This opinion is subject to administrative correction before final disposition.

Before 

HOLIFIELD, STEWART, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Ismael VALLE-ALCANTARA, Jr.

Lance Corporal (E-3), U.S. Marine Corps

Appellant

No. 202000048

Decided: 29 April 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:

Jeffrey V. Munoz (arraignment)

Stephen F. Keane (motions, trial)

Sentence adjudged 9 January 2020 by a general court-martial convened at Marine Corps Air Ground Combat Center, Twentynine 

Palms, California, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: confinement for 12 months, reduction 

to E-1, forfeiture of all pay and allowances, and a bad-conduct discharge.

For Appellant: 

Captain Kimberly D. Hinson, JAGC, USN

For Appellee:

Major Kerry E. Friedewald, USMC

Lieutenant Gregory A. Rustico, JAGC, USN

_________________________
United States v. Valle-Alcantara, NMCCA No. 202000048

Opinion of the Court

2

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under NMCCA

Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM:

Appellant was convicted, pursuant to his pleas, of three specifications of 

assault consummated by a battery (including one upon a child under the age 

of 16) and one specification of being drunk and disorderly, in violation of 

Articles 128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. 

§§ 928, 934. In his sole assignment of error [AOE], Appellant avers that the

convening authority erred in taking no action on the sentence, as some action 

was required by the 2018 Amendments to the Manual for Courts-Martial.1

We find error but no prejudice, and therefore affirm.

I. BACKGROUND

On 11 May 2018, Corporal [Cpl] Tango2 invited Appellant and others to a 

party at her apartment. During the party, Appellant became extremely 

intoxicated. At the party’s conclusion, Appellant was left alone with Cpl 

Sierra, Lance Corporal [LCpl] Papa, and Cpl Sierra’s infant son. Over several 

hours, Appellant sought to have sex with the two women, grabbing each in 

turn. At one point he removed Cpl Sierra’s son from her arms, as the child 

was an obstacle to his efforts. Appellant then dropped his pants and underwear before passing out. Appellant, who claims to have no memory of these 

events, pleaded guilty to assault consummated by a battery against the two 

Marines and the child.

Post-trial, the convening authority denied Appellant’s clemency request to 

waive automatic forfeitures, disapprove adjudged forfeitures, and suspend 

both the automatic and adjudged reduction in rank for a period of six months. 

The convening authority signed the Action seven weeks later, noting: “I take 

no action on the findings or sentence in this case.”3 The military judge signed 

 

1 2018 Amendments to the Manual for Courts-Martial, United States, Exec. Order 

13,825, 83 Fed. Reg. 9,889 (Mar. 8, 2018) [Exec. Order 13,825].

2 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.

3 Action of Dec. 30, 2019.
United States v. Valle-Alcantara, NMCCA No. 202000048

Opinion of the Court

3

the Entry of Judgment the following month, noting the convening authority’s 

denial of Appellant’s clemency request and that the convening authority took 

no action on the findings or sentence.

Additional facts necessary to resolve the AOE are addressed below.

II. DISCUSSION

The date of the offenses of which Appellant was convicted is 11 May 2018.

Therefore, the version of Article 60 applicable to this case4 requires that 

“[a]ction on the sentence of a court-martial shall be taken by the convening 

authority or by another person authorized to act under this section.”5 Despite 

this, the convening authority took “no action on the findings or sentence,” as 

reflected on the Post-Trial Action form.

We review questions of jurisdiction de novo.6 This Court is one of limited 

jurisdiction defined entirely by statute.7 Prior to January 2019, our appellate 

jurisdiction was limited to review of courts-martial findings and sentences 

where the sentence approved by the convening authority included death, a 

punitive discharge, or confinement for one year or more.8 Effective 1 January 

2019, the Military Justice Act of 2016 [MJA 16] amended post-trial procedures for cases referred to court-martial after that date.9 This Court’s appellate jurisdiction is no longer dependent on the convening authority’s action; 

rather, we have “jurisdiction over a court-martial in which the judgment 

entered into the record under [Article 60(c), UCMJ,] includes a sentence of 

death, [a punitive discharge], or confinement for 2 years or more.”10 Article 

66(d)(1) provides that this Court “may act only with respect to the findings 

and sentence as entered into the record under [Article 60c, UCMJ].” And 

Article 60(a)(1) requires the military judge to include “any post-trial action by 

the [convening authority]” in the Statement of Trial Results.

 

4 See Exec. Order 13,825, 83 Fed. Reg. at 9,890, sec. 6(b).

5 UCMJ art. 60(c)(2)(A) (2012 & Supp. V 2018).

6 United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012).

7 United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015).

8 UCMJ art. 66(b) (2012 & Supp. V 2018).

9 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328,

§§ 5321-38, 5542, 130 Stat. 2000, 2923-37, 2967-68 (2016); Exec. Order 13,825, 83 

Fed. Reg. at 9,889, sec. 3(d).

10 UCMJ art. 66(b)(3) (2018) (emphasis added).
United States v. Valle-Alcantara, NMCCA No. 202000048

Opinion of the Court

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The President has ordered that the version of Article 60 applicable to a 

court-martial is that which was in effect on the date of the earliest offense for 

which an accused was convicted, to the extent it: requires convening authority’s action on the sentence; permits convening authority’s action on the 

findings; authorizes the convening authority to modify the findings in certain 

respects; authorizes proceedings in revision; or authorizes the convening 

authority to approve, disapprove, commute, or suspend the sentence.11 As the

version of Article 60 in effect on the date of Appellant’s offenses, 11 May 

2018, requires the convening authority to take action on the sentence, the 

convening authority’s failure to do so in this case is error.12

This error, however, does not deprive this Court of jurisdiction to review 

the case. The charges were referred after 1 January 2019, so MJA 16 posttrial procedures apply. And since the Entry of Judgment enters a sentence 

including a bad-conduct discharge, this Court has jurisdiction to review 

Appellant’s case.13

As the error is not jurisdictional, we test the error for prejudice pursuant 

to Article 59(a).14 Doing so, we find no material prejudice to Appellant’s 

substantial rights. Although the Post-Trial Action form states that the 

convening authority took no action on the findings or sentence in this case, 

the form also makes clear in two places that the convening authority specifically considered and denied Appellant’s request for clemency, which sought 

waiver of automatic forfeitures, disapproval of adjudged forfeitures, and 

suspension of automatic and adjudged reduction to pay grade E-1.

The sentence in this case included confinement for more than six months 

and a punitive discharge. Therefore, the version of Article 60(c)(4)(A) applicable here prohibited the convening authority from disapproving, commuting, 

or suspending any part of the confinement or the bad-conduct discharge.15

 

11 See Exec. Order 13,825, 83 Fed. Reg. at 9,890, sec. 6(b). 

12 United States v. Pearson, __ M.J. __, No. 201900314, 2021 CCA LEXIS 130, at 

*17 (N-M. Ct. Crim. App. Mar. 29, 2021).

13 Id. at *18.

14 Id. (citing United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)).

15 Neither of the two exceptions to this prohibition—at the recommendation of 

trial counsel based on substantial assistance to the Government or pursuant to the 

terms of a pretrial agreement—apply in the present case. UCMJ art. 60(c)(4)(B), (C) 

(2012 & Supp. V 2018). The pretrial agreement between Appellant and the convening 

authority had no effect on the sentence. App. Ex. XXI.
United States v. Valle-Alcantara, NMCCA No. 202000048

Opinion of the Court

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This means that every action the convening authority could have taken on 

Appellant’s sentence was effectively addressed in his denial of Appellant’s 

clemency request. Accordingly, we find the error harmless.

III. CONCLUSION

After careful consideration of the record and briefs of the appellate counsel, we have determined that the findings and the sentence are correct in law 

and fact and that no error materially prejudicial to Appellant’s substantial 

rights occurred. UCMJ arts 59, 66 (2012 & Supp. V 2018). Accordingly, the 

findings and sentence in the Entry of Judgment are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court