IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES:

IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Mr. Saheed A. LAWANSON, Appellee v. UNITED STATES, Appellant ANSWER TO GOVERNMENT S WRIT APPEAL Crim.App. No. 201100273 USCA Misc. Dkt. No. 13-8007/NA TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: KEVIN S. QUENCER LT, JAGC, USN CAAF Bar Number: 35699 Appellate Defense Counsel 1254 Charles Morris Street SE, Suite 100 Washington, D.C. 20374 (202)685-8502 PAUL C. LEBLANC CAPT, JAGC, USN CAAF Bar Number: 28180 Director, Appellate Defense 1254 Charles Morris Street SE, Suite 100 Washington, D.C. 20374 (202)685-8502

Index Page Table of Authorities.................... ii History of the Case..................... 1 Issue Presented....................... 1 Statement of the Facts....................2 Discussion..........................8 Certificate of Compliance..................43 Certificate of Filing and Service..............43 Table of Authorities Page UNITED STATES SUPREME COURT CASES Cheney v. United States Dist. Court, 542 U.S. 367 (2004).............. 9,10,11,13 Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943)...................9 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)................... 17 Will v. United States, 389 U.S. 90 (1967)...........10 FEDERAL COURT CASES United States v. Green, 654 F.3d 637 (6th Cir. 2011).............. 35, 36 UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES AND COURT OF MILITARY APPEALS CASES Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997)... 9,14,16,22 United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995)..... 13 United States v. Caputo, 18 M.J. 259 (C.M.A. 1984)... 9,10,14 United States v. Flores, 64 M.J. 451 (C.A.A.F. 2007).....13 United States v. Fry, 70 M.J. 465 (C.A.A.F. 2012)..... 38,39 iii

United States v. Gallagher, 66 M.J. 250 (C.A.A.F. 2008)... 13 United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008)...16,17,37 United States v. Houser, 36 M.J. 392 (C.M.A. 1993)...... 12 United States v. Khamsouk, 57 M.J. 282 (C.A.A.F. 2002).... 13 United States v. King, 27 M.J. 327 (C.M.A. 1989)..... 18,37 United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003)....39 United States v. Self, 13 M.J. 132 (C.M.A. 1982).......17 United States v. Wilson, 53 M.J. 327 (C.A.A.F. 2000)... 18,35 COURTS OF CRIMINAL APPEALS CASES Aviz v. Carver, 36 M.J. 1026 (N.M.C.M.R. 1993)........10 Lawanson v. United States, No.201200187, 2012 CCA LEXIS 345, (N-M. Ct. Crim. App. Aug. 31, 2012)................. 1-7,11-13,18-25,28,29,35,38-40 Ponder v. Stone, 54 M.J. 613, 616 (N-M. Ct. Crim. App. 2000)....... 10 United States v. Holmes, 65 M.J. 684 (N-M. Ct. Crim. App. 2007)......... 12 United States v. Lee, 43 M.J. 794 (N-M. Ct. Crim. App. 1995)......... 17 STATUTES AND RULES R.C.M. 202......................... 16 Article 2, UCMJ (10 U.S.C. 801-941)............ 39 OTHER AUTHORITIES Bureau of Naval Personnel Instruction 1900.8D, 5(b) (11 Jun 2010)......................19 MILPERSMAN 1160-120.................26,27,29,30 MILPERSMAN 1910-104......................2 iii

I. History of the Case Mr. Lawanson agrees with the Government s statement of the History of the Case. II. Issue Presented DID THE COURT BELOW ERR WHEN IT DECIDED MR. LAWANSON HAD BEEN VALIDLY DISCHARGED ON FEBRUARY 1, 2012, AND ISSUED A WRIT OF MANDAMUS DISMISSING CHARGES FOR A LACK OF PERSONAL JURISDICTION? III. Statement of Facts The NAVSUBASE XO sounded agitated on the phone. 1 The PSD Employee on the other end of the line had never spoken to the XO before. 2 before. 3 He had certainly never had the XO call him at home If you don t cancel the separation the newspapers are going to get involved the XO told the PSD employee. 4 Mr. Lawanson had been discharged, and the command was agitated and wanted it canceled. Mr. Lawanson reenlisted on February 28, 2008, with an End of Active Obligated Service (EAOS) date of February 28, 2012. 5 Because Mr. Lawanson was subsequently reduced in rank, his High- Year Tenure (HYT) date became February 1, 2012. 6 An investigation into Mr. Lawanson s alleged conduct began in 1 R. at 124. 2 R. at 123. 3 R. at 124. 4 R. at 124. 5 Lawanson v. United States, No.201200187, 2012 CCA LEXIS 345, *2 (N-M. Ct. Crim. App. Aug. 31, 2012). 6 Lawanson, 2012 CCA LEXIS 345 at *2.

September 2011 by NCIS who notified the command. 7 Despite the ongoing investigation, both the Personnel Service Detachment (PSD) and Mr. Lawanson s command used the HYT date to process Mr. Lawanson for Separation. 8 In October 2011, the Staff Judge Advocate (SJA) received a PSD spreadsheet listing Mr. Lawanson s date of discharge as February 1, 2012. 9 On October 30, 2011, Mr. Lawanson submitted a special request chit for terminal leave that listed his date of separation as February 1, 2012. 10 Mr. Lawanson s department head, LT C, approved the request and later contacted the SJA to advise that he had granted the request. 11 Between late October and mid-november 2011, Mr. Lawanson completed his check-out from NAVSUBASE. 12 The Command Master Chief (CMC), who was authorized to check out Sailors in grade E-6 and below, initialed Mr. Lawanson s check-out sheet. 13 On November 16, 2011, Mr. Lawanson received his final detachment evaluation, signed by three members of the command. 14 That detachment evaluation listed Mr. 7 R. at 6, 30; Lawanson, 2012 CCA LEXIS 345 at *2. 8 AE X at 1. 9 R. at 44; Lawanson, 2012 CCA LEXIS 345 at *3. 10 AE IV at 59, 62; Lawanson, 2012 CCA LEXIS 345 at *3. 11 R. at 34; Lawanson, 2012 CCA LEXIS 345 at *3. 12 AE III at 27; Lawanson, 2012 CCA LEXIS 345 at *3. 13 AE III at 27; Lawanson, 2012 CCA LEXIS 345 at *3. 14 AE III at 73; Lawanson, 2012 CCA LEXIS 345 at *3. 2

