UNITED STATES, Appellee

                                           v.

                       Gregory G. RORIE, Specialist
                           U.S. Army, Appellant

                                    No. 02-0949


                           Crim. App. No. 20000964


       United States Court of Appeals for the Armed Forces

                             Argued April 8, 2003

                             Decided July 1, 2003

   ERDMANN, J., delivered the opinion of the Court, in which
  CRAWFORD, C.J., and GIERKE, J., joined. EFFRON, J., filed a
     separate dissenting opinion in which BAKER, J., joined.

                                       Counsel
For Appellant: Lieutenant Colonel E. Allen Chandler, Jr.
   (argued); Colonel Robert D. Teetsel and Major Jeanette K.
   Stone (on brief); and Captain Fansu Ku.

For Appellee: Captain Christopher Graveline (argued); Lieutenant
   Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
   Leeker, and Major Jennifer H. McGee (on brief).

Amicus Curiae: Ming-Hsuan Chung (law student)(argued); Cary
   Berkeley Kaye, Esq. (supervising attorney), Steven H.
   Goldblatt, Esq. (director), and Scott Weidenfeller (law
   student)(on brief) – For the Georgetown University Law
   Center, Appellate Litigation Program.

Amicus Curiae: Eugene R. Fidell, Esq. (argued); Kevin J. Barry,
   Esq., Stephen A. Saltzburg, Esq. and Philip D. Cave, Esq. (on
   brief) – For the National Institute of Military Justice.

Amicus Curiae: Lieutenant Frank L. Gatto, JAGC, USNR (argued)
   Colonel R. M. Favors, USMC (on brief) – For the Appellate
   Government Division, Navy-Marine Corps Appellate Review
   Activity.

Military Judge:      Michael J. Hargis




        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rorie, No. 02-0949/AR


      Judge ERDMANN delivered the opinion of the Court.

      Appellant, Specialist Gregory G. Rorie, was tried by general

court-martial at Fort Polk, Louisiana.       Pursuant to his pleas, he

was convicted of three specifications of wrongful distribution of

cocaine in violation of Article 112a, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000).      Appellant

was sentenced to confinement for two years and reduction to the

grade of Private E-1.      On June 8, 2001, the convening authority

approved the sentence.      On June 28, 2002, the Army Court of

Criminal Appeals affirmed the findings and sentence in a

memorandum decision.      United States v. Rorie, ARMY 20000964 (A.
Ct. Crim. App. June 28, 2002).

      Appellant died on August 31, 2002.     On September 27, 2002,

Appellant’s detailed appellate defense counsel filed a Petition

for Grant of Review and a Motion to Abate with this Court.        Upon

consideration of the Petition for Grant of Review and the Motion

to Abate, we specified and ordered briefs on the following two

issues:

                                  ISSUE I
            WHETHER THE FILING OF A PETITION FOR GRANT OF
            REVIEW BY APPELLATE DEFENSE COUNSEL WAS
            SUFFICIENT TO CONFER JURISDICTION ON THIS
            COURT OR WHETHER JURISDICTION WAS RETAINED BY
            THE UNITED STATES ARMY COURT OF CRIMINAL
            APPEALS.

                                  ISSUE II

            IN THE EVENT THAT THIS COURT DOES HAVE
            JURISDICTION, WHETHER THE PROCEEDINGS SHOULD
            BE ABATED.


      Prior to argument the parties agreed that this Court had

jurisdiction over the question of whether the proceedings and


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United States v. Rorie, No. 02-0949/AR


conviction in this case should be abated ab initio.              Therefore,

we proceed directly to consideration of the second specified

issue.   For the reasons that follow, we hold that abatement ab

initio is neither appropriate nor required at this Court.



                                    FACTS

      The United States Army Court of Criminal Appeals reviewed

Appellant’s conviction and affirmed the findings and sentence in

a memorandum decision on June 28, 2002.              On July 1, 2002,

Appellant’s initial appellate defense counsel prepared

correspondence to Appellant advising him that the Army court had

rendered a decision in his case.              On July 5, 2002, the Deputy

Clerk of the Army court sent notice of the Army court decision to

Appellant by certified mail, return receipt requested.

      On July 12, 2002, the United States Postal Service returned

the certified mail with the notation “Forward Time Exp Rtn to

Send.”   Constructive service was therefore effected on July 5,

2002, as the appellate defense counsel had received a copy of the

decision and the decision had been deposited in the United States

mail to Appellant on that date.              Article 67(b)(2), UCMJ, 10

U.S.C. § 867(b)(2) (2000).

      Appellant had 60 days within which to petition this Court

for a grant of review, a period that would have expired on

September 3, 2002.      On August 31, 2002, Appellant sustained

massive head trauma in an automobile accident and died.              Upon

learning of Appellant’s death, appellate defense counsel sought

and obtained a copy of the death certificate.              Subsequently, on




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United States v. Rorie, No. 02-0949/AR


September 27, 2002, appellate defense counsel filed a Petition

for Grant of Review and a Motion to Abate the proceedings.

      Upon consideration of the Petition for Grant of Review and

the Motion to Abate, this Court specified the previously noted

issues and directed that the parties file briefs.



                                 BACKGROUND

                   Principals of Abatement ab initio
      Appellant’s motion for abatement rests upon the general

concept that the death of an accused after conviction but before

completion of an appeal of right abates the entire proceeding

from its inception.      If granted, abatement ab initio has the

effect of “eliminating or nullifying” the proceeding or

conviction “for a reason unrelated to the merits” of the case.

Black’s Law Dictionary 2 (7th ed. 1999).        “[I]t is as if the

defendant had never been indicted and convicted.”        United States

v. Logal, 

, 1551-52 (11th Cir. 1997).

      Two reasons are commonly advanced in support of abatement ab

initio upon the death of a criminal defendant/appellant.        The
first reason advanced relates to the interests of justice.        The

7th Circuit Court of Appeals has noted that “the interests of

justice ordinarily require that [a defendant] not stand convicted

without resolution of the merits of his appeal” and echoed the

Supreme Court’s view that such an appeal “is an ‘integral part of

[our] system for finally adjudicating         [the] guilt or innocence

[of a defendant]’.”      United States v. Moehlenkamp, 

,

128 (7th Cir. 1977)(quoting Griffin v. Illinois, 

, 18




                                         4
United States v. Rorie, No. 02-0949/AR


(1956)).    See also United States v. Pogue, 

, 665-66

(D.C. Cir. 1994).

