United States v. Barrick

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32579
________________________
UNITED STATES
Appellee
v.
John T. BARRICK
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 30 September 2020
________________________
Military Judge: Steven J. Grocki.
Sentence: Sentence adjudged 26 February 2019 by SpCM convened at
Nellis Air Force Base, Nevada. Sentence entered by military judge on
19 March 2019: Bad-conduct discharge, confinement for 45 days, forfei-
ture of $1,120.00 pay per month for 2 months, and reduction to E-1.
For Appellant: Lieutenant Colonel R. Davis Younts, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Jessica
L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Judge
MEGINLEY joined. Senior Judge POSCH filed a separate opinion con-
curring in the result.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
RICHARDSON, Judge:
United States v. Barrick, No. ACM S32579
A special court-martial composed of a military judge alone convicted Appel-
lant, in accordance with his pleas pursuant to a pretrial agreement (PTA), of
one specification of going from his appointed place of duty, in violation of Arti-
cle 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; one specifi-
cation of making a false official statement, in violation of Article 107, UCMJ,
10 U.S.C. § 907; and one specification each of wrongfully using psilocybin
mushrooms, cocaine, marijuana, and 3,4-methylenedioxymethamphetamine,
in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. 1,2 The military judge sen-
tenced Appellant to a bad-conduct discharge, confinement for 45 days, forfei-
ture of $1,120.00 pay per month for two months, and reduction to the grade of
E-1. The PTA did not impact the convening authority’s ability to effectuate the
sentence as adjudged; he provided no relief at action with respect to the find-
ings or sentence.
Appellant raises three assignments of error relating to the post-trial pro-
cessing in his case. We consider whether (1) issuance of a corrected copy of the
Statement of Trial Results (STR) invalidates the entry of judgment (EoJ), (2)
failure to identify the command of the convening authority in the STR invali-
dates the EoJ, and (3) a missing appellate exhibit from the record of trial enti-
tles Appellant to sentence appropriateness relief. We also consider the conven-
ing authority’s action with respect to the sentence. We find no error materially
prejudicial to a substantial right of Appellant and affirm the findings and sen-
tence.
I. BACKGROUND
The offenses for which Appellant was found guilty and sentenced occurred
between on or about 1 May 2018 and on or about 9 November 2018. The con-
vening authority referred the charges and specifications for trial by special
court-martial on 15 January 2019. Accordingly, Appellant’s court-martial was
generally subject to the substantive provisions of the UCMJ and sentencing
procedures in effect before 1 January 2019, and procedural provisions of the
Rules for Courts-Martial (R.C.M.) in the 2019 version of the Manual for Courts-
Martial, including rules for post-trial processing. See also Exec. Order 13,825,
83 Fed. Reg. 9889, 9890 (8 Mar. 2018).
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.).
2 The uses of cocaine and marijuana were on divers occasions.
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United States v. Barrick, No. ACM S32579
II. DISCUSSION
A. Decision on Action
Appellant notes in his assignment of error brief, “Here the convening au-
thority took no action and it is reasonable to consider the convening authority’s
decision not to act as the equivalent of action.” We agree. The convening au-
thority’s decision met the requirements of Article 60, UCMJ, 10 U.S.C. § 860(2016 MCM) inasmuch as it required “action” in this case. We find this decision
also complied with the provisions of R.C.M. 1109, requiring convening author-
ity action only when affecting the sentence. In coming to these conclusions, we
note Air Force Instruction 51-201, Administration of Military Justice, Section
13D (18 Jan. 2019), correctly advises convening authorities to grant relief as
circumscribed by the applicable version of Article 60, UCMJ. Additionally, it
advises convening authorities to specify “no action” if not granting relief, which
would include effecting “action” under the applicable version of Article 60,
UCMJ.
In the record, we see no indicia of confusion over, or objection to, this new
way to effect an old rule. The convening authority’s decision to “take no action”
on the findings or sentence is memorialized in his memorandum to the military
judge. The military judge’s subsequent EoJ reflects “all post-trial actions by
the convening authority,” including the de facto approval of the sentence. Nei-
ther party moved for correction of the decision on action or EoJ. See R.C.M.
1104(b)(2)(B), (C). The convening authority’s action to provide no relief was
“clear and unambiguous.” See United States v. Politte, 63 M.J. 24, 25−26
(C.A.A.F. 2006). We disagree with our esteemed colleagues’ opinion in United
States v. Finco, 2020 CCA LEXIS 246, at *15 (A.F. Ct. Crim. App. 2020), which,
under similar facts, found error where the convening authority did “take no
action on the sentence,” and found such error to be plain and obvious. We find
neither error nor cause to return the case to the military judge to resolve “[a]n
allegation of error in the convening authority’s action.” R.C.M. 1104(b)(1)(F).
B. Statement of Trial Results
1. Additional Background
The same day Appellant’s trial concluded on 26 February 2019, the military
judge signed an STR in accordance with R.C.M. 1101(a). The STR was provided
to Appellant, his defense counsel, and the convening authority during post-
trial processing. The Defense submitted clemency matters to the convening au-
thority on 5 March 2019. The court reporter certified the record of trial on
11 March 2019. The convening authority issued his decision on action on
13 March 2019. The military judge signed a corrected copy of the STR, dated
18 March 2019, adding to the summary under “Arraigned Offenses” of the
Specification of Charge II: “and was then known by the said AIRMAN FIRST
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United States v. Barrick, No. ACM S32579
CLASS JOHN T. BARRICK to be so false.” 3 On the same day, the court re-
porter certified a verbatim transcript of the proceedings. On 19 March 2019,
the military judge signed the EoJ. 4 He attached to it the original STR, the con-
vening authority’s decision on action, and the corrected STR. Neither the orig-
inal STR nor the corrected STR identifies the convening authority. The record
was docketed with this court on 1 April 2019.
2. Law
Rule for Courts-Martial 1101(a) lists required contents of an STR, includ-
ing “the command by which [the court-martial] was convened” and “[a]ny ad-
ditional information . . . required under regulations prescribed by the Secre-
tary concerned.” R.C.M. 1101(a)(3), (6).
