Tea Leaves, Terminal Leave, and Discharges Post-trial.

In United States v. McPherson, CCA 20070115, No. 08-0651/AR, the court has granted the following issue.

WHETHER AN HONORABLE DISCHARAGE (SIC)FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT’S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999).

(As noted earlier the lower court opinion does not appear to be available on the court’s website or LEXIS.)

For those of us with in-house appellate experience this issue or something like it is not a rarity for active duty as well as Reserve cases. Several times a year the appellate counsel get a call from a client telling them that the client had just received their Honorable Discharge in the mail.

In United States v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999), the court was presented with this issue.

WHETHER APPELLEES CAN INVALIDATE APPELLANT’S HONORABLE DISCHARGE, ORDER APPELLANT TO INVOLUNTARY LEAVE, AND EXECUTE HIS COURT-MARTIAL SENTENCE TO A BAD-CONDUCT DISCHARGE AND REDUCTION TO PAY GRADE E-1, AFTER APPELLANT WAS GIVEN HIS DD 214 BY APPROPRIATELY AUTHORIZED OFFICIALS, RECEIVED HIS FINAL ACCOUNTING OF PAY FROM THE MARINE CORPS FINANCE CENTER, AND UNDERWENT COMMAND CHECK-OUT PROCEDURES WITH THE SAME CONVENING AUTHORITY WHO THREE MONTHS LATER TOOK HIS ACTION IN THE CASE.

In a short per curiam decision the court found that the administrative actions did not terminate military jurisdiction as to the trial, conviction, sentence, and appellate process. However, the court found that the administrative action did have the effect of remitting the Bad Conduct Discharge imposed at court-martial. C.A.A.F. therefore opined that,

[I]t appears that appellant will obtain the critical elements of the relief he requested. His honorable discharge will be not be disturbed, and the adjudged sentence of a bad-conduct discharge and reduction in rank will not be executed. In light of the Government’s concession that appellant’s sentence will not be executed, as well as his administrative separation from military service, it also appears that he will not be placed on involuntary appellate leave under Article 76a, UCMJ, 10 USC § 876a. However, his case no longer qualified for review in accordance with Article 66(c), UCMJ. The effect is that his conviction and sentence remain in effect, but not the punitive discharge.

Judge Crawford (concurring in the result) recommended someone take action to “prevent possible future administrative errrors.”

If Van Riper were to be applied to McPherson it would seem she no longer has a punitive discharge. Van Riper came up in United States v. Davis, 63 M.J. 171, (C.A.A.F. 2006). Judge Erdmann wrote for a unanimous court. The resolution of the case did not save Davis because of the facts and place in the appeals process affecting Davis. Depending on the remainder of McPherson’s sentence the issue would then be whether she gets an Article 66(c), UCMJ, review because she was sentenced in excess of one year confinement, or review in the Office of the Judge Advocate General in accordance with Article 69, UCMJ. I have assumed, perhaps wrongly, that in both Van Riper and McPherson there is no evidence of fraud of false official statements on the part of the appellant in obtaining the premature discharge. If nothing else there would be an Article 83, UCMJ, issue if there was fraud in obtaining the discharge.

It would appear that the “newly” constituted court is about to revisit Van Riper and perhaps overrule? If someone can supply a copy of the decision below I’d be happy to revisit the issue.

Trial Practice Pointer. The client should be briefed thoroughly on the post-trial process. That’s required by various rules and Palenius. Within that briefing it would wise to address the possibility that the client will accidentally receive an premature discharge, and that the premature discharge may be an Honorable. Clients should be strongly cautioned not to do anything unethical or fraudulent in the process of that happening.