UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

William C. McALHANEY, Airman Basic

United States Air Force, Appellant

No. 22-0170

Crim. App. No. 39979

Argued November 8, 2022—Decided March 24, 2023

Military Judge: Elizabeth M. Hernandez

For Appellant: Major Eshawn R. Rawlley (argued); 

Major David L. Bosner and Mark C. Bruegger, Esq.

For Appellee: Major Jay S. Peer (argued); Colonel 

Naomi P. Dennis, Lieutenant Colonel Matthew J. 

Neil, and Mary Ellen Payne, Esq. (on brief); Major 

Brittany M. Speirs.

Judge SPARKS delivered the opinion of the Court, 

in which Chief Judge OHLSON, Judge MAGGS, 

Judge HARDY, and Senior Judge STUCKY joined.

_______________
United States v. McAlhaney, No. 22-0170/AF

Opinion of the Court

2

Judge SPARKS delivered the opinion of the Court.

Appellant argues that the United States Air Force 

Court of Criminal Appeals erred in applying a plain error 

standard of review to the question of whether the adjudged 

reprimand was appropriate as written as part of its 

sentence appropriateness review under Article 66(d)(1), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 866(d)(1) (2018). We agree, and therefore set aside the 

lower court’s decision and remand the case for a new 

Article 66(d)(1), UCMJ, review.

I. Background

The lower court summarized the relevant background 

as follows:

 Appellant began communicating with 15-yearold NC using the Snapchat and iMessage 

applications prior to entering active duty. NC told 

Appellant she was 15 years old. Appellant and NC 

stopped communicating while Appellant was in 

basic military training (BMT) but resumed after 

he arrived at Sheppard Air Force Base (AFB), 

Texas, for technical school. In January 2019, 

Appellant asked whether NC would send him a 

nude photograph or video of herself. Appellant 

paid $30.00 to NC for a short video of NC having 

sex with a 17-year-old male that Appellant did not 

know. Appellant received and viewed the video.

 Appellant also communicated with ST before 

leaving for BMT. ST told Appellant that she was 

15 years old. Appellant asked ST “whether she 

enjoyed masturbating with a hairbrush,” offered 

to buy her a sex toy, and asked if she would let 

him see her using the sex toy. Appellant asked ST 

for a nude photograph, and ST sent him a 

photograph of her genitals with a wooden 

hairbrush penetrating her vulva.

United States v. McAlhaney, No. ACM 39979, 2022 CCA 

LEXIS 135, at *2-3, 2022 WL 600800, at *1 (A.F. Ct. Crim. 

App. Feb. 28, 2022) (unpublished) (footnotes omitted).

A military judge sitting as a general court-martial 

found Appellant guilty, consistent with his pleas, of one 
United States v. McAlhaney, No. 22-0170/AF

Opinion of the Court

3

specification of wrongful receipt of child pornography and 

one specification of wrongful possession and viewing of 

child pornography, both in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2018). 

The military judge sentenced Appellant to a bad-conduct 

discharge, confinement for three months, and a reprimand. 

After reviewing Appellant’s clemency matters and 

consulting with her staff judge advocate, the convening 

authority signed a Convening Authority Decision on Action 

memorandum. In the Decision on Action, the convening 

authority stated: “I take no action on the findings in this 

case,” and “I take no action on the sentence in this case.”

Following these statements, the Decision on Action set out 

the wording for Appellant’s reprimand, which stated:

Your decision to wrongfully view and possess child 

pornography promoted the abuse and harm of 

children, and furthered the criminal enterprise of 

human sex trafficking, which is directly linked to 

child pornography. Your conduct has no place 

within the Armed Force [sic] or society at large. 

Be warned, further misconduct will result in 

additional criminal liability.

In relevant part, on appeal to the lower court, Appellant 

challenged the language in the reprimand as being “unduly 

severe, inflammatory, inaccurate, and unsupported by the 

evidence in the record.” 2022 CCA LEXIS 135, at *9, 2022 

WL 600800, at *4 (internal quotation marks omitted). 

