                       UNITED STATES, Appellee

                                    v.

              Charles W. DAVIS, Lieutenant Commander
                       U.S. Navy, Appellant

                              No. 06-6001

                        Crim. App. No. 9600585

       United States Court of Appeals for the Armed Forces

                       Argued February 8, 2006

                         Decided May 19, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant:    Captain Richard A. Viczorek, USMC (argued).

For Appellee: Lieutenant Steven M. Crass, JAGC, USNR (argued);
Commander Charles N. Purnell, JAGC, USN (on brief).




Military Judge:   Charles R. Hunt




       This opinion is subject to revision before final publication.
United States v. Davis, No. 06-6001/NA

     Judge ERDMANN delivered the opinion of the court.

     Lieutenant Commander Charles W. Davis was charged with a

number of offenses resulting from the prolonged sexual abuse of

his stepdaughter.   Davis entered mixed pleas and, following a

general court-martial, was found guilty of rape of a child,

forcible sodomy upon a child, forcible sodomy, indecent

liberties with a child, and indecent liberties, in violation of

Articles 120, 125, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).   He was sentenced to

confinement for life and forfeiture of $2,500.00 pay per month

for twenty-four months.   The convening authority approved the

sentence, but suspended execution of the forfeitures on the

condition that Davis maintain an allotment of all disposable pay

and allowances to his wife.   On initial review the United States

Navy-Marine Corps Court of Criminal Appeals affirmed the

findings and sentence.    United States v. Davis, 47 M.J. 707, 714

(N-M. Ct. Crim. App. 1997).

     Following the initial review at this court, we remanded the

case for a factfinding hearing pursuant to United States v.

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to resolve questions

of fact relating to an issue of ineffective assistance of

counsel.   United States v. Davis, 52 M.J. 201, 206-07 (C.A.A.F.

1999).   After the DuBay hearing, the Navy-Marine Corps court

again affirmed the findings and sentence.    United States v.



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United States v. Davis, No. 06-6001/NA

Davis, No. NMCM 9600585, 2003 CCA LEXIS 161, at *28, 2003 WL

21789030, at *11 (N-M. Ct. Crim. App. July 24, 2003)

(unpublished).    Upon further review this court concluded that

counsel’s performance was ineffective and that Davis was

prejudiced as to sentence.    United States v. Davis, 60 M.J. 469,

475 (C.A.A.F. 2005).    We set aside the sentence and authorized a

sentence rehearing.    Id.

       At the sentence rehearing the military judge dismissed the

case finding that the court lacked personal jurisdiction over

Davis because he was no longer a sentenced prisoner and had

received an administrative discharge in 1997.    The Government

appealed the ruling of the military judge pursuant to Article

62, UCMJ, 10 U.S.C. § 862 (2000).     The Navy-Marine Corps court

granted the Government’s appeal and remanded the case, directing

the military judge to hold the sentence rehearing.    United

States v. Davis, 62 M.J. 533, 538 (N-M. Ct. Crim. App. 2005).

Davis petitioned this court and we granted review of two issues.1


1
    On January 24, 2006, we granted review of the following issues:

            I. WHETHER THE NAVY-MARINE CORPS COURT OF
            CRIMINAL APPEALS ERRONEOUSLY INTERPRETED
            ARTICLE 62, UCMJ, TO ALLOW A GOVERNMENT
            APPEAL OF AN ORDER FROM A COURT-MARTIAL IN
            WHICH NO PUNITIVE DISCHARGE COULD HAVE BEEN
            ADJUDGED.

            II. WHETHER THE NAVY-MARINE CORPS COURT OF
            CRIMINAL APPEALS ERRED BY CONCLUDING THAT
            THE DOCTRINE OF CONTINUING JURISDICTION
            APPLIES TO TRIAL LEVEL COURTS-MARTIAL.

