TRIAL STAGES: Initial Review: Action


2010 (September Term)

United States v. Hull, 70 M.J. 145 (a convening authority is authorized to modify the findings and sentence of a court-martial as a matter of command prerogative involving the sole discretion of the convening authority; when taking action on the results of trial, the convening authority may order a rehearing as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only). 

(in practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General or appellate courts under Article 73, UCMJ; the convening authority’s power to order a rehearing under Article 60, however, differs in a number of significant respects from the authority to order a new trial under Article 73 by the Judge Advocate General and appellate courts; a petition under Article 73 may be submitted at any time within two years after approval by the convening authority of a court-martial sentence on the grounds of newly discovered evidence or fraud on the court, and is subject to the standards and criteria set forth in RCM 1210; by contrast, the convening authority, who may order a full or partial rehearing when taking post-trial action on the case as a matter of command prerogative, is not limited by the standards and criteria of Article 73 and RCM 1210). 

(in view of the potential impact of newly discovered evidence on appellate consideration of a case, the SJA or the convening authority may find it useful to apply Article 73 and RCM 1210 criteria as a means of addressing such information early in the post-trial process; the convening authority, however, is not obligated to apply those criteria in exercising command prerogative powers under Article 60).  

(in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence; the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)). 

(in light of the nature of the defense’s request for a rehearing based on newly discovered evidence and the absence of a defense request for a post-trial Article 39(a) session, the SJA did not misadvise the convening authority by noting that the newly discovered evidence fell within the parameters of RCM 1210, but then recommending against granting a rehearing; viewed in its entirety, the SJA’s recommendation did not take the position that a new trial was required under the criteria set forth in RCM 1210; instead, the recommendation made clear that the SJA was advising the convening authority that the defense evidence could be considered under the criteria of RCM 1210, but that the nature of the evidence did not warrant a new trial under those criteria; as such, the convening authority did not abuse her discretion in approving the findings and sentence and not ordering a rehearing). 

2009 (September Term)

United States v. Nerad, 69 M.J. 138 (while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority).

 

(granting mercy for any reason or no reason is within the purview of the convening authority).


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. Mendoza, 67 M.J. 53 (when the action of a convening authority is incomplete, ambiguous, or contains clerical error, a court of criminal appeals may instruct the convening authority who took the action to withdraw the original action and substitute a corrected action, and the convening authority shall modify the action accordingly; if the original convening authority has been replaced by a successor, there must be some evidence that the successor convening authority communicated with the original convening authority and that the corrected action reflects the original convening authority’s intent; alternatively, the successor convening authority may issue a new action after receiving a new SJAR/LOR that was served on the defense, providing the accused a new opportunity to submit clemency matters). 

 

(before taking action on a case, the convening authority shall consider, among other things, the SJAR/LOR under RCM 1106 and any matters submitted by the accused under RCM 1105; a new, as opposed to a corrected, action requires a new SJAR/LOR under RCM 1106 and the opportunity for the accused to submit additional matters under RCM 1105). 

 

(on remand, a convening authority may not take a new action without receiving a new SJAR/LOR under RCM 1106 and affording the accused an opportunity to present additional matters under RCM 1105). 


United States v. Burch, 67 M.J. 32 (where a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence; the facts and circumstances predating the convening authority’s unambiguous action may not be relied on to find that appellant was not prejudiced). 

 

(a convening authority’s action on the sentence is within the sole discretion of the convening authority as a matter of command prerogative). 

 
(when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect, without reference to circumstances not reflected in the action itself; if the convening authority’s action is to be given effect, as required by RCM 1107, attendant circumstances preceding the action may not be utilized to undermine it). 

 
(the effect of the convening authority’s action in this case is that confinement in excess of forty-five days was suspended and no other confinement was approved; in contradiction to this action, appellant served 223 days of confinement that both the parties and the CCA agree were suspended by the convening authority; within the military justice system, punishment suspended by a convening authority may not be executed; the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority; holding otherwise would neither give effect to a clear and unambiguous action by the convening authority). 


2008 (Transition)
 

United States v. Perez, 66 M.J. 164 (as a matter of command prerogative, the convening authority may modify or dismiss charges and modify the sentence).

