Comments on: New published ACCA decision

By: Cloudesley Shovell

Cloudesley Shovell — Wed, 17 Mar 2010 15:19:52 +0000

Anon 953am–

Seems like the smartest move.

By: Anonymous

Anonymous — Wed, 17 Mar 2010 14:21:05 +0000

A curious aside was CAAF’s writ of prohibition against the NM’s in Steele which prevented the NM from voiding the “erroneous” discharge. Should counsel have filed a similar writ if they are going to raise this assignnment of error?

By: Phil Cave

Phil Cave — Wed, 17 Mar 2010 13:56:05 +0000

Agreed. In fact when I was Deputy at NAD many years ago, our usual practice was an immediate withdrawal from appellate review.
This issue is not uncommon in the other services.

By: Anonymous

Anonymous — Wed, 17 Mar 2010 13:53:18 +0000

most appellate counsel will tell you that ad discharges prior to execution of BCD/DD are common occurrence – just tactically not brought to HRC’s attention through the appellate process.

By: Anon

Anon — Wed, 17 Mar 2010 13:29:17 +0000

HRC (reserves) doesn’t talk to HRC (active) nearly enough, so you get this situation, usually with reserve Soldiers.

By: Cloudesley Shovell

Cloudesley Shovell — Wed, 17 Mar 2010 13:21:32 +0000

I’m just repeating myself, but I will say it again–

The statutes and regulations regarding discharge from the armed forces are properly read to impose a duty on the gov’t to promptly discharge people when their terms of service end. The requirements for final accounting of pay and the “clearing process” is to ensure the gov’t does not tread all over a discharged servicemembers’ rights.

The fact that this important requirements and duties are now stood on their head to become jurisdictional leashes around the necks of former servicemembers is completely absurd.

The gov’t should be held to the highest standards of conduct, and ought to bear the consequences of its own failure to adhere to those standards. Instead, the courts are bending over backwards to relieve the gov’t of the consequences of its own incompetence. The natural result of rewarding incompetent behavior is entirely predictable–more incompetent behavior.

By: Anon

Anon — Wed, 17 Mar 2010 12:45:23 +0000

What is wrong with HRC? This is clearly a case of institutional incompetence. First Estrada, then McPherson, now this! Doesn’t inspire confidence that the system works…

By: Michael Lowrey

Michael Lowrey — Wed, 17 Mar 2010 12:29:36 +0000

Another case of a court martial conviction, with a sentence of a fine and dismissal but an honorable discharge was issued, this time by HRC before CCA review was complete.

Key issue: “In the present case, we address the issue of whether an administrative discharge of an officer after convening authority action on sentence is void or voidable.”

Conclusion: “Headquarters, HRC, St. Louis lacked authority to administratively issue appellant an honorable discharge. Thus, appellant’s administrative discharge was
voidable, and in this case properly voided. Because the discharge was properly voided, it does not remit or otherwise impact appellant’s approved sentence to a
dismissal.”