United States v. Nerad

                        UNITED STATES, Appellant

                                         v.

                   Michael T. NERAD, Senior Airman
                       U.S. Air Force, Appellee

                                  No. 09-5006
                           Crim. App. No. 36994

       United States Court of Appeals for the Armed Forces

                         Argued December 8, 2009

                          Decided July 27, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a separate
opinion concurring in the result. STUCKY, J., filed a separate
dissenting opinion.

                                     Counsel

For Appellant: Lieutenant Colonel Jeremy S. Weber (argued);
Colonel Douglas P. Cordova and Gerald R. Bruce, Esq. (on brief).

For Appellee: Dwight H. Sullivan, Esq. (argued); Captain
Jennifer J. Raab and Captain Tiffany M. Wagner (on brief); Major
Shannon A. Bennett.

Amicus Curiae for Appellant: Colonel Norman F. J. Allen, Major
Sara M. Root, Captain Sasha N. Rutizer, and Captain Sarah J.
Rykowski (on brief) -- for the Army Appellate Government
Division.

Amicus Curiae for Appellee: Michelle M. Lindo McCluer, Esq.,
Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A.
Saltzburg, Esq. (on brief) -- for the National Institute of
Military Justice.

Military Judge:    Gary M. Jackson


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nerad, No. 09-5006/AF


    Judge RYAN delivered the opinion of the Court.

    In accordance with his pleas, a general court-martial,

composed of a military judge sitting alone, found Appellee

guilty of failure to obey a lawful order, wrongful disposition

of military property, larceny, sodomy, possession of child

pornography, and adultery, violations of Articles 92, 108, 121,

125, and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 892

, 908, 921, 925, 934 (2006).   The military judge sentenced

Appellee to a dishonorable discharge, confinement for twelve

months, forfeiture of all pay and allowances, a reprimand, and a

reduction to the grade of E-1.   The convening authority approved

the findings and sentence.

    The United States Air Force Court of Criminal Appeals (CCA)

reviewed the case pursuant to Article 66(c), UCMJ, 

10 U.S.C. § 866

(c) (2006).   United States v. Nerad, 

67 M.J. 748, 749

 (A.F.

Ct. Crim. App. 2009).   Despite concluding that there was no

legal or factual error in the case, it nonetheless set aside and

dismissed the finding of guilty to the child pornography offense

based on the “unique circumstances” of the case.   

Id. at 752-53

;

see infra Part I.   The court approved the remaining findings and

approved the sentence as adjudged.   

67 M.J. at 753

.

    The Judge Advocate General of the Air Force certified the

case to this Court for review of the following issue:




                                 2
United States v. Nerad, No. 09-5006/AF


     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     IN NULLIFYING APPELLEE’S FACTUALLY AND LEGALLY
     SUFFICIENT CONVICTION FOR POSSESSION OF CHILD
     PORNOGRAPHY.

We hold that while CCAs have broad authority under Article

66(c), UCMJ, to disapprove a finding, that authority is not

unfettered.   It must be exercised in the context of legal -- not

equitable -- standards, subject to appellate review.   United

States v. Quiroz, 

55 M.J. 334, 339

 (C.A.A.F. 2001).    Relatedly,

while Article 66(c), UCMJ, affords a CCA broad powers, when

faced with a constitutional statute a CCA “cannot, for example,

override Congress’ policy decision, articulated in a statute, as

to what behavior should be prohibited.”   United States v.

Oakland Cannabis Buyers’ Coop., 

532 U.S. 483, 497

 (2001).

     Here, it is unclear from the CCA’s opinion whether it

exceeded its authority by disapproving a finding with reference

to something other than a legal standard, potentially infringing

on the sole prerogative of the convening authority under Article

60, UCMJ, 

10 U.S.C. § 860

 (2006), to disapprove a finding based

on purely equitable grounds.   It is also unclear from the CCA’s

opinion whether the CCA abused its discretion by refusing to

affirm a finding because it thought it “unreasonable” to

criminalize such conduct “under the circumstances,” even though

the circumstances fell squarely within the definition of child

pornography crafted by Congress and referenced by the CCA.    18



                                 3
United States v. Nerad, No. 09-5006/AF


U.S.C. § 2256(1) (2006) (defining “minor” as “any person under

the age of eighteen years”), cited in Nerad, 

67 M.J. at 751

.

Accordingly, the case is remanded for further proceedings before

the lower court.

                                 I.

                                 A.

     The facts relevant to the charge and specification

dismissed by the CCA involve a consensual sexual relationship

between Appellee, who was married, and GL, a seventeen-year-old

female.   They each took sexually explicit pictures of one

another, including pictures in which they were engaged in sexual

conduct with each other.   Based on his possession of these

sexually explicit pictures of GL, the Government charged

Appellee with possession of child pornography in violation of

Article 134, UCMJ.

     Appellee not only did not contest the child pornography

charge at trial, but prior to entering his pleas he signed a

“Notification of Sex Offender Registration Requirement,” which

informed him that he might be required to register as a sex

offender upon conviction of the charged offense.

     In his clemency request to the convening authority,

Appellee asked that the convening authority set aside the child

pornography conviction.    See generally Article 60(c)(1), UCMJ

(providing that the convening authority may exercise “sole


                                  4
United States v. Nerad, No. 09-5006/AF


discretion” as a matter of “command prerogative” in deciding

whether to set aside or modify the findings or sentence); Rule

for Courts-Martial (R.C.M.) 1107(c) Discussion (noting that the

convening authority may set aside a finding “for any reason or

no reason”).   While acknowledging that he had committed “a

crime,” that the circumstances did not provide “a defense,” and

that he was “in fact, guilty of this offense,” Appellee

requested that the convening authority take into account the

particular circumstances of his relationship with GL and

“determine [that] a federal conviction for this offense is not

appropriate in my case.”    The convening authority declined to

grant this clemency request.

                                  B.

      Appellee did not challenge his convictions in his

submission of issues to the CCA under Article 66(c), UCMJ.

Rather, he requested sentence relief through an Eighth Amendment

challenge to the conditions of his post-trial confinement, a

request that the lower court rejected.    Nerad, 

67 M.J. at 749

-

50.

      On an issue raised sua sponte, however, the CCA determined

that it had the power to set aside the child pornography finding

even though it could “find no legal error and the appellant

never raised an issue at trial, pleading guilty to that

offense.”   

Id. at 751

.    As justification for this action the CCA


                                   5
United States v. Nerad, No. 09-5006/AF


noted that Appellee “was in the unique position of having a

relationship with someone he could legally see naked and, but

for his existing marriage, legally have sex with, but could not

legally possess nude pictures . . . that she took [of herself]

and sent to him.”   

Id. at 751

.   The CCA concluded that

“possession of the photos under these circumstances is not the

sort of conduct which warrants criminal prosecution for

possessing child pornography and that this conviction

unreasonably exaggerates the criminality of his conduct.”    

Id.

The CCA took particular note of the fact that a conviction for

child pornography would require Appellee to register as a sex

offender and endure “the significant consequences of such

registration.”   

Id. at 752

.   Based upon these considerations,

the CCA dismissed the finding of guilty to the child pornography

offense, affirmed the remaining findings, and approved the

sentence as adjudged.   

Id. at 752-53

.

                                  II.

     Article 66(c), UCMJ, states, in relevant part, that a CCA

“may affirm only such findings of guilty, and the sentence or

such part or amount of the sentence, as it finds correct in law

and fact and determines, on the basis of the entire record,

should be approved.”    Broken into its constituent parts, this

statutory language provides that a CCA may affirm only such

findings and sentence that it:    (1) finds correct in law; (2)


                                   6
United States v. Nerad, No. 09-5006/AF


finds correct in fact;1 and (3) determines, on the basis of the

entire record, should be approved.    United States v. Tardif, 

57 M.J. 219, 224

 (C.A.A.F. 2002).2   At issue in this case is the

scope and meaning of the “should be approved” language.    The

scope and meaning of Article 66(c), UCMJ, is a matter of

statutory interpretation, a question of law reviewed de novo.

United States v. Lopez de Victoria, 

66 M.J. 67, 73

 (C.A.A.F.

2008).

