United States v. Watson , 2011 CAAF LEXIS 150 ( 2011 )

UNITED STATES, Appellee
v.
Sonya M. WATSON, Captain
U.S. Army, Appellant
No. 10-0468
Crim. App. No. 20080175
United States Court of Appeals for the Armed Forces
Argued December 1, 2010
Decided February 28, 2011
EFFRON, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a separate
dissenting opinion, in which BAKER, J., joined.
Counsel
For Appellant: Captain Tiffany K. Dewell (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Jonathan F. Potter, and Captain
Shay Stanford (on brief); Lieutenant Colonel Matthew M. Miller.
For Appellee: Captain Chad M. Fisher (argued); Major
Christopher B. Burgess and Major Sara M. Root (on brief);
Lieutenant Colonel Jan E. Aldykiewicz and Captain Sarah J.
Rykowski.
Military Judge: Theresa A. Gallagher
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Watson, No. 10-0468/AR
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to her pleas, of larceny of
government property and fraud against the United States, in
violation of Articles 121 and 132, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 921, 932 (2006). The military
judge sentenced Appellant to a dismissal, confinement for seven
months, a fine of $135,000, and forfeiture of all pay and
allowances. Pursuant to a pretrial agreement, the convening
authority approved the dismissal, a fine of $100,000, and
forfeiture of all pay and allowances. Subsequently, the Army
placed Appellant in standby reserve status. Shortly thereafter,
the Commander, United States Army Human Resources Command (HRC
Commander), administratively discharged Appellant from the Army.
During review of her court-martial by the Army Court of
Criminal Appeals, Appellant contended that the administrative
discharge remitted that portion of her sentence which included a
punitive separation -– the dismissal. United States v. Watson,
69 M.J. 623, 625 (A. Ct. Crim. App. 2010). While the case was
under review, the Human Resources Command issued an order
revoking Appellant’s administrative discharge. Id. at 625-26.
The Government then asserted before the Court of Criminal
Appeals that Appellant had not received a valid administrative
discharge, enabling the Army to revoke the discharge. Id. at
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United States v. Watson, No. 10-0468/AR
624. The Court of Criminal Appeals agreed, and affirmed the
findings and sentence, including the punitive dismissal. Id. at
630.
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE ARMY COURT ERRED WHEN IT RULED
THAT APPELLANT’S ADMINISTRATIVE DISCHARGE
WAS VOIDABLE AND PROPERLY REVOKED AND DID
NOT REMIT THE ADJUDGED DISMISSAL.
For the reasons set forth below we conclude that Appellant
received a valid discharge, and reverse the decision of the
court below.
I. THE EFFECT OF AN ADMINISTRATIVE SEPARATION
Military service subjects members of the armed forces to
rules, orders, proceedings, and consequences different from the
rights and obligations of their civilian counterparts. See,
e.g., Parker v. Levy, 417 U.S. 733 (1974). In view of these
differences, we review the laws and regulations governing
enlistment and separation with sensitivity to the distinction
between military and civilian status. See Smith v. Vanderbush,
47 M.J. 56, 59 (C.A.A.F. 1997).
A pretrial administrative discharge terminates court-
martial jurisdiction over the accused, returning him to civilian
status by virtue of the discharge. See id. A post-trial
administrative discharge operates to remit the unexecuted
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United States v. Watson, No. 10-0468/AR
punitive discharge portion of an adjudged court-martial
sentence. Steele v. Van Riper, 50 M.J. 89, 91-92 (C.A.A.F.
1999); cf. United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006)
(regarding the authority for appellate review of the findings
and sentence in the aftermath of a post-trial administrative
discharge).
A void administrative discharge, such as one obtained by
fraud, does not preclude either the exercise of court-martial
jurisdiction or the approval of an unexecuted punitive
discharge. See Smith, 47 M.J. at 58. Likewise, an
administrative discharge that is suspended by the express terms
of a regulation does not preclude approval of an unexecuted
punitive discharge. United States v. Estrada, 69 M.J. 45, 48
(C.A.A.F. 2010) (concerning a regulation that treated a
discharge as “void until” a subsequent act occurred).
