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

                             No. ACM S32532
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                         Joshua D. STAMPS
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 14 February 2019
                         ________________________

Military Judge: Jennifer J. Raab.
Adjudged sentence: Bad-conduct discharge, confinement for 28 days, for-
feiture of $800.00 pay per month for six months, and reduction to E-1.
Sentence adjudged 8 May 2018 by SpCM convened at Keesler Air Force
Base, Mississippi.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
PER CURIAM:
    This case was submitted for our review on its merits without assignment
of error. During our review we noted that the convening authority’s action,
dated 3 July 2018, is ambiguous as to the sentence the convening authority
approved. Thus, we return the record of trial to The Judge Advocate General
for remand to the convening authority to withdraw both the 3 July 2018 action
and the 25 June 2018 action and to substitute a corrected action.
                   United States v. Stamps, No. ACM S32532


                                  I. BACKGROUND
    In accordance with Appellant’s pleas pursuant to a pretrial agreement, a
special court-martial composed of a military judge found Appellant guilty of
one specification of wrongful use of heroin on divers occasions and one specifi-
cation of wrongful use of hydrocodone in violation of Article 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 912a. On 8 May 2018, the mili-
tary judge sentenced Appellant to a bad-conduct discharge, confinement for 28
days, forfeiture of $800.00 pay per month for six months, and reduction to the
grade of E-1.
    Following Appellant’s sentencing, Appellant was confined at the Harrison
County (Mississippi) Adult Detention Center (HCADC), where he remained
until 22 May 2018. On that day—the fourteenth day of Appellant’s adjudged
sentence to confinement—the convening authority ordered Appellant’s release
after Appellant filed an Article 138, UCMJ, 10 U.S.C. § 938, complaint about
the conditions at the HCADC.1
    On 1 June 2018, the staff judge advocate (SJA) prepared a recommendation
(SJAR) for the convening authority. The SJA advised in the SJAR, and later in
the addendum to the SJAR, that the convening authority “commute 14 days of
[Appellant’s sentence to] confinement to restriction to the limits of Keesler Air
Force Base, Mississippi.”2 On 25 June 2018, the convening authority signed an
action that stated inter alia:
       [O]nly so much of the sentence as provides for reduction to E-1,
       forfeiture of $800.00 pay per month for six months, confinement
       for 14 days, restriction to the limits of Keesler Air Force Base for
       14 days and a bad conduct discharge, and except for the bad con-
       duct discharge, will be executed. The term of confinement having
       been served, no place of confinement is designated.
   Without explanation in the record of trial and without withdrawing the 25
June 2018 action, the convening authority signed a second action on 3 July
2018 that stated inter alia:
       [T]he sentence is approved and except for the bad conduct dis-
       charge, will be executed. The portion of the sentence providing


1The day before the convening authority ordered Appellant’s release, she emailed Ap-
pellant’s defense counsel, “I support [Appellant’s] release from the [HCADC] . . . [and]
supervised restriction at Keesler [Air Force Base] for the remainder of the sentence.”
2 The SJA advised the convening authority she did not have the power to disapprove,
commute, or suspend the punitive discharge but made no recommendation to approve
the bad-conduct discharge. Nonetheless, it is clear that the convening authority in-
tended to approve the discharge.


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                  United States v. Stamps, No. ACM S32532


       for confinement for 28 days is changed to 14 days confinement
       and 14 days restriction to the limits of Keeler [sic] AFB. The re-
       maining approved sentence remains unchanged. The sentence to
       confinement having already been served, no place of confine-
       ment is designated.
    In the record, the second action is accompanied by a 3 July 2018 memoran-
dum titled, “Explanation of Sentence Mitigation – U.S. v. SSgt Joshua D.
Stamps,” signed by the SJA, and indorsed by the convening authority. In the
memo, the SJA states that the convening authority ordered Appellant’s early
release because of Appellant’s complaint about the conditions of confinement.

