United States v. Withee

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32357 (f rev)
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UNITED STATES
Appellee
v.
Brandon A. WITHEE
Airman First Class (E-3), U.S. Air Force, Appellant
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Upon further review
Decided 11 July 2017
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Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 45 days, and
reduction to E-1. Sentence adjudged 20 October 2015 by SpCM convened
at Joint Base Lewis–McChord, Washington.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen
Payne, USAF; Major Andre L. Pennington, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA 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This is an unpublished opinion and, as such, does not serve as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 18.4.
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United States v. Withee, No. ACM S32357 (f rev)
JOHNSON, Senior Judge:
A special court-martial composed of a military judge found Appellant guilty
in accordance with his pleas of one specification of wrongfully using 3,4 meth-
ylenedioxymethamphetamine (MDMA) on divers occasions and one specifica-
tion of wrongfully using psilocybin (mushrooms) on divers occasions, both in
violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 912a. The court-martial sentenced Appellant to a bad-conduct discharge, con-
finement for 45 days, and reduction to E-1. The convening authority approved
the sentence as adjudged but deferred Appellant’s reduction in grade until he
took action on the court-martial and waived the automatic forfeiture of Appel-
lant’s pay pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b, for the benefit of
Appellant’s spouse.
On our initial review pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we found new post-trial processing was required because a term of the pretrial
agreement (PTA) between Appellant and the convening authority required Ap-
pellant to waive his right to submit matters for clemency, in violation of Rule
for Courts-Martial (R.C.M.) 705(c)(1)(B). United States v. Withee, No. ACM
S32357, 2017 CCA LEXIS 103, at *13 (A.F. Ct. Crim. App. 15 Feb. 2017). Ac-
cordingly, the record of trial was returned to the convening authority and Ap-
pellant was afforded the opportunity he was previously denied to submit mat-
ters to the convening authority in accordance with R.C.M. 1105. Having con-
sidered Appellant’s submission, the convening authority again approved the
sentence as adjudged. The case is now before us once more for Article 66(c)
review.
Appellant now raises an additional assignment of error: Whether a new
action is warranted because the convening authority’s second action gave force
and effect to the void original action. We find a third action is not required, and
we affirm.
I. BACKGROUND
Our original opinion in Appellant’s case included the following decretal lan-
guage:
Paragraph 2.g. of the pretrial agreement between Appellant and
the convening authority is void. The record of trial is returned to
The Judge Advocate General for remand to the convening au-
thority for new post-trial processing consistent with this opinion.
Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the record
of trial will be returned to this court for completion of appellate
review under Article 66, UCMJ, 10 U.S.C. § 866.
Withee, unpub. op. at *13–14.
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United States v. Withee, No. ACM S32357 (f rev)
Appellant’s case was remanded to the convening authority on 17 March
2017. On 3 April 2017, the convening authority’s staff judge advocate (SJA)
prepared a second addendum to the original staff judge advocate’s recommen-
dation (SJAR). This second addendum summarized the procedural history of
the case, explained the need for a new action, and recommended the convening
authority once again approve the sentence as adjudged. The second addendum
and its attachments were served on Appellant and his new area defense coun-
sel (ADC) on 3 and 4 April 2017, respectively. On 12 April 2017, Appellant’s
ADC submitted a clemency request on his behalf, requesting the convening
authority disapprove the adjudged confinement. In addition, Appellant’s ADC
contended that because this court invalidated the original convening authority
action, Appellant’s reduction in rank—which had been deferred until action—
was never effective, entitling him to back pay and interest for the difference in
pay between his original and reduced ranks.
The SJA provided the convening authority a third addendum to the SJAR
on 14 April 2017 which, inter alia, again recommended approving the findings
and sentence as adjudged. On 17 April 2017, the convening authority issued a
new action which read as follows:
In the case of [Appellant] . . . the record of trial having been re-
turned by the Air Force Court of Criminal Appeals with direction
that a new action be accomplished, the action taken by me on 9
November 2015, is withdrawn, and [the promulgating order] is
rescinded and the following is substituted for the original action:
In the case of [Appellant] . . . , the entire sentence is approved
and, except for the bad conduct discharge, will be executed. The
term of confinement having been served, no place of confinement
is designated. Pursuant to Article 57, Section (a)(2), [UCMJ], re-
duction to the grade of E-1 was deferred from 28 October 2015
until 9 November 2015. Pursuant to Article 58, Section (b),
[UCMJ], $1,292.00 pay per month of the mandatory forfeitures
were waived for a period of 6 months or release from confine-
ment, whichever is sooner, with the waiver commencing on 28
October 2015. The $1,292.00 pay per month was directed to be
paid to [Appellant’s spouse] for the benefit of herself. Unless
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United States v. Withee, No. ACM S32357 (f rev)
competent authority otherwise directs, [Appellant] will be re-
quired, under Article 76a, UCMJ, to take leave pending comple-
tion of appellate review. (Emphasis added.) *
II. DISCUSSION
A. Law
Proper completion of post-trial processing is a question of law which this
court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004). If we find error, Appellant must nevertheless make some
“colorable showing of possible prejudice” to his opportunity to secure clemency
from the convening authority in order to secure relief. United States v. LeBlanc,
74 M.J. 650, 660 (C.A.A.F. 2015) (quoting United States v. Scalo, 60 M.J. 435,
436–37 (C.A.A.F. 2005)).
