WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).United States v. Thomas, 67 M.J. 187 (C.A.A.F. 2008).
Last Tuesday, CAAF summarily disposed of the case, reversing NMCCA's decision in relevant part and remanding the case to NMCCA for reassessment of the sentence. CAAF reasoned: "Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority. Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority. See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994)." United States v. Thomas, __ M.J. __, No. 08-0738/NA (C.A.A.F. March 31, 2009) (summary disposition).