This is part five of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

In prior posts of this series I discussed aspects of military law, such as discovery rules and the pretrial investigation, that developed a century ago. Command discretion is another ancient part of our law. But the “Elimination of Unlimited Command Prerogative and Discretion” in Section 1702(b) of the FY14 NDAA isn’t the first time Congress has restricted a commander’s ability to modify the findings and sentence of a court-martial. Rather, it’s merely the first time Congress has done so to the possible detriment of an accused.

During congressional hearings in 1919, Major General Enoch H. Crowder, The Judge Advocate General of the Army, discussed regulations that actually permitted a commander to return a case for reconsideration of an acquittal or to increase a sentence (link to transcript). General Crowder presented Congress with a review of 1,000 cases, of which 56 were returned to the members for reconsideration of acquittals. Of these 56 cases, an acquittal was changed to a conviction in a whopping 18 (one third). This provoked popular outcry and press attention, and in 1920 Congress revised Article 40 of the Articles of War to expressly prohibit returning a record for reconsideration of an acquittal or increasing the severity of a sentence (old text) (new text) (and this prohibition still exists within Article 60).

Popular and press outrage is now focused on the exact opposite scenario: Lieutenant General Franklin’s action that changed a conviction into an acquittal in the Wilkerson case (our #5 story of 2013). And just as Congress removed the ability to change an acquittal into a conviction or increase a sentence in 1920, Congress now limits a commander’s ability to reverse a conviction or reduce a sentence.

In Section 1702(b) (that will not take effect until June 24, 2014 – 180 days after enactment) Congress rewrites Article 60(c) of the UCMJ to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. Current law permits a convening authority to set aside any finding of guilty, either entirely or by substituting a finding of guilty to a lesser included offense. It also gives the convening authority unlimited discretion to disapprove any part or all of a sentence. But the future law allows modification of the findings or sentence only in certain cases.

The full text of the future Article 60(c) follows:

(c)
(1) Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2)
(A) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
(B) Except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.
(C) If the convening authority or another person authorized to act under this section acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(3)
(A) Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required.
(B) If the convening authority or another person authorized to act under this section acts on the findings of a court-martial, the convening authority or other person—
(i) may not dismiss any charge or specification, other than a charge or specification for a qualifying offense, by setting aside a finding of guilty thereto; or
(ii) may not change a finding of guilty to a charge or specification, other than a charge or specification for a qualifying offense, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(C) If the convening authority or another person authorized to act under this section acts on the findings to dismiss or change any charge or specification for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(D)
(i) In this subsection, the term ‘qualifying offense’ means, except in the case of an offense excluded pursuant to clause (ii), an offense under this chapter for which—
(I) the maximum sentence of confinement that may be adjudged does not exceed two years; and
(II) the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.
(ii) Such term does not include any of the following:
(I) An offense under subsection (a) or (b) of section 920 of this title (article 120).
(II) An offense under section 920b or 925 of this title (articles 120b and 125).
(III) Such other offenses as the Secretary of Defense may specify by regulation.
(4)
(A) Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.
(B) Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists.
(C) If a pre-trial agreement has been entered into by the convening authority and the accused, as authorized by Rule for Courts-Martial 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence in whole or in part pursuant to the terms of the pre-trial agreement, subject to the following limitations for convictions of offenses that involve a mandatory minimum sentence:
(i) If a mandatory minimum sentence of a dishonorable discharge applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad conduct discharge pursuant to the terms of the pre-trial agreement.
(ii) Except as provided in clause (i), if a mandatory minimum sentence applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may not disapprove, otherwise commute, or suspend the mandatory minimum sentence in whole or in part, unless authorized to do so under subparagraph (B)

This provision looks complicated, and it places a lot of limitations on a convening authority, but it’s pretty easy to understand if considered in three parts.

The first part is paragraphs (1) and (2). These largely maintain the current procedure, except that paragraph (2)(C) requires the convening authority to provide a written explanation for any reduction in the sentence (except for a “qualifying offense,” but the term is not defined in this paragraph, though it is defined in paragraph (3)). As a practical matter, convening authorities often provide such explanation already, by justifying any sentence reduction as either required by a pretrial agreement, as an act of clemency, or as a remedy for legal error.

The second part is paragraph (3). This is the big change, addressing disapproval of a finding of guilty, either outright or by approval of a lesser included offense. Under the new provision (effective on June 24, and only for offenses committed on or after that date), a convening authority may not disapprove a finding of guilty, or reduce the finding to guilty of a LIO, unless the original finding is guilty of a “qualifying offense.” A qualifying offense is one that meets two criteria:

  1. The maximum authorized punishment for the offense includes confinement for two years or less; and
  2. The adjudged sentence does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.

