The National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14) made numerous changes to the UCMJ (analysis available here). Among those changes was section 1702(b) of the NDAA, revising Article 60(c) to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. This section was the focus of my analysis published earlier this month by LexisNexis (available at 2014 Emerging Issues 7217).
The revised Article 60(c)(2)(B) states that “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.” This allows a convening authority to modify the adjudged sentence, with certain limits. The limits are provided in Article 60(c)(4)(A), which states:
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.
My Emerging Issues Analysis discusses why this language limits a convening authority’s power for only the adjudged punishments of (1) confinement for more than six months and (2) a punitive discharge, leaving a convening authority free to modify any other adjudged punishment in any case. So, for example, when an accused is sentenced to confinement for one year and a $5,000 fine, the statute permits suspension of the fine (because it is not “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge]” ).
But the Secretary of the Navy recently took the opposite position in ALNAV 051/14, promulgating guidance that I believe is both erroneous and unlawful.
Paragraph 4.b of the ALNAV states:
(1) A convening authority may modify a sentence that includes confinement for six months or less and that does not include a punitive discharge.
(2) A convening authority may not grant [sic], disapprove, commute, or suspend a sentence that includes confinement for more than six months or a punitive discharge, however:
(a) A convening authority may modify such sentences, including mandatory minimum sentences, if clemency is recommended in writing by the trial counsel in recognition of substantial assistance by the accused in the investigation or prosecution of another person for a violation of Ref B or other federal, state, local, or foreign criminal statutes; or,
(b) A convening authority may modify such sentences to effectuate a pretrial agreement. However, in a pretrial agreement, a convening authority may not agree to commute a mandatory minimum sentence except to reduce a mandatory dishonorable discharge to a bad conduct discharge, except pursuant to subsection b(2)(a) above.
(emphasis added). Besides the odd placement of the word “grant,” the error in this directive is the use of a word that does not appear in the relevant portion of Article 60(c): “includes.” The word “includes” dramatically expands the limitation in Article 60(c)(4)(A) in a way that Congress did not intend. Under the ALNAV, when an accused is sentenced to confinement for one year and a $5,000 fine, the convening authority may not suspend the fine (because it is part of “a sentence that includes confinement for more than six months or a punitive discharge” (emphasis added)).
Article 60(c)(4)(A) is the only limitation in the UCMJ on a convening authority’s power to disapprove, commute, or suspend any part of a sentence adjudged by a non-capital court-martial (pursuant to Article 71(d), a convening authority may not suspend a death sentence). Moreover, the Rules for Courts-Martial promulgated by the President establish a convening authority’s discretion in this area in rather explicit terms. R.C.M. 306(a) states that while a superior commander may withhold the authority to act on cases, “a superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.” And R.C.M. 1107(b)(1) states that “the action to be taken on the findings and sentence is within the sole discretion of the convening authority.” Significantly, these provisions were not changed in Executive Order 13669, 79 F.R. 117 (Jun. 18, 2014) (discussed here), even though the Executive Order implemented provisions from the FY14 NDAA, including changes to R.C.M. 1107.
Additionally, three decades ago the Court of Military Appeals had some harsh words (in dicta) about the possibility that a superior would intrude upon the post-trial discretion of a subordinate:
[W]e shall not permit a superior commander to dictate how a convening authority exercises his discretion in acting on a special court-martial. According to the Code, if the convening authority acts on a case after trial, it must be in the exercise of his discretion rather than someone else’s.
United States v. Due, 21 M.J. 431, 434 (C.M.A. 1986).
The wording of the revised Article 60(c)(4)(A) is a little awkward and the term “adjudged sentence” is better read as “adjudged punishment,” but the plain meaning of the statute does not prohibit reduction of punishments that are not confinement for more than six months or a punitive discharge. A convening authority has unlimited power to disapprove, commute, or suspend an adjudged punishment of confinement for six months or less, reduction, restriction, forfeitures, a fine, hard labor without confinement, a reprimand, or to disapprove or commute a sentence of death, for any reason or for no reason at all. Only by adding the word “includes” to the text of the statute can the Secretary of the Navy expand its reach to prohibit modification of these other possible punishments.
And the analysis need not stop at plain meaning. Context (or the doctrine of noscitur a sociis – “it is known by its associates”) also plays a role. Besides limiting a convening authority’s ability to modify a sentence, Congress also limited a convening authority’s ability to modify findings when it revised Article 60(c) in Section 1702(b) of the FY14 NDAA. That limitation restricted findings modifications to cases involving a qualifying offense, which is defined with similar reference to confinement for more than six months or a punitive discharge. But unlike the provision addressing sentence modifications, Congress used the word “include” when defining a qualifying offense for findings modifications:
(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.
Article 60(c)(3)(D) (emphasis added); Pub. L. No. 113-66, § 1702(b), 127 Stat. 672, 956. This context implies an intentional difference (beyond the inclusion/exclusion disagreement) between the terms “the sentence adjudged does not include [punitive discharge] or confinement for more than six months,” Article 60(c)(3)(D)(i)(II) (defining a qualifying offense) (emphasis added), and “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge],” Article 60(c)(4)(A) (limiting the authority of reduce a sentence) (emphases added).
ALNAV 051/14 eliminates that difference by inserting the word “includes” into the limitation of Article 60(c)(4)(A). This exceeds the authority of the Secretary of the Navy. As a result, the defense should raise this as a legal error in every court-martial where it applies.
Notably, while the NDAA unambiguously limits the revised Article 60(c) to only cases tried on or after June 24, 2014, and involving offenses committed on or after June 24, 2014, ALNAV 051/14 fails to limit its application to offenses committed on or after June 24, 2014. The ALNAV states:
Effective 24 June 2014, the convening authority’s ability to modify the findings and sentence of a court-martial is further limited as follows:
ALNAV 015/15, ¶ 4. However, the FY14 NDAA states:
(2) ARTICLE 60 AMENDMENTS- The amendments made by subsection (b) and paragraphs (1) and (2) of subsection (c) shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.
Pub. L. No. 113-66, § 1702(d)(2), 127 Stat. 672, 958. So, the defense should raise this as a legal error in every court-martial where the convening authority will act on or after June 24, 2014, regardless of when the offenses were committed.
I also think that ALNAV 051/15 is fairly characterized as unlawful command influence, assuming the Secretary of the Navy can engage in unlawful command influence (a question not reached by the majority in last term’s decision in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page)). Article 37, 10 U.S.C. § 837, states in relevant part:
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
Whether or not a convening authority feels legally bound by the errors in ALNAV 051/15, it is unlikely that a Navy or Marine Corps convening authority will split with the Service Secretary by taking action contrary to the text of the ALNAV. See Due, 21 M.J. at 434. Cf. United States v. Allen, 31 M.J. 572, 596 (N.Ct.Mil.Rev. 1990) (finding no evidence of unlawful command influence where “the Secretary merely reserved to himself, as he might under Article 74, supplemental clemency authority in national security cases.”). Accordingly, in addition to raising this issue as a legal error, the defense should also pursue a remedy to address the unlawful command influence.
Notably, I can’t find any similar policy pronouncements from the other services. My research reveals that only the Navy feels compelled to parse the language of the revised Article 60(c)(4). If anyone is aware of a similar directive in the Army, Air Force, or Coast Guard, please let me know.
None of this is to say that the Secretary of the Navy is powerless to limit convening authority clemency more rigorously than the limits imposed by Congress. If he wishes to do so, he need only convene all of the courts-martial himself. See Article 22(b); Article 23(b). See also United States v. Blaylock, 15 M.J. 190, 194-195 (C.M.A. 1983).