UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-138
Monday, May 01, 2000

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 00-0334/AF. U.S. v. William C. MERRICK. CCA 33824. Appellant's motion to withdraw petition for grant of review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0418/AR. U.S. v. Michael R. CLARK. CCA 9801787.

No. 00-0419/AR. U.S. v. Galen A. GOSS. CCA 9900091.

No. 00-0420/AR. U.S. v. Justin W. SIMMONS. CCA 9900610.

No. 00-0421/AF. U.S. v. James A. ELLINGTON, Jr. CCA 33808.

No. 00-0422/AF. U.S. v. Kristina D. HAMMER. CCA S29734.

No. 00-0423/NA. U.S. v. Raschaad A. CLAYTON. CCA 99-0248.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8031/AF. United States, appellee, v. Eric J. JOHNSTON, appellant. CCA 99-05. On consideration of the writ appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals and appellant’s motions to supplement the record and pleadings; to remand the matter to appellate Air Force TJAG; for a protective order to preserve evidence; and to suspend the Rules of Practice of this Court, it is ordered that said writ appeal petition is denied; that said motion to supplement the record of trial and pleading is granted; and that the remaining motions are denied.

    SULLIVAN, Judge (dissenting): I would order oral argument on the issue of jurisdiction for the writ appeal.

    COX, Senior Judge (dissenting): I would grant the writ appeal petition and deny relief. Clinton v. Goldsmith, 526 U.S. 529 (1999), 119 S.Ct. 1538, 143 L.Ed 2d 720 (1999). We hold the door to the United States Supreme Court and I would open it.

INTERLOCUTORY ORDERS

No. 99-0504/AR. U.S. v. Rob W. ROBERTS. CCA 9600785. On consideration of appellant's motion for the appointment of military appellate defense counsel and to stay the proceedings and motion to file a reply to the government answer in light of Martinez v. Court of Appeals of California, Fourth Appellate District, 120 S.Ct. 684 (2000), it is ordered that said motions are granted; that the Judge Advocate General of the United States Army shall detail counsel to represent appellant pursuant to Article 70, Uniform Code of Military Justice, 10 USC § 870; that said counsel shall file a petition for reconsideration on or before June 1, 2000; and that appellee may file an answer within 30 days thereafter.

No. 99-0774/NA. U.S. v. Alicia R. THOMAS. CCA 98-0478. Appellant's motion to substitute counsel granted.

No. 99-0953/AR. U.S. v. Rohan G.R. WILSON. CCA 9700659. On consideration of the motion filed by Colonel Adele H. Odegard to withdraw the United States Army Defense Appellate Division from the representation of appellant and it appearing that appellant has not shown that there is a conflict requiring substitution of counsel or disqualification of any particular counsel, it is ordered that said motion is denied; and that appellate defense counsel shall file a supplement to the petition for grant of review on or before June 1, 2000.

No. 99-0973/MC. U.S. v. Sean K. WILLIAMS. CCA 98-0213. Appellee's motion to attach documents granted.

No. 99-0974/AR. U.S. v. Reinaldo MONTANEZ-PITRE. CCA 9701865. On consideration of the motion filed by Colonel Adele H. Odegard to withdraw the United States Army Defense Appellate Division from the representation of appellant and the response to the order of the Court dated January 20, 2000, it appears that there is a disagreement between the United States Army Defense Appellate Division and appellant concerning the representation of appellant before this Court. As the primary responsibility for the appointment of counsel and the validity of any allegations of conflict requiring the appointment of substitute counsel rests with the Judge Advocate General pursuant to Article 70, Uniform Code of Military Justice, 10 USC § 870; see Martinez v. Court of Appeals of California, Fourth Appellate District, 120 S.Ct. 684 (2000), the issue raised in the foregoing motion should be addressed to the Judge Advocate General whose decision is reviewable only for an abuse of discretion. Accordingly, it is ordered that said motion is denied without prejudice to the parties’ right to present the matter to the Judge Advocate General.

No. 00-0290/NA. U.S. v. Robert M. BIANCONI. CCA 98-1445. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to May 22, 2000.

No. 00-0346/AR. U.S. v. Eric B. PACHECO. CCA 9500002. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 24, 2000.

No. 00-0354/NA. U.S. v. Kelsey L. BRIDGES. CCA 98-1057. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 30, 2000.

No. 00-0369/MC. U.S. v. Renarda K. KIRT. CCA 98-0621. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 5, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-139
Tuesday, May 02, 2000

HEARINGS

No. 00-0095/AR. U.S. v. Paul J. FULLER. CCA 9701004.

No. 00-6001/NA. U.S. v. Walter S. STEVENSON. CCA 99-0769.

