This opinion is subject to administrative correction before fin al 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. 201900 223

Decided: 2 5 June 2020

Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Ryan J. Stormer

Sentence adjudged 22 M ay 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 a uthority suspended confinement in excess of four months and d isapproved the bad conduct discharge pursuant to a pretrial agreement.United States v. Gonzales
, No. 201 900 223 Opinion of the Court

2 _________________________
This opinion doe s 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 A ppellant’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 Actio n (CAA) regarding the term of confinement prompted this Court to specify the issue ofwhether we have jurisdiction to review this case. Where the punitive discharge has been disapproved, the jurisdiction threshold for this type of non

automatic appeal requ ires 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, t he 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, th e 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 c onvening a uthority must act pursuant to the PTA in disapproving, commuting, o r 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 ext en t 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 p urported action is ultra vires and a legal nullity that we will disregard. Unite d 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 PTAUnited States v. Gonzales
, No. 201 900 223 Opinion of the Court

3 would be approved and then suspended)

. Since any potential ambiguity in the CAA is crea ted by language that would be ultra vires and because the military judge resolved any such ambiguity in the Entry of Judg ment, the Court concludes the approved sentence include s 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.

T he findings and sentence are AFFIRMED

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court