UNITED STATES, Appellee 

v. 

Derek C. BURCH, Corporal 

U.S. Marine Corps, Appellant 

No. 08-0092 

Crim. App. No. 200700047 

United States Court of Appeals for the Armed Forces

Argued September 24, 2008 

Decided October 16, 2008 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Lieutenant Heather L. Cassidy, JAGC, USN 

(argued). 

For Appellee: Major James W. Weirick, USMC (argued); Commander 

Paul C. LeBlanc, JAGC, USN (on brief). 

Military Judge: J. G. Meeks 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Burch, No. 08-0092/MC 

2

Judge Ryan delivered the opinion of the Court. 

The sole point of dispute between the parties in this case 

is whether Appellant was prejudiced by serving 223 days in 

confinement, when that period of confinement was suspended by 

the convening authority in a facially complete and final action 

issued in accordance with Rule for Courts-Martial (R.C.M.) 

1107(f).1 We hold that where a clear and unambiguous action is 

the convening authority’s last action delimiting the period of 

confinement to be served, an accused is prejudiced by being 

confined for a period in excess of the authorized sentence. The 

United States Navy-Marine Corps Court of Criminal Appeals (CCA) 

erred in relying on facts and circumstances predating the 

convening authority’s unambiguous action to find that Appellant 

was not prejudiced. 

The facts relevant to this decision are few and undisputed. 

A special court-martial composed of a military judge sitting 

alone convicted Appellant, pursuant to his pleas, of willfully 

damaging military property of the United States, assault 

consummated by a battery, and assault consummated by a battery 

 

1

 On Appellant’s petition, we granted review of the following 

issue: 

WHERE THE LOWER COURT FOUND A CONSTITUTIONAL 

VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS 

NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN 

MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED 

UNDER THE CONVENING AUTHORITY’S UNAMBIGUOUS ACTION? 
United States v. Burch, No. 08-0092/MC 

3

upon a child under the age of sixteen years, in violation of 

Articles 108 and 128, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 908, 928 (2000). The adjudged sentence included 

confinement for a period of one year, reduction to pay grade E1, and a bad-conduct discharge. As provided in the pretrial 

agreement (PTA), the convening authority suspended all 

confinement in excess of forty-five days on the condition that 

Appellant commit no misconduct in violation of the UCMJ during 

the period of suspension. Appellant served forty-five days of 

confinement and was released on June 30, 2005.2

Subsequent to Appellant’s release, but before either the 

period of suspension set forth in the PTA had run or the 

convening authority had acted, Appellant committed additional 

misconduct in violation of the terms of his PTA. The suspension 

of the remainder of his adjudged confinement was properly 

vacated in accordance with the procedures prescribed in R.C.M. 

1109 and Appellant was returned to the brig at Camp Pendleton on 

January 24, 2006, to serve the remainder of his adjudged period 

of confinement. 

On March 11, 2006, the convening authority took action on 

the sentence, in accordance with R.C.M. 1107. The parties agree 

with, and the record supports, the CCA’s conclusion that the 

 

2

 While the release order was dated June 28, 2005, as referenced 

in the CCA’s opinion, the order did not authorize Appellant’s 

release until June 30, 2005. 
United States v. Burch, No. 08-0092/MC 

4

convening authority’s action was facially complete and 

unambiguous. United States v. Burch, No. NMCCA 200700047, 2007 

CCA LEXIS 351, at *15-*16, 2007 WL 2745706, at *5-*7 (N-M. Ct. 

Crim. App. Sept. 13, 2007). The action stated: “Execution of 

that part of the sentence adjudging confinement in excess of 45 

days is suspended for a period of 12 months . . . .” Special 

Court-Martial Order No. 70-05 (Mar. 11, 2006). Despite this 

action, the Government neither released Appellant from 

confinement nor made efforts to vacate the second suspension on 

or anytime after the date of the convening authority’s action. 

Instead, Appellant remained in confinement until October 20, 

2006, having served 223 days beyond the sentence that had been 

authorized by the convening authority. 

In reviewing Appellant’s confinement, the CCA cited this 

Court’s decision in United States v. Wilson, 65 M.J. 140 

(C.A.A.F. 2007), and recognized that the additional 223 days of 

confinement were not authorized by the convening authority. 

Burch, 2007 CCA LEXIS 351, at *16, 2007 WL 2745706, at *5. 

However, the CCA went on to hold that Appellant was not 

prejudiced by serving the additional confinement. Id. at *18-

*19, 2007 WL 2745706, at *6. In the CCA’s view, considering the 

record as a whole, there was no prejudice because it was 

“evident that the overwhelming wealth of evidence indicate[d] 

that, notwithstanding the plain language of the convening 
United States v. Burch, No. 08-0092/MC 

5

authority’s action, the convening authority did not intend to 

release the appellant from confinement prior to completion of 

his adjudged sentence.” Id. at *18, 2007 WL 2745706, at *6. We 

disagree. 

The CCA’s conclusion that Appellant was not prejudiced 

explicitly rests on facts extrinsic to and predating the 

convening authority’s action, ignoring the significance and 

timing of the action itself and our holding in Wilson. The CCA 

cited no legal authority for the novel precept that confinement 

not authorized by a convening authority’s action does not 

prejudice an accused because events preceding the action suggest 

that at one time the convening authority “did not intend to 

release Appellant from confinement prior to completion of his 

adjudged sentence.” 

A convening authority’s action on the sentence is within 

“the sole discretion of the convening authority” as a “matter of 

command prerogative.” Article 60(c)(1), UCMJ, 10 U.S.C. § 

860(c)(1); R.C.M. 1107(b)(1). See, e.g., United States v. 

Davis, 58 M.J. 100, 102 (C.A.A.F. 2003) (noting the convening 

authority’s “substantial discretion” and important role in the 

sentencing process); United States v. Finster, 51 M.J. 185, 186 

(C.A.A.F. 1999) (holding that the convening authority “has 

unfettered discretion to modify the findings and sentence for 

any reason -- without having to state a reason -- so long as 
United States v. Burch, No. 08-0092/MC 

6

there is no increase in severity”). “[W]hen the plain language 

of the convening authority’s action is facially complete and 

unambiguous, its meaning must be given effect,” without 

reference to circumstances not reflected in the action itself. 

Wilson, 65 M.J. at 141. If the convening authority’s action is 

to be given effect, as required by R.C.M. 1107, attendant 

circumstances preceding the action may not be utilized to 

undermine it. 

The effect of the convening authority’s action in this 

case, as the CCA purported to recognize, is that confinement in 

excess of forty-five days was suspended and no other confinement 

was approved. In contradiction to this action, Appellant served 

223 days of confinement that both the parties and the CCA agree 

were suspended by the convening authority. Within the military 

justice system, punishment suspended by a convening authority 

may not be executed. R.C.M. 1113(a) (“No sentence of a courtmartial may be executed unless it has been approved by the 

convening authority.”). Contrary to the CCA’s analysis, we 

conclude that the prejudice in this case is both obvious and 

apparent and may not be attenuated by facts predating the final 

action of the convening authority. Holding otherwise would 

neither give effect to a clear and unambiguous action by the 

convening authority, nor adhere to this Court’s holdings in 

Wilson and Finster. 
United States v. Burch, No. 08-0092/MC 

7

 The September 13, 2007, decision of the United States 

Navy-Marine Corps Court of Criminal Appeals is reversed. The 

record of trial is returned to the Judge Advocate General of the 

Navy for remand to the Court of Criminal Appeals to determine 

and award meaningful sentence relief to Appellant pursuant to 

its powers under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).