This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Corey N. WALL, Specialist

United States Army, Appellant

No. 19-0143

Crim. App. No. 20160235

Argued January 14, 2020—Decided April 24, 2020

Military Judge: Lanny Acosta

For Appellant: Captain Rachele A. Adkins (argued); Lieutenant Colonel Tiffany D. Pond, Lieutenant Colonel Christopher D. Carrier, and Captain Heather M. Martin (on brief); 

Major Todd W. Simpson.

For Appellee: Major Jonathan S. Reiner (argued); Colonel 

Steven P. Haight, Lieutenant Colonel Wayne H. Williams,

Major Hannah E. Kaufman and Captain Christopher T. 

Leighton (on brief); Captain Marc B. Sawyer.

Chief Judge STUCKY delivered the opinion of the Court, 

in which Judges OHLSON and SPARKS joined. Judge 

RYAN filed a separate dissenting opinion in which Judge 

MAGGS joined.

_______________

Chief Judge STUCKY delivered the opinion of the Court.

The issue presented in this case is whether the United 

States Army Court of Criminal Appeals (CCA) was authorized 

to reassess Appellant’s sentence after setting aside the sentence approved by the convening authority. As a consequence 

of granting that issue for review, we necessarily specified an 

additional issue, asking whether the granted issue was ripe 

for review. We hold that the issue was ripe for review and 

that, by setting aside the sentence, there was no approved 

sentence for the CCA to reassess. 

I. Background

A military judge sitting alone as a general court-martial 

convicted Appellant, contrary to his pleas, of rape and sexual 

assault. Article 120, Uniform Code of Military Justice 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

2

(UCMJ), 10 U.S.C. § 920 (2012). The convening authority approved the sentence adjudged: a dishonorable discharge, confinement for fifteen years, and reduction to the grade of E-1. 

The CCA held that the military judge’s consideration of 

the evidence of each charged offense as propensity evidence 

for the other charged offense, under Military Rule of Evidence 

413, violated this Court’s holdings in United States v. Hills, 

75 M.J. 350 (C.A.A.F. 2016), and United States v. Hukill, 

76 M.J. 219 (C.A.A.F. 2017). United States v. Wall, No. ARMY 

20160235, 2018 CCA LEXIS 479, at *14, 2018 WL 4908172, 

at *5 (A. Ct. Crim. App. Oct. 5, 2018). The CCA affirmed the 

rape conviction but set aside the sexual assault conviction and 

the sentence. Id. at *15, 2018 WL 4908172, at *6. It authorized the convening authority to choose one of the following 

options:

(1) order a rehearing on [the sexual assault offense]

and the sentence; (2) dismiss [the sexual assault offense] and order a rehearing on the sentence only; or 

(3) dismiss [the sexual assault offense] and reassess 

the sentence, affirming no more than a dishonorable 

discharge, confinement for ten years, total forfeiture 

of all pay and allowances, and reduction to E-1.1

Id. at *15–16, 2018 WL 4908172, at *6. In a footnote, the CCA 

further concluded:

In reassessing the sentence we are satisfied that the 

sentence adjudged, absent Specification 1 of The 

Charge, would have been at least a dishonorable discharge and confinement of ten years. See United 

States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and 

United States v. Winckelmann, 73 M.J. 11, 15–16 

(C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error 

does not otherwise limit the sentence that may be 

adjudged at a rehearing. See UCMJ, art. 63.

Id. at *16 n.3, 2018 WL 4908172, at *6 n.3.

 

1 The convening authority approves rather than affirms a sentence. Rule for Courts-Martial (R.C.M.) 1107(f)(4) (2016 ed.).
United States v. Wall, No. 19-0143/AR

Opinion of the Court

3

The CCA granted Appellant’s request for reconsideration, 

directed minor corrections to its original opinion, and affirmed all other aspects of its opinion and the judgment of the 

court. United States v. Wall, No. ARMY 20160235 (A. Ct. 

Crim. App. Nov. 16, 2018) (order). 

II. Discussion

The parties agree that we are reviewing a CCA sentence 

reassessment and, therefore, this Court should review both 

issues for an abuse of discretion. That is not the standard for 

the issues we specified. We asked: (1) whether the issue is 

ripe for review; and (2) whether a CCA is authorized to set 

aside a sentence and then reassess it before remanding the 

case to the convening authority. These are clearly questions 

of law that we review de novo. See Waltman v. Payne, 535 

F.3d 342, 348 (5th Cir. 2008) (ripeness); United States v. English, 79 M.J. 116, 121 (C.A.A.F. 2019) (scope of an appellate 

court’s authority).

