UNITED STATES, Appellant 

v. 

Jeffrey M. MILLER, Seaman 

U.S. Coast Guard, Appellee 

No. 06-5002 

Crim. App. No. 005-69-01 

United States Court of Appeals for the Armed Forces 

Argued February 8, 2006 

Decided March 14, 2006 

EFFRON, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Lieutenant Commander John S. Luce Jr. (argued); 

Commander Jeffrey C. Good (on brief). 

 

For Appellee: Lieutenant Commander Nancy J. Truax (argued). 

Amicus Curiae: Lieutenant Commander Jason S. Grover, JAGC, USN 

(argued); Captain Pamela A. Holden, JAGC, USN, for the United 

States Navy-Marine Corps Appellate Defense Division (on brief). 

Amicus Curiae: Kathleen A. Duignan, Esq. (argued); Eugene R. 

Fidell, Esq., and Stephen A. Saltzburg, Esq., for the National 

Institute of Military Justice (on brief). 

Military Judge: Michael E. Tousley 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Miller, No. 06-5002/CG 

2

Judge EFFRON delivered the opinion of the Court. 

On November 21, 2003, at a special court-martial composed of 

a military judge sitting alone, Appellee was convicted, pursuant 

to his pleas, of various controlled substances offenses, in 

violation of Articles 112(a) and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 912(a), 934 (2000). He was 

sentenced to a bad-conduct discharge and reduction to E-1. 

As we describe in more detail below, this case involves 

Appellee’s interest in waiving appellate review of his case. We 

briefly describe the procedures for review of a court-martial in 

which the sentence includes a punitive discharge and then turn 

to the specific circumstances of the present appeal. 

I. WAIVER AND WITHDRAWAL OF APPELLATE REVIEW 

Under Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), the 

sentence in every court-martial case is submitted to the 

convening authority for approval. If the sentence approved by 

the convening authority includes capital punishment, a punitive 

discharge, or confinement for one year or more, the UCMJ 

provides for mandatory review in the Court of Criminal Appeals. 

Article 66(b), UCMJ, 10 U.S.C. § 866(b) (2000). The court has 

an affirmative obligation to ensure that the findings and 

sentence in each such case are “correct in law and fact . . . 
United States v. Miller, No. 06-5002/CG 

3

and should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 

866(c) (2000). 

Congress has provided a narrow window in which an accused 

may waive appellate review in non-capital cases. Under Article 

61(a), UCMJ, 10 U.S.C. § 861(a) (2000): 

the accused may file with the convening 

authority a statement expressly waiving the 

right of the accused to such review. Such 

waiver shall be signed by the accused and 

defense counsel and must be filed within 10 

days after the action [on the sentence] is 

served on the accused or on defense counsel. 

The convening authority or other person 

taking such action may extend the period for 

such filing by not more than 30 days. 

Because a waiver may not be filed prior to the convening 

authority’s action, a premature filing is invalid, and appellate 

review will proceed. See United States v. Hernandez, 33 M.J. 

145 (C.M.A. 1991). 

 If the accused has waived review by the Court of Criminal 

Appeals, the convening authority must refer the case for review 

by a judge advocate under Article 64, UCMJ, 10 U.S.C. § 864 

(2000), and Rule for Courts-Martial (R.C.M.) 1112. In specified 

circumstances, including a case in which a punitive discharge 

has been adjudged, the case is then submitted for further action 

by an officer exercising general court-martial authority under 

Article 64(b) and R.C.M. 1112(e). See Article 71(c)(2), UCMJ, 

10 U.S.C. § 871(c)(2) (2000). Such cases also may be reviewed 
United States v. Miller, No. 06-5002/CG 

4

by the Office of the Judge Advocate General under Article 69(b), 

UCMJ, 10 U.S.C. § 869(b) (2000). 

 If review by the Court of Criminal Appeals has not been 

waived, “the accused may withdraw an appeal at any time” in a 

non-capital case. Article 61(b), UCMJ, 10 U.S.C. § 861(b) 

(2000). The discretion to grant or deny a motion to withdraw an 

appeal is vested in the appellate courts. See Hernandez, 33 

M.J. at 149. 

II. APPELLEE’S WAIVER 

On November 21, 2003, the day that the court-martial 

adjudged his sentence, Appellee advised his defense counsel that 

he wanted to waive his appellate rights, and the defense counsel 

provided him with a standard waiver form. Several months later, 

on February 23, 2004, Appellee signed the waiver form and mailed 

it to his defense counsel. See R.C.M. 1110(f). Defense counsel 

added his signature and submitted the form to the convening 

authority on March 5, 2004, prior to the convening authority’s 

action on the case. Because a waiver may not be filed prior to 

the convening authority’s action, the filing was treated as 

premature. 

