              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                           No. ACM 38559 (f rev)
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                       Christopher R. PEREZ
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Upon further review
                           Decided 8 March 2019
                          ________________________

Military Judge: Donald R. Eller, Jr. (trial); James R. Dorman (rehear-
ing).
Approved sentence: On remand the convening authority withdrew and
dismissed the charge and its four specifications after arraignment.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Senior Judge HUYGEN delivered the opinion of the court, in which
Judge MINK and Judge POSCH joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

HUYGEN, Senior Judge:
   After review under Article 66, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 866, the court affirmed the findings of guilty of the charge (here-
                 United States v. Perez, No. ACM 38559 (f rev)


inafter Charge II) and its Specification 4, set aside the findings of guilty of
Specifications 1 through 3 of Charge II and the sentence, returned Appel-
lant’s case to The Judge Advocate General for remand to the convening au-
thority, and authorized a rehearing. At the rehearing, Appellant was ar-
raigned on Charge II and its Specifications 1 through 3 but deferred entry of
pleas. The charge and all four specifications were later withdrawn and dis-
missed by the convening authority. The case was returned to the court for
further review.
    Appellant did not submit any assignment of error but instead filed a mo-
tion to withdraw his case from appellate review pursuant to Article 61,
UCMJ, 10 U.S.C. § 861. Without acting on the motion, we specified the fol-
lowing issue to be briefed by Appellant and Appellee:
       WHETHER THE CONVENING AUTHORITY HAD THE AU-
       THORITY PURSUANT TO RULE FOR COURTS-MARTIAL
       1107(e)(2) OR OTHER APPLICABLE LEGAL AUTHORITY
       TO DISAPPROVE AN AFFIRMED FINDING OF GUILTY
       AND DISMISS SPECIFICATION 4 OF CHARGE II AND, IF
       NOT, WHETHER APPELLANT’S CASE SHOULD BE RE-
       MANDED TO THE CONVENING AUTHORITY FOR FUR-
       THER ACTION.1
    For the reasons below, we deny Appellant’s motion to withdraw from ap-
pellate review and conclude that the convening authority exceeded the scope
of our remand and did not have the authority to withdraw and dismiss Speci-
fication 4 of Charge II and Charge II. Instead of again remanding Appellant’s
case, we dismiss the charge and its specifications.

                                 I. BACKGROUND
   Appellant was originally tried in 2013 for three specifications of negligent
dereliction of duty, three specifications of child endangerment, and one speci-


1 The specified issue reflects the Manual for Courts-Martial, United States (2016 ed.)
(2016 MCM) and the version of Rule for Courts-Martial (R.C.M.) 1107 in effect at the
time of the convening authority’s action to withdraw and dismiss the charge and its
specifications in 2017, not the 2012 MCM and the version of R.C.M. 1107 in effect at
the time of the court’s remand in 2015. Although the rule’s subparagraph numbering
and lettering changed between the 2012 and 2016 MCM, its substantive provisions
did not. Other than in the specified issue and as noted, this opinion’s references to
R.C.M. 1107 are to the version in the 2012 MCM. However, this opinion’s references
to UCMJ articles are to the version of the UCMJ in the 2016 MCM.




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                 United States v. Perez, No. ACM 38559 (f rev)


fication of adultery, in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§
892, 934. He pleaded not guilty to the charges and specifications, was found
not guilty of negligent dereliction of duty (Charge I, Specifications 1 through
3), but was convicted of child endangerment (Charge II, Specifications 1
through 3) and adultery (Charge II, Specification 4). He was sentenced to a
dishonorable discharge, three years of confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority ap-
proved the sentence as adjudged.
    On appeal, Appellant raised nine issues, and the court specified an addi-
tional issue. United States v. Perez, No. ACM 38559, 2015 CCA LEXIS 327, at
*2 (A.F. Ct. Crim. App. 12 Aug. 2015) (unpub. op.). The court decided Appel-
lant’s case on the specified issue, affirmed his conviction of Charge II and its
Specification 4, and set aside his conviction of Specifications 1 through 3 of
Charge II and the sentence. Id. at *2, 14. Now at issue, the decretal para-
graph of the court’s opinion ended as follows:
       The record is returned to The Judge Advocate General for re-
       mand to the convening authority who may order a rehearing on
       Charge II, Specifications 1 through 3, and the sentence or take
       other discretionary action under R.C.M. 1107(e)(1)(B). Upon
       completion of the convening authority’s subsequent action, the
       case shall be returned to this court for further review. United
       States v. Johnson, 45 M.J. 88, 89–90 (C.A.A.F. 1996).
Id. at *14–15.
    In 2015, the convening authority re-referred the set-aside charge and
three specifications of child endangerment to trial by court-martial with the
intent that, after findings, Appellant would be sentenced for the affirmed
adultery conviction and any conviction for child endangerment. Appellant
was arraigned but deferred entry of pleas.
    In 2017, after multiple attempts by the convening authority to retry Ap-
pellant for child endangerment, Appellant submitted a request for adminis-
trative discharge in lieu of trial by court-martial. The convening authority
approved the request, and Appellant was discharged with an under other
than honorable conditions characterization after he received nonjudicial pun-
ishment for the offenses of child endangerment and adultery pursuant to Ar-
ticle 15, UCMJ, 10 U.S.C. § 815. By order dated 2 September 2017, the con-
vening authority withdrew and dismissed Charge II and its three specifica-
tions for child endangerment as well as its fourth specification for adultery,
which had been affirmed by this court.




