U.S. v. Carter, 76 M.J. 293

Military Justice Personnel: Convening Authority: Generally

1. in a case subject to review under Article 66, UCMJ, a convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused of that action; at that point, the only further contact that the convening authority has with the case occurs in the event of a remand or the exercise of his clemency powers
2. even when acting on remand, a convening authority may still only take action that conforms to the limitations and conditions prescribed by the remand
3. in this case, where the CCA set aside the findings and sentence, dismissed the charge and its specifications, and returned the record to the JAG for remand to an appropriate convening authority, the convening authority was only authorized to issue a final order effectuating the dismissal of the charge and specifications, and he exceeded the scope of the CCA’s remand when he referred appellant’s case to an “other” trial under RCM 1107(e)(2) following the CCA’s remand; the CCA’s remand did not purport to confer upon the convening authority all the powers that a convening authority would have possessed on the initial appellate review of the case pursuant to Article 60, UCMJ; because the CCA did not authorize a rehearing, the convening authority was without power to order one, and the convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order

Military Justice Personnel: Convening Authority: Action

1. in a case subject to review under Article 66, UCMJ, a convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused of that action; at that point, the only further contact that the convening authority has with the case occurs in the event of a remand or the exercise of his clemency powers
2. even when acting on remand, a convening authority may still only take action that conforms to the limitations and conditions prescribed by the remand
3. in this case, where the CCA set aside the findings and sentence, dismissed the charge and its specifications, and returned the record to the JAG for remand to an appropriate convening authority, the convening authority was only authorized to issue a final order effectuating the dismissal of the charge and specifications, and he exceeded the scope of the CCA’s remand when he referred appellant’s case to an “other” trial under RCM 1107(e)(2) following the CCA’s remand; the CCA’s remand did not purport to confer upon the convening authority all the powers that a convening authority would have possessed on the initial appellate review of the case pursuant to Article 60, UCMJ; because the CCA did not authorize a rehearing, the convening authority was without power to order one, and the convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order

Trial Stages: Initial Review: Action

1. in a case subject to review under Article 66, UCMJ, a convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused of that action; at that point, the only further contact that the convening authority has with the case occurs in the event of a remand or the exercise of his clemency powers

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. appointment of a CCA judge to sit simultaneously on the United States Court of Military Commission Review does not violate the Appointments Clause, nor does it interfere with an otherwise valid statutory authorization to serve on a CCA; a judge may simultaneously sit on a CCA and on the USCMCR
2. if the CCA sets aside the findings and sentence, Article 66(d), UCMJ, presents a binary choice: a CCA may order a rehearing and, if it does not order a rehearing, it shall dismiss the charges; in this case, where the CCA did not order a rehearing and instead set aside and dismissed the charges, the convening authority was not authorized to order any further proceedings
3. the text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing; the statute says that a CCA may order a rehearing; it does not say that it must

Trial Stages: Appeals: Remedies › Remand

1. in this case, where the CCA set aside the findings and sentence, dismissed the charge and its specifications, and returned the record to the JAG for remand to an appropriate convening authority, the convening authority was only authorized to issue a final order effectuating the dismissal of the charge and specifications, and he exceeded the scope of the CCA’s remand when he referred appellant’s case to an “other” trial under RCM 1107(e)(2) following the CCA’s remand; the CCA’s remand did not purport to confer upon the convening authority all the powers that a convening authority would have possessed on the initial appellate review of the case pursuant to Article 60, UCMJ; because the CCA did not authorize a rehearing, the convening authority was without power to order one, and the convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order

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

1. an appellate court reviews questions of jurisdiction and statutory interpretation de novo