United States v. KAPAYOU

This opinion is subject to administrative correction before final disposition.

Before HACKEL, GROSS, and BLOSSER Appellate Military Judges _________________________ UNITED STATES Appellee v. Stanford N. KAPAYOU Lance Corporal (E-3), U.S. Marine Corps Appellant No. 202300145 _________________________ Decided: 28 December 2023 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Adam C. King Sentence adjudged 26 January 2023 by a general court-martial con- vened at Marine Corps Base Camp Foster, Okinawa, Japan, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for 20 months, 1 forfeiture of all pay and allowances, and a dishonorable discharge. 2

1 Appellant was credited with 114 days of pretrial confinement.

2 The convening authority’s written action purported to “order the sentence be ex- ecuted as adjudged with the exception of the Dishonorable Discharge, which I order adjudged once this case is certified as final in accordance with [Rule for Courts-Martial United States v. Kapayou, NMCCA No. 202300145 Opinion of the Court For Appellant: Commander Kyle C. Kneese, JAGC, USN _________________________ This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a).

_________________________ PER CURIAM: After careful consideration of the record, submitted without assignment of error, and Appellant having not challenged the factual sufficiency of this case, we have determined that the findings are correct in law, the sentence is correct in law and fact, and that no error materially prejudicial to Appellant’s substan- tial rights occurred. 3 The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

[R.C.M.]] 1102(b)(3) and 1209.” A convening authority has no authority to order a sen- tence executed or adjudged. A convening authority is not required to take any action on a sentence, R.C.M. 1109(g)(2); R.C.M. 1110(c)(1), (e)(1), but may reduce, commute, or suspend all or portions of a sentence in limited circumstances. See Article 60a(a)(1)(A), Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 860a(a)(1)(A); R.C.M. 1109(c); R.C.M. 1110(c), (e)(3). Here, the convening authority’s language with regard to the sentence is a legal nullity. See, e.g., United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (involving the purported disapproval of a bad-conduct discharge the parties agreed, via the pretrial agreement, would be approved and sus- pended). Nonetheless, the convening authority’s desire to take no action to reduce, commute, or suspend Appellant’s sentence is clear and unambiguous.

3 Articles 59 & 66, UCMJ, 10 U.S.C. §§ 859, 866.