Discharge and Dismissal as Punishment in the Armed Forces

• Author: By Captain Richard J. Bednar
• Pages: 01

I. INTRODUCTIOS

This article is concerned with two rather narrow facets of a rather braad subject. It involves an examination of one farm of punishment (viz, punitive separation from the armed forces) first as a concept, and particularly from the view of the imprints made by its employment, and second from the standpoint of the effect certain United States Court of Military Appeals decisions have had and may be expected to have on the use and usefulness of punitive separation as punishment. Accordingly, there is B blending of a conceptual approach with practical considerations. Essentially, this work, with respect to the subject concerned, involves an analy-sis of where we are, where we seem to be going and whether we aught to continue in that direction or take another tack. Is punitive separation as a form of punishment in the military sound conceptually? Is it an effective form of punishment? These are the two prime questions to be answered.

To further set the scene, it may be well to mention briefly some of the matters with which this article is not concerned. Except insofar as is related to the problem of what various forms a punitive separation may take, it is not within the scope of this work to consider "administrative" separations from service. Within this category are discharges resulting from action other than judicial, e.&. discharges for alcoholism, inaptitude, shirking of duties and aexual perversion. While it cannot be denied that there are penal aspects attached to certain administrative discharges, they are obviously beyond the scope here because they result from action of a non-criminal forum.

Treatment of the subject in this article does not extend to a can. sideration of the several means by which a punitive discharge may be changed in farm, mitigated or expunged after execution. Hence,

* Thi. article was adapted from B thesis preaented to The Judge Advocate General's School, U.S. Army, Chariattesv>lle, Virginia. whlle the author WBI B member of the Ninth Career Course. The opinions and conciwions presented herein m e thoae of the author and do not necennsrily represznt the wew of The Judge Advocate General's School OF any other governmental agency

** JAGC, U.S. Army: Military ARaira Dwiaan, Office of the Judge Ad. vocnte General of the Army, Waimgton. D.C.;

LLB., 1954, Creightan University School of Law, Member of the Nebraska Bar*oo ,1708 1

JlILITARY LAW REVIEW

there is no discussion of what authority the civilian courts may have in this area or ahat relief may be granted petitioner by the Army Discharge Review Board or Army Board for Correction of Military Records (or similar boards of the sister services). Similarly. rt is beyond the acope here to consider the authoritr of the service secretaries to substitute an administrative farm of discharge for an executed punitive discharge or dismissal pursuant to .Article 74 (b), Uniform Code of Military Justice.

Finally, this article is not concerned with parole and clemency as such. While It is generally difficult to exclude consideration of problems of parole. clemency, and rehabilitation of criminais from the general subject of punishments, the narrow aspect8 of the one kind of punishment with which this work is concerned permit auch exclusion without affecting completeness.

11. WHAT IS THE SATURE OF THIS PL'SISHhIEST

"To be dishonorably discharged from the service." It is well known to the practitioner and critic of military law that these words,' when uttered by the president of a general court-martial in pronouncing sentence on an aecured, Set in mo:ion a series of mandatory reviews of that sentence within our system of military Justice and, depending on the outcome of such reviews, may signify loss of important benefits and rights far the offender to whom they are spoken.$ It 1s also common knowledge that such sentence, when approved and executed, puts an end to the military service of the individual concerned. But these most obvious consequences of a punitive discharge are hardly complete explanations of the fundamental nature of such punishment.

During the hearings on a bill which was later to form the basis of the Uniform Code of Military Justice,3 the widespread concern aver the seriousness ai the punitive discharge was quite evident.' Today, it is generally agreed that in most cases the punitive dls-charge is the most severe of several usual sentence elements. What is this thin=? How does it nunish? Why is it considered a grave

1. A BROAD FOCrS O S THE AREA

   -~

   1 As ~ 1 1 1 be demonstrated later, the consequences af two ather ieeagnlzed

   forms of punitive separation, 1 a,, "dinmlnaal" and "bsd-eonduct dlscharpe" are clordy parallel vith those of the dishonorable dmcharge

   2 For B ~ummar) of these benefits and nghts and the effects thereon by P B T ~ D U ~ discharger. see the Appendix. For another recent campllatlon of statutes treating incidents of pumtwe dmcharge from the aerrlce, me Broan, The EBects of the PimiLzw Dischaiga, The JAG Journal, Sanusry-February, 1961 at p. 13

   8 Am of 5 May 1950. 64 Stat. 108, eodlfied into pmitrve law. 10 U S C ( 3 801-940 (1958) (hereinafter referred to as the Code or UCMJ and cited as UCDIJ, BIZ ----l

   4 See. e.0.. Hearings on H.R. 2498 Befais fhr Horae Aimed Services Cona-mdfer. 81st Cong.. 1sL Seas 631, 691, 697, 839 (19491

   2 *oo U-YB

   DISCHARGE AND DISMISSAL

   punishment? These are some of the questions which may be answered by examining the fundamental nature of discharge and dismissal as punishment.