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United States v. Davis, No. 06-6001/NA

     Article 62(a)(1), UCMJ, gives the Government a right to

appeal certain decisions from a “court-martial in which a

military judge presides and in which a punitive discharge may be

adjudged.”    We granted review of the first issue to determine

whether the Government had the right to appeal the military

judge’s decision under Article 62, UCMJ, where Davis had not

been sentenced to a punitive discharge (dismissal) at the

original trial.2   Davis argues that since his sentence on

rehearing cannot be greater than the sentence adjudged at the

original trial, an appeal under Article 62, UCMJ, is not

authorized.   We conclude that the Government properly appealed

the military judge’s decision under Article 62, UCMJ, as the

sentence rehearing was empowered to adjudge any sentence

authorized for the underlying offenses regardless of the

sentence approved after the original trial.

     An essential component of court-martial jurisdiction is in

personam jurisdiction or jurisdiction over the person of an

accused.   Article 2(a)(1) and (7), UCMJ, 10 U.S.C. § 802(a)(1),

(7) (2000), authorize court-martial jurisdiction over members of

the armed forces and persons serving sentences imposed by




62 M.J. 452 (C.A.A.F. 2006).
2
  Rule for Courts-Martial (R.C.M.) 1003(b)(8) provides that there
are only three types of punitive separations that may be
adjudged by courts-martial. Dismissal from the service is the
only punitive separation that applies to a commissioned officer.
Compare R.C.M. 1003(b)(8)(A), with R.C.M. 1003(b)(8)(B), (C).

                                  4
United States v. Davis, No. 06-6001/NA

courts-martial.   We granted the second issue to determine

whether Davis, because he was administratively discharged in

1997 and because his sentence was set aside, remains subject to

the jurisdiction of a court-martial.     We conclude that the power

of the court-martial over Davis was established at his initial

trial and that the intervening administrative discharge does not

divest the appellate courts of the power to correct error, order

further proceedings, and maintain appellate jurisdiction over

the person during the pendency of those proceedings.

                            DISCUSSION

A.   The Availability of an Article 62, UCMJ, Appeal

      Davis claims that the court-martial convened to conduct the

sentence rehearing was not authorized to adjudge a punitive

discharge because no discharge was adjudged at his original

trial.   Because Article 62, UCMJ, limits the Government to

appealing only rulings from courts-martial at which a punitive

discharge may be adjudged, Davis argues that no Government

appeal was authorized in this case.

      The Government responds that the characteristics of the

sentence rehearing relate back to the original court-martial and

that a punitive discharge was authorized at that trial.    The

Government further argues that the military judge was bound to

follow the mandate of this court and where he departs from that




                                 5
United States v. Davis, No. 06-6001/NA

mandate, the Government should be afforded access to the

appellate courts to enforce the appellate court’s decision.

        Resolution of this question involves issues of statutory

interpretation and the sentencing jurisdiction of a rehearing,

both of which are legal questions we review de novo.    United

States v. Henderson, 59 M.J. 350, 351 (C.A.A.F. 2004) (the

jurisdiction of a court-martial is a legal question); United

States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002)

(interpretation of the Articles of the UCMJ presents an issue of

law).

        Davis’s assertion that a punitive discharge cannot be

adjudged at his sentence rehearing is based on two 1959 cases

from this court and the current Discussion to Rule for Courts-

Martial (R.C.M.) 1005(e)(1).    As written, Article 63(b), UCMJ,

10 U.S.C. § 863(b) (1950), prohibited a sentence at a rehearing

in excess of that “imposed” at the initial trial unless there

were additional findings of guilty not considered at that first

trial.    The language of the discussion to R.C.M. 1005(e)(1) also

appears to limit the sentence at a rehearing to that which was

“adjudged by a prior court-martial or approved on review.”

R.C.M. 1005(e)(1) Discussion.    In United States v. Eschmann, 11

C.M.A. 64, 67, 28 C.M.R. 288, 291 (1959), and United States v.

Jones, 10 C.M.A. 532, 533-34, 28 C.M.R. 98, 99-100 (1959), the

court found that it was error for a military judge’s



                                   6
United States v. Davis, No. 06-6001/NA

instructions to inform members of the basis for this sentence

limitation at a sentence rehearing.   Davis’s reliance on these

references, however, is misplaced.

