United States v. Brubaker-Escobar

Brubaker-Escobar  is a post-trial issues case.

     Upon the advice of the staff judge advocate, the convening authority applied the provisions of the Military Justice Act of 20161 (MJA) and took no action on the findings or sentence adjudged in Appellant’s court-martial. The United States Army Court of Criminal Appeals (CCA) determined that, in light of that court’s precedent, which relied on the President’s executive order in implementing the MJA, the convening authority’s failure to take action on the sentence was error but the error was neither jurisdictional nor prejudicial to Appellant’s substantial rights. The court affirmed the adjudged findings and sentence.

     We granted review of Appellant’s petition in which he argued that the convening authority erred in failing to act on his case, that this error deprived the CCA of jurisdiction to hear his appeal and, therefore, the case must be remanded to the convening authority for action. After oral argument, we specified an issue, asking whether the President’s executive order implementing the MJA was lawful in requiring convening authorities to apply the post-trial procedures for taking action in effect on the date of the earliest offense. We hold that, as applied to this case, the executive order was not lawful, and the convening authority properly complied with the MJA.

From the CAAF Desk.