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

                               No. ACM S32550
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                        Micheal W. ROBINSON
              Staff Sergeant (E-5), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 9 March 2020
                           ________________________

Military Judge: Thomas J. Alford.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
forfeiture of $1092.00 pay per month for 5 months, reduction to E-1, and
a reprimand. Sentence adjudged 6 September 2018 by SpCM convened
at Keesler Air Force Base, Mississippi.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________


PER CURIAM:
    A military judge convicted Appellant, consistent with his pleas pursuant to
a pretrial agreement (PTA), of one specification of failing to obey a lawful order;
one specification of reckless driving; one specification of wrongfully using a
controlled substance (heroin) on divers occasions; one specification of wrong-
fully using a controlled substance (cocaine); and one specification of wrongful
                     United States v. Robinson, No. ACM S32550


possession of drug paraphernalia, in violation of Articles 92, 111, 112a and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 911, 912a, 934. 1
The military judge sentenced Appellant to a bad-conduct discharge, confine-
ment for five months, forfeiture of $1092.00 pay per month for five months,
reduction to the grade of E-1, and a reprimand. The convening authority ap-
proved the sentence as adjudged. 2
    The sole issue raised by Appellant on appeal is whether this court should
remand his case and order the convening authority to substitute a corrected
action and prepare a corrected court-martial order (CMO) because neither doc-
ument stated the amount of pretrial confinement credit to which Appellant was
entitled. The Government agrees that the action and CMO should be corrected.
Finding no prejudicial error, we affirm the findings and sentence in this case
but return the record of trial to The Judge Advocate General for remand to the
convening authority to withdraw the incomplete action, substitute a corrected
action that properly accounts for illegal pretrial confinement credit ordered by
the military judge, and issue a corrected CMO.

                                    I. BACKGROUND
     At trial, Appellant moved for appropriate relief requesting confinement
credit based on the conditions of his pretrial confinement in a civilian confine-
ment facility. Those conditions included, inter alia, being left with only one
clean jumpsuit to wear, being restricted to his cell by himself for approximat-
lely 23 hours per day, being deprived of his prescription medications, and being
housed with foreign nationals for some portion of his confinement. The military
judge determined that Appellant was entitled to 56 days of confinement credit
for violations of Articles 12 and 13, UCMJ, 10 U.S.C. §§ 812, 813. The 56 days
of illegal pretrial confinement credit were in addition to the 40 days of Allen3
credit which Appellant was credited for the actual number of days he spent in
pretrial confinement. The Report of Result of Trial memorandum correctly
stated the illegal pretrial confinement credit awarded by the military judge, as
did the staff judge advocate’s recommendation to the convening authority.
However, the amount of illegal pretrial confinement credit is omitted in the
initial action of the convening authority and the CMO.




1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016
ed.).
2   The adjudged sentence was less than the sentence limitation contained in the PTA.
3   United States v. Allen, 17 M.J. 126, 128 (C.M.A. 1984).


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                  United States v. Robinson, No. ACM S32550


    In United States v. Crawford, the United States Court of Appeals for the
Armed Forces (CAAF) held that if an appellant establishes a violation of Arti-
cle 13, UCMJ, “then [Rule for Courts-Martial] 305(k) provides him additional
credit for each day of pretrial confinement that involves an abuse of discretion
or unusually harsh circumstances.” 62 M.J. 411, 414 (C.A.A.F. 2006) (citations
and internal quotation marks omitted). Accordingly, when a military judge or-
ders credit for illegal pretrial confinement for a violation of Article 13, UCMJ,
the credit shall be included in the convening authority’s initial action. Rule for
Courts-Martial (R.C.M.) 1107(f)(4)(F). “Because of the importance of the con-
vening authority’s action in the court-martial process,” the CAAF requires it
to be both “clear and unambiguous.” United States v. Politte, 63 M.J. 24, 26
(C.A.A.F. 2006). We may instruct a convening authority to withdraw an incom-
plete, ambiguous, or erroneous action and substitute a corrected action. 4
R.C.M. 1107(g); see also R.C.M. 1107(f)(2).
    The convening authority’s action was incomplete because it omitted the il-
legal pretrial confinement credit ordered by the military judge, as required by
R.C.M. 1107(f)(4)(F). Accordingly, we order a corrected action that states the
amount of such confinement credit ordered by the military judge.

                                  II. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED. The record of trial is returned to The
Judge Advocate General for remand to the convening authority to withdraw
the incomplete action, substitute a corrected action, and issue a corrected
CMO. 5




4A “corrected action” ordered pursuant to R.C.M. 1107(g) is not a “new action” and
unlike a new action does not require post-trial processing anew. See United States v.
Mendoza, 67 M.J. 53, 54–55 (C.A.A.F. 2008).
5 In addition, we note that the CMO contains a scrivener’s error in that the word “Did”
is included at the beginning of the Specification of Charge I and should be deleted in
the corrected CMO.


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                 United States v. Robinson, No. ACM S32550


    Thereafter, the record of trial will be returned to this court for completion
of appellate review in accordance with Article 66, UCMJ.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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