In United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), CAAF reversed a conviction for an adultery specification that failed to state a terminal element, even though the accused did not challenge that deficiency at trial, on the basis that “there was nothing during its case-in-chief that reasonably placed Appellee on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated.” 71 M.J. at 217.
While the terminal element issue made Humphries a famous (or infamous) case, there was a second issue that the majority did not resolve: Whether the Air Force CCA had the authority to practically force the convening authority to suspend an adjudged punitive discharge by concluding that a sentence that includes an unsuspended punitive discharge is inappropriately severe.
Chief Judge Baker and Judge Stucky, who both dissented from the majority’s decision on the terminal element issue, would have resolved this other issue against the CCA. Both were blunt. Chief Judge Baker wrote, “If the Court of Criminal Appeals was seeking to accomplish an appropriateness end to which it did not itself have the authority to reach— suspension of a bad-conduct discharge— then it was acting beyond its legal authority.” 71 M.J. at 219. Judge Stucky wrote, “In this case, the CCA thought the bad-conduct discharge that the convening authority approved should be suspended. Apparently recognizing that they did not have the power to suspend the bad-conduct discharge, they remanded the case to the convening authority for a new action, basically giving him two options— either approve a sentence that did not include an unsuspended bad-conduct discharge or the CCA would set aside the bad-conduct discharge. The CCA was without authority to take such action.” 71 M.J. at 223-224.
Recently, while reading decisions from the Navy-Marine Corps CCA, I was reminded of this issue. In particular, two cases decided by per curiam decisions from a three-judge panel of that court (the same panel in both cases), purport to suspend portions of adjudged confinement. The CCA’s action in each case resolves the failure of each convening authority to abide by the terms of pretrial agreements that required suspension of confinement in excess of a certain number of months.
The cases are United States v. Fairley, No. 201400268 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.), and United States v. Moss, No. 201400286 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.). The CCA’s action in Moss also purports to waive automatic forfeitures for the benefit of the appellant’s dependent.
Notably, the opinions indicate that neither appellant suffered additional confinement because of the each convening authority’s breach of the pretrial agreements, and that in Moss the appellant’s dependent actually received the automatically forfeited monies.
These cases present an interesting potpourri of issues. The CCA’s action is certainly practical – since neither appellant is suffering actual prejudice, one can understand not sending the case back to each convening authority for correction. But even if a CCA can force a suspension as a matter of sentence appropriateness (the issue in Humphries), a CCA can’t actually suspend a sentence, or waive automatic forfeitures, itself. Moreover, since the convening authority in each case (both of which are general court-martial convening authorities) approved and ordered executed in full the confinement, and the convening authority in Moss did not waive the automatic forfeitures, what of obedience to those orders?
Ironically, the appellant in Moss pleaded guilty to offenses that included four specifications of violating a general order or regulation.