     The parties agree, consistent with our precedent, that a

CCA may approve only that part of a sentence that it finds



1
  The phrase “correct in law and fact,” Article 66(c), UCMJ, is
used throughout our cases as synonymous with legal and factual
sufficiency. See, e.g., United States v. Beatty, 

64 M.J. 456, 458

 (C.A.A.F. 2007) (equating the two while discussing the
extent of a CCA’s power under Article 66(c), UCMJ, concluding
that “[a] Court of Criminal Appeals may not affirm the findings
and sentence of a court-martial unless it finds them to be both
factually and legally sufficient. Article 66(c), UCMJ”); see
also United States v. Reed, 

54 M.J. 37, 41

 (C.A.A.F. 2000) (“The
test for legal sufficiency requires courts to review the
evidence in the light most favorable to the Government. If any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt, the evidence is legally
sufficient. . . . The test for factual sufficiency is whether,
after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, the
court is convinced of the accused’s guilt beyond a reasonable
doubt.”) (citations and quotation marks omitted). The latter
determination is unique to the military justice system, as it
requires a CCA to review the record de novo and determine
whether the accused is guilty beyond a reasonable doubt.
2
   “In considering the record, it may weigh the evidence, judge
the credibility of witnesses, and determine controverted
questions of fact, recognizing that the trial court saw and
heard the witnesses.” Article 66(c), UCMJ.

                                  7
United States v. Nerad, No. 09-5006/AF


“should be approved.”3   See, e.g., United States v. Christopher,

13 C.M.A. 231, 235-36

, 

32 C.M.R. 231, 235-36

 (1962).   In

reviewing the exercise of this power, we ask if the CCA abused

its discretion or acted inappropriately -- i.e., arbitrarily,

capriciously, or unreasonably -- as a matter of law.   See, e.g.,

United States v. Jones, 

39 M.J. 315, 317

 (C.M.A. 1994) (“We will

only disturb the [CCA’s] reassessment [of a sentence] in order

to prevent obvious miscarriages of justice or abuses of

discretion.”) (citations and quotation marks omitted);

Christopher, 

13 C.M.A. at 236

, 

32 C.M.R. at 236

.

     The parties disagree, however, on the scope of a CCA’s

power as to findings.    Appellee argues that “should be approved”


3
  We note that Jackson v. Taylor, 

353 U.S. 569

 (1957), does not
control the question now before us because the Supreme Court had
no occasion to address the “should be approved” language of
Article 66(c), UCMJ, in the context of a sentence that was
correct in law and fact. Jackson itself involved a situation
where the sentence imposed by the court-martial was no longer
“correct,” or even lawful, because the original sentence
exceeded the maximum punishment permissible for the finding that
remained. 

Id. at 570, 573-74

. In that context the Supreme
Court affirmed the power of a board of review -- the precursor
to today’s CCAs -- to modify a sentence “in the manner it finds
appropriate.” 

Id. at 579

. Jackson did not, however, limit
boards of review to acting in instances where a sentence was not
“correct.” Instead, it reiterated a broader proposition,
consistent with the plain meaning of the statute: CCAs have the
power to affirm only so much of a sentence as they find
“appropriate.” 

Id.

 In any event, the dissent’s interpretation
of Jackson, United States v. Nerad, __ M.J. __ (8-10) (C.A.A.F.
2010) (Stucky, J., dissenting), is squarely at odds with this
Court’s interpretation. See United States v. Sills, 

56 M.J. 239, 240

 (C.A.A.F. 2002); United States v. Miller, 

10 C.M.A. 296, 299

, 

27 C.M.R. 370, 373

 (1959).

                                  8
United States v. Nerad, No. 09-5006/AF


means that the CCA has unfettered discretion to disapprove, for

any reason or no reason at all, a finding that is correct in law

and fact and that the exercise of that discretion is not subject

to appellate review.   The Government takes the opposite

position, arguing that if a finding is correct in law and fact

the CCA must approve it.   Consistent with our case law, we adopt

neither position.   See Quiroz, 

55 M.J. at 338-39

 (permitting the

CCA to disapprove legally and factually sufficient findings but

remanding to ensure the lower court applied a legal as opposed

to an equitable standard); Tardif, 

57 M.J. at 224

 (recognizing

that a CCA has discretion under Article 66(c), UCMJ, to fashion

an appropriate remedy for excessive post-trial delay with

respect to findings or sentences that are legally and factually

correct).

                                A.

     We begin from the settled premise that in exercising its

statutory mandate a CCA has discretion to approve only a

sentence, or such part of a sentence, that it “determines, on

the basis of the entire record, should be approved,” Article

66(c), UCMJ, even if the sentence is “correct.”   See United

States v. Atkins, 

8 C.M.A. 77, 79

, 

23 C.M.R. 301, 303

 (1957)

(“In short, the criterion for the exercise of the board of

review’s power over the sentence is not legality alone, but

legality limited by appropriateness.”).   Even that broad


                                 9
United States v. Nerad, No. 09-5006/AF

discretion is not unfettered, however.    See United States v.

Lacy, 

50 M.J. 286, 287-89

 (C.A.A.F. 1999) (reviewing a CCA’s

sentence appropriateness determination for abuse of discretion).

     The Government argues that this has no bearing on the

certified question because “should be approved” has meaning only

with respect to a CCA’s power to disapprove or modify a

sentence.   We disagree that “should be approved” has no meaning

with respect to a CCA’s action on findings.    “[F]indings” and

“sentence” are grammatically coupled in Article 66(c), UCMJ,

joined equally with “and determines . . . should be approved.”

The phrase “should be approved” must have meaning with respect

to findings as well as sentence and modify both.    When a

modifier is set off from a series of antecedents by a comma, the

modifier should be read to apply to each of those antecedents.

Bingham, Ltd. v. United States, 

724 F.2d 921

, 925-26 n.3 (11th

Cir. 1984); see also, e.g., Elliot Coal Mining Co. v. Director,

Office of Workers’ Comp. Programs, 

17 F.3d 616

, 630 (3d Cir.

1994) (“[U]se of a comma to set off a modifying phrase from

other clauses indicates that the qualifying language is to be

applied to all of the previous phrases and not merely the

immediately preceding phrase.”).     Therefore, it is impossible --

based on the statute -- to acknowledge a CCA’s power to modify

or disapprove a “correct” sentence while disagreeing it has any

such power with respect to a “correct” finding.    Nor is such a


                                10
United States v. Nerad, No. 09-5006/AF

view consistent with our limited precedent on this question.

See, e.g., Quiroz, 

55 M.J. at 338-39

; United States v. Drexler,

9 C.M.A. 405, 408

, 

26 C.M.R. 185, 188

 (1958).

                                B.

     Despite the statutory text and our case law, the Government

and dissent, Nerad, __ M.J. at __ (12-15) (Stucky, J.,

dissenting), rely on language in United States v. Waymire, 

9 C.M.A. 252

, 

26 C.M.R. 32

 (1958), for the proposition that

whatever the CCA’s power with respect to sentence, the CCA has

no discretion when it comes to approving legally and factually

sufficient findings.   The Waymire Court did assert that:

     Unlike a convening authority, who may disapprove
     findings of guilt for any reason, or for no reason at
     all, a board of review may only disapprove such
     findings as it finds incorrect in law and fact. It
     was never intended that a board of review be given the
     power to disapprove findings in its “discretion.”

Id. at 255

, 26 C.M.R. at 35 (citation omitted).   But in that

case the board of review sidestepped the legal issues entirely,

acting instead in a manner “not unlike an arbitration or

mediation board designed to effect an adequate and satisfactory

compromise between negotiating parties.”   Id. at 254, 26 C.M.R.

at 34.   On appeal, the Judge Advocate General of the Army asked

this Court to consider “whether a board of review had the power

to set aside findings of guilt without first deciding whether

the court-martial had jurisdiction, or whether such findings



                                11
United States v. Nerad, No. 09-5006/AF

were incorrect in law and fact.”       Id. at 253, 26 C.M.R. at 33.

