## Facts

- Sergeant Eric F. Kelly, U.S. Army, was convicted at a general court-martial of rape.
- For specified sexual offenses, Article 56(b), UCMJ required the sentencing authority to impose, at a minimum, a dishonorable discharge (or dismissal for officers).
- The court-martial sentenced Kelly to, among other punishments, a dishonorable discharge that was treated as mandatory under Article 56(b).
- Kelly sought appellate relief, arguing the dishonorable discharge was inappropriately severe and should be disapproved or modified under the sentence-appropriateness authority of Article 66(c), UCMJ.
- The Army Court of Criminal Appeals (ACCA) initially concluded it lacked authority to set aside or reduce a mandatory minimum punitive discharge and declined to conduct sentence-appropriateness review of that portion of the sentence.

## Issues

1. Whether Article 56(b), UCMJ’s mandatory minimum punitive discharge requirement limits a service Court of Criminal Appeals’ authority under Article 66(c), UCMJ to determine whether a sentence “should be approved.”
2. Whether a Court of Criminal Appeals may disapprove or modify a mandatory dishonorable discharge when conducting Article 66(c) sentence-appropriateness review.

## Decision

- CAAF reversed ACCA’s conclusion that it lacked authority to review and grant relief from a mandatory minimum punitive discharge.
- CAAF held Article 56(b) restricts the sentencing discretion of courts-martial, not the Article 66(c) sentence-appropriateness authority of the Courts of Criminal Appeals.
- CAAF rejected any implied repeal or narrowing of Article 66(c) authority by Article 56(b).
- The case was remanded for ACCA to conduct a full Article 66(c) sentence-appropriateness review, including review of the dishonorable discharge.

## Legal Principles

- Article 66(c), UCMJ grants Courts of Criminal Appeals independent authority to review sentence appropriateness and to determine what findings and sentence “should be approved.”
- Article 56(b), UCMJ imposes mandatory minimum punitive discharges at the court-martial sentencing stage, but does not remove appellate authority to disapprove or modify the sentence under Article 66(c).
- Implied repeals are disfavored; absent clear statutory text, later-enacted sentencing minima will not be read to curtail the established sentence-appropriateness powers of the Courts of Criminal Appeals.
- Congressional limitations on other military justice actors do not, without express language, restrict Courts of Criminal Appeals’ Article 66(c) function.

## Conclusion

CAAF held that mandatory minimum punitive discharges required by Article 56(b) do not constrain a Court of Criminal Appeals’ Article 66(c) authority to assess sentence appropriateness and, if warranted, disapprove or modify even a mandatory dishonorable discharge, and it remanded for that review.


United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018)