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

                                 No. ACM 39161 (reh)
                               ________________________

                                  UNITED STATES
                                      Appellee
                                            v.
                          Ladarion D. STANTON
              Airman First Class (E-3), U.S. Air Force, Appellant
                               ________________________

           Appeal from the United States Air Force Trial Judiciary
                                Decided 16 July 2019
                               ________________________

Military Judge: J. Wesley Moore.
Approved sentence: No punishment. Sentence adjudged 10 June 2016 by
GCM convened at Joint Base Andrews, Maryland.
For Appellant: Brian L. Mizer, Esquire.
For Appellee: Major Clayton H. O’Connor, USAF; Mary Ellen Payne, Es-
quire.
Before JOHNSON, MINK, and DENNIS, 1 Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MINK and Judge DENNIS joined.
                               ________________________

       This is an unpublished opinion and, as such, does not serve as
       precedent under AFCCA Rule of Practice and Procedure 18.4.
                               ________________________




1   Judge Dennis participated in this decision prior to her departure from the court.
                 United States v. Stanton, No. ACM 39161 (reh)


JOHNSON, Senior Judge:
    At Appellant’s original trial, he was found guilty by a military judge in ac-
cordance with his pleas of one specification of larceny of non-military property
in violation of Article 121 of the Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 921. 2 In addition, a general court-martial composed of officers con-
victed Appellant, contrary to his pleas, of two specifications of sexual assault
and one specification of aggravated sexual contact in violation of Article 120,
UCMJ, 10 U.S.C. § 920. 3 The court-martial sentenced Appellant to a dishonor-
able discharge, confinement for 96 months, total forfeiture of pay and allow-
ances, reduction to the grade of E-1, and a reprimand. The convening authority
approved the sentence as adjudged.
   Upon our initial review, we affirmed the finding of guilty as to the Article
121, UCMJ, specification; set aside the findings of guilty as to the Article 120,
UCMJ, specifications and the sentence; authorized a rehearing; and returned
the record of trial to The Judge Advocate General for remand to the convening
authority for further action in accordance with our opinion. United States v.
Stanton, No. ACM 39161, 2018 CCA LEXIS 70, at *32 (A.F. Ct. Crim. App. 7
Feb. 2018) (unpub. op.).
    On 27 July 2018, the convening authority again took action on Appellant’s
case. The convening authority noted a “rehearing was found to be impractica-
ble” and he approved a sentence providing for “no punishment.” 4
    Appellant raises two assignments of error for our review: (1) whether this
court now lacks jurisdiction to review the results of his court-martial; and (2)
whether this court should set aside the previously-affirmed finding of guilty as
to the remaining charge and specification because Appellant relied to his det-
riment on an agreement with the convening authority. We find that we do have
jurisdiction, we decline to set aside the remaining charge and specification, and
we affirm the sentence approved by the convening authority.



2All references in this opinion to the Uniform Code of Military Justice (UCMJ) are to
the Manual for Courts-Martial, United States (2016 ed.).
3 Sua sponte, pursuant to Rule for Courts-Martial (R.C.M.) 917 the military judge en-
tered a finding of not guilty of one specification of attempted forcible sodomy in viola-
tion of Article 80, UCMJ, 10 U.S.C. § 880. The court members also found Appellant not
guilty of two specifications of abusive sexual contact in violation of Article 120, UCMJ,
10 U.S.C. § 920.
4 See R.C.M. 1107(e)(2)(B)(iii) (“If a superior competent authority has approved some
of the findings of guilty and has authorized a rehearing as to other offenses and the
sentence, the convening authority may, unless otherwise directed, reassess the sen-
tence based on the approved findings of guilty and dismiss the remaining charges.”).


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                United States v. Stanton, No. ACM 39161 (reh)


                                I. BACKGROUND
    On 20 July 2018, before the convening authority took action for the second
time, the convening authority withdrew and dismissed without prejudice the
pending two specifications of sexual assault and one specification of aggravated
sexual contact. On the same day, Appellant requested to be administratively
discharged “in lieu of trial by court-martial.” On 25 July 2018, the convening
authority approved Appellant’s request and directed that Appellant be admin-
istratively discharged with an under other than honorable conditions service
characterization. Two days later the convening authority took action on Appel-
lant’s court-martial and approved a sentence of “no punishment,” as described
above.

