United States v. Harmon

                        UNITED STATES, Appellee

                                      v.

                     Nicholas A. HARMON, Private
                    U.S. Marine Corps, Appellant

                                No. 05-0172

                       Crim. App. No. 200300683

       United States Court of Appeals for the Armed Forces

                        Argued October 11, 2005

                        Decided April 27, 2006

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J.,
filed a dissenting opinion.
                             Counsel

For Appellant:    Lieutenant Robert E. Salyer, JAGC, USN (argued).

For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Charles N. Purnell, JAGC, USN (on brief); Colonel William K.
Lietzau, USMC.

Military Judge:   M. H. Sitler




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harmon, No. 05-0172/MC


     Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to his pleas, Appellant was convicted of attempted

kidnapping, attempted robbery, and two specifications of

conspiracy in violation of Articles 80 and 81, Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. §§ 880

, 881 (2000),

respectively.   Pursuant to a pretrial agreement, the convening

authority approved the sentence of a dishonorable discharge, ten

years of confinement, and forfeiture of all pay and allowances,

but suspended confinement in excess of seven years.   The Court

of Criminal Appeals affirmed the findings and sentence.    United

States v. Harmon, 

60 M.J. 776

 (N-M. Ct. Crim. App. 2004).

                               ISSUE

     WHETHER THE LOWER COURT ERRED BY HOLDING THAT FOR
     THE PURPOSES OF R.C.M. 202(c), COURT-MARTIAL
     JURISDICTION ATTACHES AT THE MOMENT A CRIMINAL
     INVESTIGATION DIVISION AGENT RECEIVES AN ALLEGATION
     OF A CRIME AND AN ALLEGATION OF A PERPETRATOR OF
     SAID CRIME.

     We uphold the finding of the military judge “that the

accused’s status as an active duty service member would not

terminate until 2359 on 17 May 2001.”

                               FACTS

     Appellant was a twenty-year-old private in the Marine Corps

with about two years of service at the time of these offenses.

In the spring of 2001, Appellant’s battalion commander

recommended Appellant for an administrative separation for drug



                                 2
United States v. Harmon, No. 05-0172/MC


abuse.   The Commanding General, 2d Force Service Support Group,

directed that Appellant be separated from the military no later

than May 17, 2001.   Appellant acknowledged his rights and waived

his right to a hearing before a board of officers.   Between May

9, 2001, and May 16, 2001, Appellant went through the steps to

out-process from the military.   By the morning of May 17, 2001,

Appellant had completed all the steps to out-process except

picking up his “Certificate of Release or Discharge from Active

Duty” (DD Form 214) from the Group Consolidated Administrative

Center (GCAC).

     As part of Appellant’s out-processing, a “Separation/Travel

Pay Certificate” (NAVMC 11060 Form) was prepared on May 9, 2001.

This document serves as the “orders” for Marines separated

without orders.   A servicemember can use this document to obtain

advance travel and final pay, to have his or her household goods

shipped, or to obtain government-procured transportation for air

or bus travel.    Appellant would have received a copy of this

document as part of his out-processing.

     On Appellant’s NAVMC 11060 Form, under the “Pay

Information” section, there is a notation of “2359/2001 05 17”

typed after the unchecked block that reads “LEAVE AWAITING

SEPARATION FROM (TIME AND DATE) _____ TO (TIME AND DATE)

2359/2001 05 17.”    The block “OTHER” is checked and the

following information is typed in on the form after “OTHER”:


                                  3
United States v. Harmon, No. 05-0172/MC


“SNM Request final payment be made by EFT.”      Based on the

information on this form, Appellant elected to receive his final

pay by electronic funds transfer and the disbursing office was

to pay Appellant until 2359 hours on May 17, 2001.

     Prior to May 17, 2001, Appellant and another Marine from

his unit, Private (PVT) John L. Piazza, conspired to rob a third

member of their command, Hospitalman (HN) Eric L. Madden.

