TRIAL STAGES: Sentence and Punishment: Mandatory

2017 (October Term)

United States v. Kelly, 77 M.J. 404 (in 2013, Congress amended Article 56, UCMJ, to provide for mandatory minimum punitive discharges in cases involving rape, sexual assault, forcible sodomy, and attempts to commit such offenses).

(Article 56(b), UCMJ, 10 USC § 856(b) (2012 & Supp I 2014), which mandates that an accused convicted of certain offenses be punished with a dismissal or dishonorable discharge, does not restrict a CCA’s ability to review a mandatory minimum sentence for sentence appropriateness, given the unrivaled statutory powers of the CCAs under Article 66(c), UCMJ, 10 USC § 866(c) (2012), which vests the CCAs with broad discretionary power to review sentence appropriateness; the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities; although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs; Article 56(b), UCMJ, does not impliedly repeal the CCAs’ vast powers; presumably, Congress was aware of Article 66(c)’s broad scope when it enacted Article 56 and thus would have explicitly limited Article 66(c) review if it so desired; accordingly, a CCA has the power to disapprove a mandatory minimum sentence set forth in Article 56, UCMJ). 



United States v. Lundy, 60 MJ 52  (there are two distinct types of reductions in pay grade applicable to enlisted personnel: (1) an adjudged reduction included in the sentence adjudged by a court-martial under RCM 1003(b)(4); and (2) a mandatory reduction to pay grade E-1, the lowest enlisted pay grade, under Article 58a; like mandatory forfeitures, a mandatory reduction is not part of the sentence; moreover, under Article 58a, each military department may establish a service-specific approach as to whether mandatory reduction in pay grade should be a consequence of a court-martial sentence). 


(adjudged reductions in pay grade take effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged,  or (2) the date on which the sentence is approved by the convening authority; however, the convening authority has discretion to defer the effective date for all or part of the period leading up to the convening authority’s formal action on the sentence under Article 60(c), UCMJ; mandatory reductions in pay grade, in contrast, do not take effect until the convening authority takes formal action on the sentence).

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