                       UNITED STATES, Appellee

                                    v.

                     Sean A. WILSON, Hospitalman
                         U.S. Navy, Appellant

                              No. 06-0503

                       Crim. App. No. 200102056

       United States Court of Appeals for the Armed Forces

                        Argued April 24, 2007

                        Decided June 21, 2007

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., and BAKER, J., each filed
a separate dissenting opinion.

                                 Counsel

For Appellant: Major Richard D. Belliss, USMC (argued); Captain
Rolando R. Sanchez, USMC (on brief).

For Appellee: Lieutenant TyQuili R. Booker, JAGC, USN (argued);
Commander Charles N. Purnell II, JAGC, USN, Commander Paul C.
LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC (on brief).

Military Judge:   William J. Dunaway


       This opinion is subject to revision before final publication.
United States v. Wilson, No. 06-0503/NA

     Judge ERDMANN delivered the opinion of the court.

     Hospitalman Sean A. Wilson was convicted at a contested

general court-martial of rape, assault, adultery, and unlawful

entry into a dwelling.    The members sentenced Wilson to

confinement for eight years, forfeiture of all pay and

allowances, reduction to paygrade E-1, and a dishonorable

discharge.

     The subsequent action of the convening authority is at

issue in this appeal.    The action stated, in relevant part, as

follows:   “In the case of Hospitalman Sean A. Wilson, U.S. Navy,

. . . that part of the sentence extending to confinement in

excess of 3 years and 3 months is disapproved.    The remainder of

the sentence, with the exception of the Dishonorable Discharge,

is approved and will be executed.”

     The United States Navy-Marine Corps Court of Criminal

Appeals affirmed the findings and the sentence “as approved by

the convening authority.”    United States v. Wilson, No. NMCCA

20010205, slip op. at 7 (N-M. Ct. Crim. App. Feb. 7, 2006).

(unpublished).   The only difference that the lower court

acknowledged between the sentence adjudged at court-martial and

the sentence approved by the convening authority was the

disapproval of confinement in excess of three years and three

months.    Id. at 1.   The lower court did not address the language




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United States v. Wilson, No. 06-0503/NA

of the action that approved the remainder of the sentence “with

the exception of the Dishonorable Discharge.”

       The convening authority has sole discretion to approve,

disapprove, commute, or suspend the sentence adjudged by the

court-martial.    Article 60(c)(2), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 860(c)(2) (2000).      “Because of the

importance of the convening authority’s action in the court-

martial process, we have required a clear and unambiguous

convening authority action.”    United States v. Politte, 63 M.J.

24, 26 (C.A.A.F. 2006); see also Rule for Courts-Martial

(R.C.M.) 1107(g).    We granted review of this case to consider

whether the convening authority’s action approved a dishonorable

discharge.1    We hold that it did not.   The dishonorable discharge

was excepted from approval in clear and unambiguous language.2

                             Discussion

       “A convening authority is vested with substantial

discretion when he or she takes action on the sentence of a

1
    We specified the following issue for review:

       WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF
       CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT
       INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING
       AUTHORITY’S ACTION DID NOT APPROVE ONE.

64 M.J. 190 (C.A.A.F. 2006).
2
  Our holding does not raise jurisdictional issues. The
sentence, as approved, includes a period of confinement for more
than one year, which gives the Court of Criminal Appeals



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United States v. Wilson, No. 06-0503/NA

court-martial.”   United States v. Davis, 58 M.J. 100, 102

(C.A.A.F. 2003) (citing Article 60(c)(2)-(3), UCMJ, and R.C.M.

1107).   R.C.M. 1107(d)(1) sets out the general parameters of a

convening authority’s action on the sentence as follows:

     The convening authority may for any or no reason
     disapprove a legal sentence in whole or in part,
     mitigate the sentence, and change a punishment to one
     of a different nature as long as the severity of the
     punishment is not increased. The convening or higher
     authority may not increase the punishment imposed by a
     court-martial. The approval or disapproval shall be
     explicitly stated.

In light of the convening authority’s broad discretion to

provide relief from the adjudged sentence and the importance of

this role in the court-martial process, when the plain language

of the convening authority’s action is facially complete and

unambiguous, its meaning must be given effect.    We have

previously recognized that due to this broad authority, “the

convening authority is an accused’s best hope for sentence

relief.”   Davis, 58 M.J. at 102 (citations omitted).

Accordingly, the convening authority must exercise care in

drafting the action.   See Politte, 63 M.J. at 26 n.11

(suggesting ways to avoid ambiguity in a convening authority’s

action).

     R.C.M. 1107(f) establishes certain requirements for the

“contents” of the convening authority’s action.   In relevant



jurisdiction under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)
(2000).

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United States v. Wilson, No. 06-0503/NA

part, R.C.M. 1107(f)(4) requires the following:     “(A) In

general.     The action shall state whether the sentence adjudged

by the court-martial is approved.      If only part of the sentence

is approved, the action shall state which parts are approved.       A

rehearing may not be directed if any sentence is approved.”     In

this case, the relevant part of the action consisted of two

grammatical sentences:    “In the case of Hospitalman Sean A.

