This opinion is subject to administrative correction before final disposition.

Before GASTON, HOUTZ, and PENNIX Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v. Troy R. TRIBBLE Sergeant (E

- 5), U.S. Marine Corps

Appellant

No. 20 2 100073

_________________________
Decided: 14 June 2022
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge : Kevin S. Woodard
Sentence adjudged 16 December 2020 by a special court

- martial convened at Marine Corps Air Station Cherry Point, North Carolina, consisting of a military judge sitting alone

. Sentence in the Entry of Judgment : confinement for six months and a bad

- conduct discharge

. For Appellant: Lieutenant Commander R. Andrew Austria
, JAGC, USN

For Appellee : Lieutenant John L. Flynn IV, JAGC, USN Major Kerry E. Friedewald , USMCU nited States v. Tribble
, NMCCA No. 20 2100073

Opinion of the Court

2 _________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Ru le of Appellate Procedure 30.2.

___________________

______

PER CURIAM: Appellant was convicted, pursuant to his pleas, of false official statement, aggravated assault, and disorderly conduct in violation of Article s 107, 128, and 134 , Uniform Code of Military Justice [UCMJ]

. 1
A ppellant asserts in his sole assignment of error [ AOE ] that the Government failed to comply with the plea agreement when it reduced Appellant to
pay grade E

- 1 , when no statute or regulation authorized automatic reduction in rank and the terms of the plea agreement disallowed the milit ary judge from imposing reduction in rank. We find no prejudicial error and affirm.



### I. B ACKGROUND
The underlying facts of Appellant’s crimes are not required to resolve his AOE , other than that th ey occurred in 2020 . Appellant’s p lea a greement states in perti nent part that “ [n] o reduction in rank will be adjudged.” 2 At Appellant’s trial i n December 2020, t he military judge sentenced Appellant to six months ’ confinement and a bad

- conduct discharge for the offenses to which Appellant pleaded and was found guilty
, not ing that “[t]he Court

. . . was not authorized to adjudge a reduction [in rank]

. . . and the Court did not adjudge [reduction in rank]

. ” 3 The convening authority approved the adjudged sentence in February 2021

. T he military judge then entered the judgment into the record in March 2021 , and the sentence, except for the punitive discharge, was executed. The following month , as reflected in his Leave and Earnings Statement of April 2021 that was submitted by his appellate counsel , Appell ant received pay at the paygrade of E

- 1.

1 10 U.S.C. § § 907, 928, 934

.

2 Appellate Ex. XI at 7.

3 R. at 157.U nited States v. Tribble
, NMCCA No. 20 2100073

Opinion of the Court

3 

### II. D ISCUSSION

We review de novo the interpretation of plea agreements. 4 “Appellant bearsthe burden of establishing that a term or condition of the agreement was material to his decision to plead guilty, [and] that the Government failed to comply with that term or condition

. . . .” 5 Central to the issue presented is that an automatic reduction in rank was not allowed by law at the time of Appellant’s guilty plea, sentencing, and post

trial processing

. For offenses com mitted prior to 1 January 2019

— cases not governed by the implementation of the Military Justice Act of 2016

— Article 58a, UCMJ
, provided that if certain sentencing parameters were met, an automatic reduction to E

- 1 would occur on the date the convening authority approved the qualifying sentence. 6 However, prior to Appellant’s offenses and court

- martial
, the language of Article 58a was amended to include the caveat : “if such a reduction is authorized by regulation prescribed by the President.” 7 As of the writing of this opinion, the President has not delegated authority to the service Secretaries to establish conditions for such automatic reductions. T he binding guidance for convictions “for an offense committed on or after 1 January 2019 and before the Pr esident has delegated authority to the Secretary to establish conditions for automatic reductions” is that “[a]utomatic reduction in pay grade is not authorized.” 8 Appellant’s convictions arise from offenses that occurred in 2020. Therefore, any automatic reduction of Appellant’ s rank to paygrade E

