United States v. Wellington , 2003 CAAF LEXIS 690 ( 2003 )

UNITED STATES, Appellee
v.
Raphelito G. WELLINGTON, Sergeant
U.S. Army, Appellant
No. 02-0955
Crim. App. No. 9900782
United States Court of Appeals for the Armed Forces
Argued April 30, 2003
Decided July 7, 2003
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
Major Imogene M. Jamison (on brief).
For Appellee: Captain Janine P. Felsman (argued); Colonel Lauren
B. Leeker, and Major Jennifer H. McGee (on brief).
Military Judge: J. P. Galligan
This opinion is subject to editorial correction before final publication.
United States v. Wellington, No. 02-0955/AR
Judge GIERKE delivered the opinion of the Court.
Appellant was charged with raping and forcibly sodomizing
his 16-year-old stepdaughter, CT, on divers occasions between
November 1, 1998 and February 10, 1999, in violation of Articles
120 and 125, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. §§ 920 and 925 (2000), respectively; and committing an
indecent assault on CT between February 11, 1999 and March 18,
1999, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).
A military judge sitting as a general court-martial convicted
Appellant, contrary to his pleas, of the indecent assault and the
lesser-included offenses of attempted rape and attempted forcible
sodomy, in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000).
The adjudged and approved sentence provides for a dishonorable
discharge, confinement for six years, total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal
Appeals summarily affirmed the findings and sentence.
This Court granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
DENYING THE DEFENSE MOTION FOR A CONTINUANCE WHERE THE
CONTINUANCE WAS NEEDED BECAUSE OF THE GOVERNMENT’S FAILURE
TO DELIVER DISCOVERY DOCUMENTS THAT IT HAD PROMISED TO
PROVIDE TO THE DEFENSE.
II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE
STATEMENTS OF CT UNDER THE RESIDUAL HEARSAY EXCEPTION,
MILITARY RULE OF EVIDENCE 807, WHEN THE STATEMENTS WERE
NEITHER RELIABLE NOR NECESSARY GIVEN THE FACT THAT CT WAS
FEVER-RIDDEN AND ON MULTIPLE NARCOTICS AT THE TIME SHE GAVE
THE STATEMENTS AND GIVEN THE FACT THAT SHE WAS PRESENT TO
TESTIFY AT TRIAL.
III. WHETHER THE STAFF JUDGE ADVOCATE’S POST-TRIAL
RECOMMENDATION AND ITS ADDENDUM PREJUDICED THE APPELLANT
WHEN THE CONVENING AUTHORITY CONSIDERED CLEMENCY BECAUSE
THEY CONTAINED ERRONEOUS INFORMATION AS TO THE APPELLANT’S
DISCIPLINARY RECORD AND HISTORY OF RESTRAINT AND FAILED TO
ADDRESS LEGAL ERROR RAISED IN THE DEFENSE RULE FOR COURTS-
MARTIAL 1105 MATTERS.
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For the reasons set out below, we affirm so much of the decision
below as affirms the findings of guilty, but we return the record
for a new staff judge advocate recommendation (SJAR) and
convening authority action.
I. Factual Background
A. The Offenses
The victim, CT, was diagnosed as having leukemia in 1994.
She died on November 27, 1999, some four months after Appellant’s
trial.
CT spent significant periods of time in the hospital, and
she underwent bone marrow treatment in the summer of 1998. After
being released from the hospital, she was “very debilitated,” but
gradually became stronger. She suffered a relapse and was again
hospitalized on February 12, 1999. Dr. Linda Shaffer, one of
CT’s doctors, believed that there was no hope for CT’s recovery.
On the night of March 17-18, 1999, CT began experiencing
“excruciating pain” in her abdomen. At about 4:00 a.m. on March
18, Dr. Shaffer was summoned to the hospital. CT asked Dr.
Shaffer if she was dying, and Dr. Shaffer replied in the
affirmative. At the time, CT had a fever of 103.4 degrees. CT
asked to see her mother. Dr. Shaffer contacted the family and
asked them to come to the hospital.
During a private conversation with her mother during the
early morning of March 18, CT admitted that she and her aunt had
molested her brother. CT was crying and talking and then fell
asleep. CT’s mother called her brother into the room. CT awoke
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and told her brother, “I did something bad to you,” and they
cried.
