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

                            No. 201600379
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                            RANDY M. SO
             Private First Class (E-2), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Colonel James K. Carberry, USMC.
  Convening Authority: Commanding Officer, Headquarters and
Support Battalion, Marine Corps Installations -West, Marine Corps
                 Base, Camp Pendleton, California
Staff Judge Advocate’s Recommendation: Lieutenant Colonel Todd
                           Enge, USMC.
         For Appellant: Major Jason L. Morris, USMCR.
                For Appellee: Brian Keller, Esquire
                     _________________________

                        Decided 17 March 2017
                        _________________________

  Before CAMPBELL, H UTCHISON , and E LLINGTON , 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.
                       _________________________

   PER CURIAM:
   At an uncontested special court-martial, a military judge convicted the
appellant of an unauthorized absence—a violation of Article 86, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 886. The military judge
sentenced the appellant to 60 days’ confinement, reduction to pay grade E-1,
                          United States v. So, No. 201600379


forfeiture of $900.00 pay per month for two months, and a bad-conduct
discharge. The convening authority (CA) approved the sentence as adjudged.
    Although not raised by the parties, the staff judge advocate’s
recommendation (SJAR) erroneously advised that the CA was not authorized
to “disapprove, commute or suspend the sentence of a bad-conduct
discharge.”1 We find this uncorrected misstatement of the law requires a new
SJAR and CA’s action.
                                  I. BACKGROUND
    The appellant was in an authorized absence status between 6 April 2013
and 26 July 2016. After his guilty plea and conviction, his trial defense
counsel asked the CA to set aside the adjudged discharge as an act of
clemency and administratively separate the appellant from the Marine Corps
instead.2 The SJAR then advised the CA that he was unable to “disapprove,
commute or suspend the sentence of a bad-conduct discharge.” The trial
defense counsel filed no response to the SJAR. Acting on the sentence, the CA
explicitly mentioned having considered RULES FOR COURTS-MARTIAL 1105
and 1106, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)
(R.C.M.), and all matters submitted by the appellant, but did not comment on
his understanding of his authority to grant or deny the clemency request.
                                      II. DISCUSSION
   The SJAR’s advice—that the CA could not disapprove, commute, or
suspend the adjudged discharge—was a misinterpretation of changes to
Article 60, UCMJ by the National Defense Authorization Act for Fiscal Year
20143, which became effective on 24 June 2014.
   While the advice in the SJAR is correct for offenses committed after 24
June 2014, this is not such a case. The offense of unauthorized absence from
a unit is “an instantaneous offense . . . complete at the instant an accused
absents himself . . . without authority. Duration of the absence is a matter in
aggravation for the purpose of increasing the maximum punishment
authorized for the offense.”4
   “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


   1   SJAR of 7 Oct 2016 at ¶ 12b.
   2   Clemency Request of 26 Sep 2016.
   3 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
127 Stat. 672, 956-57 (2013).
   4   MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶10c(8).
                                            2
                       United States v. So, No. 201600379


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 staff judge advocate’s (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 Article 60, UCMJ, amendments—we have no doubt
that the error misled the CA. Nothing in the matters that the CA considered
in taking his action corrected the SJA’s erroneous advice. We, therefore,
conclude the SJA’s advice constitutes plain error. 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.
                              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




                                        3