Appellant contended that the errors in the reprimand 

made his sentence inappropriately severe. Id. at *2, 2022 

WL 600800, at *1.

Stating that it conducts a de novo review of the sentence 

under Article 66(d)(1), UCMJ, as part of its responsibility 

to decide sentence appropriateness, the lower court 

appears to have found that adjudging a reprimand as a 

punishment was not overly severe. Id. at *10-12, 2022 WL 

600800, at *4-5. Next, the lower court noted that because 

Appellant failed to object to the language used in the 

reprimand prior to his appeal, it would consider “whether 

the reprimand was factually inaccurate such that it 

constituted plain or obvious error.” Id. at *12, 2022 WL 
United States v. McAlhaney, No. 22-0170/AF

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600800, at *5. In a footnote, the lower court explained that 

Appellant’s failure to file a post-trial motion under Rule for 

Courts-Martial (R.C.M.) 1104(b)(2)(B) (2019 ed.), forfeited 

his right to object to the factual accuracy of the reprimand,

absent plain error.1 2022 CCA LEXIS 135, at *14 n.11, 

2022 WL 600800, at *6 n.11. Ultimately, the lower court 

found no plain error in any of the challenged statements in 

the reprimand. Id. at *14-16, 2022 WL 600800, at *6. The 

lower court affirmed the findings and sentence. Id. at *16, 

2022 WL 600800, at *6. We then granted review of the 

following issue:

Did the lower court err by applying plain error 

review in considering a question of sentence 

appropriateness, to wit: whether the wording of 

the reprimand rendered Appellant’s sentence 

inappropriately severe?

United States v. McAlhaney, 82 M.J. 419, 419-20 (C.A.A.F. 

2022) (order granting review).

II. Standard of Review and Governing Law

The scope, applicability, and meaning of Article 66(d),

UCMJ, is a matter of statutory interpretation that we 

review de novo. United States v. Gay, 75 M.J. 264, 267 

(C.A.A.F. 2016). The Court of Criminal Appeals “may 

affirm only such findings of guilty, and the sentence or such 

part or amount of the sentence” as they find “correct in law 

and fact,” and which they determine “on the basis of the 

entire record, should be approved.” Article 66(d)(1), UCMJ. 

These three components of the lower court’s Article 66(d), 

UCMJ, authority are commonly referred to as legal 

sufficiency (“correct in law”), factual sufficiency (“correct in 

. . . fact”), and sentence appropriateness (“may affirm only 

. . . such part or amount of the sentence, as [it] . . . 

determines, on the basis of the entire record, should be 

approved”). Under Article 66(d), UCMJ, the Court of 

Criminal Appeals conducts a de novo review of the record 

1 The lower court cited R.C.M. 1104(d)(2)(B), but both parties

and this Court agree that this was a scrivener’s error, and the 

lower court intended to cite R.C.M. 1104(b)(2)(B).
United States v. McAlhaney, No. 22-0170/AF

Opinion of the Court

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for legal sufficiency, factual sufficiency, and sentence 

appropriateness. United States v. Lane, 64 M.J. 1, 2 

(C.A.A.F. 2006).

A reprimand is among the punishments that a courtmartial may adjudge as an authorized sentence. R.C.M. 

1003(b)(1). “A court-martial shall not specify the terms or 

wording of a reprimand.” Id. If imposed, the reprimand 

“shall be issued, in writing, by the convening authority.” 

Id. “A reprimand adjudged by a court-martial is a punitive 

censure.” R.C.M. 1003(b)(1) Discussion.

R.C.M. 914 provides an opportunity for either party to 

file a post-trial motion to address, among other matters, 

“[a]n allegation of error in the convening authority’s action

under R.C.M. 1109 or 1110.” R.C.M. 1104(b)(1)(F). Parties 

have five days after receiving the convening authority’s 

action to file a post-trial motion alleging “error in the action 

of the convening authority.” R.C.M. 1104(b)(2)(B). “An 

accused’s failure to file a post-trial motion within the 

allotted time forfeits his or her right to object to the 

accuracy of the convening authority’s decision on an action, 

absent plain error.” United States v. Miller, 82 M.J. 204,

207 (C.A.A.F. 2022).

