The NMCCA affirmed the findings and sentence of Electrician's Mate Fireman Recruit Kondali A. Kangha, finding no prejudicial error.
Kangha opinion here.
Appellant pled guilty and was convicted of two specifications of attempted wrongful appropriation of a value more than $500, and four specifications of wrongful appropriation of a value more than $500. On appeal, Appellant argues that “the court-martial lacked personal jurisdiction over him because he was discharged from active duty before the court-martial convened, and the convening authority never requested authority from the Secretary of the Navy to refer charges after Appellant had retired.” Finding no prejudicial error, the Court Affirmed.
In or about November 2015, Appellant had long been suspected of “uttering checks from closed accounts.” In March of 2016, he signed a document “acknowledging that he was being placed on legal hold pending the results of an investigation and possible legal proceedings.” The document was subsequently signed by Appellant’s Commanding Officer. Although Appellant’s obligation of duty was set to end and he began the necessary process to retire, Appellant’s exit was canceled as his legal hold had been subsequently discovered.
I. The General Court-Martial
The court explained that “[f]ollowing his December 2016 special court-martial, Appellant continued to work at NMCSD and receive military pay and allowances.” In February 2017, NCIS investigated Appellant based on concerns that he had “borrowed or attempted to borrow large sums of money from several Sailors under false pretenses, that Appellant was using this money to gamble at a local casino, and that he was not paying back those loans.” Such information led to new charges against Appellant and the matter was referred to general court-martial.
There, Appellant filed a Motion to Dismiss for lack of personal jurisdiction asserting he had been discharged from duty. Before a ruling could be issued, Appellant entered into a stipulation agreement with the Government admitting his guilt and that he was “on active duty during all events relating to the offenses.” Following a detailed inquiry by the military judge, the facts clearly indicated that not only had Appellant continued to work and receive pay, but “Appellant agreed he was on active duty on the date of his guilty plea and sentencing hearing; and that he had not been legally discharged or released from active duty since the cancellation of his orders to the TDRL.” Such was sufficient to find that the Court had jurisdiction.
II. The Law
The law provides that “[a] discharge terminates personal jurisdiction after there is "(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a 'clearing' process as required under appropriate service regulations to separate the member from military service.” Here, as the Court explained, the first element is not met since the commanding officer placed Appellant on a legal hold pending his court-martial. Considering Appellant remained on active duty, continued to earn pay while still on a legal hold, the Court held that Appellant was subject to personal jurisdiction.
Finding no substantive error in the decision of the military judge, the Court affirmed the decision. However, the Court did note three minor inaccuracies in the record and ordered they be corrected, and a complete record be provided to Appellant.
Chief Judge Monahan delieverd the opinion which was joined by Senior Judge Stephens and Judge Deerwester.
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