On June 18, 2004, the convening authority approved the 

sentence as adjudged, and this action was served on defense 

counsel on July 8, 2004. The next day, defense counsel 
United States v. Miller, No. 06-5002/CG 

5

resubmitted the previously signed waiver of appellate rights. 

The waiver was accompanied by a statement from defense counsel 

noting that Appellee had been advised of his appellate rights as 

well as the effect of a waiver and that Appellee “has reiterated 

his desire to waive his appellate rights.” 

The convening authority accepted the waiver. In view of the 

waiver, the convening authority transmitted the record of trial 

for review by a judge advocate under Article 64(a). The judge 

advocate recommended that the general court-martial convening 

authority approve the findings and sentence. On November 4, 

2004, the general court-martial convening authority approved the 

findings and the sentence that the special court-martial 

convening authority had approved. See R.C.M. 1112(e), (f); 

R.C.M. 1113(b). 

Pursuant to applicable Coast Guard practice, the record was 

forwarded to the Commandant for final action. See Dep’t of 

Transportation, Coast Guard Military Justice Manual, COMDTINST 

M5810.1D, para. 5.F.3.b. (Aug. 2000). The Commandant’s office, 

in turn, sent the case to the chief judge of the lower court to 

conduct a review under Article 69(b) for the Judge Advocate 

General. The chief judge, however, noted the issue of the 

timeliness of the waiver as a predicate question to be answered 

prior to any further review, and he returned the case to the 

Judge Advocate General “for resolution of the issue.” On March 
United States v. Miller, No. 06-5002/CG 

6

18, 2005, the Judge Advocate General followed the recommendation 

of his legal counsel to “[p]resume that the waiver is effective, 

but refer [the] case to the Coast Guard Court of Criminal 

Appeals pursuant to UCMJ Article 69(d).” 

Before the Court of Criminal Appeals, Appellee again sought 

to terminate appellate review. He asserted that the waiver 

filed after the convening authority’s action was valid, and he 

submitted an affidavit setting forth the basis for concluding 

that he had exercised an informed waiver of his appellate 

rights. Appellee also filed a withdrawal of appellate review in 

the event that the court did not accept his waiver. 

In a divided opinion, the Court of Criminal Appeals rejected 

Appellee’s position on waiver and concluded that the waiver 

filed with the convening authority was not valid. United States 

v. Miller, 61 M.J. 827 (C.G. Ct. Crim. App. 2005). The court 

also determined that the case should then be considered as a 

normal, mandatory review of a punitive discharge case by the 

Court of Criminal Appeals under Article 66(c) and granted 

appellee’s motion to withdraw the appeal pursuant to Article 

61(a). The court returned the record of trial to the Judge 

Advocate General to finalize action in the case. 
United States v. Miller, No. 06-5002/CG 

7

III. THE CERTIFIED ISSUES 

On November 17, 2005, the Judge Advocate General of the 

United States Coast Guard certified the following issues for 

review by our Court under Article 67(a)(2), 10 U.S.C. § 

867(a)(2) (2000): 

I. DID THE COAST GUARD COURT OF CRIMINAL 

APPEALS, AFTER CONCLUDING THAT 

[APPELLEE]’S WAIVER OF APPELLATE REVIEW 

WAS INVALID, ERR BY CONDUCTING A SUA 

SPONTE REVIEW UNDER ARTICLE 66(b), 

WHERE THE JUDGE ADVOCATE GENERAL 

CERTIFIED THE CASE TO THE COURT 

PURSUANT TO UCMJ ARTICLE 69(d). 

II. DID THE COAST GUARD COURT OF CRIMINAL 

APPEALS ERR BY CONCLUDING THAT RCM 

1110(f), WHICH EXPRESSLY PERMITS AN 

ACCUSED TO SIGN A WAIVER OF APPELLATE 

REVIEW “AT ANY TIME AFTER THE SENTENCE 

IS ANNOUNCED,” IS CONTRARY TO UCMJ 

ARTICLE 61. 

III. TO THE EXTENT THAT UCMJ ARTICLE 61 IS 

AMBIGUOUS, AND GIVEN THAT CONGRESS HAS 

EXPRESSLY GRANTED THE PRESIDENT RULEMAKING AUTHORITY IN THE FIELD OF 

MILITARY JUSTICE, MUST AN ARTICLE I 

COURT DEFER TO THE PRESIDENT’S 

REASONABLE INTERPRETATION OF THAT 

ARTICLE. 

 The judges of the Court of Criminal Appeals issued two 

thoughtful opinions in the present case. The majority focused 

on the fact that Appellee signed the waiver prior to the 

inception of the statutory period in which a waiver may be 

filed, even though it was filed subsequently during the 
United States v. Miller, No. 06-5002/CG 

8

appropriate time period. Miller, 61 M.J. at 828. Relying on 

our opinions concerning premature filings, the majority 

emphasized the importance of ensuring that the decision by an 

accused to waive an appeal is made only after being fully 

informed of the circumstances and consequences, including the 

convening authority’s action. Id. at 829 (citing Hernandez, 33 

M.J. at 147); United States v. Smith, 44 M.J. 387, 392 (C.A.A.F. 

