UNITED STATES, Appellant

v.

Christopher A. QUICK, Sergeant

U.S. Marine Corps, Appellee

No. 15-0347

Crim. App. No. 201300341

United States Court of Appeals for the Armed Forces

Argued May 12, 2015

Decided August 11, 2015

ERDMANN, C.J., delivered the opinion of the court, in which

RYAN, J., joined. BAKER, J., filed a separate concurring 

opinion. STUCKY, J., filed a separate dissenting opinion, in 

which OHLSON, J., joined. 

Counsel

For Appellant: Lieutenant James M. Belforti, JAGC, USN

(argued); Colonel Mark K. Jamison, USMC, Captain Matthew M. 

Harris, USMC, and Brian K. Keller, Esq. (on brief).

For Appellee: Captain David A. Peters, USMC (argued); Captain 

Daniel Douglass, USMC.

Amicus Curiae for Appellant: Gerald R. Bruce, Esq. (on brief)

-- for the United States Air Force Appellate Government 

Division; Lieutenant Commander A. M. Lee (on brief) -- for the 

United States Coast Guard Appellate Government Division. 

Amicus Curiae for Appellee: Brian L. Mizer, Esq. (on brief) --

for the United States Air Force Appellate Defense Division. 

Military Judge: Chris Thielemann

This opinion is subject to revision before final publication.
United States v. Quick, No. 15-0347/MC

2

Chief Judge ERDMANN delivered the opinion of the court.

Contrary to his pleas, Sergeant Christopher A. Quick was

convicted by a panel of officer and enlisted members, sitting as 

a general court-martial, of conspiracy to distribute an indecent 

visual recording, wrongfully viewing an indecent visual 

recording, and indecent conduct, in violation of Articles 81, 

120c, and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 881, 920c, 934 (2012). Quick was sentenced to a 

bad-conduct discharge, six months of confinement, and a 

reduction to E-3. The convening authority approved the sentence 

as adjudged. In a published decision, the United States NavyMarine Corps Court of Criminal Appeals (NMCCA) set aside Quick’s 

conviction for wrongfully viewing an indecent visual recording

and, finding that the penalty landscape had dramatically 

changed, ordered a sentencing rehearing. United States v. 

Quick, 74 M.J. 517, 519, 524 (N-M. Ct. Crim. App. 2014). As a 

result of the remand for a sentence rehearing, the Judge 

Advocate General of the Navy has asked this court whether Courts 

of Criminal Appeals (CCAs) have the legal authority to order 

sentence-only rehearings under Article 66(d), UCMJ, 10 U.S.C.

§ 866(d) (2012).1 In view of this court’s long-standing 

 

1 The government certified the following issue pursuant to 

Article 67(a)(2):
United States v. Quick, No. 15-0347/MC

3

precedent on this issue and the doctrine of stare decisis, we 

affirm the decision of the NMCCA. 

Discussion

Neither the substantive offenses nor the facts below are at 

issue in this appeal. The underlying issue is whether Article 

66(d), UCMJ, authorizes the CCAs to order sentence-only 

rehearings. The government argues that the CCAs do not have 

that authority and asks that we overrule this court’s decision 

in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956),

in which we specifically recognized the authority of the CCAs to 

order sentence-only rehearings. The government asserts that 

Miller was wrongly decided in light of Jackson v. Taylor, 353 

U.S. 569 (1957). The government further argues that under the 

plain language of Article 66(d), UCMJ, if a CCA orders a 

rehearing, it must do so for both the finding(s) which were set 

aside and the sentence. It cannot order a sentence-only 

 

Whether precedent authorizing Courts of Criminal 

Appeals to order sentence-only rehearings should be 

overruled based on: (A) Jackson v. Taylor, 353 U.S. 

569 (1957), which stated “no [such] authority” exists; 

(B) the plain language of the statute including the 

conjunctive “findings and sentence” in Article 66(d) 

in contrast to authority granted the Judge Advocates 

General in Article 69(a) to act with respect to 

“findings or sentence or both” and the convening 

authority in Article 60(f)(3) to order sentence 

rehearings; and (C) judicial economy.

United States v. Quick, 74 M.J. 223 (C.A.A.F. 2015) 

(docketing notice).
United States v. Quick, No. 15-0347/MC

4

rehearing. The government goes on to argue that, if Congress

had intended to grant the CCAs the authority to order sentenceonly rehearings, it would have amended Article 66(d), UCMJ, in 

the same manner it amended Article 69, UCMJ, in the Military 

Justice Act of 1983, which extended that authority to the Judge 

Advocates General.2 

Quick counters that Miller was correctly decided, that the 

plain language of Article 66, UCMJ, supports the CCA’s power to 

order sentence-only rehearings and that, in any event, this 

court should continue to follow Miller under the doctrine of 

stare decisis. While Quick also relies on the plain language of 

 

2 The government also argues that Congress extended the authority 

to order sentence-only rehearings to convening authorities in 

the Military Justice Act of 1983 by amending Article 60, UCMJ. 

While that authority was inserted into Article 60(e)(3) in the 

1983 amendments, the authority already existed. The Senate 

Report that accompanied the Military Justice Act of 1983 

explained that the substantive rules governing a convening 

authority’s power to order a rehearing were taken from the then 

existing version of Article 63(a) which stated, “If the 

convening authority disapproves the findings and sentence of a 

court-martial he may, except where there is lack of sufficient 

evidence in the record to support the findings, order a 

rehearing.” S. Rep. NO. 98-53, at 51 (1983). As explained in 

the Senate Report, Article 63(a) was “implemented by paragraph 

92a of the Manual for Courts-Martial (rev. ed. 1969),” id. at 

27, which specifically stated, “In addition to having the power 

. . . to order a rehearing in full . . . , the convening 

authority or a reviewing authority may order a rehearing on the 

sentence only based on the sustained findings 

[Article](81b(2)).” Manual for Courts-Martial, United States, 

para. 92.a., at 18-1 (1969 rev. ed.) (MCM). Therefore, Congress 

considered that the amendments to Article 60(e) in 1983

“continue[d preexisting] authority for the convening authority 

to order . . . a rehearing on the sentence only based upon 

approved findings.” S. Rep. NO. 98-53, at 21. 
United States v. Quick, No. 15-0347/MC

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Article 66(d), UCMJ, in his statutory construction argument he 

primarily relies on 1 U.S.C. § 1, which provides that “[i]n 

determining the meaning of any Act of Congress, unless the 

context indicates otherwise . . . words importing the plural 

include the singular . . . .” Quick argues that since the term 

“findings” in Article 66(d) can be read as “finding,” the 

statute authorizes rehearings when the CCA sets aside “a finding 

and sentence.” 

The process for first-level appellate review of courtmartial convictions is encompassed within Article 66, UCMJ. 

Subsection (d) of Article 66 addresses the scope of the CCA’s 

authority to order rehearings:

If the Court of Criminal Appeals sets aside the 

findings and sentence, it may, except where the 

setting aside is based on lack of sufficient evidence 

in the record to support the findings, order a 

rehearing. If it sets aside the findings and sentence 

and does not order a rehearing, it shall order that 

the charges be dismissed.

Jackson v. Taylor:

In 1957, the Supreme Court decided Jackson, which addressed 

the options available to boards of review (now the Courts of 

Criminal Appeals) when a sentence has been set aside. 353 U.S. 

at 570-71. Jackson and two other soldiers had been convicted at 

a general court-martial of premeditated murder and attempted 

rape and all three were sentenced to life in prison. Id. The 

findings and sentences were approved by the convening authority. 
United States v. Quick, No. 15-0347/MC

6

Id. at 571. On appeal, however, the United States Army board of 

review set aside the convictions for premeditated murder and 

affirmed only the convictions for attempted rape. Id. at 570-

71. The board then modified the sentences and held that “only 

so much of the approved sentence as provides for dishonorable 

discharge, total forfeitures, and confinement at hard labor for 

20 years is correct in law and fact.” Id. at 570. The three 

soldiers sought review from this court (at that time the United 

States Court of Military Appeals), but did not challenge the 

authority of the board of review to modify the sentences. Id.

at 571-72. The petitions were summarily denied. Id. (citing 

United States v. Fowler, 2 C.M.R. 336 (A.B.R. 1952)).

