United States v. Alexander & U.S. v. Vanderschaaf

63 M.J. 269, 2006 CAAF LEXIS 888
CourtCourt of Appeals for the Armed Forces
DecidedJuly 3, 2006
Docket06-5004/AR & 06-5003/AR
StatusPublished
Cited by18 cases

This text of 63 M.J. 269 (United States v. Alexander & U.S. v. Vanderschaaf) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alexander & U.S. v. Vanderschaaf, 63 M.J. 269, 2006 CAAF LEXIS 888 (Ark. 2006).

Opinions

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 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 [271]*271Offense,” 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. 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 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).

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 Baum-holder 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 confine[272]*272ment 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 pretrial agreement, provide three days of pretrial confinement credit, and approve the balance of the sentence.

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Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 269, 2006 CAAF LEXIS 888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alexander-us-v-vanderschaaf-armfor-2006.