U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32631
________________________
UNITED STATES
Appellee
v.
Tymon C. BLOW
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 14 May 2021
________________________
Military Judge: Mark W. Milam.
Sentence: Sentence adjudged on 21 August 2019 by SpCM convened at
Royal Air Force Mildenhall, United Kingdom. Sentence entered by mil-
itary judge on 2 October 2019: Bad-conduct discharge, confinement for
5 months, and a reprimand.
For Appellant: Major Benjamin H. DeYoung, USAF; Major David A.
Schiavone, USAF; Captain Ryan S. Crnkovich, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Jessica
L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
KEY joined. Judge ANNEXSTAD filed a separate dissenting opinion.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Blow, No. ACM S32631
MINK, Senior Judge:
A military judge sitting as a special court-martial convicted Appellant, con-
trary to his pleas, of two specifications of failure to obey a lawful order, in vio-
lation of Article 92, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 892,
and one specification of assault consummated by a battery, in violation of Ar-
ticle 128, UCMJ,
10 U.S.C. § 928. 1 The assault consummated by a battery was
committed on or about 25 November 2018 and both failures to obey a lawful
order occurred on or about 12 May 2019. The military judge sentenced Appel-
lant to a bad-conduct discharge, confinement for five months, and a repri-
mand. 2
On appeal, Appellant raises four assignments of error, one of which asserts
an error in the post-trial processing of Appellant’s court-martial: that the con-
vening authority failed to take action on the sentence as required by Executive
Order 13,825, § 6(b),
83 Fed. Reg. 9889, 9890 (
8 Mar. 2018), and Article 60,
UCMJ,
10 U.S.C. § 860. We agree with Appellant and conclude that remand to
the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. Appellant
raises three additional assignments of error which we do not reach here; we
defer addressing those issues until the record is returned to this court for com-
pletion of our review under Article 66, UCMJ,
10 U.S.C. § 866 (Manual for
Courts-Martial, United States (2019 ed.) (2019 MCM)).
I. BACKGROUND
The charges in this case were referred on 17 June 2019, and Appellant’s
court-martial concluded on 21 August 2019. Appellant submitted no request
for clemency. On 13 September 2019, after consulting with his staff judge ad-
vocate, the convening authority signed a Decision on Action memorandum,
stating: “I take no action on the findings in this case.” The convening authority
further stated, “I take no action on the sentence in this case.” He then included
the text of a reprimand. The Decision on Action memorandum also directed
Appellant to “take leave pending completion of appellate review” upon release
from confinement. The memorandum contained no further indication as to
whether any element of the sentence was approved, disapproved, commuted,
1 Unless otherwise noted, references to the Uniform Code of Military Justice (UCMJ)
and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2016 ed.).
2 Appellant elected to be sentenced under the sentencing procedures that went into
effect on 1 January 2019, and the military judge sentenced Appellant to two terms of
confinement for five months and one term of one month, all of which ran concurrently.
See R.C.M. 1002(d)(2)(B) (Manual for Courts-Martial, United States (2019 ed.) (2019
MCM)).
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United States v. Blow, No. ACM S32631
or suspended. On 2 October 2019, the military judge signed the entry of judg-
ment, setting out the sentence. He included the Decision on Action memoran-
dum as an attachment.
II. DISCUSSION
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) (citation omitted). Interpretation of a statute and a Rule for Courts-
Martial (R.C.M.) are also questions of law we review de novo. United States v.
Hunter,
65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted); United States v.
Martinelli,
62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted).
Executive Order 13,825, § 6(b), requires that the version of Article 60,
UCMJ,
in effect on the date of the earliest offense of which the accused
was found guilty, shall apply to the convening authority . . . to
the extent that Article 60: (1) requires action by the convening
authority on the sentence; . . . or (5) authorizes the convening
authority to approve, disapprove, commute, or suspend a sen-
tence in whole or in part.
See 2018 Amendments to the Manual for Courts-Martial, United States, 83
Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect in 2018—the year
in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction
on the sentence of a court-martial shall be taken by the convening authority or
by another person authorized to act under this section.”
