The Army CCA orders a convening authority to approve the findings and sentence of a general court-martial
With a published opinion captioned In re: Vance, __ M.J. __, No. 20180011 (A. Ct. Crim. App. Nov. 5, 2018) (link to slip op.), a three-judge panel of the Army CCA issues a writ of mandamus “directing the convening authority to take action on this case in the manner required under Article 60, UCMJ” – meaning to approve the findings and sentence of a general court-martial. Slip op. at 9.
Captain Vance was accused of misuse of his government travel card and of unauthorized absences in 2016 and 2017. He submitted a request to resign in lieu of court-martial. Soon afterward, he submitted an offer to plead guilty at a general court-martial. The plea offer was accepted by the convening authority and Vance pleaded guilty in January 2018 and was sentenced to a dismissal and forfeiture of $1,000 pay per month for three months. Then, in March 2018, Vance’s resignation request was accepted by the Deputy Assistant Secretary of the Army. “The Secretary’s designee issued a directive that CPT Vance be administratively discharged with an Under Other Than Honorable Conditions characterization of service and, as to the court-martial, ‘both findings and sentence, if any, be vacated.'” Slip op. at 2.
Can’t do that.
The current version of Article 60 – as amended by the 2013 changes to the UCMJ – prohibits a convening authority from disapproving a finding of guilty except in cases involving only minor offenses or in cases involving an offense committed before June 24, 2014. Neither exception applies to Vance’s general court-martial conviction. Nevertheless, the convening authority (as instructed by the Deputy Assistant Secretary of the Army) disapproved the findings in Vance’s case.
The CCA finds that action to be void:
The convening authority’s action complied . . . was prohibited by the amendments to Article 60, UCMJ. The convening authority was prohibited from setting aside any finding. The convening authority was also prohibited from setting aside the dismissal. Accordingly, we reach the same result as we did in Alvin, and determine that the convening authority’s action was void ab initio.
Slip op. at 5. Writing for the panel, Judge Wolfe further explains:
As we see it, according to Congress’s amendment to Article 60, UCMJ, the convening authority’s only authorized action was to approve the findings and the dismissal. If the convening authority could not change the sentence, under the statutory scheme that results, review by this Court was mandatory once the sentence was determined by the court-martial. Put differently, our mandatory review under Article 66(c), UCMJ, was triggered by the sentence to a dismissal, which the convening authority was prohibited from changing.
Slip op. at 6.
The CCA seemingly takes that action sua sponte, as the opinion notes:
The case was received by the Clerk of Court, Army Court of Criminal Appeals under his role as the Army’s custodian for all general courts-martial records of trial. The case was then referred on behalf of the Judge Advocate General to this court (and the appellate divisions) to determine whether the convening authority’s action was lawful pursuant to Article 60, UCMJ, and, if necessary, for review pursuant to Article 66, UCMJ.
The Defense Appellate Division submitted the case without briefing, stating, “Appellant does not admit the findings and sentence are correct in law and fact.” The Government Appellate Division provided no brief.
Slip op. at 3. The opinion does not identify precisely who referred the case on behalf of the JAG.
The opinion also observes that the Secretary of the Army has the power – under Article 74 – to suspend and remit the dismissal or to substitute an administrative discharge for an executed dismissal. See slip op. at 8. But that’s separate from (and subsequent to) the convening authority’s action, and it’s the convening authority’s action that gives a CCA jurisdiction:
In other words, the exercise of Secretarial authority (whether under Article 74, UCMJ, or another source), does not alter this court’s obligations under Article 66, UCMJ. While this court’s Article 66, UCMJ, jurisdiction turns on the accused’s sentence, it is based on the sentence approved by the convening authority under Article 60, UCMJ, not on the sentence as modified by the Secretary’s designee.
Slip op. at 8. Accordingly, the CCA finds that the All Writs Act gives it the power to order the convening authority to approve the findings and sentence:
“[M]ilitary courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act.” United States v. Denedo, 556 U.S. 904, 911 (2009) (citation omitted). The All Writs Act grants the power to “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
“The All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction.” LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (citing Clinton v. Goldsmith, 526 U.S. 529, 534-35 (1999)). “Rather, the All Writs Act requires two determinations: (1) whether the requested writ is ‘in aid of’ the court’s existing jurisdiction; and (2) whether the requested writ is ‘necessary or appropriate.’” Id. (citation omitted). Our jurisdiction to issue a writ is limited to our subject-matter jurisdiction over the case or controversy. See Denedo, 556 U.S. at 911; see generally UCMJ art. 66. “To establish subject-matter jurisdiction, the harm alleged must have had ‘the potential to directly affect the findings and sentence.’” Kastenberg, 72 M.J. at 368 (quoting Ctr. For Constitutional Rights v. United States, 72 M.J. 126, 128 (C.A.A.F. 2013)).
It speaks for itself that if an uncorrected illegal action serves to deprive this court of jurisdiction to perform a statutorily mandated review of the findings and sentence, a writ of mandamus directing the action be amended to conform with the law and allow for our review would be “in aid of [our] jurisdiction.” See 28 U.S.C. § 1651.
Slip op. at 6-7.
The final paragraph of the opinion decrees:
Accordingly, we direct the Clerk of Court to return the record of trial to the convening authority for a new staff judge advocate review and action by the convening authority.
Slip op. at 9. A footnote adds:
Our decision here is limited to saying that the case requires a convening authority action that complies with Article 60, UCMJ. We save for another day our decision whether the findings and sentence in this case should be affirmed. See UCMJ, art. 66(c).
Slip op. at 9 n.15.
Two thoughts immediately come to mind.
First, the CCA can not – even under its broad Article 66(c) power to approve only such findings as it finds should be approved – disapprove the findings of guilty for purely equitable reasons. See United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010).
Second, because the convening authority’s action was “was invalid at the time it was signed and void ab initio,” slip op. at 9, the convening authority has not yet taken initial action in this case. That means that the convening authority may order a post-trial session where a military judge might reject Vance’s guilty pleas (perhaps on the basis that they were improvident because Vance pleaded guilty under the mistaken belief that subsequent approval of his resignation would result in disapproval of the findings). See R.C.M. 1102. That would vacate the findings, returning the case to a pre-trial posture. The convening authority could then administratively discharge Vance (as authorized by the Deputy Assistant Secretary), terminating court-martial jurisdiction.