The three soldiers were confined in different federal 

prisons and each appealed to the appropriate federal district 

court through writs of habeas corpus, challenging the board’s 

power to modify the sentences. Id. at 572. The district courts 

arrived at conflicting decisions as did the respective Circuit 

Courts of Appeal.3 Id. Relying on Article 66(c), the Supreme 

Court held that “[t]he board may ‘affirm . . . such part or 

 

3 The United States Court of Appeals for the Seventh Circuit held 

that the board of review did not have the power to modify the 

sentence while both the United States Courts of Appeals for the 

Third and Fifth Circuits held it possessed that authority. See

DeCoster v. Madigan, 223 F.2d 906, 910 (7th Cir. 1955),

overruled by 353 U.S. at 569; Jackson v. Taylor, 234 F.2d 611, 

614 (3d Cir. 1956), aff’d, 353 U.S. at 569; Wilkinson v. Fowler, 

234 F.2d 615 (5th Cir. 1956), aff’d, 353 U.S. at 569. 
United States v. Quick, No. 15-0347/MC

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amount of the sentence, as it finds correct . . . .’ That is 

precisely what the review board did here.” Id. at 576

(alterations in original) (citation omitted). Having determined 

that the board of review had the authority to alter the 

sentence, the Supreme Court turned to Jackson’s argument that 

the board was required to return the case to the convening 

authority for a sentence rehearing. Although it did not 

specifically reference Article 66(d), UCMJ, the Supreme Court 

summarily dispensed with this argument:

We find no authority in the Uniform Code for such a 

procedure and the petitioner points to none. The 

reason is, of course, that the Congress intended that 

the board of review should exercise this power. This 

is true because the nature of a court-martial 

proceeding makes it impractical and unfeasible to 

remand for the purpose of sentencing alone. See

United States v. Keith, 1 U.S.C.M.A. 442, 451, 4 

C.M.R. 34, 43 (1952).

Jackson, 353 U.S. at 579 (footnote omitted).

United States v. Miller:

In 1959 this court decided Miller, which considered whether 

the boards of review had the legal authority to order sentenceonly rehearings. 10 C.M.A. at 298, 27 C.M.R. at 372. The board

of review in Miller set aside a finding and ordered a sentenceonly rehearing. Id. at 297, 27 C.M.R. at 371. The Judge 

Advocate General of the Army then asked this court whether the 

board of review had exceeded its authority in light of the 

Supreme Court’s holding in Jackson. Id.
United States v. Quick, No. 15-0347/MC

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The Miller court reviewed its precedent as to the authority 

of boards of review to order rehearings and noted that it had, 

without exception, upheld the power of the boards to order 

sentence-only rehearings.4 Id. at 299, 27 C.M.R. at 373. The 

court addressed the Jackson decision, id. at 298, 27 C.M.R. at 

372, and noting that the Supreme Court had “purported to rely on 

the holdings of this Court,”5 found that:

[w]hile it is true we have generally returned cases to 

boards of review because sending them to the trial 

level is rather cumbersome in that a new court must be 

assembled and informed on the facts, there are some 

cases in which the latter disposition is preferable 

and, as indicated, our decisions approving this 

limited form of relief are found in the reported 

cases. Accordingly, we are led to believe that in 

Jackson v Taylor, supra, the Supreme Court was merely 

pointing out some of the difficulties which prompted 

Congress to authorize reassessment of the sentence by 

a board of review and that it was not intending to say 

the power to order the limited rehearing was not 

impliedly granted by Articles 66 and 67 of the Code. 

Accordingly, we reaffirm our previous holdings that a 

case may be returned to a court-martial for rehearing 

on sentence only.

Id. at 299, 27 C.M.R. at 373.

As recognized by both parties, when this court considers a 

request to overrule a prior decision of the court, we analyze 

the matter under the doctrine of stare decisis. The doctrine of 

 

4 Between the effective date of the UCMJ and the Jackson

decision, this court had recognized or affirmed the power of the 

boards of review to order sentence-only rehearings in at least 

four cases, but did not discuss the language of Article 66(d). 

See Appendix. 5 The Supreme Court in Jackson cited United States v. Keith, 

1 C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). 353 U.S. at 579.
United States v. Quick, No. 15-0347/MC

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stare decisis is “most compelling where courts undertake 

statutory construction.” United States v. Rorie, 58 M.J. 399, 

406 (C.A.A.F. 2003). 

When considering whether to overrule a precedent, we 

are guided by the doctrine of stare decisis. Under 

this fundamental principle, adherence to precedent “is 

the preferred course because it promotes the 

evenhanded, predictable, and consistent development of 

legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived 

integrity of the judicial process.” Payne v. 

Tennessee, 501 U.S. 808, 827 (1991).

Stare decisis is a principle of decision making, not a 

rule, and need not be applied when the precedent at 

issue is “unworkable or . . . badly reasoned.” Id.

As a general matter, however, “adhering to precedent 

‘is usually the wise policy, because in most matters 

it is more important that the applicable rule of law 

be settled than it be settled right.’” Id. (quoting

Burnet v. Colorado Oil & Gas Co., 285 U.S. 393, 406 

(1932) (Brandeis, J., dissenting).

United States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000).

Under the doctrine of stare decisis a decision should 

not be overruled without examining intervening events, 

reasonable expectations of servicemembers, and the 

risk of undermining public confidence in the law. 

Florida Department of Health and Rehabilitative 

Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 

151-55 (1981) (Stevens, J., concurring).

United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995).

For purposes of our analysis under the doctrine of stare 

decisis, therefore, we do not limit our review to whether Miller

was wrongly decided, but rather we examine: whether the prior 
United States v. Quick, No. 15-0347/MC

10

decision is unworkable or poorly reasoned;6 any intervening 

events; the reasonable expectations of servicemembers; and the 

risk of undermining public confidence in the law. 

Workability and Reasoning:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be 

assembled and informed of the facts. 10 C.M.A. at 299, 27 

C.M.R. at 373. However, a process that is cumbersome does not 

equate to a process that is unworkable. The very fact that the 

CCAs have been ordering sentence-only rehearings for over sixty

years demonstrates the workability of the process. That 

workability is further illustrated by paragraph 92.a. of the 

1969 MCM which authorized a convening authority to order a 

sentence-only rehearing and the 1983 statutory expansion of the 

authority to order sentence-only rehearings to the Judge 

Advocates General -- changes made with the participation and 

support of the government.7 We do not believe that the executive 

 

6 Cf. Johnson v. United States, 192 L. Ed. 2d 569, 584 (2015) 

(“The doctrine of stare decisis allows us to revisit an earlier 

decision where experience with its application reveals that it 

is unworkable.”).

7 Department of Defense General Counsel William H. Taft IV 

provided testimony to both the Senate and House hearings in 

support of the Military Justice Act of 1983 and noted that the 

Courts of Military Review (now the CCAs) already possessed the 

authority to order sentence rehearings. See S. Rep. No. 98-53, 

at 1; Hearing on S. 974 before the Military Personnel and 

Compensation Subcomm. of the Comm. on Armed Services, 98th Cong. 

38 (1983) (statement of Hon. William H. Taft, General Counsel of 

the Department of Defense). Both the Senate and House Committee 
United States v. Quick, No. 15-0347/MC

11

branch would itself adopt, and also request Congress to adopt,

an unworkable procedure. Indeed, the jurisprudence that has 

developed since Miller has established guidelines as to when it 

is appropriate for a CCA to remand a case for a sentence 

rehearing and when it is appropriate for a CCA to reassess the 

sentence at the appellate level.8 Consequently, there is nothing 

that has been submitted to this court which demonstrates that 

the Miller process is unworkable.

As to whether the Miller decision was poorly reasoned, both 

parties have presented valid arguments supporting their 

respective positions. However, we note that the Miller court 

directly addressed the Jackson decision and provided an 

explanation for its interpretation of that decision. We do not 

believe that Miller was so poorly reasoned that it should be 

reversed on that basis alone, particularly when it has been 

accepted by and relied upon by both the legislative and 

executive branches of government in the intervening years. 

 

Reports on S. 974 recognized that the Courts of Military Review 

possessed the authority to order sentence rehearings at that 

time. See S. Rep. No. 98-53, at 29; H.R. Rep. No. 98-549, at 

16. 8 See, e.g., United States v. Winckelmann, 73 M.J. 11, 14-16

(C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 43-44 

(C.A.A.F. 2006) (Baker, J., concurring in the result); United 

States v. Buber, 62 M.J. 476, 480 (C.A.A.F. 2006); United States 

v. Doss, 57 M.J. 182, 184-86 (C.A.A.F. 2002); United States v. 

