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The rise and fall of post-trial - is it time for the legislature to give us all some clemency?
Army Lawyer, Dec, 2007 by John A. Hamner
(58) H.R. 2498, supra note 13, at 639 (report of the Committee on Military Justice of the N.Y. County Lawyers' Ass'n).
(59) See id. at 840 (statement of Prof. John Arthur Keeffe, Cornell Law School).
(60) See United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
(61) H.R. 2498, supra note 13, at 840 (statement of Prof. John Arthur Keeffe, Cornell Law School).
(62) Id. at 1184 (statement of Felix E. Larkin, member of the committee appointed to draft a UCMJ).
(63) See generally id.
(64) Id. at 797 (statement of Colonel (COL) Frederick B. Wiener).
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(65) See 10 U.S.C. [section] 859 (1950) (permitting a reviewing authority to sustain a finding of guilty even though error has been committed when it can be determined that the error does not materially prejudice the substantial rights of the accused); id. [section] 862 (permitting the convening authority to return a court-martial record to the court for reconsideration of a dismissal which does not amount to a finding of not guilty or to correct any apparent error or omission provided the corrections can be accomplished without material prejudice to the substantial rights of the accused); id. [section] 863 (giving the convening authority the authority to order a rehearing in cases in which he disapproves the findings and sentence, except in those cases in which there is a lack of sufficient evidence in the record to support the findings); id. [section] 864 (authorizing the convening authority to approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact).
(66) See id. [section] 866 (providing for review by the Board of Review).
(67) Id. [section] 867 (providing for review by the Court of Military Appeals (COMA)).
(68) See generally UCMJ art. 15 (2005) (providing the authority for Article 15, a tool for commanders to dispose of minor offenses. It gives commanders the ability to exact the discipline essential to military service without having to resort to measures such as a court- martial. A conviction at a court-martial may cause a loss of a trained member to the unit because of a punitive discharge as well as scar the person's permanent record in the military and civilian life with a federal conviction. Though Article 15 is the authority from which commanders derive the ability to impose punishment, the services have their own vernacular when referring to it. The Army and Air Force call it nonjudicial punishment (NJP) and the Navy and Marine Corps refer to it as mast).
(69) See Captain Harold L. Miller, A Long Look at Article 15, 28 MIL. L. REV. 37 n.4 (1965).
(70) UCMJ art. 15 (1951).
(71) See Miller, supra note 69, at 38.
(72) Id.
(73) Id. (quoting Hearings on H.R. 11257 Before a Subcomm. of the Senate Comm. on Armed Services, 87th Cong., at 6 (1962)).
(74) See id.
(75) See UCMJ art. 22 (2005).
(76) See U.S. DEP'T OF ARMY, REG. 27-10, MILITARY JUSTICE ch. 3 (16 Nov. 2005) (providing that a service-member could decide to not accept an Article 15 in which case the commander would have to decide whether to send the case to a court-martial or dispose of the offenses in some other manner. This right to demand trial is taken from Article 15(a) and paragraph 132 of the Manual for Courts-Martial (MCM). UCMJ art. 15(a); MANUAL FOR COURTS-MARTIAL, UNITED STATES [paragraph] 132 (1969) (Rev.)). In any case it is always an option to do nothing such as in the event that someone is so crucial to the war effort.
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