United States v. Finco

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32603
________________________
UNITED STATES
Appellee
v.
Christopher P. FINCO
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 27 July 2020
________________________
Military Judge: Christopher M. Schumann.
Sentence: Sentence adjudged on 7 June 2019 by SpCM convened at Nel-
lis Air Force Base, Nevada. Sentence entered by military judge on 26
June 2019: Bad-conduct discharge, confinement for 5 months, reduction
to E-1, and a reprimand.
For Appellant: Major Stuart J. Anderson, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Senior Judge LEWIS delivered the opinion of the court, in which Senior
Judge MINK and Judge D. JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
LEWIS, Senior Judge:
United States v. Finco, No. ACM S32603
Appellant was convicted, in accordance with his pleas and pursuant to a
pretrial agreement (PTA), of one specification of signing a false official docu-
ment, one specification of making a false official statement, one specification
of wrongful use of marijuana, and one specification of wrongful possession of
marijuana, in violation of Articles 107 and 112a, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 907, 912a. 1,2
A military judge sitting alone sentenced Appellant to a bad-conduct dis-
charge, confinement for five months, reduction to the grade of E-1, and a rep-
rimand. The adjudged confinement was the same amount as the PTA’s confine-
ment cap. The military judge signed the Statement of Trial Results (STR) the
same day that court adjourned. 3 After reviewing Appellant’s clemency matters,
the convening authority signed a decision memorandum which stated, “I take
no action on the sentence of this case.” Following this statement, the decision
memorandum included a reprimand of Appellant by the convening authority. 4
See Rule for Courts-Martial (R.C.M.) 1003(b)(1).
1 Unless otherwise noted, references to the punitive articles of the Uniform Code of
Military Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016
ed.) (2016 MCM). Unless otherwise noted, all other references to the UCMJ and to the
Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States
(2019 ed.).
2Per the PTA, the convening authority withdrew and dismissed, with prejudice, one
specification of wrongful distribution of marijuana, an alleged violation of Article 112a,
UCMJ.
3 The STR was inserted into the record of trial in accordance with R.C.M. 1101(a). This
rule lists a number of required contents, including inter alia “the command by which
[the court-martial] was convened.” R.C.M. 1101(a)(3). The STR in this case included
most of the required contents, and it indicated the squadron and major command to
which Appellant was assigned, but it omitted the command which convened the court-
martial. See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521,
at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (unpub. op.). We permit correction of the
STR in our decretal paragraph.
4 The text of the reprimand was
You are hereby reprimanded! Using and possessing drugs while repre-
senting the Air Force is inexcusable and disgraceful. Integrity first is
an Air Force standard and a moral standard you have failed to live by
when you made a false official statement and signed a document in
which you made another false official statement. Your behavior has no
place in the military.
2
United States v. Finco, No. ACM S32603
The same day the convening authority signed his decision memorandum,
the military judge signed the entry of judgment (EoJ). 5 See R.C.M. 1111(b).
The signed EoJ contains the following information on the sentence: “Punitive
Discharge: Bad Conduct Discharge;” “Total Confinement: 5 months;” “Reduc-
tion in Pay Grade: E-1;” and “Reprimand: Yes.” The EoJ does not include the
language of the reprimand from the convening authority’s decision memoran-
dum, but the decision memorandum is included as Attachment 2 to the EoJ.
Appellant raises two assignments of error on appeal: (1) whether the mili-
tary judge’s failure to include the text of the reprimand in the EoJ requires
disapproval of a portion of the sentence; and (2) whether his sentence to a bad-
conduct discharge is an inappropriately severe sentence. 6 Additionally, we con-
sider whether the convening authority’s decision memorandum contains error
when the convening authority purported to take no action on the sentence and
Appellant was convicted of an offense committed prior to 1 January 2019.
We find the convening authority’s decision memorandum contains error
and that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appro-
priate. 7 Given our remand, we do not reach Appellant’s second assignment of
error, sentence severity.
I. BACKGROUND
Appellant purchased marijuana and marijuana edible products more than
50 times from a local Las Vegas dispensary over an eight-month period of time
5The EoJ is incorrectly dated 7 June 2019. The military judge’s electronic signature
shows he entered judgment on 26 June 2019.
6Appellant personally asserts the second issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
7 We also considered whether the original record of trial required a certificate of cor-
rection under R.C.M. 1112(d)(2) to correct potential defects. These potential defects
include (1) a character statement of Master Sergeant CM which is contained in the
defense exhibits even though it was not offered or admitted into evidence; (2) no de-
fense exhibits were properly marked; (3) one appellate exhibit is not properly marked;
and (4) the court reporter’s index of exhibits does not list all the appellate exhibits. We
are satisfied the record of trial is complete under Article 54, UCMJ, 10 U.S.C. § 854,
and R.C.M. 1112(b). Although defects may be ordered corrected, this process is not
mandatory as a “superior competent authority may return a record of trial to the mil-
itary judge for correction under this rule.” See R.C.M. 1112(d)(2) (emphasis added). We
decline to order a certificate of correction.
3
United States v. Finco, No. ACM S32603
which began on 1 November 2017. His total purchases exceeded $2,500.00. Ap-
pellant smoked most of the marijuana and consumed most of the edibles that
he purchased from this dispensary.
In July 2018, Appellant’s good friend, Airman First Class (A1C) JJ, was
interviewed by agents from the Air Force Office of Special Investigations
(AFOSI) and confessed to smoking marijuana with Appellant. A1C JJ told the
AFOSI agents that he and Appellant both obtained the marijuana from this
particular dispensary. Later A1C JJ told Appellant that AFOSI may want to
speak to Appellant. Upon learning this information, Appellant disposed of his
marijuana pipe and the marijuana he still had in his possession. Appellant’s
hiatus from marijuana lasted only a few weeks. By 8 August 2018, Appellant
found a new dispensary, made online purchases of several marijuana products,
and resumed smoking marijuana.
On 14 August 2018, two AFOSI agents interviewed Appellant. Appellant
waived his right to counsel and his right to remain silent, and agreed to answer
the agents’ questions. 8 During the interview, Appellant made several oral false
statements. He denied smoking marijuana, a statement he knew was false
when he made it. He also denied using marijuana with A1C JJ, another state-
ment that he knew was false at the time he made it.
After his face-to-face interview with the agents, Appellant agreed to make
a written statement. He wrote: “I have purchased for others but have not
smoked.” This statement was false because Appellant had actually used mari-
juana “more than a few dozen times.” After taking an oath, Appellant signed
his written statement, which contained the above false statement.
AFOSI agents conducted searches of Appellant’s cellphone, vehicle, and
residence. In those searches, the AFOSI agents found pre-rolled marijuana cig-
arettes, marijuana paraphernalia, and marijuana dispensary receipts. Appel-
lant provided a urine sample which tested positive for tetrahydrocannabinol
(THC), the metabolite of marijuana, at a level of 60 nanograms per milliliter
(ng/mL), above the Department of Defense cutoff level of 15 ng/mL.
II. DISCUSSION
There are two post-trial issues to address. We take them up in this order:
(1) the convening authority decision memorandum which purported to take no
action on the sentence; and (2) the EoJ’s missing reprimand language.
8At trial, Appellant explained to the military judge that he “originally requested” coun-
sel, but then “waived it.” The military judge confirmed with Appellant that he “ulti-
mately waived” his right to have a lawyer present and agreed to answer questions.
4
United States v. Finco, No. ACM S32603
A. Additional Background
1. Convening Authority Decision Memorandum
On 30 April 2020, we ordered the Government to show cause as to why the
record of trial should not be returned to The Judge Advocate General for re-
mand to the convening authority to take action on the sentence and for a mili-
tary judge to modify the EoJ consistent with the purposes of the remand.
The Government submitted a timely response on 30 May 2020 and argued
a remand was not required and urged us to resolve the issue ourselves. 9 The
Government emphasized several points: (1) our court has jurisdiction; (2) the
convening authority’s decision to take “no action” can reasonably be inter-
preted as the convening authority granting no relief and implicitly approving
the remainder of the sentence; and (3) the inclusion of the reprimand language
supports the implicit approval of the sentence. The Government acknowledges
we may disagree with their implicit approval argument but suggests that we
should still modify the EoJ ourselves under R.C.M. 1111(c)(2). If we decline to
modify the EoJ ourselves, the Government argues that our remand should go
to the military judge and not the convening authority. The Government asserts
the military judge may then use the post-trial motion process outlined in
R.C.M. 1104(b)(2)(B) and modify the EoJ accordingly.
