Punitive Discharge With Retirement Pay: Windfall for Accuseds or Justice for All

When a retirement-eligible military member is court-martialed for any offense and is punitively discharged operation of law he forfeits his retirement pay an amount sometimes over a million dollars. This forfeiture of retirement pay is a collateral consequence of receiving a punitive discharge it is not a specific punishment imposed by the court-martial sentencing authority, or by the convening authority who approved the court-martials action. In some cases the loss of retirement pay is appropriate and reasonable in other cases it is harsh and inappropriately severe. It is my thesis that the court-martial members and the convening authority, and not the operation of law, should deprive a member of his retirement pay. This paper explores the implications of a new punishment termed a Punitive Discharge with Retirement Pay, or PDR for short. The PDR would be a new punishment authorized at the trial of a retirement eligible military member. The court members would be instructed that if they sentence the accused to a PDR he would be punitively discharged from service with the loss of all military benefits except retirement pay. The members would also be instructed that they are free to adjudge a traditional punitive discharge that carries with it the loss of retirement pay. Thus, the sentence adjudged would directly take into account whether the accused should be required to forfeit his retirement pay as an aspect of the punishment, rather than leaving the determination to the collateral operation of law. It is my contention that the adoption of the PDR as a punishment option would be consistent with the maintenance and preservation of good order and discipline in the armed forces, as well as serve the ends of justice.