For purposes of ascertaining the impact of an
administrative discharge on court-martial proceedings, our Court
has identified three generally applicable elements of a valid
discharge: “‘First, there must be a delivery of a valid
discharge certificate . . . . Second, there must be a final
accounting of pay made. . . . Third, appellant must undergo the
‘clearing’ process required under appropriate service
regulations to separate him from military service.’” United
States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United
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United States v. Watson, No. 10-0468/AR
States v. King, 27 M.J. 327, 329 (C.M.A. 1989) (alteration in
original)). In the present appeal, only the first element is at
issue -- whether the Army issued Appellant a valid discharge
certificate.
II. THE ADMINISTRATIVE DISCHARGE ISSUED BY THE U.S.
ARMY HUMAN RESOURCES COMMAND
1. Completion of trial, release from active duty, and the
convening authority’s action
On February 19, 2008, at the completion of the court-
martial at issue, Appellant was serving as a reservist under
active duty orders for a limited period of time. On April 4,
2008, Appellant received new orders releasing her from active
duty and transferring her to a reserve command.
A month later, on May 2, 2008, the convening authority took
action on the results of trial. Consistent with the pretrial
agreement, the convening authority’s action stated that “only so
much of the sentence as provides for forfeiture of all pay and
allowances, payment to the United States of a fine of $100,000,
and a dismissal is approved and, except for the part of the
sentence extending to dismissal, will be executed.” Appellant
paid the fine in full prior to the convening authority’s action.
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United States v. Watson, No. 10-0468/AR
2. Notice of the opportunity to remain in the Reserves
On June 23, 2008, the Army advised Appellant that she had
completed her military service obligation, and offered her the
opportunity to remain in the Individual Ready Reserve (IRR).
In a subsequent order, dated August 6, 2008, the HRC Commander
reminded Appellant of the opportunity to remain in the IRR, and
stated that she would be discharged from the Army if she did not
affirmatively request to stay in the IRR. Later in August,
Appellant was placed in the inactive reserve in a standby
status.
3. Appellant’s discharge
On April 4, 2008, Appellant paid the approved $100,000 fine
in full. Subsequently, on December 5, 2008, the HRC Commander
issued an order discharging Appellant from the United States
Army Reserve with an honorable discharge. The order cited as
authority Dep’t of the Army, Reg. 135-175, Army National Guard
and Army Reserve, Separation of Officers (Feb. 28, 1987)
[hereinafter AR Reg. 135-175] (providing in para. 4-5 for
separation of any reserve officer who has completed the
individual’s military service obligation and has not transferred
to active duty or the retired reserve); see also Dep’t of
Defense Dir. 1235.13, Management of the Individual Ready Reserve
(IRR) and the Inactive National Guard (ING) (July 16, 2005)
(establishing a mandatory discharge policy for individuals in
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United States v. Watson, No. 10-0468/AR
the IRR who completed service obligations and who did not
affirmatively request to remain in the IRR). The Army issued
Appellant an “Honorable Discharge” certificate, dated December
5, 2008, and signed by the HRC Commander.
4. Subsequent developments
During the required review of Appellant’s court-martial by
the Court of Criminal Appeals, the defense filed an assignment
of errors on January 29, 2009, contending that Appellant’s
administrative discharge from the Army operated to remit the
unexecuted dismissal in her court-martial sentence. Six months
later, on June 22, 2009, the Army’s Military Personnel Division
issued orders stating that Appellant’s release from active duty
had been revoked. Two months after that action, on August 12,
2009, the HRC Commander issued orders stating that Appellant’s
administrative discharge had been revoked. In the aftermath of
those actions, the Government filed a brief with the Court of
Criminal Appeals asserting that Appellant’s administrative
discharge was prohibited by regulation and had been voided.
The Court of Criminal Appeals ordered the parties to submit
briefs concerning the effects of the various personnel actions,
and further ordered the Government to obtain an affidavit from
the HRC Commander. In the course of deciding the case, the
court focused primarily on AR Reg. 135-175, which provides the
authority to discharge an individual who has completed his or
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United States v. Watson, No. 10-0468/AR
her military service obligation and has not requested retention
in the IRR. Watson, 69 M.J. at 628. The court identified as a
critical question the exercise of discharge authority by the HRC
Commander in light of para. 1-3.a.1 of the regulation, which
provides --
a. Reserve component officers will be
separated only by --
(1) The Secretary of the Army.
(2) Commanders specified in this regulation
under conditions set forth in this and other
pertinent regulations.
(3) Commanders specified in special
directives of the Secretary of the Army
under the conditions in these directives.
