This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, STEWART, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Ismael VALLE-ALCANTARA, Jr.
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000048
Decided: 29 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Jeffrey V. Munoz (arraignment)
Stephen F. Keane (motions, trial)
Sentence adjudged 9 January 2020 by a general court-martial con-
vened at Marine Corps Air Ground Combat Center, Twentynine
Palms, California, consisting of a military judge sitting alone. Sen-
tence in the Entry of Judgment: confinement for 12 months, reduction
to E-1, forfeiture of all pay and allowances, and a bad-conduct dis-
charge.
For Appellant:
Captain Kimberly D. Hinson, JAGC, USN
For Appellee:
Major Kerry E. Friedewald, USMC
Lieutenant Gregory A. Rustico, JAGC, USN
_________________________
United States v. Valle-Alcantara, NMCCA No. 202000048
Opinion of the Court
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of three specifications of
assault consummated by a battery (including one upon a child under the age
of 16) and one specification of being drunk and disorderly, in violation of
Articles 128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§§ 928, 934. In his sole assignment of error [AOE], Appellant avers that the
convening authority erred in taking no action on the sentence, as some action
was required by the 2018 Amendments to the Manual for Courts-Martial. 1
We find error but no prejudice, and therefore affirm.
I. BACKGROUND
On 11 May 2018, Corporal [Cpl] Tango 2 invited Appellant and others to a
party at her apartment. During the party, Appellant became extremely
intoxicated. At the party’s conclusion, Appellant was left alone with Cpl
Sierra, Lance Corporal [LCpl] Papa, and Cpl Sierra’s infant son. Over several
hours, Appellant sought to have sex with the two women, grabbing each in
turn. At one point he removed Cpl Sierra’s son from her arms, as the child
was an obstacle to his efforts. Appellant then dropped his pants and under-
wear before passing out. Appellant, who claims to have no memory of these
events, pleaded guilty to assault consummated by a battery against the two
Marines and the child.
Post-trial, the convening authority denied Appellant’s clemency request to
waive automatic forfeitures, disapprove adjudged forfeitures, and suspend
both the automatic and adjudged reduction in rank for a period of six months.
The convening authority signed the Action seven weeks later, noting: “I take
no action on the findings or sentence in this case.” 3 The military judge signed
1 2018 Amendments to the Manual for Courts-Martial, United States, Exec. Order
13,825, 83 Fed. Reg. 9,889 (Mar. 8, 2018) [Exec. Order 13,825].
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
3 Action of Dec. 30, 2019.
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United States v. Valle-Alcantara, NMCCA No. 202000048
Opinion of the Court
the Entry of Judgment the following month, noting the convening authority’s
denial of Appellant’s clemency request and that the convening authority took
no action on the findings or sentence.
Additional facts necessary to resolve the AOE are addressed below.
II. DISCUSSION
The date of the offenses of which Appellant was convicted is 11 May 2018.
Therefore, the version of Article 60 applicable to this case 4 requires that
“[a]ction on the sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this section.” 5 Despite
this, the convening authority took “no action on the findings or sentence,” as
reflected on the Post-Trial Action form.
We review questions of jurisdiction de novo. 6 This Court is one of limited
jurisdiction defined entirely by statute. 7 Prior to January 2019, our appellate
jurisdiction was limited to review of courts-martial findings and sentences
where the sentence approved by the convening authority included death, a
punitive discharge, or confinement for one year or more. 8 Effective 1 January
2019, the Military Justice Act of 2016 [MJA 16] amended post-trial proce-
dures for cases referred to court-martial after that date. 9 This Court’s appel-
late jurisdiction is no longer dependent on the convening authority’s action;
rather, we have “jurisdiction over a court-martial in which the judgment
entered into the record under [Article 60(c), UCMJ,] includes a sentence of
death, [a punitive discharge], or confinement for 2 years or more.” 10 Article
66(d)(1) provides that this Court “may act only with respect to the findings
and sentence as entered into the record under [Article 60c, UCMJ].” And
Article 60(a)(1) requires the military judge to include “any post-trial action by
the [convening authority]” in the Statement of Trial Results.
4 See Exec. Order 13,825, 83 Fed. Reg. at 9,890, sec. 6(b).
5 UCMJ art. 60(c)(2)(A) (2012 & Supp. V 2018).
6 United States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012).
7 United States v. Arness, 74 M.J. 441, 442 (C.A.A.F. 2015).
8 UCMJ art. 66(b) (2012 & Supp. V 2018).
9 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328,
§§ 5321-38, 5542, 130 Stat. 2000, 2923-37, 2967-68 (2016); Exec. Order 13,825, 83
Fed. Reg. at 9,889, sec. 3(d).
10 UCMJ art. 66(b)(3) (2018) (emphasis added).
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United States v. Valle-Alcantara, NMCCA No. 202000048
Opinion of the Court
The President has ordered that the version of Article 60 applicable to a
court-martial is that which was in effect on the date of the earliest offense for
which an accused was convicted, to the extent it: requires convening authori-
ty’s action on the sentence; permits convening authority’s action on the
findings; authorizes the convening authority to modify the findings in certain
respects; authorizes proceedings in revision; or authorizes the convening
authority to approve, disapprove, commute, or suspend the sentence. 11 As the
version of Article 60 in effect on the date of Appellant’s offenses, 11 May
2018, requires the convening authority to take action on the sentence, the
convening authority’s failure to do so in this case is error. 12
This error, however, does not deprive this Court of jurisdiction to review
the case. The charges were referred after 1 January 2019, so MJA 16 post-
trial procedures apply. And since the Entry of Judgment enters a sentence
including a bad-conduct discharge, this Court has jurisdiction to review
Appellant’s case. 13
As the error is not jurisdictional, we test the error for prejudice pursuant
to Article 59(a). 14 Doing so, we find no material prejudice to Appellant’s
substantial rights. Although the Post-Trial Action form states that the
convening authority took no action on the findings or sentence in this case,
the form also makes clear in two places that the convening authority specifi-
cally considered and denied Appellant’s request for clemency, which sought
waiver of automatic forfeitures, disapproval of adjudged forfeitures, and
suspension of automatic and adjudged reduction to pay grade E-1.
The sentence in this case included confinement for more than six months
and a punitive discharge. Therefore, the version of Article 60(c)(4)(A) applica-
ble here prohibited the convening authority from disapproving, commuting,
or suspending any part of the confinement or the bad-conduct discharge. 15
11 See Exec. Order 13,825, 83 Fed. Reg. at 9,890, sec. 6(b).
12 United States v. Pearson, __ M.J. __, No. 201900314, 2021 CCA LEXIS 130, at
*17 (N-M. Ct. Crim. App. Mar. 29, 2021).
13 Id. at *18.
14 Id. (citing United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)).
15 Neither of the two exceptions to this prohibition—at the recommendation of
trial counsel based on substantial assistance to the Government or pursuant to the
terms of a pretrial agreement—apply in the present case. UCMJ art. 60(c)(4)(B), (C)
(2012 & Supp. V 2018). The pretrial agreement between Appellant and the convening
authority had no effect on the sentence. App. Ex. XXI.
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United States v. Valle-Alcantara, NMCCA No. 202000048
Opinion of the Court
This means that every action the convening authority could have taken on
Appellant’s sentence was effectively addressed in his denial of Appellant’s
clemency request. Accordingly, we find the error harmless.
III. CONCLUSION
After careful consideration of the record and briefs of the appellate coun-
sel, we have determined that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. UCMJ arts 59, 66 (2012 & Supp. V 2018). Accordingly, the
findings and sentence in the Entry of Judgment are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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