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_______ _______ __________

No. ACM 39770

________________________
UNITED STATES Appellee

v. David A. TELLOR, Jr. Airman (E

- 2 ) , U.S. Air Force, Appellant

________________________ Appeal from the United Stat es Air Force Trial Judiciary

Decided 9 Ma rch 2021

_______ _______ __________ Military Judge: Mark F. Rosenow

. Sentence : Sentence adjudged on 1 May 2019 by G CM conv ened at Mounta in Home Air Force Base, Idaho . Sentence ent ered by military judge on 13 August 2019 : Dishonorab le discharge, confinement for 7 years, forf eiture of all pay and allowances , reduction to E

- 1, and a reprimand

. For Appellant: Major Amanda E. Dermady , USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant Colonel Matthew J. Neil, USAF; M ajor Anne M. Delmare , USAF; Major Brian E. Flanagan, USAF; Mary Ellen Payne , Esquire

. Before J. JOHNSON, KEY

, and CADOTTE, Appellate Military Judges

.

_______ _

______ __________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA R ule of Practice and Procedure 30 .4.

_______ _______ __________

PE R CURIAM :

The military judge f ound Appellant guilty, in accordance with his pleas pursuant to a pretrial agreement, of one sp ecification of sexual assault of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ), 10United States v. Tellor , No

. ACM 39770

2 U.S.C. § 920b. 1
, 2 A general court

- martial composed of officer members sentenced Appellant to a dis honorable discharge, confinement for seven years, forfeiture of all pay and allowances, reduction to the grade of E

- 1, and a reprimand. On 25 June 2019, t he convening authority signed a memorandum in which he provided the language of the reprimand, but oth erwise did not purport to take action on the findings or sentence. 3 On 13 August 2019, the military judge signed an entry of judgment stating the final sentence.
Appellant raises nine issues on appeal: (1) whether the military judge abused his discretion b y erroneously excluding impeachment evidence; (2) whether the military judge abus ed his discretion by allowing hearsay testimony; (3) whether the military judge abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement; (4) whether trial counsel’s sentencing argument was improper; (5) whether there is a question as to whether outside influence was improperly brought to bear on any court member; (6) whether Appellant’s commander’ s disparaging post

trial comment s unlawfully increased Appellant’s punishment; (7) whether cumulative error requires a rehearing on the sentence; (8) whether Appellant’s sentence is inappropriately severe; and (9) whether Appellant is entitled to relief for the conditions of his post

- tri al confinement. 4
However, we defer our consideration of these issues and instead address an issue not raised by the parties: whether we should remand the record to the Chief Trial Judge , Air Force Trial Judiciary, in light of the convening authority ’s fail ure to take action on the entire sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Art icle 60, UCMJ, 10 U.S.C. § 860 . We conclude such a remand is appropriate.
The charges and specifications were referred t o trial on 31 Jan uary 2019; therefore, the Rules for Courts

- Martial that went into effect on 1 January 2019 were generally applicable to the post

- trial processing of Appellant’s case. See Executive Order 13,825, § 2, 83 Fed. Reg. at 9889. However, Appellant was convicted of committing an offense prior to 1 January 2019 . Therefore, in accordance with Executive Order 13,825

, § 6, the version of Article 60, UCMJ, 10

1 Unles s otherwise specified, all references to the UCM J are to the Manual for Courts

Martial , United States (2016 ed.).

2 A second specification of sexual assault of a child was withdrawn and dismissed with prejudice in accordance with the terms of the pretrial agreement.

3 The terms of the pretrial agreement did not affect the convening authority’s abili ty to approve the sentence adjudged by the court

- martial.

