Air University

Joseph J. Redden, Lt Gen, Commander

Air Command and Staff College

John W. Rosa, Col, Commandant

James M. Norris, Col, Dean

Stuart Kenney, Maj, Series Editor

John Reese, Maj, Essay Advisor

Air University Press

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Please send inquiries or comments to:

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The Wright Flyer Papers

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AIR COMMAND AND STAFF COLLEGE

AIR UNIVERSITY

Punitive Discharge with

Retirement Pay

Windfall for the Accused or

Justice for All?

CHRISTOPHER C. LOZO

Major, USAF

Air Command and Staff College

Wright Flyer Paper No. 3

MAXWELL AIR FORCE BASE, ALABAMA

October 1998
Disclaimer

Opinions, conclusions, and recommendations expressed or implied within are s

those of the author and do not necessarily represent the views of Air University

United States Air Force, the Department of Defense, or any other US govern

agency. Cleared for public release: distribution unlimited.

ii
Foreword

It is my great pleasure to present another of the Wr

Flyer Papers series. In this series, Air Command and S

College (ACSC) recognizes and publishes the “best of 

best” student research projects from the prior academ

year. The ACSC research program encourages our s

dents to move beyond the school’s core curriculum in th

own professional development and in “advancing ae

space power.” The series title reflects our desire to p

petuate the pioneering spirit embodied in earlier gene

tions of airmen. Projects selected for publication comb

solid research, innovative thought, and lucid presentat

in exploring war at the operational level. With this bro

perspective, the Wright Flyer Papers engage an ecle

range of doctrinal, technological, organizational, and 

erational questions. Some of these studies provide n

solutions to familiar problems. Others encourage us 

leave the familiar behind in pursuing new possibilities. 

making these research studies available in the Wright F

Papers, ACSC hopes to encourage critical examination of 

findings and to stimulate further research in these areas.

John W. Rosa, Col, US

Commandant

iii

Preface

In 1994 I was a defense counsel in the case of Un

States v. Sumrall. Sumrall was a prior-enlisted capt

with 21 years of service in the United States Air Fo

(USAF). The offenses that he pleaded guilty to were s

ous, and he was sentenced to confinement and a punit

discharge. Due to the nature of the offenses he committ

many would say neither punishment was inappropria

However, as a result of the punitive discharge, he forfei

his retirement pay—at that time, almost $750,000. T

judge did not sentence him to forfeit his retirement p

and neither did the convening authority. Rather, the for

ture was termed a “collateral consequence” of the punit

discharge and outside the control of the military just

system. Captain Sumrall had an unemployed wife and 

children, ranging in age from near college to a toddler

was not easy explaining collateral consequences to t

family.

Captain Sumrall appealed the loss of his retirement p

Judge Sullivan, acting chief judge at the time, wrote 

opinion for the court. He said the statutes that cau

Captain Sumrall to lose his retirement pay were outs

the control of the military justice system, and that 

punishment was legal in the eyes of the law. However, 

also published an appendix to the opinion that called 

the adoption of a new punishment that would permit 

punitive discharge of a retirement-eligible member with

incurring the loss of retirement pay.

Each year the USAF prosecutes approximately 35 ret

ment-eligible members; 15 of them eventually receiv

punitive discharge at trial. While the overall numbers 

not significant, the people behind those numbers are. D

ing my tenure as a trial and defense counsel, I have pro

cuted or defended four of those individuals. The milit

justice system owes it to its members to ensure that j

tice is done in all cases. Each military member facin

court-martial deserves to be punished for the offen

committed. Sometimes, a punitive discharge with loss 

retirement pay is the entirely appropriate result at tr

Sometimes it is not. This paper is the result of my be

v
that the determination of whether members ought to for

their retirement pay should be left to the wise discretion 

the sentencing authority and the convening authority, 

to vague notions of collateral consequences.

I acknowledge the assistance of my research advis

Maj John Reese, a Civil War historian by trade. I appre

ate the support of Capt Kirk Obear, one of my form

colleagues at Scott Air Force Base, Illinois. Also at Sco

thank Majors Glenn Farrar and Jose Mata and Lt Com

Chris Pendleton who endured numerous discussions 

military justice. Finally, I gratefully acknowledge my w

Nancy, who has endured interminable discussions.

vi
Abstract

When retirement-eligible military members are cou

martialed for any offense and are punitively discharged, 

operation of law they forfeit retirement pay—an amou

sometimes more than one million dollars. This forfeitur

a collateral consequence of receiving a punitive d

charge—it is not a specific punishment imposed by 

court-martial sentencing authority or by the conven

authority who approved the court-martial’s action. In so

cases the loss of retirement pay is appropriate and reas

able; in other cases it is harsh and inappropriately seve

My thesis is that the court-martial members and the c

vening authority, not the operation of law, should depr

a member of retirement pay. This paper explores the im

cations of a new punishment, Punitive Discharge with 

tirement Pay (PD&R).

The PD&R would be a new punishment authorized 

the trial of a retirement-eligible military member. T

court members would be instructed that if they senten

the accused to a PD&R, the accused would be punitiv

discharged from service with the loss of all military be

fits except retirement pay. The members would also 

instructed that they are free to adjudge a traditional pu

tive discharge that carries with it the loss of retirem

pay. Thus, the sentence adjudged would directly take i

account whether the accused should be required to for

retirement pay as an aspect of the punishment, rat

than leaving the determination to the collateral operat

of law.

It is my contention that the adoption of the PD&R a

punishment option would be consistent with the main

nance and preservation of good order and discipline in 

armed forces, as well as serve the ends of justice. I anal

both the current military justice system and the curr

retirement system and what impact the PD&R would h

on both systems if adopted. I use the notion of main

nance and preservation of good order and discipline in 

armed forces as the litmus test of acceptability of 

PD&R. In other words, if the PD&R had either a positive 

neutral effect on good order and discipline and a posit

vii
or neutral effect on military retirement, it should 

adopted.

I conclude that the PD&R would have a beneficial eff

on the maintenance and preservation of good order a

discipline and a neutral effect on military retirement. 

cause the PD&R would enhance good order and discipli

I also conclude that it should be adopted. I note that 

military retirement system is a statutory system a

would require congressional legislation to enact the PD&

and the changes to the Manual for Courts-Martial Uni

States would require an executive order to implement.

The proper administration of military justice require

delicate balance between the needs of good order and d

cipline and the needs and rights of the accused. The PD

discharge would enable the system to make finer disti

tions in the sentencing process, thus enhancing just

and fairness in the armed forces.

viii
Punitive Discharge with

Retirement Pay

Windfall for the Accused or

Justice for All?

Ius est ars boni et aequi (Justice is the art of the good and the

fair).

—Legal Maxim

When retirement-eligible military members are cou

martialed for any offense and are punitively discharged, 

operation of law they forfeit retirement pay—an amou

sometimes more than one million dollars. This forfeitur

a collateral consequence of receiving a punitive discharge

is not a specific punishment imposed by the court-mar

sentencing authority or by the convening authority who 

proved the court-martial’s action. In some cases the loss 

retirement pay is appropriate and reasonable; in other case

is harsh and inappropriately severe. My thesis is that 

court-martial members and the convening authority, 

the operation of law, should deprive a member of ret

ment pay. This paper explores the implications of one su

proposal to grant the court-martial and the conven

authority the power to determine whether a particular me

ber ought to forfeit retirement pay.

In United States v. Sumrall,

1 the Court of Appeals for 

Armed Forces (CAAF) considered the appeal of a ret

ment-eligible United States Air Force (USAF) captain w

was dismissed and forfeited retirement pay. The court c

sidered whether the automatic forfeiture was cruel a

unusual, whether it constituted an excessive fine, a

whether it violated the due process clause of the US C

stitution.2

 Judge Sullivan, writing for the court, den

relief stating that forfeiture of retirement pay, albeit a 

vere punishment, was not an unconstitutional puni

ment.3

 However, in an appendix to the opinion, Ju

Sullivan published a dissenting opinion he had written 

another case. “I respectfully dissent from the law I m

apply in this case, and I hope my dissent will call attent

1
to what I perceive as a flaw in our system of justice a

suggest a remedy to this flaw.” 4

The other case concerned an Operation Desert Sto

veteran with 15 years’ experience who was being separa

under the Voluntary Separation Incentive, Special Sepa

tion Bonus (VSI/SSB) programs5

 and was to receive se

ration pay of $200,000+. However, prior to his separati

he used marijuana at a party and later tested positive i

random urinalysis. He was court-martialed and senten

to confinement for two months, forfeiture of $700 pay 

month for two months, reduction to E-3, and a bad c

duct discharge. This discharge carried with it the autom

ic loss of $200,000 in separation pay. 6

Judge Sullivan wrote, “I doubt there is any jurisdict

in America outside of the military where a first-time 

fender, who takes several puffs of a marijuana cigarette

punished by 60 days in jail and a fine of over $200,000

The judge noted that there are only five general puni

ments available in a military court-martial: death (in r

cases), confinement, loss of rank, monetary loss (fine 

forfeiture of pay), and punitive discharge from the serv

Judge Sullivan suggested that a new option be added 

the list of possible punishments that a court-martial m

consider—a discharge with no loss of retirement benefi

In this paper, I refer to the new punishment as a Punit

Discharge with Retirement Pay (PD&R).

Judge Sullivan’s proposal requires two changes to 

present system. The first would modify the Uniform Co

of Military Justice (UCMJ) to provide for a new puni

ment—Punitive Discharge with Retirement Pay.9

 A seco

change would have to be made to the military retirem

system, creating a separate class of retirees, payment-on

This type of retirement would permit an individual with 

punitive discharge to receive retirement pay, but would p

vent that person from ever being recalled to active duty 

receiving the military benefits associated with retirement.

I analyze those two changes to the system and consi

the implications they have for the administration of just

in the military. I discuss the present military justice s

tem and explain the various checks and balances alrea

in place. Then I examine the current nature of retirem
in the military. It is important to have a solid und

standing of the purpose and effect of military retirem

before considering a proposal that could fundament

alter the nature of military retirement. I also examine 

effects on the military justice and retirement systems if 

PD&R were implemented and make a recommendat

concerning this very important proposal.

Is There a Problem?

The current military justice system is a complicated a

interrelated system of administrative, nonjudicial, and 

dicial dispositions of misconduct by military members. 

explore the present military justice system using the hy

thetical case of Lieutenant Colonel Hardwick. 12 In 19

Colonel Hardwick had served 22 honorable years in 

USAF. During his career, he had served in Operation 

gent Fury in Panama and in Operation Desert Storm in 

Persian Gulf, where he received the Distinguished Fly

Cross. He has a family (a wife and two children—the ol

child is a sophomore in college and the younger is a sen

in high school actively looking at colleges).

Two years earlier, he was looking forward to retirem

and wanted to settle the family close to home. He accep

employment at Baxter Air Force Base as the chief of safe

One year later, things had begun to sour in the marria

and there was a separation but no divorce. A short ti

later, a new airman was assigned to the safety office. A

Mona Clapton was a recent graduate from technical sch

at the top of her class. She was very bright and ha

working. These qualities quickly impressed Colonel Ha

wick. As her supervisor, he spent much time teaching 

airman about the safety office, and she quickly became 

indispensable member. Colonel Hardwick began to rely 

her more and more, and over time developed a roman

interest. Airman Clapton was flattered and returned Ha

wick’s affections. Their romance soon blossomed into 

sexual relationship that lasted about three months a

broke off when Airman Clapton found a boyfriend w

worked in the supply squadron.
Some time later, Colonel Hardwick decided to sub

his retirement papers. This application was approv

However, about 30 days before going on terminal lea

agents from the Office of Special Investigations (OSI) 

proached Hardwick. They advised that they suspected h

of engaging in an adulterous relationship with Airm

Clapton and also of fraternization. The agents told Colo

Hardwick that Clapton had bragged to her boyfriend t

she had dated her boss, and that the boyfriend had 

ported the suspected affair. The agents also told Colo

Hardwick they had confronted Airman Clapton, and 

had admitted to all the necessary details. Colonel Ha

wick was in a state of shock. He thought if he cooperat

things would go easier on him. After being read his righ

he answered agents’ questions and proceeded to typ

10-page, single-spaced memorandum explaining eve

thing. He included in his statement the fact that he a

his wife were separated, and that he was scheduled 

retire in another month.

