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

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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

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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

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 He had certainly never had the XO call him at home

before.3 “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.

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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.

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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.

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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.

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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.”).

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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: 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

OCT 11: 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.

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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.

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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

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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

As Chief Judge Everett explained in his opinion for the

Court:

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).

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argues that he must nevertheless stand trial in a court-martial

without jurisdiction to try him, risk conviction by a court-

martial 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).

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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).

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“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.

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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).

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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 usurps68 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).

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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.

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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 court-martial 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).

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[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.

18

“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 2nd and 3rd 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).

19

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.

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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.

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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.

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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).

23

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 2nd 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 2nd 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 2nd of February, the day after Mr.

Lawanson’s discharge.

105 AE X at 3; see R. at 26. 106 R. at 23-24.

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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)).

25

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.

26

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.

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(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).

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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.

29

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).

30

(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.

31

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.

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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.

33

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.

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Government did.134 Mr. Lawanson was not seeking to shirk his

service. The Government told him his separation date would be

February 1, and then separated him on that date. The Government

also processed Mr. Lawanson for separation using February 1 as

the discharge date at both at the command and PSD levels. It

was only after Mr. Lawanson’s discharge that the Government

cried foul. While it is understandable that the Government

would be frustrated that their own actions (or inactions) led to

the discharge of a servicemember they wanted to try for offenses

under the UCMJ, that frustration does not serve as legal or

factual basis for retaining on active duty a servicemember they

chose to discharge on a specific date. Nor does the court below

create a new right. Conversely, the opinion of the court below

correctly interprets its own service’s regulations to permit the

Government to choose to separate a Sailor on his HYT date.

h. Even if this Court finds that minor errors occurred in Mr. Lawanson’s discharge, it should not permit the Government to pick and choose which former servicemembers it can recall to active duty by finding minor hyper-technical errors in their outprocessing or discharge paperwork.

Assuming arguendo this Court finds that the court below

erred when it found Mr. Lawanson’s discharge to be in compliance

with applicable service regulations, minor hyper-technical

mistakes in the discharge should not serve to invalidate an

134 AE X at 1.

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otherwise valid discharge. The Government relies on United

States v. Wilson to argue that a mistake invalidates a

discharge. But in Wilson, a member of the National Guard was

discharged from federal service by a state authority without any

authority to do so.135 The servicemember was also entitled to a

board and none was given.136 This is entirely dissimilar from

the situation here where a competent discharge authority, PSD,

had the authority to discharge a Sailor and did so. As the

court below properly noted, Wilson is a far cry from the

situation here.137 And as the court below correctly stated,

unlike in Wilson, PSD “had the authority to issue the DD 214”

and that “separation at HYT was authorized under the

MILSPERSMAN”.138

Moreover, in 2011 in United States v. Green, the United

States Court of Appeals for the Sixth Circuit applied military

law to uphold the discharge of a servicemember who claimed his

final check-out process had not complied with several Army

regulations.139 While the Court found that Army regulations had

been ignored during out-processing, the court stated that those

Army regulations were not “essential parts of the clearing

135 United States v. Wilson, 53 M.J. 327, 333 (C.A.A.F. 2000). 136 Id. 137 Lawanson, 2012 CCA LEXIS 345 at *12, n.7. 138 Id. 139 United States v. Green, 654 F.3d 637, 649 (6th Cir. 2011), cert. denied 2012 U.S. LEXIS 366 (Jan. 9, 2012).

36

process such that strict compliance is necessary to effectuate a

valid discharge.”140 The court found that the even though the

Army failed to follow its own regulations, it had complied with

the three King elements for a valid discharge.141 Here, even if

this Court believes that minor errors were made in discharging

Mr. Lawanson, they were not the essential parts of the discharge

that would render it invalid.

Green underscores the idea that minor defects in the

discharge process, which is complex and involves dozens of

moving parts, cannot invalidate a discharge that changes a

servicemember’s status from military to civilian. A rule to the

contrary would permit the Government, and former servicemembers

for that matter, to challenge otherwise valid discharges on

minor hyper-technical grounds. PSD had the authority to

discharge Mr. Lawanson under Navy regulations, and delivered a

valid discharge certificate to him. Even if this Court finds

that the discharge was not perfect, it was still valid.

