UNITED STATES, Appellee 

v. 

Troy B. JENKINS, Quartermaster Third Class 

U.S. Navy, Appellant 

No. 03-0473 

Crim. App. No. 200101151 

 

United States Court of Appeals for the Armed Forces 

Argued March 2, 2004 

Decided June 21, 2004 

BAKER, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Lieutenant Elysia G. Ng, JAGC, USNR (argued). 

For Appellee: Captain Glen R. Hines Jr., USMC (argued); Colonel 

M. E. Finnie, USMC, and Lieutenant Lars C. Johnson, JAGC, 

USNR (on brief). 

Military Judge: D. M. White 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Jenkins, No. 03-0473/NA 

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Judge BAKER delivered the opinion of the Court. 

On November 29, 2000, at Bremerton, Washington, Appellant 

was tried by a general court-martial composed of a military 

judge alone. Pursuant to his pleas, Appellant was convicted of 

one count of rape and one count of sodomy by force in violation 

of Articles 120 and 125, Uniform Code of Military Justice 

[hereinafter UCMJ], 10 U.S.C. §§ 920 and 925 (2000), 

respectively. Contrary to his plea, Appellant was also 

convicted of one count of indecent acts in violation of Article 

134, UCMJ, 10 U.S.C. § 934 (2000). He was sentenced to a 

dishonorable discharge, confinement for twelve years, total 

forfeitures, and reduction to the lowest enlisted grade. The 

convening authority approved the sentence as adjudged, but 

suspended confinement in excess of nine years for a period of 

five years. The Navy-Marine Corps Court of Criminal Appeals 

(CCA) affirmed the findings of guilty with respect to Charges I 

and II, but dismissed and set aside the finding of guilty for 

indecent acts and dismissed Charge III on the ground that the 

two offenses were multiplicious. United States v. Jenkins, NMCM 

200101151, slip op. at 7 (N-M. Ct. Crim. App. 2003). Consistent 

with this Court’s decisions in United States v. Peoples, 29 M.J. 

426, 428 (C.M.A. 1990) and United States v. Sales, 22 M.J. 305, 

307-08 (C.M.A. 1986), the CCA reassessed Appellant’s sentence 

and affirmed only so much of the adjudged sentence providing for 
United States v. Jenkins, No. 03-0473/NA 

3

confinement for 138 months, reduction to E-1, total forfeiture 

of pay and allowances, and a dishonorable discharge. Jenkins, 

NMCM 200101151, slip op. at 14. 

This Court granted review of the following issues: 

I 

WHETHER THE LOWER COURT’S VERBATIM REPLICATION OF 

SUBSTANTIAL PORTIONS OF THE GOVERNMENT’S ANSWER BRIEF AS 

THAT COURT’S OPINION CONSTITUTES AN ABUSE OF DISCRETION, 

NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND 

SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION. 

II 

WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED EVIDENCE 

OUTSIDE OF APPELLANT’S STATEMENTS DURING THE PROVIDENCE 

INQUIRY IN EVALUATING THE FACTUAL BASIS FOR APPELLANT’S 

PLEAS. 

At heart, the question presented by granted Issue I is whether 

Appellant received the legal and factual review he was entitled 

to under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). 

Because we cannot conclude that he received such an assessment, 

we remand for a new Article 66(c) review conducted by a separate 

panel comprised of judges who did not participate in Appellant’s 

prior evaluation.1 

Background

The CCA opinion in Appellant’s case is 15 pages in length. 

It consists of 45 paragraphs, not including record excerpts. 

 

1

 In light of this Court’s decision regarding Issue I, we need 

not address Issue II. 
United States v. Jenkins, No. 03-0473/NA 

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Thirty-one of these paragraphs are taken virtually or wholly 

verbatim from 29 of the 33 paragraphs in the Government’s 

nineteen-page Answer before the CCA. This is done without 

attribution. These paragraphs include the statement of facts, 

legal analysis, and conclusions of law. 

With respect to Issue II, Appellant complains that the CCA 

relied on testimony from the victim relating to Charge III, 

which Appellant contested, in upholding the factual providence 

of Appellant’s pleas to Charges I and II. The victim’s 

testimony is recited in the CCA’s opinion within those 

paragraphs derived from the Government’s Answer. See Jenkins, 

NMCM 20010115, slip op. at 5-6. 

The lower court’s opinion also includes the following 

original paragraph: 

We have carefully reviewed the record of trial, 

Appellant's five assignments of error, the Government’s 

answer, and Appellant’s reply. We conclude that there is 

merit in Appellant’s summary fifth assignment of error and 

that Appellant is entitled to relief. We shall take 

appropriate corrective action in our decretal paragraph. 

In all other respects we conclude that the findings and 

sentence, upon reassessment, are correct in law and fact 

and that no error materially prejudicial to the substantial 

rights of Appellant was committed. Arts. 59(a) and 66(c), 

UCMJ. 

Jenkins, NMCM 200101151, slip op. at 2 (footnote omitted). 

Based on these facts, Appellant argues that he has not 

received the independent CCA review of his conviction that he is 

entitled to under Article 66(c). Further, Appellant maintains 
United States v. Jenkins, No. 03-0473/NA 

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that the CCA abandoned its impartiality as an independent court, 

denying him his due process of law. 

Based on the lower court’s statement that it carefully 

reviewed the record of trial, as well as its decision to grant 

relief to Appellant, the Government argues that there was no 

error in the CCA’s review of Appellant’s case. The Government 

also contends there was no appearance of partiality by the lower 

court. Moreover, the Government maintains that it is not 

possible for this Court to evaluate the independence of the 

CCA’s review without piercing the veil of the lower court’s 

deliberative process, something this Court either should not do 

or is lawfully precluded from doing. 

