
                UNITED STATES ARMY COURT OF CRIMINAL APPEALS

                                   Before
                         CONN, HOFFMAN, and GIFFORD
                          Appellate Military Judges

                           UNITED STATES, Appellee
                                     v.
                       Specialist MELANIE A. MCPHERSON
                        United States Army, Appellant

                                ARMY 20070115

            United States Army Air Defense Center and Fort Bliss
                        Mark Sposato, Military Judge
               Colonel Randy T. Kirkvold, Staff Judge Advocate

For Appellant:  Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M.
Voorhees, JA; Captain Richard P. Pizur, JA (brief on remand); Colonel
Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA;
Major Teresa L. Raymond, JA (original brief).

For Appellee:  Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C.
Kiley, JA; Major Lisa L. Gumbs, JA; Captain Anthony O. Pottinger, JA (brief
on remand); Colonel John W. Miller II, JA; Major Elizabeth G. Marotta, JA;
Major Tami L. Dillahunt, JA; Major Dana E. Leavitt, JA (original brief).

                               31 August 2009

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                       OPINION OF THE COURT ON REMAND
             --------------------------------------------------

HOFFMAN, Judge:

      A military judge sitting as a special court-martial convicted
appellant, contrary to her pleas, of desertion with intent to avoid
hazardous duty, in violation of Article 85, Uniform Code of Military
Justice, 10 U.S.C. § 885 [hereinafter UCMJ].  Pursuant to her plea,
appellant was also convicted of missing movement by design in violation of
Article 87, UCMJ.  The convening authority approved the adjudged sentence
to a bad-conduct discharge, confinement for three months, to forfeit $867
pay per month for three months, and a reduction to Private E1.  This case
is before the court for review pursuant to Article 66, UCMJ.

      Appellate defense counsel argues appellant’s purported
administratively-issued honorable discharge remits the adjudged and
approved bad-conduct discharge and rank reduction, rendering them a
nullity.  We agree with appellant, in part:  the administrative discharge
issued after initial action remits the approved bad-conduct discharge.  We
will grant appropriate relief in our decretal paragraph.  In doing so, we
consider application of Army regulations concerning administrative
discharge of Soldiers subject to punitive discharge after a court-martial
conviction.

                             PROCEDURAL HISTORY

      On 23 January 2009, the United States Court of Appeals for the Armed
Forces (CAAF) remanded appellant’s case to this court for further
consideration on the following granted issue:

           WHETHER AN HONORABLE DISCHARGE 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).

      In addition, this court specified the following related issue:

           IF APPELLANT HAS PROVEN SHE RECEIVED A FINAL ACCOUNTING OF PAY,
           SEE UNITED STATES V. HART, 66 M.J. 273 (C.A.A.F. 2008), WAS ANY
           PURPORTED DISCHARGE VOIDED BY THE PRIOR PREFERRAL OF CHARGES[?]
            SEE ARMY REG. 27-10, LEGAL SERVICES:  MILITARY JUSTICE, PARA. 5-
           16 (16 NOV. 2005) [HEREINAFTER AR 27-10].

                            BACKGROUND and FACTS

      Appellant enlisted in the Army on 16 August 1999.  From August 1999 to
December 2002, appellant was a reserve component Soldier.  After two and a
half years, appellant was assigned to the Individual Ready Reserve (IRR).



      On 1 April 2006, appellant was recalled from the IRR and assigned to
Fort Bliss, Texas, in preparation for deployment to Iraq.  Concerned her
job assignment in Iraq would entail something other than her military
occupational specialty (MOS), appellant left Fort Bliss and remained absent
without leave from 28 July 2006 until turning herself into authorities on 8
September 2006.
      On 7 November 2006, the government charged appellant with desertion
with intent to avoid hazardous duty, in violation of Article 85, UCMJ, and
missing movement by design, in violation of Article 87, UCMJ.  On 11
December 2006, appellant’s command initiated a “Non-Transferable” flag on
appellant’s personnel records.  See Dep’t of Army, Form 268—Report to
Suspend Favorable Personnel Actions (FLAG) (Jun. 1987) [hereinafter DA Form
268].  The legal effect of a flag is to preclude various favorable actions,
including a discharge, when a person is the subject of an investigation
that may lead to trial by court-martial.  See Army Reg. 600-8-2,
Personnel—General: Suspension of Favorable Personnel Actions (Flags), para.
1-14.g (23 Dec. 2004) [hereinafter AR 600-8-2].