10 U.S.C. § 860(c)(2)(A)
(emphasis added); 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 . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [other-
wise] provided . . . the convening authority . . . may approve, disapprove, com-
mute, or suspend the sentence of the court-martial in whole or in part.”
10
U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear
and unambiguous.” United States v. Politte,
63 M.J. 24, 26 (C.A.A.F. 2006) (ci-
tation omitted).
This court addressed a similar situation in its recent en banc decision in
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). In Aumont, the convening authority signed a memorandum
stating that he took “no action” on the findings or sentence in a case involving
offenses occurring prior to 1 January 2019.
Id. at *19. Aumont resulted in four
separate opinions, reflecting four distinct positions among the judges on this
court as to whether the convening authority’s statement that he took no action
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United States v. Blow, No. ACM S32631
was erroneous and, if so, whether remand for correction was required.
Id. (pas-
sim). A majority of the judges in Aumont—six of the ten judges—concluded the
convening authority erred; four of those six judges found the error required
remand for corrective action without testing for prejudice,
id. at *89 (J. John-
son, C.J., concurring in part and dissenting in part), and the other two deter-
mined that while there was “plain and obvious” error, they found “no colorable
showing of possible prejudice” to the appellant.
Id. at *32–33 (Lewis, S.J., con-
curring in part and in the result).
We recognize that other panels of this court have applied different reason-
ing in cases decided before and after Aumont. See, e.g., United States v. Crus-
pero, No. ACM S32595,
2020 CCA LEXIS 427 (A.F. Ct. Crim. App. 24 Nov.
2020) (unpub. op.); United States v. Barrick, No. ACM S32579,
2020 CCA
LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.); United States v.
Finco, No. ACM S32603,
2020 CCA LEXIS 246 (A.F. Ct. Crim. App. 27 Jul.
2020) (unpub. op.); cf. United States v. Coffman,
79 M.J. 820, 824 (A. Ct. Crim.
App. 2020) (wherein our sister-service court finds the convening authority’s
failure to take action was harmless error). Nevertheless, we continue to adhere
to the view that—in situations where the convening authority fails to take ac-
tion on the sentence as required by Executive Order 13,825 and the pre-1 Jan-
uary 2019 version of Article 60, UCMJ—the convening authority has erred.
In cases involving a conviction for an offense committed prior to 1 January
2019, the convening authority was required to explicitly state his approval or
disapproval of the sentence. See United States v. Wilson,
65 M.J. 140, 141
(C.A.A.F. 2007) (citing R.C.M. 1107(d)(1)). “If only part of the sentence is ap-
proved, the action shall state which parts are approved.”
Id. (quoting R.C.M.
1107(f)(4)(A)). In this case, the convening authority did not take action on the
entire sentence. He set out the terms of Appellant’s reprimand and implicitly
referenced the adjudged punitive discharge by mentioning appellate leave, but
he did not mention the confinement. The convening authority’s decision was
incomplete and ambiguous, and therefore deficient. See Politte, 63 M.J. at 26.
The convening authority’s failure to take action on the entire sentence fails to
satisfy the requirement of the applicable Article 60, UCMJ. See United States
v. Lopez, No. ACM S32597,
2020 CCA LEXIS 439, at *11 (A.F. Ct. Crim. App.
8 Dec. 2020) (unpub. op.).
Our superior court has mandated that when a Court of Criminal Appeals
identifies an ambiguity in an action, it must return the case to the convening
authority. Politte, 63 M.J. at 25–26 (applying the earlier versions of Articles 60
and 66, UCMJ,
10 U.S.C. §§ 860, 866 (2000), reasoning which we find applica-
ble here). In requiring the deficient action to be returned to the convening au-
thority, our superior court did not evaluate the deficiency for prejudice; the
deficiency in the action ipso facto required its return. Id.; see also United States
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United States v. Blow, No. ACM S32631
v. Scott,
49 M.J. 160, 160 (C.A.A.F. 1998). For the reasons set forth in the dis-
senting opinion in Aumont, we remand the record to the Chief Trial Judge, Air
Force Trial Judiciary, to resolve the error. Unpub. op. at *89 (J. Johnson, C.J.,
concurring in part and dissenting in part); see Article 66(f)(3), UCMJ,
10 U.S.C.
§ 866(f)(3) (Manual for Courts-Martial, United States (2019 ed.) (2019 MCM)).
