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

                                No. ACM S32538
                            ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                            Cory RAMIREZ
                  Airman (E-2), U.S. Air Force, Appellant
                            ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 24 January 2020
                            ________________________

Military Judge: Matthew D. Talcott.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
forfeiture of $1,092.00 pay per month for 3 months, and reduction to E-
1. Sentence adjudged 22 March 2018 by SpCM convened at Joint Base
San Antonio-Fort Sam Houston, Texas.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Colonel Shaun S. Speranza, USAF; Lieutenant Colonel Jo-
seph J. Kubler, USAF; Captain Kelsey B. Shust, USAF; Captain Zach-
ary T. West, USAF; Mary Ellen Payne, Esquire; Justin A. Miller (civil-
ian intern). 1
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Senior Judge J. JOHNSON delivered the opinion of the court, in which
Judge KEY joined. Judge POSCH filed a separate opinion concurring in
part and dissenting in part.
                            ________________________




1Mr. Miller was a legal intern with the Air Force Legal Operations Agency and was at
all times supervised by attorneys admitted to practice before this court.
                   United States v. Ramirez, No. ACM S32538


    This is an unpublished opinion and, as such, does not serve as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

J. JOHNSON, Senior Judge:
    A military judge found Appellant guilty, in accordance with his pleas, of
one specification of wrongfully using marijuana on divers occasions and one
specification of wrongfully introducing marijuana onto a military installation,
both in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 912a. 2 A special court-martial composed of officer and enlisted mem-
bers found Appellant not guilty, in accordance with his pleas, of one specifica-
tion of wrongful use of psilocybin in violation of Article 112a, UCMJ, but guilty
of the lesser-included offense of attempted wrongful use of psilocybin in viola-
tion of Article 80, UCMJ, 10 U.S.C. § 880. 3 The court-martial sentenced Appel-
lant to a bad-conduct discharge, confinement for three months, forfeiture of
$1,092.00 pay per month for three months, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence.
    Appellant raises a single issue on appeal: whether his conviction for at-
tempted use of psilocybin is factually sufficient. In addition, we address an ap-
parent error in the convening authority’s action. We find the conviction factu-
ally sufficient, but we find that new post-trial processing and action by the
convening authority are required.

                                  I. BACKGROUND
   At trial, Appellant pleaded guilty to wrongfully using marijuana on divers
occasions between on or about 26 July 2017 and on or about 8 September 2017. 4
During his colloquy with the military judge regarding the providency of his
plea, Appellant explained he had smoked marijuana with civilian friends more
than once but less than six times during the charged time frame. Appellant


2All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2016
ed.).
3The court members also found Appellant not guilty of one specification of absenting
himself from his place of duty, in violation of Article 86, UCMJ, 10 U.S.C. § 886.
4 Appellant, through counsel, did not specifically announce a plea with respect to
Charge I, alleging violations of Article 112a, UCMJ. However, he pleaded guilty to
Specifications 1 and 2 under Charge I, which necessarily implied a guilty plea to
Charge I, and the court-martial proceeded accordingly without comment by the mili-
tary judge or counsel. We find no corrective action to be required as a result of Appel-
lant’s failure to enter an explicit plea as to Charge I.


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                  United States v. Ramirez, No. ACM S32538


