for over thirty years. As it most recently acknowledged in United States v. Christensen, “the [Uniform Code of Military Justice (UCMJ)] does not state when a servicemember’s discharge from the armed forces becomes effective for jurisdictional purposes, and thus does not specifically address when a servicemember is no longer subject to being court-martialed.”2 In fact, it is often difficult to determine the exact moment when in personam court-martial jurisdiction ends.3 The CAAF recognizes as black-letter law that a court-martial loses jurisdiction upon a Soldier’s discharge absent some specific “saving circumstance or statutory authorization.”4 The court has relied on two statutes, 10 U.S.C. §§ 1168(a) and 1169 (2012), to guide its judge-made law in this area.5 This reliance led to the creation of a three-part test that determines when personal jurisdiction over a service member ends.6 The court requires (1) “delivery of a valid discharge certificate”; (2) “a final accounting of pay”; and (3) the undergoing of a “clearing process required under appropriate service regulations.”7

The stakes for correctly articulating the law on this issue are high. After Christensen, CAAFlog—a military-justice blog—identified personal jurisdiction as the number four Military Justice Story of 2018 in its annual ranking of headline-making cases, illustrating the intense discussion it generated among the military’s legal practitioners.8 Valid military discharges serve as the line of demarcation from military to civilian status.9 Since the UCMJ does not define this point exactly, practitioners need clear guidance before expending the significant resources involved in prosecuting and defending a court-martial of an individual whom the military no longer has jurisdiction to prosecute. Nothing less than an individual’s liberty is at stake. The CAAF’s three-part test has proved challenging for the field as evidenced by the court’s frequent foray into this area of the law.10 This article offers a simple solution: personal jurisdiction ends at 2400 on the date of a valid, approved discharge certificate.

This article consists of four substantive parts. Part II reviews the history and foundation of court-martial jurisdiction, providing a framework for an analysis of the CAAF’s law on personal jurisdiction. This portion of the article begins with an overview of military jurisdiction before analyzing the Due Process Clause of the Fifth Amendment and Article I’s Make Rules Clause. Both of these constitutional components are featured prominently in any understanding of a court-martial’s reach. Part II also discusses the relevant Supreme Court precedents, discussing why these decisions underscore a more narrow view of a court-martial’s jurisdiction.11 Ultimately, this section provides the constitutional backdrop of the CAAF’s law on court-martial jurisdiction.

Part III analyzes the development of the CAAF’s jurisprudence on when personal jurisdiction ends, starting with the court’s landmark decision in 1985.12 This Part analyzes Howard and its progeny, focusing on the court’s reasoning and analysis of in personam jurisdiction. This section also examines the CAAF’s most recent retreat from its test in United States v. Nettles in 2015 and Christensen in 2018.13 Notably, this article does not address when the military loses in personam jurisdiction as a result of court-martial punishment, desertion, or fraudulent separation. These specific areas of personal jurisdiction have spawned their own jurisprudence. Rather, this article focuses on a service member’s discharge prior to their expiration of term of service (ETS).14

Part IV provides a critical analysis of the CAAF’s current three-part test. The test, based on sections 1168(a) and 1169, has proved difficult in practice for the court to apply—as the CAAF seemingly acknowledged in Nettles and Christensen.15 Part IV critiques each part of the test, concluding that the CAAF’s reliance on personnel statutes is misplaced and inconsistent with the legislative history and purposes of sections 1168(a) and 1169.16 Overall, the current jurisprudence fails to provide straightforward guidance to the field, and the Nettles “reason or policy” gloss fails to adequately address the shortcomings of the test.17 Consequently, a wholesale change is necessary.

Part V proposes a solution: personal jurisdiction for active-duty service members ends at 2400 on the date of a valid discharge certificate. This bright-line rule construes personal jurisdiction narrowly and provides a workable test for practitioners in the field. The CAAF should acknowledge that Howard was a “wrong turn” in its jurisprudence and chart a new way forward.18 Part V advocates for a simple approach that is not dependent on delivery of a Department of Defense (DD) Form 214, military finance, or clearing a military post—the three elements of the current test. Without the action of Congress or the Service Secretaries, the CAAF should modify the three-part test. The court’s case law on valid discharges is robust enough to weed out possible hitches, including fraud, reenlistments, and other potential pitfalls that might stymie a bright-line rule.19 This article’s proposed test would provide judge advocates and commanders the guidance they crave and will eliminate the many issues they face in determining the precise reach of a court-martial.

II. A Limited Court: The Scope of Court-Martial Jurisdiction

A. An Overview of Court-Martial Jurisdiction

Courts-martial are a limited criminal court for service members.20 Section 8, Article I, of the U.S. Constitution authorizes Congress to regulate the armed forces, which it did in the form of the UCMJ.21 The UCMJ serves as the subject-matter jurisdiction for military tribunals—the laws Soldiers must follow while serving.22 The UCMJ is not geographically specific; courts-martial have worldwide jurisdiction for offenses service members commit.23 This feature is critically important since the military’s criminal code serves as a disciplinary tool for commanders whose units deploy worldwide in defense of the Nation.24

As a “creature of statute,” courts-martial depend upon certain jurisdictional hooks to function—none more important than personal jurisdiction.25 In personam jurisdiction boils down to status: is the individual a Soldier or a civilian?26 For the majority of cases, the answer is clear. At the margins, however, questions can, and do, arise. Jurisdiction attaches once an individual joins the military and transitions from civilian to Soldier.27 This article does not address jurisdictional inception, which has its own unique jurisprudence from the CAAF.28 Likewise, wartime operations have raised interesting questions regarding jurisdiction over “persons serving with or accompanying an armed force in the field”; for example, civilian contractors on the battlefield.29 This article does not tackle that matter.

Rather, this article focuses on the termination of jurisdiction. This inquiry requires a particular focus since numerous categories of armed-forces personnel exist. The generally accepted rule is that a discharge severs jurisdiction and changes a Soldier’s status to that of a civilian.30 The military courts have carved out different jurisdictional rules for continuing jurisdiction,31 reenlistments,32 fraudulent discharges,33 deserters,34 retirees,35 and sentenced prisoners.36 However, this article cannot delve into the intricacies and nuances of each of those unique categories, including the rather complex jurisdictional web for National Guard and Reserve Component Soldiers.37 It will certainly touch on those topics when relevant (and, in particular, when case law implicates the specific issue analyzed in this article). This article, however, addresses the best legal test to determine when personal jurisdiction ends for the “early discharge” of an active-duty service member.38

B. Discharges: Winthrop, DD Form 214s, and the Army’s Regulations

The military’s highest appellate court recognizes as black letter law “that in personam jurisdiction over a military person is lost upon his discharge from the service, absent some saving circumstance or statutory authorization.”39 The nuance of “upon his discharge” created a complex maze of case law that resulted in more questions than answers.40 William Winthrop, the illustrious legal scholar on military law, dedicated a few pages of his famous Military Law and Precedents to discharges, through analysis of the Fourth Article of the Articles of War—the military code that served as a precursor to the UCMJ.41 The Fourth Article commanded that:

No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer when no field officer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.42

