                                   CORRECTED COPY


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                        WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                Appellate Military Judges

                                       In Re:
                              Captain ELMO E. VANCE
                                 United States Army

                                      ARMY 20180011

           Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
               Robert L. Shuck and Jacob D. Bashore, Military Judges
                  Colonel Maureen A. Kohn, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Todd W.
Simpson, JA.

For Appellee: Pursuant to A.C.C.A Rule 15.4, no response filed.


                                     5 November 2018

                          ------------------------------------------------
                               OPINION OF THE COURT AND
                           ISSUANCE OF WRIT OF MANDAMUS
                          ------------------------------------------------

WOLFE, Senior Judge:

       Today we consider what happens when, in violation of Article 60, Uniform
Code of Military Justice (UCMJ), 1 the convening authority sets aside the findings
and sentence in a case. Notably, because Army regulations were not updated to
reflect a Congressional amendment to Article 60, UCMJ, the convening authority’s
action was in compliance with Army regulations. The convening authority’s action
was also specifically directed by the Deputy Assistant Secretary of the Army
(Review Boards).

       We conclude that the convening authority must take action on the findings and
sentence in compliance with Article 60, UCMJ, and, accordingly, direct this action
by issuance of a writ of mandamus.


1
    10 U.S.C. §860 (2012 & Supp I 2014).
VANCE—ARMY 20180011

                                  BACKGROUND

       This case involves the intersection of the convening authority’s power under
Article 60, UCMJ, this court’s authority under Article 66, UCMJ, and the Secretary
of the Army’s powers under Article 74, UCMJ. The following timeline summarizes
the relevant events.

       On 10 October 2017, Captain (CPT) Elmo E. Vance submitted a resignation
for the good of the service in lieu of court-martial (RFGOS). On 26 October 2017,
the convening authority forwarded the RFGOS to the Commander, Army Human
Resources Command. 2 On 17 November 2017, CPT Vance submitted an offer to
plead guilty to the convening authority. The offer was accepted on 22 December
2017.

       On 17 January 2018, CPT Vance pleaded guilty to ten specifications of
wrongfully using his government travel card to obtain cash advances, 3 being absent
from his unit, 4 and taking convalescent leave for a surgery that did not occur. 5 The
court-martial sentenced CPT Vance to a dismissal and forfeiture of $1,000 per month
for three months.

       About three months later, on 20 March 2018, the Deputy Assistant Secretary
of the Army (Review Boards) (hereinafter “the Secretary’s designee”) accepted CPT
Vance’s RFGOS. The Secretary’s designee issued a directive that CPT Vance be
administratively discharged with an Under Other Than Honorable Conditions
characterization of service and, as to the court-martial, “both findings and sentence,
if any, be vacated.”




2
  Captain Vance’s chain of command all recommended disapproval of the
resignation.
3
 The ten specifications alleged conduct that occurred between 19 November 2016
and 16 February 2017, charged as a violation of Article 92, UCMJ.
4
 Captain Vance’s absence was from 28 February 2017 until 1 April 2017 and
charged as a violation of Article 86, UCMJ.
5
  The charge, styled as a violation of Article 133, UCMJ, alleged that CPT Vance
took convalescent leave from 14 February 2017 until 27 February 2017 after a
surgery was postponed.


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       Consistent with the Army’s military justice regulation, 6 the order was
interpreted by the Staff Judge Advocate (SJA) as being directed to the convening
authority. The SJA recommended that the convening authority disapprove the
findings and sentence. On 29 March 2018, the convening authority followed the
SJA’s advice.

       The case was received by the Clerk of Court, Army Court of Criminal Appeals
under his role as the Army’s custodian for all general courts-martial records of trial.
The case was then referred on behalf of the Judge Advocate General to this court
(and the appellate divisions) to determine whether the convening authority’s action
was lawful pursuant to Article 60, UCMJ, and, if necessary, for review pursuant to
Article 66, UCMJ.

     The Defense Appellate Division submitted the case without briefing, stating,
“Appellant does not admit the findings and sentence are correct in law and fact.”
The Government Appellate Division provided no brief.

                              LAW AND DISCUSSION

       When an officer submits a RFGOS, the different authorities given to the
convening authority and the Secretary of the Army may sometimes create tension
over who will dispose of the charges. The convening authority determines whether
to refer the case to trial. The Secretary of the Army (or the Secretary’s designee)
determines whether to accept the resignation. See Army Reg. 600-8-24, Personnel-
General: Officer Transfers and Discharges, para. 3-13 (12 Apr. 2008; Rapid Action
Revision 13 Sept. 2011). The question is “who gets to act first?”