 

(although the convening authority is required to take action on the sentence, the convening authority is not required to act on the findings). 

 

(the broad authority of the convening authority to take action on the findings and sentence under Article 60(c), UCMJ, includes the power to dismiss charges and reassess a sentence to cure a legal error or moot allegations of such). 

 

2007
 

United States v. Wilson, 65 M.J. 140 (the convening authority has sole discretion to approve, disapprove, commute, or suspend the sentence adjudged by the court-martial; because of the importance of the convening authority’s action in the court-martial process, a clear and unambiguous convening authority’s action is required). 

 

(a convening authority is vested with substantial discretion when he or she takes action on the sentence of a court-martial; RCM 1107(d)(1) provides that the convening authority may for any or no reason disapprove a legal sentence in whole or in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of the punishment is not increased; the convening or higher authority may not increase the punishment imposed by a court-martial; the approval or disapproval must be explicitly stated). 

 

(in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect; due to this broad authority, the convening authority is an accused’s best hope for sentence relief; accordingly, the convening authority must exercise care in drafting the action).

 

(in announcing that the “remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed,” the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval; under the plain meaning of this language, the dishonorable discharge was not approved). 

 

United States v. Pflueger, 65 M.J. 127 (the initial responsibility for reviewing a court-martial sentence rests with the convening authority, who has the authority to modify the sentence so long as the severity of the punishment is not increased; in acting on a sentence, the convening authority may approve, disapprove, commute, or suspend the sentence in whole or in part; the convening authority also may remit all or part of any unexecuted part of a sentence, except for death; when the convening authority suspends execution of all or part of the sentence, successful completion of a period of suspension results in automatic remission of the suspended portion of the sentence). 

 

United States v. Phillips, 64 M.J. 410 (Article 60(c), UCMJ, requires the convening authority to take action on the sentence of the court-martial; the convening authority has broad power under Article 60(c)(2), UCMJ, to approve, disapprove, commute, or suspend the sentence in whole or in part). 

 

(when taking action on the sentence, the convening authority’s approval or disapproval shall be explicitly stated; if only part of the sentence is approved, the action shall state which parts are approved; when appropriate, the action shall state whether an approved sentence is to be executed or whether all or any part of the sentence is to be suspended). 

 

(after the convening authority takes action on the results of a general court-martial, the convening authority forwards the record to the Judge Advocate General concerned to initiate appellate review; the convening authority may recall or modify his or her action in a general court-martial at any time prior to forwarding the record for review so long as the modification does not result in action less favorable to the accused than the earlier action; after the convening authority has taken action on the sentence and has forwarded the record for review, reviewing authorities may return the case to the convening authority with direction to take further action in the case).


2006

 

United States v. Gosser, 64 M.J. 93 (when there is surrounding documentation conflicting with the language of the convening authority’s action, this conflict presents an ambiguity that must be addressed; when addressing situations that present an ambiguity, the proper course of action is to remand for corrective action under RCM 1107(g); RCM 1107(g) empowers an authority acting under Article 66, UCMJ, to instruct a convening authority to issue a corrective action upon a showing of ambiguity; in this case, an ambiguity regarding whether the adjudged bad-conduct discharge had been disapproved, created by a conflict between the convening authority’s action and the surrounding documentation, warranted a remand by the court of criminal appeals to the convening authority for corrective action). 

 

(under the unique facts of this case, a successor convening authority may issue an entirely new action in place of his predecessor when the original convening authority is unavailable to clarify his intent).

 

United States v. Rodriguez-Rivera, 63 M.J. 372 (RCM 1107(b)(3)(A) requires that prior to taking action on a court-martial sentence, a convening authority must consider the results of trial, the recommendation of the staff judge advocate, and any clemency submission from the accused; RCM 1107(b)(3)(B)(iii) further provides that the convening authority may also consider additional matters that he deems appropriate, but if the convening authority considers matters adverse to the accused from outside the record, with knowledge of which the accused is not chargeable, the accused shall be notified and given the opportunity to rebut). 