Although Appellant and PVT Piazza took steps to carry out their

plan, their attempts failed and they called off the robbery on

the evening of May 16, 2001.

     On the morning of May 17, 2001, Appellant convinced PVT

Piazza to assist him and they devised another plan to carry out

their robbery scheme.    At approximately 5:00 a.m. on May 17,

2001, they attempted to carry out the plan in the parking lot of

the barracks.   They concealed themselves in some bushes near the

barracks parking lot.    Appellant wore a ski mask to conceal his

identity.   At about 5:20 a.m., HN Madden was crossing the

parking lot.    Appellant ambushed HN Madden and placed a BB

pistol against HN Madden’s back.       He demanded the keys to HN

Madden’s truck.   Hn Madden reached into his pocket for his keys

and produced a knife.    In the ensuing struggle, HN Madden cut

Appellant on the hand.   PVT Piazza joined the affray and

succeeded in separating Appellant from HN Madden.      Appellant and

PVT Piazza ran off.


                                   4
United States v. Harmon, No. 05-0172/MC


       At approximately 5:45 a.m., HN Madden reported the

attempted robbery and kidnapping to the military police.     He

also gave a description of Appellant.   Shortly after 8:00 a.m.,

an investigator with the Criminal Investigation Division (CID)

interviewed HN Madden who identified Appellant and indicated

that Appellant lived in either room 126 or 127 of barracks FC-

571.   The investigator went to the crime scene to evaluate the

situation and seize any evidence.

       In the meantime, at approximately 7:30 a.m., Appellant

reported to the Separations Office of the GCAC to obtain his

discharge paperwork.    He was informed he had to return there at

about 9:00 a.m., which he did.   At that time, the separations

clerk gave Appellant the original (Copy 1) and Copy 4 of his DD

Form 214.   On the DD Form 214, the date of separation was

annotated in Block 12b, Separation Date This Period, as “2001 05

17.”   Appellant’s terminal date for his reserve obligation was

annotated in Block 6, Reserve Obligation Termination Date, as

“20010517.”   At that time, there were no further administrative

or other clearing processes Appellant needed to perform to

accomplish discharge.

       During the motion session, Chief Warrant Officer-2 (CWO2)

Rochelle Bilski, Officer in Charge of the Separation Section of

the GCAC, testified that based on the information on the NAVMC

11060 Form, Appellant was on active duty until 2359 hours on May


                                  5
United States v. Harmon, No. 05-0172/MC


17, 2001.   CWO2 Bilski stated that as a matter of policy and

administrative convenience, the discharge paperwork is not held

until 2359 to give to the separated Marine.   She stated that

there would be no Marines from the GCAC available to give the

departing Marines their discharge papers at midnight.    She

claimed, however, it is normal practice for the clerks in the

GCAC office to remind departing Marines that they are on active

duty and subject to the UCMJ until 2359 of the day they are

discharged so they will not do anything “stupid.”

     After receiving his DD Form 214, Appellant left the base

and purchased a bus ticket.   He returned to the installation

briefly.    After he left the installation, he went to the home of

a friend in the civilian community of Jacksonville, North

Carolina.

     Based on information that Appellant was a suspect in the

robbery, the command notified the GCAC to place a legal hold on

Appellant and not to deliver his DD Form 214.   However,

Appellant had already received his DD Form 214.   At 3:00 p.m.,

Appellant’s commander issued a “Deserter/Absentee Wanted by the

Armed Forces” (DD Form 553) for his apprehension.   On that same

day, the Commanding General, 2d Force Service Support Group,

revoked Appellant’s administrative discharge and directed that

Appellant’s separation be held in abeyance pending the




                                  6
United States v. Harmon, No. 05-0172/MC


investigation and disposition of the attempted robbery

allegations.

        About 5:00 p.m. that day, Appellant was taken into custody

in the civilian community.    He was placed in pretrial

confinement where he remained until trial.

        At trial, Appellant moved to dismiss the charges and

specifications, arguing that he had been discharged and was no

longer subject to in personam court-martial jurisdiction.      The

military judge denied the motion to dismiss the charges for lack

of personal jurisdiction.    He found that the discharge documents

indicated the discharge authority intended for Appellant’s

discharge to become effective at 2359 on May 17, 2001, thus,

Appellant’s status as a military member continued until that

time.    Because the command acted to revoke the discharge prior

to that time, Appellant’s military status was not terminated on

May 17, 2001, and the court-martial had personal jurisdiction

over Appellant.

        Appellant renewed his argument at the Court of Criminal

Appeals.    The Court of Criminal Appeals held “an investigatory

action constitutes sufficient official action to preserve

military jurisdiction” and that “because the investigation of

serious violations of the UCMJ was initiated and focused on

Appellant before delivery of his discharge, we find that

jurisdiction of Appellant attached prior to 0900 hours on 17 May


                                   7
United States v. Harmon, No. 05-0172/MC


2001.”    Harmon, 

60 M.J. at 779

.   That court did not review the

military judge’s determination that the effective time of

separation was 2359 because it concluded that jurisdiction

attached prior to the 9:00 a.m. delivery of the DD Form 214.

Id. at 780

.

                              DISCUSSION

     Jurisdiction is the power of a court to try and determine a

case and to render a valid judgment.       Jurisdiction “is a legal

question which we review de novo.”      See, e.g., United States v.

Henderson, 

59 M.J. 350, 352

 (C.A.A.F. 2004).       Generally, there

are three prerequisites that must be met for courts-martial

jurisdiction to vest:    (1) jurisdiction over the offense, (2)

personal jurisdiction over the accused, and (3) a properly

convened and composed court-martial.       See Rule for Courts-

Martial (R.C.M.) 201(b).    The focus in this case is whether the

court-martial had personal or in personam jurisdiction over

Appellant at the time of trial.

         “Members of a regular component of the armed forces,

including those awaiting discharge after expiration of their

terms of enlistment” are subject to the UCMJ.      Article 2(a)(1),

UCMJ, 

10 U.S.C. § 802

(a)(1) (2000).     Generally, “a person

becomes subject to court-martial jurisdiction upon enlistment in

or induction into the armed forces . . . . Court-martial

jurisdiction over active duty personnel ordinarily ends on


                                    8
United States v. Harmon, No. 05-0172/MC


delivery of a discharge certificate or its equivalent to the

person concerned issued pursuant to competent orders.”   R.C.M.

202(a) Discussion (2).   Thus, military jurisdiction over the

person continues as long as military status exists.   Solorio v.

United States, 

483 U.S. 435, 439

 (1987) (jurisdiction of a

court-martial depends solely on the accused’s status as a member

of the armed forces).

     “A member of an armed force may not be discharged or

released from active duty until his discharge certificate . . .

and his final pay or a substantial part of that pay, are ready

for delivery to him . . . .”   

10 U.S.C. § 1168

(a) (2000).    To

effectuate an early discharge, there must be:   (1) a delivery of

a valid discharge certificate; (2) a final accounting of pay;

and (3) the undergoing of a “clearing” process as required under

appropriate service regulations to separate the member from

military service.   United States v. King, 

27 M.J. 327, 329

(C.M.A. 1989) (discharge certificate delivered to sailor for the

purposes of executing a reenlistment does not deprive military

authorities of court-martial jurisdiction).

     If an individual commits an offense before his official

discharge, and the military initiates action with a view to

trial, the individual may be retained in the service for trial.

R.C.M. 202(c)(1).   “If jurisdiction has attached [by the

commencement of action] before the effective terminal date of


                                 9
United States v. Harmon, No. 05-0172/MC

self-executing orders,1 the person may be held for trial by

court-martial beyond the effective terminal date.”   R.C.M.

