Filed: Jan. 25, 2021
Latest Update: Jan. 26, 2021
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32633
________________________
UNITED STATES
Appellee
v.
Shawn L. CORPPETTS
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 25 January 2021
________________________
Military Judge: Elizabeth M. Hernandez.
Sentence: Sentence adjudged on 3 October 2019 by SpCM convened at
Offutt Air Force Base, Nebraska. Sentence entered by military judge on
28 October 2019: Bad-conduct discharge, confinement for 4 months, and
a reprimand.
For Appellant: Major Kirk W. Albertson, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Dayle P. Percle, USAF; Mary
Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, 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This is an unpublished opinion and, as such, does not serve as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 military judge sitting as a special court-martial convicted Appellant, in
accordance with his pleas, of one specification each of wrongful use of mariju-
ana on divers occasions and disrespect towards a superior commissioned officer
in violation of Articles 112a and 89, Uniform Code of Military Justice (UCMJ),
United States v. Corppetts, No. ACM S32633
10 U.S.C. §§ 912a, 889. 1,2 The specification alleging marijuana use pertained
to offenses committed between 21 September 2018 and 12 March 2019, while
the disrespect offense was charged as having occurred in November 2018. The
military judge sentenced Appellant to a bad-conduct discharge, confinement
for four months, and a reprimand. 3
On appeal, Appellant raises two assignments of error which we do not reach
here, as we instead address an error in the post-trial processing of Appellant’s
court-martial: whether the convening authority failed to take action on the
sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890
(8 A.K. Marsh. 2018), and Article 60, UCMJ, 10 U.S.C. § 860. We conclude he did and
that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate.
Accordingly, we defer addressing Appellant’s assignments of error until the
record is returned to this court for completion of our review under Article 66,
UCMJ, 10 U.S.C. § 866.
I. BACKGROUND
The specifications in this case were referred on 20 May 2019, and Appel-
lant’s court-martial concluded on 3 October 2019. On 8 October 2019, Appel-
lant’s trial defense counsel submitted a memorandum noting the severity of
the sentence without requesting any specific relief. The memorandum stated
Appellant reserved his right to submit matters in clemency “in accordance with
normal clemency proceedings,” but the record indicates no additional matters
were submitted. After consulting with his staff judge advocate, the convening
authority signed a Decision on Action memorandum on 12 October 2019. 4 In
the memorandum, the convening authority stated: “I take no action on the find-
ings in this case.” He further wrote, “I take the following action on the sentence
in this case: The following is the reprimand that shall be inserted into the En-
try of Judgement [sic] [.]” The rest of the paragraph contained nothing but the
text of the reprimand. The memorandum also directed Appellant to “take leave
1Unless otherwise noted, references to the Uniform Code of Military Justice (UCMJ)
and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM).
2 Appellant was acquitted of one specification of resisting apprehension.
3Appellant elected to be sentenced under procedures that went into effect on 1 January
2019, and the military judge sentenced Appellant to two terms of confinement to run
concurrently—four months of confinement for the drug use and two months of confine-
ment for the disrespect. See R.C.M. 902A(b)–(d), 1002(d)(2)(B) (Manual for Courts-
Martial, United States (2019 ed.) (2019 MCM)).
4The Decision on Action memorandum is undated, but the convening authority’s digi-
tal signature reflects the date of 12 October 2019.
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United States v. Corppetts, No. ACM S32633
pending completion of appellate review” upon release from confinement. The
memorandum contained no further indication as to whether any element of the
sentence was approved, disapproved, commuted, or suspended, or whether the
convening authority intended to take action or take no action with respect to
any element of the sentence other than the reprimand. On 28 October 2019,
the military judge signed the entry of judgment, setting out the sentence, and
included the Decision on Action memorandum as an attachment.
II. DISCUSSION
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 Rule for Courts-
Martial (R.C.M.) are also questions of law 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. 2005) (citation omitted).
