TRIAL STAGES: Initial Review: Execution of Sentences


2010 (September Term)

United States v. Watson, 69 M.J. 415 (a post-trial administrative discharge operates to remit the unexecuted punitive discharge portion of an adjudged court-martial sentence). 

 

(a void administrative discharge, such as one obtained by fraud, does not preclude either the exercise of court-martial jurisdiction or the approval of an unexecuted punitive discharge; likewise, an administrative discharge that is suspended by the express terms of a regulation does not preclude approval of an unexecuted punitive discharge). 


2009 (September Term)

United States v. Estrada, 69 M.J. 45 (appellant’s putative administrative honorable discharge that occurred after appellant’s court-martial but before the convening authority took initial action approving the sentence to a punitive discharge did not result in remission of the punitive discharge, where an Army regulation provided that after preferral of a charge, regardless of any action purporting to discharge or separate a soldier, any issuance of a discharge certificate was void until the charge was dismissed or the convening authority took initial action; the Army regulation is read in accordance with its evident intent to remedy the problems of Steele v. Van Riper, 50 MJ 89 (CAAF 1999) and to ensure no loss of jurisdiction - that a convening authority’s subsequent approval of a punitive discharge superseded a previous, erroneously issued, administrative discharge; this interpretation was not affected by other regulations prohibiting execution of a discharge until after appellate review was completed - whereas the Army regulation effectively suspended it until the convening authority took initial action; because appellant’s putative administrative discharge occurred before initial action, it did not implicate the differing time frames for prohibiting the execution of a discharge in the other regulations).    


2008 (September Term)

 

United States v. Burch, 67 M.J. 32 (within the military justice system, punishment suspended by a convening authority may not be executed). 


2007
 

United States v. Pflueger, 65 M.J. 127 (direct judicial review provides the final judgment as to the legality of the proceedings in a case involving a punitive separation; the determination that a proceeding was lawful, however, does not constitute the final action on the sentence in a case involving a punitive separation; after legal review is completed, a punitive separation is further reviewed as a matter of executive discretion under Article 71, UCMJ; that portion of a sentence providing for dismissal of an officer may not be executed until approved by the Secretary concerned; with respect to enlisted personnel, a dishonorable or bad-conduct discharge may be ordered executed only by the officer then exercising general court-martial jurisdiction over the accused except as otherwise prescribed by the Secretary concerned; that officer has the power to remit or suspend any unexecuted portion of the sentence).

 

United States v. Phillips, 64 M.J. 410 (certain portions of a sentence may take effect prior to the convening authority’s action, e.g. forfeitures of pay and allowances, reduction in rank, and confinement; a fine, however, does not become due until ordered into execution by the convening authority; unless a different date or payment schedule is set forth in the convening authority’s action or otherwise agreed to by the convening authority, payment of the fine is due on the date that the convening authority takes action on the sentence). 

 

(confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the government’s interest in appropriate punishment). 

 

(a commanding officer empowered to order contingent confinement is not acting in the capacity of the convening authority who approved the results of the court-martial under Article 60(c), UCMJ, but as the authority considering imposition of confinement for nonpayment of the fine under RCM 1113(d)(3); exercise of the authority to impose contingent confinement by the officer serving as a person’s commanding officer subsequent to action under Article 60(c), UCMJ, does not violate the MCM). 

 

(under RCM 1113(d)(3), an accused who fails to pay an executed fine is entitled to the opportunity to show indigence and demonstrate past good faith efforts to pay before being ordered into confinement for failure to pay; if the accused demonstrates indigence, the authority considering confinement must determine, after notice to the accused and a hearing, that no alternative punishment is adequate to meet the government’s interest in punishment; if an accused cannot demonstrate indigence, the authority considering confinement need not consider alternatives before executing contingent confinement; the authority considering confinement may choose to consider alternative punishments as a matter of discretion in the case of a nonindigent accused, but is not required to do so). 

 

(contingent confinement is an enforcement mechanism that may be included in a sentence to a fine, allowing the proper authority to order into confinement an accused who fails to pay the fine; RCM 1113(d)(3) makes it clear that the predicate to converting contingent to actual confinement is the failure by a servicemember to pay a fine that is due; inasmuch as a fine is not due until the sentence is executed, contingent confinement may be executed only after:  (1) the fine is executed, (2) the accused has an opportunity to pay, and (3) fails to do so). 

 

(a convening authority’s action approving a sentence that includes contingent confinement for the failure to pay a fine does not preclude a different officer from converting the contingent confinement provision of the sentence into actual confinement when appellant fails to pay the fine; in this case, when appellant failed to pay the fine, his commanding officer properly ordered a fine enforcement hearing, determined that appellant was not indigent, and ordered him into contingent confinement for willful failure to pay; although appellant characterizes his commanding officer as a “substitute” convening authority, the commanding officer did not execute contingent confinement in the capacity of a “substitute” for the convening authority over appellant’s court-martial; rather, he acted as “the authority considering imposition of confinement” under RCM 1113(d)(3), and as such, there was no error in the execution of contingent confinement). 

 

(where an appellant who has failed to pay a fine does not establish that he is indigent at his fine enforcement hearing, the authority considering the imposition of contingent confinement is not required by RCM 1113(d)(3) or any other provision of the MCM to consider alternatives to confinement before ordering appellant into contingent confinement; in this case, because appellant failed to establish that he was indigent, his commanding officer was not required to consider whether his proposed payment plan or any alternative punishment would be adequate to meet the government’s interests).


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