(4) In relation to (2) and (3) above, the
discharge authority delegated to commanders
by this regulation will not include
authority to discharge an officer under a
court-martial sentence to dismissal, prior
to completion of appellate review, unless
the discharge authority intends the
discharge to act as a remission of the
conviction.
The court had difficulty with the wording of the
regulation, particularly the phrase “remission of the
conviction.” 69 M.J. at 629. Under the Manual for Courts-
Martial, the term “remission” refers to the sentence, not the
findings. See Rule for Courts-Martial (R.C.M.) 1108(a). The
1
The correct version of the regulation sets forth this provision
in para. 1-4. See AR Reg. 135-175 para. 1-4, Rapid Action
Revision Apr. 27, 2010.
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United States v. Watson, No. 10-0468/AR
HRC Commander, who had discharge authority over Appellant, held
the power to remit the sentence through issuance of an
administrative discharge, but did not have the authority to act
on the underlying court-martial conviction. See R.C.M. 1108(b);
R.C.M. 1112. Faced with ambiguity caused by the regulation’s
reference to the discharge authority’s intent with respect to a
“conviction,” the court interpreted the regulation as referring
to the “sentence” rather than the conviction. 69 M.J. at 628.
The court also addressed the interpretation of a separate
part of the regulation, para. 1-10.b., concerning revocation of
discharges, which provides that:
b. A discharge order may not be revoked after
its effective date, provided –-
(1) The order was published from a headquarters
authorized to approve the discharge and to issue
a discharge certificate . . .
(2) There is no evidence that the discharge was
obtained under fraudulent circumstances.
(3) The officer concerned received actual or
constructive notice of the discharge.
The court construed the term “headquarters authorized” to mean
“a headquarters acting in a manner not otherwise inconsistent
with regulation governing its action.” 69 M.J. at 629. Next,
the court interpreted the regulation as containing an implied
requirement that “the discharge authority have knowledge of the
court-martial conviction of the officer pending an
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United States v. Watson, No. 10-0468/AR
administrative discharge.” Id. Based upon this implied
requirement, the court concluded: “In the absence of such
knowledge, there is no delegated authority.” Id. The court
added: “With such knowledge, the discharge authority must then
intend the discharge to act as a remission of appellant’s court-
martial conviction.” Id. The court did not reconcile this
interpretation, relying on the term “conviction,” with its
earlier recognition that the authority of an administrative
discharge authority, such as the HRC Commander, could extend
only to remission of the sentence, not the conviction. Id.
After interpreting the regulation, the court stated that
“we do not find affirmative evidence of fraud in appellant’s
discharge . . . .” Id. The court also noted that “it appears
appellant did receive notice of her administrative discharge.”
Id. The court then turned to the question of whether the HRC
Commander was in a “headquarters authorized” to issue a
discharge, and thereby have the power to revoke that discharge
under para. 1-10 of AR Reg. 135-175. Id. In that regard, the
court focused primarily on an affidavit submitted to it by the
now-retired HRC Commander on December 1, 2009, more than one
year after Appellant’s discharge. Id.
The HRC Commander’s affidavit noted that “the system” had
“automatically calculated” Appellant’s military service
obligation, that “it was determined” that Appellant had no
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United States v. Watson, No. 10-0468/AR
remaining service obligation, that “HRC-STL then notified”
Appellant “that she must elect to remain in the IRR,” and that
Appellant submitted “a request for voluntary resignation.” The
affidavit further stated that the Commander had “approved”
Appellant’s “request and subsequent discharge orders effective 5
December 2008.”
In the affidavit, the HRC Commander summarized her duties,
but did not indicate that she bore any responsibility for
ascertaining the existence of any pending military justice
actions. Instead, she suggested the responsibility lay
elsewhere:
At the time I approved her discharge orders, there had
been nothing provided to this Command or filed in her
Official Military Personnel File to indicate that
while on active duty, CPT Watson had been court-
martialed, had been adjudged a dismissal at that
court-martial, that the convening authority in her
case had approved the findings and sentence, to
include her dismissal, and/or that CPT Watson had
appealed her conviction.
The Commander added: “If I had been aware that CPT Watson
was pending dismissal, I would not have approved her discharge
from the U.S. Army reserves.” She concluded the affidavit by
stating: “I was unaware of the appeal and did not intend the
discharge to act in any way as a remission of the conviction
under AR 135-175, paragraph 1-3a(4).”
Relying on the Commander’s post-discharge statement that
she did not intend the administrative discharge to act as a
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United States v. Watson, No. 10-0468/AR
remission of the conviction, the court concluded that the
Commander “lacked delegated authority” to discharge Appellant,
and that the administrative discharge had been properly revoked.