This Court held that the board did not have such a power,

stating that “in setting aside the forgery conviction solely on

the basis of ‘substantial justice,’ [the board of review]

exceeded the scope of its authorized statutory functions.”       Id.

at 255, 26 C.M.R. at 35.    We did not present a holding on what

the words “should be approved” entailed in the context of a

board’s action on legally and factually sufficient findings --

nor could we, since the board had not even attempted to

undertake such sufficiency determinations.      Our use of the

phrase “substantial justice” served to reject the board’s

assumption that its function was to forge an equitable

compromise between the parties.    Waymire thus serves as

precedent for the unremarkable proposition that CCAs may not

disapprove findings on equitable grounds or disregard their

statutory duty to determine legal and factual sufficiency.4

     Further, the language the Government and the dissent draw

from Waymire has not functioned in practice as precedent on the

question whether the CCAs may disapprove findings that are

correct in law and fact.5   Indeed, one month after Waymire, this


4
  This holding supports a conclusion we reach with respect to the
certified question: a CCA may not disapprove a finding based
solely on equitable grounds.
5
  It is instructive that in two of this Court’s relatively recent
cases addressing the valid scope of CCA action under Article
66(c), UCMJ -- Tardif, 

57 M.J. at 230

 (Sullivan, S.J.,

                                  12
United States v. Nerad, No. 09-5006/AF

Court decided Drexler with language suggesting that intermediate

courts had such a power:

     Apart from the special rules of law applicable in this
     area, there is the general principle that an appellate
     tribunal can dismiss even a valid finding as part of
     its action in correcting errors at the trial and to
     insure justice to the accused. This general power is
     possessed by the boards of review.

9 C.M.A. at 408, 26 C.M.R. at 188 (citations omitted);6 see also

Quiroz, 

55 M.J. at 338

 (noting that we have described Congress’s

grant of authority to the CCAs under Article 66(c), UCMJ, as an

“‘awesome, plenary, de novo power,’” but denying that this power

is equitable in nature (quoting United States v. Cole, 

31 M.J. 270, 272

 (C.M.A. 1990))); United States v. Claxton, 

32 M.J. 159, 162

 (C.M.A. 1991) (holding that a CCA may disregard doctrines

like waiver “in the interest of justice” to reach legal errors

that would otherwise be uncognizable).




dissenting), and Quiroz, 

55 M.J. at 345

 (Sullivan, J.,
dissenting) -- Waymire was cited in dissent for the very
proposition relied upon by the Government and the dissent in
this case. See Nerad, __ M.J. at __ (12-15) (Stucky, J.,
dissenting). Perhaps recognizing this, the Government did not
even raise Waymire until its reply brief to this Court.
6
  Drexler involved the disapproval of charges that were
multiplicious. 

Id. at 407

, 26 C.M.R. at 187. Multiplicious
charges may be correct in law and fact (under the applicable
standards of review for legal and factual sufficiency) but may
nonetheless be disapproved by the CCA (using a legal standard).
See Quiroz, 

55 M.J. at 338-39

. Drexler is thus consistent with
our view that a CCA may only set aside a legally and factually
sufficient finding on the basis of a legal -- as opposed to
equitable -- ground.

                               13
United States v. Nerad, No. 09-5006/AF

     Today’s decision does not overrule Waymire:     Waymire’s

holding on the certified issue in that case -- that a CCA may

not decide a case on equitable grounds and avoid its duty to

determine whether a finding is correct in law and fact, 9 C.M.A.

at 254-55, 26 C.M.R. at 34-35 -- remains undisturbed.    Waymire

does not answer the certified issue in this case.    See Kokkonen

v. Guardian Life Ins. Co. of Am., 

511 U.S. 375, 379

 (1994) (“It

is to the holdings of our cases, rather than their dicta, that

we must attend . . . .”).   And dictum otherwise contained in the

case is both contrary to the statutory text and has been eroded

by subsequent decisions.

                                C.

     While we acknowledge that a CCA’s power is not as narrow as

the Government suggests, nor as broad as Appellee desires, this

does not answer the separate question of its scope with respect

to a finding that is correct in law and fact.

     At first glance, the language “it finds . . . should be

approved” in Article 66(c), UCMJ, might appear to empower a CCA

to modify both findings and sentence for any reason or no reason

at all, which is Appellee’s position.    Admittedly, this Court

has used broad language with respect to the CCAs’ discretion

that could be read to support this interpretation.    See, e.g.,

Tardif, 

57 M.J. at 223

 (recognizing the “broad power of the

Courts of Criminal Appeals to protect an accused”); Claxton, 32


                                14
United States v. Nerad, No. 09-5006/AF

M.J. at 162 (indicating that Article 66(c), UCMJ, confers to

CCAs “carte blanche to do justice”); see also United States v.

Lanford, 

6 C.M.A. 371, 379

, 

20 C.M.R. 87, 95

 (1955) (stating

that the distinction in labeling CCA action as clemency rather

than judicial action “matters little, so long as it is clearly

understood . . . [that the Boards of Review maintain] the power

to treat an accused with less rigor than their authority

permits”) (citation and quotation marks omitted).   For “[i]n

enacting the UCMJ in 1950, Congress saw fit to give the Boards

of Review . . . very broad powers with respect to the approved

findings and sentences of courts-martial.”   Beatty, 

64 M.J. at 458

.   We have repeatedly -- “[i]n words that have often been

cited” -- characterized a CCA’s Article 66(c), UCMJ, authority

as an “awesome, plenary de novo power of review [that] grants

unto the Court . . . authority to, indeed, ‘substitute its

judgment’ for that of the military judge. . . . [and] for that

of the court members.”7   Beatty, 

64 M.J. at 458

 (quoting Cole, 

31 M.J. at 272

) (alterations in original).

       But the language in these cases does not exist in a vacuum.

Notably, Congress used different language in granting review

authority to a convening authority under Article 60, UCMJ, and

7
  And, of course, the requirement that the CCA review the record
to ensure that the findings are factually sufficient, that it is
convinced beyond a reasonable doubt that the facts support a
finding of guilt, permits it to do just that. See United States
v. Washington, 

57 M.J. 394, 399

 (C.A.A.F. 2002).

                                 15
United States v. Nerad, No. 09-5006/AF

CCAs under Article 66, UCMJ.    This different language -- along

with the factual settings of cases acknowledging a CCA’s

discretion to modify a sentence or finding under Article 66(c),

UCMJ, and well-established boundaries on a court’s discretion

related to constitutional statutes -- compels the conclusion

that there are some limitations on a CCA’s power to disapprove a

“correct” finding.

        The cases interpreting Article 66(c), UCMJ, have reflected

this Court’s attention to the specialized nature of the military

justice system, particularly with respect to the unique

functions and responsibilities of convening authorities and

CCAs.    Congress’s statutory grant of authority to the CCAs with

respect to findings and sentence is more limited than the

authority granted a convening authority.    Congress provided the

convening authority with clear unfettered discretion -- as “a

matter of command prerogative” -- to modify findings and

sentence under Article 60(c), UCMJ:

        (1) The authority under this section to modify the
        findings and sentence of a court-martial is a matter
        of command prerogative involving the sole discretion
        of the convening authority. . . .

        (2) . . . The convening authority . . . in his sole
        discretion, may approve, disapprove, commute, or
        suspend the sentence in whole or in part.

        (3) Action on the findings of a court-martial by the
        convening authority . . . is not required. However,
        such person, in his sole discretion, may --



                                  16
United States v. Nerad, No. 09-5006/AF

          (A) dismiss any charge or specification by
          setting aside a finding of guilty thereto; or

          (B) change a finding of guilty to a charge or
          specification to a finding of guilty to an
          offense that is a lesser included offense of the
          offense stated in the charge or specification.

Accord United States v. Finster, 

51 M.J. 185, 186

 (C.A.A.F.

1999) (noting that convening authorities enjoy “unfettered

discretion to modify the findings and sentence for any reason --

without having to state a reason -- so long as there is no

increase in severity”); R.C.M. 1107(c) Discussion (noting a

convening authority may set aside a finding “for any reason or

no reason”).

     While the CCA clearly has the authority to disapprove part

or all of the sentence and findings, nothing suggests that

Congress intended to provide the CCAs with unfettered discretion

to do so for any reason, for no reason, or on equitable grounds,

which is a function of command prerogative.    See United States

v. Prince, 

16 C.M.A. 314, 315-16

, 

36 C.M.R. 470, 471-72

 (1966)

(citing legislative history distinguishing the convening

authority’s power of unfettered discretion over sentences from

the more limited power of review of both intermediate appellate

courts and this Court).   The language of Article 60(c), UCMJ,

gives a convening authority unfettered discretion; the language

of Article 66(c), UCMJ, is not as bold.    We assume Congress used

different language for a reason.     E.g., 2A Norman J. Singer & J.


                                17
United States v. Nerad, No. 09-5006/AF

D. Shambie Singer, Sutherland Statutes and Statutory

Construction § 46:6, at 252 (7th ed. 2007).   The CCAs’ power,

therefore, must be more limited.

     Nonetheless, the words “should be approved” do have some

meaning, and we reject the proposition that the “should be

approved” clause of Article 66(c), UCMJ, means only that the

lower court can adjust findings and sentences that are incorrect

in law or fact, at least as the standards for legal and factual

sufficiency are ordinarily understood, see supra note 1.     But

see Nerad, __ M.J. at __ (4-5) (Stucky, J., dissenting).     That

approach both fails to afford independent meaning to “should be

approved” and renders it surplusage, as a CCA clearly may not

approve a legally or factually insufficient finding or an

illegal sentence.8   See New Process Steel, L.P. v. NLRB, No. 08-

1457, 

2010 U.S. LEXIS 4973, at *11

, 

2010 WL 2400089

, at *4 (U.S.

June 17, 2010) (citing Duncan v. Walker, 

533 U.S. 167

, 174




8
  Moreover, if “should be approved” modifies both findings and
sentences, that approach cannot easily be reconciled with
precedent acknowledging that a CCA may disapprove “correct”
findings and sentences because they are nonetheless
“inappropriate,” or “unreasonable” as a matter of law. See,
e.g., Quiroz, 

55 M.J. at 339

; Drexler, 

9 C.M.A. at 408

, 

26 C.M.R. at 188

. Jackson itself noted that Congress contemplated
CCAs having the power to “‘set aside, on the basis of the
record, any part of a sentence, either because it is illegal or
because it is inappropriate.’” 

353 U.S. at 577

 n.8 (quoting S.
Rep. No. 81-486, at 28 (1949), reprinted in 1950 U.S.C.C.A.N.
2222, 2254) (emphasis added).

                                18
United States v. Nerad, No. 09-5006/AF

(2001) (declining to adopt a “construction of the statute,

[that] would render [a term] insignificant”)).9

     Our sentencing decisions on this point underscore that the

statutory phrase “should be approved” does not involve a grant

of unfettered discretion but instead sets forth a legal standard

subject to appellate review.   See, e.g., United States v.

Hutchison, 

57 M.J. 231, 234

 (C.A.A.F. 2002) (remanding a lower

court decision for de novo review in view of the possibility

that the lower court, in holding a sentence to be inappropriate,

exceeded its powers); see also Lacy, 

50 M.J. at 288

 (holding

Article 66(c), UCMJ, bars the lower courts acting on issues of

sentence appropriateness from committing “obvious miscarriages

of justice or abuses of discretion” and referencing factors that

a CCA might look to in determining whether sentence reassessment

was warranted); Christopher, 

13 C.M.A. at 236

, 

32 C.M.R. at 236

(noting Article 66(c), UCMJ, does not authorize the lower

courts, while reviewing a sentence, to take an action that is

“arbitrary, capricious”).   Article 66(c), UCMJ, empowers the

CCAs to “do justice,” with reference to some legal standard, but

does not grant the CCAs the ability to “grant mercy.”   United

9
  Contrary to the dissent’s assertion that our interpretation of
Article 66(c), UCMJ, “discover[s] a hitherto unknown power,”
Nerad, __ M.J. at __ (1) (Stucky, J., dissenting), the present
opinion reflects the established analysis of the statute offered
by the Court in our prior decisions. See supra 7-10; Tardif, 

57 M.J. at 224

; Quiroz, 

55 M.J. at 338

; United States v. Wheelus,

49 M.J. 283, 288

 (C.A.A.F. 1998); Claxton, 

32 M.J. at 162

).

                                19
United States v. Nerad, No. 09-5006/AF

States v. Boone, 

49 M.J. 187, 192

 (C.A.A.F. 1998) (citation and

quotation marks omitted).   Granting mercy for any reason or no

reason is within the purview of the convening authority.    

Id.

Contra Lanford, 

6 C.M.A. at 378-79

, 

20 C.M.R. at 94-95

(suggesting that intermediate appellate courts may grant

clemency).

     Moreover, although we have held that Article 66(c), UCMJ,

permits a CCA to examine the record in a particular case and

dismiss a finding because an accused’s criminality was

unreasonably exaggerated by the same acts beings charged

multiple ways, Quiroz, 

55 M.J. at 338-39

, we have never

suggested that Article 66(c), UCMJ, permits a CCA to disapprove

a legally and factually sufficient finding because it believes

that the conduct -- while falling squarely within the ambit of

behavior prohibited by a constitutional criminal statute --

should not be criminalized.10   Nor could we.   Oakland Cannabis


10
  This is distinguished, of course, from the well-established
authority of the President within the military justice system to
clarify or give meaning to the UCMJ through promulgation of the
Discussion and Analysis sections of the Manual for Courts-
Martial, United States. See United States v. Contreras, __ M.J.
__ (3 n.2) (C.A.A.F. 2010) (“The President’s analysis of the
punitive articles is persuasive, but not binding, authority. . .
. Moreover, where the President’s narrowing construction is
favorable to an accused and is not inconsistent with the
language of a statute, we will not disturb the President’s
narrowing construction, which is an appropriate Executive branch
limitation on the conduct subject to prosecution.” (citing
United States v. Miller, 

67 M.J. 87, 89

 (C.A.A.F. 2008); United
States v. Guess, 

48 M.J. 69, 71

 (C.A.A.F. 1998))) (alterations

                                 20
United States v. Nerad, No. 09-5006/AF

Buyers’ Coop., 

532 U.S. at 490-91, 498-99

 (rejecting the

suggestion that even a court acting in equity could effectively

decriminalize actions clearly barred under the Controlled

Substances Act by crafting a medical-necessity exception to the

Act’s prohibitions against marijuana).

                                 D.

     As demonstrated above, the broad language with which we

have described the CCAs’ powers has been cabined in practice.

While we have held that the CCAs can assess the record and

determine whether the findings and sentence “should be approved”

in the event of error even if the error did not rise to the

level of requiring disapproval of the finding or sentence as a

matter of law, those decisions arose in the context of trial and

post-trial errors in which doctrines applicable to issues of law

–- such as waiver   -- would have precluded CCA action in the

absence of the “should be approved” language of Article 66(c),

UCMJ.11   See Quiroz, 

55 M.J. at 338

 (stating that the lower



and quotation marks omitted); see also United States v. Jones,

68 M.J. 465, 471-72

 (C.A.A.F. 2010).
11
   It is not accurate to equate -- as the dissent implicitly
does, Nerad, __ M.J. at __ (5, 14) (Stucky, J., dissenting) --
any and all error in the proceedings with the separate and
distinct tests for whether the finding and sentence are “correct
in law and fact.” Article 66(c), UCMJ; see supra note 1. A
disparate sentence or a multiplicious finding can be correct in
law and fact but nonetheless “inappropriate” or “unreasonable.”
See, e.g., Quiroz, 

55 M.J. at 339

; United States v. Olinger, 

12 M.J. 458, 460

 (C.M.A. 1982); Drexler, 

9 C.M.A. at 408-09

, 

26 C.M.R. at 188-89

.

                                 21
United States v. Nerad, No. 09-5006/AF

court, having identified an unreasonable multiplication of

charges -- an abuse of prosecutorial discretion -- possessed the

authority under Article 66(c), UCMJ, “to determine the

circumstances, if any, under which it would apply waiver or

forfeiture”); Wheelus, 

49 M.J. at 288

 (recognizing that, while

clemency is the province of the convening authority, the

intermediate courts have “broad power to moot claims of

prejudice” under Article 66(c), UCMJ, related to error in the

post-trial process); Claxton, 

32 M.J. at 164

 (approving a

decision by the intermediate court to order a sentence rehearing

in light of an evidentiary error during sentencing under

circumstances in which waiver would have ordinarily precluded

relief).   We have expressly declined to agree that a CCA may

disapprove a finding based on pure equity.   Quiroz, 

55 M.J. at 339

.

       To be clear, when a CCA acts to disapprove findings that

are correct in law and fact, we accept the CCA’s action unless

in disapproving the findings the CCA clearly acted without

regard to a legal standard or otherwise abused its discretion.

A CCA abuses its discretion when it disapproves a finding based

on purely equitable factors or because it simply disagrees that

certain conduct -- clearly proscribed by an unambiguous statute

-- should be criminal.   Even though a CCA is not required to

identify the basis for its action, failure to do so makes it


                                 22
United States v. Nerad, No. 09-5006/AF

difficult to determine whether a CCA’s exercise of its Article

66(c), UCMJ, power was made based on a correct view of the law.

The better practice, if a CCA sets aside a finding or sentence

that is correct in law and fact, is for it to explain why the

finding is unreasonable, based on a legal standard.

                              III.

     Although this Court is required by statute to review the

present appeal under Article 67(a)(2), UCMJ, 

10 U.S.C. § 867

(a)(2) (2006) (review of cases certified by the Judge

Advocate General), Appellee argues that even if we identify an

erroneous application of the law by the lower court, no remedial

action -- such as a remand to apply the correct principles of

law -- can be ordered.

     Our precedent is to the contrary.   In United States v.

Leak, 

61 M.J. 234

 (C.A.A.F. 2005), we observed that this Court,

since the early days of the UCMJ, has reviewed lower court

decisions under Article 67(a)(2), UCMJ, for compliance with the

law, and we have not confined corrective action to those cases

found by the lower court to be “incorrect in law.”    See 

id. at 239-42

; see also Quiroz, 

55 M.J. at 338-39

 (rejecting a factor

the CCA used in conducting the unreasonable multiplication of

charges analysis and remanding for the CCA to apply the correct

factor); United States v. Thompson, 

2 C.M.A. 460, 464

, 

9 C.M.R. 90, 94

 (1953) (reversing a CCA’s factual sufficiency


                               23
United States v. Nerad, No. 09-5006/AF

determination because it misapprehended the legal elements of

the offense, and remanding for the CCA to conduct a new factual

sufficiency review using the appropriate elements).   Rather, the

power to review a case under Article 67(a)(2), UCMJ, includes

the power to order remedial proceedings, such as a remand, to

ensure that the lower court reviews the findings and sentence

approved by the convening authority in a manner consistent with

a “correct view of the law.”    See Leak, 

61 M.J. at 242

 (citation

and quotation marks omitted).

     Whether the CCA’s review in this case was consistent with a

“correct view of the law” is an open question.   The CCA appeared

to believe it had unfettered discretion to disapprove a finding.

The court identified no error -- even error that would not

preclude a determination that the finding was correct in law and

fact –- or other legal rationale with respect to the charge, the

specification, the finding, the trial, or the post-trial process

that warranted exercise of its unique power under Article 66(c),

UCMJ.12   Nor did the CCA identify tangible factors, either by

reference to other charges in the case or by reference to other


12
  Under the present circumstances, where the CCA did not
purport to disapprove the finding on the basis of a legal
error, this case simply does not implicate or address Article
59(a), UCMJ, 

10 U.S.C. § 859

(a) (2006) (“A finding or sentence
of court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.”). Contra Nerad, __ M.J.
at __ (1-2, 14, 17) (Stucky, J., dissenting).


                                 24
United States v. Nerad, No. 09-5006/AF

cases, that led it to conclude that the finding “unreasonably

exaggerate[d] the criminality of” the conduct, Nerad, 

67 M.J. at 751-52

, or any factor that caused the charge, albeit lawful, to

constitute an abuse of prosecutorial discretion.    Cf. United

States v. Quiroz, 

57 M.J. 583, 585-86

 (N-M. Ct. Crim. App. 2002)

(finding an unreasonable multiplication of charges based on

clearly explained factors).

     While none of these factors are either required or

dispositive, the CCA’s comment that it disapproved the finding

because it was “not the sort of conduct which warrants criminal

prosecution,” Nerad, 

67 M.J. at 751

, gives us pause,

particularly in light of its failure to discuss any of the non-

exclusive bases that may have made its action appropriate.

     It is possible that the CCA believed it could set aside a

finding in a guilty plea case where the accused was fully

apprised of the collateral consequences of his conviction on the

ground that it believed that:   (a) Appellee should not have been

prosecuted; or (b) the convening authority should have granted

the clemency Appellee requested.     But both of those decisions

are matters of command prerogative and, as such, are for the

convening authority, not the CCA.    Article 60(c), UCMJ; United

States v. Travis, 

66 M.J. 301, 303

 (C.A.A.F. 2008) (“Clemency is

a highly discretionary command function of a convening

authority.”) (citation and quotation marks omitted).    Moreover,


                                25
United States v. Nerad, No. 09-5006/AF

given the reasoning underlying the CCA’s decision here, the CCA

may have disapproved the finding of guilty to the child

pornography offense (which criminalizes the relevant conduct

with persons under the age of eighteen without exception, see 

18 U.S.C. § 2256

(1)) based on its own judgment regarding the wisdom

of applying the statute to cases where “the appellant was in the

unique position of having a relationship with someone he could

legally see naked and, but for his existing marriage, legally

have sex with, but could not legally possess nude pictures of

her that she took and sent to him.”    Nerad, 

67 M.J. at 751

.

This it may not do.   See Badaracco v. Comm’r, 

464 U.S. 386

, 397-

98 (1984) (“Courts are not authorized to rewrite a statute

because they might deem its effects susceptible of

improvement.”).

     If the CCA in fact based its decision on the above

rationale, labeling the finding “unreasonable” does not

transform a quintessentially equitable determination into a

legal one.   In light of the foregoing, the case is remanded for

a new Article 66(c), UCMJ, review consistent with this decision.

                                 IV.

     The decision of the United States Air Force Court of

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

to the Judge Advocate General of the Air Force for remand to the




                                 26
United States v. Nerad, No. 09-5006/AF

United States Air Force Court of Criminal Appeals for a new

review under Article 66(c), UCMJ, 

10 U.S.C. § 866

(c) (2006).




                               27
United States v. Nerad, No. 09-5006/AF


     BAKER, Judge (concurring in the result):

     In my view, the majority seeks to decide too much and rebut

too much at this stage in the proceedings.   As a result, I write

separately to concur in the result.

     Courts of Criminal Appeals (CCAs) are courts of law.     They

can decide cases based on principles of law or issues of fact.

Viewing the words of Article 66, Uniform Code of Military

Justice (UCMJ), 

10 U.S.C. § 866

 (2006), in the context of the

UCMJ as a whole, and the role of CCAs within that UCMJ, it is

clear that CCAs are not equitable courts, and they are not

policy-making bodies.   They are empowered to decide cases based

on principles of law applied in the context of Article 66, UCMJ.

     The problem here is that we do not know on what legal

basis, if any, the lower court dismissed the charge in this

case; the lower court’s opinion does not elaborate.    It appears

that the lower court has acted with de facto clemency; however,

having decided to make Appellant’s appeal a test case, the CCA

should have an opportunity to explain its reasoning.   Therefore,

I agree with the remand.   With the benefit of additional input

from the lower court regarding what legal principles it applied,

if any, in reaching its conclusions, we will better understand

where the case-specific and statutory fault lines lie between

the various opinions.   At that point, this Court will be able to

more squarely address the Article 66, UCMJ, issues at hand.
United States v. Nerad, No. 09-5006/AF


     STUCKY, Judge (dissenting):

     Equity is a Roguish thing: for Law we have a measure,
     know what to trust to; Equity is according to the
     Conscience of him that is Chancellor, and as that is
     larger or narrower, so is Equity. ’Tis all one as if
     they should make the Standard for the measure we call
     a Foot, a Chancellor’s Foot; what an uncertain Measure
     would be this. One Chancellor has a long Foot,
     another a short Foot, a Third an indifferent Foot:
     ’Tis the same thing in the Chancellor’s Conscience.

John Selden, Table-Talk:    Being the Discourses of John Selden,

Esq. 43-44 (Israel Gollancz ed., The Temple Classics, 3d ed.

1906) (1689).

     Sixty years after the enactment of the Uniform Code of

Military Justice (UCMJ), the United States Air Force Court of

Criminal Appeals and the majority discover a hitherto unknown

power of the Courts of Criminal Appeals (CCAs) to disapprove

findings that are correct in law and fact under the “should be

approved” clause of Article 66(c), UCMJ, 

10 U.S.C. § 866

(c)

(2006).   To infuse the “should be approved” clause with this

desired meaning, the majority embarks on a quixotic quest.    It

reaches its destination by misreading Article 66(c), concocting

a novel understanding of the term “correct in law,” and despite

protestations to the contrary, creating a standard so vague that

it amounts to no standard at all, simply equity -- the measure

of the Chancellor’s foot.   Ultimately, the majority’s approach

eviscerates the requirement that “[a] finding or sentence of a

court-martial may not be held incorrect on the ground of an
United States v. Nerad, No. 09-5006/AF


error of law unless the error materially prejudices the

substantial rights of the accused.”   Article 59(a), UCMJ, 

10 U.S.C. § 859

(a) (2006).

