United States v. Moore, ACM S32423

Background

Appellant (Airman) pleaded guilty at a special court-martial to one false official statement and multiple specifications of wrongful use of oxycodone and hydrocodone; one oxymorphone specification was withdrawn per a pretrial agreement (PTA).
The PTA limited approved confinement to no more than 60 days if a bad-conduct discharge (BCD) was adjudged; the military judge nevertheless adjudged four months confinement, reduction to E-1, and a BCD.
The SJAR (staff judge advocate’s recommendation) included an inaccurate sentence stating the primary evidence included testimony from drug lab personnel, though no such testimony was used to convict on the guilty-plea specifications. Appellant did not timely raise that SJAR error.
Trial defense counsel’s clemency submission incorrectly stated the convening authority could only affect reduction in rank (not confinement or the BCD), and the SJA’s addendum did not correct this legal error or reference PTA terms.
The convening authority approved the sentence “as adjudged” except for executing the BCD; the action did not reflect the PTA’s 60-day confinement cap and the record lacks proof Appellant received the PTA benefit.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the SJAR misstated the evidence used to convict, denying meaningful clemency opportunity	SJAR falsely stated testimony by drug lab personnel supported convictions, potentially prejudicing clemency	Government conceded no lab testimony supported the guilty-plea specifications and argued appellant didn’t show colorable prejudice from that specific error	Court found the SJAR sentence was erroneous but appellant failed to show colorable prejudice from that specific misstatement
Whether the SJA addendum’s failure to account for PTA terms was plain error requiring new post-trial processing	PTA capped confinement at 60 days; addendum/action approving sentence as adjudged may have deprived appellant of PTA benefit	Government did not prevail on this point; court reviewed post-trial processing de novo	Court held the addendum’s failure to reflect PTA terms was plain error and ordered new post-trial processing
Whether the addendum’s failure to correct defense counsel’s incorrect legal statement about convening authority clemency options was plain error	Defense counsel said convening authority could only reduce rank; that misstated Article 60 options and could mislead appellant’s clemency opportunity	Government relied on SJA/addendum but addendum did not correct the legal error	Court held the SJA erred by not correcting the misstatement; plain error requiring new post-trial processing and a new SJAR
Whether procedural defects in the court-martial order require correction	Appellant noted the order failed to show withdrawn/dismissed specification and misnamed a drug	Government did not dispute need for correction of clerical errors	Court directed correction of the court-martial order during remand

Key Cases Cited

United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (de novo review of post-trial processing and standard for waiver/forfeiture)
United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (plain-error standard and requirement of a colorable showing of possible prejudice for SJAR errors)
United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (SJA obligation to correct legal inaccuracies in clemency-related matters)
United States v. Bickel, 30 M.J. 277 (C.M.A. 1990) (urine testing in inspections and continuity of testing)