No. 99-0666/NA. U.S. v. Marion H. TANKSLEY. CCA 96-1402.

No. 99-0925/MC. U.S. v. Charles M. KHO. CCA 98-1646.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0424/AR. U.S. v. Emmet U. ALLEN. CCA 9701466.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-140
Wednesday, May 03, 2000

HEARINGS

No. 00-0076/AR. U.S. v. Anthony J. BAUMANN. CCA 9701765.

No. 96-0659/AR. U.S. v. Steven L. BECKER. CCA 9600644.

No. 99-0656/AR. U.S. v. Nicky A. THOMPSON. CCA 9600798.

No. 99-0560/NA. U.S. v. Kerry V. LYNN. CCA 97-1482.

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0134/AR. U.S. v. Robert E. BECKLEY. CCA 9701282. Review granted on the following issue:

WHETHER THE STAFF JUDGE ADVOCATE'S OFFICE VIOLATED THE SIXTH AMENDMENT OF THE CONSTITUTION AND ARTICLE 38 OF THE UNIFORM CODE OF MILITARY JUSTICE BY INFRINGING ON APPELLANT'S CHOICE OF COUNSEL.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-5004/MC. U.S. v. Anthony QUIROZ. CCA 98-1864.*/

INTERLOCUTORY ORDERS

No. 00-0355/AR. U.S. v. Thomas M. LONERGAN. CCA 9700615.
Appellant's motion to extend time to file supplement to petition for grant of review granted to June 1, 2000.

No. 00-0356/AF. U.S. v. William R. BENDER. CCA 33705.
Appellant's motion to extend time to file supplement to petition for grant of review granted to May 31, 2000.

MANDATES ISSUED

No. 96-1157/AR. U.S. v. Joseph K. AVERY, Jr. CCA 9500062.
_____

*/ Cross-petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-141
Thursday, May 04, 2000

HEARINGS

No. 00-0010/NA. U.S. v. Sharon Y. NELSON. CCA 97-1978.

No. 00-0102/AR. U.S. v. Juan O. ALVARADO-ALBELO. CCA 9800265.

No. 00-8007/NA. U.S. v. Daniel M. KING.

No. 99-0595/AR. U.S. v. Timothy W. SHELTON. CCA 9600456.

No. 99-0788/AF. U.S. v. James M. ALLEN. CCA 32727.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0425/AR. U.S. v. David J. MILLER. CCA 9801407.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 00-8008/NA. In Re Daniel M. KING. Petition for extraordinary relief in the nature of writs of prohibition and mandamus filed under Rule 27(a).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-142
Friday, May 05, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0426/NA. U.S. v. Jeramie S. GREEN. CCA 99-0321.

No. 00-0427/MC. U.S. v. Robert E. HALL. CCA 99-0754.

No. 00-0428/MC. U.S. v. Stephan A. RODRIGUEZ. CCA 99-1345.

PETITIONS FOR RECONSIDERATION DENIED

No. 98-0938/AR. U.S. v. Benjamin T. FIELD. CCA 9700785. Appellant’s petition for reconsideration of the order of the Court issued on April 4, 2000 denied.

No. 99-0750/MC. U.S. v. Carl D. DAGNESE. CCA 97-0212. Appellant’s petition for reconsideration of the denial order of the Court issued on February 15, 2000 denied.

No. 00-0039/AR. U.S. v. Arther L. BREWER, Jr. CCA 9701710. Appellant’s petition for reconsideration of the denial order of the Court issued on February 14, 2000 denied.

INTERLOCUTORY ORDERS

No. 93-0157/AF. U.S. v. Charles M. HANEY, Jr. CCA 29000. Appellant's motion to submit documents denied.

No. 99-0965/MC. U.S. v. Pedro A. TOLLINCHI. CCA 98-0246. Appellee's motion for leave to respond to appellant's letter of supplemental authority granted.

No. 00-0292/AF. U.S. v. Shane A. WALKER. CCA 33477. Appellant's second motion to extend time to file supplement to petition for grant of review granted to May 10, 2000; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0340/MC. U.S. v. Terry W. MCLEOD. CCA 97-1345. Appellee's motion to dismiss appellant's petition for grant of review denied.

No. 00-0363/AF. U.S. v. Charles F. JACKSON. CCA 32714. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 10, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-143
Monday, May 08, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0429/NA. U.S. v. Eric L. LIBERTY. CCA 98-1849.

No. 00-0430/AR. U.S. v. Robert M. DOUGLAS. CCA 9900495.

No. 00-0431/AR. U.S. v. Stanley BARNER. CCA 9701385.

No. 00-0432/AR. U.S. v. Tony R. POLICE. CCA 9801669.

No. 00-0433/AF. U.S. v. John G. HIGGINBOTHAM. CCA 33864.