Wilson, U.S. Navy, . . . that part of the sentence extending to

confinement in excess of 3 years and 3 months is disapproved.

The remainder of the sentence, with the exception of the

Dishonorable Discharge, is approved and will be executed.”      The

first sentence explicitly disapproves a portion of the

confinement.    The second sentence explicitly approves the

“remainder of the sentence, with the exception of the

Dishonorable Discharge.”    In announcing that the “remainder of

the sentence, with the exception of the Dishonorable Discharge,

is approved and will be executed,” the convening authority used

facially clear and unambiguous language that excluded the

dishonorable discharge from approval.     Under the plain meaning

of this language, the dishonorable discharge was not approved.

     The Court of Criminal Appeals may act only with respect to

the findings and sentence as approved by the convening

authority.    Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).

Because the convening authority did not approve the dishonorable



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United States v. Wilson, No. 06-0503/NA

discharge, it was not before the lower court on review and that

portion of the adjudged sentence could not be affirmed.   For the

lower court to do so constitutes error.

                            Decision

     To the extent that the decision of the United States Navy-

Marine Corps Court of Criminal Appeals affirmed a sentence that

included a dishonorable discharge, the decision is reversed.

The remainder of the findings and that portion of the sentence

extending to confinement for three years and three months,

forfeiture of all pay and allowances, and reduction to paygrade

E-1 are affirmed.




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United States v. Wilson, No. 06-0503/NA

        EFFRON, Chief Judge (dissenting):

        Under the Uniform Code of Military Justice (UCMJ),

modification of the results of courts-martial “is a matter of

command prerogative.”     Article 60(c)(1), UCMJ, 10 U.S.C. §

860(c)(1) (2000).     The pivotal responsibility for approval or

disapproval of a court-martial sentence is vested in the

convening authority.     The convening authority has “unfettered

discretion to modify the . . . sentence for any reason -–

without having to state a reason -– so long as there is no

increase in severity.”     United States v. Finster, 51 M.J. 185,

186 (C.A.A.F. 1999).     In the exercise of this discretion, the

convening authority may “approve, disapprove, commute, or

suspend the sentence in whole or in part.”     Article 60(c)(2),

UCMJ.

R.C.M. 1107

        The President, in the Rules for Courts-Martial (R.C.M.),

has set forth three specific rules to ensure that there is an

accurate record of the broad discretion provided by Article 60:

        (1)   R.C.M. 1107(d), which governs the convening

authority’s “Action on the sentence,” requires that the

convening authority’s “approval or disapproval shall be

explicitly stated.”

        (2)   R.C.M. 1107(f), which governs the “Contents of action

and related matters,” provides the following in paragraph (4)(a)
United States v. Wilson, No. 06-0503/NA

with respect to “Action on sentence” when the convening

authority approves only part of the sentence:   “If only part of

the sentence is approved, the action shall state which parts are

approved.”

      (3)    R.C.M. 1107(g), which governs “Incomplete, ambiguous,

or erroneous action,” provides:   “When the action of the

convening . . . authority is incomplete, ambiguous, or contains

clerical error, the authority who took the incomplete,

ambiguous, or erroneous action may be instructed by [a reviewing

authority] . . . to withdraw the original action and substitute

a corrected action.”

The requirement for explicit action

     Prior to 1984, the Manual for Courts-Martial (MCM)

suggested but did not mandate that the convening authority

explicitly identify which parts of the sentence were approved

and which were disapproved.   See MCM para. 88a (1969 rev. ed.)

(“[a]n approval or disapproval of a sentence should be express

and explicit and should not be left to implication”); United

States v. Loft, 10 M.J. 266, 267 (C.M.A. 1981) (noting that

paragraph 88a’s reference to explicit statement of approval or

disapproval “was only advisory”).

     The President, in promulgating the 1984 MCM, expressly used

mandatory language to govern the pertinent contents of the

convening authority’s action:   “The approval or disapproval



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United States v. Wilson, No. 06-0503/NA

shall be explicitly stated.”   R.C.M. 1107(d)(1).   The provisions

of R.C.M. 1107 governing action on the sentence serve three

complementary purposes.

     First, these provisions ensure that no servicemember will

endure a punishment that has not been “explicitly” approved by

the convening authority under R.C.M. 1107(d)(1).

     Second, these provisions ensure that no servicemember will

avoid a punishment adjudged by a court-martial as a result of

action at the convening authority stage unless the convening

authority “explicitly” disapproved the punishment under R.C.M.

1107(d)(1).

     Third, these provisions vest responsibility for taking

corrective action in the convening authority under R.C.M.

1107(g).

The convening authority’s action

     In the present case, the court-martial adjudged the

following sentence:   confinement for eight years, reduction to

the lowest enlisted grade, total forfeitures, and a dishonorable

discharge.    The convening authority took the following action:

that part of the sentence extending to confinement in excess of

three years and three months was disapproved.   The remainder of

the sentence, with the exception of the dishonorable discharge,

was approved and ordered executed.