      Death arguably disrupts appellate adjudication and may leave

an unreviewed conviction that is unsound, unlawful, or unjust.

Confidence may be lacking in such convictions; they should not

serve as the basis for finality.             See 

(“[A] criminal conviction is not final until resolution of the

defendant’s appeal as a matter of right”); 

-
66 (rejecting arguments against abatement ab initio even when the

conviction is based on a guilty plea).            Thus, where “death has

deprived the accused of his right to [an appellate] decision,”

abatement serves the interests of justice by removing criminal

convictions that do not have the necessary basis for confidence

to support finality.      

.

      The second reason advanced is that the penal purposes of a

criminal proceeding are defeated by the death of the defendant.

Charges, trial, conviction, and sentences are directed at and

punish the individual.      Those purposes can not be served after

the defendant has passed away.           See United States v. Asset, 

, 211 (5th Cir. 1993); United States v. Pomeroy, 

, 282 (C.C.S.D.N.Y. 1907).        “[S]huffling off the mortal coil

completely forecloses punishment, incarceration, or

rehabilitation, this side of the grave at any rate.”            United

States v. Dudley, 

, 177 (4th Cir. 1984).



                  Application by Federal and State Courts

      Nonetheless, abatement is not the universal policy in the

federal and state courts.       For a number of years, the United


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United States v. Rorie, No. 02-0949/AR


States Supreme Court’s position on abatement lacked clarity.1 In

Durham v. United States, 

(1971), the Court

acknowledged its previous “ambiguity,” 

and adopted
the policy of abatement ab initio:

            The unanimity of the lower federal courts
            which have worked with this problem over the
            years . . . is impressive. We believe they
            have adopted the correct rule. Accordingly,
            the motion for leave to proceed in forma
            pauperis and the petition for a writ of
            certiorari are granted. The judgment below
            is vacated and the case is remanded to the
            District Court with directions to dismiss the
            indictment.

   Justice Blackmun dissented.      In his dissent he found
a significant distinction in that the decedent was not exercising

an appeal of right.      

(Blackmun, J., dissenting).

      A few years later and without discussion, the Supreme Court

abruptly changed its position on abatement in Dove v. United

States, 

(1976).        The entire opinion of the Court

consisted of the following:

      The Court is advised that the petitioner died at New Bern,
      N.C., on November 14, 1975. The petition for certiorari is
      therefore dismissed. To the extent that Durham v. United
      States, 

(1971), may be inconsistent with this
      ruling, Durham is overruled.

   While the appeal to the Supreme Court was dismissed,

the underlying criminal conviction was left intact.        Thus,



1
  See, e.g., Singer v. United States, 

, 346
(1945)(Court dismissed writ and “remanded to the District Court
for such disposition as law and justice require.”); United States
v. Johnson, 

, 520 n.1 (1943)(dismissed writ and left
“disposition of the fine that was imposed to the Circuit Court of
Appeals.”); Menken v. Atlanta, 

, 405
(1889)(considered the cause “abated” and ordered writ of error
dismissed); List v. Pennsylvania, 

, 396 (1888)(“cause
has abated”).


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United States v. Rorie, No. 02-0949/AR


abatement ab initio has not been a policy at the United States

Supreme Court since 1976.

      On the other hand, the Federal Circuit Courts of Appeals

unanimously apply the policy when an accused dies before those

courts complete appellate review of a federal conviction.2   The

circuit courts have adhered to a policy of abatement ab initio

despite the Supreme Court’s decision in Dove, largely on the

basis that an appeal to the circuit court is a matter of right,

2
  See United States v. Wright, 

, 908 (2d Cir.
1998)(“[W]e normally vacate the judgment and remand to the
district court with instructions to dismiss the indictment.”);
United States v. Christopher, 

, 297 (3d Cir.
2001)(“The rule of abatement is well established, and we adopt it
as the law in this Court. Thus, where a convicted criminal
defendant dies after filing an appropriate appeal, the conviction
will be abated and the case remanded to the District Court with
instructions to dismiss the indictment.”); United States v.
Dudley, 

, 176 (4th Cir. 1984)(“requiring ultimately
that case be remanded . . . with direction to vacate ab initio,
as abated, the criminal proceedings.”); United States v. Asset,

, 210 (5th Cir. 1993)(“It is well established in this
circuit that the death of a criminal defendant pending an appeal
of his of her case abates, ab initio, the entire criminal
proceeding.”); United States v. Toney, 

, 720 (6th
Cir. 1975)(conviction vacated and “remand[ed] the cause to the
District Judge with instructions to dismiss the indictment
against” the accused.); United States v. Moehlenkamp, 

, 128 (7th Cir. 1977)(court followed its “established practice
by dismissing [the] appeal as moot, vacating the conviction . . .
, and remanding the case to the district court for dismissal of
the outstanding indictment[.]”); United States v. Littlefield,

, 683 (8th Cir. 1979)(“The death of a defendant in a
criminal case during the pendency of an appeal renders moot the
appeal and abates the cause against the deceased[.]”); D’Argento
v. United States, 

, 328 (9th Cir. 1965)(“[T]he
prosecution abates on the death of the defendant.”); United
States v. Davis, 

, 1486 (10th Cir. 1992)(“dismiss
[the] appeal and remand the criminal judgment . . . to the
district court with instructions to vacate the judgment and
dismiss the underlying indictment.”); United States v. Logal, 

, 1551-52 (11th Cir. 1997)(“This circuit has adopted the
general rule that the death of a defendant during the pendency of
his direct appeal renders his conviction and sentence void ab
initio; i.e., it is as if the defendant had never been indicted
and convicted.”); United States v. Pogue, 

(D.C. Cir.
1994)(adopting the general policy of abatement ab initio).


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United States v. Rorie, No. 02-0949/AR


whereas certiorari is discretionary review before the Supreme

Court.   See, e.g., United States v. Christopher, 

,

296 (3d Cir. 2001); United States v. Pauline, 

, 685
(5th Cir. 1980); 

.