No. 00-0434/AF. U.S. v. Seth A. HOLLOWAY. CCA 32868.

No. 00-0435/AF. U.S. v. Andre T. JACKSON. CCA 33178.

No. 00-0436/AF. U.S. v. Michael E. MCMANIS. CCA 33753.

No. 00-0437/AF. U.S. v. Jesse A. PERKINS. CCA S29707.

No. 00-0438/AF. U.S. v. Robert A. SAMPERA. CCA 33813.

No. 00-0439/AF. U.S. v. Chadwell K. SIMPSON. CCA S29492.

No. 00-0440/AF. U.S. v. Larry D. STUART, Jr. CCA 32517.

INTERLOCUTORY ORDERS

Misc. No. 00-8007/NA. U.S. v. Daniel M. KING. CCA 200000329. On consideration of appellant’s writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals’ denial of the petition for extraordinary relief, the responsive pleadings, and oral argument, we note that the convening authority has appointed an Information Security Officer (ISO) whose duties include monitoring communications among counsel, and between counsel and appellant. It does not appear that such an appointment represents the least restrictive means of providing appropriate protection of classified information and appellant’s right to counsel under the Sixth Amendment and Article 27, Uniform Code of Military Justice, 10 USC § 827.

    We note that the Government has advised the Court that the requirement for an ISO to monitor such communications will be terminated if appellant’s defense counsel receive appropriate security clearances. Defense counsel has advised the Court that appellant’s defense counsel are willing to apply for appropriate security clearances. The Government has advised the Court that interim security clearance applications for defense counsel can be expeditiously processed within a matter of weeks. Accordingly, it is ordered that the stay of proceedings issued by this Court be continued, to be lifted upon a showing that:

      Defense counsel have been granted clearances and the ISO monitoring requirements have been rescinded; or

      The Government demonstrates that defense counsel have not promptly provided all information necessary to initiate processing for the required security clearances; or

      Lifting the stay is warranted for other good cause shown.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-144
Tuesday, May 09, 2000

RETURN OF RECORD FROM COURT OF CRIMINAL APPEALS

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. Notice is hereby given that the record was returned to the Clerk’s Office this date in accordance with the decision of this Court, 51 MJ 232 (1999), and has been referred to the Court for further consideration.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0192/MC. U.S. v. Moses SALINAS, Jr. CCA 98-1201.

No. 00-0228/NA. U.S. v. Jorge T. FERREIRA. CCA 98-0855.

No. 00-0241/MC. U.S. v. Zoxleavon WALTON. CCA 98-0097.

No. 00-0245/NA. U.S. v. James A. CHO. CCA 99-1205.

No. 00-0256/AR. U.S. v. Kenneth E. TAYLOR. CCA 9900665.

No. 00-0267/MC. U.S. v. Roger J. STOTTS. CCA 98-1484.

No. 00-0270/AR. U.S. v. Billy K.J. MONDAY. CCA 9800082.

No. 00-0277/MC. U.S. v. Shihhao LAI. CCA 99-1329.

No. 00-0299/AR. U.S. v. David Lloyd JONES. CCA 9900284.

No. 00-0303/MC. U.S. v. Keith J. GUAY. CCA 99-0962.

No. 00-0304/AF. U.S. v. Richard B. VOGEL. CCA 33643.

No. 00-0305/AF. U.S. v. Conor R. STOEPPLER. CCA S29704.

No. 00-0308/AF. U.S. v. Scott A. SPRINGMEYER. CCA 33704.

No. 00-0310/MC. U.S. v. Ray V. WILLISTON. CCA 99-1255.

No. 00-0316/AF. U.S. v. Bryan M. MELANCON. CCA 33696.

No. 00-0321/AF. U.S. v. Alicia E. ALVAREZ. CCA 33860.

No. 00-0322/AF. U.S. v. Jackie KLEIN, Jr. CCA 33781.

No. 00-0323/AF. U.S. v. Sekou S. MYRICKS. CCA S29710.

No. 00-0325/AF. U.S. v. David A. THOMPSON. CCA S29715.

No. 00-0328/MC. U.S. v. Glen T. BIRDSONG II. CCA 99-1148.

No. 00-0329/AR. U.S. v. Russell J. ROBINSON. CCA 9800736.

No. 00-0333/AF. U.S. v. Darron A. JOHNSON. CCA 33858.

No. 00-0335/AF. U.S. v. Jeremy R. OGLE. CCA S29741.

No. 00-0337/AF. U.S. v. Nicholas J. WILLIAMS. CCA S29712.

No. 00-0338/AF. U.S. v. Rocky L. RAMIREZ. CCA 33856.

No. 00-0339/AF. U.S. v. Joshua A. ROGERS. CCA 33848.

No. 00-0344/AF. U.S. v. Alejandro H. RAMIREZ. CCA 33732.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0441/NA. U.S. v. Mark KINTO. CCA 99-0112.

No. 00-0442/AR. U.S. v. Bryan M. CASE. CCA 9900894.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 00-8008/NA. IN RE Daniel M. KING, petitioner/appellant. On consideration of the petition for extraordinary relief regarding contact with petitioner/appellant without notice to counsel, petitioner/appellant’s motion to supplement the record of that pending petition, and the motion filed by counsel representing the Appellate Government Division of the United States Navy-Marine Corps Appellate Review Activity to file an answer to the petition for extraordinary relief, it is ordered that said motion to file an answer is granted; that said petition for extraordinary relief is denied; that the motion to supplement the record of the pending petition is denied; and that said denials are without prejudice to petitioner/appellant’s right to reassert the matters raised in the motion and petition during the Article 32 hearing or before a military judge if the case is referred to a court-martial.

INTERLOCUTORY ORDERS

Misc. No. 00-8007/NA. U. S. v. Daniel M. KING. CCA 200000329. Appellant's motion for a remand of the record for fact-finding and restoration of the original respondents as named parties in the writ-appeal and motion to supplement appellant's motion for a remand of the record for fact-finding and restoration of the original respondents as named parties are denied without prejudice to appellant's right to reassert the issues raised in the motions during the Article 32 hearing or before a military judge if the case is referred to a court-martial.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-145
Wednesday, May 10, 2000

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0283/AF. U.S. v. Raymond T. SATTERLEY, III. CCA 33214. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL'S REQUEST TO REOPEN THE DEFENSE CASE TO MAKE AN ADDITIONAL UNSWORN STATEMENT TO ADDRESS A COURT MEMBER'S QUESTION.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0160/AR. U.S. v. Damian J. THOMAS. CCA 9701976.

No. 00-0259/AR. U.S. v. Brannon K. MCDANIEL. CCA 9801068.

No. 00-0287/AR. U.S. v. Thaddeis L. ELLIS. CCA 9801668.

No. 00-0300/AR. U.S. v. Leroy BROWN, Jr. CCA 9700954.

No. 00-0309/AR. U.S. v. Zachary V. STICKLES. CCA 9701877.

No. 00-0326/NA. U.S. v. Michael P. CHILDERS. CCA 99-1321.

No. 00-0342/AR. U.S. v. Anthony C. SPAIN. CCA 9900109.

No. 00-0352/AF. U.S. v. Joseph M. RIGGLE. CCA 33775.

No. 00-0353/AF. U.S. v. Rosendo SIAS. CCA 33690.

No. 00-0383/AR. U.S. v. Kenneth B. BIBBEE. CCA 9801406.

No. 00-0389/AF. U.S. v. Mark D. KNAB. CCA S29750.

No. 00-0400/NA. U.S. v. Justin D. FRISH. CCA 99-1800.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0902/AF. U.S. v. Della C. VOGLE. CCA S29646. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, in which appellant asserts that the convening authority failed to approve the adjudged bad-conduct discharge and deferred rather than waived automatic forfeitures, we note that the opinion below does not specifically address these issues. We believe it necessary for the court below to make specific findings as to whether the convening authority’s action regarding the adjudged sentence, including automatic forfeitures, complies with the provisions of RCM 1107(d)(1), Manual for Courts-Martial, United States (1998 ed.), or for the court below to send the case to the convening authority for corrective action to resolve the existing ambiguity in the convening authority’s action. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for further review. Following the final decision below, the record will be returned directly to this Court.

    CRAWFORD, Chief Judge (concurring in part and dissenting in part):

    I dissent from so much of this Court's action as returns the case to the Court of Criminal Appeals for findings of fact regarding the convening authority's approval of appellant's bad-conduct discharge.

In January 1999, officer and enlisted members convicted this appellant, contrary to her pleas, of five specifications of larceny, two specifications of forgery, and a single specification of using another airman's military ID card for purposes of fraud, in violation of Articles 121, 123, and 134, Uniform Code of Military Justice, 10 USC §§ 921, 923, and 934, respectively. Appellant's sentence to a bad-conduct discharge and reduction to airman basic was approved by the convening authority and affirmed by the Court of Criminal Appeals. We denied appellant's petition for review of this court-martial on October 13, 1999. Her bad-conduct discharge was subsequently executed on November 9, 1999.