We begin with the authority of the CCAs. A CCA “may affirm only such findings of guilty, and the sentence or such 

part or amount of the sentence, as it finds correct in law and 

fact and determines, on the basis of the entire record, should 

be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012).

If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting 

aside is based on lack of sufficient evidence in the 

record to support the findings, order a rehearing. If 

it sets aside the findings and sentence and does not 

order a rehearing, it shall order that the charges be 

dismissed.

Article 66(d), UCMJ. 

The Judge Advocate General shall, unless there is to 

be further action by the President, the Secretary 

concerned, the Court of Appeals for the Armed 

Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the 

decision of the Court of Criminal Appeals. If the 

Court of Criminal Appeals has ordered a rehearing 

but the convening authority finds a rehearing impracticable, he may dismiss the charges.

Article 66(e), UCMJ. 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

4

The statute does not explicitly tell us how to handle a case 

in which a CCA affirms some of the convictions, sets aside 

others, and authorizes a rehearing. Nevertheless, under his 

authority to make procedural rules, Article 36(a), UCMJ, 10 

U.S.C. § 836(a) (2012), the President has issued the following:

If a superior authority has approved some of the 

findings of guilty and has authorized a rehearing as 

to other offenses and the sentence, the convening authority may, unless otherwise directed, reassess the 

sentence based on the approved findings of guilty 

and dismiss the remaining charges. Reassessment is 

appropriate only where the convening authority determines that the accused’s sentence would have 

been at least of a certain magnitude had the prejudicial error not been committed and the reassessed 

sentence is appropriate in relation to the affirmed 

findings of guilty.

R.C.M. 1107(e)(1)(B)(iv) (2012 ed.).

A. Jurisdiction

“‘[E]very federal appellate court has a special obligation to 

satisfy itself ... of its own jurisdiction.’” Randolph v. HV, 76 

M.J. 27, 29 (C.A.A.F. 2017) (alterations in original) (quoting 

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 

(1986)). This Court has a duty to review the record in all cases 

reviewed by a CCA in which the accused’s petition establishes 

good cause. Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) 

(2012). This Court, however, “may act only with respect to the 

findings and sentence as approved by the convening authority 

and as affirmed or set aside as incorrect in law by the Court 

of Criminal Appeals.” Article 67(c), UCMJ.

The first question, then, is whether the CCA set aside the 

sentence as incorrect in law. The CCA set aside the sexual 

assault finding because the military judge considered evidence of each charged offense as propensity evidence for the 

other, in violation of our precedents. Wall, 2018 CCA LEXIS 

479, at *14, 2018 WL 4908172, at *5. That was clearly a matter of law. The CCA could have simply dismissed that specification and determined the appropriate sentence. See Article 

66(c), UCMJ. It chose instead to permit the prosecution to retry the accused on the charge that was set aside. As the original sentence was based in part on the finding of guilty that 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

5

had been set aside, the CCA set aside the sentence to effectuate the possibility of a rehearing on findings and sentence. 

Under these circumstances, we conclude that the sentence 

was set aside as incorrect in law and, therefore, we have jurisdiction. This is consistent with our resolution of two other 

cases, in which we issued orders stating that we had jurisdiction, although we declined to resolve the granted issue, finding it was not ripe. United States v. Long, 79 M.J. 99 (C.A.A.F. 

2019) (order); United States v. Hopkins, 78 M.J. 130 (C.A.A.F. 

2018) (order). 

The Government makes two jurisdictional arguments, 

First, it contends that this Court will exceed its “congressionally circumscribed jurisdiction by providing sentencing relief.” This misses the point. We are not reviewing the sentence 

in this case; we are instead determining the scope of the 

CCA’s authority in remands.

Second, the Government asserts that as the CCA merely 

vacated the sentence, rather than set it aside as a matter of 

law, this Court is without jurisdiction. But in its judgment, 

the CCA specifically stated: “The sentence is set aside.” Wall,

2018 CCA LEXIS 479, at *15, 2018 WL 4908172, at *6. Furthermore, whether the sentence is “set aside” or “vacated” is 

of little import. The definition of “set aside” is to “annul or 

vacate (a judgment, order, etc.).” Black’s Law Dictionary 1580 

(10th ed. 2014). The terms “set aside” and “vacate” are actually a “doublet.” They are often used together to note the same 

meaning, one in old English and the other in old French. 