Lawanson s date of separation as February 1, 2012. 15 That document was forwarded to the CMC. 16 Mr. E, the department head for separations at the local PSD office, testified that PSD had not made any mistakes with Mr. Lawanson s discharge. 17 Mr. Lawanson was given his DD 214 on November 18, 2011, with an execution date of February 1, 2012. 18 Mr. S, deputy director at the local PSD, testified that Mr. Lawanson s final accounting of pay was calculated, approved, and just awaiting the push of a button to be delivered to Mr. Lawanson on February 1, 2012. 19 On February 2, 2012, the date after Mr. Lawanson s discharge, the Commanding Officer, CAPT D, decided to place Mr. Lawanson on legal hold and prefer charges against him. 20 CAPT D had specifically waited until the investigation was complete and he had all the facts before deciding to place Mr. Lawanson on legal hold on February 2. 21 The command was notified that same day that Mr. Lawanson had been discharged after the command attempted to deliver a legal hold letter to PSD. 22 The Commanding Officer, the Executive Officer, the Staff Judge 15 AE III at 73; Lawanson, 2012 CCA LEXIS 345 at *3. 16 R. at 75; Lawanson, 2012 CCA LEXIS 345 at *3. 17 R. at 121, 122, 130. 18 AE III at 80; Lawanson 2012 CCA LEXIS 345 at *3; AE X at 2. 19 R. at 149; Lawanson, 2012 CCA LEXIS 345 at *5, 12. 20 R. at 23-24; Lawanson, 2012 CCA LEXIS 345 at *5, 10. 21 R. at 23-24; Lawanson, 2012 CCA LEXIS 345 at *5, 10. 22 R. at 40; Lawanson, 2012 CCA LEXIS 345 at *5. 3

Advocate, and the CMC then met to discuss the situation. 23 The Staff Judge Advocate then asked the CMC to sit down with Mr. Lawanson and get a feel for what course of action Mr. Lawanson was contemplating. 24 Mr. Lawanson was called back to base in order to meet with the base SJA and the CMC. 25 Upon arrival Mr. Lawanson was served with charges. 26 The CMC testified that he gave Mr. Lawanson options, but also testified that he told Mr. Lawanson it would be in his best interests to continue to work with the command JAG and NCIS and not to leave the area. 27 Mr. Lawanson was quiet and asked no questions, 28 but he was very clear that he was interested in being represented by an attorney. 29 After the meeting, Mr. Lawanson commented to his chief, MAC C, that he thought he had been discharged. 30 The chief told Mr. Lawanson to speak to a lawyer. 31 Mr. Lawanson left the base, went home, and did not report to work on Friday, Saturday, Sunday, or Monday. 32 23 Lawanson, 2012 CCA LEXIS 345 at *5. 24 R. at 86; Lawanson, 2012 CCA LEXIS 345 at *5. 25 R. at 81-82, 89, 167-72, 249; Lawanson, 2012 CCA LEXIS 345 at *15. 26 R. at 273; Lawanson, 2012 CCA LEXIS 345 at *5. 27 R. at 83; Lawanson, 2012 CCA LEXIS 345 at *6. 28 R. at 97; Lawanson, 2012 CCA LEXIS 345 at *6. 29 R. at 94; Lawanson, 2012 CCA LEXIS 345 at *6. 30 R. at 164; Lawanson, 2012 CCA LEXIS 345 at *6. 31 R. at 164; Lawanson, 2012 CCA LEXIS 345 at *6. 32 R. at 252, 253. 4

After the meeting with Mr. Lawanson, the command worked feverishly to cancel Mr. Lawanson s discharge. 33 At trial, the Military Judge described the command s actions as the subsequent flail to correct the inadvertent discharge. 34 Email after email was exchanged between the command, the RLSO prosecuting the case, the local PSD, and Navy Personnel command. 35 The command SJA even told a PSD employee that PSD needed to generate a new payment to Mr. Lawanson in order to undue one of the elements of a valid discharge. Mr. E, a longtime PSD employee, testified They wanted--there s some US Code something about elements that have to happen and I [I m]-- not a lawyer so I don t understand all that he was talking about but there was some concern that he said we need to generate a payment to not fulfill one of these elements or something. 36 The CMC called Mr. Lawanson several times and told him that the Commanding Officer and the SJA were working to find a loophole to bring him back into the Navy. 37 Ultimately, on Tuesday, February 7, 2012, the CMC called Mr. Lawanson back to work, told him that his discharge 33 AE III at 36-68 (email Chain detailing efforts of the command to administratively cancel the discharge of Mr. Lawanson). 34 AE X at 7. 35 AE III at 36-68; Lawanson, 2012 CCA LEXIS 345 at *11. 36 R. at 126. 37 R. at 251; AE X at 4,( CMC [V] contacted the accused via phone daily from 2 February through 6 February 2012. ). 5