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                 United States v. Perez, No. ACM 38559 (f rev)


                                 II. DISCUSSION
A. Withdrawal from Appellate Review
    The United States Court of Appeals for the Armed Forces (CAAF) articu-
lated in United States v. Johnson that, once appellate jurisdiction attaches in
a court-martial, such as by virtue of the severity of the approved sentence,
“the case then moves along a ‘time-line’ or statutory track, forward but some-
times backward, until, at some point, a decision becomes final, and no further
appeal is available or necessary. . . . At no time prior to that point [of finality]
does a case fall off this track.” 45 M.J. at 89–90 (citation omitted). As a result,
even though Johnson was sentenced to no punishment at the rehearing of his
case and such a sentence at an original hearing would not have led to appel-
late review under Article 66, UCMJ, the Army Court of Criminal Appeals
(ACCA) did not lose “continuing appellate jurisdiction” under Article 66,
UCMJ, to review the case. Id. at 89.
    Article 61, UCMJ, allows an appellant to withdraw at any time from ap-
pellate review under Article 66, UCMJ, except in a case with an approved
sentence that includes death. 10 U.S.C. § 861. If Appellant had been retried
and resentenced, we would agree with Appellant and Appellee that Article
61(b), UCMJ, and Appellant’s motion to withdraw from appellate review
would stop our further review. But Appellant was not retried or resentenced
and his motion to withdraw from appellate review does not stop our review of
the action taken pursuant to our remand.
    In United States v. Montesinos, 28 M.J. 38, 40 (C.M.A. 1989), the appel-
lant was tried and sentenced by a special court-martial. The findings and
sentence were affirmed by the Army Court of Military Review (ACMR), the
ACCA’s predecessor. Id. After a remand by the Court of Military Appeals, the
CAAF’s predecessor, the ACMR remanded the case for a “limited evidentiary
hearing” after which the case “will be returned to this court.” Id. (citation
omitted). The ACMR also specified in its remand that, if a hearing was im-
practicable, the convening authority could order a rehearing on sentence. Id.
(citation omitted). An evidentiary hearing was deemed impracticable and a
sentence rehearing ordered. Id. Montesinos then requested administrative
discharge for the good of the service. Id. The convening authority approved
the request, deemed the sentence rehearing impracticable, dismissed the
charges, and set aside the previously affirmed findings of guilt as well as the
sentence. Id. at 40–41. When the case was returned to the ACMR, the appel-
lant moved to withdraw from appellate review, which motion the ACMR de-
nied. Id. at 41.
   Montesinos is most often cited for its holding on the scope of an appellate
court’s remand, and we do so below. However, we cite it here for the proposi-


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                 United States v. Perez, No. ACM 38559 (f rev)