 

United States v. Alexander, 63 M.J. 269 (prior to taking action, the convening authority must consider: (1) the result of trial; (2) the recommendation of the staff judge advocate; and (3) matters submitted by the defense; the convening authority may consider other sources of information, as described in RCM 1107(b)(3)(B)).

 

(Article 60(c), UCMJ, sets forth the non-discretionary and discretionary powers of the convening authority regarding the findings and sentence: (1) the authority to modify the findings and sentence is a matter of command prerogative; (2) action on the sentence of a court-martial shall be taken by the convening authority; and (3) action on the findings of a court-martial by the convening authority is not required).

 

(if the convening authority disapproves any findings, the decision to do so must be set forth in the action, but RCM 1107 does not require an affirmative statement regarding approval of findings).  

 

(after taking action under RCM 1107, the convening authority issues an initial promulgating order; the initial promulgating order publishes the result of the court-martial and the convening authority’s action; the promulgating order must include, among other matters, the charges and specifications, or a summary thereof, on which the accused was arraigned; the accused’s pleas; the findings or other disposition of each charge and specification; the sentence, if any; and the action of the convening authority, or a summary thereof; it also must be authenticated by the signature of the convening authority or a person acting under the direction of such authority). 

 

(the convening authority may modify the action before it is published or served on the accused; during the period between service of the action on the defense and forwarding of the record for appellate review, the convening authority may modify the action if the modification does not result in action less favorable to the accused than the earlier action).

 

(after the record has been forwarded for appellate review, the convening authority cannot modify the action unless a higher reviewing authority directs the modification of an illegal, erroneous, incomplete, or ambiguous action; separate rules regarding modification of the action apply in cases where the accused has waived formal appellate review; reviewing authorities may direct a convening authority to correct an action that is incomplete, ambiguous, or contains clerical error; the convening authority must issue a supplementary promulgating order when any action is taken on the case subsequent to the initial action). 

 

(the relationship between the Article 66(c), UCMJ, requirement for approval of the findings and the Article 60(c)(3), UCMJ, statement that action on the findings is not required reflects the competing goals served by the legislation governing the convening authority’s role on findings; under the UCMJ as originally enacted in 1950, the convening authority served in a judicial role, performing a first-level legal review of findings and sentence; as the role of judges at the trial and appellate levels increased over time, particularly after enactment of the Military Justice Act of 1968, Congress reexamined the requirement for a full legal review of the findings and sentence at the convening authority level; in the Military Justice Act of 1983, Congress removed the requirement for the convening authority to conduct a legal review or otherwise act as an appellate tribunal, while retaining the convening authority’s power to modify the findings and sentence as a matter of command prerogative; as part of the legislation, Congress specifically stated in Article 60(c)(3), UCMJ, that the convening authority was not required to act on the findings; the approval requirement of Article 66(c), UCMJ, has been interpreted in a manner consistent with the congressional goal of reducing the post-trial judicial responsibilities of the convening authority;).  

 

(if the convening authority expressly acts to approve, disapprove, or modify particular findings of the court-martial, the result of the convening authority’s action constitutes the approved findings reviewed by the court of criminal appeals under Article 66(c), UCMJ). 

 

(when the convening authority’s action only addresses the sentence, and does not mention the findings, the court of criminal appeals may presume that the convening authority approved the findings reached by the court-martial and reported in the SJA’s post-trial recommendation, absent material evidence to the contrary). 

 

(if the list of findings in the SJA’s post-trial recommendation omits any reference to a particular finding, the court of criminal appeals may not presume that the convening authority implicitly approved or disapproved the omitted finding; in such a case, the court must return the case for a new SJA’s review and convening authority’s action unless the court determines that the affected finding should be disapproved at the appellate level in the interest of efficient administration of justice). 

 

(pursuant to RCM 1106(d)(3)(A), the SJA’s recommendation may provide the convening authority with concise information about the findings, without specifying exactly what acts the appellant was found guilty of or what language was excepted or substituted; for the specific purpose of determining what offenses were approved by a convening authority; although disapproval of the findings requires express action by the convening authority, the convening authority is not required to take express action to approve the findings; in that context, the SJA’s description of a finding is sufficient if it provides a general depiction of the offense, without the necessity for reciting the details of each element and aggravating factor). 

