Tuesday, May 3, 2011

Latest CAAF Grants

CAAF granted review of 2 cases last Thursday.  One is a Fosler trailer:

No. 11-0293/CG. U.S. v. Kenya BERNARD. CCA 0262. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

No briefs will be filed under Rule 25.


The other grant and summary disposition had me shaking my head.  I assume this was a "merits" case (no appellate issues raised), and CAAF noticed the glaring error:

No. 11-0393/NA. U.S. v. Daniel W. BARTOLO. CCA 201000212. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the court below affirmed a sentence that included “total forfeiture of pay and allowances” after the convening authority specifically disapproved that punishment. Accordingly, it is ordered that said petition is granted on the following specified issue:

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM "TOTAL FORFEITURE OF PAY AND ALLOWANCES" WHERE THE CONVENING AUTHORITY SPECIFICALLY DISAPPROVED SUCH PUNISHMENT. SEE ARTICLE 66(c), UCMJ.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a dishonorable discharge, confinement for 70 months, and a reduction to pay grade E-3.