The EoJ—the judgment of the court-martial entered into the record of
trial—shall include, inter alia, the STR. R.C.M. 1111(b)(4). “The judgment of
the court entered under this rule should provide a complete statement of the
findings and the sentence reflecting the effect of any post-trial modifications.”
Id., Discussion.
3. Analysis
The STR in this case included most of the required contents, and it indi-
cated the squadron and major command to which Appellant was assigned, but
it omitted the command that 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) (per curiam) (unpub. op.). We disagree with Appellant
that this omission renders the EoJ invalid. We find no colorable showing of
possible prejudice from this minor omission, see United States v. Scalo, 60 M.J.
435, 436–37 (C.A.A.F. 2005) (citing United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)), and find it unnecessary to direct corrective action as we are
authorized to do by R.C.M. 1112(d)(2).
Appellant argues that the original STR in this case formed the basis for the
EoJ, which rendered the EoJ defective and invalid. This argument has no basis
in fact. The STR was corrected on 18 March 2019, one day before the EoJ was
signed. The EoJ includes as attachments both the original and corrected STR.
Related to this argument, Appellant avers simply, “Further, the Appellant
and his counsel were not provided a new opportunity to submit matters after
the issuance of a ‘corrected copy’ of the STR in this case.” Appellant cites no
3These words were in the charged specification. Although the Government concedes
error in the original STR, we need not decide that issue to complete our review.
4While the first page of the EoJ indicates the date “15 March 2019,” on the second
page the military judge specifically states he signed the EoJ on 19 March 2019.
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United States v. Barrick, No. ACM S32579
basis in law for error and articulates no prejudice. Ourselves finding none, we
decline to grant relief. Appellant also urges us to provide relief for an incorrect
Defense Incident-Based Reporting System code on the EoJ. Like our sister
court, we find no basis in law to provide relief for this alleged administrative
error. See United States v. Baratta, 77 M.J. 691, 695 (N.M. Ct. Crim. App.
2018).
C. Missing Appellate Exhibit
1. Additional Background
The military judge ascertained trial defense counsel provided Appellant his
post-trial and appellate rights orally and in writing, “including the rights con-
tained in Rule for Courts-Martial 1010.” 5 Appellant and trial defense counsel
affirmed their signatures were on the document. The military judge ensured
Appellant understood his rights and had no questions. He directed the written
rights advisement be marked Appellate Exhibit V; trial defense counsel com-
plied, handing the ten-page original document to the court reporter and a work-
ing copy to the military judge. The record of trial does not contain this written
advisement of post-trial and appellate rights.
2. Law
Whether a record of trial is complete is a question of law we review de novo.
United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014) (citation omitted).
Article 54(c)(2), UCMJ, 10 U.S.C. § 854(c)(2), requires a “complete record of the
proceedings and testimony” to be prepared for any court-martial resulting in a
punitive discharge. The implementing rule states the record of trial shall in-
clude, inter alia, any appellate exhibits. R.C.M. 1112(b)(6).
“[T]he threshold question is ‘whether the omitted material was substan-
tial,’ either qualitatively or quantitatively.” Davenport, 73 M.J. at 377 (quoting
United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982)) (additional citation omit-
ted). Each case is analyzed individually to decide whether an omission is sub-
stantial. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). “A sub-
stantial omission renders a record of trial incomplete and raises a presumption
of prejudice that the Government must rebut.” United States v. Henry, 53 M.J.
108, 111 (C.A.A.F. 2000) (citing United States v. McCullah, 11 M.J. 234, 237
(C.M.A. 1981)) (additional citations omitted). “Insubstantial omissions from a
record of trial do not raise a presumption of prejudice or affect that record’s
characterization as a complete one.” Id. A record may be “substantially com-
plete” even if an exhibit is missing. See, e.g., United States v. Lovely, 73 M.J.
5 “The written advice to the accused concerning post-trial and appellate rights shall be
signed by the accused and defense counsel and inserted in the record of trial as an
appellate exhibit.” R.C.M. 1010.
5
United States v. Barrick, No. ACM S32579
658, 676 (A.F. Ct. Crim. App. 2014) (missing videos played by defense in sen-
tencing proceedings did not render record incomplete).
3. Analysis
The omission of Appellate Exhibit V from the record of trial in this case is
insubstantial. Thus, we conclude the record is substantially complete. Article
54(c)(2), UCMJ. Furthermore, Appellant has not articulated prejudice from the
omission, and we find none. In light of our determination that the record is
complete, we are not persuaded by Appellant’s novel argument that the action-
to-docketing deadline requires that we grant prospective relief under United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), premised as it is on the suppo-
sition that the record is not “complete” as a matter of law until the missing
appellate exhibit is included.
III. CONCLUSION
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). Accordingly, the findings and
sentence are AFFIRMED.
POSCH, Senior Judge (concurring in the result):
I agree with my esteemed colleagues in their resolution of Appellant’s as-
signments of error in regard to the issues Appellant raises about the post-trial
processing of his case. The convening authority granted no relief to Appellant
when he signed his decision memorandum on 13 March 2019, taking no action
on the adjudged sentence. Still, Appellant intimates in his brief to this court
that the convening authority may have erred when he stated in his decision
memorandum, “I take no action on the sentence in this case.” Implicit to Ap-
pellant’s concern is that the convening authority may have been required by
Article 60, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860, as it
appears in the Manual for Courts-Martial, United States (2016 ed.) (2016
MCM), to “approve” the sentence, and that failure to take action to approve his
sentence was error. Even so, Appellant in some measure concedes that “it is
reasonable to consider the convening authority’s decision not to act as the
equivalent of action” when a convening authority determines sentencing relief
is not warranted.
I write separately for two reasons. First, to explain that the convening au-
thority’s decision to take “no action” on Appellant’s adjudged sentence fully
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United States v. Barrick, No. ACM S32579
complied with the Military Justice Act of 2016 (MJA), 1 as implemented by the
President effective on 1 January 2019 in Exec. Order 13,825, §§ 3(a), 5, and
6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018). Second, and related, I make clear
a difference of opinion with a recent decision by this court, United States v.
Finco, No. ACM S32603, 2020 CCA LEXIS 246 (A.F. Ct. Crim. App. 27 Jul.
