U.S. v. Politte, 63 M.J. 24

First Principles: Jurisdiction: Of Courts of Criminal Appeals

1. a Court of Criminal Appeals can only review cases within its statutory jurisdiction; under Article 66, UCMJ, the Courts of Criminal Appeals may hear a case on the merits where: (1) a Judge Advocate General refers courts-martial records to the court; (2) a convening authority has approved the findings and sentence; and (3) the sentence as approved extends to death, a dismissal, a punitive discharge or confinement for one year or more
2. regarding post-trial matters, Courts of Criminal Appeals have jurisdiction to refrain from addressing the merits of a case, and instead return an action to the convening authority if further clarification of the meaning of the action is necessary

Military Justice Personnel: Convening Authority: Action

1. 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
2. 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
3. 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

Trial Stages: Initial Review: Action

1. 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
2. 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
3. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. regarding post-trial matters, Courts of Criminal Appeals have jurisdiction to refrain from addressing the merits of a case, and instead return an action to the convening authority if further clarification of the meaning of the action is necessary
2. because of the importance of the convening authority’s action in the court-martial process, appellate courts require a clear and unambiguous convening authority’s action; in this case, where the convening authority’s action was ambiguous, the lower court erred by failing to identify this ambiguity and return the action to the convening authority for clarification
3. RCM 1107(g) permits an authority acting under Article 64, 66, 67, or 69 to instruct a convening authority to withdraw an original action and substitute a corrected action where the original action is incomplete, ambiguous, or contains clerical error

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

1. appellate courts may use surrounding documentation to interpret an otherwise unclear convening authority’s action