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Moving towards the apex: recent developments in military jurisdiction
Army Lawyer, April-May, 2003 by Tyler J. Harder
The last personal jurisdiction case this article will discuss is United States v. Brevard, (71) a case that stems from a government appeal under Article 62, UCMJ. (72) The Army Court of Criminal Appeals (ACCA) originally addressed Brevard in November 2002, (73) and discussed Article 3(b), UCMJ, and fraudulent discharges.
(74) The accused, Sergeant (SGT) Brevard, was flagged on 4 May 2001, and his commander preferred charges against him on 12 July 2001. Before the Article 32 pretrial investigation, the accused advanced his expiration of term of service (ETS) date to 11 August 2001, by canceling his tour extension, and then, without authority, requested clearing papers and orders from the transition center. (75) The accused was told during his out-processing that he was flagged, so he submitted a forged document to the transition center purporting to lift the flag. On 10 August, he presented forged clearing papers to the transition center for his final out-processing. (76) After receiving a courtesy copy of his DD Form 214 (77) and reviewing his final pay computations with the installation-level finance personnel, the accused departed his unit and left Germany on 11 August. On 16 August, after SGT Brevard failed to appear for the Article 32 investigation, the Finance Commander directed that SGT Brevard's final pay not be processed. (78) On 8 November 2001, Army authorities detained the accused at Fort Meyer, Virginia, and on 23 November, flew him back to Germany for trial. In December, the Army released the accused's final pay to his bank, but then recalled it before he gained access to it. (79) The court did not arraign SGT Brevard until 13 February 2002, at which time he argued lack of personal jurisdiction. (80) Two weeks later, the military judge ruled that the accused had not completed the clearing process, had not received his final pay, and had received his discharge fraudulently. The military judge found, however, that the accused was discharged on 11 August--thereby terminating jurisdiction over him--and abated the proceedings. The military judge ruled that the government must first convict the accused of fraudulent separation before proceeding on the preferred charges. (81) The government then preferred a single charge of fraudulent separation against the accused on 1 April 2002, and referred the case to a court-martial on 15 May. On 10 June, following the arraignment, the defense argued a motion to dismiss based on lack of a speedy trial in front of a different military judge. On 3 July 2002, the second military judge granted the defense motion and dismissed the fraudulent separation charge with prejudice. The military judge found that the accused had "completed the clearing process, albeit deceptively; received a final accounting of pay; and was delivered his DD Form 214." (82) Based on these findings, the military judge concluded that SGT Brevard had been discharged from the Army on 11 August 2001, and that the government had to prove the fraudulent discharge before it could try SGT Brevard on the other offenses. (83)
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