The OSI gave a copy of his confession, Airman Clapto

statement, and the friend’s statement to Colonel Ha

wick’s commander, Colonel Gibson, the wing’s operatio

group commander, and a copy to the base legal off

Both Colonel Gibson and the legal office felt the char

were serious, and the allegations went right to the hear

military discipline. The commander recommended a t

by court-martial. After the charges were referred to tr

Colonel Hardwick pleaded guilty and threw himself on 

mercy of the court. After hearing all the evidence, 

military judge sentenced Colonel Hardwick to be dismis

from the service and to receive a reprimand.

Colonel Hardwick learned that dismissal from the se

ice meant that he was going to forfeit all his retirem

pay—nearly $2,500 per month after taxes. He was cou

ing on this amount of money to put the children throu

college and to pay his wife alimony and child support 

their son when they eventually got divorced. Over 

course of his expected life span, Colonel Hardwick 

pected to earn more than $1 million in retirement p

Colonel Hardwick violated military standards and pai

very severe penalty.
Analysis of Current

Military Justice System

Fiat justitia ruat coelum (Let justice be done though the heav -

ens may fall).

—Lucius Calpurnius Piso Caesonnius (43 B.C

In this section, I describe and analyze the current m

tary justice system. Generally speaking, the military j

tice system is divided into three categories: administrat

nonjudicial, and judicial.13 Ordinarily, administrat

sanctions carry the smallest adverse consequences, a

judicial actions are the most serious. However, there 

tremendous flexibility within and between the categor

and frequently administrative sanctions are more serio

than nonjudicial or even judicial sanctions. 14

Air Force policy is to resolve matters of misconduct 

the lowest level possible consistent with the maintena

of good order and discipline.15 In some cases, maintain

good order and discipline may require high-level reso

tion; that is, the matter be directly disposed of by a gene

court-martial.16 Additionally, it is important to understa

that the military justice system is a commander’s progr

to maintain good order and discipline. The military just

system is unique in that military commanders, and 

attorneys, decide which cases go to trial and which ca

are disposed of through administrative or nonjudic

means.17 The commander’s authority is based on a com

nation of that commander’s rank and position and 

sometimes limited by the rank of the accused. 18 To ill

trate these points, I return to the case of Colonel Hardw

and investigate the options available to the actors in t

scenario as it unfolds.

After reviewing the OSI report and the statements 

Colonel Hardwick and Airman Clapton, the operatio

group commander, Colonel Gibson, has to decide w

action to take. In making his decision, he should cons

with the base legal office for guidance. 19 Additionally, Co

nel Hardwick’s defense counsel will probably contact 

commander and advocate for reduced punishment. Co

nel Gibson should first consider whether administrat

action is appropriate. Most forms of administrative act
(counseling, reprimands, administrative control) wo

have no effect whatsoever on Hardwick’s rank or ret

ment pay, although they may affect his promotion a

career opportunities.20 Because Colonel Hardwick is 

ready retirement eligible, he cannot be administrativ

discharged, the most serious action available in the 

ministrative category.21

If, after reviewing the evidence against Hardwick, 

commander believes administrative sanctions are inapp

priate, he should next consider nonjudicial punishment 

Article 15. While the UCMJ permits a colonel to imp

nonjudicial punishment on a subordinate lieutenant co

nel, virtually all service regulations administratively wi

hold the authority of commanders under the grade of O

to impose Article 15 punishment on officers of any ra

Therefore, if Colonel Gibson believes that an Article 15 

the most appropriate disposition, he will have to reco

mend it to the first general officer in the chain of co

mand. If Hardwick were to receive an Article 15, he co

be required to forfeit one-half of his base pay per mon

for two months and could be reprimanded. 22 Unlike 

listed personnel, officers cannot be reduced in rank as 

result of an Article 15.23 Additionally, the Article 15 co

not prevent Colonel Hardwick from retiring from the se

ice, although it might affect the grade at which he reti

and consequently the amount of his retirement pay. 24

If Colonel Gibson determines that neither administrat

nor nonjudicial punishment is appropriate, he could r

ommend through the chain of command that Colo

Hardwick be tried by court-martial. Normally, officers 

tried by general courts-martial, because only a gene

court-martial has the authority to both confine and pu

tively discharge an officer.25 For enlisted members, a s

cial court-martial is roughly equivalent to a misdemea

trial, and a general court-martial is roughly equivalent t

felony trial.26

If Colonel Gibson recommends a general court-mar

in this case, Colonel Hardwick’s counsel can informally 

to persuade the superior commanders in the chain of co

mand to impose administrative or nonjudicial punishm

instead. If those efforts are unsuccessful, Hardwick can 
to persuade the Article 3227 investigating officer tha

court-martial is inappropriately severe.28 The investigat

officer has no independent authority but only makes r

ommendations to the convening authority. Nonethele

convening authorities are expected to consider carefu

the investigating officer’s input. Once the decision h

been made to send the case to trial, Colonel Hardwick h

several opportunities to preserve his retirement. First, 

can request retirement in lieu of trial by court-martia

This is a formal request to the secretary of the accuse

service that he be retired without facing trial. While o

the secretary of the Air Force can approve Colonel Ha

wick’s request, both the numbered air force comman

and the major command (MAJCOM) commander can d

approve the request, without the request ever reaching 

secretary.30 Second, Colonel Hardwick can enter into 

pretrial agreement (PTA) with the convening authority 

which, in return for the accused’s plea of guilty, the c

vening authority agrees to disapprove a punitive discha

if one is adjudged at trial. 31 If such a PTA were ente

into, Colonel Hardwick could not be punitively dischar

and hence would not have to forfeit all his retirement p

However, such a PTA would not limit the secretar

authority to conduct a grade determination.

If Hardwick’s efforts to avoid trial are rebuffed, he w

have to proceed to trial. There, he can try to convince 

sentencing authority (either a judge or court members) 

to impose a punitive discharge as an element of his s

tence. If the sentencing authority adjudges a punitive d

charge as an element in Hardwick’s sentence, then he c

request clemency from the convening authority. 32 T

clemency process gives Hardwick the right to present m

ters for the convening authority to consider, and the c

vening authority has the power to disapprove or mitig

the punishment the court-martial imposed. Therefo

even at this stage, Hardwick could still be allowed to ret

Colonel Hardwick can appeal his sentence to the 

Force Court of Criminal Appeals (AFCCA). 33 If the AFC

agrees that some error was made in the court-martial

could vacate the sentence and require a retrial, or it co

unilaterally impose a new sentence, perhaps one not 
cluding a dismissal. After the AFCCA reviews his appe

Colonel Hardwick could petition the CAAF to consider 

appeal.34 If the CAAF agrees to hear his appeal, and 

finds error, it can vacate the sentence and return it 

either AFCCA for further action or to the base for res

tencing.35 Also, if the CAAF hears an appeal, the accus

has an opportunity to petition the US Supreme Court fo

writ of certiorari.36

Finally, the secretary of the Air Force is required 

execute all officer punitive discharges (dismissal). 37 Ha

wick could appeal to the secretary to substitute a ret

ment in lieu of a punitive discharge, even at that late sta

of the proceedings.38

To summarize, the current military justice syst

places great emphasis on process and procedural fairn

at all stages of action. Many due process protections are 

place for the retirement-eligible member accused of m

conduct. The member’s commander has numerous opp

tunities to resolve the matter without going to court. Ad

tionally, even if the matter goes to court, the accused c

offer to retire in lieu of trial or enter into a PTA with 

convening authority to avoid a punitive discharge. Fina

if the member goes to trial and is given a punitive d

charge, he can request clemency from the conven

authority, appeal his sentence through the military app

late system, and even petition the secretary of the 

Force for clemency before he or she executes the dismi

al. The imposition of a punitive discharge for a milit

accused is neither arbitrary nor capricious but rather 

result of a complicated process that balances the needs 

good order and discipline against the needs and rights 

the accused.

The Military Retirement System:

History and Analysis

Tempora mutantur, nos et mutamur in illis (Times change, and

we change with them too).

—Owen’s Epigrammata, 1
It is very important to understand the role the milit

retirement system plays in the military justice process, 

it is the interaction of these systems that precludes a p

nitively discharged member from drawing retirement p

Nothing in the law prohibits a punitively discharged me

ber from receiving retirement pay.39 Rather, it is the se

ice secretary who denies punitively discharged memb

their retirement pay.

The military retirement system is not a traditional 

tirement system. Among some of the significant differen

are military retirees remain subject to the UCMJ, and th

may be involuntarily brought back on active duty at 

direction of the service secretary in the event of a natio

mobilization.40 The present retirement system is based 

three sets of intertwined federal statutes, each of wh

covers a different aspect of military retirement.

The first set of statutes permits the secretary of 

service to retire officers and enlisted members with m

than 20 years of service.41 The statutes require the offi

to request retirement and states that upon such a reque

the secretary may approve it. Of course, the secretary 

not required to approve the request; mission needs may 

such that it might not be in the best interest of the serv

to retire a particular member at a particular point. 42 Ad

tionally, this set of statutes shows why military ret

ments do not vest as that term is commonly understo

the secretary retains the discretion to retire members, a

the “right” to retire is not created until the service sec

tary approves an officer’s request to retire. 43

The second statute covers the secretary’s authority 

determine the grade in which a member retires. 44 The 

provides that members shall be retired in the high

grade in which they served satisfactorily on active duty, 

determined by the secretary of the military departm

concerned. The secretary’s role in what are commo

called grade determinations is a little known but very 

portant fact for members retiring in the wake of rec

misconduct. Currently, the secretary conducts a grade 

termination when a member’s records indicate that 

may not have performed satisfactorily at his current gra

In other words, if a member receives an Article 15 a
puts in retirement paperwork shortly thereafter, a gra

determination is required.45 This action does not me

that the member’s retirement grade will be reduced, bu

must be considered.

Finally, the third statute defines the legal status of 

tired members, including the secretary’s power to orde

retiree to active duty (US Code, title 10, sec. 688a), and 

duties of a member called to active duty ( US Code, title 

sec. 688c).46

Apart from the statutes directly pertaining to the m

tary retirement system, other federal statutes affect 

receipt of military retirement pay. The most important 

these provides that any federal retiree (military or civili

shall forfeit retirement pay if convicted of one or more 

an enumerated list of crimes. The offenses, which trig

this provision, include treason, rebellion, insurrection, a

ing the enemy, espionage, as well as perjury and subor

tion of perjury regarding the same. 47

In addition to understanding the mechanics of how m

tary retirement works, it is important to understand 

philosophy underlying the payment of retirement pay 

military retirees. This philosophy is particularly import

because the appeal of adopting the PD&R discharge co

well depend on which theory of retirement one adopts. T

origins of military retirement began during the Civil W

Before that time, there was no provision to retire memb

of the military, and consequently there were individu

serving who were not fit to perform their duties. 48 Milit

retirement was initiated as a force-shaping tool. 49 One 

the most important issues to address with respect to m

tary retirement is to consider the very nature of a milit

retirement. There are two schools of thought on the nat

of a military retirement, and they both affect the approp

ateness of adopting the PD&R.

The first school of thought is that military retiremen

diminished pay for diminished services. This school c

tends that military retirees are still performing curr

services to the military (presumably maintaining the

selves in a state of readiness to be recalled to active dut

required). However, if military pay is reduced compen

tion for reduced services, the logical implication is t
there can be no justification for paying retirement pay 

an individual who is punitively discharged and is th

incapable of performing any services or being recalled 

active duty.

