UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JAMES R. REMMERS
United States Army, Appellant
ARMY 20120068
Headquarters, Fort Drum
Gregory R. Bockin, Military Judge
Lieutenant Colonel Olga M. Anderson, Acting Staff Judge Advocate (pretrial)
Colonel Michael O. Lacey, Staff Judge Advocate (post-trial)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Jessica J. Morales, JA (on brief).
12 March 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge, sitting as a special court-martial, convicted appellant,
consistent with his pleas, of three specifications of absence without leave, three
specifications of wrongful use of marijuana and one specification of wrongful use of
cocaine, in violation of Articles 86 and 112a, Uniform Code of Military Justice,
10 U.S.C. §§ 886 and 912 (2006) [hereinafter, UCMJ]. The military judge sentenced
appellant to a bad conduct discharge, confinement for eight months, and reduction to
the grade of E-1.
In his action, the convening authority stated “only so much of the sentence
extending to reduction to Private (E1), confinement for four months, and a bad
REMMERS—ARMY 20120068
conduct discharge, will be executed.” * The action failed to explicitly approve or
disapprove any part of the findings or sentence.
Rule for Courts-Martial [hereinafter R.C.M.] 1107(d)(1) requires that a
convening authority’s “approval or disapproval [of the sentence] shall be explicitly
stated.” If a convening authority fails to explicitly approve or disapprove any part
of the sentence in his or her action, then the action is ambiguous. United States v.
Fillinger, 69 M.J. 426 (C.A.A.F. 9 Nov. 2010) (summ. disp.). R.C.M. 1107(g)
provides that the same authority can be instructed to withdraw the original action
and substitute a corrected action. Id. Normally, this court would lack jurisdiction
unless a convening authority has approved the findings and sentence. See UCMJ
art. 66. Regarding post-trial matters, however, this court does have the “jurisdiction
to refrain from addressing the merits of a case, and instead return the action to the
convening authority if further clarification of the meaning of the action is
necessary.” United States v. Politte, 63 M.J. 24, 25 C.A.A.F. 2006).
In this case, the convening authority’s action is ambiguous because he did not
approve or disapprove any part of the sentence. Accordingly, the convening
authority’s action, dated 29 May 2012, is set aside. The record of trial is returned to
The Judge Advocate General for a new action by the same convening authority in
accordance with Article 60(c), UCMJ.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
*
The convening authority attempted to reduce the sentence in order to comply with
the terms of the pretrial agreement.
2