U.S. v. Pflueger, 65 M.J. 127

Trial Stages: Sentence and Punishment: Forfeitures › Mandatory

1. a court-martial sentence that includes specified punishments, including a bad-conduct discharge, triggers automatic forfeitures of pay and allowances under Article 58b, UCMJ
2. just as automatic forfeitures are triggered by specific types of court-martial sentences, there is a comparable provision for the return of automatic forfeitures to the servicemember under specified circumstances; amounts that were subject to automatic forfeitures shall be paid to the servicemember if the sentence is: (1) set aside, (2) disapproved, or (3) as finally approved, does not provide for one of the punishments that triggers automatic forfeitures -- death, confinement for more than six months, or confinement for six months or less and a punitive separation; Article 58b, UCMJ, does not expressly identify the stage of the court-martial review process at which a sentence is finally approved, or no longer provides for a punishment that triggers mandatory forfeitures; however, the statutory requirement for return of forfeitures in Article 58b is not limited to actions by judicial authorities or a determination that a punishment has been disapproved; the statute also provides for return of forfeitures when the sentence as finally approved, does not provide for the punishment that triggered the automatic forfeitures

Trial Stages: Initial Review: Action

1. the initial responsibility for reviewing a court-martial sentence rests with the convening authority, who has the authority to modify the sentence so long as the severity of the punishment is not increased; in acting on a sentence, the convening authority may approve, disapprove, commute, or suspend the sentence in whole or in part; the convening authority also may remit all or part of any unexecuted part of a sentence, except for death; when the convening authority suspends execution of all or part of the sentence, successful completion of a period of suspension results in automatic remission of the suspended portion of the sentence

Trial Stages: Initial Review: Execution of Sentences

1. direct judicial review provides the final judgment as to the legality of the proceedings in a case involving a punitive separation; the determination that a proceeding was lawful, however, does not constitute the final action on the sentence in a case involving a punitive separation; after legal review is completed, a punitive separation is further reviewed as a matter of executive discretion under Article 71, UCMJ; that portion of a sentence providing for dismissal of an officer may not be executed until approved by the Secretary concerned; with respect to enlisted personnel, a dishonorable or bad-conduct discharge may be ordered executed only by the officer then exercising general court-martial jurisdiction over the accused except as otherwise prescribed by the Secretary concerned; that officer has the power to remit or suspend any unexecuted portion of the sentence

Trial Stages: Appeals: Generally

1. suspension or remission of all or a part of a sentence does not affect appellate jurisdiction
2. direct judicial review provides the final judgment as to the legality of the proceedings in a case involving a punitive separation; the determination that a proceeding was lawful, however, does not constitute the final action on the sentence in a case involving a punitive separation; after legal review is completed, a punitive separation is further reviewed as a matter of executive discretion under Article 71, UCMJ; that portion of a sentence providing for dismissal of an officer may not be executed until approved by the Secretary concerned; with respect to enlisted personnel, a dishonorable or bad-conduct discharge may be ordered executed only by the officer then exercising general court-martial jurisdiction over the accused except as otherwise prescribed by the Secretary concerned; that officer has the power to remit or suspend any unexecuted portion of the sentence

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. when a punitive separation is approved by the convening authority, the case is reviewed by the appropriate CCA under Article 66

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. in the course of conducting sentence appropriateness review under Article 66(c), UCMJ, the CCA has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay

Trial Stages: Appeals: Remedies › Generally

1. actions taken by executive branch authorities in the course of acting on a punitive separation under Article 71, UCMJ, are pertinent to the nature of a sentence finally approved for the purposes of Article 58b, UCMJ, which provides for the return of automatic forfeitures when the sentence as finally approved, does not provide for the punishment that triggered the automatic forfeitures; thus, when a punitive separation has been remitted, and consequently cannot be executed, the servicemember is entitled to relief in the form of the return of automatic forfeitures under Article 58b
2. the CCA did not provide appellant with meaningful sentence relief under Tardif for unreasonable post-trial delay in the form of the return of automatic forfeitures when it disapproved the adjudged bad-conduct discharge that had previously been remitted by the convening authority, where that remission action already satisfied the Article 58b statutory requirement for the return of the forfeitures

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

1. whether the action taken by the CCA in the course of conducting its sentence appropriateness review under Article 66(c), UCMJ, provided meaningful relief for unreasonable or unexplained post-trial delay is a question of law that CAAF considers under a de novo standard of review