The US Supreme Court first addressed this issue in 

case of United States v. Tyler,

50 which was a suit brou

by retirees to have their pay raised by the same amou

paid to members of the active service. When Tyler a

others retired, military pay was extremely low, and ret

ment pay was even lower. In the 1880s, Congress passe

pay raise for all service members, raising their pay b

factor of three or four or more. When the retirees learn

they were not to receive this pay increase, they sued 

government claiming they were also members of the se

ice and hence entitled to the pay raise. The Court gran

their petition and noted in famous language: “It is impos

ble to hold that men who are by statute declared to be p

of the Army, who may wear its uniform, whose nam

shall be borne upon its register, who may be assigned 

their superior officers to specified duties by detail as ot

officers are, who are subject to the rules and articles 

war, and may be tried, not by a jury, as other citizens a

but by a military court-martial, for any breach of th

rules, and who may finally be dismissed from the serv

in disgrace, are still not in the military service” (empha

in original).51

In later cases, the courts relied upon the theory t

military retirees were part of the force to deny them be

fits. In Costello v. United States, Congress decoupled ret

ment pay raises from those for active duty pay raises (

issue presented in Tyler). Costello sued under the groun

decided in Tyler. The Court ruled against Costello, stat

that because retired members are indeed providing curr

services, Congress is free to change their pay and bene

as it sees fit.

The second school of thought contends that despite l

guage to the contrary, the reality is that military ret

ment is deferred compensation for services previously r

dered, as in a traditional retirement. If one adopts t

view, there is much less controversy in paying punitiv
discharged members retirement pay, because retirem

pay is not based on the retiree providing current service

Despite much lip service to the contrary, Congress h

explicitly and implicitly changed the nature of a milit

retirement to such an extent that it is virtually impossi

to argue that it is anything other than deferred compen

tion. The chipping away came after the landmark c

McCarty v. McCarty,52 which concerned a military mem

who was seeking a divorce in California, a commun

property state. The wife of a service member claimed tha

portion of his future military retirement pay was comm

nity property and subject to division by the court. T

husband argued that his retirement would not be defer

compensation but would be current compensation; dim

ished compensation for diminished services. Under 

laws of community property, current income is not div

ible, but deferred compensation is. The Supreme Co

considered both arguments and rejected both. 53 Instead

based its decision on the carefully crafted congressio

scheme of retirement, and held that no state court h

jurisdiction to meddle with such a carefully crafted c

gressional scheme.54 The Court was concerned that if 

tirement pay were subject to division by a state divo

court, military recruiting and retention could be advers

affected. Thus, without deciding whether retirement p

was deferred compensation or current compensation, 

Court held for the husband.55 Congress reacted swiftly a

passed the Uniformed Services Former Spouse Protect

Act (USFSPA),56 which explicitly permitted state divo

courts to divide retirement pay. This statute cannot 

squared with the notion that military retirement is curr

compensation; the obvious fact is that individuals are 

ceiving military retirement pay who never served a day 

service, are not subject to the UCMJ, and are not eligi

to be recalled to active service. In many cases, these n

military spouses are receiving up to one-half of the ret

ment pay of the retired member.

In a more recent case, Barker v. Kansas,

57 the Co

considered whether Kansas could tax the retirement pay 

military members but not tax the retirement pay of reti

state employees. At issue in that case is the principle t
permits a state to tax federal employees’ compensat

only if the taxation does not discriminate against empl

ees based on the source of the compensation. 58 Kansas 

not tax the retirement pay of state and local governm

retirees but taxed military retirees. Kansas argued that 

tax was permissible, because the income of state and lo

government employees was deferred compensation, wh

the income of military retirees was current diminish

compensation. Because the nature of the income was su

stantially different, Kansas argued that it could tax 

income differently. The Court rejected the argument a

held in favor of the military retirees. In reaching its de

sion, the Court noted that military retirees unquestiona

remain in the service and are subject to restrictions a

recall; and in these respects they differ from other retire

However, the Court stated that Kansas may not treat m

tary retirement pay as reduced pay for reduced services

noted that a military retiree is entitled to a stated perce

age of the pay level achieved at retirement, multiplied 

the years of creditable service. In this respect,

Retired military pay bears some of the features of deferred

compensation. The amount of retired pay a service membe

receives is calculated not on the basis of the continuing duties h

actually performs, but on the basis of years served on active duty

and the rank obtained prior to retirement. By taking into accoun

years of service, the formula used to calculate retirement benefit

leaves open the possibility of creating disparities among member

of the same preretirement rank. Such disparities cannot b

explained on the basis of “current pay for current services,” sinc

presumably retirees subject to these benefit differentials would b

performing the same services.59

Additionally, Congress does not consider military ret

ment pay to be earned compensation, because it cannot 

considered toward making a contribution in an Individ

Retirement Account (IRA).60 Finally, Congress decoup

the requirement that able-bodied retired members are 

gible for recall to active duty. In 1997 Congress amend

the retirement law to provide that Selective Early Ret

ment Board (SERB)61 officers are not eligible for recal

active duty.62 Clearly, the purpose behind the law was 

prevent them from subverting the purpose behind 

SERB retirement, but if those officers are ineligible 

recall, what current services can they be providing?
In my view, military retirement pay is deferred comp

sation for previously rendered services. It can be divid

upon divorce, paid to nonmilitary spouses incapable 

providing current services; for tax purposes it must 

treated like any other retirement, including IRAs, and 

nally, not all retirees are even eligible to be recalled 

active duty. With that as background, there is no prin

pled reason that military members punitively dischar

should be ineligible from drawing retirement pay, notwi

standing their ineligibility to ever serve again.

The Sentencing Process:

Tensions in the System

My object all sublime I shall achieve in time—To make the

punishment fit the crime.

—Sir William Schwenck Gil

The Mikado, 1885 

Having considered the military justice system and 

military retirement system, it is time to take a closer lo

at the PD&R discharge, including the dynamic forces t

caused Judge Sullivan to recommend this new option 

the first place. As he recognized in his memorandum, 

root cause is that current sentencing options do not p

mit sufficient flexibility to allow the sentencing authority 

impose an appropriate sentence in all cases. 63 The milit

recognizes five purposes or principles of punishmen

The military judge instructs members serving as a cou

martial on these before imposing punishment. 65 They 

(1) rehabilitation of the wrongdoer, (2) punishment of 

wrongdoer, (3) protection of society from the wrongdoer, 

deterrence of the wrongdoer and those who know of his 

her crimes from committing the same or similar offens

and (5) preservation of good order and discipline in 

military.

Currently, the range of punishments available in a m

tary court-martial are as follows, listed in approxim

order from least severe to most severe: no punishme

reprimand, restriction, reduction in grade (enlisted on

hard labor without confinement (enlisted only), forfeit

of pay (and allowances), fine, confinement, punitive d
charge, death, or any combination of the foregoing. 66 

the typical retirement-eligible accused, frequently an o

cer in the grade of O-5 or higher or an enlisted mem

E-7 or higher, some of the punishments might be inapp

priate and may even be impermissible. 67

Thus, while reduction in grade might seem a very 

propriate punishment in the hypothetical case of Colo

Hardwick, it is not authorized.68 Hard labor without c

finement is also not authorized for officers. 69 Moreover

is difficult to envision a court sentencing a senior nonco

missioned officer (NCO) to perform hard labor without c

finement. This punishment is typically given to low

ranking enlisted members.

Forfeiture of pay and allowances would seem to be 

effective punishment at first blush, but there are seve

technicalities that make it an ineffective punishment 

the retirement-eligible accused. First, forfeitures only 

fect pay as it accrues.70 Therefore, the convicted must 

main on active duty in order to forfeit pay, leaving 

military in the awkward position of retaining such me

bers on active duty for the sole purpose of requiring th

to forfeit pay. Second, the law only permits a maxim

forfeiture of two-thirds pay if the member is not in confi

ment. Consequently, the only time forfeitures are a tr

effective punishment is when the member is confined. 71

A fine is a potential middle ground between too mu

punishment and too little punishment. A fine create

debt immediately payable to the government of the Uni

States.72 Considering the case of Colonel Hardwick, if 

expected future value of his retirement were to be $1 m

lion,73 a fine of $100,000 might well be considered e

nently fair—only 10 percent of the expected value of 

retirement.74 However, Colonel Hardwick’s retirem

would be paid over the course of his lifetime, and the f

is a debt that becomes due immediately. Depending 

Hardwick’s financial situation, immediate payment of 

debt might not be possible.75 Because of the obvious im

cations of imposing a $100,000 fine on a lieutenant co

nel, this option, while viable does not resolve the matter 

determining an appropriate punishment.76
One form of punishment authorized in virtually all p

ceedings is confinement.77 However, while confinem

may be authorized, it is not always appropriate. The p

mary purpose for confinement is the protection of soci

from the wrongdoer.78 At the same time, some of the 

fenses that land retirement-eligible accused in court 

not the type of offenses for which confinement is norma

appropriate, especially when more senior members are 

cused. It is extremely unlikely that Colonel Hardw

would be sentenced to even a one-day confinement, 

though his offenses carry a maximum punishment of th

years confinement.79

Two remaining punishments are sentences to no pu

ishment and to receive a reprimand. 80 Sentences of 

punishment are extremely rare and usually reserved 

technical reasons.81 Reprimands are sometimes given 

conjunction with other punishments but rarely as a sta

alone punishment because they are generally viewed 

being less punishment than is appropriate in most case

The final authorized punishment is a punitive d

charge. There are actually three types of punitive d

charges: bad conduct discharge, dishonorable dischar

and dismissal.82 The bad conduct discharge and the d

honorable discharge are reserved for enlisted personn

The dismissal is the only punitive discharge authorized 

an officer.83 Notwithstanding the attempted distinction

the legal effects of all three discharges are basically 

same, and for the purposes of this paper, all three d

charges equally terminate a member’s right to receive 

tirement pay.85 The difficulty court members face in 

judging an appropriate sentence is that while the punit

discharge can have harsh collateral consequences, it is 

only means the members have to discharge a mem

from the service.86 There are instances where court me

bers may arrive at a point where the two punishme

being actively considered are confinement or a dischar

They may believe that confinement is not appropriate, b

a punitive discharge, at least in a general sense, is app

priate. However, whether the court members considerin

punitive discharge realize that it is tantamount to 
member forfeiting retirement pay is a question the milit

courts are now in the process of trying to resolve.

At issue is the so-called collateral consequences rul

Traditionally, the collateral consequences rule provid

that only matters arising directly out of the imposition o

sentence could be considered in arguing for or agains

particular punishment, or could be considered by the s

tencing authority in imposing punishment.88 For exam

counsel could argue that confinement would take away 

accused’s liberty but could not argue that as a result 

confinement the accused might lose a medical or ot

professional license. The purpose for the rule is to m

mize or eliminate speculation from the sentencing proce

We know that confinement will take away the accuse

freedom; we do not know that confinement will cause 

loss of a license. Such a loss is collateral to the senten

imposed.89 Unfortunately, the collateral consequences r

has been invoked in courts-martial to prevent the accu

from explaining to the court members that a punitive d

charge could cost them retirement and retirement pay. 9

In 1989 in the case of United States v. Henderson,

91 

court held for the first time that retirement-eligible 

cused could introduce evidence of loss of retired pay 

the issue of whether they should be punitively discharg

The trial courts strictly construed Henderson, not allow

members who are not actually retirement eligible to p

sent such evidence.92 Recently in a trio of cases, 93 

CAAF loosened the collateral consequences rule, to per

members “perilously close” to retirement to put forth e

dence concerning the potential loss of retired pay. T

court did not specify how close to retirement “perilou

close” was and requested that the services address t

matter through a regulation or instruction. 94

Therefore, under today’s law, Colonel Hardwick co

introduce evidence concerning his loss of retirement p

While this permits the court members to unambiguou

understand the consequences of giving Hardwick a pu

tive discharge, it is still insufficient. It does nothing 

correct the real issue—giving the members a sentenc

option less serious than a full punitive discharge but m
serious than a reprimand, possibly uncollectible fi

and/or inappropriate confinement.

