                       UNITED STATES, Appellee

                                    v.

       Michael J. POLITTE, Hospital Corpsman Second Class
                      U.S. Navy, Appellant

                              No. 05-0271

                       Crim. App. No. 200401261

       United States Court of Appeals for the Armed Forces

                       Argued October 11, 2005

                        Decided March 21, 2006

GIERKE, C.J., delivered the opinion of the Court in which
EFFRON, J., joined. CRAWFORD, J., filed a separate opinion
concurring in the result. ERDMANN, J., filed a dissent in which
BAKER, J., joined.

                                 Counsel

For Appellant: Lieutenant Aimee M. Cooper, JAGC, USN (argued);
Captain Jeffrey S. Stephens, USMC (on brief).

For Appellee: Major Wilbur Lee, USMC (argued); Major Raymond E.
Beal II, USMC, and Commander Charles N. Purnell, JAGC, USN (on
brief); Colonel William K. Lietzau, USMC.

Military Judge:   Nels Kelstrom


       This opinion is subject to revision before final publication.
United States v. Politte, No. 05-0271/NA


      Chief Judge GIERKE delivered the opinion of the Court.

      We again examine an ambiguous convening authority action

and its impact on sentencing.        Here, the convening authority’s

action is open to two distinct interpretations, both of which

have ample support in law and fact.         In light of this ambiguous

convening authority action, a new action is required.

                             I.   BACKGROUND

      Pursuant to Appellant’s guilty pleas, a military judge

sitting as a special court-martial convicted Appellant of making

a false statement, introducing cocaine onto a military

installation, wrongfully using cocaine, and soliciting another

to use cocaine.1     The convening authority entered into a pretrial

agreement allowing him to approve a punitive discharge, while

placing limits on other forms of punishment.         Appellant entered

guilty pleas to five of the twenty specifications alleged, as

required by the pretrial agreement. The military judge sentenced

Appellant to a reduction to E-1 and a bad-conduct discharge.

      Post-trial, trial defense counsel submitted clemency

matters to the convening authority requesting suspension of the

bad-conduct discharge for a period of one year from the date of

the convening authority’s action.          Defense counsel asserted that




1
  These offenses are punishable under Articles 107, 112a, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907,
912a, and 934 (2000), respectively.

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United States v. Politte, No. 05-0271/NA


the punitive discharge would have an adverse impact on

Appellant, his wife, and his family.

      Responding to this clemency plea, the staff judge advocate

recommended against any clemency for Appellant, and proposed an

action by the convening authority that included the following:

“[T]hat the sentence as adjudged be approved and executed,

except for that portion extending to a Bad Conduct Discharge,

which cannot be executed until the completion of appellate

review.”

      Apparently in response to this recommendation, the

convening authority took the following action:

      In the case of Hospital Corpsman Second Class Michael J.
      Politte, U.S. Navy, . . . the sentence is approved except
      for that part of the sentence extending to a bad conduct
      discharge.

      Prior to taking this action the Convening Authority did
      consider the results of trial, the recommendation of the
      staff judge advocate, and the 17 June 2004 clemency letter
      submitted by defense counsel on behalf of the accused.

      The record of trial is forwarded to the Navy-Marine Corps
      Appellate Review Activity, 716 Sicard Street SE Suite 1000,
      Washington Navy Yard, Washington, DC 20384-5047, pursuant
      to JAGMAN 0153b(1), for review under Article 66, UCMJ.

Emphasis added.

      Without specific assignment of error, Appellant submitted

his case to the lower court for review.    The lower court upheld




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United States v. Politte, No. 05-0271/NA


the findings and sentence as approved by the convening

authority.2

      Appellant filed a petition for review before this Court

requesting consideration of the case on its merits.         This Court

specified the following issue:

      WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF
      CRIMINAL APPEALS HAD JURISDICTION TO ACT ON THE FINDINGS
      AND SENTENCE UNDER ARTICLE 66(b)(1), UNIFORM CODE OF
      MILITARY JUSTICE, 10 U.S.C. § 866(b)(1), IN LIGHT OF THE
      CONVENING AUTHORITY’S ACTION THAT DOES NOT APPEAR TO HAVE
      APPROVED A BAD-CONDUCT DISCHARGE.


