               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM S32464
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                            John L. GATERS
              Staff Sergeant (E-5), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 20 July 2018
                           ________________________

Military Judge: L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
and reduction to E-3. Sentence adjudged 16 February 2017 by SpCM
convened at McConnell Air Force Base, Kansas.
For Appellant: Major Rebecca J. Otey, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Kaylynn N. Shoop, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior
Judge HARDING and Judge SPERANZA joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                           ________________________

HUYGEN, Judge:
    A special court-martial composed of a military judge convicted Appellant,
contrary to his pleas, of two specifications of larceny (Charge I) and two speci-
fications of false official statement (Charge II) in violation of Articles 121 and
                    United States v. Gaters, No. ACM S32464


107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 907. The
military judge sentenced Appellant to a bad-conduct discharge, confinement
for 30 days, and reduction to the grade of E-3. The convening authority ap-
proved the sentence as adjudged.
   Appellant raises on appeal one issue: whether Charge II should be dis-
missed because it was charged in the alternative to Charge I. Because the
military judge conditionally dismissed Charge II and its specifications and
the conditional dismissal was not reflected in the post-trial documents, we
order new post-trial processing.

                                 I. BACKGROUND
    Appellant was charged with and pleaded not guilty to three specifications
of larceny under Charge I and three specifications of false official statement
under Charge II. Under Charge I, the military judge found Appellant guilty
of Specifications 1 and 3 for stealing Basic Allowance for Housing (BAH) at
the with-dependent rate and Family Separation Allowance (FSA) 1 and found
Appellant guilty of Specifications 2 and 3 of Charge II for making false offi-
cial statements by signing official documents regarding FSA, BAH, and his
marital status. Prior to trial, the Defense moved to dismiss Charge II and its
specifications as an unreasonable multiplication of charges.
    During the hearing on the motion, the Government stated that Charge II
and its specifications for false official statement regarding FSA, BAH, and
Appellant’s marital status were charged in the alternative to Charge I and its
specifications for larceny of BAH at the with-dependent rate and FSA. Trial
counsel specifically conceded the dismissal of Charge II if Appellant was con-
victed of both charges. Thus, the military judge granted the Defense motion
to dismiss and dismissed Specifications 2 and 3 of Charge II conditioned on
“ultimate approval on appellate review of the findings of guilt of Specifica-
tions 1 and 3 of Charge I, and of Charge I.” Prior to sentencing Appellant, the
military judge again confirmed the parties’ understanding that the judge had
granted the Defense motion to dismiss and conditionally dismissed Specifica-
tions 2 and 3 of Charge II.
    The staff judge advocate’s recommendation (SJAR), report of result of tri-
al (RRT) attached to the SJAR, and addendum to the SJAR made no mention

1 When finding Appellant guilty of Specification 3 of Charge I, the military judge ex-
cepted the words “on or about 19 September 2016,” substituted the words “between
on or about 19 September 2016, and on or about 1 October 2016,” and found Appel-
lant not guilty of the excepted words and guilty of the substituted words.




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                  United States v. Gaters, No. ACM S32464


of the conditional dismissal of Specifications 2 and 3 of Charge II. Appellant
waived his right to submit clemency matters. The SJA recommended and the
convening authority approved the sentence as adjudged, and neither the ac-
tion nor the court-martial order referenced the conditional dismissal.

                               II. DISCUSSION
    Appellant now asks that the court “carry out the conditional dismissal of
the trial judge” and dismiss with prejudice Specifications 2 and 3 of Charge
II. The Government agrees but requests the court make the dismissal condi-
tioned on finality of judgment pursuant to Article 71(c), UCMJ, 10 U.S.C. §
871(c). We do not decide the case on that issue at this time; instead, we must
resolve a concern about post-trial processing. No document presented to and
considered by the convening authority informed him of the conditional dis-
missal of Specifications 2 and 3 of Charge II. Unaware of the military judge’s
ruling, the convening authority took the action of approving the sentence as
adjudged under the misconception that Appellant had been convicted of lar-
ceny and false official statement and sentenced for both offenses.
    Rule for Courts-Martial (R.C.M.) 1106(d)(3) requires the SJA to provide
the convening authority with an RRT “setting forth the findings, sentence,
and confinement credit.” R.C.M. 1107(b)(3)(A) requires the convening author-
ity to consider the RRT before taking action. In Appellant’s case, the RRT
provided no information about the conditional dismissal of Specifications 2
and 3 of Charge II and instead made it appear as if Appellant was convicted
of and sentenced for larceny and false official statement, both major offenses,
when he was actually convicted of and sentenced for larceny and, in the al-
ternative, false official statement.
    R.C.M. 1106(f)(6) stipulates that a failure of defense counsel to comment
on the SJAR and any SJAR attachment, such as the RRT, in a timely manner
constitutes waiver in the absence of plain error. We review this issue de novo
and consider whether “(1) there was an error; (2) it was plain or obvious; and
(3) the error materially prejudiced a substantial right.” United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000). Typically, an SJAR error implicates an appel-
lant’s opportunity for clemency. See United States v. Scalo, 60 M.J. 435, 437
(C.A.A.F. 2005) (“The threshold is low, but there must be some colorable
showing of possible prejudice.”). But Appellant waived his right to submit
clemency matters and did not raise on appeal any concern about the RRT.
    We order new post-trial processing not because the incorrect RRT created
an issue for clemency but because it failed to inform the convening authority
of the true result of trial, which he was required to consider before taking ac-
tion. The convening authority’s action relied on fundamental information—



