                    UNITED STATES, Appellant

                               v.

                 Joshua J. ALEXANDER, Specialist
                       U.S. Army, Appellee

                           No. 06-5004
                     Crim. App. No. 20031161


                               AND


                    UNITED STATES, Appellant

                               v.

                  Sean B. VANDERSCHAAF, Private
                       U.S. Army, Appellee

                           No. 06-5003
                     Crim. App. No. 20050316

       United States Court of Appeals for the Armed Forces


                       Argued May 2, 2006

                      Decided July 3, 2006


EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
separate opinion, concurring in part and dissenting in part.
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


                        United States v. Alexander

Counsel For Appellant: Captain Larry W. Downend (argued);
Lieutenant Colonel Theresa A. Gallagher and Major William J.
Nelson (on brief); Lieutenant Colonel Natalie A. Kolb.

Counsel For Appellee: Major Charles L. Pritchard Jr. (argued);
Colonel John T. Phelps III, Lieutenant Colonel Kirsten V. C.
Brunson, Major Billy B. Ruhling II, and Captain Stephen P.
Watkins (on brief).

Military Judge:     Patrick J. Parrish


                     United States v. Vanderschaaf

Counsel For Appellant: Captain Larry W. Downend (argued);
Lieutenant Colonel Theresa A. Gallagher, Major William J.
Nelson, and Major Natalie A. Kolb (on brief).

Counsel For Appellee: Major Charles L. Pritchard Jr. (argued);
Lieutenant Colonel Kirsten V. C. Brunson (on brief); Colonel
John T. Phelps II.



Military Judge:     Denise Lind




             THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.




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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


    Judge EFFRON delivered the opinion of the Court.

    The present appeal concerns two guilty plea cases in which

issues have arisen concerning the content of the findings

approved by the convening authority.     The first portion of this

opinion describes the pertinent background for each case.         In

the second part of the opinion, we consider the principles

governing the relationship between findings rendered at trial

and the findings approved by the convening authority.      The third

part of the opinion considers the action taken by the United

States Army Court of Criminal Appeals with respect to the

findings in these two cases.



                            I.   BACKGROUND

                   A.   United States v. Alexander

    Alexander was charged with two violations of Article 112a,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912(a)

(2000).   The first specification alleged that Alexander:

           did, at or near Kandahar Air Field,
           Afghanistan, on divers occasions during
           February 2003, wrongfully use marijuana in
           hashish form, while receiving special pay
           under 37 U.S.C. § 310.

 The second specification alleged that Alexander:

           did, at or near Kandahar Air Field,
           Afghanistan, on divers occasions between
           February 2003 and March 2003, wrongfully
           distribute an unknown amount of marijuana in


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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


            the hashish form, a controlled substance,
            while receiving special pay under 37 U.S.C.
            § 310.


    Pursuant to Alexander’s pleas, a general court-martial

composed of a military judge sitting alone found him guilty of

both offenses.   The court-martial sentenced Appellant to

confinement for eighteen months, reduction to the lowest

enlisted grade, and a bad-conduct discharge.

    The staff judge advocate (SJA) provided the convening

authority with a post-trial recommendation under Rule for

Courts-Martial (R.C.M.) 1106.    Under the heading “Gist of

Offense,” the SJA provided the following description of the

findings:

            [Specification 1:] Wrongfully used
            marijuana in the hashish form, a controlled
            substance, on divers occasions during Feb
            03.

            [Specification 2:] Wrongfully distributed
            an unknown amount of marijuana in the
            hashish form, a controlled substance, on
            divers occasions between Feb 03 and Mar 03.


In accordance with a pretrial agreement, the SJA recommended

that the convening authority reduce the period of confinement to

six months and approve the balance of the sentence.      The SJA did

not make a specific recommendation with respect to the findings.

The defense post-trial submission under R.C.M. 1105 and R.C.M.



                                  4
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


1106 did not object either to the wording of the specification

considered at trial or to the summary provided in the SJA’s

post-trial recommendation.

     In response to a defense request for relief based upon

post-trial processing delay, the SJA recommended that the

convening authority reduce the period of confinement to five

months.   The convening authority’s action of July 30, 2004,

approved the sentence recommended by the SJA, but it did not

expressly address the findings.    See R.C.M. 1107(c).

     The 82d Airborne Division issued a promulgating order on

the same date as the action, signed by Major Jeff A. Bovarnick,

a judge advocate identified as the “Chief, Criminal Law.”

Immediately above the signature, the promulgating order stated

that it was issued “BY COMMAND OF MAJOR GENERAL CALDWELL,” the

convening authority.   The promulgating order contained the

following description of the findings:

           Charge: Article 112a.       Plea:   Guilty.
           Finding: Guilty

           Specification 1: On divers occasions during
           February 2003, wrongfully used marijuana in
           the hashish form, a controlled substance,
           while receiving special pay under 37 U.S.C.
           § 310. Plea: Guilty. Finding: Guilty.

           Specification 2: On divers occasions
           between February 2003 and March 2003,
           wrongfully distributed an unknown amount of
           marijuana in the hashish form, a controlled
           substance, while receiving special pay under


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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


           37 U.S.C. § 310.    Plea:   Guilty.   Finding:
           Guilty.

The “Action” portion of the promulgating order expressly

reflected the convening authority’s action on the sentence and

did not address the findings.

    On review under Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2000), the Court of Criminal Appeals concluded that the

convening authority had “approved only” the findings of guilty

as to wrongful use and wrongful distribution and did not approve

that portion of the findings concerning use and distribution

while receiving special pay.    United States v. Alexander, No.

ARMY 20031161, slip. op. at 1 n.* (A. Ct. Crim. App. Nov. 7,

2005).   The court concluded that the omission did not prejudice

Alexander, but issued an order that “corrected” the two

specifications in the promulgating order by deleting the

reference in each to special pay.      Id.

    On December 27, 2005, pursuant to Article 67(a)(2), UCMJ, 10

U.S.C. § 867(a)(2)(2000), the Judge Advocate General of the Army

certified for our review the question of whether the Court of

Criminal Appeals erred in ordering deletion of the reference to

special pay from each of the specifications.      United States v.

Alexander, 62 M.J. 400 (C.A.A.F. 2005).




                                   6
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


                   B.   United States v. Vanderschaaf

     Vanderschaaf was charged with eight violations of Article

112a, UCMJ.   The first specification alleged that Vanderschaaf:

            did, on divers occasions, at or near
            Baumholder and Idar-Oberstein Germany,
            between on or about 4 October 2004 and 7
            November 2004, wrongfully use marijuana
            (THC).

The remaining seven specifications employed a similar format to

allege other drug offenses “on divers occasions” between

specified dates.

    Pursuant to Vanderschaaf’s pleas, a general court-martial

composed of a military judge sitting alone found him guilty of

the offenses charged under Article 112a, UCMJ.      The court-

martial sentenced Appellant to confinement for fifty months and

a dishonorable discharge.

    The SJA provided the convening authority with a post-trial

recommendation under R.C.M. 1106.       Under the heading “Gist of

Offense,” the SJA offered the following description of the

findings on the first specification:

            Did, between 4 Oct 04 and 7 Nov 04, near
            Baumholder and Idar-Oberstein, Germany,
            wrongfully use marijuana.


The SJA used similar language to describe the remaining seven

offenses.   The SJA recommended that the convening authority

reduce the period of confinement to thirty months pursuant to a


                                    7
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


pretrial agreement, provide three days of pretrial confinement

credit, and approve the balance of the sentence.      The SJA did

not make a specific recommendation with respect to the findings.

The defense post-trial submission under R.C.M. 1105 and R.C.M.

1106 did not object either to the wording of the specification

considered at trial or to the summary provided in the SJA’s

post-trial recommendation.

     The convening authority’s action, dated August 4, 2005,

approved a dishonorable discharge, reduced the period of

confinement to thirty months, and provided three days of

confinement credit.   The convening authority’s action did not

expressly address the findings.    See R.C.M. 1107(c).

     The 1st Armored Division issued a promulgating order on the

same date as the action, signed by Captain Mary Catherine

Vergona, a judge advocate identified as the “Chief, Military

Justice.”   Immediately above the signature, the promulgating

order stated that it was issued “BY COMMAND OF MAJOR GENERAL

ROBINSON,” the convening authority.     The promulgating order

contained the following description of the findings on the first

specification:

            In that [Appellant] did, on divers
            occasions, at or near Baumholder and Idar-
            Oberstein, Germany, between on or about 4
            October 2004 and 7 November 2004, wrongfully
            use marijuana (THC). Plea: Guilty.
            Finding: Guilty.