 

(the general descriptions of the drug offenses in the SJA’s post-trial recommendations were sufficient to support the presumption on appeal that the convening authority approved all aspects of the findings, including the references to the commission of the offenses “on divers occasions” or “while receiving special pay,” by only addressing the sentence, notwithstanding that such references were omitted from the recommendations, where the descriptions provided a general depiction of the offenses as wrongful use or distribution of marijuana). 

 

United States v. Politte, 63 M.J. 24 (where an ambiguous convening authority’s action is open to two distinct interpretations, both of which have ample support in law and fact, a new action is required).

 

(the convening authority’s action is viewed as ambiguous despite the fact that language in the action approving appellant’s adjudged sentence (“except for that part of the sentence extending to a bad conduct discharge”) suggests that the CA intended to disapprove the adjudged BCD, where the surrounding documentation provides ample support for the opposite conclusion:  that in fact, the CA intended to approve the adjudged BCD; first, the PTA allowed for the CA to approve the BCD; second, the SJAR presupposes the approval of a BCD, as it expressly recommends that the BCD be approved, but not executed until the completion of appellate review; third, in requesting clemency, the defense did not request disapproval of the BCD -- only suspension; finally, in later language in the action, the CA took action forwarding the record to the appellate review activity pursuant to Article 66, UCMJ; such an action is strong evidence that the CA intended to approve the BCD).


(convening authorities and staff judge advocates can avoid ambiguous actions by drafting action that do not combine, in one sentence, the three separate concepts of:  (1) approval of the sentence, (2) execution of the sentence; and (3) identification of those portions of the sentence that cannot be executed until completion of appellate review; the model “Forms for Action” listed in Appendix 16 of the MCM may be revised so that the model actions use separate sentences for each of the elements listed above, rather than multiple clauses, in order to treat the different elements of a sentence as different actions).

 

United States v. Gaston, 62 M.J. 404 (the convening authority, in taking action on a sentence, may approve, disapprove, commute, or suspend the sentence in whole or in part; he may not increase the sentence adjudged by the court-martial; in the absence of evidence to the contrary, it is assumed that the convening authority followed the law set out in his Staff Judge Advocate’s review).

 

United States v. Rosenthal, 62 M.J. 261 (the convening authority’s action provides the accused’s best hope for clemency). 

 

(when a case is remanded for a new convening authority’s action, the convening authority is not limited to considering the circumstances as they existed at the time of the initial review; the convening authority may consider other appropriate matters -- including changes in circumstances following the initial action on the case -- for purposes of determining whether clemency or other post-trial action is warranted; a servicemember has the corresponding right to bring matters in mitigation which were not available for consideration at the court-martial to the attention of the convening authority).

 

2005

 

United States v. Scalo, 60 M.J. 435 (a distinguishing feature of the military justice system is the broad authority of the commander who convened a court-martial to modify the findings and sentence adjudged at trial; although frequently exercised as a clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason -- without having to state a reason -- so long as there is no increase in severity). 

 

(the low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority’s vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such broad discretion; the threshold is low, but there must be some colorable showing of possible prejudice). 

 

(in the context of a convening authority’s exercise of post-trial discretion, the omission of pretrial restraint information is not inherently prejudicial; there must be a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency). 

 

United States v. Rollins, 61 M.J. 338 (the corrective action taken by the convening authority did not cure the prejudice from the military judge’s error in failing to provide the instructions necessary to focus the panel’s deliberations on the narrow time period permitted by the statute of limitations, where the period covered by one charge submitted to the panel extended for more than five years, but the findings as modified by the convening authority covered less than three months, and where the period covered by another charge encompassed eight years, and the convening authority revised this to cover only two years).

 

United States v. Johnson, 62 M.J. 31 (when acting on the sentence, under Article 60, UCMJ, the convening authority may reduce or suspend adjudged forfeitures, thereby increasing the compensation that is subject to mandatory forfeitures, which in turn may be waived for up to six months for the servicemember’s dependents under Article 58(b)).

