       This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                          Appellant
                                v.
                 Dustin M. CLARK, Airman
                 United States Navy, Appellee
                          No. 16-0068
                    Crim. App. No. 201400232
         Argued March 15, 2016—Decided May 17, 2016
             Military Judge: Robert P. Monahan Jr.
   For Appellant: Lieutenant James M. Belforti, JAGC, USN
   (argued); Colonel Mark K. Jamison, USMC, Lieutenant
   Robert J. Miller, JAGC, USN, and Lieutenant Jetti L. Gib-
   son, JAGC, USN (on brief).
   For Appellee: Major M. Brian Magee, USMC (argued); Da-
   vid P. Sheldon, Esq. (on brief).
   Judge STUCKY delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judges RYAN and
   OHLSON, and Chief Judge WHITNEY, joined.
                    _______________

   Judge STUCKY delivered the opinion of the Court.1

   In this case, at Appellee’s request, the military judge
made special findings in returning his guilty verdict. On re-
view, the United States Navy-Marine Corps Court of Crimi-
nal Appeals (CCA) found Appellee’s convictions factually in-
sufficient, set aside the findings and sentence, and dismissed
the charges and specifications with prejudice. The Judge
Advocate General of the Navy (JAG) certified the case for
review of two issues: (1) whether the CCA failed to conduct a
complete review under Article 66(c), Uniform Code of Mili-

   1  Chief Judge Frank D. Whitney, of the United States District
Court for the Western District of North Carolina, sat by designa-
tion, pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
            United States v. Clark, No. 16-0068/NA
                     Opinion of the Court

tary Justice (UCMJ) 10 U.S.C. § 866(c) (2012), when it failed
to acknowledge the military judge’s special findings; and
(2) what is the appropriate standard by which a CCA should
review a military judge’s special findings. We answer the
first question in the negative, decline to answer the second,
and affirm the judgment of the CCA.
                    I. Procedural History

    A military judge sitting as a general court-martial con-
victed Appellee, contrary to his pleas, of rape and forcible
sodomy. Articles 120 and 125, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 920, 925 (2012). The convening
authority approved the adjudged sentence: a dishonorable
discharge, confinement for seven years, and reduction to the
lowest enlisted grade. The CCA set aside the findings and
sentence on factual sufficiency grounds and dismissed the
charges and specifications with prejudice. United States v.
Clark, No. 201400232, 2015 CCA LEXIS 287, 2015 WL
4239924 (N-M. Ct. Crim. App. July 14, 2015). In a motion for
reconsideration en banc, the Government alleged, first that
the panel that decided the case “failed to analyze, give defer-
ence, or even address the extensive special findings” made
by the military judge; and, second, failed to address a lesser-
included offense. The CCA denied the Government’s motion
for reconsideration en banc without explanation. The Judge
Advocate General of the Navy then ordered the case sent to
this Court for review pursuant to Article 67(a)(2), UCMJ,
10 U.S.C. § 867(a)(2) (2012).
                        II. Discussion

   Appellee asked the military judge to make special find-
ings of fact in addition to a general finding as to his guilt.
“The military judge of [a judge alone] court-martial shall
make a general finding and shall in addition on request find
the facts specially.” Article 51(d), UCMJ, 10 U.S.C. § 851(d)
(2012). This provision was enacted as part of the Military
Justice Act of 1968. Pub. L. No. 90-632, § 2(21)(D) (1968).
“Article 51(d) is patterned after Fed. R. Crim. P. 23(c).”
Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-68 (2012 ed.); Unit-
ed States v. Gerard, 11 M.J. 440, 441 (C.M.A. 1981).




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            United States v. Clark, No. 16-0068/NA
                     Opinion of the Court

   In enacting the Uniform Code of Military Justice in 1950,
Congress saw fit to grant significant powers to the Boards of
Review (now the Courts of Criminal Appeals) that it with-
held from this Court. The Courts of Criminal Appeals are
empowered, and indeed required, to determine that the find-
ings and sentence are correct in fact as well as law:
      [The CCA] may affirm only such findings of guilty
      and the sentence or such part or amount of the sen-
      tence, as it finds correct in law and fact and deter-
      mines, on the basis of the entire record, should be
      approved. In considering the record, it may weigh
      the evidence, judge the credibility of witnesses, and
      determine controverted questions of fact, recognizing
      that the trial court saw and heard the witnesses.
Article 66(c), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 866(c) (2012) (emphasis added).
    By contrast, this Court is statutorily limited to consider-
ation of questions of law in its review of decisions of the
Courts of Criminal Appeals:
      In any case reviewed by it, the Court of Appeals for
      the Armed Forces may act only with respect to the
      findings and sentence as approved by the convening
      authority and as affirmed or set aside as incorrect
      in law by the Court of Criminal Appeals…. The
      Court of Appeals for the Armed Forces shall take ac-
      tion only with respect to matters of law.
Article 67(c), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 867(c) (2012) (emphasis added).
   In our first published opinion, we recognized that Con-
gress had limited us to correction of errors of law and that
our writ did not extend to questions of fact. United States v.
McCrary, 1 C.M.A. 1, 3, 1 C.M.R. 1, 3 (1951). The early deci-
sions of this court established the principle that the factual
determination powers of the Boards of Review, as they were
then named, were beyond our review, absent arbitrary or
capricious action. See, e.g., United States v. Hendon,
7 C.M.A. 429, 432, 22 C.M.R. 219, 222 (1956).
   The tonic chord running through our cases is a clear
recognition of the unique powers lodged by Congress in the
Courts of Criminal Appeals, coupled with a strong disincli-
nation to involve ourselves in the review of the exercise of


