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.

10 Responses to “NMCCA Issues Published Opinion about “a legal nullity””

  1. Cloudesley Shovell says:

    No doubt the MARADMIN was in response to numerous cases where CA’s actions had mangled the overly complicated language in MCM Appendix 16, resulting in punitive discharges being inadvertently disapproved.

    One hopes that the next edition of the MCM would include a revised Appendix 16, and that SJA training will improve.

  2. Andrew says:

    While I think we can all agree that the Appendix 16 language is stilted at best, I think we can also agree that most of the errors are due to a lack of attention to detail. How hard is it to copy the language from Appendix 16 verbatim? Apparently very difficult for some. I’ve never understood that…

  3. Suzan Thompson says:

    To be accurate, the language from the CAA template on the JAM website referenced in the MARADMIN actually reads as follows:

    “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 MAY NOT be executed until there is a final judgment as to the legality of the proceedings.)” (Emphasis added.)

    There is also a follow-on comment:

    “Comment: The last sentence is not necessary, however, some SJA’s are uncomfortable with not addressing the fact that the punitive discharge cannot be executed in the initial CAA. CCA has commented upon this paragraph, as has CAAF, and both, contrary to the express language of the execution paragraph, have incongruously stated that if the language attempts to execute a punitive discharge it is a nullity, however requires no corrective action. This, however, is inapt, as the CA cannot, in accordance with the UCMJ, etc., execute the punitive discharge in the initial action.”

  4. Zachary Spilman says:

    To be accurate, the language from the CAA template on the JAM website referenced in the MARADMIN actually reads as follows:

    “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 MAY NOT be executed until there is a final judgment as to the legality of the proceedings.)” (Emphasis added.

    That’s how it reads now, but the language discussed by the court was in an earlier version, the template is modified regularly, modifications are not announced, and there is no readily available record of changes.

  5. Random Military Lawyer says:

    That’s how it reads now, but the language discussed by the court was in an earlier version

    Wrong again. The opinion states that the CAA in this case was signed on 11 Mar 11. The most recent Standard SJAR put out by the SJA to CMC was posted on 28 Feb 11.

    I would tend to agree with Andrew that this boils down to lack of attention to detail.

  6. Mike "No Man" Navarre says:

    I don’t have access to sharepoint, but I can offer 2 pieces of information from my experience as an SJA and trying to track down MarCorps instructions/notices:

    (1) The referenced MARADMIN came out on Mar 8, 2011 and the CAA was dated Mar 11, 2011. I seriously doubt the SJAR and CAA took the MARADMIN into consideration given the staffing and approval and am skeptical that the SJA would have even seen the MARADMIN prior to the CAA being signed.

    (2) The fact that the most recent standard SJAR put out by the SJA to the CMC on x date seems rather irrelevant to whether the SJA used the wrong language in the CAA–when was the language ST quoted fromt he standard CAA added to the CAA template.

    (3) Ok, I thought of another–Judge Winthrop would remind me I said I had 2 points–I don’t place a lot of faith in the date of changes to non-serialzed documents on the web. The military in general has a way of forgetting to point out that it has made changes to content on the web.

  7. Zachary Spilman says:

    Random Military Lawyer, check the “Modified” date of the file on the JAM SharePoint. Also, know that there are prior versions in the fleet (such as the version I inherited this summer when I took over at Lejeune) that have the offending language.

    Calling this language an issue of “lack of attention to detail [at the local level]” whitewashes the widespread nature of the problem. The CCA has addressed this language in cases from multiple installations. Absent some sort of mass dementia, identically affecting multiple review sections at the same time, this is the result of an inartfully-drafted template.

  8. Weirick says:

    The action does not follow the recommended, not mandatory, language from Appendix 16. But, the language was clear enough for NMCCA to approve the findings and sentence. It would seem that the discussion section of the opinion is mere surplusage.

  9. pete houtz says:

    The only thing I gleened from all of this is that some review officer inartfully drafted a CAA and it somehow slipped by the SJA shop; however, the prevailing message seems to be that Capt Spillman is now the review officer at CLNC.

  10. Phil Cave says:

    In 1991, 40% of new NMCMR cases had a significant post-trial error. We had a appellate lawyer who made a specialty of these cases because of his particular attention to detail. We called them “X[name of lawyer] cases.” 46 didn’t like him or his cases. But he was amazingly successful at getting relief for his appellate clients, often in the form of money back. It seems the easier the post-trial process has been made (post-Dunlap) the harder it is to get right.