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

                           No. ACM 39596
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                        Barret D. SMITH
         Airman First Class (E-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 25 June 2020
                      ________________________

Military Judge: Andrew Kalavanos (arraignment); L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 3 August 2018 by GCM con-
vened at MacDill Air Force Base, Florida.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Dayle P. Percle, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, KEY, and RAMÍREZ, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 30.4.
                        ________________________
                    United States v. Smith, No. ACM 39596


RAMÍREZ, Judge:
    A general court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to his pleas, of two specifications 1 of assault con-
summated by a battery in violation of Article 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 928; 2 and one specification of obstruction of jus-
tice and one specification of violating a civilian no-contact order on divers oc-
casions, both in violation of Article 134, UCMJ, 10 U.S.C. § 934. Appellant
pleaded not guilty to one specification of sexual assault and three specifica-
tions of abusive sexual contact, in violation of Article 120, UCMJ, 10 U.S.C. §
920, and was found not guilty by a panel consisting of officer and enlisted
members. The members sentenced Appellant to a bad-conduct discharge, con-
finement for six months, and reduction to the grade of E-1. The convening
authority approved the adjudged sentence.
    Appellant raises two issues on appeal: (1) whether he was denied mean-
ingful sentence relief for 14 days of illegal pretrial confinement in excess of
his approved sentence, and (2) whether he was denied a meaningful oppor-
tunity for clemency because the staff judge advocate’s recommendation
(SJAR) failed to address 14 days of credit that were awarded by the military
judge because of the conditions of Appellant’s pretrial confinement. During
our review we noted the convening authority’s action omitted this credit.
Finding no prejudicial error, we affirm, but return the record of trial to The
Judge Advocate General for remand to the convening authority to withdraw
the incomplete action and substitute a corrected action that properly ac-
counts for credit for illegal pretrial confinement ordered by the military
judge.
                                I. BACKGROUND
   On 2 January 2018, Appellant consumed alcohol throughout the day. Ac-
cording to his providence inquiry, he became heavily intoxicated and an ar-
gument occurred between Appellant and his fiancée (AB) about his drinking.
Appellant was living in AB’s home at that time. He then decided to leave and
continued drinking. He ended the night by going back to AB’s home, but be-


1The specifications were later merged by the military judge as unreasonable multi-
plication of charges.
2All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2016
ed.). We note that Appellant’s brief references the 2012 version of the UCMJ; howev-
er, because nothing of substance would change the court’s analysis, we accept the
2012 notation as a scrivener’s error.




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                   United States v. Smith, No. ACM 39596


cause of how drunk he was, she would not let him in. He became upset and
banged on the door and windows until she let him in. Once inside the house,
Appellant grabbed and pulled AB by her hair. He also pinned AB against the
wall by pressing his forearm against her shoulder blade. At some point, AB
was able to call the police, and Appellant was arrested by civilian law en-
forcement and placed in the custody of the Hillsborough County Jail in Flori-
da.
    Once arrested, Appellant was given a civilian no-contact order which di-
rected him not to have any contact with AB. Nonetheless, Appellant contact-
ed AB many times by phone from the jail. During one of the recorded tele-
phone calls, the two talked about the offense. Specifically, AB told Appellant,
“[Y]ou grabbed me by my hair and pulled me on the floor. I couldn’t sleep be-
cause my head was killing me from where you pulled the hair out of my
head.” She also stated, “[Y]ou sprayed rum in my eyes, directly in my eyes.
You pulled a chunk of hair out of my head.”
   During another telephone call from jail, Appellant told AB,
       . . . I’m just going to be completely real with you. If you tell
       them that I laid a hand on you, you’re not going to see me again
       and I don’t want to put you in that place but all I can tell you to
       say is that we had a misunderstanding. . . . I don’t deserve that
       and I think you know that I don’t deserve that. . . . I don’t de-
       serve to not see my dog. I don’t deserve to not see you.
    These calls led to Appellant being charged with violating the no-contact
order and obstruction of justice. Ultimately, Appellant spent 22 days in the
Hillsborough County Jail based on the initial arrest, but remained in the
county jail for purposes of military pretrial confinement until the conclusion
of his court-martial.
                                II. DISCUSSION
A. Credit for Illegal Pretrial Confinement
   1. Additional Background
    While confined in the Hillsborough County Jail for the civilian arrest, on
25 January 2018 military authorities ordered Appellant into pretrial con-
finement. Although Appellant transitioned to being in a military pretrial con-
finement status at this point, he remained in the county jail at the Air Force’s
request until the end of his court-martial. Appellant claims on appeal that
between January 2018 and May 2018 he did not receive an evening meal on
three occasions and did not receive his medications on four occasions. Appel-
lant further states that on 25 and 26 July 2018, he “was kept in a booking
room and forced to sleep on a plastic chair” with the lights on.


