United States v. Lopez, No. ACM S32597 (A.F. Ct. Crim. App. Dec. 8, 2020)
On December 8, 2020, in an unpublished opinion, the AFCCA found that the convening authority failed to take action on the sentence of Senior Airman Catarino L. Lopez, Jr. (Appellant) as required by Executive Order 13,825 and the pre-2019 version of Article 60, UCMJ.
In accordance with his plea pursuant to a pretrial agreement (PTA), Appellant was convicted by a special court-martial composed of a military judge of two specifications of failure to obey a lawful general regulation by wrongfully using an intoxicating substance on divers occasions, one specification of wrongful use of marijuana on divers occasions, and one specification of wrongful use of LSD in violation of Articles 92 and 112a, UCMJ. The military judge sentenced Appellant to a bad-conduct discharge, three months confinement, forfeiture of $1,000 pay for three months, and reduction to the grade of E-1.
In accordance with the PTA, the convening authority reduced Appellant’s term of confinement from three months to fifty days, after which the military judge signed an Entry of Judgment (EoJ) stating the final sentence as modified by the convening authority. On appeal, the Court did not address any of the issues raised by Appellant. Instead, the Court addressed an issue not raised by either party: whether the convening authority’s action with respect to just one element of the sentence satisfies the pre-2019 Article 60, UCMJ requirement that the convening authority “take action on the sentence.”
The Court held that the convening authority failed to take action on the entire sentence as required by the pre-2019 Article 60, UCMJ and that the record must be remanded to correct the error. Specifically, the majority interpreted Executive Order 13,825 to mean that if the date of the earliest offense of which the accused was convicted occurred before 2019, then the convening authority is required to follow the pre-2019 version of Article 60, UCMJ. The pre-2019 version of Article 60 compels the convening authority to take action on the sentence in every court-martial case. Thus, because Appellant’s charges were referred for trial after January 1, 2019 and his earliest offense occurred in 2017, the majority held that the convening authority was required to take to action on the sentence.
Although the convening authority took action with respect to one element of the sentence, the Court held that because the convening authority was required to explicitly state his approval or disapproval of the sentence in accordance with the pre-2019 version of Article 60, the action was “incomplete and ambiguous at best.” In addition, relying on the dissenting opinion in a recent en banc AFCCA decision, United States v. Aumont, the Court held that because the action was ambiguous and incomplete, the record must be remanded for correction. Thus, because the convening authority only addressed the confinement element of the sentence, the Court held that it did not appropriately “take action” on the entire sentence.
The dissent concluded that the convening authority did not err because the 2019 version of Article 60, UCMJ should apply instead of the pre-2019 version. Specifically, the dissent noted that § 6 of Executive Order 13,825 states that the pre-2019 version of Article 60 must only be followed “to the extent that Article 60 . . . requires action by the convening authority on the sentence . . .” Accordingly, the dissent argued that the phrase “to the extent that” should be interpreted to mean that the convening authority is only required to follow the pre-2019 version of Article 60 when sentencing relief cannot be granted under the 2019 version.  The dissent emphasized that this interpretation should prevail because it aligns with Congress’ clear intent to ensure that the new Article 60 requirements be applied to cases referred after January 1, 2019. Thus, because the 2019 version granted the convening authority the power to reduce Appellant’s sentence in accordance with the PTA, the convening authority was not required to “take action” on all elements of the sentence.
 The Court deferred addressing the three issues raised by Appellant on appeal until the record is returned following remand.
 The post-2019 version of Article 60, UCMJ does not require the convening authority to take action on the sentence of every court-martial.
 No. ACM 39673 (A.F. Ct. Crim. App. 20 Nov. 2020) (finding that the convening authority erred when he signed a decision memorandum stating that he took “no action” on the findings or sentence for an offense that was referred after January 1, 2019 but occurred prior to January, 1 2019).
 The dissent argued that the “modern” definition of “taking action” under Executive Order 13,825 means to grant relief—rather than the “legacy” definition of effectuating a sentence.
 If the 2019 version of Article 60 did not grant the convening authority the power to reduce Appellant’s sentence in accordance with the PTA, the dissent acknowledged that the convening authority would be required to adhere to the pre-2019 version of Article 60.
LT Chris Clifton
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