Filed: Aug. 05, 2009
Latest Update: Mar. 02, 2020
Summary: A similar provision appears in the reserve component regulation:, The separation authority delegated to commanders [for administrative, discharges] by this regulation will not include the authority to discharge, a soldier under [a] court-martial sentence that includes a dishonorable or, bad conduct discharge, prior to the completion of appellate review, unless, the discharge is directed by HQDA.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and CONN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JESSICA E. ESTRADA
United States Army, Appellant
ARMY 20070778
United States Third Army
Richard Gordon, Military Judge
Colonel Katherine Spaulding-Perkuchin, Staff Judge Advocate
For Appellant: Colonel Mark A. Tellitocci, JA; Lieutenant Colonel Matthew
W. Miller, JA; Lieutenant Colonel William E. Cassara, JA (on brief in
response to specified issue); Colonel Christopher J. O’Brien, JA;
Lieutenant Colonel Steven C. Henricks, JA; Major Teresa L. Raymond, JA (on
brief).
For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C.
Kiley, JA; Major Christopher B. Burgess, JA; Captain Lynn I. Williams, JA
(on brief in response to specified issue); Colonel Denise R. Lind, JA;
Lieutenant Colonel Mark H. Sydenham, JA; Major Christopher B. Burgess, JA;
Captain Lynn I. Williams, JA (on brief).
5 August 2009
-------------------------------------
OPINION OF THE COURT
-------------------------------------
HOFFMAN, Judge:
A military judge sitting as a special court-martial convicted
appellant, pursuant to her pleas, of making a false official statement
(thirteen specifications) and larceny of government funds, in violation of
Articles 107 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907
and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge, confinement for ninety days, and a reduction to
Private E1. The convening authority reduced the sentence to confinement to
fifty-seven days and approved the remainder of the adjudged sentence. This
case is before the court for review pursuant to Article 66, UCMJ.
Appellant argues her receipt of an administratively-issued honorable
discharge prior to the convening authority’s approval of her adjudged bad-
conduct discharge remits the punitive discharge and renders it a nullity.
After considering the assignment of error and the applicable service
regulations, we specified the following related assignment of error:
WAS ANY PURPORTED DISCHARGE BEFORE INITIAL ACTION VOIDED BY THE
PRIOR PREFERRAL OF CHARGES[?] SEE ARMY REG. 27-10, LEGAL
SERVICES: MILITARY JUSTICE, PARA. 5-16 (16 NOV. 2005)
[HEREINAFTER AR 27-10].
We hold AR 27-10, para. 5-16, automatically voided any purported
discharge because the administrative discharge occurred prior to initial
action.
BACKGROUND
On 12 March 2007, the government preferred charges against appellant
for offenses she committed while an activated Reservist serving at MacDill
Air Force Base, Florida.[1] Between approximately 9 November 2005 and 31
December 2006, appellant filed a series of false Government Travel Vouchers
(DD Forms 1351-2) with supporting fraudulent receipts to claim rental
property expenses she did not incur. Appellant owned and lived in a home
in Dover, Florida during the charged period.
On 9 July 2007, the military judge tried and sentenced appellant. Her
case, which included a sentence to a bad-conduct discharge, then proceeded
to the post-trial processing phase. After serving a relatively short
period of confinement, appellant was released and placed on voluntary
excess leave on 25 August 2007.
On 24 and 25 September 2007, appellant received two different sets of
administrative orders. The first set, issued by officials at Fort Benning,
Georgia, released her from active duty and returned her to the Reserve
Component, effective 24 September 2007. The second set, issued by United
States Army Human Resources Command (HRC), discharged her from the reserve
component in the grade of Private E1 with an honorable characterization of
service, effective 25 September 2007. In conjunction with the first set of
orders, appellant was issued a Dep’t of Def., Form 214, Certificate of
Release or Discharge from Active Duty (Feb. 2000) [hereinafter DD Form
214].
On 2 November 2007, the convening authority took initial action on
appellant’s case, inter alia, approving the adjudged bad-conduct discharge
but not ordering it executed.[2]
Approximately sixteen months after the discharge was issued, on 6
January 2009, HRC voided appellant’s discharge to the reserve component
because it was erroneously issued. On 12 January 2009, Army personnel
officials at Fort Benning, Georgia, voided appellant’s DD Form 214.