Judge Sullivan’s PD&R proposal would give court me

bers an additional sentencing option; in no way would 

eliminate the members’ ability to impose a full punit

discharge if they deem it appropriate. The full range 

sentencing options currently available would remain av

able, with one additional option. The PD&R would prov

the sentencing authority with needed flexibility to ma

the fine distinctions often required to craft an appropri

sentence.

Good Order and Discipline and the PD&R

Discipline is the soul of an army. It makes small numbers

formidable; procures success to the weak, and esteem to all.

—George Washington, 1

Now, having an understanding of the realities of 

system, it is time to consider the impact the PD&R mi

have on the military justice system’s ability to maint

and preserve good order and discipline. The maintena

of good order and discipline is both the foundation of 

military and the foundation of the military justice s

tem.95 No change in the system would be acceptable i

had an adverse effect on good order and discipline. I 

dress the PD&R’s potential impact on good order and d

cipline by examining how it might affect the five princip

of sentencing.

The PD&R discharge would probably enhance rehab

tation of the wrongdoer by providing greater flexibility 

craft a sentence which appropriately punishes the mem

yet also leaves room for a meaningful opportunity for re

bilitation. It would eliminate concerns over a too limi

menu of punishments for the military sentencing autho

to draw from. Judge Sullivan’s proposal would bridge 

sometimes wide gap between authorized punishments t

are too weak and those that are too harsh. However, i

somewhat inapposite to consider a punitive discharge 

having a rehabilitative purpose; it does not. It is prin

pally imposed as means of retribution and deterrence, t

other principles of sentencing. “The punitive discharge w
designed to sever a servicemember from the military co

munity and to put a mark upon him that would make 

difficult for him to reenter the civilian society and ec

omy. The punitive discharge thus had two effects by 

sign: first, it punished by ejection from a familiar soci

and by imposing social and economic hardships; and s

ond, it deterred others by its visible, swift, effective, a

harsh character.”96

Is the PD&R an effort to make the punitive discha

something it is not—a rehabilitative punishment? It 

pends upon your point of view. One could argue that 

simple answer is yes; that allowing a punitively dischar

member to draw retired pay significantly alters the effec

a punitive discharge. Recall though, that the forfeiture 

retirement pay is a collateral consequence of a punit

discharge; it is not the purpose of a punitive dischar

Since the forfeiture of retirement pay is collateral to 

punishment, elimination of a particular collateral con

quence does not alter the essential nature of the puni

ment. The member would still receive a punitive dischar

and he or she would still be separated from the milit

with the attendant loss of all honors, privileges, and be

fits commonly associated with military service, save 

monthly retirement paycheck. The provisions of “Cert

Bars to Benefits,” US Code, title 38, sec. 5303, 19

would remain in effect, terminating punitively dischar

members’ rights to any veteran’s benefits. 97 Additiona

the social and economic hurdles commonly associa

with a punitive discharge would remain in effect. 98 Th

while the payment of retirement pay may mitigate 

harshness of a punitive discharge, it does not fundam

tally alter the nature of a punitive discharge.

The second principle of punishment is retribution 

“punishment for punishment’s sake,” which is a legitim

purpose of punishment; a sanction for having done wro

even when one’s offense is victimless. This is society’s w

of balancing the books, and serving the punishment 

posed is the wrongdoer’s means of paying his debt to so

ety.99 As alluded to above, this principle of punishmen

nearly the mirror image of rehabilitation, although m

people would agree that the process of paying one’s deb
society may itself have rehabilitative benefits. 100 Whet

the PD&R discharge would have an effect on this a

largely depends on how wisely the sentencing autho

uses the new flexibility of the PD&R discharge.

In other words, if a wrongdoer receives a punitive d

charge with retirement pay when instead a traditional 

nitive discharge would be more appropriate, the retri

tion aspect of punishment will be diminished

Conversely, punishments based on excess retribut

could diminish respect for the military justice system. 

the absence of the PD&R, retirement-eligible accused f

both the stigma of a punitive discharge and the forfeit

of their retirement pay. Such a serious double wham

ought to be reserved for the worst offenders and not b

mere collateral consequence.102 Viewed thusly, the PD

could enhance the retribution power of punishment, 

allowing for the stratification of punishments. Instead 

having to impose a one-size-fits-all punitive discharge, 

sentencing authority could pare and tailor an appropri

punishment, far enhancing the retributional character 

the traditional punitive discharge.

The third sentencing principle, protection of soci

from the wrongdoer, is not really applicable to punit

discharges in general, if for no reason other than the v

purpose of a punitive discharge is to send a military me

ber back into society. This principle of punishment is n

mally accomplished through confinement.

The fourth principle of punishment combines two si

of the same coin, deterrence. One side of the coin 

termed “specific deterrence,” the notion that the puni

ment imposed will teach this wrongdoer a lesson and m

this wrongdoer less likely to engage in future miscondu

On the other side of the coin is “general deterrence,” 

notion that punishment serves to teach everyone a l

son.103 In other words, society’s knowledge that wrong

ers are punished acts to deter others from committing 

same or similar crimes.104

One may argue the PD&R would reduce the deterr

effect of the military justice system by potentially lower

the cost of engaging in misconduct. Just as military me

bers pending promotion are under de facto probation (
ease of red lining a promotion makes promotion-selec

members particularly averse to misconduct),105 so 

should an approaching retirement induce an increa

sense of aversion toward misconduct. There are seve

answers to this argument. First, the addition of the PD

discharge as an authorized punishment is no guaran

that a wrongdoer will receive it. Traditional punitive d

charges with the associated loss of retired pay would s

be available to the sentencing authorities. Second, wh

draconian punishment may deter future misconduct

such a concept is at odds with modern notions of fairn

and justice. An even more interesting answer flows fr

examining the actual nature of deterrence. True deterre

is based on a combination of the likelihood of gett

caught for a particular act of misconduct, weighted by 

severity of the punishment the member is likely to 

ceive.107 Reducing deterrence to a mathematical form

leads to the observation that any mitigation in poten

punishment could be offset through stricter enforceme

a distinct possibility if the PD&R proposal is implement

Currently, there may be a hesitancy to bring retireme

eligible members to a court-martial specifically because 

the distinct possibility that trial may result in forfeit

their retirement pay.108 To the extent this is true, ret

ment-eligible members may actually benefit at the mar

from the perceived harshness of the current system. If 

system were modified such that a punitive discha

would not automatically result in forfeiture of retirem

pay, commanders and convening authorities might ac

ally send more retirement-eligible members to trial. The

fore, the actual effect the PD&R would have on deterren

is unknown, but the PD&R would not necessarily redu

deterrence in the military.

The final justification for punishment in the military 

to preserve good order and discipline. 109 Although t

principle of sentencing is not defined by the military jud

like the other principles, it most likely is based on a co

bination of the factors previously discussed, as well 

some other considerations I would like to explore in m

detail. One aspect of the preservation of good order a

discipline is whether sentences adjudged engender resp
for the system. The military justice system is an integ

part of the process for maintaining discipline in the arm

forces, and it is essential that both those subject to it, a

society as a whole, have confidence in its fairness and 

procedures.110 To this end, the law and its sanctio

should apply equally to all members, regardless of ra

status, or longevity in service. As a general principle, t

notion is laudable. However, even in the current milit

justice system, significant differences are built into 

system. Officers cannot be reduced in rank nor be su

jected to hard labor without confinement, 111 the milit

inexperience of junior members is frequently a matter 

mitigation,112 members with lengthy service undergo ad

tional reviews before they are administratively discharged

and there are instances where senior members are trea

differently from junior members.114 It is not an alien c

cept for members of the service to be treated differently. 

A close examination of the circumstances also reve

that the PD&R may not be the windfall benefit for reti

ment-eligible members that may be assumed at fi

blush, but rather a means to equalize punishments wh

the only differentiation between members is their time 

service. Recall the situation of Lieutenant Colonel Ha

wick. Now consider a captain (with five years in serv

who engages in the same misconduct as Colonel Ha

wick. Theoretically, the same offense was committed

and the same punishment ought to be meted out in b

cases. However, if both the captain and the lieuten

colonel receive ostensibly the same punishment, say a r

rimand and a dismissal, the impact of the punishmen

decidedly different on the two parties. The captain forfe

a rather tenuous future expectancy of retirement pay d

cult to calculate and the lieutenant colonel forfeits an 

tuarially determinable sum of money approach

$900,000. Clearly, this action is not the same punishm

for the same offense. Additionally, to the extent one vie

Hardwick’s rank to be a matter in aggravation, that 

justifiable only if the amount of aggravation is worth 

differential punishment ($900,000). To the extent that 

aggravating value of the rank of lieutenant colonel 

$900,000, then the sentencing authority is free to imp
the punishment of dismissal with loss of retirement p

On the other hand, if the sentencing authority views 

two cases to be roughly equivalent, the PD&R would n

permit roughly equivalent punishment—dismissal for 

captain and dismissal with retirement pay for the lieut

ant colonel. Therefore, by providing the sentencing auth

ity with a middle position, the system can be rende

fairer, even if only at the margin, by the adoption of 

PD&R proposal. To the extent the system is viewed 

being fairer, that perception will have a positive impact 

the maintenance of good order and discipline.

A second area to explore is the effect of a punitive d

charge and loss of retirement pay on innocent third p

ties. Innocent third parties are individuals who rely on 

accused’s retirement pay and were either victims of 

crime that led to trial or who had no role at all in 

misconduct. Currently, if a member commits a cri

against his or her family and is punitively discharged a

result, the family would be entitled to transition comp

sation payments to offset the loss of the wrongdoer’s 

come.117 While a noble concept, the administration of 

program in practice has some serious flaws. First, victi

are only entitled to very limited benefits. 118 If the PD

were implemented, family member victims could be in 

better financial position vice the current transitional co

pensation scheme.119 Second, if the spouse were to divo

the member,120 the member’s retirement pay would 

subject to division by the divorce court as a marital ass

and the family victims would receive payments either 

the life of the retiree or the spouse, if the Survivor’s Ben

Plan were elected.121 Third, if the family were to rem

intact, then the accused would be able to provide th

reasonable and adequate support through military ret

ment pay, and the family would not suffer victimho

twice.122 Even more compelling is the circumstance wh

the wrongdoer’s family had no part in the criminal beh

ior, yet they would be the ones to suffer most if the me

ber were to forfeit retirement pay. Consider a case o

retirement-eligible member smoking marijuana. Clea

that is inexcusable misconduct in this day and age, a

the wrongdoer definitely deserves punishment. Howev
should that punishment extend to the family? Because 

family member was a direct victim of the misconduct, 

family is ineligible for transition compensation p

ments.123 Reconsider the hypothetical case of Colo

Hardwick and substitute marijuana abuse as the char

His children may be unable to attend college, and 

family’s hopes and dreams will be forever altered. Howev

there are two compelling arguments against this conce

First, the prospect of the family losing everything becau

of a member’s misconduct serves as a very powerful det

rent. It requires members to consider how their actio

will hurt not only themselves but those close to them, a

these considerations may well have a chilling effect 

their propensity to engage in criminal behavior. Seco

military benefits, including retirement pay, are not a fo

of substitute welfare. If a family becomes indigent a

result of the loss of a wrongdoer’s pay, programs ex

within our society to assist the family. 124 The Departm

of Defense should not have to fund in-kind welfare 

unfortunate dependents.

