            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                              _________________________

                                  No. 201600236
                              _________________________

                     UNITED STATES OF AMERICA
                                       Appellee
                                            v.

                             EDDIE C. CARTHAN
                           Lieutenant (O-3), U.S. Navy
                                    Appellant
                             _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Commander Robert P. Monahan, Jr., JAGC, USN.
    Convening Authority: Commanding General, Marine Corps
   Warfighting Laboratory, Marine Corps Combat Development
           Command, Marine Corps Base, Quantico, VA.
 Staff Judge Advocate’s Recommendation : Colonel Ian D. Brasure,
       USMC; Addendum: Colonel Scott M. Marconda, USMC.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN .
 For Appellee: Captain Jacob R. Walker, JAGC, USN; Lieutenant
                   Jetti L. Gibson, JAGC, USN.
                     _________________________

                             Decided 29 August 2017
                             _________________________

Before GLASER-ALLEN, M ARKS , and R UGH , 1 Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                      _________________________

   GLASER-ALLEN, Chief Judge:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of abusive sexual

   1   Judge Rugh took final action in this case prior to detaching from the court.
                     United States v. Carthan, No. 201600236


contact, three specifications of assault consummated by a battery, and one
specification of conduct unbecoming an officer and gentleman, in violation of
Articles 120, 128, and 133, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 920, 928, and 933 (2012). The military judge sentenced the
appellant to one year confinement, forfeiture of all pay and allowances, and a
dismissal. The convening authority (CA) approved the sentence as adjudged
and, except for the dismissal, ordered the sentence executed.
    The appellant raises a single assignment of error (AOE): the staff judge
advocate erroneously advised the CA that Article 56, UCMJ, restricted his
ability to grant clemency. After careful consideration of the record of trial, the
appellant’s assignment of error, and the pleadings of the parties, we find
merit in the appellant’s AOE and direct corrective action in our decretal
paragraph.
                                I. BACKGROUND
    The appellant’s offenses occurred between 1 January 2014 and 1
November 2014. He pleaded guilty and was convicted of an Article 120
offense—abusive sexual contact. The staff judge advocate’s recommendation
(SJAR) advised the CA that the appellant’s offenses were subject to a
mandatory minimum sentence under Article 56, UCMJ, and he could not
take action on findings pursuant to Article 60, UCMJ.
                                II. DISCUSSION
A. Applicability of Article 56, UCMJ, and mandatory minimums
    We are presented with two separate, but significant, SJAR errors. The
first is the misapplication of Article 56, UCMJ, regarding mandatory
minimum sentences and the second is a misunderstanding of the CA’s Article
60, UCMJ, authority on findings in a straddling offenses case.
    “Where there is error in post-trial 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. Roller, 75 M.J. 659,
661 (N-M. Ct. Crim. App. 2016) (quoting United States v. Wheelus, 49 M.J.
283, 289 (C.A.A.F. 1998)) (additional citation omitted).
   The SJAR advised the CA:
       Straddling Offenses Case. The accused was found guilty of
       offenses occurring both before and on or after 24 June 2014.
       Accordingly, you may take whatever action you deem
       appropriate on the guilty findings and/or on the sentence,
       except that if you approve a finding of guilty for Article 120 and




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                        United States v. Carthan, No. 201600236


         120c, which have mandatory minimum sentences under Article
         56(b), UCMJ, those minimum sentences will still apply.2
         Mandatory Minimum Sentence. The accused was found
         guilty of an offense with a mandatory minimum sentence under
         Article 56(b), UCMJ. Therefore, you may not act to disapprove,
         commute, or suspend that portion of the adjudged sentence.3
   These paragraphs are misstatements of the law. The appellant pleaded to
and was convicted of abusive sexual contact—an offense under Article 120(d),
UCMJ. Abusive sexual contact is not one of the enumerated offenses
requiring a mandatory minimum sentence including dismissal; therefore the
CA had unfettered authority to take any action he deemed appropriate on the
sentence in this case.4
B. Article 60, UCMJ, error
    Despite the fact the appellant was convicted of offenses which occurred
both prior to and after the 24 June 2014 FY14 National Defense
Authorization Act (NDAA) effective date, the SJAR incorrectly advised the
CA that “the offense will be approved by operation of law upon your action on
the sentence.”5 This statement implies the CA was limited to taking action on
the sentence only. Under the law, however, the CA had unfettered authority




   2   SJAR of 3 Jun 2016 at 6, ¶ 12 (emphasis added).
   3   Id. at 7, ¶ 14 (emphasis added).
   4  Congress amended Article 56, UCMJ, 10 U.S.C. § 856 in 2013 to read, in part,
that while a person subject to the UCMJ who is found guilty of certain sexual
offenses shall be punished as a general court-martial may direct, such punishment
must include, at a minimum, dismissal or a dishonorable discharge, except as
provided for in Article 60, UCMJ. These sexual offenses include:
             (A) An offense in violation of subsection (a) or (b) of section 920 of
         this title (Article 120(a) or (b)) [10 U.S.C. § 920(a) or (b)].
             (B) Rape and sexual assault of a child under subsection (a) or (b)
         of section 920b of this title (Article 120b) [10 U.S.C. § 920b].
             (C) Forcible sodomy under section 925 of this title (Article 125)
         [10 U.S.C. § 925].
             (D) An attempt to commit an offense specified in subparagraph
         (A), (B), or (C) that is punishable under section 880 of this title
         (Article 80) [10 U.S.C. §880].
   5   SJAR at 7, ¶ 13(b) (emphasis added).


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                     United States v. Carthan, No. 201600236


to take action on both findings and sentence because the case contained
straddling offenses.6
   The CA took his action on 6 July 2016 and did not grant the appellant’s
requested clemency or otherwise modify the findings or sentence. The
erroneous statements of the law in the SJAR were not challenged by the
appellant, corrected in the SJAR addendum, or addressed in the CA’s action.
    Here, the SJAR contained affirmative misstatements of the law that
Article 56, UCMJ, mandatory minimum sentences applied in this case.
Roller, 75 M.J. at 661. It also incorrectly advised the CA that Article 60,
UCMJ, prevented action on the findings. United States v. Levrie, No.
201500375, 2016 CCA LEXIS 401, at *3-4, unpublished op. (N-M. Ct. Crim.
App. 12 Jul 2016) (per curiam). The CA was left with uncorrected
misstatements of his post-trial authority before taking action, resulting in a
colorable showing of possible prejudice best remedied by remand for new
post-trial processing.7
                                III. 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.
   Senior Judge MARKS and Judge RUGH concur.
                                    For the Court



                                    R.H. TROIDL
                                    Clerk of Court


   6 The changes to Article 60, UCMJ, became effective on 24 June 2014. The FY15
NDAA provided clarification for courts-martial such as this one, which involve
offenses occurring before and after that effective date:
           With respect to the findings and sentence of a court-martial that
       includes both a conviction for an offense committed before [24 June
       2014] and a conviction for an offense committed on or after that
       effective date, the convening authority shall have the same authority
       to take action on such findings and sentence as was in effect on the
       day before such effective date[.]
   Pub. L. No. 113-291; 128 Stat. 3292, 3365 (2014).
   7  The SJAR also incorrectly provided that the appellant did not make a request
for deferment of confinement. Similarly, the court martial order contained errors
regarding conditional dismissal of some language in the offenses.


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