4 Appellant personally raises issues (8) and (9) pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982).United States v. Tellor , No

. ACM 39770

3 U.S.C. § 860, in effect prior to 1 January 2019 applied to the convening authority to t he extent that it required him to take action on the sentence. 83 Fed. Reg. at 9890. Before 1 January 2019, Article 60, UCMJ, required the convening authority to take action on the sentence in every case. 10 U.S.C. § 860 (“A ction on the sentence of a court

- martial shall be taken by the convening authority or by another person authorized to act under this section.” ); see also United States
v. Perez , 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take a ction on the se ntence . . . .”); R.C.M. 1107(f)(4)(A) (“The action shall state whether the sentence adjudged by the court

- martial is approved. If only part of the sentence is approved, the action shall state which parts are approved.”).
The convening author ity’s 25 June 2019 memo randum indicated that he

too k action specifically to provide the language of the adjudged reprimand. In addition, it provided that “[u]nless competent authority otherwise directs, upon completion of the sentence to confinement, [Appellant] will be required,under Article 76a, UCMJ, to take leave pending completion of appellate review,” which implied the continued existence of an unsuspended dishonorable discharge. See 10 U.S.C. § 876a. However, the convening authority did no t purport to approve, di sapprov e, commute, or suspend any element of the sentence other than the reprimand

. See 10 U.S.C. § 860( c)(2).

This situation is substantially similar to that in United States v. Lopez , No. ACM S32597, 2020 CCA LEXIS 439 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.) , and several other recent decisions by this court where we have remanded the recor d of trial to address incomplete and ambiguous convening authority actions

. See, e.g.

, United States v. Corpetts , No. ACM S32633, 2021 CCA LEXIS 21 (A.F. Ct. Crim. App. 25 Jan. 2021) (unpub. op.); United States v. Beavers

,No. ACM S32651, 2021 CCA LEXIS 20 (A.F. Ct. Crim. App. 22 Jan. 2021) (unpub. op.); United States v. Walker , No. ACM 39745, 2021 CCA LEXIS 14 (A.F

. Ct. Crim. App. 19 Jan. 2021) (unpub. op.). We recognize that panels of this court composed of other judges have applied differ ent reasoning in cases wherethe convening authority did not take action on the entire sentence, or purported to take “no action ” on the sentence

. See, e.g.

, United States v. Merritt

, No. ACM 39754, 2021 CCA LEXIS 61, at *2 n.2 (A.F. Ct. Crim. App. 11 Feb. 2021) (unpub. op.); United States v. Jackman , No. ACM 39685 (f rev), 2021 CCA LEXIS 26 (A.F. Ct. Crim. A pp. 26 Jan. 2021) (unpu b. op.); United S t ates v. Cruspero , No. ACM S32595, 2020 CCA LEXIS 427 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.); United States v. Aumont , No. ACM 39673, 2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.). However

, we contin u e to adhere to the view expressed in the dissenting opinion in Aumont and the majority opinion in Lopez in situations where the convening authority fails to take action on the entire sentence as required by Executive Order 13,825 and the pre

- 1 Januar y 2019 version of Article 60, UCMJ.United States v. Tellor , No

. ACM 39770

4 Accordingly, we conclude the convening authority’s action that only provided the language of the adjudged reprimand was incom plete and ambiguous

, and therefore deficient. See Politte , 63 M.J. at 26. F or the rea sons set f orth in the majority opinion in Lopez , we find the record should be remand ed to the Chief Trial Judge to resolve the error. See Arti cle 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3) ( Manual for Courts

- Martial

, United States (2019 ed.) (2019 MCM ) )

. The record is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, to resolve a substantial issue with the convening authority’s decisionmemorandum as the action taken on Appellant’s adjudged sentence was ambiguous and incomplete.
Our remand returns jurisdict ion over the case to a detailed military judge and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the Joint Rules for Appellate Procedure for Courts of Criminal Appeals. J T

. C T

. C RIM

. A PP

. R. 29(b)(2). A detailed military judge may:
(1) Correct the Statement of Trial Results; 5
(2) Return the record of trial to the convening authority or his successor to take action on the sentence;
(3) Conduct one or more Article 66(f)(3), UCMJ (2019 MCM ) , proceedings using the procedural rules for p ost

- trial Article 39(a), UCMJ, sessions; and/or
(4) Correct or modify the e ntry of j udgment.
Thereafter, the record of trial will be returned to the court for completion of appellate review under Article 66, UCMJ.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

5 The Statement of Trial R esults failed to include the command that convened the
court

- martial as required by R.C.M. 1101(a)(3). Appellant has not cl aimed prejudice from the error

. See United States v. Moody

- Neukom , No. ACM S32594, 2019 CCA LEXIS 521, at *2

– 3 (A.F. Ct. Cri m. App. 16 Dec. 2019) (per curi am) (unpub. op.).