     While I agree with the majority that we have jurisdiction

over this case, I continue to believe that a CCA is not

authorized to disapprove a finding or sentence that is correct

in law and fact.   The majority’s reading of Article 66 is

inconsistent with the language of the statute taken as a whole,

the Supreme Court’s opinion in Jackson v. Taylor, 

353 U.S. 569

(1957), interpreting the statute, and this Court’s precedents of

more than fifty years.

     The CCA’s action in setting aside Appellee’s conviction for

possession of child pornography is beyond its statutory

authority and therefore without effect.   As the CCA found the

conviction correct in law and fact, this Court should order the

conviction reinstated.

                                I.

     In exchange for the convening authority’s agreement to

withdraw two specifications and cap the period of confinement

that could be approved, Appellee pled guilty to a number of

offenses, including possession of child pornography under

clauses 1 and 2 of Article 134, UCMJ, 

10 U.S.C. § 934

 (2006).

The CCA pointed out that the charges grew out of a love affair

that Appellee was having with a seventeen-year-old girl, who


                                 2
United States v. Nerad, No. 09-5006/AF


sent him nude photos and a video of herself over the Internet.

United States v. Nerad, 

67 M.J. 748, 751

 (A.F. Ct. Crim. App.

2009).   Although not raised by Appellee, the CCA asked whether

it had authority to set aside a conviction that was correct in

law and fact “in the interest of justice.”   

Id. at 749

.   As

Appellee could lawfully see his paramour naked and, but for his

existing marriage, have sex with her, the CCA concluded that:

     the [appellee’s] possession of the photos under these
     circumstances is not the sort of conduct which
     warrants criminal prosecution . . . and that this
     conviction unreasonably exaggerates the criminality of
     his conduct. The question is whether we can set aside
     the conviction on that basis alone, even though we
     find no legal error and the appellant never raised an
     issue at trial, pleading guilty to that offense. The
     government . . . unconvincingly argues that neither
     the plain language of the statute, its legislative
     history, nor case precedent indicates the Court can
     set aside a finding of guilty that is found correct in
     law and fact. We disagree on all points.

Id.

 (emphasis added).1

                                II.

     This Court holds that the CCAs have broad authority to

disapprove a finding that is correct in law and fact but that

1
  Appellee could have challenged the specification at trial and
asserted that, under the circumstances, he was not guilty.
Instead, he chose to plead guilty. In that situation, the
appropriate inquiry for the CCA would have been whether there
was a substantial basis in law or fact for rejecting the plea.
United States v. Inabinette, 

66 M.J. 320, 322

 (C.A.A.F. 2008).
Apparently there was none. Instead of affirming, however, the
CCA chose to set sail on these uncharted waters. To permit an
accused to receive the benefit of a pretrial agreement and yet



                                 3
United States v. Nerad, No. 09-5006/AF


authority is not unfettered.     United States v. Nerad, __ M.J.

__, __ (3) (C.A.A.F. 2010).    This Court will “accept the CCA’s

action unless in disapproving the findings the CCA clearly acted

without regard to a legal standard or otherwise abused its

discretion.”   

Id.

 at __ (22).    It remands to the court below

apparently to identify an

     error -- even error that would not preclude a
     determination that the finding was correct in law and
     fact –- or other legal rationale with respect to the
     charge, the specification, the finding, the trial, or
     the post-trial process that warranted exercise of its
     unique power under Article 66(c), UCMJ. Nor did the
     CCA identify tangible factors, either by reference to
     other charges in the case or by reference to other
     cases, that led it to conclude that the finding
     “unreasonably exaggerate[d] the criminality of” the
     conduct, Nerad, 

67 M.J. at 751-52

, or any factor that
     caused the charge, albeit lawful, to constitute an
     abuse of prosecutorial discretion.

Id.

 at __ (24-25) (brackets in original) (footnote omitted).

                                 III.

     Although it is unclear to what extent it affects the

ultimate decision in this case, the majority redefines the term

correct in law to mean legally sufficient.    Nerad, __ M.J. at __

(7) n.1 (citing United States v. Beatty, 

64 M.J. 456, 458

(C.A.A.F. 2007); United States v. Reed, 

54 M.J. 37, 41

 (C.A.A.F.

2000)).   This is a novel theory for which there is no support,

even in the cases the majority cites.



prevail on appeal when the conviction is correct in law and fact
is astonishing.

                                   4
United States v. Nerad, No. 09-5006/AF


     Legal sufficiency concerns the state of the evidence

against the accused -- whether it is sufficient to justify the

determination of the trier of fact that the accused is guilty

beyond a reasonable doubt.    See Jackson v. Virginia, 

443 U.S. 307, 319

 (1979); Reed, 

54 M.J. at 41

.    The term “correct in law”

is broader in scope and “pertains to errors of law.”   United

States v. Tardif, 

57 M.J. 219, 224

 (C.A.A.F. 2002).    Legal

insufficiency is an error of law and is thus subsumed in the

term “correct in law.”   In Beatty and Reed, this Court was

dealing with the specific question of whether the evidence was

legally sufficient, not the broader question of whether the

conviction was correct in law.    Beatty, 

64 M.J. at 457

; Reed, 

54 M.J. at 38

.

                                  IV.

     The CCA’s action, and the certified issue, require us to

interpret Article 66, UCMJ.   Questions of statutory construction

are questions of law that we review de novo.   United States v.

Lopez de Victoria, 

66 M.J. 67, 73

 (C.A.A.F. 2008).

     Our duty in interpreting a statute is to implement the will

of Congress, “so far as the meaning of the words fairly

permit[ ].”   Sec. & Exch. Comm’n v. Joiner, 

320 U.S. 344, 351

(1943).   In doing so, where possible, we should “avoid rendering

superfluous any parts thereof.”    Astoria Fed. Sav. & Loan Ass’n

v. Solimino, 

501 U.S. 104, 112

 (1991).


                                   5
United States v. Nerad, No. 09-5006/AF


          As in all statutory construction cases, we begin
     with the language of the statute. The first step is
     to determine whether the language at issue has a plain
     and unambiguous meaning with regard to the particular
     dispute in the case. The inquiry ceases if the
     statutory language is unambiguous and the statutory
     scheme is coherent and consistent.

Barnhart v. Sigmon Coal Co., 

534 U.S. 438, 450

 (2002) (quotation

marks and citations omitted).   Whether the statutory language is

ambiguous is determined “by reference to the language itself,

the specific context in which that language is used, and the

broader context of the statute as a whole.”   Robinson v. Shell

Oil Co., 

519 U.S. 337, 341

 (1997).

                                V.

     The scope of the CCAs’ authority is contained in Article

66(c), UCMJ, which provides that:

     In a case referred to it, the Court of Criminal
     Appeals may act only with respect to the findings and
     sentence as approved by the convening authority. It
     may affirm only such findings of guilty and the
     sentence or such part or amount of the sentence, as it
     finds correct in law and fact and determines, on the
     basis of the entire record, should be approved. In
     considering the record, it may weigh the evidence,
     judge the credibility of witnesses, and determine
     controverted questions of fact, recognizing that the
     trial court saw and heard the witnesses.

     To analyze the statute, the majority breaks it down into

its constituent parts:   The CCA may affirm only such findings

and sentence as it (1) finds correct in law; (2) finds correct

in fact; and (3) “determines, on the basis of the entire record,

should be approved.”   Nerad, __ M.J. at __ (6-7).   As the


                                 6
United States v. Nerad, No. 09-5006/AF


majority notes, the three constituent parts of Article 66(c)

“are grammatically coupled” such that the “should be approved”

language must apply to both findings and sentence.     

Id.

 at __

(10).    The question, therefore, is what does “should be

approved” mean and how should it apply within the context of the

whole statute?

        The majority examines what it believes to be the correct

application of Article 66(c)’s third constituent part to

sentencing and applies the same logic to findings.     It contends

that the phrase “determines . . . should be approved” gives the

CCAs discretion to alter a sentence that is correct in law and

fact.    

Id.

 at __ (9, 18-19).    By applying the same logic to

findings, the majority determines that the CCAs also have

discretion to disapprove a finding that is correct in law and

fact.    See 

id.

 at __ (10-13).

        Just as I disagree with the majority’s analysis of the

CCAs’ powers to reduce sentences, I oppose its conclusions as to

the CCAs’ powers to disapprove findings.     I conclude that the

“should be approved” language is not an independent grant of

power, but merely a mechanism by which Congress granted

authority to the CCAs to correct errors of fact or law, based on

the entire record, without having to remand for a rehearing.




                                    7
United States v. Nerad, No. 09-5006/AF


                                 VI.