Additionally, offenses under Articles 120(a), 120(b), 120b, and 125 will never be qualifying offenses (though their maximums are too high anyway). But more significantly, the Secretary of Defense may exclude other offenses by regulation. This means that the Secretary could, if he wanted to, prohibit disapproval or reduction of a finding of guilty in every case.

Curiously, paragraph (3)(C) requires a written explanation for the disapproval or reduction of a finding of guilty “for an offense (other than a qualifying offense).” This directly contradicts paragraph (3)(B), which allows such disapproval or reduction only in the case of a “qualifying offense.” Congress probably intended to require a written explanation for changing a finding of guilty of a qualifying offense, but that’s not what the law says. In my discussion of the changes to Article 32, I commented that “there’s reason to believe that even Congress doesn’t quite understand what it’s done.” Ditto with this provision.

The third part is paragraph (4), which addresses reduction of the sentence. This part appears to be the most complicated, but really has its own three simple rules:

  • First, there are no restrictions on reducing sentences that are not confinement for more than six months, dismissal, dishonorable discharge, or a bad-conduct discharge. So a convening authority can disapprove or suspend a sentence of confinement for six months or less, reduction, restriction, forfeitures, a fine, hard labor without confinement, or a reprimand, without limit and for any reason (though, as discussed above, he has to explain why in writing under some uncertain circumstances).
  • Second, there are no restrictions on reducing any sentence when the trial counsel recommends such reduction “in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense.” Those familiar with the federal sentencing guidelines will see similarities to §5k1.1.
  • Finally, there are no restrictions on reducing any sentence pursuant to a pretrial agreement, except for a sentence adjudged as part of a mandatory minimum. In that case, a pretrial agreement alone will only support reduction of a dishonorable discharge to a bad-conduct discharge. Disapproving or suspending a dismissal or a bad-conduct discharge for a mandatory minimum offense requires a trial counsel recommendation in addition to the pretrial agreement.

In the last part of this series I will discuss some practice tips gleaned from this section, such as “avoid guilty pleas for mandatory minimum offenses,” and “where the facts support it, ensure that the PTA requires the trial counsel to make a recommendation based on substantial assistance.”

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial. This provision looks easy to understand, but it is actually pretty complicated.

For instance, the definition of “a victim” in the new Article 60(d) is different from other definitions of “a victim” now part of the UCMJ (there are actually five different definitions of “a victim” in the NDAA; something I will discuss further in Part 6 of this series). For post-trial purposes, a victim includes anyone:

who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.

(emphasis added). This is not to be confused with “a victim” as defined by the new Article 6b (discussed in part 2 of this series):

In this section, the term victim of an offense under this chapter means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

(emphasis added). Of course, “harm” and “loss” mean different things, and a post-trial victim is clearly a narrower class of persons than a pre-trial victim (as actual “loss” is a greater injury than mere “harm”). Also, emotional “loss” seems to be a novel concept.

A source of additional confusion is that this new provision (giving victims the right to submit matters) became effective at enactment on December 26, 2013, so any case already in the post-trial process will require delay to address this new rule. But since the definition of a victim for post-trial purposes isn’t limited to persons named in the specifications (that’s the definition of a victim under the future Article 32), some cases may require actual investigation to identify the victims. The new Article 60(d) doesn’t explicitly require an investigation to discover victims, but it does state that “the victim shall be provided an opportunity to submit matters” (emphasis added) and it sets a 10-day time limit based on service of the record of trial and the staff judge advocate’s recommendation upon the victim.

The obvious problem is that if the victim is known to exist but can’t be reached, that 10-day countdown can’t begin. For example, consider a case involving possession of child pornography. That’s an offense under Article 134 of the UCMJ, often involving known victims who have suffered significant pecuniary losses. Such a case can easily involve dozens of such victims. But these people aren’t necessarily easy for prosecutors or SJAs to contact.

However, Congress now requires that each of those victims receive a copy of the record and the SJA’s recommendation, and that each “shall” be provided an opportunity to submit matters to the convening authority within ten days after receipt of these things.

Being a Staff Judge Advocate just got a lot harder.

One Response to “2013 Changes to the UCMJ – Part 5: Post-trial matters”

  1. RKincaid3 says:

     Great recitation of (and links to) the history behind the evolution of the UCMJ.  Now for the next evolutionary leap. Sigh.