     At the time the Eschmann and Jones cases were decided,

Article 63(b), UCMJ, read, in pertinent part, as follows:

     Upon such rehearing . . . no sentence in excess of or
     more severe than the original sentence shall be
     imposed unless the sentence is based upon a finding of
     guilty of an offense not considered upon the merits in
     the original proceedings or unless the sentence
     prescribed for the offense is mandatory.

Emphasis added.   This language was enacted as part of the

original UCMJ and was designed to limit the sentence that a

rehearing could impose.   See Commentary to Article 63(b),

Uniform Code of Military Justice, 1950, Text, References and

Commentary Based on the Report of the Committee on a Uniform

Code of Military Justice to The Secretary of Defense (Morgan

Draft), at 88, reprinted in 2 United States Army Court of

Military Review, Index and Legislative History, Uniform Code of

Military Justice, 1950, at 1424 (1985).   The terms of the

statute specifically limited the sentencing authority of a

rehearing:   “Under the Uniform Code a court-martial is expressly

bound by the findings and the sentence of the first trial.

Article 63(b) [UCMJ], 10 U.S.C. § 863.”   United States v. Dean,

7 C.M.A. 721, 724, 23 C.M.R. 185, 188 (1957).




                                 7
United States v. Davis, No. 06-6001/NA

     Since the enactment of the UCMJ3 there have been two changes

to Article 63, UCMJ.   The first, in 1983, merged the subsections

of Article 63, UCMJ, and made other changes concerning the

impact of pretrial agreements not applicable to Davis’s case.4

The other change, made in 19925, changed the word “imposed” to

“approved.”    Article 63, UCMJ, now reads, in pertinent part:

     Upon a rehearing . . . no sentence in excess of or
     more severe than the original sentence may be
     approved, unless the sentence is based upon a finding
     of guilty of an offense not considered upon the merits
     in the original proceedings, or unless the sentence
     prescribed for the offense is mandatory.

Emphasis added.   “Approved” as used in Article 63, UCMJ, is a

word of art.   A convening authority “approves” a sentence as

opposed to a court-martial which “adjudges” a sentence.   Compare

Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (2000), with

Articles 18, 19, 20, UCMJ, 10 U.S.C. §§ 818, 819, 820 (2000).

The impact of this change to Article 63, UCMJ, was to move

responsibility for protecting the accused against greater

sentences at a rehearing from the trial court to the convening

authority.

     The Manual for Courts-Martial (MCM) was amended by the

President in 1995 to reflect this 1992 change to Article 63,


3
  Act of 5 May 1950, Pub. L. No. 81-506, ch. 169, 64 Stat. 107
(1950).
4
  Military Justice Act of 1983, Pub. L. No. 98-209, § 5, 97 Stat.
1393, 1398-99 (1983).
5
  National Defense Authorization Act for Fiscal Year 1993, Pub.
L. No. 102-484, § 1065, 106 Stat. 2315, 2506 (1992).

                                  8
United States v. Davis, No. 06-6001/NA

UCMJ.6   Rule for Courts-Martial (R.C.M.) 810(d)(1), as amended,

states that sentences “shall be adjudged within the limits of

R.C.M. 1003.”   Thus, R.C.M. 810(d)(1) echoes Article 63, UCMJ:

            Except as otherwise provided in subsection
            (d)(2) [pretrial agreements] of this rule,
            offenses on which a rehearing, new trial, or
            other trial has been ordered shall not be
            the basis for an approved sentence in excess
            of or more severe than the sentence
            ultimately approved by the convening or
            higher authority following the previous
            trial or hearing, unless the sentence
            prescribed for the offense is mandatory.

Emphasis added.   The Discussion to R.C.M. 810(d)(1) indicates

that the sentence to be adjudged at a rehearing is not limited

by the previously approved sentence:    “An appropriate sentence

on a retried or reheard offense should be adjudged without

regard to any credit to which an accused may be entitled” and

“[t]he members should not be advised of the basis for the

sentence limitation under this rule.”    R.C.M. 810(d)(3)

Discussion.