Sales, 22 M.J. 305, 307 (C.M.A. 1986).
United States v. Quick, No. 15-0347/MC

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Intervening Events:

As noted, in the Military Justice Act of 1983, Congress 

amended Article 69, UCMJ, to grant authority to the Judge 

Advocates General to order sentence-only rehearings. Congress 

did not take that opportunity to amend Article 66(d) to grant 

similar authority to the CCAs.9 The government, while 

recognizing that legislative inaction does not necessarily 

reflect legislative intent, goes on to assert that Congress’s

“refusal” to grant the CCAs the same statutory authority could

be seen as evidence of congressional intent not to grant the 

CCAs the same power. They further suggest that such a failure 

by the legislature could constitute an intervening event for 

purposes of a stare decisis analysis.

The legislative history of the 1983 amendments, however, 

does not support such a conclusion. The amendments were 

endorsed by the Department of Defense and the Department’s 

testimony recognized that the Courts of Military Review already 

possessed that authority. Moreover, as noted above, the 

language supporting the government’s position that the CCAs had 

 

9 While Article 66, UCMJ, has been amended numerous times since 

its passage, Article 66(d), UCMJ, has only been amended twice, 

both times to change the name of the intermediate military 

court. See National Defense Authorization Act for Fiscal Year

1995, Pub. L. No. 103–337, 108 Stat. 2663; Military Justice Act

of 1968, Pub. L. No. 90-632, 82 Stat. 1335.
United States v. Quick, No. 15-0347/MC

13

this power was largely adopted by Congress.10 In view of the 

government’s position and congressional recognition that the 

CCAs possessed that authority at the time, there would be no 

reason for Congress to take legislative action. The Military 

Justice Act of 1983 does not constitute an intervening event for 

purposes of stare decisis.

Reasonable Expectations of Servicemembers:

While it is difficult to quantify the expectations of 

servicemembers in regard to the authority of the CCAs to order 

sentence-only rehearings, in the over sixty years of this

court’s consistent interpretation, Miller has become an 

established component of the military justice system. See

Appendix (non-exhaustive list of cases explicitly or implicitly 

affirming sentence-only rehearings). In the almost seventy

cases identified by this court, at least nine have discussed the 

CCA’s power to varying degrees.11 

 

10 See supra note 7.

11 See United States v. French, 10 C.M.A. 171, 185, 27 C.M.R. 

245, 259 (1959); United States v. Christopher, 13 C.M.A. 231, 

234, 32 C.M.R. 231, 234 (1962); Sales, 22 M.J. at 307; United 

States v. Jones, 39 M.J. 315, 317 (C.M.A. 1994); United States 

v. Boone, 49 M.J. 187, 194 (C.A.A.F. 1998); United States v. 

Murphy, 50 M.J. 4, 16 (C.A.A.F. 1998); United States v. Sills,

56 M.J. 239, 239 (C.A.A.F. 2002); United States v. Gaskins, 72 

M.J. 225, 231 (C.A.A.F. 2013); Winckelmann, 73 M.J. at 14.
United States v. Quick, No. 15-0347/MC

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Of particular note are Sills and Winckelmann. In Sills, 

the United States Air Force Court of Criminal Appeals (AFCCA) 

set aside the appellant’s conviction for committing an indecent 

act. 56 M.J. at 239. Citing legislative history and the 

Supreme Court’s decision in Jackson, however, the AFCCA 

determined it was without power to order a sentence-only 

rehearing. Id. We reversed the AFCCA, finding that the court 

“did not take into account this Court’s contrary, controlling 

interpretation of Jackson.” Id. In making our determination, 

we noted that this court’s position on Jackson had been 

unchanged for over four decades and that the power of the CCAs 

to order sentence-only rehearings had been recognized by both 

the executive and legislative branches of government. Id. at 

240. 

Winckelmann included an issue as to whether the CCA abused 

its authority when it failed to order a sentence rehearing. 

73 M.J. at 13. In considering the issue, this Court again 

addressed the Supreme Court’s holding in Jackson:

Although Jackson conclusively established the review 

board’s authority to reassess sentences in appropriate 

cases, in light of certain dicta in Jackson, a certain 

amount of confusion arose as to the authority of the 

board of review to order a rehearing on the sentence 

alone. However, what confusion that might have arisen 

as a result of the dicta in Jackson was resolved by

this Court in United States v. Miller. The Miller

court discussed Jackson and reaffirmed that “a 

rehearing limited to sentence alone may be an 

appropriate and permissive remedy for the cure of 

errors not affecting findings.” 
United States v. Quick, No. 15-0347/MC

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This consistent practice has stood since 1959 without 

legislative amendment by Congress.

Winckelmann, 73 M.J. at 14 (footnote and internal citations 

omitted).12

Risk of Undermining Public Confidence:

The Supreme Court has held that stare decisis “is the 

preferred course because it promotes the evenhanded, 

predictable, and consistent development of legal principles, 

fosters reliance on judicial decisions, and contributes to the 

actual and perceived integrity of the judicial process.” Payne 

v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. 

at 231. As noted, the Miller rule has been in effect for over 

sixty years and during that time has become accepted procedure 

in the military justice system. It has provided a predictable 

and consistent appellate remedy for both litigants and the lower 

courts to follow. 

The executive branch has acknowledged the viability of the 

Miller ruling when it extended the same authority to convening 

authorities in the 1969 MCM, and also when it supported

Congress’s extension of that authority to the Judge Advocates 

 

12 The Winckelmann court, however, was divided on this issue. 

See 73 M.J. at 17 (Stucky, J., concurring in the result) 

(“Despite the clear language of Jackson, this Court has refused 

to follow it.”); id. at 17-18 (Ryan, J., concurring in the 

result) (“I agree with Judge Stucky that the Jackson v. Taylor

language about rehearing on sentence alone is neither confusing 

nor a mere dictum.”) (internal quotation marks and citations 

omitted).
United States v. Quick, No. 15-0347/MC

16

General in 1983. The President has also specifically recognized 

the CCA’s power to order sentence-only rehearing in several 

provisions of the Rules for Courts-Martial (R.C.M.). See R.C.M. 

810(a)(2); R.C.M. 1203(c)(2).

Conclusion

In the more than six decades since the adoption of the 

UCMJ, this court has consistently interpreted Article 66(d), 

UCMJ, to authorize CCAs to order sentence-only rehearings. 

During that time the substantive language of the subsection has 

not changed and the government has recognized that the CCAs have 

the authority to order sentence-only rehearings, both before 

Congress and this court. The ability of CCAs to order sentenceonly rehearings is an accepted and viable appellate remedy and 

is relied upon by all litigants in the military justice system. 

The government has failed to establish sufficient justification 

to depart from the doctrine of stare decisis. See Arizona v. 

Rumsy, 467 U.S. 203, 212 (1984) (any departure from the doctrine 

of stare decisis demands special justification).

Decision

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.
Appendix

• United States v. Murgaw, 2 C.M.A. 369, 371, 8 C.M.R. 169, 

171 (1953) (setting aside the sentence in part but 

“declin[ing] to exercise [the Court’s] power to order a 

rehearing”) (Quinn, C.J., concurring) (Latimer, J., 

dissenting in part).

• United States v. McBride, 6 C.M.A. 430, 435, 20 C.M.R. 146, 

151 (1955) (affirming the decision of board of review as to 

sentence but reversing as to findings and directing a 

rehearing as to sentence) (Quinn, C.J., concurring) 

(Brosman, J., concurring in part and dissenting in part).

• United States v. Johnson, 7 C.M.A. 488, 494, 22 C.M.R. 278, 

284 (1957) (setting aside the findings of guilty of 

desertion and the sentence and authorizing a rehearing on 

the sentence) (Ferguson, J., concurring) (Latimer, J., 

dissenting).

• United States v. Oakley, 7 C.M.A. 733, 736, 23 C.M.R. 197, 

200 (1957) (affirming the decision of the board of review 

with regard to guilty findings but setting aside the 

sentence and authorizing a rehearing thereon) (Ferguson, 

J., concurring) (Latimer, J., concurring in part and 

dissenting in part).

• United States v. Guy, 8 C.M.A. 66, 67, 23 C.M.R. 290, 291 

(1957) (setting aside the sentence and ordering the record 

returned for submission to an appropriate court-martial 

convening authority for rehearing on sentence) (Ferguson, 

J., concurring) (Latimer, J., concurring in part and 

dissenting in part).

• United States v. Rinehart, 8 C.M.A. 402, 410, 24 C.M.R. 

212, 220 (1957) (reversing decision below as to sentence 

and authorizing a rehearing thereon) (Quinn, C.J., 

concurring) (Latimer, J., dissenting).

