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________________________
No. ACM S32 608

________________________
UNITED STATES Appellee

v.
Khalil R. NORMAN Airman First Class (E

- 3), U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 8 January 2 02 1

_______ _______ __________ Military Judge: Thomas J. Alford.

Sentence : Sentence adjudged on 19 June 2 019 by SpCM convened at Hurlburt Field, Florida. Sentence entered by military judge on 13 July 2019: Bad

- conduct discharge, confinement for 40 days, forfeiture of $1,000.00 pay for 1 month, reduction to E

- 1, and a reprimand. For Appellant: Major Kevin R. Cayton , USAF.
For Appellee: Major Jessica L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and MERRIAM
, Appellate Military Judges.

________________________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4

.

________________________ PER CURIAM : A special court

- martial composed of a military judge sitting alone found Appellant guilty, in accordance with his pleas and pursuant to a pretrial agreement (PTA), of three specifications of distribution of marijuana, in violation ofUnited States v. Norman , No. ACM S32608

2 Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 All offenses pertained to conduct that occurred in 2 018. The military judge sentenced Appellant to a bad

- conduct discharge, confinement for 40 days, forfeiture of $1,000.00 pay per month for one month, reduction to the grade of E

- 1, and a reprimand

. The adjudged confinement was less than the PTA’s sentence limitation, which limited confinement to ten months. The military judge signed the Statement of Trial Results (STR) the same day he adjudged Appellant’s
sentence. 2 Appellant raises two assignments of error on appeal : (1) whether Ap pellant’s record of trial is substantially complete when portions of a prosecution exhibit are missing , and (2) whether Appellant’s sentence is inappropriately

severe. 3 We do not reach Appellant’s assignments of error here, but instead address an error in post

- trial processing of Appellant’s court

- martial: whether the convening authority failed to take action on the sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860 ( Manual fo r Courts

- Martial
, United States (2016 ed.) (2016 MCM ))

. We find the convening authority failed to take action on Appellant’s sentence as he was required to do, and that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. Accordingly , we defer addressing Appellant’s assignments of error until the record is returned to this court for completion of our Article 66, UCMJ, 10 U.S.C. § 866, review.

I. B ACKGROUND On 28 June 2019, Appellant submitted a request for clemency in which he asked the convening authority to disapprove the adjudged forfeitures of pay

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 specified, all other references to the UCMJ and the Rules for Courts

- Martial (R.C.M.) are to the Manual for Courts

- Martial, United States (2019 ed.).

2 The STR was inserted into the record of trial in accordance with R.C.M. 1101(a). This rule lists several required contents, including inter alia “the command by which [the
court

- ma rtial] 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 that convened the court

- martial. See United St ates 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.

3 Appellant personally assert s this issue pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).United States v. Norman , No. ACM S32608

3 and all confinement in excess of 15 days. After reviewing Appellant’s clemency matters and consulting with h is staff judge advocate, the convening authority signed a Decision on Action memorandum dated 8 July 2019. In the Decision on Action, the convening authority stated: “ I hereby take no action on the findings or the sentence in the case of United States v. [ Airman First Class] Khalil R. Norman . The following reprimand is approved: [the convening authority then set out the terms of the reprimand].”

On 13 July 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: 40 days;” “Forfeitures of Pay and/or Allowances: $1,000.00 pay for one month;” and “Reduction in Pay Grade: E

- 1

. ” The E oJ also restates the Reprimand as articulated by the convening authority in his Decision on Action. The convening authority’s Decision on Action was included as Attachment 2 to the EoJ.

II. D ISCUSSION 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 a Rule for Courts

Martial are also questions of law 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. 2005) (citation omitted).

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

in effect on the date of the earliest off ense 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.

See 2018 Amendments to the Manual for Courts

- Martial, United States , 83 Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect on the date of the earliest charged offense for which Appellant was f ound guilty, 13 April 2018
, stated “[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.” 10 U.S.C. § 860(c)(2)(A) (2016 MCM ) (emphasis added); see also United States v. Perez , 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence .

. . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided .

. . the convening authority .

. .United States v. Norman , No. ACM S32608

4 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) (2016 MCM ) . The convening authority’s action is required to be “clear and unambiguous.” United States v. Politte , 63 M.J. 24, 26 ( C.A.A.F. 2006) (citation omitted).

