                       UNITED STATES, Appellee

                                    v.

                      Derek C. BURCH, Corporal
                    U.S. Marine Corps, Appellant

                              No. 08-0092
                       Crim. App. No. 200700047

       United States Court of Appeals for the Armed Forces

                      Argued September 24, 2008

                       Decided October 16, 2008

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.


                                 Counsel


For Appellant:    Lieutenant Heather L. Cassidy, JAGC, USN
(argued).

For Appellee: Major James W. Weirick, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN (on brief).


Military Judge:   J. G. Meeks




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Burch, No. 08-0092/MC


    Judge Ryan delivered the opinion of the Court.

    The sole point of dispute between the parties in this case

is whether Appellant was prejudiced by serving 223 days in

confinement, when that period of confinement was suspended by

the convening authority in a facially complete and final action

issued in accordance with Rule for Courts-Martial (R.C.M.)

1107(f).1   We hold that where a clear and unambiguous action is

the convening authority’s last action delimiting the period of

confinement to be served, an accused is prejudiced by being

confined for a period in excess of the authorized sentence.     The

United States Navy-Marine Corps Court of Criminal Appeals (CCA)

erred in relying on facts and circumstances predating the

convening authority’s unambiguous action to find that Appellant

was not prejudiced.

    The facts relevant to this decision are few and undisputed.

A special court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of willfully

damaging military property of the United States, assault

consummated by a battery, and assault consummated by a battery

1
  On Appellant’s petition, we granted review of the following
issue:

     WHERE THE LOWER COURT FOUND A CONSTITUTIONAL
     VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS
     NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN
     MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED
     UNDER THE CONVENING AUTHORITY’S UNAMBIGUOUS ACTION?


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United States v. Burch, No. 08-0092/MC


upon a child under the age of sixteen years, in violation of

Articles 108 and 128, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 908, 928 (2000).   The adjudged sentence included

confinement for a period of one year, reduction to pay grade E-

1, and a bad-conduct discharge.   As provided in the pretrial

agreement (PTA), the convening authority suspended all

confinement in excess of forty-five days on the condition that

Appellant commit no misconduct in violation of the UCMJ during

the period of suspension.   Appellant served forty-five days of

confinement and was released on June 30, 2005.2

     Subsequent to Appellant’s release, but before either the

period of suspension set forth in the PTA had run or the

convening authority had acted, Appellant committed additional

misconduct in violation of the terms of his PTA.    The suspension

of the remainder of his adjudged confinement was properly

vacated in accordance with the procedures prescribed in R.C.M.

1109 and Appellant was returned to the brig at Camp Pendleton on

January 24, 2006, to serve the remainder of his adjudged period

of confinement.

     On March 11, 2006, the convening authority took action on

the sentence, in accordance with R.C.M. 1107.     The parties agree

with, and the record supports, the CCA’s conclusion that the

2
  While the release order was dated June 28, 2005, as referenced
in the CCA’s opinion, the order did not authorize Appellant’s
release until June 30, 2005.

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United States v. Burch, No. 08-0092/MC


convening authority’s action was facially complete and

unambiguous.   United States v. Burch, No. NMCCA 200700047, 2007

CCA LEXIS 351, at *15-*16, 2007 WL 2745706, at *5-*7 (N-M. Ct.

Crim. App. Sept. 13, 2007).    The action stated:   “Execution of

that part of the sentence adjudging confinement in excess of 45

days is suspended for a period of 12 months . . . .”     Special

Court-Martial Order No. 70-05 (Mar. 11, 2006).      Despite this

action, the Government neither released Appellant from

confinement nor made efforts to vacate the second suspension on

or anytime after the date of the convening authority’s action.

Instead, Appellant remained in confinement until October 20,

2006, having served 223 days beyond the sentence that had been

authorized by the convening authority.

     In reviewing Appellant’s confinement, the CCA cited this

Court’s decision in United States v. Wilson, 65 M.J. 140

(C.A.A.F. 2007), and recognized that the additional 223 days of

confinement were not authorized by the convening authority.

Burch, 2007 CCA LEXIS 351, at *16, 2007 WL 2745706, at *5.

However, the CCA went on to hold that Appellant was not

prejudiced by serving the additional confinement.     Id. at *18-

*19, 2007 WL 2745706, at *6.   In the CCA’s view, considering the

record as a whole, there was no prejudice because it was

“evident that the overwhelming wealth of evidence indicate[d]

that, notwithstanding the plain language of the convening


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United States v. Burch, No. 08-0092/MC


authority’s action, the convening authority did not intend to

release the appellant from confinement prior to completion of

his adjudged sentence.”   Id. at *18, 2007 WL 2745706, at *6.    We

disagree.

     The CCA’s conclusion that Appellant was not prejudiced

explicitly rests on facts extrinsic to and predating the

convening authority’s action, ignoring the significance and

timing of the action itself and our holding in Wilson.     The CCA

cited no legal authority for the novel precept that confinement

not authorized by a convening authority’s action does not

prejudice an accused because events preceding the action suggest

that at one time the convening authority “did not intend to

release Appellant from confinement prior to completion of his

adjudged sentence.”

     A convening authority’s action on the sentence is within

“the sole discretion of the convening authority” as a “matter of

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

860(c)(1); R.C.M. 1107(b)(1).   See, e.g., United States v.

Davis, 58 M.J. 100, 102 (C.A.A.F. 2003) (noting the convening

authority’s “substantial discretion” and important role in the

sentencing process); United States v. Finster, 51 M.J. 185, 186

(C.A.A.F. 1999) (holding that the convening authority “has

unfettered discretion to modify the findings and sentence for

any reason -- without having to state a reason -- so long as


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United States v. Burch, No. 08-0092/MC


there is no increase in severity”).   “[W]hen the plain language

of the convening authority’s action is facially complete and

unambiguous, its meaning must be given effect,” without

reference to circumstances not reflected in the action itself.

Wilson, 65 M.J. at 141.   If the convening authority’s action is

to be given effect, as required by R.C.M. 1107, attendant

circumstances preceding the action may not be utilized to

undermine it.

     The effect of the convening authority’s action in this

case, as the CCA purported to recognize, is that confinement in

excess of forty-five days was suspended and no other confinement

was approved.   In contradiction to this action, Appellant served

223 days of confinement that both the parties and the CCA agree

were suspended by the convening authority.   Within the military

justice system, punishment suspended by a convening authority

may not be executed.   R.C.M. 1113(a) (“No sentence of a court-

martial may be executed unless it has been approved by the

convening authority.”).   Contrary to the CCA’s analysis, we

conclude that the prejudice in this case is both obvious and

apparent and may not be attenuated by facts predating the final

action of the convening authority.    Holding otherwise would

neither give effect to a clear and unambiguous action by the

convening authority, nor adhere to this Court’s holdings in

Wilson and Finster.


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United States v. Burch, No. 08-0092/MC


      The September 13, 2007, decision of the United States

Navy-Marine Corps Court of Criminal Appeals is reversed.   The

record of trial is returned to the Judge Advocate General of the

Navy for remand to the Court of Criminal Appeals to determine

and award meaningful sentence relief to Appellant pursuant to

its powers under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).




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