paperwork, that s garbage. Just throw it away and ordered Mr. Lawanson to report back to duty. 38 For facts not contained above, the Appellee urges this Court to adopt the findings of fact of the court below. Those findings of fact are not clearly erroneous. The Appellee specifically does not accept as fact the Government s partisan interpretation of regulations, couched as fact. Therefore, pursuant to Rule 28(b)(1) of this Court s practice and procedure, we contest the Appellant s version of the facts. Timeline of Events JUL 11: OCT 11: PSD informs Mr. Lawanson that his separation date was his HYT date of February 1, 2012 since that date preceded his EAOS of February 28, 2012. 39 NAVSUBASE SJA receives a spreadsheet showing Mr. Lawanson s separation date was February 1, 2012. 40 30 OCT 11: Mr. Lawanson submits a request for terminal leave, listing a separation date of February 1, 2012. The division petty officer, CMC, and department head, LT C, approves it. 41 16 NOV 11: Detachment Evaluation of Mr. Lawanson with an end report date of February 1, 2012 is signed by three members of the command, including his department head, LT C. 42 17 NOV 11: CMC initials Mr. Lawanson s check-out sheet. 43 38 R. at 253. 39 Lawanson, 2012 CCA LEXIS 345 at *3. 40 Id. at *3-4. 41 Id. at *4. 42 AE III at 73. 43 AE III at 27. 6

18 NOV 11: DD 214 with an execution date of February 1, 2012 is signed and given to Mr. Lawanson. 44 20 NOV 11: Terminal Leave Request with an ending date of February 1, 2012 is approved by two members of the command including his department head, LT C. 45 1 FEB 12: 1. DD 214 execution date. MR. E testified PSD made no mistakes in issuing the DD 214. 46 2. Mr. Lawanson s final pay and accounting is ready for delivery, awaiting the push of a button to be sent to his bank. 47 3. Mr. Lawanson meets with NCIS for a final interview and then leaves base to go home, believing he has been discharged. 48 2 FEB 12: 1. Mr. Lawanson s Commanding Officer, CAPT D, decides for the first time to put Mr. Lawanson on legal hold, which he does not do until February 6, 2012, and to prefer charges against him. 49 2. Command discovers Mr. Lawanson has been discharged, Mr. Lawanson is called back to base to meet with the SJA and CMC. 3-6 FEB 12: Mr. Lawanson does not report to work. Command Master Chief calls Lawanson and tells him the command is looking for a loophole. 50 7 FEB 12: Mr. Lawanson is called back to base, told his DD 214 is garbage, and ordered to report back to duty. 51 44 AE III at 80. 45 AE IV at 62. 46 R. at 121, 122, 130. 47 R. at 149; Lawanson, 2012 CCA LEXIS 345 at *12; AE X at 3. 48 R. at 248, 249. 49 Lawanson, 2012 CCA LEXIS 345 at *6-7, 12, 18-19, 23. 50 R. at 251. 51 R. at 253. 7

IV. Reasons Why the Writ Issued by Lower Court Should Issue Summary of the Argument The Government investigated Mr. Lawanson from September 2011 until he was discharged on February 1, 2012. During that period, the Government failed to place Mr. Lawanson on legal hold before he was discharged. After the Government realized their error, they have enlisted every possible legal argument to invalidate Mr. Lawanson s discharge. Despite these efforts, the insescapable reality remains; Mr. Lawanson s discharge meets the three-prong test delineated in United States v. King for a valid discharge. The court below, after a careful consideration of the briefs of both parties, the record of trial, and oral argument, correctly held that Mr. Lawanson was discharged and properly issued a writ of mandamus to confine the court-martial to its prescribed jurisdiction. Argument 1. A Writ of Mandamus is appropriate to confine a lower court to a lawful exercise of its prescribed jurisdiction. The court below properly issued a Writ of Mandamus to prevent the court-martial from trying a civilian, which is beyond the court-martial s prescribed jurisdiction. The Supreme Court has held that [t]he traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine a court to a lawful 8

exercise of its prescribed jurisdiction. 52 And in United States v. Caputo, the CMA held that a petition for extraordinary relief is appropriate to address a challenge to in personam jurisdiction. 53 In fact, it granted extraordinary relief and dismissed the charges on those grounds. 54 Court: As Chief Judge Everett explained in his opinion for the Caputo complains that the special court-martial lacked in-personam jurisdiction to try him. We may properly consider this challenge, for, as we have observed elsewhere: The Supreme Court has allowed bypassing ordinary procedures for review within the military justice system when accused persons have raised substantial arguments denying the right of the military to try them at all. 55 More recently, this Court has affirmed the extraordinary writ issued by a Court of Criminal Appeals for a lack of in personam jurisdiction in Smith v. Vanderbush. 56 Putting aside firm precedent that confirms an extraordinary writ is appropriate on questions of in personam jurisdiction, the Government s argument does not make practical sense. If Mr. Lawanson was indeed discharged and is a civilian, the Government 52 Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004) (citing Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 87 L. Ed. 1185, 63 S. Ct. 938 (1943)). 53 United States v. Caputo, 18 M.J. 259 (C.M.A. 1984) (superseded on other grounds by statute) (citing Noyd v. Bond, 395 U.S. 683, 696 n.8 (1969)). 54 Id. 55 Id. at 262. 56 Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997). 9

argues that he must nevertheless stand trial in a court-martial without jurisdiction to try him, risk conviction by a courtmartial that has no jurisdiction to convict him, and risk punishment from a court-martial without the jurisdiction to punish him, all without recourse while he awaits direct appeal. But as CMA held in Caputo, this is exactly the type of issue that is appropriate for a writ. 57 2. NMCCA Properly issued the Writ in this Case. In Cheney v. United States, the Supreme Court has held that three conditions must be met before a court may provide extraordinary relief in the form of a Writ of Mandamus: (1) the party seeking the writ must have no other adequate means to attain the relief ; (2) the party seeking the relief must show that the right to issuance of the relief is clear and indisputable ; and (3) even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. 58 The court below properly applied this framework and found that Mr. Lawanson had met his burden of meeting all three 57 Caputo, 18 M.J. 259. 58 Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004) (citations and internal quotation marks omitted); see also Will v. United States, 389 U.S. 90, 96 (1967); Ponder v. Stone, 54 M.J. 613, 616 (N-M. Ct. Crim. App. 2000); Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R. 1993). 10

