U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39673 (rem)
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UNITED STATES
Appellee
v.
James M. AUMONT 1
Senior Airman (E-4), U.S. Air Force, Appellant
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On Remand from
The United States Court of Appeals for the Armed Forces
Decided 24 June 2022
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Military Judge: Wesley A. Braun; Andrew R. Norton (post-trial).
Sentence: Sentence adjudged 15 January 2019 by GCM convened at
Hurlburt Field, Florida. Sentence entered by military judge on 25 Feb-
ruary 2019, and reentered on 1 December 2020: Dishonorable discharge,
confinement for 8 months, and reduction to E-1.
For Appellant: Captain David L. Bosner, USAF.
For Appellee: Major John P. Patera, USAF; Major Brittany M. Speirs,
USAF; Mary Ellen Payne, Esquire.
Before THE COURT EN BANC.
Judge ANNEXSTAD delivered the opinion of the court, in which Chief
Judge JOHNSON, Senior Judge POSCH, Senior Judge KEY, Judge
RAMÍREZ, Judge RICHARDSON, Judge MERRIAM, Judge CADOTTE,
and Judge MEGINLEY joined. Judge RICHARDSON filed a concurring
opinion in which Senior Judge POSCH and Judge M EGINLEY joined.
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1 This court’s previous opinion erroneously listed Appellant as James A. Aumont, it
should have been James M. Aumont.
United States v. Aumont, No. ACM 39673 (rem)
This is an unpublished opinion and, as such, does not serve as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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ANNEXSTAD, Judge:
Appellant’s case is before us for a second time. A military judge sitting as a
general court-martial convicted Appellant, in accordance with his pleas and
pursuant to a pretrial agreement (PTA), of one specification of attempting to
commit a lewd act on a person he believed to be a child under 16 years of age
by intentionally exposing his genitalia on divers occasions, and one specifica-
tion of attempting to commit a lewd act on a person he believed to be a child
under 16 years of age by intentionally communicating indecent language on
divers occasions, both in violation of Article 80, Uniform Code of Military Jus-
tice (UCMJ),
10 U.S.C. § 880.2 Appellant was sentenced to a dishonorable dis-
charge, confinement for eight months, and reduction to the grade of E-1. The
PTA had no effect on the adjudged sentence.
On appeal, Appellant initially raised one issue pursuant to United States
v. Grostefon,
12 M.J. 431 (C.M.A. 1982): (1) whether Appellant is entitled to
sentence relief because of impermissible conditions of post-trial confinement in
violation of Articles 12 and 55, UCMJ,
10 U.S.C. §§ 812, 855, and the Eighth
Amendment to the United States Constitution.3 We also considered two addi-
tional issues, not raised by Appellant, that we identified during our Article
66(d), UCMJ,
10 U.S.C. § 866(d), review: (2) whether the convening authority’s
decision memorandum contained error when the convening authority took “no
action” on the sentence and Appellant was convicted of an offense committed
prior to 1 January 2019; and (3) whether Appellant is entitled to relief for fa-
cially unreasonable appellate delay in accordance with United States v.
Moreno,
63 M.J. 129 (C.A.A.F. 2006). On 20 November 2020, we found Appel-
lant’s convictions legally and factually sufficient, that no error materially prej-
udicial to the substantial rights of Appellant occurred, and affirmed the find-
ings and sentence. United States v. Aumont, No. ACM 39673,
2020 CCA LEXIS
416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.).
On 4 March 2021, the Court of Appeals for the Armed Forces (CAAF)
granted review. United States v. Aumont,
81 M.J. 158 (C.A.A.F. 2021). After
2 Reference to the punitive article is to the Manual for Courts-Martial, United States
(2016 ed.). Unless otherwise indicated, all other references to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.).
3 U.S. CONST. amend. VIII.
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United States v. Aumont, No. ACM 39673 (rem)
deciding United States v. Brubaker-Escobar,
81 M.J. 471 (C.A.A.F. 2021) (per
curiam), the CAAF remanded this case to our court for a determination of
whether the convening authority’s procedural error “materially prejudiced a
substantial right of Appellant.” United States v. Aumont,
82 M.J. 37 (C.A.A.F.
2021).
Upon remand to this court, Appellant now asserts that he was materially
prejudiced by the convening authority’s procedural error in taking “no action”
on his sentence. We find no material prejudice to Appellant’s substantial
rights, and affirm the findings and sentence.
I. BACKGROUND
On 23 January 2019, Appellant’s trial defense counsel submitted a petition
for clemency to the convening authority requesting a “moderate amount of
clemency.” Specifically, Appellant requested the convening authority defer the
mandatory forfeitures of pay for a period of 30 days.
On 8 February 2019, the convening authority signed a Decision on Action
memorandum in Appellant’s case. The convening authority’s decision memo-
randum states the convening authority takes “no action in the case of United
States v. [Senior Airman] James M. Aumont.” The memorandum also indicates
that he consulted with his staff judge advocate and denied Appellant’s request
for a 30-day deferment of mandatory forfeitures under Rule for Courts-Martial
(R.C.M.) 1103. The memorandum also directs that “upon completion of the sen-
tence to confinement, AIRMAN BASIC JAMES M. AUMONT would be re-
quired, under Article 76a, UCMJ, [10 U.S.C. § 876a,] to take leave pending
appellate review.” On 14 February 2019, Appellant acknowledged receipt of
the convening authority’s decision and signed the receipt as Airman Basic
James M. Aumont. Appellant did not file a motion under R.C.M. 1104(b)(2)(B)4
to address any potential errors in the action of the convening authority.