• United States v. Hirrlinger, 8 C.M.A. 716, 718, 25 C.M.R. 

220, 222 (1958) (finding error as to sentence and 

authorizing a rehearing thereon) (Quinn, C.J., concurring) 

(Ferguson, J., concurring in the result).

• United States v. Lowe, 9 C.M.A. 215, 215, 25 C.M.R. 477, 

477 (1958) (setting aside the decision of the board of 

review as to sentence and authorizing rehearing thereon) 
2

(Ferguson, J., concurring) (Latimer, J., concurring in the 

result).

• United States v. Varnadore, 9 C.M.A. 471, 476, 26 C.M.R. 

251, 256 (1958) (reversing the decision below as to 

sentence and authorizing rehearing thereon) (Ferguson, J., 

concurring) (Latimer, J., dissenting).

• United States v. Faylor, 9 C.M.A. 547, 548, 26 C.M.R. 327, 

328 (1958) (reversing the decision below and authorizing a 

rehearing as to sentence) (Quinn, C.J., concurring) 

(Latimer, J., concurring in the result).

• United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 

373 (1959) (affirming the authority under then Article 

66(d), UCMJ, for a board of review body to order a sentence 

rehearing).

• United States v. Crutcher, 11 C.M.A. 483, 484, 29 C.M.R. 

299, 300 (1960) (setting aside the sentence and authorizing 

reconsideration thereof) (Ferguson, J., concurring) 

(Latimer, J., dissenting).

• United States v. Spellman, 11 C.M.A. 505, 505, 29 C.M.R. 

321, 321 (1960) (setting aside the sentence and returning 

the record of trial for reconsideration thereof) (Ferguson, 

J., concurring) (Latimer, J., dissenting).

• United States v. Pope, 11 C.M.A. 520, 520, 29 C.M.R. 336, 

336 (1960) (setting aside decision of the board of review 

as to sentence and returning the record of trial for 

reconsideration thereof) (Ferguson, J., concurring) 

(Latimer, J., dissenting).

• United States v. Kitchens, 12 C.M.A. 589, 594, 31 C.M.R. 

175, 180 (1961) (setting aside sentence for unlawful 

command influence and authorizing the board of review to 

reassess the sentence by eliminating a punitive discharge 

or order sentence rehearing). 

• United States v. Smith, 12 C.M.A. 594, 595, 31 C.M.R. 180, 

180 (1961) (setting aside the sentence for possible 

unlawful command influence and authorizing sentence 

rehearing) (Ferguson, J., and Kilday, J., concurring).

• United States v. Barrett, 12 C.M.A. 598, 598, 31 C.M.R. 

184, 184 (1961) (setting aside the sentence for possible 

unlawful command influence and authorizing rehearing on 

sentence) (Ferguson, J., and Kilday, J., concurring). 
3

• United States v. Rosenblatt, 13 C.M.A. 28, 29, 32 C.M.R. 

28, 29 (1962) (setting aside the decision of board of 

review as to sentence and authorizing a rehearing thereon)

(Ferguson, J., and Kilday, J., concurring).

• United States v. Christopher, 13 C.M.A. 231, 234, 32 C.M.R. 

231, 234 (1962) (affirming the authority of the board of 

review, upon reassessment, to affirm a previously adopted 

sentence or to remand an appropriate case for a rehearing 

on sentence, but declining to hold that a board is required 

to direct a rehearing on sentence in all such cases) 

(Quinn, C.J., concurring) (Ferguson, J., concurring in part 

and dissenting in part).

• United States v. Pope, 17 C.M.A. 156, 157, 37 C.M.R. 420, 

421 (1967) (setting aside the sentence and authorizing a 

rehearing thereon) (Quinn, C.J., and Ferguson, J., 

concurring).

• United States v. Smith, 22 C.M.A. 528, 529, 48 C.M.R. 13, 

14 (1973) (per curiam) (setting aside the decision below as 

to sentence and authorizing a rehearing thereon).

• United States v. Sidney, 23 C.M.A. 185, 185, 48 C.M.R. 801, 

801 (1974) (per curiam) (reversing the decision below as to 

Charge I, dismissing the attendant specifications, and 

authorizing rehearing on sentence for remaining findings).

• United States v. Miller, 1 M.J. 357, 358 (C.M.A. 1976) (per 

curiam) (reversing the decision below as to sentence and 

authorizing a rehearing thereon).

• United States v. Willis, 3 M.J. 94, 96 (C.M.A. 1977) 

(setting the sentence aside and authorizing a rehearing 

thereon) (Fletcher, C.J., concurring) (Cook, J., 

dissenting).

• United States v. Landrum, 3 M.J. 160, 160 (C.M.A. 1977)

(summary disposition) (setting aside the sentence and 

stating that, “[i]n the interests of justice, no further 

proceedings will be held,” although “a new hearing on 

sentence could be ordered”).

• United States v. James, 3 M.J. 341, 341 (C.M.A. 1977)

(summary disposition) (reversing the findings below in part 

and authorizing a sentence rehearing based on remaining 

guilty findings).
4

• United States v. Cummings, 3 M.J. 377, 377 (C.M.A. 1977) 

(misc. docket) (reversing the decision below, dismissing 

Charge IV and its specifications, and returning the case 

for reassessment of the sentence).

• United States v. Roberts, 4 M.J. 91, 91 (C.M.A. 1977) 

(reversing the decision below as to one specification,

dismissing that specification, and authorizing reassessment 

of the sentence) (Cook, J., concurring).

• United States v. Chastain, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications,

and authorizing reassessment of the sentence) (Cook, J., 

dissenting).

• United States v. Merchant, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications, 

and authorizing reassessment of the sentence) (Cook, J., 

concurring).

• United States v. Henderson, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications,

and authorizing reassessment of the sentence).

• United States v. Johnson, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications,

and authorizing reassessment of the sentence) (Cook, J., 

dissenting).

• United States v. Cader, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications, 

and authorizing reassessment of the sentence) (Cook, J., 

dissenting).

• United States v. Adams, 4 M.J. 91, 91 (C.M.A. 1977)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications,

and authorizing reassessment of the sentence).

• United States v. Vick, 4 M.J. 235, 236 (C.M.A. 1978) 

(reversing the decision below as to additional Charge II 

and authorizing sentence reconsideration).
5

• United States v. Ludlow, 5 M.J. 411, 412 (C.M.A. 1978) 

(reversing the court below, setting aside the sentence 

imposed, and authorizing a rehearing on the sentence)

(Fletcher, C.J., dissenting).

• United States v. Scott, 5 M.J. 431, 433 (C.M.A. 1978) 

(setting aside sentence and authorizing a rehearing 

thereon) (Perry, J., concurring) (Cook, J., dissenting).

• United States v. Webb, 6 M.J. 85, 85 (C.M.A. 1978) 

(reversing the court below as to sentence and authorizing a 

rehearing thereon).

• United States v. Bowman, 7 M.J. 260, 260 (C.M.A. 1979)

(summary disposition) (setting aside the findings of guilty 

as to certain specifications and dismissing the same and 

returning the record for reassessment of sentence based on 

remaining findings of guilty) (Cook, J., dissenting).

• United States v. Swalley, 7 M.J. 261, 261 (C.M.A. 1979)

(summary disposition) (setting aside the findings of guilty 

as to certain specifications and dismissing the same and 

returning the record for reassessment of sentence based on 

remaining findings of guilty) (Cook, J., dissenting).

• United States v. Fisher, 21 M.J. 327, 329 (C.M.A. 1987) 

(reversing decision of the Court of Military Review and 

returning for reassessment of sentence) (Everett, C.J., 

concurring).

• United States v. Silva, 21 M.J. 336, 337 (C.M.A. 1986) 

(setting aside decision below as to sentence and 

authorizing review thereof) (Everett, C.J., concurring in 

the result).

• United States v. Bass, 22 M.J. 113, 113 (C.M.A. 1986)

(summary disposition) (reversing the decision below as to 

sentence and authorizing a sentence rehearing in the event 

appellate defense counsel so requests within twenty days of 

the order).

• United States v. Murphy, 22 M.J. 113, 113 (C.M.A. 1986)

(summary disposition) (reversing the decision below as to 

sentence and authorizing a sentence rehearing in the event 

appellate defense counsel so requests within twenty days of 

the order).

