Execution of a Court-Martial Sentence UCMJ, Article 71, UCMJ; RCM 1113
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A sentence must be approved before it is executed (but confinement, forfeitures, and reduction may be carried out before ordered executed).
Confinement, unless deferred is immediate. Forfeitures, both automatic and adjudged, andreduction, unless deferred, take effect fourteen days after sentence is announced or upon action, whichever is earlier.
The CA’s initial action may order executed all punishments except a DD, BCD, dismissal or death.
A Dishonorable Discharge (DD) or Bad-Conduct Discharge (BCD) may be ordered executed only after a final judgment within the meaning of RCM 1209 has been rendered in the case. If on the date of final judgment, a servicemember is not on appellate leave and more than six months have elapsed since approval of the sentence by the CA, before a DD or BCD may be executed, the officer exercising GCM jurisdiction over the servicemember shall consider the advice of that officer’s SJA as to whether retention would be in the best interest of the service. Such advice shall include the findings and sentence as finally approved, the nature and character of duty since approval of the sentence by the CA, and a recommendation whether the discharge should be executed.
- United States v. Estrada , 68 M.J. 548 (A. Ct. Crim. App. 2009), aff’d , 69 M.J. 45(C.A.A.F. 2010). Purported honorable discharge given before bad-conduct discharge could be executed was void. AR 27-10, para. 5-16 automatically voided any purported discharge because the honorable discharge occurred prior to initial action.
- United States v. McPherson , 68 M.J. 526 (A. Ct. Crim. App. 2009), aff’d , 68 M.J.408 (C.A.A.F. 2009) (summary disposition). Purported honorable discharge given before bad-conduct discharge could be executed was not void and remits any approved bad- conduct discharge. The honorable discharge in this case occurred after initial action (after a prior honorable discharge issued before initial action was revoked as void).
- United States v. Watson , 69 M.J. 623 (A. Ct. Crim. App. 2010). Prior to CA Action,the appellant, a reserve officer, was released from active duty (REFRAD). After CA Action that approved her dismissal, she received an honorable discharge. Because the proper authority (Commander, HRC, St. Louis) voided the erroneous honorable discharge, the dismissal was not remitted.
- United States v. Watson , 69 M.J. 415 (C.A.A.F. 2011). On appeal from the above case, the CAAF (in a 3-2 decision) overturned the decision by the ACCA and held that the administrative honorable discharge was validly issued, and therefore remitted the adjudged dismissal.
- United States v. Brasington , No. 20060033, 2010 WL 3582596 (A. Ct. Crim. App.Sept. 13, 2010) (unpublished). Purported honorable discharge given by reserve component of Human Resources Command (Soldier was an active duty Soldier, not reserve) was issued in error and withdrawn by the same command after a request from the Personnel Control Facility. The ACCA held that the reserve component of HRC did not have the authority to discharge the appellant, and his discharged was voidable.
- United States v. Tarniewicz , 70 M.J. 543 (N-M. Ct. Crim. App. 2011). The convening authority action stated, in relevant part, “In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed. Pursuant to Article 71, UCMJ, the punitive discharge will be executed after final judgment.” The CA’s action, to the extent that it ordered the BCD executed, is a legal nullity. See United States v. Bailey , 68 M.J. 409 (C.A.A.F. 2009).
- The court started by stating that the action did not follow the recommended forms for action in Appendix 16, MCM. However, Article 71, UCMJ, which states in relevant part, “if a sentence extends to . . . bad-conduct discharge . . . that part of the sentence extending to . . . bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings.” This means that in a case reviewed by a CCA, the BCD could not be executed until appellate review is final. The court held that the language in the CA’s action could be interpreted two ways: 1) the CA attempted to direct the execution of the BCD; or 2) mere commentary on a possible future event – that being affirmance of the case on appeal. In either case, the court held that the language has no effect. Article 71, UCMJ UCMJ (2015) does not allow it.
Dismissal of a commissioned officer, cadet or midshipman may be approved and ordered executed only by the Secretary concerned or such Under Secretary or Assistant Secretary as the Secretary concerned may designate. Death. A punishment of death may be ordered executed only by the President.