UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32542

________________________

UNITED STATES

Appellee

v.

Tommy L. FAUGHN

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 26 November 2019

________________________

Military Judge: Michael D. Schag.

Approved sentence: Bad-conduct discharge, confinement for 120 days,

reduction to the grade of E-1, and forfeiture of $1,092.00 pay per 

month for 5 months. Sentence adjudged 29 June 2018 by SpCM convened at Eglin Air Force Base, Florida.

For Appellant: Lieutenant Colonel Garrett M. Condon, USAF; Major 

Meghan R. Glines-Barney, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant 

Colonel G. Matt Osborn, USAF; Major Amanda L.K. Linares, USAF;

Mary Ellen Payne, Esquire.

Before J. JOHNSON, POSCH, and RAMÍREZ, Appellate Military 

Judges.

Judge RAMÍREZ delivered the opinion of the court, in which Senior

Judge J. JOHNSON and Judge POSCH joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________
United States v. Faughn, No. ACM S32542

2

RAMÍREZ, Judge:

A special court-martial composed of a military judge convicted Appellant, 

in accordance with his pleas and pursuant to a pretrial agreement (PTA), of 

two specifications of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 The court-martial 

sentenced Appellant to a bad-conduct discharge, confinement for 120 days, 

reduction to E-1, and forfeiture of $1,224.00 pay for five months. As it relates 

to the forfeiture, the convening authority approved the sentence of forfeiture 

of $1,092.00 pay per month for five months.

Appellant raises two issues on appeal:2 (1) that Appellant’s sentence was 

inappropriately severe and (2) that Appellant was unlawfully deprived of his 

pay. We modify the sentence and affirm the findings and sentence, as modified.

I. BACKGROUND

On 16 January 2018 Appellant went to a bar with some friends in Panama City, Florida. After having a few alcoholic drinks, Appellant was offered 

cocaine by his friend’s boyfriend, and Appellant used it. Two days later, Appellant was subjected to a squadron urinalysis inspection and his sample was 

positive for a metabolite of cocaine as well as tetrahydrocannabinol (THC).

On 9 June 2018, Appellant again used cocaine at a bar where another 

Airman was present. After ingesting the drug, Appellant then drove his motorcycle on a highway at speeds above 100 mph, before he ultimately crashed.

 

1 All references in this opinion to the Uniform Code of Military Justice and Rules for 

Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.). 

2 While Appellant does not raise the following as an appellate issue, he included it in 

a footnote. Here, there were two separate specifications of wrongful use of cocaine—

one as the original charge and one as an additional charge. In the footnote, Appellant 

noted that the charge sheet with the additional charge did not include instructions to 

join the additional charge and specification to the original court-martial, and included the incorrect date for Special Order AB-5. Appellant then concedes that when one 

reviews the special order number, the pretrial agreement, and the lack of objection by 

trial defense counsel, it is clear that the intention of the convening authority was to 

join the charges and try them together at this court-martial. It appears that while 

Appellant does not raise this as an assignment of error, he argues that a court must 

always satisfy itself that it has jurisdiction. Appellant is not incorrect. Even with 

these issues, however, this court is satisfied that the court below had jurisdiction 

over Appellant and the charged offenses. 
United States v. Faughn, No. ACM S32542

3

After charges were preferred, Appellant and the convening authority entered into a pretrial agreement. As part of the agreement, Appellant agreed 

to plead guilty to the two specifications of wrongful use of cocaine. In return, 

the convening authority agreed to withdraw and dismiss a specification alleging wrongful use of marijuana as well as to approve a sentence of no greater 

than 120 days confinement if confinement were adjudged. Appellant pleaded 

guilty before a military judge sitting alone as a special court-martial, was 

found guilty, and was sentenced to a reduction to the grade of E-1, five

months of confinement, forfeitures of $1,224.00 pay for five months, and a 

bad-conduct discharge. The military judge later realized he made an error 

regarding the forfeiture of pay and purported to reduce the amount to 

$1,092.00 pay for five months in an undated order of correction.

The sentence was announced on 29 June 2018. Immediately following the 

announcement of sentence on this same date, a paralegal informed the military judge via email that the maximum amount of forfeitures for an E-1 

would be $1,092.00 pay per month for five months, and not $1,224.00 pay per 

month for five months. As a result, the military judge communicated with 

both trial counsel and trial defense counsel to see if they would agree to his 

adjusting the amount in an order instead of calling the court-martial back 

into session. Both counsel agreed. With that, the military judge issued an undated “order of correction” purporting to correct the “$1,224.00 pay for five 

months” to “$1,092.00 pay for five months.” He then placed this order in the 

record of trial (ROT) and marked it as Appellate Exhibit V. On 10 July 2018, 

trial counsel prepared a “corrected” copy of the record of result of trial as follows: “forfeiture of $1,224.00 $1,092.00 pay per month for 5 months.” (Emphasis added.) The staff judge advocate recommendation (SJAR), the courtmartial order, and the action all follow this with “$1,092.00 pay per month for 

five months.” On 10 and 13 July 2018, trial counsel and trial defense counsel 

reviewed the ROT, respectively. Finally, on 23 July 2018, the military judge 

authenticated the ROT.