       This tension came to a head in the case of United States v. Woods, 26 M.J.
372 (C.M.A. 1988). In Woods, the accused submitted a RFGOS, but the Secretary’s
designee did not receive the resignation until after the convening authority had
approved the findings and sentence. Id. at 373. The issue on appeal was whether
the Secretary’s subsequent approval of the RFGOS should be treated the same as if it
had been approved pretrial. As our superior court stated, “It should be obvious that,
if a Service Secretary has the authority to approve a resignation in lieu of a trial, the
exercise of that authority should not depend upon a race between him and the
convening authority to make a judgment.” Id. at 374. Our superior court abated the
proceedings and dismissed the findings and specifications. Id. at 375.



6
 Army Reg. 27-10, Legal Services: Military Justice [AR 27-10], para. 5-18 (11 May
2016).


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       Likely in response to Woods, the Army’s military justice regulation currently
provides guidance about deconflicting the action of the Secretary when considering a
RFGOS and the convening authority’s action when approving the findings and
sentence. In summary, the regulation requires the convening authority withhold
action in a case until after the Secretary acts on the resignation. See AR 27-10, para.
5-18. 7 If the resignation is approved, the regulation provides that the convening
authority must, if directed by the Secretary’s designee, disapprove the findings and
sentence. Id.

       Under this regulatory scheme, the convening authority’s traditional Article
60, UCMJ, power was used to give effect to the Secretary’s RFGOS decision as if it
had been made pretrial. Under these procedures, the Secretary’s designee could
make a decision on the RFGOS without regard to when the court-martial took place.
Regardless of whether the RFGOS was approved before or after trial, an approved
RFGOS would be treated similarly. The fear of a “race” to a decision in Woods was
prevented. Until recently, this regulatory compromise worked well. The statutory
foundation for AR 27-10’s regulatory compromise, however, relied entirely on the
convening authority’s ability to set aside the findings and sentence as a matter of
command prerogative under Article 60, UCMJ. This foundation crumbled about four
years ago.

                                 A. Article 60, UCMJ

       Effective on 24 June 2014, Congress amended Article 60, UCMJ, to
drastically limit a convening authority’s power to dismiss or set aside a finding of
guilty or disapprove, commute or suspend certain parts of the sentence in certain
instances. 8 One instance is relevant today. When the sentence includes a dismissal,
the convening authority may not: 1) “[d]ismiss a charge or specification by setting
aside a finding of guilty thereto;” or 2) “disapprove, commute or suspend, in whole
or in part, that part of an adjudged sentence that includes . . . [a] dismissal.” Rule
for Courts-Martial (R.C.M.) 1107(c)(1)(B)(i) (action on findings); R.C.M.
1107(d)(1)(B)(ii) (action on sentence). There are two exceptions to this general

7
 This requirement first appeared in the 14 October 2002 version of AR 27-10. It
appeared earlier in an Army personnel regulation. See Army Reg. 635-120,
Personnel Separations: Officer Resignations and Discharges, para. 5-1b (1 May
1989) (IC 27 Sept. 1991).
8
  These limitations do not apply if the accused was convicted of at least one offense
that occurred before the effective date of 24 June 2014. See Rule for Court-Martial
1107; Executive Order 13,696, 80 Fed. Reg. 35,810 (June 22, 2015). Based on the
date of the offenses in this case, this limitation is not applicable.


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prohibition, but neither is applicable to this case. 9 In other words, the convening
authority in this case could not set aside the findings of guilty. Nor could the
convening authority set aside the dismissal.

       In United States v. Alvin, ARMY 20150353, 2017 CCA LEXIS 722 (Army Ct.
Crim. App. 21 Nov. 2017), we faced a similar issue. There, the convening
authority’s initial action was contrary to Article 60, UCMJ, limitations and would
have deprived this court of jurisdiction. After the action had been served on the
accused, which terminated the convening authority’s ability to reconsider the action
adverse to the accused (see R.C.M. 1107(f)(2)), the convening authority issued a
new (and legal) action. We determined that the first action, as it was illegal, was
“void ab initio.” Alvin, 2017 CCA LEXIS 722, at *6. While we noted precedent
that prohibited the convening authority from revisiting an action in a manner adverse
to the accused, we stated:

             To follow those precedents in a situation where the
             convening authority acts outside his authority would run
             squarely against Congressional intent as codified in the
             NDAA’s changes to Article 60, UCMJ. Here, the statute
             expressly prohibits the convening authority from
             dismissing findings of guilty if the offense is one that
             carries a maximum punishment of greater than two years.

Id. at *5-*6. We concluded that to the extent that R.C.M. 1107 was in conflict with
Article 60, “[w]e must give effect to the statute over the rule.” Id. at *7.