                              II.   DISCUSSION

      The specified issue is rooted in the fundamental rule that

a Court of Criminal Appeals can only review cases within its

statutory jurisdiction.      Under Article 66, UCMJ, 10 U.S.C. § 866

(2000), the Courts of Criminal Appeals may hear a case on the

merits where:    (1) a Judge Advocate General refers courts-

martial records to the court; (2) a convening authority has

approved the findings and sentence; and (3) the sentence as

approved extends to death, a dismissal, a punitive discharge or

confinement for one year or more.          Regarding post-trial matters,

Courts of Criminal Appeals also have jurisdiction to refrain

from addressing the merits of a case, and instead return an

action to the convening authority if further clarification of



2
  United States v. Politte, No. NMCCA 200401261 (N-M. Ct. Crim.
App. Oct. 29, 2004)(unpublished).

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United States v. Politte, No. 05-0271/NA


the meaning of the action is necessary.3   We conclude the

convening authority’s action in this case was ambiguous.

Therefore, we hold the lower court erred by failing to identify

this ambiguity and return the action to the convening authority

for clarification.

      Because of the importance of the convening authority’s

action in the court-martial process, we have required a clear

and unambiguous convening authority action.4   In United States v.

Scott, when presented with an ambiguous convening authority

action involving a bad-conduct discharge, this Court applied

Rule for Courts-Martial (R.C.M.) 1107(g), and returned the

record to the Judge Advocate General for submission to the

convening authority for clarification.5

      R.C.M. 1107(g) permits an authority “acting under Article

64, 66, 67, or 69” to instruct a convening authority to withdraw

an original action and substitute a corrected action where the

original action “is incomplete, ambiguous, or contains clerical

error.”

      In United States v. Loft, we held that appellate courts

could use surrounding documentation to interpret an otherwise


3
  Rule for Courts-Martial 1107(g); see, e.g., Manual for Courts-
Martial, United States para. 95 (1951 ed.).
4
  See United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003)
(“A convening authority is vested with substantial discretion
when he or she takes action on the sentence of a court-
martial.”).
5
  49 M.J. 160, 160 (C.A.A.F. 1998) (summary disposition).

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United States v. Politte, No. 05-0271/NA


unclear convening authority action.6          In Loft, we determined a

convening authority’s intent regarding a bad-conduct discharge

by looking outside the four corners of the action’s language.7

Specifically, we examined the pretrial agreement, the

recommendations of the staff judge advocate, and the proposed

action to “suspend” the bad-conduct discharge.8          A thorough

examination of this surrounding documentation led us to conclude

that the convening authority indeed intended to approve the

adjudged bad-conduct discharge.9

       Turning to the facts now before us, we view the convening

authority’s action as ambiguous.           The language in paragraph one

of the convening authority’s action approving Appellant’s

adjudged sentence (“except for that part of the sentence

extending to a bad conduct discharge”) suggests that the

convening authority intended to disapprove the adjudged bad-

conduct discharge.

       On the other hand, the surrounding documentation provides

ample support for the opposite conclusion:          that in fact, the

convening authority intended to approve the adjudged bad-conduct

discharge.    First, the pretrial agreement allowed for the

convening authority to approve the bad-conduct discharge.

Second, the recommendation of the staff judge advocate

6
    10 M.J. 266, 268 (C.M.A. 1981).
7
    Id.
8
    Id. at 267-68.
9
    Id.

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United States v. Politte, No. 05-0271/NA


presupposes the approval of a bad-conduct discharge, as it

expressly recommends that the bad-conduct discharge be approved,

but not executed until the completion of appellate review.

Third, in requesting clemency, the defense did not request

disapproval of the bad-conduct discharge –- only suspension.