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                    United States v. Gaters, No. ACM S32464


the offenses of which Appellant was convicted and sentenced—that was fun-
damentally wrong.
    In United States v. Diaz, the United States Court of Military Appeals, to-
day’s United States Court of Appeals for the Armed Forces, found that the
convening authority’s “failure to make any mention of findings in his action
silently implies a decision to approve them.” 40 M.J. 335, 341 (C.M.A. 1994).
Article 60, UCMJ, 10 U.S.C. § 860, has undergone significant change since
Diaz, and the convening authority in Appellant’s case had no discretionary
authority to set aside any of the guilty findings and dismiss any charge or
specification because Appellant’s offenses were not “qualifying” offenses. 2 Ar-
ticle 60(c)(3)(B), UCMJ. However, the relevant language of Article 66, UCMJ,
10 U.S.C. § 866, remains unchanged since Diaz: this court “may act only with
respect to the findings and sentence as approved by the convening authority.”
Diaz, 40 M.J. at 341; see United States v. Henderson, 56 M.J. 911, 912–13 (A.
Ct. Crim. App. 2002) (“[W]hen a convening authority does not address find-
ings in his action, he approves only the findings of guilty as correctly stated
in his SJA’s R.C.M. 1106 recommendation. Simply put, if the SJAR omits or
misstates a finding of guilty, we have no jurisdiction to affirm it.”) (citation
omitted). Because our action is limited to the approved findings and sentence,
we require that those approved findings and sentence at least be accurate,
especially where, as here, the inaccuracy operates to the detriment of the ap-
pellant.
   As in Diaz, the action in Appellant’s case made no mention of findings,
and the only documents describing the findings that the convening authority
was required to consider before taking action, specifically, the SJAR and
RRT, did not correctly describe the findings. 3 We now apply the rationale


2 Appellant committed the offenses of which he was convicted after 24 June 2014; the
maximum sentence of confinement that could be adjudged exceeded two years; and
the adjudged sentence included a bad-conduct discharge. As a result, Appellant’s of-
fenses were not “qualifying.” Article 60(c)(3)(B) and (D), UCMJ. The convening au-
thority still had the discretion to disapprove, commute, or suspend in whole or in part
Appellant’s adjudged sentence of confinement for 30 days and reduction to the grade
of E-3. Article 60(c)(4)(A), UCMJ.
3 We echo the sentiment of our sister court: “This case presents the court with yet
another incident in which a SJA has failed to provide complete and accurate infor-
mation to the convening authority, as required by R.C.M. 1106. The regularity of
these post-trial processing errors is alarming and occurs in many jurisdictions. Most
SJAR errors are the direct result of sloppiness and a lack of attention to detail exhib-
ited by the SJA, Deputy SJA, and the Chief of Criminal Law. Likewise, diligent trial
defense counsel should identify and correct such errors whenever possible. These er-
(Footnote continues on next page)


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                   United States v. Gaters, No. ACM S32464


from Diaz and find that the convening authority in Appellant’s case implicitly
approved the findings as they were reported to him in the SJAR and RRT.
Diaz, 40 M.J. at 343. Because the SJAR and RRT misstated the findings and
omitted any mention of the conditional dismissal of Specifications 2 and 3 of
Charge II, we conclude “the action taken in reliance thereon is in error” and
set it aside. Id. at 337; see also United States v. Ord, 63 M.J. 279 (C.A.A.F.
2006).

                                III. CONCLUSION
    The action of the convening authority is SET ASIDE. The record of trial
is returned to The Judge Advocate General for remand to the convening au-
thority for new post-trial processing consistent with this opinion. Article
66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the record of trial will be re-
turned to this court for completion of appellate review under Article 66,
UCMJ.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




rors reflect poorly on our military justice system and on those individuals who im-
plement that system. They should not occur!” United States v. Lindsey, 56 M.J. 850,
851 (A. Ct. Crim. App. 2002) (citation omitted).




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