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

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         JOHN C. AVERELL
              CHIEF HOSPITAL CORPSMAN (E-7), U.S. NAVY

                           NMCCA 201300471
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 29 July 2013.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Staff Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT Jennifer L. Myers, JAGC, USN.
For Appellee: Capt Matthew M. Harris, USMC; LT Ann Dingle,
JAGC, USN.

                            6 November 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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

HOLIFIELD, Judge:

     At his general court-martial, the appellant entered mixed
pleas. Consistent with his pleas, he was convicted of violating
a lawful general order (fraternization) and adultery, in
violation of Articles 92 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 934. Contrary to his pleas, he
was convicted by a panel of officer and enlisted members of
sexual assault by placing the victim in fear, in violation of
Article 120, UCMJ, 10 U.S.C. § 920. The appellant was acquitted
of engaging in sexual harassment in violation of a lawful
general order. The members sentenced the appellant to 90 days’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged. There was no pretrial agreement.
     The appellant raises seven assignments of error: First,
that the officer who convened the court and referred the charges
to it was without jurisdiction to do so; second, that the
evidence of sexual assault was legally and factually
insufficient; third, that the military judge’s exclusion of
evidence regarding the victim’s simultaneous romantic
relationships with two other Sailors denied the appellant his
right to confrontation under the Sixth Amendment; fourth, that
the record of trial is neither complete nor verbatim; fifth,
that the military judge improperly excluded evidence that the
appellant had previously treated the victim for a sexually
transmitted disease (STD); sixth, that the military judge’s
exclusion of evidence regarding the victim’s purported interest
in having sex with a “yet undetermined person” shortly before
the sexual assault denied the appellant his right to
confrontation under the Sixth Amendment; and, seventh, that
comments of senior Navy and Department of Defense personnel
constituted unlawful command influence.1
     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
                                 Background

     The appellant was an independent duty corpsman and duty
section leader onboard a barge attached to the USS GERMANTOWN
(LSD 42). The top ranked chief petty officer on the ship, he
was a mentor to numerous Sailors, including Quartermaster Seaman
(QMSN) IA. QMSN IA was, by her own description, a “troubled
Sailor.” Loud, impulsive, and a marginal performer, she had
received numerous counseling sessions and had been called before
the ship’s Disciplinary Review Board more than once. On most,
if not all, of these occasions, the appellant acted as QMSN IA’s
protector, successfully helping her avoid punishment.



1
  The sixth and seventh assignments of error are raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
                                      2
     On 20 October 2012, while attending an event off the ship,
the appellant received a call that QMSN IA had fallen down a
ladder and was refusing to be examined by anyone other than the
appellant. QMSN IA had attended a shipmate’s birthday party
that day and testified that she had become intoxicated.2 Before
he could return to the barge, he received a second call to
report that QMSN IA had allegedly kicked and unmade another
Sailor’s rack in berthing. When the appellant arrived at the
barge, he learned that QMSN IA had been loud, profane, and
disrespectful when she returned to the barge earlier that
evening.
     Finding QMSN IA in the medical office, the appellant
conducted a medical exam and detected no injuries. (Between the
time the appellant received the first phone call and his arrival
back at the barge, QMSN IA had fallen down a second ladder.)
During the examination, QMSN SA continually voiced her concern
that she was in trouble, but never articulated the basis for
this fear. The appellant assured her several times that she was
not in trouble.
     Ostensibly concerned about QMSN IA’s health, the appellant
informed the medical officer that he would keep an eye on her.
The appellant then took QMSN IA to the Chiefs’ Mess. Once
there, the appellant spoke with another chief, the only other
person in the space, and stated that he wanted to speak with
QMSN IA alone in the hope she would open up and discuss the
incident in berthing. While the appellant and the other chief
were talking, QMSN IA sent a text message to Fire Controlman
Second Class (FC2) L, saying “OK, in chiefs mast [sic]. Help
me.”3 She then left the Chiefs’ Mess without the appellant’s
knowledge.
     The appellant then went to female berthing to investigate
the rack incident. Once there, he observed QMSN IA and the
aggrieved rack-owner engage in a heated argument over the
earlier incident in berthing. The appellant told QMSN IA to
step out of the berthing spaces. He reassured her that she
would not be in trouble over such minor allegations.
     At this point, the description of events provided by the
appellant and QMSN IA significantly diverge. The appellant
testified at trial that QMSN IA followed him unbidden to the
dental office. He claimed that, once there, QMSN IA kissed him

