Action by Convening Authority. Article 60, UCMJ; RCM 1107

In military court-martial appeals, an overview of action by convening authority. Article 60, UCMJ; RCM 1107:

• Military Court-Martial Appeals
• Action by the Judge Advocate General. Articles 66 and 69, UCMJ; RCM 1201
• Requirements for action on a court martial sentence
• Appeals. Deferment of confinement
• Assertions of Ineffective Assistance of Counsel
• Claims of post-trial cruel and unusual punishment
• Deferment of forfeitures
• Effectiveness of Military Defense Lawyers in the Post-trial Area
• Who may act – the person who convened the court
• General considerations
• Action on findings not required but permissible
• Action on sentence must

RCM 1107(f)(4)(C)

If confinement is ordered executed, “the convening authority shall designate the place . . . in the action, unless otherwise prescribed by the Secretary concerned.”

• RCM 1107(f)(4)(C)
• AR 27-10, para. 5-32 a states that the CA does not designate a place of confinement.
• AR 190-47 controls. AFI 51-201, para. 9.4. “HQ AFSFC/SFC, not the convening authority, selects the corrections facility for post-trial confinement and rehabilitation for inmates gained by HQ AFSFC/SFC [inmates not ordered to serve sentences in local correctional facilities].”

When to act? (see appeals)

Cannot act before RCM 1105(c) time periods have expired or submissions have been waived.

United States v. Lowe , 58 M.J. 261 (C.A.A.F. 2003). Prejudicial error for the CA to act on the case prior to service of the SJAR on the appellant’s defense counsel as required by RCM 1106(f)(1). The plain language of RCM 1106(f)(1) as well as Article 60, UCMJ establish, as a matter of right, the requirement for service of the SJAR prior to action. The court noted: The opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, anymore than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal. “The essence of post-trial practice is basic fair play – notice and an opportunity to respond.”

United States v. Leal ,  44 M.J. 235, 237 (C.A.A.F. 1996). Id . at 263. The appellant established some “colorable showing of possible prejudice” by showing that he was denied the opportunity to advise the CA of his gunshot wound and his future prognosis. Finally, the court provided some common sense guidance to military practitioners: Where there is a failure to comply with RCM 1106(f), a more expeditious course would be to recall and modify the action rather than resort to three years of appellate litigation. The former would appear to be more in keeping with principles of judicial economy and military economy of force. Id . at 264.

What if an error is discovered after action is taken?

RCM 1107(f)(2) provides that:

1. Before publication or official notice to the accused, CA may recall and modify any aspect of action (including modification less favorable to the accused, such as adding the discharge approval language, as was required in United States v. Schiaffo , 43 M.J. 835 (A. Ct. Crim. App. 1996)).
2. If either publication or official notice has occurred, CA may only make changes that do not result in action less favorable to the accused.
3. CA must personally sign the modified action.
4. Action after appellate court has the case is a nullity unless subsequent action is directed or case is returned to the CA for further action. United States v. Klein , 55 M.J. 752 (N-M. Ct. Crim. App. 2001).

Action by the SJA after court martial

McCray v. Grande , 38 M.J. 657 (A.C.M.R. 1993). Sentence, for purposes of commutation, begins to run on date announced.

United States v. Foster , 40 M.J. 552 (A.C.M.R. 1994). Court does not have to treat ambiguous action ($214 per month) as forfeiture for one month; may return to CA for clarification of intent.

United States v. Muirhead , 48 M.J. 527 (N-M. Ct. Crim. App. 1998). Accused sentenced to “forfeit all pay and allowances, which is $854.40 for 2 years,” and CA approved the same. Held: ambiguous sentence. CA under RCM 1107(d)(1) can return case to court for clarification of ambiguous sentence; if he does not, he can only approve a sentence no more severe than the unambiguous portion. Rather than return to CA, the NMCCA simply affirmed the unambiguous dollar amount. M. Post-trial deals. United States v. Olean , 59 M.J. 561 (C.G. Ct. Crim. App. 2002). CA authorized to enter into post-trial deals where a rehearing is impracticable. In the case at bar, the CA agreed to approve a sentence of no punishment, dismiss the specifications which were set aside and returned for a rehearing, process the appellant for administrative discharge, and recommend a general discharge. In exchange, the appellant agreed to waive personal appearance before the separation board, remain on appellate leave, and waive any right to accrued pay, allowances, or travel entitlements.