Last month, in this post, I reviewed the 4-4 en banc decision of the NMCCA on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015).
Last week the Judge Advocate General of the Navy certified the case to CAAF:
No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:
WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?
WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?
WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE’S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?
IF A MEMBER’S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?