UNITED STATES, Appellant
v.
Joshua J. ALEXANDER, Specialist
U.S. Army, Appellee
No. 06-5004
Crim. App. No. 20031161
AND
UNITED STATES, Appellant
v.
Sean B. VANDERSCHAAF, Private
U.S. Army, Appellee
No. 06-5003
Crim. App. No. 20050316
United States Court of Appeals for the Armed Forces
Argued May 2, 2006
Decided July 3, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
separate opinion, concurring in part and dissenting in part.
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
United States v. Alexander
Counsel For Appellant: Captain Larry W. Downend (argued);
Lieutenant Colonel Theresa A. Gallagher and Major William J.
Nelson (on brief); Lieutenant Colonel Natalie A. Kolb.
Counsel For Appellee: Major Charles L. Pritchard Jr. (argued);
Colonel John T. Phelps III, Lieutenant Colonel Kirsten V. C.
Brunson, Major Billy B. Ruhling II, and Captain Stephen P.
Watkins (on brief).
Military Judge: Patrick J. Parrish
United States v. Vanderschaaf
Counsel For Appellant: Captain Larry W. Downend (argued);
Lieutenant Colonel Theresa A. Gallagher, Major William J.
Nelson, and Major Natalie A. Kolb (on brief).
Counsel For Appellee: Major Charles L. Pritchard Jr. (argued);
Lieutenant Colonel Kirsten V. C. Brunson (on brief); Colonel
John T. Phelps II.
Military Judge: Denise Lind
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
2
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
Judge EFFRON delivered the opinion of the Court.
The present appeal concerns two guilty plea cases in which
issues have arisen concerning the content of the findings
approved by the convening authority. The first portion of this
opinion describes the pertinent background for each case. In
the second part of the opinion, we consider the principles
governing the relationship between findings rendered at trial
and the findings approved by the convening authority. The third
part of the opinion considers the action taken by the United
States Army Court of Criminal Appeals with respect to the
findings in these two cases.
I. BACKGROUND
A. United States v. Alexander
Alexander was charged with two violations of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912(a)
(2000). The first specification alleged that Alexander:
did, at or near Kandahar Air Field,
Afghanistan, on divers occasions during
February 2003, wrongfully use marijuana in
hashish form, while receiving special pay
under 37 U.S.C. § 310.
The second specification alleged that Alexander:
did, at or near Kandahar Air Field,
Afghanistan, on divers occasions between
February 2003 and March 2003, wrongfully
distribute an unknown amount of marijuana in
3
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
the hashish form, a controlled substance,
while receiving special pay under 37 U.S.C.
§ 310.
Pursuant to Alexander’s pleas, a general court-martial
composed of a military judge sitting alone found him guilty of
both offenses. The court-martial sentenced Appellant to
confinement for eighteen months, reduction to the lowest
enlisted grade, and a bad-conduct discharge.
The staff judge advocate (SJA) provided the convening
authority with a post-trial recommendation under Rule for
Courts-Martial (R.C.M.) 1106. Under the heading “Gist of
Offense,” the SJA provided the following description of the
findings:
[Specification 1:] Wrongfully used
marijuana in the hashish form, a controlled
substance, on divers occasions during Feb
03.
[Specification 2:] Wrongfully distributed
an unknown amount of marijuana in the
hashish form, a controlled substance, on
divers occasions between Feb 03 and Mar 03.
In accordance with a pretrial agreement, the SJA recommended
that the convening authority reduce the period of confinement to
six months and approve the balance of the sentence. The SJA did
not make a specific recommendation with respect to the findings.
The defense post-trial submission under R.C.M. 1105 and R.C.M.
4
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
1106 did not object either to the wording of the specification
considered at trial or to the summary provided in the SJA’s
post-trial recommendation.
In response to a defense request for relief based upon
post-trial processing delay, the SJA recommended that the
convening authority reduce the period of confinement to five
months. The convening authority’s action of July 30, 2004,
approved the sentence recommended by the SJA, but it did not
expressly address the findings. See R.C.M. 1107(c).