                                 II. DISCUSSION
A. Jurisdiction
   1. Law
   We review de novo questions of jurisdiction. United States v. Hale, 78 M.J.
268, 270 (C.A.A.F. 2019).
    “Action on the sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this section.” 10 U.S.C.
§ 860(c)(2)(A).
       [I]f a person is discharged administratively while appellate re-
       view is pending . . . the power of review authorities over the
       court-martial is unaffected . . . . Moreover, the administrative
       discharge does not negate the responsibility of the convening au-
       thority to act upon the findings and sentence; nor does it restrict
       his power to do so.
Steele v. Van Riper, 50 M.J. 89, 91 (C.A.A.F. 1999) (citations omitted).
    “The Judge Advocate General shall refer to a Court of Criminal Appeals
the record in each case of a trial by court-martial . . . in which the sentence, as
approved, extends to . . . dishonorable or bad-conduct discharge, or confinement
for one year or more . . . .” 10 U.S.C. § 866(b), (1). Once a court of criminal
appeals has jurisdiction of a case, “no action by a lower court or convening au-
thority will diminish it.” United States v. Johnson, 45 M.J. 88, 90 (C.A.A.F.
1996) (quoting United States v. Boudreaux, 35 M.J. 291, 295 (C.M.A. 1992))
(internal quotation marks and additional citation omitted).
       Upon trial and conviction, and a sentence subject to appellate
       review approved by the convening authority, jurisdiction over
       [the appellant] was fixed for purposes of appeal, new trial, sen-
       tence rehearing, and new review and action by the convening

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                United States v. Stanton, No. ACM 39161 (reh)


       authority. A rehearing relates back to the initial trial and to the
       appellate court’s responsibility to ensure that the results of a
       trial are just. Where the appellate courts are invoked by an ap-
       pellant and a rehearing is authorized, an intervening adminis-
       trative discharge does not serve to terminate jurisdiction over
       the person of the accused for purposes of that rehearing.
United States v. Davis, 63 M.J. 171, 177 (C.A.A.F. 2006).
   2. Analysis
    This court obtained jurisdiction over Appellant’s case by virtue of the sen-
tence imposed by his original court-martial, which included a dishonorable dis-
charge and confinement for 96 months. See 10 U.S.C. § 866(b), (1). Once juris-
diction attached, we retained it notwithstanding action by the convening au-
thority that resulted in an approved sentence that does not include a punitive
discharge or confinement for one year or longer. See Johnson, 45 M.J. at 90.
Accordingly, the findings and sentence in Appellant’s case, which now consist
only of the larceny conviction we previously affirmed and the newly-approved
sentence to “no punishment,” are properly before us for review.
    Appellant contends that the convening authority’s approval of his adminis-
trative discharge had the effect of dismissing the specification of larceny of
which Appellant had been previously found guilty pursuant to his plea, which
the convening authority had approved, and which this court had affirmed.
Therefore, Appellant avers, our review of his case at this point is contrary to
the holding of Clinton v. Goldsmith, 526 U.S. 529 (1999). There, the United
States Supreme Court held that the United States Court of Appeals for the
Armed Forces (CAAF) lacked the authority under the All Writs Act, 28 U.S.C.
§ 1651(a), to enjoin the administrative separation of a servicemember because
the CAAF’s action “was neither ‘in aid of’ its strictly circumscribed jurisdiction
to review court-martial findings and sentences under 10 U.S.C. § 867 nor ‘nec-
essary or appropriate’ in light of a servicemember’s alternative opportunities
to seek relief.” Goldsmith, 526 U.S. at 531. Appellant reasons that, under Gold-
smith, “[t]he Air Force’s decision to administratively separate [him] is also
straightforwardly beyond this Court’s jurisdiction.” We disagree with Appel-
lant’s reasoning.
    First, we note that under the CAAF’s clear precedent our jurisdiction over
the findings of guilt and sentence from Appellant’s court-martial continues not-
withstanding an administrative discharge during the pendency of his appellate
review. See Davis, 63 M.J. at 177; Steele, 50 M.J. at 91.
    Second, the convening authority’s approval of Appellant’s administrative
discharge did not dismiss or otherwise dispose of the previously-affirmed lar-



