Thursday, June 21, 2007

What a difference a year makes

Last year, CAAF was confronted with one of a long line of cases featuring "an ambiguous convening authority action." United States v. Politte, 63 M.J. 24, 24 (C.A.A.F. 2006). In Politte, the CA's action said that "the sentence is approved except for that part of the sentence extending to a bad conduct discharge." Now, we all know that the CA meant that the sentence would be executed except for the BCD, which can't be executed until the completion of appellate review. But that's not what the CA said. So a three-judge majority, consisting of Chief Judge Gierke, Judge Effron, and a highly grudging Judge Crawford sent the case back to the CA to ask him what he really meant to do.

In dissent, Judge Erdmann, joined by Judge Baker, followed his general preference for literal application of the law and said that the BCD had been disapproved, case closed.

Obviously two of the three judges in the Politte majority are now gone, which provided today's opportunity for the Politte dissent to emerge triumphant. Which it did, though with the odd defection of Judge Baker.

In United States v. Wilson, __ M.J. ___, No. 06-0503/NA (C.A.A.F. June 21, 2007), the CA's action said, "that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved. The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed." Writing for a majority consisting of himself, Judge Stucky and Judge Ryan, Judge Erdmann concluded that this language clearly disapproved the DD.

The majority reasoned: "In announcing that the 'remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed,' the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval. Under the plain meaning of this language, the dishonorable discharge was not approved." Id., slip op. at 5. That analysis is both correct and almost certainly at odds with what the CA actually intended. The majority even seems to acknowledge that the CA didn't really mean to disapprove the DD by observing that "the convening authority must exercise care in drafting the action." Id., slip op. at 4. But Judge Erdmann consistently insists that the government obey the letter of the law, and in this case the letters of the law spell out disapproved DD.

Not surprisingly, given his position in Politte, Chief Judge Effron dissents, arguing that the case should be sent back to the CA to either approve or disapprove the DD -- something which Chief Judge Effron argues the original CA's action failed to do. More surprisingly, Judge Baker takes a similar approach, concluding that the CA's action is ambiguous. He seeks to distinguish Politte, arguing that the CA clearly disapproved the BCD there, while contending that the action in Wilson is ambiguous. I don't see it that way. In both cases, some form of the word "except" came in the same sentence as the words "approved" and "discharge." If one of them unambiguously disapproved the punitive discharge, then I believe the other did as well.

The lesson of Wilson is that a carelessly drafted CA's action can cost the government a punitive discharge. Will that lesson actually be learned?


John O'Connor said...

This case is an abomination. Let me begin by acknowledging that the SJA ought to be ashamed of himself, and they ought to start listing these guys by name in the opinions. And, to answer CAAFlog's question, no, the fleet won't learn its lesson because once an accused is gone from the command he is "out of sight, out of mind."

All that said, I fundamentally disagree with the majority's structure for deciding these cases. Even in contract law, where both parties have rights, an unambiguous contract is reformed when there has been a scrivener's error such that the written contract doesn't reflect the contracting parties' intent. Here, the accused doesn't even have the rights of a contracting party, so it really boils down to what did the CA intend. Stopping at whether the CA action is "unambiguous" is the wrong approach; the court should endeavor to apply the CA's action in a way that reflects the CA's actual intent (constrained as it may be by any PTA).

Here, it's painfully obvious the CA did not intend to disapprove the DD. These were serious charges. The clemency materials didn't seek relief on the punitive discharge or express a desire by the accused to stay in the service. In a lot of these cases, the accused is probably even on appellate leave because everybody knows that he is getting a punitive discharge.

This is an obvious case of an SJA screwing up the CA's action because of the hiccup in the law that the CA can approve and order executed all punishments except a punitive discharge, which he can only approve. The CAAF should try to reflect the true intent of the CA by remanding it for clarification or otherwise applying the framework for reformation that exists in contract law.

At bottom, the court has done an injustice by conferring a windfall on an accused that NOBODY intended to give him, all in a fit of pique because of incompetence by an SJA.

As a practical matter, though, I think the services would be well served by reforming the CA's action to separate out each punishment by type and having the CA indicate whether that punishment is approved, disapproved, or some other result (such as suspension). Then, at the end, the CA should have a boiler plate sentence that says something like "All of the foregoing approved aspects of the sentence, with the exception of the approved discharge, are ordered executed."

Anonymous said...

The lesson of Wilson is that a carelessly drafted CA's action can cost the government a punitive discharge. Will that lesson actually be learned?

I dunno. Ask Tippit.

Anonymous said...

Given the unique and rare situation, what happens now? How is the type of discharge decided if not punitive? If the C.A made no reccomendation of discharge, how is discharge type decided..

John O'Connor said...

Anonymous #2,

Presumably, the accused gets administratively separated. It's an interesting question whether he could get an other than honorable discharge. If the accused doesn't get a punitive discharge at trial, then (at least in the Marine Corps) the worst discharge he can get administratively for commission of a serious offense is a general discharge. I don't know if that changes where the accused was adjudged a DD but had it suspended and remitted.

Anonymous said...

So the question of the accused's discharge having been removed from the court system, it now in the hands of ... Personnel? Unit commander? Who?

Eric said...

ok, i have the same situation, i was discharged due to a general court martial this year... I wan to go back in so i started doing some research and found out something very interesting in my military record... the document is a court memorandum and there, it reads, "CA'S ACTION: SENT APPROVED EXCEPT FOR THE PART EXTENDING TO THE BCD. NAVCONBRIG MIRAMAR, SAN DIEGO, CA IS DESG AS PPLACE OF CONFINEMENT." And for whai i read there, i have a pretty good shot :)

I need some advice tho...