       The CCA’s power to review a sentence for appropriateness is

a function of its duty under Article 66(c) to affirm only so

much of the sentence as it finds correct in fact.    See Jackson

v. Taylor, 

353 U.S. 569, 576-77

 (1957).    It does not derive from

the “should be approved” language of the statute.    But see

United States v. Lacy, 

50 M.J. 286, 287-88

 (C.A.A.F. 1999).

                                 A.

       In Jackson, the Army Board of Review set aside the

petitioner’s conviction for murder, affirmed his conviction for

attempted rape, and reduced the sentence from mandatory

confinement for life to the maximum for attempted rape --

confinement for twenty years.   

353 U.S. at 570

.   In a habeas

petition, 

id. at 572

, Jackson asserted that Article 66(c) was

ambiguous and that he should have received the benefit of that

ambiguity:   The Board of Review should have ordered a sentence

rehearing rather than merely reassessing the sentence.      

Id. at 576

.   The Supreme Court found “no authority in the Uniform Code

for such a procedure.”2   

Id. at 579

.   It concluded that


2
  As the Supreme Court noted in Jackson, Congress never intended
a case to be remanded back to a court-martial for a sentence
rehearing. See Article 66(d), UCMJ (permitting remand when the
CCA “sets aside the findings and sentence” (emphasis added); but
see United States v. Miller, 

10 C.M.A. 296, 299

, 

27 C.M.R. 370, 373

 (1959) (concluding that it is “entirely unreasonable” to
construe the statutory language in Article 66(d) as authorizing
a rehearing only if the findings and sentence were set aside;

                                  8
United States v. Nerad, No. 09-5006/AF


       the words [of the statute] are clear. The board may
       “affirm . . . such part or amount of the sentence, as
       it finds correct . . . .” That is precisely what the
       review board did here. It affirmed such part, 20
       years, of the sentence, life imprisonment, as it found
       correct in fact and law for the offense of attempted
       rape. Were the words themselves unclear, the
       teachings from the legislative history of the section
       would compel the same result.

Id. at 576 (emphases added).

                                 B.

       Because the Supreme Court found the language of Article

66(c) to be clear, there was and is no need to resort to the

legislative history to interpret the statute.   Nevertheless,

while the Supreme Court decided Jackson based on the statute’s

clear language, it did not shun the legislative history but

rather embraced it.   It determined that the clear language of

the statute was consistent with the legislative history.   Id. at

576.   It quoted the following portion of the legislative history

as “augment[ing]” its conclusions:

       “The Board of Review shall affirm a finding of guilty
       of an offense or a lesser included offense . . . if it
       determines that the finding conforms to the weight of
       the evidence and that there has been no error of law
       which materially prejudices the substantial rights of
       the accused. . . . The Board may set aside, on the
       basis of the record, any part of a sentence, either
       because it is illegal or because it is inappropriate.
       It is contemplated that this power will be exercised



that it would read the term “and” to mean “or”; and that Jackson
did not intend to limit the power of the appellate courts to
order rehearing on sentence alone); accord United States v.
Sills, 

56 M.J. 239, 240

 (C.A.A.F. 2002).

                                  9
United States v. Nerad, No. 09-5006/AF

     to establish uniformity of sentences throughout the
     armed forces.”

Id.

 at 577 n.8 (emphases added) (quoting S. Rep. No. 81-486, at

28 (1949)); see also H.R. Rep. No. 81-491, at 31-32 (1949)

(containing same language).   Thus, Jackson and the legislative

history are congruent:    A sentence that is illegal is incorrect

in law and one that is inappropriate is incorrect in fact.     If

the sentence is illegal or inappropriate, the CCA should instead

affirm the sentence that should be approved -- a sentence that

is correct in law and fact.

     After the Board of Review set aside Jackson’s murder

conviction, his life sentence was incorrect in law -- it

exceeded the maximum punishment permitted for attempted rape,

which was twenty years.   After considering the entire record,

the Board of Review determined, as a matter of fact, that

confinement for twenty years was the legal and appropriate

sentence.   To read Article 66(c) in the manner the majority does

-- that the CCA’s authority to determine sentence

appropriateness stems from its duty to affirm only that part of

the sentence that should be approved -- renders superfluous the

requirement to find the sentence correct in fact, something we

are discouraged from doing.   See Solimino, 

501 U.S. at 112

.




                                 10
United States v. Nerad, No. 09-5006/AF

                                 VII.

        Contrary to the position taken by the Government, I agree

with the majority’s grammatical assessment of Article 66(c):

The words “should be approved” apply to a CCA’s review of both

findings and sentence.    Nerad, __ M.J. at __ (10).    But I

understand the words to apply in a different manner, one that is

consistent with the rest of the statute, including Article

66(d), UCMJ.

        Article 66(d) provides that the CCA may order a rehearing

if it sets aside both the findings and sentence.       The “should be

approved” language in Article 66(c) ties the power of the CCA to

determine whether the findings and sentence are correct in law

and fact with Article 66(d)’s limitations on ordering a

rehearing.    If only the sentence is incorrect in law or fact,

the CCA may not order a rehearing.      See Jackson, 

353 U.S. at 579

; Article 66(d), UCMJ.    The CCA itself must determine what

sentence “should be approved” -- one that is correct in law and

fact.    If the CCA sets aside a finding and sentence it may order

a rehearing.    Article 66(d), UCMJ.    The CCA does not order a

rehearing if it sets aside a finding of guilty but the evidence

nevertheless established the accused’s guilt of a lesser

included offense.    Instead, it affirms the finding and sentence

that “should be approved” -- one that is correct in law and

fact.


                                  11
United States v. Nerad, No. 09-5006/AF

     In the case now before us, the CCA held that, pursuant to

its authority under Article 66(c) to affirm only those findings

that should be approved, it had authority to overturn Appellee’s

guilty plea to the possession of child pornography “even in the

absence of legal or factual error.”    Nerad, 

67 M.J. at 751

(citing United States v. Tardif, 

57 M.J. 219, 224

 (C.A.A.F.

2002)).   As the findings were concededly correct in law and

fact, and there appears to be no basis in law or fact for

setting aside his guilty plea (indeed, that issue was not even

raised), the CCA was without authority to determine that the

conviction for possession of child pornography should not be

affirmed.   This conclusion is consistent with Jackson and our

longstanding precedent, United States v. Waymire, 

9 C.M.A. 252

,

26 C.M.R. 32

 (1958).

                               VIII.

     In Waymire, the Board of Review could not decide whether a

court-martial had jurisdiction over the accused for one of his

offenses.   

Id. at 254

, 26 C.M.R. at 34.   In lieu of reaching a

decision on the jurisdiction question and without deciding

whether the conviction was incorrect in law or fact, the Board

of Review dismissed the offense in an act this Court

characterized as akin to a compromise or arbitration.   Id. at

253-54, 26 C.M.R. at 33-34.   We held that the Board had exceeded




                                12
United States v. Nerad, No. 09-5006/AF

the scope of its statutory authority and reversed.   Id. at 255,

26 C.M.R. at 35.

     The majority asserts that, in Waymire, we did not purport

to interpret “what the words ‘should be approved’ entailed in

the context of a board’s action on legally and factually

sufficient findings,” and that “Waymire thus serves as precedent

for the unremarkable proposition that CCAs may not disapprove

findings on equitable grounds or disregard their statutory duty

to determine legal and factual sufficiency.”   Nerad, __ M.J. at

__ (12).   I disagree.

     In Waymire, we did interpret the meaning and scope of the

authority of the Boards of Review under Article 66(c):

          The extent of a board of review’s powers over
     findings have frequently been the subject of review by
     this Court. In United States v Fleming, 

3 C.M.A. 461

,
     

13 C.M.R. 17

, we said that a board of review “is under
     a duty to affirm so much of the findings of guilty as
     is not affected by error committed at the trial.”
     Unlike a convening authority, who may disapprove
     findings of guilt for any reason, or for no reason at
     all, a board of review may only disapprove such
     findings as it finds incorrect in law and fact.
     United States v Massey, 

5 C.M.A. 514

, 

18 C.M.R. 138

.
     It was never intended that a board of review be given
     the power to disapprove findings in its “discretion.”
     Cf. Article 64, of the Uniform Code, supra, 

10 U.S.C. § 864

. Not only does Article 66, supra, require that
     a board affirm findings of guilt which it determines
     to be correct in law and fact, but also that such
     determination be made “on the basis of the entire
     record.” In United States v Whitman, 

3 C.M.A. 179

, 

11 C.M.R. 179

, we said that it was error for a board of
     review to rely upon matter lying outside the record of
     trial in setting aside an otherwise valid conviction.
     It was held in that case that such action went well


                               13
United States v. Nerad, No. 09-5006/AF

     beyond the statutory limits established by the Code.
     Cf. United States v Burns, 

2 C.M.A. 400

, 

9 C.M.R. 30

.
     In the instant case, there is no question but that the
     board of review, in setting aside the forgery
     conviction solely on the basis of “substantial
     justice,” exceeded the scope of its authorized
     statutory functions. United States v Gordon, 

2 C.M.A. 632

, 

10 C.M.R. 130

.