      On 5 February 2007, the military judge tried and sentenced appellant.
Her case, which included a sentence to a bad-conduct discharge, then
proceeded to the post-trial processing phase.


      On 8 February 2007, appellant received permanent change of station
orders transferring her from Fort Bliss, Texas, to Fort Sill, Oklahoma,
with “confinement at Naval Consolidated Brig [] Miramar, CA.”  After
serving a short period of confinement, appellant was released on 15 April
2007 and placed on voluntary excess leave.

      On 21 August 2007, appellant received administrative orders, issued by
the United States Army Human Resources Command (HRC), discharging her from
the reserve component in the grade of Specialist E4 with an honorable
characterization of service, effective 21 April 2007 [hereinafter first
administrative discharge].  In conjunction with those orders, appellant was
issued a Dep’t of Def., Form 256A (Honorable Discharge Certificate) (May
2000) [hereinafter DD Form 256A].


      On 14 September 2007, the convening authority took initial action on
appellant’s case approving, inter alia, the adjudged bad-conduct discharge
but not ordering it executed.[1]  The convening authority also approved and
executed the adjudged reduction in grade to Private E1.


      Approximately eighteen months after the discharge was issued, on 18
February 2009, HRC voided appellant’s first discharge because it was
“erroneously” issued.  In an affidavit admitted as an appellate exhibit, an
employee of HRC acknowledged appellant received the first administrative
discharge because she reached her end of term of service (ETS).   The
employee asserted this discharge was in error because appellant’s ETS was
not changed in the computer system after court-martial charges were
preferred.  In pleadings, the government also asserts the revocation of the
first discharge was partially due to an arrearage of monies owed to the
Army; on 20 February 2009 appellant was informed her tax refund was being
garnished to satisfy the debt owed to the Army.


      On 20 February 2009, appellant received orders reassigning her from
“USAR (AT) to USAR (REINF).”  On 24 February 2009, appellant received
orders evidencing she was again discharged from the United States Army
Reserve at the rank of Specialist E4 with an honorable characterization of
service [hereinafter second administrative discharge].  An accompanying
honorable discharge certificate, DD Form 256A, was entered as an appellate
exhibit.

                                     LAW

      In Smith v. Vanderbush, 47 M.J. 56, 57 (C.A.A.F. 1997), although the
accused had been charged and arraigned, the CAAF found jurisdiction over
the accused terminated when he received a discharge certificate (DD Form
214) separating him on the expiration of his term of service.  The court
noted the Army could have “provided regulatory procedures to ensure that no
official other than a convening authority (or other designated official)
was empowered to issue an administrative discharge to an accused after
arraignment.”  Id. at 58.

      In Steele v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999), the CAAF
considered the effect of an administrative discharge given after trial, but
prior to the convening authority taking initial action on a sentence that
included a punitive discharge.  The CAAF held:  “The earlier honorable
discharge through administrative channels had the effect of remitting the
[adjudged] bad-conduct discharge . . . [, which] . . . cannot be executed .
. . .”  Id. at 91-92 (citation omitted).  Our superior court recognized
that “remission of the punitive discharge does not affect the power of . .
. appellate tribunals to act on the findings and sentence.”  Id. at 92.  In
her concurring opinion, former Chief Judge Crawford suggested the President
amend regulations to prevent similar scenarios from occurring in the
future.  Id.