Appellant's second court-martial took place on March 16, 1999. At this special court-martial (SPCM), she was found guilty, in accordance with her pleas, of making a false official statement and using another's ID card with the intent to defraud, in violation of Articles 107 and 134, UCMJ, 10 USC §§ 907 and 934, respectively. The military judge sentenced appellant to a bad-conduct discharge and confinement for 4 months. Pursuant to a pretrial agreement, which expressly stated that the convening authority had no limitations on his ability to approve, inter alia, a punitive discharge, the convening authority took the following action:

ACTION OF THE CONVENING AUTHORITY 28 Apr 1999

DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 81ST TRAINING WING (AETC), Keesler Air Force Base, Mississippi 39534

In the case of AIRMAN BASIC DELLA C. VOGLE, United States Air Force, 81st Services Squadron, Keesler Air Force Base, Mississippi, only so much of the sentence as provides for 3 months confinement and, except for the bad conduct discharge, will be executed. The Air Force Corrections System is designated for confinement, and the confinement will be served therein or elsewhere as the Director, Air Force Corrections, HQ AFSFC/SFC, may direct. Unless competent authority otherwise directs, Della C. Vogle will be required, under Article 76a, UCMJ, to take leave pending completion of appellate review of the conviction.

Appellate defense counsel submitted the case to the Air Force Court of Criminal Appeals without assignment of error. In footnote 4 to her pleadings before the Air Force court, appellate defense counsel noted several errors in the convening authority's action and SPCM order. In particular, appellate defense counsel stated: "They say 'only so much of the sentence as provides for 3 months confinement and, except for the bad-conduct discharge, will be executed.' It appears, based on the action and the SJA recommendation, that this language should in fact say 'only so much of the sentence as provides for 3 months confinement and a bad-conduct discharge is approved, and, except for the bad-conduct discharge, will be executed.'" (Emphasis in original.)

In United States v. Loft, 10 MJ 266 (CMA 1981), the convening authority failed to approve explicitly the bad-conduct discharge in his action. However, that same action provided for suspension of the execution of the adjudged bad-conduct discharge for a period of 12 months from the date of trial. We held that the only reasonable interpretation of the convening authority's action included approval of the bad-conduct discharge. See United States v. McDaniel, 7 USCMA 56, 59, 21 CMR 182, 185 (1956) (convening authority's intent regarding approval of the sentence and its execution must be gleaned from the writing as a whole). Specifically, this Court found that the suspension action would have been "meaningless" absent approval of that portion of the adjudged sentence that dealt with a bad-conduct discharge. Furthermore, we observed that forwarding the court-martial for review pursuant to Article 65(b), UCMJ, 10 USC § 865(b)(1950) (erroneously cited in opinion as 67(b)), was consistent with approval of the bad-conduct discharge. This case is no different.

Airman Vogle's convening authority would not have ordered execution of the sentence except for the bad-conduct discharge had he not approved that punitive discharge. He further evidenced his intent in approving the discharge by forwarding Airman Vogle's record of trial to the Air Force Court of Criminal Appeals for appellate review and by ordering her to take leave pending completion of appellate review. See Art. 76a, UCMJ, 10 USC § 876a.

Furthermore, the convening authority had already approved a bad-conduct discharge for appellant less than a month earlier for a previous court-martial. If the convening authority were going to grant appellant clemency by suspending or disapproving a punitive discharge, logic dictates that he would have done it after her first court-martial, not after her second one. Accordingly, I am satisfied that the convening authority approved the bad-conduct discharge.

Appellate defense counsel concedes that the convening authority approved the bad-conduct discharge in her pleadings before the lower court. Three experienced appellate judges examined appellant's pleadings and the record of trial below, and in affirming the findings of fact and sentence, determined that the convening authority intended to approve a bad-conduct discharge. There is no ambiguity at any point in the record that would necessitate remanding this case to the court below for specific factual findings on the intent of the convening authority.

No change to the Manual for Courts-Martial since 1981 has diminished the force of the inference relied on in Loft. The action taken by the Army Court of Criminal Appeals in United States v. Schiaffo, 43 MJ 835 (1996), while commendable and well within that court's discretion, was not mandated as a matter of law. Stare decisis does not require a blind adherence to precedent. Helvering v. Hallock, 309 U.S. 106, 119 (1940); United States v. Townsend, 49 MJ 175 (1998).

I join the Court in returning this case to the lower court for a determination whether appellant is entitled to any relief as a result of the convening authority's action in deferring automatic forfeitures instead of waiving them, as appellant requested.

    SULLIVAN, Judge (dissenting): I dissent.

INTERLOCUTORY ORDERS

No. 00-0092/AR. U.S. v. John D. GUNKLE. CCA 9701960. Appellee's motion to extend time to file an answer to final brief granted but only up to and including June 19, 2000; absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0166/AF. U.S. v. Gary Q. DIMBERIO. CCA 33091. Appellant's motion to extend time to file final brief granted to May 19, 2000.