Winthrop recognized discharges as “the act of the United States through its official representative,” noting that “there should be a delivery to the soldier of the written form in order to give effect to the discharge.”43 Winthrop acknowledged that a service member “shall receive an instrument of discharge in writing, signed by a commanding or other specified officer.”44 This requirement arguably persists to this day in the form of the DD Form 214.45

Each Soldier discharged from the service will receive a DD Form 214.46 Army Regulation (AR) 635-5, Separation Documents, governs how to complete the DD Form 214 while AR 635-200, Active Duty Enlisted Administrative Separations, dictates how they are issued for enlisted personnel.47 Army Regulation 635-200 provides that—with a few limited exceptions—“[t]he discharge of a Soldier ... is effective at 2400 on the date of notice of discharge to the Soldier.”48 Army Regulation 600-8-24, Officer Transfers and Discharges, governs officer discharges, but does not specify an exact time when discharges become effective.49 Importantly, AR 635-200 points out that notice to the Soldier of the discharge may be either actual or constructive.50

Similarly, Winthrop explained that the Fourth Article required delivery of the discharge certificate to the service member, acknowledging that notice could be either personal or constructive.51 He even distinguished between the types of discharges.52 He recognized a distinction between discharge by sentence of a court-martial and discharge by order of a military official.53 The former manifesting a punitive separation from the military while the latter reflected the end of a service member’s contract.54 This article focuses on the latter, but acknowledges supra Part II.A that punitive discharges have spawned their own jurisprudence from the military’s courts.55

In today’s armed services, a service member’s discharge manifests itself most prominently in the form of the DD Form 214.56 Winthrop concluded that a “discharge is ... final in detaching the recipient absolutely from the army under the enlistment to which it relates, and, so far, from military jurisdiction and control, and, (thus far also,) remanding him to the status and capacity of a civilian.”57 Thus, a legally effective discharge determines when the military loses personal jurisdiction over a service member.58

C. The Anchor of Personal Jurisdiction: The Fifth Amendment

Personal jurisdiction reflects a court’s inherent power.59 With respect to courts-martial, this power must be circumspect since the Founders established Article III tribunals to serve the primary judicial role in American society.60 Article III tribunals contain the full panoply of bill-of-rights protections, something applied differently in courts-martial.61 Any jurisprudential test that implicates the dividing line between military and civilian status must respect that reality. The following two Parts provide an overview of the foundational law on court-martial jurisdiction, starting with the Due Process Clause of the Fifth Amendment and concluding with the Make Rules Clause of Article I.

The Fifth Amendment commands that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.”62 This clause constrains a court’s power to exercise its authority—or jurisdiction—over an individual.63 The Due Process Clause “sets the floor for personal jurisdiction, but statutes and other sources provide the implementation.”64 This central idea “that a court does not have unlimited authority over every person predates the adoption of either the Fifth Amendment or the Fourteenth Amendment.”65 It finds its origins in English common law.66 As a result, the Supreme Court’s “personal jurisdiction jurisprudence has always been anchored in due process.”67

The Fifth Amendment Grand Jury Indictment Clause specifically excepts cases “arising in the land or naval forces.”68 Consequently, a military court cannot reach beyond its legitimate authority without running afoul of the Constitution’s requirement to secure an indictment. This manifests as a prohibition against subjecting civilians to courts-martial absent very specific circumstances.69 As a result the line of demarcation between military and civilian implicates legitimate constitutional concerns.70 These concerns should inform the CAAF’s three-part test for determining when a court-martial no longer has in personam jurisdiction over a service member. The Fifth Amendment is the floor from which the court should begin when determining the line between military and civilian.

D. The Make Rules Clause and Its Relationship to Personal Jurisdiction

The Make Rules Clause of the Constitution grants Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.”71 This Article I authority permits Congress to pass laws that regulate the armed forces. In the last seventy years, the Supreme Court has “carefully policed the constitutional boundaries of military jurisdiction.”72 The Court has insisted that the military does not have the power to subject civilians to a court-martial except under particular conditions.73 Moreover, the Court has consistently acknowledged that military jurisdiction must be limited in scope and constrained to its “essential bounds.”74

The CAAF has recognized the importance of this distinction as well—notably in Smith v. Vanderbush in 1997.75 There, the court rejected the government’s invitation to subject a Soldier to continuing jurisdiction after his discharge, and ruled that the military did not have jurisdiction over him.76 The court acknowledged the constitutional issues concerning the military exercising jurisdiction over civilians and noted “[a] lawful discharge from military service normally terminates the constitutional and statutory power of a court-martial to try such a person.”77 He also recognized the Make Rules Clause did not permit the concept of continuing jurisdiction.78 Here, the CAAF acknowledged the necessary boundaries and limitations of court-martial jurisdiction.

Personal jurisdiction for the military is a question of status—is the individual a Soldier or a civilian?79 In 1960, in Kinsella v. United States ex rel. Singleton, the Court held the Constitution prevents the military from subjecting a civilian dependent to a court-martial for non-capital offenses.80 The Court boiled the issue down to “one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces’” of the Make Rules clause.81 It concluded the Make Rules Clause, when interpreted alongside the Necessary and Proper Clause, did not permit Congress to subject civilian dependents to a court-martial.82 Justice Clark, writing for the majority, excluded civilians from the power and authority of military courts.83

Similarly, three years earlier, in Reid v. Covert, the Supreme Court limited the jurisdiction of military courts over civilian dependents in peacetime.84 In Reid, two service members’ wives who killed their husbands were subsequently convicted at general courts-martial.85 The Court reversed their convictions, reasoning, among other things, that the Make Rules Clause did not extend to civilian dependents.86 Justice Black noted:

By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.87

Reid reflected the Court’s concern that any broad construction of military jurisdiction could encroach on the “treasured constitutional protections” 88 of civilian courts. The Court noted the dividing line between Soldier and civilian must account for the fact that, as Justice Black poignantly acknowledged, “[s]light encroachments create new boundaries from which legions of power can seek new territory to capture.”89

In United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), the Supreme Court famously circumscribed military jurisdiction.90 The Court invalidated a statute that permitted the military to try former service members for offenses committed while the Soldier served on active duty.91 The Court found that Congress did not have the power under Article I of the Constitution to subject discharged service members to trial by court-martial.92 Justice Black, the majority’s author, recognized the “dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.”93 He reasoned that free countries “restrict military tribunals to the narrowest jurisdiction deemed absolutely essential.”94 Toth stands for the importance of limiting the scope of military jurisdiction.95

The Toth Court also emphasized the safeguards afforded civilians in Article III courts compared to military tribunals.96

None of the other reasons suggested by the Government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. That provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause.97

The Court’s concerns here reflect the danger in tacking too close to the wind. Congress does not have the constitutional authority to subject civilians to a court-martial (absent certain circumstances). Since Congress has not specified the exact point at which a Soldier becomes a civilian, the CAAF has done so in judicial opinions. Based on the Court’s constrained view of military jurisdiction, the CAAF’s test should be neither broad nor far-reaching. Rather, its jurisprudence should identify a single point of time when jurisdiction severs, preventing court-martial jurisdiction from lingering over Soldiers and implicating the constitutional concerns discussed here.