2020) (unpub. op.), that reached the opposite conclusion in a case similar to
Appellant’s.
Resolution that the convening authority’s decision was correct in law turns
on understanding several provisions of the President’s implementation of Ar-
ticle 60, UCMJ, 10 U.S.C. § 860, in the Manual for Courts-Martial, United
States (2019 ed.) (2019 MCM), above all, Exec. Order 13,825, §§ 5 and 6(b), 83
Fed. Reg. at 9890. Because the convening authority’s decision memorandum
was altogether in accordance with the President’s implementation and the law,
the convening authority did not err by taking “no action” on the sentence that
was adjudged in Appellant’s case.
A. Amendment to Article 60, UCMJ, in the MJA
Appellant was convicted of offenses he committed after 24 June 2014,
which is the effective date of Article 60, UCMJ, in the 2016 MCM. 2 In courts-
martial for offenses occurring on and after this date, and before implementa-
tion of the MJA, a convening authority was required to take action to effectuate
the sentence in every case. 3 See Article 60(c)(2)(A), 10 U.S.C. § 860(c)(2)(A)
(2016 MCM) (“Action on the sentence of a court-martial shall be taken by the
convening authority . . . .”).
1See National Defense Authorization Act for Fiscal Year 2017 (FY17 NDAA), Pub. L.
No. 114-328, §§ 5001–5542 (23 Dec. 2016).
2See National Defense Authorization Act for Fiscal Year 2014 (FY14 NDAA), Pub. L.
No. 113-66, § 1702, 127 Stat. 672, 958 (26 Dec. 2013) (establishing 24 June 2014 as the
effective date for Article 60, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860,
as it appears in the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)).
3 Before the effective date of the Military Justice Act of 2016 (MJA), a convening au-
thority was required to either approve the sentence of the court-martial, or, subject to
limits on that authority as provided by law, disapprove, commute, or suspend the sen-
tence, in whole or in part. See, e.g., Article 60(c)(2) and (c)(4), UCMJ, 10 U.S.C.
§ 860(c)(2), (c)(4) (2016 MCM). Importantly, and as later discussed in this opinion, a
convening authority has the statutory authority pursuant to Article 60 in the 2016
MCM to take action pursuant to the terms of a pre-trial agreement with an accused.
See, e.g., Article 60(c)(4)(C), UCMJ, 10 U.S.C. § 860(c)(4)(C) (2016 MCM). No similar
power conferred on a convening authority is found in the Manual for Courts-Martial,
United States (2019 ed.) (2019 MCM).
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United States v. Barrick, No. ACM S32579
The MJA changed this requirement when Congress amended Article 60,
UCMJ, as it appears in the 2019 MCM 4 to require “action” on the sentence if
and only if a convening authority intends to grant relief by reducing, commut-
ing, suspending, or in some cases, by disapproving a sentence, in whole or in
part, as allowed for by law. 5 In accordance with the amended Article 60 in the
2019 MCM, a convening authority’s formal refusal to act, that is, declination
to act by taking “no action” on the sentence, effectuates the adjudged sentence
in the same way that a convening authority once approved the sentence with-
out modification under the former Article 60 (2016 MCM). This change is per-
haps most clearly stated in Article 60a(f)(2), UCMJ, in the 2019 MCM by the
conditional language: “If, under this section, the convening authority reduces,
commutes, or suspends the sentence, the decision of the convening authority
shall include a written explanation of the reasons for such action.” 6 10 U.S.C.
§ 860a(f)(2) (emphasis added). After the convening authority’s decision, the
judgment of the court-martial consists of the adjudged sentence listed in the
Statement of Trial Results as modified by “any post-trial action by the conven-
ing authority.” Article 60c(a)(1)(B)(i), 10 U.S.C. § 860c(a)(1)(B)(i) (2019 MCM)
(emphasis added).
For many years, military justice practitioners have been accustomed to
thinking of “action” as effectuating the sentence—whether by granting relief
or not—as this term appears in editions of the Manual for Courts-Martial be-
fore the 2019 MCM. This legacy and more comprehensive definition gave way
to a more specific meaning in the MJA and the President’s implementation of
the Act. Although undefined, usage of the term “action” in the 2019 MCM re-
veals it to mean “granting relief” in each and every case that a convening au-
thority decides to take action on the sentence in a particular case. Conversely,
in accordance with Article 60 in the 2019 MCM, a convening authority’s “no
4 The amendment to Article 60, UCMJ, was among the many changes to the UCMJ
that Congress directed in the MJA that were subsequently expanded to four articles
and codified in the 2019 MCM. Unless otherwise noted in this opinion, all references
to the convening authority’s powers and responsibilities in Article 60, UCMJ, in the
2019 MCM are to Articles 60, 60a, 60b, and 60c, UCMJ, 10 U.S.C. §§ 860, 860a, 860b,
860c, collectively.
5 See Articles 60a and 60b, UCMJ, 10 U.S.C. §§ 860a, 860b (2019 MCM). In certain
cases the convening authority may also act to “disapprove” a sentence in whole or in
part. See Article 60b(a)(1)(C)–(F), UCMJ, 10 U.S.C. § 860b(a)(1)(C)–(F) (2019 MCM).
6 See also Article 60a(a)(1)(A), UCMJ, 10 U.S.C. § 860a(a)(1)(A) (2019 MCM) (subject
to limitations, a convening authority “may act on the sentence of the court-martial”
(emphasis added)).
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United States v. Barrick, No. ACM S32579
action” decision on the sentence results in an entry of judgment (EoJ) that re-
flects the sentence adjudged by the court-martial without modification, as it
did here.
In Appellant’s case, the language of the convening authority decision to
take “no action” on the adjudged sentence is synonymous with not granting
relief. By deciding to take no action the convening authority followed the post-
trial procedures that Congress directed in the MJA, notably Article 60 in the
2019 MCM, and not the legacy procedures in Article 60 in the 2016 MCM. As
a result, the question of whether the convening authority’s decision memoran-
dum contains error turns on the post-trial procedures that Congress and the
President intended the convening authority to follow. Answering this question
requires review of the convening authority’s decision in light of the President’s
implementation of the MJA. If taking “no action” complied with the implemen-
tation of the Act, as I conclude that it did, then there is no error to evaluate for
harmlessness or to correct on appeal or by remand to the military judge.
