United States v. McLeod Jr.

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32558
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UNITED STATES
Appellee
v.
Mark B.J. MCLEOD JR.
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 22 April 2020
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Military Judge: Andrew R. Norton.
Approved sentence: Bad-conduct discharge, confinement for 45 days, re-
duction to E-1, and a reprimand. Sentence adjudged 30 October 2018 by
SpCM convened at Keesler Air Force Base, Mississippi.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS and D. JOHNSON, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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PER CURIAM:
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c).
United States v. McLeod, No. ACM S32558
Manual for Courts-Martial, United States (2016 ed.). * Accordingly, the ap-
proved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
* In his clemency letter on behalf of Appellant, trial defense counsel requested three
times that the convening authority disapprove the bad-conduct discharge. The adden-
dum to the staff judge advocate’s recommendation (SJAR) did not address the defense
counsel’s misstatement of the law regarding the convening authority’s power to disap-
prove the bad-conduct discharge. See United States v. Zegarrundo, 77 M.J. 612 (A.F.
Ct. Crim. App. 2018), rev. denied, 79 M.J. 279 (C.A.A.F. 2019). We note the SJAR itself
correctly stated that the convening authority had no power to disapprove the “punitive
discharge.” See Article 60(c)(2)(A), (c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(3)(B), (c)(4)(A).
We find no colorable showing of possible prejudice from trial defense counsel’s mis-
statement of the law as it incorrectly informed the convening authority she had more,
rather than less, discretion than she actually had. See United States v. Lamica, No.
ACM 39423, 2019 CCA LEXIS 257, at *16 n.4 (A.F. Ct. Crim. App. 14 Jun. 2019) (un-
pub. op.), rev. denied, 79 M.J. 290 (C.A.A.F. 2019); United States v. Ten Eyck, No. ACM
39188, 2018 CCA Lexis 193, *6–8 (A.F. Ct. Crim. App. 17 Apr. 2018) (unpub. op.), rev.
denied, 78 M.J. 56 (C.A.A.F. 2018).
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