also pleaded guilty to bringing 1.5 grams of marijuana onto Joint Base San
Antonio-Lackland, Texas, between on or about 1 August 2017 and on or about
29 August 2017. Appellant informed the military judge he obtained the mari-
juana from a civilian friend outside the base and brought it to his on-base dor-
mitory room.
    Appellant pleaded not guilty to wrongfully using psilocybin, a Schedule I
controlled substance, between on or about 1 July 2017 and on or about 30 Sep-
tember 2017. The court-martial proceeded to the findings phase with respect
to the psilocybin specification, as well as an unrelated specification that Appel-
lant was absent from his place of duty in October 2017.
    The Prosecution called SG, a civilian Security Forces detective who partic-
ipated in an interview of Appellant on 15 September 2017. SG testified that
Appellant admitted being at a party with several other people where there was
a “little baggie of [m]ushrooms on the counter.” Appellant admitted that an-
other Airman who was present, Airman First Class (A1C) JD, “crumpled up”
the mushrooms on top of pizza, which Appellant then consumed. Trial counsel
entered into evidence a video recording of portions of this interview. In the
recording of the interview, Appellant eventually admitted that he and A1C JD
ate mushrooms on pizza at a party at A1C JD’s home.
    Special Agent SA, an agent with the Air Force Office of Special Investiga-
tions, testified that he conducted a subsequent interview with Appellant on 19
September 2017. During that interview, Appellant again admitted he “used”
mushrooms one time at A1C JD’s residence. On cross-examination, both SG
and Special Agent SA testified Appellant stated he felt no effects from the
mushrooms, and that in the course of their investigation they did not recover
any psilocybin mushrooms or images of the mushrooms Appellant consumed.
    The Government also called A1C JD, who testified under a grant of testi-
monial immunity. According to A1C JD, Appellant used mushrooms twice at
A1C JD’s apartment. A1C JD testified that prior to the first occasion, A1C JD
and a third Airman, A1C KH, had discussed using mushrooms together.
Within a few days, Appellant, A1C JD, A1C KH, and others gathered at
A1C JD’s off-base apartment to socialize, play video games, watch television,
and eat pizza. Another Airman, A1C BH, brought mushrooms in a plastic bag.
A1C JD described the mushrooms as “like [m]ushrooms that you would find in
the wilderness, like the fungus [m]ushrooms, except for that they had a little
bit of light green and purple on it, probably from the chemicals on it.” A1C JD
and Appellant put the mushrooms on the pizza and consumed them. A1C JD
testified that 30 to 45 minutes after eating the mushrooms, he felt “a little bit
of tingling in my legs and giggly, more like an antidepressant.” Appellant, by
contrast, “looked like he was . . . having a bad trip.” A1C JD explained Appel-



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                  United States v. Ramirez, No. ACM S32538


lant appeared “like someone being blacked out, drunk. He wasn’t really coher-
ent to what we were telling him or asking him. . . . [W]e would ask him some-
thing and he would not respond or have a weird statement . . . .” When asked
why Appellant experienced a different effect from himself, A1C JD responded
that Appellant, unlike himself, had consumed alcohol as well as the mush-
rooms.
   A1C JD testified that one or two weeks after this party, he and Appellant
used mushrooms at another gathering at A1C JD’s apartment. This time an-
other Airman, A1C DL, and an unnamed civilian also ingested them. Again, it
was A1C BH who brought the mushrooms, which had a similar appearance as
before. Again the Airmen put the mushrooms on top of pizza and ate them, and
again the mushrooms caused A1C JD to feel “tingling in the leg,” “[h]appy,”
and “giggly.” However, on this occasion Appellant did not drink alcohol, and he
appeared to feel similar effects to A1C JD, acting “[g]oofy” and “giggly.”
    The Government also called Dr. RH, the deputy director of the Air Force
Drug Testing Laboratory, who testified as an expert in forensic toxicology. Dr.
RH provided general information about psilocybin. She testified, inter alia,
that psilocybin is “a major psychoactive component that’s found in [m]ush-
rooms.” Psilocybin is a “Schedule I drug” under the Controlled Substances Act,
meaning it does not have any recognized medical use. Dr. RH testified that
psilocybin is typically ingested by eating the mushrooms, often with another
food to mask the mushrooms’ taste. Dr. RH explained the “effects are variable,
but in general you’ll experience sort of a happy effect or a euphoric, a high. Also
you can experience hallucinations, either visual or mental, as well as just al-
tered perceptions.” She further testified that psilocybin is detectable in a per-
son’s system for a “very short” period, only one or two days. On cross-examina-
tion, Dr. RH testified that there are thousands of species of mushrooms, of
which “[o]ver 200” contain psilocybin. Dr. RH conceded that a drug test would
be required to “definitively” know whether someone ingested psilocybin. With-
out a drug test, hallucinations would be “a really big clue” that someone had
ingested psilocybin. The euphoric effect sometimes attributed to psilocybin can
be produced by other causes, including low doses of alcohol or simply socializ-
ing with friends. Dr. RH also opined that an “average person” would not be
able to tell whether a mushroom contained psilocybin simply by its appearance,
and she agreed that psilocybin mushrooms are “commonly misidentified.”
    At the Government’s request, the military judge took judicial notice that
psilocybin is a “Schedule I controlled substance under the law of the United
States.” The Government did not introduce any urinalysis result or physical
evidence relating to Appellant’s alleged use of psilocybin.
   When discussing member instructions on findings, both trial counsel and
the trial defense counsel agreed with the military judge that the evidence

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                 United States v. Ramirez, No. ACM S32538


raised the lesser-included offense of attempted wrongful use of a controlled
substance. The military judge instructed the court members, inter alia, on the
charged offense of wrongful use of psilocybin as well as the lesser-included of-
fense of attempt. The Defense did not object to these instructions. The court
members found Appellant not guilty of wrongful use of psilocybin, but guilty of
attempt.

                                II. DISCUSSION
A. Factual Sufficiency
   1. Law
    We review issues of factual sufficiency de novo. United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of fac-
tual sufficiency is limited to the evidence produced at trial. United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In conducting
this unique appellate role, we take ‘a fresh, impartial look at the evidence,’
applying ‘neither a presumption of innocence nor a presumption of guilt’ to
‘make [our] own independent determination as to whether the evidence consti-
tutes proof of each required element beyond a reasonable doubt.’” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original)
(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
    The elements of the offense of attempted wrongful use of psilocybin in vio-
lation of Article 80, UCMJ, for which Appellant was convicted included the
following: (1) that Appellant did a certain overt act, that is, ingested mush-
rooms he believed to be a contraband substance; (2) that the act was done with
the specific intent to commit a certain offense under the UCMJ, that is, wrong-
ful use of a controlled substance; (3) that the act amounted to more than mere
preparation; and (4) that the act apparently tended to effect the commission of
the intended offense. See Manual for Courts-Martial, United States (2016 ed.)
(MCM), pt. IV, ¶ 4.b.; United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014).
    The elements of the offense of wrongful use of psilocybin in violation of Ar-
ticle 112a, UCMJ, as charged in Appellant’s case include: (1) that at the time
and place alleged, Appellant used psilocybin, a Schedule I controlled sub-
stance; and (2) that Appellant’s use was wrongful. See MCM, pt. IV, ¶ 37.b.(2);
United States v. Paul, 73 M.J. 274, 277 (C.A.A.F. 2014).




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                 United States v. Ramirez, No. ACM S32538


   2. Analysis
    Appellant contends the evidence was insufficient to prove beyond a reason-
able doubt that he ingested psilocybin mushrooms. However, Appellant was
not convicted of actual wrongful use of psilocybin mushrooms; he was convicted
of attempted use of psilocybin mushrooms. Actual ingestion of psilocybin is not
an element of attempted use, nor is Appellant required to have believed he was
specifically ingesting “psilocybin,” so long as he believed he was ingesting a
controlled substance. See United States v. Dillon, 61 M.J. 221, 222 (C.A.A.F.
2005) (quoting United States v. Stringfellow, 32 M.J. 335, 336 (C.M.A. 1991)).
    To be guilty of the lesser included offense of attempt, based on the specifi-
cation of wrongful use charged in this case, the Government was required to
prove, inter alia, that Appellant wrongfully ingested mushrooms that he be-
lieved contained a controlled substance, and he did so with the intent to commit
the offense of wrongfully using a controlled substance. We find the Government
offered sufficient evidence that Appellant did so. After some initial reluctance,
Appellant admitted to investigators that there were “[s]hrooms” at the party
at A1C JD’s apartment, and he acknowledged “doing [s]hrooms too” after oth-
ers suggested that he “try them.” Specifically, Appellant admitted that A1C JD
“crumpled” mushrooms from a baggie on top of pizza, and then Appellant and
A1C JD ate them, although Appellant denied feeling any effects. It is evident
from the questions, answers, and entire context of the recorded interview that
Appellant knew the “[s]hrooms” he was being questioned about were of a con-
traband nature. Furthermore, Appellant’s admissions were powerfully corrob-
orated by A1C JD’s testimony. Although A1C JD’s immunized testimony pro-
vided much greater detail, it strongly comported with Appellant’s statements
with respect to the setting and manner of Appellant’s ingestion of the mush-
rooms.
    In summary, the Government introduced convincing evidence that Appel-
lant ingested mushrooms that he believed contained a contraband substance,
with the intent to wrongfully use a controlled substance. The overt act of eating
the mushrooms is plainly more than mere preparation to use the controlled
substance, and it apparently tended to effect the commission of the intended
wrongful use. The absence of conclusive evidence that Appellant actually used
psilocybin does much to explain why the court members found Appellant not
guilty of the charged actual wrongful use of psilocybin; however, it does little
to impugn their finding that Appellant is guilty of attempted use. Having
weighed the evidence in the record of trial, and having made allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt. See Turner, 25 M.J. at 325. Appellant’s conviction
for attempted wrongful use of psilocybin in violation of Article 80, UCMJ, is
therefore factually sufficient.


