              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JONATHAN A. LOPEZ
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201400289
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 15 April 2014.
Military Judge: Col J.K. Carberry, USMC.
Convening Authority: Commanding General, III Marine
Expeditionary Force, Okinawa Japan.
Staff Judge Advocate's Recommendation: Col J.R. Woodworth,
USMC; SJAR Addendum: Col K.J. Estes, USMC.
For Appellant: Mr. Philip D. Cave, Civilian Counsel; Mr.
Samuel C. Moore, Civilian Counsel; Maj John Stephens, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt Cory
A. Carver, USMC.

                             30 April 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of assault consummated by a battery in violation
of Article 128, Uniform Code of Military Justice. A panel of
members with enlisted representation, sitting as a general
court-martial, convicted the appellant, contrary to his pleas,
of one specification of rape in violation of Article 120, UCMJ,
and a second specification of assault consummated by a battery
in violation of Article 128, UCMJ. The members sentenced the
appellant to seven years’ confinement, reduction to pay grade
E-1, total forfeiture of pay and allowances, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the punitive discharge, ordered the
sentence executed.

     The appellant now raises three assignments of error: (1)
that the military judge abused his discretion and committed
constitutional error by excluding constitutionally-required
evidence under MILITARY RULE OF EVIDENCE 412; (2) that the evidence
is legally and factually insufficient to convict the appellant;
and, (3) that he received ineffective assistance from his trial
defense counsel.

     Although not raised by the appellant, we find error in the
staff judge advocate’s recommendation (SJAR). The staff judge
advocate (SJA) advised the CA that the latter was not authorized
“to disapprove, commute or suspend the dishonorable discharge or
the period of confinement.” 1 This erroneous statement of the law
was not corrected in the addendum to the SJAR or addressed in
the CA’s Action. Because we find it necessary to remand for a
new SJAR and CA's Action, we defer our resolution of the
appellant’s assignments of error.

                                   Background

     The offenses charged allegedly occurred in 2011 and 2012.
The appellant was sentenced on 14 April 2014. Subsequent to the
SJAR but prior to the CA approving the sentence, the appellant
submitted extensive clemency materials, asking, through counsel,
that the CA reduce his confinement from seven years to two. 2 In
the meantime, the National Defense Authorization Act for Fiscal
Year 2014 3 (FY14 NDAA) substantially changed the authority of
CA’s to take action on certain sentences under Article 60, UCMJ.
Specifically regarding offenses under Article 120(a), UCMJ, the
CA “may not disapprove, commute, or suspend in whole or in part
an adjudged sentence of confinement for more than six months or
a sentence of dismissal, dishonorable discharge, or bad conduct

1
    Staff Judge Advocate’s Recommendation of 3 Jul 2014 at 2.
2
    Request for Clemency of 15 Jul 14 at 1.
3
    Pub. L. No. 113-66, 127 Stat. 672 (2013).


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discharge.” 4 The President signed the FY14 NDAA on 26 December
2013; the language quoted above became effective 180 days later.
This amendment to Article 60, UCMJ applies only “with respect to
offenses committed under [the UCMJ] on or after that effective
date.” 5

                             Error in SJAR

      “Failure of counsel for the accused to comment on any
matter in the recommendation . . . in a timely manner shall
waive later claim of error with regard to such matter in the
absence of plain error.”       RULE FOR COURTS-MARTIAL 1106(f)(6), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.); United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000). Where there is error in this
processing and “some colorable showing of possible prejudice”
thereby, this court must either provide meaningful relief or
remand for new post-trial processing. United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998) (citation omitted).


1. Plain Error. “‘Plain error’ has been described variously as
error that is ‘both obvious and substantial,’ that is
‘particularly egregious,’ that ‘seriously [affects] the
fairness, integrity or public reputation of judicial
proceedings,’ or that ‘requires appellate intervention to
prevent a miscarriage of justice, protect the reputation and
integrity of the court, or to protect a fundamental right of the
accused.’” United States v. Lowry, 33 M.J. 1035, 1037-38
(N.M.C.M.R. 1991) (additional citations omitted). Factors to
consider in determining whether an error is plain error include:
“(1) whether the error is an omission or an affirmative
misstatement; (2) whether the matter is material and
substantial; and (3) whether there is a reasonable likelihood
that the convening authority was misled by the error.” Id. at
1038.

     The language the SJA used in his recommendation indicates a
belief that the CA’s authority to modify the sentence or grant
clemency in this case was constrained by the FY14 NDAA. By the
statute’s plain language, however, these new limitations did not
apply to the offenses of which the appellant was convicted, as
they occurred prior to the statute’s effective date. The CA’s
“broad authority” to disapprove, commute or suspend any or all
of the appellant’s adjudged sentence was, in fact, unfettered by
4
    Id. at 956.
5
    Id. at 958.
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the FY14 NDAA. See United States v. Finster, 51 M.J. 185, 186
(C.A.A.F. 1999) (describing the CA’s complete discretion to
modify the findings or sentence for any, or no, reason, so long
as there is no increase in severity).

     We find the SJA’s advice was an affirmative misstatement of
the law that effectively precluded the appellant’s opportunity
to receive clemency. See United States v. Davis, 58 M.J. 100,
102 (C.A.A.F. 2003) (describing the CA as an accused’s best hope
for clemency). As such, the error was material and substantial.
Given the extent to which CAs must rely on their SJAs to
correctly explain post-trial processing – particularly in light
of the recent significant changes to Article 60, UCMJ - we have
no doubt the error misled the CA. There is nothing in the
matters considered by the CA in taking his action that would
have contradicted or corrected the SJA’s erroneous advice. We
therefore conclude the SJA’s advice constituted plain error, and
the issue was not waived by the appellant’s counsel’s failure to
comment on the error prior to the CA’s action.

2. Prejudice. As this issue was not raised as an assignment of
error, the appellant has made no showing of possible prejudice.
If this was simply a matter of how the CA exercised the “highly
discretionary Executive function” that is clemency, Wheelus, 49
M.J. at 289, we would see no need for relief or remand.
However, the case before us presents a different issue. Here,
the SJA erroneously advised the CA that he was barred from even
considering clemency actions as to confinement or discharge.
There being no indication that the CA ignored his SJA’s
incorrect advice, we find the apparent denial of consideration
itself to be a sufficient showing of possible prejudice.
Accordingly, we must either grant meaningful relief or remand.

                           Conclusion

     The CA’s Action is set aside. The record of trial is
returned to the Judge Advocate General for remand to an
appropriate CA for new post-trial processing. The record shall
then be returned to this court for review under Article 66(c),
UCMJ.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court

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