U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40274
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UNITED STATES
Appellee
v.
Ian M. WILSON
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 16 August 2023
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Military Judge: Bryon T. Gleisner (pretrial motion); 1 Brett A. Landry.
Sentence: Sentence adjudged 1 February 2022 by GCM convened at the
Oakland County District Court in Pontiac, Michigan. Sentence entered
by military judge on 15 March 2022: Bad-conduct discharge, forfeiture
of $1,190.00 pay per month for 2 months, reduction to E-1, and a repri-
mand.
For Appellant: Major Matthew L. Blyth, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Captain
Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and MASON, Appellate Military
Judges.
Judge MASON delivered the opinion of the court, in which Chief Judge
JOHNSON and Senior Judge ANNEXSTAD 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This is an unpublished opinion and, as such, does not serve as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 30.4.
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1 Pursuant to Article 30a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 830a.
United States v. Wilson, No. ACM 40274
MASON, Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of one charge with
one specification of desertion with an intent to remain away permanently ter-
minated by apprehension, in violation of Article 85, Uniform Code of Military
Justice (UCMJ),
10 U.S.C. § 885.2 The military judge sentenced Appellant to a
bad-conduct discharge, forfeiture of $1,190.00 pay per month for two months,
reduction to the grade of E-1, and a reprimand. The convening authority took
no action on the findings or sentence.
Appellant raises three assignments of error: (1) whether this court should
order correction of the entry of judgment, which incorrectly states that the con-
vening authority denied a deferment request when Appellant only made a sus-
pension request; (2) whether a missing convening order necessitates remand;
and (3) whether Appellant’s sentence is inappropriately severe.3
Though not raised by the parties, review of the record indicates that the
compact disc (CD) purporting to contain the audio recordings of all open ses-
sions of the trial failed to capture the final session wherein the military judge
apparently reopened Appellant’s court-martial to announce his corrected sen-
tence.
We remand the case for correction of the entry of judgment (issue 1), inser-
tion into the record of trial of the missing convening order (issue 2), and reso-
lution of the issue of the missing audio recording of the last session of Appel-
lant’s court-martial. We defer addressing Appellant’s allegation that his sen-
tence is inappropriately severe until the record is returned to this court for
completion of our Article 66(d), UCMJ,
10 U.S.C. § 866(d), review.
I. BACKGROUND
In early January 2021, Appellant knew that he was under investigation
due to allegations of sexual assault in Oakland County, Michigan. On 9 Feb-
ruary 2021, Appellant’s mother called him and told him that he would be ar-
rested the next day pursuant to a warrant from the state of Michigan. After he
finished talking to her, Appellant packed his bags, got in his car, and started
driving north away from Nellis Air Force Base, Nevada, with the intent to cross
the border into Canada. At some point during the drive, Appellant formed the
2 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
3 Appellant raises the third issue regarding the severity of his sentence pursuant to
United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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United States v. Wilson, No. ACM 40274
intent to remain away from his unit permanently. Appellant stated that he had
driven too far to turn around and report to his next shift on time, so he decided
that he would continue driving to Washington state and would not go back. He
proceeded until he was about 100 yards before the United States–Canada bor-
der, where he pulled into a neighborhood, parked, and contemplated whether
he should cross the border. United States Border Patrol agents approached
Appellant while he was parked, checked his identification, and learned of his
deserter status and open arrest warrants issued by the United States Air Force
and state of Michigan. United States Border Patrol contacted the local police
who arrested Appellant and arranged for his eventual extradition to Michigan.
II. DISCUSSION
A. Missing Recording and Amendment to Convening Order
1. Law
Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004).
Rule for Courts-Martial (R.C.M.) 1112(b) sets forth the contents required
to be contained in a record of trial. Amongst those contents are a substantially
verbatim recording of the court-martial proceedings except sessions closed for
deliberations and voting, as well as a copy of the convening order and any
amending order. R.C.M. 1112(b)(1); R.C.M. 1112(b)(3).
2. Analysis
Regarding the missing audio recording, the verbatim transcript reflects
that the military judge apparently exercised his authority under R.C.M.
1007(c) to hold a post-trial Article 39(a), UCMJ,
10 U.S.C. § 839(a), session
about 22 minutes after the court initially adjourned for the purpose of correct-
ing an “erroneous announcement of the sentence.” During this post-trial Arti-
cle 39(a), UCMJ, session, the military judge corrected the prior erroneous sen-
tence announcement by correctly articulating the forfeitures of pay to the
amount consistent with the limits of the plea agreement. The Statement of
Trial Results and entry of judgment reflect this lower amount as the amount
adjudged. Yet, the CD purportedly containing recordings of all open sessions
did not contain this final post-trial Article 39(a), UCMJ, session. We find the
omission of the final announcement of Appellant’s sentence is substantial.
Thus, the record of trial is incomplete.
Regarding the missing convening order amendment, Appellant requests
that this court return the record of trial to the trial judiciary to remedy the
absence. At the initial Article 39(a), UCMJ, session, trial counsel announced—
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United States v. Wilson, No. ACM 40274
and the charge sheet reflects—the court-martial was convened by Special Or-
der A-4. This convening order is contained in the record of trial. However, trial
counsel also announced that this order was amended by Special Order A-6,
dated 13 January 2022. This amendment to the convening order was not con-
tained in the record of trial.
Appellee moved to attach this amendment to the record and that motion
was granted. In addition, Appellee contends the omission is not substantial
and did not prejudice Appellant. See United States v. Davenport,
73 M.J. 373,
377 (C.A.A.F. 2014); United States v. Harrow,
62 M.J. 649, 654 (A.F. Ct. Crim.
App. 2006), aff’d,
65 M.J. 190 (C.A.A.F. 2007). However, given the fact that the
record of trial is incomplete due to the missing audio recording, the most ap-
propriate resolution for the missing amendment is for this document to be
properly inserted into the record of trial upon remand of the record rather than
be an attached document.
B. Entry of Judgment Errors
Appellant asserts, and Appellee agrees, the entry of judgment erroneously
states that Appellant requested deferments in this case, specifically, defer-
ments of his adjudged forfeitures and reduction in rank. Instead, Appellant
requested the convening authority suspend his forfeitures and reduction in
rank. While a request for a suspended sentence is not required to be included
in the entry of judgment, the entry of judgment incorrectly reflects that Appel-
lant requested a deferment, when he did not. Given that the case is being re-
manded due to the missing items referenced above, the court need not deter-
mine whether this error materially prejudiced Appellant’s substantial rights.
Rather, it is appropriate that as part of this court’s remand, the entry of judg-
ment should be corrected as well by removing the language addressing a de-
ferment.
III. CONCLUSION
The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial
Judiciary, pursuant to R.C.M. 1112(d) to: (1) correct the entry of judgment as
discussed above; (2) insert any missing amended convening orders into the rec-
ord of trial; and (3) resolve the issue of the missing audio recording of the final
session of Appellant’s court-martial.
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United States v. Wilson, No. ACM 40274
Thereafter, the record of trial will be returned to this court for completion
of its appellate review under Article 66(d), UCMJ,
10 U.S.C. § 866(d).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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