9 C.M.A. at 255, 26 C.M.R. at 35 (emphasis added).

     This Court did not just opine that the CCAs may only

disapprove findings by reference to legal standards.     Nerad, __

M.J. at __ (12).   It provided the standard:   The CCA must affirm

the conviction unless prejudicial error was committed at trial.

Waymire, 

9 C.M.A. at 255

, 

26 C.M.R. at 35

; see also Jackson, 

353 U.S. at 577

 n.8.

     The majority further attempts to trivialize Waymire by

asserting that one month after deciding that case we suggested

that the CCAs had the power to disapprove a finding that is

correct in law and fact.    Nerad, __ M.J. at __ (12-13) (citing

United States v. Drexler, 

9 C.M.A. 405, 408

, 

26 C.M.R. 185, 188

(1958)).   But that is not what Drexler says or means.    As the

majority quotes, “‘an appellate tribunal can dismiss even a

valid finding as part of its action in correcting errors at the

trial.’”   

Id.

 at 13 (quoting Drexler, 

9 C.M.A. at 408

, 

26 C.M.R. at 188

) (emphasis added).   Although Drexler’s convictions were

valid, in the sense that each was factually and legally

sufficient on its own, the Board of Review did find an error of



                                 14
United States v. Nerad, No. 09-5006/AF

law -- one of the charges was multiplicious with another.

Drexler, 

9 C.M.A. at 407

, 

26 C.M.R. at 187

.   Although at the

time, reconsideration of the sentence was thought to “‘cure any

error resulting from any possible multiplication,’” we

determined that dismissing the duplicating charge was within the

sound discretion of the Board of Review.   

Id. at 408

, 26 C.M.R.

at 188 (quoting United States v. McCormick, 

3 C.M.A. 361, 363

,

12 C.M.R. 117, 119

 (1953)).   Rather than contradict Waymire as

the majority contends, Drexler actually supports it.     The Board

of Review in Drexler corrected an error of law; it did not act

as a matter of discretion.

     Nor is Waymire a mere sport, a unique holding unbuttressed

by other authority.   In fact, there was substantial authority

prior to Waymire for the same view of the power of the Boards of

Review.   See United States v. Fleming, 

3 C.M.A. 461, 465

, 

13 C.M.R. 17, 21

 (1953) (positive duty of Board of Review to affirm

findings not affected by error at trial); United States v.

Whitman, 

3 C.M.A. 179, 180

, 

11 C.M.R. 179, 180

 (1953) (Board of

Review exceeds Article 66 power when it set aside findings

because it would “create an injustice” in light of convening

authority action in a related case).3


3
  Neither United States v. Claxton, 

32 M.J. 159

 (C.M.A. 1991),
nor United States v. Tardif, 

57 M.J. 219

 (C.A.A.F. 2002), cited
by the CCA as support for its action, can carry the weight
placed on them. Claxton was a waiver case involving sentencing,

                                15
United States v. Nerad, No. 09-5006/AF

                                  IX.

     “[T]he doctrine of stare decisis is of fundamental

importance to the rule of law.”    Welch v. Texas Dep’t of

Highways and Pub. Transp., 

483 U.S. 468, 494

 (1987).       “Adherence

to precedent promotes stability, predictability, and respect for

judicial authority.”   Hilton v. South Carolina Pub. Rys. Comm’n,

502 U.S. 197, 202

 (1991).    Stare decisis applies with “special

force in the area of statutory interpretation” because “the

legislative power is implicated, and Congress remains free to

alter” a court’s interpretation.       Patterson v. McLean Credit

Union, 

491 U.S. 164, 172-73

 (1989), quoted in Hilton, 

502 U.S. at 202

.

     For those reasons, we should “not depart from the doctrine

of stare decisis without some compelling justification.”

Hilton, 

502 U.S. at 202

.    The majority has not provided such

compelling justification to jettison Waymire and the cases that

preceded it.

                                  X.

     The majority suggests that the CCA’s authority to

disapprove a finding that is correct in law and fact is

“cabined” but provides scant support for the proposition.

Nerad, __ M.J. at __ (21).    It hints that the CCA’s decision in



in which the statement about findings was an obiter dictum;
Tardif dealt entirely with sentencing.

                                  16
United States v. Nerad, No. 09-5006/AF

this case might have been acceptable if it had identified some

error -- “even error that would not preclude a determination

that the finding was correct in law and fact.”   Nerad, __ M.J.

at __ (24).    Such a conclusion guts Article 59(a), UCMJ:    “A

finding or sentence of court-martial may not be held incorrect

on the ground of an error of law unless the error materially

prejudices the substantial rights of the accused.”

                                 XI.

     As the majority opinion announces new law, it is

appropriate to consider how this grant of authority to the CCAs

may operate.

     The majority asserts that the CCAs have “broad,” although

not unfettered, authority to disapprove a finding that is

correct in law.   Nerad, __ M.J. at __ (3).   It insists that “the

statutory phrase ‘should be approved’ does not involve a grant

of unfettered discretion but instead sets forth a legal standard

subject to appellate review.”   

Id.

 at __ (19) (citing United

States v. Hutchison, 

57 M.J. 231, 234

 (C.A.A.F. 2002); Lacy, 

50 M.J. at 288

)).

     The majority then asserts that for findings the CCAs’

authority is “cabined.”   Id. at 21.   If by “cabined,” the

majority is applying the “ordinary” meaning of the word --

confined within a narrow space or limits, see Webster’s Third

New International Dictionary, Unabridged 309 (2002) -- it seems


                                 17
United States v. Nerad, No. 09-5006/AF

contrary to the characterization of a CCA’s sentencing power

employed in the cases it cites.    In Hutchison, 

57 M.J. at 234

,

and Lacy, 

50 M.J. at 287-88

, this Court described a CCA’s

sentencing authority as a “highly discretionary power” that this

court reviews for an abuse of discretion.   See also United

States v. Claxton, 

32 M.J. 159, 162

 (C.M.A. 1991) (“A clearer

carte blanche to do justice would be difficult to express.”).

       Whether the majority’s legal standard is “cabined” or

highly discretionary, in the end it amounts to no standard at

all.   The majority states that it will accept a CCA’s decision

to disapprove findings that are correct in law and fact “unless

in disapproving the findings the CCA clearly acted without

regard to a legal standard or otherwise abused its discretion.”

Nerad, __ M.J. at __ (22).    It suggests that it might have

upheld the CCA’s judgment if it had (1) identified some

rationale or error, even a harmless one, or (2) identified some

“tangible factors” leading it to conclude that the finding of

guilty “unreasonably exaggerated the criminality of” Appellee’s

conduct or “caused the charge, albeit lawful,” to constitute “an

abuse of prosecutorial discretion.”    

Id.

 at __ (24-25)

(citations and brackets omitted).

       In fact, what we have done here is to tacitly grant the

CCAs a power that Congress withheld even from those creatures of

pure equity, the boards for correction of military records:      the


                                  18
United States v. Nerad, No. 09-5006/AF

power to revise the findings of courts-martial simply because a

particular CCA panel does not like a particular result, or

regards it as “unjust.”   See 

10 U.S.C. § 1552

(f).    I can discern

no principled standard by which the CCAs are to implement

today’s decision or we are to review these actions.    The CCAs,

limited only by their own sense of judicial restraint -- the

measure of their own feet -- are now free to act as councils of

revision.   Thus, despite protestations to the contrary, the

majority’s decision grants equitable power to the CCAs.

     The majority’s decision is unsupported by Jackson v. Taylor

and our case law, is not compelled by the language of Article

66, UCMJ, and is a result surely not intended by Congress.     As

the CCA found Appellee’s guilty plea to be correct in law and

fact, I believe its decision to set aside the conviction for

possession of child pornography exceeded its statutory authority

and was without effect.   I would order the conviction

reinstated.




                                19