U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32644
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UNITED STATES
Appellee
v.
Kejuan D. DANIELS
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 1 June 2021
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Military Judge: Sterling C. Pendleton.
Sentence: Sentence adjudged 22 January 2020 by SpCM convened at
Dyess Air Force Base, Texas. Sentence entered by military judge on 6
February 2020: Bad-conduct discharge, confinement for 30 days, forfei-
ture of $1,120.00 pay per month for one month, reduction to E-1, and a
reprimand.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Judge KEY joined. Senior Judge POSCH filed a separate dissenting
opinion.
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This is an unpublished opinion and, as such, does not serve as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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United States v. Daniels, No. ACM S32644
J. JOHNSON, Chief Judge:
A special court-martial composed of a military judge alone convicted Appel-
lant, in accordance with his pleas pursuant to a plea agreement, of one speci-
fication of conspiracy to violate a lawful general regulation, one specification
of wrongful solicitation to make a false official statement, one specification of
violation of a lawful general regulation, one specification of making a false of-
ficial statement, and one specification of wrongfully using marijuana on divers
occasions in violation of Articles 81, 82, 92, 107, and 112a, Uniform Code of
Military Justice (UCMJ),
10 U.S.C. §§ 881, 882, 892, 907, 912a, respectively. 1
The military judge sentenced Appellant to a bad-conduct discharge, confine-
ment for 30 days, 2 forfeiture of $1,120.00 pay per month for one month, reduc-
tion to the grade of E-1, and a reprimand. The convening authority signed a
“Decision on Action” memorandum which stated he took “no action” on the
findings or sentence, but provided language for the adjudged reprimand.
Thereafter, the military judge signed an entry of judgment reflecting the ad-
judged findings and sentence, including the reprimand language.
Appellant has submitted the record for our review on its merits with no
specific assignment of error. Although not raised by Appellant, we address
whether the convening authority failed to take action on the sentence as re-
quired by Executive Order 13,825, § 6(b),
83 Fed. Reg. 9889, 9890 (
8 Mar.
2018), and Article 60, UCMJ,
10 U.S.C. § 860 (Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM)). We find the convening authority failed
to take action on the entire sentence as he was required to do, and that remand
to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. Accordingly,
we defer completion of our Article 66, UCMJ,
10 U.S.C. § 866, review until the
record is returned to this court.
I. BACKGROUND
A. Factual Background
On 1 August 2019, Appellant was randomly selected to provide a sample
for urinalysis drug testing. Appellant was concerned that his sample would
test positive due to recent marijuana use. Before he reported to provide a sam-
ple, Appellant contacted two friends, Airman First Class (A1C) B and A1C D,
and the three of them drove to an off-base store near Dyess Air Force Base,
1 Unless otherwise specified, all references to the UCMJ and all references to the Rules
for Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
2 The military judge imposed concurrent sentences to confinement of 30 days for viola-
tion of Article 92, UCMJ, and 15 days for the violation of Article 81, UCMJ. He imposed
no confinement for the other offenses.
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United States v. Daniels, No. ACM S32644
Texas. On the way there, Appellant told the other two Airmen that he had used
marijuana the prior week. The three Airmen went into the store where A1C
B—the only one of the three not in uniform—bought two home urinalysis drug
test kits. The Airmen then returned to their dormitory on base where Appel-
lant used one of the tests A1C B bought. As he feared, Appellant tested positive
for tetrahydrocannabinol (THC), the psychoactive compound in marijuana.
With the assistance of A1C B and A1C D, Appellant devised a plan to sub-
stitute A1C D’s urine for his own and thereby avoid detection of his marijuana
use. After obtaining urine from A1C D, Appellant drove the three of them to
the facility where urine samples were collected. There he gave his vehicle keys
to the others so that A1C D could return to duty. After A1C B and A1C D de-
parted, Appellant called them and told them “if anyone from the squadron
asked about their whereabouts, do not tell them where they [had been], say
someplace else.”
Appellant successfully filled the specimen container with A1C D’s urine
without being detected. The sample later tested negative for all tested sub-
stances.
Despite this success, Appellant’s plan quickly unraveled. After Appellant
“provided” the urine sample, A1C B showed Appellant a text message from
A1C D stating that “the truth is out.” Appellant was questioned by his squad-
ron commander who, after advising Appellant of his Article 31, UCMJ,
10
U.S.C. § 831, rights, asked him why he had gone to the store with A1C B and
A1C D and what had been bought there. Appellant falsely responded that he
did not know why they went and did not know what A1C B bought. Around the
same time, A1C D was questioned by a supervisor. A1C D eventually admitted
the truth and provided a written statement which led to the recovery of the
discarded used home drug test.