      We face a similar conflict today. The convening authority’s action complied
with AR 27-10, but was prohibited by the amendments to Article 60, UCMJ. 10 The
convening authority was prohibited from setting aside any finding. The convening




9
 One exception is when the convening authority’s action is in accordance with a
pretrial agreement. See R.C.M. 1107(d)(1)(C)(ii). While there was a pretrial
agreement in this case, it did not provide for the convening authority’s action here.
The other exception allows a convening authority to take favorable action on the
sentence upon recommendation of the trial counsel in a case where an accused has
provided substantial assistance in the investigation or prosecution of another person
who has committed an offense. See R.C.M. 1107(d)(1)(C)(i).
10
  This regulatory conflict with Article 60, UCMJ, still exists. See AR 27-10, para.
5-18; AR 600-8-24, para. 3-13b.


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VANCE—ARMY 20180011

authority was also prohibited from setting aside the dismissal. 11 Accordingly, we
reach the same result as we did in Alvin, and determine that the convening
authority’s action was void ab initio.

                                 B. Article 66, UCMJ

       This court is established by Article 66, UCMJ. Our jurisdiction is limited, but
in relevant part includes cases in which the sentence approved by the convening
authority includes a dismissal. UCMJ art. 66(b)(1). As the convening authority
purported to disapprove the findings and the sentence, it would facially appear that
we lack jurisdiction over the case. Article 66(c), UCMJ, similarly provides that we
may “act only with respect to the findings and sentence as approved by the
convening authority.”

       In Alvin, we speculated, in dicta, what would have happened if a convening
authority’s action violated Article 60 and thereby deprived this court of jurisdiction
to hear the case:

             As we have the power to issue extraordinary writs to
             preserve our jurisdiction, this court could issue a writ of
             mandamus setting aside the first action and ordering a new
             action. See generally Howell v. United States, 75 M.J.
             386, 390 (C.A.A.F. 2016); [United States v. Montesinos,
             28 M.J. 38, 42 (C.M.A. 1989)]; Dettinger v. United States,
             7 M.J. 216 (C.M.A. 1979).

Alvin, 2017 CCA LEXIS 722, at *7 n.7. As we see it, according to Congress’s
amendment to Article 60, UCMJ, the convening authority’s only authorized action
was to approve the findings and the dismissal. If the convening authority could not
change the sentence, under the statutory scheme that results, review by this Court
was mandatory once the sentence was determined by the court-martial. Put
differently, our mandatory review under Article 66(c), UCMJ, was triggered by the
sentence to a dismissal, which the convening authority was prohibited from
changing.

      “[M]ilitary courts, like Article III tribunals, are empowered to issue
extraordinary writs under the All Writs Act.” United States v. Denedo, 556 U.S.
904, 911 (2009) (citation omitted). The All Writs Act grants the power to “all courts


11
  The convening authority’s decision to set aside the forfeitures was permissible
under Article 60, UCMJ.


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VANCE—ARMY 20180011

established by Act of Congress [to] issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a).

       “The All Writs Act is not an independent grant of jurisdiction, nor does it
expand a court’s existing statutory jurisdiction.” LRM v. Kastenberg, 72 M.J. 364,
367 (C.A.A.F. 2013) (citing Clinton v. Goldsmith, 526 U.S. 529, 534-35 (1999)).
“Rather, the All Writs Act requires two determinations: (1) whether the requested
writ is ‘in aid of’ the court’s existing jurisdiction; and (2) whether the requested writ
is ‘necessary or appropriate.’” Id. (citation omitted). Our jurisdiction to issue a
writ is limited to our subject-matter jurisdiction over the case or controversy. See
Denedo, 556 U.S. at 911; see generally UCMJ art. 66. “To establish subject-matter
jurisdiction, the harm alleged must have had ‘the potential to directly affect the
findings and sentence.’” Kastenberg, 72 M.J. at 368 (quoting Ctr. For
Constitutional Rights v. United States, 72 M.J. 126, 128 (C.A.A.F. 2013)).

       It speaks for itself that if an uncorrected illegal action serves to deprive this
court of jurisdiction to perform a statutorily mandated review of the findings and
sentence, a writ of mandamus directing the action be amended to conform with the
law and allow for our review would be “in aid of [our] jurisdiction.” See 28 U.S.C.
§ 1651.

