UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         ALDYKIEWICZ, SALUSSOLIA, and WALKER
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Sergeant MICHAEL Q. COFFMAN
                            United States Army, Appellant

                                     ARMY 20190329

                                Headquarters, Fort Bliss
                           Michael S. Devine, Military Judge
                Lieutenant Colonel Brett A. Farmer, Staff Judge Advocate


For Appellant: Major Kyle C. Sprague, JA; Captain Alexander N. Hess, JA.

For Appellee: Major Hannah E. Kaufman, JA.


                                        11 May 2020

                                -----------------------------------
                                  OPINION OF THE COURT
                                  ON RECONSIDERATION
                                -----------------------------------

WALKER, Judge:

       This case involves the interplay between a convening authority’s action under
Article 60, Uniform Code of Military Justice, 10 U.S.C. § 860 [UCMJ] (2012 &
Supp. V 2018), and this court’s appellate jurisdiction under Article 66, UCMJ
(2018). For cases referred after 1 January 2019, as this case was, 1 these two articles
of the UCMJ were delinked with the implementation of new post -trial procedures
under the Military Justice Act of 2016. 2 Specifically, for cases in which the new

1
    This case was referred to trial on 26 April 2019.
2
  Prior to 1 January 2019, this court had appellate jurisdiction over cases in which
the sentence, as approved and acted on by the convening authority, included a
punitive discharge or confinement for one year or more. See UCMJ (2012 & Supp.
V 2018) art. 60; UCMJ (2012 & Supp. V 2018) art. 66(b)-(c). For cases referred to
trial after 1 January 2019, this court has jurisdiction over cases in which the

                                                                       (continued . . .)
COFFMAN—ARMY 20190329

post-trial procedures apply, this court’s appellate jurisdiction no longer requires a
convening authority’s action under Article 60, 3 UCMJ (2012 & Supp. V 2018), as
appellant argues, but rather, an entry of judgment by the military judge. See UCMJ
(2018) art. 66(b)(3).

                                  BACKGROUND

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave terminated by
apprehension and one specification of wrongful use of cocaine in violation of
Articles 86 and 112a, UCMJ. The military judge sentenced appellant to a bad -
conduct discharge, confinement for five months, and reduction to the grade of E -1.
Appellant was also credited with eighty-three days against his sentence to
confinement.

       Pursuant to a pretrial agreement between appellant and the convening
authority, the convening authority agreed to “[d]isapprove any confinement in
excess of 121 days.” Appellant elected not to submit matters to the convening
authority prior to the convening authority taking action on his sentence. See Rule
for Courts-Martial [R.C.M.] 1106(e). However, the convening authority in this case
failed to take action on appellant’s adjudged sentence (by indicating “N/A” in the
“action on the findings and/or the sentence” section of the convening authority
action form), in contravention of his requirement to do so pursuant to Article 60,
UCMJ (2012 & Supp. V 2018). 4 Not only did the convening authority’s failure to


(. . . continued)
sentence, as entered into the record by the military judge pursuant to Article 60c,
UCMJ, includes a punitive discharge or confinement for two years or more. UCMJ
(2018) art. 66(b)(3).
3
  This references Article 60, UCMJ (2012 & Supp V 2018) , which required a
convening authority to take action on a sentence , and not Article 60a, UCMJ (2018),
in which a convening authority is no longer required to act on a sentence but may act
on a sentence. See UCMJ (2012 & Supp. V 2018) art. 60(c)(2)(A); UCMJ (2018)
art. 60a(a)(1)(A).
4
  Executive Order 13825 requires that some portions of the version of Article 60,
UCMJ, in effect on the earliest date of misconduct for which an accused was
convicted shall apply to that accused’s post-trial process. Exec. Order 13825, 83
Fed. Reg. 9889, 9890 (1 Mar. 2018). The earliest date of misconduct for which
appellant was convicted was 2 September 2018. Accordingly, the relevant portion of
the version of Article 60, UCMJ, applicable in this case directs that “[a]ction on the

                                                                       (continued . . .)


                                          2
COFFMAN—ARMY 20190329

take action ignore his requirement to do so pursuant to Article 60, UCMJ (2012 &
Supp. V 2018), but it left the adjudged sentence in place in violation of the pretrial
agreement.