Appellant was ordered to provide another urine sample on 1 August 2019
based on probable cause. The sample tested positive for THC. Subsequent ad-
ditional urine samples lawfully collected from Appellant on 20 August 2019
and 4 September 2019 also tested positive for THC.
B. Procedural Background
Appellant’s squadron commander preferred the charges and specifications
on 28 October 2019. The Specification of Charge V alleged Appellant wrong-
fully used marijuana on divers occasions between on or about 1 October 2018
and on or about 4 September 2019; the other offenses were alleged to have
occurred on or about 1 August 2019. On 31 October 2019, the charges and spec-
ifications were referred for trial by special court-martial.
Appellant entered a plea agreement with the convening authority whereby
Appellant agreed, inter alia, to be tried by a military judge alone and to plead
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United States v. Daniels, No. ACM S32644
guilty to the charges and specifications. In return, the convening authority
agreed to specific limitations on the amount of confinement the military judge
could impose for each specification, which would run concurrently, the net ef-
fect of which was that Appellant faced a maximum confinement term of three
months.
At Appellant’s court-martial, the military judge found Appellant guilty of
all charges and specifications in accordance with his pleas and sentenced Ap-
pellant to a bad-conduct discharge, confinement for 30 days, forfeiture of
$1,120.00 pay per month for one month, reduction to the grade of E-1, and a
reprimand.
After considering Appellant’s clemency matters and consulting with the
staff judge advocate, the convening authority signed a memorandum with the
subject line “Convening Authority Decision on Action.” In the memorandum
the convening authority stated he took no action on the findings or sentence.
The memorandum provided the language of the adjudged reprimand, and in-
cluded the statement: “Unless competent authority otherwise directs, upon
completion of the sentence to confinement, [Appellant] will be required, under
Article 76a, Uniform Code of Military Justice, to take leave pending completion
of appellate review.” Three days later the military judge signed the entry of
judgment, which reflected the adjudged sentence and the convening authority’s
reprimand language.
II. DISCUSSION
The charges and specifications were referred to trial after 1 January 2019;
therefore, the Rules for Courts-Martial that went into effect on 1 January 2019
were generally applicable to the post-trial processing of Appellant’s case. See
Executive Order 13,825, § 5, 83 Fed. Reg. at 9890. However, one of the offenses
for which Appellant was convicted alleged an offense committed before 1 Jan-
uary 2019. Therefore, in accordance with Executive Order 13,825, § 6, the ver-
sion of Article 60, UCMJ,
10 U.S.C. § 860, in effect prior to 1 January 2019
applied to the convening authority to the extent that it required him to take
action on the sentence. 83 Fed. Reg. at 9890. Before 1 January 2019, Article
60, UCMJ, required the convening authority to take action on the sentence in
every case.
10 U.S.C. § 860 (2016 MCM) (“Action on the sentence of a court-
martial shall be taken by the convening authority or by another person author-
ized to act under this section.”); see also United States v. Perez,
66 M.J. 164,
165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to
take action on the sentence . . . .”); R.C.M. 1107(f)(4)(A) (2016 MCM) (“The
action shall state whether the sentence adjudged by the court-martial is ap-
proved. If only part of the sentence is approved, the action shall state which
parts are approved.”).
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United States v. Daniels, No. ACM S32644
In spite of this requirement, the convening authority specifically stated
that he took “no action” on the sentence. His provision of the language of the
adjudged reprimand and his reference to Appellant taking leave “under Article
76a” implied the continued existence of the reprimand and bad-conduct dis-
charge. See 10 U.S.C. § 876a. However, the convening authority did not purport
to approve, disapprove, commute, or suspend any element of the sentence. See
10 U.S.C. § 860(c)(2) (2016 MCM).
This situation is substantially similar to that in several other recent deci-
sions by this court where we have remanded the record of trial to address in-
complete and ambiguous convening authority actions. See, e.g., United States
v. Huff, No. ACM 39845,
2021 CCA LEXIS 168 (A.F. Ct. Crim. App. 8 Apr.
2021) (unpub. op.); United States v. Anderson, No. ACM S32671,
2021 CCA
LEXIS 134 (A.F. Ct. Crim. App.
