CAAF declines to consider disposition instructions in determining CA's intent concerning approval or disapproval of a BCD

Airman Apprentice Dowis was court-martialed and received a sentence of a bad-conduct discharge, confinement for 60 days, forfeiture of $800.00 pay per month for a period of two months, and reduction to pay grade E-1. The convening authority's action in the case states: "[T]he sentence is approved, with the exception of the bad conduct discharge, and will be executed." Is that an ambiguous statement about the BCD's approval that allows the action to be remanded to the CA for clarification or an unambiguous statement that should be carried out?

The former, ruled NMCCA. No, the latter holds CAAF.

In United States v. Dowis, No. NMCCA 200700428 (N-M. Ct. Crim. App. Oct. 23, 2007), an unpublished opinion by Senior Judge Geiser, a 2-1 NMCCA majority acknowledged the language's similarity to that used in United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007), which CAAF held disapproved the BCD. NMCCA continued, "We agree that, standing alone, this language appears to disapprove the punitive discharge. We also note, however, that the last paragraph of the action states that 'The record of trial is forwarded to Navy-Marine Corps Appellate Review Activity . . . for review under Article 66, UCMJ.'" Dowis, No. NMCCA 200700428, slip op. at 2. NMCCA reasoned that this language, which "unambiguously indicates that the convening authority believed his sentence was such as to trigger this court's Article 66 review jurisdiction," creates an internal inconsistency that compels remanding the case "to the convening authority for clarification or issuance of a corrected action in accordance with R.C.M. 1107(g), UCMJ [sic]." Id., slip op. at 3.

Judge Falvey dissented, reasoning: "The terms of the action itself were susceptible to only one interpretation—the punitive discharge was not approved. Accordingly, the action is not subject to R.C.M. 1107(g) which permits corrective action on an ambiguous action." Id., slip op. at 4 (Falvey, J., dissenting).

On Monday, CAAF resolved that intramural conflict: "we hold that under the plain meaning of the language in the convening authority's action of April 18, 2007, the bad-conduct discharge was not approved." United States v. Dowis, __ M.J. ___, No. 08-0247/NA (C.A.A.F. Apr. 28, 2008) (summary disposition). CAAF granted review of the following issue: "Whether the lower court properly held that it could rely on the convening authority's forwarding of the record of trial to the Navy-Marine Corps Appellate Review Activity (NAMARA) as evidence of ambiguity in the approval of Appellant's bad-conduct discharge." Id. CAAF instantly resolved that issue by holding, "The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed." Id. No CAAF judge indicated a dissent from this resolution.

Regardless of the clarity of the convening authority's action, CAAF's message seems crystal clear: CCAs may not consider disposition instructions in determining whether a CA's action is ambiguous. As Judge Falvey notes in his Dowis dissent, that was the position advanced by Judges Erdmann and Baker in dissent in United States v. Politte, 63 M.J. 24 (C.A.A.F. 2006).

Has this summary disposition effectively overruled the opinion of the court in Politte?