United States v. Withee, ACM S32357 (f rev)

Background

Appellant pleaded guilty at a special court-martial to multiple specifications of wrongful use of MDMA and psilocybin; sentence: bad-conduct discharge, 45 days confinement, reduction to E-1. Convening authority approved sentence but deferred reduction until he took action and waived automatic forfeitures for spouse.
On initial Article 66(c) review, this court found a pretrial agreement term unlawfully waived clemency rights (R.C.M. 705(c)(1)(B)) and ordered new post-trial processing; the record was returned to the convening authority.
Convening authority’s SJA prepared addenda, Appellant submitted clemency seeking disapproval of confinement and claiming the original deferment of reduction was never effective (seeking back pay).
On 17 April 2017 the convening authority issued a new action stating he withdrew the 9 Nov 2015 action and substituted a new action approving the sentence (with specified deferment and waiver terms and a provision about involuntary leave under Art. 76a).
Appellant argued the court’s prior remand voided the original action, so the new action improperly gave effect to that void action (affecting deferment effective dates, involuntary leave timing, and pay). The Air Force Court reviewed whether another corrective action was required.

Issues

Issue	Appellant's Argument	Convening Authority's Argument	Held
Whether another post-trial action is required because the convening authority's second action gave force to a void original action	The court’s prior ruling voided the original action; the 17 Apr 2017 action improperly "withdrew" and relied on the void action, so a third action is needed	The prior remand did not instantaneously nullify the original action; R.C.M. 1107(f)(2) allows modification of even a void action when directed; the April action validly replaced the original action	No new action required; the April 2017 action was not erroneous and sufficiently accomplished the court’s directive
Whether the court’s remand immediately rendered the original convening authority action legally void	Remand set aside the original action, eliminating its legal effect	The court’s order directed new processing but did not expressly void the original action; replacement in the new process is sufficient	Remand did not automatically strip the original action of all legal effect
Whether the deferred reduction was extended (entitling Appellant to back pay/interest) because the original action had been voided	Deferment terminated with the original action; if that action was void, the deferment continued until a valid final action, so Appellant is entitled to pay differential	The convening authority consistently intended the deferment to last only until 9 Nov 2015; Article 57(a)(2) permits rescission of deferment at any time	No additional deferment; no entitlement to back pay or interest shown
Whether Appellant’s involuntary appellate leave (Art. 76a) was improperly triggered by the voided original action	If original action was void, involuntary leave could not lawfully begin until a valid action; court should order new action to correct leave timing	The April action validly effectuated the convening authority’s intended timing and effects	No further corrective action required regarding involuntary leave

Key Cases Cited

United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App. 2004) (proper completion of post-trial processing is reviewed de novo)
United States v. LeBlanc, 74 M.J. 650 (C.A.A.F. 2015) (appellant must show colorable possible prejudice to secure relief for post-trial error)
United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (discussing prejudice standard for post-trial errors)

Result: Findings and sentence affirmed; no material prejudice shown and no further post-trial action required.