          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Senior Airman CORY D. PHILLIPS
                                     United States Air Force

                                               ACM 38771

                                           7 September 2016

         Sentence adjudged 6 November 2014 by GCM convened at Peterson Air
         Force Base, Colorado. Military Judge: Shelly W. Schools (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 1 year, and
         reduction to E-1.

         Appellate Counsel for Appellant: Captain Annie W. Morgan.

         Appellate Counsel for the United States: Lieutenant Colonel Roberto
         Ramirez; Major Mary Ellen Payne; Major Jeremy D. Gehman; Major J.
         Ronald Steelman; Captain Sean J. Sullivan; and Gerald R. Bruce, Esquire.

                                                  Before

                            MAYBERRY, DUBRISKE, and J. BROWN
                                 Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



DUBRISKE, Senior Judge:

       Contrary to his pleas, Appellant was convicted by a military judge sitting alone of
aggravated sexual assault against one victim and abusive sexual contact against another
victim, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The aggravated sexual assault
conviction was based on the 2007 Manual for Courts-Martial (MCM) version of Article
120, UCMJ. Appellant was acquitted of an additional specification of abusive sexual
contact involving the same victim of the aggravated sexual assault offense.
       Appellant was sentenced to a bad-conduct discharge, one year of confinement, and
reduction to E-1. The convening authority approved the sentence as adjudged.

       Appellant initially raised two assignments of error alleging the specifications
supporting his convictions were legally and factually insufficient. Appellant filed a
supplemental assignment of error, which this court granted on 11 July 2016, arguing the
military judge erred when she considered charged offenses as propensity evidence.
Appellant raised the supplemental assignment of error based on our superior court’s recent
decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

       Although we find error based on the military judge’s use of charged offenses as
propensity evidence, we have determined the error was harmless beyond a reasonable
doubt and, therefore, affirm the findings and sentence in this case.

                                        Background

       The sexual assault offenses charged in this case surrounded Appellant’s relationship
with two different Airmen at Peterson Air Force Base, Colorado. The charged incidents
were the result of sexual activity that took place after these Airmen had consumed alcohol
and fallen asleep in Appellant’s presence.

       Appellant was assigned to the same squadron as these Airmen and, as such, had
regular on-duty contact with both of them. With regard to one of the Airmen, Appellant
had a short romantic relationship in which all consensual sexual activity ended
approximately a week prior to the charged offense. Appellant continued to have recurring
off-duty contact with this particular Airman until the beginning of the criminal
investigation against him.

       Additional facts necessary to resolve the assignments of error are provided below.

                 Sufficiency of the Evidence––Aggravated Sexual Assault

       In his first assignment of error, Appellant argues the evidence produced at trial was
factually and legally insufficient to support his conviction for aggravated sexual assault of
Senior Airman (SrA) LS. Appellant specifically focuses on the prosecution’s failure to
prove beyond a reasonable doubt that Appellant engaged in sexual intercourse with SrA
LS as alleged. In so arguing, Appellant points to SrA LS’s inability to recall any factors
leading her to believe Appellant engaged in sexual intercourse with her on that evening.

      We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our
assessment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).


                                              2                                    ACM 38771
        The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [we are]
convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987); see also United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000). In conducting this unique appellate role, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

        The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324; see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term reasonable doubt
does not mean that the evidence must be free from conflict. United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).

       To sustain a conviction for aggravated sexual assault, the prosecution was required
to prove: (1) That Appellant engaged in a sexual act with SrA LS by penetrating her vulva
with his penis; and (2) that he did so when SrA LS was substantially incapable of
communicating her unwillingness to engage in the sexual act. MCM, United States, app.
28, at A28-6, ¶ 45.b.(3)(c)(2) (2012 ed.).

       The evidence supporting the charged offense came from the testimony of SrA LS,
the in-court testimony of Appellant, and his various pretrial statements regarding the
incident. Appellant and SrA LS had previously been involved in a romantic relationship,
but SrA LS decided about a week before the charged incident that they should forgo the
romantic aspects of their relationship and just remain friends.

