United States v. VillarrealUnited States v. Villarreal
A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of making a
Although not raised by the appellant, we find error in the addendum to the staff judge advocate‘s recommendation (SJAR) and find it necessary to remand for a new SJAR and CA‘s action.
I. BACKGROUND
In the appellant‘s request to the CA for clemency,2 trial defense counsel requested disapproval of the appellant‘s adjudged discharge. The addendum to the SJAR advised the CA that, pursuant to Rule for Courts-Martial (R.C.M.) 1107, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), the CA was not authorized to “disapprove, commute or suspend the sentence of the Bad-Conduct Discharge.”3 The CA approved but did not execute the appellant‘s discharge. Although the CA explicitly mentioned considering R.C.M. 1105 and 1106 matters submitted by the appellant, the CA did not comment on his authority to grant the requested clemency.
II. DISCUSSION
The erroneous advice in the addendum to the SJAR was a misinterpretation of changes to Article 60, UCMJ by the National Defense Authorization Act for Fiscal Year 20144, which became effective on 24 June 2014.
While the advice in the SJAR‘s addendum is correct for offenses committed after 24 June 2014, the appellant‘s larceny specification spans from 26 June 2013 to 18 August 2015. This specification straddles the 24 June 2014 date. The National Defense Authorization Act for Fiscal Year 2015 clarified the issue of such straddling offenses:
With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before the effective date ... and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date[.]5
“Failure of counsel for the accused to comment on any matter in the recommendation ... in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.”
We find that the advice in the SJAR‘s addendum was an affirmative misstatement of the law that effectively precluded the appellant‘s opportunity to receive clemency. See United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003) (describing the CA as an accused‘s best hope for clemency). As such, the error was material and substantial. Given the extent to which CAs must rely on their SJAs to correctly explain post-trial processing—particularly in light of the changes to Article 60, UCMJ—we have no doubt the error misled the CA. There is nothing in the
III. CONCLUSION
The CA‘s action is set aside. The record of trial is returned to the Judge Advocate General for remand to an appropriate CA for new post-trial processing. The record shall then be returned to this court for review under