In this post from November I noted a published opinion by a three-judge panel of the NMCCA in United States v. Kruse, No. 201600101, in which the court found that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement stated that the convening authority may approve the discharge, but the agreement only required suspension of the discharge. The panel reinstated the discharge but then suspended it – an action that I noted was outside the power of a CCA.

The CCA has reconsidered the case en banc. United States v. Kruse, 75 M.J. 971 (N.M. Ct. Crim. App. Dec. 22, 2016) (en banc) (link to slip op.). While it reaches the same conclusion about the convening authority’s power, the en banc court does not suspend the discharge. Rather, noting that the appellant was administratively separated post-trial, the CCA concludes that the discharge was remitted by the administrative separation. This conclusion is consistent with CAAF’s explanation in United States v. Watson, 69 M.J. 415, 416 (C.A.A.F. 2011), that “a post-trial administrative discharge operates to remit the unexecuted punitive discharge portion of an adjudged court-martial sentence.”

Chief Judge Palmer authored both of the CCA’s opinions in Kruse.

Kruse is notable because it involves the new Article 60(c) but in the reverse of the fact pattern from United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), in which the NMCCA held that it was an affirmative misstatement of the law for a SJA to fail to advise the convening authority of the restored power in a case involving an offense that occurred before June 24, 2014. In Roller the convening authority was not constrained by the new Article 60(c) but was improperly advised that he was. In Kruse, however, the convening authority was constrained by the new Article 60(c) but he did more than the pretrial agreement authorized (also on the improper advice of a staff judge advocate).

Here’s the bottom line: The new Article 60(c) applies in all cases tried on or after June 24, 2014, unless the case involves a conviction of an offense occurring before June 24, 2014.

The authority for this is the Carl Levin And Howard P. “Buck’” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here):

With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before [June 24, 2014] and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).

Subsequently, on June 19, 2015, the President inserted a note into R.C.M. 1107 to emphasize this exception:

Note: Subsections (b)–(f) of R.C.M. 1107 apply to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of RCM 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under RCM 1107(d)(1)(D)–(E) still apply.

R.C.M. 1107, note (M.C.M. 2016 ed.). See also Executive Order 13696, 80 Fed. Reg. 35,783, 35,810 (June 22, 2015) (discussed here).

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