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                United States v. Stanton, No. ACM 39161 (reh)


ceny specification. The necessary implication of Davis and Steele is that an ad-
ministrative discharge does not result in dismissal of convictions pending ap-
pellate review. Moreover, in this case it is evident the convening authority did
not intend to dismiss the larceny specification nor did he believe that he had
done so; two days after the convening authority approved Appellant’s admin-
istrative discharge he approved a sentence for the larceny conviction, albeit
one of “no punishment.” Furthermore, our prior opinion affirmed the larceny
conviction, and the convening authority was “bound to comply with the man-
date” of this court. United States v. Montesinos, 28 M.J. 38, 44 (C.M.A. 1989)
(citations omitted); see R.C.M. 1107(e)(2)(B)(iii), Discussion (“The convening
authority may not take any actions inconsistent with directives of superior
competent authority.”).
    Third, Appellant’s case is fundamentally unlike Goldsmith because, in con-
trast to the CAAF in that case, we do not purport to adjudicate the validity or
effectiveness of Appellant’s administrative discharge. See 526 U.S. at 533. We
recognize the administrative discharge is a matter outside the scope of our re-
view defined by Article 66(c), UCMJ, 10 U.S.C. § 866(c). Instead, here we “act
only with respect to the findings and sentence [of the court-martial] as ap-
proved by the convening authority,” exactly as Article 66(c) mandates. Id.
   Accordingly, we find we do have jurisdiction to review Appellant’s case.
B. Article 66(c), UCMJ
   1. Law
   “The proper completion of post-trial processing is a question of law the court
reviews de novo.” United States v. Zegarrundo, 77 M.J. 612, 613 (A.F. Ct. Crim.
App. 2018) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
    Article 66(c), UCMJ, provides, inter alia, that a service court of criminal
appeals “may affirm only such findings of guilty and the sentence or such part
or amount of the sentence, as it finds correct in law and fact and determines,
on the basis of the entire record, should be approved.” Although courts of crim-
inal appeals “have broad authority under Article 66(c), UCMJ, to disapprove a
finding, that authority is not unfettered. It must be exercised in the context of
legal – not equitable – standards, subject to appellate review.” United States v.
Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010) (citing United States v. Quiroz, 55 M.J.
334, 339 (C.A.A.F. 2001)); cf. United States v. Gay, 75 M.J. 264, 268 (C.A.A.F.
2016) (citations omitted) (holding discretionary authority over sentence appro-
priateness relief under Article 66(c) is limited by the requirement of a “legal
error or deficiency”).




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                United States v. Stanton, No. ACM 39161 (reh)


   2. Analysis
    Appellant contends this court should set aside and dismiss his previously-
affirmed conviction for larceny because, in essence, he did not receive the ben-
efit of his bargain with the convening authority that resulted in the approval
of his administrative discharge under other than honorable conditions. Appel-
lant explains that at a sentence rehearing on the sole remaining offense of lar-
ceny of non-government property of a value of less than $500, he faced a max-
imum term of confinement of six months—a term far less than the amount of
confinement he had already served following his original conviction in June
2016. See Manual for Courts-Martial, United States (2016 ed.), pt. IV, ¶
46.e.(1)(b). Moreover, Appellant asserts he was unlikely to be adjudged a bad-
conduct discharge at a sentence rehearing for the sole remaining charge. Thus,
according to Appellant, “[t]he only consideration he received for sparing the
government the considerable time and expense of a general court-martial, in
addition to waiving significant statutory and constitutional rights, was avoid-
ing a criminal conviction for larceny and an immediate discharge.” This court’s
failure to deliver that consideration by setting aside his larceny conviction, Ap-
pellant insists, would result in a “manifest injustice.” Again, we disagree.
    On remand, the convening authority had no discretion to set aside the lar-
ceny conviction this court had previously approved. See Montesinos, 28 M.J. at
44. When this court affirmed the finding of guilty as to larceny, that affirmed
finding became the “law of the case” for purposes of the remand authorizing a
rehearing on the set-aside findings and on the sentence. See id. (citing United
States v. Kepperling, 29 C.M.R. 96 (C.M.R. 1960)) (additional citation omitted).
The convening authority had no lawful power to undo that which this court
had done, i.e., affirm the larceny conviction. See id. (“A court that had no con-
trol over inferior tribunals or authorities would really not be a court . . . .”).
    Furthermore, Appellant has not presented evidence to this court that the
convening authority agreed to set aside or dismiss the larceny conviction as a
condition of Appellant’s administrative discharge under other than honorable
conditions. The record indicates that on 25 July 2018 the convening authority
approved Appellant’s administrative discharge “in lieu of trial by court-mar-
tial;” the court-martial that was pending at that time was a rehearing on sen-
tencing for the larceny charge. The convening authority’s decision to approve
a sentence of “no punishment” on 27 July 2018 plainly evinces his understand-
ing that his approval of Appellant’s administrative discharge left the affirmed
larceny conviction intact.
   The fact that the convening authority did not purport to set aside findings
previously affirmed by this court distinguishes the instant case from the recent
decision in United States v. Perez, No. ACM 38559, 2019 CCA LEXIS 101 (A.F.



