                         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


                                  4
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.


                                  12
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


                                 14
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


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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


                                  3
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


                                  4
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


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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.




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