        SrA LS testified that in June 2012 she had been out drinking with some friends and,
although intoxicated, was in possession of her mental faculties when she returned to a
friend’s on-base house where Appellant had been socializing. After continuing to drink at
this friend’s house, SrA LS and Appellant returned to her dormitory room. SrA LS
remembered eating some food before laying down on her bed to go to sleep. Appellant
was sitting in a chair at this time.

      SrA LS awoke to find Appellant trying to put back on her underwear. Appellant
was so far unsuccessful as he had attempted to guide both of SrA LS’s legs through one
hole of the underwear. SrA LS pushed Appellant off of her, which resulted in his
immediate departure from her room. SrA LS got out of bed to make sure her door was shut
behind Appellant and then fell back asleep.



                                              3                                     ACM 38771
       The next day, SrA LS asked Appellant to come back to her dormitory room so they
could discuss what had happened the previous evening. SrA LS had no memory of
engaging in any sexual activity with Appellant, but still felt she had somehow been sexually
violated by him. SrA LS also had no physical symptoms such as vaginal discomfort or
discharge to confirm her suspicions that Appellant had engaged in sexual activity with her.
Although Appellant did not admit to engaging in any sexual activity during this meeting,
he became very emotional and provided a general apology for his conduct.

        Approximately six months later, after a mutual friend had reported the incident
involving Appellant and SrA LS to the Air Force Office of Special Investigations (AFOSI),
SrA LS agreed to have a conversation with Appellant while wearing a recording device.
Appellant initially informed SrA LS that he was unsure whether they had sexual
intercourse. Later, in response to SrA LS’s direct question of whether they in fact had sex,
Appellant responded with “I think so. Yeah.” Appellant also stated that they “started to
hook up” and, at some point during their physical interaction, he noticed that SrA LS was
unresponsive or asleep. Appellant then attempted to put SrA LS’s clothes back on her and
immediately left the room. Appellant also informed SrA LS that he would not have
stripped her naked and had sexual intercourse with her had she not been responsive
initially.

        At trial, Appellant took the stand in his defense and provided a somewhat different,
and more detailed, version of the events with SrA LS that evening. Appellant testified that
after returning to SrA LS’s dorm room, they eventually climbed into her bed and started
kissing and touching each other. At some point, SrA LS’s underwear was removed.
Appellant then left the room to retrieve a condom from his room on the same dormitory
floor. When he returned, however, Appellant found SrA LS asleep. As he felt it was not
appropriate to leave SrA LS with no underwear on, Appellant attempted to put them back
on her. Afterwards, Appellant left the room and went to sleep. On cross-examination,
Appellant acknowledged his understanding of the word “sex” as was used in the recorded
conversation to mean sexual intercourse.

       Appellant’s denial at trial of engaging in sexual intercourse with SrA LS was far
less credible when compared to his admissions during the recorded conversation.
Appellant, as he was facing trial by courts-martial, now possessed the obvious motivation
to avoid a criminal conviction and the corresponding punishment. As such, his now crystal
clear memory of his actions on the evening were suspect. Appellant also had trouble during
cross-examination explaining why he lied to SrA LS about engaging in sexual intercourse
when the truth as he relayed at trial would have quite possibly put his confused friend’s
mind at ease by letting her know she was not sexually violated on that evening.

      Appellant’s testimony was also rebutted by other evidence admitted at trial. For
example, Appellant suggested at trial that SrA LS never awoke while he was trying to put
her underwear back on her. This position, however, was rebutted by not only SrA LS’s


                                             4                                    ACM 38771
testimony, but also by a pretrial statement Appellant made to the same friend who reported
the incident to AFOSI. Appellant informed this friend, consistent with SrA LS’s testimony,
that SrA LS had initially passed out, but then awoke when he was trying to put her clothes
back on her. Appellant’s trial testimony also became suspect once he was unable to explain
during cross-examination how he was able to put SrA LS’s underwear back on her person
given her unresponsive state and prone position in her bed.

       Based on Appellant’s more credible admissions during the recorded conversation
with SrA LS, there was sufficient evidence when viewed in the light most favorable to the
prosecution for the military judge to find Appellant penetrated SrA LS’s vulva with his
penis, and that he did so when SrA LS was substantially incapable of communicating her
unwillingness to engage in the sexual act. Furthermore, after making allowances for not
personally observing the witnesses, we conclude beyond a reasonable doubt, based upon
our independent review of the record, that Appellant is guilty of the charged offense.

