MILITARY JUSTICE PERSONNEL: Convening Authority: Action

2020 (October Term)

United States v. Brubaker-Escobar, 81 M.J. 471 (in any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part; however, depending upon the date that the charges were preferred or referred and depending upon the sentence that was adjudged, such an error does not necessarily deprive a CCA of jurisdiction). 

(in this case, where appellant was found guilty of charges committed before January 1, 2019, but not referred until after January 1, 2019, the convening authority erred by taking no action; however, the new version of Article 66, UCMJ, applied, and because a BCD was adjudged, the CCA had jurisdiction to review appellant’s case despite the procedural error committed by the convening authority). 

(in this case, where appellant was found guilty of at least one specification involving an offense that was committed before January 1, 2019 and appellant had been sentenced to a BCD and reduction to E-1, the convening authority erred by taking no action, but the convening authority’s error did not constitute plain error and was harmless where (1) appellant did not seek clemency from the convening authority, (2) under the Article 60, UCMJ, in effect prior to January 1, 2019, the convening authority lacked the power to grant clemency with respect to the BCD adjudged, and (3) although the convening authority in theory could have granted clemency with respect to the adjudged rank reduction, that relief would have been meaningless because appellant’s punitive discharge would have resulted in an automatic reduction to E-1). 

2019 (October Term)

United States v. Wall, 79 M.J. 456 (subject to the limitations of the UCMJ and the RCMs, the decision to reassess the sentence, and what sentence to approve, is solely that of the convening authority).

2017 (October Term)

United States v. Barry, 78 M.J. 70 (in the absence of contrary evidence, a convening authority approves the findings by approving the sentence). 

(a successor convening authority should be guided by the original convening authority’s intent). 

2016 (October Term)

United States v. Carter, 76 M.J. 293 (in a case subject to review under Article 66, UCMJ, a convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused of that action; at that point, the only further contact that the convening authority has with the case occurs in the event of a remand or the exercise of his clemency powers). 

(even when acting on remand, a convening authority may still only take action that conforms to the limitations and conditions prescribed by the remand). 

(in this case, where the CCA set aside the findings and sentence, dismissed the charge and its specifications, and returned the record to the JAG for remand to an appropriate convening authority, the convening authority was only authorized to issue a final order effectuating the dismissal of the charge and specifications, and he exceeded the scope of the CCA’s remand when he referred appellant’s case to an “other” trial under RCM 1107(e)(2) following the CCA’s remand; the CCA’s remand did not purport to confer upon the convening authority all the powers that a convening authority would have possessed on the initial appellate review of the case pursuant to Article 60, UCMJ; because the CCA did not authorize a rehearing, the convening authority was without power to order one, and the convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order). 

2015 (September Term)

Howell v. United States, 75 M.J. 386 (the convening authority is required to direct application of all confinement credits for violations of Article 13 against the approved sentence). 

United States v. Captain, 75 M.J. 99 (where a punitive discharge had been adjudged at trial, where the pretrial agreement provided for approval of any punitive discharge as adjudged, where appellant did not seek disapproval of the punitive discharge in his clemency submission, where the convening authority failed to explicitly state his approval or disapproval of the punitive discharge in his action as required by RCM 1107(d)(1), but noted that the punitive discharge would be executed after final judgment, the convening authority’s action was ambiguous and it was necessary to return the record for corrective action pursuant to RCM 1107(g)). 

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). 

U(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)). 

(prior to acting on the results of a general court-martial and certain special courts-martial, the convening authority must consider the SJA’s recommendation prepared under RCM 1106; although the SJA is not required to examine the record for legal errors, the SJA must state whether corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted by the defense under RCM 1105 or when otherwise deemed appropriate by the staff judge advocate; the SJA’s response to legal errors raised by the defense may consist of a statement of agreement or disagreement with the matter raised by the accused; an analysis or rationale for the SJA’s statement, if any, concerning legal errors, is not required; although not required, an analysis of legal issues raised by the defense may facilitate resolution of legal issues at the trial level, thereby conserving appellate resources). 

(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).

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).

2008 (Transition)

United States v. Travis, 66 M.J. 301 (a convicted servicemember has the right to submit matters to the convening authority that reasonably tend to affect the decision whether to approve or disapprove any findings of guilt or to approve, reduce, or disapprove the adjudged sentence; these matters may be submitted within ten days after the authenticated record of trial and SJA recommendation are served on the accused, and additional time may be requested for good cause shown; failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters; a convening authority must consider matters submitted by the accused).

(clemency is a highly discretionary command function of a convening authority). 


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). 



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).



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. Bodkins, 60 MJ 322 (the requirement to take post-trial action on the results of a court-martial is vested in a military commander, the convening authority, who performs this function with the assistance of his or her staff judge advocate).


(the responsibility of the convening authority to complete post-trial processing in a timely fashion is not dependent upon a request to do so from the accused).


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 convening authority has broad discretion under Article 60(c)(1), 10 U.S.C. § 860(c)(1) (2000), to modify the findings and sentence; this power may be exercised to correct errors or otherwise as a matter of command prerogative).


Steele v. Van Riper, 50 MJ 89 (issuance of administrative discharge after trial has the effect of remitting an adjudged punitive discharge, but does not affect power or responsibility of convening authority to act on findings and 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).

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. Johnston, 51 MJ 227 (the accused’s best opportunity for sentence relief is with 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).

United States v. Pilkington, 51 MJ 415 (after arms-length negotiations, a convening authority may approve post-trial modifications to a pretrial agreement where the accused:  (1) was operating of his/her own free will; (2) has not been stripped of substantial rights; (3) has not been coerced into making the post-trial agreement; and (4) has not otherwise been deprived of his/her due process rights).

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