Bryan A. Garner, Garner’s Dictionary of Legal Usage 812 (3d 

ed. 2011).

B. Ripeness

“Ripeness” is the “state of a dispute that has reached, but 

has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be 

made.” Black’s Law Dictionary 1524 (10th ed. 2014). 

[The doctrine’s] basic rationale is to prevent the 

courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to 

protect the agencies from judicial interference until 

an administrative decision has been formalized and 

its effects felt in a concrete way by the challenging 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

6

parties. The problem is best seen in a twofold aspect, 

requiring us to evaluate both the fitness of the issues 

for judicial decision and the hardship to the parties 

of withholding court consideration.

Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abrogated by Califano v. Sanders, 430 U.S. 99 (1977).

The ripeness doctrine originates in the Constitution’s Article III case or controversy language. DaimlerChrysler Corp. 

v. Cuno, 547 U.S. 332, 352 (2006). Nevertheless, Article I 

courts, such as ours, “generally adhere” to this doctrine and 

ordinarily decline to consider an issue that is “premature.” 

United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003). 

If the appeal is not ripe, it deprives the court of subject matter 

jurisdiction and must be dismissed. 1 Lissa Griffin, Federal 

Criminal Appeals § 3:46 (2019 ed.).

In Texas v. United States, the Supreme Court employed 

sweeping language to describe ripeness: “A claim is not ripe 

for adjudication if it rests upon contingent future events that 

may not occur as anticipated, or indeed may not occur at all.” 

523 U.S. 296, 300 (1998) (internal quotation marks omitted) 

(citation omitted). But in analyzing the granted issue, the Supreme Court employed the Abbott two-part test: “fitness of the 

issues for judicial decision and the hardship to the parties of 

withholding court consideration.” Id. at 301 (internal quotation marks omitted) (quoting Abbott, 387 U.S. at 149). The 

Supreme Court determined that the claim that Texas suffered 

the immediate hardship of a threat to federalism was “too 

speculative” and “insubstantial.” Id. at 302.

This Court has routinely denied, as not ripe for review, 

petitions for grant of review in cases in which the CCA has 

ordered a rehearing. See, e.g., United States v. Clark, 78 M.J. 

371 (C.A.A.F. 2019) (summary disposition). In this case, however, the issue concerns the terms of the remand itself: 

Whether the CCA is authorized to provide what amounts to 

an advisory opinion by declaring what sentence to confinement it would accept as appropriate.

The Supreme Court found the issue ripe in Abbott because 

the regulation at issue had a “direct effect on the day-to-day 

business” of the plaintiffs, even though the regulation had not 

yet been enforced. 387 U.S. at 152. Under the Abbott test, the 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

7

issue in Appellant’s case is fit for resolution. First, the issue 

“is a purely legal one,” which can be resolved without further 

proceedings. Id. at 149. Resolution of the issue is limited to 

this Court’s interpretation of the UCMJ and the President’s 

Rules for Courts-Martial.

Second, unlike in Texas, the adverse effect of the CCA’s 

ruling is neither remote nor abstract. 523 U.S. at 301. The 

CCA sent a clear message to the convening authority that it 

would approve a sentence that included confinement of ten 

years if the convening authority decided not to order a rehearing. While the convening authority was not prohibited from 

ordering a rehearing, the possibility he would do so is remote 

in light of the time and expense of such a hearing, the difficulty in obtaining witnesses almost three years after Appellant’s initial trial, and the seeming certainty that the CCA 

would affirm a sentence to confinement of ten years for the 

affirmed finding of guilty. 

Furthermore, resolution of the issue promotes, rather 

than degrades judicial economy—minimizing duplication of 

effort and avoiding wasting the court’s time and resources. 

The CCA has rendered similar rulings, setting aside a sentence and then reassessing it, in at least seven other cases. 

See Appendix I. As a matter of judicial economy, it makes 

sense to resolve this issue now, before more such cases arise.

Appellant has also shown hardship, as the CCA’s order on 

his case “is sufficiently direct and immediate as to render the 

issue appropriate for judicial review at this stage.” Abbott, 

387 U.S. at 152. Without our intervention, Appellant’s case 

will be returned to the convening authority to make an independent decision on whether to order a rehearing or to reassess the sentence. And the CCA has already ruled that it 

would affirm if the convening authority elected to forgo a rehearing and reassess the sentence to include confinement for 

ten years. If this Court waits until the convening authority 

reassesses the sentence, this Court may have no way of determining whether the convening authority actually exercised 

his independent judgment or was unduly influenced by the 

CCA.

