United States v. Glover

57 M.J. 696, 2002 CCA LEXIS 226, 2002 WL 31205767

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: September 30, 2002
• Docket: NMCM 200200784
• Status: Published

Opinion

PRICE, Senior Judge:

A military judge, sitting as a special court-martial, convicted the appellant, pursuant to his pleas, of unauthorized absence and missing movement in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 887. The appellant was sentenced to confinement for 45 days, reduction to pay grade E-l, and a bad-conduct discharge. Although the military judge recommended that the convening authority consider suspending the bad-conduct discharge, the convening authority approved the sentence as adjudged, without suspension or limitation of any kind.

After carefully considering the record of trial, the appellant’s two assignments of error, and the Government’s response, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(e).

Court-Martial Promulgating Order: Summary of Charges

In an assignment of error the appellant contends that the court-martial promulgating order does not comply with Rule for Courts Martial 1114(c), Manual for Courts-Martial, United States (2000 ed.) because it does not adequately summarize the specifications of the charges. We agree.

The promulgating order provides the following information concerning the charges and specifications:

OFFENSES

Charge: Article 86. Plea: Guilty. Finding: Guilty.

Specification: Plea: Guilty. Finding: Guilty.

Additional Charge: Article 87. Plea: Guilty. Finding: Guilty.

Specification: Plea: Guilty. Finding: Guilty.

Special Court-Martial Convening Authority Action and Order No. D01-677 of 25 Feb 2002. The promulgating order does not provide any other information concerning the nature of the offenses.

Among other things, the court-martial promulgating order must set out the charges and specifications, or a summary thereof. R.C.M. 1114(c)(l)(“The order promulgating the initial action shall set forth: ... the charges and specifications, or a summary thereof.”)(emphasis added). Otherwise, the user of that important document will not know what crimes an accused has committed. In the appellant’s case, the promulgating order provides no useful information about the offenses except to indicate what article of the UCMJ was violated. Unless the user of this promulgating order has the article numbers and corresponding subject matter memorized, this is of no assistance. Even if one possesses that knowledge, the lack of any summary of the offenses means that, in the case of the unauthorized absence, the user does not know if this was a one-hour absence or a one-year absence.

We note that Appendix 17 of the Manual for Courts-Martial provides sample forms for promulgating orders. In this case, following the sample form, the specification under Charge I would have properly been summarized in this fashion:

Specification: Unauthorized absence from unit from 18 April 2001 to 11 May 2001. Plea: G. Finding: G.

Manual for Courts-Martial, United States (2000 ed.), App. 17, at A17-1. The Additional Charge would also have been summarized in similar fashion. Id. While this precise form is not required by law or regulation, we hold that, if the specification is not listed verbatim, a meaningful summary of the specification must be provided. United States v. Zaptin, 41 M.J. 877, 881 (N.M.Ct.Crim.App.1995). In this ease, we find that the promulgating order did not meet that requirement. We will provide appropriate relief in our decretal paragraph.

Conclusion

We have considered the remaining assignment of error of sentence severity and find it to be lacking in merit. Accordingly, we affirm the findings and sentence as approved on review below. A supplemental court-martial promulgating order shall be issued that includes the verbatim text of the charges and specifications or a meaningful summary of the specifications.

Judge CARVER and Judge BRYANT concur.