     The limitations in R.C.M. 1003, referred to in R.C.M.

810(d)(1), provide no sentence limitation on adjudged sentences

at rehearings other than to state in subsection (c)(4) that

“this rule may be further limited by other Rules for Courts-

Martial.”   R.C.M. 1003(c)(4).   The Discussion to R.C.M.



6
  Exec. Order 12960, 60 Fed. Reg. 26,647 (May 17, 1995). See
Manual for Courts-Martial, United States, Historical Executive
Orders app. 25 at A25-21 (2005 ed.).

                                  9
United States v. Davis, No. 06-6001/NA

1003(c)(4) refers to R.C.M. 810(d) without limiting the scope of

R.C.M. 810(d)(1).   R.C.M. 1003(c)(4) Discussion.

     Subsequent to the 1992 amendment to Article 63, UCMJ, and

the conforming change to R.C.M. 810(d)(1), this court said:

          As a general matter, a court-martial,
          including a rehearing, may adjudge any
          punishment authorized by the Manual. See
          RCM 1002, Manual for Courts-Martial, United
          States (1998 ed.). Rehearings are
          constrained, however, by specific
          limitations on the sentence that may be
          approved by the convening authority.
          “Offenses on which a rehearing, new trial,
          or other trial has been ordered shall not be
          the basis for an approved sentence in excess
          of or more severe than the sentence
          ultimately approved by the convening or
          higher authority following the previous
          trial or hearing, unless the sentence
          prescribed for the offense is mandatory.”
          RCM 810(d)(1).

United States v. Rosendahl, 53 M.J. 344, 347 (C.A.A.F. 2000)

(emphasis added); see also United States v. Mitchell, 58 M.J.

446, 447 (C.A.A.F. 2003).

     Only the discussion to R.C.M. 1005(e)7, one of the sources

relied upon by Davis, indicates that the maximum sentence to be

adjudged at a rehearing is limited by punishment adjudged and/or

approved from the prior trial:   “[I]n a rehearing or new or

other trial [the maximum punishment is the lowest of] the




7
  R.C.M. 1005(e) (instructions on sentence -- required
instructions).

                                 10
United States v. Davis, No. 06-6001/NA

punishment adjudged by a prior court-martial or approved on

review, supplemented by the total permitted by any charges not

tried previously (see R.C.M. 810(d)).”      R.C.M. 1005(e)(1)

Discussion (citing R.C.M. 810(d)).     However, this Discussion has

not been changed since it appeared in the Manual for Courts-

Martial, United States (1984 ed.), and does not reflect the 1992

amendment to Article 63, UCMJ.   Despite the “see” reference to

R.C.M. 810(d), the language of the Discussion to R.C.M.

1005(e)(1) is inconsistent with the substance of the 1995

amendment to R.C.M. 810(d).   This Discussion to R.C.M.

1005(e)(1) is “non-binding” and thus is not controlling over

specific provisions of the UCMJ.      Willenbring v. Neurauter, 48

M.J. 152, 168 (C.A.A.F. 1998) (“‘Discussion’ sections . . . are

not part of the [MCM] and . . . do not contain official rules or

policy.”); MCM, Analysis of the Rules For Courts-Martial app. 21

at A21-3 (2005 ed.).

     We conclude that the authority of a rehearing to adjudge a

sentence is limited only by the maximum authorized sentence for

the offenses of which the accused has been found guilty or the

jurisdictional maximum of the court-martial.     At a rehearing,

the sentencing body, whether members or military judge, should

consider the evidence in aggravation, extenuation, and

mitigation in light of the allowable maximum sentence for the

findings of guilty and adjudge an appropriate sentence.     The



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United States v. Davis, No. 06-6001/NA

burden of protecting an accused against higher sentences rests

with the convening authority at the time action is taken on an

adjudged sentence from a rehearing.8

      The offense for which Davis was to be resentenced included

a punitive dismissal from the service as an authorized

punishment.   See, e.g., MCM pt. IV, para. 45.e.(1) (2005 ed.)