III. Personal Jurisdiction at the CAAF: A Winding Road

This Part analyzes the CAAF’s current three-part test for determining when in personam jurisdiction ends before scrutinizing the most recent cases—Nettles and Christensen—and discussing their implications for the current state of the law. It charts the CAAF’s development of the test with a focus on the most important historical cases, highlighting the significant concurrences and dissents as necessary.

A. The United States Court of Military Appeals (CMA) Development of the Three-Part Test

Howard proved a watershed moment in the CMA’s (the precursor to the CAAF and a three-judge court) jurisprudence on personal jurisdiction.98 The issue before the court was whether the military judge at trial correctly ruled that personal jurisdiction over a service member was lost upon delivery of a valid discharge certificate.99 The court began its opinion by recognizing—as discussed supra Part II.B—“in personam jurisdiction over a military person [is] lost upon his discharge from the service, absent some saving circumstance or statutory authorization.”100 The court acknowledged a “[d]ischarge is effective upon delivery of the discharge certificate.”101 Judge Cox—who authored the opinion—recognized this rule reflected years of precedent and cited Winthrop’s Military Law and Precedents as authority.102

Prior to Howard, the CMA decided United States v. Scott, affirming “the armed services have long interpreted discharge statutes to mean that an individual is no longer a member of the armed forces after he receives notice that he has been validly separated.”103 In that case, the court based its argument on its interpretation of 10 U.S.C. § 8811 (1956),104 which provided that “[a] discharge certificate shall be given to each lawfully inducted or enlisted member of the Air Force upon his discharge.”105 The court ultimately recognized the key provision of this statute and those that preceded it was delivery of the discharge certificate to the Soldier.106 The act of delivery, the court reasoned, severed the Soldier’s military status.107

The Howard court pointed to § 1168(a)—a personnel statute—to determine a service member’s discharge date for the purposes of personal jurisdiction.108 That statute stated:

A member of an armed force may not be discharged or rleeased [sic] from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.109

Interestingly, the government had urged the CMA “to permit the Secretary of the Army, by regulation, to establish the moment of discharge.”110 But, the CMA rejected the government’s proposal and relied on § 1168(a)’s language instead.111 The court’s pivot likely reflected a desire to anchor its decision in a congressional statute rather than an Army regulation. Winthrop had done the same in his analysis of the Fourth Article of the Articles of War, and, as Judge Cox acknowledged, its rule was “based on a long line of historical service precedents…constru[ing] the provisions of the existing congressional statutes.”112

It is worth noting here that the Howard court could have affirmed the military judge’s finding that no jurisdiction existed and reversed the Army Court of Military Review without necessarily relying on § 1168(a).113 In this case, the accused had received his DD Form 214 on the day he was due to depart his military base.114 The local Criminal Investigative Division (CID) detachment had notified the command later that same day the Soldier was under investigation, prompting the commander to revoke the accused’s already delivered DD Form 214.115 Under long-standing precedent, the delivery of the DD Form 214 effectuated the discharge of the Soldier from the Army.116 Yet, the Howard court took a different approach to reach the same result, relying on § 1168(a), which mandated not only delivery of a discharge certificate but also “final pay or a substantial part of that pay” to the service member (or family representative) to effectuate the discharge.117 Since the accused had also picked up his pay when he received his DD Form 214, the Howard court found no jurisdiction to subject him to a general court-martial.118 This move ultimately laid the groundwork for the CMA’s announcement of a new three-part test in United States v. King, 27 M.J. 327 (C.M.A. 1989), four years later.119

Judge Sullivan authored the opinion in King for the CMA.120 The issue before the court was whether a court-martial had personal jurisdiction to try the accused for the offense of desertion.121 The case involved an accused who received a discharge certificate as part of his “request for an early reenlistment.”122 After the accused heard he had been discharged, he refused to complete the reenlistment ceremony and departed his military base.123 The CMA recognized that “‘a discharge effected for the sole purpose of facilitating re-enlistment lacks the purpose of permitting a return to civilian life.’”124 The court had previously reasoned that a discharge completed with the express purpose of effecting a reenlistment is different from a discharge at the end of a Soldier’s term of service.125 The King court held “that no valid discharge occurred under the facts of this case.”126 This could (and, as this author argues, should) have ended the appellate court’s inquiry into whether personal jurisdiction existed.127

However, much like the Howard court, the King court announced “Congress has spoken as to what constitutes a valid discharge.”128 It then cited both §§ 1168(a) and 1169.129 In Howard, the CMA had relied on § 1168(a), but the court’s reliance on § 1169 was new.130 Section 1169 provides that:

No regular enlisted member of an armed force may be discharged before his term of service expires, except—(1) as prescribed by the Secretary concerned; (2) by sentence of a general or special court-martial; or (3) as otherwise provided by law.131

The CMA found that these two statutes required three elements be met before the Army lost court-martial jurisdiction: (1) the valid delivery of a discharge certificate; (2) a final accounting of pay and allowances; and (3) compliance with a service’s clearing regulations.132 Judge Sullivan noted that since the service member did not complete parts two and three of the test, the physical transfer of a discharge certificate to the accused was not enough to sever jurisdiction.133

The King court’s reliance on §§ 1168(a) and 1169 was unnecessary. The accused’s discharge through reenlistment did not separate him from the military based on the court’s own precedent.134 Chief Judge Everett’s concurrence reflected his own apparent discomfort with this shift: “I do not, however, reach the question of the effect on continued court-martial jurisdiction from a failure to comply with the provisions of 10 U.S.C. §§ 1168(a) and 1169.”135 This qualification arguably indicated that Chief Judge Everett’s doubt about the wisdom of relying on these statutes to determine jurisdiction. Judge Sullivan and Judge Cox (who was a part of the majority in King and authored Howard) set a new precedent for the court on determining when the military loses personal jurisdiction over a service member.

B. The Three-Part Test in Action: United States v. Hart

In 1994, the CMA would become the CAAF (a five-member court), and the new court found itself confronting personal jurisdiction in a number of cases.136 One case worth particular study and attention came in 2008: United States v. Hart.137 Here, the accused had received a valid DD Form 214 but not his final separation pay.138 Two days after his “effective date of separation,” the command revoked his DD Form 214 and “directed the finance office not to take any further action in calculating [his] final pay.”139 The command then preferred charges based on a number of drug offenses the accused had allegedly committed.140

The Hart court split three to two with Judge Erdmann writing the majority in which Judge Baker and Judge Ryan joined.141 Chief Judge Effron dissented, joined by Judge Stucky.142 The majority first recognized as black letter law that a Soldier’s discharge severs personal jurisdiction.143 It then relied on §§ 1168(a) and 1169, which it emphasized it had done “for nearly twenty years.”144 The majority cited both King and Howard for that claim.145 Consequently, the Hart majority applied the three-part test to determine when personal jurisdiction ends.146

The only element of the three-part test at issue in Hart was the accused’s final accounting of pay and allowances—since he had received a valid DD Form 214 and cleared post.147 At the trial level, the military judge dove into the Defense Finance and Accounting System’s (DFAS) manual and procedures, concluding DFAS “had not yet started” certain “calculations, reconciliations, and authorizations” necessary to calculate the service member’s final pay.148 The majority affirmed the trial judge’s determination that the service member’s final accounting of pay and allowances were not ready for delivery.149 As a result, Judge Erdmann held “Hart was not effectively discharged and remained subject to court-martial jurisdiction.”150