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                  United States v. Ramirez, No. ACM S32538


B. Convening Authority Action
   1. Additional Background
    Both the original convening authority action dated 18 July 2018 and the
corrected action dated 31 July 2018 included the following language: “Pursuant
to Article 57, Section (a)(2), UCMJ, all of the adjudged forfeitures were deferred
from 5 April 2018 until the date of this action.” However, neither a request for
deferment of the adjudged forfeitures nor any document purporting to grant or
deny such a request are included in or attached to the record of trial. See Rules
for Courts-Martial (R.C.M.) 1103(b)(3), 1103(c)(1) (requiring “[a]ny deferment
request and the action on it” to be attached to the record of any special court-
martial in which a bad-conduct discharge is adjudged).
    Accordingly, this court ordered the Government to show good cause as to
why it should not take corrective action. In response, the Government conceded
there was no evidence Appellant specifically requested “deferment” of his ad-
judged forfeitures. However, the Government contended the convening author-
ity’s action was not erroneous because this court should construe Appellant’s
clemency request that his forfeitures be “waived,” “disapproved,” and “set
aside” as a written request for deferment. In the alternative, the Government
contends any error in the action is not prejudicial to Appellant’s substantial
rights. Appellant concurs with the Government that any error with respect to
the action “did not result in prejudice.”
   2. Law
   We review post-trial processing issues de novo. United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citing United States v. Kho, 54
M.J. 63 (C.A.A.F. 2000)).
    Article 57(a)(2), UCMJ, 10 U.S.C. § 857(a)(2) provides in part: “[o]n appli-
cation by an accused, the convening authority may defer a forfeiture of pay or
allowances . . . until the date on which the sentence is approved by the conven-
ing authority.” (Emphasis added). Similarly, R.C.M. 1101(c)(2) provides:
       Who may defer. The convening authority or, if the accused is no
       longer in the convening authority’s jurisdiction, the officer exer-
       cising general court-martial jurisdiction over the command to
       which the accused is assigned, may, upon written application of
       the accused, at any time after the adjournment of the court-mar-
       tial, defer the accused’s service of a sentence to confinement, for-
       feitures, or reduction in grade that has not been ordered exe-
       cuted.
(Second emphasis added).
   3. Analysis

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                  United States v. Ramirez, No. ACM S32538


    We cannot agree that there is no error in the convening authority’s action.
Both Article 57(a)(2), UCMJ, and R.C.M. 1101(c)(2) explicitly require the ac-
cused to request deferment as a precondition to the convening authority’s de-
ferment of an element of the adjudged sentence. The Government concedes Ap-
pellant never requested deferment. Therefore, the convening authority had no
authority to defer the adjudged forfeitures.
    Moreover, we decline the Government’s invitation to interpret Appellant’s
request that his forfeitures be “set aside” or “waived” as a request for defer-
ment. Waiver, set aside, and deferment are distinct actions a convening au-
thority may take, governed by different provisions of law. A convening author-
ity’s power to “set aside” or disapprove an accused’s adjudged forfeitures is gov-
erned by Article 60, UCMJ, 10 U.S.C. § 860, and R.C.M. 1107(d), and results
in the elimination of the disapproved portion of the adjudged sentence.
“Waiver” of forfeitures is provided for in Article 58b(b), UCMJ, 10 U.S.C. §
858b(b), and R.C.M. 1101(d), and specifically applies not to adjudged forfei-
tures but to mandatory forfeitures required by Article 58b(a), UCMJ, where
the sentence includes a punitive discharge and any term of confinement.
Waiver of mandatory forfeitures results in the pay that would be otherwise so
forfeited being paid to the accused’s dependents during the accused’s confine-
ment, for a period not to exceed six months, as directed by the convening au-
thority. In itself, waiver has no effect on adjudged forfeitures. See generally
United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).
    We do not find persuasive the Government’s citation to this court’s un-
published opinion in United States v. Dadona, No. ACM 39202, 2018 CCA
LEXIS 325 (A.F. Ct. Crim. App. 2 Jul. 2018) (unpub. op.), rev. denied, 78 M.J.
160 (C.A.A.F. 2018). There we criticized the staff judge advocate and convening
authority for failing to read an implicit request for deferment of forfeitures into
the accused’s clemency request that the convening authority “reinstate my E-
2 rank, and please consider granting 4 months of E-2 pay so my grandparents
can continue to receive financial support.” Id. at *23 (internal quotation marks
omitted). In Dadona, the appellant’s sentence did not include any adjudged
forfeitures, and the court noted he was not eligible for waiver of forfeitures
because he had no dependents. Id. at *24. Under these circumstances, the
“[a]ppellant’s request could only have been for deferment [of mandatory forfei-
tures].” Id. Appellant’s case differs from Dadona in two significant ways. First,
in Dadona the appellant’s clemency request did not explicitly refer to “set
aside” and “waiver,” as Appellant’s did. See id. at *23. Second, in Appellant’s
case, the set aside and waiver he requested were available alternatives
whereby the convening could grant relief, because Appellant both received ad-
judged forfeitures and, as of the date of action, had dependents. The particular
circumstances that prompted our comments in Dadona are not present here.



                                        8
                  United States v. Ramirez, No. ACM S32538


    The Government’s reliance on the provision in Article 59(a), UCMJ, 10
U.S.C. § 859(a), that a “finding or sentence of court-martial may not be held
incorrect on the ground of an error of law unless the error materially prejudices
the substantial rights of the accused” is misplaced. Here, the question is not
the correctness of the findings or sentence; it is the lawfulness of the convening
authority’s action. In the past, we have not hesitated to require correction of
erroneous convening authority action. See, e.g., United States v. Smith, No.
ACM 39463, 2019 CCA LEXIS 307, at *7–8 (A.F. Ct. Crim. App. 12 Jul. 2019)
(unpub. op.); United States v. Del Toro, No. ACM 39225, 2018 CCA LEXIS 219,
at *2 (A.F. Ct. Crim. App. 27 Apr. 2018) (unpub. op.) (per curiam); United
States v. Duran, No. ACM S32407, 2017 CCA LEXIS 381, at *1–2 (A.F. Ct.
Crim. App. 31 May 2017) (unpub. op.) (per curiam); United States v. Perea, No.
ACM S32408, 2017 CCA LEXIS 353, at *4–5 (A.F. Ct. Crim. App. 24 May 2017)
(unpub. op.). In this case, the convening authority’s action was not merely in-
complete or erroneous; it was ultra vires. Accordingly, a new action rather than
a corrected action is required.
    Finally, Appellant’s concurrence with the Government that he suffered “no
prejudice” from the convening authority’s error does not change our analysis.
We set aside the action not for Appellant’s benefit, but to uphold the law—
specifically a limitation Congress has placed on the convening authority. Noth-
ing in Article 66, UCMJ, 10 U.S.C. § 866, constrains us to take corrective action
only for the benefit of an appellant. In some cases, maintaining the integrity of
the military justice system enacted by Congress may require this court to take
action that is not requested by any party. Cf. United States v. Montesinos, 28
M.J. 38, 47 (C.M.A. 1989) (affirming court of criminal review’s decision vacat-
ing convening authority’s ultra vires set aside of findings previously affirmed
by the appellate court and rejecting the appellant’s attempt to withdraw the
case from appellate review). This is such a case.