• United States v. Cozart, 22 M.J. 113, 113 (C.M.A. 1986)

(summary disposition) (reversing the decision below as to 
6

sentence and authorizing a sentence rehearing in the event 

appellate defense counsel so requests within twenty days of 

the order).

• United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986) 

(reaffirming the authority of the Court of Military Review 

to authorize a rehearing on sentence) (Cox, J., and 

Sullivan, J., concurring), discussed in United States v. 

Abilar, 2001 CCA LEXIS 266, at *11-*12, 2001 WL 1345657, at 

*4 (A.F. Ct. Crim. App. Oct. 31, 2001) (explaining this 

authority is no longer limited to instances in which the 

court is unable “to reliably determine what sentence would 

have been imposed at the trial level if the error had not 

occurred”) (internal quotation marks and citation omitted).

• United States v. Kinman, 25 M.J. 99, 102 (C.M.A. 1987) 

(reversing the decision below as to sentence and 

authorizing a rehearing thereon) (Sullivan, J., concurring)

(Cox, J., dissenting).

• United States v. Caraballo, 26 M.J. 216, 216 (C.M.A. 1988)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications,

and authorizing sentence rehearing based on remaining 

guilty findings) (Cox, J., dissenting).

• United States v. Deguzman, 26 M.J. 216, 216 (C.M.A. 1988)

(summary disposition) (reversing the decision below as to 

certain specifications, dismissing those specifications, 

and authorizing sentence rehearing based on remaining 

guilty findings) (Cox, J., concurring in part and 

dissenting in part).

• United States v. Mullens, 27 M.J. 398, 398 (C.M.A. 1988)

(summary disposition) (authorizing the sentence to be set 

aside and a sentence rehearing to be held if facts proved 

inadmissible and prejudicial error was found).

• United States v. English, 27 M.J. 398, 398 (C.M.A. 1988) 

(setting aside the findings as to Charge I, dismissing 

Charge I, and authorizing reassessment of sentence based on 

the remaining guilty findings).

• United States v. Kirk, 31 M.J. 84, 90 (C.M.A. 1990) 

(reversing the decision below as to sentence and 

authorizing a rehearing thereon) (Everett, C.J., and Cox, 

J., concurring).
7

• United States v. Hadlick, 31 M.J. 413, 413 (C.M.A. 1990)

(summary disposition) (affirming the findings below but 

setting aside the sentence and authorizing a rehearing 

thereon).

• United States v. Pompey, 33 M.J. 266, 267, 271 (C.M.A. 

1991) (affirming the decision below to set aside the 

sentence and authorize a rehearing thereon or, in the 

alternative, authorizing a sentence of no punishment)

(Sullivan, C.J., and Cox, J., concurring).

• United States v. Martinez, 40 M.J. 82, 84 (C.M.A. 1994) 

(reversing the decision below as to sentence and 

authorizing a rehearing thereon) (Cox, J., Gierke, J., and 

Wiss, J., concurring) (Crawford, J., concurring in result).

• United States v. Boone, 49 M.J. 187, 194 (C.A.A.F. 1998)

(reaffirming the Court of Criminal Appeals’ authority to 

order a rehearing on sentence) (Cox, C.J., Crawford, J., 

Gierke, J., and Effron, J., concurring).

• United States v. Murphy, 50 M.J. 4, 16 (C.A.A.F. 1998) 

(setting aside the decision below, remanding the case to 

the CCA to review new evidence, and authorizing a rehearing 

as to death sentence) (Sullivan, J., and Crawford, J., 

dissenting).

• United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) 

(affirming the decision below as to findings but reversing 

as to sentence and authorizing a sentence rehearing) 

(Gierke, J., joined by Crawford, C.J., concurring in the 

result).

• United States v. Washington, 55 M.J. 441, 443 (C.A.A.F. 

2001) (affirming the court below as to findings but 

reversing as to sentence and authorizing a rehearing as to 

sentence) (Crawford, C.J., dissenting).

• United States v. Sills, 56 M.J. 239, 239 (C.A.A.F. 2002)

(per curiam) (discussing the distinction between U.S.

Supreme Court precedent indicating that the Court of 

Criminal Appeals is without authority to order a rehearing 

on sentence, and that of the U.S. Court of Appeals for the 

Armed Forces, holding that such courts indeed have the 

power to authorize rehearings as to sentence).

• United States v. Miles, 58 M.J. 192, 195 (C.A.A.F. 2003) 

(affirming the findings but reversing the decision below as 
8

to sentence and authorizing a sentence rehearing)

(Crawford, C.J., dissenting).

• United States v. Moffeit, 60 M.J. 348, 348 (C.A.A.F. 2004) 

(setting aside the findings of guilt, remanding the case 

and authorizing a sentence rehearing based on the remaining 

offense), discussed by United States v. Moffeit, 63 M.J. 

40, 41 (C.A.A.F. 2006).

• United States v. Baier, 60 M.J. 382, 385 (C.A.A.F. 2005) 

(setting aside the decision below as to sentence and 

authorizing a sentence rehearing).

• United States v. Quintanilla, 63 M.J. 29, 30-31 (C.A.A.F. 

2006) (affirming the decision below to set aside the 

sentence and authorizing a rehearing thereon).

• United States v. Davis, 63 M.J. 171, 175-76 (C.A.A.F. 2006) 

(explaining the jurisdictional rules allowing for sentence 

rehearings).

• United States v. Humphries, 71 M.J. 209, 211 (C.A.A.F. 

2012) (dismissing the finding of guilty as to certain 

charges, remanding the case for reassessment, and 

authorizing a rehearing on the sentence, if necessary).

• United States v. Gaskins, 72 M.J. 225, 231 (C.A.A.F. 2013) 

(reaffirming the power of an appellate body to authorize a 

rehearing on sentence) (Stucky, J., concurring in part and 

in the result) (Baker, C.J., concurring in part and 

dissenting in part).

• United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 

2013) (reviewing the U.S. Court of Appeals for the Armed 

Forces precedent giving appellate bodies power to authorize 

a sentence rehearing as compared to the U.S. Supreme Court 

precedent that holds to the contrary). 
United States v. Quick, No. 15-0347/MC

BAKER, Judge∗ (concurring):

I concur with the majority opinion and its compelling 

analysis of stare decisis. I write separately to make three 

additional points.

First, while neither the Government nor Appellee have 

analyzed the historical underpinnings of Article 66(d), Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 866(d) (1996), the 

legislative history of the UCMJ and the predecessor Articles of 

War clearly indicates that Congress empowered the courts of 

criminal appeals -- previously the boards of review –- to order 

rehearings on sentence. The authority was first established in 

1920, in Article 501⁄2 of the Articles of War: 

When . . . the board of review holds the record of trial 

legally insufficient to support the findings or sentence, 

either in whole or in part . . . such findings and sentence 

shall be vacated in whole or in part . . . and the record 

shall be transmitted through the proper channels to the 

convening authority for a rehearing or such other action as 

may be proper. 

Article of War 501⁄2 (1920) (emphasis added).

This authority was carried forward in the 1948 Elston Act, 

through which Congress intended to retain “the substance of the 

clauses of . . . Article of War 501⁄2 relating to rehearings” in 

the revised Articles of War, via Article of War 52. H.R. Rep. 

 

∗ Former Chief Judge James E. Baker took final action in this 

case prior to the expiration of his term on July 31, 2015.
United States v. Quick, No. 15-0347/MC

2

No. 1034, at 13 (1947). Article of War 52 stated that any 

reviewing authority, including the boards of review and the 

nominal predecessor of this Court -- the judicial council --

possessed the authority to order a rehearing on sentence:

When any reviewing or confirming authority disapproves a 

sentence or when any sentence is vacated by action of the 

board of review or judicial council . . . the reviewing or 

confirming authority or the Judge Advocate General may 

authorize or direct a rehearing. 

Article of War 52 (1948). This authority, in turn, was included 

in the UCMJ:

If the board of review sets aside the findings and 

sentence, it may, except where the setting aside is based 

on lack of sufficient evidence in the record to support the 

findings, order a rehearing.

Article 66(d), UCMJ (1950).

Notwithstanding this history, the Government contends that 

this Court “rewrote” Article 66(d), UCMJ, in United States v. 

Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), in an ultra vires 

grant of rehearing authority by judicial fiat. The problem with 

this argument is that the courts of criminal appeals and 

predecessor boards of review have possessed the power to order a 

rehearing on sentence for nearly a century, and Congress never 

intended anything to the contrary. In presenting Article 66(d),

UCMJ, to Congress, the Department of Defense succinctly 

described the board of review’s rehearing power by referencing 
United States v. Quick, No. 15-0347/MC

3

the like power of the convening authority under Article 63, 

UCMJ:

Subdivision (d) deals with the power to order a rehearing. 

