UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32595

________________________

UNITED STATES

Appellee

v.

Kristofer J. CRUSPERO

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 24 November 2020

________________________

Military Judge: Christina M. Jimenez.

Sentence: Sentence adjudged on 2 April 2019 by SpCM convened at 

McConnell Air Force Base, Kansas. Sentence entered by military judge 

on 1 May 2019: Bad-conduct discharge, confinement for 4 months, forfeiture of $1,000.00 pay per month for 4 months, and reduction to E-1.

For Appellant: Major Stuart J. Anderson, USAF.

For Appellee: Major Zachary T. West, USAF; Mary Ellen Payne, Esquire.

Before LEWIS, D. JOHNSON, and CADOTTE Appellate Military 

Judges.

Judge D. JOHNSON delivered the opinion of the court, in which Senior 

Judge LEWIS joined. Judge CADOTTE filed a separate opinion concurring in the result.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

D. JOHNSON, Judge:
United States v. Cruspero, No. ACM S32595

2

Appellant was convicted, in accordance with his pleas and pursuant to a 

pretrial agreement (PTA), of three specifications of wrongful use of cocaine, 

3,4-methylenedioxymethamphetamine (commonly referred to as ecstasy), and 

lysergic acid diethylamide (commonly referred to as LSD), all in violation of 

Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1,2

A military judge sitting alone sentenced Appellant to a bad-conduct discharge, confinement for four months, forfeiture of $1,000.00 pay per month for 

four months, and reduction to the grade of E-1. The adjudged confinement was 

the same amount as the PTA’s confinement cap. The military judge signed the 

Statement of Trial Results (STR) the same day that court adjourned.3 After 

reviewing Appellant’s clemency matters, the convening authority signed a decision memorandum on 17 April 2019 which stated, “I take no action on the 

sentence of this case.” 

On 1 May 2019, the military judge signed the entry of judgment (EoJ). See 

Rule for Courts-Martial (R.C.M.) 1111(b). The signed EoJ contains the following information on the sentence: “Punitive Discharge: Bad Conduct Discharge;” 

“Total Confinement: 4 months;” “Forfeitures of Pay and/or Allowances: 

$1,000.00 pay per month for 4 months;” and “Reduction in Pay Grade: E-1.” 

The convening authority’s decision memorandum was included as Attachment 2 to the EoJ. On 8 April 2019, Appellant submitted clemency matters 

through his defense counsel requesting reduction of his confinement term and 

forfeitures “that extend beyond 8 June 2019.” 

Appellant raises one assignment of error on appeal: whether his sentence 

is inappropriately severe. Additionally, we consider whether the convening authority’s decision memorandum contains error when the convening authority 

 

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

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

all other references to the UCMJ and to the Rules for Courts-Martial (R.C.M.) are to 

the Manual for Courts-Martial, United States (2019 ed.).

2 Appellant pleaded and was found guilty of divers uses of all three substances. 

3 The STR was inserted into the record of trial in accordance with R.C.M. 1101(a). This

rule lists a number of required contents, including inter alia “the command by which 

[the court-martial] was convened.” R.C.M. 1101(a)(3). The STR in this case included 

most of the required contents, and it indicated the squadron and major command to 

which Appellant was assigned, but it omitted the command which convened the courtmartial. 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.). We permit correction of the STR in our decretal paragraph. 
United States v. Cruspero, No. ACM S32595

3

states “I hereby take no action on the sentence” and Appellant was convicted 

of an offense committed prior to 1 January 2019.4

We find the convening authority’s decision memorandum contains error 

and that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. Given our remand, we do not reach Appellant’s assignment of error, 

sentence severity.

I. BACKGROUND

While assigned to McConnell Air Force Base (AFB), Kansas, Appellant 

lived off base with three roommates, two of whom were Senior Airman (SrA)

EK and SrA KB.5

On 10 October 2018, special agents (SA) from the Air Force Office of Special 

Investigations (AFOSI) notified Appellant that he was under investigation for 

wrongful use of a controlled substance in violation of Article 112a, UCMJ. As 

part of its investigation, AFSOI obtained cellular phone text message conversations involving, and between, the Appellant and his roommates, SrA EK, SrA 

KB, and HVF. AFOSI also obtained text messages involving, and between, the 

Appellant and his drug dealer, KD. In the text messages, SrA EK and HVF 

inquired about and discussed acquiring cocaine, LSD, and ecstasy for their and 

Appellant’s use. Appellant also inquired about buying a “40,” which according 

to the evidence at trial means $40.00 worth of cocaine. 

