UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39723

________________________

UNITED STATES

Appellee

v.

Kashus M. WAY

Airman (E-2),1 U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 23 December 2020

________________________

Military Judge: Jennifer E. Powell (arraignment); Christopher M. Schumann.

Sentence: Sentence adjudged on 13 May 2019 by GCM convened at Eielson Air Force Base, Alaska. Sentence entered by military judge on 5 

June 2019: Dishonorable discharge, confinement for 30 months, reduction to E-1, and a reprimand.

For Appellant: Major David A. Schiavone, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Jessica 

L. Delaney, USAF; Mary Ellen Payne, Esquire. 

Before LEWIS, D. JOHNSON, and CADOTTE, Appellate Military 

Judges.

Senior Judge LEWIS delivered the opinion of the court, in which Judge 

D. JOHNSON joined. Judge CADOTTE filed a separate opinion concurring in part, dissenting in part and in the result.

________________________

 

1 Appellant was an airman first class (E-3) at the time of arraignment. By the time of 

his trial he had been reduced in grade to airman (E-2) by nonjudicial punishment.
United States v. Way, No. ACM 39723

2

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

LEWIS, Senior Judge:

A general court-martial composed of a military judge sitting alone convicted Appellant, in accordance with his pleas and pursuant to a pretrial agreement (PTA), of one specification of wrongfully viewing child pornography on 

divers occasions and one specification of wrongfully distributing child pornography on divers occasions, both in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934.2,3 The military judge sentenced Appellant to a dishonorable discharge, confinement for 36 months, reduction to 

the grade of E-1, and a reprimand. During post-trial processing, consistent 

with the PTA, the convening authority reduced the confinement to 30 months. 

Before us, Appellant raises two issues: (1) whether new post-trial processing is required because there is no evidence that the convening authority 

considered Appellant’s clemency submission; and (2) whether the military 

judge considered the contents of a prosecution exhibit not admitted into evidence, a violation of due process of law that should have resulted in a mistrial.4

After considering issue (2) we find it warrants no further discussion or relief. 

See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

Additionally, in light of United States v. Lopez, No. ACM S32597, 2020 CCA 

LEXIS 439 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.), we consider whether 

the convening authority failed to take action on the sentence as required by 

Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and 

Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United States 

(2016 ed.) (2016 MCM)).5

 

2 References to the punitive articles of the Uniform Code of Military Justice (UCMJ) 

are to the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM). Unless 

otherwise specified, all other references to the UCMJ and all references to the Rules 

for Courts-Martial (R.C.M.) and Military Rules of Evidence are to the Manual for 

Courts-Martial, United States (2019 ed.) (2019 MCM).

3 Pursuant to the PTA, the convening authority withdrew and dismissed with prejudice 

one specification of wrongful possession of child pornography on divers occasions, an 

alleged violation of Article 134, UCMJ.

4 Issue (2) is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 

We have reworded it slightly.

5 We did not order the Government to show cause as to why this case should not be 

remanded. We are familiar with the recent responses submitted by the Government 

on this issue in prior and pending cases. This decision was made for judicial economy.
United States v. Way, No. ACM 39723

3

For the reasons outlined below, we find no colorable showing of possible 

prejudice from Appellant’s clemency process. We affirm the findings and sentence in the entry of judgment (EoJ).

I. BACKGROUND

Appellant entered the Air Force on 27 January 2016. At the time of the 

offenses, he was assigned to his first permanent duty station, Eielson Air Force 

Base (AFB), Alaska.

On 8 May 2018, a detective with the Anchorage Police Department (APD)

notified agents with the Air Force Office of Special Investigations (AFOSI) that 

an Internet Protocol (IP) address located on Eielson AFB was suspected of distributing child pornography. During APD’s investigation, the detective served 

warrants to produce documents upon: (1) Skype, the communication platform 

used in the suspected distribution of child pornography; and (2) Alaska Communications Systems Group, the Internet service provider for the IP address

used. The returned documents showed the Skype account and the IP address 

used in the suspected child pornography distribution both belonged to Appellant.