Several panels of our esteemed colleagues on this court have addressed the effect of a convening authority’s failure to take complete action on a sentence where at least one offense predates 1 January 2019 , but the court

- martial and post

- trial processing occur after 1 January 2019

. See, e.g.
, United States v. Lopez , No. ACM S32597, 2020 CCA LEXIS 439, at *8 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub op.) (holding “ failure to take action on the entire sentence fails to satisfy the Article 60, UCMJ (2016 MCM ), requirement” and therefore “the record should be remanded” without testing for prejudice ) ; United States v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346 , at * 3 (A.F. Ct. Crim. App. 30 Sep . 2020) (unpub. op.) (holding the convening authority’s decision to take no action w as the equivalent of action) ; United States v. Finco , No. ACM S32603, 2020 CCA LEXIS 246 , at * 15 (A.F. Ct. Crim. App. 27 Jul. 2020) (holding the convening authority ’s failu re to take action on sentence was plain and obvious error that must be tested for prejudice )

. T his court’s recent en banc 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.)
, reveals four distinct positions among the judges of this court. In Aumont , n o single legal rationale regarding the effect of a convening authority taking “no action” was adopted by a majority of this court. Four judges held in two separate opinions that t he convening authority’s decision to “take no action” on sentence was not error. Id. at *4 ; id . at *38

– 40 (Posch, S.J., concurring in part and in the result). Two judges found error, but concluded the appellant in that case was not prejudiced by the error. Id. at * 36 (Lewis, S.J., concurring in part and in the result)

. Finally, four judges found a convening authority taking no action on sentence to be error, and would have remanded without testing for prejudice. Id. at * 91

– 92 ( J. Johnson, C.J., concurring i n part and dissenting in part).

We conclude t he convening authority’s failure to take action on the entire sentence fails to satisfy the requirement of the applicable Article 60, UCMJ

. Prior to 1 January 2019, the convening authority was required to explicitly state his approval or disapproval of the sentence. See United States v. Wilson
, 65 M.J. 140, 141 (C.A.A.F. 2007) (citing R.C.M. 1107(d)(1)). “If only part of the sentence is approv ed, the action shall state which parts are approved.” Id

. (quoting R.C.M. 1107(f)(4)(A)).
In this case, after declaring that he was taking no action on the sentence, the convening authority explicitly approved a reprimand. He further implicitly referenced the possibility of a punitive discharge by mentioning appellateUnited States v. Norman , No. ACM S32608

5 leave . The convening authority failed to mention the reduction in grade , confinement, or the forfeitures of pay and allowances

. The convening authority’s action was incom plete and ambiguous, and therefore deficient. See Politte , 63 M.J. at 26. 4

O ur superior court has mandated that when a Court of Criminal Appeals identifies an ambiguity in an action, we must return the case to the convening authority. Id. at 27 (a pplying the earlier versions of Articles 60 and 66
, UCMJ, 10 U.S.C. §§ 860, 866 (2000)). I n requiring the deficient action to be returned to the convening authority, our superior court did not evaluate the deficiency for prejudice ; the deficiency in the action ips o facto required its return. Id. ; see also United States v. Scott , 49 M.J. 160, 160 (C.A.A.F. 1998) . F or the reasons set forth by the majority in Lopez and in the dissenting opinion in Aumont , we find the record must be remanded to the Chief Trial J udge, Air Force Trial Judiciary, to resolve the error. See Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3)

.

III. C ONCLUSION
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 the action taken on Appellant’s adjudged sentence was incomplete and ambiguous. 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 J oint Rules for Appellate Procedure for Courts of Criminal Appeals. J T

. C T

. C RIM

. A PP

. 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 tak e action on the sentence; (3) Conduct one or more Article 66(f)(3), UCMJ, proceedings using the pro cedural rules for post

- trial Article 39(a), UCMJ, sessions; and/or (4) Correct or m odify the e ntry of j udgment.

4 A s in Aumont , the convening authority’s memorandum suggest s the requirement to take action on the entire sentence was overlooked, further suggesting Appellant’s case was processed entirely under the new Article 60 and Article 60a, UCMJ, and associated Rules for Courts

- Martial

. See Aumont
, unpub. op. at * 89 (J. Johnson, C.J., concurring in part and dissenting in part)

.United States v. Norman , No. ACM S32608

6 Thereafter, the record of trial will be retur ned to the court for completion of appellate review under Article 66, UCMJ.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court