U.S. v. Stanton, 80 M.J. 415

First Principles: Jurisdiction: Of U.S. Court of Appeals for the Armed Forces

1. although the CAAF does not have jurisdiction to disturb administrative discharges, in this case, appellant has not asked it to take any action with respect to his administrative discharge; rather, because appellant requests only that the CAAF set aside the finding of guilt on a larceny specification and the sentence of no punishment that the CCA has affirmed, it expressly has jurisdiction under Article 67(c), UCMJ; and in exercising such jurisdiction, the CAAF has previously considered precisely the kind of argument that appellant now makes, namely, that a convening authority breached a term of a pretrial agreement; as such, appellant’s administrative discharge during the pendency of the court-martial proceedings did not remove him from the jurisdiction of the court-martial

Trial Stages: Merits: Pretrial Agreements

1. to form a pretrial agreement under RCM 705, the accused must submit a written offer to the convening authority; this written offer must propose a bilateral agreement in which the defense and the government each make promises to the other; on one side, the proposed agreement may include a promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under this rule; on the other side, the proposed agreement may include a promise by the convening authority to do one or more of the following: (a) refer the charges to a certain type of court-martial; (b) refer a capital offense as noncapital; (c) withdraw one or more charges or specifications from the court-martial; (d) have the trial counsel present no evidence as to one or more specifications or portions thereof; and (e) take specified action on the sentence adjudged by the court-martial; in addition, in a pretrial agreement, all the terms, conditions, and promises between the parties shall be written, although a written agreement may contain some implied terms, and may incorporate other terms by reference
2. in this case, the convening authority’s approval of appellant’s request for a discharge in lieu of trial by court-martial was not a pretrial agreement within the meaning of RCM 705 where the convening authority did not expressly or implicitly promise to vacate the finding of guilt of larceny that had been affirmed by the CCA and dismiss the charge and specification; RCM 705 imposes specific parameters on pretrial agreements, and appellant’s request for a discharge in lieu of trial by court-martial and the convening authority’s approval of that request did not fit within these parameters; appellant’s request did not propose an agreement in which appellant promised to plead guilty, make a confession, or fulfill any other term, and in which the convening authority would make any of the authorized kinds of promises; nothing in appellant’s written request for a discharge or the convening authority’s written approval of the request indicated that the convening authority would vacate or set aside appellant’s affirmed larceny conviction; to find such a provision not in the text of these documents, but instead based on inferences about what the parties understood the words “in lieu of” to mean, would contradict the writing requirement of RCM 705(d)(2)
3. in addition to the conclusion in this case that appellant and the convening authority did not form a pretrial agreement within the meaning of RCM 705, they also did not formed some other type of agreement that the CAAF might enforce; when appellant requested a discharge “in lieu of trial by court-martial” and the convening authority approved that request, the “trial” to be avoided was the resentencing hearing, not the entire court-martial; a resentencing hearing is a trial in the sense that it is a formal judicial examination of evidence and determination of legal claims in an adversary proceeding; the convening authority logically could approve an administrative discharge “in lieu of” a resentencing hearing because the resentencing hearing had not yet occurred; and that is apparently what the convening authority intended, as evidenced by the civilian defense counsel’s admission that he knew the convening authority was not going to disturb the findings; it is difficult to see how the convening authority could approve an administrative discharge in lieu of the trial on the merits of the larceny specification because that part of the court-martial had already occurred, the court-martial had found appellant guilty, the convening authority had approved the finding, and the CCA had affirmed the finding; appellant received what he requested: his sentence was abated, which was the appropriate outcome for a discharge in lieu of a re-sentencing hearing