After her brother left the room, CT told her mother that
Appellant had kissed her and touched her breasts. CT told her
mother that Appellant would come into her room at night and would
“put his ‘private’ against her ‘private’ and rub.” While CT was
talking, she “was falling asleep during a lot of it and not
finishing her sentences.” CT told her mother that Appellant got
in bed with her in the hospital and “was rubbing on her.” CT
told her mother that she did not tell her about Appellant’s acts
because she was afraid that her mother would not love her.
CT’s mother became angry and told Dr. Shaffer that she was
going to kill the Appellant. Dr. Shaffer reported the threat to
her supervisor, Dr. Reginald Moore, who also was one of CT’s
doctors.
Later that same day, Ms. Brenda Fenner, an “investigative
worker” for the state of Texas, interviewed CT, accompanied by
Dr. Moore, Criminal Investigative Command (CID) Special Agent
(SA) Hawthorne, and CT’s mother. The interview was videotaped by
SA Hawthorne.
During this interview, CT told Ms. Fenner that shortly after
her 16th birthday on November 7, 1998, Appellant began rubbing
her legs underneath her pajamas. CT told Ms. Fenner that she did
not tell her mother about the incident because she thought that
her mother would not love her any more.
CT said that the family had to move out of their home
because of a defective heater that was causing carbon monoxide
poisoning. While they were temporarily living in a guest house,
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Appellant came into her room at about 2:00 a.m. and got in her
bed. He began kissing her and putting his tongue in her mouth.
CT pretended to be asleep and Appellant stopped. “Maybe about an
hour later” he began rubbing her breast and touching her buttocks
and her “private part” under her clothing.
CT said that, after the family moved back into their home,
Appellant came into her room at night, sucked on her breasts,
pulled off her underpants, and tried to “penetrate” her. On a
“couple of other nights” Appellant removed CT’s underwear and
rubbed his penis against her buttocks.
CT told Ms. Fenner that while her mother was in the hospital
having a baby, Appellant tried to have sex with her in her
mother’s bed. At that point in the interview, CT began crying
uncontrollably and said, “I don’t want to talk anymore right
now.” The interview was terminated.
On the next day, March 19, Dr. Shaffer was conducting a
gynecological exam of CT in an effort to determine the sources of
her multiple infections. Dr. Shaffer explained to CT that the
exam was necessary to determine if she had an infection that had
not been treated. Dr. Shaffer testified that after this
explanation, CT spontaneously said, “after ‘he’ was done, she
would go to the bathroom to get all the ‘yuckie stuff’ out, and
that when she wiped there would be blood on her tissue, and it
would hurt really bad when she [urinated].”
Dr. Shaffer testified that CT was mentally “normal” when she
made the spontaneous statement. CT knew who Dr. Shaffer was,
where she was, and what they were talking about. CT had been
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“very involved” in making choices of narcotics and medical
procedures, and she was mentally alert.
On March 26, Ms. Fenner, accompanied by Dr. Moore, Dr.
Shaffer, and SA Hawthorne, conducted a second videotaped
interview. In this interview, CT said that at least one of the
incidents occurred while she was in the hospital. Appellant had
agreed to watch CT overnight, and sometime during the night, he
got in the hospital bed with CT and rubbed her vagina, buttocks,
and breasts. When SA Hawthorne asked CT if Appellant actually
touched her with his penis, CT said that she was lying on her
back and “He tried to go in.” CT told him “stop, it hurts.” On
another occasion, she was on her stomach and he tried to “get in”
her anus. She was “scooting” away from Appellant but could not
get away. CT said, “And if I moved anywhere, it would go, it
would – it – the penis would go in, or something --.” At this
point in the interview, CT began crying and the interview was
terminated.
Although CT’s mother testified that CT “was definitely not
‘with it’” during the period from March 17-31, CT’s mother found
CT’s accusations sufficiently credible to cause her to threaten
to kill Appellant. Dr. Moore and Dr. Shaffer testified that CT
was properly oriented and “very coherent” during the videotaped
interviews, and they opined that she was not experiencing “any
hallucination, disorientation, confusion, or anything of that
nature.”
Appellant was interviewed by agents of the CID on March 18
and 19. He provided a sworn written statement in which he
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admitted that he had kissed and fondled CT, and rubbed his penis
against her. He denied any sexual penetration.
B. Request for Continuance
On June 21, four days after the referral of charges, the
defense requested CT’s medical records. On July 17, the
prosecution responded that many of the documents were available
for review at various agencies at or in the vicinity of Fort Sam
Houston, Texas. On July 23, the defense asked for copies of the
records. The prosecution promised to copy the records and send
them to defense counsel by overnight Federal Express; however,
the records were never sent.
