United States v. Books, ACM S32369

Background

Appellant pleaded guilty at a special court-martial to wrongful use of cocaine (multiple occasions) and wrongful use of promethazine with codeine; sentence: bad-conduct discharge, 21 days confinement (already served), reduction to E‑1. A pretrial agreement capped approved confinement at 60 days.
Post-trial, the Staff Judge Advocate prepared an SJAR advising the convening authority the maximum punishment included reduction to E‑1, forfeiture of two‑thirds pay for 12 months, a fine, 12 months confinement, and a BCD; and stating the convening authority could not modify the BCD but could change the reduction in grade; it also noted Appellant had already served 21 days confinement.
Defense received the SJAR, did not object, and submitted matters asking only that the reduction to E‑1 be disapproved (and Appellant sought restoration to E‑3); the SJA added an addendum and recommended approval of the sentence as adjudged.
The convening authority approved the sentence; Appellant appealed, arguing the SJAR contained two errors: (1) it misstated the maximum punishment by including a fine in addition to forfeitures; and (2) it misadvised regarding the convening authority’s ability to reduce the term of confinement despite noting confinement was already served.
The court reviewed SJAR errors under plain‑error review because Defense did not timely object, and separately examined a 42‑day post‑trial processing interval (convening authority acted in 28 days; record docketed in 42 days) under Moreno and Tardif standards.

Issues

Issue	Appellant's Argument	Government's Argument	Held
SJAR misstated maximum punishments by listing a fine plus forfeiture	SJAR erroneously listed a fine in addition to forfeitures, overstating maximum and prejudicing clemency	SJAR merely listed authorized punishments and error was harmless because no fine was sought or adjudged	Error in SJAR was plain but Appellant failed to show colorable prejudice; no relief granted
SJAR failed to affirmatively advise convening authority he could modify confinement despite noting it had been served	Omission misadvised convening authority and may have limited his authority to reduce confinement	The SJAR accurately noted confinement was served; omission of affirmative advice was not plain error and, even if, caused no prejudice since Appellant sought no reduction in confinement	No plain or prejudicial error; no relief granted
Post‑trial delay (42 days from action to docketing)	Delay exceeded Moreno 30‑day threshold and could implicate due process or warrant Article 66(c) relief	Convening authority acted quickly (28 days); delay not so egregious to deny due process; no evidence of harm or gross neglect warranting relief	Delay was presumptively unreasonable but not so egregious to violate due process; no Article 66(c) relief appropriate

Key Cases Cited

United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App. 2015) (standard of review for post‑trial processing issues)
United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (plain‑error test for unobjected SJAR errors and low threshold for colorable prejudice)
United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (R.C.M. 1106(f) forfeiture of SJAR objections and plain‑error framework)
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (presumptively unreasonable post‑trial delay standards)
United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) (factors for assessing post‑trial delay)
United States v. Toohey, 60 M.J. 100 (C.A.A.F. 2004) (post‑trial delay and due process analysis)
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (Article 66(c) authority to grant relief for post‑trial delay)
United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015) (factors for assessing whether Article 66(c) relief for delay is appropriate)