In United States v. Estrada, No. 09-0822/AR, an Army Reservist was court-martialed and received a sentence that included a BCD. As Judge Stucky explains:

After trial, but before the convening authority took initial action, the United States Army Human Resources Command issued her administrative discharge orders. She also received a Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty). Later, the convening authority approved the bad-conduct discharge.

Two months after the CA approved the BCD, “HRC voided appellant’s discharge to the reserve component because it was erroneously issued.” Six days later, “Army personnel officials at Fort Benning, Georgia, voided appellant’s DD Form 214.”

 The issue in Estrada was whether to give effect to the honorable administrative discharge or the subsequently approved BCD.  CAAF unanimously construed Army Regulation 27-10 para. 5-16.b to void the administrative discharge and give efect to the BCD.

CAAF reasoned:

AR 27-10, para. 5-16 states that a “discharge certificate is void until the charge is dismissed or the convening authority takes initial action.” (emphasis added). The key words here are “void” and “until.” Void means “[o]f no legal effect; null.” Black’s Law Dictionary 1709 (9th ed. 2009). “Until” is commonly “used as a function word to indicate movement to and arrival at a destination” and means “up to the time that” or “till such time as.” Webster’s Third New International Dictionary 2513 (1986).

The juxtaposition of “void” and “until” in AR 27-10 is puzzling, since the former connotes a permanent cessation of legal effect, whereas the latter implies a temporary pause. But the operative word here is the subordinating conjunction “until,” which suggests that an administrative discharge issued after preferral of charges is ineffective but may become legally effective in the future. The use of the phrase “to suspend” earlier in the same paragraph supports this reading of the regulation. AR 27-10, para. 5-16.b (a charge sheet “will automatically act to suspend all favorable personnel actions”).

Thus, contrary to Appellant’s argument, “void until” does not mean that an administrative discharge promulgated after sentencing automatically remits a convening authority’s subsequent approval of a bad-conduct discharge. . . . We read AR 27-10 in accordance with this evident intent — that a convening authority’s subsequent approval of a punitive discharge supersedes a previous, erroneously issued, administrative discharge.

10 Responses to “In a dueling discharges case, the punitive discharge prevails”

  1. Anonymous says:

    Looks like the Army owes a case of beer to Judge Crawford for her helpful hints.

    But with her off the court, who will continue to save us from ourselves? (if so, any other quick regulatory fixes we can make?!?).

  2. Weirick says:

    Let us play what will Cloudesly Shovell think about this opinion.

  3. CPT Korte says:

    Dagger.

  4. Anonymous says:

    Makes sense. Tough to see an argument that works for why the clear intent of the change in the reg was anything other than to forestall these kind of accidental discharges.

  5. Snuffy says:

    Sloppy regulatory drafting and really sloppy coordination between reserves and active duty personnel folks. Is any one else worried that no one knows what anyone else is doing or why? Apparantly the Army is not too concerned- as long as the courts can bail them out.

  6. Ama Goste says:

    Judge Ryan?

  7. Anonymous says:

    Not THAT sloppy. The intent is pretty clear.

  8. DC Steve says:

    Judge Crawford – for suggesting a change in the regulation…

  9. Cloudesley Shovell says:

    Me? Well, CAAF can say what it wants, but I shall continue to maintain that the gov’t should not be able to excuse itself from the consequences of its actions through the expediency of self-serving, tails-gov’t-wins-heads-gov’t-wins regulations.

    Unfortunately, what CAAF says matters; what I say merely entertains or annoys the readers of CAAFlog.

    Perhaps next we’ll see attempts to undo valid discharges in order to try discharged servicemembers for crimes discovered after discharge, or maybe not. Who knows?

  10. Weirick says:

    Sir Shovell,

    That was my prediction. There is something distasteful about a regulation that excuses the G for making mistakes that are clearly within its control. Why not just promulgate a regulation that requires PSD to check to see if the servicemember has a pending CM that has not been acted on by the CA?