202(c)(1) Discussion.    “Actions by which court-martial

jurisdiction attaches include:   apprehension; imposition of

restraint, such as restriction, arrest, or confinement; and

preferral of charges.”   R.C.M. 202(c)(2).

     Delivery of a valid discharge can operate as a termination

of court-martial in personam jurisdiction.   See Smith v.

Vanderbush, 

47 M.J. 56, 58

 (C.A.A.F. 1997) (in personam

jurisdiction was lost when accused was discharged after

arraignment but before lawful authority resolved the charges and

the Court found no evidence that the discharge authority

intended to discharge the accused on his expiration term of

service (ETS)).   However, the discharge authority must have

intended the discharge to take effect.    See United States v.

Batchelder, 

41 M.J. 337, 339

 (C.A.A.F. 1994) (it was clear from

face of certificate the commander did not intend the discharge

to take effect until later).

     Military services are required to ensure that “every member

. . . being separated from the Military Services is given a

completed DD Form 214 describing relevant data regarding the


1
  Self-executing orders are those that “by their own terms
automatically become effective on the specified effective date
without any further action being required.” United States v.
Smith, 

4 M.J. 265

, 266 n.3 (C.M.A. 1978).

                                 10
United States v. Harmon, No. 05-0172/MC

member’s service, and the circumstances of termination. . . .

DD Forms 214 are not intended to have any legal effect on

termination of the member’s service.”     Dep’t of Defense, Instr.

1336.1, Certificate of Release or Discharge from Active Duty (DD

Form 214/5 Series) para. 3.2 (Jan. 6, 1989, incorporating

through Change 3, Feb. 28, 2003) (emphasis added).

     At the time of the incident in this case, the Marine Corps

Separation and Retirement Manual (MARCORSEPMAN), Marine Corps

Order (MCO) P1900.16E ch. 1, para. 1007(1), at 1-22 (Aug. 18,

1995),2 provided that “[a] discharge or separation takes effect

upon delivery of a valid discharge or separation document.”

However, paragraph 3 1007(3) recognized that “[f]or the purpose

of entitlement benefits administered by the Department of

Veterans Affairs (DVA), 38 U.S.C. 106(c) provides that a Marine

discharged or released from a period of active duty shall be

deemed to have continued on active duty . . . until midnight of

the date of such discharge or release.”    Id. at 1-23.

     Although physical delivery of a discharge certificate is

generally considered the event that terminates a servicemember’s


2
  Although MCO P1900.16F replaced MCO P1900.16E on May 30, 2001,
the relevant language in paragraph 1007 remained the same.
MARCORSEPMAN, MCO P1900.16F, ch. 1, para. 1007(1), at 1-20 (May
30, 2001). On July 18, 2003, paragraph 1007 of MCO P1900.16F
was modified to specify the effective “time” of the discharge as
2359 on the date of the discharge or separation. MARCORSEPMAN,
MCO P1900.16F, ch. 1, para. 1007(1), at 1-20 (July 18, 2003).



                               11
United States v. Harmon, No. 05-0172/MC

active duty status, it is crucial to consider the intent of the

command to determine the actual effective time and date of

discharge.   See United States v. Melanson, 

53 M.J. 1, 4

(C.A.A.F. 2000) (jurisdiction existed because pursuant to Dep’t

of the Army, Reg. 635-200, a discharge takes effect at 2400

hours on the date of notice of discharge to the soldier);

Batchelder, 

41 M.J. at 339

 (delivery of a discharge certificate

for administrative convenience does not terminate jurisdiction

when a certificate is clear on its face that the commander did

not intend that the discharge take effect until a later time).

See also Hamon v. United States, 

10 Cl. Ct. 681, 683

 (1986)

(legislative history indicates that 

10 U.S.C. § 1168

(a) is not

concerned with the actual receipt of the discharge documents,

but rather with facilitating the veteran’s return to civilian

life and that all that is required is that the discharge

document be ready for delivery on the separation date).