5. A substantial part of Mr.Lawanson’s final accounting of pay was ready for delivery on February 1, satisfying the second factor under King.

United States v. King states: “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

140 Id. 141 Id.

37

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.”142 Indeed, in United States v. Hart, a

case decided on the issue of whether or not the second prong

(accounting of pay) of the King test had been satisfied, the

court stated:

Our review of the military judge's factual findings compels the conclusion that neither final pay nor a substantial part of that pay were ready for delivery within the meaning of the plain language of 10 U.S.C. § 1168(a). We therefore reject Hart's contention that the facts here are sufficient to establish these essential criteria for discharge.143

It is therefore clear from the plain language of King, Hart, and

the act of Congress that all that is required to effectuate a

valid discharge is that a substantial part of the final pay be

ready for delivery. NMCCA correctly concluded that “A member

has not been validly discharged until ‘his final pay or a

substantial part of that pay, are ready for delivery to him . .

. .’”144

Here all of the evidence indicates that Mr. Lawanson’s

final pay or a substantial part of that pay was ready for

142 United States v. King, 27 M.J. 327, 329 (C.M.A. 1989) (emphasis added). 143 United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (emphasis added); see also 10 U.S.C. 1168(a) (“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.”). 144 Lawanson, 2012 CCA LEXIS 345 at *12.

38

delivery to him on February 1, 2012. Mr. S and Mr. E of PSD

both testified that a payment of approximately $17000 was ready

for delivery to Mr. Lawanson on February 1, 2012.145 And both

the Military Judge at trial and the court below agreed that a

substantial part of Mr. Lawanson’s final pay was ready for

delivery on February 1.146 Both were correct and the second King

factor for a valid discharge is therefore satisfied in this

case.

6. Mr. Lawanson did not constructively reenlist because he never voluntarily decided to remain on active duty. To determine whether a member constructively reenlisted,

“[t]he threshold question is whether the person is “serving with

an armed force.”147 If a member is serving with an armed force,

a court then must look to the four-part test laid out in Article

2(c) of the UCMJ which provides:

Notwithstanding any other provision of law, a person serving with an armed force who – (1) submitted voluntarily to military authority; (2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances;148 and

145 R. at 149, 129. 146 AE X at 3; Lawanson, 2012 CCA LEXIS 345 at *12. 147 United States v. Fry, 70 M.J. 465, 469 (C.A.A.F. 2012). 148 The Military Judge noted that since Mr. Lawanson received a substantial involuntary separation payment at the time of his discharge, Mr. Lawanson received no payment directly until that amount was paid back to the Government. AE X at 9. Until his

39

(4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.149

The legislative history of Article 2(c) indicates that the

primary purpose of the amendment was to “ensure that court-

martial jurisdiction would not be defeated by assertions that

military status was tainted by recruiter misconduct.”150 The

Senate report observed that this section is “intended only to

reach those persons whose intent is to perform as members of the

active armed services.”151

A voluntary decision is one that is done “by design or

intention” or “unconstrained by interference.”152 A decision is

deemed voluntary or involuntary by looking at the totality of

the circumstances, including the individual’s mental state.153

Here, the court below correctly determined that Mr. Lawanson did

not voluntarily submit himself to military authority.154 On

involuntary separation payment was paid back to the government, he walked home with zero new dollars in his pocket for his work. In light of this, Mr. Lawanson had no financial incentive to report for duty, which casts further doubt on the voluntariness of his return to duty. 149 Article 2(c), UCMJ; see also United States v. Fry, 70 M.J. 465, 469 (C.A.A.F. 2012). 150 United States v. Phillips, 58 M.J. 217, 219 (C.A.A.F. 2003) (citing S. Rep. No. 96-197, at 121-22 (1979)). 151 Id. at 219 (quoting S. Rep. No. 96-197 at 122-23). 152 Fry, 70 M.J. at 469 (quoting Black’s Law Dictionary at 1710-11 (9th ed. 2009)) (internal quotation marks omitted). 153 Id. 154 Lawanson, 2012 CCA LEXIS 345 at *14.