      The determination of whether and how much of a criminal

conviction to abate in the state courts varies considerably, with

most courts adopting some form of abatement.3      It is worth

noting, however, that a number of states have recently changed

their policies, moving away from abatement ad initio.      See, e.g.,
State v. Salazar, 

, 1003 (N.M. 1997)(noting that

several states have substantially changed or abandoned their

policies of abatement ab initio); State v. Clements, 

(Fla. 1996); State v. Makaila, 

(Haw. 1995);

People v. Peters, 

(Mich. 1995).



                           Application by this Court

      This Court has followed the policy of abatement ab initio

since 1953.    In United States v. Mosher, 

(C.M.A.
1953)(summary disposition), we noted that the petitioner was


3
 Tim A. Thomas, Annotation, Abatement of State Criminal Case by
Accused’s Death Pending Appeal of Conviction – Modern Cases, 

, 191-200 (1990 & Supp. 2002), identified seven
categories of state court policies on abatement: abatement ab
initio when a defendant/appellant dies pending resolution of his
appeal; abatement ab initio where the appeal in issue is an
appeal of right; abatement ab initio where the court has granted
a discretionary application for review, thereafter treating the
case as if the appellant had been given an appeal of right; the
case is not abated and the appeal may be prosecuted; the case is
not abated ab initio, but the appeal may not be prosecuted; a
personal representative may be substituted to avoid abatement ab
initio; or, the appeal abates without the superior court
addressing whether the proceedings are abated ab initio.



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United States v. Rorie, No. 02-0949/AR


deceased and “ordered that this cause be, and the same is, hereby

abated, and it is further ordered that the Petition for Grant of

Review be, and the same is, hereby dismissed.”      Since these early

cases, we have routinely applied the policy of abatement ab

initio in summary fashion when an appellant died while his case

was pending at this Court.4

      In United States v. Kuskie, 

(C.M.A. 1981), we

specifically addressed the question of whether cases pending

before this Court should be abated ab initio when a

petitioner/appellant dies.       This Court adhered to the policy of

abatement ab initio and distinguished our review authority from

that of the United States Supreme Court:

            It is true that this Court has referred to
            itself as “the supreme court of the military
            judicial system.” McPhail v. United States,
            

, 462 (C.M.A. 1976). Such a
            characterization in itself, however, is not
            sufficient to equate a military accused’s
            right to petition this Court for review with
            a petition for certiorari to the Supreme
            Court. Such an equation ignores the
            substantial differences in statutory language
            between Article 67(b)(3) and 28 U.S.C.
            1254(1). See 28 U.S.C. 1291. Moreover, it
            is indifferent to the critical role this
            Court plays in direct review of courts-
            martial (Noyd v. Bond, 

, 694, 

, 1882, 

(1969)) as
            the court of last resort in the military
            justice system. Schlesinger v. Councilman,
            

, 751, 

, 1309, 

(1975). Such distinctions are
            central to a proper understanding of the Dove
            decision. United States v. Pauline, 

  See, e.g., United States v. McGill, 

(C.A.A.F.
2001)(summary disposition); United States v. Brown, 

(C.M.A. 1991)(summary disposition); United States v. Flannigan, 

(C.M.A. 1978)(summary disposition); United States v.
Johnson, 

(C.M.A. 1977)(summary disposition); United
States v. Ferguson, 

, 

(1975)(summary
disposition).



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United States v. Rorie, No. 02-0949/AR


            684 (5th Cir. 1980); See Disposition of a
            Federal Criminal Case When Defendant Dies
            Pending Appeal, 13 U.Mich.L.J.Ref. 143, 147-
            48 (Fall 1979). Moreover, in cases decided
            by this Court since Dove v. United 

, we have not adopted this approach to
            the deceased-appellant situation. See United
            States v. Flannigan, 

(C.M.A.
            1978); United States v. Day, 

            (C.M.A. 1976); United States v. Johnson, 

(C.M.A. 1977).

(footnotes omitted).

      Nevertheless, this Court’s policy on abatement ab initio

has not been without dissent.        In Kuskie, Judge Cook disputed
that there were “substantial differences” between the Supreme

Court’s certiorari authority and this Court’s petition authority,

noting that both had the same “substantive nature as a permissive

appeal.”    

(Cook, J., dissenting).

      The lack of unanimity on this policy was further evidenced

in Berry v. The Judges of the United States Army Court of

Military Review, 

(C.M.A. 1993).             There, a majority of

this Court abated Berry’s conviction ab initio because the

conviction was not final within the meaning of Article 71(c),

UCMJ, 10 U.S.C. § 871(c) (2000).              Berry died seven days prior to
the expiration of his time within which to petition this Court.

While the majority focused on Article 71, it again rejected the

argument that this Court’s petition authority was akin to the

discretionary nature of certiorari review at the Supreme Court.

Rather, the majority found this Court’s authority “more

analogous” to that of the Federal Circuit Courts of Appeals.             

      Judges Crawford and Gierke dissented.            In addition to

finding the facts of Berry’s case to be distinct from those


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United States v. Rorie, No. 02-0949/AR


present in Kuskie, the dissent noted a number of reasons

supporting a conclusion that abatement ab initio was not a

required consideration at this Court:           (1) appellate jurisdiction

of this Court is similar to that of the Supreme Court; (2)

finality under Article 71(c) is an administrative matter that has

no impact upon determining whether an appeal was of right or

discretionary; and (3) the practice in this Court is not “more

analogous” to the Federal Circuit Courts of Appeals where the

appeal is one of 

(Crawford, J., with

whom Gierke, J., joins, dissenting).

      More recently, in United States v. Ward, 

(C.A.A.F. 2001), this Court declined to reconsider and abate the

proceedings where the appellant died seven days after this Court

had issued a decision in his case.            In Ward, the Court focused on

the “interests of justice ordinarily require that [a defendant]

not stand convicted without resolution of the merits of an

appeal.”    

(quoting 

).          We found

that the interests of justice were satisfied by “full review” and

that “abatement ab initio due only to death” was not required.

.



