CAAF decided the Marine Corps case of United States v. Captain, 75 M.J. 99, No. 15-0172/MC (CAAFlog case page) (link to slip op.), on Thursday, February 4, 2016. The court finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

Chief Judge Erdmann writes for a unanimous court.

CAAF specified two issues for review:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s defense counsel withheld evidence of the appellant’s good military character and conceded that a punitive discharge would be an appropriate sentence. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge. When taking action on the results of the court-martial, the convening authority disapproved the fine and then wrote:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Slip op. at 9. The convening authority’s action did not explicitly approve the adjudged discharge, but it included a statement that “the punitive discharge will be executed, after final judgment.” Slip op. at 9.

On appeal, the appellant asserted that he suffered ineffective assistance of counsel and that the convening authority’s action did not approve the punitive discharge, prohibiting its execution.

CAAF unanimously rejects both of these claims. For the ineffective assistance of counsel claim, Chief Judge Erdmann does not specifically address whether the appellant’s counsel was deficient, but rather finds that the appellant was not prejudiced because the record reflects that the military judge considered his good military character and that the appellant agreed to concede that a punitive discharge was appropriate. For the convening authority’s action, Chief Judge Erdmann finds it ambiguous because of the lack of explicit approval coupled with the reference to future execution. Because the action is ambiguous, CAAF remands for a new action.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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