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