United States v. Karras

70 M.J. 25, 2011 CAAF LEXIS 206

• Court: Court of Appeals for the Armed Forces
• Decided: March 11, 2011
• Docket: No. 11-0292/MC
• Status: Published

Opinion

CCA 201000340. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a bad-conduct discharge, and then stated,

In accordance with the UCMJ, Rules [for] Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.

Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority’s action purported to execute the bad-conduct discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model “Forms for Action” in Manual for Courts-Martial, United States app. 16 at A16-1—A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

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It is noted that the military judge neglected to order certain portions of the record sealed under MRE 412. Accordingly, the Clerk is directed to seal pages 98-116, 129-33, AE V, AE XII, and AE XXIV.