United States v. Garza

CLEVENGER, Judge,

dissenting.

I join Senior Judge Barto in his dissent, but write separately to describe more fully my concerns in view of the majority’s disposition of this case.

Appellate counsel for the government offered by motion an affidavit from the convening authority, dated 13 January 2005, in which the convening authority states that his action, not approving the adjudged bad-conduct discharge, was the result of a “clerical error,” and the government prays for a remand order to allow the error to be corrected. Appellant’s counsel oppose granting the motion and the requested relief, citing Rule for Courts-Martial [hereinafter R.C.M.] 1107(f)(2).1

I would deny the government’s motion to attach the convening authority’s affidavit to the record. I disagree with the majority’s analysis that the convening authority’s action on the sentence is a collateral matter. The majority wrongly characterizes the convening authority’s initial promulgating action as part of the “administrative processing of a case.” In this regard their reliance on United States v. Parker, 36 M.J. 269 (C.M.A.1993) is misplaced. The case is totally inapposite and deals with affidavits addressing substantive factual matters, not a subjective decision within the sole discretion of a convening authority to make when the convening authority is signing an action prepared by a staff judge advocate (SJA) or legal officer. The convening authority’s initial promulgating action is the sine qua non of a court-martial conviction. Everything from preferral of charges through the end of the trial proceedings and the statutory post-trial review requirement is inchoate until action is taken. We may leave for another day the vexing fact that most court-martialed soldiers have actually completely served their adjudged terms of confinement and had any adjudged forfeitures and reductions in grade fully executed before the convening authority takes an initial promulgating action in the current court-martial era. But by their present opinion, the majority of this court now exempts the convening authority from even the “time-line” or “tunnel of power” limitations described by our superior court in United States v. Diaz, 40 M.J. 335, 344-45 (C.M.A.1994). Simply by asserting an original intent different than that clearly, completely, and unambiguously expressed in the signed action, a convening authority may apparently reverse the judgment of higher reviewing authorities at any time adversely to an appellant.

The proffered affidavit only attempts to show an error in the record where no other evidence of the purported error otherwise exists. The convening authority asserts in *811his affidavit that “[t]he language pertaining to the bad [-] conduct discharge was inadvertently removed from the action as the result of a clerical error.” The assertion raises multiple questions. How does the convening authority know this? How was the language removed and by whom? It seems highly unlikely that the convening authority personally prepared a draft of his desired action, so what specific “action” is the convening authority referring to? Was there a previous action prepared which the convening authority saw that did contain the necessary words for approval of the adjudged punitive discharge? What happened to it? Why was it changed? Was it a signed action too? Is the convening authority merely repeating hearsay from some anonymous source in his affidavit?

In their footnote 6, the majority elects to “disagree with the implication that the convening authority’s affidavit conflicts with his action.” But as the personally signed action makes no mention of the adjudged punitive discharge, and the later-in-time affidavit asserts an intention to approve the adjudged punitive discharge, the “conflict” is obvious, not implied. Furthermore, even if, as the majority asserts in their footnote 6, “[njoth-ing in the action contradicts the convening authority’s statement that he mistakenly omitted language approving the discharge” that is hardly significant. Logic would seemingly preclude such an assertion in an action.2

The SJA’s post-trial recommendation (SJAR) and its addendum in this case also are not reliable guides to establish that the convening authority’s intent was contrary to the plain text of the action signed by the convening authority. The convening authority did not sign a separate memorandum, as we often see, stating his intent to approve the recommendation of the SJA at the time he took action. Convening authorities are not required to explain why they choose not to follow an SJA’s recommendation to either grant or deny clemency.3 And, the addendum to the SJAR in this case contains a sufficient number of mistakes to make a convening authority leery of relying on the drafted action to correctly provide the desired result.4

The publication of General Court-Martial Order Number 218 on 3 December 2004, with its distribution to appellant and appellant’s defense counsel at the Fort Knox Trial Defense Service offices, terminated the convening authority’s power to “recall and modify” his action. See R.C.M. 1107(f)(2); United States v. Shulthise, 14 U.S.C.M.A. 31, 33, 33 C.M.R. 243, 244-45, 1963 WL 4844 (1963) (“Forwarding the case for review ... is equivalent to publication and the sentence finally fixed by the reviewing authority may not, whatever course the proceedings thereafter take, be exceeded.”) (citation omitted) (discussing the 1969 Manual for Courts-Martial provision in para. 896 that is the basis for R.C.M. 1107(f)(2)). In describing the purpose of the rule our superior court *812noted: “[The rule was] designed to ‘give some degree of stability to the action of the convening authority and to insure that he will not modify his action pending appellate re-view____Shulthise, 14 U.S.C.M.A. at 33, 33 C.M.R. at 245 (quoting Legal and Legislative Basis, Manual foe Couets-Maetial, United States 128 (1951)). Under the circumstances of this case, the extensive omission from the action that would need to be “corrected” to approve a bad-conduct discharge and then except it from being executed is not properly characterized as “clerical error” under R.C.M. 1107(g).5

In United States v. Diaz, our superior court clearly explained the law related to this issue.