R.C.M. 1107(f)(2) provides in pertinent part: “When so directed by a higher
reviewing authority or by the Judge Advocate General, the convening author-
ity shall modify any incomplete, ambiguous, void, or inaccurate action noted in
the review of a record of trial under Article[ ] . . . 66 . . . . The convening au-
thority shall personally sign any supplementary or corrective action.”
Article 57(a), UCMJ, provides in part:
(1) Any forfeiture of pay or allowances or reduction in grade that
is included in a sentence of a court-martial takes effect on the
earlier of—
(A) the date that is 14 days after the date on which the sen-
tence is adjudged; or
(B) the date on which the sentence is approved by the con-
vening authority.
(2) On application by an accused, the convening authority may
defer a forfeiture of pay or allowances or reduction in grade that
would otherwise become effective under paragraph (1)(A) until
the date on which the sentence is approved by the convening au-
thority. Such a deferment may be rescinded at any time by the
convening authority.
*The reference to Article 58(b), UCMJ, is evidently a typographical error. Article 58(b)
relates to the execution of a sentence to confinement that involves hard labor. 10 U.S.C.
§ 858(b). Presumably, the intent was to reference Article 58b(b), UCMJ, which enables
a convening authority to waive automatic forfeiture of pay required by Article 58b(a)
for the benefit of an accused’s dependent family members. 10 U.S.C. § 858b.
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United States v. Withee, No. ACM S32357 (f rev)
10 U.S.C. § 857(a).
Article 58b(a), UCMJ, provides, inter alia, that a special court-martial sen-
tence that includes a bad-conduct discharge and confinement for less than six
months results in a forfeiture of two-thirds of the accused’s pay during the pe-
riod of confinement. Such forfeitures are subject to deferral by the convening
authority as provided in Article 57(a). 10 U.S.C. § 858b(a).
Article 76a, UCMJ, provides that under regulations prescribed by the Sec-
retary concerned, an accused whose sentence includes an unsuspended puni-
tive discharge may be required to take leave pending completion of the appel-
late review of his court-martial, effective on the date the convening authority
takes action or at any time thereafter. 10 U.S.C. § 876a.
B. Analysis
Appellant now requests this court order yet another post-trial process “with
instructions that Appellant can only be placed on involuntary leave upon law-
ful approval of his sentence, consistent with Article 76a, UCMJ.” Essentially,
Appellant argues this court’s prior ruling voided and set aside the convening
authority’s original action. In Appellant’s view, the elimination of the action
had several significant effects. First, it extended the deferment of his reduction
in rank from 9 November 2015, the date of the original action, until a valid,
final action is taken. Similarly, pursuant to Article 76a, UCMJ, it delayed the
effective date of his involuntary appellate leave. Furthermore, Appellant con-
tends yet another action is required because the convening authority’s second
action on 17 April 2017 improperly gave effect to the void original action by,
for example, purporting to “withdraw” the original action and to limit the pe-
riod of deferred reduction from 28 October 2015 until 9 November 2015. We
are not persuaded a new action is required.
First, we note that although our previous decision in this case struck the
improper PTA term and directed a new post-trial process, it did not expressly
void or set aside the original action. Certainly, the original action would be,
and was, replaced in the course of the new post-trial process. However, Appel-
lant has identified no authority for the proposition that our ruling immediately
rendered the original action completely bereft of legal effect.
Second, R.C.M. 1107(f)(2) provides that a convening authority may “mod-
ify” even a “void” action when so directed by a higher reviewing authority, such
as this court. “Modification” implies the continued existence of the thing being
modified. Thus the language of the rule undermines Appellant’s argument that
our prior ruling instantaneously nullified the original action.
Third, with respect to the deferred reduction in rank, Article 57(a)(2) pro-
vides the convening authority may rescind the deferment “at any time.” The
record indicates that when the convening authority granted the deferment,
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United States v. Withee, No. ACM S32357 (f rev)
when he took action for the first time, and when he took action for the second
time, at each point the convening authority intended for the deferment to last
only until the date of his original action, 9 November 2015.
Consequently, we are not persuaded the convening authority’s 17 April
2017 action is erroneous or that a third action is required.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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