This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jacob L. BRUBAKER-ESCOBAR, Sergeant

United States Army, Appellant

No. 20-0345

Crim. App. No. 20190618

Argued March 9, 2021—Decided June 4, 2021

Military Judges: Douglas K. Watkins and Maureen A. Kohn

For Appellant: Captain Alexander N. Hess (argued); Colonel 

Michael C. Friess, Lieutenant Colonel Angela D. Swilley, 

Major Kyle C. Sprague, and Captain Nandor F. R. Kiss (on 

brief).

For Appellee: Captain Amanda L. Dixson (argued); Colonel 

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

and Major Craig Schapira (on brief).

Chief Judge STUCKY delivered the opinion of the Court, 

in which Judge MAGGS and Judge HARDY joined. Judge 

OHLSON filed a separate opinion concurring in the result, in which Judge SPARKS joined.

_______________

Chief Judge STUCKY delivered the opinion of the Court.

Upon the advice of the staff judge advocate, the convening 

authority applied the provisions of the Military Justice Act of 

20161 (MJA) and took no action on the findings or sentence 

adjudged in Appellant’s court-martial. The United States 

Army Court of Criminal Appeals (CCA) determined that, in 

light of that court’s precedent, which relied on the President’s 

executive order in implementing the MJA, the convening authority’s failure to take action on the sentence was error but 

the error was neither jurisdictional nor prejudicial to Appellant’s substantial rights. United States v. Brubaker-Escobar,

No. ARMY 20190618, slip op. at 1 n.* (A. Ct. Crim. App. June 

 

1 National Defense Authorization Act for Fiscal Year 2017, Pub. 

L. No. 114-328, §§ 5001–5542, 130 Stat. 2000, 2894–2968 (2016).
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

2

9, 2020) (per curiam). The court affirmed the adjudged findings and sentence. Id. slip op. at 1.

We granted review of Appellant’s petition in which he 

argued that the convening authority erred in failing to act on 

his case, that this error deprived the CCA of jurisdiction to 

hear his appeal and, therefore, the case must be remanded to 

the convening authority for action. After oral argument, we 

specified an issue, asking whether the President’s executive 

order implementing the MJA was lawful in requiring

convening authorities to apply the post-trial procedures for 

taking action in effect on the date of the earliest offense. We 

hold that, as applied to this case, the executive order was not

lawful, and the convening authority properly complied with 

the MJA.

I. Background

Consistent with his plea agreement, Appellant pled guilty 

to, and was convicted at a general court-martial of five 

specifications of maltreating subordinates and one 

specification of assault consummated by a battery, all 

offenses occurring during 2018. Articles 93 and 128, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 893, 928 

(2018). The plea agreement limited the discharge that could 

be adjudged to a bad-conduct discharge and the confinement 

that could be adjudged to twelve months. The military judge 

sentenced Appellant to a bad-conduct discharge and 

reduction to the grade of E-1.

The staff judge advocate advised the convening authority 

that he could not take action on the findings but could disapprove the reduction to the grade of E-1. He recommended the 

convening authority “take no action on the findings and sentence.” The convening authority signed a form entitled “Convening Authority Action,” stating he was taking “No Action.” 

II. The CCA’s Decision

At the CCA, pursuant to United States v. Grostefon, 12 

M.J. 431, 435 (C.M.A. 1982), Appellant personally asserted 

that the convening authority erred by failing to take action on 

the sentence. Relying on its previous precedent, United States 

v. Coffman, 79 M.J. 820, 822 n.6 (A. Ct. Crim. App. 2020), the 

CCA concluded, in a footnote to its per curiam “decision,” that 
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

3

the convening authority’s failure to take action on the sentence was error “that was neither jurisdictional nor prejudicial to appellant’s substantial right to seek clemency from the 

convening authority.” Brubaker-Escobar, No. ARMY 

20190618, slip op. at 1 n.*.