Watson, 69 M.J. at 629. On that basis, the court held that the
administrative discharge, having been revoked, did not remit the
punitive discharge portion of the court-martial sentence. Id.
at 629-30.
III. DISCUSSION
We interpret regulations under a de novo standard of
review. Estrada, 69 M.J. at 47. The task of interpreting AR
Reg. 135-175 is complicated by the regulation’s use of
inaccurate terminology. The limiting language refers to
“remission of the conviction.” An administrative discharge
authority, such as the HRC Commander, may be delegated power to
remit a sentence, but such a commander does not have the power
to “remit” or otherwise disapprove a conviction as an
administrative matter in the absence of separate authority to
act on the record of trial. See R.C.M. 1108(b); R.C.M. 1112.
The Court of Criminal Appeals sought to address this problem by
treating the word “conviction” to mean “sentence.” The court
also attempted to deal with other interpretive problems in the
regulation by suggesting that a variety of requirements and
understandings could be read into the regulation by implication.
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United States v. Watson, No. 10-0468/AR
We, however, decline to infuse into the regulation a degree of
clarity that was not available to the commander exercising
discharge authority at the time of Appellant’s discharge.
Our primary focus involves the wording and structure of the
regulation. AR Reg. 135-175 delegates broad discharge authority
to individuals such as the HRC Commander. Under para. 1-3.a.(4)
of the regulation, the discharge authority has the power to
issue an administrative discharge to an officer whose court-
martial sentence contains an unexecuted dismissal. Para. 1-
3.a.(4) of the regulation further states that “the discharge
authority delegated to commanders by this regulation will not
include authority to discharge an officer under a court-martial
sentence to dismissal, prior to completion of appellate review,
unless the discharge authority intends the discharge to act as a
remission of the conviction.” Para. 1-10.b. lays out the narrow
circumstances under which a discharge can be revoked after
issuance. Absent any fraud and provided the person facing
discharge receives notice, a discharge may only be revoked after
issuance if it was not published by a “headquarters authorized
to approve the discharge and to issue a discharge certificate.”
The regulation does not remove the HRC Commander from
occupying the status of a discharge authority with the power to
approve an administrative discharge of an officer pending review
of a court-martial sentence, including a sentence that extends
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United States v. Watson, No. 10-0468/AR
to an unexecuted dismissal. Instead, the regulation explicitly
provides such authority, and sets forth a requirement governing
the exercise of discretion by the discharge authority -- that
the discharge authority intends the administrative discharge to
remit a portion of the court-martial action. As such, the
regulation recognizes the status of the commander as a discharge
authority, and then provides criteria -- focusing on the
discharge authority’s intent -- governing the exercise of that
authority.
Although para. 1-3.a. provides guidance as to how the
discharge authority should exercise discretion in issuing a
discharge certificate, the manner in which the discharge
authority exercises this discretion does not remove that person
from occupying the status of a discharge authority.
Accordingly, a mistake in the exercise of discretion by a
discharge authority does not fall within circumstances under
which revocation is authorized by para. 1-10.b. Cf. Huang v.
Sec’y of the Army, 23 F. Supp. 2d 1377, 1380 (N.D. Ga. 1998)
(noting that para. 1-10.b. of “AR 135-175 . . . has no provision
even indirectly authorizing revocation of discharge for ‘obvious
error’”).
In the present case, Appellant received notice of her
administrative discharge and no fraud was involved in its
issuance. Pursuant to para. 1-10.b., Appellant’s discharge may
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United States v. Watson, No. 10-0468/AR
only be revoked if it was not published by a “headquarters
authorized to approve the discharge and to issue a discharge
certificate.” Here, the HRC Commander was provided the express
authority, in para. 1-3.a., to serve as a “discharge authority”
in the case of individuals subject to adjudged dismissals. As
such, Appellant’s discharge was published by a “headquarters
authorized” to issue it, and may not be revoked merely on the
basis of a claimed deficiency in the HRC Commander’s exercise of
her discretion. In the present case, there was no authority for
the court below to either order the production of or rely upon
an extra-record, after-the-fact affidavit from the discharge
authority as a basis for treating the discharge as revocable.
Appellant’s December 5, 2008, administrative discharge, which
remains in effect, remitted the unexecuted dismissal. See
Steele, 50 M.J. at 91-92.