III. CONCLUSION
This case is REMANDED to the Chief Trial Judge, Air Force Trial Judici-
ary, to resolve a substantial issue with the convening authority’s decision mem-
orandum, as the convening authority failed to take action as required by Arti-
cle 60, UCMJ.
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 (2019 MCM), proceedings
using the procedural rules for post-trial Article 39(a), UCMJ,
10 U.S.C.
§ 839(a), sessions; 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 (2019 MCM).
ANNEXSTAD, Judge (dissenting):
I respectfully disagree with my colleagues’ conclusion remanding this case
to the Chief Trial Judge, Air Force Trial Judiciary, because the convening au-
thority’s action was ambiguous and incomplete. Consistent with our court’s de-
cision in United States v. Barrick, No. ACM S32579,
2020 CCA LEXIS 346
(A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.), I would find the convening
3 We note that the Statement of Trial Results failed to include the command that con-
vened the court-martial as required by R.C.M. 1101(a)(3) (2019 MCM). Appellant has
not claimed prejudice and we find none. 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. Blow, No. ACM S32631
authority’s decision to “take no action on the sentence” was the equivalent of
action. In coming to this conclusion, I note, as our court did in Barrick, that:
Air Force Instruction 51-201, Administration of Military Justice,
Section 13D (18 Jan. 2019), correctly advises convening author-
ities to grant relief as circumscribed by the applicable version of
Article 60, UCMJ[,
10 U.S.C. § 860]. Additionally, it advises
convening authorities to specify “no action” if not granting relief,
which would include effecting “action” under the applicable ver-
sion of Article 60, UCMJ.
Id. at *3–4.
I also recognize, that we can use surrounding documentation to interpret
an otherwise unclear convening authority action, including looking outside the
four corners of the action’s language. See United States v. Politte,
63 M.J. 24,
26 (C.A.A.F. 2006) (citing United States v. Loft,
10 M.J. 262, 268 (C.M.A.
1981)).
On 13 September 2019, the convening authority memorialized his decision
to “take no action” on the findings and sentence in his Decision on Action mem-
orandum to the military judge. Consistent with Air Force Instruction 51-201,
Section 13D, the convening authority expressed his decision to not grant relief
as “no action.” Additionally, the convening authority imposed the adjudged rep-
rimand and directed Appellant to “take leave pending completion of appellate
review” upon release from confinement. On 2 October 2019, the military judge
signed the entry of judgment (EoJ), reflecting the sentence as adjudged and
including the reprimand. The convening authority’s Decision on Action memo-
randum was attached to the EoJ.
I find that the convening authority’s decision met the legacy requirements
of Article 60, UCMJ,
10 U.S.C. § 860 (Manual for Courts-Martial, United States
(2016 ed.)), requiring action. I would also find the decision complied with the
provisions of Rule for Courts-Martial (R.C.M.) 1109 of the Manual for Courts-
Martial, United States (2019 ed.) (2019 MCM), requiring convening authority
action only when affecting the sentence. In this case, the convening authority’s
decision to provide no relief at action was a “clear and unambiguous” determi-
nation to effectuate the adjudged sentence without modification. See Politte, 63
M.J. at 25−26 (footnote omitted). There is no indication in the record that the
military judge or the parties were confused as to the convening authority’s de-
cision to grant no relief. The sentence memorialized in the EoJ was the same
as the sentence adjudged at trial, and neither party moved for correction of the
Decision on Action memorandum or the EoJ. See R.C.M. 1104(b)(2)(B), (C)
(2019 MCM). For these reasons, I would find no error in the convening author-
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United States v. Blow, No. ACM S32631
ity’s Decision on Action memorandum and would not defer addressing Appel-
lant’s assignments of error by remanding the case to the Chief Trial Judge, Air
Force Trial Judiciary.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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