tion that a withdrawal from appellate review has no effect on judicial action
that has already been taken. Id. at 46. Thus, Appellant’s 2017 motion to
withdraw from appellate review does not affect this court’s 2015 review and
remand. “Furthermore, if the convening authority took action which exceeded
the scope of the remand, subsequent withdrawal of the accused’s appeal
would not affect [our] authority . . . to set aside the ultra vires action of the
convening authority in order to protect the integrity of the judicial process.”
Id. Correspondingly, we deny Appellant’s motion to withdraw from appellate
review and next address the convening authority’s action of withdrawal and
dismissal of Charge II and its Specification 4.
B. Scope of Remand
    The Montesinos opinion articulated that, in a case subject to Article 66,
UCMJ, review, “the convening authority loses jurisdiction of the case once he
has published his action . . . and from that point on, jurisdiction is in the [ap-
pellate court]. The only further contact that the convening authority has with
the case occurs in the event of a remand . . . .” Id. at 42. As in Montesinos, ini-
tial appellate review of Appellant’s case resulted in a remand. Perez, unpub.
op. at *15. The remand in Appellant’s case contained three specific provi-
sions: (1) the convening authority could order a rehearing on Specifications 1
through 3 of Charge II and the sentence or (2) the convening authority could
take other discretionary action under R.C.M. 1107(e)(1)(B), and then (3) the
case would be returned to this court for further review. Id. This opinion is
predicated on the review that occurred when provision (3) was satisfied.
    Our 2015 remand framed provisions (1) and (2) as alternatives: the con-
vening authority could either order a rehearing on the findings and sentence
or take action under R.C.M. 1107(e)(1)(B). See id. Because those were the on-
ly two options specified in the remand, they were the only two options availa-
ble to the convening authority. See Montesinos, 28 M.J. at 44 (“If [the CAAF]
remands a case to [a court of criminal appeals (CCA)], that court can only
take action that conforms to the limitations and conditions prescribed by the
remand. Of course, the same principle applies when [a CCA] remands a case
to a convening authority for further action.” (citation omitted)).
   At the time of the 2015 remand, R.C.M. 1107(e)(1)(B) described when a
convening authority could order a rehearing and included, inter alia, the fol-
lowing:
       (iii) When authorized to do so by superior competent authority.
       If the convening authority finds a rehearing as to any offenses




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                 United States v. Perez, No. ACM 38559 (f rev)


       impracticable, the convening authority may dismiss those spec-
       ifications and, when appropriate, charges.2
       (iv) Sentence reassessment. If a superior authority has approved
       some of the findings of guilty and has authorized a rehearing
       as to other offenses and the sentence, the convening authority
       may, unless otherwise directed, reassess the sentence based on
       the approved findings of guilty and dismiss the remaining
       charges.3
    The convening authority in Appellant’s case did in fact order and attempt
several times a rehearing on Specifications 1 through 3 of Charge II, which
would have ended with a rehearing on the sentence for any convicted offens-
es, including Specification 4 of Charge II. But, by 2017, the convening author-
ity found impracticable a rehearing on the child endangerment offenses. The
convening authority withdrew and dismissed Specifications 1 through 3,
which action we find was consistent with the remand and R.C.M.
1107(e)(1)(B)(iii) and thus proper.
    Conversely, we find inconsistent with the remand and thus improper the
convening authority’s withdrawal and dismissal of Specification 4 and
Charge II. R.C.M. 1107(e)(1)(B)(iii) provides a solution of dismissal when the
problem is an impracticable rehearing on offenses, which was the case for
Specifications 1 through 3. R.C.M. 1107(e)(1)(B)(iv) provides the solution
when the problem involves findings of guilty already approved by a superior
authority, which was the case for Specification 4. Because this court had al-
ready affirmed Appellant’s conviction for adultery, or Specification 4 of
Charge II, the convening authority could not dismiss the specification and
charge. See Montesinos, 28 M.J. at 44. Instead, the convening authority could
only reassess the sentence, although he could have reassessed a sentence of
no punishment had he wished to minimize the impact of the adultery convic-
tion on Appellant. By dismissing Specification 4 and Charge II, the convening
authority “ventured beyond the scope of the remand” and acted improperly.
See United States v. Carter, 76 M.J. 293, 296 (C.A.A.F. 2017) (citation omit-
ted) (affirming this court’s set aside and dismissal of the reheard charge and


2 “The convening authority may not take any actions inconsistent with directives of
superior competent authority. Where that directive is unclear, appropriate clarifica-
tion should be sought from the authority issuing the original directive.” R.C.M.
1107(e)(1)(B)(iii), Discussion.
3 As noted previously, this language is now found in R.C.M. 1107(e)(2)(B)(ii)–(iii)
(2016 MCM).




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                United States v. Perez, No. ACM 38559 (f rev)


