A quick fix for subjurisdictional cases

As an anonymous poster and Nancy Truax point out here (and thank goodness for Nancy Truax -- without her I would believe that the blogosphere is populated entirely by people named "Anonymous" and dead Navy flag officers), it is legally possible for a subjurisdictional case to reach a CCA and, on rare occasions, one actually does. Both offer United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005), as a case in point. (Anonymous also makes the Goldilocks "just right"/preserve the status quo argument that the only cases deserving referral are referred to the CCAs, but I can tell you from personal experience that isn't true. I once asked that a Navy case that went to the Judge Advocate General of the Navy for review under Article 69 be referred to NMCCA. That request was rejected and the reservists who handle Navy and Marine Corps Article 69 appeals got it affirmed in short order. The same issue (though in a different case) later went on to be reviewed by the Supreme Court. The bed is too small, Goldilocks.)

Judge Advocates General do, occasionally, exercise their power to refer subjurisdictional cases to the CCAs. In a search that certainly isn't exhaustive, I found five such cases over the previous decade -- three from the Coast Guard (Datz, Miller, Alexander), one from the Air Force (Swecker), and one from the Navy (Brown-Collins). (I had to go back to 1992 before finding a case -- actually two that year -- that the Judge Advocate General of the Army referred to the Army Court under Article 69 (Warnoch & Womack). Again, my search wasn't exhaustive, so there may be more recent examples. If anyone is aware of any, please share in a comment.)

But this sprinkling of cases hardly quenches the thirst for real appellate review of subjurisdictional GCM and SPCM convictions. Two Army cases actually sought extraordinary relief from the Army Court because the Judge Advocate General of the Army declined to refer them that that court. Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998); Littleton v. Persons, 7 M.J. 582, 583 (A.C.M.R. 1979).

A thought does occur to me, though. Surely those CAAFlog readers who happen to sit on the Joint Services Committee have already been moved by the unfairness of subjecting servicemembers to federal convictions and yet depriving some of them of the right to a judicial appeal. And surely they are already working up an amendment to Article 66 to remedy that problem. But they will need to enlist Congress's help, so that might take a while. It occurs to me, though, that each service can adopt its own imperfect fix:

I move that the respective services amend the JAGMAN, AR 27-10, AFI 51-201, and COMDINST M5810D, to provide that whenever a case is received in the Office of the Judge Advocate General for review under Article 69, it will be referred to the appropriate CCA under Article 69(d)(1).

Note that this would actually be a good test case for a non-automatic appeal structure, since a servicemember convicted by a special court-martial who receives a subjurisdictional sentence would actually have to be fairly proactive to invoke that right to appeal. (Subjurisdictional GCMs, on the other hand, would automatically go to the Judge Advocate General under Article 69(a) and would therefore go to the CCA under the JAGMAN, etc., amendment unless the accused waived or withdrew from appeal. So for GCMs, the regime would be much like the current automatic Article 66 review, though with Article 69(e)'s less protective scope of review, as Nancy Truax pointed out.)

Do I hear a second?