On 1 December 2020, the military judge signed an entry of judgment (EoJ).5
The EoJ lists the sentence as a dishonorable discharge, confinement for eight
months, and reduction to the grade of E-1. It further states that on 8 February
2019, the convening authority “took no action in this case.” Additionally, the
4 In accordance with R.C.M. 1104(b)(2)(B), Appellant has five days after receipt of the
convening authority’s decision to assert whether post-trial action by the convening au-
thority was incomplete, irregular, or contained error.
5 While the court did not remand Appellant’s case for the error in the judgment entered
by the military judge on 25 February 2019, we directed a military judge correct the
EoJ prior to completion of the final order. See Aumont, unpub. op. at *26 n.7. On 1
December 2020, a newly detailed military judge corrected the EoJ.
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United States v. Aumont, No. ACM 39673 (rem)
military judge noted in the EoJ that the findings and sentence reflect “all post-
trial actions by the convening authority and all judicial post-trial rulings, or-
ders or other determinations, [and] are hereby entered into the record and re-
flect the judgment of this court-martial.” Appellant did not file a motion under
R.C.M. 1104(b)(2)(C) to address any potential errors in the EoJ.
II. DISCUSSION
A. Law
[I]n any court-martial where an accused is found guilty of at
least one specification involving an offense that was committed
before January 1, 2019, a convening authority errs if he fails to
take one of the following post-trial actions: approve, disapprove,
commute, or suspend the sentence of the court-martial in whole
or in part.
Brubaker-Escobar, 81 M.J. at 472; see also Article 60, UCMJ,
10 U.S.C. § 860
(Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)). The con-
vening authority’s failure to explicitly take one of those actions is a “proce-
dural” error. Brubaker-Escobar, 81 M.J. at 475. “Pursuant to Article 59(a),
UCMJ,
10 U.S.C. § 859(a) (2018), procedural errors are ‘test[ed] for material
prejudice to a substantial right to determine whether relief is warranted.’”
Id.
(alteration in original) (quoting United States v. Alexander,
61 M.J. 266, 269
(C.A.A.F. 2005)).
B. Analysis
Appellant specifically argues that the convening authority’s error in not
taking action on his sentence materially prejudiced his substantial rights by
preventing this court from “truly knowing” if the convening authority “consid-
ered and disregarded the disapproval of [the] reduction in grade, or, alterna-
tively, whether he never contemplated it.” Based on this uncertainty, Appel-
lant requests that we remand the record in order for the convening authority
to take action on the sentence as Article 60, UCMJ (2016 MCM), required him
to do. We disagree with Appellant’s argument and find remand unnecessary.
In light of our superior court’s decision in Brubaker-Escobar, we find that
the convening authority’s failure to take action on Appellant’s sentence was a
non-jurisdictional procedural error to be tested for material prejudice. We find
no such prejudice to Appellant’s substantial rights. In this case, the convening
authority was not authorized to disapprove, commute, or suspend Appellant’s
adjudged dishonorable discharge or term of confinement. See Article 60(c)(4),
UCMJ,
10 U.S.C. § 860(c)(4) (2016 MCM). While the convening authority did
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United States v. Aumont, No. ACM 39673 (rem)
have power to disapprove, commute, or suspend Appellant’s adjudged reduc-
tion in grade, Appellant requested no such relief. In fact, the only relief re-
quested by Appellant concerned his request to defer the mandatory forfeitures
for 30 days. There is no question that the convening authority denied this re-
quest explicitly in his decision memorandum. Additionally, we find that the
convening authority’s decision memorandum also directed “AIRMAN BASIC
JAMES M. AUMONT” to take appellate leave following his confinement term.
By referring to Appellant at his reduced grade of E-1, the convening authority
made clear his intention to approve the sentence as adjudged, including Appel-
lant’s reduction in grade.
Considering the totality of the circumstances, including Appellant’s failure
to identify specific prejudice, the sentence imposed, the absence of any request
to reduce the sentence (as opposed to deferment or waiver), the convening au-
thority’s limited ability to modify the sentence, the convening authority’s
demonstrated intent to approve each portion of the court-martial’s sentence for
which he could have granted meaningful relief, and the nature and seriousness
of the offenses of which Appellant was convicted, we find no material prejudice
to Appellant’s substantial rights by the convening authority’s failure to take
action on the sentence.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of the Appellant occurred.
Articles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the
findings and sentence are AFFIRMED.
RICHARDSON, Judge (concurring), joined by Senior Judge POSCH and Judge
MEGINLEY:
In addition to the reasons relied on by the majority, I find the convening
authority’s intent can be gleaned from the words in the Decision on Action
memorandum and Air Force guidance in effect when the convening authority
made his decision not to disturb the sentence. “[A] decision to take no action is
tantamount to granting no relief.” Air Force Instruction 51-201, Administra-
tion of Military Justice, ¶ 13.17.1. (18 Jan. 2019).
To be sure, the convening authority followed that instruction to his detri-
ment by failing to take action on each component of the sentence. Despite the
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United States v. Aumont, No. ACM 39673 (rem)
procedural error, the memorandum he did sign unmistakably conveys an in-
tention to grant no sentencing relief to Appellant.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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