Chief Judge Effron’s dissent argued personal jurisdiction did not exist in this case.151 He pointed to the effective date and delivery of the DD Form 214 to Hart in support of his conclusion.152 The dissent questioned the merit of determining personal jurisdiction based on “a personnel management statute designed to protect servicemembers and their families from the adverse financial consequences of premature separation.”153 Chief Judge Effron worried about the uncertainty the majority opinion created with respect to the effective date of a discharge document.154 Notably, the dissent distinguished King, finding that “the unsettled state of the record require[d] consideration of multiple factors.”155 Finally, Chief Judge Effron argued the court’s previous reliance on §§ 1168(a) and 1169 created a “general practice” not a rule.156

Hart exposed one of the perils in the majority’s reliance on King’s three-part test. The King test had broadened the scope of court-martial jurisdiction by attaching it to §§ 1168(a) and 1169. The court had strayed from its foundational rule that delivery of a valid discharge certificate severed jurisdiction.157 Hart had received a valid discharge certificate, but the military subjected him to a court-martial based on DFAS not having his pay ready for delivery.158 A bureaucratic task had saved jurisdiction for the military and permitted the exercise of its Article I court-martial power.

The military court’s jurisprudential history on personal jurisdiction has always been attached to the point of discharge.159 And Congress does address discharges in both §§ 1168(a) and 1169.160 But without a clear delineation in the UCMJ for “when a servicemember’s discharge from the armed forces becomes effective for jurisdictional purposes,” the court must draw a line that is fair, just, workable, and untethered to congressional statutes that do not speak specifically to court-martial jurisdiction.161 The next two cases arguably demonstrate the CAAF’s struggle to do just that.

C. The CAAF’s Retreat from the Three-Part Test in Nettles and Christensen

The military’s highest appellate court started to change course on its personal-jurisdiction jurisprudence in 2015. That year, the CAAF decided Nettles—which involved a reservist—and began the court’s retreat from the three-part test.162 Critically, the CAAF found the test was not binding when it went against “reason or policy”—a new gloss on the King framework.163 Then in 2018, the court went even further with Christensen, demonstrating its reluctance to continue to apply the three-part test.164 There, the court encountered another case involving a delay in the delivery of a Soldier’s final accounting of pay, but it distinguished Hart and held the Army had lost in personam jurisdiction.165

Judge Stucky delivered the court’s opinion in Nettles, concluding the Air Force did not retain court-martial jurisdiction over a reservist.166 The reservist served in the Individual Ready Reserve (IRR).167 He had been passed over for promotion twice and received notification in March of 2012 that he would be discharged on October 1, 2012.168 In May of that year, however, the Secretary of the Air Force recalled him to active duty and the command preferred charges.169 The accused continued to oscillate between periods of active service for his court-martial and service in the IRR.170 His court-martial eventually convened from January to February of 2013 where a panel convicted him.171 At trial and on appeal, he argued the court lacked in personam jurisdiction over him.172 The military judge and the Air Force Court of Criminal Appeals disagreed, but the CAAF reversed his conviction, concluding the court lacked jurisdiction to try him.173

The court applied the three-part test for jurisdiction, noting the only missing element for the accused was “delivery” of his discharge certificate.174 After reviewing the court’s rich delivery jurisprudence, the CAAF concluded that these precedents would lead to the conclusion the Air Force retained personal jurisdiction over the accused.175 The court, however, declined to follow that precedent or employ the §§ 1168(a) and 1169 framework.176 Rather, Judge Stucky drew a distinction between a reservist serving in the IRR and an active-duty Soldier, finding the delivery jurisprudence “has been created for active duty personnel” and the prior statutory framework serves only as “guidance.”177

He then introduced a meta-inquiry into the court’s personal-jurisdiction jurisprudence, noting “[the framework’s] demands are not binding when we find that they go against reason or policy.”178 This “reason or policy” gloss marked the most significant and critical turning point in the CAAF’s jurisprudence on in personam jurisdiction since Howard.179 It transformed the CAAF’s test on personal jurisdiction, altering it by introducing a discretionary threshold question. Judge Stucky—who had joined Chief Judge Effron’s dissent in Hart—employed reasoning here that eroded the very foundation of the court’s precedent.

The CAAF could have decided Nettles by simply drawing a distinction on the basis of the accused’s status—reservist versus active-duty. Judge Stucky anchored the Nettles decision in 10 U.S.C. § 14505 (2012),180 holding that “in cases where the accused is not on active duty pursuant to an administrative hold on the date the self-executing order sets for a reservist’s discharge, he is not subject to court-martial jurisdiction.”181 With a congressional statute on point to answer when the military lost personal jurisdiction, Judge Stucky did not need to conduct any additional analysis.182 Why, then, did the court emphasize that the statutory framework is only guidance and can be tossed when it cuts against reason or policy?

Arguably, in response to the previous holdings of King and Hart, Judge Stucky added this new gloss to prevent unjust results. The court chose to modify its personal-jurisdiction jurisprudence and go further than it needed because of its dissatisfaction with the current state of the law. The court’s announcement that the three-part framework is not binding but rather guidance reflected a deep discontent with the reliance on the statutory framework—the foundation of the three-part test; a dissatisfaction that Judge Stucky sought to cure with a new gloss.

The court used this reason-or-policy gloss to reach, arguably, the right result, but at the expense of clarity to trial counsel, defense counsel, and military judges. Ironically, Judge Stucky’s opinion highlighted the importance of certainty to military-justice practitioners:

[Military status] is important for the armed forces both abstractly and concretely: abstractly, because certainty of status indicates who actually is in the service and subject to the [UCMJ], and concretely, because such certainty provides clear guideposts for prosecutors and commanders when taking actions with a view towards litigation.183

Unfortunately, an additional inquiry simply imparts more discretion and ambiguity into practice. Since Howard, the court’s jurisprudence on this matter has become more convoluted. In personam issues only occur at the margins in litigation with typically complex facts; a succinct rule would enable military-justice leaders to advise commanders with confidence as this article advocates for infra Part V.

Christensen marked another step away from the three-part test as the court confronted an issue Chief Judge Effron aptly predicted in his dissent in Hart.184 In Christensen, a military judge sitting alone convicted the accused of sexual assault.185 The CAAF granted review of a single issue: Whether the court-martial had jurisdiction over the accused.186 Similar to Hart, the case hinged on a single part of the three-part framework—the accused’s final accounting of pay and allowances.187 Here, the accused had received a valid DD Form 214 and had cleared Fort Stewart, Georgia.188 Based on a criminal investigation, the chief of justice—the title of the chief prosecutor on a military installation—had contacted DFAS to stop his final accounting of pay and allowances.189 The military judge concluded that since all three parts of the Hart test were not met, the military could exercise jurisdiction over the accused.190

The CAAF reversed with reasoning that continued to erode the framework the court had relied on for decades.191 It noted explicitly that both §§ 1168(a) and 1169 “serve as guidance—not as prerequisites—when it comes to determining whether a discharge has been effectuated for jurisdictional purposes,” echoing Nettles.192 The CAAF then found the accused’s final accounting of pay and allowances was “not accomplished within a reasonable time frame” and pointed to Nettles’ reason-or-policy gloss to conclude the court-martial did not have personal jurisdiction over the accused.193

Judge Maggs’s concurrence in which Judge Ryan joined revealed the court’s internal struggle with personal jurisdiction.194 He noted that the current framework the CAAF has created leaves counsel and judges “with insufficient guidance” and acknowledged “that the Court may have made a wrong turn in Howard.”195 Interestingly, Judge Maggs proposed a separate test.196 First, he would ask whether “an existing statute or regulation specifies when a discharge has occurred.”197 If there is no statute or regulation on point, then he proposed resorting to the three-part test.198 He argued that AR 635-200, paragraph 1-29(c), would have answered the question in Christensen.199 The regulation provides that a discharge “is effective at 2400 on the date of notice of discharge to the Soldier.”200 Although AR 635-200 involves administrative separations, Judge Maggs’s test would use its authority as a military regulation to identify when a Soldier is no longer a member of the armed forces and, consequently, no longer subject to court-martial jurisdiction.

