                          UNITED STATES, Appellant

                                           v.

                       Adam P. PEREZ, Senior Airman
                         U.S. Air Force, Appellee

                                    No. 08-5002
                             Crim. App. No. 36799

       United States Court of Appeals for the Armed Forces

                           Argued February 6, 2008

                            Decided March 18, 2008



PER CURIAM.    STUCKY, J., filed a separate opinion concurring in
the result.


                                       Counsel


For Appellant: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).


For Appellee: Captain Tiaundra Sorrell (argued); Colonel Nikki
A. Hall (on brief); Major Shannon A. Bennett.


Military Judge:      Print Maggard



              THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Perez, No. 08-5002/AF


     PER CURIAM:

     A general court-martial composed of a military judge

sitting alone, convicted Appellee, pursuant to mixed pleas, of

disobeying an order, rape, and assault consummated by battery,

in violation of Articles 92, 120, and 128, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 928 (2000).     The

sentence adjudged by the court-martial included a bad-conduct

discharge, confinement for eighteen months, and reduction to the

lowest enlisted grade.   The convening authority modified the

findings by dismissing the charge and specification for rape,

and approved that portion of the sentence providing for a bad-

conduct discharge, confinement for 206 days, and reduction to

the lowest enlisted grade.   The United States Air Force Court of

Criminal Appeals affirmed the findings, as modified by the

convening authority, and approved that portion of the sentence

providing for confinement for six months and reduction to the

lowest enlisted grade.   United States v. Perez, No. ACM 36799,

2007 CCA LEXIS 364, at *10-*11, 2007 WL 2791251, at *4 (A.F. Ct.

Crim. App. Sept. 12, 2007) (unpublished).

     Upon certification under Article 67(a)(2), UCMJ, 10 U.S.C.

§ 867(a)(2) (2000), we affirm the decision of the Court of

Criminal Appeals.   As a matter of command prerogative, the

convening authority may modify or dismiss charges and modify the

sentence.   See Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1)


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United States v. Perez, No. 08-5002/AF


(2000).   Although the convening authority is required to take

action on the sentence, the convening authority is not required

to act on the findings.   The broad authority under Article

60(c), UCMJ, includes the power to dismiss charges and reassess

a sentence to cure a legal error or moot allegations of such.

The Court of Criminal Appeals has an independent responsibility

to “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.”   Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2000).   The action taken on appellate review in this case was

within the power granted to the Court of Criminal Appeals by

Article 66(c), UCMJ.   See United States v. Sales, 22 M.J. 305

(C.M.A. 1986).




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United States v. Perez, No. 08-5002/AF


     STUCKY, Judge (concurring in the result):

     The Judge Advocate General of the Air Force certified this

case to this Court for review of whether the convening authority

properly reassessed Appellee’s sentence.   The majority holds

that the Air Force Court of Criminal Appeals’ (AFCCA) action was

within the power granted to it by Article 66(c), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000).   I agree

that, under our precedents, the AFCCA did not err; however, I

have serious doubt about some of those precedents and therefore

write separately.

     As the majority notes, the convening authority’s action on

the findings and sentence of a court-martial “is a matter of

command prerogative involving [his] sole discretion.”   Article

60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1) (2000).    He has “absolute

power to disapprove the findings and sentence, or any part

thereof, for any or no reason, legal or otherwise.”   United

States v. Boatner, 20 C.M.A. 376, 378, 43 C.M.R. 216, 218

(1971).    In performing his post-trial duties, “his role is

similar to that of a judicial officer,” and there exist

“virtually no limitations upon his ameliorative judicial

powers.”   United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.

1987); United States v. Hamilton, 39 C.M.R. 356, 357 (A.B.R.

1968).
United States v. Perez, No. 08-5002/AF


     In United States v. Reed, 33 M.J. 98 (C.M.A. 1991), this

Court noted that a convening authority is not required to

correct legal errors, but “it is entirely appropriate and

certainly commendable for a convening authority in his

discretion to undertake curing such an error before the case

reaches appellate levels.”    Id. at 99.   But “[w]here he does so,

his action must be guided by the same rules applicable to

appellate authorities.”   Id.    The accused must be “‘placed in

the position he would have occupied if an error had not

occurred.’”   Id. at 99-100 (quoting United States v. Hill, 27

M.J. 293, 296 (C.M.A. 1988)).    In other words, the convening

authority must either approve a sentence no greater than the

sentencing authority would have adjudged absent the error or

order a sentence rehearing.     See id. (citing United States v.

Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Suzuki,

20 M.J. 248, 249 (C.M.A. 1985)).

     I have serious doubt as to whether this holding can be

squared with the plain language of Article 60, UCMJ, or the

traditional understanding of the convening authority’s powers

set out above.   However, as this issue was neither briefed nor

argued in this case, and the AFCCA’s action was not erroneous

under existing precedent, I concur in the result.




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