                                  8
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


The promulgating order employed similar language to describe the

remaining seven offenses.

     In the course of reviewing the case under Article 66(c),

UCMJ, the Court of Criminal Appeals issued an order that

“corrected” each of the specifications in the promulgating

order, 62 M.J. 400, by deleting the words “on divers occasions.”

United States v. Vanderschaaf, No. ARMY 20050316 (A. Ct. Crim.

App. Oct. 27, 2005).

     On December 22, 2005, pursuant to Article 67(a)(2), UCMJ,

the Judge Advocate General of the Army certified for our review

the question of whether the Court of Criminal Appeals erred in

ordering deletion of the words “on divers occasions” from each

of the specifications.    United States v. Vanderschaaf, 62 M.J.

399 (C.A.A.F. 2005).



    II.   THE RELATIONSHIP BETWEEN ADJUDGED AND APPROVED FINDINGS

     The approved findings reviewed by the Court of Criminal

Appeals under Article 66(c), UCMJ, are built on a foundation

that consists of the charges and specifications referred for

trial, the findings adjudged by the court-martial, the

recommendation of the SJA to the convening authority, and the

action of the convening authority.     This section briefly




                                  9
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


summarizes each step in that process, including the procedure

for documenting pertinent decisions.

                    A.   CHARGES AND SPECIFICATIONS

     The Manual for Courts-Martial, United States (2005

ed.)(MCM) states that “[t]he format of charge and specification

is used to allege violations” of the UCMJ.     R.C.M. 307(c)(1);

see Articles 30 and 34, UCMJ, 10 U.S.C. §§ 830, 834 (2000).        As

noted in R.C.M. 307(c)(2) and (3), the “charge” is a legal

citation, while the “specification” sets forth the alleged facts

constituting the charged offense:

          (2) Charge. A charge states the article of
          the code, law of war, or local penal law of
          an occupied territory which the accused is
          alleged to have violated.

          (3) Specification. A specification is a
          plain, concise, and definite statement of
          the essential facts constituting the offense
          charged. A specification is sufficient if
          it alleges every element of the charged
          offense expressly or by necessary
          implication.

The charge sheet, which contains the charges and specifications,

provides the basis for referral and arraignment and is included

in the record of trial.     R.C.M. 601(a); R.C.M. 904; R.C.M.

1103(b)(2)(D)(i).

          B.   THE FINDINGS ADJUDGED BY THE COURT-MARTIAL

     The court-martial announces its findings on each charge and

specification following the presentation of evidence, closing


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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


arguments, instructions, and deliberations.      R.C.M. 918-922; see

Articles 51 and 53, UCMJ, 10 U.S.C. §§ 851, 853 (2000).       R.C.M.

918(a) provides that, “[t]he general findings of a court-martial

state whether the accused is guilty of each offense charged.”

R.C.M. 918(a)(1), (2).    The rule contains specific requirements

with respect to the form of the general findings:

          (1) As to a specification. General findings
          as to a specification may be: guilty; not
          guilty of an offense as charged, but guilty
          of a named lesser included offense; guilty
          with exceptions, with or without
          substitutions; not guilty of the exceptions,
          but guilty of the substitutions, if any; not
          guilty only by reason of lack of mental
          responsibility; or, not guilty.

          (2) As to a charge. General findings as to
          a charge may be: guilty; not guilty, but
          guilty of a violation of Article __; not
          guilty only by reason of lack of mental
          responsibility; or not guilty.

Under these rules, the findings do not expressly incorporate the

text of the charges and the underlying specifications.       Instead,

the findings constitute a decision by the factfinder whether the

government has met its burden of proof beyond a reasonable doubt

as to the charged offense or as to any lesser included offense.

     On occasion, the findings contain errors or ambiguities,

and the MCM provides limited authority for corrective action by

the court-martial in specified circumstances.      See, e.g., R.C.M.

922; R.C.M. 923; R.C.M. 924.