                                 DISCUSSION

      Resolution of the issues presented in this case requires not

only an inquiry into the principles of abatement ab initio, but

also an inquiry into the doctrine of stare decisis, as a change

in the Court’s position on abatement would overrule established

precedent of this Court.




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United States v. Rorie, No. 02-0949/AR


                           Abatement ab initio

      As noted, case law sets forth two primary reasons in support

of the policy of abatement ab initio.         The first purpose relates

to the interests of justice and dictates that a defendant should

“not stand convicted without resolution of the merits of his

appeal[.]”    

(citing 

).    See also 

; 

.   The post-trial and appellate processes under the Uniform

Code of Military Justice afford a military defendant with a

clemency review and three levels of appeal following a conviction

at the trial level:      an initial appeal to a Court of Criminal

Appeals; an appeal to this Court; and an appeal to the U.S.

Supreme Court.     See Articles 60, 66, 67, and 67a, UCMJ, 10 U.S.C.
§§ 860, 866, 867, 867a (2000).

      We believe that the initial review by a Court of Criminal

Appeals provides a military defendant with a substantive legal

and factual review.      The interests of justice are further

enhanced at the Courts of Criminal Appeals by an appellant’s

broad right to personally assert matters before the military
appellate courts.     See United States v. Grostefon, 

(C.M.A. 1982).

      The Courts of Criminal Appeals are unique and are vested

great power to do justice.       United States v. Gibson, 

,

202 (C.A.A.F. 1999).      We have often expressed our confidence in

the Courts of Criminal Appeals and in the ability and expertise

of the “experienced and mature judges of the Courts of Criminal

Appeals[.]”    United States v. Boone, 

, 195 (C.A.A.F.

1998)(quoting United States v. Cook, 

, 39 (C.A.A.F.


                                         12
United States v. Rorie, No. 02-0949/AR


1997)).   See also United States v. Eversole, 

, 133

(C.A.A.F. 2000)(expressing confidence in the “expertise” of the

Court of Criminal Appeals).

      The second purpose advanced for abatement ab initio is that

punishment in the criminal arena is personal and the death of the

defendant eliminates the purpose of punishment.          See 

; 

.          Unquestionably, upon the

death of a military defendant traditional punishments such as

confinement and forfeiture become moot.          However, we believe

there remains a substantial punitive interest in preserving

otherwise lawful and just military convictions.          For persons

serving in uniform who are subject to court-martial and for the

Government, military status and the nature of a discharge remain

significant considerations.       We do not believe that the death of

an appellant following the resolution of an appeal to the Court

of Criminal Appeals moots the punitive purposes or substantial

interests attached to a bad-conduct discharge, a dishonorable

discharge, or a punitive dismissal from the service.

      Another consideration to weigh in analyzing this issue is

the impact of abatement ab initio on victims’ rights.          In 1990

Congress adopted the “Victims of Crime Bill of Rights”.          42

U.S.C. § 10606 (2000).      Subsequent to this Court’s decisions in

Kuskie and Berry, the Department of Defense revised Dep’t of
Defense, Directive 1030.1, Victim and Witness Assistance

(November 23, 1994) [hereinafter Directive 1030.1], to adopt the

provisions of 42 U.S.C. § 10606 as matters of Department of

Defense policy.     United States v. Spann, 

, 91 (C.A.A.F.




                                         13
United States v. Rorie, No. 02-0949/AR


1999).   Directive 1030.1 recognized the role of victims in the

criminal justice process and specifically provided:

      Court-martial convening authorities and clemency and parole
      boards shall consider making restitution to the victim a
      condition of granting pretrial agreements, reduced sentence,
      clemency, and parole.

Directive 1030.1, at para. 4.5.

      It is not uncommon for pretrial agreements to contain

restitution provisions. We also note that adjudged and approved

fines, which create a debt, may have compensatory aspects.        For

example, an adjudged fine may be based upon the fact that an

accused was unjustly enriched by offenses against the Government.

See Rule for Courts-Martial 1003(b)(3) discussion.
      As noted, when abatement ab initio is applied “it is as if

the defendant had never been indicted and convicted.”       

.     Particularly where there has been one level of

appeal of right, abatement ab initio at this level frustrates a

victim’s legitimate interest in restitution and compensation.5

      We find further support for our decision not to adopt a

policy of abatement ab initio in the nature of this Court’s
petition jurisdiction.      The unique statutory jurisdiction of this

Court is distinct from both that of the Supreme Court and the

Circuit Courts of Appeals.       We believe, however, that this

Court’s petition authority is more akin to the writ authority

5
 The Supreme Court of Michigan recently recognized the
significance of victims’ rights when it substantially modified
its own approach to abatement in People v. Peters, 

(Mich. 1995). The Michigan Supreme Court stated that it was “not
persuaded that abatement ab initio, when applied to compensatory
sanctions, is consistent with Michigan law since the 1985
enactment of the Michigan Crime Victim’s Rights Act[.]” 

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United States v. Rorie, No. 02-0949/AR


exercised by the Supreme Court, particularly with respect to the

primary sources of appeals, the writ of certiorari and the

petition for grant of review.        See 28 U.S.C. §§ 1254(1), 1257;
Article 67(a)(3).

      While Appellant and Amicus National Institute of Military

Justice urged otherwise, there can be little doubt that this

Court exercises discretionary review with respect to our petition

docket.   “[T]he question of what cases are heard by the [Court of

Appeals for the Armed Forces] is a matter of internal management,

properly left to that Court’s decision in accordance with

guidelines expressed in that Court’s rules.”            S. Rep. No. 98-53,

at 34 (1983).6    The discretionary nature of this Court’s petition

jurisdiction is more analogous to the Supreme Court’s

discretionary certiorari practice.            We do not deprive an

appellant of any review of right by changing our policy with

respect to abatement ab initio.

      Circuit courts that have reviewed the policy of abatement ab

initio in the context of the Supreme Court’s rejection of such a

policy have focused on a fundamental difference in the
proceedings before the Supreme Court and the circuit courts.

Appeals to the Circuit Courts of Appeal are of right.            See 28

U.S.C. §§ 1291-1292 (2000).       On the other hand, writs of

certiorari are granted on a discretionary basis.            See 28 U.S.C.