B. Implementation of the MJA: Executive Order 13,825
In the MJA, Congress assigned to the President considerable discretion to
set the effective date of the amendments to the UCMJ and to prescribe the
regulations implementing those amendments. 7 However, that discretion was
bounded by a date by which implementation must be completed. With few lim-
itations, Congress directed that the implementation “shall take effect” no later
than 1 January 2019. 8 The President then exercised this authority by issuing
Executive Order 13,825 and new Rules for Courts-Martial (R.C.M.) that are
listed in Annex 2 of the Executive Order and that were subsequently promul-
gated in Part II of the 2019 MCM. In accordance with the direction given by
Congress to the President, Exec. Order 13,825, § 5, effected these rules for
7See FY17 NDAA, Pub. L. No. 114-328, § 5542; see also Article 36(a), UCMJ, 10 U.S.C.
§ 836(a), in the 2016 and 2019 MCMs (President may prescribe regulations for post-
trial procedures); United States v. Bartlett, 66 M.J. 426, 428 (C.A.A.F. 2008) (the au-
thority to prescribe regulations prevails “insofar as such regulations are not incon-
sistent with the UCMJ”).
8 The FY17 NDAA, including the MJA that was codified in Division E of the NDAA,
was enacted on 23 December 2016. “Except as otherwise provided in this division, the
amendments made by this division shall take effect on the date designated by the Pres-
ident, which date shall be not later than the first day of the first calendar month that
begins two years after the date of the enactment of this Act.” See FY17 NDAA, Pub. L.
No. 114-328, § 5542(a).
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United States v. Barrick, No. ACM S32579
cases referred to trial by court-martial on and after 1 January 2019. 9 The new
rules implement the amendments made by Congress in Article 60 in the 2019
MCM, as discussed, and include considerable revisions in the manner by which
the convening authority effectuates an appellant’s sentence after one has been
adjudged.
Among the rules that took effect on 1 January 2019 for cases referred on
and after that date are R.C.M. 1109 and 1110 that guide a convening author-
ity’s decision whether to take action on an adjudged sentence. 10 Following the
new procedures in those rules, which implement and track the amendments
that Congress made to Article 60 as promulgated in the 2019 MCM, no action
is required unless a convening authority intends to reduce, commute, or sus-
pend, or in some cases, disapprove, a sentence, in whole or in part. R.C.M.
1109(c)(5)(A), (g)(2); R.C.M. 1110(c), (e). Under these rules, a “convening au-
thority is no longer required to take action on the results of every court-mar-
tial.” United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521,
at *3 (A.F. Ct. Crim. App. 16 Dec. 2019) (unpub. op.) (citing R.C.M. 1109 and
1110 (2019 MCM)). Instead, a convening authority may decline to take action
after consulting with the staff judge advocate and considering any clemency
matters timely submitted by an accused. R.C.M. 1109(c), (d), (g); R.C.M.
1110(c)(1) (“action on the sentence is not required”); see also Moody-Neukom,
unpub. op. at *3.
C. Application of the MJA, as Implemented, to Appellant’s Case
One turns then to consider the effect of the President’s implementation of
the MJA in Executive Order 13,825 on the post-trial procedures that are appli-
cable to Appellant’s case. Here, the charges and specifications were referred to
trial by special court-martial on 15 January 2019. Thus, the convening author-
ity was required to follow the procedural provisions in the 2019 MCM that went
into effect on 1 January 2019, notably R.C.M. 1109 and 1110 that are germane
to a convening authority’s power and responsibility in post-trial processing. In
9 See Exec. Order 13,825, § 5, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018) (codifying in the
2019 MCM new Rules for Courts-Martial (R.C.M.) among the amendments in Annex
2, that “shall take effect on January 1, 2019,” subject to exceptions that are not appli-
cable here); see also FY17 NDAA, Pub. L. No. 114-328, § 5542(c)(2) (stating MJA
amendments to the UCMJ “shall not apply to any case in which charges are referred
to trial by court-martial before the effective date of such amendments”).
10 See Exec. Order 13,825, § 5, 83 Fed. Reg. at 10040–43 (implementing R.C.M. 1109,
Reduction of sentence, general and special courts-martial); 10043–44 (implementing
R.C.M. 1110, Action by convening authority in certain general and special courts-mar-
tial).
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United States v. Barrick, No. ACM S32579
accordance with these rules, unless the convening authority had determined
to grant relief, 11 the convening authority was under no obligation to act on the
sentence after Appellant was tried and sentenced on 26 February 2019.
In compliance with R.C.M. 1109 and 1110, the convening authority took no
action on the adjudged sentence when he signed the decision memorandum on
13 March 2019, thereby indicating a formal determination that sentencing re-
lief was not warranted in Appellant’s case. Subsequently, the military judge
signed the EoJ faithfully reflecting the judgment of the court-martial. Conse-
quently, the convening authority’s “no action” decision in compliance with the
President’s implementation of the MJA, as made plain in R.C.M. 1109 and
1110, was not error. It follows that the judgment entered by the military judge
in Appellant’s case is correct in fact and law.
1. United States v. Finco
Nonetheless, this conclusion that the convening authority did not err be-
cause he followed Article 60, UCMJ, and R.C.M. 1109 and 1110 as imple-
mented by the President in the 2019 MCM, invites comparison to a recent de-
cision by this court that reached a different result on similar facts. Appellant,
like the appellant in United States v Finco, was convicted of offenses that were
committed on or after 24 June 2014 12 and before 1 January 2019, that were
referred after that date. See Finco, unpub. op. at *1–3, 12. The military judge
in Finco sentenced the appellant to a bad-conduct discharge, confinement for
five months, reduction to the grade of E-1, and a reprimand. Id. at *1–2. After
reviewing that appellant’s clemency matters, the convening authority signed a
decision memorandum that stated, “I take no action on the sentence of this
case.” Id. at *2. The same day that the convening authority signed his decision
memorandum, the military judge signed the EoJ. Id. In Finco, this court de-
termined that “the decision to take no action on the sentence was a plain or
obvious error” and remanded the case to the Chief Trial Judge, Air Force Trial
Judiciary, “to resolve a substantial issue with the convening authority’s deci-
sion memorandum as no action was taken on Appellant’s adjudged sentence as
required by law.” Id. at *15, 20–21.
