Featured White Papers
- Aug. 28th: Delivering Online Presentations That Result in Higher Sales (Citrix Online)
- The missing link: Driving business results through pay-for-performance (SuccessFactors, Inc.)
- Enterprise PBX comparison guide (VoIP-News)
Content provided in partnership with
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
In United States v. Boatner, the United States Court of Military Appeals (COMA) addressed an issue it had previously faced in United States v. Rivera. (101) In each case, when making a recommendation as to the disposition of charges, the respective accused's immediate commander recommended that the accused not be eliminated from service. (102) Both accused were convicted and sentenced to a punitive discharge. (103) The subsequent SJAs' post-trial recommendations, however, did not inform the convening authority of the recommendations to retain the accused. (104) The court found that "[w]hen a convening authority acts upon a case, either before or after trial, he does so only after obtaining the advice of his staff judge advocate.... If the advice is erroneous, inadequate, or misleading, the substantial rights of the accused may be prejudiced." (105) If we consider that the legislative purpose behind having the convening authority involved in the post-trial process is to exercise his command prerogative for furthering the war effort, then the court's recognition that the post-trial advice is a "substantial right of the accused" effectively turned the purpose on its head. (106)
It would be an aberration for a convening authority to retain a private who enlisted in March, went absent without leave in July, and remained in an AWOL status almost exclusively until his court martial the following February. (107) The majority would have you believe that the company commander's recommendation would carry such weight. (108) The dissent, however, is more compelling because it inserts a dose of reality. The majority ignored the fact that the same company commander recommended a general court-martial for the accused and that the recommendation for retention was germane to whether the accused should be administratively separated. (109) Since those two recommendations were on the same document, one may read it to mean that this accused should not be administratively separated; he should be court-martialed and subject to the punishments that may accompany such a disposition. (110) The court reconciles this disconnect as an inconsistency that "should be resolved in favor of the accused." (111) The court also ignores, however, the process through which a ease travels to end at a general court-martial. Had the majority considered that the convening authority had the opportunity to consider the recommendations of the commander prior to referring the case to a general court-martial, perhaps it would have reached the same conclusion as the dissent. (112) Though the court in Boatner recognized that "[t]he convening authority has absolute power to disapprove the findings and sentence, or any part thereof, for any or no reason, legal or otherwise[,]" (113) it showed its willingness to ensure that this fight is the accused's, not the convening authority's. The court justifies returning the case to the convening authority for a new post-trial review and action under the guise of ensuring that the convening authority is properly informed when carrying out his clemency powers. (114) The courts' willingness to return cases for further action demonstrates judicial activism, but this was only the first step. The returning of cases at least allowed the convening authority to ultimately make the decision regarding clemency. Soon thereafter, the courts went one step further and began to dismiss cases in response to unreasonable post-trial processing time.
Find Research Guides for:
Find Featured Titles for: Health
- AAACN Viewpoint
- ABNF Journal, The
- AIDS Treatment News
- AMAA Journal
- Aboriginal Nurse, The
- Adolescence
- Adolescent Psychiatry
- Advances in Skin & Wound Care
- Age and Ageing
- Alabama Nurse
- Alberta RN
- Alcohol Research & Health
- Alternative Medicine Review
- American Family Physician
- American Fitness
- Men's Fitness
- Psychology Today
- Shape