UNITED STATES, Appellee
v.
Sean A. WILSON, Hospitalman
U.S. Navy, Appellant
No. 06-0503
Crim. App. No. 200102056
United States Court of Appeals for the Armed Forces
Argued April 24, 2007
Decided June 21, 2007
ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., and BAKER, J., each filed
a separate dissenting opinion.
Counsel
For Appellant: Major Richard D. Belliss, USMC (argued); Captain
Rolando R. Sanchez, USMC (on brief).
For Appellee: Lieutenant TyQuili R. Booker, JAGC, USN (argued);
Commander Charles N. Purnell II, JAGC, USN, Commander Paul C.
LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC (on brief).
Military Judge: William J. Dunaway
This opinion is subject to revision before final publication.
United States v. Wilson, No. 06-0503/NA
Judge ERDMANN delivered the opinion of the court.
Hospitalman Sean A. Wilson was convicted at a contested
general court-martial of rape, assault, adultery, and unlawful
entry into a dwelling. The members sentenced Wilson to
confinement for eight years, forfeiture of all pay and
allowances, reduction to paygrade E-1, and a dishonorable
discharge.
The subsequent action of the convening authority is at
issue in this appeal. The action stated, in relevant part, as
follows: “In the case of Hospitalman Sean A. Wilson, U.S. Navy,
. . . that part of the sentence extending to confinement in
excess of 3 years and 3 months is disapproved. The remainder of
the sentence, with the exception of the Dishonorable Discharge,
is approved and will be executed.”
The United States Navy-Marine Corps Court of Criminal
Appeals affirmed the findings and the sentence “as approved by
the convening authority.” United States v. Wilson, No. NMCCA
20010205, slip op. at 7 (N-M. Ct. Crim. App. Feb. 7, 2006).
(unpublished). The only difference that the lower court
acknowledged between the sentence adjudged at court-martial and
the sentence approved by the convening authority was the
disapproval of confinement in excess of three years and three
months. Id. at 1. The lower court did not address the language
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of the action that approved the remainder of the sentence “with
the exception of the Dishonorable Discharge.”
The convening authority has sole discretion to approve,
disapprove, commute, or suspend the sentence adjudged by the
court-martial. Article 60(c)(2), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 860(c)(2) (2000). “Because of the
importance of the convening authority’s action in the court-
martial process, we have required a clear and unambiguous
convening authority action.” United States v. Politte, 63 M.J.
24, 26 (C.A.A.F. 2006); see also Rule for Courts-Martial
(R.C.M.) 1107(g). We granted review of this case to consider
whether the convening authority’s action approved a dishonorable
discharge.1 We hold that it did not. The dishonorable discharge
was excepted from approval in clear and unambiguous language.2
Discussion
“A convening authority is vested with substantial
discretion when he or she takes action on the sentence of a
1
We specified the following issue for review:
WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT
INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING
AUTHORITY’S ACTION DID NOT APPROVE ONE.
64 M.J. 190 (C.A.A.F. 2006).
2
Our holding does not raise jurisdictional issues. The
sentence, as approved, includes a period of confinement for more
than one year, which gives the Court of Criminal Appeals
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United States v. Wilson, No. 06-0503/NA
court-martial.” United States v. Davis, 58 M.J. 100, 102
(C.A.A.F. 2003) (citing Article 60(c)(2)-(3), UCMJ, and R.C.M.
1107). R.C.M. 1107(d)(1) sets out the general parameters of a
convening authority’s action on the sentence as follows:
The convening authority may for any or no reason
disapprove a legal sentence in whole or in part,
mitigate the sentence, and change a punishment to one
of a different nature as long as the severity of the
punishment is not increased. The convening or higher
authority may not increase the punishment imposed by a
court-martial. The approval or disapproval shall be
explicitly stated.
In light of the convening authority’s broad discretion to
provide relief from the adjudged sentence and the importance of
this role in the court-martial process, when the plain language
of the convening authority’s action is facially complete and
unambiguous, its meaning must be given effect. We have
previously recognized that due to this broad authority, “the
convening authority is an accused’s best hope for sentence
relief.” Davis, 58 M.J. at 102 (citations omitted).
Accordingly, the convening authority must exercise care in
drafting the action. See Politte, 63 M.J. at 26 n.11
(suggesting ways to avoid ambiguity in a convening authority’s
action).
R.C.M. 1107(f) establishes certain requirements for the
“contents” of the convening authority’s action. In relevant
jurisdiction under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)
(2000).
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United States v. Wilson, No. 06-0503/NA
part, R.C.M. 1107(f)(4) requires the following: “(A) In
general. The action shall state whether the sentence adjudged
by the court-martial is approved. If only part of the sentence
is approved, the action shall state which parts are approved. A
rehearing may not be directed if any sentence is approved.” In
this case, the relevant part of the action consisted of two
grammatical sentences: “In the case of Hospitalman Sean A.