We, therefore, conclude the issue is ripe for review.
United States v. Wall, No. 19-0143/AR

Opinion of the Court

8

C. Authority for the Order

“In a case referred to it, the Court of Criminal Appeals 

may act only with respect to the ... sentence as approved by 

the convening authority.” Article 66(c), UCMJ (emphasis 

added). By setting aside Appellant’s approved sentence and 

remanding, the CCA extinguished the approved sentence 

and, thereby, its authority to further act on the sentence until 

the case returned from the convening authority. 

The Government argues that: (1) in United States v. Harris, 53 M.J. 86 (C.A.A.F. 2000), this Court tacitly condoned 

the CCA’s action in this case; (2) Article 66(f)(3), UCMJ, authorized the CCA to order further proceedings subject to such 

limitations as the court may direct; and (3) the convening authority was not prohibited from approving any lesser sentence. We find none of these arguments persuasive. 

This Court has not condoned the CCA’s practice in the 

past. In Harris, the CCA set aside some of the appellant’s convictions and remanded to the convening authority with three 

options: (1) to order a rehearing on the set aside charges and 

the sentence; (2) to order a sentence rehearing alone if (1) was 

impracticable; and (3) if the second option was impracticable 

to reassess the sentence. 53 M.J. at 87. The CCA in that case 

did not reassess the sentence after setting it aside and remanding.

The Government also argues that the CCA did not abuse 

its discretion in ordering a rehearing with limitations providing direction to the convening authority because it is specifically authorized by Article 66(f)(3), UCMJ. Putting aside 

whether Article 66(f)(3) authorizes the CCA’s judgment, that

provision is contained in the Military Justice Act of 2016, and 

does not apply to cases such as Appellant’s, which was tried 

and remanded before the Act’s January 1, 2019, effective 

date. National Defense Authorization Act for Fiscal Year 

2017, Pub. L. No. 114-328, § 5330, 130 Stat. 2000, 2932

(2016). Neither the UCMJ nor the Rules for Courts-Martial 

applicable to Appellant’s case authorize the CCA to reassess 

the sentence after remand. 

We agree with the Government that the remand did not 

require the convening authority to approve the sentence as 

“reassessed” by the CCA. But that is not Appellant’s point. He 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

9

asserts that the “reassessment” was an advisory opinion that 

would taint what is supposed to be an independent assessment by the convening authority.

An advisory opinion is “an opinion issued by a court on a 

matter that does not involve a justiciable case or controversy 

between adverse parties.” Chisholm, 59 M.J. at 152 (citation 

omitted). While courts established under Article III of the 

Constitution may not issue advisory opinions, courts established under Article I, such as this Court and the Courts of 

Criminal Appeals, “generally adhere to the prohibition on advisory opinions as a prudential matter.” Id. (citation omitted).

But the CCA’s “reassessment” was more than just an advisory opinion. It sent a message to both the convening authority and members of the CCA who would sit on the case 

when it returned after remand: You are not required to follow 

this advice, but this court has already determined that confinement for ten years was part of an appropriate sentence. 

Appellant’s case is similar in some respects to Peugh v. 

United States, 569 U.S. 530 (2013). There, the issue presented 

was whether application of sentencing guidelines that had increased in severity since the appellant had committed his offenses violated the Ex Post Facto Clause. Id. at 533. The Supreme Court rejected the government’s argument that since 

the guidelines were merely advisory, there was no ex post 

facto problem. Id. at 539. “The touchstone of this Court’s inquiry is whether a given change in law presents a sufficient 

risk of increasing the measure of punishment attached to the 

covered crimes.” Id. at 539 (internal quotation marks omitted) 

(citation omitted). The Supreme Court went on to hold that 

the risk that the increased guidelines affected the trial court’s 

sentencing decision was too great. Id. at 550.

Subject to the limitations of the UCMJ and the Rules for 

Courts-Martial, the decision to reassess the sentence, and 

what sentence to approve, is solely that of the convening authority. Article 60, UCMJ, 10 U.S.C. § 860 (2012); R.C.M.