This author disagrees with permitting a regulation to dictate the contours of court-martial jurisdiction. First, the CAAF has always been reluctant to permit Service Secretaries through regulations to determine the end of personal jurisdiction for court-martial purposes.201 Second, it could be dangerous to cede that level of authority to an agency head. Military regulations certainly qualify as law and obligate service members to adhere to their strictures.202 But that authority is not without bounds.203 Military courts must have the authority to outline the limits of their own criminal jurisdiction and “to say what the law is.”204

The other difficulty in depending on statutes, as Judge Maggs proposed, is that it focuses the analysis on the same sources and materials the CAAF currently uses in its three-part test. In most cases, the CAAF will be left with the same statutory framework it has been struggling with for decades in the challenging cases that reach its docket. This reliance can work in specific, limited cases, such as Nettles, when there is a statute directly on point. Otherwise, however, it will continue to leave the field with little certainty. A bright-line rule as proposed infra Part V would answer the question outright and prevent ambiguity.

Since Congress has chosen not to specify the precise bounds of court-martial jurisdiction, the CAAF must fill the gap. Congress does have the authority to specify the moment of discharge for personal-jurisdiction purposes in accordance with the Make Rules Clause and Fifth Amendment of the Constitution but has not done so.205 Nettles and Christensen illustrate that the current framework is failing to achieve certainty and predictability for the field because it is ambiguous and unworkable.

IV. The CAAF’s Three-Part Test: Ambiguous and Unworkable

A. A Misplaced Reliance on 10 U.S.C. §§ 1168(a) and 1169

Howard has now dictated over thirty years of personal-jurisdiction jurisprudence at the CAAF. The reliance Judge Cox placed on §§ 1168(a) and 1169—whether intentionally or not—has created a progeny of precedent that can be difficult to decipher. Part IV.A explains why the military judiciary should no longer rely on those statutes to inform when the armed services lose in personam jurisdiction over a Soldier.

By charting the legislative history of both §§ 1168(a) and 1169, this article seeks to highlight the role Congress sought for these statutes in the military. Section 1168(a) first appeared in the Servicemen’s Readjustment Act (SRA) of 1944.206 The SRA’s explicit purpose was “[t]o provide Federal Government aid for the readjustment in civilian life of returning World War II veterans.”207 The bill sought to ease the transition for returning veterans to civilian life.208 Congress marketed the bill as a “comprehensive program” for veterans, focused on their medical, education, training, financial, and employment needs.209 President Franklin D. Roosevelt signed the law, nicknamed the “G.I. Bill of Rights,” on June 22, 1944.210

Section 1168(a)’s language could be found in section 104 of the SRA.211 Section 104 sought to preserve the rights of veterans returning from World War II.212 The first sentence of section 104 provided that “[n]o person shall be discharged or released from active duty in the armed forces until his certificate of discharge or release from active duty and final pay, or a substantial portion thereof, are ready for delivery to him or to his next of kin or legal representative.”213 This text tracks closely with today’s § 1168(a); specifically, the requirement for a final accounting of pay before discharge. The remainder of section 104 reads as follows:

[A]nd no person shall be discharged or released from active service on account of disability until and unless he has executed a claim for compensation, pension, or hospitalization, to be filed with the Veterans’ Administration or has signed a statement that he has had explained to him the right to file such claim: Provided, That this section shall not preclude immediate transfer to a veterans’ facility for necessary hospital care, nor preclude the discharge of any person who refuses to sign such claim or statement: And provided further, That refusal or failure to file a claim shall be without prejudice to any right the veteran may subsequently assert.214

As the entire text makes clear, section 104 sought to ensure service members received the compensation and disability benefits they had earned during their service prior to separation.

Section 104’s language regarding discharges cannot be read in isolation; the statute sought to protect the rights of service members returning from war. For example, the previous section of the SRA, section 103, placed Veterans’ Affairs officials at military installations for the purpose of advising Soldiers on disability claims.215 While the subsequent section, section 105, forbid the military from requiring a Soldier to sign any statement detailing “the origin, incurrence, or aggravation of any disease or injury.”216

Congress codified section 104 of the SRA at 10 U.S.C. § 1168(a) in 1962.217 The current statute provides that:

A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.218

Notably, today’s statute uses the word may in “[a] member ... may not be discharged.”219 Section 104 of the SRA used the word shall.220 At first blush, § 1168(a) appears to impose a duty on the government. Under the Mandatory–Permissive canon of semantic interpretation, however, may is permissive, defined in Black’s Law Dictionary as “has discretion to; is permitted to ... possibly will.”221 Even if Congress had used shall, Supreme Court precedent would likely construe shall as may.222 Consequently, under this textual canon of statutory interpretation, § 1168(a) does not impose a compulsory duty on the government but arguably serves as a “precatory suggestion.”223

This textual understanding of § 1168(a) is a critical revelation. The CAAF placed significant weight on the statute to help define the exact point of discharge for service members with respect to court-martial jurisdiction.224 Section 1168(a), however, serves to protect service members from hardship upon separation.225 This important congressional aim should not influence the dividing jurisdictional line for Soldiers. Armed with this understanding, it makes little sense that a Soldier should remain subject to personal jurisdiction when the government fails to follow the precise prescriptions of § 1168(a).226 It makes even less sense when the government can use its own neglect (e.g., failure to direct a final accounting of a Soldier’s pay and allowances) to court-martial a Soldier who had received a valid DD 214 as it did in Hart.227 The CAAF’s reliance on § 1168(a) has produced problematic results as epitomized in its struggle with the three-part test in Nettles and Christensen.228

Section 1168(a) does not address nor alter the meaning of a DD 214—the document that explicitly transforms an individual’s status from military to civilian. The statute requires a “discharge certificate or certificate of release” and “final pay or a substantial part of that pay” prior to discharge from the armed services.229 A natural reading indicates the military should have both requirements completed prior to discharging a service member. In fact, army regulations and policies require a valid discharge certificate and a final accounting of pay prior to discharge.230 The onus, therefore, falls on the government to prepare the discharge paperwork and the service member’s final pay prior to discharge. It does not follow that the government’s failure to comply with these procedures should serve as a bulwark against the Soldier’s discharge, subjecting him or her to court-martial jurisdiction.