Whenever there are two good but diametrically oppo

arguments concerning an issue, the decision goes to 

side that promises the greatest benefits for society a

whole. Because society has an interest in identifying a

punishing wrongdoers, it wants innocent families to rep

misconduct. However, when the reporting of miscond

may cost the family money, the family will be less likely 

report the misconduct. Society (and especially the milita

has an interest in removing these financial barriers 

reporting misconduct. In the hypothetical case of Colo

Hardwick, society (at least the USAF) would be bet

served if Mrs. Hardwick were to discover her husban

misconduct and report it to the authorities. However, 

the extent there are incentives against her reporting it, s

will be less likely to do so. While some of her conside

tions are beyond the scope of the Air Force’s influence (

relationship with her husband and her desires to maint

the family unit), the Air Force can act to allay her financ

concerns. This would be a win-win situation for both 

Air Force and the family, and can be achieved (at least 

part) by implementing the PD&R. The possibility of reta
ing retirement pay in the event of a punitive discharge m

encourage some families to report misconduct they oth

wise would not. Although the transitional compensat

statutes address some of these concerns, I have dem

strated that this proposal is more generous than the c

rent program, lowering financial-based resistance to 

porting misconduct. Additionally, the transit

compensation statutes do not compensate individuals 

reporting offenses unless they are the victims. The PD

discharge will enable family members not personally v

timized by the member’s misconduct to report it on beh

of a third-party victim and still retain the possibility of 

losing their financial security.

The PD&R should have a positive impact on good or

and discipline and may even benefit law enforcement. T

PD&R does not fundamentally alter the present milit

justice system, but it does create some incentives a

eliminates some disincentives built into the current s

tem. The enhanced flexibility it provides sentenc

authorities should increase respect for the system and 

hance the effect of the theoretical justifications for puni

ment. While it is difficult to predict accurately how a co

plex and dynamic system will respond to change, it see

that adoption of the PD&R will create a net benefit to 

military justice system.

The final consideration in evaluating the appropria

ness of the PD&R lies in determining what effect it w

have on the nature and character of military retireme

While those considerations may not be as pressing as go

order and discipline, military retirement is one of the m

tary’s most important programs.

The PD&R and the 

Military Retirement System

People in the West have acquired considerable skill in using,

interpreting, and manipulating law. . . . Every conflict is solved

according to the letter of the law and this is considered to be

the ultimate solution. If one is right from a legal point of view,

nothing more is required; nobody may mention that one could

still not be entirely right, call for sacrifice, and selfless

risk—this would simply sound absurd. Voluntary self-restraint
is almost unheard of; everybody strives toward further expan -

sion to the extreme limit of the legal frames. . . . I have spent

all my life under a Communist regime, and I will tell you that a

society without any objective legal scale is a terrible one in -

deed. But a society with no other scale but the legal one is

also less than worthy of man.

—Alexander I. Solzheni

The last issue that remains to be addressed concern

the PD&R is to consider its impact upon the military 

tirement system. I examine three areas. First, its effect 

the role of the service secretaries; second, its effect 

recall of retirees and collateral military retirement benef

and third (and perhaps most importantly), its impact 

the pride and status of honorably retired military member

As discussed in the earlier analysis of the military 

tirement system, service secretaries have the discretion 

retire military members who have reached 20 years 

service.125 Although statutes give the secretary discret

whether or not to retire a member, in reality service re

lations remove virtually all secretarial discretion o

whether a person may be retired, but the secretary reta

discretion to determine when a member may be retired

If the PD&R is implemented, it would appear to withdr

from the secretary of the Air Force the decision to retir

military member. The question to be considered is whet

this is such a significant issue that the PD&R ought not 

be adopted. Presently, the secretary’s discretion is mer

the result of federal statutes granting that discretion; C

gress retains complete power to modify those statutes. 

cause the PD&R would require congressional legislation 

be implemented, it is only a minor matter to insert sta

tory language requiring a service secretary to approve 

retirement of a member receiving a PD&R. 127 From a po

standpoint, implementing the PD&R should not hav

significant impact on the role played by the service sec

tary. Currently, according to service regulations, the sec

tary must retire court-martialed members otherwise el

ble for retirement (specifically, members whose appro

sentences do not include a punitive discharge). 128 T

adoption of the PD&R would merely create a punishm
whose effects do not extend to the forfeiture of retirem

pay as a consequence.

The next matter to address is the legal status of a PD

recipient. Admittedly, the PD&R would create an indiv

ual of hybrid status—a punitively discharged retiree. T

legal nature of military retirement can be divided into t

categories: benefits received as a retiree and obligatio

owed as a retiree. Normal military retirees are authorize

full range of benefits administered by the Veterans A

ministration (VA) and other government agencies; pu

tively discharged members are denied all or virtually 

such benefits.129 A bad conduct discharge adjudged b

special court-martial does not conclusively terminate 

such benefits; government agencies make a case-by-c

analysis.130 All punitive discharges adjudged by a gene

court-martial are sufficient for a government agency 

deny benefits without further inquiry.131 But benefits t

vest by virtue of prior honorable discharges (usually re

vant to enlisted members or prior-enlisted officers) are 

affected by a punitive discharge in the current enl

ment.132 Officers without a prior honorable discharge n

mally forfeit all veterans’ benefits upon execution of a p

nitive discharge.133 Although the forfeiture of vetera

benefits is a collateral consequence of a punitive d

charge, it does not seem unreasonable to deny a punitiv

discharged member various government benefits usu

associated with honorable service. Consequently, I wo

propose that the member discharged with a PD&R rece

none of the government benefits associated with d

charges or retirements under honorable conditions. T

denial of such benefits and associated status accompa

ing the receipt of such benefits is consistent with the pu

tive nature of the PD&R characterization. 134 This den

includes forfeiture of medical care, base exchange a

commissary privileges, forfeiture of a military identificat

card, loans administered by the VA, and termination of 

right to be buried in a national cemetery, among others

Basically, individuals receiving a PD&R discharge wo

still be punitively discharged from the service; their o

connection with the military would be their monthly 

ceipt of retirement pay. They should not be entitled to a
of the other honors and privileges associated with milit

retirement.

In addition to the benefits given to military retire

there are also duties expected of them. Among othe

military retirees remain subject to the UCMJ 136 and also 

involuntary recall to active duty by order of their serv

secretary.137 The recipients of a PD&R discharge sho

have their entire “social” connection to the military ter

nated. Members receiving a PD&R discharge should not 

eligible for recall to active duty, nor should they rem

subject to the UCMJ. Every attempt should be made 

view the PD&R discharge as a punitive discharge in ev

respect save for the receipt of retired pay.

The final matter to address is the impact the PD

discharge would have on the pride and status of exist

(and future) honorably retired military members. On o

hand, the obvious concern of honorably retired memb

is that members who were punitively discharged from 

military should have forfeited their rights to anything fr

the military. They may believe that the military’s rules 

well known to one and all, and compliance with the bas

of the criminal law are not too much to expect from offic

and NCOs of the military. Simply put, those who viol

military standards should not benefit from the military. 

course, all of the foregoing concerns are correct and wi

out debate. The issue and the challenge are to accurat

and fairly place an individual’s misconduct along a sp

trum from very minor to very serious and determine 

appropriate penalty for that misconduct.

Not all offenses warrant total separation from the m

tary environment, just as some offenses fairly cry out 

such separation. The PD&R is an option for sentenc

authorities, just as sentencing authorities currently h

the option not to adjudge a punitive discharge, and c

vening authorities have the option to disapprove a punit

discharge. The difference with the PD&R is that memb

with an approved punitive discharge will be receiving m

tary retirement pay. The implementation of this new opt

will have to be accompanied with detailed explanation t

the PD&R is intended only for those cases where fairn

and justice dictate the compromise that is inherent in 
PD&R. If the PD&R is appropriately used, the entire m

tary community should be comfortable with the enhan

fairness and justice it represents.

Additionally, there will be important distinctions 

tween members with a traditional honorable retirem

and a PD&R retirement. Traditional retirees are welco

on base to participate in the military community and ta

advantage of a full range of military benefits; PD&R re

ees will not be welcome. While traditional retirees rem

subject to military recall and PD&R retirees will not, 

notion that military retirement pay is compensation 

such readiness is not supportable under today’s ret

ment scheme. Consequently, traditional retirees sho

merely view the possibility of recall as a patriotic duty a

not a quid pro quo for receiving retirement pay. If 

PD&R is properly implemented with clear distinctions 

tween members honorably retired and those only draw

retirement pay, the pride and honor associated with m

tary retirement should not be unduly diminished. 138

The status of our military retirees is an important c

sideration in the decision to adopt the PD&R. Howev

there is a difference between being a retiree and mer

drawing retirement pay. That distinction will have to 

emphasized if the PD&R is to be successfully adopted. T

other concerns discussed in this paper can be resol

through legislation; this will require education and co

mitment. The overall system will be the victor if we 

able to improve the administration of military justice. 

person gains at another’s expense, and the status of m

tary retirees is not improved by perpetuating injustices 

the military justice system. Further, since military retir

are themselves subject to the UCMJ, they may ultimat

benefit from the PD&R if one of them is unfortun

enough to be court-martialed.139

Conclusion

I abhor averages. I like the individual case. A man may have

six meals one day and none the next, making an average of

three meals per day, but that is not a good way to live.

—Louis D. Brandei
The proper administration of military justice require

delicate balance between the needs of good order and d

cipline and the needs and rights of the accused. The PD

discharge would enable the system to make finer disti

tions in the sentencing process, enhancing justice a

fairness in the armed forces. It would have a positive eff

on the maintenance of good order and discipline and 

crease respect for the administration of military justice

may also provide incentives for individuals to report 

fenses that they currently have little or no incentive 

doing, something which would also enhance the readin

of the force. The PD&R is not inconsistent with the m

tary retirement system in its present evolution. Con

quently, I recommend the adoption of the PD&R. This w

require congressional legislation to change the retirem

system, and an executive order to change the Manual 

Courts-Martial. This change is long overdue and easily 

plemented. The PD&R is not just for retirement-eligib

who engage in misconduct—it is for all members of 

armed forces who believe in fairness and justice and 

dignity of the individual.

Notes

1. United States v. Sumrall, 45 Military Justice (M.J.) 207, 1996.

2. Ibid., 209–10.

3. Ibid., 211.

4. Ibid.

5. Voluntary Separation Incentive/Special Separation Bo

(VSI/SSB). These programs were an effort to draw down the force 

encourage military members to separate. One program paid membe

monthly stipend based on the number of years of service; the o

program paid members a lump-sum settlement. Members were fre

select and participate in the program of their choice.

6. United States v. Sumrall, 211b.

7. Ibid.

8. Ibid.

9. “Uniform Code of Military Justice (UCMJ) Article 56, Maxim

Limits,” US Code, title 10, sec. 856, 1995.

10. Army, “Twenty Years or More: Regular or Reserve Commissio

Officers,” US Code, title 10, sec. 3911, 1996; “Twenty to Thirty Ye

Enlisted Members,” US Code, title 10, sec. 3914, 1996; Air Force, “Tw

Years or More: Regular or Reserve Commissioned Officers,” US Code, 

10, sec. 8911, 1996; “Twenty to Thirty Years: Enlisted Members,” 

Code, title 10, sec. 8914, 1996; Navy, “Officers: Twenty Years,” US C
title 10, sec. 6323, 1996; and “Twenty to Thirty Years: Enlisted Memb

Transfer to Fleet Reserve and Fleet,” US Code, title 10, sec. 6330, 1996

11. By military justice system, I am referring to the broad rang

powers invested in commanders to deal with misconduct and not onl

matters covered by the UCMJ. However, an understanding of comman

authority outside the UCMJ is critical to understanding any propo

change to the UCMJ, because the entire system is delicately balan

Changes must be evaluated with respect to their effect on the balanc

the overall system.

12. This case history is fictional and is included only to elaborate 

issues and concepts addressed in this paper. It is based on an ama

mation of real cases, all of which are in the public record.

