1. The language of the correction board statute was broad and unqualified. It stated that the secretary of a military department could correct any military record of the secretary’s department when the secretary considered it necessary to correct an error or remove an injustice. The secretary of a military department was obligated not only to properly determine the nature of any error or injustice, but also to take such corrective action as would appropriately and fully erase such error or compensate such injustice.
2. The case of a soldier charged with an offense under the 10 USC § 836 or who was under investigation for an offense chargeable under the 10 USC § 836 which could result in dismissal or punitive discharge, could not be referred for, or continued, disability processing unless—
   

    (a) The investigation ended without charges.

   (b) The officer exercising proper court-martial jurisdiction dismissed the charges.

   (c) The officer exercising proper court-martial jurisdiction referred the charge for trial to a court-martial that could not adjudge such a sentence.

3. The Court of Federal Claims held that because the appellant was not charged by or undergoing a court-martial, and because his punitive discharge—bad conduct discharge—was no longer reflected in his official record, AR 635-40, in effect at the time of his discharge, did not bar him from disability-retirement processing. On the appeal, the government did not challenge the ruling, and that was not erroneous.

4. The Court of Federal Claims erred when it held that, in order to grant the appellant, the relief he sought, the board would have to change his DD214. The DD-214 was titled: Certificate of release or discharge from active duty. A member of an armed force could not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, were ready for delivery to him.

5. DoDI 1336.01, which prescribed procedures for the preparation of DD-214 forms, and which applied to all the military departments, provided that the DD form 214 would provide an accurate and complete summation of active military personnel service and would provide the military services with an authoritative source of personnel information for administrative purposes, and for making enlistment or reenlistment eligibility determinations.

6. The form served as the authoritative source of information required for the administration of state and federal laws applicable to personnel who had been discharged, released, or transferred to a reserve component while on active duty. The instruction further provided that every service member who was being separated should be given a completed DD form 214 describing relevant data regarding the service member’s service and the circumstances of termination.

7. The DD form 214 would be accurately prepared to provide the service member a clear, concise summary of active service with the military services at the time of transfer, release, discharge, or service member change of component or status while on active duty. Paragraph 3(a) of Enclosure 3 of DoDI 1336.01, which dealt with the preparation of DD-214s, emphasized that a DD form 214 was an important record of service that had to be prepared accurately and completely.

8. AR 635-8 (2019), previously AR 635-5 (2000), implemented DoDI 1336.01. AR 635-8 (2019) stated that the DD form 214 was a summary of the soldier’s most recent period of continuous active duty. It provided a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD form 214 was not intended to have any legal effect on termination of a soldier’s service.

9. The court held that 10 USC § 1168(a), DoDI 1336.01, and the cited regulations made it clear that the DD-214 was a record document. Its purpose was to record and reflect the pertinent events of a person’s time in the military department in which he or she served. The DD-214 did not establish those events or bring them into being. Rather, it documented that they had occurred or taken place. A DD-214 form merely reflected the events of the past.

10. That was highlighted by the instruction in 32 CFR § 45.3. and AR 635-8, formerly AR 635-5 (2019), that the DD Form 214 was not intended to have any legal effect on termination of a soldier’s service. Further support for that conclusion could be found in AR 635-8, which explained that a DD-214 was prepared using various source documents, including the service member’s record brief, separation approval documents, if applicable, the separation order, and any other document authorized for filing in the Army Military Human Resource Record.

11. The court’s conclusion that it was not necessary for the board to alter the appellant’s DD-214 in order to grant him disability retirement was supported also by the practice of the military departments. That practice was reflected in the correction board’s decisions the appellant cited. In those decisions, service members’ underlying records were altered to grant all or part of their requested relief. That approach was consistent with that taken by other branches of the military, which had corrected the records of service members previously separated for reasons of misconduct to reflect a discharge by secretarial authority independently from a correction to the service member’s DD-214. The government had failed to provide any authority to support the proposition that in order to receive disability retirement, an applicant’s DD-214 had to be corrected.

12. The Court of Federal Claims erred in ruling that it was necessary for the board to alter the appellant’s DD-214 in order to grant him the relief of disability retirement that he was requesting. The court therefore erred in dismissing the appellant’s complaint on the ground that he had failed to state a claim upon which relief could be granted. The decision of the court was reversed and the case was remanded to the court for further proceedings addressing the appellant’s challenge to the board’s 2020 remand decision as well as, if necessary, his claim that the board violated his Fifth Amendment right to due process.