At trial, Appellant agreed that between 26 January 2018 and 27 January 

2018, he participated in a Skype chat conversation with “stephaneballet68,” an 

unknown individual. Appellant and “stephaneballet68” were able to communicate with each other using automated translation software even though their 

messages were in different languages. According to Appellant, before the 

Skype conversation, the two had realized they had mutual interests in “anime 

and illegal anime pornography” and “recognized [they] may have images that 

[each of them] were interested in sharing.” “Stephaneballet68” suggested the 

two converse over Skype in order to “trade those images.”

Over a period of several hours, the two exchanged messages and website 

links on Skype. Multiple times during the chat, Appellant sent “stephaneballet68” digital images containing child pornography. Multiple times, “stephaneballet68” sent Appellant digital images of child pornography which Appellant viewed. A total of 30 unique files constituting child pornography were 

found to be associated with Appellant’s Skype account. Appellant stipulated 

that “[m]any of the images depict young boys appearing between the ages of 8 

and 12 years old either naked or engaged in sexual acts” such as “masturbating, digital, and penile penetration.” 

Appellant also consented to a search of his dormitory room on Eielson AFB. 

AFOSI agents seized a notebook containing sketches. At trial, Appellant stip-
United States v. Way, No. ACM 39723

4

ulated that he drew the sketches and that several of them depicted “what appear to be young men or minors in various sexual positions and poses” and 

“bondage of young men or minors in sexually suggestive positions.”6

II. POST-TRIAL PROCESSING

A. Additional Background

On the same day that trial adjourned, the military judge signed a statement of trial results.7 Ten days later, on 23 May 2019, Appellant’s trial defense 

counsel submitted a one-page clemency request asking that the convening authority reduce, commute, or suspend the reduction to the grade of E-1 and allow Appellant to “retain the rank of E-2.” Trial defense counsel argued the 

clemency was appropriate “because it gives [Appellant] some credit for taking 

full responsibility at [a] court-martial and saving the government significant 

time and resources in prosecuting him.” Trial defense counsel did not argue

the financial implications of the reduction in grade to E-1. According to the 

personal data sheet admitted at trial, Appellant was single with no dependents.

On 31 May 2019, the convening authority signed a “Decision on Action” 

memorandum with the following statements in it:

1. I hereby take the following action on the findings [sic][8] in 

the case of United States v. Airman Kashus M. Way: the part 

of the sentence extending to 36 months confinement is reduced to 30 months confinement. . . .

 

6 The Government offered the sketches as a prosecution exhibit during presentencing. 

The military judge sustained trial defense counsel’s objection and did not admit the 

exhibit. In ruling, the military judge conducted a Mil. R. Evid. 403 balancing test and 

found the sketches “cumulative with the information contained in the stipulation of 

fact; and, to some extent, prejudicial to [Appellant], given the actual physical content 

of the drawings themselves.” Appellant’s issue (2), which we addressed above, alleged 

that the military judge considered the actual sketches even though they were not admitted into evidence. 

7 The statement of trial results failed to include the command that convened the courtmartial as required by R.C.M. 1101(a)(3). Appellant has not claimed prejudice and we 

find none. See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 

521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.).

8 This is an error. Given the language that follows, we believe the convening authority 

meant to use the word “sentence” instead of “findings.” Appellant does not claim error 

or prejudice from this typographical error and we find none. 
United States v. Way, No. ACM 39723

5

2. The relief granted was pursuant to a plea agreement.[9]

3. Prior to coming to this decision, I consulted with my Staff 

Judge Advocate.

Additionally, the convening authority’s memorandum directed Appellant to 

take appellate leave upon completion of his confinement sentence and contained the language of Appellant’s adjudged reprimand. 

The convening authority’s memorandum did not specify whether the convening authority considered Appellant’s clemency request prior to signing the 

memorandum. Additionally, the memorandum did not state whether the convening authority “approved” any portion of the adjudged sentence. We address 

both of these matters in our analysis below.

On 5 June 2019, the military judge signed the EoJ which entered into the 

record a sentence of a dishonorable discharge, 30 months of confinement, reduction to the grade of E-1, and a reprimand. The EoJ also contained the language of Appellant’s reprimand and a statement showing that the findings and 

the sentence “reflect all post-trial actions by the convening authority.” 

On 6 June 2019, Appellant’s trial defense counsel was served a copy of the 

convening authority’s memorandum and the EoJ. No post-trial motions were 

filed alleging errors in the clemency process or that the convening authority’s 

action was incomplete, irregular, or erroneous. See R.C.M. 1104(b)(1)(E)–(F); 

R.C.M. 1104(b)(2)(B).

On appeal, in response to Appellant’s assignment of error—whether the 

convening authority considered Appellant’s clemency submission—the Gov-

 

9 Appellant’s case involved a PTA, not a “plea agreement” as that term is used in Article 

53a, UCMJ, 10 U.S.C. § 853a, and R.C.M. 705. R.C.M. 705(a) states “Subject to limitations as the Secretary concerned may prescribe, an accused and the convening authority may enter into a plea agreement in accordance with this rule.” The Secretary of the 

Air Force has directed that “[PTAs] apply to cases where any of the charged offenses 

occurred prior to 1 January 2019, regardless of when the case was referred to trial” 

and “plea agreements apply to cases where all of the charges offenses occurred on or 

after 1 January 2019, and to cases with offenses occurring both before 1 January 2019 

and on or after 1 January 2019 (straddling cases) if the accused opts in to the Military 

Justice Act framework.” Air Force Instruction 51-201, Administration of Military Justice, ¶ 12.5.1, 12.5.2 (18 Jan. 2019). All of Appellant’s offenses occurred prior to 1 January 2019. Appellant does not claim error or prejudice from the misidentification of 

the PTA as a “plea agreement” and we find no prejudicial error.
United States v. Way, No. ACM 39723

6

ernment obtained a declaration from the convening authority, Lieutenant General (Lt Gen) TB, dated 9 April 2020. We granted the Government’s motion to 

attach the declaration over Appellant’s objection. 

At the time of the declaration, Lt Gen TB was still the commander of Eleventh Air Force at Joint Base Elmendorf-Richardson, Alaska, and the general 

court-martial convening authority for Eielson AFB.10 It was Lt Gen TB who 

referred the charge and specifications to a general court-martial and entered 

into the PTA with Appellant. Lt Gen TB declared that he reviewed Appellant’s 

clemency submission and was aware of the requirement to review it prior to 

“making a decision on action.” Lt Gen TB specifically recalled that Appellant

requested to “reduce, commute, or suspend the reduction in grade as adjudged 

from E-2 to E-1 and restore [Appellant’s] rank.” Finally, Lt Gen TB declared 

“after considering the submission, I determined additional action was not warranted and took action only on the sentence as required by the [PTA].”

B. Law

Proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. 

App. 2004) (citation omitted). Interpretation of a statute and a R.C.M. provision are also questions of law that we review de novo. United States v. Hunter,

65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted); United States v. Martinelli,

62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted).

Executive Order 13,825, § 6(b), requires that the version of Article 60, 

UCMJ, “in effect on the date of the earliest offense of which the accused was 

found guilty, shall apply to the convening authority . . . to the extent that Article 60: (1) requires action by the convening authority on the sentence.” See

2018 Amendments to the Manual for Courts-Martial, United States, 83 Fed. 

Reg. 9889, 9890 (8 Mar. 2018). The version of Article 60, UCMJ, in effect on 

the date of the earliest charged offense in this case, 1 May 2017, stated “[a]ction 

on the sentence of a court-martial shall be taken by the convening authority.” 

10 U.S.C. § 860(c)(2)(A) (2016 MCM).

C. Analysis

1. Consideration of Clemency Submission

This case is not the first time we have addressed whether a convening authority must specify that clemency matters were considered and include such 

a matter in the record of trial. In United States v. Jackman, we stated we were 

 

10 This is Lt Gen TB’s second assignment serving as a general court-martial convening 

authority as he was previously the commander of Eighth Air Force, Barksdale AFB, 

Louisiana. 
United States v. Way, No. ACM 39723

7

aware of “no [R.C.M.] that requires documentation by the convening authority 

that the clemency matters were considered” while acknowledging the value of 

such a practice to show compliance with R.C.M. 1109(d)(3)(A). No. ACM 39685, 

2020 CCA LEXIS 273, at *12–13 (A.F. Ct. Crim. App. 21 Aug. 2020) (per curiam) (unpub. op.) (footnote omitted). In Jackman, we tested for plain error as 

no post-trial motion was filed with the military judge to “raise a concern” that 

the clemency matters were not properly considered. Id. at *13. We found no 

prejudice in Jackman as the appellant did not attempt to show he was prejudiced and the merits brief submitted specifically indicated that he suffered no 

prejudice from “any such” post-trial processing error. Id. at *14.

In this case, Appellant does not claim that the Manual for Courts-Martial, 

United States (2019 ed.) (2019 MCM) contains a rule that requires the convening authority to document consideration of clemency matters. Instead, Appellant argues that a decision of the United States Court of Military Appeals applies to his case, United States v. Craig, 28 M.J. 321 (C.M.A. 1989). In Craig, 

the court “announced” that it “will not ‘guess’ as to whether clemency matters 

prepared by the defense counsel were attached to the recommendation [of the 

staff judge advocate] or otherwise considered by the convening authority.” Id.

at 325; see also United States v. Bakcsi, 64 M.J. 544, 545 (A.F. Ct. Crim. App. 

2006) (finding the convening authority must be advised in the post-trial recommendation of the requirement to consider all clemency matters submitted).

Appellant acknowledges that there is no longer a requirement for a staff judge 

advocate to provide a written recommendation to the convening authority under the post-trial processing rules that apply to his case. Appellant insists, 

however, that the decisions of Craig and Bakcsi required the convening authority to indicate he considered the submitted clemency matters.

The Government disagrees with Appellant’s view that the record of trial 

must contain evidence that the convening authority considered the clemency 

submitted. Regarding Craig, the Government argues that its precedent does 

not apply due to significant changes in military law that apply in Appellant’s 

case, including that no staff judge advocate’s recommendation was required.

Additionally, the Government cites United States v. Stephens, 56 M.J. 391, 

392 (C.A.A.F. 2002), which noted the Manual for Courts-Martial did not “require the convening authority to state in the final action what materials were 

reviewed in reaching a final decision.” In Stephens, the court stated “[w]e decline to hold that a document embodying the convening authority’s final action 

is defective simply because it refers to the SJA’s recommendation without also 

referring to attachments, such as an addendum or clemency materials.” Id.

After considering the arguments by the parties, we conclude that the posttrial processing system that applied in Craig, Bakcsi, and Stephens is different 
United States v. Way, No. ACM 39723

8

than the one that applies to Appellant’s case and gives those precedents limited 

applicability to this case. We highlight two major differences. 

First, under the prior post-trial processing system, written advice of the 

staff judge advocate to the convening authority was required. See, e.g., R.C.M. 

1106 (2016 MCM). In Appellant’s case, the convening authority only needed to 

“consult” with the staff judge advocate to comply with R.C.M. 1109(d)(2). Here, 

there is no question that such a consultation occurred. The convening authority’s memorandum states a consultation occurred and Appellant raises no challenge to this conclusion.

Second, under the prior post-trial processing system, the military judge retained “control over a court-martial until the record [was] authenticated and 

forwarded to the convening authority for review.” United States v. Neal, 68 

M.J. 289, 296 (C.A.A.F. 2010) (citation omitted); see also R.C.M. 1104 (2016 

MCM). In the system that applies to Appellant’s case, the military judge retained authority to hear post-trial motions including those filed within five

days of the EoJ being served on trial defense counsel. See R.C.M. 1104(b). In 

our view, permitting military judges to retain authority after convening authority action is a dramatic change in post-trial processing. No longer is the 

convening authority’s action the last step in the trial process; it is now the EoJ. 

The system now allows the concerns that we address here to be addressed with 

the military judge via a post-trial motion. As we see it, the most appropriate 

time to raise a concern about the convening authority’s memorandum was 

within five days of receipt of the convening authority’s decision memorandum 

by Appellant’s trial defense counsel, not months later on direct appeal. 

Given the significant changes in the post-trial processing system that applied to Appellant’s case, we conclude there was no legal requirement that the 

convening authority’s memorandum specify that Appellant’s clemency matters 

were considered. Therefore, we have determined there is no error to correct.

If we assume arguendo that there was error that was not waived by failing 

to file a post-trial motion, then we find it appropriate to test for plain error. To 

prevail under a plain error analysis, Appellant must show “(1) there was an 

error; (2) [the error] was plain or obvious; and (3) the error materially prejudiced a substantial right.” See United States v. LeBlanc, 74 M.J. 650, 660 (A.F. 