2
    Record at 808.
3
    Prosecution Exhibit 1.


                                3
and removed her clothes—all to his great surprise. He testified
that they then engaged in consensual sex for a brief time before
he stopped the activity. QMSN IA, however, testified that the
appellant took her to the dental office, told her she was “in
trouble” and she knew “what [she] needed to do.”4 She then
acquiesced to having sex, fearing her heretofore protector and
mentor would not save her from disciplinary action this time.
She further testified that she feared what the appellant might
do in retaliation if she refused his request for sex, as no one
would take her word over his.
     Within minutes of leaving the dental office, QMSN IA
reported the incident to shipmates, who alerted the chain of
command. The ensuing investigation revealed physical evidence
that tended to support QMSN IA’s version of events over the
appellant’s, including the presence of semen on the victim
despite the appellant’s testimony that he wore a condom and did
not ejaculate.
     Other facts necessary to address the assigned errors will
be provided below.
                        Authority to Convene or Refer

     Jurisdiction “‘is a legal question which we review de
novo.’”5 For a court-martial to have jurisdiction, it “must be
convened by an official empowered to convene it.”6 Article 22,
UCMJ, lists those persons so empowered, including “any other
commanding officer designated by the Secretary concerned.” The
Manual of the Judge Advocate General designates as officers
empowered to convene general courts-martial “[a]ll flag or
general officers, or their immediate temporary successors, in
command of units or activities of the Navy or Marine Corps.”
(Emphasis added). 7


4
    Record at 831.
5
  United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) (quoting United
States v. Henderson, 59 M.J. 350, 352 (C.A.A.F. 2004)).
6
  RULE FOR COURTS-MARTIAL 201(b)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.).
7
  Judge Advocate General Instruction 5800.7F § 0120(a)(1) (26 June 2012)
(JAGMAN). The JAGMAN is approved under the authority of the Secretary of the
Navy and contains regulations for the Department of the Navy authorized by 5
U.S.C. § 301 (Authority to Issue Departmental Regulations), the UCMJ, and the
Manual for Courts-Martial.


                                           4
     Article 1026, U.S. Navy Regulations (1990) states that
“[a]n officer who succeeds to command . . . has the same
authority and responsibility as the officer whom he or she
succeeds.” Additionally, when such officers sign official
correspondence, “the word ‘Acting’ shall appear below his or her
signature.”

     Here the charges were referred for trial by general court-
martial by “T. C. Faller” on 4 April 2013. The same person
signed the General Court-Martial Amending Order on 19 July 2013.
On both documents, the word “Acting” follows the signature.

     As the appellant did not raise this issue at trial, the
only evidence before us regarding the status of T.C. Faller on
these dates is the sworn affidavit of the Deputy Force Judge
Advocate (DFJA) for Commander, U.S. Naval Forces Japan (CNFJ).8
In her affidavit, the DFJA explains that the Commander was
absent from the CNFJ area of responsibility on 4 April and 19
July 2013 (on temporary additional duty and leave,
respectively); and, that the CNFJ Chief of Staff, Captain T. C.
Faller, succeeded to command on both occasions. The appellant
offers no evidence to the contrary, and there is nothing on the
face of either the amending order or the charge sheet that
indicates an irregularity or defect.9 We, therefore, find
Captain Faller was empowered to refer the charges for trial by
court-martial and to sign the General Court-Martial Amending
Order.