2. Missing Reprimand Language
In his first assignment of error, Appellant argues “[t]he [EoJ] must contain
the reprimand adjudged” under R.C.M. 1111(b)(3)(D). He urges us to decline
to affirm the reprimand under our Article 66, UCMJ, 10 U.S.C. § 866, authority
because the Government “has already had two chances to comply with the rule”
because it “drafted a deficient judgment and then failed to check its work.”
Appellant argues that if we permit correction of the error we “would only en-
courage inattentiveness in post-trial processing without ensuring any signifi-
cant interest of justice.” In Appellant’s view, the reprimand “provides little of
the overall rehabilitation, retribution, or deterrence that might have resulted
from the sentence adjudged.”
The Government’s response is that the reprimand is contained in the EoJ
because the specific language is “in Attachment 2” to the EoJ, the convening
authority’s decision memorandum. The Government acknowledges that we
may not adopt their position that an attachment to the EoJ is sufficient. As a
first alternative, the Government prefers our court to modify the EoJ in the
9Appellant was not required to submit a response to our show-cause order or to answer
the Government’s response. Appellate defense counsel did not file any motions with
the court for leave to file a response or an answer before we issued our opinion.
5
United States v. Finco, No. ACM S32603
performance of our official duties under R.C.M. 1111(c)(2). As a second alter-
native, the Government argues that we could require modification of the EoJ
without additional post-trial processing, like we have done with corrections to
errors in court-martial promulgating orders used in cases referred before 1
January 2019.
B. Law
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 R.C.M. provi-
sion are also questions of law that 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. 2007) (citation omitted).
Executive Order 13,825, § 6(b), mandates the version of Article 60, UCMJ,
10 U.S.C. § 860, “as in effect on the date of the earliest offense of which the
accused was found guilty, shall apply to the convening authority . . . to the ex-
tent that Article 60: (1) requires action by the convening authority on the sen-
tence. . . .” See 2018 Amendments to the Manual for Courts-Martial, United
States, 83 Fed. Reg. 9889, 9890 (1 A.K. Marsh. 2018). The version of Article 60, UCMJ,
in effect on 1 November 2017, stated “[a]ction on the sentence of a court-mar-
tial shall be taken by the convening authority.” 10 U.S.C. § 860(c)(2)(A) (Man-
ual for Courts-Martial, United States, (2016 ed.) (2016 MCM)). “Except as pro-
vided in paragraph (4) [of Article 60(c), UCMJ], the convening authority or an-
other person authorized to act under this section may approve, disapprove,
commute, or suspend the sentence of the court-martial in whole or in part.” 10
U.S.C. § 860(c)(2)(B) (2016 MCM). “Except as provided in subparagraph (B) or
(C) [of Article 60(c)(4)], the convening authority or another person authorized
to act under this section may not disapprove, commute, or suspend in whole or
in part, an adjudged sentence of . . . [a] bad conduct discharge.” 10 U.S.C. §
860(c)(4)(A) (2016 MCM).
R.C.M. 1104(b)(2)(B) states:
A motion to correct an error in the action of the convening au-
thority shall be filed within five days after the party receives the
convening authority’s action. If any post-trial action by the con-
vening authority is incomplete, irregular, or contains error, the
military judge shall—(i) return the action to the convening au-
thority for correction; or (ii) with the agreement of the parties,
correct the action of the convening authority in the entry of judg-
ment.
6
United States v. Finco, No. ACM S32603
A reprimand is an authorized punishment in a court-martial under R.C.M.
1003(b)(1). “A court-martial shall not specify the terms or wording of a repri-
mand.” R.C.M. 1003(b)(1). “A reprimand, if approved, shall be issued, in writ-
ing, by the convening authority.” Id.
“Under regulations prescribed by the Secretary concerned, the military
judge of a general or special court-martial shall enter into the record of trial
the judgment of the court.” R.C.M. 1111(a)(1). “The judgment reflects the result
of the court-martial, as modified by any post-trial actions, rulings, or orders.
The entry of judgment terminates the trial proceedings and initiates the ap-
pellate process.” R.C.M. 1111(a)(2). “If the sentence included a reprimand, the
judgment shall contain the reprimand issued by the convening authority.”
R.C.M. 1111(b)(3)(D) (emphasis added).