The 82d Airborne Division issued a promulgating order on
the same date as the action, signed by Major Jeff A. Bovarnick,
a judge advocate identified as the “Chief, Criminal Law.”
Immediately above the signature, the promulgating order stated
that it was issued “BY COMMAND OF MAJOR GENERAL CALDWELL,” the
convening authority. The promulgating order contained the
following description of the findings:
Charge: Article 112a. Plea: Guilty.
Finding: Guilty
Specification 1: On divers occasions during
February 2003, wrongfully used marijuana in
the hashish form, a controlled substance,
while receiving special pay under 37 U.S.C.
§ 310. Plea: Guilty. Finding: Guilty.
Specification 2: On divers occasions
between February 2003 and March 2003,
wrongfully distributed an unknown amount of
marijuana in the hashish form, a controlled
substance, while receiving special pay under
5
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
37 U.S.C. § 310. Plea: Guilty. Finding:
Guilty.
The “Action” portion of the promulgating order expressly
reflected the convening authority’s action on the sentence and
did not address the findings.
On review under Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2000), the Court of Criminal Appeals concluded that the
convening authority had “approved only” the findings of guilty
as to wrongful use and wrongful distribution and did not approve
that portion of the findings concerning use and distribution
while receiving special pay. United States v. Alexander, No.
ARMY 20031161, slip. op. at 1 n.* (A. Ct. Crim. App. Nov. 7,
2005). The court concluded that the omission did not prejudice
Alexander, but issued an order that “corrected” the two
specifications in the promulgating order by deleting the
reference in each to special pay. Id.
On December 27, 2005, pursuant to Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2)(2000), the Judge Advocate General of the Army
certified for our review the question of whether the Court of
Criminal Appeals erred in ordering deletion of the reference to
special pay from each of the specifications. United States v.
Alexander, 62 M.J. 400 (C.A.A.F. 2005).
6
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
B. United States v. Vanderschaaf
Vanderschaaf was charged with eight violations of Article
112a, UCMJ. The first specification alleged that Vanderschaaf:
did, on divers occasions, at or near
Baumholder and Idar-Oberstein Germany,
between on or about 4 October 2004 and 7
November 2004, wrongfully use marijuana
(THC).
The remaining seven specifications employed a similar format to
allege other drug offenses “on divers occasions” between
specified dates.
Pursuant to Vanderschaaf’s pleas, a general court-martial
composed of a military judge sitting alone found him guilty of
the offenses charged under Article 112a, UCMJ. The court-
martial sentenced Appellant to confinement for fifty months and
a dishonorable discharge.
The SJA provided the convening authority with a post-trial
recommendation under R.C.M. 1106. Under the heading “Gist of
Offense,” the SJA offered the following description of the
findings on the first specification:
Did, between 4 Oct 04 and 7 Nov 04, near
Baumholder and Idar-Oberstein, Germany,
wrongfully use marijuana.
The SJA used similar language to describe the remaining seven
offenses. The SJA recommended that the convening authority
reduce the period of confinement to thirty months pursuant to a
7
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
pretrial agreement, provide three days of pretrial confinement
credit, and approve the balance of the sentence. The SJA did
not make a specific recommendation with respect to the findings.
The defense post-trial submission under R.C.M. 1105 and R.C.M.
1106 did not object either to the wording of the specification
considered at trial or to the summary provided in the SJA’s
post-trial recommendation.
The convening authority’s action, dated August 4, 2005,
approved a dishonorable discharge, reduced the period of
confinement to thirty months, and provided three days of
confinement credit. The convening authority’s action did not
expressly address the findings. See R.C.M. 1107(c).
The 1st Armored Division issued a promulgating order on the
same date as the action, signed by Captain Mary Catherine
Vergona, a judge advocate identified as the “Chief, Military
Justice.” Immediately above the signature, the promulgating
order stated that it was issued “BY COMMAND OF MAJOR GENERAL
ROBINSON,” the convening authority. The promulgating order
contained the following description of the findings on the first
specification:
In that [Appellant] did, on divers
occasions, at or near Baumholder and Idar-
Oberstein, Germany, between on or about 4
October 2004 and 7 November 2004, wrongfully
use marijuana (THC). Plea: Guilty.