Discussion

Article 66 provides the statutory underpinning for the 

service Courts of Criminal Appeal. Among other things, the 

Article provides that 

[i]n a case referred to it, the Court of Criminal Appeals 

may act only with respect to the findings and sentence as 

approved by the convening authority. It may affirm only 

such findings of guilty and the sentence or such part or 

amount of the sentence, as it finds correct in law and fact 

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

be approved. In considering the record, it may weigh the 

evidence, judge the credibility of witnesses, and determine 

controverted questions of fact, recognizing that the trial 

court saw and heard the witnesses. 

Article 66(c), UCMJ. 
United States v. Jenkins, No. 03-0473/NA 

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The legislative history makes it clear that Congress intended 

the CCAs to serve as appellate bodies independent of the Judge 

Advocate Generals and Government appellate attorneys.2 The CCAs 

are intended to not only uphold the law, but provide a source of 

structural integrity to ensure the protection of service 

members’ rights within a system of military discipline and 

justice where commanders themselves retain awesome and plenary 

responsibility.3 For this reason, Congress endowed the CCAs with 

authority to find facts as well as address questions of law. As 

this Court has often noted, such authority is awesome, including 

as it does “broad factfinding power and plenary de novo power to 

review questions of law.” United States v. Duncan, 38 M.J. 476, 

 

2

 See Bill to Unify, Consolidate, Revise, and Codify the Articles 

of War, the Articles for the Government of the Navy, and the 

Disciplinary Laws of the Coast Guard, and to Enact and Establish 

a Uniform Code of Military Justice: Hearings on S. 857 and H.R. 

4080 Before a Subcomm. of the Comm. on Armed Services, 81st 

Cong. 151 (1949)(statement of Colonel John P. Oliver, Judge 

Advocate General, Reserve, Legislative Counsel of the Reserve 

Officer’s Association)(“Article of War 66, subparagraph (e), 

page 53, as has been stated by many of the other witnesses, we 

do not feel it sound judicial procedure to permit the Judge 

Advocate General who is displeased with an opinion by one board 

of review, to refer the case back or to another board of review. 

Surely, no board of review can act honestly and independently 

under such supervision and restriction.”). 

3

 See id. at 623 (statement of Frederick P. Bryan, Chairman, 

Special Committee on Military Justice of the Bar Association of 

the City of New York)(“The new set-up of the courts, whereby you 

have a law officer on the one hand who exercises judicial 

function and the lay members of the court . . . on the other who 

in effect perform the functions of a jury, is excellent. I 

think that that serves again as a measure of protection to the 

accused.”). 
United States v. Jenkins, No. 03-0473/NA 

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479 n. 7 (C.M.A. 1993)(citing United States v. Cole, 31 M.J. 270 

(C.M.A. 1990)). See also United States v. Quiroz, 55 M.J. 334, 

338 (C.A.A.F. 2001); United States v. Weatherspoon, 49 M.J. 209, 

212 (C.A.A.F. 1998). 

After reviewing the CCA’s opinion, we are left in doubt 

that Appellant received the independent Article 66(c) review to 

which he was entitled. On the one hand, there are indicia 

within the opinion of independent review. The lower court 

stated that it carefully reviewed the record, including the 

Government’s Answer and Appellant’s Reply, and based on that 

evaluation concluded that Charges I and II should be affirmed. 

Moreover, the lower court granted Appellant relief in response 

to one of his five assigned errors, reassessed his sentence, and 

granted six months relief. Clearly, this action, which the 

Government opposed, was taken pursuant to the CCA’s independent 

Article 66(c) authority. 

On the other hand, the portions of the Government’s Answer 

incorporated into the CCA’s opinion are substantial. This 

material includes matters of fact, including contested facts, as 

well as matters of law. In the Article 66(c) context, 

replication of a party’s brief disguises the nature and 

substance of the court’s independent factual and legal review. 

As a result, neither we nor the parties can be sure where and 

perhaps whether the Government’s argument ends and the lower 
United States v. Jenkins, No. 03-0473/NA 

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court’s independent analysis begins. This conclusion is not 

based on a mathematical calculation of replication. Nor need we 

look within the lower court’s deliberations to make such a 

determination. It is based on the manifest demonstration on the 

face of the CCA’s opinion that substantial portions are derived 

wholly or virtually verbatim from a party’s brief. We note that 

“substantial” conveys both qualitative and quantitative meaning. 

Thus, an Article 66(c) error based on the copying of a party’s 

brief may be rooted in the replication of certain important or 

contested facts, crucial legal analysis, legal conclusions, or 

some combination thereof, as well as the volume of material 

copied. Such judgments are case contextual; however, assuredly 

an original opinion manifesting independent analysis negates 

need for review for an Article 66(c) error based on the copying 

of a party’s brief. 

The CCA’s opinion in this case replicates large portions of 

the statement of facts, analysis, and conclusions of law from 

the Government’s Answer. On such a record we cannot 

disaggregate the Government’s argument from the CCA’s review. 

Therefore, we cannot determine that Appellant received the 

“awesome, plenary, and de novo” review to which he was entitled 

by law. See Duncan, 38 M.J. at 479 (citing Cole, 31 M.J. at 

270). In short, the fact that Appellant received some of what 

he was entitled to does not mean that he received all to which 
United States v. Jenkins, No. 03-0473/NA 

9

he was entitled. The lower court’s opinion indicates that he 

did not. 

Article 66(c) review is a substantial right. It follows 

that in the absence of such a complete review, Appellant has 

suffered material prejudice to a substantial right. 

Decision

The decision of the United States Navy-Marine Corps Court 

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

returned to the Judge Advocate General of the Navy for remand to 

that court for a new Article 66(c) review before a panel 

comprised of judges who have not previously participated in this 

case.