conditions for the issuance of a Writ of Mandamus as defined by the Supreme Court in Cheney. Indeed, Mr. Lawanson cannot seek relief in federal court to enforce his right not to be tried by court-martial until the extraordinary writ appeals are exhausted. He established that his DD 214 was valid, which is an absolute bar to his trial by court-martial. Thus he has a clear and indisputable right to the requested relief. And just as this Court and CMA found in Vanderbush and Caputo, an order directing dismissal of the charges is appropriate where the court-martial lacks in personam jurisdiction. 59 a. NMCCA applied the correct standard of review. The Government argues that the court below should have applied an abuse of discretion standard but did not do so. In Cheney, the Supreme Court stated that only exceptional circumstances amounting to a judicial usurpation of power,... or a clear abuse of discretion... will justify the invocation of this extraordinary remedy. 60 While the lower court did not explicitly state that it applied an abuse of discretion standard, it is clear that it did so. In United States v. Holmes, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) explained that: [A]buse of discretion as a standard of review is commonly used in two different ways. Sometimes, 59 Lawanson, 2012 CCA LEXIS 345 at *2. 60 Cheney, 542 U.S. 367, 380 (2004). 11

abuse of discretion is a conclusory label, such as when it is said a lower court abused its discretion because its findings of fact were clearly erroneous or because it was mistaken on the law. 19 Moore's Federal Practice 206.05[1] (Matthew Bender 3d ed.); see United States v. Parker, 62 M.J. 459, 465 (C.A.A.F. 2006); United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995); United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). In such cases, factual findings have been reviewed under a "clearly erroneous" standard, and legal determinations under a de novo standard. To say the lower court abused its discretion may be a technically correct usage of this "term of art," but it can obscure the true standard of review. On the other hand, "abuse of discretion" may also indicate the appellate court will defer to a lower court's discretionary decision so long as that decision was within a range of reasonable possible decisions. 19 Moore's Federal Practice 206.05[1]. Often, such situations arise where a lower court must apply the law to a set of facts, such as occurred in this case. The appellate court will normally review de novo the law applied by the lower court, and will generally reverse only a clearly erroneous factual finding. It will, however, often review the lower court's discretionary act of applying the law to the facts under a standard affording the lower court some degree of deference, though something short of the clearly erroneous standard by which it examines factual findings. 61 Here, the court below reviewed the military judge s findings of fact under a clearly erroneous standard and reviewed his findings of law de novo, 62 which complies with both applications of the abuse of discretion standard discussed above. Indeed, this Court has stated, on a mixed question of 61 65 M.J. 684, 686 (N-M. Ct. Crim. App. 2007); see also United States v. Houser, 36 M.J. 392, 398 (C.M.A. 1993). 62 Lawanson, 2012 CCA LEXIS 345 at *8. 12

law and fact as in this case, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect. 63 Further, although in the context of direct appeals, this Court has repeatedly held that an abuse of discretion standard requires that findings of fact are reviewed for clear error while conclusions of law are reviewed de novo. 64 The court below not only properly applied an abuse of discretion standard, it also applied the more strenuous standard for issuing a writ of mandamus enunciated in Cheney. 65 That standard requires a showing of a clear and indisputable right to relief, which the court below cites twice in its opinion. 66 Moreover, just a paragraph above this test, the Supreme Court opinion states: Although courts have not confined themselves to an arbitrary and technical definition of jurisdiction, only exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion, will justify the invocation of this extraordinary remedy. 67 63 United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). 64 See United States v. Gallagher, 66 M.J. 250, 253 (C.A.A.F. 2008); United States v. Flores, 64 M.J. 451, 453(C.A.A.F. 2007); United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F. 2002). 65 Lawanson, 2012 CCA LEXIS 345 at *8. 66 Cheney, 542 U.S. 367, 380-81 (2004); Lawanson, 2012 CCA LEXIS 345 at *8. 67 Cheney, 542 U.S. 367, 380 (2004)(citations and quotation marks omitted). 13

Every indication in their opinion supports the conclusion that the court below read Cheney before citing to it as the central standard in its decision to grant relief, and followed it. b. The Government argues that there was no judicial usurpation of power. But here the usurpation of power was clear, the court-martial sought to exert power it did not have, the power to try a discharged servicemember. A court that does not have the jurisdictional power to try an individual usurps 68 power when it nevertheless uses a power it does not have. Here the court-martial did not have the power to try Mr. Lawanson, yet it incorrectly ruled that it could try him. This is usurpation of power, which this Court has found to be the proper subject of an extraordinary writ. 69 Curiously, the Government cites United States v. Labella, 70 for the proposition that a writ is not available in Mr. Lawanson s case, claiming there is no judicial usurpation of power. But Labella does not state that an incorrect ruling on jurisdiction cannnot rise to the level of a judicial usurpation of power. In Labella, the CMA found that the military judge did not usurp his power by dismissing the charges for lack of subject-matter jurisdiction over a servicemember. This 68 Usurp means to take illegally or by force. New Oxford American Dictionary (2nd ed. 2005). Usurpation means The unlawful seizure and assumption of another s position, office, or authority. Black s Law Dictionary (8th ed. 2004). 69 See generally Caputo, 18 M.J. 259 (C.M.A. 1984) and Vanderbush, 47 M.J. 56, 59 (C.A.A.F. 1997). 70 15 M.J. 228 (C.M.A. 1983). 14