       In this case, Appellant was being administratively

separated from the military for misconduct prior to his

scheduled end of active service (EAS) date.   His scheduled

discharge date, based on the administrative discharge and order

of the commander, was established as May 17, 2001.   On May 17,

2001, at 9:00 a.m., Appellant received a copy of his DD Form

214.   The date of his discharge was noted on the DD Form 214,

Block 12b, as May 17, 2001.   There was no effective “time” for


                                 12
United States v. Harmon, No. 05-0172/MC

discharge indicated on the DD Form 214.3   At some point during

out-processing, Appellant received a copy of the NAVMC 11060.

The NAVMC 11060 Form, however, indicated “2359/2001 05 17” as

the end date and “time” of Appellant’s active duty service.

     The DD Form 214 in conjunction with the NAVMC 11060 Form,

clearly indicated the command’s intent to discharge Appellant at

2359 hours on May 17, 2001.   It was not the command’s intent

that Appellant’s discharge would be effective at some arbitrary

point in time when a personnel clerk decided to deliver the

copies of the DD Form 214 to Appellant.    Until 2359 hours on May

17, 2001, Appellant “was merely a person in possession of [an

order] not yet operative.”    Batchelder, 

41 M.J. at 339

.   See

also United States v. Guest, 

46 M.J. 778, 780

 (A. Ct. Crim. App.

1997) (the intent of parties was germane to whether the courtesy

copy of DD Form 214 operated as the official discharge

certificate); In re Shattuck, 

63 Comp. Gen. 251

, 252 (1984)) (the

effective date of the discharge is not dependent on the delivery

of the certificate but on the intent of the command and

servicemember that discharge is effective on a given date).

     Prior to 2359 hours on May 17, 2001, the command placed a

legal hold on Appellant.   As a result, in personam jurisdiction

3
  The Department of Defense instructions and the service
instructions or regulations do not require that the effective
end of service “time” be included in Blocks 12b or 6 of the DD
Form 214. The instructions only require that the EAS date be
noted.

                                 13
United States v. Harmon, No. 05-0172/MC

over Appellant was never lost.    See United States v. Williams,

53 M.J. 316, 317

 (C.A.A.F. 2000) (jurisdiction over the accused

did not terminate because a valid legal hold was placed on the

accused on the same day the discharge certificate was mailed to

him).

        In light of our holding, it is not necessary for us to

determine whether the court below was correct in concluding that

jurisdiction over Appellant attached when Appellant became the

focus of a criminal investigation.     We hold that the military

judge’s findings were correct.    The discharge was not effective

until 2359 hours on May 17, 2001.      A valid legal hold was placed

on Appellant and his discharge was revoked before the time and

date his discharge was supposed to take effect.     Thus, we find

the military had in personam jurisdiction over Appellant at the

time of his trial.

                               DECISION

        Accordingly, the findings and the sentence as approved on

review below, are affirmed.




                                  14
United States v. Harmon, No. 05-0172/MC


     ERDMANN, Judge (dissenting):

     The majority opinion finds that Harmon’s status as an

active duty member of the Marine Corps did not terminate until

2359 on May 17, 2001 and that his discharge was properly revoked

before that time.   Because I find that Harmon’s discharge was

validly completed at 0900, I respectfully dissent.

     Harmon was discharged before the end of his term of service

and this court has held that three conditions must be met before

an early discharge is effective:    (1) nonfraudulent and

authorized delivery of a valid discharge certificate, (2) a

final accounting of pay, and (3) completion of the clearing

process required by the service’s regulations.   United States v.

King, 

27 M.J. 327, 329

 (C.M.A. 1989); see also United States v.

Batchelder, 

41 M.J. 337, 339

 (C.A.A.F. 1994) (holding that early

discharge was not valid because the separations clerk was not

following the instructed procedures); Wickham v. Hall, 

12 M.J. 145, 150

 (C.M.A. 1981) (holding that separation from military

service procured by fraudulent means is not a valid separation).