30 Mar. 2021) (unpub. op.); United States v.
Corpetts, No. ACM S32633,
2021 CCA LEXIS 21 (A.F. Ct. Crim. App. 25 Jan.
2021) (unpub. op.); United States v. Lopez, No. ACM S32597,
2020 CCA LEXIS
439 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.). We recognize that panels of
this court composed of other judges have applied different reasoning in cases
where the convening authority did not take action on the entire sentence, or
purported to take “no action” on the sentence. See, e.g., United States v. Merritt,
No. ACM 39754,
2021 CCA LEXIS 61, at *2 n.2 (A.F. Ct. Crim. App. 11 Feb.
2021) (unpub. op.), rev. granted,
2021 CAAF LEXIS 320 (C.A.A.F. 2021);
United States v. Jackman, No. ACM 39685 (f rev),
2021 CCA LEXIS 26 (A.F.
Ct. Crim. App. 26 Jan. 2021) (unpub. op.); United States v. Cruspero, No. ACM
S32595,
2020 CCA LEXIS 427 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.);
United States v. Aumont, No. ACM 39673,
2020 CCA LEXIS 416 (A.F. Ct. Crim.
App. 20 Nov. 2020), (en banc) (unpub. op.), rev. granted,
2021 CAAF LEXIS
389 (C.A.A.F. 2021). However, we continue to adhere to the same view ex-
pressed in the majority opinion in Lopez and the dissenting opinion in Aumont
in situations where the convening authority fails to take action on the entire
sentence as required by Executive Order 13,825 and the pre-1 January 2019
version of Article 60, UCMJ. See Lopez, unpub. op. at *8–11; Aumont, unpub.
op. at *79–90 (J. Johnson, C.J., dissenting).
Accordingly, we conclude the convening authority’s Decision on Action
memorandum was inadequate to fulfill the requirement that he take action on
the entire sentence, and that the record should be remanded to the Chief Trial
Judge to resolve the error. See Article 66(f)(3), UCMJ,
10 U.S.C. § 866(f)(3);
United States v. Politte,
63 M.J. 24, 26 (C.A.A.F. 2006) (stating the convening
authority’s action is required to be “clear and unambiguous”).
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United States v. Daniels, No. ACM S32644
III. CONCLUSION
The record is REMANDED to the Chief Trial Judge, Air Force Trial Judi-
ciary, to resolve a substantial issue with the convening authority’s decision
memorandum as the convening authority failed to take action on the entire
sentence.
Our remand returns jurisdiction over the case to a detailed military judge
and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the
Joint Rules for Appellate Procedure for Courts of Criminal Appeals. JT. CT.
CRIM. APP. R. 29(b)(2). A detailed military judge may:
(1) Correct the Statement of Trial Results; 3
(2) Return the record of trial to the convening authority or his
successor to take action on the sentence;
(3) Conduct one or more Article 66(f)(3), UCMJ, proceedings us-
ing the procedural rules for post-trial Article 39(a), UCMJ, ses-
sions; and/or
(4) Correct or modify the entry of judgment.
Thereafter, the record of trial will be returned to the court for completion
of appellate review under Article 66, UCMJ.
POSCH, Senior Judge, (dissenting):
I disagree that the convening authority failed to properly effectuate a sen-
tence he determined was appropriate for Appellant. I find the convening au-
thority’s decision not to disturb Appellant’s adjudged sentence closely tracked
his obligations under the Military Justice Act of 2016, see National Defense
Authorization Act for Fiscal Year 2017 (FY17 NDAA),
Pub. L. No. 114-328,
§§ 5001–5542 (23 Dec. 2016), as implemented by the President effective on 1
January 2019 in Exec. Order 13,825,
83 Fed. Reg. 9889 (
8 Mar. 2018).
The convening authority did not err because Article 60a, UCMJ, 10 U.S.C.
§ 860a, contained in the Manual for Courts-Martial, United States (2019 ed.),
governed the convening authority’s decision on action. In this regard, I adhere
to the view most recently articulated in United States v. Hong, No. ACM 39830,
2021 CCA LEXIS 260, at *9–55 (A.F. Ct. Crim. App. 26 May 2021) (Posch, S.J.,
dissenting) (unpub. op.); see also United States v. Lopez, No. ACM S32597, 2020
3 The Statement of Trial Results failed to include the command that convened the
court-martial as required by R.C.M. 1101(a)(3). Appellant has not claimed prejudice
from the error. See United States v. Moody-Neukom, No. ACM S32594,
2019 CCA
LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.).
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United States v. Daniels, No. ACM S32644
CCA LEXIS 439, at *12–46 (A.F. Ct. Crim. App. 8 Dec. 2020) (Posch, S.J., dis-
senting) (unpub. op.); United States v. Aumont, No. ACM 39673,
2020 CCA
LEXIS 416, at *36–79 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (Posch, S.J.,
concurring in part and in the result) (unpub. op.), rev. granted, ___ M.J. ___,
No. 21-0126,
2021 CAAF LEXIS 389 (C.A.A.F.
4 Mar. 2021); and United States
v. Barrick, No. ACM S32579,
2020 CCA LEXIS 346, at *9–36 (A.F. Ct. Crim.
App. 30 Sep. 2020) (Posch, S.J., concurring in the result) (unpub. op.).
The convening authority’s decision memorandum was neither ambiguous
nor incomplete as found by the opinion of the court. I would affirm the findings
and sentence entered by the military judge.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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