According to an affidavit and supporting documents filed with this
court by the defense and attached to the record of trial, “the finance
records indicate [appellant] is not on active duty, is not owed any
additional money, and does [not] owe any debts to the government . . . .
[A]ppellant was honorably discharged from the United States Army after
satisfying her service obligation.” In pleadings, the government concedes
appellant received an otherwise valid honorable discharge.
LAW
Generally, for a Soldier to be effectively discharged or released
from active duty, “there must be: (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.” United States v. Harmon, 63
M.J. 98, 101 (C.A.A.F. 2006) (quoting and citing United States v. King,
27
M.J. 327, 329 (C.M.A. 1989)).
In Smith v. Vanderbush, 47 M.J. 56, 57 (C.A.A.F. 1997), although the
accused had been charged and arraigned, the United States Court of Appeals
for the Armed Forces (CAAF) found jurisdiction over the accused terminated
when he received a discharge certificate (DD Form 214) separating him on
the expiration of his term of service.[3] The court noted the Army could
have “provided regulatory procedures to ensure that no official other than
a convening authority (or other designated official) was empowered to issue
an administrative discharge to an accused after arraignment.”
Id. at 58.
In Steele v. Van Riper, 50 M.J. 89, 92 (C.A.A.F. 1999), the CAAF
considered the effect of an administrative discharge given after trial, but
prior to the convening authority taking initial action on a sentence that
included a punitive discharge. The CAAF held: “The earlier honorable
discharge through administrative channels had the effect of remitting the
[adjudged] bad-conduct discharge . . . [, which] . . . cannot be executed .
. . .”
Id. at 91-92 (citation omitted). Our superior court recognized
that “remission of the punitive discharge does not affect the power of . .
. appellate tribunals to act on the findings and sentence.”
Id. at 92. In
her concurring opinion, former Chief Judge Crawford suggested the President
amend regulations to prevent similar scenarios from occurring in the
future.
Id.
Subsequent to CAAF’s opinions in Vanderbush and Steele, Army Reg. 27-
10, para. 5-16.b was amended on 14 October 2002 to read:
After any charge is preferred, the DD Form 458 [Charge Sheet]
will automatically act to suspend all favorable personnel
actions including discharge, promotion, and
reenlistment. . . . After preferral of a charge, regardless of
any action purporting to discharge or separate a soldier, any
issuance of a discharge certificate is void until the charge is
dismissed or the convening authority takes initial action on the
case in accordance with R.C.M. 1107;
all other favorable personnel actions taken under such
circumstances are voidable.
The regulation concerning administrative discharges of enlisted
Soldiers, Army Reg. 635-200, Active Duty Enlisted Administrative
Separations, para. 1-22.d (6 June 2005) states: “Soldiers under a sentence
to an unsuspended dishonorable or bad conduct discharge will not be
discharged before appellate review is completed, unless so directed by
HQDA.” A similar provision appears in the reserve component regulation:
“The separation authority delegated to commanders [for administrative
discharges] by this regulation will not include the authority to discharge
a soldier under [a] court-martial sentence that includes a dishonorable or
bad conduct discharge, prior to the completion of appellate review, unless
the discharge is directed by HQDA.” Army Reg. 135-178, Enlisted
Administrative Separations, para. 1-10 (10 December 2004).
DISCUSSION
Changes to the applicable service regulation governing military
justice dictate an outcome different than the Steele result. Under the
facts and regulations applicable in this case, although appellant received
an honorable discharge after trial, any purported discharge was void
because the effective date of discharge predated the convening authority’s
initial action.
As a general rule, Soldiers are discharged at the expiration of their
service obligation; however, each service has statutory authority to
determine how its members are “terminated” from military service. See 10
U.S.C. § 802(c) (service member is subject to the UCMJ “until such person’s
active service has been terminated in accordance with law or regulations
promulgated by the Secretary concerned”). In the exercise of that
authority, the services may impose proper legal impediments to discharge,
including those that continue court-martial jurisdiction once it has
attached. See United States v. Melanson, 53 M.J. 1, 4 (C.A.A.F. 2000)
(applicable service regulation controlled date and time of discharge).