In Coffman, citing the President’s executive order implementing the MJA, the CCA stated that in cases such as Appellant’s, where at least one of the offenses was committed 

before January 1, 2019, “the version of Article 60, UCMJ, applicable to an accused’s court-martial will be that version in 

effect on the earliest date of misconduct for which an accused 

was convicted. Exec. Order 13825, 83 Fed. Reg. at 9890.” 79 

M.J. at 822. The court held that the convening authority’s 

failure to act, although error, did not deprive the CCA of jurisdiction, and could be tested for prejudice. Id. at 823–24. 

III. Standard of Review

The Government argues that we should review for plain 

error because (1) Appellant did not raise the issue at trial; and 

(2) Appellant failed to challenge the convening authority’s 

lack of action before the military judge issued the entry of 

judgment. Of course, as the convening authority does not act 

until after the findings and sentence are adjudged, it was impossible for Appellant to have raised this issue at trial. And 

the military judge appears to have entered judgment prematurely. Either party may file a motion to correct the convening 

authority’s action within five days of receipt. Rule for CourtsMartial (R.C.M.) 1104(b)(2)(B). By entering judgment the day 

after the convening authority’s entry of “No Action,” the military judge short-circuited Appellant’s ability to file an objection, under R.C.M. 1104(b)(1)(F), to the convening authority’s 

refusal to take action.

“The courts of criminal appeals are courts of limited 

jurisdiction, defined entirely by statute.” United States v. 

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

v. Politte, 63 M.J. 24, 25 (C.A.A.F. 2006)). The scope of that 

jurisdiction is a legal question this Court reviews de novo.

United States v. English, 79 M.J. 116, 121 (C.A.A.F. 2019).

We review a lower court’s construction of statutes and 

executive orders de novo. See United States v. Idaho, 210 F.3d 

1067, 1072 (9th Cir. 2000), aff’d, 533 U.S. 262 (2001); United 
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

4

States v. Fetrow, 76 M.J. 181, 185 (C.A.A.F. 2017) (statutes 

and rules).

IV. Discussion

In the MJA, Congress gave the President the authority to 

designate the effective date of its provisions and the duty to 

“prescribe in regulations whether, and to what extent, the 

amendments made by this [act] shall apply to a case in which

one or more actions under [the UCMJ] have been taken before 

the effective date of such amendments.” MJA § 5542(c)(1), 130 

Stat. at 2967 (emphasis added). The President designated 

January 1, 2019, as the effective date of the MJA, except as 

otherwise provided in the MJA or his executive order. Exec. 

Order No. 13,825 § 2(c), 83 Fed. Reg. 9889, 9890 (Mar. 1, 

2018). 

The President further ordered that, if an accused was 

found guilty of any specification alleging the commission of at 

least one offense before January 1, 2019:

Article 60, of the UCMJ, as 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; 

. . . .

. . . or

(5) authorizes the convening authority to approve, 

disapprove, commute, or suspend a sentence in 

whole or in part. 

Id. § 6(b). 

All of Appellant’s offenses occurred in 2018. The charges 

were preferred on May 13, 2019, and referred to trial by general court-martial on June 26, 2019.

Appellant argues that the military judge was required, 

under Article 60c(a)(1), UCMJ, as enacted in the MJA, to 

enter judgment “in accordance with the rules prescribed by 

the President.” By executive order, the President had 

prescribed that, for cases in which any conviction was for an 

offense committed before January 1, 2019, the pre-MJA rules 

requiring convening authority action would apply. Action 
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

5

under the pre-MJA Article 60 required the convening 

authority to approve, disapprove, suspend, or commute the 

sentence. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (2012 

& Supp. I 2013–2014). The failure of the convening authority 

to take action, Appellant contends, rendered the entry of 

judgment invalid and thus required remand to the convening 

authority for action.