Subsequent to his conviction, Appellant filed a clemency request. In Appellant’s clemency request, he described his substantial assistance for agents 

from the Air Force Office of Special Investigations (AFOSI). Appellant asserts 

that his substantial assistance to AFOSI included collecting evidence against 

his roommate who was accused of attempted sexual assault against a minor. 

However, Appellant failed to find any evidence relating to that allegation. 

Nevertheless, Appellant requested that the base legal office (specifically, trial 

counsel) recommend clemency in the case due to Appellant’s substantial assistance. Trial counsel denied Appellant’s request, because Appellant did not 

provide substantial support to the specific AFOSI investigation. Ultimately, 

the convening authority did not grant Appellant clemency other than reducing the term of confinement to 120 days in accordance with the PTA.
United States v. Faughn, No. ACM S32542

4

Appellant was released from confinement on 6 October 2018. Upon release he was not placed on leave but was instead told he needed to outprocess. On or about 9 October 2018, Appellant was presented with an appellate leave form, which stated his appellate leave was to start on 13 October 

2018. He was later presented with a new version of this document, with the 

original leave start date replaced with 24 October 2018. 

During the time between his release date of 6 October 2018 and the start 

of his appellate leave on 24 October 2018, Appellant was ordered to stay on or 

around Eglin Air Force Base (AFB). In addition to out-processing appointments, he was told to check in regularly with his supervisor; however, the 

number of check-ins decreased over time. He was allowed to begin appellate 

leave on 24 October 2018.

II. DISCUSSION

A. Appellant’s Sentence was Not Inappropriately Severe

This Court reviews sentence appropriateness de novo. United States v. 

Baier, 60 M.J. 382 (C.A.A.F. 2005). “Sentence appropriateness involves the 

judicial function of assuring that justice is done and that the accused gets the 

punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 

1988). Sentence appropriateness should generally “be judged by ‘individualized consideration’ of the particular accused ‘on the basis of the nature and 

seriousness of the offense and the character of the offender.’” United States v. 

Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citing United States v. Mamaluy, 27 

C.M.R. 176, 180–81 (C.M.A. 1959)). 

This first assignment of error can be broken up into two parts: (1) that the 

convening authority was misadvised of his powers which led to an inappropriate sentence, and (2) how the Government’s decision to not recommend 

clemency for Appellant’s work with AFOSI agents led to an inappropriately 

severe sentence.

1. Advice to the Convening Authority Did Not Lead to an Inappropriately Severe Punishment

Appellant complains that the convening authority was misadvised as to 

his powers to disapprove, commute, or suspend the confinement portion of 

the sentence in this case. Particularly, Appellant points to the recommendation of the staff judge advocate which stated, “you have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, 

pursuant to a pretrial agreement.” (Emphasis added.) Appellant states that 

this implied to the convening authority that he was unable to disapprove, 

commute, or suspend the sentence below the pretrial agreement cap. 
United States v. Faughn, No. ACM S32542

5

Appellant further claims that this led to an undercutting of the request 

for clemency since it made the convening authority think he was unable to 

lower the sentence even if he wanted. However, Appellant fails to point to 

any law that discusses inappropriate or incorrect advice given from a staff 

judge advocate to a convening authority that would warrant a reduction in 

sentence.

The staff judge advocate must provide correct information to the convening authority. United States v. Fields, 74 M.J. 619, 624 (A.F. Ct. Crim. App. 

2015) (citing United States v. Griffaw, 46 M.J. 791, 792 (A.F. Ct. Crim. App. 

1997)). Erroneous advice on substantial matters of fact or law will invalidate

the action when the error prejudices the accused. Id. “The proper completion 

of post-trial processing is a question of law the court reviews de novo.” United 

States v. Zegarrundo, 77 M.J. 612, 613 (A.F. Ct. Crim. App. 2018) (citing 

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)), rev. denied, ___ M.J. 

___, No. 19-0407, 2019 CAAF LEXIS 741 (C.A.A.F. 8 Oct. 2019). “To meet this 

burden in the context of a [SJAR] error . . . an appellant must make ‘some 

colorable showing of possible prejudice.’” United States v. Scalo, 60 M.J. 435,

436–37 (C.A.A.F. 2005) (quoting Kho, 54 M.J. at 65).