While the 2002 revision of AR 27-10 did not completely implement
former Chief Judge Crawford’s recommendations in Steele, it did attempt to
address concerns regarding erroneous or premature administrative discharges
in military justice cases. The amendment rendered void any administrative
discharge of a charged Soldier “until the charge is dismissed or the
convening authority takes initial action on the case.” AR 27-10, para. 5-
16.b (emphasis added). Such erroneous or premature discharges deprive the
Army of court-martial jurisdiction over a charged Soldier and, in post-
trial cases, disturb the province of the court-martial and usurp the power
of the convening authority by preventing execution of an adjudged punitive
discharge. Applying the clear and unambiguous language of AR 27-10, which
we find consistent and in agreement with 10 U.S.C. § 802(c), the
administrative discharge issued to appellant before initial action is void.
See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-42
(1989) (plain language will control unless use of the plain language would
lead to an absurd result).
While not a factor in resolution of this case, our review of the
applicable regulations reveals an anomalous conflict which could cause the
unintended consequences against which Chief Judge Crawford warned in
Steele. Applicable personnel regulations, AR 635-200 and AR 135-178,
preclude administrative discharge of a Soldier sentenced to a punitive
discharge until appellate review is complete. However, the Army’s military
justice regulation, AR 27-10, precludes administrative discharge only until
initial action, thereby permitting discharge before appellate review
begins. Since all Army regulations are issued under authority of the
Secretary of the Army, this creates a regulatory inconsistency wherein the
military justice regulation could arguably validate an administrative
discharge issued after initial action that would otherwise be impermissible
under the personnel regulations.
If Army officials wish to preclude such an unintended consequence,
they should adopt a uniform standard among the applicable regulations
clarifying separation authority over active duty and reserve component
officers and enlisted members once court-martial charges have been
preferred. In the post-trial phase and prior to initial action, the
regulations should uniformly provide that administrative discharges are
void unless approved by a clearly identifiable separation authority.[4]
Regulations should also uniformly state any issuance of an administrative
discharge to a Soldier with an approved punitive discharge is void prior to
completion of appellate review and final action without approval of the
service secretary or his named designee.
CONCLUSION
Regardless of the concerns we raise above, the applicable regulations
are in agreement as applied to the facts of this case. As appellant
received an administratively issued honorable discharge issued before
initial action, the clear and unambiguous language in AR 27-10, para. 5-
16.b is controlling: the administratively issued discharge is void and
does not remit or otherwise affect the approved bad-conduct discharge.
On consideration of the entire record, including the assignment of
error and matters personally asserted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of guilty and
the sentence are affirmed.
Senior Judge HOLDEN and Judge CONN concur.
FOR THE COURT:
MARY B. CHAPMAN
Deputy Clerk of Court
-----------------------
[1] Although not necessary for our resolution of the issue before us, we
note appellant was “flagged” for more than three months before charges were
preferred. The legal effect of a flag is to preclude various favorable
actions, including a discharge, when a person is the subject of an
investigation that may lead to trial by court-martial. See Army Reg. 600-8-
2, Personnel—General: Suspension of Favorable Personnel Actions (Flags),
para. 1-14.g (23 Dec. 2004).
[2] This is consistent with Rule for Courts-Martial [hereinafter R.C.M.]
1113(c)(1). A punitive discharge cannot be executed until appellate review
has been waived or completed. See R.C.M. 1209.
[3] The accused’s command had never “flagged” appellant so as to preclude
the possibility of an erroneous discharge.
[4] The designation of the separation authority as “HQDA,” as appears in
several personnel regulations, is not helpful. That general term is
imprecise and subject to multiple interpretations, especially in cases such
as the one before us when the accused was serviced by both active and
reserve component personnel centers. For example, administrative
separation authority for officers sentenced to dismissal or dishonorable
discharge is reserved to the Commanding General, HRC. See generally Army
Reg. 600-8-24, Personnel-General: Officer Transfers and Discharges, para. 1-
18 (12 April 2006).