As long as the case remains within the power of the convening authority, he may correct any administrative error in the promulgating order or take any ministerial action that is appropriate. Once he has taken his action, however, and once that action has been served on the accused or on defense counsel, a convening authority cannot so arbitrarily change his earlier action in some substantive way in order to correct a mistake.

40 M.J. 335, 345 (C.M.A.1994) (footnote omitted). That is exactly the circumstance we have here.

Rule for Courts-Martial 1107(f)(2) authorizes but does not require this court, as a “higher reviewing authority,” to remand the ease for the convening authority to modify an action that is “incomplete, ambiguous, void or inaccurate.” But here the signed action is none of these. It is not incomplete on its face. It is not ambiguous on its face.6 There is nothing about the signed action that makes it legally void. And, it is not inaccurate on its face. On its face, the action in appellant’s case reads as if the convening authority granted the specific clemency requested by appellant in his submission pursuant to R.C.M. 1105 and 1106. The action contains no reference to a punitive discharge at all. See, e.g., United States v. Schiaffo, 43 M.J. 835 (Army Ct.Crim.App.1996). Thus there is no basis upon which this court as a higher reviewing authority, or the Judge Advocate General, may instruct or direct corrective action.

In this regard we should revisit what our court said in United States v. Foster, 40 M.J. 552, 553 (A.C.M.R.1994):

We further note that the error in this case, while attributed to the convening authority, was not committed by the convening authority. The staff judge advocate bears the responsibility to ensure that convening authority actions are complete and correctly stated. The error in the original action is directly attributed to the staff judge advocate’s office and not personally to the convening authority. This court continues to see too many careless errors committed by legal personnel. We have urged ad nauseam that staff judge advocates and other legal personnel pay attention to detail and ensure correctness of legal documents, particularly court-martial documents. It may be time for more drastic action to ensure that legal actions are done correctly.

And so, contrary to the majority, I think that it is that time for this case.

I would not admit the proffered affidavit and would affirm the findings of guilty and only so much of the sentence as provides for confinement for nine months and reduction *813to the grade of Private El, as approved in the action signed by the convening authority on 3 December 2004.

. The full text of the rule is:

The convening authority may recall and modify any action taken by that convening authority at any time before it has been published or before the accused has been officially notified. The convening authority may also recall and modify any action at any time prior to forwarding the record for review, as long as the modification does not result in action less favorable to the accused than the earlier action. In addition, in any special court-martial, the convening authority may recall and correct an illegal, erroneous, incomplete, or ambiguous action at any time before completion of review under R.C.M. 1112, as long as the correction does not result in action less favorable to the accused than the earlier action. When so directed by a higher reviewing authority or the Judge Advocate General, the convening authority shall modify any incomplete, ambiguous, void, or inaccurate action noted in review of the record of trial under Article 64, 66, 67, or examination of the record of trial under Article 69. The convening authority shall personally sign any supplementary or corrective action.

(Emphasis supplied).

. Perhaps, as seen in some works of fiction, the majority wants convening authorities to insert a disclaimer in their actions saying words to the effect of "any errors in this action are entirely my responsibility.”

. I note that the action correctly recites the history of the case and states:

A new staff judge advocate’s post-trial recommendation and action were ordered. A recommendation having been received pursuant to Rule for Courts-Martial 1106, the following is my action on the record of trial: having considered the Recommendation of the Staff Judge Advocate dated 22 October 2004, the addendum thereto, the Record of Trial, and all matters submitted by defense counsel, only so much of the sentence as provides for confinement for nine months, and reduction to [P]ri-vate El is approved and will be executed. This language shows the convening authority did consider all the required matters but not that any particular recommendation or request was viewed favorably.

. For example, the addendum refers to the case as a special court-martial in paragraph 1. The SJA recommends approving the adjudged punitive discharge, but in paragraph 3 the addendum closes by asserting, ungrammatically, "An action to accomplish this located at the signature tab (Tab A).” And yet, if the drafted document at Tab A was what the convening authority signed, it did not accomplish that recommended outcome. Finally, the addendum says it has “3 Ends” but immediately lists four numbered, enclosed documents below that. And, the number 1 document, Tab A, is described as an "Action Memo” and not even as a proposed or draft action.

. The majority would add "inadvertence” to the list of the sources of errors correctable by convening authorities or by direction of this court. The fundamental problem with this approach is that unlike deficiencies apparent on the face of the action or at the very least appearing in the record of trial, deficiencies predicated on inadvertence are not objectively reviewable.

. I think that in every case where an "ambiguous” action has been returned to the convening authority for correction, there has been a facial ambiguity, such as the classic error of failing to include the adjudged punitive discharge in the approved portion of the sentence, but ordering the approved sentence executed "except for” the punitive discharge. When that, or similar language, is included, it certainly shows an ambiguity by suggesting the present intent to approve the punitive discharge. Even in United States v. Johnson, 29 M.J. 288 (C.M.A.1989) (summary disposition), cited by the majority, the source of the correctable ambiguity was in the record as a handwritten note on the post-trial recommendation which is a required part of a record of trial. R.C.M. 1103(b)(3)(G).