 

2004

 

United States v. Lundy, 60 MJ 52  (when taking formal action on the sentence under Article 60(c), the convening authority may suspend any part of the sentence adjudged by the court-martial except for a sentence of death; this includes the authority to suspend adjudged forfeitures and adjudged reductions; different rules pertain to statutorily mandated forfeitures and reductions; the convening authority is not authorized to suspend the mandatory forfeitures required by Article 58b; if the accused has dependents, however, the convening authority has discretion to waive all or part of the mandatory forfeitures for a period not to exceed six months; any funds made available through such a waiver are paid directly to the dependents; because mandatory reductions in pay grade are subject to service-specific regulation under Article 58a, the ability of a convening authority to suspend a mandatory reduction depends on the regulations of the service concerned). 

 

(in the Army, a convening authority may suspend a mandatory reduction only if the convening authority also suspends the punishments that trigger a mandatory reduction under Article 58a; for example, if the approved sentence includes confinement and a punitive discharge, a convening authority may suspend the mandatory reduction to pay grade E-1 only if the convening authority also suspends the confinement and the punitive discharge).

 

(a convening authority may take into account the availability of transitional compensation under 10 USC § 1059 when deciding whether to exercise the discretionary authority to waive mandatory forfeitures and direct payment to a dependent under Article 58b; when a convening authority exercises discretion to direct payment of waived forfeitures to a dependent, the convening authority’s action does not affect the dependent’s entitlement to benefits under § 1059 and DoDI 1342.24).

 

(in deciding whether to waive forfeitures in whole or in part on behalf of a dependent, the convening authority may take into account the availability of dependent-abuse compensation under § 1059; as such, the convening authority has discretion to decide, under the circumstances of each particular case, that waived forfeitures are unnecessary in light of payments under 10 USC § 1059, or that waived forfeitures are required because 10 USC § 1059 payments are insufficient to meet the needs of the dependents in that case).

 

2003

United States v. Davis, 58 MJ 100 (a convening authority is vested with substantial discretion when he or she takes action on the sentence of a court-martial; as a matter of command prerogative, a convening authority in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part; the convening authority’s broad authority is a significant reason that this Court has noted that the convening authority is an accused’s best hope for sentence relief).

(the convening authority's action on the sentence is not a legal review; rather, a convening authority considers numerous factors and reasons in determining a sentence that is warranted by the circumstances of the offense and appropriate for the accused; the convening authority must consider any matters submitted by the accused pursuant to Article 60(b), UCMJ).

(in the performance of post-trial duties, a convening authority acts in a role similar to that of a judicial officer; the requirement for impartiality assures that the convening authority gives full and fair consideration to matters submitted by the accused and determines appropriate action on the sentence).

(as a matter of right, each accused is entitled to an individualized, legally appropriate, and careful review of his sentence by the convening authority; this right is violated where a convening authority cannot or will not approach post-trial responsibility with the requisite impartiality; under such circumstances, a convening authority must be disqualified from taking action on a record of court-martial).

(this Court's decisions disqualifying convening authorities from taking post-trial action have fallen into two categories; in the first category, a convening authority will be disqualified if he or she is an accuser, has a personal interest in the outcome of the case, or has a personal bias toward the accused; in the second category, convening authorities will be disqualified if they display an inelastic attitude toward the performance of their post-trial responsibility).

(where the convening authority made direct reference to his post-trial role, asserting that those convicted of using drugs should not come crying to him about their situations or their families’, those words reflected an inflexible attitude toward the proper fulfillment of post-trial responsibilities in cases involving convictions for wrongful use of controlled substances; the words lacked balance and transcended a legitimate command concern for crime or unlawful drugs).

(regardless of the nature of the offense, a convicted servicemember is entitled to individualized consideration of his case post-trial; that individualized consideration must be by a neutral convening authority capable of fulfilling his or her statutory responsibilities; statements reflecting an unwillingness to consider each case fully and individually create a perception that a convicted servicemember will be denied the material right to individualized post-trial consideration and action; where a convening authority reveals that the door to a full and fair post-trial review process is closed, this Court has held that the convening authority must be disqualified).