Wilson, U.S. Navy, . . . that part of the sentence extending to
confinement in excess of 3 years and 3 months is disapproved.
The remainder of the sentence, with the exception of the
Dishonorable Discharge, is approved and will be executed.” The
first sentence explicitly disapproves a portion of the
confinement. The second sentence explicitly approves the
“remainder of the sentence, with the exception of the
Dishonorable Discharge.” In announcing that the “remainder of
the sentence, with the exception of the Dishonorable Discharge,
is approved and will be executed,” the convening authority used
facially clear and unambiguous language that excluded the
dishonorable discharge from approval. Under the plain meaning
of this language, the dishonorable discharge was not approved.
The Court of Criminal Appeals may act only with respect to
the findings and sentence as approved by the convening
authority. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
Because the convening authority did not approve the dishonorable
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discharge, it was not before the lower court on review and that
portion of the adjudged sentence could not be affirmed. For the
lower court to do so constitutes error.
Decision
To the extent that the decision of the United States Navy-
Marine Corps Court of Criminal Appeals affirmed a sentence that
included a dishonorable discharge, the decision is reversed.
The remainder of the findings and that portion of the sentence
extending to confinement for three years and three months,
forfeiture of all pay and allowances, and reduction to paygrade
E-1 are affirmed.
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EFFRON, Chief Judge (dissenting):
Under the Uniform Code of Military Justice (UCMJ),
modification of the results of courts-martial “is a matter of
command prerogative.” Article 60(c)(1), UCMJ, 10 U.S.C. §
860(c)(1) (2000). The pivotal responsibility for approval or
disapproval of a court-martial sentence is vested in the
convening authority. The convening authority has “unfettered
discretion to modify the . . . sentence for any reason -–
without having to state a reason -– so long as there is no
increase in severity.” United States v. Finster, 51 M.J. 185,
186 (C.A.A.F. 1999). In the exercise of this discretion, the
convening authority may “approve, disapprove, commute, or
suspend the sentence in whole or in part.” Article 60(c)(2),
UCMJ.
R.C.M. 1107
The President, in the Rules for Courts-Martial (R.C.M.),
has set forth three specific rules to ensure that there is an
accurate record of the broad discretion provided by Article 60:
(1) R.C.M. 1107(d), which governs the convening
authority’s “Action on the sentence,” requires that the
convening authority’s “approval or disapproval shall be
explicitly stated.”
(2) R.C.M. 1107(f), which governs the “Contents of action
and related matters,” provides the following in paragraph (4)(a)
United States v. Wilson, No. 06-0503/NA
with respect to “Action on sentence” when the convening
authority approves only part of the sentence: “If only part of
the sentence is approved, the action shall state which parts are
approved.”
(3) R.C.M. 1107(g), which governs “Incomplete, ambiguous,
or erroneous action,” provides: “When the action of the
convening . . . authority is incomplete, ambiguous, or contains
clerical error, the authority who took the incomplete,
ambiguous, or erroneous action may be instructed by [a reviewing
authority] . . . to withdraw the original action and substitute
a corrected action.”
The requirement for explicit action
Prior to 1984, the Manual for Courts-Martial (MCM)
suggested but did not mandate that the convening authority
explicitly identify which parts of the sentence were approved
and which were disapproved. See MCM para. 88a (1969 rev. ed.)
(“[a]n approval or disapproval of a sentence should be express
and explicit and should not be left to implication”); United
States v. Loft, 10 M.J. 266, 267 (C.M.A. 1981) (noting that
paragraph 88a’s reference to explicit statement of approval or
disapproval “was only advisory”).
The President, in promulgating the 1984 MCM, expressly used
mandatory language to govern the pertinent contents of the
convening authority’s action: “The approval or disapproval
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United States v. Wilson, No. 06-0503/NA
shall be explicitly stated.” R.C.M. 1107(d)(1). The provisions
of R.C.M. 1107 governing action on the sentence serve three
complementary purposes.
First, these provisions ensure that no servicemember will
endure a punishment that has not been “explicitly” approved by
the convening authority under R.C.M. 1107(d)(1).
Second, these provisions ensure that no servicemember will
avoid a punishment adjudged by a court-martial as a result of
action at the convening authority stage unless the convening
authority “explicitly” disapproved the punishment under R.C.M.
1107(d)(1).
Third, these provisions vest responsibility for taking
corrective action in the convening authority under R.C.M.
1107(g).
The convening authority’s action
In the present case, the court-martial adjudged the
following sentence: confinement for eight years, reduction to
the lowest enlisted grade, total forfeitures, and a dishonorable
discharge. The convening authority took the following action:
that part of the sentence extending to confinement in excess of
three years and three months was disapproved. The remainder of
the sentence, with the exception of the dishonorable discharge,
was approved and ordered executed.
