U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32509 (f rev)
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UNITED STATES
Appellee
v.
Andrew S. CALLOWAY
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 3 August 2022
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Military Judge: John C. Degnan.
Approved sentence: No punishment. Sentence adjudged 6 September
2017 by SpCM convened at Holloman Air Force Base, New Mexico.
For Appellant: Major Benjamin H. DeYoung, USAF; Major Eshawn R.
Rawlley, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Brian
E. Flanagan, USAF; Major John P. Patera, USAF; Mary Ellen Payne,
Esquire.
Before JOHNSON, KEY, and MEGINLEY, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as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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PER CURIAM:
A special court-martial composed of a military judge alone convicted Appel-
lant, in accordance with his pleas, of one specification of wrongful use of cocaine
on divers occasions and one specification of wrongful use of 3,4-methylenediox-
United States v. Calloway, No. ACM S32509 (f rev)
ymethamphetamine in violation of Article 112a, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 912a.* The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 30 days, hard labor without confine-
ment for 30 days, reduction to the grade of E-2, and a reprimand. The conven-
ing authority approved the sentence with the exception of hard labor without
confinement.
Upon this court’s initial review, we excepted, set aside, and dismissed with
prejudice certain language from Specification 1 of the Charge; substituted
other language therefor; set aside the sentence; and authorized a rehearing on
the sentence. United States v. Calloway, No. ACM S32509,
2019 CCA LEXIS
400, at *44 (A.F. Ct. Crim. App. 11 Oct. 2019) (unpub. op.).
On remand, the convening authority issued an order dated 4 May 2020
which acknowledged this court’s decree, and stated that a rehearing on the
sentence was “found to be impracticable.” The order then announced that the
“findings of guilty as promulgated” in the original promulgating order were
“approved,” and that the convening authority “impose[d] a sentence of no pun-
ishment.” The record was re-docketed with this court, and on 22 February
2021, Appellant through counsel submitted this case for review on its merits
without additional assignments of error. On 1 June 2021, this court issued an
order to the Government to show good cause as to why the record should not
be returned to the convening authority for correction of the action. After re-
ceiving the Government’s response, on 10 August 2021, this court returned the
record to The Judge Advocate General for remand to the convening authority
because the convening authority’s 4 May 2020 action purporting to approve the
original findings was “not only erroneous and ultra vires, but confusing and
misleading.” United States v. Calloway, No. ACM S32509 (f rev),
2021 CCA
LEXIS 407, at *5 (A.F. Ct. Crim. App. 10 Aug. 2021) (order).
Following the additional remand, on 13 September 2021, the convening au-
thority issued an order which again stated a rehearing on the sentence was
found to be impracticable. The convening authority therefore “approve[d] a
sentence of no punishment.” See Rule for Courts-Martial 1107(e)(2)(C)(iii).
The record has again been re-docketed with this court, and after receiving
eight enlargements of time, on 25 July 2022, Appellant has again submitted
the case for review without additional assignments of error.
The approved findings, as modified by this court’s prior opinion, and the
approved sentence of no punishment are correct in law and fact, and no error
materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a)
* All references in this opinion to the UCMJ and Rules for Courts-Martial are to the
Manual for Courts-Martial, United States (2016 ed.).
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United States v. Calloway, No. ACM S32509 (f rev)
and 66(c), Uniform Code of Military Justice,
10 U.S.C. §§ 859(a), 866(c). Ac-
cordingly, the approved findings, as modified, and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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