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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


     When the court-martial is adjourned following announcement

of the sentence, “[t]he findings and sentence . . . shall be

reported promptly to the convening authority . . . .”      Article

60(a), UCMJ, 10 U.S.C. § 860(a) (2000).      Trial counsel prepares

the report of the findings and sentence, which must be submitted

in writing.   Id.; R.C.M. 1101(a).      Neither the UCMJ nor the MCM

offers any guidance as to the amount of detail that should be

provided regarding the findings.

               C.    THE CONVENING AUTHORITY’S ACTION

     After authentication of the record of trial, the convening

authority’s SJA prepares a recommendation for action by the

convening authority.    Article 60(d), UCMJ; R.C.M. 1106(a).       The

recommendation assists the convening authority in deciding “what

action to take on the sentence.”       R.C.M. 1106(d); see Article

60(c)(2), UCMJ.     Under the authority granted by Congress in

Article 60(d), UCMJ, the President has prescribed the contents

of the recommendation, including the requirement to provide

“concise information” as to “[t]he findings and sentence

adjudged by the court-martial.”    R.C.M. 1106(d)(3)(A).     The

information regarding the findings need not include either the

verbatim text of the specification or an exact description of

any exceptions or substitutions made by the court-martial.         See

United States v. Gunkle, 55 M.J. 26, 33 (C.A.A.F. 2001).



                                  12
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


     The SJA serves the recommendation on the defense prior to

submission to the convening authority.      R.C.M. 1106(f)(1).     The

defense may provide the convening authority with comments on the

recommendation, as well as other matters.      Article 60(b), (d),

UCMJ; R.C.M. 1105; R.C.M. 1106(f).       If the defense does not

comment on a deficiency in the SJA’s recommendation, the matter

is waived, absent plain error.      R.C.M. 1106(f)(6).

     Prior to taking action, the convening authority must

consider:   (1) the result of trial; (2) the recommendation of

the staff judge advocate; and (3) matters submitted by the

defense.    R.C.M. 1107(b)(3)(A).    The convening authority may

consider other sources of information, as described in R.C.M.

1107(b)(3)(B).

     Article 60(c), UCMJ, sets forth the non-discretionary and

discretionary powers of the convening authority regarding the

findings and sentence:

            (1) The authority . . . to modify the
            findings and sentence . . . is a matter of
            command prerogative . . . .

            (2) Action on the sentence of a court-
            martial shall be taken by the convening
            authority . . . .

            (3) Action on the findings of a court-
            martial by the convening authority . . . is
            not required.




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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


See R.C.M. 1107(a), (b).     If the convening authority disapproves

any findings, the decision to do so must be set forth in the

action, but R.C.M. 1107 does not require an affirmative

statement regarding approval of findings.     See R.C.M.

1107(f)(1), (3).

                      D.   THE PROMULGATING ORDER

     After taking action under R.C.M. 1107, the convening

authority issues an initial promulgating order.      R.C.M.

1114(b)(1); see R.C.M. 1114(e).     The initial promulgating order

“publishes the result of the court-martial and the convening

authority’s action . . . .”     R.C.M. 1114(a)(2).   The

promulgating order must include, among other matters, “the

charges and specifications, or a summary thereof, on which the

accused was arraigned; the accused’s pleas; the findings or

other disposition of each charge and specification; the

sentence, if any; and the action of the convening authority, or

a summary thereof.”    R.C.M. 1114(c)(1).   The promulgating order

must be “authenticated by the signature of the convening

authority . . . or a person acting under the direction of such

authority.”   R.C.M. 1114(e).

         E.   CORRECTIVE ACTION BY THE CONVENING AUTHORITY

     The convening authority may modify the action before it is

published or served on the accused.     R.C.M. 1107(f)(2).    During



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Vanderschaaf, No. 06-5003/AR


the period between service of the action on the defense and

forwarding of the record for appellate review, the convening

authority may modify the action if “the modification does not

result in action less favorable to the accused than the earlier

action.”   R.C.M. 1107(f)(2); see R.C.M. 1110(f); R.C.M. 1107(h).

      After the record has been forwarded for appellate review,

the convening authority cannot modify the action unless a higher

reviewing authority directs the modification of an “illegal,

erroneous, incomplete, or ambiguous action.”      R.C.M. 1107(f)(2).

