## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class JAMES R. REMMERS United States Army, Appellant

ARMY 20120068

Headquarters, Fort Drum Gregory R. Bockin, Military Judge Lieutenant Colonel Olga M. Anderson, Acting Staff J udge Advocate (pretrial) Colonel Michael O. Lacey, Staf f Judge Advocate (post-trial)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley, JA; Captain Jessica J. Morales, JA (on brief).

12 March 2013

------------------------------------

SUMMARY DISPOSITION

------------------------------------

Per Curiam:

A military judge, sitting as a special court-martia l, convicted appellant, consistent with his pleas, of three speci fications of absence without leave, three specifications of wrongful us e of marijuana and one specif ication of wrongful use of cocaine, in violation of Ar ticles 86 and 112a, Uniform Code of Milit ary Justice, 10 U.S.C. §§ 886 and 912 (20 06) [hereinafter, UCMJ]. The military judge sentenced appellant to a bad co nduct discharge, confinement for eight months, an d reduction to the grade of E-1.

In his action, the convening authority stated “only so much of the sentence extending to reduction to Private (E1), confinement for four months, and a badREMMERS—ARMY 20120068

2 conduct discharge, will be executed.” * The action failed to explicitly approve or disapprove any part of th e findings or sentence.

Rule for Courts-Martial [hereinafter R.C.M.] 1107(d)(1) requires that a convening authority’s “approva l or disapproval [of the sent ence] shall be explicitly

stated.” If a conven ing authority fails to explicitly approve or disapprove any part

of the sentence in hi s or her action, then th e action is ambiguous. United States v. Fillinger , 69 M.J. 426 (C.A.A.F. 9 Nov. 2010) (summ. disp.). R.C.M. 1107(g) provides that the same authority can be inst ructed to withdraw the original action

and substitute a co rrected action. Id . Normally, this court would lack jurisdiction unless a convening authorit y has approved the findings and sentence. See UCMJ art. 66. Regarding po st-trial matters, however, this court does have th e “jurisdiction to refrain from addressing th e merits of a case , and instead return the action to the convening authority if further clarifica tion of the meaning of the action is necessary.” United States v. Politte , 63 M.J. 24, 25 C. A.A.F. 2006).

In this case, the convenin g authority’s action is am biguous because he did not approve or disapprove any part of the sentence. Ac cordingly, the convening authority’s action, date d 29 May 2012, is se t aside. The r ecord of trial is returned to The Judge Advocate General fo r a new action by the same convening authority in accordance with Article 60(c), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

* The convening author ity attempted to reduce the sentence in order to comply with the terms of the pr etrial agreement. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: