U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32420
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UNITED STATES
Appellee
v.
Daniel T. WHITING
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 4 January 2018
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Military Judge: Charles E. Wiedie, Jr.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 17 May 2016 by SpCM con-
vened at Kadena Air Base, Japan.
For Appellant: Captain Patricia Encarnación Miranda, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Major Joshua R. Trae-
ger, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, HARDING, and DENNIS, Appellate Military
Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge HARDING and Judge DENNIS joined.
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This is an unpublished opinion and, as such, does not serve as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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MAYBERRY, Chief Judge:
A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas pursuant to a pretrial agree-
ment (PTA), of one specification each of wrongful possession of marijuana
with intent to distribute and wrongful distribution of marijuana in violation
of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a,
United States v. Whiting, No. ACM S32420
and one specification of wrongfully endeavoring to impede an investigation in
violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The court sentenced Appel-
lant to a bad-conduct discharge, confinement for six months, and reduction to
the grade of E-1. The convening authority approved the adjudged sentence.
Appellant asserts two assignments of error: (1) The convening authority
failed to honor the PTA cap on confinement, and (2) Appellant has been im-
properly denied his pay for accrued leave. We modify the sentence and affirm.
I. BACKGROUND
On 15 May 2016, Appellant and the special court-martial convening au-
thority (SPCMCA) entered into a PTA wherein Appellant agreed to plead
guilty to wrongful possession of marijuana with intent to distribute, distribu-
tion of marijuana, and endeavoring to impede an investigation in return for
the convening authority’s promise to withdraw six other drug-related specifi-
cations and to approve no confinement in excess of 179 days.
On 17 May 2016, Appellant providently pleaded to and was found guilty
of the aforementioned charges. The military judge sentenced Appellant, inter
alia, to six months of confinement. During the PTA review, the military judge
asked Appellant and counsel whether the convening authority could approve
the adjudged sentence and all opined the SPCMCA could not approve the ad-
judged sentence based on the confinement cap. On 29 June 2016, the SPCM-
CA approved the sentence as adjudged.
II. DISCUSSION
A. Noncompliance with the PTA
A PTA in the military justice system establishes a constitutional contract
between the accused and the convening authority. United States v. Smead,
68
M.J. 44, 59 (C.A.A.F. 2009). When an appellant asserts the convening author-
ity has not complied with a term of the PTA, the issue of noncompliance is a
mixed question of law and fact.
Id. (citing United States v. Lundy,
63 M.J.
299, 301 (C.A.A.F. 2006)). “The appellant bears the burden of establishing
that the term is material and that the circumstances establish governmental
1Appellant pleaded not guilty to one specification each of wrongful use of marijuana,
wrongful possession of 3,4-methylenedioxymethamphetamine (ecstasy) with intent to
distribute, wrongful distribution of ecstasy, wrongful use of alprazolam (Xanax),
wrongful possession of Xanax with intent to distribute, and wrongful distribution of
Xanax in violation of Article 112a, UCMJ. These charges were dismissed with preju-
dice after the acceptance of Appellant’s guilty plea, pursuant to the PTA.
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United States v. Whiting, No. ACM S32420
noncompliance.”
Id. (citing Lundy, 63 M.J. at 302). Lastly, “[i]n the event of
noncompliance with a material term, we consider whether the error is sus-
ceptible to remedy in the form of specific performance or in the form of alter-
native relief agreeable to the appellant.”
Id. (citing Lundy, 63 M.J. at 305).
The plea must be withdrawn and the findings and sentence must be set aside
if a defect in a material term cannot be cured.
Id. (citing United States v. Per-
ron,
58 M.J. 78, 85–86 (C.A.A.F. 2003)).
The Government concedes the convening authority did not comply with
the PTA when he approved the adjudged sentence. 2 We agree and remedy the
error in order to provide meaningful relief. On this matter, we can either set
aside the action and remand the case for a new action or we can attempt to
remedy the error ourselves.
Appellant asks this court to grant him relief in accordance with the terms
of the PTA and order the production of a new action. We grant Appellant’s
request and modify the sentence. We approve the findings and only so much
of the sentence that calls for a bad-conduct discharge, reduction to E-1, and
179 days of confinement. This modified sentence rectifies the error and gives
Appellant the benefit of his PTA.
B. Non-payment of Accrued Leave
Jurisdiction is a question of law we review de novo. Randolph v. HV,
76
M.J. 27, 29 (C.A.A.F. 2017) (citing LRM v. Kastenberg,
72 M.J. 364, 367
(C.A.A.F. 2013)). “The burden to establish jurisdiction rests with the party
invoking the court’s jurisdiction[.]”
Randolph, 76 M.J. at 29 (quoting United
States v. LaBella,
75 M.J. 52, 53 (C.A.A.F. 2015)). Military trial and appellate
courts, like all federal courts, are courts of limited jurisdiction. United States
v. Wuterich,
67 M.J. 63, 70 (C.A.A.F. 2008). “They possess only that power
authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins.
Co. of Am.,
511 U.S. 375, 377 (1994). The scope and meaning of Article 66(c),
UCMJ, the source of this court’s authority, is a matter of statutory interpre-
tation, which, as a question of law, is reviewed de novo. United States v.
Schloff,
74 M.J. 312, 313 (C.A.A.F. 2015) (citations omitted), cert. denied,
136
S. Ct. 915 (2016). Article 66(c) establishes the jurisdiction of a military court
of criminal appeals (CCA) as follows:
In a case referred to it, the [CCA] may act only with respect to
the findings and sentence as approved by the convening au-
thority. It may affirm only such findings of guilty, and the sen-
2By approving six months of confinement, the convening authority approved 183
days confinement, thereby exceeding the 179-day cap of the PTA.
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United States v. Whiting, No. ACM S32420
tence or such part or amount of the sentence, as it finds correct
in law and fact and determines, on the basis of the entire rec-
ord, should be approved. In considering the record, it may
weigh the evidence, judge the credibility of witnesses, and de-
termine controverted questions of fact, recognizing that the tri-
al court saw and heard the witnesses.
10 U.S.C. § 866(c).
That Appellant was not paid for his accrued leave is an issue distinct from
the sentence approved by the convening authority. Article 66(c) does not ex-
tend a CCA’s reach to all finance or personnel matters that may have some
link to a court-martial sentence. A CCA is authorized by Article 66(c) to grant
relief for sentence appropriateness if it finds a “legal deficiency in the post-
trial process.” Unites States v. Gay,
75 M.J. 264, 269 (C.A.A.F. 2016). The
CAAF in Gay did not recognize unlimited authority under Article 66(c),
UCMJ, for a CCA to grant sentencing relief, including for errors collateral to
the court-martial process.
Id. The matter of nonpayment is plainly a collat-
eral administrative matter to the sentence approved by the convening author-
ity. “Article 66(c), UCMJ, does not grant this court jurisdiction over a pay
dispute absent a nexus to the approved sentence.” United States v. Buford,
___ M.J. ___, No. ACM 39087, 2017 CCA LEXIS 762, at *2 (A.F. Ct. Crim.
App. 19 Dec. 2017).
A bare claim of illegal punishment, absent some evidence of intent to sub-
ject an appellant to illegal post-trial punishment, did not establish jurisdic-
tion over collateral pay issues. Like the appellant in Buford, Appellant failed
to present any evidence to establish wrongful intent, namely, that any mili-
tary official withheld his pay for accrued leave in order to increase the severi-
ty of his sentence and impose illegal post-trial punishment. We are not per-
suaded that we should exercise our limited authority to grant relief for an
administrative matter unrelated to any legal deficiency and unconnected to
the legality or appropriateness of his court-martial sentence.
III. CONCLUSION
The approved findings and sentence, as modified, are correct in law and
fact, Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly,
the findings and sentence, as modified, are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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