United States v. Magnan

71 M.J. 93, 2012 CAAF LEXIS 9

• Court: Court of Appeals for the Armed Forces
• Decided: January 5, 2012
• Docket: No. 12-0009/MC
• Status: Published

Opinions

CCA 201000414. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Charge V and Specification 3 thereunder, and the sentence is reversed, but is affirmed in all other respects. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

* [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

We note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated, In accordance with the UCMJ, Rules of Courts-Martial, applicable regulations, the pretrial agreement, and this action, the sentence is ordered executed. In fact, there was no pretrial agreement in this case. Moreover, 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 dishonorable 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).