UNITED STATES, Appellee
v.
Michael J. POLITTE, Hospital Corpsman Second Class
U.S. Navy, Appellant
No. 05-0271
Crim. App. No. 200401261
United States Court of Appeals for the Armed Forces
Argued October 11, 2005
Decided March 21, 2006
GIERKE, C.J., delivered the opinion of the Court in which
EFFRON, J., joined. CRAWFORD, J., filed a separate opinion
concurring in the result. ERDMANN, J., filed a dissent in which
BAKER, J., joined.
Counsel
For Appellant: Lieutenant Aimee M. Cooper, JAGC, USN (argued);
Captain Jeffrey S. Stephens, USMC (on brief).
For Appellee: Major Wilbur Lee, USMC (argued); Major Raymond E.
Beal II, USMC, and Commander Charles N. Purnell, JAGC, USN (on
brief); Colonel William K. Lietzau, USMC.
Military Judge: Nels Kelstrom
This opinion is subject to revision before final publication.
United States v. Politte, No. 05-0271/NA
Chief Judge GIERKE delivered the opinion of the Court.
We again examine an ambiguous convening authority action
and its impact on sentencing. Here, the convening authority’s
action is open to two distinct interpretations, both of which
have ample support in law and fact. In light of this ambiguous
convening authority action, a new action is required.
I. BACKGROUND
Pursuant to Appellant’s guilty pleas, a military judge
sitting as a special court-martial convicted Appellant of making
a false statement, introducing cocaine onto a military
installation, wrongfully using cocaine, and soliciting another
to use cocaine.1 The convening authority entered into a pretrial
agreement allowing him to approve a punitive discharge, while
placing limits on other forms of punishment. Appellant entered
guilty pleas to five of the twenty specifications alleged, as
required by the pretrial agreement. The military judge sentenced
Appellant to a reduction to E-1 and a bad-conduct discharge.
Post-trial, trial defense counsel submitted clemency
matters to the convening authority requesting suspension of the
bad-conduct discharge for a period of one year from the date of
the convening authority’s action. Defense counsel asserted that
1
These offenses are punishable under Articles 107, 112a, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907,
912a, and 934 (2000), respectively.
2
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the punitive discharge would have an adverse impact on
Appellant, his wife, and his family.
Responding to this clemency plea, the staff judge advocate
recommended against any clemency for Appellant, and proposed an
action by the convening authority that included the following:
“[T]hat the sentence as adjudged be approved and executed,
except for that portion extending to a Bad Conduct Discharge,
which cannot be executed until the completion of appellate
review.”
Apparently in response to this recommendation, the
convening authority took the following action:
In the case of Hospital Corpsman Second Class Michael J.
Politte, U.S. Navy, . . . 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, the recommendation of the
staff judge advocate, and the 17 June 2004 clemency letter
submitted by defense counsel on behalf of the accused.
The record of trial is forwarded to the Navy-Marine Corps
Appellate Review Activity, 716 Sicard Street SE Suite 1000,
Washington Navy Yard, Washington, DC 20384-5047, pursuant
to JAGMAN 0153b(1), for review under Article 66, UCMJ.
Emphasis added.
Without specific assignment of error, Appellant submitted
his case to the lower court for review. The lower court upheld
3
United States v. Politte, No. 05-0271/NA
the findings and sentence as approved by the convening
authority.2
Appellant filed a petition for review before this Court
requesting consideration of the case on its merits. This Court
specified the following issue:
WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS HAD JURISDICTION TO ACT ON THE FINDINGS
AND SENTENCE UNDER ARTICLE 66(b)(1), UNIFORM CODE OF
MILITARY JUSTICE, 10 U.S.C. § 866(b)(1), IN LIGHT OF THE
CONVENING AUTHORITY’S ACTION THAT DOES NOT APPEAR TO HAVE
APPROVED A BAD-CONDUCT DISCHARGE.
II. DISCUSSION
The specified issue is rooted in the fundamental rule that
a Court of Criminal Appeals can only review cases within its
statutory jurisdiction. Under Article 66, UCMJ, 10 U.S.C. § 866
(2000), the Courts of Criminal Appeals may hear a case on the
merits where: (1) a Judge Advocate General refers courts-
martial records to the court; (2) a convening authority has
approved the findings and sentence; and (3) the sentence as
approved extends to death, a dismissal, a punitive discharge or
confinement for one year or more. Regarding post-trial matters,
Courts of Criminal Appeals also have jurisdiction to refrain
from addressing the merits of a case, and instead return an
action to the convening authority if further clarification of
2
United States v. Politte, No. NMCCA 200401261 (N-M. Ct. Crim.
App. Oct. 29, 2004)(unpublished).
4
United States v. Politte, No. 05-0271/NA
the meaning of the action is necessary.3 We conclude the
convening authority’s action in this case was ambiguous.
Therefore, we hold the lower court erred by failing to identify
this ambiguity and return the action to the convening authority
for clarification.
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.4 In United States v.
Scott, when presented with an ambiguous convening authority
action involving a bad-conduct discharge, this Court applied
Rule for Courts-Martial (R.C.M.) 1107(g), and returned the
record to the Judge Advocate General for submission to the
convening authority for clarification.5
R.C.M. 1107(g) permits an authority “acting under Article
64, 66, 67, or 69” to instruct a convening authority to withdraw
an original action and substitute a corrected action where the
original action “is incomplete, ambiguous, or contains clerical
error.”
In United States v. Loft, we held that appellate courts
could use surrounding documentation to interpret an otherwise
3
Rule for Courts-Martial 1107(g); see, e.g., Manual for Courts-
Martial, United States para. 95 (1951 ed.).
4
See United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003)
(“A convening authority is vested with substantial discretion
when he or she takes action on the sentence of a court-
martial.”).
5
49 M.J. 160, 160 (C.A.A.F. 1998) (summary disposition).
5
United States v. Politte, No. 05-0271/NA
unclear convening authority action.6 In Loft, we determined a
convening authority’s intent regarding a bad-conduct discharge
by looking outside the four corners of the action’s language.7
Specifically, we examined the pretrial agreement, the
recommendations of the staff judge advocate, and the proposed
action to “suspend” the bad-conduct discharge.8 A thorough
examination of this surrounding documentation led us to conclude
that the convening authority indeed intended to approve the
adjudged bad-conduct discharge.9
Turning to the facts now before us, we view the convening
authority’s action as ambiguous. The language in paragraph one
of the convening authority’s action approving Appellant’s
adjudged sentence (“except for that part of the sentence
extending to a bad conduct discharge”) suggests that the
convening authority intended to disapprove the adjudged bad-
conduct discharge.
On the other hand, the surrounding documentation provides
ample support for the opposite conclusion: that in fact, the
convening authority intended to approve the adjudged bad-conduct
discharge. First, the pretrial agreement allowed for the
convening authority to approve the bad-conduct discharge.
Second, the recommendation of the staff judge advocate
6
10 M.J. 266, 268 (C.M.A. 1981).
7
Id.
8
Id. at 267-68.
9
Id.
6
United States v. Politte, No. 05-0271/NA
presupposes the approval of a bad-conduct discharge, as it
expressly recommends that the bad-conduct discharge be approved,
but not executed until the completion of appellate review.
Third, in requesting clemency, the defense did not request
disapproval of the bad-conduct discharge –- only suspension.
Finally, in the paragraph immediately following Appellant’s
sentence, the convening authority took action forwarding the
record to the Navy-Marine Corps Appellate Review Activity
pursuant to Article 66, UCMJ. Such an action is strong evidence
that the convening authority intended to approve the bad-conduct
discharge.10
Based on our review of all the surrounding documentation
leading up to the convening authority action, we decline to
adopt Appellant’s position that the plain language indicates the
convening authority intended to disapprove of the adjudged bad-
conduct discharge. However, because the language does express
approval of the sentence “except for the bad conduct discharge,”
we must also decline to adopt the Government’s position that the
surrounding documentation clearly indicates the convening
authority intended to approve the adjudged bad-conduct
10
See Loft, 10 M.J. at 268.
7
United States v. Politte, No. 05-0271/NA
discharge. Here the convening authority’s action regarding
Appellant’s sentence was ambiguous.11
Finding this deficiency in the convening authority’s
action, we answer the specified issue in the affirmative. While
the lower court did have jurisdiction to act in this case, we
conclude that the lower court erred by not identifying the
ambiguity and returning the action to the convening authority.12
DECISION
The decision of the United States Navy-Marine Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for submission to the
convening authority for clarification in accordance with R.C.M.
1107(g). Thereafter, Article 66, UCMJ, and Article 67, UCMJ,
respectively,13 will apply.14
11
Convening authorities and staff judge advocates can avoid the
ambiguity we have here by exercising care in drafting the
convening authority’s actions. A potential solution to this
problem is to draft actions that do not combine, in one
sentence, the three separate concepts of: (1) approval of the
sentence, (2) execution of the sentence; and (3) identification
of those portions of the sentence that cannot be executed until
completion of appellate review. We note that the model “Forms
for Action” in Manual for Courts-Martial, United States app.16
at A16-1-A16-6 (2005 ed.), could be revised so that the model
actions use separate sentences for each of the elements listed
above, rather than multiple clauses, in order to treat the
different elements of a sentence as different actions.
12
Article 66(b)(1), UCMJ; Scott, 49 M.J. at 160; R.C.M. 1107(g).
13
10 U.S.C. § 867 (2000).
14
Scott, 49 M.J. at 160.
8
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CRAWFORD, Judge (concurring in the result):
This case is distinguishable from United States v. Robbins,
61 M.J. 60 (C.A.A.F. 2005), and United States v. Pineda, 54 M.J.
298 (C.A.A.F. 2001). In this case, the staff judge advocate
recommended the sentence “as adjudged be approved and executed,
except for that portion extending to a Bad Conduct Discharge,
which cannot be executed until the completion of the appellate
review.” The convening authority then signed an action that
approved the sentence “except for that part of the sentence
extending to a bad conduct discharge.” Missing from the end of
this sentence are the words “will be executed.” See Manual for
Courts-Martial, United States, Forms for Action app. 16 at A16-2
(2005 ed.).
