U.S. v. Nerad, 69 M.J. 138

Military Justice Personnel: Convening Authority: Generally

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority
3. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

Military Justice Personnel: Convening Authority: Clemency

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority
3. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

Military Justice Personnel: Convening Authority: Action

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority

Trial Stages: Initial Review: Generally

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority
3. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

Trial Stages: Initial Review: Action

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority

Trial Stages: Initial Review: Clemency

1. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
2. granting mercy for any reason or no reason is within the purview of the convening authority
3. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. while CCAs have broad authority under Article 66(c), UCMJ, to disapprove a finding, that authority is not unfettered; it must be exercised in the context of legal - not equitable - standards, subject to appellate review; relatedly, while Article 66(c), UCMJ, affords a CCA broad powers, when faced with a constitutional statute, a CCA cannot, for example, override Congress’s policy decision, articulated in a statute, as to what behavior should be prohibited
2. where it is unclear from the CCA’s opinion whether it exceeded its authority by disapproving a finding with reference to something other than a legal standard, potentially infringing on the sole prerogative of the convening authority under Article 60, UCMJ, to disapprove a finding based on purely equitable grounds, and where it is also unclear from the CCA’s opinion whether the CCA abused its discretion by refusing to affirm a finding because it thought it “unreasonable” to criminalize such conduct “under the circumstances,” even though the circumstances fell squarely within the definition of child pornography crafted by Congress and referenced by the CCA, the case must be remanded for further proceedings before the lower court
3. Article 66(c), UCMJ, states, that a CCA may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; broken into its constituent parts, this statutory language provides that a CCA may affirm only such findings and sentence that it: (1) finds correct in law; (2) finds correct in fact; and (3) determines, on the basis of the entire record, should be approved
4. (findings and sentence are grammatically coupled in Article 66(c), UCMJ, joined equally with the phrase, “and determines ... should be approved;” the phrase “should be approved” must have meaning with respect to findings as well as sentence and modify both; when a modifier is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents; therefore, it is impossible - based on the statute - to acknowledge a CCA’s power to modify or disapprove a “correct” sentence while disagreeing it has any such power with respect to a “correct” finding
5. CCAs may not disapprove findings on equitable grounds or disregard their statutory duty to determine legal and factual sufficiency; a CCA may only set aside a legally and factually sufficient finding on the basis of a legal - as opposed to equitable - ground
6. while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority
7. the words “should be approved” in Article 66(c), UCMJ, do have some meaning, and the proposition that the “should be approved” clause of Article 66(c), UCMJ, means only that the lower court can adjust findings and sentences that are incorrect in law or fact, at least as the standards for legal and factual sufficiency are ordinarily understood, is rejected; that approach both fails to afford independent meaning to “should be approved” and renders it surplusage, as a CCA clearly may not approve a legally or factually insufficient finding or an illegal sentence
8. the statutory phrase “should be approved” in Article 66(c), UCMJ, does not involve a grant of unfettered discretion but instead sets forth a legal standard subject to appellate review
9. although Article 66(c), UCMJ, permits a CCA to examine the record in a particular case and dismiss a finding because an accused’s criminality was unreasonably exaggerated by the same acts beings charged multiple ways, that Article does not permit a CCA to disapprove a legally and factually sufficient finding because it believes that the conduct - while falling squarely within the ambit of behavior prohibited by a constitutional criminal statute - should not be criminalized
10. the CCAs can assess the record and determine whether the findings and sentence “should be approved” in the event of error, even if the error did not rise to the level of requiring disapproval of the finding or sentence as a matter of law - for example, in the context of trial and post-trial errors in which doctrines applicable to issues of law ‑ such as waiver - would preclude CCA action in the absence of the “should be approved” language of Article 66(c), UCMJ; a CCA may not, however, disapprove a finding based on pure equity
11. when a CCA acts to disapprove findings that are correct in law and fact, the CCA’s action is accepted on appellate review unless in disapproving the findings, the CCA clearly acted without regard to a legal standard or otherwise abused its discretion; a CCA abuses its discretion when it disapproves a finding based on purely equitable factors or because it simply disagrees that certain conduct - clearly proscribed by an unambiguous statute - should be criminal
12. even though a CCA is not required to identify the basis for its action, failure to do so makes it difficult to determine whether a CCA’s exercise of its Article 66(c), UCMJ, power was made based on a correct view of the law; the better practice, if a CCA sets aside a finding that is correct in law and fact, is for it to explain why the finding is unreasonable, based on a legal standard
13. the failure of the CCA to disclose the legal basis for its decision to set aside a finding of guilty to a child pornography offense required a remand to that court for further review; the CCA appeared to believe it had unfettered discretion to disapprove a finding when it disapproved the finding with the comment that the conduct was not of the sort which warranted criminal prosecution, and it identified no error or other legal rationale with respect to the charge, the specification, the finding, the trial, or the post-trial process that warranted exercise of its unique power under Article 66(c), UCMJ
14. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

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

1. in exercising its statutory mandate under Article 66(c), UCMJ, a CCA has discretion to approve only a sentence, or such part of a sentence, that it determines, on the basis of the entire record, should be approved, even if the sentence is legally correct; even that broad discretion is not unfettered, however; the CAAF may review a CCA’s sentence appropriateness determination for abuse of discretion
2. decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. a CCA may approve only that part of a sentence that it finds should be approved; in reviewing the exercise of this power, the CAAF asks if the CCA abused its discretion or acted inappropriately - that is, arbitrarily, capriciously, or unreasonably - as a matter of law
2. the power of the CAAF to review a case certified by the Judge Advocate General under Article 67(a)(2), UCMJ, includes the power to order remedial proceedings, such as a remand, to ensure that the lower court reviews the findings and sentence approved by the convening authority in a manner consistent with a correct view of the law

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

1. the scope and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation, a question of law reviewed by an appellate court de novo
2. a CCA may approve only that part of a sentence that it finds should be approved; in reviewing the exercise of this power, the CAAF asks if the CCA abused its discretion or acted inappropriately - that is, arbitrarily, capriciously, or unreasonably - as a matter of law

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. the President has well-established authority within the military justice system to clarify or give meaning to the UCMJ through promulgation of the Discussion and Analysis sections of the MCM; the President’s analysis of the punitive articles is persuasive, but not binding, authority; moreover, where the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution, will not be disturbed on appeal

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. when a modifier in a statute is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents