United States v. Boudreaux

26 M.J. 879, 1988 CMR LEXIS 432, 1988 WL 75257

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: June 30, 1988
• Docket: NMCM 74 2361R
• Status: Published

Opinions

Before the court en banc.

COUGHLIN, Senior Judge:

This case is before us for a second time and, on our own motion, we consider it en banc.

Contrary to his pleas before the first general court-martial tried by military judge alone in February and March 1974, appellant was found guilty of five specifications of violating lawful general regulations under Charge II; one specification of signing a false official statement under Additional Charge I; and one specification of false swearing under Additional Charge II, in violation of, respectively, Articles 92, 107, and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 892, 907, and 934. He was acquitted of other charges and was sentenced to be dismissed from the service.

In our opinion dated 19 August 1975, we affirmed the findings of guilty to Charge II and Specification 5 thereunder and to Additional Charges I and II with a single specification under each such charge. The findings of guilty to Specifications 1 thru 4 of Charge II and the sentence were, however, set aside. We returned the record to the convening authority, authorizing him to order a rehearing on Specifications 1 through 4 of the Article 92 violations and on the sentence or, alternatively, to order a rehearing on the sentence only as to the charges and specifications which we had affirmed. United, States v. Boudreaux, No. 74 2361 (NCMR 19 August 1975).¹

On 28 October 1975, the convening authority, pursuant to our decision, ordered a rehearing at a general court-martial of Specifications 1 through 4 of Charge II and the sentence. At the rehearing, held on 2 December 1975, the appellant was found guilty pursuant to his pleas of Specifications 1 thru 3 of Charge II.² For these offenses and the offenses for which we previously affirmed guilty findings, the appellant was sentenced by court-martial members to be reprimanded, to pay a fine of $1000, and to lose 2950 numbers on the lineal list. The sentence did not include a dismissal from the Naval Service. The convening authority’s action on the rehearing approved the sentence as adjudged and directed that “[t]he record of trial [be] forwarded to the Judge Advocate General of the Navy for examination under Article 69, Uniform Code of Military Justice.” On 14 May 1976, the Office of the Judge Advocate General (OJAG) reviewed the rehearing pursuant to Article 69, 10 U.S.C. § 869 and determined, “The proceedings, findings, and sentence as approved by the convening authority are found correct in law and fact.”

For over ten years the case remained dormant. Then on 1 July 1986, the Judge Advocate General returned the record- of trial to the Navy-Marine Corps Court of Military Review “for completion of appellate review under Article 66” of the UCMJ on the basis that OJAG review of the rehearing of a case initially reviewed by our Court under Article 66, 10 U.S.C. § 866 would appear to be precluded by the plain wording of Article 69. In separate correspondence, dated 4 March 1987, the Judge Advocate General requested that in our consideration of the case, the Court give attention to the following issue:

WHETHER EXAMINATION UNDER ARTICLE 69, UCMJ, IS PRECLUDED IN A REMANDED CASE ONCE JURISDICTION HAS BEEN PREVIOUSLY EXERCISED BY A COURT OF MILITARY REVIEW UNDER ARTICLE 66, UCMJ, EVEN THOUGH THE REHEARING RESULTED IN A SENTENCE THAT NO LONGER MEETS THE JURISDICTIONAL REQUIREMENTS OF ARTICLE 66(c), UCMJ?

We next ordered appellate counsel to brief the above issue and the following analogous issue:

WHETHER THIS COURT MAY OR MUST NOW ACT IN THE ABOVE-ENTITLED CASE UNDER ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE, NOTWITHSTANDING THE PRIOR EXAMINATION OVER 10 YEARS AGO OF THE RECORD OF TRIAL IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 69, UCMJ?

We answer the first issue in the negative. That is, OJAG review under Article 69 is not precluded solely because we previously reviewed the case under Article 66, UCMJ. Neither the plain language of Article 69 ³ nor its legislative history requires a contrary conclusion. Accordingly, Article 69 review by OJAG is appropriate in a remanded case under the same circumstances as if we had not previously reviewed the case, provided we do not exercise our ancillary jurisdiction as discussed below.

