In United States v. Vance, ACCA 2018, the addressed RFGOS after changes to UCMJ but without any AR changes. It’s a little complicated so read the opinion.
Today we consider what happens when, in violation of Article 60, Uniform Code of Military Justice (UCMJ), the convening authority sets aside the findings and sentence in a case. Notably, because Army regulations were not updated to reflect a Congressional amendment to Article 60, UCMJ, the convening authority’s action was in compliance with Army regulations. The convening authority’s action was also specifically directed by the Deputy Assistant Secretary of the Army (Review Boards).
The relevant facts.
On 10 October 2017, Captain (CPT) Elmo E. Vance submitted a resignation for the good of the service in lieu of court-martial (RFGOS). On 26 October 2017, the convening authority forwarded the RFGOS to the Commander, Army Human Resources Command.
On 17 November 2017, CPT Vance submitted an offer to plead guilty to the convening authority. The offer was accepted on 22 December 2017.
On 17 January 2018, CPT Vance pleaded guilty to ten specifications of wrongfully using his government travel card to obtain cash advances, being absent from his unit, and taking convalescent leave for a surgery that did not occur.
The court-martial sentenced CPT Vance to a dismissal and forfeiture of $1,000 per month for three months. About three months later, on 20 March 2018, the Deputy Assistant Secretary of the Army (Review Boards) (hereinafter “the Secretary’s designee”) accepted CPT Vance’s RFGOS. The Secretary’s designee issued a directive that CPT Vance be administratively discharged with an Under Other Than Honorable Conditions characterization of service and, as to the court-martial, “both findings and sentence, if any, be vacated.”
The ACCA found the set aside void ab initio based on congressionally mandated changes to Article 60 and ordered a new SJAR and CA action.
It now appears the regulation, AR 600-8-24, has been amended–or so I am told.
3–9. Resignation for the good of the Service in lieu of general court-martial
a. An officer may submit an RFGOS in lieu of GCM under the following circumstances:
(1) Court-martial charges have been preferred against the officer with a view toward trial by GCM and until action by the convening authority on the findings and sentence in a case where the officer has been convicted.
(2) When the convening authority in taking initial action on a sentence from a court-martial suspends an adjudged dismissal, the officer may submit a RFGOS during the period of suspension of the dismissal.
(3) A decision by the DASA (RB) or higher authority to disapprove a RFGOS does not preclude the officer from submitting a subsequent RFGOS at any time prior to the initial action by the convening authority on a case or, in case of an approved but suspended sentence, to a dismissal during the period of suspension.
b. The tender of a RFGOS does not preclude or suspend procedures. A convening authority will not, however, take action on the findings and sentence in such cases until SECARMY or designee has acted on the RFGOS.
e. A RFGOS will be expeditiously forwarded by the commander exercising GCM jurisdiction direct to HRC (AHRC–OPD–A), as outlined in paragraph 3–4. Court-martial proceedings may be continued until action by the convening authority on the findings and sentence of the court. A convening authority will not take action in a case until SECARMY or delegate acts on the RFGOS. In the event trial is held prior to the time notification of action is taken on the RFGOS, the convening authority will immediately transmit to HRC (AHRC–OPD–A) the result of the trial, including sentence adjudged.