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

                                No. 201600322
                            _________________________

                   UNITED STATES OF AMERICA
                                      Appellee
                                          v.

                          EDRICK VILLARREAL
                  Staff Sergeant (E-6), U.S. Marine Corps
                                 Appellant
                          _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Major Michael D. Libretto, USMC.
     Convening Authority: Commanding Officer, Marine Special
 Operations School, U.S. Marine Corps F orces, Special Operations
                   Command, Camp Lejeune, NC.
Staff Judge Advocate’s Recommendation : Lieutenant Colonel Joseph
   E. Galvin, USMC; Addendum: Captain Bret A. White, USMC.
          For Appellant: Major Jason L. Morris, USMCR.
                 For Appellee: Brian K. Keller, Esq.
                      _________________________

                            Decided 17 March 2017
                            _________________________

  Before M ARKS , J ONES , and E LLINGTON , Appellate Military Judges
                          _________________________

   PER CURIAM:
   A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification of making a false official statement1
and one specification of larceny, in violation of Articles 107 and 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 921. The military
judge sentenced the appellant to five months’ confinement, reduction to pay


   1 Specifications 1, 2, and 3 of Charge II (making a false official statement) were
consolidated by the military judge into a single specification for purposes of findings
and sentencing.
                       United States v. Villarreal, No. 201600322


grade E-4, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged.
   Although not raised by the appellant, we find error in the addendum to
the staff judge advocate’s recommendation (SJAR) and find it necessary to
remand for a new SJAR and CA’s action.
                                    I. BACKGROUND
    In the appellant’s request to the CA for clemency,2 trial defense counsel
requested disapproval of the appellant’s adjudged discharge. The addendum
to the SJAR advised the CA that, pursuant to RULE FOR COURTS-MARTIAL
(R.C.M.) 1107, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), the
CA was not authorized to “disapprove, commute or suspend the sentence of
the Bad-Conduct Discharge.”3 The CA approved but did not execute the
appellant’s discharge. Although the CA explicitly mentioned considering
R.C.M. 1105 and 1106 matters submitted by the appellant, the CA did not
comment on his authority to grant the requested clemency.
                                    II. DISCUSSION
   The erroneous advice in the addendum to the SJAR was a
misinterpretation of changes to Article 60, UCMJ by the National Defense
Authorization Act for Fiscal Year 20144, which became effective on 24 June
2014.
    While the advice in the SJAR’s addendum is correct for offenses
committed after 24 June 2014, the appellant’s larceny specification spans
from 26 June 2013 to 18 August 2015. This specification straddles the 24
June 2014 date. The National Defense Authorization Act for Fiscal Year 2015
clarified the issue of such straddling offenses:
         With respect to the findings and sentence of a court-martial
         that includes both a conviction for an offense committed before
         the effective date . . . 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[.]5



   2   Clemency Request of 24 Aug 2016.
   3   SJAR of 8 Sep 2016 at ¶ 2.
   4 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
127 Stat. 672, 956-57 (2013).
   5   PUB. L. NO. 113–291, 128 STAT. 3292, 3365 (2014).


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                   United States v. Villarreal, No. 201600322


    “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.” R.C.M. 1106(f)(6),;
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Factors to consider in
determining whether an error is plain error include: “(1) whether the error is
an omission or is an affirmative misstatement; (2) whether the matter is
material and substantial; and (3) whether there is a reasonable likelihood the
convening authority was misled by the error.” United States v. Lowry, 33 M.J.
1035, 1038 (N.M.C.M.R. 1991). 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. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (citation omitted).
   We find that the advice in the SJAR’s addendum 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 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. There being no indication that the CA ignored the SJA’s incorrect
advice, we find the apparent denial of consideration itself to be a sufficient
showing of possible prejudice.
                              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.
                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court




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