Recent AFCCA Opinion: United States v. Finco

The AFCCA remanded Senior Airman Christopher P. Finco's case, after finding colorable prejudice in the convening authority's decision memorandum. 

Background
            Senior Airman Christopher P. Finco (Appellant), in accordance with his pleas, was convicted of one specification of signing a false official document; one specification of making a false official statement; one specification wrongful possession of marijuana; and one specification of wrongful use of marijuana, in violation of Articles 107 and 112a of the UCMJ, 10 U.S.C. §§ 907, 912a. The military judge sentenced Appellant to a bad-conduct discharge, confinement for five months, reduction to E-1, and a reprimand. The convening authority signed his decision memorandum, on the same day the military judge signed Appellant’s entry of judgment (“EoJ”). Opinion here.
            The signed EoJ contained the following information on the sentence: “Punitive Discharge: Bad Conduct Discharge;” “Total Confinement: 5 months;” “Reduction in Pay Grade: E-1;” and “Reprimand: Yes.” The EoJ did not include the language of the reprimand[1] from the convening authority’s decision memorandum, but the decision memorandum was included as Attachment 2 to the EoJ.
             
Issue(s)
            (1) Whether the military judge’s failure to include the text of the reprimand in the EoJ requires disapproval of a portion of the sentence[2]; and (2) whether his sentence to a bad-conduct discharge is an inappropriately severe sentence. Additionally, the AFCCA considered whether the convening authority’s decision memorandum contained error when the convening authority purported to take no action on the sentence and Appellant was convicted of an offense prior to January 1, 2019.  
 
Holding
            The AFCCA held that the convening authority’s decision memorandum warranted error, and remanded the case to the Chief Trial Judge, Air Force Trial Judiciary. Accordingly, the Court did not reach the second issue.
 
Discussion

1. The convening authority’s decision memorandum prejudiced Appellant[3]

 
            Appellant submitted clemency issues to the convening authority, asking for a reduction in his confinement time. The Court, after reviewing Appellant’s case, found that the convening authority’s decision memorandum did not take action on the Appellant’s sentence. Although Appellant waived his right to object to the decision memorandum by failure to file a motion under R.C.M. 1104(b)(2)(B), the Court found that the convening authority’s failure to take action on the sentence was plain error, under United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App. 2015). The convening authority’s error to take action on the sentence, as the decision memorandum indicated, meets the threshold of “some colorable showing of possible prejudice.” Id. (quoting United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). The Court held that because no action was taken on the sentence, it was unclear whether the convening authority made a decision on Appellant’s clemency request, which was within the convening authority’s power to grant. The Court found because a colorable showing of possible prejudice was apparent, a remand was the best method to remedy the error. 
 


[1]“You are hereby reprimanded! Using and possessing drugs while representing 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]The Court finding colorable prejudice in the decision memorandum, found that modification of the EoJ by the military judge on remand was more appropriate than disapproval of Appellant’s sentence.

[3]The Court reviewed this issue, even though appellant did not raise an issue of prejudice. 

Shlomo Amar

Intern