(See Article 63.).

Uniform Code of Military Justice: Hearings on H.R. 2498 Before a 

Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 914 (1949), 

reprinted in Index and Legislative History, Uniform Code of 

Military Justice (1950) (not separately paginated) [hereinafter 

Legislative History].

The drafters noted in the commentary to Article 63, UCMJ

that the rehearing power was “adopted from” Article of War 52, 

as amended by the 1948 Elston Act. Legislative History at 1180. 

Article of War 52, in turn, was intended to restate the 

substance of its predecessor, Article of War 501⁄2. H.R. Rep. No. 

1034, at 13. Article 501⁄2 makes clear that the “findings and 

sentence,” used in this context, refer to the findings or

sentence set aside by the board of review, “in whole or in 

part.” In other words, statutory law dating back nearly a 

century -- not one decision of this Court or the United States 

Supreme Court viewed in a vacuum -- answers the question 

certified by the Government.

Nonetheless, the Government invites this Court to 

relitigate this issue as if Jackson v. Taylor, 353 U.S. 569 
United States v. Quick, No. 15-0347/MC

4

(1957), had been decided yesterday,1 and to analyze just what 

Article 66(d), UCMJ, means as if it were new law. 

My second point is this: the year is 2015, not 1958. In 

the nearly six decades that have elapsed, the President has 

consistently promulgated Rules for Courts-Martial authorizing 

and establishing procedures for sentence-only rehearings.2

 

United States v. Sills, 56 M.J. 239, 240 (C.A.A.F. 2002) (per 

curiam) (unanimous) (noting that Rules for Courts-Martial 

810(a)(2) and 1203(c)(2) specifically contemplate sentence-only 

rehearings). The Manual for Courts-Martial (MCM), in turn, has 

consistently differentiated between retrials and rehearings 

(i.e., not every rehearing is a retrial on findings and

 

1 Contrary to the dissent’s contention, every judge of this Court 

has not contravened Supreme Court precedent for more than six 

decades. We have, in at least twenty cases, recognized 

Jackson’s holding that Article 66(c), UCMJ, provides the 

statutory authority for military appellate courts to conduct 

sentence reassessment. See infra Appendix to Concurring 

Opinion. That conclusion represents the holding of Jackson, as 

explicitly recognized by the Supreme Court in the companion case 

of Fowler v. Wilkinson, 353 U.S. 583, 585 (1957) (“[T]he board 

of review had jurisdiction to modify the sentence. [The] 

inquiry cannot be extended beyond that question.”). 2 The responses that the President cannot make substantive law, 

or that he has merely acquiesced to this Court’s ultra vires 

action, are not persuasive. In enacting these provisions, the 

President is acting pursuant to his statutory authority to 

establish procedural rules for the military justice system. 

Article 36, UCMJ, 10 U.S.C. § 836 (2012).
United States v. Quick, No. 15-0347/MC

5

sentence), and has specifically contemplated “rehearings on 

sentence only.” E.g., MCM para. 81(b)(2) (1969 ed.).3 

Rehearings on sentence, therefore, have been contemplated 

by Congress since the Articles of War, and relevant procedures 

have been consistently promulgated by the President and 

recognized by the Department of Defense. As the majority

opinion notes, they are not unworkable under well-understood 

principles of stare decisis. But an equally important 

consideration, and my third point, is that the Government’s 

position is itself unworkable and may raise serious 

constitutional questions.

 

3 The MCM has discussed rehearings on sentence since the first 

edition dealing with the UCMJ was published in 1951, noting that 

“[i]f a sentence is disapproved because of any procedural error 

prejudicial to the substantial rights of the accused, a 

rehearing may properly be ordered” by the convening authority, 

the board of review, or the Court of Military Appeals. MCM ch. 

XVIII, para. 92 (1951 ed.). And, of course, editions of the MCM

published under the Articles of War provided guidance for issues 

presented by sentence-only rehearings. For example, the 

commentary accompanying Article 501⁄2 in the 1936 edition of the 

MCM stated that when the “board of review and the Judge Advocate 

General hold the record of trial to be legally insufficient to 

support a sentence requiring confirmation by the President 

before its execution, the record should not be submitted to the 

Secretary of War for the action of the President but should be 

returned to the reviewing authority in accordance with the 

provisions of A.W. 501⁄2 for re-hearing or such other action as 

may be proper.” A Manual for Courts-Martial, U.S. Army app. 1 

at 216 (1936 ed.). 
United States v. Quick, No. 15-0347/MC

6

The Government’s position (or at least the Navy’s position 

in this case) is that appellate courts within the military 

justice system lack the power to order a rehearing on sentence.4 

This position ignores the fact that in some cases, a military 

appellate court “cannot reliably determine what sentence would 

have been imposed at the trial level if the error had not 

occurred. Under these circumstances, a rehearing on sentence is 

in order.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 

1986). This consideration is perhaps most obviously illustrated 

by prejudicial error arising in the sentencing phase of a 

capital case. Presumably, in the Government and the dissent’s 

view, prejudicial legal error in the penalty phase of a capital 

trial could be resolved on appeal as follows:

(1) The Court of Criminal Appeals (CCA) may find 

constitutional error, such as ineffective assistance 

of counsel.

(2) The CCA may test the error for harmlessness, and 

conclude that the error is not harmless beyond a 

reasonable doubt.

 

4 In the context of this litigation, this position is taken by 

the Navy’s Appellate Government Division, and individual 

appellate divisions have decided whether or not to file amicus 

briefs. The filings do not reflect whether the assertion that 

appellate courts within the military justice system lack the 

authority to order a rehearing on sentence represents the 

coordinated position of the Department of Defense, the President 

of the United States, or the United States government.
United States v. Quick, No. 15-0347/MC

7

(3) The CCA may proceed to reassess the death sentence.5 

The CCA may not order a rehearing on sentence, because 

it lacks that authority under Article 66(d), UCMJ, 

even when presented with prejudicial constitutional 

error. 

(4) The CCA may conclude by majority vote that, 

notwithstanding constitutional error prejudicial to 

the appellant’s substantial rights under Article 

59(a), UCMJ, during the sentencing phase of trial, the 

death penalty is appropriate. 

As a general matter, “absurd results are to be avoided if 

alternative [statutory] interpretations consistent with the 

legislative purpose are available.” Griffin v. Oceanic 

Contractors, Inc., 458 U.S. 564, 575 (1982).6 That principle 

 

5 Sentence reassessment is not synonymous with sentence 

reduction; reduction is not automatically required in the case 

of reassessment. Sales, 22 M.J. at 308.

6 As recently as 2006, the Navy’s Appellate Government Division 

took the view that military appellate courts may order 

rehearings on sentence, and successfully asked this Court to 

order such a hearing in a death penalty case. United States v. 

Quintanilla, 63 M.J. 29 (C.A.A.F. 2006). When Quintanilla moved 

for reconsideration and argued that the unique nature of 

military death penalty proceedings entitled him to a rehearing 

on both findings and sentence, the Navy’s reply characterized 

his position as “at odds with established case law,” and stated 

that it “would lead to obviously absurd results.” Government’s 

Answer to Petition for Reconsideration, United States v. 

Quintanilla, Nos. 05-0274 and 05-5001, 2006 WL 1087142, at *3 

(C.A.A.F. Apr. 11, 2006). 
United States v. Quick, No. 15-0347/MC

8

applies here, where nothing suggests that Congress intended such 

a scheme. Moreover, even under Congress’s authority to make 

rules for the government and regulation of the land and naval 

forces, it is not at all clear that the system envisioned by the 

Government -- allowing appellate courts to reassess and affirm a 

death sentence notwithstanding prejudicial constitutional error

during the sentencing phase -- would afford a military appellant 

the due process protections guaranteed by the Constitution. 

Thus, when asked whether to adhere to our long-standing 

interpretation of a statutory provision and its predecessors 

which have permitted rehearings on sentence since 1920, or 

whether to adopt a new construction that would raise novel 

constitutional questions, this Court is “obligated to construe 

the statute to avoid [constitutional] problems if it is fairly

possible to do so.” Boumediene v. Bush, 553 U.S. 723, 787 

(2008) (citing I.N.S. v. St. Cyr, 533 U.S. 289, 299 (2001)

(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))) (internal 

quotation marks omitted). 

