U.S. v. Davis, 63 M.J. 171

First Principles: Jurisdiction: In Personam

1. an essential component of court-martial jurisdiction is in personam jurisdiction or jurisdiction over the person of an accused; Article 2(a)(1) and (7), UCMJ, authorize court-martial jurisdiction over members of the armed forces and persons serving sentences imposed by courts-martial
2. as a general matter, an individual discharged and returned to civilian life is not subject to the jurisdiction of a court-martial convened under the UCMJ
3. appellant, who had been administratively discharged while confined under a court-martial sentence and whose sentence was set aside, remained subject to the jurisdiction of a court-martial; the power of the court-martial over appellant was established at his initial trial and the intervening administrative discharge did not divest the appellate courts of the power to correct error, order further proceedings, and maintain appellate jurisdiction over the person during the pendency of those proceedings
4. when an appellate court approves the findings of a court-martial, disapproves the sentence, and orders a sentence rehearing, a post-trial administrative discharge does not preclude completion of the sentencing proceedings ordered by an appellate court; there is “continuing jurisdiction” over a case that has been tried and in which the accused was convicted while in a status that subjected him to the UCMJ
5. once jurisdiction attaches, it continues until the appellate processes are complete; a rehearing relates back to the initial trial and to the appellate court’s responsibility to ensure that the results of a trial are just; where the appellate courts are invoked by an appellant and a rehearing is authorized, an intervening administrative discharge does not serve to terminate jurisdiction over the person of the accused for purposes of that rehearing

Trial Stages: Writs and Interlocutory Appeals: Appropriateness of Forum

1. Article 62(a)(1), UCMJ, gives the government a right to appeal certain decisions from a court-martial in which a military judge presides and in which a punitive discharge may be adjudged; even though appellant had not been sentenced to a punitive discharge at his original trial, the government could properly appeal a military judge’s decision at a sentencing rehearing under Article 62, UCMJ, because that rehearing was empowered to adjudge any sentence authorized for the underlying offenses regardless of the sentence approved after the original trial, and a punitive dismissal was such an authorized punishment

Trial Stages: Appeals: Remedies › Rehearing

1. as a general matter, a rehearing may adjudge any punishment authorized by the MCM; however, rehearings are constrained by specific limitations on the sentence that may be approved by the convening authority; offenses on which a rehearing has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory
2. the language of the discussion to RCM 1005(e)(1) appears to limit the sentence at a rehearing to that which was adjudged by a prior court-martial or approved on review; however, this discussion has not been changed since it appeared in the MCM, and does not reflect the 1992 amendment to Article 63, UCMJ, and is inconsistent with the substance of the 1995 amendment to RCM 810(d); in any event, this discussion is non-binding and not controlling over specific provisions of the UCMJ
3. the authority of a rehearing to adjudge a sentence is limited only by the maximum authorized sentence for the offenses of which the accused has been found guilty or the jurisdictional maximum of the court-martial; at a rehearing, the sentencing body, whether members or military judge, should consider the evidence in aggravation, extenuation, and mitigation in light of the allowable maximum sentence for the findings of guilty and adjudge an appropriate sentence; the burden of protecting an accused against higher sentences rests with the convening authority at the time action is taken on an adjudged sentence from a rehearing

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. issues of statutory interpretation and the sentencing jurisdiction of a rehearing are legal questions that an appellate court reviews de novo