                               III. CONCLUSION
    The convening authority’s action, dated 31 July 2018, is SET ASIDE. The
record of trial is returned to The Judge Advocate General for remand to the
convening authority for new post-trial processing and action consistent with
this opinion. Thereafter, Article 66, UCMJ, 10 U.S.C. § 866, will apply.


POSCH, Judge (concurring in part and dissenting in part):
    I agree with my esteemed colleagues in the majority that Appellant’s con-
viction for attempted use of psilocybin is factually sufficient. And, I am of like
mind that the plain language of Article 57(a)(2), Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 857(a)(2), and Rule for Courts-Martial (R.C.M.)


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                  United States v. Ramirez, No. ACM S32538


1101(c)(2) require an accused to request deferment of a component of his sen-
tence before a convening authority may grant a deferment. However, I respect-
fully dissent with regard to the majority’s conclusion that post-trial processing
anew is an appropriate remedy under the circumstances of this case where
Appellant disavows prejudice.
    Undeniably, a convening authority may defer forfeitures until action “on
application by an accused.” Article 57(a)(2), UCMJ. But it does not follow that
a convening authority’s failure to abide by a procedural prerequisite leaves er-
ror for this court to correct absent some showing of prejudice to an appellant.
To establish prejudice due to errors in post-trial processing, an appellant must
make some “colorable showing of possible prejudice.” United States v. LeBlanc,
74 M.J. 650, 660 (A.F. Ct. Crim. App. 2015) (quoting United States v. Scalo, 60
M.J. 435, 437 (C.A.A.F. 2005)). Here, the convening authority failed to comply
with a statutory and regulatory requirement that was strictly procedural in
nature. This was error. Still, Appellant’s counsel informs this court that the
error “did not result in prejudice” to Appellant.
    Aside from ordering corrective action when prejudicial error is shown, this
court may instruct a convening authority to modify an action under the cir-
cumstances prescribed in R.C.M. 1107(f)(2), (g), which is not predicated on prej-
udice to an appellant. Yet nothing in the post-trial or appellate record reveals
that the action, which directed deferment of adjudged forfeitures “from 5 April
2018 until the date of this action,” was anything other than a considered and
deliberate implementation of the convening authority’s intent. The staff judge
advocate to the convening authority declares so much when she stated that to
the best of her recollection, the “action is a reflection of the discussions” she
had with the convening authority. The action is consistent with her advice,
facially correct, and deferment is among the permissible acts a convening au-
thority has discretion to order. Though the procedural means to this end were
irregular, the action itself is undeniably “clear and unambiguous,” United
States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (footnote omitted) (finding the
court of criminal appeals erred in failing to identify and return an ambiguous
action to the convening authority), making submission to the convening au-
thority for further clarification unnecessary because there is nothing inaccu-
rate or erroneous in the action itself that we may instruct the convening au-
thority to fix. R.C.M. 1107(f)(2), (g). For this reason, the action is not subject to
the provisions of R.C.M. 1107, and is beyond this court’s authority to order the
convening authority to remedy.
   Finding no prejudice in the record, and relying on the assertion by Appel-
lant’s counsel that there was none, leaves no error for this court to mend by
fashioning a remedy. I would not set aside a clear and unambiguous action on
grounds that the convening authority failed to adhere to a procedure required


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                 United States v. Ramirez, No. ACM S32538


by law, but would instead affirm the sentence as adjudged and approved by the
convening authority in reliance on the statement by Appellant’s counsel, and
our own determination, that Appellant suffered no harm.


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




                                     11