                  Sufficiency of the Evidence––Abusive Sexual Contact

       Appellant next attacks the legal and factual sufficiency of his conviction for abusive
sexual contact of another Airman, A1C KW. Appellant primarily argues the evidence
produced at trial fails to establish A1C KW was incapable of consenting to Appellant’s
actions because of her impairment from consuming alcohol that evening. In support of this
argument, Appellant points to the testimony of A1C KW that she believed she was not
sufficiently impaired from alcohol when she awoke to Appellant touching her chest and
vaginal area.

       In November 2013, A1C KW was invited to have drinks with some friends from
work. Appellant was also invited by the same group of friends and arrived at the off-base
bar shortly after A1C KW. Although Appellant and A1C KW worked together, they had
only seen each other socially one other time when they both attended a movie with a group
of mutual friends from their squadron. At some point after arriving at the bar, Appellant
informed a co-worker he wanted to get to know A1C KW better.

       After consuming three drinks at the first bar, A1C KW and her group of friends went
to two other bars where they drank and danced. A1C KW became progressively more
intoxicated as the evening continued, eventually requiring assistance to maintain her
balance. A1C KW was also unable to keep her eyes open and had impaired speech. At
some point during the evening, Appellant had to hold A1C KW to keep her from falling
down due to her level of intoxication.

      As Appellant had moved from the dormitories to an off-base apartment, it was
decided prior to the bar closing that A1C KW and another co-worker, SrA JY, would sleep
at Appellant’s apartment instead of trying to get back to their dormitory room on base. SrA
JY wanted to get something to eat, so they went to a fast-food restaurant. A1C KW was


                                              5                                    ACM 38771
described by SrA JY as “very drunk” at this time and required physical assistance from
both Appellant and SrA JY as they walked to the restaurant. A1C KW did not eat anything,
but did consume some water at the restaurant.

        Appellant, A1C KW, and SrA JY then took a taxi cab to Appellant’s apartment,
arriving around 0230 hours. A1C KW did not remember the walk from the cab to
Appellant’s third floor apartment. SrA JY reported A1C KW was non-responsive shortly
after arriving at Appellant’s apartment. He defined the term non-responsive as meaning
A1C KW was “blacked out” or “unconscious.” Appellant and SrA JY carried A1C KW to
Appellant’s bedroom and placed her in his bed. Appellant and SrA JY planned to sleep in
Appellant’s living room. During the course of the evening, however, Appellant at least
twice entered his bedroom to “check on” A1C KW.

       Approximately 90 minutes after arriving at the apartment, A1C KW woke up to
Appellant touching her breast and vaginal area over her clothes, as well as directly touching
her breast with his hand. Appellant eventually rolled A1C KW on top of him. A1C KW
then kissed Appellant thinking he was her fiancé. Once she realized it was Appellant who
was in bed with her, A1C KW rolled away from Appellant. Appellant continued to try to
get A1C KW to acknowledge him, but eventually left the room after she ignored him for a
period of time.

       To convict Appellant of this specific offense, the prosecution had to prove: (1) That
Appellant committed sexual contact upon A1C KW; and (2) that he did so when A1C KW
was incapable of consenting to the sexual contact due to impairment by alcohol, and that
condition was known or reasonably should have been known by him. MCM, United States,
¶ 45.a.(d) (2012 ed.); see also Department of the Army Pamphlet 27-9, Military Judges’
Benchbook, ¶ 3-45-16c. (10 September 2014).

       With regard to the first element, we find the evidence sufficient to prove Appellant
committed acts of sexual contact. A1C KW’s testimony alone was more than enough to
support this element. In this case, however, her testimony was corroborated by Appellant
during a pretext conversation in which he admitted that while he never “went under [A1C
KW’s] pants,” he may have touched her bra that same evening. Appellant also admitted to
a co-worker that he kissed A1C KW and touched her breast.