      Subsequent to CAAF’s opinions in Vanderbush and Steele, AR 27-10,
para. 5-16.b was amended on 14 October 2002 to read:

           After any charge is preferred, the DD Form 458 [Charge Sheet]
           will automatically act to suspend all favorable personnel
           actions including discharge, promotion, and
           reenlistment. . . .  After preferral of a charge, regardless of
           any action purporting to discharge or separate a soldier, any
           issuance of a discharge certificate is void until the charge is
           dismissed or the convening authority takes initial action on the
           case in accordance with R.C.M. 1107;
           all other favorable personnel actions taken under such
           circumstances are voidable.  (emphasis added).

      Recently this court distinguished Steele, holding, “AR 27-10, para. 5-
16, automatically void[s] any purported discharge because the
administrative discharge occurred prior to initial action.”  United States
v. Estrada, __ M.J. __, slip op. at 2 (Army Ct. Crim. App. 5 August 2009).
Our court noted in dicta a potential issue left unresolved by the 2002
amendment to AR 27-10:


           [O]ur review of the applicable regulations reveals an anomalous
           conflict which could cause the unintended consequences against
           which Chief Judge Crawford warned in Steele.  Applicable
           personnel regulations, AR 635-200 and AR 135-178, preclude
           administrative discharge of a Soldier sentenced to a punitive
           discharge until appellate review is complete.  However, the
           Army’s military justice regulation, AR 27-10, precludes
           administrative discharge only until initial action, thereby
           permitting discharge before appellate review begins.  Since all
           Army regulations are issued under authority of the Secretary of
           the Army, this creates a regulatory inconsistency wherein the
           military justice regulation could arguably validate an
           administrative discharge issued after initial action that would
           otherwise be impermissible under the personnel regulations.

Id., slip op. at 5-6.

      The Army’s enlisted administrative discharge regulation, Army Reg.
635-200, Active Duty Enlisted Administrative Separations, para. 1-22.d (6
June 2005) [hereinafter AR 635-200], states:  “Soldiers under a sentence to
an unsuspended dishonorable or bad conduct discharge will not be discharged
before appellate review is completed, unless so directed by HQDA.”  A
similar provision appears in the reserve component regulation:  “The
separation authority delegated to commanders [for administrative
discharges] by this regulation will not include the authority to discharge
a soldier under [a] court-martial sentence that includes a dishonorable or
bad conduct discharge, prior to the completion of appellate review, unless
the discharge is directed by HQDA.”  Army Reg. 135-178, Enlisted
Administrative Separations, para. 1-10 (10 July 2006) [hereinafter AR 135-
178].

                                 DISCUSSION

      As this court found in Estrada, the Secretary of the Army amended AR
27-10 to void administrative discharges issued prior to the convening
authority’s initial action.  However, as we noted in Estrada, the
modification to AR 27-10 left unaddressed the potential for an
administrative discharge after initial action when an appellant is
sentenced to a punitive discharge.  In the present case, appellant received
an administrative discharge both prior to and after initial action.
Consistent with our holding in Estrada, appellant’s first administrative
discharge, issued prior to initial action, is void pursuant to AR 27-10,
para. 5-16.b.  Consequently, the remaining question in this case is whether
another Army regulation acts to void appellant’s purported discharge after
initial action but prior to the completion of appellate review.  In
interpreting service regulations, we apply the general rules of statutory
construction.  See generally United States v. Custis, 65 M.J. 366, 370
(C.A.A.F. 2007).

      In this case, both appellant and appellee point us to the Army’s
enlisted separation regulations, AR 635-200 and AR 135-178.  Appellee
contends these regulations prevent an accused with an adjudged punitive
discharge from being administratively discharged during the course of
appellate review.[2]  The precise language of each of these regulations
indicates an administrative discharge while pending appellate review cannot
be approved unless directed by Headquarters Department of Army (HQDA).
Appellant, however, counters that, as a component of HQDA, HRC is
authorized to direct appellant’s discharge.  Appellant asserts, therefore,
the discharge she received from HRC after initial action is valid.