Section 1168(a) serves as a shield. It requires the armed services to ensure a Soldier receives the benefits he or she earned. Congress never intended § 1168(a) to serve as a sword, subjecting Soldiers who had received a valid DD Form 214 to court-martial jurisdiction based upon the government’s failure to follow its own statute. The DD Form 214 or discharge orders represent the official act of the United States through its representative, marking the transformation from Soldier to civilian.231 This statute does not alter that fact nor, arguably, did Congress intend such a result. A plain reading of § 1168(a) demonstrates Congress did not want Soldiers separated without their pay. It would be odd indeed if Congress intended for DD Forms 214 to be found ex post invalid for failure to comply with the statute.

Section 1169, in relevant part, provides that “[n]o regular enlisted member of an armed force may be discharged before his term of service expires, except (1) as prescribed by the Secretary concerned ... or (3) as otherwise provided by law.”232 This statute seeks uniformity in how the services discharge service members from their ranks prior to the expiration of the Soldier’s ETS. It permits Secretaries to prescribe procedures to follow when discharging Soldiers.233 Importantly, the CAAF points to this statute for the third and final element of its three-part test.234 It does not, however, alter the meaning or purpose of a DD Form 214.

The CAAF has similarly critiqued the role of the statutory framework in defining the boundaries of personal jurisdiction.235 Chief Judge Effron’s dissent in Hart noted that “Section 1168 is a personnel management statute designed to protect service members and their families from the adverse financial consequences of premature separation.”236 He argued that it “d[id] not address jurisdiction ... nor require the government to revoke a discharge.” 237 Then-Judge Effron, ten years earlier in United States v. Keels, argued that § 1168(a) served “to protect service members from premature separation.”238 These statutes protect Soldiers by ensuring the government provides benefits to the member or the member’s Family.239

The CAAF should not have relied on these statutes for its personal-jurisdiction jurisprudence without a clear command from Congress to do so. Under the CAAF’s precedent prior to Howard, delivery of a valid discharge certificate separated a Soldier from the armed forces and ended court-martial jurisdiction.240 The Presumption Against Change in Common Law canon cautions against an interpretation of a statute that would alter the law without clear direction from Congress.241 This canon of interpretation commands that “[a] statute will be construed to alter the common law only when that disposition is clear.”242 Here, Congress has not specifically spoken to personal jurisdiction in these statutes—as the CAAF has acknowledged.243 Yet, the court’s reliance on §§ 1168(a) and 1169 arguably alter the military’s common-law–like rule.244 Certainly, discharge statutes and court-martial jurisdiction have been intertwined since Winthrop, but the staple of that jurisprudence is that in personam jurisdiction ends upon delivery of a valid DD Form 214.245 The court should not alter that foundation without express congressional intent.

In sum, the CAAF should not rely on personnel-management statutes for the critical determination of when a court-martial loses jurisdiction over service members.246 Congress never intended such a result.247 A Soldier who received a valid DD Form 214 and is then court-martialed raises constitutional due-process concerns that the court can avoid with a more precise test to determine the outer limit of jurisdiction.248 Moreover, the services can resolve many of the issues §§ 1168(a) and 1169 sought to address by simply issuing a DD Form 214 after a Soldier clears post and her pay is ready. Even if those tasks are insurmountable, military courts should not permit commanders to use these statutes as a veritable clawback provision of a Soldier’s contract.

B. Delivery of a Discharge Certificate and Livery of Seisin

The first part of the CAAF’s three-part test requires the delivery of a valid discharge certificate.249 The delivery portion of this inquiry typically focuses on the commander’s intent and the actual physical receipt of the discharge certificate.250 The CAAF has had to confront both interrelated concepts, generating a flurry of judicial opinions. 251 This Part argues that the physical receipt portion of this inquiry no longer makes sense in the modern-day military.

As discussed supra Part III.C, the CAAF walked back the physical-delivery component of its test in Nettles, “declin[ing] to apply the physical delivery rule to the reserve components.”252 In support of this distinction the court reasoned that “[t]he law has generally moved beyond imbuing formalistic acts with such significance, and we should not require what amounts to livery of seisin to effectuate a discharge.”253 This reasoning makes sense, and it is not clear why it should only apply to reserve personnel with self-executing orders.254 This analysis could just as easily apply to an active-duty Soldier.

The requirement to physically deliver a DD Form 214 is an outdated and legally antiquated concept. The DD Form 214 reflects the commander’s official action through its representative—irrespective of delivery to the Soldier. Bryan A. Garner defines livery of seisin as “the ceremonial procedure at common law by which a grantor conveyed land to a grantee.”255 That historical legal concept has “ceased to be generally employed.”256 Similarly, the effective moment of discharge for a Soldier should not depend on the physical delivery of the DD Form 214.

Unfortunately, the CAAF’s delivery jurisprudence makes it difficult to apply without running afoul of precedent.257 The important and relevant concept, however, is the command’s intent, which could arguably subsume the delivery concept. The CAAF has even recognized as much in a number of its personal-jurisdiction cases. For example, United States v. Harmon focused on the commander’s intent with respect to the accused’s discharge.258 In that case, the CAAF found the Soldier’s discharge became effective at 2359 hours on the date of his discharge certificate.259 The command placed a legal hold on him prior to that time, which would permit jurisdiction to continue, voiding the discharge document.260 The issue in the case centered on the fact that a personnel clerk delivered the discharge certificate to the accused the morning of his discharge date before the command had placed a hold on him.261 Under longstanding precedent, defense claimed that delivery of the discharge certificate terminated jurisdiction.262

Judge Crawford, writing for a majority, disagreed that delivery ended the military’s jurisdiction.263 He reasoned that the command intended to discharge the Soldier at 2359, not “some arbitrary point in time when a personnel clerk decided to deliver the copies of the DD Form 214.”264 The court essentially concluded the commander’s intent matters in determining the effective time of discharge.265 The time placed on the DD 214 matters even if it is in the middle of the night; it reflects the commander’s decision as to the exact moment the Soldier leaves the military. This echoes their prior ruling in 2000, in United States v. Melanson, where the court acknowledged:

Even if a discharge certificate and separation orders are delivered to a member earlier in the day as an administrative convenience for the unit or the service member, the discharge is not effective upon such a delivery unless it is clear that it was intended to be effective at the earlier time.266

The court also pointed to the 1994 case of United States v. Batchelder to support this claim, where the CAAF found that a personnel clerk’s early delivery of a discharge certificate did not “accelerate the discharge event.”267 Thus, the pertinent and relevant inquiry for the validity of a DD Form 214 is the commander’s intent, not delivery.