        Furthermore, contrary to Appellant’s claims, the evidence produced at trial is
sufficient to establish A1C KW did not have the mental capacity to consent to sexual
activity due to her impairment by alcohol. See generally United States v. Pease, 75 M.J.
180, 184–85 (C.A.A.F. 2016) (discussing our sister service court’s definition of the term
incapable of consenting). Multiple witnesses testified A1C KW became significantly
intoxicated as the evening progressed. In fact, approximately 90 minutes before the
incident, A1C KW was noted to be completely non-responsive, requiring Appellant and
SrA JY to carry her to Appellant’s bed.


                                              6                                    ACM 38771
        While Appellant’s brief to this court focuses on A1C KW’s personal assessment of
the impact of alcohol on her mental capacity, he ignores her testimony that she was
confused after arriving at Appellant’s apartment and was clearly not aware of Appellant’s
presence in bed until he began touching her. Appellant’s argument also fails to consider
SrA JY’s testimony that he awoke prior to the assault to check on A1C KW and found her
sitting up in bed in a “dazed” and “disoriented” state, unable to initially answer questions
posed by him. While A1C KW could not link her disorientation to her consumption of
alcohol, it was entirely reasonable for the factfinder to draw this conclusion given her
appearance and conduct within 90 minutes of Appellant’s assault.

        Taking the stand during his trial, Appellant denied initiating any physical contact
with A1C KW. He advised A1C KW initiated the entire encounter by climbing on top of
him and kissing him. Moreover, because A1C KW “grossed him out,” Appellant testified
he left the room to get away from her advances. Appellant also informed the finder of fact
that he did not believe A1C KW was drunk at any point during the evening as she was able
to walk and stand on her own.

        Appellant’s testimony is far from credible when compared against the entirety of
the evidence admitted at trial. His self-serving statements about A1C KW’s aggression
towards him did not match his physical contact with her as documented in the pretext
conversation. Likewise, his testimony that he had no interest in A1C KW’s sexual
advances stood in stark conflict with his statement earlier in the evening that he wanted to
get to know A1C KW better.

       Additionally, Appellant’s hedged statement about A1C KW’s level of intoxication
was directly rebutted by three witnesses––all friends of Appellant––who noted A1C KW
became very intoxicated as the evening progressed. More damaging, however, was
Appellant’s admission during the pretext conversation that the group eventually stopped
A1C KW from drinking as she had clearly had enough alcohol for the evening.
Considering all of these conflicting factors, it would not be surprising for the finder of fact
to determine Appellant’s self-serving testimony in his defense was not credible.

       Based on A1C KW’s testimony, the strong evidence regarding her level of
intoxication, and the various admissions from Appellant, we find the evidence was
sufficient, when viewed in the light most favorable to the prosecution, for a reasonable
finder of fact to conclude that Appellant engaged in sexual contact with A1C KW when
she was incapable of consenting to the sexual acts due to her alcohol impairment, and that
condition was known or reasonably should have been known by Appellant. Moreover,
making allowances for not personally observing the witnesses, we also conclude beyond a
reasonable doubt, based upon our independent review of the record, that Appellant is guilty
of the charged offense of abusive sexual contact.



                                              7                                     ACM 38771
                        Improper Admission of Propensity Evidence

       Immediately prior to findings argument, the military judge summarized on the
record a Rule for Courts-Martial (R.C.M.) 802 session where she discussed with counsel
the findings instructions she would consider during her deliberations. She noted she would
specifically consider propensity evidence under Mil. R. Evid. 413 based on a request by
trial counsel. The military judge performed no analysis on the admissibility of the
propensity evidence on the record. Moreover, given the discussion of instructions took
place off the record, it is unclear if trial defense counsel initially objected to the military
judge’s consideration of propensity evidence in this case.

      Although not the primary focus of his findings argument, trial counsel highlighted
Appellant’s propensity to commit sexual misconduct:

              Now, Your Honor, is familiar with how to apply that evidence
              under [Mil. R. Evid.] 413. I’m not going to stand here and
              argue the law. I just ask you to consider it, and when you do
              consider it, it’s pretty compelling, Your Honor, because if you
              look at the circumstances they are all pretty similar. We can
              see throughout this process how does [Appellant] like his
              women? Out . . . asleep . . . passed out on the bed. That’s what
              this shows us.

Trial counsel briefly revisited the propensity theme during his rebuttal argument.