13. The Court of Federal Claims’ primary rationale for its ruling that 10 USC § 1552(f) disclosed alteration of the appellant’s DD-214 was its reliance on dictionary definitions for the meaning of the term related in § 1552(f)’s related administrative records and its determination that related had to be broadly construed so as to avoid rendering the language of § 1552(f) surplusage, in view of 10 U.S.C. § 801(14). The Court of Appeal disagreed with that reasoning.

14. The court’s reasoning focused solely on the term related in § 1552(f)’s phrase related administrative records. In its entirety, however, § 1552(f) stated related administrative records pertaining to court-martial cases. The court thus failed to consider the impact of the phrase pertaining to court-martial cases in its statutory analysis.

15. To pertain to something meant to belong, be connected (in various ways); e.g. as a native or inhabitant, as part of a whole, as an appendage or accessory, as dependent, or to belong as a part, member, accessory, or product. § 1552(f)’s reference to administrative records pertaining to court-martial cases clearly placed the appellant’s DD-214 outside the scope of the statute. The DD-214 was a record document, reflecting what had taken place. It could not be said to pertain to a court-martial in the sense of being part of the court-martial, which was what pertaining to in § 1552(f) required.

16. It was a fundamental canon of statutory construction that the words of a statute had to be read in their context and with a view to their place in the overall statutory scheme. To properly analyze the meaning of the phrase related administrative records pertaining to court-martial cases, the court had to consider the purpose of § 1552(f). Interpretation of a phrase depended upon reading the whole statutory text, considering the purpose and context of the statute.

17. The senate report that accompanied the bill clarified that the purpose of § 1552(f) was to protect the court-martial process from collateral review through the record correction process. The proposed legislation made it clear that the appellate procedures under the 10 USC § 836 provided the sole forum under title 10, United States Code, for a legal review of the legality of courts martial. The senate report explained that correction boards had no authority to modify, as a matter of law, findings or sentences of courts-martial so as to channel all appellate proceedings and claims for post-conviction relief into the judicial forums established for such actions by congress in the 10 USC § 836.

18. The senate report also explained that correction boards were generally comprised of laymen who had no judicial training and had extremely large caseloads, with neither the time nor the expertise for the judicial review of courts-martial. Hence, those boards needed not be involved in the issues of law concerning the court-martial process.

19. The court thought it was clear from that legislative history that the purpose of § 1552(f) supported an interpretation of administrative records pertaining to court-martial cases that was not broadly defined to encompass, in the words of the Court of Federal Claims, any administrative record that reflected the decision of the court-martial. Rather, a document, such as a DD-214, which simply reflected that a court-martial took place, but was not a part of, or a product of, the court-martial itself, lay outside the scope of § 1552(f).

20. An interpretation of related administrative records pertaining to court-martial cases that did not encompass documents that did not have a legal impact on a finding or sentence of a court-martial was consistent with guidance provided by the department of defense to the military discharge review boards and boards for correction of military and naval records. In the 2014–2018-time period, the department of defense issued a series of interpretive memoranda that instructed the boards to give liberal consideration to, for instance, veterans who received less than fully honorable discharges based on misconduct and who were suffering from mental health conditions developed during service, including post-traumatic stress disorder, traumatic brain injury.

21. The Kurta Memo and Wilkie Memo made clear that the liberal consideration applied not only to upgrades to the character of a discharge, but also to requests for changes to the narrative reason for separation on a veteran’s DD-214. The Kurta Memo provided clarifying guidance to correction boards and discharge review boards considering veterans for modification of their discharges, and provided that unless otherwise indicated, the term discharge included the characterization, narrative reason, separation code, and reenlistment code. And the Wilkie Memo specifically referred to changes to the narrative reason of separation as a form of relief that could be granted on equity, injustice, or clemency grounds.

22. A DD-214 was not a part of, or a product of, a court-martial itself, nor did it have a legal impact on a finding or sentence of a court-martial. Indeed, as seen, a DD form 214 was not intended to have any legal effect on termination of a soldier’s service. And, as the appellant acknowledged, regardless of what his DD-214 said, his conviction would not be removed from his underlying military records, nor could it be under 10 USC § 1552(f). But that was not what the appellant sought. He merely sought the opportunity to obtain disability retirement benefits for his post-traumatic stress disorder and traumatic brain injury. Should he be awarded such benefits, § 1552(f) did not prohibit changing the appellant’s DD-214 in order for it to be accurate and complete.