                                 II. DISCUSSION
   We note the following errors in the convening authority actions:
   ● The convening authority signed two documents captioned “Action of the
   Convening Authority,” the first on 25 June 2018 and the second on 3 July
   2018. The second action bears no indication that the first action is with-
   drawn and that the second action is substituted for the first.
   ● The action dated 25 June 2018 wrongly implies that “restriction to the
   limits of Keesler Air Force Base for 14 days” was part of the adjudged sen-
   tence; it was not. In addition, the action omits the language “is approved.”
   ● The action dated 3 July 2018 seemingly approves the adjudged sentence
   in its entirety except that, in the second sentence of the action, 14 days of
   confinement is “changed” to 14 days of restriction to base. There are no
   words of commutation, and “Keesler” is misspelled.
    Article 60, UCMJ, provides, “Action on the sentence of a court-martial shall
be taken by the convening authority.” Article 60(c)(2)(A), UCMJ, 10 U.S.C. §
860(c)(2)(A). When taking action, the convening authority “may approve, dis-
approve, commute, or suspend the sentence of the court-martial in whole or in
part,” subject to exceptions not relevant to Appellant’s case. Article 60(c)(2)(B),
UCMJ. Rule for Courts-Martial (R.C.M.) 1107(d)(1)(D) addresses when the
convening authority provides a written explanation for disapproving, commut-
ing, or suspending a sentence in whole or in part. The Discussion switches
“commute” to “mitigate” and states, “When mitigating confinement . . ., the
convening authority should use the equivalencies at R.C.M. 1003(b)(5)–(6), as
appropriate.” R.C.M. 1003(b)(5) provides, “Restriction [to specified limits] may
be adjudged for no more than 2 months for each month of authorized confine-
ment and in no case for more than 2 months.”




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                   United States v. Stamps, No. ACM S32532


    “Because of the importance of the convening authority's action in the court-
martial process,” the United States Court of Appeals for the Armed Forces re-
quires “a clear and unambiguous convening authority action.” United States v.
Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (footnote omitted). We may “return an
action to the convening authority if further clarification of the meaning of the
action is necessary.” Id. at 25 (footnote omitted). We may also instruct a con-
vening authority to withdraw an incomplete, ambiguous, or erroneous action
and substitute a corrected action. R.C.M. 1107(g); see also R.C.M. 1107(f)(2).
    We find that both actions in Appellant’s case are ambiguous, particularly
as to whether the convening authority intended to approve the sentence but
commute 14 days of confinement to 14 days of restriction to base. We may use
surrounding documentation to interpret an otherwise unclear action. See
Politte, 63 M.J. at 26 (citing United States v. Loft, 10 M.J. 266 (C.M.A. 1981)).
We can discern from the SJAR and the combined language of the two actions
that the convening authority intended to commute only so much of the sentence
as provides for 28 days of confinement to 14 days of confinement and 14 days
of restriction to the limits of Keesler Air Force Base, Mississippi, and then to
approve the sentence as commuted to confinement for 14 days, restriction to
the limits of Keesler Air Force Base, Mississippi, for 14 days, a bad-conduct
discharge, forfeiture of $800.00 pay per month for 6 months, and reduction to
the grade of E-1. Accordingly, we return the case to the convening authority to
resolve the ambiguity and correct the action.

                                  III. CONCLUSION
    The record of trial is returned to The Judge Advocate General for remand
to the convening authority to withdraw both actions, substitute a corrected ac-
tion, provide a written explanation of the reasons for such action if necessary,3
and issue a corrected court-martial order. Thereafter, the record of trial will be




3      If the convening authority . . . acts to disapprove, commute, or suspend,
       in whole or in part, the sentence of the court-martial for an offense
       (other than a qualifying offense), the convening authority . . . shall pro-
       vide at that same time, a written explanation of the reasons for such
       action. The written explanation shall be made a part of the record of
       the trial and action thereon.
Article 60(c)(2)(C), UCMJ, 10 U.S.C. § 860(c)(2)(C); see also R.C.M. 1107(d)(1)(D).


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                United States v. Stamps, No. ACM S32532


returned to this court for completion of appellate review under Article 66,
UCMJ, 10 U.S.C. § 866.


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




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