AFOSI agents also seized a handwritten note addressed to SrA EK where 

Appellant expressed his concerns about their drug use, and after clarifying 

that he did not intend to stop, he stated he needed to “cut back.” Appellant also 

felt something “big [was] about to go down” and that he thought they had been 

“playing a dangerous game for a long time.” Finally, Appellant explained that 

he felt he should say something before “anything got out of hand.”

Between May 2017 and October 2018,6 on multiple occasions, Appellant 

consumed cocaine, ecstasy, and LSD in various locations to include a bar in 

 

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

remanded. Each of us is familiar with the recent responses submitted by the Government on this issue in prior and pending cases. This decision was made for judicial 

economy.

5 The majority of these facts are from the stipulation of fact signed by Appellant and 

counsel, and admitted into evidence without objection.

6 Although the stipulation of fact used the dates “May 2017 and October 2018,” the

specifications for which Appellant was found guilty included: wrongful use of cocaine

on divers occasions from on or about 1 January 2017 to on or about 10 October 2018; 
United States v. Cruspero, No. ACM S32595

4

Wichita, Kansas; at another Airman’s residence; Appellant’s residence; and 

while attending shows and festivals throughout the continental United States. 

During this period Appellant used cocaine approximately 25 times, ecstasy 

about 20 times, and LSD about 15 times. 

II. DISCUSSION

A. 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 an 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. 2007) (citation omitted).

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

10 U.S.C. § 860, “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 (1 Mar. 2018). The version of Article 60, UCMJ, in 

effect on 1 January 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) (Manual 

for Courts-Martial, United States (2016 ed.) (MCM)). “Except as provided in 

paragraph (4) [of Article 60(c), UCMJ], the convening authority or another person authorized to act under this section may approve, disapprove, commute, or 

suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 

860(c)(2)(B) (MCM). “Except as provided in subparagraph (B) or (C) [of Article 

60(c)(4)(A), UCMJ], the convening authority or another person authorized to 

act under this section may not disapprove, commute, or suspend in whole or in 

part, an adjudged sentence of . . . [a] bad conduct discharge.” 10 U.S.C. § 

860(c)(4)(A) (MCM).

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

A motion to correct an error in the action of the convening authority shall be filed within five days after the party receives the 

convening authority’s action. If any post-trial action by the convening authority is incomplete, irregular, or contains error, the 

 

wrongful use of ecstasy on divers occasions from on or about 15 May 2017 to on or 

about 10 October 2018; and wrongful use of LSD on divers occasions from on or about 

1 June 2017 to on or about 10 October 2018.
United States v. Cruspero, No. ACM S32595

5

military judge shall—(i) return the action to the convening authority for correction; or (ii) with the agreement of the parties, 

correct the action of the convening authority in the entry of judgment.

“Under regulations prescribed by the Secretary concerned, the military 

judge of a general or special court-martial shall enter into the record of trial 

the judgment of the court.” R.C.M. 1111(a)(1). “The judgment reflects the result 

of the court-martial, as modified by any post-trial actions, rulings, or orders. 

The [EoJ] terminates the trial proceedings and initiates the appellate process.”

R.C.M. 1111(a)(2).

“If the Court of Criminal Appeals determines that additional proceedings 

are warranted, the Court may order a hearing as may be necessary to address 

a substantial issue, subject to such limitations as the Court may direct and 

under such regulations as the [P]resident may prescribe.” Article 66(f)(3), 

UCMJ, 10 U.S.C. § 866(f)(3). “A Court of Criminal Appeals may order a remand 

for additional fact finding, or for other reasons, in order to address a substantial issue on appeal.” R.C.M. 810(f). “A remand under this subsection is generally not appropriate to determine facts or investigate matters which could, 

through a party’s exercise of reasonable diligence, have been investigated or 

considered at trial.” Id. “Such orders shall be directed to the Chief Trial Judge.”

Id.