Separate rules regarding modification of the action apply in

cases where the accused has waived formal appellate review.       See

id.   Reviewing authorities may direct a convening authority to

correct an action that “is incomplete, ambiguous, or contains

clerical error.”   R.C.M. 1107(g).     The convening authority must

issue a supplementary promulgating order when “[a]ny action [is]

taken on the case subsequent to the initial action . . . .”       See

R.C.M. 1114(b)(2).

      F.   THE FINDINGS “APPROVED” BY THE CONVENING AUTHORITY

      A Court of Criminal Appeals exercises jurisdiction over a

broad range of cases under Article 66(b), UCMJ, including:        (1)

every case in which the approved sentence extends to a punitive

separation or confinement for a year or more unless mandatory

review is waived; (2) every case involving an approved death



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Vanderschaaf, No. 06-5003/AR


sentence; and (3) any other case submitted to the Court of

Criminal Appeals by the Judge Advocate General under Article

69(d), UCMJ, 10 U.S.C. § 869(b) (2000).

       Under Article 66(c), UCMJ, a Court of Criminal Appeals “may

act only with respect to the findings and sentence as approved

by the convening authority.”    The focus on “findings . . .

approved” by the convening authority contemplates that the

findings must be endorsed or ratified by the convening

authority.

       The relationship between the Article 66(c), UCMJ,

requirement for approval of the findings and the Article

60(c)(3), UCMJ, statement that “[a]ction on the findings . . .

is not required” reflects the competing goals served by the

legislation governing the convening authority’s role on

findings.    Under the UCMJ as originally enacted in 1950, the

convening authority served in a judicial role, performing a

first-level legal review of findings and sentence.      Act of May

5, 1950, Pub. L. No. 81-506, ch. 169, 64 Stat. 107, 128 (Article

64).   As the role of judges at the trial and appellate levels

increased over time, particularly after enactment of the

Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335,

Congress reexamined the requirement for a full legal review of

the findings and sentence at the convening authority level.       See



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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, No. 06-5003/AR


S. Rep. No. 98-53, at 7 (1983).    In the Military Justice Act of

1983, Pub. L. No. 98-209, 97 Stat. 1393, Congress removed the

requirement for the convening authority to conduct a legal

review or otherwise act as an “appellate tribunal,” while

retaining the convening authority’s power to modify the findings

and sentence as a matter of “command prerogative.”      S. Rep. No.

98-53, at 7, 19, 21.   As part of the legislation, Congress

specifically stated in Article 60(c)(3), UCMJ, that the

convening authority was not required to act on the findings.

     We have interpreted the approval requirement of Article

66(c), UCMJ, in a manner consistent with the congressional goal

of reducing the post-trial judicial responsibilities of the

convening authority.   If the convening authority expressly acts

to approve, disapprove, or modify particular findings of the

court-martial, the result of the convening authority’s action

constitutes the approved findings reviewed by the Court of

Criminal Appeals under Article 66(c), UCMJ.      See United States

v. Diaz, 40 M.J. 335, 343 (C.M.A. 1994).

     In the typical case, however, the convening authority’s

action only addresses the sentence, and does not mention the

findings.   In such a case, the Court of Criminal Appeals may

presume that the convening authority approved the findings

reached by the court-martial and reported in the SJA’s post-



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Vanderschaaf, No. 06-5003/AR


trial recommendation, absent material evidence to the contrary.

If the list of findings in the SJA’s post-trial recommendation

omits any reference to a particular finding, see R.C.M.

1106(d)(3)(A), the Court of Criminal Appeals may not presume

that the convening authority implicitly approved or disapproved

the omitted finding.   See Diaz, 40 M.J. at 343.     In such a case,

the court must return the case for a new SJA review and

convening authority action unless the court determines that the

affected finding should be disapproved at the appellate level

“in the interest of efficient administration of justice.”         See

id. at 345 (disapproving findings omitted from the SJA’s

recommendation and affirming the balance of the findings where

such actions would not prejudice the appellant and would

“adequately vindicate the interests of military society”).



                          III.   DISCUSSION

     The certified issues before us ask, in effect, what

findings were approved by the convening authority in each case.