There were two pretrial agreements in this case. First,
the convening authority accepted a plea of guilty to the
following: false official statement, introduction of cocaine
onto a military installation, wrongful use of cocaine, and
larceny. However, because of additional misconduct by
Appellant, the convening authority withdrew from this agreement
on October 8, 2003.
Pursuant to a second pretrial agreement on March 16, 2004,
Appellant was convicted at a special court-martial for the
making of a false official statement, introduction of cocaine
onto a military installation, wrongful use of cocaine (two
United States v. Politte, No. 05-0271/NA
specifications), and solicitation of another to use cocaine.
Under this second pretrial agreement, the convening authority
also agreed to withdraw and dismiss several additional charges.
Appellant’s case was submitted to the Navy-Marine Court of
Criminal Appeals without the assignment of any errors. After
his case was affirmed by that court in an unpublished opinion,
it was then submitted to this Court with no assignments of
error. This Court specified the issue set forth in the majority
opinion.
Several factors lead one to the common sense conclusion
that there was an administrative oversight in the convening
authority’s action that was not consistent with the intent of
the convening authority. The fact that neither Appellant nor
his counsel raised this issue before the Court of Criminal
Appeals or this Court is evidence that they understood what
sentence was approved. Further, the serious nature of the
offenses to which Appellant pleaded guilty would warrant the
imposition of a punitive discharge. Unlike Robbins and Pineda,
the intent of the parties and Appellant’s understanding of his
approved sentence are clear from the second pretrial agreement
and the recommendation of the staff judge advocate, as well as
from the surrounding circumstances of the case itself. Thus, I
would affirm the court below, but because of the two opinions --
one by Chief Judge Gierke and one by Judge Erdmann, resulting in
2
United States v. Politte, No. 05-0271/NA
a 2-2 split, I concur in the result and agree with the Chief
Judge to allow the convening authority to clarify the action in
this case.
3
United States v. Politte, No. 05-0271/NA
ERDMANN, Judge, with whom BAKER, Judge, joins (dissenting):
Because the majority finds ambiguity by going beyond the
four corners of this otherwise unambiguous action, I
respectfully dissent.
Article 60(c), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 860(c) (2000), empowers a convening authority to act
upon the findings and sentence of a court-martial. See also
Rule for Courts-Martial (R.C.M.) 1107. That empowering statute
defines and limits what constitutes an “action”. Nothing within
the statute includes the administrative disposition of a record
of trial as part of the convening authority’s action on the
findings and sentence. By including the administrative
instructions on disposition of the record of trial within the
convening authority’s “action”, the majority has expanded the
statutory definition of “action”. I decline to join in this
expansion of statutory definition.
The majority relies upon the following three paragraphs of
the R.C.M. 1114 promulgating order to suggest an ambiguity in
the convening authority’s action:
In the case of Hospital Corpsman Second Class Michael J.
Politte, U.S. Navy, . . . 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, the recommendation of the
staff judge advocate, and the 17 June 2004 clemency letter
submitted by defense counsel on behalf of the accused.
United States v. Politte, No. 05-0271/NA
The record of trial is forwarded to the Navy-Marine Corps
Appellate Review Activity, 716 Sicard Street SE Suite 1000,
Washington Navy Yard, Washington, DC 20384-5047, pursuant
to JAGMAN 0153b(1), for review under Article 66, UCMJ.
Paragraph two of the foregoing clearly reflects that the
convening authority’s action was whole and completed within the
clear language of the first paragraph.
The convening authority took no action on the findings in
Politte’s case and the action on the sentence is facially clear
and unambiguous: “the sentence is approved except for that part
of the sentence extending to a bad conduct discharge.” This
facial clarity undermines the majority’s reliance upon United
States v. Loft, 10 M.J. 266, 268 (C.M.A. 1981), as a basis for
looking at the surrounding circumstances to determine the
convening authority’s intent. In that case we defined
“ambiguous action [as] one that is ‘capable of being understood
in two or more possible senses.’” Id. (quoting Webster’s New
Collegiate Dictionary 36 (1975 ed.)). Without going beyond the
terms of the action itself, the words used by the convening
authority are susceptible of but one meaning: the punitive
discharge was not approved.
For this reason, the action is not subject to the
provisions of R.C.M. 1107(g) which permit correction of an
action that is “incomplete, ambiguous, or contains clerical
error.” See United States v. Klein, 55 M.J. 752, 756 n.3 (A.F.
2
United States v. Politte, No. 05-0271/NA
Ct. Crim. App. 2001). The action here is clear and unambiguous.
The convening authority did not approve the adjudged bad-conduct
discharge. The Court of Criminal Appeals should have reviewed
this action and found that it had no statutory authority to
conduct further review. Any purported final action executing a
bad-conduct discharge must be set aside.
3