11The convening authority had the power to reduce, commute, or suspend, in whole or
in part, Appellant’s adjudged confinement, forfeiture of pay, and reduction in grade.
See R.C.M. 1109(c)(5) (2019 MCM).
12Because the court’s opinion referenced Article 60, UCMJ, in the 2016 MCM, see
United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *8 (A.F. Ct. Crim.
App. 27 Jul. 2020) (unpub. op.), which was effective on 24 June 2014, FY14 NDAA,
Pub. L. No. 113-66, § 1702, 127 Stat. 672, 958 (2013), we can presume that the appel-
lant in Finco committed the charged offenses no earlier than on or after that date.
11
United States v. Barrick, No. ACM S32579
This court’s Finco decision did not rely on R.C.M. 1109 and 1110 in the 2019
MCM, or attach any significance to, much less acknowledge, the President’s
implementation of these rules in Exec. Order 13,825, § 5. Instead, Finco singu-
larly focused on § 6(b) of this same Executive Order. As applicable to cases like
Appellant’s and Finco where there is a conviction for at least one offense com-
mitted before 1 January 2019 that was referred on or after that date, § 6(b)
guides a convening authority to apply the legacy provisions of Article 60 in the
2016 MCM, or earlier, on the one hand, or the amended Article 60 in the MJA
that appears in the 2019 MCM, on the other. Id. at *8–9, 11–12. Section 6(b)
states in pertinent part:
If the accused is found guilty of a specification alleging the com-
mission of one or more offenses before January 1, 2019, Article
60 of the UCMJ, 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 extent that Article 60:
(1) requires action by the convening authority on the sentence
....
Exec. Order 13,825, § 6(b), 83 Fed. Reg. at 9890 (8 Mar. 2018).
By the terms of § 6(b), the convening authority in Finco and in Appellant’s
case was required to follow Article 60 as it appears in the 2016 MCM, but only
“to the extent that” Article 60 “requires action by the convening authority on
the sentence.” (Emphasis added). If effectuating a sentence does not require a
convening authority to take action, then § 6(b)’s direction to a convening au-
thority to follow “Article 60 of the UCMJ, as in effect on the date of the earliest
offense of which the accused was found guilty,” is inapposite.
Finco looked to the language in Article 60 in the 2016 MCM, and found the
necessary words of obligation in Article 60(c)(2)(A), UCMJ, that it determined
bound the convening authority to take action. This provision states without
qualification that “[a]ction on the sentence of a court-martial shall be taken by
the convening authority.” 13 See Finco, unpub. op. at *8. By looking to Article
60(c)(2)(A) in the 2016 MCM to understand § 6(b) of the Executive Order, a
13The Finco court found solidarity with a decision by our sister-service court in United
States v. Coffman, 79 M.J. 820 (A. Ct. Crim. App. 2020), in which a convening authority
took no action by indicating “N/A” to denote “action on the findings and/or sentence.”
Finco, unpub. op. at *12–13 (quoting Coffman, 79 M.J. at 821); see also id. at *13
(agreeing with the Coffman court’s finding that the convening authority “erred in his
noncompliance” with the earlier version of Article 60, UCMJ, that required action on
the sentence (quoting Coffman, 79 M.J. at 822)).
12
United States v. Barrick, No. ACM S32579
convening authority would have to disregard the President’s implementation
of R.C.M. 1109 and 1110 that went into effect on 1 January 2019 in every case
where there is a conviction for at least one offense committed before, and re-
ferred on or after, that date. Paradoxically, effective on the same date that the
President’s implementation of these rules went into effect, Finco nullified their
application in cases when a convening authority determines that granting sen-
tencing relief is not authorized or warranted.
Without question, a convening authority cannot “take no action on the sen-
tence” in compliance with R.C.M. 1109 and 1110 in the 2019 MCM, and at the
same time satisfy the language in Article 60(c)(2)(A), UCMJ, in the 2016 MCM.
However, Finco made an assumption that a convening authority was bound by
Article 60(c)(2)(A), finding that “the convening authority cannot simultane-
ously ‘take no action on the sentence’” and satisfy the Finco court’s interpreta-
tion of the language of the President’s implementation in § 6(b). The Finco
court concluded, “[W]e need look no further than the plain language of the de-
cision 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.” Id. Although unstated in its decision, it is
apparent that the Finco court found the language of § 6(b) plain as well to reach
the conclusion that it did.
What the decision in Finco did not do is address an unmistakable contra-
diction between the President’s implementation of R.C.M. 1109 and 1110 in
Exec. Order, § 5, on the one hand, and the Finco court’s reading of Exec. Order,
§ 6(b), on the other. In the case before us as in Finco, the convening authority
cannot abide by the President’s implementation of the specific provisions of
R.C.M. 1109 and 1110 in § 5 by taking no action on the sentence, and at the
same time have a duty to act that the Finco court found by its reading of § 6(b)
that looked to Article 60(c)(2)(A) in the 2016 MCM. The Finco decision also
failed to explain how its interpretation complied with Congress’ direction to
the President to implement the MJA by 1 January 2019, notably the post-trial
procedures that Congress directed convening authorities to follow to effectuate
a sentence.
In reaching the conclusion that the convening authority was required to
take action on the sentence, Finco interpreted one part of the President’s im-
plementation so as to render another part, § 5, meaningless in cases, like Ap-
pellant’s, where there is a conviction for at least one offense committed before
1 January 2019 that was referred on or after that date, and the convening au-
thority determines no sentencing relief is warranted. By taking “no action” in
compliance with R.C.M. 1109 and 1110 in the 2019 MCM as the President in-
tended in Exec. Order, § 5, the Finco court would find error in an essential and
recurring post-trial responsibility that was directed by Congress in the MJA:
13
United States v. Barrick, No. ACM S32579
the manner by which convening authorities effectuate sentences for convic-
tions for pre-1 January 2019 offenses that are referred on and after that date.
