U.S. v. Erby, 54 M.J. 476

First Principles: Jurisdiction: Of Courts of Criminal Appeals

1. the Courts of Criminal Appeals have authority under Article 66(c), UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. the Courts of Criminal Appeals have authority under Article 66(c), UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ
2. in the absence of findings of fact, appellant’s allegations of cruel and unusual punishment required remand to the Court of Criminal Appeals for factfinding where: (1) Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and (2) the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. in the absence of findings of fact, appellant’s allegations of cruel and unusual punishment required remand to the Court of Criminal Appeals for factfinding where: (1) Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and (2) the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment