UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             JOHNSON, KRAUSS, and BURTON
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                  Private First Class ADRIAN M. LEBALLISTER
                           United States Army, Appellant

                                      ARMY 20100618

                        Headquarters, 25th Infantry Division
                          Kwasi L. Hawks, Military Judge
            Lieutenant Colonel George R. Smawley, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan Potter, JA; Captain A. Jason Nef, JA
(on brief).

For Appellee: Major Amber J. Williams, JA; Captain Chad M. Fisher, JA; Major
James A. Ewing, JA (on brief).

                                      24 October 2011
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       A military judge, sitting as a general court-martial, convicted appellant
pursuant to his pleas of one specification of conspiracy to distribute controlled
substances and three specifications of wrongful distribution of controlled substances
in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§
81, 112a (2008) [hereinafter UCMJ]. A panel of officer and enlisted members
sentenced appellant to a bad-conduct discharge, forfeiture of all pay and allowances,
confinement for one year, and reduction to E1. The military judge credited appellant
with twenty-eight days against the sentence to confinement.

      In his post-trial recommendation to the convening authority (SJAR), the staff
judge advocate (SJA) recommended disapproval of Specification 2 of Charge II,
LEBALLISTER—ARMY 20100618

which alleged wrongful distribution of Tylenol 3 with codeine. 1 The SJAR was
served on appellant’s trial defense counsel 156 days after the sentence was imposed.
Four days later, appellant submitted post-trial matters to the convening authority,
see Rules for Courts-Martial [hereinafter R.C.M.] 1105, 1106, and requested
clemency due to both dilatory post-trial processing as well as the recommended
dismissal of Specification 2 of Charge II. In consideration of this request, the SJA
supplemented the SJAR with an addendum, recommending that the convening
authority “grant one month of clemency for legal errors raised by the Defense.”
Thereafter, the convening authority disapproved the finding of guilt to Specification
2 of Charge II and approved the remaining findings. As to the sentence, the
convening authority only approved eleven months of the adjudged, one-year
sentence to confinement, but otherwise approved the remainder of the sentence.

       We hold that the SJA failed to properly advise the convening authority of his
sentence reassessment responsibilities in light of the disapproved finding of guilt. If
a convening authority disapproves a finding to cure a legal error, then his action on
the sentence “must be guided by the same [sentence reassessment] rules applicable
to appellate authorities.” United States v. Reed, 33 M.J. 98, 99 (C.M.A. 1991). As a
consequence, the SJA is required to provide proper legal guidance to the convening
authority about sentence reassessment. Id. at 99–100. See generally United States
v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Carroll, 45 M.J. 604, 608
(Army Ct. Crim. App. 1997). In the SJAR, the SJA recommended disapproval of a
finding, and in the SJAR addendum, the SJA recommended one month of “clemency
for legal errors.” However, the SJA did not advise the convening authority about his
obligation to consider sentence reassessment, nor did the SJA indicate which error
merited the recommended sentence relief. 2 “[W]here a [SJA] recommends certain
1
  The SJA did not state the underlying reasons for his recommendation to dismiss
Specification 2 of Charge II. In appellant’s brief to this court, appellant argues that
this specification does not state an offense because the Tylenol 3 he distributed
contained less than 90 milligrams of codeine per dosage unit, see 21 C.F.R. §
1308.13(e)(1) (2010), the implication being that the staff judge advocate’s
recommendation was based on this rationale. However, appellant’s factual
assertions about the dosages he distributed are not contained within the record of
trial. In addition, we note that the staff judge advocate’s pretrial advice to the
convening authority concludes that each specification, to include Specification 2 of
Charge II, alleges an offense under the UCMJ.
2
  We agree that assertion of excessive post-trial delay sounding in due process under
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), for example, constitutes
assertion of a legal error requiring response by the SJA under R.C.M. 1106(d)(4). In
light of Moreno, and under the circumstances of this particular assertion of post-trial
delay, United States v. Hutchison, 56 M.J. 756 (Army Ct. Crim. App. 2002), is
inapposite.



                                           2
LEBALLISTER—ARMY 20100618

curative action on the sentence, it is imperative that he make clear to the convening
authority the distinction between, on the one hand, curing any effect that the error
may have had on the sentencing authority and, on the other, determining anew the
appropriateness of the adjudged sentence.” Reed, 33 M.J. at 100. As a result, we
find the SJA’s advice to the convening authority was erroneous. Further, under the
facts of this case, we hold that this error was prejudicial. After receiving incomplete
advice, the convening authority disapproved one finding of guilt and reduced
appellant’s sentence to confinement by one month. However, there is no indication
that this sentence relief is for reasons of sentence reassessment or for reasons of
clemency. Accordingly, we are unable to conclude that a properly prepared SJAR
“would have [had] no effect on the convening authority’s action.” Id. (quoting
United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988)).

       Accordingly, the convening authority’s initial action, dated 16 December
2010, is set aside. The record of trial is returned to The Judge Advocate General for
a new staff judge advocate recommendation and a new initial action by the same or a
different convening authority in accordance with Article 60(c)-(e), UCMJ.

      Senior Judge JOHNSON and Judge KRAUSS concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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