Appellant’s reliance on the rules prescribed by the President in his executive order is misplaced. The current Article 

60c(a)(1), UCMJ, 10 U.S.C. § 860c(a)(1) (2018), upon which 

the President’s rules are based, provides: “In accordance with 

rules prescribed by the President, in a general or special 

court-martial, the military judge shall enter into the record of 

trial the judgment of the court.” But nothing in Article 

60c(a)(1) gives the President license to decide in which cases

the convening authority would no longer be required to take 

action on the case. It merely allows the President to prescribe 

the rules for the military judge to follow in entering the judgment: how it is to be done and what shall be included in the 

entry of judgment. 

The CCA’s decision in this case and in Coffman is based 

on reading the President’s executive order in isolation, without considering the MJA. This the CCA cannot do. The MJA 

granted the President authority to prescribe the extent to 

which the provisions of the amendments shall apply to offenses committed before the statute’s effective date but specifically restricted that authority to cases in which “one or 

more actions under [the UCMJ] have been taken” before that 

effective date. MJA § 5542(c)(1), 130 Stat. at 2967. 

When questioned at oral argument, neither party was able 

to address the apparent conflict between § 5542 of the MJA 

and § 6(b) of the executive order. Therefore, we specified the 

issue and ordered briefs.

In response, Appellant recognizes that “[b]ecause no actions were taken under the Code prior to January 1, 2019, in 

this case, the President did not have authority under Section 

5542 to say that the prior Article 60 supplants the newly-enacted Article 60a.” Nevertheless, he argues that § 6(b) of the 

executive order was still applicable because, separate from 
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

6

the MJA, the President was exercising the authority Congress granted him in Article 36, UCMJ, 10 U.S.C. § 836 

(2018), to prescribe post-trial procedures.

Of course, the President’s authority to prescribe post-trial 

rules is restricted; his rules “may not . . . be contrary to or 

inconsistent with [the UCMJ].” Article 36(a), UCMJ. Section 

6(b) of the executive order is inconsistent with the MJA to the 

extent it orders convening authorities to apply pre-MJA posttrial procedures to cases in which no UCMJ action was taken 

before the MJA’s effective date, January 1, 2019.

On the other hand, the Government argues that § 6(b) was 

valid because the word “action” in § 5542 was vague and could 

encompass the commission of the offense, in addition to the 

initiation of criminal charges under the UCMJ. In his supplemental reply brief, Appellant joins this meritless argument.

“It is a fundamental canon of statutory construction that 

the words of a statute must be read in their context and with 

a view to their place in the overall statutory scheme.” Gundy 

v. United States, 139 S. Ct. 2116, 2126 (2019) (internal quotation marks omitted) (quoting National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007)). The 

MJA does not use the term “action[]” in isolation. The statute 

says, “a case in which one or more actions under chapter 47 

of title 10, United States Code (the Uniform Code of Military 

Justice), have been taken.” MJA § 5542(c)(1), 130 Stat. at 

2967. Clearly, that is not referring to the commission of an

offense under the UCMJ. It is referring to the initiation of 

criminal action against an accused: the preferral of charges,

Article 30, UCMJ, 10 U.S.C. § 830 (2018), or in the case of an 

accused who declines to accept nonjudicial punishment, the 

notification of intent to impose nonjudicial punishment, Article 15, UCMJ, 10 U.S.C. § 815 (2018).

The Government also argues that the President’s implementation of the MJA in § 6(b) of the executive order “eliminated any ex post facto concerns related to the convening authority’s clemency powers for offenses that occurred before 

the implementation date of the MJA 2016,” and “[a] conclusion that Congress so afforded the President the authority to 

implement rules that would avoid such concerns is evident in 

the text of the statute.” We find no support in the text of the 
United States v. Brubaker-Escobar, No. 20-0345/AR

Opinion of the Court

7

statute for the proposition that Congress provided the President such authority and the Government has not pointed to 

any. Furthermore, the President is not authorized to prescribe rules implementing the UCMJ that are contrary to or 

inconsistent with the statute. Article 36(a), UCMJ.