“The Judge Advocate General, the Court of Criminal Appeals, and the 

[United States] Court of Appeals for the Armed Forces may modify a judgment 

in the performance of their duties and responsibilities.” R.C.M. 1111(c)(2). “If 

a case is remanded to a military judge, the military judge may modify the judgment consistent with the purposes of the remand.” R.C.M. 1111(c)(3). 

B. Analysis

1. Jurisdiction

We briefly address our jurisdiction. We are a court of limited jurisdiction 

defined wholly by statute. United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 

2015). In this case, we derive our jurisdiction from Article 66(b)(3), UCMJ, 10 

U.S.C. § 866(b)(3), which says “[a] Court of Criminal Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under [Article 60c, UCMJ, 10 U.S.C. § 860c] of this title includes a sentence of 

. . . [a] bad-conduct discharge.” 10 U.S.C. § 866(b)(3). In this case, the EoJ accurately lists a bad-conduct discharge so we are satisfied that we have jurisdiction even if the convening authority failed to take action on the entire sentence as required by law. The convening authority’s decision memorandum 
United States v. Cruspero, No. ACM S32595

6

does not show any attempt to disapprove the bad-conduct discharge.7 Even if 

the convening authority wanted to take such an action on the sentence—and 

we have no evidence that he did—he lacked that power under the version of 

Article 60, UCMJ, in effect on 1 January 2017, the earliest date for which Appellant was convicted. See 10 U.S.C. § 860 (MCM). We are satisfied that we 

have jurisdiction under Article 66(b)(3), UCMJ. See United States v. Finco, No. 

ACM S32603, 2020 CCA LEXIS 246, at *11 (A.F. Ct. Crim. App. 27 Jul. 2020) 

(unpub. op.).

2. Convening Authority Decision Memorandum

As an initial matter, we recognize that other panels of our esteemed colleagues on this court have addressed this issue differently than we do below;

however, we respectfully are not persuaded by the other approaches. A review 

of our recent decision in United States v. Aumont, No. ACM 39673, 2020 CCA 

LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op) makes 

clear that four distinct positions exists among the judges on this court, two of 

which are reflected in this case. See also United States v. Barrick, No. ACM 

S32579, 2020 CCA LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.).

In a case referred after 1 January 2019 where an accused is found guilty of 

a specification for an offense occurring before 1 January 2019, we find the convening authority cannot simultaneously “take no action on the sentence” and 

satisfy Exec. Order 13,825, § 6(b)(1), which “requires action by the convening 

authority on the sentence.” Finco, unpub. op. at *12. We need look no further 

than the plain language of the decision memorandum and determine that the 

convening authority erred when he took no action on the sentence when Exec. 

Order 13,825, § 6(b)(1), required him to do so. Id.

In Finco, a panel of our court found plain or obvious error because a convening authority “cannot simultaneously ‘take no action on the sentence’ and 

satisfy Exec. Order. 13,825, § 6(b)(1), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), 

which ‘requires action by the convening authority on the sentence.’” Id. at *12. 

The conclusion of error in Finco was consistent with the earlier decision of our 

sister-service court in United States v. Coffman, 79 M.J. 820 (A. Ct. Crim. App. 

2020). The court in Coffman held that “indicating ‘N/A’ or stating ‘No Action’ 

does not constitute taking action in a case.” Id. at 823.

In the case before us, Appellant submitted clemency matters requesting 

reduction of his confinement and forfeitures that extended beyond 8 June 2019. 

The convening authority was under no obligation to do this under the PTA’s 

 

7 The convening authority directed Appellant to take leave pending completion of appellate review under Article 76a, UCMJ, 10 U.S.C. § 876a. This direction is consistent 

with Appellant having an unsuspended bad-conduct discharge.
United States v. Cruspero, No. ACM S32595

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terms. We acknowledge the convening authority’s decision memorandum made 

clear the clemency matters were considered. This provides some support for an 

argument that the convening authority implicitly approved this portion of the 

sentence. On the other hand, the language used in the decision memorandum 

indicates no action was taken on the sentence which can easily be read as a 

decision was never made. Therefore, we continue our analysis.