Executive Order 13,825, § 6(b), requires that the version of Article 60,
UCMJ,
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; . . . or (5) authorizes the convening
authority to approve, disapprove, commute, or suspend a sen-
tence in whole or in part.
See 2018 Amendments to the Manual for Courts-Martial, United States, 83
Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect in 2018 5—the year
in which the earliest of Appellant’s charged offenses occurred—stated “[a]ction
on the sentence of a court-martial shall be taken by the convening authority or
by another person authorized to act under this section.” 10 U.S.C. § 860(c)(2)(A)
(emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F.
2008) (per curiam) (“[T]he convening authority is required to take action on the
sentence . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [other-
wise] provided . . . the convening authority . . . may approve, disapprove, com-
mute, or suspend the sentence of the court-martial in whole or in part.” 10
U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear
and unambiguous.” United States v. Politte,
63 M.J. 24, 26 (C.A.A.F. 2006) (ci-
tation omitted).
5 See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
§ 1702, 127 Stat. 672, 958 (26 Dec. 2013) (establishing 24 June 2014 as the effective
date for Article 60, UCMJ, 10 U.S.C. § 860 (2016 MCM)).
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United States v. Corppetts, No. ACM S32633
In cases involving a conviction for an offense committed prior to 1 January
2019, the convening authority is required to explicitly state whether the sen-
tence is approved. R.C.M. 1107(f)(4)(A) (implementing the version of Article 60,
UCMJ, applicable to Appellant’s case). “If only part of the sentence is approved,
the action shall state which parts are approved.” Id. In this case, the convening
authority did not take action on the entire sentence. He set out the terms of
Appellant’s reprimand and implicitly referenced the adjudged punitive dis-
charge by mentioning appellate leave, but he did not indicate what action he
was taking with respect to the confinement. Thus, the convening authority’s
action was incomplete and ambiguous, and therefore deficient. See
Politte, 63
M.J. at 26.
The convening authority’s failure to take action on the entire sentence fails
to satisfy the requirement of Article 60, UCMJ. See United States v. Lopez, No.
ACM S32597, 2020 CCA LEXIS 439, at *11 (A.F. Ct. Crim. App. 8 Dec. 2020)
(unpub. op.). Unlike the cases of United States v. Aumont, No. ACM 39673,
2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub.
op.), and Lopez, the convening authority in Appellant’s case did not state he
intended to take “no action” on Appellant’s sentence. Such an annotation has
been construed by several judges on this court to be the equivalent of effecting
“action” under Article 60, UCMJ. See, e.g., Aumont, unpub. op. at *22; United
States v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346, at *3–4 (A.F. Ct.
Crim. App. 30 Sept. 2020) (unpub. op.). Even under this standard, however,
the action here would not be complete and unambiguous, as there was no indi-
cation the convening authority intended to take “no action.”
Our superior court has mandated that when a Court of Criminal Appeals
identifies an ambiguity in an action, it must return the case to the convening
authority. Politte, 63 M.J. at 25–26 (applying the earlier versions of Articles 60
and 66, UCMJ, 10 U.S.C. §§ 860, 866 (2000)). In requiring the deficient action
to be returned to the convening authority, our superior court did not evaluate
the deficiency for prejudice; the deficiency in the action ipso facto required its
return. Id.; see also United States v. Scott,
49 M.J. 160, 160 (C.A.A.F. 1998).
We remand the record to the Chief Trial Judge, Air Force Trial Judiciary, to
resolve the error. See Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3) (Manual for
Courts-Martial, United States (2019 ed.) (2019 MCM)).
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 the action taken on Appellant’s adjudged sentence was ambiguous
and incomplete.
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United States v. Corppetts, No. ACM S32633
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; 6
(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 (2019 MCM), proceedings
using the procedural rules for post-trial Article 39(a), UCMJ, 10 U.S.C.
§ 839, sessions; and/or
(4) Correct or 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
6The statement of trial results failed to include the command that convened the court-
martial as required by R.C.M. 1101(a)(3) (2019 MCM). Appellant has not claimed prej-
udice and we find none. 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.).
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