ACCA on post-trial honorable discharges

Here is a link to United States v. Brasington., decided 13 September 2010.  It is not unusual for an appellant to be issued a DD214, Honorable Discharge, sometime after a court-martial at which the appellant was adjudged a punitive discharge.

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.