UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201700199

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UNITED STATES OF AMERICA

Appellee

v.

MATTHEW C. LOWRY

Gunnery Sergeant (E-7), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.

Convening Authority: Commanding General, 1st Marine Aircraft 

Wing, Okinawa, Japan.

Staff Judge Advocate’s Recommendation: Major Christopher W. 

Pehrson, USMC.

For Appellant: Commander C. Eric Roper, JAGC, USN.

For Appellee: Captain Luke Huisenga, USMC; Lieutenant Megan P. 

Marinos, JAGC, USN.

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Decided 26 February 2018

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Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges

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This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

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PER CURIAM:

A military judge, sitting as a general court-martial, convicted the 

appellant, pursuant to his pleas, of one specification of abusive sexual 

contact, two specifications of sexual abuse of a child, one specification of rape

of a child, and one specification of indecent visual recording in violation of 
United States v. Lowry, No. 201700199

2

Articles 120, 120b, and 120c, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 920, 920b, and 920c. The military judge sentenced the appellant to 

a reprimand, 40 years’ confinement, reduction to E-1, and a dishonorable 

discharge. The convening authority (CA) disapproved the reprimand, but 

approved the remainder of the sentence as adjudged. Pursuant to a pretrial 

agreement, the CA suspended confinement in excess of 20 years and deferred 

and waived automatic forfeitures. As an act of clemency, the CA suspended 

the adjudged and automatic reductions to the paygrade of E-1 for six months. 

The CA’s language suspending the appellant’s adjudged and automatic 

reductions purports to reduce the appellant to E-1 following the suspension 

period:

As an act of clemency, the [appellant] will serve in the pay 

grade of E-7, thus execution of the adjudged reduction to E-1 is 

suspended for a period of six months from this action . . . . At 

the end of the period of suspension, unless sooner vacated, the 

suspended part of the reduction in pay grade will be 

automatically remitted and the [appellant] will be reduced to 

paygrade E-1. Reduction in pay grade by operation of law . . . is 

suspended for six months from the date of this action at which 

time the suspended portion of the reduction by operation of law 

will be remitted. During the suspension period, the [appellant] 

will continue to serve in the pay grade of E-7, unless the 

suspended adjudged reduction in rank to E-1 is vacated.1

We ordered the government to show cause why we should not find that 

language in the action purporting to enforce the reduction to paygrade E-1

upon successful completion of the period of suspension was ultra vires and a 

legal nullity. The government argued that the CA “commuted the first sixmonth part of [the appellant’s] reduction” when he suspended “only the first 

six months of the reduction[.]”

2 While acknowledging that there is no “express 

grant of authority” to “suspend[] just the first six months of an adjudged 

reduction,” the government contends that nothing prohibits CAs from 

crafting “novel solutions to meet their desired goals.”3 The appellant did not 

file a reply to the government’s response to the show cause order. 

“Expiration of the period provided in the action suspending a sentence or 

part of a sentence shall remit the suspended portion unless the suspension is 

sooner vacated.” RULE FOR COURTS-MARTIAL (R.C.M.) 1108(e), MANUAL FOR 

 

1 CA’s Action of 21 Jun 2017 at 5 (emphasis added).

2 Appellee’s 9 Jan 2018 Response to Court Order to Show Cause at 4.

3 Id. at 5-6.
United States v. Lowry, No. 201700199

3

COURTS-MARTIAL, UNITED STATES (2016 ed.) (emphasis added). “Remission 

cancels the unexecuted part of a sentence to which it applies.” R.C.M. 

1108(a). 

The CA suspended the adjudged and automatic reduction. Absent a 

vacation proceeding in accordance with R.C.M. 1109, the unexecuted part of 

the appellant’s sentence—reduction to paygrade E-1—will be automatically 

cancelled at the conclusion of the period of suspension. Thus, the CA’s 

attempts to execute a cancelled part of the sentence was ultra vires and 

therefore a nullity. See United States v. Villalobos, No. 201700097, 2018 CCA 

LEXIS 26, at *7, unpublished op. (N-M. Ct. Crim. App. 26 Jan 2018) (per 

curiam) (“Executing a cancelled part of a sentence is ultra vires and thus a 

nullity.”) (citing United States v. Tarniewicz, 70 M.J. 543, 544 (N-M. Ct. 

Crim. App. 2011) (CA’s action directing execution of punitive discharge in 

violation of Article 71, UCMJ, was ultra vires and thus a nullity)).

The government argues in the alternative that we should find the 

language in the CA’s action ambiguous and remand for corrective action. “An 

ambiguous action is one that is capable of being understood in two or more 

possible senses.” United States v. Loft, 10 M.J. 266, 268 (C.M.A. 1981) 

(citation and internal quotation marks omitted). We do not find the CA’s

action ambiguous. The CA attempted to defer execution of the reduction in 

grade but was without authority to do so.4 Therefore, “[r]ather than 

unnecessarily ordering a new CA’s action in this case, we take the existing 

CA’s action and disregard any portion that is not permitted by law.” United 

States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016).

The findings and sentence as approved by the CA are affirmed. The 

supplemental court-martial order will reflect that the appellant’s suspended

adjudged and automatic reductions to the paygrade of E-1, unless sooner 

vacated, will be remitted following the conclusion of the suspension period.

For the Court

R.H. TROIDL

Clerk of Court

 

4 See R.C.M. 1101(c)(1) (“Deferment of a sentence to . . . reduction in grade is a 

postponement of the running of the sentence.”); R.C.M. 1101(c)(6) (“Deferment of a 

sentence to . . . reduction in grade ends when: (A) The convening authority takes 

action under R. C. M. 1107 . . .; (B) The . . . reduction in grade [is] suspended[.]”).