Finding: Guilty.
8
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
The promulgating order employed similar language to describe the
remaining seven offenses.
In the course of reviewing the case under Article 66(c),
UCMJ, the Court of Criminal Appeals issued an order that
“corrected” each of the specifications in the promulgating
order, 62 M.J. 400, by deleting the words “on divers occasions.”
United States v. Vanderschaaf, No. ARMY 20050316 (A. Ct. Crim.
App. Oct. 27, 2005).
On December 22, 2005, pursuant to Article 67(a)(2), UCMJ,
the Judge Advocate General of the Army certified for our review
the question of whether the Court of Criminal Appeals erred in
ordering deletion of the words “on divers occasions” from each
of the specifications. United States v. Vanderschaaf, 62 M.J.
399 (C.A.A.F. 2005).
II. THE RELATIONSHIP BETWEEN ADJUDGED AND APPROVED FINDINGS
The approved findings reviewed by the Court of Criminal
Appeals under Article 66(c), UCMJ, are built on a foundation
that consists of the charges and specifications referred for
trial, the findings adjudged by the court-martial, the
recommendation of the SJA to the convening authority, and the
action of the convening authority. This section briefly
9
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
summarizes each step in that process, including the procedure
for documenting pertinent decisions.
A. CHARGES AND SPECIFICATIONS
The Manual for Courts-Martial, United States (2005
ed.)(MCM) states that “[t]he format of charge and specification
is used to allege violations” of the UCMJ. R.C.M. 307(c)(1);
see Articles 30 and 34, UCMJ, 10 U.S.C. §§ 830, 834 (2000). As
noted in R.C.M. 307(c)(2) and (3), the “charge” is a legal
citation, while the “specification” sets forth the alleged facts
constituting the charged offense:
(2) Charge. A charge states the article of
the code, law of war, or local penal law of
an occupied territory which the accused is
alleged to have violated.
(3) Specification. A specification is a
plain, concise, and definite statement of
the essential facts constituting the offense
charged. A specification is sufficient if
it alleges every element of the charged
offense expressly or by necessary
implication.
The charge sheet, which contains the charges and specifications,
provides the basis for referral and arraignment and is included
in the record of trial. R.C.M. 601(a); R.C.M. 904; R.C.M.
1103(b)(2)(D)(i).
B. THE FINDINGS ADJUDGED BY THE COURT-MARTIAL
The court-martial announces its findings on each charge and
specification following the presentation of evidence, closing
10
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
arguments, instructions, and deliberations. R.C.M. 918-922; see
Articles 51 and 53, UCMJ, 10 U.S.C. §§ 851, 853 (2000). R.C.M.
918(a) provides that, “[t]he general findings of a court-martial
state whether the accused is guilty of each offense charged.”
R.C.M. 918(a)(1), (2). The rule contains specific requirements
with respect to the form of the general findings:
(1) As to a specification. General findings
as to a specification may be: guilty; not
guilty of an offense as charged, but guilty
of a named lesser included offense; guilty
with exceptions, with or without
substitutions; not guilty of the exceptions,
but guilty of the substitutions, if any; not
guilty only by reason of lack of mental
responsibility; or, not guilty.
(2) As to a charge. General findings as to
a charge may be: guilty; not guilty, but
guilty of a violation of Article __; not
guilty only by reason of lack of mental
responsibility; or not guilty.
Under these rules, the findings do not expressly incorporate the
text of the charges and the underlying specifications. Instead,
the findings constitute a decision by the factfinder whether the
government has met its burden of proof beyond a reasonable doubt
as to the charged offense or as to any lesser included offense.
On occasion, the findings contain errors or ambiguities,
and the MCM provides limited authority for corrective action by
the court-martial in specified circumstances. See, e.g., R.C.M.
922; R.C.M. 923; R.C.M. 924.