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United States v. Wilson, No. 06-0503/NA

     The convening authority’s action “explicitly” identifies

one part of Appellant’s sentence as “disapproved”:   confinement

in excess of three years and three months.   The action

“explicitly” identifies the remainder of the sentence, except

for the dishonorable discharge, as “approved.”   Although the

action explicitly disapproves one part of the sentence and

explicitly approves other parts of the sentence, it does not

explicitly approve or disapprove the dishonorable discharge.

Corrective action

     The circumstances of the present case underscore the

importance of adhering to the President’s requirement for the

convening authority to “explicitly” identify which parts of the

sentence are approved and which are disapproved.   The staff

judge advocate, in his post-trial recommendation to the

convening authority, recommended approval of the dishonorable

discharge.   Appellant, in his post-trial submissions to the

convening authority, did not request to remain in service or

that the convening authority not approve a punitive discharge.

Instead, he limited his request to a plea that the convening

authority approve only a bad-conduct discharge rather than a

dishonorable discharge.   At the Court of Criminal Appeals,

Appellant described his sentence as containing a dishonorable

discharge and did not suggest that the convening authority had

disapproved that portion of the sentence.    Likewise, in the



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United States v. Wilson, No. 06-0503/NA

petition supplement filed with our Court, Appellant described

his sentence as containing a dishonorable discharge and did not

suggest that the convening authority had disapproved that

portion of the sentence.

     It is possible that the convening authority, in the

exercise of his broad discretion under Article 60(c), intended

to provide Appellant with a form of clemency -- disapproval of a

punitive discharge -- that Appellant did not request, expect, or

believe that he had received.   That would be the convening

authority’s prerogative.   If so, the convening authority was

obligated to follow the mandate of R.C.M. 1107(d)(1), which

requires that his “approval shall be explicitly stated.”    He did

not do so.

     In the present case, the convening authority explicitly

stated his approval and disapproval of parts of the sentence,

but did not do so with respect to the adjudged punitive

discharge.   His action is incomplete because the approval or

disapproval of the punitive discharge is not “explicitly

stated.”

     Accordingly, while I agree with the majority opinion that

the lower court erred in approving the adjudged punitive

discharge, I respectfully dissent from the majority’s conclusion

that the convening authority complied with the applicable legal

requirements for disapproval of the adjudged punitive discharge.



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United States v. Wilson, No. 06-0503/NA

The convening authority’s action is incomplete under R.C.M.

1107(d)(1), and it should be returned for corrective action

under R.C.M. 1107(g).




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United States v. Wilson, No. 06-0503/NA


     BAKER, Judge (dissenting):

     I agree with the majority’s statement of the law.     “[W]hen

the plain language of the convening authority’s action is

facially complete and unambiguous, its meaning must be given

effect.”   In contrast, in United States v. Politte, 63 M.J. 24,

26 (C.A.A.F. 2006), this Court looked to the surrounding

documentation in concluding that an otherwise clear action was

ambiguous.   Here, the Court sets the law straight.   However,

unlike the situation in Politte, I believe that the convening

authority’s action in this case is, in fact, ambiguous.    The

court-martial order here states:    “that part of the sentence

extending to confinement in excess of 3 years and 3 months is

disapproved.   The remainder of the sentence, with the exception

of the Dishonorable Discharge, is approved and will be

executed.”

     Thus, the action’s first sentence disapproves part of the

adjudged sentence.   In the next sentence, the convening

authority appears to approve the remainder of the sentence “with

the exception of the Dishonorable Discharge.”   As a result,

Appellant’s adjudged dishonorable discharge is not addressed in

either sentence and, thus, arguably falls into a limbo between

that which the convening authority expressly disapproved and

that which he expressly approved.   The result is an ambiguous

action.
United States v. Wilson, No. 06-0503/NA


     In contrast, in Politte, the convening authority’s action

stated:   “In the case of Hospital Corpsman Second Class Michael

J. Politte . . . the sentence is approved except for that part

of the sentence extending to a bad-conduct discharge.     Prior to

taking this action the Convening Authority did consider the

results of trial. . . .”   Id. at 25.

     This language, the majority concluded, “suggests that the

convening authority intended to disapprove the adjudged bad

conduct discharge.”   Id. at 26.    The dissent went further and

found the language facially clear and unambiguous:     “the

sentence is approved except for that part extending to a bad

conduct discharge.”   Id. at 28 (Erdmann, J., dissenting).    There

was no ambiguity because the convening authority did not

otherwise set out in a separate sentence those elements of the

sentence that were disapproved.     By implication, if the sentence

parts were not approved they were disapproved.

     For these reasons I view the present case as

distinguishable from Politte.      Therefore, while I agree with the

legal framework presented, I respectfully dissent from the

result and would remand for a new convening authority’s action.




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