UNITED STATES, Appellee
v.
Jessica E. ESTRADA, Sergeant
U.S. Army, Appellant
No. 09-0822
Crim. App. No. 20070778
United States Court of Appeals for the Armed Forces
Argued April 20, 2010
Decided June 7, 2010
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Michael E. Korte (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Matthew M. Miller, and Captain
Shay Stanford (on brief); Major Bradley M. Voorhees.
For Appellee: Major Lynn I. Williams (argued); Colonel Norman
F. J. Allen III, Lieutenant Colonel Martha L. Foss, and Major
Christopher B. Burgess (on brief).
Military Judge: Richard Gordon
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Estrada, No. 09-0822/AR
Judge STUCKY delivered the opinion of the Court.
This case requires us once again to consider the
interaction between administrative discharges of military
personnel and punitive discharges adjudged by courts-martial.
This Court and the Courts of Criminal Appeals have seen a number
of these cases, which usually arise in the context of personal
jurisdiction over the appellant. See, e.g., United States v.
Hart, 66 M.J. 273 (C.A.A.F.), cert. denied, 129 S. Ct. 310
(2008); United States v. Harmon, 63 M.J. 98 (C.A.A.F. 2006);
Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997); Webb v. United
States, 67 M.J. 765 (A.F. Ct. Crim. App. 2009); Lawrence v.
Maksym, 58 M.J. 808 (N-M. Ct. Crim. App.), pet. denied, 59 M.J.
123 (C.A.A.F. 2003). Here, the issue is not personal
jurisdiction but the effect, if any, of an administrative
discharge on an unexecuted punitive discharge adjudged by a
court-martial.
In this case, the military judge sentenced Appellant, a
reservist serving on active duty, to a bad-conduct discharge.
After trial, but before the convening authority took initial
action, the United States Army Human Resources Command issued
her administrative discharge orders. She also received a
Department of Defense Form 214 (Certificate of Release or
Discharge from Active Duty). Later, the convening authority
approved the bad-conduct discharge. The United States Army
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Court of Criminal Appeals (CCA) held that the administrative
discharge was void. United States v. Estrada, 68 M.J. 548, 551
(A. Ct. Crim. App. 2009). We granted review to determine
whether the administrative discharge resulted in remission of
the bad-conduct discharge. On these facts, we affirm the
judgment of the CCA.
I.
Appellant’s convictions stem from filing false travel
vouchers and fraudulent receipts for rental property expenses.
A special court-martial consisting of a military judge sitting
alone convicted Appellant, consistent with her pleas, of
thirteen specifications of signing and submitting a false
official record, and larceny. Articles 107 and 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921 (2006).
On July 9, 2007, the military judge sentenced Appellant to a
bad-conduct discharge, confinement for ninety days, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence but limited confinement to fifty-seven
days. The CCA affirmed. Estrada, 68 M.J. at 551.
II.
The CCA summarized the post-trial developments as follows:
On 24 and 25 September 2007, appellant received
two different sets of administrative orders. The
first set, issued by officials at Fort Benning,
Georgia, released her from active duty and returned
her to the Reserve Component, effective 24 September
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2007. The second set, issued by United States Army
Human Resources Command (HRC), discharged her from the
reserve component in the grade of Private E1 with an
honorable characterization of service, effective 25
September 2007. In conjunction with the first set of
orders, appellant was issued a Dep’t. of Def., Form
214, Certificate of Release or Discharge from Active
Duty (Feb. 2000) [hereinafter DD Form 214].
On 2 November 2007, the convening authority took
initial action on appellant’s case, inter alia,
approving the adjudged bad-conduct discharge but not
ordering it executed.
Approximately sixteen months after the discharge
was issued, on 6 January 2009, HRC voided appellant’s
discharge to the reserve component because it was
erroneously issued. On 12 January 2009, Army
personnel officials at Fort Benning, Georgia, voided
appellant’s DD Form 214.
Id. at 549 (brackets in original) (footnote omitted). The CCA
held that an Army regulation, Dep’t of the Army, Reg. (AR) 27-
10, Legal Services, Military Justice para. 5-16 (Nov. 16, 2005),
“automatically voided any purported discharge because the
administrative discharge occurred prior to initial action.” 68
M.J. at 549.
III.
Appellant argues that the honorable discharge she received
prior to the convening authority’s initial action remitted the
adjudged bad-conduct discharge. Appellant also claims the CCA
erred in construing AR 27-10 as automatically voiding the
administrative discharge because other, more recent regulations
establish different procedures.
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In Steele v. Van Riper, 50 M.J. 89, 92 (C.A.A.F. 1999), a
case arising in the Marine Corps, this Court held that an
administrative discharge given after trial, but prior to the
convening authority’s initial action on a sentence, remitted an
adjudged bad-conduct discharge. Judge Crawford concurred in the
result, based on the Government’s concessions, but suggested
that Department of Defense and service regulations should be
amended to prevent similar scenarios from recurring. Id.
(Crawford, J., concurring in the result).
In October 2002, the Army amended AR 27-10 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.
AR 27-10 para. 5-16.b (formerly para. 5-15.b) (emphasis added).
