Air Force

On appeal, Petitioner challenged, inter alia, whether the court-martial lacked personal jurisdiction over him because he had been discharged from the Air Force. This court concluded, inter alia, Petitioner “was not effectively discharged from the Air Force for purposes of court-martial jurisdiction,” and we affirmed the findings and sentence. The United States Court of Appeals for the Armed Forces (CAAF) denied review of this court’s opinion, and subsequently denied Petitioner’s petition for reconsideration of the denial. On 4 October 2024, Petitioner filed the instant Petition for Relief in the Form of a Writ of Habeas Corpus. Petitioner now asserts the court-martial lacked personal jurisdiction over him on a theory he did not raise in his initial appeal: that 10 U.S.C. § 651 deprived the court-martial of jurisdiction because Petitioner had been serving in his “initial period” of enlistment for over eight years at the time of trial.
​
​On 24 October 2024, the Government filed a Motion for Leave to File a Motion to Dismiss. The Government contends that under Article 57(c)(1)(B)(ii), UCMJ, 10 U.S.C. § 857(c)(1)(B)(ii), and Article 76, UCMJ, 10 U.S.C. § 876, appellate review of Petitioner’s conviction was complete when the CAAF rejected Petitioner’s petition for reconsideration of denial of review. Therefore, the Government argues, in accordance with this court’s prior decisions in United States v. Sutton, 78 M.J. 537, 540 (A.F. Ct. Crim. App. 2018), and United States v. Chapman, 75 M.J. 598, 601 (A.F. Ct. Crim. App. 2016), this court does not have jurisdiction over Petitioner’s habeas corpus petition. 

This case involves a charge of sleeping on post that was referred to a military judge-alone special court-martial. Had the convening authority referred this case to a general court-martial, Appellant would have been entitled to trial before a panel of members, Article 16(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 816(b)(1) (2018), and the maximum punishment would have included a dishonorable discharge, forfeiture of all pay and allowances, and one year of confinement. Manual for Courts-Martial, United States pt. IV, para. 22.d.(1)(c) (2019 ed.) (MCM). Instead, the convening authority referred the charge to a special court-martial before a military judge alone pursuant to Article 16(c)(2)(A), UCMJ, 10 U.S.C. § 816(c)(2)(A) (2018). As a result, Appellant could not elect trial by a panel of members and the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, Article 19(b), UCMJ, 10 U.S.C. § 819(b) (2018), or forfeitures of pay for more than six months. Rule for Courts-Martial (R.C.M.) 201(f)(2)(B)(ii) (2019 ed.).
​
We hold that Appellant had no Fifth Amendment due process right to a court-martial consisting of a panel of members in a forum that statutorily limited the maximum possible sentence to six months of confinement with no punitive discharge authorized. Additionally, we hold that the convening authority's referral of this case to a military judge-alone special court-martial did not violate Fifth Amendment due process. We therefore affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA).

Sec. 2.  With this order, I hereby prescribe regulations for the randomized selection of qualified personnel as members of a court-martial to the maximum extent practicable, pursuant to section 543 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Public Law 117-263 (10 U.S.C. 825(e)(4)).
​. . .
Sec. 3.  Except as provided in sections 4 and 5 of this order, these amendments shall take effect on the date of this order, subject to the following:
. . .
 Sec. 4.  The amendments to Rule for Courts-Martial (R.C.M.) 908(c)(3), R.C.M. 1205(a), and R.C.M. 1209(a)(1) shall take effect on December 22, 2024, subject to the following:
. . .
​Sec. 5.  The amendment to R.C.M. 503(a)(1) shall take effect on December 23, 2024, subject to the following:

. . . This Marine Administrative Message (MARADMIN)  announces critical updates to formal sexual harassment (SH) complaints regarding Investigating Officers (IO), mandatory initiation of administrative separation for all formal substantiated SH complaints, and the implementation of the Behavioral Intervention and Professional Reset Program (BIPR). 

2. Background. Per policy change on Sexual Harassment within the Military, reference (a) now requires independent, trained investigators for all formal SH complaints and mandatory initiation of involuntary separation processing for all formal substantiated SH  complaints. The Department of the Navy’s (DON) goal is to reform how allegations of SH are investigated and how the DON holds offenders accountable, including revising the administrative separation process for substantiated SH complaints committed by Sailors and Marines.  

a.  Pursuant to reference (b), “The term ‘sexual harassment’ means conduct that constitutes the offense of SH as punishable under [Article 134] pursuant to the regulations prescribed by the Secretary of Defense.” To be considered SH under Article 134, a complaint must include an accusation that the accused knowingly made sexual advances, demands, or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature, and that such conduct was unwelcome. 
. . .