The convening authority’s decision memorandum stated that he consulted 

with his staff judge advocate (SJA). There is no information in the record of 

trial regarding the substance of the SJA’s advice to the convening authority or 

what the convening authority understood the law required on taking action on 

the sentence. It is possible the SJA gave accurate advice to the convening authority that he had to take action on the sentence given the date of the earliest 

offense and the date of referral. We find it more probable that if the SJA gave 

advice it would have been consistent with the convening authority decision 

memorandum—that the law did not require the convening authority to take 

action on the sentence anymore—which would reflect a clearly erroneous view 

of the law applicable to Appellant’s case. As Appellant had an opportunity to 

address this error with the military judge after the convening authority signed 

the decision memorandum, we must determine if Appellant waived or forfeited 

this issue. 

Appellant did not raise a motion under R.C.M. 1104(b)(2)(B) alleging that 

the convening authority’s action was incomplete, irregular, or contained error

within the rule’s five-day prescribed timeframe. Under the prior version of Article 66, UCMJ, we had the discretion to determine whether to apply waiver or 

forfeiture in a particular case, or to pierce waiver or forfeiture in order to correct a legal error. 10 U.S.C. § 866 (MCM); see United States v. Lee, No. ACM 

39531, 2020 CCA LEXIS 61, at *17 (A.F. Ct. Crim. App. 26 Feb. 2020) (unpub. 

op.) (citations omitted). We find that our discretion on this matter has not 

changed despite congressional modifications to the version of Article 66, 

UCMJ, which applies to this case. See Finco, unpub. op. at *15. Exercising that 

discretion, we find that Appellant’s failure to file a motion under R.C.M. 

1104(b)(2)(B) forfeited his right to object to the accuracy of the convening authority’s decision memorandum absent plain error. See id.

Under a plain error analysis, an 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)). Whether an error is “plain” is a question of law we review 

de novo. See United States v. Tovarchavez, 78 M.J. 458, 463 (C.A.A.F. 2019).
United States v. Cruspero, No. ACM S32595

8

“We begin statutory analysis by examining the plain language.” United 

States v. Stout, 79 M.J. 168, 171 (C.A.A.F. 2019). “The plain language will control, unless use of the plain language will lead to an absurd result.” Id. (citing 

United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007)). The plain language of 

the prior version of Article 60, UCMJ, gave the convening authority four 

choices when taking action on the sentence: approve, disapprove, commute, or 

suspend. In this applicable version of Article 60, UCMJ, Congress did not use 

words “deny relief,” “effectuate the sentence,” or “take no action.”

We find the decision to take no action on the sentence was a plain or obvious 

error. We find the threshold of “some colorable showing of possible prejudice”

is still the appropriate standard for an error impacting an appellant’s request 

for clemency. See LeBlanc, 74 M.J. at 660 (quoting Scalo, 60 M.J. at 437). While 

Appellant has not made a specific claim of prejudice, we find the low standard 

of some colorable showing of possible prejudice to be apparent. Part of the reasoning behind the low threshold is to “avoid undue speculation as to how certain information might impact the convening authority’s broad discretion.” 

Scalo, 60 M.J. at 437. Certainly, the convening authority in this case had less 

discretion than was present in Scalo because this convening authority could 

not disapprove, commute, or suspend the bad-conduct discharge; however, he 

retained the power to take those actions with the remainder of the sentence. If 

the convening authority failed to take action on the entire sentence—as his 

memorandum indicates he failed to do—then we are unsure whether he made 

a decision on Appellant’s clemency request which was within the convening 

authority’s power to grant. Under these circumstances, we find a colorable 

showing of possible prejudice and that a remand is the best method to remedy 

this error. 

We find a remand in this case to be necessary before we can determine 

whether the sentence is correct in law and should be approved. See Finco, unpub. op. at *16.

For our esteemed colleague who concurs in the result of this opinion, as we 

have said before, we have only one minor quibble with the “fundamental misstep” position. Aumont, unpub. op. at *39 (Lewis, S.J., concurring in part and 

in the result). As we see it, the position seems to give little meaning to the new 

post-trial motions process available under R.C.M. 1104(B)(2)(B) where an appellant can raise a concern to the military judge with any post-trial action by 

the convening authority that is incomplete, irregular, or contains error. This 

procedural mechanism—available to Finco, Barrick, Aumont, and Appellant—

was not a part of the system for cases with a traditional action referred before 

1 January 2019. As we see it, the new post-trial motions process should be part 

of the analysis of our discretion to apply waiver or forfeiture. In those cases 
United States v. Cruspero, No. ACM S32595

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where we exercise our discretion to apply forfeiture, we test for a colorable 

showing of possible prejudice.

