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

                             No. 201600426
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                       JAVIER K. FIGUEROA
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Commander Deborah S. Mayer, JAGC, USN .
   Convening Authority: Commander, U.S. Marine Corps Forces
                     Command, Norfolk, VA.
 Staff Judge Advocate’s Recommendation: Colonel Robert A. Fifer,
                              USMC.
    For Appellant: Lieutenant Donald R. Ostrom, JAGC, USN.
               For Appellee: Brian S. Keller, Esq.
                     _________________________

                          Decided 13 April 2017
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , 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:

   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of an orders violation, assault consummated
by battery, and reckless endangerment, in violation of Articles 92, 128, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 928, and
934. The military judge sentenced the appellant to 18 months’ confinement,
reduction to pay grade E-1, and a bad-conduct discharge. The convening
                   United States v. Figueroa, No. 201600426


authority (CA) approved the sentence as adjudged and, pursuant to a pretrial
agreement (PTA), suspended all confinement in excess of six months.
    As an act of clemency, the CA suspended an additional 14 days of the
appellant’s sentence to confinement and commuted 4 days’ confinement to
restriction. Prior to taking this action, the CA considered the appellant’s
clemency matters in which the appellant requested “his discharge be
upgraded to an other than honorable [discharge] and one month be reduced
from his sentence.”1 In his addendum, the staff judge advocate favorably
endorsed some form of clemency for the appellant, recommending the
additional suspension and the commutation of confinement to restriction
ultimately adopted by the CA.2
   Although no issues were raised by the parties, we must address the
unlawful post-trial actions taken by the CA in this case.
   Pursuant to nearly three-year-old changes to Article 60, UCMJ, a CA may
not “disapprove, commute, or suspend in whole or in part an adjudged
sentence of confinement for more than six months or a sentence of dismissal,
dishonorable discharge, or bad conduct discharge” unless certain exceptions
apply.3 As a result of these well-publicized changes, the CA was prohibited
from granting the additional relief requested by trial defense counsel and
endorsed by the staff judge advocate. In other words, the CA’s act of clemency
was a legal nullity. United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim.
App. 2016) (holding such an action by the CA to be ultra vires).
   However, under Article 57(b), UCMJ, “confinement begins to run on the
date it is adjudged, and the appellant is entitled to confinement credit once
the confinement is adjudged whether or not he is actually confined, unless
the confinement is suspended or deferred.” United States v. Lamb, 22 M.J.
518, 518 (N.M.C.M.R. 1986) (citing United States v. Ledbetter, 2 M.J. 37


    1 Trial Defense Counsel’s request ltr 5817 DSO/jgm of 28 Nov 16 at 1. In an
earlier request, the appellant sought deferment and waiver of automatic forfeitures,
which was subsequently granted by the CA.
    2   Staff Judge Advocate’s Recommendation Addendum of 2 Dec 16 at 1.
    3 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
127 Stat. 672, 956-57 (2013) (emphasis added). One such exception, permitting
suspension pursuant to a PTA of a period to confinement, did apply to the appellant’s
case, but only inasmuch as was permitted by the specific language of the PTA. See
United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (“Given
Congress’[s] clear desire to limit CA discretion in granting post-trial sentencing relief
[in Article 60, UCMJ], we are unable, as the government urges, to read this
agreement so broadly as to permit the CA to grant relief that was not specifically
contained within the [PTA].”).


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               United States v. Figueroa, No. 201600426


(C.M.A. 1976)). As the additional 18 days’ confinement was improperly
suspended and commuted, the appellant’s period of confinement continued to
run. Therefore, his total confinement period should be calculated just as it
would have been had he remained confined for the entirety of those 18 days.
                             III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.




                                    For the Court




                                    R.H. TROIDL
                                    Clerk of Court




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