I missed a published opinion from the Navy-Marine CCA in United States v. Tarniewicz, __ MJ __; No. 201100158 (N-M. Ct. Crim. App. Aug 30, 2011). It’s an easy 3-page read, and addresses an issue that is a surprising topic for a published opinion, considering that published opinions are relatively few and far between.
Lance Corporal Tarniewicz was convicted, pursuant to his pleas in accordance with a pretrial agreement, of various offenses irrelevant to the sole assignment of error, which is that:
the CA erred when taking action by ordering the approved sentence, including the bad-conduct discharge, executed in violation of Article 71, UCMJ.
The language at issue is:
In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed. Pursuant to Article 71, UCMJ, the punitive discharge will be executed after final judgment. (Emphasis added in opinion).
Since the court’s analysis runs slightly more than a single paragraph, I reproduce it in its entirety:
The action does not follow the recommended forms for action contained within Appendix 16, Manual for Courts-Martial.
The phrase, “will be executed,” could be interpreted to mean that the CA attempted to direct the execution of the appellant’s punitive discharge; on the other hand, the phrase could be interpreted as mere commentary on a possible future event. Leaving aside whether the context of the paragraph limits the meaning of the phrase “will be executed,” the language is subject to two interpretations: one is ultra vires; the other, mere surplusage. Both invite needless post-trial litigation. Regardless of the interpretation, the phrase has no effect; to the extent that this language purports to direct anything, it is a legal nullity. Article 71 does not permit a punitive discharge to be executed until after there is a final judgment, an event which necessitates review by a Court of Criminal Appeals.
Court-watchers can’t be surprised that this issue found its way into a published opinion. The NMCCA has discussed this language, which “purports to direct” execution of the punitive discharge, in footnotes for months, and is clearly exasperated.
Practitioners may wonder about the pedigree of this language that, as noted by the court, does not follow the template provided in the MCM. It comes from the standardized convening authority’s action template propagated by the Staff Judge Advocate to the Commandant of the Marine Corps in MARADMIN 151/11. The offending sentence (“Pursuant to Article 71, UCMJ, the punitive discharge will…”) is marked as “optional” in the template, but is apparently widely-used, much to the dismay of the CCA.
Disclaimer: I happen to be the Chief Review Officer at the LSSS, Camp Lejeune, NC. In that capacity, I prepare SJARs and CAAs using the templates discussed in MARADMIN 151/11 (though I do not include the optional language at issue in Tarniewicz). As with all of my CAAFlog contributions, this post is made in my personal capacity and does not reflect the official policy or position of any military service, the Department of Defense, or the U.S. Government.