On 11 January, CAAF heard oral argugment in United States v. Humphries, No. 10-5004/AF, a certified issue case in which the government challenged an exercise of AFCCA’s sentence appropriateness power as well as a CCA’s authority to remand a case to a convening authority with an indication that if he approves an unsuspended BCD, the CCA will disapprove it.  Today the Humphries case went away.  This CAAF order remanded the case back to AFCCA because AFCCA’s Humphries opinion expressly “decline[d] to affirm the findings” pending remand to the CA.  But CAAF’s jurisdiction-granting statute provides that it “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”  Beause there were no approved findings, CAAF had no authority to act.  (Of course, it’s also the case that under a plain reading of that same sentence in Article 67(c), CAAF has no authority to act on a portion of a sentence that a CCA set aside as inappropriately severe in the exercise of its unique Article 66(c) powers.  That statutory wording was quite deliberate.  The UCMJ’s legislative history states that the “only action which [the Court of Military Appeals] may take with respect to the sentence is to determine whether or not it is within legal limits.”  H.R. Rep. No. 81-491 at 32 (1949); S. Rep. No. 81-486 at 29 (1949).  Yet CAAF earlier denied a defense motion to summarily affirm on that basis.  United States v. Humphries, 69 M.J. 249 (C.A.A.F. 2010).)

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