13. David A. Schlueter, Military Criminal Justice, Practice and P

dure, 4th ed. (Charlottesville, Va.: Michie, 1996), sec.1-8, 40.

14. An administrative discharge is an administrative sanction 

can be far more serious than an Article 15, “Commanding Officer’s No

dicial Punishment,” US Code, title 10, sec. 815, 1996, administered 

company-grade officer. An Article 15 can be more serious than a co

martial (Sgt Maj Eugene McKinney of the Army could have received m

serious punishment through nonjudicial punishment than he receive

his general court-martial).

15. “Initial Disposition,” Rules for Court-Martial (R.C.M.) 306(b)

Manual for Courts-Martial United States (M.C.M.), 1995 ed. (Washing

D.C.: Government Printing Office, 1995), pt. 2, 25.

16. First offender murderers go directly to trial.

17. Consider the following examples:

 a. “UCMJ Article 30, Charges and Specifications,” US Code, 

10, sec. 830, 1997 and “Preferral of Charges,” R.C.M. 307(a). Comma

ers generally prefer charges, although technically, anyone subject to 

UCMJ may legally prefer charges.

 b. “UCMJ Article 22, Who May Convene General Courts-Ma

(GCM),” US Code, title 10, sec. 822, 1996; “UCMJ Article 23, Who 

Convene Special Courts-Martial (SPCM),” US Code, title 10, sec. 

1996; and “UCMJ Article 24, Who May Convene Summary Courts-Ma

(SCM),” US Code, title 10, sec. 824, 1996. Only designated comman

may refer charges to a court-martial.

 c. “Pretrial Agreements,” R.C.M. 705, in M.C.M. Only the con

ing authority may conclude a pretrial agreement.

 d. “Action by the Convening Authority,” R.C.M. 1107, in M.

Only the convening authority may take action on a case.

18. In addition to the statutory authorizations, each year a spe

order is published specifically designating by position the individ

authorized to convene various types of courts-martials. In the Air Fo

general courts-martials may typically be ordered by numbered air f

commanders and Air Force Material Command product center comma

ers. Wing commanders can typically order special courts-martials. A

consider the rank restrictions associated with the ability to impose Ar

15 (see UCMJ Article 15, US Code, title 10, sec. 815, in M.C.M., pt. 5, 

Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, Oct

1996). For more detail, see UCMJ Article 22, US Code, title 10, sec. 
UCMJ Article 23, US Code, title 10, sec. 823; and UCMJ Article 24

Code, title 10, sec. 824.

19. AFI 51-201, Administration of Military Justice, October 1997, 

AFI 51-202 require commanders to seek legal advice in considering j

cial and nonjudicial dispositions.

20. AFI 51-201 and AFI 51-202. AFI 36-2907, Unfavorable Informa

File, May 1997. For example, an administrative reprimand may be pla

in an Unfavorable Information File (UIF). A member’s promotion selec

Report on Individual Personnel or RIP indicates whether he has an ac

UIF, conveying a negative message to a promotion board. Addition

commanders are explicitly authorized to annotate on the member’s 

motion record that he or she has either a reprimand or an Article 15 

record. AFI 36-2608, Military Personnel Records System, July 1996, 

2.5 (Article 15), and par. 2.6 (Letter of Reprimand). Such annotat

remain in the member’s selection record until the next in-the-zone 

motion.

21. AFI 36-3207, Separating Commissioned Officers, May 1997, t

2.2, note 12.

22. “Nonjudicial Punishment Procedure,” in M.C.M., pt. 5, par

(1)(B), 1996 (Rev.).

23. Ibid.

24. “Commissioned Officers: General Rule, Exceptions,” US Code, 

10, sec. 1370, 1997.

25. “Punishments,” R.C.M. 1003(c)(2)(A)(ii), (iv) in M.C.M., con

ment and punitive discharge.

26. Schlueter, sec.1-8, 40.

27. “UCMJ Article 32, Investigation,” US Code, title 10, sec. 

1997. An Article 32 hearing is like a grand jury hearing, where an inve

gating officer makes a recommendation whether there is suffic

evidence to proceed to trial.

28. “Pretrial Investigation,” R.C.M. 405(f)(11), (12) in M.C.M., 1995 

and R.C.M. 405 (j)(2)(I).

29. R.C.M. 405(f)(11), (12) and R.C.M. 405 (j)(2)(I). A note that a re

nation or discharge to avoid trial by court-martial terminates m

military benefits. AFI 36-3203, Service Retirements, August 1994, c

2, table 2.2, rule 15. Requests for retirement in lieu of trial by court-m

tial are processed in accordance. Non-retirement eligible members 

request administrative discharge in lieu of trial by court-martial. 

36-3208, Administrative Separation of Airman, October 1994, par.1

Enlisted personnel can request a “chapter 4 discharge,” named after 

chapter of the regulation that authorizes it. Although a chapter 4 

charge may be characterized as honorable, general under honor

conditions, or under other than honorable conditions (UOTHC), virtu

all such discharges are characterized as UOTHC. AFI 36-3207, par. 2

(38 C.F.R. 3.12(c)(3)). Officers have a similar option. If an officer beli

that the preferral of charges is imminent, he or she can submit a 

quest for Resignation for the Good of the Service.” Usually, an off

submits an unconditional resignation, but an officer may submit a co

tional resignation. If the officer submits a conditional resignation, ei
the wing commander or the MAJCOM commander is authorized to dis

prove the request and return it to the officer.

30. AFI 36-3203, chap. 2, table 2.2, rule 15.

31. R.C.M. 705(b)(2)(E), in M.C.M.

32. “UCMJ Article 60, Action by the Convening Authority,” US C

title 10, sec. 860, 1997; “Matters Submitted by the Accused,” R.C

1105(b), in M.C.M., submission of matters; R.C.M. 1107(b)(1), in M.C

discretion; R.C.M. 1107(c), in M.C.M., findings; and R.C.M. 110

M.C.M., 1995 ed., sentence.

33. “UCMJ Article 66, Review by Court of Criminal Appeals,” US C

title 10, sec. 866, 1997.

34. “UCMJ Article 67a, Review by the Supreme Court,” US Code, 

10, sec. 867a, 1997.

35. “UCMJ Article 67(c), (d),” US Code, title 10, sec. 867(c), (d), 199

36. “UCMJ Article 67a,” US Code, title 10, sec. 867a, and “Cou

Appeals for the Armed Forces; Certiorari,” US Code, title 28, sec. 1

1997. A writ of certiorari is a petition to the Supreme Court to exercise 

discretion to hear the case on appeal.

37. “UCMJ Article 71(b), Execution of Sentence; Suspension of S

tence,” US Code, title 10, sec. 871(b), 1997.

38. Ibid.

39. United States v. Sumrall, 211 and US Code, title 10, sec. 8911.

40. “Retired Members,” US Code, title 10, sec. 688, 1996.

41. Army, US Code, title 10, sec. 3911 and US Code, title 10, 

3914; Navy UCMJ, US Code, title 10, sec. 6323 and US Code, title 10, 

6330; Air Force UCMJ, US Code, title 10, sec. 8911 and US Code, title 

sec. 8914.

42. AFI 36-3203, chaps. 2 and 3.

43. AFI 36-3203, table 3.1.

44. US Code, title 10, sec. 1370.

45. AFI 36-3203, par. 7.5.

46. US Code, title 10, sec. 688(c). Members recalled to active d

may be assigned to such duties as the secretary considers necessar

the interest of national defense.

47. “Conviction of Certain Offenses,” US Code, title 5, sec. 8

1996.

48. US Code, title 5, sec. 8312, 159. Congressional Globe, 37th Co

1st sess., 16, 1861. See remarks of Senator Grimes, “some of the c

manders of regiments in the regular service are utterly incapacitated 

the performance of their duty, and they ought to be retired upon s

terms, and efficient men placed in their stead”; see remarks of Sen

Wilson, “We have colonels, lieutenant colonels and majors in the Ar

old men, worn out by exposure in the service, who cannot perform t

duties; men who ought to be honorably retired, and receive the comp

sation provided for in this measure.” McCarty v. McCarty, 453 U.S. 

fn. 2, 69 L.ed.2d 589, 101 S.Ct. 2728, 1981.

49. McCarty v. McCarty, 210.

50. Taylor v. United States, 105 U.S. 244, 26 L.ed. 985, 1882.

51. Taylor v. United States, 244.

52. McCarty v. McCarty, 210.
53. Ibid., 233.

54. Ibid., 236.

55. Ibid.

56. “Payment of Retired or Retainer Pay in Compliance with C

Orders,” US Code, title 10, sec. 1408, 1997.

57. Barker v. Kansas, 112 S.Ct. 1619, 1992.

58. Ibid., 1623.

59. Ibid.

60. “Retirement Savings,” US Code, title 26, sec. 219(f)(1), 1997.

61. Selective Early Retirement Board (SERB). A “SERB’d” officer is 

who met such a board and was required to submit his retirement pap

before he reached his “high year of tenure”; the point at which he m

retire by operation of law.

62. US Code, title 10, sec. 688(d)(2).

63. United States v. Sumrall, 211B.

64. “Presentencing Procedure,” R.C.M. 1001(g), 1969 rev.; and 

Pamphlet 27-9, The Judge’s Benchbook, 1996, chap. 2, 64.

65. Ibid.

66. R.C.M. 1003(b).

67. Of course, this discussion is limited to those offenses like the 

discussed in the hypothetical case of Colonel Hardwick; certain ser

offenses require the full range of authorized punishments, notwithsta

ing the rank or position of the accused.

68. R.C.M. 1003(c)(2)(A)(i).

69. R.C.M. 1003(c)(2)(A)(i).

70. R.C.M. 1003(c)(2)(A)(iii).

71. A recent change to the UCMJ took away much of the previ

discretion the sentencing authority had in balancing forfeitures and c

finement. “UCMJ Article 58b; Sentences: Forfeiture of Pay 

Allowances During Confinement,” US Code, title 10, sec. 858b, 1

Previously, confinement and forfeiture were totally separate punishme

and neither included the other (except that forfeitures without conf

ment were limited to two-thirds of base pay). Therefore, it was possible 

a member to be confined for several years but not be required to fo

pay. This would typically be the case where the sentencing authority 

seeking to punish the accused but leave his family financially solvent

some cases, convening authorities conditioned clemency or pretrial ag

ments on the accused establishing an allotment for his pay to go to 

family. The new changes to the UCMJ eliminate this flexibility, and 

provide that an accused who is sentenced to more than six mon

confinement, or any confinement coupled with a punitive discharge, a

matically forfeits his pay within two weeks of the announcemen

sentence. “UCMJ Article 57a, Deferment of Sentences,” US Code, title 

sec. 857a, 1997. In cases of severe financial hardship, the conven

authority is permitted to authorize pay and allowances to be paid to 

accused family, but such payments cannot exceed six months. “UC

Article 58b,” US Code, title 10, sec. 858b.

72. R.C.M. 1003(b)(3). See also discussion associated with that pr

sion.
73. If Colonel Hardwick is 45 years old and is expected to live to 

75, he will receive 360 monthly retirement payments. If his mon

retirement pay is $3,000, he will receive $1,080,000.00. Note that 

though this calculation does not take into account the effects of infla

(discounted net present value), it also does not take into account the 

of living allowance (COLA) retirees receive. The closer the COLA matc

the inflation rate, the more accurate my calculation is. Exact figure

the value of retirement pay are not important; the point is that it 

significant amount of money.

74. See the discussion to R.C.M. 1003(b)(3): “A fine is not norm

adjudged unless the member was unjustly enriched.” Cases where 

PD&R discharge would be most likely to be considered are cases wh

the accused was not unjustly enriched by misconduct.