                        Legal and Factual Sufficiency

     We review questions of legal and factual sufficiency de
novo.10 The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offenses, viewing the evidence
in a light most favorable to the Government.11 The test for
factual sufficiency is whether we are convinced of the
appellant's guilt beyond a reasonable doubt, allowing for the


8
     Appellee’s Consent Motion to Attach, granted 22 Aug 2014.
9
  See United States v. Leahy, 20 M.J. 564, 565-66 (N.M.C.M.R. 1985) (court
presumed regularity in the absence of any defect or irregularity on the face
of amending order).
10
     United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

11
     United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987).


                                         5
fact that we did not personally observe the witnesses.12                     Here,
we find in the affirmative on both tests.
     The appellant was charged with “penetrating the vagina of
I.A. with his penis, by placing her in fear of abuse of military
position.” Article 120(g)(7), UCMJ, defines “threatening or
placing that other person in fear” as “a communication or action
that is of sufficient consequence to cause a reasonable fear
that non-compliance will result in the victim or another person
being subjected to the wrongful action contemplated by the
communication or action.”13
     There is no claim that QMSN IA did not genuinely,
subjectively fear repercussions had she declined the appellant’s
request. Rather, the appellant claims the evidence on this
Charge is legally and factually insufficient in that QMSN IA’s
fear was not objectively reasonable.14
     To address the appellant’s claim, we look at whether a
reasonable person would have been in fear of being subjected to
the appellant’s implied actions. QMSN IA testified that, once
in the dental office, the appellant’s demeanor became “serious”
and “aggressive”; he had never acted that way with her before.15
The appellant, a respected chief and trusted mentor who had
previously always acted to protect her, told QMSN IA that she
was in trouble, and that she knew “what [she] needed to do.”16
An objective review of these statements and circumstances would
lead a reasonable person to understand the meaning of these
statements – that his protection would now come at a price - and
to fear that refusal would bring negative consequences.


12
     Id. at 325.
13
     See also MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 45(g)(7).
14
  In support of this, the appellant points to QMSN IA’s statements that her
“fear was not reasonable at all,” and that she “should not have believed [the
appellant]”. Record at 891, 974. That QMSN IA now, in sober hindsight,
believes that she had other options available to her (such as leaving the
dental office when she felt threatened), and that she likely would not have
been “in trouble” for her actions earlier that night, does not change the
facts of what happened in the dental office. While her intoxication may have
negatively affected her decision making in response to the fear, it does not
change the objective reasonableness of that fear. Regardless, whether the
fear was objectionably reasonable was a question for the members (and is now
for this court) to decide, not QMSN IA.
15
     Id. at 830-31.
16
     Id. at 831.
                                            6
     Accordingly, after carefully reviewing the record of trial
and considering the evidence in the light most favorable to the
Government, we are convinced that a reasonable trier of fact
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record and having made allowances for not having personally
observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.
                              Exclusion of Evidence
      We combine our analysis of the appellant’s third, fifth and
sixth assignments of error, as they all challenge the military
judge’s decisions to exclude evidence under MILITARY RULE OF
EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). We
review the military judge’s ruling on whether to exclude
evidence pursuant to MIL. R. EVID. 412 for an abuse of
discretion.17 We review the findings of fact under a clearly
erroneous standard and the conclusions of law de novo.18 The
abuse of discretion standard “recognizes that a judge has a
range of choices and will not be reversed so long as the
decision remains within that range.”19

      Under MIL. R. EVID. 412, evidence offered by the accused to
show that the alleged victim engaged in other sexual behavior is
inadmissible, with three limited exceptions.20 The third
exception states that the evidence is admissible if “the
exclusion of [it] would violate the constitutional rights of the
accused.”21 If there is a theory of admissibility under one of
the exceptions, the military judge, before admitting the
evidence, must conduct a balancing test as outlined in MIL. R.
EVID. 412(c)(3) and clarified by United States v. Gaddis, 70 M.J.
248, 250 (C.A.A.F. 2011).