- 1 was not authorized. However, th e fact th at automatic reduction to E

- 1 was not authorized by law for Appellant’s convictions and sentence is a separate issue from whether any remedial action by th is Court is req uired . Article 66, UCMJ, limits th is Court to “act only with respect to the findings and sentence as entered into the record” and to “affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and

4 United States v. Lundy , 63 M.J. 299, 301 (C.A.A.F. 2006).

5 Id. at 302.

6 See Article 58a, UCMJ (2016) ( stating that a sentence including a dishonorable or bad

- conduct discharge, confinement, or hard labor without confinement will result in automatic reduction in rank to paygrade E

- 1 on the date of approval by the convening authority)

.

7 Article 58a, UCMJ (2018).

8 Dep’t of the Navy, Judge Advocate General Instr. 5800.7G , Manual of the Judge Advocate General para. 0154.e.(2) (Feb. 14, 2022 ).U nited States v. Tribble
, NMCCA No. 20 2100073

Opinion of the Court

4 . . . should be approv ed.” 9 Our superior court has interpreted this language to require a determination of whether the adjudged and approved sentence is both correct in law (e.g., “does not exceed the maximum penalty authorized under the applicable punitive article”) and should be approved (e.g., “in lightof the underlying facts adduced at trial, to include all the extenuating and mitigating circumstances”). 10 The court has further found that these determinations include the power to grant sentence relief based on post

- trial con finement conditions. 11 However, the case precedent does not support that Article 66 empowers this Court to resolve pay disputes resulting from an apparent administrative error by the Defense Finance and Accounting Service [DFAS]

. 12
Nor need we take such rem edial action to resolve Appellant’s AOE

. Here, insofar as the United States Government acted without authority by paying Appellant at paygrade E

- 1 , it was not due to a violat ion of the plea agreement

. The p lea a greement’s term that “[n]o reduction in rank will be adjudged” was complied with when the military judge did not adjudge a sentence that include d a reduction in rank and the convening authority took no action to approve one

. 13 Since Appellant has not show n that the Government failed to comply with that term of the plea agreement
, we find his AOE to be without merit. W e therefore conclude it is beyond the purview of this Court of limited jurisdiction to take remedial action to resolve what amounts to an admin istrative pay dispute

. 14

9 Article 66(d)(1), UCMJ.

10 United States v. Guinn , 81 M.J. 195, 199 (C.A.A.F. 2021).

11 Id. at 200.

12 See United States v. Guardado , 79 M.J. 301, 304 (C.A.A.F. 2020) (“[W]e do not have jurisdiction to adjudicate military pay disputes.”).

13 Cf. United States v. Singleton , No. 20200279, 2021 CCA LEXIS 327, * 5 (A. Ct. Crim. App. June 29, 2021) (unpublished) (correcting the convening authority action and entry judgment , wh ich erroneously and without authorization stated that the appellant was automatically reduced to E

- 1, and ordering restoration of the rights, privileges, and property of which the appellant had been deprived by same ).

14 To the extent the deprivation of pa y to which Appellant is entitled can be considered punishment in excess of the sentence in the Entry of Judgment, we do not believe he is entitled under the circumstances to any modification of that sentence. However, t h at does not mean Appellant is withou t recourse to resolve the issue , particularly where the Government has concede d Appellant is entitled to the withheld pay and is working to correct the administrative error

. Assuming DFAS has not yet cor-U nited States v. Tribble
, NMCCA No. 20 2100073

Opinion of the Court

5 

### III. C ONCLUSION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant ’s substantial rights occurred. 15
T he findings and sentence are AFFIRMED

.

FOR THE COURT:

KYLE D. MEEDER Clerk of Court

rected the issue
, Appellant has other avenues for obtaining the relief he seeks
, including petitioning DFAS , the United States Court of Federal Claims, or a United States District Court. See United States v. Allen , 33 M.J. 209, 215

- 16 (C.M.A. 1991).

15 Articles 59 & 66, UCMJ

.