1107(e)(2)(B)(iii) (2016 ed.); United States v. Reed, 33 M.J. 98, 

99–100 (C.M.A. 1991). While not requiring the convening authority to adopt its conclusions, the CCA’s “reassessment” 

sent a signal to the convening authority that confinement for 
United States v. Wall, No. 19-0143/AR

Opinion of the Court

10

ten years was appropriate. The risk that the CCA’s “reassessment” will improperly influence the convening authority’s action in his exercise of his discretion is too great.2

III. Judgment

The judgment of the United States Army Court of Criminal Appeals is set aside as to sentence. The record is returned 

to the Judge Advocate General of the Army for remand to the 

CCA, which shall: (1) dismiss the sexual assault specification 

(Specification 1 of Charge I) and reassess the sentence; or 

(2) remand to the convening authority who shall (a) order a 

rehearing on the rape specification and the sentence or 

(b) dismiss the rape specification and order a rehearing on the 

sentence alone.

 

2 During oral argument, Government counsel asserted that the 

CCA’s “reassessment” of the sentence would save time for that 

panel or a new panel when the case returned for further review. We 

reject any suggestion that the panel that reviews Appellant’s case

in the future is authorized to give it any less than the full consideration of the appropriateness of the sentence required by Article 

66(c), UCMJ.
United States v. Wall, No. 19-0143/AR

Opinion of the Court

11

Appendix I

The CCA’s judgment in the following seven other cases is 

similar to that of Appellant’s case.

(1) United States v. Williams, No. ARMY 20160231, 2019 

CCA LEXIS 288, at *21 & n.13, 2019 WL 2949401, at *8 &

n.13 (A. Ct. Crim. App. July 3, 2019); 

(2) United States v. Solomon, No. ARMY 20160456, 2019 CCA 

LEXIS 149, at *36 & n.23, 2019 WL 1528078, at *15 & n.23 

(A. Ct. Crim. App. Apr. 3, 2019); 

(3) United States v. Moynihan, No. ARMY 20130855, 2018 

CCA LEXIS 610, at *11 & n.5, 2018 WL 6334226, at *4 & n.5 

(A. Ct. Crim. App. Nov. 26, 2018), review dismissed, 78 M.J. 

371 (C.A.A.F. 2019);

(4) United States v. Long, No. ARMY 20150160, 2018 CCA 

LEXIS 512, at *34 & n.16, 2018 WL 5623640, at *12 & n.16 

(A. Ct. Crim. App. Oct. 26, 2018), review dismissed, 79 M.J. 

99 (C.A.A.F. 2019), and reconsideration denied, 79 M.J. 184

(C.A.A.F. July 11, 2019); 

(5) United States v. Hernandez, No. ARMY 20160217, 2018 

CCA LEXIS 389, at *13 & n.4, 2018 WL 3854046, at *5 & n.4 

(A. Ct. Crim. App. Aug. 10, 2018); 

(6) United States v. Gonzalez, No. ARMY 20160363, 2018 

CCA LEXIS 327, at *13―14 & n.8, 2018 WL 3326646, at *6 &

n.8 (A. Ct. Crim. App. July 3, 2018); and

(7) United States v. Hopkins, No. ARMY 20140913, 2018 CCA 

LEXIS 254, at *34–35 & n.15, 2018 WL 2405998, at *12 &

n.15 (A. Ct. Crim. App. May 25, 2018).
United States v. Wall, No. 19-0143/AR

Judge RYAN, with whom Judge MAGGS joins, dissenting.

In this case Appellant seeks an answer to a legal question: 

“Whether, after setting aside the sentence and ordering a remand, a service court of criminal appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.” United States v. Wall, 79 M.J. 63, 

63―64 (C.A.A.F. 2019) (order granting petition for review).

But that avenue of relief, like all others that ask a federal 

court to render a decision, is subject to the ordinary rules of 

justiciability, rules intended to confine “the constitutional 

limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 

(2006) (internal quotation marks omitted) (citation omitted).1

A central tenet of this limitation is the doctrine of ripeness, 

see id. at 352, which “prevent[s] . . . courts, through premature 

adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agr. Prods. Co., 473 

U.S. 568, 580 (1985) (internal quotation marks omitted) 

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).

This doctrine draws “both from Article III limitations on 

judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 

538 U.S. 803, 808 (2003) (internal quotation marks omitted)

(citation omitted). While we are not an Article III court, we 

“generally adhere to the prohibitions on advisory opinions as 

a prudential matter.” See, e.g., United States v. Chisholm, 59 

M.J. 151, 152 (C.A.A.F. 2003). This case is not ripe, we imprudently exceed our judicial role by deciding it, and I respectfully dissent.

