This opinion is subject to administrative correction before final disposition.

Before 

GASTON, KASPRZYK, and STEWART

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Raymond GONZALES

Firecontrolman Second Class (E-5), U.S. Navy

Appellant

No. 201900223

Decided: 25 June 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Ryan J. Stormer

Sentence adjudged 22 May 2019 by a special court-martial convened 

at Naval Station Great Lakes, Illinois, consisting of a military judge 

sitting alone. Sentence in the Entry of Judgment: reduction to E-1, 

confinement for 12 months, and a bad-conduct discharge.1

For Appellant: 

Captain Bree A. Ermentrout, JAGC, USN

For Appellee:

Major Clayton L. Wiggins, USMC 

Lieutenant Kimberly Rios, JAGC, USN

 

1 The convening authority suspended confinement in excess of four months and 

disapproved the bad conduct discharge pursuant to a pretrial agreement. 
United States v. Gonzales, No. 201900223

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent under 

NMCCA Rule of Appellate Procedure 30.2(a).

_________________________

PER CURIAM:

After careful consideration of the record, submitted without assignment of 

error, we have determined that the findings and sentence are correct in law 

and fact and that no error materially prejudicial to Appellant’s substantial 

rights occurred. Articles 59 and 66, Uniform Code of Military Justice [UCMJ], 

10 U.S.C. §§ 859, 866 (2019).

The imprecise wording of the Convening Authority’s Action (CAA) regarding the term of confinement prompted this Court to specify the issue of 

whether we have jurisdiction to review this case. Where the punitive discharge has been disapproved, the jurisdiction threshold for this type of nonautomatic appeal requires that “the sentence extends to confinement for more 

than six months.” Article 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A) (2019). 

Here, the CAA stated that “[o]f the adjudged sentence of twelve months confinement, four (4) months are approved and will be executed; eight (8) months 

are suspended in accordance with the pretrial agreement.” Is this language 

sufficient to meet the jurisdictional threshold?

We hold that it is. A convening authority “may not disapprove, commute, 

or suspend in whole or in part an adjudged sentence of confinement for more 

than six months” unless it is pursuant to a pretrial agreement [PTA] or based 

on a recommendation by trial counsel for substantial assistance. Article 

60(c)(4)(A), UCMJ, 10 U.S.C. § 860 (2016). In this case, the adjudged sentence 

of confinement was for 12 months and there is no evidence in the record that 

trial counsel made any recommendation for substantial assistance; therefore,

the convening authority must act pursuant to the PTA in disapproving, commuting, or suspending any part of the adjudged period of confinement. Under 

the PTA the parties agreed that confinement “may be approved as adjudged; 

however, confinement in excess of four (4) months will be suspended for a period of 12 months . . . .”

To the extent the CAA’s language can be read to suggest the eight 

months’ suspended confinement were not first approved as per the PTA, we 

hold, as we have held previously, that any such purported action is ultra 

vires and a legal nullity that we will disregard. United States v. Kruse, 75 

M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (involving the purported disapproval of a bad-conduct discharge that the parties had agreed under the PTA 
United States v. Gonzales, No. 201900223

Opinion of the Court

3

would be approved and then suspended). Since any potential ambiguity in the 

CAA is created by language that would be ultra vires and because the military judge resolved any such ambiguity in the Entry of Judgment, the Court 

concludes the approved sentence includes 12 months’ confinement which, 

taken with together with Appellant’s submission, meets the threshold under 

Article 66(b)(1)(A) and gives this Court jurisdiction.

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court