U.S. v. McAlhaney, 83 M.J. 164

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a reprimand is among the punishments that a court-martial may adjudge as an authorized sentence; a court-martial shall not specify the terms or wording of a reprimand; if imposed, the reprimand shall be issued, in writing, by the convening authority; a reprimand adjudged by a court-martial is a punitive censure

Trial Stages: Initial Review: Action

1. RCM 1104 provides an opportunity for either party to file a post-trial motion to address, among other matters, an allegation of error in the convening authority’s action under RCM 1109 or 1110; parties have five days after receiving the convening authority’s action to file a post-trial motion alleging error in the action of the convening authority; an accused’s failure to file a post-trial motion within the allotted time forfeits his or her right to object to the accuracy of the convening authority’s decision on an action, absent plain error
2. an appellant’s failure to object to the factual language in the reprimand in a post-trial motion does not forfeit this issue; issuing a reprimand through the convening authority’s action memorandum does not make the reprimand an error in the convening authority’s action, which first must be addressed via a post-trial motion to preserve an appellate challenge pursuant to RCM 1104(b)(1)(F); while it is true that a convening authority typically issues a reprimand via the same instrument as the action, nonetheless, there is no rule requiring these two acts to be effectuated via the same instrument or even at the same time; accordingly, RCM 1104(b)(1)(F) is not meant to address inappropriately severe reprimand challenges under Article 66(d), UCMJ

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. 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 which it determines on the basis of the entire record, should be approved; these three components of the CCA’s Article 66(d), UCMJ, authority are commonly referred to as legal sufficiency, factual sufficiency, and sentence appropriateness
2. under Article 66(d), UCMJ, the CCA conducts a de novo review of the record for legal sufficiency, factual sufficiency, and sentence appropriateness

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

1. an appellant’s failure to object to the factual language in the reprimand in a post-trial motion does not forfeit this issue; issuing a reprimand through the convening authority’s action memorandum does not make the reprimand an error in the convening authority’s action, which first must be addressed via a post-trial motion to preserve an appellate challenge pursuant to RCM 1104(b)(1)(F); while it is true that a convening authority typically issues a reprimand via the same instrument as the action, nonetheless, there is no rule requiring these two acts to be effectuated via the same instrument or even at the same time; accordingly, RCM 1104(b)(1)(F) is not meant to address inappropriately severe reprimand challenges under Article 66(d), UCMJ
2. in this case, the CCA erred in conducting a two-pronged analysis of the reprimand by first reviewing de novo whether sentencing appellant to a reprimand was overly severe and then reviewing for plain error whether the language used in the reprimand was factually accurate; because a reprimand is a component of an adjudged sentence, appellant’s challenge to the reprimand, both generally and as written, implicated sentence appropriateness which is reviewed de novo

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

1. the scope, applicability, and meaning of Article 66(d), UCMJ, is a matter of statutory interpretation that the CAAF reviews de novo

Trial Stages: Appeals: Remedies › Remand

1. where the CCA failed to analyze whether the reprimand was appropriate, as written, under the proper de novo standard of review, the case must be remanded for a new Article 66(d), UCMJ, determination using the correct de novo standard of review

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

1. the scope, applicability, and meaning of Article 66(d), UCMJ, is a matter of statutory interpretation that the CAAF reviews de novo
2. the appropriate standard of review with respect to the wording of an adjudged reprimand is de novo