In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge. ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

The commander, HRC-St. Louis exceeded his authority under AR 135-178 to order appellant’s discharge. Therefore, appellant’s 29 December 2009 discharge was, at a minimum, voidable and was properly voided on 12 March 2010. As an active duty soldier under a sentence to an unsuspended bad-conduct discharge, appellant could “not be discharged before appellate review is completed, unless so directed by [Headquarters, Department of the Army].” United States v. Estrada, 69 M.J. 45, 47 n.1 (C.A.A.F. 2010) (citing Army Regulation 635-200, Personnel Separations: Active Duty Enlisted Administrative Separations, para 1-22.d (6 June 2005) (emphasis in original)). At the time of appellant’s voidable discharge, the court’s 5 October 2009 decision was pending review before the C.A.A.F.. Accordingly, appellate review was not completed. UCMJ art. 67. See also UCMJ art. 76.

A military judge sitting as a general court-martial convicted appellant, pursuant to her pleas, of larceny of government property and fraud against the United States (two specifications), in violation of Articles 121 and 132, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 932 [hereinafter UCMJ]. The military judge sentenced appellant to a dismissal, confinement for seven months, a fine of $135,000, and forfeiture of all pay and allowances. Prior to convening authority action, appellant, a reserve officer, was released from active duty (REFRAD). While pending appellate review, appellant received orders placing her in an inactive status. After convening authority action approving her dismissal, she received discharge orders and an honorable discharge certificate. As our court’s recent opinions reflect, when a soldier pending punitive discharge receives an administrative discharge, contrary to regulation, the discharge may be either void or voidable, depending on the explicit terms of the regulation involved. In this case, we find appellant’s administrative discharge was issued contrary to regulation.

In a detailed review of prior case law and applicable regulations ACCA decides that the administrative discharge was void. Based on the language in the case, it appears the Army is having a problem with favorable discharges being issued while an appeal is still pending.

Query, in this case was the client better served by withdrawing her appeal, and challenging the matter later in federal court? In this case it appears that the prosecution was able to take steps to correct the error because the appellant filed a brief raising the issue.