                                  C. Article 74, UCMJ

        In determining whether to issue a writ, we are required to determine whether a
writ is necessary and appropriate. A writ directing a new convening authority action
would not be “necessary” if the Secretary’s designee acting on her own authority
(i.e. not through the convening authority’s Article 60, UCMJ, power) would cause us
to end up at the same place – the findings of guilty and sentence set aside with
nothing for this court to review. Accordingly, we briefly discuss the intersection of
Article 66, UCMJ, and Article 74, UCMJ. 12



12
  Nothing in this opinion should be construed as limiting the Secretary’s authority
to act under Article 74, UCMJ, or any other authority. We review the actions of the
convening authority, not the Secretary. Under 10 U.S.C. § 3013, the Secretary of
the Army has broad authority over Army affairs. The Secretary does not * need the
convening authority’s Article 60, UCMJ, authority in order to execute the
Secretary’s lawful authority.
*
    Corrected


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       Article 74, UCMJ, provides the Secretary of the Army with two broad powers
relevant to this case. First, under Article 74(a), UCMJ, the Secretary’s designee
may remit or suspend any part of an unexecuted sentence. 13 Second, under Article
74(b), UCMJ, the Secretary’s designee may, “for good cause,” substitute an
administrative discharge for a dismissal. Under Article 74, UCMJ, the Secretary’s
designee may remit CPT Vance’s dismissal or substitute the dismissal with an
administrative discharge. 14, So, it is conceivable that the Secretary of the Army,
acting through a designee, could today do, in part, exactly what the Deputy Assistant
Secretary of the Army (Review Boards) purported to do in accepting the RFGOS.
That is, the Secretary of the Army or an official with delegated authority could remit
the dismissal or substitute therefore an administrative discharge.

       But, this court’s jurisdiction over a case does not change when the Secretary’s
designee remits a dismissal or substitutes an administrative discharge for that
punishment under Article 74, UCMJ. See Steele v. Van Riper, 50 M.J. 89 (C.A.A.F.
1999). [T]he power of review authorities over the court-martial is unaffected by the
administrative discharge.” Id. at 91; see also Woods, 26 M.J. at 372; United States v.
Jackson, 3 M.J. 153 (C.M.A. 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); United
States v. Watson, 69 M.J. 415, 416 (C.A.A.F. 2011) (“A post-trial administrative
discharge operates to remit the unexecuted punitive discharge portion of an adjudged
court-martial sentence.”); United States v. Soto, No. 201500384, 2016 CCA LEXIS
517, *4 n.2 (N.M. Ct. Crim. App. 2016) (An appellant’s prior “discharge through
administrative channels” does not affect the power of appellate tribunals to act on
the findings and sentence under Article 66(b)(1), UCMJ.).

       In other words, the exercise of Secretarial authority (whether under Article
74, UCMJ, or another source), does not alter this court’s obligations under Article
66, UCMJ. While this court’s Article 66, UCMJ, jurisdiction turns on the accused’s
sentence, it is based on the sentence approved by the convening authority under
Article 60, UCMJ, not on the sentence as modified by the Secretary’s designee.

      Even if we were to find the RFGOS decision by the Deputy Assistant
Secretary of the Army was a de facto exercise of the Secretary’s Article 74, UCMJ,


13
  There are limitations on this authority, not applicable here, when the sentence
includes confinement for life without the possibility of parole.
14
  Secretarial power under Article 74, UCMJ, appears to extend only to the sentence,
and does not include the ability to set aside findings of guilt.


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authority with regards to the dismissal, the result here would be the same because
that would not alter our jurisdiction to consider this case.

                                   CONCLUSION

       The convening authority cannot set aside the findings and the sentence to a
dismissal in this case. Nor do we see any authority that would allow the Secretary’s
designee to direct the convening authority to dismiss the findings and the sentence
when Congress has specifically prohibited just that action. We therefore conclude
that the convening authority’s action in this case was invalid at the time it was
signed and void ab initio.

       We therefore issue this writ of mandamus directing the convening authority to
take action on this case in the manner required under Article 60, UCMJ. This writ is
issued “in aid” of our statutory responsibility to review the findings and sentence in
this case. The substance of this writ – requiring the convening authority to comply
with the law – is not only “necessary and appropriate,” but the only method
available to this court to ensure it is able to discharge its responsibilities under
Article 66, UCMJ.

      Accordingly, we direct the Clerk of Court to return the record of trial to the
convening authority for a new staff judge advocate review and action by the
convening authority. 15

      Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                           FOR
                                          FOR  THE
                                              THE   COURT:
                                                  COURT:




                                          MALCOLM
                                           MALCOLM     H. H.
                                                          SQUIRES, JR. JR.
                                                             SQUIRES,
                                          Clerk
                                           Clerkof of
                                                   Court
                                                      Court




15
  Our decision here is limited to saying that the case requires a convening authority
action that complies with Article 60, UCMJ. We save for another day our decision
whether the findings and sentence in this case should be affirmed. See UCMJ, art.
66(c).


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