In light of these considerations, the question might 

reasonably be asked, why, if every Judge of this Court has 

ignored Supreme Court precedent for more than sixty years, not a 

single Justice of the Supreme Court has so indicated in 
United States v. Quick, No. 15-0347/MC

9

evaluating petitions for writ of certiorari.7 In United States 

v. Thomas, 66 M.J. 382 (C.A.A.F. 2008), cert. denied, 555 U.S. 

886 (2008), the petitioner quoted Jackson’s language finding “no 

authority” for sentence rehearings in the UCMJ, argued that 

there was a split between this Court and other federal courts of 

appeals regarding the authority to remand a case for 

resentencing, and asserted that “there is a question as to 

whether the CAAF even has the authority under the UCMJ to remand 

a case for resentencing.” Petition for a Writ of Certiorari,

Thomas v. United States, No. 08-117, 2008 WL 2900046, at *13, 

*17 (July 24, 2008). Of course, denials of certiorari are not 

precedential, but if -- as the dissent contends -- this Court 

has disregarded the hierarchy of the federal judiciary and 

supported judicial “anarchy” for over six decades, it stands to 

reason that the Supreme Court might say so.8 See U.S. Sup. Ct.

 

7 In at least four petitions for writ of certiorari, petitioners 

have explicitly challenged the sentence reassessment power of 

military appellate courts, and have noted the possibility of 

sentence rehearings under this Court’s case law and Article 

66(d), UCMJ. See United States v. Thomas, 66 M.J. 382 (C.A.A.F. 

2008), cert. denied, 555 U.S. 886 (2008); United States v. 

Hoskins, 39 M.J. 361 (C.M.A. 1994), cert. denied, 513 U.S. 809 

(1994); United States v. Arguello, 30 M.J. 219 (C.M.A. 1990), 

cert. denied, 498 U.S. 846 (1990); United States v. Burns, 25 

M.J. 218 (C.M.A. 1987), cert. denied, 484 U.S. 977 (1987). 8 Apart from arguing that a rehearing on sentence should have 

been ordered, in some cases, petitioners stated that a rehearing 

on sentence had been ordered or had already occurred. E.g., 

United States v. McMurrin, 73 M.J. 243 (C.A.A.F. 2014), cert. 
United States v. Quick, No. 15-0347/MC

10

R. 10(c). Alternatively, if the argument raised by the dissent 

has long been settled, then no further consideration would 

appear necessary.

In summary, this Court was correct in 1959, when it 

determined that appellate courts within the military justice 

system have the power to order sentence-only rehearings. 

Miller, 10 C.M.A. at 298–99, 27 C.M.R. at 372–74. Whatever the 

import of the Supreme Court’s dictum in 1957 finding “no 

authority” for the procedure -- made in the course of denying 

relief to a habeas petitioner challenging the reassessment power 

of the boards of review -- there is such authority today, and it 

has been consistently recognized by this Court, the Department 

of Defense, and the President. As the Navy argued in 2006, to 

conclude otherwise “would lead to obviously absurd results.”

 

denied, 135 S. Ct. 382 (2014); Quintanilla, 63 M.J. 29, cert. 

denied, 549 U.S. 886 (2006); United States v. Saintaude, 61 M.J. 

175 (C.A.A.F. 2005), cert. denied, 546 U.S. 979 (2005); United 

States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004); cert. denied, 

544 U.S. 923 (2005); United States v. Johanns, 20 M.J. 155 

(C.M.A. 1985), cert. denied, 474 U.S. 850 (1985).
United States v. Quick, No. 15-0347/MC

11

APPENDIX TO CONCURRING OPINION

Cases Addressing Jackson v. Taylor, 353 U.S. 569 (1957)

United States v. Cummins, 9 C.M.A. 669, 679, 26 C.M.R. 449, 459 

(1958) (Ferguson, J., dissenting) (noting that Jackson addressed 

the “power of the boards of review to determine appropriateness 

of sentence”).

United States v. French, 10 C.M.A. 171, 185, 27 C.M.R. 245, 259

(1959) (Latimer, J.) (recognizing Jackson’s determination that 

an accused is not “as a matter of law” entitled to a sentence 

rehearing in all cases).

United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 

(1959) (Latimer, J.) (concluding that the Supreme Court’s 

decision in Jackson was addressed to sentence reassessment and 

did not intend to disturb existing rehearing practice).

United States v. Russo, 11 C.M.A. 352, 358, 29 C.M.R. 168, 174 

(1960) (Ferguson, J.) (citing Jackson for the proposition that 

the boards of review have broad power to determine sentence 

appropriateness).

United States v. Rhodes, 11 C.M.A. 734, 745, 29 C.M.R. 551, 561 

(1960) (Quinn, C.J.) (reaffirming the board of review’s 

reassessment power as upheld in Jackson).

United States v. Lindsay, 12 C.M.A. 235, 242, 30 C.M.R. 235, 242 

(1961) (Latimer, J., concurring in the result) (citing Jackson
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12

for the proposition that, while sentence rehearings are 

permissible, sentence reassessment was appropriate).

United States v. Christopher, 13 C.M.A. 231, 234, 32 C.M.R. 231, 

234 (1962) (Kilday, J.) (noting that Article 66(c), UCMJ,

authorizes the unique military procedure, approved by the 

Supreme Court in Jackson, of sentence reassessment).

United States v. Zunino, 15 C.M.A. 179, 180, 35 C.M.R. 151, 152 

(1964) (Kilday, J.) (citing Jackson for the proposition that 

sentence rehearing, while permissible, was not required).

United States v. Glaze, 22 C.M.A. 230, 230-31, 46 C.M.R. 230, 

230-31 (1973) (Darden, C.J.) (upholding the lower court’s power

to reassess the sentence under Article 66(c), UCMJ, and 

Jackson).

United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986) (Everett, 

C.J.) (concluding that sentence reassessment under Article 

66(c), UCMJ, is constitutional, citing Jackson).

United States v. Boone, 49 M.J. 187, 195 (C.A.A.F. 1998) 

(Ripple, Circuit Judge, sitting by designation) (reading Jackson

and Miller together to conclude that both sentence reassessment 

and sentence rehearings are permissible appellate remedies).

United States v. Curtis, 52 M.J. 166, 168 (C.A.A.F. 1999) (per 

curiam) (recognizing that Jackson upheld the reassessment power 

of military appellate courts under Article 66(c), UCMJ).
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United States v. Eversole, 53 M.J. 132, 133 (C.A.A.F. 2000) 

(Cox, S.J.) (same).

United States v. Wilson, 54 M.J. 57, 61 (C.A.A.F. 2000) 

(Sullivan, J., concurring in part and dissenting in part) 

(citing Jackson in relation to Article 66(c), UCMJ).

United States v. Sills, 56 M.J. 239, 239 (C.A.A.F. 2002) (per 

curiam) (unanimous) (concluding that the lower court erred in 

finding that it had no authority to order a sentence rehearing 

under Jackson); see also Sills, 57 M.J. 606, 607 (A.F. Ct. Crim. 

App. 2002) (Breslin, S.J.) (explaining that the Air Force Court 

of Criminal Appeals was “well aware of its authority to order a 

rehearing on sentence,” and asserting that its original opinion 

was misconstrued by all parties).

United States v. Doss, 57 M.J. 182, 187 (C.A.A.F. 2002) 

(Crawford, C.J., concurring in part and dissenting in part) 

(citing Jackson and Miller to support the CCA’s authority to 

reassess the sentence under Article 66(c), UCMJ).

United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002 

(Gierke, J.) (noting that the Supreme Court’s decision in 

Jackson affirmed the practice of sentence reassessment under 

Article 66, UCMJ).

United States v. Washington, 57 M.J. 394, 405 (C.A.A.F. 2002) 

(Sullivan, S.J., concurring in part and dissenting in part) 

(citing Jackson in connection with Article 66(c), UCMJ).
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United States v. Nerad, 69 M.J. 138, 142 n.3 (C.A.A.F. 2010) 

(Ryan, J.) (“the dissent’s interpretation of Jackson [(Stucky, 

J., dissenting)] is squarely at odds with this Court's 

interpretation”).