(when the convening authority remarked that that those convicted of using drugs should not come crying to him about their situations or their families’, he erected a barrier to clemency appeals by convicted drug users who wished to have their situation or families’ considered, and he revealed his attitude toward the clemency process under such circumstances; his words reflected that the barrier and attitude related directly to his post-trial role as a convening authority; the words unmistakably reflected an inelastic attitude and predisposition to approve certain adjudged sentences; this attitude is the antithesis of the neutrality required of a commander’s prerogative that is taken in the interests of justice, discipline, mission requirements, clemency, or other appropriate reasons).

United States v. Josey, 58 M.J. 105 (although a convening authority may commute a punishment such as a punitive discharge into another form of punishment under Article 60(c), UCMJ, such action is a matter of command prerogative; commutation involves a reduction in penalty rather than a substitution, and it is highly case-specific; there is no formula guiding such action that could provide a standard formula for former-jeopardy credit).

(a convening authority has broad authority to commute a sentence into a different form so long as it involves a reduction in penalty; although a convening authority reviewing a case upon remand is not required as a matter of law to convert a reprimand, reduction in grade, or punitive separation to another form of punishment for purposes of providing former-jeopardy credit, the convening authority is empowered to do so as a matter of command prerogative under Article 60(c), UCMJ).

United States v. Lowe, 58 MJ 261 (the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts).

(Article 60, UCMJ, provides the accused the right to submit matters for the convening authority’s consideration within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate; thus the fact that appellant may have had time prior to service of the recommendation to submit matters is of little moment as long as the statute provided him a period of time, as a matter of right, to submit matters related to clemency after the recommendation was served upon him).

(while a convening authority has broad discretion whether or not to grant clemency, R.C.M. 1106(f) gives the accused a right to be served with the SJAR in a timely manner; CAAF is not persuaded that so long as an accused could have been heard before or after the convening authority acted, he waives objection to a violation of R.C.M. 1106(f); the opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, anymore than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal).

(the essence of post-trial practice is basic fair play -- notice and an opportunity to respond; where the Government has not complied with R.C.M. 1106(f), the outcome in such a case hinges on whether appellant has made a colorable showing of possible prejudice).

(in cases involving the failure to serve the SJAR on defense counsel, if an appellant makes some colorable showing of possible prejudice, CAAF will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment).

(by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act; therefore, the question for CAAF and the CCAs is not whether we, individually or collectively, would have granted clemency to Appellant, but whether Appellant had a fair opportunity to be heard on clemency before the convening authority, vested with discretion, acted in his case; where an Appellant makes a colorable showing that he was denied the opportunity to put before the convening authority matters that could have altered the outcome, CAAF and the CCAs will not speculate as to what the convening authority would have done).

(RCM 1107(f)(2) allows the convening authority to recall and modify his action prior to forwarding the record for Article 66 review; however, this is a rule that permits the Government as well as an accused to seek modification of an action; where there is a failure to comply with RCM 1106(f), a more expeditious course would be to recall and modify the action rather than resort to three years of appellate litigation; the former would appear to be more in keeping with principles of judicial economy and military economy of force).

(the purpose of the service requirement in RCM 1106(f)(1) was to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such error could easily and expeditiously be resolved prior to the convening and supervisory authorities' actions).

2002

United States v. Stephens, 56 MJ 391 (neither the UCMJ nor the Rules for Courts-Martial require the convening authority to state in the final action what materials were reviewed in reaching a final decision; thus court declines to hold that a document embodying the convening authority’s final action is defective simply because it refers to the SJA’s recommendation without also referring to attachments, such as an addendum or clemency materials).

United States v. Emminizer, 56 MJ 441 (with respect to adjudged forfeitures, the convening authority is empowered at action to approve, disapprove, or modify forfeiture of pay and allowances; this authority includes the authority to suspend any forfeitures included in the sentence approved by the convening authority).

United States v. Harris, 56 MJ 480 (regarding RCM 1001(b)(2) and RCM 1107, a “Waiver of Enlistment Criteria” record was part of appellant’s Service Record Book, which is a repository of appellant’s personnel records and was something to which appellant had access).