       We previously reviewed this case under Article 66, UCMJ (2018). United
States v. Coffman, ARMY 20190329, 2020 CCA LEXIS 104 (Army Ct. Crim. App. 1
April 2020) (summ. disp.). While appellant did not raise any assignments of error
before this court, he did note that the convening authority’s election to take no
action on the adjudged sentence was erroneous and inconsistent with the pretrial
agreement, which limited confinement to 121 days . Appellant acknowledged this
court could take corrective action under its Article 66(d), UCMJ (2018), authority. 5
The government agreed that the convening authority’s action on the sentence was in
contravention of the pretrial agreement and requested that this court take corrective
action.
       Based upon our Superior Court’s well established precedent that this court has
the authority to enforce a pretrial agreement where a convening authority has failed
to take action he was required to take under the terms of the agreement, 6 we took
corrective action and approved only so much of the sentence as was in compliance
with appellant’s pre-trial agreement. Coffman, 2020 CCA LEXIS 104, at *2.
Judicial economy dictated that we correct the error at our level rather than send the
case back for a corrected action. Id. “[I]t would be a classic waste of resources for
an appellate court to remand the case for consideration of [a] clearly meritorious
error, rather than simply to redress the wrong, right then and there.” United States
v. Welker, 44 M.J. 85, 91 (C.A.A.F. 1996).

      After we issued our decision approving only so much of appellant’s sen tence
as contemplated in the pretrial agreement, a ppellant requested this court reconsider
our holding that this court possessed the authority to take corrective action on
appellant’s sentence when the convening authority failed to take action on the

(. . . continued)
sentence of a court-martial shall be taken by the convening authority or by another
person authorized to act under this section.” UCMJ ( 2012 & Supp V 2018) art.
60(c)(2)(A) (emphasis added).
5
 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally presented one matter for this court’s consideration: that the post-trial
delay between the date of sentencing and the certification of the record of trial
warrants relief. As we did in our first review in appellant’s case, w e have given full
and fair consideration to this matter and find it to be without merit.
6
    United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69, 71-72 (C.M.A. 1972).




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COFFMAN—ARMY 20190329

sentence as required by Article 60, UCMJ (2012 & Supp V 2018). Appellant now
avers that this court lacked jurisdiction to take corrective action and argues there is
no approved sentence by the convening authority in the record which would confer
jurisdiction on this court under Article 66(b)(3), UCMJ ( 2018).

       Upon reconsideration, we find the convening authority’s error does not impact
this court’s jurisdiction and authority to review appellant’s case. Accordingly, while
it was error for the convening authorit y to fail to take action in appellant’s case, for
the reasons noted below, that error is neither a jurisdictional bar to this court’s
review authority under Article 66, UCMJ (2018), nor prejudicial to appellant’s
substantial rights.

                              LAW AND DISCUSSION

       This court is a court of limited jurisdiction, established by the Judge Advocate
General. UCMJ (2018) art. 66(a) (“Each Judge Advocate General shall establish a
Court of Criminal Appeals . . . .”); see also United States v. Arness, 74 M.J. 441,
442 (C.A.A.F. 2015) (“The courts of criminal appeals are courts of limited
jurisdiction, defined entirely by statute.”) (citation omitted). Historically, our
appellate jurisdiction under Article 66, UCMJ (2012 & Supp. V 2018), did not vest
without a convening authority’s action under Article 60, UCMJ (2012 & Supp V
2018). Prior to January 2019, our appellate jurisdiction to act with respect to the
findings and sentence of a courts-martial had two requirements: (1) a sentence
which included a punitive discharge or confinement for one year or more; that was
(2) acted on and approved by the convening authority as required by Article 60,
UCMJ (2012 & Supp V 2018). See UCMJ (2012 & Supp V 2018) art. 66(c) (“[A]
Court of Criminal Appeals may act only with respect to the findings and sentence as
approved by the convening authority.”). Therefore, until a convening authority
acted on a sentence pursuant to Article 60, UCMJ (2012 & Supp V 2018), this court
did not possess appellate jurisdiction.

      Considering that Congress has amended Article 60, UCMJ, over the past
decade, the President, via executive order, directed that the version of Article 60,
UCMJ, applicable to a court-martial is dependent upon the earliest date of
misconduct for which an accused was convicted. 7 In other words, the version of



7
  The Executive Order directs that the version of Article 60, UCMJ, in effect at the
time of appellant’s earliest offense is applicable to the extent it: requires convening
authority action on the sentence; permits convening authority action on findings;
authorizes the convening authority to mod ify the findings and sentence of a court -
martial in certain respects; authorizes proceedings in revision; and authorizes the

                                                                        (continued . . .)


                                           4
COFFMAN—ARMY 20190329

Article 60, UCMJ, applicable to an accused’s court-martial will be that version in
effect on the earliest date of misconduct for which an accused was convicted. Exec.
Order 13825, 83 Fed. Reg. at 9890. The earliest date of an offense for which
appellant was convicted in this case is 2 September 2018 (The Specification of
Charge II). Accordingly, the version of Article 60, UCMJ, applicable in this case is
the version that was in effect on 2 September 2018. Exec. Order 13825, 83 Fed.
Reg. at 9890.

