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“the broad authority under article 60(c), ucmj, includes the power to dismiss charges and reassess a sentence to cure a legal error or moot allegations of such.”
Treatment trajectory · 2016 → 2026 · click a year to view as-of
2016
2021
2026
Statutes interpreted (leading-cases list)
#10
10 U.S.C. § 860
Top citers, strongest first. 41 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
United States v. King
the broad authority under article 60(c), ucmj, includes the power to dismiss charges and reassess a sentence to cure a legal error or moot allegations of such.
discussed
Cited as authority (rule)
United States v. Hoffman
Because the appellant’s offenses occurred in 2011, the CA was vested with full Article 60, UCMJ, authority to “modify or dismiss charges and modify the sentence.” United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam).
discussed
Cited as authority (rule)
United States v. Oliver
While there is a “presumption against the waiver of constitutional rights,” United States v. Harcrow, 66 M.J. 164, 167 (C.A.A.F. 2008) (internal quotation marks omitted) (citation omitted), the appellant may waive the right to raise such issue on appeal provided it is “clearly established that there was ‘an intentional relinquishment or abandonment of a known right.’ ” Id. (quoting Brookhart v. Janis, 384 U.S. 1, 4 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 (1966)).
discussed
Cited as authority (rule)
United States v. Haverty
United States v. Harcrow, 66 M.J. 164, 169 (C.A.A.F. 2008) (citing Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997)).
discussed
Cited as authority (rule)
United States v. King
This “broad authority under Article 60(c), UCMJ, includes the power to dismiss charges and reassess a sentence to cure a legal error or moot allegations of such.” United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008).
discussed
Cited "see, e.g."
United States v. Driskill
The version of Article 60, UCMJ, in effect on that date stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this sec- tion.” 10 U.S.C. § 860 (c)(2)(A) (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Jones
The version of Article 60, UCMJ, in effect on that date stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this sec- tion.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Dixon
The version of Article 60, UCMJ, in effect when Appellant’s offenses first occurred stated “[a]ction on the sentence of a court-martial shall 3 United States v. Dixon, No. ACM 39878 be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Davis
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated that “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” Article 60(c)(2)(A), UCMJ, 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Brown
The version of Article 60, UCMJ, in effect when Appellant’s offenses first occurred stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. White
The version of Article 60, UCMJ, in effect when Appellant’s offenses first occurred stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Steinert
The version of Article 60, UCMJ, in effect when Appellant’s 3 United States v. Steinert, No. ACM 39857 offenses first occurred stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Wermuth
Before 1 January 2019, Article 60, UCMJ, required the convening authority to take 3 United States v. Wermuth, No. ACM 39856 action on the sentence in every case. 10 U.S.C. § 860 (Manual for Courts-Mar- tial, United States (2016 ed.) (2016 MCM)) (“Action on the sentence of a court- martial shall be taken by the convening authority or by another person author- ized to act under this section.”); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”); R.C.M. 1107(f)(4)(A) (2016 MCM) (�…
discussed
Cited "see, e.g."
United States v. Trusty
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Daniels
Before 1 January 2019, Article 60, UCMJ, required the convening authority to take action on the sentence in every case. 10 U.S.C. § 860 (2016 MCM) (“Action on the sentence of a court- martial shall be taken by the convening authority or by another person author- ized to act under this section.”); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”); R.C.M. 1107(f)(4)(A) (2016 MCM) (“The action shall state whether the sentence adjudged by the court-martial is ap- proved.
discussed
Cited "see, e.g."
United States v. Hong
Before 1 January 2019, Article 60, UCMJ, required the convening authority to take action on the sentence in every case. 10 U.S.C. § 860 (2016 MCM) (“Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.”); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening author- ity is required to take action on the sentence . . . .”); R.C.M. 1107(f)(4)(A) (2016 MCM) (“The action shall state whether the sentence adjudged by the court- martial is approved.
discussed
Cited "see, e.g."
United States v. Martinez
The version of Article 60, UCMJ, in effect when Appellant’s offenses first occurred stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Murphy
The version of Article 60, UCMJ, in effect on the earliest date of which Ap- pellant was convicted, 1 December 2017, stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (em- phasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sen- tence . . . .”). 3 Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening a…
discussed
Cited "see, e.g."
United States v. Hepfl
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) 3 United States v. Hepfl, No. ACM 39829 (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Blow
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Taylor
The version of Article 60, UCMJ, in effect in 2017 and 2018— the years in which Appellant’s offenses occurred—stated “[a]ction on the sen- tence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Li
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Barnes
App. 16 Dec. 2019) (per curiam) (unpub. op.). 13 United States v. Barnes, No. ACM 39834 authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (em- phasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sen- tence . . . .”). 18 Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening authority . . . may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 860 (c)(2)(B) …
discussed
Cited "see, e.g."
United States v. Huff
The version of Article 60, UCMJ, in effect when Appellant’s offenses first occurred stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
discussed
Cited "see, e.g."
United States v. Anderson
The version of Article 60, UCMJ, in effect in 2017—the year in which Appellant’s first offense occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Padilla
The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Binegar
The version of Article 60, UCMJ, in effect in 2016—the year in which the earliest of Appellant’s convicted offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Monge
The version of Article 60, UCMJ, in effect in 2017—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Tellor
Before 1 January 2019, Article 60, UCMJ, required the convening authority to take action on the sentence in every case. 10 U.S.C. § 860 (“Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.”); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening au- thority is required to take action on the sentence . . . .”); R.C.M. 1107(f)(4)(A) (“The action shall state whether the sentence adjudged by the court-martial is approved.
discussed
Cited "see, e.g."
