United States v. Austill
ACM S32419
A.F.C.C.A.May 4, 2017Background
- Appellant pleaded guilty at a special court-martial to fraudulent enlistment (Charge I), violation of a general order for prescription overuse (Charge II), and wrongful use of marijuana (Charge III); sentenced to a bad-conduct discharge, 45 days confinement, and reduction to E-1.
- Charge I alleged dates from 12 Sep 2013 to 3 Jun 2014; other charges alleged conduct beginning in 2015.
- Post-trial SJAR told the convening authority he lacked power to disapprove, commute, or suspend the punitive discharge and could not dismiss findings of guilt.
- Because one offense occurred before 24 Jun 2014, the pre-amendment Article 60/R.C.M. 1107 regime applied, which preserved broader convening-authority clemency powers.
- The Government and the court agreed the SJA’s advice was legally incorrect, but the convening authority and SJA submitted affidavits stating they would not have granted relief even if properly advised.
- Appellant did not submit clemency matters post-trial and failed to make a colorable showing of possible prejudice from the erroneous advice.
Issues and Key Cases Cited
| Issue | Appellant's Argument | Government/Convening Authority Argument | Held |
|---|---|---|---|
| Whether the SJA erroneously advised the convening authority he could not disapprove, commute, or suspend the punitive discharge given an offense dated before 24 Jun 2014 | SJA advice was incorrect and deprived appellant of potential clemency relief | SJA conceded error; convening authority and SJA both stated they would not have granted relief even with correct advice | SJA erred in advice, but appellant failed to show prejudice; findings and sentence affirmed |
Key Cases Cited
- Kho v. United States, 54 M.J. 63 (C.A.A.F. 2000) (standard for reviewing post-trial processing errors and plain-error prejudice)
- Scalo v. United States, 60 M.J. 435 (C.A.A.F. 2005) (appellant must make a colorable showing of possible prejudice from SJAR error)
- Sheffield v. United States, 60 M.J. 591 (A.F. Ct. Crim. App. 2004) (de novo review of post-trial processing issues)
- Johnson v. United States, 26 M.J. 686 (A.C.M.R. 1988) (test whether convening authority plausibly may have taken more favorable action if properly advised)
- Green v. United States, 44 M.J. 93 (C.A.A.F. 1996) (considerations for assessing plausibility of different convening-authority action)