(RCM 1001(b)(2) is a rule of admissibility intended to regulate the type of evidence submitted by counsel as part of the adversarial process during the presentencing hearing; it does not regulate the type of material submitted by counsel as part of the post-trial action by the convening authority).

(RCM 1107(b)(3) provides the convening authority with broad discretion as to which matters to consider prior to acting on a case).

(RCM 1107(b)(3) provides the accused with constructive notice of the matters that must and may be considered by the convening authority, such as “personnel records of the accused”; RCM 1107(b)(3)(B)(iii) requires actual notice only if the convening authority considers matters adverse to the accused from outside the record, with knowledge of which the accused is not chargeable).

(Marine Corps Order P1070.12, Individual Records Administration Manual (known to Marines by its short title “IRAM”), makes it clear that the Service Record Book is a repository of “personnel records” within the meaning of RCM 1107(b)(3)).

(appellant did not carry his burden of demonstrating that the enlistment waiver documents maintained in his Service Record Book did not constitute “special authority for enlistment/reenlistment or extension” within the meaning of paragraph 4001(c)(2)(48) of Marine Corps Order P1070.12, Individual Records Administration Manual (known to Marines by its short title “IRAM”), and were therefore improperly maintained in his Service Record Book at the time they were considered by the convening authority).

(appellant was “chargeable” with knowledge of the contents of his Service Record Book and was on notice, pursuant to RCM 1107(b)(3)(B), that the enlistment waiver documents could be considered by the convening authority; the convening authority properly considered the enlistment waiver documents in the Service Record Book prior to his action and was not obligated to further notify appellant that he would do so).

United States v. Hutchinson, 57 MJ 231 (the initial responsibility for approval of the sentence is vested in the convening authority).

United States v. Spaustat, 57 MJ 256 (in all future cases after August 30, 2002, the date of this decision, the convening authority is required to direct application of all confinement credits for violations of Article 13 or RCM 305 and all Allen credit against the approved sentence, i.e., the lesser of the adjudged sentence or the sentence that may be approved under the pretrial agreement, as further reduced by any clemency granted by the convening authority, unless the pretrial agreement provides otherwise).

2000

United States v. Wilson, 54 MJ 57 (because of the highly discretionary nature of the convening authority’s action on the sentence, court will grant relief if an appellant presents some colorable showing of possible prejudice as a result of a cognizable error in the SJA’s post-trial recommendation).

United States v. Rosendahl, 53 MJ 344 (the convening authority will apply any credits for former jeopardy announced by the military judge and, to the extent necessary, may modify those credits to ensure proper and complete credit for former jeopardy).

United States v. Kho
, 54 MJ 63 (because of the highly discretionary nature of the convening authority’s action on sentence, relief for errors in the post-trial process will be granted if an appellant presents some colorable showing of possible prejudice).

1999

Steele v. Van Riper, 50 MJ 89 (issuance of an administrative discharge after trial does not negate the convening authority’s responsibility or power to act on findings or sentence).

United States v. Lee, 50 MJ 296 (even though appellant’s offenses predated the effective date of Article 58b, thus not being subject to automatic forfeiture, the convening authority still had the power to remit or suspend any or all of the adjudged forfeitures as a matter of clemency).

(to prevail on an allegation of a post-trial error, an appellant must meet three requirements:  (1)  error must be raised at the Court of Criminal Appeals; (2) appellant must allege prejudice as a result of the error; and (3) appellant must show what he would do to resolve the error if given the opportunity).

United States v. Schrode, 50 MJ 459 (although action stated that convening authority had considered clemency submissions when there were no such submissions, this oversight was not prejudicial to appellant where there were in fact no such submissions).

United States v. Voorhees, 50 MJ 494 (it was not plain error for convening authority to take action where:  (1) appellant and counsel clearly knew about statements of convening authority and possible impact on qualifications; (2) no objection was made at trial; (3) no post-trial objection was made to the convening authority taking action; and (4) appellant actively sought clemency from the convening authority).

United States v. Finster, 51 MJ 185 (although frequently exercised as clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason, without having to state a reason, so long as there is no increase in the severity of the sentence).


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