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                United States v. Stanton, No. ACM 39161 (reh)


Ct. Crim. App. 8 Mar. 2019) (f rev), upon which Appellant relies. In Perez, sim-
ilar to Appellant’s case, on initial review this court affirmed a finding of guilty
as to one charge and specification, set aside the remaining findings of guilty
and the sentence, authorized a rehearing on the set-aside findings and the sen-
tence, and remanded the case for further proceedings. Id. at *2–4. Unlike Ap-
pellant’s case, on remand, Senior Airman Perez received nonjudicial punish-
ment for (in part) the offense of adultery, for which this court had already af-
firmed his conviction. The convening authority also purported to withdraw and
dismiss the affirmed charge and specification of adultery in conjunction with
approving Appellant’s request for administrative discharge in lieu of trial by
court-martial. Id. at *4. This court explained that the convening authority
lacked the power to exceed the scope of the remand by setting aside the af-
firmed adultery conviction, and therefore acted ultra vires. Id. at *7–11. How-
ever, addressing the “unique dilemma” created by the convening authority’s
unlawful action, the court employed its authority under Article 66(c), UCMJ,
to avoid a “manifest injustice” and it set aside the previously-approved adul-
tery conviction.
    Thus Perez is fundamentally unlike Appellant’s case in that, in the instant
case, the convening authority did not act ultra vires by purporting to withdraw
and dismiss a finding that this court had already affirmed, and over which this
court’s remand gave him no authority. On the contrary, the convening author-
ity acted entirely within his authority. See Rule for Courts-Martial
1107(e)(2)(B)(iii). Although Article 66(c), UCMJ, provides that this court has
broad power over the findings and sentence of a court-martial, we are a court
of law. Our authority must be exercised in the context of legal rather than eq-
uitable standards, and it is bounded by the requirement of a legal error or de-
ficiency in the court-martial process. See Gay, 75 M.J. at 268 (citation omitted);
Nerad, 69 M.J. at 140 (citation omitted).
    We are also unpersuaded by Appellant’s argument that his “only” consid-
eration for accepting an administrative discharge under other than honorable
conditions was the removal of his criminal conviction for larceny and a more
rapid exit from the Air Force. First, Appellant’s acceptance of an administra-
tive discharge in lieu of a rehearing on the sentence enabled him to avoid the
potential embarrassment and likely delay involved in such a proceeding. Fur-
thermore, Appellant exploited his duties as a bay orderly to steal personal
property from another Airman’s dormitory room. This was a significant crime
for which a bad-conduct discharge was an authorized punishment. Appellant
may reasonably have preferred to accept an administrative discharge rather
than risk a punitive discharge imposed as a criminal punishment. Further-
more, a bad-conduct discharge coupled with any term of confinement would
have had practical consequences for Appellant in the amount of pay to which
he was ultimately entitled. See 10 U.S.C. § 858b(a).

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                United States v. Stanton, No. ACM 39161 (reh)


    The validity of appellant’s administrative discharge is beyond the scope of
our authority to review, which is limited “to the findings and sentence [of the
court-martial] as approved by the convening authority.” Article 66(c), UCMJ;
cf. Goldsmith, 526 U.S. at 531. Moreover, that authority is bounded by legal
standards and we “may not disapprove findings on equitable grounds.” Nerad,
69 M.J. at 143. The authority to review Appellant’s administrative discharge
as well as the power to grant clemency with regard to Appellant’s conviction
and sentence have been placed in other hands. Having found no legal deficiency
or error with respect to the previously-affirmed finding of guilty of larceny and
the approved sentence of no punishment, we affirm.

                               III. CONCLUSION
    The approved findings were previously affirmed. The approved sentence is
correct in law and fact, and no error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c). Accordingly, the sentence is AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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