          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700139
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                           JALEN J. BAILEY
                    Corporal (E-4), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel Leon J. Francis, USMC.
  Convening Authority: Commanding Officer, 3d Marine Regiment
  (REIN), 3d Marine Division (-) (REIN), MCBH, Kaneohe Bay, HI.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
                     Timothy S. Taylor, USMC.
    For Appellant: Lieutenant Colonel Lee C. Kindlon, USMCR.
                 For Appellee: Brian S. Keller, Esq.
                      _________________________

                          Decided 13 June 2017
                         _________________________

 Before C AMPBELL , F ULTON , and M ILLER , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   PER CURIAM:
    A military judge convicted the appellant, pursuant to the appellant’s
guilty pleas, of four specifications of wrongful drug use—violations of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a—and
sentenced him to nine months’ confinement, reduction to pay grade E-1, and
a bad-conduct discharge. The convening authority (CA) approved a sentence
of confinement for 125 days, reduction to pay grade E-1, and a bad-conduct
discharge.
                      United States v. Bailey, No. 201700139


    While this case was submitted for appellate review with no specific
assignment of error, we address the CA’s action on the sentence and the
pretrial agreement’s nonsensical terms which led to it. We find the CA
attempted to disapprove more confinement than allowed by Article
60(c)(4)(C), UCMJ, and RULE FOR COURTS-MARTIAL (R.C.M.) 1107(d)(1)(C)(ii),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.),1 but the legal
nullity of that action did not prejudice the appellant and requires no remand
for further post-trial processing in the specific context of this case.
     The pretrial agreement contemplated the appellant’s release from post-
trial confinement whenever—before the CA’s action on the sentence—space
was available for him to participate in a scheduled drug treatment program
at a specific treatment facility.2 The parties also intended to preserve the
possibility of him ultimately serving the entire adjudged confinement amount
if the appellant failed to complete the scheduled treatment.3
    Article 57a(a), UCMJ, and R.C.M. 1101(c) authorize an accused to
request, and a CA to approve, deferment of any confinement period before a
CA’s action. However, this pretrial agreement included no approved request
to defer service of the appellant’s adjudged confinement during his drug
treatment period before the CA’s action. Instead, it provided:
         any confinement adjudged beyond the date I am to enter
         Substance Abuse Rehabilitation Program (SAPR) [sic] on 22
         February 2017, or sooner as dictated by the facility’s
         availability, will be suspended until the convening authority
         takes action, at which point, any remaining adjudged
         confinement will be disapproved.4




   1 If there is a pretrial agreement, the CA “shall have the authority to approve,
disapprove, commute, or suspend a sentence, in whole or in part, pursuant to the
terms of the pretrial agreement”).
   2   “I agree to enter into the Substance Abuse Rehabilitation Program at Point
Loma, Naval Station San Diego, or an equivalent program. The government agrees to
refer me to a substance abuse treatment facility, as prescribed by the Substance
Abuse Counseling Center or SACO. The government agrees not to separate me from
the Marine Corps while I am attending treatment at Point Loma, or equivalent
facility.” Appellate Exhibit (AE) III at ¶ 16.h.
   3  “I understand that if I fail to enter the inpatient treatment program, leave the
treatment program voluntarily, or fail to complete the inpatient treatment program
for any reason, the convening authority may take action to vacate any suspended
portion of the adjudged sentence, or separate me from the Marine Corps.” Id.
   4   AE IV at ¶ 2 (emphasis added).

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                      United States v. Bailey, No. 201700139


The CA purported to act on the sentence in accordance with these negotiated
terms:
         In the Special Court-Martial case of United States v. Corporal
         Jalen J. Bailey, U.S. Marine Corps, only so much of the
         sentence as provides for reduction to pay grade E-1,
         confinement for 125 days, and discharge from the service with
         a bad-conduct discharge is approved. All confinement
         suspended pursuant to the pre-trial agreement is disapproved.5
   Under Article 60, UCMJ, and R.C.M. 1107, only adjudged confinement
that is approved may be suspended as part of the CA’s action on the sentence.
No punishments can be suspended before the CA’s action. Since the adjudged
confinement covering the appellant’s drug treatment program was neither
deferred nor suspended, it ran—as if the appellant was actually confined—
until the CA’s action. Art. 57(b), UCMJ. See United States v. Lamb, 22 M.J.
518, 518 (N-M.C.M.R. 1986) (“[C]onfinement begins to run on the date it is
adjudged, and the appellant is entitled to confinement credit once the
confinement is adjudged whether or not he is actually confined, unless the
confinement is suspended or deferred.”). The appellant’s confinement period
must be calculated accordingly.
   The CA purported to approve only 125 days of the adjudged 9 months’
confinement and to specifically disapprove confinement between the
appellant’s release for the drug treatment program through the CA’s action.
At his 19 January 2017 guilty plea, the appellant was credited with having
served 91 days of pretrial confinement (from 20 October 2016), and the CA
took action 89 days after trial (on 17 April 2017). Thus the appellant is
credited with having served 180 days of confinement as of the date of the
CA’s action.
   The pretrial agreement authorized disapproval of only “any remaining
adjudged confinement” at the time of the CA’s action. The adjudged
confinement actually remaining at the CA’s action did not include the
credited 180 days. Given the limits on the CAs’ ability to alter periods of
adjudged confinement exceeding 6 months—pursuant only to the terms of the
pretrial agreement—under Article 60(c)(4)(C), UCMJ, approval of only 125
days of confinement here was a nullity. United States v. Kruse, 75 M.J. 971
(N-M. Ct. Crim. App. 2016).
    “Rather than unnecessarily ordering a new CA’s action in this case, we
take the existing CA’s action and disregard any portion that is not permitted
by law.” Id. at 975. Consequently, we affirm the findings and only so much of


   5   Special Court-Martial Order No. 03-2017, at 2.

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                   United States v. Bailey, No. 201700139


the sentence as provides for reduction to pay grade E-1, confinement for 180
days, and a bad-conduct discharge.


                                      For the Court



                                         R.H. TROIDL
                                         Clerk of Court




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