     The test is whether the evidence is “relevant, material,
and [if] the probative value of the evidence outweighs the



17
     United States v. Roberts, 69 M.J. 23, 26 (C.A.A.F. 2010).
18
     Id.
19
  United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (internal
quotation marks and citations omitted).
20
     MIL. R. EVID. 412(b)(1)(A-C).
21
     MIL. R. EVID. 412(b)(1)(C).


                                         7
dangers of unfair prejudice.”22 Relevant evidence is any
evidence that has “any tendency to make the existence of any
fact . . . more probable or less probable than it would be
without the evidence.”23 Evidence is material if it is “of
consequence to the determination of appellant’s guilt[.]”24

           In determining whether evidence is of consequence to
           the determination of Appellant’s guilt, we consider
           the importance of the issue for which the evidence was
           offered in relation to the other issues in this case;
           the extent to which this issue is in dispute; and the
           nature of the other evidence in the case pertaining to
           the issue.25

     If evidence is relevant and material, it must be admitted
where its probative value outweighs the dangers of unfair
prejudice.26 Those dangers include “‘harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’”27 If the
evidence survives the inquiry, a final consideration is whether
the “evidence in the record support[s] [the] inference” on which
the moving party is relying.28

     Among the constitutional rights that may support the
admission of evidence under MIL. R. EVID. 412’s third exception is
the Sixth Amendment right to confrontation.29 This right
includes the ability to cross-examine and to impeach or
discredit a witness.30 This cross-examination, however, need not
22
  United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citation
omitted).
23
     MIL. R. EVID. 401.
24
  United States v. Dorsey, 16 M.J. 1, 6 (C.M.A. 1983) (citations and internal
quotation marks omitted).
25
  United States v. Smith, 68 M.J. 445, 448 (C.A.A.F. 2010) (citation and
internal quotation marks omitted).

26
     See MIL. R. EVID. 412(c)(3).
27
  Ellerbrock, 70 M.J. at 319 (quoting Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986)).
28
     Id.
29
     Id. at 318.
30
     Id.


                                      8
be “‘in whatever way, and to whatever extent, the defense might
wish[,]’”31 and the military judge may limit the scope of such
cross-examination when its relevance is outweighed by concerns
of harassment, prejudice, or confusion of the issues.32

     a. QMSN IA was motivated to fabricate her allegations in
order to protect her romantic relationship with FC2 L. The
appellant alleges that he “should have been permitted to elicit
from QMSN IA that she had an ongoing romantic relationship with
FC2 [L] that was important to her, and that could have been
damaged by engaging in consensual sex with” the appellant.33 In
support of that argument the appellant cites to United States
Supreme Court case of Olden v. Kentucky, 488 U.S. 227 (1988). 34
     The alleged victim in Olden claimed that she was sexually
assaulted by the accused and then dropped off in front of a home
owned by a man named Russell. Although both the alleged victim
and Russell were married and living with other people, they were
involved in an extramarital affair at the time, and later moved
in with one another.35 The accused’s theory was that the alleged
victim made up the rape charges to “protect her relationship
with Russell, who would have grown suspicious upon seeing her
disembark from [the] car. . . . Over [Olden's] vehement
objections, the trial court nonetheless granted the prosecutor's
motion in limine to keep all evidence of [the alleged victim’s]
and Russell's living arrangement from the jury.”36 The court
found that this ruling violated Olden’s Sixth Amendment right to
confrontation.37
     In the present case, the appellant’s trial defense counsel
did not articulate their theory of admissibility with any great
clarity, and the military judge never squarely ruled on whether

31
     Id. (quoting Van Arsdell, 475 U.S. at 679) (additional citation omitted).
32
     Id. at 319 (citing Van Arsdell, 475 U.S. at 679).
33
     Appellant’s Brief of 13 May 2014 at 42.
34
  Although Olden did not involve application of Kentucky’s Rape Shield law,
our superior court has nonetheless applied Olden to cases involving the
exclusion of evidence pursuant to MIL. R. EVID. 412. See United States v.
Williams, 37 M.J. 352, 354 (C.M.A. 1993).
35
     Olden, 488 U.S. at 229-30.
36
     Id. at 230.
37
     Id. at 233.


