On 6 November, CAAF granted review of this issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE’S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).

United States v. Thomas, 67 M.J. 187 (C.A.A.F. 2008).

Last Tuesday, CAAF summarily disposed of the case, reversing NMCCA’s decision in relevant part and remanding the case to NMCCA for reassessment of the sentence. CAAF reasoned: “Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority. Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority. See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994).” United States v. Thomas, __ M.J. __, No. 08-0738/NA (C.A.A.F. March 31, 2009) (summary disposition).

2 Responses to “CAAF summarily disposes of case presenting disconnect between court-martial’s actual findings and SJAR’s & CMO’s recitation of findings”

  1. John O'Connor says:

    Is this a guilty plea case? If so, this is a classic case where lots of post-trial and appellate resources were burned up in a case where appellate review should have been waived away in a PTA.

    As Monty Burns would say: Communicating, attempted communciating — pish posh.

  2. Phil Cave says:

    Port Out Starboard Home (POSH), what’s the “I?”
    And I agree with John. Not so much the waiver in the PTA, but guilty plea cases ought to be different to a GCM with contested charges.