(maximum punishment for rape).   Therefore, the sentence

rehearing was authorized to adjudge a punitive discharge.   This

rehearing was in the class of serious cases that Article 62,

UCMJ, contemplates permitting the Government to prosecute an

interlocutory appeal.

B.   Personal Jurisdiction

      Davis contends that any court-martial jurisdiction over him

that arose from the initial court-marital terminated when the

record of trial was authenticated and that the rehearing on

sentence was a newly convened court-martial.   Davis notes that

trial level courts in the military justice system, unlike

military appellate courts, are not standing courts and do not

retain jurisdiction.    He argues that the personal jurisdiction


8
  Prior to a rehearing, an appellant may have served the entire
sentence to confinement adjudged at the original trial; or the
adjudged sentence at a rehearing may be such that there is no
further confinement to be served after the rehearing. In
addition to the obligation to protect an appellant against
higher sentences at rehearings, a convening authority must also
ensure that the appellant does not serve any unwarranted post-
rehearing confinement by deferring execution of any confinement
that will not be approved at action.

                                 12
United States v. Davis, No. 06-6001/NA

of the trial level courts, including the sentence rehearing, was

lost when he was discharged from the Navy in 1997 and when this

court set aside his sentence when we authorized a rehearing.

        The Government counters that a rehearing authorized by an

appellate court is an extension of the appellate process and

jurisdiction continues until a case is final.      The Government

contends that an intervening administrative discharge does not

terminate this jurisdiction which derives from the appellate

proceedings.    The Government concludes that there has been no

final disposition of Davis’s case and that jurisdiction, which

fixed at the time of the original trial, continues unabated

through the course of appeal.

        As a general matter, an individual discharged and returned

to civilian life is not subject to the jurisdiction of a court-

martial convened under the UCMJ.       United States ex rel. Toth v.

Quarles, 350 U.S. 11, 14 (1955); see Smith v. Vanderbush, 47

M.J. 56, 59 (C.A.A.F. 1997).    The question before us is, when an

appellate court approves the findings of a court-martial,

disapproves the sentence, and orders a sentence rehearing, does

a post-trial administrative discharge preclude completion of the

sentencing proceedings ordered by an appellate court?      Whether

jurisdiction exists is a question of law that is reviewed de

novo.    United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000).




                                  13
United States v. Davis, No. 06-6001/NA

     Contrary to Davis’s contentions, our precedent recognizes

that there is “continuing jurisdiction” over a case that has

been tried and in which the accused was convicted while in a

status that subjected him or her to the UCMJ.   We also disagree

with Davis’s suggestion that a rehearing stands wholly

independent of the preceding court-martial and appeal.

     In United States v. Entner, 15 C.M.A. 564, 564, 36 C.M.R.

62, 62 (1965), the appellant was administratively discharged

while his case was pending review at the United States Army

Board of Review.   This court said, “Once jurisdiction attaches,

it continues until the appellate processes are complete.”   Id.

at 564, 36 C.M.R. at 62.   The Entner case identified the point

at which jurisdiction was fixed as “because of the sentence to a

punitive discharge when it was referred to the board of review.”

Id. at 564-65, 36 C.M.R. at 62-63.   A convening authority’s

subsequent action in setting aside the punitive discharge and

approving an administrative discharge did not divest the board

of jurisdiction.   Id. at 564-65, 36 C.M.R. at 62-63.

     In Peebles v. Froehlike, 22 C.M.A. 266, 266-67, 46 C.M.R.

266, 266-67 (1973), petitioner Peebles claimed that an executed

dishonorable discharge from a second court-martial conviction

terminated jurisdiction over him with respect to a rehearing

ordered after his initial court-martial conviction was reversed.

Because petitioner was “apprehended, tried, and sentenced while



                                14
United States v. Davis, No. 06-6001/NA

on active duty with the Army” during his first trial, this court

held that “[h]is dishonorable discharge as a result of a

separate court-martial proceeding cannot serve to defeat the

execution of the earlier sentence.”   Id. at 268, 46 C.M.R. at

268.   We clearly stated, “Nor does our action in reversing the

conviction and sentence prevent petitioner’s retrial even though

his discharge occurred before the reversal.”   Id.