Ct. Crim. App. 2015) (en banc) (quoting United States v. Scalo, 60 M.J. 435, 

436 (C.A.A.F. 2005)). We have applied the threshold of “some colorable showing 

of possible prejudice” as the appropriate standard for an error impacting an 

appellant’s request for clemency under the current post-trial processing system. See, e.g., United States v. Cruspero, No. ACM S32595, 2020 CCA LEXIS 

427, at *14–15 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.) (quoting LeBlanc, 74 M.J. at 660). 
United States v. Way, No. ACM 39723

9

Appellant argues that he has satisfied the low standard of some colorable 

showing of possible prejudice because our court can only “guess” whether the 

convening authority was “even aware of Appellant’s request to retain his rank.” 

In opposition, the Government argues that we should rely on a “presumption 

of regularity” with the convening authority’s exercise of his responsibilities on 

clemency, absent some evidence to the contrary. See United States v. Foy, 30 

M.J. 664, 666 (A.F.C.M.R. 1999) (applying presumption of regularity when 

clemency matters are attached to an addendum to the staff judge advocate’s 

recommendation). Alternatively, the Government argues Appellant was not 

prejudiced given the declaration submitted by Lt Gen TB. We agree with the 

Government’s second argument.

While Appellant has suggested that guesswork is necessary to resolve this 

issue, we see no need for guesswork, but an evaluation of whether Appellant 

can meet his burden of some colorable showing of possible prejudice. The main 

obstacle to Appellant’s argument is the sworn declaration of Lt Gen TB which 

we have concluded we may consider along with other matters in the record of 

trial.11

After review of the above, we conclude that Appellant’s one-page clemency 

submission was considered by Lt Gen TB before he signed the “Decision on 

Action” memorandum. Lt Gen TB recalled reviewing Appellant’s clemency submission and knew Appellant’s case well. After all, Lt Gen TB was the same 

convening authority who referred the charge and specifications to a general 

court-martial. Lt Gen TB had also agreed to a PTA with Appellant just 16 days 

prior to Appellant submitting his clemency letter. As we have said in prior 

cases, we are mindful that post facto explanations in declarations may unconsciously be influenced with the benefit of hindsight. See, e.g., United States v. 

Ward, No ACM. 39648, 2020 CCA LEXIS 305, at *11–12 (A.F. Ct. Crim. App. 

3 Sep. 2020) (unpub. op.) (citations omitted). Here, after weighing Lt Gen TB’s 

declaration along with the content of Appellant’s clemency request and other 

matters in the record of trial, we conclude that Appellant has failed to carry 

his burden of some colorable showing of possible prejudice. Appellant’s request 

for new post-trial processing warrants no relief. 

 

11 In United States v. Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020), the United States Court 

of Appeals for the Armed Forces recognized that “some [of its] precedents have allowed 

the [Courts of Criminal Appeals] to supplement the record when deciding issues that 

are raised by materials in the record.” Accordingly, we understand Jessie to permit us 

to consider this declaration after Appellant claimed error in the convening authority’s 

Decision on Action memorandum.
United States v. Way, No. ACM 39723

10

2. Taking Action on the Sentence

We now consider what must be done, if anything, because the convening

authority’s decision memorandum did not explicitly state that he “approved” 

each portion of the sentence contained in the EoJ. Appellant raises no error 

and claims no prejudice on this front. His brief does quite the opposite by stating in certain terms that “[t]he convening authority approved only 30 months 

of the adjudged confinement pursuant to the [PTA], otherwise approved the 

sentence as adjudged, and, but for the dishonorable discharge, ordered the sentence executed.” The difficulty with adopting the statement in Appellant’s brief 

is that it cites the convening authority’s decision memorandum in support and 

it is obvious that the cited memorandum does not use the words “approved” or 

“executed.” Therefore, this matter requires closer examination.

Recently, in Lopez, a panel of our court addressed the question of “whether 

the convening authority’s action with respect to one element of the sentence 

satisfies the pre-1 January 2019 requirement under Article 60, UCMJ [(2016 

MCM)] that the convening authority take action on the sentence.” Unpub. op. 

at *10–11. In a 2–1 decision, the majority remanded the case to the Chief Trial 

Judge of the Air Force after concluding that failure to take action on the entire 

sentence does not satisfy Article 60, UCMJ (2016 MCM) and the convening 

authority “was required to explicitly state his approval or disapproval of the 

sentence.” Id. at *11 (citation omitted). Our esteemed colleague who dissents 

in part adopts the reasoning of the majority in Lopez and would similarly remand Appellant’s case without testing for material prejudice. 