As we have noted elsewhere, the military departments have
ample authority to designate who may or may not exercise
discharge authority. See, e.g., Smith, 47 M.J. at 59.
Likewise, we have noted the authority of the military
departments to issue regulations that have the effect of
precluding an administrative discharge from taking effect.
Estrada, 69 M.J. at 48. The decision as to whether an
administrative discharge regulation should include a provision
that both grants and withholds the power of a particular
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United States v. Watson, No. 10-0468/AR
discharge authority over a specified class of cases rests with
the military departments. The present case, which illustrates
the substantial challenge of drafting such a rule, underscores
the importance of identifying with clarity the officials who may
exercise administrative discharge authority, as well as
identifying with clarity the circumstances under which a
discharge takes effect.
IV. DECISION
To the extent that the decision of the United States Army
Court of Criminal Appeals affirmed a sentence that included a
dismissal, the decision is reversed. The findings and the
remaining portion of the sentence are affirmed.
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United States v. Watson, No. 10-0468/AR
STUCKY, Judge, with whom BAKER, J., joins (dissenting):
The majority states that “[a]lthough para. 1-3.a. provides
guidance as to how the discharge authority should exercise
discretion in issuing a discharge certificate, the manner in
which the discharge authority exercises this discretion does not
remove that person from occupying the status of a discharge
authority.” United States v. Watson, __ M.J. __ (14) (C.A.A.F.
2011). Therefore, “a mistake in the exercise of discretion by a
discharge authority does not fall within circumstances under
which revocation is authorized by para. 1-10.b.” Id. This may
be true, but misses the point. This is not a revocation case.
The provisions of Dep’t of the Army Reg. (AR) 135-175, Army
National Guard and Army Reserve, Separation of Officers para.
1-3.a. (Feb. 28, 1987),1 are mandatory, not merely precatory.
The administrative discharge in this case was void ab initio.
The discharge authority, the Commander of Human Resource Command
(HRC), lacked delegated authority to issue the discharge because
she did not intend the discharge to remit Appellant’s conviction
or sentence to a dismissal.
1
After a published Rapid Action Revision dated April 27, 2010,
the numbering of the regulation was affected, changing para. 1-3
to 1-4. I will continue to refer to the regulation as 1-3 in
order to parallel the majority’s discussion.
United States v. Watson, No. 10-0468/AR
I.
Paragraph 1-3.a. does not merely provide guidance to
discharge authorities. It directs that “[r]eserve component
officers will be separated only by . . . (2) [c]ommanders
specified in this regulation under conditions set forth in this
and other pertinent regulations.” AR 135-175 para. 1-3.a.
(emphasis added). A condition precedent to the delegation is
then stated in para. 1-3.a.(4):
In relation to (2) and (3) above, the discharge
authority delegated to commanders by this regulation
will not include authority to discharge an officer
under a court-martial conviction to dismissal, prior
to completion of appellate review, unless the
discharge authority intends the discharge to act as a
remission of the conviction.
Emphasis added.
The regulation’s language is plain. The authority granted
by para. 1-3.a.(2) is subject to conditions within the
regulation, such as the condition stated in para. 1-3.a.(4).
Pursuant to that condition, a discharge authority has authority
to discharge an officer under a court-martial sentence of
dismissal only when the discharge authority intends the
discharge to remit the conviction, or at least the dismissal.
Id.
The majority’s concern about the regulation’s potentially
ambiguous use of “remission of the conviction” instead of
remission of a sentence to dismissal is misplaced, when, as
2
United States v. Watson, No. 10-0468/AR
discussed below, there is no evidence that the discharge
authority intended to remit anything. Indeed, regardless of the
breadth of the original grant of authority, see Watson, __ M.J.
at __ (13), if the discharge authority lacks the requisite
intent, then under the regulation there is no authority to issue
a discharge. An action without authority is void ab initio.
See United States v. Wilson, 53 M.J. 327, 332-33 (C.A.A.F. 2000)
(holding that a discharge from an entity without authority to
issue the discharge was without effect).
II.
The majority avoids this outcome by classifying the HRC
Commander’s error as merely a mistaken exercise of the broad
authority granted to the discharge authority under para. 1-3.a.
The majority supports this conclusion by citing to Huang v.
Sec’y of the Army, 23 F. Supp. 2d 1377, 1380 (N.D. Ga. 1998),
which determined that AR 135-175 “has no provision even
indirectly authorizing revocation of discharge for ‘obvious
error.’”
