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 

2

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 
United States v. Watson, No. 10-0468/AR 

3

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 courtmartial 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 
United States v. Watson, No. 10-0468/AR 

4

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 
United States v. Watson, No. 10-0468/AR 

5

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 courtmartial 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. 
United States v. Watson, No. 10-0468/AR 

6

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 
United States v. Watson, No. 10-0468/AR 

7

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 
United States v. Watson, No. 10-0468/AR 

8

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 CourtsMartial, 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. 
United States v. Watson, No. 10-0468/AR 

9

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 
United States v. Watson, No. 10-0468/AR 

10

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 courtmartial 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 
United States v. Watson, No. 10-0468/AR 

11

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 courtmartialed, 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 
United States v. Watson, No. 10-0468/AR 

12

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. 
United States v. Watson, No. 10-0468/AR 

13

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 courtmartial 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 
United States v. Watson, No. 10-0468/AR 

14

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 
United States v. Watson, No. 10-0468/AR 

15

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 
United States v. Watson, No. 10-0468/AR 

16

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. 
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 

2

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 
United States v. Watson, No. 10-0468/AR 

3

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 
United States v. Watson, No. 10-0468/AR 

4

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 
United States v. Watson, No. 10-0468/AR 

5

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, 
United States v. Watson, No. 10-0468/AR 

6

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 
United States v. Watson, No. 10-0468/AR 

7

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.