A.

In assessing whether a claim is ripe, we agree with the 

majority that the appropriate framework is set forth in Abbott, 387 U.S. at 149, and reiterated in Texas v. United States, 

 

1 The Declaratory Judgment Act, for example, provides: “In a 

case of actual controversy within its jurisdiction . . . any court of the 

United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party 

seeking such declaration, whether or not further relief is or could 

be sought.” 28 U.S.C. § 2201(a) (2018) (emphasis added).
United States v. Wall, No. 19-0143/AR

Judge RYAN, dissenting

2

523 U.S. 296, 300–01 (1998) (quoting Abbott, 387 U.S. at 149): 

“ ‘fitness of the issues for judicial decision and the hardship to 

the parties of withholding court consideration.’ ”

While a pure question of law may be fit for judicial decision in theory, that is no invitation for courts to reach out and 

decide issues where the harm alleged is speculative: “A claim 

is not ripe for adjudication if it rests upon contingent future 

events that may not occur as anticipated, or indeed may not 

occur at all.” Id. at 300 (internal quotation marks omitted)

(citation omitted). Accordingly, at least twice this Court summarily dismissed cases in the precise posture of this one without prejudice as unripe because there was a possibility of a 

rehearing. See United States v. Long, 79 M.J. 99 (C.A.A.F. 

2019) (order) (CCA remand included reassessment option 

with cap of dishonorable discharge, confinement for forty 

years, and reduction to E-1; assigned issues included 

“Whether the Army Court abused its discretion by reassessing the sentence after dismissing eleven out of fourteen 

specifications, and offering the convening authority the option to approve an excessive sentence for the remaining specifications in lieu of a rehearing”); United States v. Moynihan, 

78 M.J. 371 (C.A.A.F. 2019) (order) (CCA remand included reassessment option with cap of dishonorable discharge, confinement for forty-two months, and reduction to E-1; sole assigned issue was “Whether the Army Court erred when it set 

aside Appellant’s convictions because of prejudicial error, yet 

considered those same convictions when it reassessed the sentence”). The majority fails to distinguish these cases.

While the scope and contours of the CCA’s authority may 

well present a purely legal question, Abbott, 387 U.S. at 149, 

there is no cognizable injury to Appellant at this time. Any 

harm here necessarily turns on contingent events. Cf. United 

States v. Cabral, 926 F.3d 687, 694 (10th Cir. 2019) (dismissing vagueness challenge to supervised release condition as 

unripe because “[e]ven assuming a condition is facially problematic, the mere existence of [such a] condition is ordinarily 

not enough to sustain a judicial challenge, even by one who 

reasonably believes that the law applies to him and will be 

enforced against him” (internal quotation marks omitted) (citation omitted)). The convening authority has yet to take any 
United States v. Wall, No. 19-0143/AR

Judge RYAN, dissenting

3

action, and the CCA expressly empowered the convening authority to order a rehearing instead of reassessing the sentence. United States v. Wall, No. ARMY 20160235, 2018 CCA 

LEXIS 479, at *15―16, 2018 WL 4908172, at *6 (A. Ct. Crim. 

App. Oct. 5, 2018) (unpublished). Moreover, the CCA did not 

dictate what sentence the convening authority must impose,2

and we have no way of knowing what sentence he might impose if he in fact chooses that option, rather than a rehearing. 

The harm Appellant complains of thus depends both on the 

convening authority’s selection of the reassessment option 

and imposition of a sentence of ten years3—a “contingent future event[] that may not occur as anticipated, or indeed may 

not occur at all.” Texas, 523 U.S. at 300 (internal quotation 

marks omitted) (citation omitted). 

The harm alleged here is quite different than that deemed 

sufficiently immediate in Abbott and hews far more closely to 

that deemed too speculative in Texas. Abbott involved an administrative regulation that forced Abbott Laboratories into 

a dilemma where they would either incur massive costs by 

complying with the regulation or face criminal prosecution for

non-compliance. 387 U.S. at 152. It was in that context that 

the Supreme Court deemed resolution of the purely legal 

question ripe because of the adverse impact on a party.