Of greater significance, the assignment by Congress to the President to des-
ignate the effective date of the MJA amendments, was not without limitation.
As previously noted, Congress directed that the President’s implementation of
the Act “shall take effect” not later than 1 January 2019. 14 The amendments
to the UCMJ include changes Congress made to the procedural provisions in
Article 60 whereby a convening authority may take no action to effectuate a
sentence. But the Finco court’s interpretation of Exec. Order 13,825, § 6(b)(1),
would require a convening authority to continue to take action on a sentence
in accordance with the legacy provisions of Article 60 until the date of the ear-
liest offense of which the accused was found guilty was on or after 1 January
2019. Thus, if the Finco court’s interpretation of Exec. Order 13,825, § 6(b),
was correct, it would operate to delay implementation of a key MJA provision
well past 1 January 2019. 15 With few exceptions, notably Exec. Order 13,825,
§§ 6(a), 9, 10, the President’s implementation of the MJA applies to offenses
committed or alleged before 1 January 2019. The provisions implemented by
exception in §§ 6(a), 9, and 10 relate to substantive rights of an accused. Had
the President intended the changes to the manner by which a convening au-
thority effectuates a sentence in Article 60 in the 2019 MCM to begin on or
after 1 January 2019, one might reasonably conclude that the President would
have done so expressly instead of—as the Finco court’s interpretation would
require—by implication. Thus, a delayed implementation in the manner by
which a sentence is effectuated in the 2019 MCM would raise questions not
just about the responsibility of a convening authority under the President’s
implementation of the MJA, but also, and more fundamental, whether the
President’s implementation schedule was in compliance with Congress’ direc-
tion that the President shall implement the Act not later than 1 January 2019.
2. Executive Order 13,825
Executive agencies “must always ‘give effect to the unambiguously ex-
pressed intent of Congress.’” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,
326 (2014) (quoting National Assn. of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 665 (2007)). The United States Court of Appeals for the Armed
14 See FY17 NDAA, Pub. L. No. 114-328, § 5542(a).
15Notably, it is incongruent that, effective 1 January 2019, Congress would eliminate
in the MJA the requirement that a convening authority consider the written recom-
mendation of a staff judge advocate before taking action in a general court-martial or
any special court-martial case that includes a bad-conduct discharge, as required by
legacy provisions of Article 60, see, e.g., Article 60(e), UCMJ, 10 U.S.C. § 860(e) (2016
MCM), but still require a convening authority to take action to effectuate all sentences.
14
United States v. Barrick, No. ACM S32579
Forces (CAAF) has similarly cautioned that it “has no license . . . to construe
statutes in a way that ‘undercut[s] the clearly expressed intent of Congress.’”
United States v. McPherson, 73 M.J. 393, 396 (C.A.A.F. 2014) (quoting United
States v. Bartlett, 66 M.J. 426, 428 (C.A.A.F. 2008) (alteration in original)).
The CAAF has recognized that ordinary rules of statutory construction are
helpful “when analyzing a rule promulgated by the President,” which would
seemingly embrace analysis of an executive order. United States v. Murphy, 74
M.J. 302, 305 (C.A.A.F. 2015) (“[I]n determining the scope of a statute, we look
first to its language” and “apply the same interpretive process when analyzing
a rule promulgated by the President.” (internal quotation marks omitted)); see
also United States v. Fetrow, 76 M.J. 181, 185–86 (C.A.A.F. 2017) (rules of stat-
utory construction are helpful in analyzing provisions of the Manual for
Courts-Martial). It follows then that judicial review of the President’s Execu-
tive Order implementing the MJA is not unlike review of an agency’s construc-
tion of a statute.
When two provisions “initially appear to be in tension,” the provisions
should be interpreted in a way that render them compatible, not contradic-
tory. 16 United States v. Kelly, 77 M.J. 404, 407 (C.A.A.F. 2008) (“[T]his Court
typically seeks to harmonize independent provisions of a statute.” (citing
United States v. Christian, 63 M.J. 205, 208 (C.A.A.F. 2006)). “It is a funda-
mental canon of statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall statutory scheme.”
Kelly, 77 M.J. at 406–07 (quoting FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (internal quotation marks omitted)). “As is true of
interpretation of statutes, the interpretation of an Executive Order begins with
its text.” Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (citation omitted).
Thus, when an interpretation of the text of one provision in an executive order
works against another provision or an act of Congress, there is good reason to
reject that interpretation and look for another.
The place to begin is with the text of the President’s implementation. Sec-
tions 5 and 6(b) of the Executive Order initially appear to be in tension, so each
16 There may be essential differences between application of some interpretive canons
to executive and legislative action. For example, the President’s implementation of a
rule in one provision of Exec. Order 13,825 (§ 5), and a statute on which the same rule
depends in another provision (§ 6(b)) would not obviously trigger the “‘hierarchical
sources of rights’ in the military justice system” whereby the highest source of author-
ity is generally paramount. See United States v. Czeschin, 56 MJ 346, 348 (C.A.A.F.
2002). In the absence of language making it clear that the President’s implementation
of the statute controls over implementation of the rule, one cannot assume that the
President intended that the former controls the latter in the same executive order
promulgated under the same implementation authority assigned by Congress.
15
United States v. Barrick, No. ACM S32579
provision will be examined in turn. The language of § 5 plainly implements the
R.C.M. and the text is not subject to more than one possible meaning. It states
that “[t]he amendments in Annex 2 [of Executive Order 13,825] . . . shall take
effect on January 1, 2019.” 83 Fed. Reg. at 9890. As previously discussed, An-
nex 2 includes the President’s implementation of R.C.M. 1109 and 1110 in the
2019 MCM that went into effect for cases referred to trial by court-martial on
and after 1 January 2019. The fact that § 5 enumerates three inapposite ex-
ceptions to the application of these amendments suggests that there are no
other exceptions, lending further validity to the conclusion that the convening
authority did not err when he followed R.C.M. 1109 and 1110 in effectuating
the sentence adjudged in Appellant’s case.
