The rise and fall of post-trial - is it time for the legislature to give us all some clemency?

Reassessment does not necessarily equal relief. A convening authority could reassess the sentence and determine that no change in the sentence is warranted. This could impede an accused's opportunity for meaningful relief on appeal, because appellate courts are unlikely to find prejudice when a convening authority recognized an issue and addressed it for sentence appropriateness. Notwithstanding the criticisms that the military justice system will never achieve validity so long as the convening authority retains the power "to make the charges against the accused, to appoint the court that is to try the accused, and to review the sentence passed by his own appointed court," (61) the unique role of the military demanded the convening authority's involvement in the post-trial process. The unique role refers to the military being charged with winning our nation's wars. It is conceivable that the imposition of justice would have to take a backseat to the war effort. The convening authority is the best person to gauge a military member's value to the war effort. As the following excerpt from the hearings before a House Armed Services subcommittee reflects, the drafters of the UCMJ considered the convening authority's involvement in the post-trial process essential to the war effort.

   The classic case that I think General Eisenhower stated in his
   testimony before your subcommittee last year was that even though
   you might have a case where a man is convicted and it is a legal
   conviction and it is sustainable, that man may have such a unique
   value and may be of such importance in a certain circumstance in a
   war area that the commanding officer may say "Well he did it all
   right and they proved it all right, but I need him and I want him
   and I am just going to bust this case because I want to send him on
   this special mission." (62)

The UCMJ's creation in the wake of World War II convinced Congress of the need to have the convening authority as part of the post-trial process. Congress was very concerned and devoted much time, however, to the review process after the case left the convening authority. (63)

   If you could be in the position of some Members of Congress who
   have had complaints from men who got bad-conduct discharges about
   their inability to obtain jobs in civil life because of their
   record, you would understand why we feel, a great many of us, that
   there should be a complete review so that no possible injustice can
   be done. (64)

This fear led Congress to approve a review process in which the convening authority was only the first stop. (65) For those cases in which the convening authority approved a sentence that included dismissal, discharge, or confinement in excess of one year, a board of review would next evaluate the case. (66) From there, either the Judge Advocate General, or the accused upon successful petition, could cause a judicial council to hear the case. (67) Though the development of the post-trial process tempered the convening authority's power, developments since the UCMJ's enactment have eroded the need for the convening authority's involvement in the review process. One such development is the expansion of the powers under Article 15. (68)