No. 00-0170/MC. U.S. v. Alejandro HUERECA. CCA 98-1189. Appellant's second motion to extend time to file final brief granted, but only up to and including June 5, 2000; absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0312/AR. U.S. v. Timothy A. HARRIS. CCA 9700640. Appellant's second motion to extend time to file supplement to the petition for grant of review granted to May 10, 2000.

No. 00-0370/NA. U.S. v. Tangela D. SPARKS. CCA 98-1698. Appellant's motion to file supplement to petition for grant of review out of time granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-146
Thursday, May 11, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0995/AR. U.S. v. Lowell L. MCGEE. CCA 9700480.*/

MANDATES ISSUED

No. 99-0619/AR. U.S. v. David M. MELANSON. CCA 9801266.

_____

*/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-147
Friday, May 12, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0443/AF. U.S. v. Phillip R. MARCUSON. CCA 33537.

INTERLOCUTORY ORDERS

No. 00-0096/AR. U.S. v. Maurice RUSH. CCA 9701687. Appellant's motion to extend time to file final brief granted up to May 22, 2000.

No. 00-0379/AR. U.S. v. Walter H. McCLENDON. CCA 9700824. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 10, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-148
Monday, May 15, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0444/AR. U.S. v. Jairaj ARJOON. CCA 9700995.

No. 00-0445/AR. U.S. v. Demond D. WEBB. CCA 9900215.

No. 00-0446/AF. U.S. v. Gregory A. BOYD. CCA 33483.

No. 00-0447/AR. U.S. v. Jean W. MUSEAU. CCA 9901014.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 00-8009/NA. In Re Thomas SCHNABLE. CCA 99-0852. Petition for extraordinary relief in the nature of a writ of mandamus filed under Rule 27(a).

Misc. No. 00-8010/AR. U.S. v. David R.E. HALE. CCA 20000286. Writ appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief filed under Rule 27(b).

PETITIONS FOR RECONSIDERATION DENIED

No. 99-0982/AR. U.S. v. Jorge L. JOLY. CCA 9701546. Appellant’s petition for reconsideration of the denial order of the Court issued on February 1, 2000, denied; appellant’s motion for suspension of rule as to time lines granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-149
Tuesday, May 16, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0448/AR. U.S. v. Quanlon S. SMITH. CCA 9700747.

INTERLOCUTORY ORDERS

No. 99-0974/AR. U.S. v. Reinaldo MONTANEZ-PITRE. CCA 9701865. On further consideration of the order issued by the Court dated May 1, 2000, it is ordered that appellate defense counsel shall file a supplement to the petition for grant of review on or before June 1, 2000; and that appellee may file an answer 30 days thereafter.

No. 00-0109/AF. U.S. v. Eddie L. CHANEY. CCA S29638. Appellee's motion to file substitute corrected pages granted.

No. 00-0381/AR. U.S. v. Carl L. BRANCH. CCA 9801790.

No. 00-0382/AR. U.S. v. Andre D. JAMISON. CCA 9601932.

    In each of the above two cases, appellant's motion to extend time to file supplement to petition for grant of review granted to June 12, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-150
Wednesday, May 17, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0449/AR. U.S. v. Raheim J. SALTERS. CCA 9800893.

No. 00-0450/AF. U.S. v. Paul R. MILLER. CCA 31206.*/

INTERLOCUTORY ORDERS

No. 00-0301/MC. U.S. v. Glenn E. HURN. CCA 98-0200. Appellant's second motion to extend time to file supplement to petition for grant of review granted to May 19, 2000; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0327/NA. U.S. v. Miguel E. INONG. CCA 98-1667. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to June 13, 2000.

MANDATES ISSUED

No. 99-0292/MC. U.S. v. Michael S. STOFFER. CCA 97-1326.
_____

*/ Original case filed as certificate for review under Docket No. 96-5010/AF.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-151
Thursday, May 18, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0451/AR. U.S. v. Chester R. HILL. CCA 9900701.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-152
Friday, May 19, 2000

APPEALS - SUMMARY DISPOSITIONS

No. 97-0844/NA. U.S. v. Bobby W. ANDERSON. CCA 96-0152. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted; and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 97-0844/NA. U.S. v. Bobby W. ANDERSON. CCA 96-0152. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

No. 00-0104/AR. U.S. v. Holly M. BALDWIN. CCA 9800230. Review granted on the following issues:

I. WHETHER THE CONVENING AUTHORITY EXERCISED UNLAWFUL COMMAND INFLUENCE OVER THE PROCEEDINGS BY REQUIRING THE COURT MEMBERS, IN THE MIDDLE OF THE TRIAL, TO ATTEND AN OFFICER PROFESSIONAL DEVELOPMENT PROGRAM WHERE "APPROPRIATE" PUNISHMENTS FOR OFFICER COURT-MARTIAL DEFENDANTS WAS DISCUSSED.