1996); United States v. Walker, 34 M.J. 317, 318 (C.M.A. 1992); 

United States v. Smith, 34 M.J. 247, 249 (C.M.A. 1992). 

 The majority noted that at the time of Hernandez, the 

Manual for Courts-Martial did not address the time period in 

which the waiver could be signed and that the President 

subsequently amended R.C.M. 1110(f)(1) to provide: “The accused 

may sign a waiver of appellate review at any time after the 

sentence is announced.” Miller, 61 M.J. at 828. In the 

majority’s view, the amendment was invalid because it was 

inconsistent with the purpose of Article 61, as reflected in 

this Court’s decisions. Id. at 830. The majority contrasted 

the uncertainty of a document signed prior to the convening 

authority’s action with the confidence that they placed in 

Appellee’s decision to withdraw the case from review at the 

Court of Criminal Appeals. Id.

 The minority opinion at the Court of Criminal Appeals 

focused on the facts and circumstances concerning the filing of 
United States v. Miller, No. 06-5002/CG 

9

the waiver after the convening authority acted. Id. at 836 

(Felicetti, J., concurring in part and dissenting in part, 

joined by Kantor, J.). The minority agreed with much of the 

analysis offered by the majority. In particular, the minority 

emphasized the importance of demonstrating that the accused made 

a provident decision to waive appellate rights after, not 

before, the convening authority’s action. Id. at 835 (citing 

Hernandez, 33 M.J. at 148-49). The minority also agreed that 

“the preferred way to demonstrate a provident filing decision is 

for the accused to sign the waiver form within 10 days of 

receipt of the convening authority’s action.” Id. In that 

regard, the minority stated that the record must “show that the 

accused made an informed and voluntary decision after a ‘cooling 

off’ period.” Id. at 835 (citing Hernandez, 33 M.J. at 148). 

 The narrow point of disagreement between the two opinions 

involved the question of providency of the waiver decision. The 

minority opinion concluded that the record “may sometimes show 

that the accused’s decision to file (execute) a previously 

signed waiver form was, in fact, provident.” Id. at 835. In 

reaching this conclusion, the minority noted that the text of 

the statute addressed both signing and filing but required only 

that the filing take place after the convening authority’s 

action. The minority provided a detailed description of the 

legislative history reflecting the separate treatment of signing 
United States v. Miller, No. 06-5002/CG 

10

and filing. Id. at 834. The minority also cited the 

legislative history for the proposition that Congress focused 

its concern about timing on the filing rather than the signing 

of the waiver form. Id. at 834-35. 

 The minority concluded that a waiver document may be signed 

before the convening authority’s action so long as the 

providency of the waiver is “demonstrated by a serious, 

rational, and informed discussion between the accused and his or 

her defense counsel after the [convening authority’s] action, 

but before filing the waiver . . . . This informed discussion, 

of course, must be documented in the record.” Id. at 836 

(citation omitted). The minority also concluded that the record 

of the present case demonstrated the requisite showing of 

providency. Id.

 We agree with the analysis offered in the minority opinion. 

The preferred method of demonstrating a provident waiver is a 

document signed after the convening authority’s action, but a 

document signed beforehand may be used so long as the record 

demonstrates a serious, rational, and informed discussion 

between the accused and defense counsel after the convening 

authority’s action, but before the filing of the waiver. We 

also agree that the record in this case provides the requisite 

showing of providency. See id. Because Appellee’s original 
United States v. Miller, No. 06-5002/CG 

11

waiver was valid, we answer the second certified question in the 

affirmative. 

 Appellate review of the waiver was appropriate to ensure 

that the waiver was provident. Now that the issue of providency 

has been resolved, no further review is required, and the case 

should be finalized. In that regard, the first certified issue, 

regarding the appellate relationship between Articles 66(b) and 

69(d) is moot, and we decline to address it. 

 The third certified issue presumes reliance on R.C.M. 

1110(f) for the interpretation of Article 61. We have concluded 

that the text of Article 61 does not preclude signing a waiver 

at any time so long as there is a provident waiver decision 

after the convening authority’s action. Because our analysis is 

based on the text of Article 61, our conclusion would be the 

same even if the President had not expressly authorized an early 

signing under R.C.M. 1110(f). Accordingly, we view the third 

certified issue as raising a question not pertinent to our 

decision, and we decline to address it. 

IV. CONCLUSION 

The decision of the United States Coast Guard Court of 

Criminal Appeals is set aside. The record is returned to the 

Judge Advocate General of the Coast Guard for final disposition 

of the record under Article 65, UCMJ, 10 U.S.C. § 865 (2000).