§§ 1254, 1257 (2000).      Thus, “[t]he prevailing practice of the



6
  See also Eugene R. Fidell, Guide to the Rules of Practice and
Procedure for the United States Court of Appeals for the Armed
Forces 126-28 (10th ed. 2001)(making several references to the
discretionary nature of this Court’s petition review).


                                         15
United States v. Rorie, No. 02-0949/AR


Supreme Court to dismiss petitions for certiorari upon the death

of the convicted defendant . . . does not readily transfer to the

Courts of Appeals.”      

.   See also

; 

.

      After the Supreme Court abandoned its policy of abatement ab

initio in Dove, a number of courts focused on the nature of the

Supreme Court’s discretionary certiorari jurisdiction as a

critical factor in determining whether to maintain their own

policies of abatement.      Among the several Circuit Courts of

Appeals to look at this aspect of the issue, there was consensus

that an appellant’s appeal of right to the circuit courts was a

substantial distinction that supported maintaining a policy of

abatement ab initio.      See, e.g., 

;
United States v. Davis, 

, 1486 (10th Cir. 1992);

United States v. Schumann, 

, 1236 n.1 (11th Cir.

1988); 

.

      Finally, we note that the rule of abatement ab initio is a

matter of policy in the Federal courts.       It is not mandated by

the Constitution or statute, nor have we adopted it as part of
the Rules of Practice and Procedure for this Court.       Absent

direction from Congress or the President on this matter, we are

convinced that abatement ab initio is not a policy compelled by

the interests of justice or the jurisdictional underpinnings of

this Court.




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United States v. Rorie, No. 02-0949/AR


                               Stare Decisis

      We recognize that our holding today is contrary to our

existing precedent and are not unmindful of the importance that

the doctrine of stare decisis plays in our decision-making.           See

United States v. Tualla, 

, 230-31 (C.A.A.F. 2000);

United States v. Boyett, 

, 154-56 (C.A.A.F. 1995).

The doctrine of 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, 

, 827 (1991).
      The doctrine plays a key role in a number of areas.          The

doctrine is “most compelling” where courts undertake statutory

construction.     Hilton v. South Carolina Public Ry. Comm’n, 

, 205 (1991); Patterson v. McLean Credit Union, 

, 172 (1989).     It comes into play in constitutional

interpretation where “correction through legislative action is

practically impossible[.]”       

(quoting
Burnet v. Coronado Oil & Gas Co., 

, 407 (1932)
(Brandeis, J., dissenting)).        But see Harris v. United States,

, 556 (2002)(stare decisis less important in

constitutional cases).        The doctrine is important in “property

and contract rights, where reliance interests are involved[.]”

.       Additionally, the doctrine plays a role

in ensuring that decisions of superior courts are not ignored or

overturned by inferior courts.           See United States v. Allbery, 

, 227-28 (C.A.A.F. 1996).




                                         17
United States v. Rorie, No. 02-0949/AR


      A decision to alter a policy of abatement ab initio does not

fall into any of the categories identified above as important

areas within which to preserve precedent under stare decisis.

The issue before this Court is not one of constitutional or

statutory interpretation, nor have we been presented with any

“reliance interests” of Appellant.

      “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’.”            

(quoting 

).             Admittedly, the current policy

of abatement cannot be considered “unworkable.”             We believe,

however, that the weight of reason, as discussed in the preceding

section of this opinion, supports a change in the rule.

      First, Berry focused in part upon the impact of finality

under Article 71.     We believe that this focus was misplaced.           The

proper focus of cases dealing with abatement is upon the

opportunity for an appeal of right and a conviction that can be

relied upon as fair and just.        Moreover, there is nothing in the

plain language of Article 71 imposing a congressional mandate for
abatement ab initio.      Article 71 no more compels that we adopt a

policy of abatement ab initio than it compels the United States

Supreme Court to have such a policy with respect to its review

of military convictions.

      The second asserted premise for abatement ab initio at this

Court is the distinction drawn between the nature of review by

petition at this Court and review by certiorari at the Supreme

Court.   See 

; 

.

The mere possibility that this Court will exercise its discretion


                                         18
United States v. Rorie, No. 02-0949/AR


to find “good cause” for a grant of review does not transform

into an appeal of right similar to that existing at the Federal

Circuit Courts of Appeals.       See 28 U.S.C. § 1291 (2000).        See
also 

(Crawford, J., dissenting).

      Thus, we believe that this Court may alter its policy in

regard to abatement ab initio without being constrained by stare

decisis.    We are less constrained by the doctrine of stare

decisis in this instance because we are determining a matter of

court policy rather than contemplating a change in the law or a

change impacting upon an articulable right of an appellant.             “The

determination of a disposition to be made of proceedings cast

into limbo by the death of the defendant-appellant appears, to

us, to be one of policy only.”           Whitehouse v. State, 

, 1016 (Ind. 1977).



                                 CONCLUSION

      We therefore adopt the rule established by the U.S. Supreme

Court in Dove.     When an appellant dies pending an Article
67(a)(3) appellate review by this Court, we will dismiss or deny
the petition but will not abate the action ab initio.7             Berry and

Kuskie are hereby overruled to the extent that they are

inconsistent with this decision.              In view of our conclusion that

an appeal to the Courts of Criminal Appeals is an appeal of

right, we leave to those courts or the Judge Advocates General to


7
  As the issue of abatement of an appeal involving capital
punishment or an appeal certified by a Judge Advocate General are
not before the Court, those issues will be reserved for another
day. See Article 67(a)(1)-(2), Uniform Code of Military Justice,
10 U.S.C. § 867(a)(1)-(2) (2000).


                                         19
United States v. Rorie, No. 02-0949/AR


establish the parameters of a policy of abatement in the event

that an appellant dies pending review at a Court of Criminal

Appeals.



                                  DECISION

      The Motion to Abate the Proceedings is denied, and the

Petition for Grant of Review is dismissed.




                                         20
United States v. Rorie, No. 02-0949/AR



     EFFRON, Judge, with whom BAKER, J., joins (dissenting):

     The lead opinion overrules fifty years of precedent on the

subject of abatement.   Today’s decision is contrary to the

express terms of the Uniform Code of Military Justice

[hereinafter UCMJ], the consistent treatment of abatement by our

Court dating from the earliest days of practice under the Code,

the treatment of cases in the federal civilian courts of

appeals, and the prevailing practice under state law.