“If the Court of Criminal Appeals determines that additional proceedings
are warranted, the Court may order a hearing as may be necessary to address
a substantial issue, subject to such limitations as the Court may direct and
under such regulations as the [P]resident may prescribe.” Article 66(f)(3),
UCMJ, 10 U.S.C. § 866(f)(3). “A Court of Criminal Appeals may order a remand
for additional fact finding, or for other reasons, in order to address a substan-
tial issue on appeal.” R.C.M. 810(f). “A remand under this subsection is gener-
ally not appropriate to determine facts or investigate matters which could,
through a party’s exercise of reasonable diligence, have been investigated or
considered at trial.” Id. “Such orders shall be directed to the Chief Trial Judge.”
Id.
“The Judge Advocate General, the Court of Criminal Appeals, and the
[United States] Court of Appeals for the Armed Forces may modify a judgment
in the performance of their duties and responsibilities.” R.C.M. 1111(c)(2). “If
a case is remanded to a military judge, the military judge may modify the judg-
ment consistent with the purposes of the remand.” R.C.M. 1111(c)(3).
C. Analysis
1. Convening Authority Decision Memorandum
We briefly address our jurisdiction as the Government analyzed it in their
response to our show-cause order. We are a court of limited jurisdiction defined
wholly by statute. United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015). In
this case, we derive our jurisdiction from Article 66(b)(3), UCMJ, which says
“[a] Court of Criminal Appeals shall have jurisdiction over a court-martial in
which the judgment entered into the record under [Article 60c, UCMJ, 10
U.S.C. § 860c] of this title includes a sentence of . . . [a] bad-conduct discharge.”
10 U.S.C. § 866(b)(3). In this case, the EoJ accurately lists a bad-conduct dis-
charge so we are satisfied that we have jurisdiction even if the convening au-
thority failed to take action on the sentence as required by law. The convening
7
United States v. Finco, No. ACM S32603
authority’s decision memorandum does not show any attempt to disapprove
the bad-conduct discharge. 10 Even if the convening authority wanted to take
such an action on the sentence—and we have no evidence that he did—he
lacked that power under the version of Article 60, UCMJ, in effect on 1 Novem-
ber 2017. 10 U.S.C. § 860 (2016 MCM). We are satisfied that we have jurisdic-
tion under Article 66(b)(3), UCMJ.
In a case referred after 1 January 2019 where an accused is found guilty of
a specification for an offense occurring before 1 January 2019, we find the con-
vening authority cannot simultaneously “take no action on the sentence” and
satisfy Exec. Order 13,825, § 6(b)(1), which “requires action by the convening
authority on the sentence.” We decline the Government’s invitation to find the
convening authority intended to implicitly approve the entire sentence ad-
judged. Instead, we need look no further than the plain language of the deci-
sion memorandum and determine that the convening authority erred when he
purported to take no action on the sentence when Exec. Order 13,825, § 6(b)(1),
required him to do so.
We also disagree with the Government that this court should exercise its
authority to modify the EoJ. The Government relies heavily on our sister-ser-
vice court’s decision in United States v. Coffman, 79 M.J. 820 (A. Ct. Crim. App.
2020), which involved a similar issue to the one before us. In Coffman, the
convening authority indicated “N/A” on the section of the “convening authority
action form” for “action on the findings and/or sentence.” Id. at 821. As the
earliest offense conviction date in Coffman was 2 September 2018, and his case
was referred to trial on 26 April 2019, the court found the convening authority
“erred in his noncompliance” with the earlier version of Article 60, UCMJ, in
effect on 2 September 2018 that required action on the sentence. Id. at 822. We
agree with this portion of the decision and its rationale that “indicating ‘N/A’
or stating ‘No Action’ does not constitute taking action in a case.” Id. at 823.
We also agree with the portion of the decision and its rationale which rejected
a challenge to the Army Court of Criminal Appeals’ Article 66(b)(3) jurisdic-
tion. Id. at 822–23. We choose a different path than our sister-service court for
resolving the convening authority’s error. 11
10The convening authority directed Appellant to take leave pending completion of ap-
pellate review under Article 76a, UCMJ, 10 U.S.C. § 876a. This direction is consistent
with Appellant having an unsuspended bad-conduct discharge.