Finally, in the paragraph immediately following Appellant’s

sentence, the convening authority took action forwarding the

record to the Navy-Marine Corps Appellate Review Activity

pursuant to Article 66, UCMJ.        Such an action is strong evidence

that the convening authority intended to approve the bad-conduct

discharge.10

       Based on our review of all the surrounding documentation

leading up to the convening authority action, we decline to

adopt Appellant’s position that the plain language indicates the

convening authority intended to disapprove of the adjudged bad-

conduct discharge.     However, because the language does express

approval of the sentence “except for the bad conduct discharge,”

we must also decline to adopt the Government’s position that the

surrounding documentation clearly indicates the convening

authority intended to approve the adjudged bad-conduct




10
     See Loft, 10 M.J. at 268.



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United States v. Politte, No. 05-0271/NA


discharge.    Here the convening authority’s action regarding

Appellant’s sentence was ambiguous.11

      Finding this deficiency in the convening authority’s

action, we answer the specified issue in the affirmative.       While

the lower court did have jurisdiction to act in this case, we

conclude that the lower court erred by not identifying the

ambiguity and returning the action to the convening authority.12

                                  DECISION

     The decision of the United States Navy-Marine Court of

Criminal Appeals is set aside.        The record of trial is returned

to the Judge Advocate General of the Navy for submission to the

convening authority for clarification in accordance with R.C.M.

1107(g).   Thereafter, Article 66, UCMJ, and Article 67, UCMJ,

respectively,13 will apply.14




11
   Convening authorities and staff judge advocates can avoid the
ambiguity we have here by exercising care in drafting the
convening authority’s actions. A potential solution to this
problem is to draft actions that do not combine, in one
sentence, the three separate concepts of: (1) approval of the
sentence, (2) execution of the sentence; and (3) identification
of those portions of the sentence that cannot be executed until
completion of appellate review. We note that the model “Forms
for Action” in Manual for Courts-Martial, United States app.16
at A16-1-A16-6 (2005 ed.), could be revised so that the model
actions use separate sentences for each of the elements listed
above, rather than multiple clauses, in order to treat the
different elements of a sentence as different actions.
12
   Article 66(b)(1), UCMJ; Scott, 49 M.J. at 160; R.C.M. 1107(g).
13
   10 U.S.C. § 867 (2000).
14
   Scott, 49 M.J. at 160.

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United States v. Politte, No. 05-0271/NA


     CRAWFORD, Judge (concurring in the result):

     This case is distinguishable from United States v. Robbins,

61 M.J. 60 (C.A.A.F. 2005), and United States v. Pineda, 54 M.J.

298 (C.A.A.F. 2001).   In this case, the staff judge advocate

recommended the sentence “as adjudged be approved and executed,

except for that portion extending to a Bad Conduct Discharge,

which cannot be executed until the completion of the appellate

review.”   The convening authority then signed an action that

approved the sentence “except for that part of the sentence

extending to a bad conduct discharge.”   Missing from the end of

this sentence are the words “will be executed.”    See Manual for

Courts-Martial, United States, Forms for Action app. 16 at A16-2

(2005 ed.).

     There were two pretrial agreements in this case.     First,

the convening authority accepted a plea of guilty to the

following:    false official statement, introduction of cocaine

onto a military installation, wrongful use of cocaine, and

larceny.   However, because of additional misconduct by

Appellant, the convening authority withdrew from this agreement

on October 8, 2003.

     Pursuant to a second pretrial agreement on March 16, 2004,

Appellant was convicted at a special court-martial for the

making of a false official statement, introduction of cocaine

onto a military installation, wrongful use of cocaine (two
United States v. Politte, No. 05-0271/NA


specifications), and solicitation of another to use cocaine.

Under this second pretrial agreement, the convening authority

also agreed to withdraw and dismiss several additional charges.

     Appellant’s case was submitted to the Navy-Marine Court of

Criminal Appeals without the assignment of any errors.   After

his case was affirmed by that court in an unpublished opinion,

it was then submitted to this Court with no assignments of

error.   This Court specified the issue set forth in the majority

opinion.

