U.S. v. Wilson, 65 M.J. 140

Military Justice Personnel: Convening Authority: Action

1. the convening authority has sole discretion to approve, disapprove, commute, or suspend the sentence adjudged by the court-martial; because of the importance of the convening authority’s action in the court-martial process, a clear and unambiguous convening authority’s action is required
2. a convening authority is vested with substantial discretion when he or she takes action on the sentence of a court-martial; RCM 1107(d)(1) provides that the convening authority may for any or no reason disapprove a legal sentence in whole or in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of the punishment is not increased; the convening or higher authority may not increase the punishment imposed by a court-martial; the approval or disapproval must be explicitly stated
3. in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect; due to this broad authority, the convening authority is an accused’s best hope for sentence relief; accordingly, the convening authority must exercise care in drafting the action

Trial Stages: Initial Review: Action

1. the convening authority has sole discretion to approve, disapprove, commute, or suspend the sentence adjudged by the court-martial; because of the importance of the convening authority’s action in the court-martial process, a clear and unambiguous convening authority’s action is required
2. a convening authority is vested with substantial discretion when he or she takes action on the sentence of a court-martial; RCM 1107(d)(1) provides that the convening authority may for any or no reason disapprove a legal sentence in whole or in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of the punishment is not increased; the convening or higher authority may not increase the punishment imposed by a court-martial; the approval or disapproval must be explicitly stated
3. in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect; due to this broad authority, the convening authority is an accused’s best hope for sentence relief; accordingly, the convening authority must exercise care in drafting the action
4. in announcing that the “remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed,” the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval; under the plain meaning of this language, the dishonorable discharge was not approved

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; because the convening authority in this case did not approve the dishonorable discharge, it was not before the lower court on review and that portion of the adjudged sentence could not be affirmed; for the lower court to do so constituted error