In contrast, the law challenged in Texas prevented the 

State from imposing two out of ten possible sanctions on 

school districts that failed to satisfy accreditation criteria. 523 

U.S. at 298–300. Unlike the “direct effect on day-to-day business” in Abbott, Texas, 523 U.S. at 301 (internal quotation 

marks omitted) (citation omitted), a series of contingent 

events had to occur for those two options to ever become avail-

 

2 Indeed, the CCA stated “[t]he reassessment being both appropriate and purging the record as it stands of error does not otherwise 

limit the sentence that may be adjudged at a rehearing.” 2018 CCA 

LEXIS 479, at *16 n.3, 2018 WL 4908172, at *6 n.3 (emphasis 

added).

3 Worth emphasizing, the ten years at issue is still five years 

less than the original fifteen-year sentence, which the convening 

authority could still approve.
United States v. Wall, No. 19-0143/AR

Judge RYAN, dissenting

4

able, and the State could not show any district where imposing such sanctions was even likely. Id. at 300. As in Texas, 

the claim here is simply not “ripe for adjudication.” Id. at 302.

B.

The majority nevertheless finds concrete ripeness in the 

hypothetical harm that may potentially arise through the 

CCA’s proposed (but non-binding if a rehearing is ordered) reassessment cap possibly tainting the convening authority’s 

independent decision-making. By authorizing a reassessment 

with a sentence cap the CCA considered appropriate, the convening authority was purportedly incentivized to abdicate his 

duty to independently review Appellant’s case and simply 

rubber stamp the CCA’s sentence. Accepting this position divines a concrete injury from both speculation and assumptions that ignore the presumption of regularity afforded convening authorities. See, e.g., United States v. Masusock, 1 

C.M.A. 32, 35, 1 C.M.R. 32, 35 (1951) (“Courts have long indulged in the legal presumption of regularity in the conduct 

of governmental affairs.”). This imaginary potential for some 

speculative, unknowable harm is not justiciable harm, and as 

the dissent in United States v. Gonzalez notes, “[w]hen the 

record is silent on how a convening authority acted, ‘the presumption of regularity requires us to presume that he carried 

out the duties imposed upon him by the Code and the Manual.’ ” __ M.J. __ (4) (C.A.A.F. 2020) (Maggs, J., with whom 

Ryan J., joins, dissenting) (quoting United States v. Wise, 6 

C.M.A. 472, 478, 20 C.M.R. 188, 194 (1955)). This is no less 

true when seeking, as the majority does, to speculate as to 

what a convening authority might do.

Nor does invoking the promotion of judicial economy solve 

the ripeness deficiency. The interest in promoting judicial 

economy is indeed intended to conserve judicial time and resources and effectuate the interests in “prompt and efficient 

resolution of controversies,” Carnegie-Mellon Univ. v. Cohill, 

484 U.S. 343, 353 (1988), and avoid rules that burden the 

court with additional litigation, see McDermott Inc. v. 

AmClyde, 511 U.S. 202, 212 (1994). However, it is not intended, and cannot plausibly be offered, as an end run around 

Article III’s limitations on what constitutes a case or controversy suitable for judicial review. It is not clear how resolving 
United States v. Wall, No. 19-0143/AR

Judge RYAN, dissenting

5

Appellant’s claim at this juncture would appreciably promote

judicial economy more than if we waited for the convening authority to act. Today’s holding will prevent CCAs from ordering these types of remands in the future, but this benefit is 

unnecessary given the Court’s opportunity to decide precisely 

the same thing in Gonzalez—where no one questions whether 

the issue is ripe—without doing violence to the law on justiciability.

C.

Article III’s case or controversy limitations apply only prudentially to our Court, United States v. Wuterich, 67 M.J. 63, 

69 (C.A.A.F. 2008), but this does not license us to imprudently 

apply them. Especially where we exercise such narrowly circumscribed, strictly construed jurisdiction, see Loving v. 

United States, 62 M.J. 235, 244 n.60 (C.A.A.F. 2005), we 

should hesitate to read expansively a justiciability doctrine as 

fundamental as ripeness. Resolving the issue at this stage 

may well be “efficient,” in some generic sense, but so too does 

it bring us closer to the “plenary administrator” the Supreme 

Court once admonished. Clinton v. Goldsmith, 526 U.S. 529, 

536 (1999).

“The military justice system’s essential character [is,] in a 

word, judicial.” Ortiz v. United States, 138 S. Ct. 2165, 2174 

(2018). The majority today strays from this Court’s essential 

judicial character.

I respectfully dissent.