Last year, CAAF reversed the adultery conviction in United States v. Humphries, No. 10-5004/AF, due to the Government’s failure to charge a terminal element, even though the Appellant did not object to the missing element at trial. We’ve revisited that opinion many times in the past year. But the defective 134 specification was just one of two interesting issues in that case, where SrA (E-4) Humphries was convicted of adultery and consensual sodomy, in violation of Articles 125 and 134, and sentenced to reduction to E-1 and a bad-conduct discharge. The other issue was whether the AFCCA (which does not have the power to suspend a sentence) had the power to find that an unsuspended punitive discharge was an inappropriately severe punishment and return the case to the convening authority to either suspend or disapprove the bad-conduct discharge. The court wrote:
We find no prejudicial error; however, we decline to affirm the findings at this time. For the reasons set forth below, we find that portion of the sentence which provides for an unsuspended bad-conduct discharge inappropriately severe. Accordingly, we set aside the convening authority’s action and return the record of trial to The Judge Advocate General for remand to the convening authority for reconsideration of the sentence.
Put differently, the CCA told the convening authority that he could have a suspended BCD or no BCD, while retaining the possibility that it might disapprove the findings outright. The AFCCA issued that opinion in 2010. The Government sought en banc reconsideration, which was denied. The Air Force JAG then certified the case to CAAF, with the following issue questioning the scope of the CCA’s authority:
Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.
CAAF heard oral argument in January 2011 but then remanded the case back to the AFCCA because CAAF can’t review a case where the CCA hasn’t taken dispositive action on the findings. The CCA issued another opinion in August 2011, this time approving the findings but again returning the case to the convening authority with the limitation of only a suspended bad-conduct discharge. And again the JAG certified the case to CAAF. But CAAF granted a cross-appeal on the adultery charge, and when CAAF decided the case in June 2012, it set aside the adultery charge and remanded for a sentence reassessment without ever reaching the certified issue (though both Chief Judge Baker and Judge Stucky would have reached the certified issue, and would have reversed).
So, in December of last year, the CCA issued its third opinion in this case. Noting the opinions of Chief Judge Baker and Judge Stucky disagreeing with its treatment of the bad-conduct discharge, the CCA maintained that its determination regarding an unsuspended punitive discharge is “entirely consistent” with its sentence-appropriateness powers. But, considering that the adultery conviction had been set aside, the CCA reassessed the sentence, disapproved the discharge, and approved only the reduction to E-1. So, the JAG certified the case to CAAF a third time, this time asking:
Whether the Air Force Court of Criminal Appeals erred in finding Appellee’s sentence inappropriately severe under the unique circumstances of this case.
But again, CAAF doesn’t answer this question. Instead, last week it set aside the consensual sodomy conviction in light of this term’s decision in United States v. Castellano, No. 12-0684/MC, leaving SrA Humphries convicted of nothing:
No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491. On further consideration of the granted issue, 72 M.J. ___ (C.A.A.F. 2013), and in view of United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed. The findings of guilty to the Additional Charge and its specification and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing on the affected charge and the sentence is authorized.
In light of the above order, we dismiss the certified issue as moot.
So after three certifications, we still don’t know whether a CCA can force a convening authority to suspend a punitive discharge. But thinking about this case, this comes to mind.