situation is vastly different from the one presented in this case where the court-martial attempted to exercise in personam jurisdiction over a civilian. There can be no greater usurpation of power than trying a civilian, who is not subject to court-martial jurisdiction, by court-martial. c. The government incorrectly argues that the Military Judge never made a final determination on the second and third factors in King, and therefore further litigation is required at the court-martial level. The Government incorrectly claims that the Military Judge has explicitly withheld from a final ruling on the latter two prongs of the jurisdiction test (Appellate Ex X at 9, N.12 (noting [this] court s ruling on the first factor obviates further analysis. ) 71 Here is footnote 12 in its entirety: 12 The Government failed to carry their burden as to the second and third factors, and this court is convinced that the accused received a substantial part of his final pay and cleared the other administrative hurdles of separation. United States v Hart, 66 M.J. 273, 275 (C.A.A.F. 2008). See also, United States v. Melanson, 50 M.J. 641 (Army Ct. Crim. App. 1999) (recognizing that current technology and accounting practices may have changed the analysis necessary for determining such issues, specifically noting problems with technology and when a final accounting of pay has occurred). However, the court s ruling on the first factor obviates further analysis. 72 Thus, in his written findings of fact and conclusions of law on this issue, the Military Judge stated that the Government 71 Government Br. at 26. 72 AE X at 9, n.12. 15

had failed to carry their burden as to the second and third factors. His succinct findings of fact implied those factors were met. But since the Military Judge decided the jurisdictional question on the first factor King factor, he did not put his analysis of his ruling on the second and third factors under on the record. 3. Discharge severs jurisdiction. The court below properly determined that Mr. Lawanson was discharged from military service, and therefore no jurisdiction to try him at courtmartial exists. A servicemember is no longer subject to court-martial jurisdiction once he is lawfully discharged. 73 In United States v. Hart, this Court stated [i]t is black-letter law that in personam jurisdiction over a military person is lost upon his discharge from the service. 74 And in Smith v. Vanderbush, this Court held that [a] lawful discharge from military service normally terminates the constitutional and statutory power of a court-martial to try such a person. 75 Even when an accused has been arraigned, this Court held in Vanderbush that discharge severs court-martial jurisdiction. 76 And there are important constitutional reasons underpinning that rule. As noted in Toth v. Quarles: 73 R.C.M. 202(a), Discussion; R.C.M. 202(c)(1), Discussion. 74 United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008). 75 Smith v. Vanderbush, 47 M.J. 56, 59 (C.A.A.F. 1997). 76 See generally Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997). 16

[T]he power granted Congress To make Rules to regulate the land and naval Forces would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction...necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution. 77 The Government cites United States v. Lee and United States v. Self for the proposition that an investigation can attach court-martial jurisdiction. 78 But this line of argument is irrelevant in the face of an interceding discharge, and ignores the rejection of any continuing jurisdiction argument in Vanderbush and Hart. As stated above, those cases make clear that discharge severs jurisdiction. Of course, in order for a discharge to sever jurisdiction, it must be valid. In United States v. Hart, this Court held that [w]hether someone has been validly discharged is governed by 10 U.S.C. 1168(a). 79 United States v. King, interpreting the requirements of 10 U.S.C. 1168(a), laid out three requirements for a valid discharge; 1) there must be delivery of a valid discharge certificate; 2) a final accounting of pay must be ready for delivery; and 3) the petition must complete the 77 United States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1955). 78 Government Br. at 46 (citing United States v. Lee, 43 M.J. 794 (N-M. Ct. Crim. App. 1995), and United States v. Self, 13 M.J. 132 (C.M.A. 1982)). 79 Hart, 66 M.J. at 275-76. 17

clearing process required under appropriate service regulations to separate him from military service. 80 The Military Judge at trial ruled that the second and third King factors had been met, stating that he was convinced that the accused received a substantial part of his final pay and cleared the other administrative hurdles of separation. 81 NMCCA, after carefully weighing the applicable facts, law, and regulations correctly concluded that all three King factors had been met, and that Mr. Lawanson s discharge was valid. 82 4. Under the first factor in King, there must be a delivery of a valid discharge certificate. The Government delivered a valid discharge certificate to Mr. Lawanson. The first King factor requires the delivery of a valid discharge certificate. 83 A DD 214 is valid when it is issued by a competent discharge authority and complies with the applicable service regulations. 84 In this case, PSD properly exercised their delegated authority to issue Mr. Lawanson a DD 214 with a discharge date of February 1, and followed all applicable service regulations in issuing it. 80 United States v. King, 27 M.J. 327, 329 (C.M.A. 1989); see also Hart, 66 M.J. at 275. 81 Ruling at 8, n.12; see also Lawanson, 2012 CCA LEXIS 345 at *9, (stating the Military Judge concluded that the Government failed to carry its burden on the 2 nd and 3 rd King factors). 82 Lawanson, 2012 CCA LEXIS 345 at *12. 83 United States v. King, 27 M.J. 327, 329 (C.M.A. 1989). 84 United States v. Wilson, 53 M.J. 327, 333 (C.A.A.F. 2000). 18

On 18 November 2011, Mr. Lawanson was issued a DD 214 with a discharge execution date of February 1, 2012. 85 The Navy- Marine Corps Court of Criminal Appeals correctly interpreted their own service s regulations to determine that Mr. Lawanson was issued a valid discharge certificate in compliance with applicable regulations. 86 a. In commands serviced by PSD, the authority to discharge servicemembers resides with PSD. In commands that are serviced by a PSD, the authority to discharge servicemembers resides with PSD. As a commanding officer and a special court-martial convening authority, CAPT D was the separation authority for Mr. Lawanson. 87 However, as his command was serviced by a PSD, the authority for actually issuing the DD 214 was delegated to PSD. 88 Under that authority, the Director, PSD New London, properly delegated by direction authority to PS2 D to sign and deliver Mr. Lawanson s discharge certificate. 89 Indeed, NMCCA correctly held that that PSD was a competent discharge authority and issued the petitioner s DD 214 with the imputed authority of the commanding officer. 90 85 AE III at 24. 86 Lawanson, 2012 CCA LEXIS 345 at *12. 87 See Bureau of Naval Personnel Instruction 1900.8D, 5(b) (11 Jun 2010); Lawanson, 2012 CCA LEXIS 345 at *9. 88 See Bureau of Naval Personnel Instruction 1900.8D, 5(b) (11 Jun 2010); Lawanson, 2012 CCA LEXIS 345 at *9. 89 Id. at 5(a); R. at 118. 90 Lawanson, 2012 CCA LEXIS 345 at *10. 19