       Pursuant to a supplemental assignment of error, Appellant raises for the first time
on appeal that his guilty findings must be set aside based on our superior court’s recent
ruling in Hills, 75 M.J. 350. There, the court determined the military judge erred in
admitting charged sexual assault offenses as propensity evidence. Id. at 352. Additionally,
the court ruled the military judge’s spill-over and propensity instructions were improper as
the court members were provided with “directly contradictory statements about the bearing
that one charged offense could have on another.” Id. at 357. In so finding, the court noted
it could not determine if “Appellant’s right to a presumption of innocence and to be
convicted only by proof beyond a reasonable doubt was not seriously muddled and
compromised by the instructions as a whole.” Id. The court then examined the prejudicial
effect of the error under the standard of harmless beyond a reasonable doubt given the
instructional error raised constitutional due process concerns.

       The Government, in its brief, argues Appellant’s case is distinguishable from the
holding in Hills. In particular, the Government suggests the issue before this court must
be reviewed for plain error given Appellant’s failure to object to the military judge’s
consideration of propensity evidence. Referencing United States v. Henderson, 133 S.Ct.
1121 (2013), the Government argues the military judge’s ruling was not plain or obvious


                                              8                                     ACM 38771
error given the law was not averse to the ruling at the time of trial. Given our disposition
of this case based on the lack of prejudice to this particular Appellant, we leave the
resolution of the Government’s argument for another day.

      Regarding the assessment of prejudice, Appellant argues the military judge’s error
must be examined under the more stringent standard of harmless beyond a reasonable
doubt. Appellant opines the military judge remains beholden to the same instructions
found deficient in Hills when rendering her findings in this case.

       We disagree, and instead apply Article 59(a), UCMJ, 10 U.S.C. § 859(a), when
examining cases in which a military judge sitting alone considers charged offenses as
propensity evidence. In so holding, we note military judges are presumed to know the law
and to follow it, absent clear evidence to the contrary. United States v. Mason, 45 M.J.
483, 484 (C.A.A.F. 1997). This presumption includes the ability to maintain the
presumption of innocence and apply the appropriate burden of proof in assessing
Appellant’s guilt––issues “seriously muddled and compromised” by the instructions
provided to court members in Hills, 75 M.J. at 357. While we recognize the military judge
did err in considering the charged offenses for propensity, we cannot extend this error to
also encompass the constitutional concerns raised in Hills absent evidence in the record of
trial. Here, we have no reason to believe the military judge misapplied either the
presumption of innocence or the burden of proof in assessing Appellant’s guilt. See United
States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 1997).

       With the instruction concerns present in Hills removed, any error by the military
judge in admitting propensity evidence is nonconstitutional in nature. See United States v.
Solomon, 72 M.J. 176, 182 (C.A.A.F 2013). As such, we would be bound to uphold the
findings in this case unless the error materially prejudices Appellant’s substantial rights.

       Regardless, in this particular case, we find the military judge’s admission of
propensity evidence to be harmless under even a constitutional due process analysis.
Regarding the strength of the Government’s case, the two victims testified under oath and
were subject to the crucible of cross-examination. Their credibility was aided by either
Appellant’s own admissions or witness testimony that directly contradicted Appellant’s
version of the events.

       Our belief about the importance of Appellant’s admission is buttressed by the
military judge’s mixed findings. Appellant was only convicted of sexual assault offenses
where the victim’s testimony was aided by either other witnesses, Appellant’s admissions,
or his conflicting testimony at trial. Provided the military judge misinterpreted the
presumption of innocence or burden of proof as suggested as a possibility in Hills, one
would have expected guilty verdicts on all of the charged sexual assault offenses.




                                             9                                    ACM 38771
      For all of these reasons, we find any errors surrounding the admission of propensity
evidence in this case to be harmless beyond a reasonable doubt.

                           Post-Trial Processing Discrepancies

        After receiving initial briefs from both parties, we specified two issues relating to
the post-trial processing of this case. The first issue questioned whether Appellant had
been provided two victim-impact statements which were submitted to the convening
authority as an attachment to the addendum to the staff judge advocate’s recommendation
(SJAR). The second specified issue addressed a defense clemency submission that was
listed as an attachment to the addendum, but not contained in the original record of trial
filed with this court. The Government, in conjunction with its brief on the specified issues,
requested this court consider various documents and affidavits explaining the void in the
record of trial. We now grant the Government’s request to attach these materials to the
record of proceedings.

