Court of Appeals for the Armed Forces

11/2/2023

United States v. Parino-Ramcharan, AFCCA.

Julie link

11/2/2023 11:45:47

We did not raise this issue in our Petition; the issue presented is unrelated to the jurisdictional issue on which CAAF granted. The Govt moved to dismiss the petition for lack of jurisdiction after we filed the Petition and Supp and we filed an Answer. Essentially, CAAF has granted the petition on the Govt MTD. The crux of the issue is that, in cases with subjurisdictional sentences falling under Art. 69 of the FY22 NDAA, the Govt asserts that convicted servicemembers are not entitled to any level of review because of a scrivener's error in the text of the statute. The Govt conceded there was an error when this case was before AFCCA and made the same concession in Zier. Before CAAF, however, the Govt does not make the same concession.

Brenner M. Fissell

11/2/2023 15:35:33

What is the scrivener's error?

Julie link

11/2/2023 16:36:35

The Military Justice Review Group recommended in 2013 that Congress amend Art. 69(c), inter alia, to provide for TJAG to set aside the findings or sentence in a case reviewed under Art. 65(d), UCMJ and to give the CCAs discretionary authority to review the action taken by TJAG in an application for grant of review. The House version of FY22 NDAA amended Art. 69(c) to authorize TJAG to review and set aside the findings and sentence in a case reviewed under Art. 65(b), but that's a reference to cases in which the accused waives the right to appellate review. That's the scrivener's error.

The Senate version of FY22 NDAA references Art. 65(d). The conference reports make clear that the intent was to amend Art. 69(c) to authorize TJAG review and to give the CCAs discretionary review authority. Ultimately, the House version was enacted and signed into law by the President. The 2019 MCM, the 2019 updated Appendix 2 to the MCM, RCM 1201, and AFI 51-201 all refer to Art. 65(d), not Art. 65(b). While these are not statutes, they reflect the common understanding that Congress intended to authorize TJAG review under Art. 65(d), not (b) and to authorize discretionary review by the CCAs.

Donald G Rehkopf Jr.

11/2/2023 13:49:14

Once conceded in the same case, the government is bound by it.

I've got an Army case with the same subjurisdictional issue pending at CAAF, but the Army did not concede anything below. My case also challenges the denial of Detailed Appellate Defense Counsel at the CCA and Supp stages of these cases, as a Sixth Amendment violation.

This would be a perfect case for CAAF to expressly invite amici curiae from the other Branches, interested organizations, and military law scholars to help inform the Court.

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