Having decided that OJAG was authorized to act under Article 69, the crux of the second issue is whether we are now required or permitted to act under Article 66. We conclude that we are permitted to do so, but are not required to.

Once we exercise jurisdiction under Article 66, as in the instant case, we retain ancillary jurisdiction to review cases which have been returned.to the trial court or to the convening authority for additional proceedings — regardless of the sentence adjudged or approved below after their return. United States v. Wilson, 20 M.J. 335, 336 (C.M.A.1985) (citing United States v. Bullington, 13 M.J. 184 (C.M.A.1982)). As the Court of Military Appeals noted in Wilson, “the appellate court [the Court of Military Review] should be allowed to determine if its initial decision has been properly applied and enforced.”

The exercise of this ancillary jurisdiction, however, is discretionary. That is, although empowered to do so, we are not required to again exercise jurisdiction over a case that, upon rehearing, falls below the sentence threshold for our mandatory review under Article 66(b)(1), UCMJ.⁴ Furthermore, we normally will refrain from exercising our ancillary jurisdiction in such cases unless the mandate in our original action directed that the record be returned for further review. If return of the record is not so mandated, the review of such remanded cases need only comply with the procedures for review set forth in the UCMJ and the Manual as if we had not previously entertained the case for review. See Articles 64 and 69, UCMJ, 10 U.S.C. § 864, and R.C.M. 1112 (Review by a judge advocate) and R.C.M. 1201 (Action by the Judge Advocate General). Should the convening authority or the military judge upon rehearing fail to comply with our mandate the accused may seek remedial action from us by means of a petition for extraordinary relief or otherwise.'

The question therefore arises as to' whether we should exercise our ancillary jurisdiction in the instant case. Our mandate in the original action did not direct that the case be returned to us for further review, the convening authority strictly complied with our mandate, the case was thereafter reviewed by the OJAG pursuant to Article 69, and there appears to be no other good reason to disturb the finality of the decision.

Accordingly, we decline to exercise our jurisdiction in this case. The record of trial is returned to the Judge Advocate General for appropriate disposition in accordance with this decision.

Chief Judge BYRNE, Senior Judge RILEY and Judges MIELCZARSKI and RUBENS concur.

1 . On 26 September 1975, the appellant petitioned the Court of Military Appeals (COMA) to review our decision. The Government, in a Motion to Dismiss this petition, asserted that "since this case is presently before the convening authority for rehearing, and since upon rehearing the case will be forwarded to the Navy Court of Military Review for further review, the petition should be dismissed as premature." On granting the Government’s motion, COMA, in an order dated 4 December 1975, dismissed the petition for grant of review as "premature.” Neither COMA’s dismissal nor the grounds the Government proffered therefor are relevant to the issues now before us. Nevertheless, such may have a bearing on COMA’s decision of whether to grant any forthcoming petition by the appellant to review our instant decision. In any event, we may not, by our action, divest COMA of its jurisdiction in the case. United States v. Bullington, 13 M.J. 184, 186 (C.M.A. 1982).

2 . The Government declined to go forward on Specification 4 and that specification was dismissed by the military judge.

3 . Article 69 was amended between the time OJAG initially reviewed this case in 1976 and the present. The pertinent portion of Article 69 at the time of the OJAG review read as follows:

Every record of trial by general court-martial, in which there has been a finding of guilty and a sentence, the appellate review of which is not otherwise provided by section 866 of this title (article 66), shall be examined in the office of the Judge Advocate General.

Currently, Article 69 reads thusly:

The record of trial in each general court-martial that is not otherwise reviewed under section 866 of this title (article 66) shall be examined in the office of the Judge Advocate General if there is a finding of guilty and the accused does not waive or withdraw his right to appellate review under section 861 of this title (article 61).

4 . Article 66(b)(1) of the UCMJ makes review of a court-martial record of trial by a Court of Military Review (CMR) mandatory in each case "in which the sentence, as approved, extends to death, dismissal of a commissioned officer, ... dishonorable discharge or bad-conduct discharge or confinement for one year or more____”