                                         9
the defense could elicit evidence to show that QMSN IA’s
relationship with FC2 L created a potential motive for her to
fabricate the rape allegation. It appears defense counsel
interpreted the military judge’s rulings to preclude this, as
they did not address the matter in their cross-examination of
QMSN IA. However, we need not decide on this limited record
whether Olden is applicable. Assuming, without deciding, that
the military judge abused his discretion, we conclude that any
such error was harmless beyond a reasonable doubt.
     The appellant’s inference that QMSN IA had a motive to
fabricate an assault allegation in order to cover for consensual
sex with the appellant is simply unsupported, if not outright
contradicted, by the evidence in the record. There was no
evidence whatsoever to indicate QMSN IA felt compelled to lie in
order to preserve her relationship with FC2 L. The appellant
offered nothing to show FC2 L was a jealous man; rather, QMSN IA
testified that FC2 L was aware that she was also dating another
Sailor at the time of the assault. Neither was there evidence
that FC2 L was suspicious of QMSN IA’s time with the appellant
on the night in question. To the contrary, her communications
with FC2 L earlier that evening involved a text message
indicating she was afraid of the appellant, not that there was a
possibility of a consensual sexual encounter she would later
need to conceal. Finally, there was no evidence FC2 L observed
QMSN IA in a compromising situation that may have required a
fabricated explanation. FC2 L was not on the barge; he only
learned of the sexual activity when QMSN IA reported the assault
to him and another friend within minutes of it occurring.
     Had evidence of the relationship been before the members,
there is no reasonable possibility it would have affected the
verdict. Accordingly, we find this assignment of error does not
warrant relief.
     b. The appellant had previously treated QMSN IA for an STD.
The appellant claims this evidence was constitutionally required
to impeach QMSN IA’s testimony that the appellant had made her
uncomfortable by discussing sexual topics with her. We
disagree. The military judge did not preclude mention of the
medical treatment or related discussions; his ruling was only
that “the letters S-T-D” not be mentioned.38 When the military
judge ruled that “it is enough to say [the discussion of sexual
matters] was . . . connected with medical care,” defense counsel


38
     Record at 1521.


                               10
replied, “I’m fine with that.”39 Furthermore, when the members
subsequently questioned the appellant regarding gynecological
care he provided to QMSN IA, the military judge admitted
evidence that the appellant “would have participated with her in
a degree of commentary . . . about proper care as it relates to
one’s private life[.]”40 That the treatment may have involved an
STD is of no additional probative value, and would only have
served to unfairly harass QMSN IA or prejudice the jury against
her.41
     c. QMSN IA had shown interest in having sex with a “yet
undetermined person” shortly before the sexual assault. Prior to
trial, the defense provided notice of its intent to offer
testimony of a Sailor to show that, at a party earlier on the
day in question, QMSN IA had “flashed” her breasts and indicated
a general willingness to engage in a sexual encounter. The
appellant was not aware of this conduct at the time of the
sexual assault. This purported evidence of QMSN IA’s “sexual
predisposition” is precisely the type of propensity evidence
barred by MIL. R. EVID. 412, and the military judge did not abuse
his discretion in precluding its admission.
                              Record Completeness

