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).
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).
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).
(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).
(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).
1999
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).