U.S. v. Brubaker- Escobar, 81 M.J. 471

Military Justice Personnel: Convening Authority: Action

1. in any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part; however, depending upon the date that the charges were preferred or referred and depending upon the sentence that was adjudged, such an error does not necessarily deprive a CCA of jurisdiction
2. in this case, where appellant was found guilty of charges committed before January 1, 2019, but not referred until after January 1, 2019, the convening authority erred by taking no action; however, the new version of Article 66, UCMJ, applied, and because a BCD was adjudged, the CCA had jurisdiction to review appellant’s case despite the procedural error committed by the convening authority
3. in this case, where appellant was found guilty of at least one specification involving an offense that was committed before January 1, 2019 and appellant had been sentenced to a BCD and reduction to E-1, the convening authority erred by taking no action, but the convening authority’s error did not constitute plain error and was harmless where (1) appellant did not seek clemency from the convening authority, (2) under the Article 60, UCMJ, in effect prior to January 1, 2019, the convening authority lacked the power to grant clemency with respect to the BCD adjudged, and (3) although the convening authority in theory could have granted clemency with respect to the adjudged rank reduction, that relief would have been meaningless because appellant’s punitive discharge would have resulted in an automatic reduction to E-1

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part; however, depending upon the date that the charges were preferred or referred and depending upon the sentence that was adjudged, such an error does not necessarily deprive a CCA of jurisdiction
2. CCAs are courts of limited jurisdiction, defined entirely by statute
3. the new version of Article 66, UCMJ, 10 USC § 866 (2018), is applicable to those cases that were preferred or referred on or after January 1, 2019; the new version automatically provides the CCAs with jurisdiction when the military judge enters a judgment into the record that includes a sentence of a bad-conduct discharge

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

1. CCAs are courts of limited jurisdiction, defined entirely by statute; the scope of that jurisdiction is a legal question that the CAAF reviews de novo
2. the CAAF reviews a CCA’s construction of statutes and executive orders de novo

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where an error is procedural and not jurisdiction, Article 59(a), UCMJ, provides that such procedural errors are tested for material prejudice to a substantial right to determine whether relief is warranted
2. in this case, where appellant was found guilty of at least one specification involving an offense that was committed before January 1, 2019 and appellant had been sentenced to a BCD and reduction to E-1, the convening authority erred by taking no action, but the convening authority’s error did not constitute plain error and was harmless where (1) appellant did not seek clemency from the convening authority, (2) under the Article 60, UCMJ, in effect prior to January 1, 2019, the convening authority lacked the power to grant clemency with respect to the BCD adjudged, and (3) although the convening authority in theory could have granted clemency with respect to the adjudged rank reduction, that relief would have been meaningless because appellant’s punitive discharge would have resulted in an automatic reduction to E-1

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

1. CCAs are courts of limited jurisdiction, defined entirely by statute; the scope of that jurisdiction is a legal question that the CAAF reviews de novo
2. the CAAF reviews a CCA’s construction of statutes and executive orders de novo

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

1. in the Military Justice Act of 2016, § 5542(c)(1), 130 Stat. at 2967 (2016), as amended by NDAA 2018, § 531(n)(1), 131 Stat. at 1387 (2017), Congress gave the President the authority to designate the effective date of its provisions, as well as the duty to prescribe in regulations whether, and to what extent, the amendments made by the act shall apply to a case in which a specification alleges the commission, before the effective date of such amendments, of one or more offenses or to a case in which one or more actions under the UCMJ have been taken before the effective date of such amendments; the President then designated January 1, 2019, as the effective date of the MJA, except as otherwise provided in the MJA or his Executive Order No. 13,825 § 3(a), 83 Fed. Reg. 9889 (March 1, 2018); as one of those exceptions, the President ordered that if an accused is found guilty of committing at least one offense before January 1, 2019, Article 60, UCMJ, as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority to the extent that Article 60 requires action by the convening authority on the sentence, or authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part; unlike the new Article 60a, the old version of Article 60, states that action on the sentence of a court-martial shall be taken by the convening authority; therefore, in any case where an accused is found guilty of at least one specification where the offense was committed before January 1, 2019, a convening authority errs if he fails to take one of the following mandated post-trial actions in a case: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part

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

1. Presidential Executive Order No. 13,825, 83 Fed. Reg. 9889 (March 1, 2018) was a valid exercise of the President’s rulemaking authority