C. Finance Woes

The second part of the CAAF’s test requires the delivery of a final accounting of pay and allowances—the part at issue in Hart and Christensen.268 Although the CAAF walked back this requirement in Christensen, it is worth articulating some of the limitations of this element as well. Most prominently, this portion of the test poses a significant challenge because it requires commanders and military-justice practitioners to understand and apply the DFAS’s complex regulations and procedures uniformly.269

Since a service member’s final paycheck reflects payment for services rendered, it should not permit the military to maintain court-martial jurisdiction over him or her prior to disbursement.270 This final pay reflects a Soldier’s entitlement. Three of the four military branches have different timeframes for issuing a Soldier’s final paycheck (the Air Force and Navy are the same).271 The DFAS specifies the Army’s policy as follows:

Regular pay is suspended during the month of separation to ensure that no overpayment exists. On the member’s Date of Separation (DOS), the servicing finance office will have a payment sent to the member’s bank account using the EFT process. From DOS through the next 20 days, the member’s pay account will be monitored and additional pay action will be made for the final pay computation as required. Post separation pay audits are conducted regularly and may identify residual payments that are due to the member. If this occurs, DFAS (or in limited instances, the member’s servicing finance officer) will pay the residual payments via paper check to the address that the service member provided during separation processing.272

With respect to the Army, the final paycheck is made on the service member’s date of separation.273 Therefore, the final pay and discharge date should coincide for a service member in the vast majority of separations.

The policy, however, does note that “[f]rom DOS through the next 20 days, the member’s pay account will be monitored and additional pay action will be made for the final pay computation as required.”274 With this statement, the DFAS acknowledges that potential adjustments in pay may become necessary post-separation. The DFAS also reveals it conducts post-separation pay audits to determine if residual payments to the Soldier need to be made.275 This policy strives to ensure service members receive a proper final accounting of pay and allowances, but, under the CAAF’s current test, a post-separation pay audit could arguably subject the Soldier to court-martial jurisdiction. That result is at odds with protecting service members from financial hardship and paying them for services rendered.276

The CAAF’s three-part test has transformed this requirement into a jurisdictional hook that can hold a service member on active-duty and subject him to a court-martial.277 Yet, “[j]urisdiction to punish rarely, if ever, rests upon such illogical and fortuitous contingencies.”278 That proposition certainly applies here and cautions against a test that stakes court-martial jurisdiction on the DFAS’s policy and bureaucracy. The DFAS operates under regulatory considerations that differ significantly from what the CAAF should base in personam court-martial jurisdiction upon.

D. Clearing Post: A Bureaucratic Requirement

The CAAF’s final element requires the accused to comply with a service’s clearing regulations before jurisdiction severs.279 The CAAF has yet to address this element in a judicial opinion.280 However, after its holdings in Christensen and Nettles, it appears unlikely the court would subject an accused to court-martial jurisdiction for a de minimus regulatory violation.281 For example, what if an accused had failed to have his clearing papers stamped at the on-post library? Would jurisdiction remain? The purpose of a service’s clearing regulations is to ensure the orderly departure of Soldiers.282 It should not be a basis (nor was it ever intended) to serve as another prong on which to base in personam jurisdiction.

A Soldier’s compliance or lack thereof with the clearing procedures articulated in AR 600-8-101, Personnel Readiness Processing, should not implicate whether a court-martial retains personal jurisdiction.283 Chapter 3 of AR 600-8-101 discusses the Army’s out-processing program and provides a series of procedures installations must follow when clearing a Soldier.284 The regulation makes clear the Army should not publish separation orders until the Soldier meets all clearance requirements.285 Interestingly, AR 600-8-101 emphasizes that “[t]he servicing military pay office will not clear Soldiers until all clearance requirements ... are met.”286 Thus, a Soldier must clear post to receive her final pay, and then the Army may issue a DD Form 214.287 The failure to follow these tasks should not extend personal jurisdiction over the service member, however.

The CAAF has infused multiple bureaucratic control measures into its personal-jurisdiction jurisprudence and created a web of rules to determine whether a Soldier remains subject to court-martial jurisdiction. These internal Army processes are meant to ensure the orderly departure of Soldiers. The delivery of the discharge certificate, the final accounting of pay and allowances, and the clearing of post, all operate to separate a Soldier in a certain manner. If the procedures are followed correctly, the Soldier receives her DD Form 214 afterward.

Commanders almost certainly strive to follow the procedures articulated and discussed here, but in personam issues arise at the margins. When those issues manifest, the answer should not be a scrub of the government’s actions to determine where it failed in order to subject the Soldier to court-martial jurisdiction. The bureaucracy places an onus on the Soldier and the government to comply, but either’s failure to comply should not affect criminal jurisdiction.

V. Proposal: A Bright-Line Rule for Personal Jurisdiction

This article proposes a simple, bright-line rule to determine where the personal jurisdiction ends. Judge Maggs recognized that Howard was a “wrong turn” in Christensen.288 As a result, the CAAF should acknowledge that the court should not have relied on §§ 1168(a) and 1169 to determine when personal jurisdiction ends.289 Even at that time, it did not make sound jurisprudential sense to anchor in personam jurisdiction to those statutes. A bright-line rule will provide clarity to the field and avoid costly litigation in the future. The CAAF will need the right case to change course, but it should certainly be something it looks for in a future term’s review.290

A. What to Do with Howard

The threshold issue the CAAF will face is whether to overrule its prior precedent.291 An appellate court does not take the drastic action of flouting stare decisis lightly.292 Here, however, the CAAF can likely avoid overruling Howard and its progeny. As the court recognized most recently in Christensen, the statutory framework serves as guidance.293 Consequently, the court can announce a standard—as proposed infra Part V.B—that marks a clear departure from the formalities of the three-part test.

In determining whether to disturb precedent, the CAAF considers “‘whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations of service members; and the risk of undermining public confidence in the law.’”294 The court requires a “‘special justification’” to reject prior case law.295 Here, the court’s reliance on the statutory framework has proved unworkable and, consequently, hurt practitioners’ ability to apply the law uniformly.296 Fortunately, Howard did not rely on Supreme Court precedent or another foundational CAAF case when articulating its rule.297 The challenges associated with the court’s three-part test counsel against continuing with the status quo. As a result, the CAAF should announce a bright-line rule that charts a new way forward for determining when personal jurisdiction over a service member ends.

B. The Bright-Line Rule

This article proposes the following rule: A court-martial loses jurisdiction at 2400 on the effective date of the discharge certificate (e.g., DD Form 214).298 This simple approach will resolve the majority of jurisdictional questions practitioners and trial judges face. This rule focuses on the DD Form 214 itself, emphasizing the supremacy of the document. Here, a valid DD Form 214 severs jurisdiction. As William Winthrop noted, the discharge certificate is an official act of the United States through its representative—the commander.299 This rule anchors jurisdiction in a tangible and official document.

The history of in personam jurisdiction for the military reveals a reliance on statutes to determine the point of discharge.300 The precedent prior to Howard relied on the delivery of a discharge certificate to terminate jurisdiction.301 This black-letter law has been a linchpin in personal-jurisdiction jurisprudence for decades and continues to this day as part one of the three-part test.302 This article’s bright-line rule acknowledges the importance of that foundational concept with an important caveat—no delivery requirement.