b. The command was intimately involved in Mr. Lawanson s out-processing, knew that he was scheduled to be discharged on February 1st, and even utilized the February 1st date in processing Mr. Lawanson for discharge. The command was very much involved in Mr. Lawanson s discharge and had ample notice that Mr. Lawanson was scheduled to be discharged on February 1. The command itself prepared a departure evaluation of Mr. Lawanson, and listed the final date of the evaluation period as February 1. 91 That final evaluation was signed by three members of the command, including Mr. Lawanson s department head LT C, a chief HTC P, and a senior chief ENCS W. 92 The listed reason for the evaluation was detachment of the individual, Submitted on the occasion of EN3 s separation from the United States Navy. 93 The command approved a special request chit for terminal leave that listed Mr. Lawanson s date of separation as February 1, 2012. 94 The command completed a check-out sheet that was signed by numerous members of the command including his department head, LT C, and the CMC. 95 The XO and CO did not initial the checkout sheet because their initials were not required for E-7 and below. 96 91 AE III at 73; Lawanson, 2012 CCA LEXIS 345 at *3. 92 AE III at 73. 93 AE III at 73; Lawanson, 2012 CCA LEXIS 345 at *3. 94 AE IV at 62; Lawanson, 2012 CCA LEXIS 345 at *3. 95 AE III at 27; Lawanson, 2012 CCA LEXIS 345 at *3. 96 AE III at 27; Lawanson, 2012 CCA LEXIS 345 at *3. 20

The command s SJA also received a PSD generated spreadsheet that listed Mr. Lawanson s discharge date as February 1. 97 The SJA consulted with a civilian member of the command staff not PSD - after seeing this date, and was told the date of separation, despite what was in that PSD document, would be February 28. 98 Nevertheless, the command SJA did not follow up with PSD to find out when Mr. Lawanson was separating, and did nothing to place Mr. Lawanson on legal hold preventing that separation. 99 And PSD never consults directly with the command before issuing a discharge. Mr. E, department head of separations at PSD New London testified that they do over 1000 discharges every year and never consult with the command before issuing a discharge. 100 Hence, the command, even after signing a final evaluation with a date of February 1, approving a terminal leave request with a final date of February 1, completing a checkout sheet for Mr. Lawanson, and receiving a spreadsheet that listed Mr. Lawanson s discharge date as February 1, did not act to halt the discharge. c. If a command seeks to halt a discharge, it can simply take action to halt the discharge by placing the servicemember on legal hold. Here, the command 97 R. at 44; Lawanson, 2012 CCA LEXIS 345 at *3. 98 R. at 44. 99 R. at 45. 100 R. at 121-122. 21

took no action to halt Mr. Lawanson s discharge until after it had already occurred. The command took no action to halt the discharge of Mr. Lawanson until after he was already discharged. The court below stated, We find no evidence that the commanding officer suspended, revoked, or otherwise affected PSD s authority to issue the petitioner a self-executing DD 214 with an effective date of 1 February 2012. 101 LT F, the staff judge advocate, confirmed this when he testified that his first attempt to place Mr. Lawanson on legal hold on February 2 was rebuffed by PSD, who noted that Mr. Lawanson had already been discharged. 102 CAPT D, the Commanding Officer, also testified that no legal hold letter was signed until February 2, which was after Mr. Lawanson s discharge. 103 In Vanderbush this Court stated that administrative discharges... are a routine part of military life and may occur both before and after court-martial jurisdiction attaches and that the Government must halt such a discharge before it occurs in order to prevent the discharge. 104 Here no action was taken to halt the administrative discharge and the discharge terminated court-martial jurisdiction. 101 Lawanson, 2012 CCA LEXIS 345 at *10. 102 R. at 40. 103 R. at 24, 27. 104 Vanderbush, 47 M.J. at 59-61 (emphasis added). 22

d. The Commanding Officer did not have the intent to halt the discharge of Mr. Lawanson until after his discharge had already taken place. The Commanding Officer, CAPT D, did not have the intent to place Mr. Lawanson on legal hold until after his discharge. CAPT D testified that he wanted to wait until after a February 1 NCIS interview with Mr. Lawanson, which did not occur until the date of discharge, before deciding whether to bring charges against Mr. Lawanson. 105 In the following exchange, CAPT D made clear when the legal hold determination was made and why: CAPT D: Because I knew the investigation was ongoing and I ll tell you, everything we had up until then was leaving me at just 50-50 on whether he was guilty so I didn t know if anything else -- or not guilty but worthy of preferring charges and if there was anything else out there. So, the investigation was still ongoing. Q: What changed that? CAPT D: Well, on the 2 nd of February, I signed the paperwork for legal hold and that s when -- that was after a subsequent interview was done by the NCIS agent. Q: All right. So you made the determination to formally place him on legal hold on the 2 nd of February based on your review of an investigation? CAPT D: Right, yes. 106 CAPT D did not even have the intent to place Mr. Lawanson on legal hold until the 2 nd of February, the day after Mr. Lawanson s discharge. 105 AE X at 3; see R. at 26. 106 R. at 23-24. 23