There is no question in each case as to what findings were

adjudged by the court-martial.    Alexander was convicted of using

and distributing illegal drugs “while receiving special pay,”

and Vanderschaaf was convicted of using and distributing illegal

drugs on “divers occasions.”     In each case, the convening



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Vanderschaaf, No. 06-5003/AR


authority did not expressly approve the findings.      In that

context, we must determine whether the Court of Criminal Appeals

should have concluded in each case that the convening authority

approved the findings adjudged by the court-martial.

      The present cases are distinguishable from Diaz, in which a

number of specifications were omitted in their entirety from

both the SJA’s post-trial recommendation and the convening

authority’s initial promulgating order.     Diaz, 40 M.J. at 337-

38.   By contrast, in each of the cases now before us, the SJA’s

post-trial recommendation listed each charge and specification

that resulted in a finding of guilty, provided details as to the

time and place of the offenses, described the acts at issue, and

set forth the nature of the illegal drugs.

      Pursuant to R.C.M. 1106(d)(3)(A), the SJA’s recommendation

may provide the convening authority with “concise information”

about the findings, “without specifying exactly what acts the

appellant was found guilty of or what language was excepted or

substituted.”   Gunkle, 55 M.J. at 33 (citation and quotation

marks omitted).   For the specific purpose of determining what

offenses were approved by a convening authority, we are guided

by the post-1983 congressional view of the limited role of the

convening authority as to findings.     Although disapproval of the

findings requires express action by the convening authority, the



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Vanderschaaf, No. 06-5003/AR


convening authority is not required to take express action to

approve the findings.    See Article 60(c)(3), UCMJ; R.C.M.

1107(f)(1), (3).   In that context, the SJA’s description of a

finding is sufficient if it provides a general depiction of the

offense, without the necessity for reciting the details of each

element and aggravating factor.

     In the present cases, the descriptions provided by each SJA

were sufficient for that purpose.      To the extent that the court

below concluded otherwise, the court erred.

     We also note that even if the relationship between the

adjudged and approved findings in one of these cases had

disclosed an ambiguity, the case should have been returned for a

new SJA recommendation and convening authority action unless the

case fit within the limited authority for appellate correction

under Diaz.

     We emphasize that our analysis in the present case relates

solely to the identification of the findings approved by a

convening authority who did not take express action on the

findings adjudged by a court-martial.     The cases before us do

not involve the separate question of what information about a

finding must be provided by an SJA for purposes of the convening

authority’s action on the sentence or for purposes of expressly

acting on the findings.    In such a case, the challenge to the



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Vanderschaaf, No. 06-5003/AR


adequacy of the SJA’s recommendation does not involve a dispute

about whether the convening authority approved or disapproved a

particular finding; rather, the issue is whether the SJA

misstated the nature of the offense, thereby prejudicing the

right of an accused to an informed convening authority action.

Where, for example, the SJA has provided incorrect or incomplete

information that prejudices an accused’s right to have a

clemency request judged on the basis of accurate information,

the accused is entitled to a new SJA recommendation and

convening authority action.    See, e.g., United States v.

Wellington, 58 M.J. 420, 427-28 (C.A.A.F. 2003).      Neither

Alexander nor Vanderschaaf has claimed that omission in the

post-trial recommendation of references to commission of drug

offenses “on divers occasions” or “while receiving special pay”

constituted prejudicial error.

     We also note that our conclusion involves a legal

determination, and does not express a view on the desirability

of the procedure employed in these cases as a matter of policy.

It is possible that the potential for error could be reduced if

the recommendation prepared by an SJA included the findings

portion of a proposed promulgating order, thereby providing

greater assurance of congruence between the recommendation and

the promulgating order.    However, in view of the apparent



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Vanderschaaf, No. 06-5003/AR


infrequency of the circumstances presented in these appeals and

the fact that the problem is not one that affects the trial

process, we do not find it necessary to establish such a

requirement.



                           IV.   CONCLUSION

     The corrective action taken by the court below in each of

these cases was not required as a matter of law.      The record in

each case is consistent with the presumption that the convening

authority approved the findings adjudged at trial.      The court

below must now determine whether, in that context, those

findings should be approved.     See Article 66(c), UCMJ.

     Accordingly, the decision of the United States Army Court

of Criminal Appeals is reversed in each case.      The record of

trial in each case is returned to the Judge Advocate General of

the Army for remand to the Court of Criminal Appeals for further

review under Article 66(c), UCMJ.




