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by CDR Walter Francis Fitzpatrick, III (Ret.)
(Nov. 17, 2013) — Convening authorities are prohibited from “ACTING” on a case before the court-martial record is examined and reviewed.
That means the court-martial record must be available to the convening authority and his/her staff JAG.
It is illegal for a convening authority to “ACT” on a case, or as Tim Zeller puts it, arrive at “Final Determinations” on a court-martial before the court-martial record is studied.
Zeller’s dated memo, 11 April 1990, dates both memos Zeller exchanged with Bitoff on that day. Bitoff’s large initialed “B” appears on both criminal instruments.
The “PERSONAL FOR (P-4s),” to Bitoff then carries the date of 11 April 1990 as well as its allied “FINAL DISPOSITIONS” memo. You can tell by reading the content of each.
11 April 1990 is almost five weeks before the court-martial record was ready for anyone’s inspection.
Also this: Recall my court-martial proper ran from Monday 2 April through Thursday 5 April 1990.
So, just six days after my court-martial had adjourned, Bitoff and Zeller unlawfully took “ACTION.”
The above three records are presented in chronological order. Zeller wrote his “FINAL DISPOSITIONS” memo first, the P-4 second (but on the same day). Delivery of the court-martial record is memorialized on 14 May 1990.