Other Army regulations apply different rules to soldiers who are
administratively discharged at other stages of the court-martial
process.1
1
Army regulations also permit the imposition of an
administrative “flag,” which prohibits certain personnel
actions, including discharges. AR 600-8-2, Personnel-General,
Suspension of Favorable Personnel Actions (Flags) para. 1-14
(Dec. 23, 2004). Other regulations touch upon administrative
discharges for different types of servicemembers: Active duty
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IV.
Construction of regulations is a question of law, which we
review de novo. United States v. McCollum, 58 M.J. 323, 340
(C.A.A.F. 2003); United States v. Phillips, 18 C.M.A. 230, 234,
39 C.M.R. 230, 234 (1969). Similarly, we review a “challenge to
the lawfulness of [a] regulation de novo.” United States v.
Hughey, 46 M.J. 152, 154 (C.A.A.F. 1997).
In interpreting regulations, we apply the general rules of
statutory construction. United States v. Custis, 65 M.J. 366,
370 (C.A.A.F. 2007)); see also 1 Norman Singer, Statutes and
Statutory Construction § 31:6 (6th ed. 2002) (“It is obvious,
that inasmuch as a regulation is a written instrument the
general rules of interpretation apply.”).
enlisted “[s]oldiers under sentence to an unsuspended
dishonorable or bad conduct discharge will not be discharged
before appellate review is completed, unless so directed by
[Headquarters, Department of the Army].” AR 635-200, Personnel
Separations, Active Duty Enlisted Administrative Separations
para. 1-22.d (June 6, 2005) (emphasis added). For enlistees in
the Army National Guard or Reserve, “[t]he separation authority
delegated to commanders 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 [Headquarters, Department of the
Army].” AR 135-178, Army National Guard and Army Reserve,
Enlisted Administrative Separations para. 1-10 (Mar. 13, 2007)
(emphasis added). “An officer who has been convicted and
sentenced to dismissal or dishonorable discharge will not be
discharged prior to completion of appellate review without prior
approval of [Commanding General], [Human Resources Command].”
AR 600-8-24, Personnel-General, Officer Transfers and Discharges
para. 1-18 (Apr. 12, 2006) (emphasis added).
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AR 27-10, para. 5-16 states that a “discharge certificate
is void until the charge is dismissed or the convening authority
takes initial action.” (emphasis added). The key words here are
“void” and “until.” Void means “[o]f no legal effect; null.”
Black’s Law Dictionary 1709 (9th ed. 2009). “Until” is commonly
“used as a function word to indicate movement to and arrival at
a destination” and means “up to the time that” or “till such
time as.” Webster’s Third New International Dictionary 2513
(1986).
The juxtaposition of “void” and “until” in AR 27-10 is
puzzling, since the former connotes a permanent cessation of
legal effect, whereas the latter implies a temporary pause. But
the operative word here is the subordinating conjunction
“until,” which suggests that an administrative discharge issued
after preferral of charges is ineffective but may become legally
effective in the future. The use of the phrase “to suspend”
earlier in the same paragraph supports this reading of the
regulation. AR 27-10, para. 5-16.b (a charge sheet “will
automatically act to suspend all favorable personnel actions”).
Thus, contrary to Appellant’s argument, “void until” does
not mean that an administrative discharge promulgated after
sentencing automatically remits a convening authority’s
subsequent approval of a bad-conduct discharge. If we
interpreted AR 27-10 as Appellant suggests, a single
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administrative error could nullify months of legal proceedings
and strip the convening authority of meaningful power to approve
a sentence. That construction would create the situation that
the revision to AR 27-10 sought to avoid. The record reflects
that the Army amended AR 27-10, para. 5-16 to remedy the
problems of Steele and “ensur[e] no loss of jurisdiction” and
the practical problems associated with it. See also Estrada, 68
M.J. at 550; Steele, 50 M.J. at 92 (Crawford, J., concurring in
the result). We read AR 27-10 in accordance with this evident
intent -- that a convening authority’s subsequent approval of a
punitive discharge supersedes a previous, erroneously issued,
administrative discharge.
This interpretation is not affected by other regulations
prohibiting execution of a discharge until after appellate
review is complete -- whereas AR 27-10 effectively suspends it
until the convening authority takes initial action. See supra
note 1. The CCA correctly noted that this is a “regulatory
inconsistency wherein the military justice regulation [AR 27-10]
could arguably validate an administrative discharge issued after
initial action that would otherwise be impermissible under the
personnel regulations.” 68 M.J. at 551. But this “anomalous
conflict” is “not a factor” that is dispositive here. Id.
Appellant’s putative administrative discharge occurred before
initial action, and thus does not implicate the differing time
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frames for prohibiting the execution of a discharge in AR 600-8-
2, AR 600-8-24, and AR 635-200.
As the CCA noted in considerable detail, AR 27-10 is
anything but a model of clarity. See 68 M.J. at 551. To avoid
continuing confusion concerning this issue, Army officials may
wish to adopt “a uniform standard among the applicable
regulations,” and spell out key terms and conditions for when a
pending administrative discharge comes back into effect. Id.
V.
The judgment of the United States Army Court of Criminal
Appeals is affirmed.
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United States v. Estrada
Combined Opinion