Whereas § 5 requires looking no further than that provision to determine
its meaning and application, § 6(b), in contrast, directs practitioners to first
look to the legacy provisions of Article 60, UCMJ, to resolve which version of
Article 60 may apply to a particular case, and also, to what extent. This is so
because § 6(b) states that “Article 60 of the UCMJ, 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 extent that Article 60 . . . requires action by the
convening authority on the sentence . . . .” Id. (emphasis added). The phrase “to
the extent that” is one of limitation that precludes blanket application of legacy
provisions of Article 60. This qualifying language makes clear that individual
provisions of Article 60 in the 2019 MCM will bind a convening authority un-
less any one of several conditions is present in Article 60, UCMJ, as was in
effect on the date of the earliest offense. First among those conditions is if a
legacy provision of an earlier version of Article 60 “requires action by the con-
vening authority on the sentence.” Exec. Order 13,825, § 6(b)(1), 83 Fed. Reg.
at 9890.
The term “action,” as discussed earlier, has a precise, specialized meaning
in the 2019 MCM that differs from its more comprehensive meaning to effec-
tuate a sentence before the MJA’s implementation. Thus, a full understanding
of the applicability of § 6(b) to Appellant’s case entails an examination of Arti-
cle 60 in the 2016 MCM for a circumstance in which a convening authority is
required to grant relief (i.e. take action) on the sentence. If such a circumstance
was present in a case like Appellant’s—where at least one offense was commit-
ted on or after 24 June 2014 and before 1 January 2019, that was referred on
or after that date—then the convening authority might indeed be required to
take action on the sentence by following one or more provisions of Article 60 in
the 2016 MCM. Such a circumstance would be within the meaning of the Pres-
ident’s implementation in § 6(b).
One such circumstance that protects a critical right of an accused, is the
convening authority’s legal duty to honor and effectuate a pretrial agreement
16
United States v. Barrick, No. ACM S32579
(PTA) with an accused. As a matter of law, a convening authority has no power
under any specific provision in the 2019 MCM to enforce a sentence limitation
of a PTA, known as a “plea agreement” in the MJA. Instead, such agreements
have binding effect upon their acceptance by a military judge. 17 An accused
automatically gets the benefit of the agreement without the convening author-
ity having to take action or approve a sentence to comply with the agreement.
However, this novel approach to the manner by which agreed-upon sentence
limitations are enforced in the MJA takes effect only in cases unlike Appel-
lant’s “in which all specifications allege offenses committed on or after January
1, 2019.” See Exec. Order 13,825, § 10, 83 Fed. Reg. at 9890–91. Conversely, in
cases like Appellant’s where there is a conviction for at least one offense com-
mitted after 24 June 2014 and before 1 January 2019 that was referred on or
after that date, a PTA may be consequential and the convening authority
would be required to follow the legacy provisions of Article 60 (2016 MCM),
and take action to both honor and effectuate a sentence as agreed to in the
PTA. This is perhaps best illustrated by two examples that show the different
applications of Article 60. The first example closely tracks Appellant’s case in
which the convening authority properly applied Article 60 and R.C.M. 1109
and 1110 from the 2019 MCM. The second example reveals when a convening
authority would be required to apply Article 60 and R.C.M. 1107 from the 2016
MCM if the sentence and the terms of Appellant’s PTA had been different.
Here, Appellant was convicted of offenses committed before 1 January 2019
that were referred after that date, and the adjudged sentence did not exceed a
limitation on sentence in Appellant’s PTA with the convening authority. It fol-
lows then that granting sentencing relief (action) was not required under Arti-
cle 60 in the 2016 MCM that was in effect on the date of Appellant’s earliest
offense. Because the convening authority was not compelled to follow any leg-
acy provisions of Article 60 that predate implementation of Article 60 in the
2019 MCM, the convening authority could effectuate the sentence, as he did,
by taking no action in accordance with Article 60 and R.C.M. 1109 and 1110 as
codified in the 2019 MCM.
Conversely, if Appellant’s PTA with the convening authority had capped
confinement at greater than six months (e.g., eight months), and the sentence
adjudged by the court-martial exceeded this limitation (e.g., ten months), then
the convening authority would have been required to follow Article 60 and
R.C.M. 1107 in the 2016 MCM “to the extent that Article 60 . . . requires action
by the convening authority on the sentence” as directed by Exec. Order, § 6(b)(1).
17 See Article 53a(d), UCMJ, 10 U.S.C. § 853a(d) (2019 MCM).
17
United States v. Barrick, No. ACM S32579
(Emphasis added). This is so because there is no legal authorization in the 2019
MCM for the convening authority to honor the agreement and effectuate the
sentence—as there is in the 2016 MCM—by either granting clemency18 or en-
forcing a sentence limitation in a PTA. 19 In such a case the convening author-
ity, quite literally, would be required to grant relief (i.e., take action) on the
sentence by following Article 60 in effect on the date of the earliest offense. 20
Without the legacy provision in Article 60 that allows the convening authority
to take the required action on the sentence, 21 the convening authority would
be in breach of the PTA if Article 60 (2019 MCM) was the only legal authority
the convening authority had to effectuate a sentence.
In cases that are referred to trial on or after 1 January 2019, there can be
no mistaking Congress’ intent that a convening authority’s taking “no action”
on the sentence effectuates the adjudged sentence in the same way that a con-
vening authority once approved the sentence without modification under the
former Article 60 (2016 MCM). And, there is no mistaking Congress’ assigning
to the President the authority to implement the MJA, consistent with this in-
tent, no later than 1 January 2019. Our superior court has “continually reiter-
ated that the Uniform Code of Military Justice controls when an executive or-
der conflicts with part of that Code.” United States v. Pritt, 54 M.J. 47, 50
18 In cases like Appellant’s, a convening authority has no authority in the 2019 MCM
to reduce or commute a sentence of confinement, if the total period of confinement
imposed for all offenses is greater than six months. See Article 60a(b)(1)(A), 10 U.S.C.
§ 860a(b)(1)(A), and R.C.M. 1109(c)(5)(A) (2019 MCM) (permitting a convening author-
ity to “reduce, commute, or suspend, in whole or in part” the confinement portion of a
sentence that is six months or less).
