4 Comments
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.
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Brenner M. Fissell
11/2/2023 15:35:33
What is the scrivener's error?
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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.
Donald G Rehkopf Jr.
11/2/2023 13:49:14
Once conceded in the same case, the government is bound by it.
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