We, however, do not adopt the rationale of the majority in Lopez, but to be 

clear, we also do not adopt the position of the dissent in Lopez. Id. at *12–46

(Posch, S.J., dissenting) (finding no error after applying Article 60a, UCMJ, 10 

U.S.C. § 860a (2019 MCM)). Instead, we adhere to the approach we used in 

prior cases where the convening authority’s decision memoranda either stated 

no action was taken on the sentence, or in the case. See, e.g., Cruspero, unpub.

op. at *12–15; United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416, 

at *29–37 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (Lewis, 

S.J., concurring in part and in the result); United States v. Finco, No. ACM 

S32603, 2020 CCA LEXIS 246, at *13–16 (A.F. Ct. Crim. App. 27 Jul. 2020) 

(unpub. op.). 

Our approach begins with determining whether Appellant waived or forfeited the issue by not filing a post-trial motion within five days after receipt 

of the convening authority’s decision memorandum to allege the action was 

incomplete, irregular, or contained error. See R.C.M. 1104(b)(2)(B). In our view, 

Appellant’s opportunity to challenge the decision memorandum before the military judge and his failure to file such a motion warrants appropriate consid-
United States v. Way, No. ACM 39723

11

eration. As we did in Cruspero and for the same reasoning, we find that Appellant’s failure to file a post-trial motion forfeited his right to object to the accuracy of the memorandum, absent plain error. See unpub. op. at *13–14.

Applying the plain error test described above, even if we assume without 

deciding that there was error in the decision memorandum that was plain or 

obvious, we can discern no colorable showing of possible prejudice to Appellant. 

In cases like Cruspero and Finco we found such a colorable showing to be “apparent” as we were “unsure” whether the convening authority made a decision 

on a clemency request that could be granted. Cruspero, unpub. op. at *15; 

Finco, unpub. op. at *16. Here, we are not unsure whether the convening authority acted on Appellant’s clemency request. Lt Gen TB’s post-trial declaration assists us in concluding that Appellant’s clemency request was fairly considered and Lt Gen TB determined that granting the request was not warranted. Under these circumstances, we conclude that there is no colorable 

showing of possible prejudice from the convening authority’s memorandum 

and that the EoJ correctly reflects the entered sentence. 

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

CADOTTE, Judge (concurring in part, dissenting in part and in the result):

I agree with the conclusion of the court with respect to issues (1) and (2). 

However, I would remand this case to the Chief Trial Judge, Air Force Trial 

Judiciary, to resolve a substantial issue with the decision memorandum as the 

convening authority’s action taken on Appellant’s adjudged sentence was ambiguous and incomplete. I adopt the reasoning of the majority in United States 

v. Lopez, No. ACM S32597, 2020 CCA LEXIS 439 (A.F. Ct. Crim. App. 8 Dec. 

2020) (unpub. op.), and find the convening authority here, as was the case with 

Lopez, “was required to explicitly state his approval or disapproval of the sentence.” Id. at *11. The convening authority failed to do so, thus I conclude the 

convening authority failed to take action on the entire sentence in accordance 

with Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), 

and Article 60, Uniform Code of Military Justice, 10 U.S.C. § 860 (Manual for 

Courts-Martial, United States (2016 ed.)). As I did in United States v. Cruspero, 

No. ACM S32595, 2020 CCA LEXIS 427, at *19–20 (A.F. Ct. Crim. App. 24 

Nov. 2020) (unpub. op.) (Cadotte, J., concurring in the result), I find the convening authority’s decision to be a “fundamental misstep in military justice 
United States v. Way, No. ACM 39723

12

procedure.” United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416, 

at *92–105 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (J. Johnson, C.J., dissenting in part and in the result). As such, I do not agree with the 

majority’s approach in conducting a plain error analysis. The convening authority’s action must be “clear and unambiguous,” and in this case it is not. See 

United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citing United States v. 

Loft, 10 M.J. 262, 268 (C.M.A. 1981)). I disagree with my esteemed colleagues’

decision to test for material prejudice. Accordingly, I would find error and remand regardless of whether Appellant was materially prejudiced.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court