19In cases like Appellant’s, there is no provision similar to Article 60(c)(4)(C), UCMJ
(2016 MCM), in the 2019 MCM that would authorize a convening authority to honor
and effectuate an agreed-upon sentencing limitation in a PTA:
If a pre-trial agreement has been entered into by the convening author-
ity and the accused, as authorized by Rule for Courts-Martial 705, the
convening authority or another person authorized to act under this sec-
tion shall have the authority to approve, disapprove, commute, or sus-
pend a sentence in whole or in part pursuant to the terms of the pre-
trial agreement . . . .
Article 60(c)(4)(C), UCMJ (2016 MCM).
20R.C.M. 1107 implements Article 60 to the 2016 MCM. Of note, nothing in the MJA
or the President’s implementation of the Act operate to repeal the R.C.M. that applied
Article 60 in effect before 1 January 2019.
21 See, e.g., Article 60(c)(4)(C), UCMJ (2016 MCM).
18
United States v. Barrick, No. ACM S32579
(C.A.A.F. 2000) (citing United States v. Gonzalez, 42 M.J. 469, 474 (1995);
United States v. Mance, 26 M.J. 244, 252 (1988)).
Here, there is no conflict between the President’s implementation of the
MJA in Executive Order 13,825 and Article 60 (2019 MCM) so long as Exec.
Order, §§ 5 and 6(b), are each given “full force and effect,” Kelly, 77 M.J. at 407,
on 1 January 2019. Under Exec. Order, § 6(b)(1), a convening authority looks
to the legacy provisions of Article 60 to the extent that a convening authority
may be required to take action on the sentence. Because “action” in the 2019
MCM means “granting relief,” practitioners accustomed to “action” being syn-
onymous with effectuating the results of a court-martial in a pre-2019 MCM
provision may best relate to the contemporary meaning of “action” if § 6(b)(1)
is restated thusly,
If the accused is found guilty of a specification alleging the com-
mission of one or more offenses before January 1, 2019, Article
60 of the UCMJ, 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 extent that Article 60:
(1) requires [granting relief] by the convening authority on the
sentence[ 22]
....
Exec. Order 13,825, 83 Fed. Reg. at 9890.
This reading of § 6(b) affords “action” its contemporary meaning that is nar-
rower than its legacy use in prior editions of the Manual. See United States v.
Andrews, 77 M.J. 393, 400 (C.A.A.F. 2018) (questions of interpretation should
begin and end with the text, “giving each word its ordinary, contemporary, and
common meaning” (quoting Star Athletica, L.L.C. v. Varsity Brands, Inc., 137
S. Ct. 1002, 1010 (2017))). It also avoids a nullification of the President’s im-
plementation of R.C.M. 1109 and 1110 in every case where there is a conviction
for at least one offense committed before, and referred on or after, 1 January
2019, and a convening authority determines action on the sentence is not war-
ranted. Moreover, this reading of § 6(b) affords an accused a substantive right
to have a convening authority honor a PTA—and not merely specifying the
22Or, to rephrase grammatically, “. . . requires the convening authority to grant relief
on the sentence.”
19
United States v. Barrick, No. ACM S32579
manner by which a convening authority effectuates a sentence—that is in har-
mony with other substantive provisions of § 6(b) that also protect an accused’s
rights under legacy provisions of Article 60. 23
In summary, in cases, like Appellant’s, where there is a conviction for at
least one offense committed before 1 January 2019 that was referred after that
date and sentencing relief is not authorized or warranted as determined by the
limits of the convening authority’s clemency power and consideration of an ap-
pellant’s clemency submission, then the convening authority first looks to Ar-
ticle 60 and the corresponding R.C.M. that were in effect on the date of the
earliest offense. If the convening authority determines that granting relief (i.e.
action) is not required under that version of Article 60, for example, to enforce
a limitation on sentence in a PTA, then the convening authority follows Article
60 and R.C.M. 1109 and 1110 in the 2019 MCM to effectuate the sentence. If,
however, the convening authority determines that action on the sentence is
required under the version of Article 60 in effect on the date of the earliest
offense because granting relief is required to effectuate the sentence—as may
be the case with a sentence limitation in a PTA—then the convening authority
is required to follow a provision in an earlier version of Article 60 and the cor-
responding R.C.M. that give effect to the convening authority’s statutory re-
sponsibility to act on the sentence.
D. Conclusion
There is no tension, much less contradiction, with Exec. Order 13,825, § 5,
or other provisions of the President’s implementation of the MJA, so long as
“action” on the sentence is given its contemporary meaning, “granting relief,”
where the term “action” appears in Exec. Order 13,825, § 6(b)(1).
Even so, in many if not all cases referred on and after 1 January 2019, a
convening authority’s decision not to act may be the equivalent of taking action
to effectuate a sentence (in a legacy sense) as Appellant suggests that it was in
his case. Ultimately, it may not matter if it is determined whether or not a
convening authority erred in cases like Appellant’s where no action is taken,
or conversely, a case where a convening authority approves the sentence even
though the applicable provision of Article 60 does not require action to effectu-
ate the sentence. What matters most is that a convening authority makes clear
whether sentencing relief has been granted an appellant and to what extent.
23The guidance in Exec. Order, § 6(b), addresses an accused’s substantive rights in
regard to the findings (Subsection (2)), the adjudged sentence (Subsections (1) and (5)),
both the finding and the sentence (Subsection (3)), and a proceeding in revision or a
rehearing (Subsection (4)). See Exec. Order 13,825, § 6(b)(1)–(5), 83 Fed. Reg. at 9890.
20
United States v. Barrick, No. ACM S32579
So long as the sentence that the convening authority intended to effectuate is
apparent from the decision memorandum, 24 an appellant may not be preju-
diced even if a convening authority’s compliance with Executive Order 13,825
may be interpreted differently by Courts of Criminal Appeals or even by differ-
ent panels.
I do not reach the question of prejudice, however, because I find that the
convening authority fully complied with the President’s implementation of the
MJA, and did not err by taking “no action” on the sentence that was adjudged
after Appellant’s trial, and that the military judge correctly entered as the
judgment of the court-martial.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
24See, e.g., United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (requiring a “clear
and unambiguous convening authority action”).
21