II. WHETHER APPELLANT IS ENTITLED TO RELIEF ON SENTENCE AS REDRESS FOR THE GOVERNMENT'S VIOLATIONS OF ARTICLE 55 WHILE APPELLANT WAS IN POST-TRIAL CONFINEMENT.

No. 00-0159/AR. U.S. v. James A. BROWN. CCA 9801503. Review granted on the following issue: WHETHER THE PERSONAL ASSERTION MADE BY APPELLANT THAT THE MILITARY JUDGE WAS DISQUALIFIED UNDER ARTICLE 26(b), UCMJ, BECAUSE HER MEMBERSHIP IN THE BAR OF PENNSYLVANIA WAS INACTIVE AT THE TIME OF HIS COURT-MARTIAL IS TRUE, AND, IF SO, WHETHER HER INACTIVE STATUS CONSTITUTES A JURISDICTIONAL DEFECT. No. 00-0261/MC. U.S. v. Raymond S. ARMENDARIZ. CCA 98-1735. Review granted on the following issue: WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS MISAPPLIED THIS COURT'S HOLDING IN UNITED STATES V. POWELL, 49 MJ 460 (1998) WHEN IT RELIEVED THE GOVERNMENT OF ITS BURDEN TO ESTABLISH WHETHER THE PLAIN ERROR DID NOT MATERIALLY PREJUDICE A SUBSTANTIAL RIGHT OF APPELLANT.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0452/MC. U.S. v. John P. TAYLOR. CCA 99-0719.

No. 00-0453/AF. U.S. v. Steven C. SCHULTE. CCA 33956.

No. 00-0454/AF. U.S. v. Shavares R. PETTWAY. CCA 33697.

No. 00-0455/AF. U.S. v. Julius D. HUDSON, Jr. CCA S29689.

No. 00-0456/AF. U.S. v. Shawn T. BRIDGES. CCA 33369.

No. 00-0457/AF. U.S. v. Matthew F. DUNLAP. CCA 33913.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 00-8009/NA. In Re Thomas SCHNABLE. CCA 99-0852. On consideration of the motion to correct errata and the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that said motion is granted; and that said petition is hereby denied without prejudice to petitioner’s right to raise the issue asserted in the petition during the course of normal appellate review.

INTERLOCUTORY ORDERS

No. 96-0841/MC. U.S. v. David MAY. CCA 94-2027. Appellant's second motion to extend time to file supplement to petition for grant of review granted to June 7, 2000; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0200/NA. U.S. v. Galen E. SOTHEN. CCA 98-0738. Appellant's motion to extend time to file final brief granted, only up to and including June 9, 2000; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0384/AR. U.S. v. Willie J. WILLIAMSON, Jr. CCA 9702022. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 14, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-153
Monday, May 22, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0458/MC. U.S. v. DeAngelo G. WARD. CCA 99-0511.

No. 00-0459/AF. U.S. v. Lamier A. WATKINS. CCA S29678.

No. 00-0460/AF. U.S. v. Derrick J. WARD. CCA 33814.

No. 00-0461/AF. U.S. v. Jerry D. TAYLOR, Jr. CCA 33991.

No. 00-0462/AF. U.S. v. Herman SMITH. CCA 32751.

No. 00-0463/AF. U.S. v. David A. DOUGLAS. CCA 33691.

No. 00-0464/AF. U.S. v. Stella V. BRYANT. CCA 32875.

No. 00-0465/AR. U.S. v. Johnessa D. BASS. CCA 9900170.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-154
Tuesday, May 23, 2000

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0331/AF. U.S. v. Khalid J. HOBSON. CCA 33847. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN THEIR DUTY UNDER ARTICLES 66(a) AND 66(c), UCMJ, TO PROPERLY REVIEW APPELLANT'S CASE WHEN ONLY TWO JUDGES PARTICIPATED IN THE DECISION. No. 99-0002/AF. U.S. v. Phillip K. LEE. CCA 32773. Review granted on the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN THEIR DUTY UNDER ARTICLE 66(a) AND 66(c), UCMJ, TO PROPERLY REVIEW APPELLANT'S CASE WHEN ONLY TWO JUDGES PARTICIPATED IN THE DECISION.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0466/AR. U.S. v. Greta R. LYONS. CCA 9701575.

No. 00-0467/MC. U.S. v. Joshua K. LYALL. CCA 99-0953.

No. 00-0468/MC. U.S. v. Daniel L. MATYNIAK. CCA 99-0937.

