United States v. Carthan, 201600236

Appellant pleaded guilty at a general court-martial to one specification of abusive sexual contact (Art. 120), three specifications of assault consummated by a battery (Art. 128), and one specification of conduct unbecoming an officer (Art. 133).
Military judge sentenced appellant to one year confinement, forfeiture of all pay and a dismissal; CA approved sentence and ordered execution except for the dismissal.
The SJAR incorrectly advised the convening authority (CA) that Article 56, UCMJ, mandatory minimums applied and that the CA could not act on findings under Article 60, UCMJ, because the case involved offenses both before and after the 24 June 2014 effective date (a “straddling” case).
Abusive sexual contact (Art. 120(d)) is not among the Article 56 enumerated offenses that carry mandatory minimum dismissals; thus the CA had full authority to act on findings and sentence.
The CA took action on 6 July 2016 without granting clemency; the SJAR errors were not corrected or challenged before the CA acted.
The court found the SJAR contained affirmative legal misstatements that created a colorable showing of possible prejudice and remanded for new post-trial processing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Article 56 mandatory minimums applied to appellant's conviction for abusive sexual contact	Appellant: Article 56 does not enumerate abusive sexual contact; mandatory minimums do not apply	Government/ SJAR: Article 56 mandatory minimums apply to Article 120 offenses generally	Court: Misstatement — abusive sexual contact is not an Article 56 enumerated offense; CA had unfettered authority on sentence
Whether the CA was restricted from acting on findings under Article 60 in a straddling-offenses case	Appellant: CA retained authority to act on findings and sentence for straddling cases	Government/ SJAR: CA limited to acting only on the sentence; findings would be approved by operation of law	Court: Misstatement — CA had authority to act on findings and sentence in a straddling case
Appropriate remedy for SJAR errors that create possible prejudice	Appellant: Remand for new post-trial processing	Government: (implicitly) no relief necessary because CA acted	Court: Colorable showing of prejudice; set aside CA action and remand record for new post-trial processing

United States v. Roller, 75 M.J. 659 (N-M. Ct. Crim. App. 2016) (post-trial error creating colorable prejudice warrants meaningful relief or remand)
United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (standard for prejudice from post-trial processing errors)