Following the Air Force Court's ruling, A1C Greenway petitioned CAAF, which granted his petition and summarily set aside AFCCA's opinion last Wednesday. United States v. Greenway, __ M.J. ___, No. 07-0740/AF (C.A.A.F. Nov. 7, 2007) (summary disposition). The reason for CAAF's action is that the Air Force Court omitted a finding when it set out the case history. As CAAF noted, "[I]n summarizing and modifying the approved findings, the Court of Criminal Appeals made no mention of the guilty findings to Charge IV and its Specification (making a false pass) that had been approved by the convening authority." CAAF then observed:
Because this offense went unmentioned, it is unclear whether it was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to findings as affirmed by a court of criminal appeals.
CAAF's statement about reassessment is somewhat enigmatic. Realizing that A1C Greenway was actually convicted of still another spec certainly wouldn't have convinced AFCCA that instead of awarding no meaningful relief, it should set aside a portion of the sentence. So this appears to be something of a throwaway line. That heightens the importance of the second sentence: CAAF has no jurisdiction to act on the false pass offense because it wasn't affirmed by AFCCA. It seems that CAAF's jurisdictional limitation antenna is out. Speaking of which, CAAF's oral arguments in Lopez de Victoria and Michael are back-to-back this Wednesday starting at 0900. See you there.