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

                              No. 201600371
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                       NICHOLAS J. HELBERT
                    Private (E-1), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Commander Colin A. Kisor, JAGC, USN.
  Convening Authority: Commanding General, Training Command,
                        Quantico, Virginia.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
                    Michael E. Sayegh, USMC.
   For Appellant: Commander Robert D. Evans, Jr., JAGC, USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
          USN; Lieutenant Megan P. Marinos, JAGC, USN.
                      _________________________

                          Decided 30 March 2017
                          _________________________

Before C AMPBELL , R UGH , and H UTCHISON , 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 general court-martial, a military judge convicted the
appellant of one specification of conspiracy to wrongfully possess, use,
introduce, and distribute controlled substances; single, respective
specifications of use, distribution, introduction with intent to distribute, and
importation of controlled substances; and one specification of sexual abuse of
                       United States v. Helbert, No. 201600371


a child—violations of Articles 81, 112a, and 120b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 912a, and 920b (2012). The military judge
sentenced the appellant to seven years’ confinement and a dishonorable
discharge. The convening authority (CA) approved the sentence as adjudged.
    The appellant raises two assignments of error (AOEs). The first is
anachronistic, the second is aspirational, and neither reflects the current
state of the law. Consequently, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudicial to the
appellant’s substantial rights occurred. Arts. 59(a) and 66(c), UCMJ.
    The appellant first argues his “best opportunity for post-trial relief” was
compromised by the staff judge advocate’s erroneous advice, requiring our
corrective action or new post-trial processing.1 This AOE centers on the
impact of the staff judge advocate’s incorrect assertion to the CA that the
appellant “was found guilty of an offense with a mandatory minimum
sentence under Article 56(b), UCMJ.”2 While Article 56(b), UCMJ, requires
sentences to include at least a dismissal or dishonorable discharge following
convictions for certain offenses, the offenses for which the appellant was
convicted, all committed during 2016, are not among them.
    Under the applicable version of Article 60, UCMJ, the CA cannot act on
the appellant’s findings and, other than deferring confinement, is wholly
unable to grant any clemency for the appellant’s adjudged sentence. So
whether or not a dishonorable discharge was mandatory punishment, once it
was adjudged, the CA could not alter it. The trial defense counsel understood
these limitations, and even noted them in the post-trial clemency submission:
“[g]iven the nature of the sentence, which includes a punitive discharge, the
[CA] is not empowered to grant any form of clemency. . . . due to the changes
in military law . . . after June of 2014.”3 Therefore, despite the staff judge
advocate’s error regarding the applicability of Article 56(b), UCMJ, the
appellant has failed to make “some colorable showing of possible prejudice” as
required for post-trial relief. United States v. Chatman, 46 M.J. 321, 323-24
(C.A.A.F. 1997).
   In the second AOE, the appellant asserts that we “should take steps to
ensure that [the minor victim and her family’s] personally identifiable

   1   Appellant’s Brief of 4 Jan 2017 at 9.
   2   Staff Judge Advocate’s Recommendation of 26 Sep 2016 at 7, ¶ 13.
   3  Clemency Request of 27 Oct 2016 at 1, ¶ 2. Nonetheless, the trial defense
counsel explained that, “[w]ere relief available, we would request disapproval of the
finding of guilt for Article 120b” and “for six months of sentencing relief” from the
adjudged confinement. Id.



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                       United States v. Helbert, No. 201600371


information is protected”4 via an order either “directing remand of the record
with instructions to the Trial Counsel or another Government representative
to examine the record and associated papers and to redact”5 such information
or “directing the Clerk to seal the Record of Trial and associated papers in
their entirety.”6 These are policy—not legal—arguments.
    Acknowledging that he will personally gain no advantage were we to
grant relief under this AOE, the appellant contends the requested measures
are appropriate because, “[t]he time may come, either through congressional
directive or naval initiative, when this Court’s records, including court-
martial records submitted for appellate review, are made instantly available
to the public.”7 We decline the invitation to depart from our judicial role in
order to create and implement measures to better accommodate potential
future requirements for the public’s trial record access that neither Congress,
the President, nor the Judge Advocate General of the Navy have actually
created.
   The findings and the sentence are affirmed.
                                          For the Court



                                          R.H. TROIDL
                                          Clerk of Court




   4   Appellant’s Brief at 10.
   5   Id. at 21.
   6   Id. at 22.
   7   Id. at 19.


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