Reliance on Huang is misplaced. First, the district
court’s opinion specifically noted that the Army had “not
challenged [the discharge authority’s] authority to issue the
discharge certificate itself.” Id. at 1379. Second, the
discharge authority’s error concerned whether Huang had met the
grounds for discharge, not, as here, whether the discharge
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United States v. Watson, No. 10-0468/AR
authority had authority to discharge the officer. Id. For
these reasons, the court in Huang was able to reach the issues
of revocation and whether the discharge authority was a
“headquarters authorized to approve the discharge.”
In this case, the Army did challenge the Commander’s
authority, because it correctly recognized that para. 1-3.a.(4)
compelled a different result in this case, given that the
regulation makes the HRC Commander’s intent to remit a
conviction, or at least the punitive discharge, essential to
having authority to discharge the officer. For the reasons
below, I do not assume that the discharge authority had the
requisite intent. Therefore, unlike the majority, I do not
reach the issue of revocation under para. 1-10.b.
III.
As previously stated, para. 1-3.a.(4) requires a discharge
authority to “intend[] the discharge to act as a remission of
the conviction.” Intend means “[t]o have in mind a fixed
purpose to reach a desired objective; to have as one’s purpose.”
Black’s Law Dictionary 881 (9th ed. 2009). Certainly the mere
act of issuing a discharge does not demonstrate that the HRC
Commander had a fixed purpose of remitting Appellant’s
dismissal. This is particularly so when the documents
accompanying the discharge do not affirmatively demonstrate any
knowledge by the Commander of the court-martial, let alone any
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United States v. Watson, No. 10-0468/AR
affirmative intention to remit Appellant’s conviction or
dismissal.
Moreover, in this case, there is no need to speculate as to
the Commander’s intent, because in an affidavit accepted by the
United States Army Court of Criminal Appeals (CCA), and now part
of the record, she denied having any knowledge of Appellant’s
court-martial conviction or intending to remit it or the
punitive discharge. The majority concludes that reliance on the
discharge authority’s affidavit is inappropriate in this case
because the CCA had “no authority” to order or rely on an
affidavit. Watson, __ M.J. at __ (15). The majority’s
assertion contradicts the longstanding practice of relying on
affidavits as a means to resolve, on appeal, collateral claims
that were not developed in the record of trial. See United
States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995) (“A Court of
Criminal Appeals has discretion . . . to determine how
additional evidence, when required, will be obtained, e.g., by
affidavits, interrogatories, or a factfinding hearing.”); see
also United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411,
413 (1967) (recognizing the need for hearings to settle disputed
issues of facts when “resort to affidavits [is]
unsatisfactory”), quoted in United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993) (alteration in original). Even without the
affidavit, the mere issuance of the discharge certificate,
5
United States v. Watson, No. 10-0468/AR
without more, does not provide sufficient grounds to conclude
that the discharge authority had the requisite intent, and hence
the delegated authority.
Because the Commander did not intend to remit the sentence,
she had no delegated authority to issue the discharge pursuant
to the regulation. See AR 135-175 para. 1-3.a.(4); see also
United States v. Garvin, 26 M.J. 194, 195-96 (C.M.A. 1988)
(holding that “the mistaken delivery of a discharge certificate
. . . was not accomplished with the intent required to effect a
valid discharge”). An action without authority is invalid, and,
for this reason, the discharge was void ab initio. See United
States v. Banner, 22 C.M.R. 510, 516 n.1 (A.B.R. 1956) (holding
a discharge void when “effected on a ground on which the
discharging authority had no authority to discharge” (citing
United States v. Reid, 15 C.M.R. 899 (A.B.R. 1954))).
Although I disagree with the majority as to the result
reached in this case, I share the majority’s belief that the
Army’s discharge regulations could have been drafted more
clearly. The problem in this case would likely not have arisen
had the regulations provided appropriate safeguards to ensure
that the left hand knew what the right was doing, such as
providing a process to validate or implement the exercise of HRC
Commander’s contingent authority. As I said in Estrada, Army
officials may wish to adopt a uniform standard among regulations
6
United States v. Watson, No. 10-0468/AR
that clearly spells out key terms and conditions for issuing
administrative discharges. See United States v. Estrada, 69
M.J. 45, 48 (C.A.A.F. 2010).
IV.
I would affirm the judgment of the United States Army Court
of Criminal Appeals.
7