We conclude that the amendments to Article 60 contained 

in the MJA applied to Appellant’s case, the staff judge advocate’s advice that the convening authority was not required to 

act was correct, the convening authority’s failure to take action was not error, and the CCA had jurisdiction to review 

Appellant’s case. To the extent Coffman applied § 6 of the executive order to cases in which no action was taken under the 

UCMJ before January 1, 2019, it is overruled.

V. Judgment

The judgment of the United States Army Court of Criminal Appeals is affirmed.
United States v. Brubaker-Escobar, No. 20-0345/AR

Judge OHLSON, with whom Judge SPARKS joins, concurring in the result. 

The legality of Executive Order 13,8251 is a much closer 

question than the majority opinion indicates, as demonstrated by the fact that both Appellant and the Government 

agree that the executive order was a valid exercise of the President’s rulemaking authority. Specifically, the parties take 

the position that the term “action[]” as used in § 5542(c)(1) of 

the Military Justice Act of 2016 (MJA)2 could encompass the 

commission of a criminal offense rather than just governmental action. See Articles 77―134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 877―934 (2012). In addition, Appellant argues that the executive order was lawful because

“Article 36, UCMJ, provided the President additional authority to promulgate Section 6(b) [of Exec. Order No. 13,825] because it grants additional rights to an accused that do not conflict with Article 60c, UCMJ,” 10 U.S.C. § 860c (2018). In my 

view, both of these arguments by the parties are at least plausible—and perhaps entirely persuasive.

We need not reach the merits of this point, however. Irrespective of the lawfulness of the executive order, Appellant 

cannot prevail in this case, and I believe it is a wise exercise 

of judicial restraint not to declare a president’s action to be 

unlawful when such a determination is not required for the 

disposition of a case. Therefore, I decline to adopt the majority’s approach here. Nevertheless, both the majority and I 

reach the same result: The judgment of the United States 

Army Court of Criminal Appeals (CCA) should be affirmed.

The majority has explained why this is so if the executive order is deemed unlawful. I now seek to explain why this is so 

even if we adopt the position of both the Government and Appellant that the executive order was a valid exercise of the 

President’s rulemaking authority. See United States v. LaGrange, 3 C.M.R. 76, 78 (1952) (This Court has a duty “to reconcile any conflicting provisions [of a statute and an executive 

 

1 Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 1, 2018).

2 National Defense Authorization Act for Fiscal Year 2017, Pub. 

L. No. 114-328, § 5542, 130 Stat. 2000, 2967 (2016). 
United States v. Brubaker-Escobar, No. 20-0345/AR

Judge OHLSON, concurring in the result

2

order] and to construe them, in so far as reasonably possible, 

so as to be in harmony with each other.”).

Under § 6(b) of Exec. Order No. 13,825, the provisions of 

the “old” Article 60, UCMJ, 10 U.S.C. § 860 (Supp. I 2014)—

rather than the provisions of the “new” Article 60a, UCMJ,

10 U.S.C. § 860a (2018)—apply to cases where at least one of 

the offenses occurred before January 1, 2019. Because the offenses in the instant case occurred before January 1, 2019, 

the provisions of the old Article 60, UCMJ, would apply to Appellant’s case. 

The old Article 60(c)(2)(A), UCMJ, states that “[a]ction on 

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

3 (Emphasis added.) As a result, a convening 

authority errs if he fails to take one of the following mandated

post-trial actions in a case: approve, disapprove, commute, or 

suspend the sentence of the court-martial in whole or in part. 

Article 60(c)(2)(B), UCMJ. In the instant case, the convening 

authority failed to take one of the required actions under the 

old Article 60, UCMJ. He instead took “No Action.” Therefore, 

the convening authority erred.