       In Smith v. Vanderbush, this court did not rely on

continuing jurisdiction, but distinguished the concept by

noting, “[T]he concept of continuing jurisdiction may be applied

for the limited purpose of permitting appellate review and

execution of the sentence in the case of someone who already was

tried and convicted while in a status subject to the UCMJ.”    47

M.J. at 59.   More recently in Steele v. Van Riper, 50 M.J. 89

(C.A.A.F. 1999), this court examined the effect of an end of

term of service (ETS) discharge which was given after conviction

but before action was taken on a sentence that included a

punitive discharge.   We noted that the effect of the ETS

discharge was to “remit” the punitive discharge, but the ETS

discharge did not “impair” the findings and sentence of the

court:

            This Court has held that, if a person is
            discharged administratively while appellate
            review is pending, there is “no good reason
            to hold the findings and sentence of the
            court-martial are impaired by the
            discharge.” United States v. Speller, 8


                                 15
United States v. Davis, No. 06-6001/NA

          U.S.C.M.A. 363, 368, 24 C.M.R. 173, 178
          (1957). Similarly, the power of review
          authorities over the court-martial is
          unaffected by the administrative discharge.
          See United States v. Woods, 26 M.J. 372 (CMA
          1988); United States v. Jackson, 3 M.J. 153
          (CMA 1977); United States v. Entner, 15
          U.S.C.M.A. 564, 36 C.M.R. 62 (1965); United
          States v. Speller, [8 U.S.C.M.A. 363, 24
          C.M.R. 173 (1957)]; United States v. Sippel,
          4 U.S.C.M.A. 50, 15 C.M.R. 50 (1954).
          Moreover, the administrative discharge does
          not negate the responsibility of the
          convening authority to act on the findings
          and sentence; nor does it restrict his power
          to do so. See generally Speller, supra 8
          U.S.C.M.A. at 365-66, 24 C.M.R. at 175-76
          (recognizing validity of convening
          authority’s action where accused was
          released from active duty and transferred to
          Reserves after court-martial but before the
          convening authority’s action).

          As indicated earlier, the convening
          authority here approved the findings and
          sentence. The earlier honorable
          discharge through administrative channels
          had the effect of remitting the bad-conduct
          discharge that had been adjudged. See
          Speller, supra at 369, 24 C.M.R. at 179. As
          a result, the bad-conduct discharge cannot
          be executed, see id., but the remission of
          the punitive discharge does not affect the
          power of the convening authority or
          appellate tribunals to act on the findings
          and sentence.

Id. at 91-92; see also United States v. Johnson, 45 M.J. 88, 90

(C.A.A.F. 1996), and Boudreaux v. Navy-Marine Corps Court of

Military Review, 28 M.J. 181, 182 (C.M.A. 1989) (a rehearing

sentence under the threshold for appellate review did not divest

appellate courts of continuing jurisdiction).




                               16
United States v. Davis, No. 06-6001/NA

     When Davis’s administrative discharge was issued, his case

had progressed beyond trial and conviction and was pending

appellate review.   There is no evidence that indicates that this

discharge was intended to undermine the conviction or appellate

review.   That discharge has no effect on the completed court-

martial proceedings and appeal, nor does it divest jurisdiction

over Davis at any rehearing.

     The power of the rehearing to adjudicate a new sentence

derives from the initial court-martial and the appellate action

of this court.   Upon trial and conviction, and a sentence

subject to appellate review approved by the convening authority,

jurisdiction over Davis was fixed for purposes of appeal, new

trial, sentence rehearing, and new review and action by the

convening authority.   A rehearing relates back to the initial

trial and to the appellate court’s responsibility to ensure that

the results of a trial are just.       Where the appellate courts are

invoked by an appellant and a rehearing is authorized, an

intervening administrative discharge does not serve to terminate

jurisdiction over the person of the accused for purposes of that

rehearing.

                               DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                  17