   To the military practitioner, the red-bound book

   which invariably is found an or very near his desk is often the best place to begin inquiry into a particular problem in military justice. In this instance, the Manual for Courts-Martial is not too much help. From it we can learn that B dishonorable discharge "should be reserved far those who should be separated under conditions of dishonor, after having been convicted of. . , felonies, or of offensen of a military nature requiring severe punishment."r We can also discover from a reading of the Manual that a bad-conduct discharge e is ''lesa severe" than a dishonorable discharge and "is designed as a punishment far bad conduct rather than a punishment for serious offenses."@ While the Manual does not define a "dismissal,"'o the term is often compared to the other farms of punitive separation authorized for enlisted men, and, by inference, is eQuated to a dishonorable discharge." Accordingly, in order to gain a fuller understanding of this punishment, it is necessary to look into the basis and authority for punitive discharge and dismissal, ana-bze certain canes and opinions of writers in the field, examine and compare its several farms, and scrutinize the consequences of such punishment.

2. FEDERAL COSSTITCTIOIV AND STATL'TES Most studies in the science of military law may logically trace R

   theme from the Constitution af the United States. A consideration of punitive separations from the Armed Forces is no exception to

   6 U.S. Dop't of Defense, Manual for Courts-Martial. United States, 1951 (hereinafter referred to m this article ai the Manual 01 MCM. 1951, and cited 88 HCY,

   1951, para.0 Enlisted men may be punished by a dishonorable discharge only for certain denies m violation of the Code. MCM, 1951. para 1270.

   7 MCM, 1951, para. 160(6).8 The lmparltion af a bad-conduct discharge la restricted to enlisted men:its use to effect the punitive separation of offieerr OT warrant offieern from the service is without statutory aanetian and neither avthormd by regulations nor permitted by custom of the sernee. CM 396001, Morlan, 24 CMR 390

   /,Pi.il j."".,.

   9MCM. 1951,pria. 76a(l).10 An officer may be punished by dlnmisnai and a warrant officer may be punished by dinhonorable discharge for 8" offense m vioistm of the Code PCDI. 1961. para. 126d. United Stares V. Bell, 8 USCMA 193, 24 CMR 3 (1857). Dlimisssi is equivalent to dishonorable discharge. CM 368421, BalImger, 13 CXR 465 (1953). AJ an ''inchoate offieer." dismissal IS the only aPDropriate mesnr of punitively separating a cadet from the ~erwee. United States Y. Eilman, 9 USCMA 549, 26 CMR 328 (1958). Unlike a dishonorable or bad-conduct discharge, no eerlficate ia h u e d in the dmmsal of an officer.

   Innofar 88 meidents of discharge are concerned. a dmnmai 18 equ~rslant to B dishonorable dmharge (see the Appendix)*GO 48708 3

   this general rule. As will be established later, the history of our military law is much alder than the Constitution; however, the basic source of authority for courts-martial ta impose punishment is found in that document.-% Pursuant to its authority under the Constitution, Congress has. from time to time, enacted legislation limiting the kind and amount of and prescribing the procedure for imposition of court-martial punishment.

   On May 5, 1950. Congress enacted the current comprehensive statute covering the administration of military justice, of which punishment is but a small part. Generally speaking, the punishments which may be inflicted under the Code are not expressed in certain terms ;I4 however, forbidden punishments are specifically listed.'s Most "punitrve" articles 18 of the Code, after defining the particular offense, declare that the punishment shall be "as a court-martial may direct." However, Article 56 provides that what-ever punishment a court-martial shall impose for an offense "shall not exceed such limits as the President may prescribe for that offense." Pursuant to this authority, the President has established a Table of >faximum Punishments.'. which attempts to list the ceiling price for every transgression cognizable as a crime by courts-martial. It is in this table that we find authorized, far cer-tain offenses, punitive separation from the service. Not long after its enactment, the United States Court of Military Appeals held that the power given by the Code to the Chief Executive is not an illegal delegation by Congress of legmlative authority.1s

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