This rule rejects the requirement for physical delivery of the DD Form 214 to effectuate the discharge as an atavistic approach to the law.303 As Judge Stucky recognized in Nettles, there is a rich jurisprudential history at the CAAF regarding the physical delivery of a discharge certificate.304 In fact, Judge Stucky acknowledged that those cases would have resulted in a finding against the accused in Nettles since the military never delivered his discharge paperwork to him.305 However, he discounted that outdated approach, analogizing it to the property concept of livery of seisin.306 From a policy perspective, physical delivery should not affect the validity of the discharge certificate. The document stands alone as an official act of the United States.307 The effective date of the discharge is an objective inquiry, not a subjective one—it should not be based on whether the military delivered the document and the Soldier had actual or constructive knowledge of it.308

Under this article’s proposed rule, the validity of the DD Form 214 becomes the key question practitioners and courts will have to confront. Fortunately, the CAAF has already answered many of the common issues commanders and military-justice leaders face with such a task.309 For example, a DD Form 214 produced through fraud would not sever court-martial jurisdiction for a service member.310

Another facet of the validity analysis is the commander’s intent.311 Military courts have addressed this issue before, analyzing whether the command took affirmative measures to void the DD Form 214 prior to its effective date, for example.312 Commanders and practitioners can rely on the CAAF’s robust case law when these matters arise. In actuality, commander’s intent should only matter in rare circumstances with respect to a DD Form 214. The default proposition is that the document is valid and reflects the commander’s intent to discharge a Soldier.313 Certainly, there are exceptions that will apply which would void a discharge certificate. For example, if the commander manifests his or her intent to keep a Soldier on active duty in accordance with an approved method, such as placing a legal hold on him or her, then that could void a DD Form 214.314

A primary benefit of this rule is the limited litigation costs associated with determining the validity of a single document. In United States v. Williams, the accused received his discharge certificate on the same day his commander placed a valid legal hold on his separation.315 In this circumstance, “appellant’s discharge was properly rescinded and the military had in personam jurisdiction.”316 This case illustrates the relative ease with which judges can resolve these issues without a more difficult deep-dive into, for example, pay issues.317 Thus, the legal foundation and case law already exists to support this article’s proposed bright-line rule.

C. If There Is No Valid Discharge Certificate, Is There a Congressional Statute on Point?

Another important sub-inquiry of this rule will need to occur in situations when the command never produced a discharge document. In those cases, the CAAF should first look to whether there is a congressional statute that required the service member’s discharge. This is a laser-focused review of any congressional statute that speaks specifically to a mandatory discharge of a Soldier. As discussed supra Part IV.A, §§ 1168(a) and 1169 do not meet this standard.318 In contrast, § 14505 would suffice.319 As the Nettles majority recognized, the provisions of § 14505 discharged the reservist prior to jurisdiction attaching for his court-martial.320 In that case, it is immaterial that the accused did not have a valid discharge certificate because a congressional statute mandated his discharge.321 In specific instances where Congress has spoken to the discharge, such as § 14505, then the requirement for a certificate is of no matter.

A potential concern with this inquiry is the commander’s intent. In Nettles, for example, Judge Stucky noted the accused would not have been discharged since it was contrary to the commander’s intent and the command never delivered the discharge certificate.322 Under this inquiry, however, Nettles-like facts would not matter. Section 14505’s requirements trump the commander’s intent. In fact, the CAAF essentially reached the same conclusion in Nettles, declining to apply the three-part test in favor of a specific statute.323 Similarly, Judge Maggs’s proposed test from his concurrence in Christensen would first ask whether a statute or regulation speaks to the service member’s discharge.324 For reasons discussed supra Part III.C, that threshold inquiry has its limitations.325 But the court’s reliance on statutes can make sense in certain specific circumstances.

D. The Benefits of a Bright-Line Rule

A bright-line rule removes gamesmanship from the litigation. Since a Soldier’s discharge operates at a single point in time based on the DD Form 214 or discharge certificate, the commander cannot act ex post to maintain jurisdiction, such as the case in Christensen.326 The same concerns do not attach ex ante because a commander’s intent matters prior to the service’s issuance of the discharge certificate. Put another way, the Command can cancel or revoke a DD Form 214 up and until it goes into effect. A single standard removes ambiguity from the equation and lessens a commander’s discretion with respect to the point of discharge.

A principal concern may be what to do in the absence of a discharge certificate when, for example, self-executing orders sever jurisdiction.327 This article recognizes that the official document need not simply be a DD Form 214—although that is the most ubiquitous.328 Military orders can also function as the official act of the United States, severing jurisdiction and transforming a Soldier into a civilian.329

Importantly, this proposed rule would not alter the CAAF’s case law that discuss the attachment of jurisdiction prior to discharge. As the CAAF has recognized, if the government takes official action against a Soldier prior to his discharge, then jurisdiction does not end when the Soldier’s ETS arrives.330 For example, in United States v. Smith, the CMA held in 1978 that the mere writing down of charges did not sufficiently signal the government’s “intent to impose its legal processes upon the individual.”331 The court recognized that jurisdiction may attach prior to a service member’s discharge and then continue until the court-martial concludes.332 In contrast, in 1982, in United States v. Self, the court found that criminal investigators labeling the Soldier as a suspect, interviewing him, and advising him of his legal rights were enough for jurisdiction to attach.333 In the latter case, the commander’s actions voided the self-executing orders, while in the former it did not.

One of the most significant benefits of a bright-line rule is the reduction in information costs for commanders and practitioners. The certainty with which military personnel can operate under this new rule will reduce ambiguity on whether a service member is subject to court-martial jurisdiction. It will also eliminate many of the issues the CAAF has had to confront with its three-part test, including issues surrounding the physical delivery of the discharge certificate to the service member as well as whether the Soldier received his or her final accounting of pay and allowances.334 The reduction in litigation and resource costs is a worthwhile benefit. The CAAF has been facing in personam jurisdiction issues for over thirty years; the time has come to find a solution that is fair, effective, and legally sound.

VI. Conclusion

The hallmark of military jurisdiction has always been a question of a Soldier’s status.335 The answer to this key question marks the dividing line between a Soldier and a civilian. Much is at stake. From a practical standpoint, military commanders and their legal advisors need a clear answer to this question so they can determine when a Soldier is or is not subject to their jurisdiction. From an equity standpoint, military courts should not have the ability to subject discharged Soldiers who have become civilians to trial.336 Any ambiguity in the answer to this key question subjects civilians to a court-martial that never should have been—as in Christensen and Nettles.337

This article proposes a new way forward for the CAAF on personal jurisdiction. Judge Maggs’s concurrence in Christensen cut through over thirty years of personal-jurisdiction jurisprudence and acknowledged a harsh reality: Howard proved a mistake.338 The CAAF’s reliance on two personnel statutes for its jurisdictional test has proved unworkable for the field and potentially unfair to the accused. Both accused Soldiers in Christensen and Nettles were subjected to the military-justice process when those courts lacked the power to try them for any offense.339 The fault does not lie with the trial counsel and military judges—they applied the law as the CAAF had announced it.340 Consequently, the burden falls to the CAAF to announce a rule that results in less ambiguity and ensures military courts do not subject civilians to a court-martial. A bright-line rule meets this standard and will save the military from expending unnecessary resources in unnecessary prosecutions.

Article III tribunals should be the forum where civilians face federal prosecution.341 “The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds.”342 The legitimacy of the U.S. court-martial system is at stake when it jumps outside its limits. A simpler approach to determining personal jurisdiction that comports with a narrow conception of military jurisdiction ensures courts-martial remain “within [their] essential bounds.”343 The CAAF is already moving in the right direction as evidenced by Christensen and Nettles.344 The final step is only one case away.