No. 00-0469/MC. U.S. v. Ivey L. MCCLELLAN. CCA 98-0107.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-155
Wednesday, May 24, 2000

INTERLOCUTORY ORDERS

No. 00-0113/MC. U.S. v. Bud W. TYNDALE. CCA 97-1741. Appellee's motion to extend time to file an answer to final brief granted to June 8, 2000.

No. 00-0380/AR. U.S. v. Michael J. DUHON. CCA 9900750. Appellant's motion to substitute original for facsimile copy granted.

No. 00-0398/AR. U.S. v. Brandon J. NICHOLS. CCA 9900137. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 9, 2000.

No. 00-0399/MC. U.S. v. Christopher A. BRUCI. CCA 98-1793. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 19, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-156
Thursday, May 25, 2000

APPEALS - SUMMARY DISPOSITIONS

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. On further consideration of the above-entitled case, we note that the record of trial has been returned to this Court pursuant to the direction in our opinion (51 MJ 232). A factfinding hearing has been held and the suspension has been vacated. It is now appropriate for the court below to consider the granted issue. Accordingly, it is ordered that the record of trial including the record of the factfinding hearing is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further review.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-157
Friday, May 26, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0470/AF. U.S. v. Eric W. CURTISS. CCA 33893.

No. 00-0471/AF. U.S. v. Elias MUNOZ, Jr. CCA 33655.

No. 00-0472/AF. U.S. v. Elrico J. SMITH. CCA 33972.

No. 00-0473/AF. U.S. v. Christopher J. WALDEN. CCA 33918.

No. 00-0474/AF. U.S. v. Michael K. LAWSON. CCA 33924.

No. 00-0475/AF. U.S. v. Jason R. BATTERN. CCA 33144.

No. 00-0476/AF. U.S. v. Quincy L. BOYD. CCA 33762.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-158
Tuesday, May 30, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0477/AR. U.S. v. Kevin D. WASHINGTON. CCA 9800125.

No. 00-0478/AR. U.S. v. Jason R. JOHNSON. CCA 9702014.

No. 00-0479/AR. U.S. v. Andrew W. FISH. CCA 9900320.

No. 00-0480/NA. U.S. v. Michael D. ANDERSON. CCA 99-0586.

No. 00-0481/NA. U.S. v. Johnny BROWN. CCA 98-2079.

No. 00-0482/MC. U.S. v. Miguel A. RIVERA. CCA 99-0973.

No. 00-0483/NA. U.S. v. Kirk A. THOMPSON. CCA 98-1577.

No. 00-0484/AF. U.S. v. Joshua L. ADAMS. CCA 33695.

MANDATES ISSUED

No. 99-0547/AR. U.S. v. Paul E. GRIER. CCA 9700651.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-159
Wednesday, May 31, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0485/AR. U.S. v. Lawrence P. FRENZ. CCA 9900563.

No. 00-0486/CG. U.S. v. Lawrence BROWN. CCA 1105.

No. 00-0487/NA. U.S. v. Andrew S. PLOWMAN. CCA 99-0802.

No. 00-0488/NA. U.S. v. Dmarris J. SMALLS. CCA 99-0463.

PETITIONS FOR RECONSIDERATION DENIED

No. 99-0024/MC. U.S. v. William J. LAY. CCA 97-1542. Appellee’s petition for reconsideration of the order of the Court issued on the 22nd day of February, 1999, denied.

INTERLOCUTORY ORDERS

No. 99-0252/NA. U.S. v. Terrance M. JONES. CCA 97-0486. Appellant's motion to correct errata granted.

No. 99-0676/AR. U.S. v. Clyde B. PUGH, Jr. CCA 9600811. Appellant's motion to file index to supplement to petition for grant of review granted.

No. 99-5005/AR. U.S. v. Audrey J. VALIGURA. CCA 9800225. Cross-appellant's motion to file cross-petition for grant of review out of time granted; cross-appellate defense counsel shall file a supplement to the cross-petition for grant of review on or before June 30, 2000; cross-appellee may file an answer within thirty days thereafter.

No. 00-0074/NA. U.S. v. Donnie M. BOLERJACK. CCA 98-1500. Appellant’s motion for leave to file petition for reconsideration of petition for grant of review out of time denied.

No. 00-0096/AR. U.S. v. Maurice RUSH. CCA 9701687. Appellant's motion to file index to final brief granted.

No. 00-0263/NA. U.S. v. Charles C. HAMMOCK. CCA 98-1461. Appellant’s motion for leave to file petition for reconsideration of petition for grant of review out of time denied.

No. 00-0420/AR. U.S. v. Justin W. SIMMONS. CCA 99000610. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 14, 2000.


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