Statutory requirements under the UCMJ

     This case is about the statutory provisions of the UCMJ

governing finality.   In particular, this case addresses the

issue of finality in cases subject to review in our Court when

the death of the Appellant occurs before statutory proceedings

have been completed in our Court.   The UCMJ contains three

pertinent statutory provisions.   When the findings and sentence

of a court-martial have been approved by a Court of Criminal

Appeals, the decision of that court becomes the “final judgment

as to the legality of the proceedings” under Article 71(c),

UCMJ, 10 U.S.C. § 871(c) (2000) without further review by our

Court if one of the following conditions has been met: (1) the

service member withdraws an appeal of a non-capital case; (2)

the service member does not file a timely petition for review
United States v. Rorie, No. 02-0949/AR


and the case is not otherwise under review by our Court; (3) our

Court rejects a petition for review.

     Although the finality language in Article 71(c) refers to

cases in which a punitive separation has been adjudged, Rule for

Courts-Martial 1209 [hereinafter R.C.M.], makes it clear that

the same considerations apply to all courts-martial reviewed by

the Courts of Criminal Appeals, regardless of the nature of the

sentence:

            R.C.M. 1209. Finality of courts-martial

            (a) When a conviction is final. A court-
            martial conviction is final when:
                 (1) Review is completed by a Court of
            Criminal Appeals and –
                      (A) The accused does not file a
                 timely petition for review by the Court
                 of Appeals for the Armed Forces and the
                 case is not otherwise under review by
                 that court; and
                      (B) A petition for review is
                 denied or otherwise rejected by the
                 Court of Appeals for the Armed
                 Forces[.]


     R.C.M. 1209 is consistent with the finality provisions of

Article 76, UCMJ, 10 U.S.C. § 876 (2000), and the direct review

provisions of Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2000).

Article 76 provides that the proceedings of a court-martial are

“final and conclusive” only when “approved, reviewed, or

affirmed as required by [the UCMJ].”    Article 67(a) describes

two classes of cases within our jurisdiction that involve



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United States v. Rorie, No. 02-0949/AR


mandatory review – capital cases and cases submitted to our

Court upon certification of the Judge Advocate General

concerned.   Article 67(a)(1)-(2).   With respect to a third class

of cases – petitions by a service member - Article 67 provides:

          (a) The Court of Appeals for the Armed
          Forces shall review the record in -

          . . .

          (3) all cases reviewed by a Court of
          Criminal Appeals which, upon petition of the
          accused and on good cause shown, the Court
          of Appeals for the Armed Forces has granted
          a review.


The use of the term “shall review” in Article 67 is significant.

Compare 10 U.S.C. § 101(e)(1)(2000)(“‘shall’ is used in an

imperative sense”) with 

is used in

a permissive sense.”)   Although Article 67(a)(3) provides our

Court with much greater flexibility than the Article III courts

of appeals in terms of deciding which cases to review, we do not

have the unfettered discretion of the Supreme Court to deny

review regardless of the merits of the case.   Compare 28 U.S.C.

§ 1291 (2000)(providing the Article III courts of appeals with

“jurisdiction of appeals from all final decisions of the

district courts” except where a statute provides for direct

review in the Supreme Court) with 28 U.S.C. §§ 1254(1), 1257-

1259 (2000)(describing cases that “may be reviewed” by the

Supreme Court by writ of certiorari).    As noted in a treatise on


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United States v. Rorie, No. 02-0949/AR


military law, “Counsel familiar with Supreme Court practice

should not confuse the ‘good cause’ standard [under Article 67]

with certiorari.   Those courts that may review a case by issuing

a writ of certiorari are not required to hear a case merely

because a party demonstrates viable legal issues requiring

relief.”   Legal Services, Dep’t of the Army, Pamphlet No. 27-

173, Trial Procedure 247 (1992).

     The combination in Article 67 of mandatory language (“shall

review”) and a flexible standard (“upon good cause shown”)

reflects congressional intent to provide service members with a

significant opportunity to obtain review by an independent,

civilian tribunal, without requiring our court to grant full

review in every case.    See United States v. Byrd, 

,

36-37 (C.A.A.F. 2000)(citing H.R. Rep. No. 81-491, at 6-7

(1949); S. Rep. No. 97-146, at 36 (1981)).    See also S. Rep. No.

98-53, at 34 (1983).



Statutory interpretation

     Courts-martial exercise limited, statutory jurisdiction

over specific persons.   See Articles 2-3, UCMJ, 10 U.S.C.

§§ 802, 803 (2000); see R.C.M. 201(b)(4).    The accused is the

defendant at a court-martial, and the UCMJ does not authorize

substitution of another person as a party to the court-martial

if the accused dies either during or after trial.


                                   4
United States v. Rorie, No. 02-0949/AR


       Shortly after the UCMJ was enacted, our Court confronted

the question of what action could be taken under the Code when

an appellant died prior to final review of the legality of the

proceeding.    In United States v. Mosher, 

(1953),

the Court was informed through a motion for abatement that the

appellant had died subsequent to action on the case by the Board

of Review – the predecessor of today’s Courts of Criminal

Appeals.    Our Court granted the motion for abatement and

dismissed the petition for grant of review.    

  For

over fifty years, our Court consistently has granted motions for

abatement when the appellant dies prior to issuance of a

decision by our Court, as noted in the lead opinion. ___ M.J.

(9).



Stare Decisis

       Reliance on precedent as a critical guidepost in deciding

cases – the doctrine of stare decisis – is essential to the fair

administration of justice.    As the Supreme Court has emphasized,

“it is indisputable that stare decisis is a basic self-governing

principle within the Judicial Branch, which is entrusted with

the sensitive and difficult task of fashioning and preserving a

jurisprudential system that is not based upon ‘an arbitrary

discretion.’”    Patterson v. McLean Credit Union, 

,

172 (1989)(quoting The Federalist No. 78, at 490 (A.


                                  5
United States v. Rorie, No. 02-0949/AR


Hamilton)(H. Lodge ed. 1988).    Adherence to precedence “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, 

, 827 (1991).

