[W]e note that the Court of Criminal Appeals found error in the post-trial processing of the case as a result of a failure to serve the staff judge advocate’s recommendation on Appellant prior to action by the convening authority. See Rule for Courts-Martial 1105(f). The court concluded that the error was prejudicial. Noting that the case had been subject to significant delays, the court concluded that a remand for new action by the convening authority would further delay disposition of the case, and it ordered appropriate relief for the error by approving a sentence that did not include adjudged forfeitures.
We further note that the corrective action ordered by the court below did not modify that portion of Appellant’s sentence that included confinement for two months. In that posture, the corrective action had no actual effect on forfeitures because Appellant’s pay remained subject to automatic forfeitures under Article 58b, [UCMJ]. Under these circumstances, the action taken by the court below did not take the steps necessary to provide Appellant with meaningful relief. . . . Such relief with respect to forfeitures may be provided by approving a sentence that does not include confinement, thereby removing the requirement for automatic forfeitures under Article 58b, UCMJ. Accordingly, it is ordered that said petition is granted on the following issue:
WHETHER, AFTER FINDING PREJUDICIAL ERROR, THE LOWER COURT ERRED IN FAILING TO GRANT MEANINGFUL RELIEF.
The portion of the United States Navy-Marine Corps Court of Criminal Appeals decision affirming confinement for two months is reversed and that portion of the sentence is set aside. The remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision, which affirmed the findings and only so much of the sentence as provided for a bad-conduct discharge and reduction to pay grade E-1, is affirmed.
There were also two other grants of note, one of which JO'C should be salivating over and the other is the return of the Loving death penalty writ after a DuBay hearing on an ineffective assistance of counsel at sentencing issue.
No.06-8006/AR. Dwight J. Loving, Petitioner v. United States, Respondent. CCA 19891123. . . . Accordingly, it is ordered that the parties shall file briefs on the following issues:
I. WHETHER THE RECORD OF THE EVIDENTIARY HEARING ORDERED PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), SHOULD BE RETURNED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REMAND TO THE CONVENING AUTHORITY AND/OR THE ARMY COURT OF CRIMINAL APPEALS FOR REVIEW PRIOR TO REVIEW BY THIS COURT.
II. WHETHER PETITIONER’S WRIT OF HABEAS CORPUS SHOULD ISSUE IN VIEW OF THE FINDINGS OF FACT AND CONCLUSIONS OF LAW ENTERED BY THE MILITARY JUDGE IN THE DUBAY PROCEEDING ON THE QUESTION OF WHETHER THE TRIAL DEFENSE TEAM CONDUCTED A REASONABLE INVESTIGATION INTO POTENTIAL EVIDENCE IN MITIGATION AND PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.
CAAF scheduled the hearing in the Loving case for Oct. 29, 2008 at 9 a.m.
No. 08-0452/AF. U.S. v. Matthew W. GLADUE. CCA 36580. Review granted on the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT A PROVISION IN APPELLANT'S PRETRIAL AGREEMENT TO "WAIVE ALL WAIVABLE MOTIONS" WAS AN EXPRESS WAIVER THAT BARS APPELLANT FROM ASSERTING ANY CLAIMS OF MULTIPLICITY OR MULTIPLICATION OF CHARGES ON APPEAL.