C. Remand

To address the issue raised by the convening authority’s decision memorandum, we use the new statutory remand authority of Article 66(f)(3), UCMJ. 

The Military Justice Review Group’s report recommended this new statutory 

provision to “expressly provide the authority for the court to remand a case for 

additional proceedings that may be necessary to address a substantial issue” 

and “would incorporate current practice (i.e., ‘DuBay’[8] hearings) and could 

include orders to either a convening authority or Chief Trial Judge for delegation to a military judge.” See Finco, unpub. op. at *18–19; Office of the General 

Counsel, Dep’t of Defense, Report of the Military Justice Review Group Part I: 

UCMJ Recommendations, at 611 (22 Dec. 2015), https://www.jag.navy.mil/documents/NJS/MJRG_Report_PartI_22Dec15.pdf.

The plain language of Article 66(f)(3), UCMJ, permits us to order a hearing 

as may be necessary to address a substantial issue. We find a substantial issue 

existed when the convening authority purported to take no action on the sentence when the law required it. R.C.M. 810(f) cautions that a remand should 

not be used for matters which could have been investigated or considered at 

trial through a party’s exercise of reasonable diligence. In this case, we see no 

single party failing to exercise reasonable diligence as both parties failed to 

raise a post-trial motion in this case. We also would have expected the military 

judge to wait to sign the EoJ until action was taken on the sentence. 

We mention one final source that applies to remands, the Joint Rules for 

Appellate Procedure for Courts of Criminal Appeals (JRAP). The JRAP apply 

to cases docketed with our court on or after 1 January 2019, including Appellant’s case, and are signed by The Judge Advocate General of the Air Force and 

his counterparts in the Army, Navy, and Coast Guard. JRAP Rule 29, Article 

66(f) Proceedings, provides further explanations of our remand procedures. JT.

CT. CRIM. APP. R. 29. For example, Rule 29(b) addresses whether our court retains jurisdiction on remand or dismisses the appellate proceeding and returns

jurisdiction over the case to the military judge. Rule 29(b)(2) elaborates that 

one of the circumstances when terminating appellate jurisdiction may be appropriate is when the case requires corrective action by the trial court to the 

judgment. Rule 29(d)(3) also instructs that when we return jurisdiction of a 

case to the military judge and dismiss the appellate proceeding, the rules applicable to the conduct of a post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a), 

 

8 United States v. DuBay, 37 C.M.R. 411 (1967).
United States v. Cruspero, No. ACM S32595

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session shall apply. These provisions guide our decretal paragraph as we describe the scope of our remand and the procedures available to the military 

judge.

III. CONCLUSION

This case is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, to resolve a substantial issue with the convening authority’s decision memorandum as no action was taken on Appellant’s adjudged sentence as required 

by law. 

Our remand returns jurisdiction 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. JT. CT.

CRIM. APP. R. 29(b)(2). A detailed military judge may:

(1) Correct the Statement of Trial Results; 

(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, proceedings using the procedural rules for post-trial Article 39(a), UCMJ, sessions; and/or

(4) Modify the Entry of Judgment.

Thereafter, the record of trial will be returned to the court for completion 

of appellate review under Article 66, UCMJ.

CADOTTE, Judge (concurring in the result):

I agree with the conclusion of the court with respect to remanding this case 

to the Chief Trial Judge, Air Force Trial Judiciary, to resolve a substantial 

issue with the convening authority’s decision memorandum as no action was 

taken on Appellant’s adjudged sentence as required by law. However, I find 

the convening authority’s “take no action on sentence” to be a “fundamental 

misstep in military justice procedure” as articulated by Chief Judge J. Johnson 

in his separate opinion in United States v. Aumont, No. ACM 39673, 2020 CCA 

LEXIS 416, at *92–105 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (J. Johnson, C.J., concurring in part and dissenting in part) (unpub. op.), which I 

joined. As such, I do not agree with the majority 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 the majority’s decision to test for prejudice.
United States v. Cruspero, No. ACM S32595

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Accordingly, I would find error and remand regardless of whether the Appellant was prejudiced.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court