         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                       _________________________

                           No. 201700086
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.
                 MARCUS L. LITTLEJOHN
    Gas Turbine Systems Technician (Mechanical) First Class,
                              U.S. Navy
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judges: Captain Charles Purnell, JAGC, USN.; Commander
                    Heather Partridge, JAGC, USN.
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                            Norfolk, VA.
Staff Judge Advocate’s Recommendation: Commander I. C. Lemoyne,
                            JAGC, USN.
      For Appellant: Commander R.D. Evans, JR., JAGC, USN.
            For Appellee: Major Kelli A. O’Neil, USMC.
                      _________________________

                       Decided 31 August 2017
                       _________________________

   Before HUTCHISON, FULTON, and SAYEGH, Appellate Military
                            Judges
                   _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   PER CURIAM:
   At a general court-martial, a military judge convicted the appellant,
pursuant to his pleas, of making a false official statement, assault
consummated by a battery, and obstructing justice—violations of Articles
                 United States v. Littlejohn, No. 201700086


107, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
907, 928, and 934. The military judge sentenced the appellant to 15 months’
confinement, reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged. Based on the
adjudged sentence, under the terms of a pretrial agreement the CA was
required to suspend confinement in excess of 12 months and to defer and
then waive automatic forfeitures for six months. In accordance with the
pretrial agreement, the CA suspended confinement in excess of 12 months in
his action and in the pretrial agreement itself approved the deferral and then
waiver of all automatic forfeitures for six months. In addition to complying
with the terms of the pretrial agreement, the CA attempted to grant
clemency to the appellant with respect to reduction in pay grade below E-3,
but did so in language that is unclear and requires, as requested by the
government, that we return the case to the Judge Advocate General for
remand to the CA with instruction to withdraw the original action and
substitute a corrected action.
    Reduction in pay grade as the result of a court-martial can happen in one
of two ways.
    1. Adjudged reductions are awarded by the sentencing authority at trial
and Article 57, UCMJ, provides that the reduction takes place on the earlier
of 14 days after the sentence is adjudged or the date when the CA approves
the sentence, but allows the CA to defer execution until the date on which the
sentence is approved. The CA in this case retroactively deferred the adjudged
reduction below pay grade E-3 and suspended the adjudged reduction below
pay grade E-3 for six months from the date of his action, followed by
remission of the suspended part of the sentence without further action,
assuming the suspension was not sooner vacated.1 The following sentence in
the CA’s Action to the effect that “after completion of the period of suspension


   1
     “In the case of Gas Turbine Systems Technician (Mechanical) First Class
Marcus L. Littlejohn, U.S. Navy, USS STOUT (DDG 55), the sentence will be
approved and . . . and will be executed, except that the execution of the
adjudged reductions in paygrade and automatic forfeitures which is in excess
of reduction to the grade of E-3 is suspended for an additional six (6) months,
at which time, unless the suspension is sooner vacated, the suspended part of
the sentence will expire without further action following the expiration. At
that time, the accused will return to the original pay grade of E-1. By this
action, I direct that the deferment of the . . . adjudged reduction in paygrade
from the date the said . . . reduction would otherwise have become effective
under Article 57(a) [sic].


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                United States v. Littlejohn, No. 201700086


the accused will return to the original pay grade of E-1” makes it unclear
what his actual intent was with respect to the adjudged reduction.
    2. Article 58a, UCMJ, provides that in cases where an approved sentence
includes confinement or a bad-conduct discharge, as in this case, the
individual is automatically reduced to pay grade E-1 on the date when the CA
approves the sentence, but allows the service Secretary to modify by
regulation the application of this article. The Judge Advocate General, acting
on authority of the Secretary of the Navy, issued the following applicable
regulation:
       In his sole discretion, the [CA] may remit the automatic reduction,
   or may retain the accused in the pay grade held at the time of
   sentence or in an intermediate pay grade and suspend the automatic
   reduction to pay grade E-1 that would otherwise be effected under
   Article 58a, UCMJ, and this subsection, utilizing the forms in
   Appendix 16, MCM, as guides. . . . If . . . the adjudged sentence
   includes a reduction in pay grade that is below the pay grade at which
   the [CA] desires to have the accused retained, the reduction adjudged
   in the sentence should be suspended for the same period as the
   automatic reduction is suspended.
   The CA took no action with respect to automatic reduction to pay grade E-
1 under Article 58a, UCMJ, thereby rendering any action taken on the
adjudged reduction meaningless as of the date of the CA’s action. This despite
the CA also stating in his action that “Defense Counsel has requested that I
grant clemency in excess of the terms of the Pre-Trial Agreement, which I
have granted in part. As stated above, I have already acted on Defense
Counsel’s requested clemency as relates to automatic forfeitures and
adjudged and automatic reduction in rank.”
    RULE FOR COURTS-MARTIAL (R.C.M.) 1107(g), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.) permits an authority “acting under
Article 64, 66, 67, or 69” to instruct a CA to withdraw an original action and
substitute a corrected action where the original action “is incomplete,
ambiguous, or contains clerical error.” The government claims that this CA’s
action is ambiguous. An ambiguous action is one that is “capable of being
understood in two or more possible senses.” United States v. Loft, 10 M.J.
266, 268 (C.M.A. 1981) (citation and internal quotation marks omitted).
Appellate courts are permitted to use surrounding documentation to interpret
an otherwise unclear CA’s action. United States v. Politte, 63 M.J. 24, 26
(C.A.A.F. 2006) (citing Loft, 10 M.J. at 268).
   As a result of this action, in addition to the benefit of his pretrial
agreement, the appellant was provided clemency in that he was permitted to
remain an E-3 until automatic reduction became applicable pursuant to

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                United States v. Littlejohn, No. 201700086


Article 58(a), UCMJ. By not providing the appellant any clemency regarding
automatic reduction–despite the TDC request, and the SJA’s partial support
of such clemency–the CA’s clemency ended on the date he signed the CA’s
action. Although not legally impermissible to do such, when taken in
consideration of what the CA indicates later in his action, his intent with
regard to automatic reduction is unclear, as is the action he intended as to
the adjudged reduction.
                              III. CONCLUSION
    The record of trial is returned to the Judge Advocate General for remand
to the convening authority with direction to withdraw his action dated 1
March 2017 and substitute a corrected action, R.C.M. 1107(g). “If the original
convening authority has been replaced by a successor, there must be some
evidence that the successor convening authority communicated with the
original convening authority and that the corrected action reflects the
original convening authority’s intent. United States v. Lower, 10 M.J. 263,
265 (C.M.A. 1981). Alternatively, the successor convening authority may
issue a new action after receiving a new staff judge advocate’s
recommendation that was served on the defense, providing the accused a new
opportunity to submit clemency matters. United States v. Gosser, 64 M.J. 93,
96-97 (C.A.A.F. 2006) (per curiam).” United States v. Mendoza, 67 M.J. 53, 54
(C.A.A.F. 2008). Thereafter the record will be returned to the Court for
completion of appellate review. Art. 60, UCMJ; Boudreaux v. U.S. Navy-
Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989).

       Senior Judge HUTCHISON and Judge FULTON concur.

                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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