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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR

     ERDMANN, Judge (concurring in part and dissenting in part):

     I agree with the majority that the United States Army Court

of Criminal Appeals could not direct a modification to the

statement of the charges and specifications in the promulgating

order.    The promulgating order includes “the charges and

specifications” and “the findings or other disposition of each

charge and specification” as a reflection of “the result of

trial.”   Rule for Courts-Martial (R.C.M.) 1114(a)(1),(c)(1).

Changing the statement of the charges and specifications, as the

Court of Criminal Appeals directed, causes that promulgating

order to be inaccurate since it no longer reflects what actually

happened at trial.   If the lower court wants to make some

amendment to the findings of a court-martial, the proper course

is to disapprove the findings or some portion of the findings

and issue a supplemental order reflecting that action.

     I depart, however, from the majority to the extent that it

suggests that the descriptions of the offenses in these cases by

the staff judge advocates (SJAs) were adequate to support a

presumption that the convening authorities implicitly approved

all aspects of the findings.   A presumption arises because

certain foundational facts are known or proven.   See Virginia v.

Black, 538 U.S. 343, 395 (2003) (“A presumption is a rule of law

that compels the fact finder to draw a certain conclusion or a

certain inference from a given set of facts.”).   The
United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR

foundational facts for a presumption that the convening

authority implicitly approved findings can come only from one of

two documents.   One of those documents is the R.C.M. 1101(a)

report of the results of trial.   In these cases, however, we do

not know whether the convening authorities ever saw the R.C.M.

1101(a) reports of the results of trial.

     The other document is the R.C.M. 1106 post-trial

recommendation of the SJA.   In these cases, the SJA

recommendations are the only documents we can conclude were

before the convening authorities at action.   Thus, any

presumption of what findings were implicitly approved must have

its origin in the SJAs’ “concise information as to . . . [t]he

findings . . . adjudged by the court-martial.”    R.C.M.

1106(d)(3)(A).   “[T]he more compelling evidence of those

[findings] that implicitly were approved by the convening

authority in his action are those of which he must be made aware

as a matter of law -- those in the recommendation.”    United

States v. Diaz, 40 M.J. 335, 342 (C.M.A. 1994).

     A convening authority cannot implicitly approve matters of

which he was not aware.   In these cases the convening

authorities were not made aware of the “special pay” sentence

aggravator in Alexander’s case or the fact that Vanderschaaf’s

drug offenses were committed on “divers occasions”.    It




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Vanderschaaf, 06-5003/AR

therefore cannot be presumed that those findings were implicitly

approved.

     In Diaz, this court concluded that implied approval of the

findings was a necessary implication resulting from the fact

that, although the Military Justice Act of 1983, Pub. L. No.

98,209, 97 Stat. 1393, removed the requirement for a convening

authority to specifically act on findings, “Congress did not

modify in any respect Article 66, which addresses appellate

review by a Court of [Criminal Appeals].”   40 M.J. at 340-41.

The Courts of Criminal Appeals “act only with respect to the

findings and sentence as approved by the convening authority.”

Article 66(c), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 866(c) (2000).   Thus, Diaz concluded that implicit

approval of findings was “necessary in order to make sense of

the statutory predicate for the appellate authority of the Court

of [Criminal Appeals] under Article 66(c).”   40 M.J. at 341.

The holding and logic of Diaz remains intact.   Congress has not

amended Article 66(c), UCMJ, to modify the requirement that the

Courts of Criminal Appeals review “findings . . . as approved by

the convening authority.”   A presumption that a convening

authority implicitly approved findings is necessary to establish

what findings the Court of Criminal Appeals must review.

     In these cases, the convening authorities were not informed

of certain portions of the findings; it cannot be presumed that


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United States v. Alexander, No. 06-5004/AR and United States v.
Vanderschaaf, 06-5003/AR

any rule of implicit approval runs to those portions of the

findings; and the scope of the Court of Criminal Appeals’ review

is uncertain.   The Court of Criminal Appeals should have sought

clarification by means of a new action or dismissed portions of

the findings before Article 66, UCMJ, review could be conducted.

See Diaz, 40 M.J. at 345.   The majority’s rule essentially

permits “close enough” to determine the scope of review under

Article 66(c), UCMJ.   I cannot join in that conclusion.




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