       Proper completion of post-trial processing is a question of law, which we review de
novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Although the threshold for
establishing prejudice in this context is low, the appellant must nonetheless make at least
“some colorable showing of possible prejudice.” United States v. Scalo, 60 M.J. 435, 437
(C.A.A.F. 2005).

       With regard to the first specified issue, the Government submitted receipts missing
from the record of trial which establish Appellant and his trial defense counsel received the
victim-impact statements prior to their clemency submission to the convening authority.
Notwithstanding this fact, Appellant claims R.C.M. 1106(f)(7) still requires the
Government to provide Appellant with 10 additional days from the completion of the
addendum to comment as the statements were new matter.

       It is clear from a cursory review of the two victim-impact statements that they were
being submitted for the convening authority’s consideration during clemency. As such, we
question whether a victim-impact statement addressed to the convening authority and
previously served on an appellant would be considered new matter when later submitted to
the convening authority. We need not address this issue here, however, as we find
Appellant suffered no prejudice. See United States v. Frederickson, 63 M.J. 55, 56
(C.A.A.F. 2006). The victim-impact statements were provided to Appellant prior to his
clemency submission, which provided him ample time to address any concerns raised
therein. As Appellant has failed to state what, if anything, he would have submitted to
deny, counter, or explain the new matter, we find he is not entitled to relief. Id. at 57.

      In response to the second specified issue, the Government submitted an affidavit
from the convening authority’s staff judge advocate in which she certified the missing
clemency submission was in fact reviewed and considered by the convening authority.


                                             10                                    ACM 38771
Given this affidavit, we are confident the convening authority considered all of Appellant’s
clemency submissions prior to taking action on this case. See United States v. Craig, 28
M.J. 321, 325 (C.M.A. 1989).

       Finally, we note Appellant’s trial defense provided a legally defective argument in
her clemency submission when she suggested the convening authority had no authority to
grant sentence relief due to the recently amended provisions of Article 60, UCMJ, 10
U.S.C. § 860. In so arguing, trial defense counsel acknowledged all of Appellant’s offenses
took place prior to the effective date of the Article 60, UCMJ, amendments. The fact
Appellant’s offenses occurred prior to the effective date provided the convening authority
with the unfettered ability to disapprove findings or grant relief during clemency. See
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, §
1702(d)(2), 127 Stat. 958 (2013); see also Exec. Order 13,730, Annex, Section 1(cc), 81
Fed. Reg. 33,331 (20 May 2016). We also note the mandatory minimum sentence
requirements generated by Article 56(b), UCMJ, 10 U.S.C. § 856(b), would not be
applicable here as no offense occurred on or after 24 June 2014.

        After incorrectly conceding the amendment’s effective date prevented Appellant’s
entitlement to relief on sentence, trial defense counsel suggested the convening authority
should instead disapprove findings as this was the only relief available to Appellant due to
the timing of his offenses. For the reasons noted above, this belief was erroneous as the
convening authority retained his full powers over findings and sentence. More concerning
than trial defense counsel’s position, however, was the fact the convening authority’s staff
judge advocate failed to correct this misstatement of the law in her addendum to the SJAR.

        In evaluating this error, we are mindful of our superior court’s recent action in
United States v. Addison, No. 16-0615/AF (C.A.A.F. 26 July 2016) (mem.), where the
court summarily set aside this court’s opinion that an appellant was not entitled to relief
for a similar error. Examining this particular case for prejudice, however, we do not believe
accurate advice by trial defense counsel or the staff judge advocate would have led to
corrective action by the convening authority given the serious nature of Appellant’s
offenses. See United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). As such, we decline
to order additional post-trial processing in this case.

                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and
66(c), UCMJ.




                                              11                                   ACM 38771
Accordingly, the findings and the sentence are AFFIRMED.




            FOR THE COURT



            LEAH M. CALAHAN
            Clerk of the Court




                                        12                 ACM 38771