e. Mr. Lawanson s discharge was valid under all applicable service regulations. The Government argues that because the DD 214 lists (1) the separation authority as MILPERSMAN 1910-104 (block 25), (2) the re-enlistment code as JBK (block 26), and (3) the narrative reason for separation (block 28) as completion of required service, the separation date of February 1, 2012 is incorrect and the DD 214 is therefore invalid. 107 But none of these entries dictate that the separate date must be a date other than February 1, 2012. And they are consistent with that separation date. As the lower court found, JBK designates involuntary discharge with no board entitlement and is also used in cases where the member is separated due to HYT. 108 And MILPERSMAN 1910-104 is merely the regulation that lists the only possible separation codes. And the reason for separation completion of required active service is consistent with Mr. Lawanson serving until his HYT date per MILPERSMAN 1160-120 (Ch-37, Oct. 29, 2011) as discussed below. Indeed, MILPERSMAN 1910-104 states that A member may be separated upon expiration of enlistment or fulfillment of 107 Government Br. at 10-12, 32-35. 108 Lawanson, 2012 CCA LEXIS 345 at *16 n.3 (citing MILPERSMAN, Art. 1160-120, 9 (CH-37, Oct. 29, 2011)). 24

service obligation. 109 Again, fulfillment of service obligation is consistent with serving until HYT. The next sentence in this article, which allows for [s]eparation up to 30 days prior to the member s expiration of active obligated service, depending on where the member is serving and what state he resides in, does nothing to alter the policy that a member may be separated at fulfillment of service obligation (i.e., HYT date). 110 Nor does it purport to be the exclusive means by which one can separate at a date other than the EAOS date. NMCAA properly concluded that PSD issued the petitioner s DD 214 in compliance with appropriate service regulations. 111 Every indication in the record and in the applicable service regulations suggests that this is true, including MILPERSMAN 1160-120. MILPERSMAN 1160-120 is designed to serve as a shield for servicemembers facing sudden involuntary separation because they have been reduced in rate. It does not forbid a servicemember from being discharged at his HYT date, and therefore cannot be used as a sword by the Government to selectively seek to invalidate this discharge. 109 MILPERSMAN 1910-104, 2 (emphasis added). 110 Id. 111 Lawanson, 2012 CCA LEXIS 345 at *12. 25

The Government argues that MILPERSMAN 1160-120 forbids the discharge of a Sailor, reduced in rate, at his HYT date, and argues that any discharge given on that HYT date is invalid. But this argument runs directly counter to the overall goals and specific language of MILERPSMAN 1160-120 and potentially invalidates an untold number of discharges. The stated goals of the Navy s HYT program are to achieve the proper size and shape of its enlisted force. 112 Under the article generally, all Sailors facing HYT cannot reenlist or otherwise serve past their HYT date. 113 Thus, the article states, as a general rule, servicemembers cannot serve past their HYT date. 114 Servicemembers, such as Mr. Lawanson, facing HYT dates after being reduced in rate, have extra protection under this article because of the unique possibility that they might face separation before their scheduled end of obligated service (EAOS). Paragraph (9)(c)(1)-(2) of this Article states: (1) Personnel reduced in rate are authorized to complete an enlistment properly entered into prior to reduction even if the enlistment expires after HYT gates of the new pay grade. Members in this category must separate at current expiration of [EAOS] if the new HYT gate is met or exceeded, unless they are granted a HYT waiver or are subsequently advanced or reinstated.... 112 MILPERSMAN 1160-120. 113 Id. 114 Id. 26

(2) Members who elect not to remain on active duty until their normal EAOS may request early separation, if desired, from NAVPERSCOM (PERS-8354) via their CO. 115 Subparagraph (1) serves as a shield for servicemembers that are reduced in rank, and unexpectedly facing HYT separation. They may invoke this rule and remain until the last possible moment. It also mandates that no Sailor facing HYT, even those reduced in rate, can serve past their EAOS if it exceeds the established HYT gates unless they are allowed to continue in the service because they have been granted a HYT waiver or are advanced or reinstated in rank. Most importantly, Subparagraph (1) is carefully worded. In the first sentence, the permissive word authorized is utilized. In the second sentence, the mandatory word must is used. If the first sentence permitting Sailors to serve beyond their HYT is to have any meaning whatsoever, the second sentence must mean that Sailors must separate, at the latest, by expiration of their EAOS. Read together, these sentences mean that a Sailor is authorized to serve until his EAOS (i.e., it is permissible for him to separate before his EAOS) and that he may not serve beyond that date not that he must serve until his EAOS. And this sensible interpretation fits within the overall intent of the Navy s HYT policy as defined in this MILPERSMAN article of reducing manning and retaining the right Sailors. 115 MILPERSMAN 1160-120, (9)(c)(1)-(2) (CH-37, Oct. 31, 2011). 27

NMCCA agreed, and properly determined that the first sentence in subparagraph (1) is permissive; a member can, but is not required, to serve beyond the HYT date until the end of his enlistment. 116 Certainly there is nothing in this regulation that forbids a service member from being discharged on his HYT date, and nothing to suggest a discharge granted at a HYT date would be invalid. The Government also argues that Mr. Lawanson never submitted a request to leave early. MILPERSMAN 1160-120 Paragraph (9)(c)(2) states that a service member may request to leave earlier than their HYT date. To do so, they may submit a request to NAVPERSCOM through their CO. Mr. Lawanson did not request to leave early, but there was no need for him to do so. First, as NMCCA found the article does not require such a request to separate at HYT. 117 Second, during a consultation with PSD in July, he was told that he would be discharged at his HYT on 1 February. 118 The command then processed him for separation on that date. Mr. Lawanson had no reason to seek early discharge from the Navy because the command de facto chose his early release date and, in doing so, validated his release. At no point did Mr. Lawanson seek to escape or shirk his responsibilities. The Government selected his discharge date. 116 Lawanson, 2012 CCA LEXIS 345 at *11. 117 Lawanson, 2012 CCA LEXIS 345 at *11. 118 AE X at 1; Lawanson, 2012 CCA LEXIS 345 at *3. 28

