U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39225
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UNITED STATES
Appellee
v.
Todd J. DEL TORO
First Lieutenant (O-2), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 27 April 2018
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Military Judge: Joseph S. Imburgia.
Approved sentence: Dismissal and confinement for 7 days. Sentence ad-
judged 30 November 2016 by GCM convened at Los Angeles Air Force
Base, California.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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PER CURIAM:
A military judge convicted Appellant, consistent with his pleas pursuant to
a pretrial agreement, of one specification of wrongfully using cocaine on divers
occasions and two specifications of conduct unbecoming an officer and a gen-
tleman, in violation of Articles 112a and 133, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 912a, 933. A general court-martial composed of officers
United States v. Del Toro, No. ACM 39225
sentenced Appellant to a dismissal and confinement for seven days. The con-
vening authority approved the findings and the adjudged sentence.
Appellant’s case was submitted to this court for review on its merits with-
out any assignments of error. We find that the approved findings and sentence
are correct in law and fact, and no error materially prejudicial to Appellant’s
substantial rights occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§
859(a), 866(c). Accordingly, the approved findings and sentence are AF-
FIRMED. However, we note several errors that require correction.
The convening authority action, although signed and otherwise proper, is
undated. The approximate date of the action may be discerned from other doc-
uments in the record, and the absence of the date has not impeded this court’s
review pursuant to Article 66, UCMJ, nor materially prejudiced a substantial
right of Appellant. However, the date the convening authority takes action is
significant for numerous reasons—for example, for ensuring the convening au-
thority does not act before receiving matters submitted by an accused or crime
victim, and for ensuring timely post-trial and appellate review. See Rule for
Courts-Martial (R.C.M.) 1105; R.C.M. 1105a; United States v. Moreno,
63 M.J.
129, 135 (C.A.A.F. 2006); see also Manual for Courts-Martial, United States
(2016 ed.), App. 16, at A16–1 (“[T]he action should show . . . the date of the
action.”). Accordingly, we direct correction of the convening authority action in
order to reflect the date the action was taken. See R.C.M. 1107(f)(2); United
States v. Mendoza,
67 M.J. 53, 54–55 (C.A.A.F. 2008).
In addition, the court-martial order (CMO) contains multiple errors. First,
the CMO incorrectly reflects Appellant pleaded not guilty to Charge I, although
it correctly indicates he pleaded guilty to Specification 1 thereunder. Second,
the CMO fails to capture the military judge’s findings by exceptions and sub-
stitutions with respect to Specification 1 of Charge I. Specifically, as a conse-
quence of information Appellant provided during the guilty plea inquiry, and
with the express consent of Appellant and trial defense counsel, the military
judge expanded the charged time frame by excepting the words “1 August
2014” and substituting therefor the words “1 April 2014.” The military judge
found Appellant not guilty of the excepted words and guilty of the substituted
words, the modified specification, and the charge. 1 Finally, the CMO misspells
1The Report of Result of Trial prepared by trial counsel and attached to the staff judge
advocate’s recommendation to the convening authority similarly fails to document the
military judge’s findings by exceptions and substitutions. However, the Defense nei-
ther objected to nor commented on the error, and we find no colorable showing of pos-
sible prejudice resulting from it. See United States v. Scalo,
60 M.J. 435, 436–37
(C.A.A.F. 2005) (citing United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000)).
2
United States v. Del Toro, No. ACM 39225
“methylenedioxymethamphetamine,” which is spelled correctly on the charge
sheet. We direct the publication of a corrected CMO to remedy these errors. 2
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
2We note the military judge failed to announce that the court was assembled. See
R.C.M. 911 (“The military judge shall announce the assembly of the court-martial.”).
Assembly of the court-martial is significant for a variety of reasons. See R.C.M. 911,
Discussion. In the present case, however, we find that the military judge’s omission
had no substantive effect upon the proceedings and was therefore harmless.
3