11
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
When the court-martial is adjourned following announcement
of the sentence, “[t]he findings and sentence . . . shall be
reported promptly to the convening authority . . . .” Article
60(a), UCMJ, 10 U.S.C. § 860(a) (2000). Trial counsel prepares
the report of the findings and sentence, which must be submitted
in writing. Id.; R.C.M. 1101(a). Neither the UCMJ nor the MCM
offers any guidance as to the amount of detail that should be
provided regarding the findings.
C. THE CONVENING AUTHORITY’S ACTION
After authentication of the record of trial, the convening
authority’s SJA prepares a recommendation for action by the
convening authority. Article 60(d), UCMJ; R.C.M. 1106(a). The
recommendation assists the convening authority in deciding “what
action to take on the sentence.” R.C.M. 1106(d); see Article
60(c)(2), UCMJ. Under the authority granted by Congress in
Article 60(d), UCMJ, the President has prescribed the contents
of the recommendation, including the requirement to provide
“concise information” as to “[t]he findings and sentence
adjudged by the court-martial.” R.C.M. 1106(d)(3)(A). The
information regarding the findings need not include either the
verbatim text of the specification or an exact description of
any exceptions or substitutions made by the court-martial. See
United States v. Gunkle, 55 M.J. 26, 33 (C.A.A.F. 2001).
12
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
The SJA serves the recommendation on the defense prior to
submission to the convening authority. R.C.M. 1106(f)(1). The
defense may provide the convening authority with comments on the
recommendation, as well as other matters. Article 60(b), (d),
UCMJ; R.C.M. 1105; R.C.M. 1106(f). If the defense does not
comment on a deficiency in the SJA’s recommendation, the matter
is waived, absent plain error. R.C.M. 1106(f)(6).
Prior to taking action, the convening authority must
consider: (1) the result of trial; (2) the recommendation of
the staff judge advocate; and (3) matters submitted by the
defense. R.C.M. 1107(b)(3)(A). The convening authority may
consider other sources of information, as described in R.C.M.
1107(b)(3)(B).
Article 60(c), UCMJ, sets forth the non-discretionary and
discretionary powers of the convening authority regarding the
findings and sentence:
(1) The authority . . . to modify the
findings and sentence . . . is a matter of
command prerogative . . . .
(2) Action on the sentence of a court-
martial shall be taken by the convening
authority . . . .
(3) Action on the findings of a court-
martial by the convening authority . . . is
not required.
13
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
See R.C.M. 1107(a), (b). If the convening authority disapproves
any findings, the decision to do so must be set forth in the
action, but R.C.M. 1107 does not require an affirmative
statement regarding approval of findings. See R.C.M.
1107(f)(1), (3).
D. THE PROMULGATING ORDER
After taking action under R.C.M. 1107, the convening
authority issues an initial promulgating order. R.C.M.
1114(b)(1); see R.C.M. 1114(e). The initial promulgating order
“publishes the result of the court-martial and the convening
authority’s action . . . .” R.C.M. 1114(a)(2). The
promulgating order must include, among other matters, “the
charges and specifications, or a summary thereof, on which the
accused was arraigned; the accused’s pleas; the findings or
other disposition of each charge and specification; the
sentence, if any; and the action of the convening authority, or
a summary thereof.” R.C.M. 1114(c)(1). The promulgating order
must be “authenticated by the signature of the convening
authority . . . or a person acting under the direction of such
authority.” R.C.M. 1114(e).
E. CORRECTIVE ACTION BY THE CONVENING AUTHORITY
The convening authority may modify the action before it is
published or served on the accused. R.C.M. 1107(f)(2). During
14
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
the period between service of the action on the defense and
forwarding of the record for appellate review, the convening
authority may modify the action if “the modification does not
result in action less favorable to the accused than the earlier
action.” R.C.M. 1107(f)(2); see R.C.M. 1110(f); R.C.M. 1107(h).
After the record has been forwarded for appellate review,
the convening authority cannot modify the action unless a higher
reviewing authority directs the modification of an “illegal,
erroneous, incomplete, or ambiguous action.” R.C.M. 1107(f)(2).
Separate rules regarding modification of the action apply in
cases where the accused has waived formal appellate review. See
id. Reviewing authorities may direct a convening authority to
correct an action that “is incomplete, ambiguous, or contains
clerical error.” R.C.M. 1107(g). The convening authority must
issue a supplementary promulgating order when “[a]ny action [is]
taken on the case subsequent to the initial action . . . .” See
R.C.M. 1114(b)(2).
F. THE FINDINGS “APPROVED” BY THE CONVENING AUTHORITY
A Court of Criminal Appeals exercises jurisdiction over a
broad range of cases under Article 66(b), UCMJ, including: (1)
every case in which the approved sentence extends to a punitive
separation or confinement for a year or more unless mandatory
review is waived; (2) every case involving an approved death
15
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
sentence; and (3) any other case submitted to the Court of
Criminal Appeals by the Judge Advocate General under Article
69(d), UCMJ, 10 U.S.C. § 869(b) (2000).
Under Article 66(c), UCMJ, a Court of Criminal Appeals “may
act only with respect to the findings and sentence as approved
by the convening authority.” The focus on “findings . . .
approved” by the convening authority contemplates that the
findings must be endorsed or ratified by the convening
authority.
The relationship between the Article 66(c), UCMJ,
requirement for approval of the findings and the Article
60(c)(3), UCMJ, statement that “[a]ction on the findings . . .
is not required” reflects the competing goals served by the
legislation governing the convening authority’s role on
findings. Under the UCMJ as originally enacted in 1950, the
convening authority served in a judicial role, performing a
first-level legal review of findings and sentence. Act of May
5, 1950, Pub. L. No. 81-506, ch. 169, 64 Stat. 107, 128 (Article
64). As the role of judges at the trial and appellate levels
increased over time, particularly after enactment of the
Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335,
Congress reexamined the requirement for a full legal review of
the findings and sentence at the convening authority level. See
16
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
S. Rep. No. 98-53, at 7 (1983). In the Military Justice Act of
1983, Pub. L. No. 98-209, 97 Stat. 1393, Congress removed the
requirement for the convening authority to conduct a legal
review or otherwise act as an “appellate tribunal,” while
retaining the convening authority’s power to modify the findings
and sentence as a matter of “command prerogative.” S. Rep. No.
98-53, at 7, 19, 21. As part of the legislation, Congress
specifically stated in Article 60(c)(3), UCMJ, that the
convening authority was not required to act on the findings.
We have interpreted the approval requirement of Article
66(c), UCMJ, in a manner consistent with the congressional goal
of reducing the post-trial judicial responsibilities of the
convening authority. If the convening authority expressly acts
to approve, disapprove, or modify particular findings of the
court-martial, the result of the convening authority’s action
constitutes the approved findings reviewed by the Court of
Criminal Appeals under Article 66(c), UCMJ. See United States
v. Diaz, 40 M.J. 335, 343 (C.M.A. 1994).
In the typical case, however, the convening authority’s
action only addresses the sentence, and does not mention the
findings. In such a case, the Court of Criminal Appeals may
presume that the convening authority approved the findings
reached by the court-martial and reported in the SJA’s post-
17
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
trial recommendation, absent material evidence to the contrary.
If the list of findings in the SJA’s post-trial recommendation
omits any reference to a particular finding, see R.C.M.
1106(d)(3)(A), the Court of Criminal Appeals may not presume
that the convening authority implicitly approved or disapproved
the omitted finding. See Diaz, 40 M.J. at 343. In such a case,
the court must return the case for a new SJA review and
convening authority action unless the court determines that the
affected finding should be disapproved at the appellate level
“in the interest of efficient administration of justice.” See
id. at 345 (disapproving findings omitted from the SJA’s
recommendation and affirming the balance of the findings where
such actions would not prejudice the appellant and would
“adequately vindicate the interests of military society”).
III. DISCUSSION
The certified issues before us ask, in effect, what
findings were approved by the convening authority in each case.