The effect of this error, however, depends on which version 

of Article 66, UCMJ, is applicable to a specific case—the old 

version at 10 U.S.C. § 866 (2012), or the new version at 

10 U.S.C. § 866 (2018). The new version of Article 66, UCMJ,

is applicable to those cases that were preferred or referred on 

or after January 1, 2019. Exec. Order No. 13,825 § 3. In the 

instant case, the charges were referred after January 1, 2019. 

Therefore, the new version of Article 66, UCMJ, applies here.

The new Article 66, UCMJ, automatically provides the

CCAs with jurisdiction when the military judge enters a judgment into the record that includes a sentence of a bad-conduct 

discharge. Article 66(b)(3), UCMJ. Here, the court-martial 

sentenced Appellant to a bad-conduct discharge. Under the 

old Article 60(c)(4)(A), UCMJ, the convening authority could 

 

3 Under the provisions of the new Article 60a(a)(1)(A), convening authorities are no longer required to affirmatively take action 

on the sentence. It states: “The convening authority . . . may act on 

the sentence of the court-martial only as provided in subsection (b), 

(c), or (d).” (Emphasis added.)
United States v. Brubaker-Escobar, No. 20-0345/AR

Judge OHLSON, concurring in the result

3

not disturb this portion of the sentence.4 Consequently, the 

convening authority’s error in taking “No Action” had no effect on the bad-conduct discharge sentence. Therefore, once 

the military judge entered into the record a judgment including a bad-conduct discharge, the Army CCA obtained jurisdiction in this case. Article 66(b)(3), UCMJ.

5 Therefore, the convening authority’s erroneous failure to take action on the 

sentence did not deprive the Army CCA of jurisdiction over 

this case.

6

Because the convening authority’s error was not jurisdictional, it is instead procedural. Pursuant to Article 59(a), 

UCMJ, 10 U.S.C. § 859(a) (2018), procedural errors are

“test[ed] for material prejudice to a substantial right to determine whether relief is warranted.” United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005) (citations omitted). 

 

4 Under Rule for Courts-Martial (R.C.M.) 1109(c)(1), the convening authority could not disapprove the bad-conduct discharge, 

as a convening authority can “[m]odify a bad-conduct discharge . . . 

only as provided in subsections (e) and (f).” (Emphasis added.) 

R.C.M. 1109(e)(1) permits relief where “the accused has provided 

substantial assistance in the criminal investigation or prosecution 

of another person.” R.C.M. 1109(f) permits relief where the military 

judge recommends a sentence suspension. Neither exception is applicable in this case. 

5 As R.C.M. 1111(a)(2) details, “[t]he entry of judgment terminates the trial proceedings and initiates the appellate process.”

6 In the past, this Court has indicated that a convening 

authority’s failure to take action is a jurisdictional error depriving 

the CCA of jurisdiction. See United States v. Politte, 63 M.J. 24, 25 

(C.A.A.F. 2006) (“[T]he Courts of Criminal Appeals may hear a case 

on the merits where: (1) a Judge Advocate General refers courtsmartial records to the court; (2) a convening authority has approved 

the findings and sentence; and (3) the sentence as approved extends 

to death, a dismissal, a punitive discharge or confinement for one 

year or more.”); id. at 28 (Erdmann, J., joined by Baker, J., 

dissenting) (“The Court of Criminal Appeals should have reviewed 

this action and found that it had no statutory authority to conduct 

further review.”). However, the Court’s opinion in Politte was based 

on the language of the prior version of Article 66(c), UCMJ. Because 

the Article 66, UCMJ, language has changed, the convening 

authority’s error is now procedural error and did not deprive the 

CCA of jurisdiction. 
United States v. Brubaker-Escobar, No. 20-0345/AR

Judge OHLSON, concurring in the result

4

Generally, concerns about a convening authority’s decision memorandum should be addressed with the trial court 

before the military judge signs the entry of judgment, as dictated by R.C.M. 1104(b)(2)(B). An appellant’s failure to file a 

post-trial motion within the allotted time forfeits his right to 

object to the accuracy of the convening authority’s decision on 

an action memorandum, absent plain error. Here, Appellant 

failed to object and did not move to correct the decision on 

action or entry of judgment. See R.C.M. 1104(b)(1)(F) (permitting parties to file a post-trial motion alleging “error in the 

convening authority’s action under R.C.M. 1109 or 1110”); 

R.C.M. 1104(b)(2)(B) (“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.”).7

Therefore, Appellant’s challenge to the convening authority’s 

action is reviewed for plain error.