     Because stare decisis is a principle of judicial decision

making, not a rule, a precedent may be overruled when it is

“unworkable or . . . badly reasoned.”    

United

States v. Tualla, 

, 231 (C.A.A.F. 2000).    The role of

precedent is particularly important in matters involving

statutory interpretation:

            [A]ny departure from the doctrine of stare
            decisis demands special justification . . .
            . [T]he burden borne by the party advocating
            the abandonment of an established precedent
            is greater where the Court is asked to
            overrule a point of statutory construction .
            . . for here, unlike in the context of
            constitutional interpretation, the
            legislative power is implicated, and
            Congress remains free to alter what we have
            done.

(citations and internal quotations

omitted).

     The lead opinion would overturn a half-century of

consistent precedent on the ground that our precedent is based

upon a “policy” that is not “compelled by the interests of



                                  6
United States v. Rorie, No. 02-0949/AR


justice or the jurisdictional underpinnings of this Court.”     __

M.J. (17).   The issue before us, however, does not involve a

choice among competing public policy alternatives.    Our

precedent involves a matter of statutory interpretation, in

which the legal policy preferences of the judiciary yield to

precedent unless the proponents of change demonstrate that the

interpretation is either unworkable or badly reasoned.

     As the lead opinion acknowledges, abatement under our

precedent is not unworkable.   __ M.J. (18).   The lead opinion’s

suggestion that “the weight of reason supports a change in the

rule” of abatement, falls far short of demonstrating that the

rule is “poorly reasoned.” __ M.J. (18).

     The statutory basis for our current precedent was reviewed

in Berry v. Judges of the United States Army Court of Military

Review, 

, 159-60 (C.M.A. 1993)(discussing the

finality provisions in Article 71.)   The opinion noted that our

precedent was consistent with the prevailing practice in the

Article III courts of appeals and the statutory language

governing review of petitions in our Court.    

(discussing Article 67(a)(3)).

     The lead opinion offers several reasons for overruling

Berry.   First, the lead opinion states that abatement is not

required by the express language of Article 71.    ___ M.J. (18).

Under the lead opinion’s theory, the decision of the Court of


                                 7
United States v. Rorie, No. 02-0949/AR


Criminal Appeals would constitute the final judgment of the

legality of the proceedings in this case even though the

decision was not final under the express requirements of Article

71.   The majority’s assertion that nothing in Article 71

“compels” the statutory interpretation set forth in Berry does

not provide the appropriate test for overruling precedent.     The

issue before us is whether our precedents are so poorly reasoned

that they must be overturned.   Given the consistency between

abatement, the language of Article 71, and the President’s

interpretation of the pertinent statutes in R.C.M. 1209, that

case has not been made.

      Second, the lead opinion states that our precedent is

premised on “the distinction drawn between the nature of review

by petition at this Court and review by certiorari at the

Supreme Court.”   __ M.J. (18)(citing 

,

United States v. Kuskie, 

, 254-55 (C.M.A. 1981)).

Neither case, however, held that our precedent on abatement was

premised upon the distinction between the nature of our review

and the nature of review in the Supreme Court; rather, in each

case the merits of the analogy between review in our Court and

review in the Supreme Court was raised by the Government as an

argument for overturning our precedent.   Each opinion explained

why the Government’s argument was unpersuasive.   See 

; 

.


                                 8
United States v. Rorie, No. 02-0949/AR


     The lead opinion reiterates the suggestion, rejected in

Berry and Kuskie, that we should overturn our precedents by

analogizing review in our Court to review in the Supreme Court.

___ M.J. (6-8, 14-16).   The opinion notes that the Supreme Court

in the 1970s first adopted a policy of abatement, ___ M.J.

(6)(citing Durham v. United States, 

(1971)), and

then abandoned it five years later without explanation, ___ M.J.

(6)(citing Dove v. United States, 

(1976)).     The

lead opinion also observes that the Article III courts of

appeals have continued consistently to apply abatement, even in

the aftermath of Dove, noting that several courts have explained

the difference in terms of the distinction between the

discretionary review in the Supreme Court and appeal as a matter

of right in the courts of appeals.   ___ M.J. (7-8).   Building

upon the distinction between abatement in the courts of appeals

and non-abatement in the Supreme Court, the lead opinion

suggests that because our review of petitions for “good cause”

under Article 67(b)(3) is more analogous to discretionary review

in the Supreme Court than appeal as of right in the circuit

courts, we should follow the Supreme Court’s non-abatement

policy, as advocated by prior dissenting opinions in this Court.

___ M.J.(14-16).

     There are several problems with this argument.    First, the

fact that Berry and Kuskie did not involve unanimous opinions


                                 9
United States v. Rorie, No. 02-0949/AR


does not provide a reason for abandoning our precedents.      In

this regard, the Supreme Court’s consideration of the

relationship between prior dissents and stare decisis in

Patterson is instructive.   In Patterson, the Court considered

whether to overrule Runyon v. McCrary, 

(1976)(interpreting a federal statute as prohibiting racial

discrimination in private schools admissions).   With respect to

the effect of prior divisions on stare decisis, the Court said:

          The arguments about whether Runyon was
          decided correctly in light of the language
          and history of the statute were examined and
          discussed with great care in our decision.
          It was recognized at the time that a strong
          case could be made for the view that the
          statute does not reach private conduct, but
          that view did not prevail. Some Members of
          this Court believe that Runyon was decided
          incorrectly, and others consider it correct
          on its own footing, but the question before
          us is whether it ought now to be 

(citations omitted)(declining to overturn the

Court’s precedent).   We are in a similar situation.   The issue

is not whether we now agree that Berry was decided correctly or

incorrectly, “the question before us is whether it ought now to

be overturned.”

     Second, the issue is not whether our practice is so

analogous to review in the Supreme Court that we should adopt a

“policy” of abatement.   The issue before us is a matter of

statutory interpretation.   The current case, like the similar


                                10
United States v. Rorie, No. 02-0949/AR


cases we have reviewed over the past 50 years, requires us to

interpret the mandate of Article 67(b)(3) –- that we “shall

review” petitions “upon good cause shown” -- in light of the

finality provisions of Article 71 and Article 76.     See also

R.C.M. 1209.