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February 2, Mr. Lawanson did not report to work. But he was

called by the command on his cell phone and told he needed to

report to a meeting on base.155 He was served with charges under

the UCMJ by a command civilian employee 156 In the presence of

the SJA, and Mr. Lawanson’s chief, the CMC twice told Mr.

Lawanson that it was in his best interested to remain at

NAVSUBASE and face the charges.157 The CMC testified that Mr.

Lawanson was quiet, and asked no questions.158

The CMC later called Mr. Lawanson and told him that the

command was looking for a loophole to retain Mr. Lawanson on

active duty.159 Finally, on the 7th the CMC told Mr. Lawanson

that his DD 214 was “garbage, just throw it away”, and ordered

Mr. Lawanson to report back to duty.160

Asked why he answered the phone call on the 2nd of February

and returned to base for a meeting with the SJA, Mr. Lawanson

testified:

Q: Why did you come in when Chief C told you [to] come in on the 2nd? A: Oh, I mean, I report to Chief C. You know, like and he’s my supervisor so, I figured, you know, if I – if I didn’t show up, you know, I’m going to get in trouble or

155 R. at 249; Lawanson, 2012 CCA LEXIS 345 at *14; AE X at 3. 156 R. at 273. 157 R. at 83, 92; Lawanson, 2012 CCA LEXIS 345 at *14. 158 R. at 97. 159 R. at 251. 160 R. at 253.

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something, or you know, something like that. So that’s why I, you know, I came.161

Mr. Lawanson was just coming off eight years of military

service, and his chief called and told him to come back to base,

so he complied. He was not familiar with what constitutes a

valid discharge and what does not, and he was used to following

the orders of his command. Once back on base, he was told that

he was being charged with offenses under the UCMJ, and then in a

meeting in the presence of his chief and the command SJA, he was

told that it was in his best interests to remain in the Navy and

face the charges. Even in the face of this pressure, Mr.

Lawanson never stated that he wanted to stay in the Navy. He

was quiet. His actions after that meeting speak loudly. He

went home, and remained home on Friday, Saturday, Sunday, and

Monday, until illegally ordered again to report back to base.

Furthermore it strains credulity to believe that a junior

enlisted sailor, when told his DD 214 was invalid by a Command

Master Chief would not believe him. It strains credulity to

believe that Mr. Lawanson wouldn’t follow an order to report

back to work. Such acquiescence to authority can hardly be

couched as a voluntary decision to remain on active duty. As

noted in Fry, a voluntary decision is one that is done “by

161 R. at 249.

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design or intention” or “unconstrained by interference.”162 Mr.

Lawanson – who did not protest his discharge or ask to stay in

the Navy when he left on terminal leave, did not protest his

discharge or ask to stay in the Navy when he left work on

February 1 – did not want to stay in the Navy. At the very

least, his actions after repeated pressure, and overt orders

from his command, were not “unconstrained by interference”.

Mr. Lawanson, who thought he was discharged, is not a

lawyer. But when a good junior enlisted Sailor is told to do

something by a Command Master Chief, he does it.

WHEREFORE, Mr. Lawanson respectfully requests that this

Court deny the Government’s writ appeal.

/s/ 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 /s/ PAUL C. LEBLANC

CAPT, JAGC, USN CAAF Bar Number: 28180

Director Appellate Defense Division 1254 Charles Morris Street SE, Suite 100 Washington, D.C. 20374 (202)685-8502

162 Fry, 70 M.J. at 469 (quoting Black’s Law Dictionary at 1710-11 (9th ed. 2009)) (internal quotation marks omitted).

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Certificate of Compliance

1. This brief complies with the type-volume limitation of Rule 24(c)

because this brief contains approximately 10,100 words.

2. This brief complies with the typefact and type style requirements

of Rule 37 because this brief has been prepared using a monospaced

typeface on Microsoft Word with 12 point Courier New font.

Certificate of Filing and Service

I certify that a copy of the foregoing was electronically filed with

the Court and to the Appellate Government Division on October 1,

2012.

/s/ 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