In order to prevail under plain error review, an appellant 

must demonstrate that the error complained of was “clear or 

obvious.” United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 

2017) (internal quotation marks omitted) (citation omitted).

To determine whether error is clear or obvious at the time of 

appeal, this Court will consider, among other circumstances, 

whether the CCAs have “reached conflicting conclusions on 

 

7 As the majority observes, the military judge entered judgment 

the day after the convening authority’s entry of “No Action.” Under 

R.C.M. 1111(a)(2), “[t]he judgment reflects the result of the courtmartial, as modified by any post-trial actions, rulings, or orders. 

The entry of judgment terminates the trial proceedings and initiates the appellate process.” Further, the military judge is only enabled to sua sponte modify the entry of judgment under R.C.M. 

1111(c)(1) for clerical or computational errors. Generally, then, the 

military judge should resolve post-trial motions before the entry of 

judgment. See Article 60(b)(2), UCMJ, 10 U.S.C. § 860(b)(2) (2018).

However, R.C.M. 1104(b)(2)(B) states that “[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.” (Emphasis added.) R.C.M. 1104(b)(2)(B) provides no exception for instances when the military judge enters the judgment before that five-day period elapses. Thus, Appellant had the right to

file his post-trial motion within the five days allotted.
United States v. Brubaker-Escobar, No. 20-0345/AR

Judge OHLSON, concurring in the result

5

the question” that is in issue. United States v. Gonzales, 78

M.J. 480, 486–87 (C.A.A.F. 2019).

In the instant case, Appellant cannot meet his burden of 

demonstrating that the convening authority’s procedural error was clear or obvious because this whole area of the law is 

a quagmire of confusion, as reflected in all of the disparate 

CCA opinions.

8 Therefore, Appellant is entitled to no relief.

Because I would affirm the decision of the lower court on 

the grounds set forth in this opinion, I concur in the judgment 

reached by the majority.

 

8 See generally United States v. Beavers, No. ACM S32651, 2021 

CCA LEXIS 20, 2021 WL 237418 (A.F. Ct. Crim. App. Jan. 22, 2021)

(unpublished); United States v. Humpel, No. ACM S32622, 2021 

CCA LEXIS 8, 2021 WL 96441 (A.F. Ct. Crim. App. Jan. 11, 2021)

(unpublished); United States v. Caffrey, No. ACM 39879, 2021 CCA 

LEXIS 4, 2021 WL 79521 (A.F. Ct. Crim. App. Jan. 8, 2021) (unpublished); United States v. Lopez, No. ACM S32597, 2020 CCA 

LEXIS 439, 2020 WL 7233070 (A.F. Ct. Crim. App. Dec. 8, 2020)

(unpublished); United States v. Cruspero, No. ACM S32595, 2020 

CCA LEXIS 427, 2020 WL 6938016 (A.F. Ct. Crim. App. Nov. 24, 

2020) (unpublished); United States v. Barrick, No. ACM S32579, 

2020 CCA LEXIS 346, 2020 WL 5884489 (A.F. Ct. Crim. App. Sept. 

30 2020) (unpublished); United States v. Finco, No. ACM S32603, 

2020 CCA LEXIS 246, 2020 WL 4289983 (A.F. Ct. Crim. App. July

27, 2020) (unpublished); United States v. Coffman, 79 M.J. 820 (A.

Ct. Crim. App. 2020).