      Applying the interpretive rules of statutory construction, we agree
with appellant.  In criminal matters, we are constrained from interpreting
a vague and imprecise regulatory provision against appellant and for the
benefit of the government.  See generally Hughey v. United States, 495 U.S.
411, 422 (1990) (“[L]ongstanding principles of lenity . . . demand
resolution of ambiguities in criminal statutes in favor of the defendant. .
. .”).  As we noted in Estrada, the designation of the separation authority
to be “HQDA,” as it appears in several personnel regulations, is broadly
ambiguous.[3]  The regulation fails to either specify or limit what entity
is HQDA for the purpose of directing discharge.[4]  Consequently,
appellant’s second administrative discharge issued by HRC remits
appellant’s approved bad-conduct discharge.


      Even if we held HRC had no authority to administratively discharge a
Soldier pending appellate review, the government provided no evidence that
either an Army regulation or a proper authority voided or revoked
appellant’s second administrative discharge; therefore, the second
discharge is still valid.  Unlike the precise language of AR 27-10 which
acts to “void” any administrative discharge, AR 635-200 and AR 135-178 fail
to state an erroneous discharge is void ab initio; instead, these
regulations state only that such a discharge “will not” occur.[5]  See
generally Massachusetts v. Oakes, 491 U.S. 576, 584 (1989) (“An overbroad
statute is not void ab initio, but rather voidable, subject to
invalidation.”).  Though an act is prohibited or subject to invalidation,
it is not therefore automatically void.  See generally United States v.
Reid, 46 M.J. 236, 238 (C.A.A.F. 1997) (noting that, by its statutory
language, Congress in effect made a fraudulent discharge voidable and not
void); United States v. Valadez, 5 M.J. 470, 472 (C.M.A. 1978) (by
statutory language an enlistment contract is not void, merely voidable).
Army Regulations 635-200 and 135-178, consequently, are ambiguous as to the
effect of an erroneously-issued administrative discharge.  Consequently, by
the terms of these regulations, an erroneously issued discharge after
initial action would only be voidable, not void.[6]


      Regardless of whether the regulations cited by appellee were intended
to prevent erroneous administrative discharges prior to execution of a
punitive discharge, this court will apply stare decisis and long-standing
principles of interpretation regarding service regulations.  Just as
Congress should speak “in language that is clear and definite,” so too
should our service regulations.  We will continue to interpret those
regulations in favor of an accused when there are ambiguities.  Cleveland
v. United States, 531 U.S. 12, 25 (2000).  As former Chief Judge Crawford
noted in Steele and this court noted in Estrada, in the future the Army can
prevent such discharges from occurring by regulatory amendment.  The Army
should, therefore, update all applicable regulations to void administrative
discharges prior to completion of appellate review, unless approved by a
specifically designated authority.


      Even though appellant was administratively discharged from the Army,
this does not eliminate this court’s jurisdiction for appellate review and
our power to act on the findings and sentence.  See Steele, 50 M.J at 91.
Nor does it prevent this court from affirming a sentence including an
otherwise lawfully approved reduction to Private E1.[7]  It does, however,
have the effect of remitting the adjudged bad-conduct discharge.  See
Steele, 50 M.J at 92.


                                 CONCLUSION

      The findings of guilty are affirmed.  As a result of appellant’s
administrative discharge, the bad-conduct discharge cannot be executed.
That portion of the convening authority’s action approving the bad-conduct
discharge is set aside and  the bad-conduct discharge is remitted.  See
Article 66(e), UCMJ.  The remaining sentence is approved.  All rights,
privileges, and property of which appellant has been deprived by virtue of
the bad-conduct discharge are ordered to be restored.  See Articles 58b(c)
and 75(a), UCMJ.