       The older version of Article 60, UCMJ, directs that “[a]ction on the sentence
of a court-martial shall be taken by the convening authority or by another person
authorized to act under this section.” UCMJ (2012 & Supp V 2018) art. 60(c)(2)(A)
(emphasis added). Despite this mandate to take action, the convening authority in
this case, by indicating “N/A,” failed to take action on appellant’s adjudged
sentence. As such, we find the convening authority erred in his non-compliance
with Article 60, UCMJ (2012 & Supp V 2018), and indicating “N/A” or stating “No
Action” does not constitute taking action in a case. However, the convening
authority’s failure to take action does not deprive this court of jurisdiction in this
case.

       Congress amended post-trial procedures in the Military Justice Act of 2016 ,
which was effective 1 January 2019. See National Defense Authorization Act for
Fiscal Year 2017, P.L. 114-328 §§ 5321-5330 (23 Dec. 2016) [NDAA 2017]; Exec.
Order 13825, 83 Fed. Reg. at 9889. The charges against appellant were referred on
26 April 2019, and appellant was tried on 17 May 2019, thus requiring the
application of the post-trial procedures effective on 1 January 2019. 8 NDAA 2017, §
5542. Under the new post-trial procedures, this court’s appellate jurisdiction,
pursuant to Article 66, UCMJ (2018), is no longer dependent upon the convening
authority’s action. Instead, under Article 66, UCMJ (2018), a “Court of Criminal
Appeals [has] jurisdiction over a court -martial in which the judgment entered into
the record under [Article 60c, UCMJ] includes a sentence of . . . [a] bad-conduct
discharge . . . .” UCMJ (2018) art. 66(b)(3). Article 66(d)(1), UCMJ (2018), further
provides that this court “may act only with respect to the findings and sentence as
entered into the record under [Article 60c, UCMJ].” Article 60c, UCMJ, 9 requires


(. . . continued)
convening authority to approve, disapprove, commute, or suspend a sentence. See
Exec. Order 13825, 83 Fed. Reg. at 9890.
8
 As noted above, the exception to this rule is the applicable version of Article 60,
UCMJ. See Exec. Order 13825, 83 Fed. Reg. at 9890.
9
    Article 60c, UCMJ, did not exist prior to 1 January 2019.




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COFFMAN—ARMY 20190329

the military judge to include in the judgment the Statement of Trial Results
(including pleas, findings, and sentence), as well as “any post -trial action by the
convening authority.” UCMJ (2018) art. 60c(a)(1). Here, the judgment entered into
the record includes a sentence to a bad -conduct discharge, and correctly reflects that
the convening authority took no post-trial action.

       The requirements of Article 66, UCMJ (2018), conferring jurisdiction on this
court, were satisfied upon the military judge’s entry of judgment into the record
which included an adjudged bad conduct discharge, and which reflected the
convening authority’s failure to take action in this case. As such, the entry of
judgment properly reflected all of the elements required by Article 60c, UCMJ
(2018), to confer jurisdiction on this court. Finding the jurisdictional requirements
of Article 60c, UCMJ (2018), satisfied, we further find that the convening
authority’s error in not taking action on appellant’s sentence does not otherwise
invalidate the entry of judgment nor impact this court’s jurisdiction and authority to
review appellant’s case. Therefore, we reject appellant’s argument that this court
lacks jurisdiction. We similarly reject appellant’s argument that this court
improperly relied upon Cox, 46 C.M.R. 69, in holding that it possessed the authority
to take corrective action in appellant’s case . As we find we have jurisdiction over
appellant’s case, our ability to remedy a deficient convening authority action, as
discussed in Cox, remains intact. 10

       As the convening authority’s error is not jurisdictional in nature, we test the
error for prejudice pursuant to Article 59(a), UCMJ. See United States v. Alexander,
61 M.J. 266, 269 (C.A.A.F. 2005) (“[W]here an error is procedural rather than
jurisdictional in nature we test for material prejudice to a substantial right to
determine whether relief is warranted.”) (citations omitted). To determine
harmlessness in this context—that is whether appellant’s substantial right to seek
clemency was materially prejudiced—we considered: (1) appellant’s request for, or


10
  As the convening authority never disapproved the portion of the sentence to
confinement exceeding 121 days, we note that the entry of judgment in this case
reflects only the adjudged sentence, which is unlawful pursuant to the pretrial
agreement. Despite this reflection of an illegal sentence in the entry of judgment , it
nonetheless confers jurisdiction on this court t o review appellant’s case because the
technical requirements of Article 60c, UCMJ (2018) are satisfied, as discussed
above. We analyze the error in the entry of judgment similar to the way we viewed
errors in a convening authority’s action prior to the effective date of the Military
Justice Act of 2016. See Cox, 46 C.M.R. 69. That is, once we have jurisdiction to
review appellant’s case, as conferred by the entry of judgment, we are authorized to
remedy a sentence that is unlawful because it does not comply with a pretrial
agreement. See id.




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