On July 28, the defense filed a written motion to dismiss
the charges with prejudice for lack of speedy trial in violation
of Rule for Courts-Martial 707 [hereinafter R.C.M.], Articles 10
and 33, UCMJ, 10 U.S.C. §§ 810, 833 (2000) and the Sixth
Amendment.
When the defense counsel arrived at Fort Sam Houston on
August 3, the day before trial, he was offered the opportunity to
view and copy the requested documents, “a nearly 12-inch stack of
mostly double sided medical records.” On the same day, the
defense counsel filed a written motion for a two-week
continuance, citing the Government’s failure to send the medical
records as promised. The defense argued that the medical records
were essential to the defense “because they pertain to [CT’s]
physical and mental condition, as well as medications received by
her, at the time of the statements which the Government is
attempting to introduce.”
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The prosecution opposed both motions, but conceded that the
records were not provided to the defense until noon on August 3.
At a pretrial hearing on the afternoon of August 4, defense
counsel argued that he needed CT’s medical records to show
“medications, indications of her mental status, [and] the times
that she was hallucinating.” The military judge noted that CT’s
doctors had testified at the hearing pursuant to Article 32,
UCMJ, 10 U.S.C. § 832 (2000), and that the defense had
interviewed them. The military judge asked defense counsel,
“[D]o you have any reason to believe that the doctors haven’t
told you forthrightly, exactly, what types of medication she has
been taking?” Defense counsel responded:
Actually, your Honor, I have very good reason to
believe that the doctors are reluctant to say anything
that may be seen as favorable to the defense. So,
therefore, I believe it will be necessary to confront
them with their own medical records in order to do that
effectively.
After ascertaining that the defense adhered to its earlier
motion to dismiss for lack of speedy trial, the military judge
denied the request for a continuance. The military judge then
stated:
I will permit the defense, however, broad latitude in
any cross-examination of the physicians on the matters
associated with the types of drugs that the victim has
been taking, and any type of pharmacological [effect]
that those might have on an individual, to the extent
that it would be [sic] appear relevant.
. . . .
. . . And again, if you need additional time, if time
is required for you to be able to sit down and go over
some of these in greater detail with the doctor, bring
that to the court’s attention. But to the extent, that
it is the only basis of the defense’s request for
continuance – motion for continuance by the defense is
denied.
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Finally, the military judge explained that it was important
to proceed with the trial as originally docketed in light of
Appellant’s “continuing demand for a speedy trial” and “the very
unique tenuous medical condition of the victim.”
C. Residual Hearsay
CT testified at Appellant’s court-martial. She testified
that Appellant had “French kissed” her, rubbed her breasts and
legs, and rubbed his penis between her legs near her vagina. She
described the incidents as “fooling around.” She also testified
that Appellant rubbed his finger on her vagina.
CT testified that she had no recollection of saying that
Appellant touched her buttocks with his penis. She did not
remember making any statements to Dr. Moore or Ms. Fenner. She
testified that she remembered nothing that happened in the
hospital in late March because she “was under a lot of
medication.”
She testified that she loved Appellant but believed that he
had to be punished because he did something wrong. Finally, she
testified that she did not report Appellant’s sexual abuse to her
mother because she was afraid that her mother would not love her
any more.
The prosecution offered four statements under Military Rule
of Evidence 807 [hereinafter M.R.E.], the residual hearsay
exception: (1) CT’s statements to her mother on March 18; (2) the
videotaped interview on March 18; (3) CT’s spontaneous statement
to Dr. Shaffer during the gynecological examination on March 19;
and (4) the videotaped interview on March 26. The defense
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objected, asserting that the statements were unreliable because
at the time CT made them she was under the influence of multiple
drugs, hallucinating, in and out of consciousness, and running a
high fever. The defense also pointed out that none of the
statements were under oath. The military judge admitted the four
statements. He left open the possibility that further detailed
findings would be appended to the record if necessary, but no
further findings were appended.
D. The SJAR
The SJAR stated that Appellant received nonjudicial
punishment under Article 15, UCMJ, 10 U.S.C. § 815 (2000) on
two occasions. The SJAR recited the following:
Prior Art. 15s: Field Grade Article 15 for underage
drinking, assault consummated by battery, and drunk and
disorderly at Travis Air Force Base. Punishment
imposed on 24 Jul 98. Field Grade Article 15 for
failure to obey lawful order. Punishment imposed on 14
Dec 98.