As NCMAA correctly noted, it is illogical to conclude that this MILPERSMAN Article invalidates Mr. Lawanson s discharge on the HYT date. 119 The court below correctly noted it makes no sense that [A] Sailor needs no endorsement or approval to serve past HYT until the end of an enlistment; but if opting instead to separate at HYT, a date that Navy policy already mandates separation, that same Sailor must obtain command endorsement and NAVPERS approval. 120 The purpose of HYT is to discharge Sailors as a method of managing end strength of personnel. In short, it is a forced method to reduce manning. Despite this, the Government argues that MILPERSMAN 1160-120 cannot act as the authority to discharge a service member at a HYT date because that article cannot serve as the authority to discharge. This argument is confusing. And it is incorrect as demonstrated by a recent revision to that same article, which now includes several provisions that require separation on or before a servicemember s HYT date. The newer reduction in rate policy states: (1) ACDU and FTS Sailors reduced in rate are authorized to complete the current enlistment only if it expires on or before the HYT gate of the new pay grade. 121 Compare this sentence to the older October 2011 version: 119 Lawanson, 2012 CCA LEXIS 345 at *11. 120 Lawanson, 2012 CCA LEXIS 345 at *11. 121 MILPERSMAN 1160-120 (CH-37, Oct. 31, 2011). 29

(1)Personnel reduced in rate are authorized to complete an enlistment properly entered into prior to reduction even if the enlistment expires after HYT gates of the new pay grade. 122 To summarize: Under the older regulation, a servicemember was permitted to serve beyond his HYT date to his EAOS if he chose to do so. Under the revised regulation a servicemember cannot serve beyond his HYT date. He must separate by his HYT Tenure date. The Government argues that MILPERSMAN 1160-120 could not possibly authorize discharge of Mr. Lawanson on his HYT date because it is merely a reenlistment regulation. 123 But the changes to MILPERSMAN 1160-120 make it clear that regulation can permit a discharge on HYT date because it now in fact mandates it. So either the new language in the MILPERSMAN is without effect and the Navy cannot discharge service members on their HYT under a Navy policy to reduce manning and improve the quality of the fleet, or the Government s argument is wrong. NMCCA s interpretation of the applicable regulations therefore was correct, and it is strongly supported in the record. Indeed, thirty-three pages of emails exist between members of the NAVSUBASE command staff, PSD New London, the Region Legion Service Office handling the prosecution of the case, and senior officials and lawyers at the Navy Personnel 122 MILPERSMAN 1160-120 (CH-38, Jul. 1, 2012). 123 Government Br. at 35. 30

command. Those emails discuss at length how to unwind the discharge of Mr. Lawanson. 124 But absolutely no reference is made to a mistake in the discharge under Navy Regulations, or to a missing command endorsement or missing NAVPERS approval. 125 In fact, just the opposite is true, the testimony at trial of experienced PSD employees confirms that Mr. Lawanson was validly discharged and no mistakes were made. f. The testimony of experienced Personnel Support Detachment employees strongly supports NMCCA s conclusion that Mr. Lawanson s discharge was valid under the applicable service regulations. The lower court s conclusion that the discharge was valid under applicable service regulations is supported by all the testimony of experienced Personnel Support Detachment (PSD) employees at trial. Mr. E, the Department Head for Separations and Reenlistment at PSD New London, testified that he had been at PSD since 1980, and that he felt they did everything right in Mr. Lawanson s discharge. 126 In the following exchange with defense counsel, Mr. E stated that standard operating procedure was followed: Q: Was there anything remarkable about Mr. Lawanson s discharge? A: No. 124 AE III at 36-72. 125 AE III at 36-72. 126 R. at 106, 121-22. 31

Q: Was there anything that went outside the standard operating procedure of PSD? A: No, there would have been notes in our retain, and there were no notes. 127 Trial counsel handed a PSD document containing information about Mr. Lawanson s service and enlistment to Mr. E, who testified that the document was used for... nearly every transaction that we do. 128 After reviewing all the relevant material on that document, in court, Mr. E confirmed that February 1 was the proper separation date in the following exchange with trial counsel: Q: So looking at this document, what is your understanding of what the separation date is? A: That would be the 1st of February because his active duty service date and pay entry base date are both the 2nd of February 04. That would be his high year tenure of eight years. Q: But the -- 1 February 2012 date doesn t appear in that document? A: No, it does not. 129 The trial counsel quickly moved on to a different line of questions after this exchange. The exchange demonstrates that the Department Head for Separations agreed that a February 1 separation date was accurate under applicable service regulations. PSD had not made a mistake. 127 R. at 121-22. 128 R. at 121-122. 129 R. at 111. 32

Defense counsel later asked Mr. E if the DD 214 was valid, and Mr. E responded that it was: Q: Okay and those that DD 214 was valid, correct? A: Yes. Q: There was nothing about it that made it ineffective? A: No. 130 And finally, Mr. E emphasized that he felt PSD had not made a mistake in issuing the DD 214 to Mr. Lawanson: Q: I guess I will just ask the question that we are all thinking is-did PSD make any mistakes with this discharge? A: I would have to ask Petty Officer Lawanson if we made any mistakes. I didn t see anything going through his file. And trust me Lieutenant, I ve been through this file more than a few times and myself and Mr. [S] both. We didn t do anything wrong here. 131 Mr. S, the deputy director of PSD New London, also later testified that PSD had followed standard operating procedure throughout the whole process. 132 g. The Government argues that the court below unilaterally and grossly errs, creating a right for servicemembers to shirk their service contract by discretionarily opting to not fulfill the terms of their service contract. 133 The Government s argument ignores the fact that Mr. Lawanson did not chose or request his separation date. The 130 R. at 123. 131 R. at 130. 132 R. at 155. 133 Government Br. at 36. 33