There is no question in each case as to what findings were
adjudged by the court-martial. Alexander was convicted of using
and distributing illegal drugs “while receiving special pay,”
and Vanderschaaf was convicted of using and distributing illegal
drugs on “divers occasions.” In each case, the convening
18
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
authority did not expressly approve the findings. In that
context, we must determine whether the Court of Criminal Appeals
should have concluded in each case that the convening authority
approved the findings adjudged by the court-martial.
The present cases are distinguishable from Diaz, in which a
number of specifications were omitted in their entirety from
both the SJA’s post-trial recommendation and the convening
authority’s initial promulgating order. Diaz, 40 M.J. at 337-
38. By contrast, in each of the cases now before us, the SJA’s
post-trial recommendation listed each charge and specification
that resulted in a finding of guilty, provided details as to the
time and place of the offenses, described the acts at issue, and
set forth the nature of the illegal drugs.
Pursuant to R.C.M. 1106(d)(3)(A), the SJA’s recommendation
may provide the convening authority with “concise information”
about the findings, “without specifying exactly what acts the
appellant was found guilty of or what language was excepted or
substituted.” Gunkle, 55 M.J. at 33 (citation and quotation
marks omitted). For the specific purpose of determining what
offenses were approved by a convening authority, we are guided
by the post-1983 congressional view of the limited role of the
convening authority as to findings. Although disapproval of the
findings requires express action by the convening authority, the
19
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
convening authority is not required to take express action to
approve the findings. See Article 60(c)(3), UCMJ; R.C.M.
1107(f)(1), (3). In that context, the SJA’s description of a
finding is sufficient if it provides a general depiction of the
offense, without the necessity for reciting the details of each
element and aggravating factor.
In the present cases, the descriptions provided by each SJA
were sufficient for that purpose. To the extent that the court
below concluded otherwise, the court erred.
We also note that even if the relationship between the
adjudged and approved findings in one of these cases had
disclosed an ambiguity, the case should have been returned for a
new SJA recommendation and convening authority action unless the
case fit within the limited authority for appellate correction
under Diaz.
We emphasize that our analysis in the present case relates
solely to the identification of the findings approved by a
convening authority who did not take express action on the
findings adjudged by a court-martial. The cases before us do
not involve the separate question of what information about a
finding must be provided by an SJA for purposes of the convening
authority’s action on the sentence or for purposes of expressly
acting on the findings. In such a case, the challenge to the
20
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
adequacy of the SJA’s recommendation does not involve a dispute
about whether the convening authority approved or disapproved a
particular finding; rather, the issue is whether the SJA
misstated the nature of the offense, thereby prejudicing the
right of an accused to an informed convening authority action.
Where, for example, the SJA has provided incorrect or incomplete
information that prejudices an accused’s right to have a
clemency request judged on the basis of accurate information,
the accused is entitled to a new SJA recommendation and
convening authority action. See, e.g., United States v.
Wellington, 58 M.J. 420, 427-28 (C.A.A.F. 2003). Neither
Alexander nor Vanderschaaf has claimed that omission in the
post-trial recommendation of references to commission of drug
offenses “on divers occasions” or “while receiving special pay”
constituted prejudicial error.
We also note that our conclusion involves a legal
determination, and does not express a view on the desirability
of the procedure employed in these cases as a matter of policy.
It is possible that the potential for error could be reduced if
the recommendation prepared by an SJA included the findings
portion of a proposed promulgating order, thereby providing
greater assurance of congruence between the recommendation and
the promulgating order. However, in view of the apparent
21
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR
infrequency of the circumstances presented in these appeals and
the fact that the problem is not one that affects the trial
process, we do not find it necessary to establish such a
requirement.
IV. CONCLUSION
The corrective action taken by the court below in each of
these cases was not required as a matter of law. The record in
each case is consistent with the presumption that the convening
authority approved the findings adjudged at trial. The court
below must now determine whether, in that context, those
findings should be approved. See Article 66(c), UCMJ.
Accordingly, the decision of the United States Army Court
of Criminal Appeals is reversed in each case. The record of
trial in each case is returned to the Judge Advocate General of
the Army for remand to the Court of Criminal Appeals for further
review under Article 66(c), UCMJ.