The Government concedes that this entry is incorrect, and
that Appellant did not receive nonjudicial punishment at any
time during his career.
The SJAR also advised the convening authority that
Appellant was not subjected to any pretrial restraint. This
entry was incorrect because Appellant was restricted. In
fact, during the trial Appellant contended that the
restriction was so onerous that it was tantamount to
confinement.
Based on the recommendation of the military judge, the
staff judge advocate (SJA) advised the convening authority
to suspend the adjudged total forfeitures. She advised that
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United States v. Wellington, No. 02-0955/AR
total forfeitures could be suspended “for a maximum period
of two years” under Army regulations and R.C.M. 1108. In
his clemency petition, Appellant asked the convening
authority to “suspend his forfeitures, both adjudged and
automatic, to the fullest extent permitted by law.”
In his post-trial submission to the convening authority
under R.C.M. 1105 he repeated his assertion that his
restriction was tantamount to confinement, but he did not
point out that the SJAR was incorrect. The SJA submitted an
addendum, but no corrections were noted in the addendum.
II. Discussion
A. Continuance
Article 40, UCMJ, 10 U.S.C. § 840 (2000) empowers
military judges, to “for reasonable cause, grant a
continuance to any party for such time, and as often, as may
appear to be just.” “Reasonable cause” includes
insufficient opportunity to prepare for trial. See R.C.M.
906(b)(1) discussion. In Morris v. Slappy, 461 U.S. 1, 11
(1983), the Supreme Court recognized that “broad discretion
must be granted trial courts on matters of continuances.”
Accordingly, the Supreme Court adopted a very deferential
standard of review, stating that “only an unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’” will result in reversal.
Id. at 11-12; See also United States v. Weisbeck, 50 M.J.
461, 464 (C.A.A.F. 1999)(abuse of discretion to deny
continuance to obtain expert witness). On the other hand,
possible loss of witnesses is a valid consideration in
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deciding whether to deny a continuance. See United States
v. Royster, 42 M.J. 488, 490-91 (C.A.A.F. 1995)(no abuse of
discretion to deny continuance to prevent possible loss of
witnesses).
In this case, we need not decide if the military judge
abused his discretion, because Appellant has not established
that he was prejudiced. His counsel cross-examined Dr.
Shaffer and Dr. Moore about CT’s medications, the effect of
her medications on her mental status, and the incidents of
hallucination. To this day, Appellant has not shown what he
would have done differently at his trial if the Government
had responded to the request for discovery in a timely
manner.
B. Residual Hearsay
The military judge admitted CT’s statement to her
mother, the two videotaped interviews conducted by Ms.
Fenner, and CT’s statement to Dr. Shaffer as residual
hearsay under M.R.E. 807. The rule provides:
A statement not specifically covered by Rule 803
or 804 but having equivalent circumstantial
guarantees of truthworthiness, is not excluded by
the hearsay rule, if the court determines that (A)
the statement is offered as evidence of a material
fact; (B) the statement is more probative on the
point for which it is offered than other evidence
which the proponent can procure through reasonable
efforts; and (C) the general purposes of these
rules and the interests of justice will best be
served by admission of the statement into
evidence.
The residual-hearsay exception is “intended to apply
[only] to highly reliable and necessary evidence.” United
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States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991)(citing S.
Saltzburg, et al., Military Rules of Evidence Manual 659
(2 ed. 1986). A military judge’s decision to admit residual
hearsay is entitled to “considerable discretion” on
appellate review. United States v. Pollard, 38 M.J. 41, 49
(C.M.A. 1993). Where, as in this case, the declarant
testifies and the Sixth Amendment’s Confrontation Clause is
satisfied, reliability of the residual-hearsay evidence may
be established by the circumstances that immediately and
directly surround the making of the declaration as well as
corroboration by other evidence extrinsic to the
declaration. United States v. Morgan, 40 M.J. 405, 409
(C.M.A. 1994); United States v. McGrath, 39 M.J. 158, 167
(C.M.A. 1994).
The necessity prong “essentially creates a ‘best
evidence’ requirement.” United States v. Kelley, 45 M.J.
275, 280 (C.A.A.F. 1996)(citing Larez v. City of Los
Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). This prong may
be satisfied where a witness cannot remember or refuses to
testify about a material fact and there is no other more
probative evidence of that fact. See United States v.