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United States v. Wilson, No. 06-0503/NA
The convening authority’s action “explicitly” identifies
one part of Appellant’s sentence as “disapproved”: confinement
in excess of three years and three months. The action
“explicitly” identifies the remainder of the sentence, except
for the dishonorable discharge, as “approved.” Although the
action explicitly disapproves one part of the sentence and
explicitly approves other parts of the sentence, it does not
explicitly approve or disapprove the dishonorable discharge.
Corrective action
The circumstances of the present case underscore the
importance of adhering to the President’s requirement for the
convening authority to “explicitly” identify which parts of the
sentence are approved and which are disapproved. The staff
judge advocate, in his post-trial recommendation to the
convening authority, recommended approval of the dishonorable
discharge. Appellant, in his post-trial submissions to the
convening authority, did not request to remain in service or
that the convening authority not approve a punitive discharge.
Instead, he limited his request to a plea that the convening
authority approve only a bad-conduct discharge rather than a
dishonorable discharge. At the Court of Criminal Appeals,
Appellant described his sentence as containing a dishonorable
discharge and did not suggest that the convening authority had
disapproved that portion of the sentence. Likewise, in the
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United States v. Wilson, No. 06-0503/NA
petition supplement filed with our Court, Appellant described
his sentence as containing a dishonorable discharge and did not
suggest that the convening authority had disapproved that
portion of the sentence.
It is possible that the convening authority, in the
exercise of his broad discretion under Article 60(c), intended
to provide Appellant with a form of clemency -- disapproval of a
punitive discharge -- that Appellant did not request, expect, or
believe that he had received. That would be the convening
authority’s prerogative. If so, the convening authority was
obligated to follow the mandate of R.C.M. 1107(d)(1), which
requires that his “approval shall be explicitly stated.” He did
not do so.
In the present case, the convening authority explicitly
stated his approval and disapproval of parts of the sentence,
but did not do so with respect to the adjudged punitive
discharge. His action is incomplete because the approval or
disapproval of the punitive discharge is not “explicitly
stated.”
Accordingly, while I agree with the majority opinion that
the lower court erred in approving the adjudged punitive
discharge, I respectfully dissent from the majority’s conclusion
that the convening authority complied with the applicable legal
requirements for disapproval of the adjudged punitive discharge.
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United States v. Wilson, No. 06-0503/NA
The convening authority’s action is incomplete under R.C.M.
1107(d)(1), and it should be returned for corrective action
under R.C.M. 1107(g).
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United States v. Wilson, No. 06-0503/NA
BAKER, Judge (dissenting):
I agree with the majority’s statement of the law. “[W]hen
the plain language of the convening authority’s action is
facially complete and unambiguous, its meaning must be given
effect.” In contrast, in United States v. Politte, 63 M.J. 24,
26 (C.A.A.F. 2006), this Court looked to the surrounding
documentation in concluding that an otherwise clear action was
ambiguous. Here, the Court sets the law straight. However,
unlike the situation in Politte, I believe that the convening
authority’s action in this case is, in fact, ambiguous. The
court-martial order here states: “that part of the sentence
extending to confinement in excess of 3 years and 3 months is
disapproved. The remainder of the sentence, with the exception
of the Dishonorable Discharge, is approved and will be
executed.”
Thus, the action’s first sentence disapproves part of the
adjudged sentence. In the next sentence, the convening
authority appears to approve the remainder of the sentence “with
the exception of the Dishonorable Discharge.” As a result,
Appellant’s adjudged dishonorable discharge is not addressed in
either sentence and, thus, arguably falls into a limbo between
that which the convening authority expressly disapproved and
that which he expressly approved. The result is an ambiguous
action.
United States v. Wilson, No. 06-0503/NA
In contrast, in Politte, the convening authority’s action
stated: “In the case of Hospital Corpsman Second Class Michael
J. Politte . . . the sentence is approved except for that part
of the sentence extending to a bad-conduct discharge. Prior to
taking this action the Convening Authority did consider the
results of trial. . . .” Id. at 25.
This language, the majority concluded, “suggests that the
convening authority intended to disapprove the adjudged bad
conduct discharge.” Id. at 26. The dissent went further and
found the language facially clear and unambiguous: “the
sentence is approved except for that part extending to a bad
conduct discharge.” Id. at 28 (Erdmann, J., dissenting). There
was no ambiguity because the convening authority did not
otherwise set out in a separate sentence those elements of the
sentence that were disapproved. By implication, if the sentence
parts were not approved they were disapproved.
For these reasons I view the present case as
distinguishable from Politte. Therefore, while I agree with the
legal framework presented, I respectfully dissent from the
result and would remand for a new convening authority’s action.
2