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             United States v. Clark, No. 16-0068/NA
                      Opinion of the Court

that power. This does not mean that the statutory powers of
the CCAs are wholly insulated from judicial review. Issues
of legal, as opposed to factual, sufficiency have always been
within the remit of this court; we have likewise kept to our-
selves the prerogative of determining on which side of the
legal/mixed/factual divide an issue properly falls. The label-
ing of the issue by the CCA has been understood from the
beginning not to be dispositive. See United States v. Bunting,
6 C.M.A. 170, 174, 19 C.M.R. 296, 299 (1955); see also Unit-
ed States v. Johnson, 23 M.J. 209, 211 (C.M.A. 1987) (finding
that lower court had mislabeled an issue as a matter of fact,
when it was one of law). Finally, we have held that we retain
the authority to review factual sufficiency determinations of
the CCAs for the application of “correct legal principles,” but
only as to matters of law.2 United States v. Leak, 61 M.J.
234, 241 (C.A.A.F. 2005).
    The two issues certified by the JAG are inter-
twined: what special standard, if any, should the CCA apply
to a military judge’s special findings when performing its
statutory duties under Article 66(c)? The Government ar-
gues that we have never articulated a standard as to how
the CCAs should treat the statutory admonition in Article
66(c) to “recognize[ ] that the trial court saw and heard the
witnesses,” and urges us to do so by adopting the “clearly
erroneous” standard employed by some of the Article III
courts and, according to the Government, the Army and Air
Force CCAs. On these facts, we decline to do so. The special
findings of the military judge in this case go virtually entire-
ly to the credibility of witnesses and the weight of the evi-
dence––issues that lie at the core of the function of the trier
of fact and the Article 66 factual sufficiency powers of the
CCAs.
   Appellate military judges are presumed to know the law
and apply it correctly. United States v. Schweitzer, 68 M.J.
133, 139 (C.A.A.F. 2009) (citing United States v. Mason, 45


   2 The controverted case of United States v. Nerad, 69 M.J. 138
(C.A.A.F. 2010), is not to the contrary. While there was significant
disagreement among the three opinions of this Court in that case,
it was clear that the CCA had held the evidence both legally and
factually sufficient. Id. at 140.



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             United States v. Clark, No. 16-0068/NA
                      Opinion of the Court

M.J. 483, 484 (C.A.A.F. 1997)). Here, the CCA noted that
“[t]he Government’s case rested nearly exclusively on SW's
delayed and partial memories.” Clark, 2015 CCA LEXIS, at
*21, 287 2015 WL 4239924, at *7. Exercising its prerogative
to weigh the evidence and judge the credibility of witnesses,
the CCA relied on the lack of physical evidence and the tes-
timony of the defense expert more than that of the Govern-
ment’s expert in describing the circumstances and validity of
the alleged victim’s delayed recollection of the events. Id. at
*22–23, 2015 WL 4239924 at *8. The CCA explained that,
before reaching its judgment, it had “reviewed the record of
trial and evaluated the arguments by the appellant and the
Government… and made allowances for not having heard or
observed the witnesses.” Id. at *18–19, 2015 WL 4239924 at
*7. Special findings are part of the record of trial. See Rule
for Courts-Martial 918(b).
   Given the nature of the military judge’s special findings,
the presumption of regularity that applies to the acts of the
appellate military judges, and the CCA’s statement that it
applied the statutory prerogatives, we conclude that the
CCA acted within its statutory prerogatives under Article
66(c). These factual matters are, therefore, beyond our stat-
utory jurisdiction. We answer the first certified issue in the
negative.
    In the second issue, the Government urges us to impose a
uniform standard—viz., “clearly erroneous”—on the CCAs’
treatment of military judges’ special findings. The Govern-
ment asserts that both the Army and Air Force CCAs have
adopted the “clearly erroneous” standard, which conforms to
the general practice in the Article III courts of appeals.
These arguments need not detain us long. Keeping in mind
the very narrow nature of our authority in this area, we de-
cline to impose any particular rule on the factual powers of
the CCAs. Although Article 51(d) may have been based on
the federal rule, the practice in the Article III courts of ap-
peals are not dispositive in light of the nature of the authori-
ty of the CCAs under Article 66. We therefore decline to an-
swer the second certified issue.




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           United States v. Clark, No. 16-0068/NA
                    Opinion of the Court

                      III. Judgment

   The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




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