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?