UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600426

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UNITED STATES OF AMERICA

Appellee

v.

JAVIER K. FIGUEROA

Corporal (E-4), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Commander Deborah S. Mayer, JAGC, USN. 

Convening Authority: Commander, U.S. Marine Corps Forces 

Command, Norfolk, VA.

Staff Judge Advocate’s Recommendation: Colonel Robert A. Fifer, 

USMC.

For Appellant: Lieutenant Donald R. Ostrom, JAGC, USN.

For Appellee: Brian S. Keller, Esq.

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Decided 13 April 2017

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Before CAMPBELL, RUGH, and HUTCHISON, 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 an orders violation, assault consummated 

by battery, and reckless endangerment, in violation of Articles 92, 128, and 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 928, and 

934. The military judge sentenced the appellant to 18 months’ confinement, 

reduction to pay grade E-1, and a bad-conduct discharge. The convening 
United States v. Figueroa, No. 201600426

2

authority (CA) approved the sentence as adjudged and, pursuant to a pretrial 

agreement (PTA), suspended all confinement in excess of six months. 

As an act of clemency, the CA suspended an additional 14 days of the 

appellant’s sentence to confinement and commuted 4 days’ confinement to 

restriction. Prior to taking this action, the CA considered the appellant’s 

clemency matters in which the appellant requested “his discharge be 

upgraded to an other than honorable [discharge] and one month be reduced 

from his sentence.”

1 In his addendum, the staff judge advocate favorably 

endorsed some form of clemency for the appellant, recommending the 

additional suspension and the commutation of confinement to restriction 

ultimately adopted by the CA.2 

Although no issues were raised by the parties, we must address the 

unlawful post-trial actions taken by the CA in this case. 

Pursuant to nearly three-year-old changes to Article 60, UCMJ, a CA may 

not “disapprove, commute, or suspend in whole or in part an adjudged

sentence of confinement for more than six months or a sentence of dismissal, 

dishonorable discharge, or bad conduct discharge” unless certain exceptions 

apply.

3 As a result of these well-publicized changes, the CA was prohibited 

from granting the additional relief requested by trial defense counsel and 

endorsed by the staff judge advocate. In other words, the CA’s act of clemency 

was a legal nullity. United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. 

App. 2016) (holding such an action by the CA to be ultra vires).

However, under Article 57(b), UCMJ, “confinement begins to run on the 

date it is adjudged, and the appellant is entitled to confinement credit once 

the confinement is adjudged whether or not he is actually confined, unless 

the confinement is suspended or deferred.” United States v. Lamb, 22 M.J. 

518, 518 (N.M.C.M.R. 1986) (citing United States v. Ledbetter, 2 M.J. 37

 

1 Trial Defense Counsel’s request ltr 5817 DSO/jgm of 28 Nov 16 at 1. In an 

earlier request, the appellant sought deferment and waiver of automatic forfeitures, 

which was subsequently granted by the CA.

2 Staff Judge Advocate’s Recommendation Addendum of 2 Dec 16 at 1.

3 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 

127 Stat. 672, 956-57 (2013) (emphasis added). One such exception, permitting 

suspension pursuant to a PTA of a period to confinement, did apply to the appellant’s 

case, but only inasmuch as was permitted by the specific language of the PTA. See

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

Congress’[s] clear desire to limit CA discretion in granting post-trial sentencing relief 

[in Article 60, UCMJ], we are unable, as the government urges, to read this 

agreement so broadly as to permit the CA to grant relief that was not specifically 

contained within the [PTA].”).
United States v. Figueroa, No. 201600426

3

(C.M.A. 1976)). As the additional 18 days’ confinement was improperly 

suspended and commuted, the appellant’s period of confinement continued to 

run. Therefore, his total confinement period should be calculated just as it 

would have been had he remained confined for the entirety of those 18 days.

III. CONCLUSION

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

 For the Court 

 R.H. TROIDL 

 Clerk of Court