UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                 TOZZI, HAM, and SIMS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Private E1 WILLIAM M. HUDGINS
                            United States Army, Appellant

                                    ARMY 20090737

Headquarters, United States Army Maneuver Center of Excellence and Fort Benning
                          James S. Pohl, Military Judge
  Colonel Tracy A. Barnes, Staff Judge Advocate (pretrial and recommendation)
 Lieutenant Colonel Jeffery D. Lippert, Deputy Staff Judge Advocate (addendum)


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Major Timothy W. Thomas, JA; Captain Jennifer A. Parker, JA (on brief);
Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major
Grace M. Gallagher, JA; Captain Jennifer A. Parker, JA (on reply brief).

For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L.
Foss, JA; Major Adam S. Kazin, JA (on brief).


                                      25 March 2010
                                 -------------------------------
                                 OPINION OF THE COURT
                                 -------------------------------
Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification each of conspiracy to commit maiming
and maiming, in violation of Articles 81 and 124, Uniform Code of Military Justice,
10 U.S.C. §§ 881 and 924 [hereinafter UCMJ]. The convening authority approved
the adjudged sentence of a bad-conduct discharge and confinement for ten months.
The military judge credited appellant with four days of confinement credit.

      This case is before the court for review pursuant to Article 66, UCMJ. We
have considered the record of trial, appellant’s assignment of error, 1 the matters
1
    Appellant alleged one assignment of error:

                                                                       (continued . . .)
HUDGINS – ARMY 20090737

personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and the government’s response and conclude they warrant no relief.
While not raised by appellant as an assignment of error, we note an additional matter
that warrants discussion, but no relief.

       Lieutenant Colonel (LTC) Lippert signed the Addendum to the Staff Judge
Advocate Recommendation (SJAR) as the “Deputy Staff Judge Advocate.” Article
60(d), UCMJ, requires a convening authority to “obtain and consider the written
recommendation of his staff judge advocate or legal officer.” See also Rule for
Courts-Martial [hereinafter R.C.M.] 1106(a); 10 U.S.C. §801(12) (defining “legal
officer” as “any commissioned officer of the Navy, Marine Corps, or Coast Guard
designated to perform legal duties for a command”). The staff judge advocate or
legal officer may also prepare an addendum to the recommendation. R.C.M.
1106(f)(7).

       Our superior court has recognized that “Congress contemplated that the
convening authority receive the recommendation of the SJA, not an assistant SJA.”
United States v. Wilson, 54 M.J. 57, 59 (C.A.A.F. 2000) (citing United States v.
Kema, 10 U.S.C.M.A. 272, 27 C.M.R. 346 (1959)). The “Deputy Staff Judge
Advocate” signed the addendum which, we find, constitutes error. Our superior
court previously analyzed an SJAR erroneously signed by the “assistant staff judge
advocate” for plain error and declined to grant relief. Id. at 59. See also United
States v. Hensley, 52 M.J. 391, 393 (C.A.A.F. 2000) (holding in a case involving
“more than a passive waiver,” “irregular designation of [otherwise qualified legal
officer who prepared SJAR] . . . did not materially prejudice a substantial right”).

       While appellant did not raise this issue to this court either personally or as an
assignment of error, we decline to apply waiver here. The error in this case appears
in the addendum, rather than in the SJAR. As such, appellant did not have the
opportunity to comment on the error in his post-trial submission, distinguishing this
case from Wilson and Hensley.



(. . . continued)
               THE OMISSION OF DEFENSE SENTENCING WITNESS
               TESTIMONY AND THE MILITARY JUDGE’S
               COLLOQUY WITH APPELLANT MAKES THIS
               RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE
               IN CONTRAVENTION OF [ARTICLE] 54(c), UCMJ,
               AND RULE FOR COURTS-MARTIAL 1103(b)(3)(c),
               AND IS A SUBSTANTIAL ERROR.

Subsequent to appellant’s brief, the military judge completed a certificate of
correction. As a result, the record of trial is now complete.


                                           2
HUDGINS – ARMY 20090737

       Regardless, we can discern no prejudice to appellant under the facts and
circumstances of this case. This is particularly true where the deputy staff judge
advocate was an officer and experienced judge advocate and was statutorily
qualified to sign the addendum as the acting SJA in the SJA’s absence. 2 These facts
are distinct from United States v. Finster, in which our superior court found plain
error when a statutorily unqualified enlisted sailor prepared the SJAR. 51 M.J. 185,
187 (C.A.A.F. 1999). See also United States v. Stefan, ARMY 20081097 (Army Ct.
Crim. App. 29 Jan. 2010) (unpub.) (Ham, J., dissenting) (officer acting in court-
martial as chief of military justice should be disqualified from later signing the
addendum as acting SJA). Additionally, appellant failed to allege error to this court
or make any “colorable showing of possible prejudice.” See United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998); Finster, 51 M.J. at 188 (“Courts of
Criminal Appeals in appropriate cases may rely on the failure of an accused to
identity prejudicial error as a basis for denying relief . . .”).

                                   CONCLUSION

      On consideration of the entire record, including consideration of the issues
personally specified by the appellant, we hold the findings of guilty and the sentence
as approved by the convening authority correct in law and fact. Accordingly, those
findings of guilty and the sentence are AFFIRMED.


                                       FOR THE COURT:




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




2
  Because the signature block was unambiguous, we declined to order an affidavit
from LTC Lippert addressing whether he was actually the acting staff judge advocate
when he signed the addendum as the Deputy Staff Judge Advocate, and the signature
block was merely a typographical error.


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