11Our sister-service court found the convening authority’s error was harmless and did
not materially prejudice “appellant’s substantial right to seek clemency.” Coffman,
(Footnote continues on next page)
8
United States v. Finco, No. ACM S32603
In the case before us, Appellant submitted clemency matters which re-
quested his confinement term be further reduced. The convening authority was
under no obligation to do this under the PTA’s terms. We acknowledge the con-
vening authority’s decision memorandum made clear the clemency matters
were considered. This provides some support for the Government’s position on
implicit approval of this portion of the sentence. On the other hand, the lan-
guage used in the decision memorandum indicates no action was taken on the
sentence which can easily be read as a decision was never made. Therefore, we
continue our analysis.
The convening authority’s decision memorandum stated that he consulted
with his staff judge advocate (SJA). We do not know anything about this con-
sultation or whether the SJA gave legal advice during it. It is possible the SJA
gave accurate advice to the convening authority that he had to take action on
the sentence given the date of the earliest offense and the date of referral. We
find it more probable that if the SJA gave advice it would have been consistent
with the convening authority decision memorandum—that the law did not re-
quire the convening authority to take action on the sentence anymore—which
would reflect a clearly erroneous view of the law applicable to Appellant’s case.
As Appellant had an opportunity to address this error with the military judge
after the convening authority signed the decision memorandum, we must de-
termine if Appellant waived or forfeited this issue.
Appellant did not raise a motion under R.C.M. 1104(b)(2)(B) and its five-
day prescribed timeframe alleging the convening authority’s action was incom-
plete, irregular, or contained error. Under the prior version of Article 66,
UCMJ, we had the discretion to determine whether to apply waiver or forfei-
ture in a particular case, or to pierce waiver or forfeiture in order to correct a
legal error. 10 U.S.C. § 860 (2016 MCM); see United States v. Lee, No. ACM
39531, 2020 CCA LEXIS 61, at *17 (A.F. Ct. Crim. App. 26 Feb. 2020) (unpub.
op.) (citations omitted). We find that our discretion on this matter has not
changed despite congressional modifications to the version of Article 66,
UCMJ, which applies to this case. Exercising that discretion, we find that Ap-
pellant’s failure to file a motion under R.C.M. 1104(b)(2)(B) forfeited his right
to object to the accuracy of the convening authority’s decision memorandum
absent plain error.
To prevail under a plain error analysis, an appellant must show “(1) there
was an error; (2) [the error] was plain or obvious; and (3) the error materially
79 M.J. at 823. They took corrective action to ensure compliance with a PTA term that
required a reduction in the confinement term. Id. In determining harmlessness, the
court noted inter alia that the appellant waived clemency and the convening authority
received proper legal advice related to his ability to provide clemency. Id.
9
 United States v. Finco, No. ACM S32603
prejudiced a substantial right.” See United States v. LeBlanc, 74 M.J. 650, 660
(A.F. Ct. Crim. App. 2015) (en banc) (quoting United States v. Scalo, 60 M.J.
435, 436 (C.A.A.F. 2005)). We find the decision to take no action on the sen-
tence was a plain or obvious error. We find the threshold of “some colorable
showing of possible prejudice” is still the appropriate standard for an error im-
pacting an appellant’s request for clemency. See id. (quoting Scalo, 60 M.J. at
437). While Appellant has not made a specific claim of prejudice, we find the
low standard of some colorable showing of possible prejudice to be apparent.
Part of the reasoning behind the low threshold is to “avoid undue speculation
as to how certain information might impact the convening authority’s broad
discretion.” Scalo, 60 M.J. at 437. Certainly, the convening authority in this
case had less discretion than was present in Scalo because this convening au-
thority could not disapprove, commute, or suspend the bad-conduct discharge;
however, he retained the power to take those actions with the remainder of the
sentence. If the convening authority failed to take action on the entire sen-
tence—as his memorandum indicates he did—then we are unsure whether he
made a decision on Appellant’s clemency request which was within the conven-
ing authority’s power to grant. Under these circumstances, we find a colorable
showing of possible prejudice and that a remand is the best method to remedy
this error.
We agree with the Government that the remand should be to a military
judge, rather than to the convening authority. It is clear to us that R.C.M.
1104(b)(2)(B) envisioned the military judge overseeing the process of incom-
plete, irregular, or erroneous post-trial actions by the convening authority
when discovered immediately after trial. We see no reason why that procedure
could not be used as a framework by a military judge during a remand. We find
a remand in this case to be necessary before we can determine whether the
sentence is correct in law and should be approved.