      Senior Judge CONN and Judge GIFFORD concur.


                                  FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court
-----------------------
[1] This is consistent with Rule for Courts-Martial [hereinafter R.C.M.]
1113(c)(1).  A punitive discharge cannot be executed until appellate review
has been waived or completed.  R.C.M. 1209.
[2] This interpretation would seem to be consistent with the dissent in
Vanderbush, 47 M.J. at 63, where Judge Sullivan commented the “plain
meaning of the language of [AR 635-200, para. 1-24.b] establishes a
regulatory bar to Vanderbush’s discharge until his court-martial charges
have been resolved.”

[3] See, e.g. Headquarters, Department of the Army, General Order No. 3,
para. 20 (dated 9 July 2002), stating the Deputy Chief of Staff, G-1, is
part of the HQDA hierarchy and has broad duties including oversight of
human resources support; Headquarters , Department of the Army, General
Order No. 7, para. 6 (dated 30 September 2003) (“HRC will serve as the
Deputy Chief of Staff, G-1’s functional proponent of military personnel
branch. . . .  The HRC commander supports the Deputy Chief of Staff, G-1 in
the management of all military personnel.”).

[4] Cf. Army Reg. 600-8-24, Personnel-General: Officer Transfers and
Discharges, para. 1-18 (12 April 2006) (Administrative separation authority
for officers sentenced to dismissal or dishonorable discharge is reserved
to the Commanding General, HRC); AR 635-200, para. 1-17.b.(1); AR 27-10,
para. 5-2, AR 135-178, para. 1-10.

[5] “‘Void’ is defined as ‘an instrument or transaction [that] is nugatory
and ineffectual so that nothing can cure it,’ Black’s Law Dictionary 1573
(6th ed.   1990); and as that ‘of no legal force or effect and so incapable
of confirmation or ratification.’  Webster’s Third New International
Dictionary 2562 (1971).”  Easley v. Pettibone Mich. Corp., 990 F.2d 905,
909 (6th Cir. Mich. 1993).  “‘Voidable’ is defined as ‘not void in itself,’
Black’s Law Dictionary 1574 (6th ed. 1990), and as ‘capable of being
adjudged void, invalid, and of no force,’ Webster’s Third New International
Dictionary 2562 (1971).”  Easley, 990 F.2d at 909.
[6] We considered appellee’s assertion that the unit’s action of flagging
appellant pursuant to AR 600-8-2 voided any purported discharge throughout
appellate review process.  See generally United States v. Hart, 66 M.J.
273, 278 (C.A.A.F. 2008); United States v. Williams, 53 M.J. 316, 317
(C.A.A.F. 2000); United States v. Howard, 20 M.J. 353, 354-55 (C.M.A.
1985).  We find AR 600-8-2 inapplicable for three reasons.  First,
appellant reached her ETS before the date of her first administrative
discharge; thereby, making the flagging regulation inapplicable. See AR 600-
8-2, para. 1-16.  Second, the flagging regulation, along with appellant’s
DA Form 268, specifically state the flag based on court-martial proceedings
is nontransferable to a Soldier’s next unit.  See AR 600-8-2, para. 1-
12.a.(2).  Appellant was transferred from Fort Bliss to Fort Sill, making
the “flag” without legal effect.  Finally, as we noted in relation to AR
635-200 and 135-178, AR 600-8-2 fails to “void” discharges issued in
contravention of its provisions.
[7] Because appellant’s adjudged reduction to Private E1 was approved and
executed by the convening authority prior to her second administrative
discharge, we affirm the convening authority’s action regarding reduction
in grade.  We note the evidence in the appellate record suggests appellant
was administratively discharged as a Specialist E4.  To the extent
appellant was erroneously discharged at a grade higher than otherwise
permitted, HRC has means by which to make corrections.  See Army Reg. 635-
5, Personnel Separations: Separation Documents, para. 1-11.e (15 Sep.
2000).

