Thursday, June 21, 2007

A remitted discharge really isn't any different than a disapproved discharge

I recently noted that NMCCA's published opinion in United States v. Pflueger, No. NMCCA 200400213 (N-M. Ct. Crim. App. Dec. 5, 2006), never made it into the Military Justice Reporter. Now West Publishing needn't bother -- CAAF just reversed Pflueger.

In Pflueger, NMCCA purported to give relief for post-trial delay by setting aside the adjudged BCD. But not so fast -- before it did so, the adjudged BCD had already been remitted. That led CAAF to remand the case to NMCCA, asking whether disapproving a remitted BCD had any practical effect. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). SURE, said NMCCA. NO, said CAAF today. United States v. Pflueger, __ M.J. ___, No. 05-0135 (C.A.A.F. June 21, 2007). Chief Judge Effron, writing for a unanimous court, sent the case back to NMCCA for another shot at awarding meaningful Tardif relief.

1 comment:

John O'Connor said...

Not true. If a remitted discharge is the same as a disapproved discharge, then NMCCA would not have had jurisdiction by the time the case got there, as the BCD had been remitted before someone found the ROT hiding in some corporal's bottom left drawer.

So the majority's necessary conclusion is that a remitted BCD is the same as a disapproved BCD (they use the term "cancelled") except that it can serve as the basis for Article 66 jurisdiction. Odd case, and I can't say I'm really sure what the right answer is on jurisdiction, but it strikes me as silly that NMCCA was conducting a full-blown Article 66 review where the accused had NO CHANCE of leaving there with a BCD or a year in confinement.