     There is no dispute that Harmon received a valid discharge

certificate –- an original (Copy 1) of his “Certificate Of

Release Or Discharge From Active Duty” (DD Form 214) -– at 0900.

The facts also establish that there was no further

administrative clearing or accounting of pay to be performed

when Harmon picked up his discharge certificate.   Thus, the
United States v. Harmon, No. 05-0172/MC


question is whether there was a nonfraudulent and authorized

delivery of the DD Form 214.

     There has been no assertion at any time that Harmon acted

to fraudulently “procure[] his own separation from the armed

forces by knowingly false representation or deliberate

concealment as to his eligibility for that separation.”    Article

83(2), Uniform Code of Military Justice, 

10 U.S.C. § 883

(2)

(2000).   In fact, there is no dispute that Harmon was eligible

for separation as his administrative discharge had been approved

and processed.   Nor is there any allegation that the clerk who

delivered the DD Form 214 to Harmon was working outside his

authority.

     The majority concludes, however, that Harmon’s DD Form 214

did not take effect when it was physically transferred to him at

0900 because the command expressed a clear intent to keep Harmon

on active duty until 2359.   In reaching this conclusion the

majority relies on an entry in Harmon’s “Separation/Travel Pay

Certificate” (NAVMC 11060 Form) as evidence of the command’s

intent to extend the effective date of Harmon’s discharge and on

this court’s holding in Batchelder.

     NAVMC 11060 Form contains a section entitled “Pay

Information”.    That section has a number of blanks that are to

be completed by the command when a person is discharged.   One

such blank reads as follows:   “Leave Awaiting Separation From


                                  2
United States v. Harmon, No. 05-0172/MC


(Time And Date) _______ To (Time And Date) _______”.    The

official who completed the form did not make an entry in the

first blank but in the second blank inserted “2359/2001 05 17”.

This entry is cited by the majority as evidence of the command’s

intent to discharge Harmon at 2359 on May 17, 2001.

       The entry relied upon by the majority appears to be an

entry related to leave that simply indicates the time through

which Harmon would be charged leave rather than the effective

date of the discharge.    This entry on the NAVMC 11060 Form would

alert finance authorities to deduct this leave from a Marine’s

leave balance before determining any separation pay for accrued

leave.    It appears, however, that Harmon took no leave and this

entry is therefore meaningless.

       A separate blank on the form does reference the “Effective

Date Of Separation From ACDU”1 and contains the following entry:

“2001 05 17”.    This blank does not ask for the effective “time”

of discharge, which is consistent with a Marine Corps regulation

in effect at that time that provided that “[a] discharge or

separation takes effect upon delivery of a valid discharge or

separation document.”    Marine Corps Separation and Retirement

Manual (MARCORSEPMAN), Marine Corps Order (MCO) P1900.16E, ch.




1
    “ACDU” is a Navy/Marine Corps abbreviation for “active duty”.


                                  3
United States v. Harmon, No. 05-0172/MC


1, para. 1007(1) at 1-22 (Aug. 18, 1995).2   The regulation

clearly dictates the effective time of the discharge as the time

of delivery, which in this case was 0900.    Even if the entry in

the pay section of the form did evidence the local commander’s

intent to extend the effective time of Harmon’s discharge, the

regulation does not authorize individual commanders to alter the

effective time of a discharge.   Id.; see also United States v.

Wheeler, 

27 C.M.R. 981

, 989 (A.F.B.R. 1959) (“Regulations issued

by the military service on matters within their authority have

the force of law if not in conflict with the Constitution or

Congressional enactments.”).

     The majority also relies on Batchelder, where this court

held that a discharge did not go into effect when a

servicemember received his DD Form 214 because (1) his orders

and discharge package clearly identified the discharge time as

2400, and (2) the clerk who delivered the paperwork to

Batchelder at 1400 was breaking the command’s rules with regard

to how discharge paperwork should be handled.   

