United States v. McCLARY

UNITED STATES NMCCA No. 201900111
Appellee
Panel 2
v.
Lamaont A. M C CLARY ORDER
Lance Corporal (E-3)
U. S. Marine Corps Remanding Case for
Appellant New Post-Trial Processing
At a special court-martial, the Appellant was convicted of violating Articles
112a and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 934.
Pursuant to a plea agreement with the convening authority, he entered pleas
of guilty. He was sentenced to reduction to paygrade E-1, confinement for 12
months, and a bad-conduct discharge. As required in the plea agreement, the
convening authority suspended all confinement over six months.
Although the charge sheet did not reflect any form of pretrial restraint, the
Appellant was, in fact, ordered into pretrial restriction on 16 November 2018.
While subject to pretrial restriction, on or about 3 January 2019, the Appellant
was issued nonjudicial punishment and was ordered to be restricted. Because
the trial counsel omitted any reference to pretrial restriction on the charge
sheet, the military judge was unaware of the Appellant’s restriction status un-
til he encountered the following term in Part II of the plea agreement, Appel-
late Exhibit III: “One day of confinement credit will be granted for every two
days of pretrial restriction served.”
The military judge failed to calculate how many days of pretrial restriction
the Appellant served. Neither the record of trial, the Statement of Trial Re-
sults, the Staff Judge Advocate Review, the Convening Authority Action, nor
the Entry of Judgment indicates the number of days of confinement credit to
which the Appellant was entitled and had been awarded. The military judge
and convening authority abdicated their duty to calculate the number of days
of confinement credit due to the Appellant and apparently deferred this legal
determination to the staff of the military confinement facility. The Appellant
was released from confinement on 12 June 2018.
Furthermore, we note that the Entry of Judgment does not accurately re-
flect the findings. The Entry of Judgment reflects that Charge II and its sole
Specification were withdrawn. Pursuant to the plea agreement, the parties
agreed the convening authority would withdraw Charge II and its Specification
after the military judge accepted the Appellant’s pleas of guilty, and that
Charge II and its Specification would be dismissed without prejudice upon an-
nouncement of sentence, with such dismissal to ripen into dismissal with prej-
udice upon completion of appellate review in which the findings and sentence
have been upheld. 1 However, the Entry of Judgment merely reflects that the
charge and specification were withdrawn.
Accordingly, it is, by the Court, this 30th day of September 2019,
ORDERED:
1. That the Statement of Trial Results is SET ASIDE.
2. That the Convening Authority Action is SET ASIDE.
3. That the Entry of Judgment is SET ASIDE.
4. That the record is returned to the Judge Advocate General for remand to
the Navy-Marine Corps Chief Trial Judge to detail a military judge to reac-
complish the Statement of Trial Results in compliance with RULE FOR COURTS-
MARTIAL (R.C.M.) 1101, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2019
ed.), to indicate the specific number of days of confinement credit. Next, the
record will be forwarded to the convening authority to reaccomplish the Con-
vening Authority Action in compliance with R.C.M. 1109 consistent with this
Order. Thereafter the record will be forwarded to the military judge to reac-
complish the Entry of Judgment in accordance with R.C.M. 1111. Finally, the
record will be returned to this Court for completion of appellate review.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
Copy to:
NMCCA (51.2)
45 (CDR Federico)
46
02
1 Appellate Exhibit II at 4.