U.S. v. Alexander & U.S. v. Vanderschaaf, 63 M.J. 269

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. after authentication of the record of trial, the convening authority’s SJA prepares a recommendation for action by the convening authority; the recommendation assists the convening authority in deciding what action to take on the sentence; under the authority granted by Congress in Article 60(d), UCMJ, the President has prescribed the contents of the recommendation, including the requirement to provide concise information as to the findings and sentence adjudged by the court-martial; the information regarding the findings need not include either the verbatim text of the specification or an exact description of any exceptions or substitutions made by the court-martial
2. the SJA serves the recommendation on the defense prior to submission to the convening authority; the defense may provide the convening authority with comments on the recommendation, as well as other matters; if the defense does not comment on a deficiency in the SJA’s recommendation, the matter is waived, absent plain error
3. 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
4. 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

Military Justice Personnel: Convening Authority: Action

1. 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)
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. 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
12. 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

Trial Stages: Pretrial: Charges and Specifications

1. the format of charge and specification is used to allege violations of the UCMJ; the charge is a legal citation, while the specification sets forth the alleged facts constituting the charged offense; the charge sheet, which contains the charges and specifications, provides the basis for referral and arraignment and is included in the record of trial

Trial Stages: Merits: Findings

1. the court-martial announces its findings on each charge and specification following the presentation of evidence, closing arguments, instructions, and deliberations; the findings do not expressly incorporate the text of the charges and the underlying specifications; instead, the findings constitute a decision by the factfinder whether the government has met its burden of proof beyond a reasonable doubt as to the charged offense or as to any lesser included offense
2. when the court-martial is adjourned following announcement of the sentence, the findings and sentence shall be reported promptly to the convening authority; trial counsel prepares the report of the findings and sentence, which must be submitted in writing; neither the UCMJ nor the MCM offers any guidance as to the amount of detail that should be provided regarding the findings

Trial Stages: Initial Review: Post-trial Recommendation

1. after authentication of the record of trial, the convening authority’s SJA prepares a recommendation for action by the convening authority; the recommendation assists the convening authority in deciding what action to take on the sentence; under the authority granted by Congress in Article 60(d), UCMJ, the President has prescribed the contents of the recommendation, including the requirement to provide concise information as to the findings and sentence adjudged by the court-martial; the information regarding the findings need not include either the verbatim text of the specification or an exact description of any exceptions or substitutions made by the court-martial
2. the SJA serves the recommendation on the defense prior to submission to the convening authority; the defense may provide the convening authority with comments on the recommendation, as well as other matters; if the defense does not comment on a deficiency in the SJA’s recommendation, the matter is waived, absent plain error
3. 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
4. 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

Trial Stages: Initial Review: Action

1. 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)
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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;
8. 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
9. 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
10. 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
11. 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
12. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including: (1) every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; (2) every case involving an approved death sentence; and (3) any other case submitted to the court of criminal appeals by the Judge Advocate General under Article 69(d)
2. under Article 66(c), UCMJ, a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; the focus on findings approved by the convening authority contemplates that the findings must be endorsed or ratified by the convening authority
3. 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
4. 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
5. 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
6. 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