75. The UCMJ permits the sentencing authority to impose contin

confinement along with a fine. See R.C.M. 1003(b)(3). In other wo

Colonel Hardwick could be fined $90,000, and if the fine is not paid

could be imprisoned for a period not to exceed the maximum confinem

authorized for the offense. However, such confinement is not autom

First, such contingent confinement may not be imposed where the 

judged sentence did not include confinement or where the confinem

portion of the sentence has already been completed. See cases colle

at Schlueter, sec. 16-3(E), and “Execution of Sentences,” R.C

1113(d)(3), in M.C.M., states that “confinement may not be executed 

failure to pay a fine if the accused demonstrates that the accused 

made good faith efforts to pay but cannot because of indigency, un

the authority considering imposition of confinement determines, a

giving the accused notice and opportunity to be heard, that there is 

other punishment adequate to meet the government’s interest in 

quate punishment.” Of course, such imposition of punishment must 

meet the first condition that the accused receives confinement as 

initial element of the sentence. The procedural rules concerning 

enforcement highlight the real limitations of using fines as an alterna

to confinement.

76. There are some serious limitations to the effectiveness of 

alternative. Sentencing authorities are justifiably concerned about 

“Brer Rabbit” defense “please don’t throw me in the briar patch.” In 

defense wrongdoers specifically request heavy fines in lieu of a pun

discharge, knowing that they will be unable to pay the fines and will l

attempt to discharge them in bankruptcy, thus avoiding both pun

discharge and fines. Additionally, arguing for a fine in lieu of pun

discharge usually reduces the entire sentencing exercise to a finan

exercise, largely ignoring the principles of sentencing, and creating 

appearance of the accused trying to “buy off ” punishment. For obv

reasons, this strategy is not often pursued.

77. See generally M.C.M., appendix 12, Maximum Punishment Ta

1995. Note that all UCMJ offenses carry confinement as an author

punishment, ranging from a low of one-month (e.g., simple disor

short absent without leave [AWOL]) to mandatory life, “UCMJ Ar

118(1), Murder,” US Code, title 43, sec. 118, 1995.
78. Wade & LaFave, Criminal Law, 2d ed., 1986, sec. 1.5(a)(2). “If 

criminal is imprisoned, he cannot commit further crimes against socie

79. “Maximum Punishment Chart,” in M.C.M., appendix 12, A12-1

80. R.C.M. 1003(b)(1), reprimand and “Sentence Determinati

R.C.M. 1002, in M.C.M., no punishment.

81. “Review by a Court of Criminal Appeals,” R.C.M. 1203, in M.

Usually, sentences of no punishment are reserved for situations when 

accused sentence is overturned on appeal and the appellate court or

a rehearing on sentencing. Recall that the courts of criminal appeal h

the authority to reassess sentence or order a rehearing on sentence. If 

convening authority determines that a rehearing on sentence is impra

cable, he or she can avoid the rehearing and approve a sentence to 

punishment.

82. R.C.M. 1003(b)(9)(A), dismissal; R.C.M. 1003(b)(9)(B), disho

able discharge; and R.C.M. 1003(b)(9)(C), bad conduct discharge.

83. R.C.M. 1003(b)(9)(A), in M.C.M., R.C.M. 1003(b)(9)(B), in M.C

and R.C.M. 1003(b)(9)(C), in M.C.M. Note that the only discharge ca

and officers may receive is a dismissal; the only discharge warrant 

cers may receive is a dishonorable discharge.

84. DA Pam. 27-9, chap. 2, 70. “A dishonorable discharge should 

reserved for those who, in the opinion of the court, should be separa

under conditions of dishonor after conviction of serious offenses of a 

or military nature warranting such severe punishment. A bad cond

discharge is a severe punishment and may be adjudged for one wh

the discretion of the court warrants severe punishment for bad cond

even though such bad conduct may not include the commission of s

ous offenses of a military or civil nature.”

85. “UCMJ Article 19, Jurisdiction of Special Courts-Martial (SPC

US Code, title 10, sec. 819, 1996; and “UCMJ Article 16, Courts-Ma

Classified,” title 10, sec. 816(2)(A), 1996. Note that in the case of 

enlisted member at a SPCM, as few as two members could termin

entitlement to retirement pay.

86. R.C.M. 1003(b)(9), in M.C.M. A court-martial may not adjudg

administrative separation from the service. Punitive discharges are 

charges which constitute punishment, whereas administrative discha

are not designed to punish a member. Administrative discharges 

usually characterized (entry-level separations for individuals with 

than 180 days in service are not characterized), and the type of cha

terization (honorable, general under honorable conditions, and un

other than honorable conditions) may have certain collateral co

quences to the member receiving them. See AFI 36-3208, Administra

Separation of Airmen, October 1994, par. 1.18, for more information 

administrative discharge characterization.

87. United States v. Queisinberry, 12 USCMA 609, 31 CMR 195, 

1962; and United States v. Griffen, 25 M.J. 423 (CMA), cert. denied 

U.S. 1206, 108 S.Ct. 2849, 101 L.ed.2d 886, 1988.

88. Ibid.

89. Ibid.
90. United States v. Henderson, 29 M.J. 221 (CMA) 1989; Un

States v. Sumrall, 207; United States v. Greaves, 46 M.J. 133, 1997; 

United States v. Becker, 46 M.J. 141, 1997.

91. United States v. Henderson, 221.

92. United States v. Greaves, 133; United States v. Becker, 141; 

United States v. Hall, 46 M.J. 145 (1997).

93. Ibid.

94. United States v. Greaves, 139, note 1.

95. “Preamble,” in M.C.M., pt. 1, par. 3. The preamble to the Ma

for Courts-Martial states that “the purpose of military law is to prom

justice, to assist in maintaining good order and discipline in the arm

forces, to promote efficiency and effectiveness in the military es

lishment, and thereby to strengthen the national security of the Un

States.”

96. Capt Charles E. Lance, “A Criminal Punitive Discharge—An E

tive Punishment?” Army Military Law Review, July 1978, V-79, 1 and 

97. “Certain Bars to Benefits,” US Code, title 38, sec. 5303, 1995

part of the statutory implementation process for the PD&R, a defini

for the PD&R will have to be added to this statute defining the PD&R 

punitive discharge with the same effects on benefits as any other pun

discharge.

98. The sentencing instruction refers to the “ineradicable stigma” 

sociated with a punitive discharge. DA Pam. 27-9, 1996, chap. 2, 69.

99. Wade & LaFave, 1986, sec. 1.5(a)(6). “It is only fitting and 

that one who has caused harm to others should himself suffer fo

Additionally, retributive punishment is needed to maintain respect for 

law and to suppress acts of private vengeance.”

100. Ibid.

101. Of course, this is nothing new, and the possibility of inappro

ate punishments exists under today’s system.

102. Compare this to the language in AFI 51-202, par. 5.4.2, 

imposing the Article 15 punishment of both an unsuspended reductio

rank and forfeitures: “While not prohibited by law, commanders sho

impose an unsuspended reduction in grade, along with forfeiture of 

only when the maximum exercise of Article 15 authority is warran

(e.g., repeat offender, most serious offenses, past rehabilitative efforts

recalcitrant offender).”

103. “Men are not hanged for stealing horses, but that horses 

not be stolen.” —George Savile, Marquis of Halifax, “Of Punishment

Political Thoughts and Reflections.

104. DA Pam. 27-9, 1996, chap. 2, 64; and Wade & LaFave, 19

sec. 1.5(a)(4). The law review literature is very skeptical of the notio

general deterrence.

105. AFI 36-2501, Officer Promotions and Selective Continuation, J

1998, chap. 5, discusses the procedures for removing an officer or 

listed member from a promotion list (commonly called red lining).

106. Christoph Hinckeldey, Criminal Justice through the Ages (Fed

Republic of Germany: Mittelalteriches Kriminalmuseum, 1981), 99–

Is this true? Consider medieval times where virtually all felony cri

were punished by death, and trivial offenses resulted in extremely se
punishment. None of these harsh punishments were particularly effec

in reducing lawlessness.

107. Wade & LaFave, 1986, sec. 1.5(a)(4).

108. In other words, the possibility of members losing retirement 

may have a chilling effect on commanders’ recommendations. Comma

ers may recommend nonjudicial punishment where they might otherw

have given stronger consideration to a court-martial.

109. DA Pam. 27-9, 1996, chap. 2, 64.

110. Consider the public debate surrounding the cases of 1st Lt K

Flinn, Sgt Maj Eugene McKinney, and others recently in the news.

111. R.C.M. 1003(c)(2)(A), in M.C.M.

112. DA Pam. 27-9, chap. 2, 71–72; and United States v. Wheeler

C.M.A. 274, 38 C.M.R., 1967, 72 (Wheeler Factors).

113. AFI 36-3208, par. 6.35, requires lengthy service review for m

bers who have been in the service for 16 years or longer. There is 

similar provision for officers, because all officer discharges go to 

secretary for action, whereas many enlisted discharges can normally 

executed at much lower levels.

114. While the perceived inequities of punishment between se

members and junior members have been often criticized, much of 

criticism is misplaced. Critics look to the differences in the natur

punishment (junior members receiving Article 15s or confinement; se

members receiving reprimands or fines), but miss the real point: whe

the effect of the punishments is equivalent. A reprimand to an office

frequently more severe than an Article 15 to an enlisted member, an

fine imposed on a member with significant assets can be more ha

than confinement imposed on an individual with no means. By consi

ing the effects of the punishment, and not the mere nature of 

punishment, one can better judge the actual justice of the system.

115. For example, there is a time-honored yet informal conventio

the military that “rank has its privileges.”

116. Is the lieutenant colonel’s rank a matter in aggravation?

117. “Violent Crimes in Aid of Racketeering Activity,” US Code, 

18, sec. 1959, 1997.

118. AFI 36-3024, Transitional Compensation for Abused Depende

February 1998. Transitional compensation applies only when the mili

members are separated from the military for dependent abuse. Payme

equal to the amount the spouse would receive under Dependent Ind

nity Compensation (DIC) ($769.00 per month for spouse and $200 

child per month), are paid for the lesser of 36 months or the memb

remaining enlistment, but in all cases for not less than 12 mon

Payments cease if the spouse either remarries or cohabits with the m

ber.

119. The convening authority could suspend or mitigate element

the sentence contingent upon the accused establishing an allotmen

his or her family of a certain amount of money. To the extent that 

amount of the allotment exceeded the amount available under the Tra

tional Compensation Statute, the family would be better off.

120. The requirement that the spouse receiving payments not coh

with the military member either assumes or encourages a divorce.
121. In other words, a divorce settlement could give the spous

property entitlement in the member’s retirement pay, which could 

subject to division. If the retirement is divided in the divorce, the spo

could collect the retirement pay until the member died, or if the mem

elected the Survivor’s Benefit Plan, then the spouse would collect a 

tion of the retirement pay for life. Either of these alternatives wo

probably result in the spouse receiving more money than is curre

provided for by the victim-witness statutes.

122. There may be little sympathy for a family that remains with 

accused after he victimized one or more family members. However, it d

happen, and the financial impact, even with the transitional compen

tion benefit, often results in the family being twice victimized.

123. AFI 36-3024 applies only when the family is a direct victim of 

accused’s misconduct.

124. For example, aid to families with dependent children, 

stamps, and others.

125. Army, US Code, title 10, sec. 3911 and US Code, title 10, 

3914; Navy UCMJ, US Code, title 10, sec. 6323 and US Code, title 10, 

6330; Air Force UCMJ, US Code, title 10, sec. 8911 and US Code, title 

sec. 8914.

126. AFI 36-3203, chaps. 2 and 3 (but see table 3.1—retirem

short of 40 years are discretionary).

127. Ibid.; Army, US Code, title 10, sec. 3911 and US Code, title 

sec. 3914.

128. AFI 36-3203, table 2.2, rule 17.

129. “Certain Bars to Benefits,” US Code, title 38, sec. 5303, 1

“Definitions,” US Code, title 38, sec. 101(2), 1997; and “Characte

Discharge,” Code of Federal Regulations (C.F.R.), title 38, 

3.12(a)(d)(iii), 1997.

