UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, GALLAGHER, and HAIGHT
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                 Private First Class KRISTOPHER A. SEYFERTH
                          United States Army, Appellant

                                   ARMY 20110842

               Headquarters, 101st Airborne Division and Fort Campbell
                          Timothy Grammel, Military Judge
              Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain James S. Trieschmann, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                    13 March 2013

                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave, in violation of Article 86, Uniform
Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of $978.00 pay per month for six months, and reduction to the grade of
E-1. The convening authority approved only so much of the sentence as provided
for a bad-conduct discharge, seventy-five days of confinement, forfeiture of $978.00
pay per month for six months, and reduction to the grade of E-1.

      This case is before our court for review under Article 66, UCMJ. In his sole
assignment of error, appellant argues the staff judge advocate (SJA) committed
prejudicial error by failing to comment on an allegation of legal error in the
SEYFERTH—ARMY 20110842

addendum to his post-trial recommendation (SJAR). This assignment of error merits
discussion but no relief.

                                LAW AND DISCUSSION

        An SJA is not required to examine the record for legal errors. However,“[t]he
staff judge advocate shall state whether, in the staff judge advocate's opinion,
corrective action on the findings or sentence should be taken when an allegation of
legal error is raised in matters submitted under Rule for Courts-Martial [hereinafter
R.C.M.] 1105 or when otherwise deemed appropriate by the staff judge advocate.”
R.C.M. 1106(d)(4). In addressing whether corrective action should be taken because
of legal error, the rule does not require an extensive response from the SJA. R.C.M.
1106(d)(4); United States v. Thompson, 26 M.J. 512, 514 (A.C.M.R. 1988); see also
United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988).

       At issue in appellant’s case is whether trial defense counsel’s mention, in the
R.C.M. 1105/1106 submission, of appellant’s pretrial placement in a “chapter”
platoon amounts to an allegation of legal error requiring a response by the SJA.
After reviewing the defense clemency submission, we find it does not. See R.C.M.
1106 (d)(4). Rather, in the R.C.M. 1105/1106 submission, appellant’s trial defense
counsel pointed to appellant’s placement in the “chapter” platoon and being
subjected to degrading comments as reasons for the convening authority to grant
clemency by disapproving appellant’s bad-conduct discharge. He argued, “the goal
of deterrence and preservation of good order and discipline has already been met” by
appellant’s placement in the “chapter” platoon. Significantly, appellant’s trial
defense counsel did not allege the military judge improperly ruled on an Article 13,
UCMJ, motion that denied appellant confinement credit based on these allegations.
To the contrary, the trial defense counsel quoted the military judge’s Article 13,
UCMJ, ruling, in part, in an effort to bolster the ultimate request for clemency. As
such, the SJA’s failure to comment on the issue in his addendum does not constitute
error in this case.

        However, even assuming appellant’s submission asserted legal error, we test
for prejudice when an SJA has failed to comply with R.C.M. 1106(d)(4). See Hill,
27 M.J. at 296; Thompson, 26 M.J. at 514; United States v. Johnson, 26 M.J. 686,
689 (A.C.M.R. 1988). We are “free to affirm when a defense allegation of legal
error would not foreseeably have led to a favorable recommendation by the staff
judge advocate or to corrective action by the convening authority.” Hill, 27 M.J. at
296. Based on the record before us, we conclude any legal error intimated by the
submission lacked merit and would not have resulted in either a comment by the
staff judge advocate favorable to appellant or to any “corrective action” by the
convening authority and thus, we are free to affirm in this case. See Id. at 297.




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SEYFERTH—ARMY 20110842

                                                               CONCLUSION

       On consideration of the entire record and the submissions of the parties, we
hold the findings of guilty and the sentence are AFFIRMED. *

                                                                 FOR THE COURT: 
                                                                 FOR  THE COURT:



                                                                  MALCOLM H. SQUIRES, JR.                       
                                                                 MALCOLM
                                                                 Clerk of Court  H. SQUIRES, JR.
                                                                 Clerk of Court




                                                            
*
  So much of the convening authority’s action as purports to defer and waive
forfeiture of pay and allowances beyond that of $978.00 pay per month for six
months is meaningless and without effect. Appellant was tried at a special court-
martial. Therefore, the pay and allowances forfeited, either adjudged or automatic,
could not have exceeded two-thirds monthly pay due that member. We additionally
find no prejudice in the convening authority’s erroneous attempt to waive automatic
forfeitures, while still approving the adjudged forfeitures, because at the time of
action appellant was already released from confinement, immediately placed on
excess leave, and not subject to automatic forfeitures. See UCMJ, art. 58b.

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