     Several factors lead one to the common sense conclusion

that there was an administrative oversight in the convening

authority’s action that was not consistent with the intent of

the convening authority.   The fact that neither Appellant nor

his counsel raised this issue before the Court of Criminal

Appeals or this Court is evidence that they understood what

sentence was approved.   Further, the serious nature of the

offenses to which Appellant pleaded guilty would warrant the

imposition of a punitive discharge.   Unlike Robbins and Pineda,

the intent of the parties and Appellant’s understanding of his

approved sentence are clear from the second pretrial agreement

and the recommendation of the staff judge advocate, as well as

from the surrounding circumstances of the case itself.   Thus, I

would affirm the court below, but because of the two opinions --

one by Chief Judge Gierke and one by Judge Erdmann, resulting in


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United States v. Politte, No. 05-0271/NA


a 2-2 split, I concur in the result and agree with the Chief

Judge to allow the convening authority to clarify the action in

this case.




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United States v. Politte, No. 05-0271/NA


     ERDMANN, Judge, with whom BAKER, Judge, joins (dissenting):

     Because the majority finds ambiguity by going beyond the

four corners of this otherwise unambiguous action, I

respectfully dissent.

     Article 60(c), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 860(c) (2000), empowers a convening authority to act

upon the findings and sentence of a court-martial.   See also

Rule for Courts-Martial (R.C.M.) 1107.   That empowering statute

defines and limits what constitutes an “action”.   Nothing within

the statute includes the administrative disposition of a record

of trial as part of the convening authority’s action on the

findings and sentence.   By including the administrative

instructions on disposition of the record of trial within the

convening authority’s “action”, the majority has expanded the

statutory definition of “action”.    I decline to join in this

expansion of statutory definition.

     The majority relies upon the following three paragraphs of

the R.C.M. 1114 promulgating order to suggest an ambiguity in

the convening authority’s action:

     In the case of Hospital Corpsman Second Class Michael J.
     Politte, U.S. Navy, . . . the sentence is approved except
     for that part of the sentence extending to a bad conduct
     discharge.

     Prior to taking this action the Convening Authority did
     consider the results of trial, the recommendation of the
     staff judge advocate, and the 17 June 2004 clemency letter
     submitted by defense counsel on behalf of the accused.
United States v. Politte, No. 05-0271/NA


     The record of trial is forwarded to the Navy-Marine Corps
     Appellate Review Activity, 716 Sicard Street SE Suite 1000,
     Washington Navy Yard, Washington, DC 20384-5047, pursuant
     to JAGMAN 0153b(1), for review under Article 66, UCMJ.

Paragraph two of the foregoing clearly reflects that the

convening authority’s action was whole and completed within the

clear language of the first paragraph.

     The convening authority took no action on the findings in

Politte’s case and the action on the sentence is facially clear

and unambiguous:   “the sentence is approved except for that part

of the sentence extending to a bad conduct discharge.”    This

facial clarity undermines the majority’s reliance upon United

States v. Loft, 10 M.J. 266, 268 (C.M.A. 1981), as a basis for

looking at the surrounding circumstances to determine the

convening authority’s intent.   In that case we defined

“ambiguous action [as] one that is ‘capable of being understood

in two or more possible senses.’”    Id. (quoting Webster’s New

Collegiate Dictionary 36 (1975 ed.)).    Without going beyond the

terms of the action itself, the words used by the convening

authority are susceptible of but one meaning:   the punitive

discharge was not approved.

     For this reason, the action is not subject to the

provisions of R.C.M. 1107(g) which permit correction of an

action that is “incomplete, ambiguous, or contains clerical

error.”   See United States v. Klein, 55 M.J. 752, 756 n.3 (A.F.



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United States v. Politte, No. 05-0271/NA


Ct. Crim. App. 2001).   The action here is clear and unambiguous.

The convening authority did not approve the adjudged bad-conduct

discharge.   The Court of Criminal Appeals should have reviewed

this action and found that it had no statutory authority to

conduct further review.   Any purported final action executing a

bad-conduct discharge must be set aside.




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