22
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR
ERDMANN, Judge (concurring in part and dissenting in part):
I agree with the majority that the United States Army Court
of Criminal Appeals could not direct a modification to the
statement of the charges and specifications in the promulgating
order. The promulgating order includes “the charges and
specifications” and “the findings or other disposition of each
charge and specification” as a reflection of “the result of
trial.” Rule for Courts-Martial (R.C.M.) 1114(a)(1),(c)(1).
Changing the statement of the charges and specifications, as the
Court of Criminal Appeals directed, causes that promulgating
order to be inaccurate since it no longer reflects what actually
happened at trial. If the lower court wants to make some
amendment to the findings of a court-martial, the proper course
is to disapprove the findings or some portion of the findings
and issue a supplemental order reflecting that action.
I depart, however, from the majority to the extent that it
suggests that the descriptions of the offenses in these cases by
the staff judge advocates (SJAs) were adequate to support a
presumption that the convening authorities implicitly approved
all aspects of the findings. A presumption arises because
certain foundational facts are known or proven. See Virginia v.
Black, 538 U.S. 343, 395 (2003) (“A presumption is a rule of law
that compels the fact finder to draw a certain conclusion or a
certain inference from a given set of facts.”). The
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR
foundational facts for a presumption that the convening
authority implicitly approved findings can come only from one of
two documents. One of those documents is the R.C.M. 1101(a)
report of the results of trial. In these cases, however, we do
not know whether the convening authorities ever saw the R.C.M.
1101(a) reports of the results of trial.
The other document is the R.C.M. 1106 post-trial
recommendation of the SJA. In these cases, the SJA
recommendations are the only documents we can conclude were
before the convening authorities at action. Thus, any
presumption of what findings were implicitly approved must have
its origin in the SJAs’ “concise information as to . . . [t]he
findings . . . adjudged by the court-martial.” R.C.M.
1106(d)(3)(A). “[T]he more compelling evidence of those
[findings] that implicitly were approved by the convening
authority in his action are those of which he must be made aware
as a matter of law -- those in the recommendation.” United
States v. Diaz, 40 M.J. 335, 342 (C.M.A. 1994).
A convening authority cannot implicitly approve matters of
which he was not aware. In these cases the convening
authorities were not made aware of the “special pay” sentence
aggravator in Alexander’s case or the fact that Vanderschaaf’s
drug offenses were committed on “divers occasions”. It
2
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR
therefore cannot be presumed that those findings were implicitly
approved.
In Diaz, this court concluded that implied approval of the
findings was a necessary implication resulting from the fact
that, although the Military Justice Act of 1983, Pub. L. No.
98,209, 97 Stat. 1393, removed the requirement for a convening
authority to specifically act on findings, “Congress did not
modify in any respect Article 66, which addresses appellate
review by a Court of [Criminal Appeals].” 40 M.J. at 340-41.
The Courts of Criminal Appeals “act only with respect to the
findings and sentence as approved by the convening authority.”
Article 66(c), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 866(c) (2000). Thus, Diaz concluded that implicit
approval of findings was “necessary in order to make sense of
the statutory predicate for the appellate authority of the Court
of [Criminal Appeals] under Article 66(c).” 40 M.J. at 341.
The holding and logic of Diaz remains intact. Congress has not
amended Article 66(c), UCMJ, to modify the requirement that the
Courts of Criminal Appeals review “findings . . . as approved by
the convening authority.” A presumption that a convening
authority implicitly approved findings is necessary to establish
what findings the Court of Criminal Appeals must review.
In these cases, the convening authorities were not informed
of certain portions of the findings; it cannot be presumed that
3
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR
any rule of implicit approval runs to those portions of the
findings; and the scope of the Court of Criminal Appeals’ review
is uncertain. The Court of Criminal Appeals should have sought
clarification by means of a new action or dismissed portions of
the findings before Article 66, UCMJ, review could be conducted.
See Diaz, 40 M.J. at 345. The majority’s rule essentially
permits “close enough” to determine the scope of review under
Article 66(c), UCMJ. I cannot join in that conclusion.
4