Here, Appellant has failed to demonstrate how the line “pursuant to a 

pretrial agreement” was error that would cause prejudice to him or warrant a 

reduction in his sentence on appeal. This language matches the statutory 

language from Article 60(c)(4)(C), UCMJ, setting forth the convening authority’s ability to modify the sentence where a PTA exists. 10 U.S.C. § 

860(c)(4)(C); see Rule for Courts-Martial (R.C.M.) 1107(d)(1)(C)(ii). Appellant 

provides no evidence that the convening authority did, in fact, misunderstand 

his powers and fails to show any relevant case law supporting his position. In 

fact, Appellant, through trial defense counsel, correctly advised the convening 

authority that he had unlimited power to reduce Appellant’s confinement 

sentence and the staff judge advocate took no steps in her Addendum to the 

SJAR to make any corrections to the advice trial defense counsel gave. Furthermore, Appellant has not demonstrated a “colorable showing” of any prospect that the convening authority would have further reduced his term of 

confinement below the PTA limitation had the “error” not occurred.

2. Work with AFOSI Agents Does Not Mandate a Sentence Reduction

Appellant next claims that the base legal office failed to recommend leniency due to Appellant’s help during an AFOSI investigation. However, Appellant fails to explain or provide any applicable law that requires favorable 

clemency action where an accused assisted in a law enforcement investigation, in the absence of a clemency recommendation by the trial counsel. See

R.C.M. 1107(d)(1)(C)(i). Nonetheless, Appellant suggests that this court 
United States v. Faughn, No. ACM S32542

6

should reconsider the bad-conduct discharge in an act that would not be mercy, but rather giving adequate credit to Appellant for the assistance he provided to the AFOSI agents. 

We have reviewed and considered the nature and seriousness of Appellant’s offenses, his service record, his work with AFOSI agents, and all matters contained in the record of trial, including his arguments on appeal, and 

find the bad-conduct discharge and approved confinement appropriate.

B. Whether Appellant was Unlawfully Deprived of His Pay

Appellant’s second assignment of error can also be addressed in two parts. 

Appellant first avers that “[b]ecause the military judge failed to include the 

words ‘per month’ in the announced sentence, the $1,092.00 amount announced must be deemed the total amount of forfeitures adjudged.” Second, 

Appellant argues that he should have received pay through the start of his 

appellate leave, 24 October 2018. 

Sentence appropriateness is reviewed de novo. United States v. Lane, 64 

M.J. 1, 2 (C.A.A.F. 2006); Baier, 60 M.J. at 382.

“Unless a total forfeiture is adjudged, a sentence to forfeiture shall state 

the exact amount in whole dollars to be forfeited each month and the number 

of months the forfeitures will last.” R.C.M. 1003(b)(2). Even when a term of 

months is announced in connection with adjudged forfeitures, if the sentence 

announced does not include the words “per month,” then the dollar amount of 

the adjudged forfeitures is deemed the total amount to be forfeited. See United States v. Johnson, 32 C.M.R. 127, 128 (C.M.A. 1962). This court may affirm only so much of the sentence “as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(c), 

UCMJ, 10 U.S.C. § 866(c). 

There are two errors regarding the sentence the military judge announced 

at trial. First, the adjudged forfeiture of “$1,224.00 pay for five months” was 

evidently calculated based on the grade of E-2 rather than Appellant’s reduced grade of E-1. The military judge was made aware of his error after trial, and attempted to correct the error with an undated “order of correction”

that purported to reduce the forfeiture to “$1,092.00 pay for five months.” The 

parties accepted that this correction reduced the forfeiture from “$1,224.00” 

to “$1,092.00.” However, the military judge did not make a new announcement of the sentence in compliance with R.C.M. 1007(b), and his attempted 
United States v. Faughn, No. ACM S32542

7

correction was thus without effect.3 Accordingly, the adjudged sentence remained “$1,224.00 pay for five months,” and the post-trial documents referring to an adjudged forfeiture of “$1,092.00” are erroneous.

Second, the adjudged sentence imposed the forfeiture “for five months,” 

but not “per month for five months.” In United States v. Jones, this court held 

that “if the duration of forfeitures is not specified in the action, their duration 

shall not exceed one month.” 60 M.J. 964, 972 (A.F. Ct. Crim. App. 2005). 

