2022 (October Term)
United States v. McAlhaney, 83 M.J. 164 (RCM 1104 provides an opportunity for either party to file a post-trial motion to address, among other matters, an allegation of error in the convening authority’s action under RCM 1109 or 1110; parties have five days after receiving the convening authority’s action to file a post-trial motion alleging error in the action of the convening authority; an accused’s failure to file a post-trial motion within the allotted time forfeits his or her right to object to the accuracy of the convening authority’s decision on an action, absent plain error).
(an appellant’s failure to object to the factual language in the reprimand in a post-trial motion does not forfeit this issue; issuing a reprimand through the convening authority’s action memorandum does not make the reprimand an error in the convening authority’s action, which first must be addressed via a post-trial motion to preserve an appellate challenge pursuant to RCM 1104(b)(1)(F); while it is true that a convening authority typically issues a reprimand via the same instrument as the action, nonetheless, there is no rule requiring these two acts to be effectuated via the same instrument or even at the same time; accordingly, RCM 1104(b)(1)(F) is not meant to address inappropriately severe reprimand challenges under Article 66(d), UCMJ).
2021 (October Term)
United States v. Miller, 82 M.J. 204 (under the procedural rules prior to January 1, 2019, the convening authority’s action was the final stage before the record was forwarded to the appellate court; in general, RCM 1104(b)(1)(A) (2016 ed) required the government to cause a copy of the record of trial to be served on the accused as soon as the record of trial was authenticated; the accused, then, had a minimum of ten days for submission of clemency matters; only then could the convening authority take action).
(the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete).
(in this case, because the convening authority was not required to consider a complete record of trial prior to taking action, the nonexistence of a military judge’s post-trial ruling at the time the convening authority acted is analyzed as a post-trial processing error rather than as a substantial omission from the record).
(either party may file a post-trial motion within five days of receiving the convening authority’s action to address an asserted error in the convening authority’s action).
(in this case, where the trial defense counsel was served with a copy of the convening authority’s action but made no motion alleging error within five days, the failure to file a post-trial motion within the allotted time forfeited the accused’s right to object to the accuracy of the convening authority’s decision on an action, absent plain error).
(in determining whether to take action, or to decline taking action under RCM 1109, the convening authority shall consult with the staff judge advocate or legal advisor; and before taking or declining to take action on the sentence, the convening authority shall consider matters timely submitted by the accused, and may consider, inter alia, such other matters as the convening authority deems appropriate).
(under the new post-trial processing procedural rules with the 2019 RCM, the staff judge advocate’s review of the record and written recommendation have been done away with; RCM 1109(d)(2) (2019 ed) places no requirement on the staff judge advocate to review the record, or wait for a completed record, prior to consulting with the convening authority on his or her determination whether take action or decline to take action).
(in this case, where the convening authority consulted with the staff judge advocate prior to taking action, and where RCM 1109(d)(2) (2019 ed) placed no requirement on the staff judge advocate to review the record, or wait for a completed record prior to that consultation, the omission of the military judge’s post-trial written ruling from the record of trial prior to that consultation did not render the staff judge advocate’s recommendation uninformed).
(nothing in the new post-trial processing procedural rules with the 2019 RCM supports a finding that all substantive rulings of the military judge should exist before a convening authority determines whether to take action; RCM 1109(d)(2) and (d)(3) (2019 ed), only require that the convening authority consult with the staff judge advocate and consider an accused’s RCM 1106 clemency matters before deciding whether to act; the record of trial is not required to be complete at this stage of post-trial processing; an accused has the right to submit clemency matters, and the convening authority must consider the clemency matters; if an accused wants to ensure that the convening authority considers his post-trial confinement conditions, the appropriate place is to include it in his clemency request or to file a post-trial motion within five days of receiving the convening authority’s action).
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).
United States v. Mooney, 77 M.J. 252 (in light of the comprehensive statutory scheme for deferring and interrupting sentences under Articles 14, 57, and 57a, UCMJ, in this case, the convening authority was not authorized to order a consecutive sentence where a federal conviction was followed by a court-martial conviction; the statutory provisions permitted interruption of military confinement only if the accused was tried, sentenced, and serving the adjudged military confinement prior to his release to the civilian authorities to face trial by them, and permitted deferment of confinement only if the accused requested deferment or was in the custody of a state or foreign country when he was returned for trial by court-martial).
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).
2015 (September Term)
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).
(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).
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).
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).
(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).
(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).
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. 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).