III. Discussion

As an initial matter, Appellant’s failure to object to the 

factual language in the reprimand in a post-trial motion 

did not forfeit this issue. We presume that the lower court 

based its forfeiture finding on the convening authority 

issuing the reprimand through the action memorandum. 

However, issuing the reprimand through the action 

memorandum did not make the reprimand an “error in the 

convening authority’s action,” which first must be 

addressed via a post-trial motion to preserve an appellate 

challenge pursuant to R.C.M. 1104(b)(1)(F). The lower 

court appears to have conflated the action and the issuance 

of a written reprimand. While it is true that convening 

authorities typically issue the reprimand via the same 

instrument as the action, nonetheless, there is no rule 

requiring these two acts to be effectuated via the same 
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6

instrument or even at the same time. R.C.M. 1109 and 

R.C.M. 1110, which govern post-trial convening authority 

actions, do not require that a convening authority issue the 

written reprimand with its action. Similarly, R.C.M. 

1003(b)(1) governing reprimands makes no mention of 

action, or any other instrument, by which the convening 

authority shall issue a reprimand, specifying only that a 

reprimand shall be issued in writing. R.C.M. 1104(b)(1)(F) 

addresses “[a]n allegation of error in the convening 

authority’s action under R.C.M. 1109 or 1110.” Because

R.C.M. 1109 and R.C.M. 1110 do not require that a 

convening authority issue the written reprimand with its 

action, we conclude that R.C.M. 1104(b)(1)(F) is not meant 

to address inappropriately severe reprimand challenges 

under Article 66(d), UCMJ.

The Government, nonetheless, argues that the lower 

court applied the proper de novo standard to its Article 

66(d)(1), UCMJ, review of whether Appellant’s reprimand

was appropriate. The Government admits that whether the 

lower court erred by applying plain error review in 

considering the legal or factual correctness of Appellant’s 

reprimand is “debatable.” The Government contends, 

however, that the standard of review the lower court 

applied to the factual correctness question does not matter 

to our analysis of the granted issue, because the lower court 

had already reviewed the sentence appropriateness of 

Appellant’s reprimand using the correct de novo standard.

We disagree with the Government. Although there is no 

prior case law discussing whether a challenge to the 

wording of the adjudged reprimand is reviewed by the 

lower court for legal sufficiency, factual sufficiency, or 

sentence appropriateness, we note that under any of these 

legal umbrellas, the appropriate standard of review is de 

novo. Lane, 64 M.J. at 2. It appears from our review of the 

lower court’s opinion that the lower court conducted a twopronged analysis of the reprimand. First, the lower court 

reviewed de novo whether sentencing Appellant to a 

reprimand was overly severe. McAlhaney, 2022 CCA 

LEXIS 135, at *10-12, 2022 WL 600800, at *4-5. The lower 
United States v. McAlhaney, No. 22-0170/AF

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7

court then reviewed for plain error whether the language 

used in the reprimand was factually accurate. Id. at *12, 

2022 WL 600800, at *5.

The lower court erred to the extent it separated 

Appellant’s allegation of error in the reprimand into two 

issues. Because a reprimand is a component of an adjudged 

sentence, Appellant’s challenge to the reprimand, both 

generally and as written, implicated sentence 

appropriateness which is reviewed de novo. Lane, 64 M.J. 

at 2. The lower court failed to analyze whether the 

reprimand was appropriate, as written, under the proper 

de novo standard of review. To ensure that Appellant was 

not prejudiced by the lower court’s seemingly erroneous 

view of the law, we set aside the lower court’s opinion and 

remand the case for a new Article 66(d), UCMJ, 

determination using the correct de novo standard of 

review. We express no view as to how the new review 

should be resolved. That is a matter committed to the 

discretion of the lower court.

IV. Conclusion

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed as to the findings and set 

aside as to the sentence. The case is returned to the Judge 

Advocate General of the Air Force for remand to the United 

States Air Force Court of Criminal Appeals for a new 

review, consistent with this opinion, under Article 66(d)(1), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 

(d)(1) (2018).