Petition granted with costs to the petitioner; the decision of the Court of Federal Claims reversed and remanded for further proceedings.

Relevance to the Kenyan jurisprudence

Article 169 of the Constitution of Kenya, 2010, is conspicuous on the establishment of military court as one of the subordinate courts. Article 239 (1)(a) talks of the Kenya Defense Forces as one of the national security organs.

The Kenya Defense Forces Act of 2012 [Rev 2018], in section 74, it talks about desertion by stating that:

(a) deserts; or

(b) persuades or procures any person subject to this Act to desert.

(2) A person deserts if that person—

(a) with the intention, either at the time or formed later, of remaining permanently absent from duty—

(i) leaves the Defence Forces; or

(ii) fails to join or rejoin the Defence Forces when it is the person’s duty to join or rejoin them;

(b) being an officer, enlists in or enters the Defence Forces without having resigned the person’s commission;

(c) being a service member, enlists in or enters the Defence Forces without having been discharged from any previous enlistment;

(d) is absent without leave, with intent to avoid serving in any place outside Kenya, or to avoid service or any particular service when before an enemy; or

(e) is absent without leave for a continuous period of more than ninety days.

Section 75 illuminates about absence without leave as it says:

(a) is absent without leave; or

(b) persuades or procures any person subject to this Act to be absent without leave.

(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.

The case of Christopher Mutinda Katitu v Republic [2018] eKLR involved an appellant who was at the material time a member of the Kenya Defence Forces. He was charged before the court martial with the offence of desertion contrary to section 74(1)(a) as read with section 74(2)(e) and section 74(3)(b) of the Kenya Defence Forces Act. The particulars of the offence were that on May 18, 2015, while on Operation Maliza Ugaidi at Garissa, the appellant absented himself without leave until he reported back to his unit on November 12, 2015, thereby being absent for a continuous period of more than ninety (90) days, an act the appellant knew or ought to have known constituted an offence. When the appellant was arraigned before the court, he pleaded not guilty to the charge. After full trial, he was found guilty as charged and sentenced to serve six (6) months imprisonment. The appellant was aggrieved by his conviction and sentence. He filed an appeal. Interestingly:

While granting the appeal, the court held that the prosecution failed to establish to the required standard of proof beyond any reasonable doubt that the appellant absented himself without leave in accordance with section 74(1)(a) as read with section 74(2)(e) and section 74(3)(b) of the Kenya Defence Forces Act.

In Bernard Gachau Makari v Republic [2018] eKLR, the appellant was charged before the Court Martial for the offence of desertion contrary to section 74(1)(a) as read with section 74(2)(e) and 74(3)(b) of the Kenya Defence Forces Act 2012. The particulars of the offence were that on November 26, 2013, the appellant absented himself without leave from his unit until his arrest by both civilian and military police at St. John’s Ambulance offices in Nairobi on January 11, 2016, thus being absent for a continuous period of more than ninety (90) days, an act he knew or ought to have known constituted an offence. When the appellant was arraigned before the Court Martial, he was tried despite the fact that the record of the Court Martial does not disclose that he was called upon, before the trial commenced, to plead to the charge. After full trial, he was convicted and sentenced to serve 6 months’ imprisonment. He was further ordered dismissed from the Kenya Defence Forces. Unsatisfied, he appealed.

The court held that the appeal on sentence had merit. It was clear to the court that the Court Martial fell in error when it failed to consider the period when sentencing the appellant to serve the custodial sentence. That was contrary to section 333(2) of the Criminal Procedure Code that required a court to take into consideration the period a convict has been in pre-trial detention before sentence. The sentence of the appellant was commuted to the period served. He was ordered set at liberty forthwith unless otherwise lawfully held.

This case is therefore vital as it provides clarity especially on the issue whether a military department could correct any military record of the secretary’s department (the equivalent of the cabinet secretary for the ministry of defence in Kenya) when the secretary considered it necessary to correct an error or remove an injustice, as it holds that an award of disability retirement benefits for post-traumatic stress disorder and traumatic brain injury to a soldier who was once charged with the offence that could result in dismissal or punitive discharge does not prohibit changing the discharge certificate in order for it to be accurate and complete.