United States v. Kubiak

**CORRECTED COPY – DESTROY ALL OTHERS**
UNITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32659 (f rev)
________________________
UNITED STATES
Appellee
v.
Brett D. KUBIAK
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 8 February 2021
________________________
Military Judge: Jefferson B. Brown.
Sentence: Sentence adjudged 3 July 2020 by SpCM convened at Schriever Air
Force Base, Colorado. Sentence entered by military judge on 18 July 2020 and
reentered on 23 November 2020: Bad-conduct discharge, confinement for 6
months, and reduction to E-1.
For Appellant: Lieutenant Colonel Lance J. Wood, USAF.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
PER CURIAM:
A special court-martial found Appellant guilty, in accordance with his
pleas, of one specification of wrongful use of cocaine and three specifications of
wrongful use of methamphetamine, both in violation of Article 112a, Uniform
United States v. Kubiak, No. ACM S32659 (f rev)
Code of Military Justice (UCMJ), 10 U.S.C. § 912a, and three specifications of
incapacitation for duty, in violation of Article 112, UCMJ, 10 U.S.C. § 912. 1 A
panel consisting of officer and enlisted members sentenced Appellant to a bad-
conduct discharge, confinement for six months, and reduction to the grade of
E-1. On 16 July 2020, the convening authority took no action on the findings
or sentence, but waived automatic forfeitures at Appellant’s request for the
benefit of his dependent child. 2 The military judge signed the entry of judgment
(EoJ) on 18 July 2020.
This case was submitted for our review on its merits without assignment
of error. However, in our review under Article 66, UCMJ, 10 U.S.C. § 866, we
identified errors in the EoJ. By order of this court on 9 November 2020, we
remanded Appellant’s record of trial to the Chief Trial Judge, Air Force Trial
Judiciary, for correction of the EoJ. United States v. Kubiak, No. ACM S32659,
2020 CCA LEXIS 408 (A.F. Ct. Crim. App. 9 Nov. 2020) (order); see also Article
66(g), UCMJ, 10 U.S.C. § 866(g); Rule for Courts-Martial 1111(c)(3). On 23 No-
vember 2020, the military judge corrected the EoJ and the record of trial was
returned to this court the same day. We have reviewed the corrections made to
the EoJ and those corrections comply with this court’s order. Appellant did not
submit any additional filings with this court.
Upon further review, the findings and sentence entered are correct in law
and fact, and no error materially prejudicial to Appellant’s substantial rights
occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accord-
ingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
1References in this decision to the Uniform Code of Military Justice (UCMJ) and Rules
for Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
2Appellant was found guilty of charges and specifications that alleged the commission
of offenses on or after 1 January 2019. Articles 60a and 60b, UCMJ, 10 U.S.C. §§ 860a,
860b, and Rules for Courts-Martial 1109 and 1110 (2019 MCM), applied to the conven-
ing authority’s decision on action. See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. at
9890 (8 Mar. 2018).
2