41 M.J. at 339

.

Here the form does not clearly identify the discharge time, the

Marine Corps regulation specified that the discharge was

effective upon the delivery of the DD Form 214 and there is no

2
  As noted by the majority, this regulation was amended in July
2003 to specify 2359 as the effective time of all discharges.
See MARCORSEPMAN, MCO P1900.16F, ch. 1, para. 1007(1), at 1-20
(July 18, 2003).


                                 4
United States v. Harmon, No. 05-0172/MC


allegation that the clerk who issued the DD Form 214 to Harmon

was working outside of his authority.

     I also do not agree with the alternative argument presented

by the Government –- that the Navy-Marine Corps Court of

Criminal Appeals was correct in its conclusion that under Rule

for Courts-Martial (R.C.M.) 202(c)(2), court-martial

jurisdiction attached before 0900 because action with a view to

trial was taken prior to the delivery of the discharge

certificate.3   United States v. Harmon, 

60 M.J. 776, 779

 (N-M.

Ct. Crim. App. 2004).   Examples of actions with a view to a

trial include “apprehension; imposition of restraint, such as

restriction, arrest, or confinement; and preferral of charges.”

R.C.M. 202(c)(2).   We have also held that R.C.M. 202(c)(2) does

not provide an exhaustive list and that “other affirmative

action can also be taken ‘with a view to trial.’”   United States

v. Self, 

13 M.J. 132, 138

 (C.M.A. 1982).   We have further

explained that “[a]ny acts of military officials which


3
  In Smith v. Vanderbush this court made it clear that once
court-martial jurisdiction attaches the command may choose to
take steps to defer an upcoming discharge and continue the
accused’s active service, but such action does not occur
automatically. 

47 M.J. 56, 58

 (C.A.A.F. 1997). The Navy-Marine
Corps court recognized this precedent, but added a qualification
to the Vanderbush requirements -- that the command be fully
informed about the nature of the investigation at the time the
discharge certificate is delivered. United States v. Harmon, 

60 M.J. 776, 779-80

 (N-M. Ct. Crim. App. 2004). This qualification
is not supported by Vanderbush or other precedent of this court.


                                 5
United States v. Harmon, No. 05-0172/MC


authoritatively presage a court-martial” can constitute actions

that trigger the attachment of jurisdiction.      

Id.

     In Self we concluded that sufficient actions had been taken

to create jurisdiction where, prior to receiving his discharge,

the accused was identified as a suspect, summoned to the Army

Criminal Investigation Division (CID) office, informed of the

offenses for which he was being investigated, informed of his

rights and then interviewed.    

Id.

     Here the Government argues

that court-martial jurisdiction had attached because “the

criminal investigation into the crimes committed upon HN Madden

had reach the point where the guilt of Appellant seemed

particularly clear.”

     Sometime between 0815 and 1015 Harmon became a possible

suspect based on the victim’s statement to the CID that “the

suspect may be a PFC Harmon”.   The record does not disclose

whether this occurred prior to 0900.      At approximately 1020 CID

notified Harmon’s command that “he was a possible suspect in the

investigation” (emphasis added).       At 1500 a “Deserter/Absentee

Wanted by the Armed Forces” (DD Form 553) was issued for

Harmon’s arrest and he was apprehended at approximately 1700.

At most, these facts support a finding that the victim may have

identified Harmon as a possible suspect prior to 0900.      They do

not support a conclusion that the acts of “military officials .




                                   6
United States v. Harmon, No. 05-0172/MC


. . authoritatively presage[d] a court-martial” prior to 0900.

Self, 

13 M.J. at 138

.

     Harmon was validly discharged at 0900 and there was no in

personam jurisdiction over him from that point forward.   For

these reasons, I would reverse the decision of the lower court,

set aside the findings and sentence and dismiss all charges.




                                7