In a published opinion in United States v. Kruse, __ M.J. __, No. 201600101 (N.M. Ct. Crim. App. Nov. 3, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement only provided for suspension of any adjudged discharge.
The appellant pleaded guilty to numerous drug offenses and was sentenced to confinement for 100 days, reduction to E-1, forfeiture of $300.00 pay per month for three months, and a bad-conduct discharge. A pretrial agreement required suspension of the bad-conduct discharge. But the CCA disapproved the punitive discharge and the appellant was administratively separated.
As part of the 2013 changes to the UCMJ, Congress significantly limited the convening authority’s Article 60(c) power to act on the results of a court-martial. I analyzed the changes in depth in this post and in this LexisNexis Emerging Issues Analysis. Those changes were effective on June 24, 2014, and applied only to offenses that occurred on or after that effective date. However, because courts-martial adjudge unitary sentences (a single sentence for all convictions), a case involving convictions for offenses committed both before and after June 24, 2014, presented a paradox. Congress resolved this problem in December 2014 by mostly restoring the convening authority’s original power in cases involving convictions for misconduct that occurred before June 24, 2014. See 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).
Earlier this year, in United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), the Navy-Marine Corps CCA 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.
Kruse presents the opposite problem from Roller. 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.
Writing for the panel, Chief Judge Palmer (who also authored the CCA’s opinion in Roller) explains that:
Here, the government does not offer, nor do we find in the legislative history, any clear expression of Congressional intent permitting a CA to take action inconsistent with the law or plain terms of a pretrial agreement. Indeed, we need look no further than the FY14 NDAA which presages the Article 60 changes with the section heading: “Elimination of Unlimited Command Prerogative and Discretion; Imposition of Additional Limitations.” Given Congress’ clear desire to limit CA discretion in granting post-trial sentencing relief, we are unable, as the government urges, to read this agreement so broadly as to permit the CA to grant relief that was not specifically contained within the pretrial agreement.
Slip op. at 5. The CCA concludes that the convening authority’s disapproval of the discharge was a nullity.
But then, noting that the appellant was administratively discharged post-trial, the CCA does something strange:
We affirm the findings and the sentence of a bad-conduct discharge, 100 days’ confinement, and forfeiture of $300.00 pay per month for three months. We further enforce the terms of the pretrial agreement by suspending and remitting the adjudged bad-conduct discharge.
Slip op. at 6.
While a CCA may disapprove a punitive discharge (functionally the same result as suspending and remitting), it’s well-settled that a CCA does not have the authority to suspend any part of a sentence on its own. That, however, hasn’t stopped the NMCCA from doing so in the recent past (discussed here).