2. Missing Reprimand Language
We disagree with the Government’s first assertion that the EoJ is complete
because the convening authority’s decision memorandum was attached to the
EoJ. The plain language of R.C.M. 1111(b)(3)(D) states that the “judgment
shall contain the reprimand issued by the convening authority.” In this case,
the word “Yes” is what is contained on the EoJ. This one word does not appear
in the reprimand contained in the convening authority’s decision memoran-
dum and so we find the EoJ requires modification to address the missing rep-
rimand language.
We certainly understand the Government’s second point that R.C.M.
1112(c)(2)’s plain language permits us to modify an EoJ in the performance of
our duties and responsibilities. We will not attempt to predict all the future
10
United States v. Finco, No. ACM S32603
circumstances where we might exercise our discretionary authority to modify
an EoJ. For now, we only decline to exercise that authority in this case.
We also decline the Government’s third option that we should complete our
review under Article 66, UCMJ, affirm the findings and sentence, and permit
correction of the EoJ after the fact. Given our resolution of the error in the
convening authority decision memorandum, we find this third option inappro-
priate.
Finally, turning to Appellant’s requested relief—disapproval of the repri-
mand—we also find this not to be the correct remedy. The military judge ad-
judged a reprimand even though the trial counsel did not argue for one to be
part of the adjudged sentence. We also know the convening authority included
a reprimand in his decision memorandum. Under these circumstances, modi-
fication of the EoJ by a military judge is more appropriate than disapproval of
the reprimand by our court.
D. Remand
To address the issue raised by the convening authority’s decision memo-
randum, we use the new statutory remand authority of Article 66(f)(3), UCMJ.
The Military Justice Review Group’s report recommended this new statutory
provision to “expressly provide the authority for the court to remand a case for
additional proceedings that may be necessary to address a substantial issue”
and “would incorporate current practice (i.e., ‘Dubay’[ 12] hearings) and could
include orders to either a convening authority or Chief Trial Judge for delega-
tion to a military judge.” See Office of the General Counsel, Dep’t of Defense,
Report of the Military Justice Review Group Part I: UCMJ Recommendations,
at 611 (22 Dec. 2015), https://www.jag.navy.mil/documents/NJS/MJRG_Re-
port_PartI_22Dec15.pdf.
The plain language of Article 66(f)(3), UCMJ, permits us to order a hearing
as may be necessary to address a substantial issue. We find a substantial issue
existed when the convening authority purported to take no action on the sen-
tence when the law required it. R.C.M. 810(f) cautions that a remand should
not be used for matters which could have been investigated or considered at
trial through a party’s exercise of reasonable diligence. In this case, we see no
single party failing to exercise reasonable diligence as both parties failed to
raise a post-trial motion in this case. We also would have expected the military
judge to wait to sign the EoJ until action was taken on the sentence.
We mention one final source that applies to remands, the Joint Rules for
Appellate Procedure for Courts of Criminal Appeals (JRAP). The JRAP apply
12 United States v. Dubay, 37 C.M.R. 411 (1967).
11
United States v. Finco, No. ACM S32603
to cases docketed with our court on or after 1 January 2019, including Appel-
lant’s case, and are signed by The Judge Advocate General of the Air Force and
his counterparts in the Army, Navy, and Coast Guard. JRAP Rule 29, Article
66(f) Proceedings, provides further explanations of our remand procedures. JT.
CT. CRIM. APP. R. 29. For example, Rule 29(b) addresses whether our court re-
tains jurisdiction on remand or dismisses the appellate proceeding and returns
jurisdiction over the case to the military judge. Rule 29(b)(2) elaborates that
one of the circumstances when terminating appellate jurisdiction may be ap-
propriate is when the case requires corrective action by the trial court to the
judgment. Rule 29(d)(3) also instructs that when we return jurisdiction of a
case to the military judge and dismiss the appellate proceeding, the rules ap-
plicable to the conduct of a post-trial Article 39(a), UCMJ, session shall apply.
These provisions guide our decretal paragraph as we describe the scope of our
remand and the procedures available to the military judge.
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 no action was taken on Appellant’s adjudged sentence as required
by law.
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;
(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 using the pro-
cedural rules for post-trial Article 39(a), UCMJ, sessions; and/or
(4) 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.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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