This court has applied this principle from Jones to cases such as Appellant’s 

in which the convening authority purported to insert the term “per month” 

where the sentencing authority had omitted such language from the announced sentence. See United States v. Harkcom, No. ACM S31904, 2012 

CCA LEXIS 403, at *1–2 (A.F. Ct. Crim. App. 18 Oct. 2012) (per curiam) (unpub. op.). In Harkcom, we explained that the omission of “per month” in the 

announced sentence was an omission of the duration of the forfeiture for purposes of Jones, such that the adjudged forfeiture could be approved for only 

one month. Id. at *2; accord United States v. Van Prooyen, No. ACM S31777, 

2010 CCA LEXIS 413, at *1–2 (A.F. Ct. Crim. App. 17 Dec. 2010) (per curiam) (unpub. op.), rev. denied, 2011 CAAF LEXIS 218 (C.A.A.F. 21 Mar. 2011); 

United States v. Clelan, No. ACM 37150, 2009 CCA LEXIS 35, at *1–4 (A.F. 

Ct. Crim. App. 29 Jan. 2009) (per curiam) (unpub. op.). We reach a similar 

conclusion in Appellant’s case.

Therefore, Appellant’s adjudged forfeiture could only be approved for one 

month. Furthermore, Appellant’s adjudged forfeiture of $1,224.00 pay exceeded two-thirds of the pay of Appellant’s reduced grade of E-1, or $1,092.00,

 

3 We are aware of this court’s unpublished opinion in United States v. Colkmire, No. 

ACM S31564, 2010 CCA LEXIS 125 (A.F. Ct. Crim. App. 25 Jan. 2010) (unpub. op.). 

There, similar to Appellant’s case, the military judge recognized after trial that she 

had imposed forfeitures of pay that exceeded the maximum allowable monthly 

amount. Id. at *1–2. With the concurrence of the parties, and without reannouncing 

the correct sentence in accordance with R.C.M. 1007(b), the military judge issued an 

order indicating a corrected forfeiture amount, which the convening authority approved. Id. at *2–3. On appeal, this court found, inter alia, that the appellant had 

affirmatively waived his right to object to the military judge’s failure to adhere to 

R.C.M. 1007(b), and that he was not prejudiced by any error. Id. at *5–11. However,

the opinion also suggests the military judge’s order in fact modified the announced 

sentence, the requirements of R.C.M. 1007(b) notwithstanding. Id. at *9. We cannot 

agree with this view. To the extent that Colkmire stands for the proposition that a 

military judge is not required to comply with R.C.M. 1007(b) in order to correct an 

erroneous announcement of the sentence, we do not find its reasoning persuasive, 

and we conclude otherwise.
United States v. Faughn, No. ACM S32542

8

the maximum allowable amount of his monthly forfeiture. See R.C.M. 

201(f)(2)(B)(i). Accordingly, the adjudged sentence of “$1,224.00 pay for five 

months” only allowed for the convening authority to lawfully approve a forfeiture of pay of $1,092.00 for one month.

The Government recognizes the error and concedes the point. Rather than 

remanding the case back for new post-trial processing, both sides request this 

court to modify the sentence to the correct amount of forfeitures that could be 

lawfully imposed based on the adjudged sentence. Therefore, this court approves forfeitures only in the amount of $1,092.00 total.

Finally, Appellant argues that he was deprived of pay because he was entitled to pay through the start of his appellate leave on 24 October 2018. Appellant alleges he was prematurely cut off from receiving his pay on 12 October 2018.

This court must first determine whether it has jurisdiction over Appellant’s pay issue. United States v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. 

App. 2000), aff’d, 55 M.J. 361 (C.A.A.F. 2001). Jurisdiction is a question of 

law we review de novo. United States v. Buford, 77 M.J. 562, 564 (A.F. Ct. 

Crim. App. 2017) (citation omitted). In Buford, this court explained that Article 66(c), UCMJ, 10 U.S.C. § 866(c), does not grant us unlimited power to

“grant relief for an administrative matter unrelated to any legal deficiency 

and unconnected to the legality or appropriateness of a court-martial sentence.” 77 M.J. at 565. In the case at hand, the timing of Appellant’s pay is a 

pay matter that does not concern the legality or appropriateness of the courtmartial sentence. Further, Appellant does not contend that the withholding 

was meant in retaliation, as an extra punitive measure, as a legal deficiency, 

or something that was meant to be an unfair sentence. As such, this court has 

no jurisdiction over the alleged irregularity in Appellant’s receipt of pay. See 

id. at 566. Appellant has other appropriate venues to bring this matter.

III. CONCLUSION

We affirm only so much of the sentence as provides for a bad-conduct discharge, confinement for 120 days, reduction to the grade of E-1, and forfeiture 

of $1,092.00. The approved findings and the sentence, as modified, are correct 

in law and fact, and no further error materially prejudicial to the substantial 

rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§

859(a), 866(c). 
United States v. Faughn, No. ACM S32542

9

Accordingly, the approved findings and sentence, as modified, are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court