United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013) 

(Baker, C.J.) (“[W]hat confusion that might have arisen as a 

result of the [Supreme Court’s] dicta in Jackson was resolved by 

this Court in [Miller]”).
United States v. Quick, No. 15-0347/MC

STUCKY, Judge, with whom OHLSON, Judge, joins (dissenting):

Stare decisis is defined as “[t]he doctrine of precedent, 

under which a court must follow earlier judicial decisions when 

the same points arise again in litigation.” Black’s Law 

Dictionary 1626 (10th ed. 2014). The doctrine encompasses at 

least two distinct concepts, only one of which is raised by this 

case: (1) “an appellate court[] must adhere to its own prior 

decisions, unless it finds compelling reasons to overrule 

itself” (horizontal stare decisis); and (2) courts “must 

strictly follow the decisions handed down by higher courts” 

(vertical stare decisis). Id. The majority employs the former 

to enshrine this Court’s flawed opinion in United States v. 

Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), when the latter is 

the only relevant inquiry.

Citing Jackson v. Taylor, 353 U.S. 569 (1957), the Judge 

Advocate General of the Navy asked this Court whether the courts 

of criminal appeals are authorized to remand cases for 

rehearings on sentence alone. The majority begins by correctly 

describing the genesis of the issue. In Jackson, the petitioner 

contested the authority of the United States Army Board of 

Review to reassess his sentence instead of remanding for a 

sentence rehearing. Id. at 571. The Supreme Court concluded:

Finally, the petitioner suggests that the case should be 

remanded for a rehearing before the court-martial on the 

question of the sentence. We find no authority in the 
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2

Uniform Code for such a procedure and the petitioner points 

to none. The reason is, of course, that the Congress 

intended that the board of review should exercise this 

power. This is true because the nature of a court-martial 

proceeding makes it impractical and unfeasible to remand 

for the purpose of sentencing alone. See United States v. 

Keith, 1 C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). Even 

petitioner admits that it would now, six years after the 

trial, be impractical to attempt to reconvene the courtmartial that decided the case originally. A court-martial 

has neither continuity nor situs and often sits to hear 

only a single case. Because of the nature of military 

service, the members of a court-martial may be scattered 

throughout the world within a short time after a trial is 

concluded. Recognizing the impossibility of remand to the 

same court-martial, petitioner suggests as an alternative 

that the case should be remanded for a rehearing before a 

new court-martial. He admits that it would now be 

impractical for such a new court-martial to hear all of the 

evidence, and that the court would have to make its 

sentence determination on the basis of what it could learn 

from reading the record. Such a procedure would merely 

substitute one group of nonparticipants in the original 

trial for another. Congress thought the board of review 

could modify sentences when appropriate more expeditiously, 

more intelligently, and more fairly. Acting on a national 

basis the board of review can correct disparities in 

sentences and through its legally-trained personnel 

determine more appropriately the proper disposition to be 

made of the cases. Congress must have known of the 

problems inherent in rehearing and review proceedings for 

the procedures were adopted largely from prior law. It is 

not for us to question the judgment of the Congress in 

selecting the process it chose.

Id. at 579-80 (emphasis added) (footnotes omitted).

Two years after Jackson, the Court of Military Appeals 

flatly ignored the Supreme Court’s explicit holding. Miller, 10 

C.M.A. at 297, 27 C.M.R. at 371. The Court of Military Appeals 

noted that it was the practice of military courts to order 

rehearings on sentence alone before Jackson. Id. at 299, 27 
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C.M.R. at 373. It asserted that the UCMJ does not prohibit, and 

“impliedly authorizes,” remands for rehearings on only the 

sentence. Id. at 299, 27 C.M.R. at 373. 

Moreover, as the board of review pointed out in its wellreasoned opinion, the literal but entirely unreasonable 

construction of Article 66(d), supra, can easily be avoided 

merely by substituting “or” for “and,” construing that 

statute to provide, “If the board of review sets aside the 

findings or sentence, it may . . . order a rehearing.” 

(Emphasis supplied.)

Id. at 299, 27 C.M.R. at 373 (quoting United States v. Miller, 

26 C.M.R. 673, 680 (A.B.R. 1958)).

The Court of Military Appeals’ decision in Miller

contravened vertical stare decisis by analyzing de novo whether 

the UCMJ authorized a sentence rehearing, rather than applying 

the Supreme Court precedent from Jackson. The Supreme Court has 

unequivocally condemned such actions:

[T]he Court of Appeals could be viewed as having ignored, 

consciously or unconsciously, the hierarchy of the federal 

court system created by the Constitution and 

Congress. . . . [U]nless we wish anarchy to prevail within 

the federal judicial system, a precedent of [the Supreme]

Court must be followed by the lower federal courts no 

matter how misguided the judges of those courts may think 

it to be.

Hutto v. Davis, 454 U.S. 370, 374–75 (1982); see United States v. 

Tualla, 52 M.J. 228, 230 (C.A.A.F. 2000) (recognizing that lower 

courts are bound by decisions of superior courts).

Today, the majority analyzes the issue presented by 

employing the criteria for overruling one of its own decisions
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(horizontal stare decisis). United States v. Quick, __ M.J. __, 

__ (9) (determining whether the precedent is unworkable or badly 

reasoned (citing Tualla, 52 M.J. at 231), and examining 

intervening events, reasonable expectations of servicemembers, 

and the risk of undermining public confidence in the law (citing 

United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995))).1 

This would be all well and good in the proper context. It 

misses the point entirely in the context actually presented. 

The question is not whether intervening developments, reasonable 

expectations, and the like support overruling Miller vel non, 

but the intrinsic legitimacy of Miller in the first place. The 

fact that we as a court may have gotten away with ignoring 

Jackson v. Taylor for decades does not justify repeating the 

error when the question is squarely presented, as it is here. 

This conversion of the question from one of vertical to 

horizontal stare decisis demonstrates a basic misunderstanding 

of the doctrine and of this Court’s place in the judicial 

hierarchy. The questions raised in Tualla and Boyett are 

relevant only when an appellate court is deciding whether to 

overturn one of its own precedents, not when it is “compelled to 

 

1 Furthermore, the majority’s horizontal stare decisis discussion 

is flawed. The majority asserts that a rehearing on sentence 

alone is not unworkable. Quick, __ M.J. at __ (10). But we are 

bound by the Supreme Court’s specific holding to the contrary. 

Jackson, 353 U.S. at 579–80. Moreover, anyone who has 

participated in a sentence rehearing will confirm the accuracy 

of the Supreme Court’s characterization of the practice.
United States v. Quick, No. 15-0347/MC

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apply the precedent of a higher court.” Jaffree v. Wallace, 705 

F.2d 1526, 1532 (11th Cir. 1983), aff’d in part, 466 U.S. 924 

(1984), and aff’d, 472 U.S. 38 (1985). 

The real issue presented is whether the Supreme Court’s 

decision in Jackson was a holding which this Court is bound to 

apply. If, as a majority of this Court believes, the Supreme 

Court’s conclusions regarding sentence-only rehearings were not 

dicta,2 the application of horizontal stare decisis is simply 

irrelevant. As Senior Judge Everett so eloquently stated:

The fundamental error in the court’s analysis was in 

according the policy of stare decisis an aspect of 

flexibility that it does not have. A precedent-making 

decision may be overruled by the court that made it or by a 

court of a higher rank. That discretion, however, does not 

reside in a court of a lower rank

United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

(quotation marks and citation omitted) (referring to failure of 

a court of criminal appeals to follow Court of Military Appeals 

precedent). 

Both the majority and concurring opinions attach some 

significance to the President’s mention of sentence-alone 

rehearings in Rules for Courts-Martial 810(a)(2) and 1203(c)(2), 

presumably pursuant to his authority under Article 36(a), UCMJ, 

10 U.S.C. § 836(a) (2012). See Quick, __ M.J. at __ (15-16); 

 

2 See United States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 

2013) (Stucky, J., concurring in the result); id. at 17 (Ryan, 

J., concurring in the result).
United States v. Quick, No. 15-0347/MC

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id. at __ (3-4) & nn.2, 3 (Baker, J., concurring). But Article 

36(a), UCMJ, grants the President authority only to prescribe 

rules for courts-martial “which may not be contrary to or 

inconsistent with [the UCMJ].” As the Supreme Court has held 

that the UCMJ does not authorize rehearings on sentence alone, 

the President may not establish a rule to the contrary.3

As the majority refuses to recognize the primacy of the 

Supreme Court’s decision in Jackson, and insists on continuing 

the original sin of Miller, I respectfully dissent.

 

3 Parenthetically, since the Supreme Court in Jackson was 

construing the Article 66, UCMJ, powers of the boards of review, 

I fail to see the relevance of an extended disquisition on 

rehearing practice under the Articles of War. One might think 

that the Supreme Court’s interpretation of a then-recent statute 

would be a more compelling analysis.