Owens, 484 U.S. 554 (1988)(witness could not remember
identifying his attacker because of memory loss caused by
injuries suffered in the attack); United States v.
Martindale, 30 M.J. 172 (C.M.A. 1990), aff’d after remand by
40 M.J. 348 (C.M.A. 1994)(learning-disabled minor victim
unable or unwilling to testify).
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In this case, there is no dispute about the materiality
of the evidence. Appellant contends, however, the evidence
was not reliable because CT was under the influence of drugs
and possibly hallucinating. Appellant also contends that
the evidence was not necessary because CT testified. The
military judge determined that the four statements were
reliable, having “circumstantial guarantees of
truthworthiness” equivalent to M.R.E.s 803 and 804. For the
following reasons, we hold that the military judge did not
abuse his discretion by admitting the four statements as
residual hearsay.
With regard to CT’s statements to her mother on March
18, the military judge noted that: (1) the statements
occurred shortly after Dr. Shaffer told CT that she was
dying; (2) they were similar to a dying declaration under
M.R.E. 804(b)(2); and (3) they were made to her mother, for
whom she professed deep love, in a non-coercive, private
setting. The record also reflects that CT preceded her
accusations against Appellant with a confession to her
mother that she had abused her brother. See M.R.E.
804(b)(3)(statements against interest).
By viewing the videotapes, the military judge was able
to observe CT’s demeanor, evaluate the questioning
techniques, observe the physical surroundings, and evaluate
CT’s clarity of thought at the time she made the statements.
Regarding the first videotaped interview on March 18, the
military judge considered that it took place in the same
non-coercive environment on the same day as CT’s
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United States v. Wellington, No. 02-0955/AR
conversation with her mother; (2) it occurred shortly after
CT was informed that she was dying; (3) CT’s mother was
present during the interview; and (4) Dr. Shaffer, whom she
trusted, also was present. With respect to the the second
videotaped interview on March 26, the military judge noted
that it took place under conditions similar to the first
videotaped interview, with Dr. Shaffer and Dr. Moore
present. See United States v. Ureta, 44 M.J. 290, 297
(C.A.A.F. 1996)(potentially coercive atmosphere attenuated
by presence of mother and trusted friend). According to Dr.
Shaffer and Dr. Moore, CT was mentally alert, coherent, and
not hallucinating during the videotaped interviews. See
Idaho v. Wright, 497 U.S. 805, 821 (1990)(listing mental
state as a factor).
Regarding CT’s statement to Dr. Shaffer on March 19,
the military judge considered that: (1) it was spontaneous
(see id. (listing spontaneity as factor)); (2) made during a
gynecological examination, immediately after Dr. Shaffer
told CT that she was looking for sources of infection; and
(3) similar to a statement made for purposes of medical
diagnosis under M.R.E. 803(4).
Finally, the military judge considered several
additional factors in determining that all four statements
were reliable: (1) their proximity in time to the events
described; (2) their internal consistency; (3) their
consistency with each other; (4) CT’s apparent intelligence
and use of terminology appropriate to her age; (5) CT’s lack
of bias or motivation to lie; and (6) the absence of
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United States v. Wellington, No. 02-0955/AR
evidence of efforts to cause her to fabricate, lie, or
embellish. See Wright, 497 U.S. at 821 (listing appropriate
terminology and consistent repetition as factors); see also
Pollard, 38 M.J. at 49.
The military judge took into account that none of the
statements were sworn, although he did not expressly address
the defense assertion that CT’s declarations were unreliable
because she was heavily medicated and hallucinating, he had
before him the uncontroverted testimony of Dr. Moore and Dr.
Shaffer that CT was “very coherent” and was not experiencing
“any hallucination, disorientation, confusion, or anything
of that nature” before or during the videotaped interviews.
In addition, he was able to view the videotape and make his
own independent evaluation of her mental condition. He
concluded that the totality of the circumstances provided
the requisite indicia of reliability. Based on the evidence
of record, we hold that the military judge did not abuse his
discretion by determining that the four statements met the
reliability prong of M.R.E. 807.