United States v. Motus
The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Corppetts
The version of Article 60, UCMJ, in effect in 2018 5—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Beavers
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Walker
The version of Article 60, UCMJ, in effect on the earliest date of which Ap- pellant was convicted, 9 October 2017, stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (em- phasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sen- tence . . . .”). 9 Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening au…
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Cited "see, e.g."
United States v. Humpel
The version of Article 60, UCMJ, in effect in 2017—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” Article 60(c)(2)(A), UCMJ, 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Norman
The version of Article 60, UCMJ, in effect on the date of the earliest charged offense for which Appellant was found guilty, 13 April 2018, stated “[a]ction on the sentence of a court-martial shall be taken by the con- vening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening author- ity is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Leach
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Caffrey
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Green
The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s charged offenses occurred—stated “[a]ction on the sen- tence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Lewis
The version of Article 60, UCMJ, in effect in 2018—the year in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Mar
The version of Article 60, UCMJ, in effect on the date of the earliest charged offense for which Appellant was found guilty, 1 December 2017, stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is re- quired to take action on the sentence . . . .”).
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Cited "see, e.g."
United States v. Lopez
The version of Article 60, UCMJ, in effect on the date of the earliest charged offense for which Appellant was found guilty, 1 May 2017, 10 stated “[a]ction on the sentence of a court-martial shall be taken by the con- vening authority or by another person authorized to act under this section.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening author- ity is required to take action on the sentence . . . .”). 11 Article 60(c)(2)(B), 10The specification of wrongful use of marijuana alle…
Retrieving the full opinion text from the archive…
UNITED STATES, Appellant,
v.
Adam P. PEREZ, Senior Airman, U.S. Air Force, Appellee
v.
Adam P. PEREZ, Senior Airman, U.S. Air Force, Appellee
08-5002/AF.
Court of Appeals for the Armed Forces.
Mar 18, 2008.
For Appellant: Captain Jason M. Kellhofer (argued); Colonel Gerald R. Bruce and Major Matthew S. Ward (on brief)., For Appellee: Captain Tiaundra Sorrell (argued); Colonel Nikki A. Hall (on brief); Major Shannon A. Bennett.
Stucky.
Cited by 41 opinions | Published
Lead Opinion
PER CURIAM:
A general court-martial composed of a military judge sitting alone, convicted Appellee, pursuant to mixed pleas, of disobeying an order, rape, and assault consummated by battery, in violation of Articles 92, 120, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 928 (2000). The sentence adjudged by the court-martial included a bad-conduct discharge, confinement for eighteen months, and reduction to the lowest enlisted grade. The convening authority modified the findings by dismissing the charge and specification for rape, and approved that portion of the sentence providing for a bad-conduct discharge, confinement for 206 days, and reduction to the lowest enlisted grade. The United States Air Force Court of Criminal Appeals affirmed the findings, as modified by the convening authority,[*165] and approved that portion of the sentence providing for confinement for six months and reduction to the lowest enlisted grade. United States v. Perez, No. ACM 36799, 2007 CCA LEXIS 364, at *10-*11, 2007 WL 2791251, at *4 (A.F.Ct.Crim.App. Sept. 12, 2007) (unpublished).
Upon certification under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000), we affirm the decision of the Court of Criminal Appeals. As a matter of command prerogative, the convening authority may modify or dismiss charges and modify the sentence. See Article 60(c)(1), UCMJ, 10 U.S.C. § 860(e)(1) (2000). Although the convening authority is required to take action on the sentence, the convening authority is not required to act on the findings. The broad authority under Article 60(c), UCMJ, includes the power to dismiss charges and reassess a sentence to cure a legal error or moot allegations of such. The Court of Criminal Appeals has an independent responsibility to “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.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). The action taken on appellate review in this case was within the power granted to the Court of Criminal Appeals by Article 66(c), UCMJ. See United States v. Sales, 22 M.J. 305 (C.M.A.1986).
Concurrence
STUCKY, Judge
(concurring in the result):
The Judge Advocate General of the Air Force certified this case to this Court for review of whether the convening authority properly reassessed Appellee’s sentence. The majority holds that the Air Force Court of Criminal Appeals’ (AFCCA) action was within the power granted to it by Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000). I agree that, under our precedents, the AFCCA did not err; however, I have serious doubt about some of those precedents and therefore write separately.
As the majority notes, the convening authority’s action on the findings and sentence of a court-martial “is a matter of command prerogative involving [his] sole discretion.” Article 60(c)(1), UCMJ, 10 U.S.C. § 860(e)(1) (2000). He has “absolute power to disapprove the findings and sentence, or any part thereof, for any or no reason, legal or otherwise.” United States v. Boatner, 20 C.M.A. 376, 378, 43 C.M.R. 216, 218 (1971). In performing his post-trial duties, “his role is similar to that of a judicial officer,” and there exist “virtually no limitations upon his ameliorative judicial powers.” United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.1987); United States v. Hamilton, 39 C.M.R. 356, 357 (A.B.R.1968).
In United States v. Reed, 33 M.J. 98 (C.M.A.1991), this Court noted that a convening authority is not required to correct legal errors, but “it is entirely appropriate and certainly commendable for a convening authority in his discretion to undertake curing such an error before the case reaches appellate levels.” Id. at 99. But “[w]here he does so, his action must be guided by the same rules applicable to appellate authorities.” Id. The accused must be “ ‘placed in the position he would have occupied if an error had not occurred.’” Id. at 99-100 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A.1988)). In other words, the convening authority must either approve a sentence no greater than the sentencing authority would have adjudged absent the error or order a sentence rehearing. See id. (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)).
I have serious doubt as to whether this holding can be squared with the plain language of Article 60, UCMJ, or the traditional understanding of the convening authority’s powers set out above. However, as this issue was neither briefed nor argued in this case, and the AFCCA’s action was not erroneous under existing precedent, I concur in the result.