specifications after the convening authority conducted a rehearing not au-
thorized by the court’s previous remand wherein the court also dismissed the
charges). Therefore, we conclude the convening authority’s action to with-
draw and dismiss Specification 4 and Charge II was void and we set it aside.
C. Remedy
    Having found that the convening authority’s action exceeded the scope of
our remand, we are left to consider the appropriate remedy for the unique
dilemma created by the convening authority’s ultra vires action in Appellant’s
case. We conclude that the appropriate remedy for the legal error is to set
aside the finding of guilty for Specification 4 of Charge II.
    We first acknowledge that a possible solution is another remand, but we
recognize that this solution would also require significant time and operate to
the detriment of Appellant. We therefore decline to “protract the case further
by remanding again.” See Montesinos, 28 M.J. at 47. We next acknowledge
that we could reassess a sentence, even a sentence of no punishment, for the
previously affirmed finding. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2016);
see Montesinos, 28 M.J. at 40, 47 (affirming the ACMR’s sentence of no pun-
ishment as appropriate for affirmed findings of guilt for stealing $1,900
worth of personal property). We decline to do so.
    The law of this case includes the finding of guilt of Specification 4 that
was found to be correct in law and fact and thus affirmed. In United States v.
Ruppel, the CAAF defined the doctrine of law-of-the-case: “when a court de-
cides upon a rule of law, that decision should continue to govern the same is-
sues in subsequent stages in the same case.” 49 M.J. 247, 253 (C.A.A.F. 1998)
(quoting Arizona v. California, 460 U.S. 605, 618 (1983)). There are two rea-
sons why the doctrine does not determine the outcome of Appellant’s case.
    First, we are neither revisiting the issue of legal and factual sufficiency of
Specification 4 nor making a contrary finding, i.e., that the approved finding
of guilt was not correct in law and fact. Instead, we are considering Appel-
lant’s case in light of the circumstances that have changed since our previous
determination of legal and factual sufficiency. Moreover, we are assessing a
different issue—whether the convening authority exceeded the scope of our
remand—and finding legal error therein.
    Second, the law-of-the-case doctrine does not require a result of manifest
injustice. See, e.g., United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)
(“[T]he law-of-the-case doctrine does not preclude this Court from examining
the legal ruling of a subordinate court . . . . However, we are reluctant to ex-
ercise this power and, as a rule, reserve it for those cases where the lower
court’s decision is ‘clearly erroneous and would work a manifest injustice’ if
the parties were bound by it.” (citation omitted)). Unlike the CAAF in Doss,


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                United States v. Perez, No. ACM 38559 (f rev)


we are not examining the ruling of a subordinate court. Moreover, we are not
finding error in our previous determination of legal and factual sufficiency.
However, we are finding legal error in the convening authority’s action post-
remand and cannot ignore the manifest injustice that would result if we ap-
plied the law-of-the-case doctrine to leave undisturbed not only our previous
determination of legal and factual sufficiency but also the resulting affir-
mance.
    In devising the remedy to the legal error, we readily accept that we “may
not decide a case on equitable grounds.” United States v. Nerad, 69 M.J. 138,
144 (C.A.A.F. 2010) (citing United States v. Waymire, 26 C.M.R. 32, 34–35
(1958)). We also freely admit that we do not base our decision on any assess-
ment of the nature, seriousness, or criminality of adultery, the offense
charged in Specification 4. Adultery is clearly proscribed by Article 134,
UCMJ, and we do not disagree that it should be criminal, see Nerad, 69 M.J.
at 147, or that it should have been charged in Appellant’s case. In other
words, we do not believe we have unfettered discretion to disapprove a find-
ing, especially one that we have previously found to be correct in law and
fact. Our decision to remedy by set-aside is based not on equity but on legal
error and the very particular facts and circumstances of Appellant’s case af-
ter remand.
    “Article 66(c), UCMJ, empowers [us] to ‘do justice,’ with reference to some
legal standard, but does not grant [us] the ability to ‘grant mercy.’” Id. at 146
(quoting United States v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998)). Pursuant
to Article 66(c), UCMJ, when we review a case, we “review the entire record
and approve only that which ‘should be approved.’” United States v. Chin, 75
M.J. 220, 223 (C.A.A.F. 2016) (quoting Article 66(c), UCMJ, 10 U.S.C. §866
(c) (2016)) (affirming this court’s decision to disapprove and merge specifica-
tions despite the appellant’s waiver of the issue at trial because the decision
was based on a legal standard and within the limitations of Article 66(c),
UCMJ, review).
    Above, we identified the legal standard to assess the scope of remand and
the legal error of the convening authority’s action, which exceeded the scope
of our remand. But after our remand, Appellant reasonably relied on the con-
vening authority’s belief that he could withdraw and dismiss Charge II and
all four of its specifications. Consequently, Appellant accepted nonjudicial
punishment for child endangerment and adultery and an administrative dis-
charge with the worst possible characterization. Thus, we now exercise our
authority under Article 66(c), UCMJ, to review the entire record, including
the post-remand record, and determine that the finding of guilt for Specifica-
tion 4 and Charge II should be not approved but set aside. To do otherwise
would result in manifest injustice.


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                United States v. Perez, No. ACM 38559 (f rev)


                              III. CONCLUSION
    Appellant’s motion to withdraw from appellate review is DENIED. The
convening authority having already withdrawn and dismissed Specifications
1 through 3, the findings of guilt of Specification 4 of Charge II and Charge II
are SET ASIDE and DISMISSED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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