ACCA has posted a published opinion to its web site distinguishing its recent Estrada opinon and holding that where a CA approves a BCD and before appellate review is complete, the Army subsequently administratively separates the soldier, the administrative discharge will prevail over the adjudged but unexecuted BCD.  United States v. McPherson, No. ARMY 20070115 (A. Ct. Crim. App. Aug. 31, 2009). 

Judge Hoffman wrote for a unanimous panel.

ACCA distinguished its Estrada opinion from earlier in August, where the court held that a pre-action administrative discharge was void:

As this court found in Estrada, the Secretary of the Army amended AR 27-10 to void administrative discharges issued prior to the convening authority’s initial action.  However, as we noted in Estrada, the modification to AR 27-10 left unaddressed the potential for an administrative discharge after initial action when an appellant is sentenced to a punitive discharge.  In the present case, appellant received an administrative discharge both prior to and after initial action.  Consistent with our holding in Estrada, appellant’s first administrative discharge, issued prior to initial action, is void pursuant to AR 27-10, para. 5-16.b.  Consequently, the remaining question in this case is whether another Army regulation acts to void appellant’s purported discharge after initial action but prior to the completion of appellate review. 

Id., slip op. at 6.

ACCA held that “as a component of HQDA, HRC is authorized to direct appellant’s discharge.”  Id.  Specialist McPherson’s honorable discharge issued by Human Resources Command was, therefore, valid.

As an alternate basis for its holding, ACCA also noted that the Army had never purported to actually void Specialist McPherson’s second honorable discharge; it is, therefore, still legally effective.  Id., slip op. at 7.

ACCA held that while the administrative discharge didn’t deprive it of jurisdiction, it remitted the adjudged and approved BCD.  Id., slip op. at 8-9.

4 Responses to “ACCA holds post-CA’s action admin discharge trumps approved but not-yet-executed BCD”

  1. Christopher Mathews says:

    It would appear there is a limit to how many bites at the apple the government can have. Under the circumstances, I can’t find much sympathy for the government’s legal position, nor outrage at the result.

  2. Anonymous says:

    I agreed with ACCA’s decision in Estrada and I agree with it here. Pretty clear that the vague language about HQDA folds in HRC. I mean who else within HQDA would issue a discharge OTHER than HRC?

    Loophole is there, and until the government makes a reg without it, appellants who can take advantage of it should. There is a sort of how incompetent can you be aspect to this when the government gives an honorable discharge not once but apparently twice when it didn’t mean to.

  3. Anonymous says:

    Am I reading the facts correctly, did HRC revoke appellant’s first admin discharge because it was erroneously issued only to issue a second erroneous discharge six days later? We may see a second CM against every individual at HRC who played a role in this debacle.

  4. Southern Defense Counsel says:

    Anon 2210

    Don’t hold your breath for that CM against the HRC folks.