Back in 2013, in this post, I wrote about the Air Force case of United States v. Carr, No. 38025 (A.F. Ct. Crim. App. Aug 15, 2013), where the convening authority initially disapproved the adjudged bad-conduct discharge, but then the Air Force CCA went to considerable lengths to allow the convening authority to correct that action and approve the discharge.
Now the Coast Guard CCA addresses similar errors in a convening authority’s action that violated the terms of a pretrial agreement:
For a third time, the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten months. Appellant has consistently pointed out this flaw, and the Convening Authority, with the advice of the Staff Judge Advocate, has persisted in this violation of the pretrial agreement. Inexplicable as this violation appears, we are confident that the suspension has not been vacated, else Appellant would have complained further. Though given repeated opportunities to conform the Convening Authority’s action to the terms negotiated, the Government has failed to do so. We do not condone the Government’s failure in this regard, but we are not inclined to remand again in the hope that the Government will at last give attention to and correct this obvious error. No action is needed beyond our disapproval of confinement in excess of ten months.
The approval of confinement beyond the limit set in the pretrial agreement is not the only flaw in the Convening Authority’s action. Again, for a third time, the action provides that automatic forfeitures will be deferred for six months. This provision bespeaks ignorance of the vocabulary of the UCMJ.
United States v. Matthews, No. 1382, slip op. at 3 (C.G. Ct. Crim. App. May 20, 2015) (emphases added) (link to slip op.).
This being the third time the CCA considered the case (the first was in a published opinion that I discussed here; the second resulted in a summary remand without written opinion, ostensibly to fix this error), the CCA simply gives up and fixes the problem itself:
Appellant now moves again for remand for a corrected convening authority action, and for leave to file this motion. The motion for leave to file is granted. The motion for remand is denied. We have the power under Article 66, UCMJ, to correct the flaw in the Convening Authority’s action without another remand.
Slip op. at 4. However, the CCA only conforms the sentence to the terms of the pretrial agreement. It grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.