I confess to confusion about the post-trial actions of a convening authority. When I first began trials in 1980 the right to clemency was robust and generally, the CA could do just about anything. I’m seeing more recent cases with an issue about what can and can’t be done by the CA.
Congress significantly changed the statutory scheme in Article 60, UCMJ, through the National Defense Authorization Act for Fiscal Year 2014. See Pub. L. No. 113–66, § 1702, 127 Stat. 954–958 (2013) (codified at 10 U.S.C. §860(c)(4)(A)). What had been authority “to modify the findings and sentence of a court-martial [a]s a matter of command prerogative involving the sole discretion of the convening authority” became limited power to make only certain modifications under a restricted set of circumstances. Article 60(c)(4)(A), UCMJ, now provides that “the convening authority . . . may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.” 10 U.S.C. § 860(c)(4)(A). Congress set
forth only two narrow exceptions to these limitations[.]
Check out United States v. Robinson, AFCCA (2018).
Appellant submitted his case with one assignment of error: whether Appellant’s guilty plea to Charge I, Specification 2, for possession of marijuana with intent to distribute on divers occasions is improvident when the evidence the military judge relied upon proves only a single continuous possession and intent. The court specified the following issue:
DOES THE PROVISION OF THE PRETRIAL AGREEMENT REQUIRING THE CONVENING AUTHORITY TO “CONSIDER DISAPPROVING, COMMUTING, MITIGATING, OR SUSPENDING THE ENTIRE SENTENCE OR ANY PORTION THEREOF, AS A MATTER OF CLEMENCY WHEN TAKING ACTION” RENDER THE PLEA IMPROVIDENT OR REQUIRE NEW POST-TRIAL PROCESSING?
We resolve the case based on our specified issue, find the plea improvident, and set aside the findings and sentence. . . . The circumstances of Appellant’s case drive us to only one conclusion:
Appellant entered into the PTA because he believed the convening authority had the power to grant the only relief he sought, disapproval of the bad-conduct discharge. Appellant did not receive the benefit of his bargain. Accordingly, we find the PTA unenforceable and Appellant’s guilty plea improvident