This opinion is subject to administrative correction before final disposition.

Before 

GASTON, STEWART, and ATTANASIO

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Jorge A. GRADIZ, Jr.

Sergeant (E-5), U.S. Marine Corps

Appellant

No. 202000183

Decided: 7 April 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Jeffrey V. Munoz

Sentence adjudged 29 May 2020 by a general court-martial convened 

at Marine Corps Base Camp Pendleton, California, consisting of a 

military judge sitting alone. Sentence in the Entry of Judgment:

reduction to E-1, confinement for 18 months, and a bad-conduct discharge.1

For Appellant:

Lieutenant Commander Shawn K. Collins, JAGC, USN

 

1 In taking action on the case, the convening authority purported to “waive” the 

execution of adjudged and automatic reduction in rank. 
United States v. Gradiz, NMCCA No. 202000183

Opinion of the Court

2

For Appellee: 

Brian K. Keller, Esq.

_________________________

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:

A general court-martial consisting of a military judge sitting alone convicted Appellant, in accordance with his pleas, of one specification of willfully 

disobeying a superior commissioned officer and two specifications of assault 

consummated by a battery upon an intimate partner, in violation of Articles 

90 and 128, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 890, 928. 

The military judge sentenced Appellant to reduction to E-1, confinement for 

18 months, and a bad-conduct discharge. 

This case was submitted without assignment of error, but after carefully 

considering the record of trial, we now set aside the Convening Authority 

Action and remand for new post-trial processing due to a material ambiguity 

in the Convening Authority Action.

The Convening Authority Action of 29 June 2020 provided, in pertinent 

part: “[t]he sentence is approved as adjudged except . . . [t]he execution of 

adjudged and automatic reduction in rank is waived.” (emphasis added).2

We find the convening authority’s purported action to “waive” the adjudged reduction in pay grade is an ultra vires action with no basis in law.3

 

2 The convening authority also waived automatic forfeitures in favor of Appellant’s dependents. 

3 The convening authority’s purported waiver of the automatic reduction in 

grade, irrespective of whether such waiver was authorized, is also a legal nullity, but 

in no need of correction, as automatic reduction is not authorized for “[a]ny conviction 

for an offense committed on or after 1 January 2019 and before the President has 

delegated authority to the Secretary to establish conditions for automatic reductions.” Sec’y of the Navy, All Dep’t. Admin. Message 072/19, Interim Change to the 

Manual of the Judge Advocate General, para. 1.b. (Nov. 20, 2019) [ALNAV 072/19]; 

see also UCMJ art. 58a; Dep’t of the Navy, Judge Advocate General Instr. 5800.7F, 

Manual of the Judge Advocate General, para. 0153.e (Ch. 3, Mar. 30, 2020). Appellant 
United States v. Gradiz, NMCCA No. 202000183

Opinion of the Court

3

Pursuant to Rule for Courts-Martial [R.C.M.] 1109(c)(5), the convening 

authority is authorized to “reduce, commute, or suspend, in whole or in part,” 

an adjudged reduction in pay grade. However, instead of using one of these 

terms of art to take one of these permissible actions, the Convening Authority 

Action uses the term, “waiver,” which is an authorized means of sentence 

relief only as it relates to those automatic forfeitures of pay and allowances

mandated by Article 58b, Uniform Code of Military Justice [UCMJ].4 While it 

seems clear that the convening authority intended to grant some type of 

clemency regarding the reduction in grade,5 the action’s irregular word choice 

confounds the convening authority’s precise intent (i.e., disapproval, 

suspension, commutation, etc.). 

The related post-trial documents further confuse the convening authority’s intent. The Defense’s clemency submission made no mention of the 

adjudged reduction in grade (requesting only waiver of automatic forfeitures).6 Nevertheless, prior to taking action, the convening authority 

responded, “[the Defense’s clemency] request . . . for waiver of the execution 

of adjudged and automatic reduction in rank is approved,”7 thereby purporting to approve a request the Defense never made.

Recognizing the error in the Convening Authority Action, the military 

judge correctly noted in the Entry of Judgment that “neither automatic 

reduction in rank nor waiver of reduction in rank is authorized.” However, for 

reasons not revealed in the record, the military judge apparently declined to 

order further proceedings to clarify or correct the Convening Authority 

Action. See R.C.M. 1104 (authorizing the military judge sua sponte to direct a 

post-trial Article 39(a) session to address incompleteness, irregularity, or 

error in the Convening Authority Action; and empowering the military judge 

to return the action to the convening authority for correction or, with the 

parties’ agreement, to correct the action in the Entry of Judgment).

 

committed his offenses after 1 January 2019 and, at present, the President has not 

delegated the aforementioned authority to the Secretary.

4 See UCMJ art. 58b (stating “the convening authority . . . may waive any or all of 

the forfeitures of pay and allowances required by subsection (a) for a period not to 

exceed six months”) (emphasis added).

5 In taking action on the case, the convening authority explained, “I am taking 

this action in order to provide for the welfare of [Appellant’s dependents].”

6 Defense Clemency Request of 4 June 2020. 

7 Convening Authority Reply to Defense Clemency Request of 11 June 2020.
United States v. Gradiz, NMCCA No. 202000183

Opinion of the Court

4

We are therefore left with a materially ambiguous Convening Authority 

Action whose meaning we cannot discern with any degree of confidence. 

Consequently, we must remand to afford the convening authority another 

opportunity to take clear and unambiguous action using the terms of art 

provided in the R.C.M. See United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 

2006) (stressing requirement for a clear and unambiguous Convening 

Authority Action). 

We have frequently urged scrupulous attention to detail concerning all 

aspects of the post-trial process. See, e.g., United States v. Norris, No. 

201900289, 2020 CCA LEXIS 139 (N-M. Ct. Crim. App. Apr. 30, 2020)

(unpublished order); United States v. Allison, No. 201800251, 2020 CCA 

Lexis 111 (N-M. Ct. Crim. App. Apr. 8. 2020) (unpublished order); United 

States v. Stromer, No. 201800320, 2019 CCA LEXIS 134 (N-M. Ct. Crim. App. 

Mar. 26, 2019) (unpublished). We must reiterate that urging. 

Accordingly, the Convening Authority Action and Entry of Judgment are 

SET ASIDE. The record of trial is returned to the Judge Advocate General 

for remand to an appropriate convening authority to re-accomplish the 

Convening Authority Action in compliance with R.C.M. 1109. Thereafter, the 

record will be forwarded to the Navy-Marine Corps Chief Trial Judge to 

detail a military judge to re-accomplish the Entry of Judgment in accordance 

with R.C.M. 1111. Finally, the record will be returned to this Court for 

completion of appellate review.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court