     Third, the issue is not how we should resolve this question

as a matter of first impression.     Under the doctrine of stare

decisis, the burden is on those who would change the precedent

to demonstrate that our Court’s interpretation of the law is so

poorly reasoned or unworkable that it should be abandoned.

     Fourth, the brief memorandum decision in Dove applying a

policy of non-abatement in the Supreme Court and the circuit

court opinions applying a policy of non-abatement cited in the

lead opinion, ___ M.J. (7-8, 16) involve specific statutes cast

in terms quite different from the applicable provisions of the

UCMJ.   Compare 28 U.S.C. § 1254(1)(wholly discretionary review

in the Supreme Court), and 28 U.S.C. §§ 1291-1292 (2000)(appeal

as of right to the circuit courts), with Article

67(b)(3)(providing that our Court “shall review” petitions “upon

good cause shown”) and Article 71(c)(setting forth express

conditions governing final determinations as to the legality of

court-martial proceedings).   At best, the comparison between the

practice of non-abatement at the Supreme Court and abatement at

the courts of appeals provides fodder for a policy debate


                                11
United States v. Rorie, No. 02-0949/AR


regarding the competing merits of each approach.   What is

important from the perspective of the current case is that the

differing practices in the Article III courts demonstrate that

they have not rejected abatement, and that the policies

developed in those courts do not take into account the specific

statutory provisions of the UCMJ.   In the context of stare

decisis, where the proponents of abandoning precedent must show

that our Court’s position is “poorly reasoned,” the differing

views of the Article III courts do not demonstrate that our

prior cases have misconstrued the interrelationship among

Articles 67, 71, 76 and R.C.M. 1209.

     Finally, the Supreme Court also has emphasized the

relationship between precedent and congressional action for

purposes of considering stare decisis.   In Hilton v. South

Carolina Public Ry. Comm’n, 

(1991), the Court

considered whether to overturn the precedent of Parden v.

Terminal Railway of Alabama Docks Department, 

(1964)(construing various federal statutes as permitting a cause

of action against a state-owned railroad in state court).     In

the course of concluding that the precedent should not be

overturned, the Court said:

          Congress has had almost 30 years in which it
          could have corrected our decision in Parden
          if it disagreed with it, and has not chosen
          to do so. We should accord weight to this
          continued acceptance of our earlier holding.


                               12
United States v. Rorie, No. 

.    With respect to the issue before us, Congress

has had over 50 years to overturn Mosher and has chosen not to

do so.   Of particular note, the year after our 1981 decision in

Kuskie, the Department of Defense submitted to Congress a

comprehensive legislative proposal, including revision of the

appellate review process, which led to enactment of the Military

Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393.      See S.

Rep. No. 98-53, at 1, 7-11 (1983).      The legislation, which

included amendments to Articles 67 and 71, did not address

abatement.   Congressional inaction, which may stem from many

causes, should be viewed with caution for purposes of statutory

interpretation.    Under Hilton, however, such inaction provides

additional grounds for concluding that the proponents of

changing our interpretation of the UCMJ have not surmounted the

hurdle imposed by the doctrine of stare decisis, particularly in

light of the broad language used by the President in the

implementation of the pertinent statutory provisions.      See

R.C.M. 1209.



State court practice

     The lead opinion observes that while most states apply some

form of abatement, a number of states recently have moved in a

different direction.    ___ M.J. (8).    A number of those states,


                                 13
United States v. Rorie, No. 02-0949/AR


however, as a matter of state law, permit an appeal to proceed

on the merits, based on the interests of society, the defendant,

and the defendant’s estate in appellate resolution of the case.

See, e.g., Gollott v. State, 

(Miss. 1994); State

v. McDonald, 

(Wis. 1988); State v. McGettrick,

(Ohio 1987); State v. Jones, 

, 803-04

(Kan. 1976); Commonwealth v. Walker, 

, 742 (Pa.

1972).   Such a result, however, is not possible under the UCMJ,

which makes no provision for substitution of a party.    As a

result, the lead opinion finds it necessary in the present case

to dismiss the appeal, contrary to the approach of a significant

number of states that have modified their abatement rules.      The

inconsistency between the majority’s decision and the approach

of those states underscores the need for any change in this area

to reflect comprehensive legislative consideration rather than

piecemeal judicial action.



Policy considerations

     The lead opinion offers a number of policy reasons for not

applying abatement, including confidence in the capabilities of

the Courts of Criminal Appeals, societal interests in the

preservation of a judgment of conviction, and the impact on

victims rights.   ___ M.J. (12-14).   These are important policy

concerns, and should be given full consideration in the


                                14
United States v. Rorie, No. 02-0949/AR


appropriate forum in terms of balancing the relative merits of

abatement and appellate review.    Given the wide variety of means

in which abatement has been applied or modified at both the

state and federal level, however, these concerns do not resolve

the issue of how any change should be implemented in the

military justice system.   Consideration of a new approach to

abatement requires attention to a number of difficult questions,

including:

     (1) If the accused dies while the case is pending review by

the convening authority, should the decision of the court-

martial constitute the final judgment as to the legality of the

proceedings?

     (2) If the death occurs prior to a decision by a Court of

Criminal Appeals, should the decision of the court-martial and

action of the convening authority constitute the final judgment?

     (3) If death occurs following a decision by the Court of

Criminal Appeals, should there be an opportunity for further

review on the merits through substitution of a party?

     (4) If death occurs while a case is under mandatory review

by our Court under Article 67(b)(1) (capital cases) or Article

67(b)(2) (certified cases), can the review proceed on the

merits?

     (5) Assuming one party is the United States in such a case,

who is the other party?


                                  15
United States v. Rorie, No. 02-0949/AR


     These are critical questions, all opened but left

unanswered by the lead opinion.    Our current precedent may or

may not represent the best policy choice, but it is clear,

workable, and based on statute.    Under the lead opinion, we face

the possibility of years of litigation to resolve conflicting

decisions at the command level, by individual services, and by

the Courts of Criminal Appeals.    Because this is a matter of

statutory interpretation, we should sustain our precedent,

relying on Congress to address these concerns and balance the

interests of appellants, their families, victims, the armed

forces, and society at large.




                                  16