      The appellant next claims that the record is not a verbatim
transcript of the proceedings, in that the military judge failed
to adequately summarize a RULE FOR COURTS-MARTIAL 802, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.) conference. The
completeness of a record of a trial is reviewed de novo.42
     The Court of Appeals for the Armed Forces and its
predecessor have long held that Article 54 requires only that
transcripts be “substantially verbatim.”43 Furthermore,
“[i]nsubstantial omissions from a record of trial do not raise a
presumption of prejudice or affect that record’s
characterization as a complete one.”44 “If the record is
39
  Id. While this affirmative agreement by counsel likely constitutes waiver
of the issue, we assume for the purpose of this analysis that it does not.
40
     Id. at 1524 (ellipses in original).
41
  See Smith, 68 M.J. 448-49 (holding specific details of alleged victim’s
sexual past were not necessary to support a claim of fabrication when general
language would suffice).
42
     United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).
43
     United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982).
44
     Henry, 53 M.J. at 111.
                                           11
sufficiently complete to permit reviewing agencies to determine
with reasonable certainty the substance and sense of the
question, answer or argument, then prejudice is not present.”45
     While conferences conducted pursuant to            R.C.M. 802 need not
be recorded, any matters agreed upon at such            conferences must be
included in the record.46 Failure of a party            to object at trial
to a failure to comply with this requirement            waives the matter.47
     Here, when the issue of whether the appellant had treated
QMSN IA for an STD first arose, the military judge placed the
court in recess and directed counsel to meet in his chambers.
Before doing so, he stated his concern that evidence of
“treatment along the lines [of] something of an intimate nature”
goes directly to the allegation of sexual harassment.48 Once
back on the record, the military judge summarized the R.C.M. 802
conference as follows:
             I had a chat with counsel in chambers relative to
        a matter that just came up during direct examination
        during which it was illustrated to the court that, at
        least, some of the previously alleged commentary heard
        by the government in support of Charge I,
        Specification 1, might well have a nexus with actual
        treatment. A matter in which the court had not been
        previously advised of which the government knew or
        should have known took place.49
When asked if they agreed with his summary, both trial counsel
and defense counsel answered in the affirmative. Trial counsel
then moved to withdraw from Charge I, Specification 1, the
language “asking her inappropriate sexual questions and.”
     The appellant asserts that the military judge’s decision to
exclude any mention of whether QMSN IA had an STD was a direct
result of this R.C.M. 802 session. We disagree. There is no
indication that any rulings were made during that off-the-record
conference. There is, however, a later discussion of the STD


45
     United States v. Nelson, 13 C.M.R. 38, 42 (C.M.A. 1953).
46
     R.C.M. 1103(b)(2)(B), Discussion; R.C.M. 802(b).
47
     R.C.M. 802(b).
48
     Record at 1408.
49
     Id. at 1409.


                                        12
issue on the record at the point the military judge made his
ruling.50 Thus, we are not left to wonder at the military
judge’s ruling or its accompanying rationale. Assuming,
arguendo, that the issue was not waived by defense counsel’s
affirmative concurrence51 with the military judge’s summary, we
still find this assignment of error to be without merit.
                          Unlawful Command Influence

     The appellant’s final assignment of error is that the
judge’s remedy of five52 additional peremptory challenges failed
to cure the appearance of UCI created by comments of senior
civilian and military leaders. Based upon a thorough review of
the extensive voir dire in this case, notable for the military
judge’s liberal granting of challenges for cause, we find that
the military judge’s remedy was sufficient, and that this
assignment of error is without merit.53
                             Error in CA’s Action

     The CA’s action erroneously reflects that the adjudged
sentence included total forfeitures, and that the appellant was
entitled to “zero (5) days” judicially-ordered confinement
credit. There is nothing in the record to indicate any
purported adjudged forfeitures were enforced, or that the
appellant did not receive the five days’ credit. The appellant
raises no error, and we find no prejudice. However, the
appellant is entitled to accurate court-martial records.54
Accordingly, we order the necessary corrective action in our
decretal paragraph.
                                   Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed. The supplemental court-martial order
shall reflect that the adjudged sentence did not include



50
     Id. at 1521.
51
     Id. at 1408-09.
52
  At the conclusion of voir dire, the military judge reconsidered the need
for such a robust remedy and reduced the number of additional challenges to
one.
53
   No further discussion is merited.    United States v. Matias, 25 M.J. 356,
363 (C.M.A. 1987).
54
     United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998).
                                        13
forfeitures, and that the appellant is entitled to five days’
credit against confinement.
                                For the Court




                                R.H. TROIDL
                                Clerk of Court




                               14