130. 38 C.F.R. 3.12(a).

131. 38 C.F.R. 3.12(b).

132. See 38 C.F.R. 3.12 and DA Pam. 27-9, chap. 2, 70.

133. Unlike enlisted members who are discharged at the end of t

enlistment (notwithstanding their simultaneous reenlistment, or e

when they reenlist before an enlistment ends), officers are not dischar

during their term of service. Consequently, officers do not obtain a 

charge characterization until they leave service (except of course 

officers with prior enlisted service).

134. To maintain consistency in the administration of benefits, 

PD&R discharge ought to be characterized as either a “bad conduct 

charge with retirement pay” or “dishonorable discharge with retirem

pay” for enlisted personnel, and as a “dismissal with retirement pay” 

officers. This will enable government agencies to continue to equate 

dishonorable discharge with the dismissal for determining eligibility 

benefits, and also to continue the current distinction between a 

conduct discharge adjudged at a SPCM and one adjudged at a GCM 

determining benefits for certain enlisted members.

135. “Disposition on Discharge,” US Code, title 10, sec. 771a, 1

“Funeral Expenses,” US Code, title 38, sec. 2302(a), 1997; “Persons E

ble for Interment in National Cemeteries,” US Code, title 38, sec. 2
1997; “Deaths Entitling Survivors to Dependency and Indemnity C

pensation,” US Code, title 38, sec. 1310(b), 1997; “Basic Entitlement,

Code, title 38, sec. 3702(c), 1997; “Veteran; Disabled Veteran; Prefere

Eligible,” US Code, title 5, sec. 2108(1), 1996. The list of benefits can 

on almost forever. A brief sampling: Right to wear military uniform; G

ernment funeral expense benefits; Burial in a National Cemet

Dependent and Indemnity Compensation; VA Home Loans; and C

Service Preference.

136. “UCMJ Article 2(a)(4), Persons Subject to this Chapter,” 

Code, title 10, sec. 802(a)(4), 1996.

137. “Retired Members,” US Code, title 10, sec. 688, 1996.

138. The reality is that we are dealing with a very small populatio

individuals. Air Force statistics for the past three years are as follows:

1997: 5 retirement-eligible officers court-martialed, 2 received p

tive discharges; 18 retirement-eligible enlisted members court-martia

6 received punitive discharges.

1996: 9 retirement-eligible officers court-martialed, 4 received p

tive discharges; 25 retirement-eligible enlisted members court-martia

11 received punitive discharges.

1995: 6 retirement-eligible officers court-martialed, 2 received p

tive discharges; 28 retirement-eligible enlisted members court-martia

11 received punitive discharges.

According to these statistics from the Air Force’s military justice d

base, less than 20 retirement-eligible members are punitively discha

each year. However, the small numbers of retirement-eligible pers

affected by punitive discharges does not trivialize the issue; fairness 

justice are not measured in the aggregate, but one case at a time.

139. United States v. Hooper, 9 USCMA 637, 26 CMR 417 (19

Hooper was a rear admiral who had been retired for nine years when 

was recalled to active duty and court-martialed for homosexual acts

was tried and sentenced to a dismissal, forfeiting his retirement pay. 

companion case, Hooper v. United States, 326 F.2d 982 US Cour

Claims (1964), established the proposition that a retired member wh

punitively discharged from the service forfeits his retirement pay.
Bibliography

Reported Decisions

Supreme Court Cases

Taylor v. United States, 105 US 244, 26 L.ed. 985 (1882

McCarty v. McCarty, 453 US 210, 69 L.ed. 2d 589, 1

S.Ct. 2728 (1981).

Barker v. Kansas, 112 S.Ct. 1619 (1992).

Federal Cases

Hooper v. United States, 326 F.2d 982, U.S. Ct. of Clai

(1964).

Costello v. United States, 587 F.2d 424 9th Cir (1978).

Military Cases

United States v. Hooper, 9 USCMA 637, 26 Courts of M

tary Review (CMR) 417 (1958).

United States v. Queisinberry, 12 USCMA 609, 31 C

195, 198 (1962).

United States v. Wheeler, 17 Court of Military Appeals (CM

274, 38 CMR 72 (1967).

United States v. Griffen, 25 Military Justice (MJ) 423 CM

cert. denied 487 US 1206, 108 S.Ct. 2849, 1

L.ed.2d 886 (1988).

United States v. Henderson, 29 MJ 221 CMA (1989).

United States v. Sumrall, 45 MJ 207 (1996).

United States v. Greaves, 46 MJ 133 (1997).

United States v. Becker, 46 MJ 141 (1997).

United States v. Hall, 46 MJ 145 (1997).

Federal Statutes

Veteran; Disabled Veteran; Preference Eligible, US Co

title 5, sec. 2108 (1996).

Conviction of Certain Offenses, US Code, title 5, sec. 83

(1996).

Retired Members, US Code, title 10, sec. 688 (1996).

Disposition on Discharge, US Code, title 10, sec. 77

(1996).

Dependents of Members Separated for Dependent Abuse: Tr

sitional Compensation; Commissary and Exchange Be

fits, US Code, title 10, sec. 1059 (1997).

41
Commissioned Officers: General Rule, Exceptions, US Co

title 10, sec. 1370 (1997).

Payment of Retired or Retainer Pay in Compliance with Co

Orders, US Code, title 10, sec. 1408 (1997).

Twenty Years or More: Regular or Reserve Commission

Officers, US Code, title 10, sec. 3911 (1997).

Twenty to Thirty Years: Enlisted Members, US Code, t

10, sec. 3914 (1997).

Officers: Twenty Years, US Code, title 10, sec. 6323 (199

Twenty to Thirty Years, Enlisted Members: Transfer to Fl

Reserve and Fleet, US Code, title 10, sec. 6330 (199

Twenty Years or More: Regular or Reserve Commission

Officers, US Code, title 10, sec. 8911 (1997).

Twenty to Thirty Years: Enlisted Members, US Code, t

10, sec. 8914 (1997).

Retirement Savings, US Code, title 26, sec. 219 (1997).

Court of Appeals for the Armed Forces; Certiorari, US Co

title 28, sec. 1259 (1997).

Definitions, US Code, title 38, sec. 101 (1997).

Deaths Entitling Survivors to Dependency and Indemn

Compensation, US Code, title 38, sec. 1310 (1997).

Funeral Expenses, US Code, title 38, sec. 2302 (1997).

Persons Eligible for Interment in National Cemeteries, 

Code, title 38, sec. 2402 (1997).

Basic Entitlement, US Code, title 38, sec. 3702 (1997).

Certain Bars to Benefits, US Code, title 38, sec. 5303 (199

Violent Crimes in Aid of Racketeering Activity, US Code , t

18, sec. 1959 (1997).

Manual for Courts-Martial

Preamble, pt. I, I-1, in M.C.M., 1995 ed. (Washington, D

Government Printing Office [GPO], 1995).

Nonjudicial Punishment Procedure, pt. V, V-1, in M.C

(Washington, D.C.: GPO, 1995).

Maximum Punishment Table, app. 12, A12-1, in M.C

(Washington, D.C.: GPO, 1995).

Uniform Code of Military Justice

UCMJ Article 2, Persons Subject to this Chapter, US Co

title 10, sec. 802 (1996).

UCMJ Article 15, Commanding Officer’s Nonjudicial Puni

ment, US Code, title 10, sec. 815 (1996).

42
UCMJ Article 16, Courts-Martial Classified, US Code, t

10, sec. 816 (1996).

UCMJ Article 19, Jurisdiction of Special Courts-Martial, 

Code, title 10 sec. 819 (1996).

UCMJ Article 22, Who May Convene General Courts-Mart

US Code, title 10, sec. 822 (1996).

UCMJ Article 23, Who May Convene Special Courts-Mart

US Code, title 10, sec. 823 (1996).

UCMJ Article 24, Who May Convene Summary Courts-M

tial, US Code, title 10, sec. 824 (1996).

UCMJ Article 30, Charges and Specifications, US Code, t

10, sec. 830 (1997).

UCMJ Article 32, Investigation, US Code, title 10, sec. 8

(1997).

UCMJ Article 56, Maximum Limits, US Code, title 10, s

856 (1997).

UCMJ Article 57a, Deferment of Sentences, US Code, t

10, sec. 857a (1997).

UCMJ Article 58b, Sentences: Forfeiture of Pay and Allowan

During Confinement, US Code, title 10, sec. 858b (199

UCMJ Article 60, Action by the Convening Authority, 

Code, title 10, sec. 860 (1997).

UCMJ Article 66, Review by Court of Criminal Appeals, 

Code, title 10, sec. 866 (1997).

UCMJ Article 67a, Review by the Supreme Court, US Co

title 10, sec. 867a (1997).

UCMJ Article 71, Execution of Sentence; Suspension of S

tence, US Code, title 10, sec. 871 (1997).

UCMJ Article 118, Murder, US Code, title 43, sec. 118 (1995).

Rules for Court-Martial

Initial Disposition, R.C.M. 306(b), in M.C.M. (Washingt

D.C.: GPO, 1995), A21-20.

Preferral of Charges, R.C.M. 307, in M.C.M. (Washingt

D.C.: GPO, 1995), A21-21.

Pretrial Investigation, R.C.M. 405, in M.C.M. (Washingt

D.C.: GPO, 1995), A21-23.

Pretrial Agreements, R.C.M. 705, in M.C.M. (Washingt

D.C.: GPO, 1995), A21-38.

Presentencing Procedure, R.C.M. 1001, in M.C.M. (Wa

ington, D.C.: GPO, 1995), A21-67.

43
Sentence Determination, R.C.M. 1002, in M.C.M. (Washi

ton, D.C.: GPO, 1995), A21-68.

Punishments, R.C.M. 1003, in M.C.M. (Washington, D

GPO, 1995), A21-68.

Matters Submitted by the Accused, R.C.M. 1105, in M.C

(Washington, D.C.: GPO, 1995), A21-79.

Action by the Convening Authority, R.C.M. 1107, in M.C

(Washington, D.C.: GPO, 1995), A21-81.

Execution of Sentences, R.C.M. 1113, in M.C.M. (Washi

ton, D.C.: GPO, 1995), A21-84.

Review by a Court of Criminal Appeals, R.C.M. 1203

M.C.M. (Washington, D.C.: GPO, 1995), A21-87.

Regulations

Federal Regulations

Character of Discharge, Code of Federal Regulations (C.F.

title 38, sec. 3.12 (1997).

Air Force Instructions

AFI 36-2501, Officer Promotions and Selective Continuat

March 1998.

AFI 36-2608, Military Personnel Records System, July 199

AFI 36-2907, Unfavorable Information Files (UIF) Progra

May 1997.

AFI 36-3024, Transitional Compensation for Abused 

pendents, February 1998.

AFI 36-3203, Service Retirements, August 1994.

AFI 36-3207, Separating Commissioned Officers, May 199

AFI 36-3208, Administrative Separation of Airmen, Octo

1994.

AFI 51-201, Administration of Military Justice, October 1997

AFI 51-202, Nonjudicial Punishment, October 1996.

Army Publications

DA Pamphlet 27-9, The Judge’s Benchbook, 1996, chap

64.

Lance, Capt Charles E. “A Criminal Punitive Discharge—

Effective Punishment?” Army Military Law Review, 

79 (July 1978).

44
General Publications

Hinckeldey, Christoph. Criminal Justice through the A

(Federal Republic of Germany: Mittelalteriches Kri

nalmuseum, 1981), 99–173.

Schlueter, David A. The Military Criminal Justice, Prac

and Procedure, 4th ed. (Charlottesville, Va.: Mich

1996), sec.1–8, 40.

Wade & LaFave, Criminal Law, 2d ed., 1986, sec. 1.5(a)(

45