We turn next to the question whether the statements
were necessary. CT’s trial testimony corroborated
Appellant’s confession to various indecent acts, but she
consistently testified that she could not remember the
sexual assaults in the hospital and could not remember
telling her mother, Dr. Shaffer, or Dr. Moore about
Appellant’s sexual abuse. CT attributed her lack of memory
to the massive medication she received during a period when
her doctors believed that her death was imminent. CT’s four
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statements were the only evidence supporting the charges of
rape and forcible sodomy and the only evidence corroborating
Appellant’s confession to committing indecent acts. See
Kelley, 45 M.J. at 281 (need for corroboration made residual
hearsay necessary). The videotape was the best evidence
available to the military judge to evaluate the clarity of
CT’s thought processes during the two videotaped interviews
and to resolve the issues raised by the defense regarding
her mental condition. Thus, we hold that the military judge
did not abuse his discretion when he determined that the
residual hearsay was necessary.
C. The SJAR
Article 60(d), UCMJ, 10 U.S.C. § 860(d) (2000),
requires the convening authority to “obtain and consider the
written recommendation of his staff judge advocate or legal
officer.” Consistent with this Congressional intent, the
President has acknowledged that “[t]he purpose of the
recommendation . . . is to assist the convening authority to
decide what action to take on the sentence in the exercise
of command prerogative.” R.C.M. 1106(d)(1). In United
States v. Mark, 47 M.J. 99, 101 (C.A.A.F. 1997), this Court
stated:
The importance of the SJA’s recommendation with respect
to a convening authority’s action is long established.
See e.g., United States v. Leal, 44 M.J. 235 (1996);
United States v. Norment, 34 M.J. 224 (CMA 1992);
United States v. Narine, 14 M.J. 55 (CMA 1982); United
States v. Goode, 1 M.J. 3 (CMA 1975). Although its
scope has been narrowed, the significance of the SJA’s
recommendation and its contents has actually increased.
This has occurred because the convening authority is no
longer required to personally review the record of
trial before taking action. See United States v. Diaz,
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40 M.J. 335, 340 (CMA 1994)(explaining 1993 amendments
to the Code related to the convening authority’s post-
trial responsibilities).
Where, as in this case, the SJAR is served on the
defense counsel and accused in accordance with R.C.M.
1106(f)(1), and the defense fails to comment on any matter
in the recommendation, R.C.M. 1106(f)(6) provides that any
error is waived unless it rises to the level of plain error.
R.C.M. 1106(d)(3)(C) and (D) require that the SJAR
contain a summary of “any records of nonjudicial punishment:
and “[a] statement of the nature and duration of any
pretrial restraint.” The Government concedes the SJAR
misstates Appellant’s disciplinary record and omits mention
of the pretrial restraint imposed. We test for plain error,
because Appellant did not comment on these errors.∗ See
generally United States v. Powell, 49 M.J. 460 (C.A.A.F.
1998). In our view, the errors are “clear” and “obvious.”
Id. The only question is whether the errors resulted in
material prejudice to Appellant’s substantial right to have
a request for clemency judged on the basis of an accurate
record.
∗
In response to Appellant’s request for relief from the adjudged
total forfeitures, the SJA advised the convening authority that
he was authorized to suspend the forfeitures “for a maximum
period of two years as per AR [Army Regulation] 27-10, para. 5-31
and Rule for Courts-Martial 1108.” This advice also appears to
be incorrect, because the version of the Army Regulation in
effect at the time of the convening authority’s action, as well
as the current version (at paragraph 5-34), authorize suspension
for a maximum period of two years or the period of any unexecuted
portion of confinement, whichever is longer. (Emphasis added.)
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In this case Appellant had no disciplinary record prior
to his court-martial, but the SJAR portrayed him as a
mediocre soldier who had twice received punishment from a
field grade officer. According to the erroneous SJAR, the
first punishment was for underage drinking, drunk and
disorderly conduct, assault and battery; the second
punishment was for disobedience. Appellant’s “best hope for
sentence relief” was dashed by the inaccurate portrayal of
his service record. See United States v. Jones, 36 M.J.
438, 439 (C.M.A. 1993). Accordingly, we hold that there was
plain error in the SJAR, and we will not speculate on what
the convening authority would have done if he had been
presented with an accurate record. Id.
III. Decision
The decision of the United States Army Court of
Criminal Appeals is affirmed with respect to findings and
reversed as to sentence. The record is returned to the
Judge Advocate General of the Army for remand to a convening
authority for a new staff judge advocate’s review and
convening authority’s action. Thereafter, Articles 66 and
67, UCMJ, 10 U.S.C. § 866, 867 (2000), will apply.
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