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                   United States v. Smith, No. ACM 39596


    During Appellant’s court-martial, and after the members announced sen-
tence, the military judge addressed a defense motion for additional pretrial
confinement credit. The military judge first considered Articles 12, 55, and
58, UCMJ, 10 U.S.C. §§ 812, 855, 858, and concluded that there were no vio-
lations of Articles 55 and 58, UCMJ, and the Defense did not establish a vio-
lation of Article 12, UCMJ. The military judge next considered Article 13,
UCMJ, 10 U.S.C. § 813, and found that Appellant was not punished in viola-
tion of this article, but that Appellant was “subjected to conditions that were
more rigorous than necessary to ensure [his] presence at trial” in violation of
Article 13, UCMJ. Therefore, the military judge awarded Appellant a total of
14 days of credit for illegal pretrial confinement for the missed meals, with-
held medication, and nights spent sleeping on plastic chairs. The military
judge related that “the conditions [Appellant] was subjected to for the re-
mainder of his stay in Hillsborough County Jail were related to a legitimate
government objective.”
   At the time of sentencing, Appellant had already accumulated 190 days of
pretrial confinement credit.
    On the record and before adjourning, the military judge had the following
colloquy with trial and defense counsel:
       [Military Judge (MJ)]: All right. The members have departed.
       The parties are present. All right. Counsel, it seems to me that
       the sentence kind of moots the request for additional pretrial
       confinement credit. What’s your view on that?
       [Area Defense Counsel]: It does moot it, Your Honor.
       [MJ]: Basically, I’ll go ahead and announce . . . my ruling . . .
       but I don’t think it ultimately is going to have any effect on an-
       ything at this point. . . . . So, 204 days of pretrial confinement
       against the accused’s term of confinement, which, obviously,
       with credit for time served, no additional confinement will be
       appropriate at this point. All right. Are there any other matters
       to take up before the court adjourns?
       [Trial Counsel]: No, Your Honor.
       [Civilian Defense Counsel]: No, Your Honor.
   Appellant’s credited days of pretrial confinement and illegal confinement
credit totaled 204 days, which exceeded his adjudged term of six months of
confinement.
   2. Law




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                   United States v. Smith, No. ACM 39596


    We review issues concerning the proper application of credit for illegal
pretrial punishment de novo as it is a question of law. United States v.
Zarbatany, 70 M.J. 169, 174 (C.A.A.F. 2011) (citing United States v. Spaustat,
57 M.J. 256, 260 (C.A.A.F. 2002)). “Article 13, UCMJ, relief can range from
dismissal of the charges, to confinement credit or to the setting aside of a pu-
nitive discharge.” Id. at 170. “Where relief is available, meaningful relief
must be given for violations of Article 13, UCMJ.” Id. “However, relief is not
warranted or required where it would be disproportionate to the harm suf-
fered or the nature of the offense.” Id.
    “Forfeiture is the failure to make the timely assertion of a right.” United
States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). “If an appellant has for-
feited a right by failing to raise it at trial, we review for plain error.” Id.
When analyzing for plain error, we assess whether “(1) there was an error; (2)
it was plain or obvious; and (3) the error materially prejudiced a substantial
right.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (citation omit-
ted). The appellant has the burden of persuading the court that the three
prongs of the plain error test are satisfied. Id.
   3. Analysis
    In his brief, Appellant cites United States v. Parris wherein this court
found the appellant in that case was denied meaningful relief for 66 days of
pretrial confinement credit in excess of his approved sentence. No. ACM
S32463, 2018 CCA LEXIS 384 (A.F. Ct. Crim. App. 14 Aug. 2018) (unpub.
op.), rev. denied, 78 M.J. 210 (C.A.A.F. 2018). Appellant asks us to apply the
reasoning in Parris to grant him relief by setting aside the reduction in
grade.
    In response to Appellant’s pretrial confinement claim, the Government
cites United States v. Haynes, by our superior court, the United States Court
of Appeals for the Armed Forces (CAAF), for the proposition that when the
military judge directly asked appellant’s trial defense counsel “if he agreed
with the proposed amount of confinement credit and defense counsel express-
ly indicated that he did,” CAAF concluded that trial defense counsel’s agree-
ment was “akin to a statement of ‘no objection,’” and therefore recognized it
as “an affirmative waiver.” 79 M.J. 17, 19 (C.A.A.F. 2019).
    We find both positions unpersuasive, but we start with the issue of waiv-
er, which we consider a question of law under a de novo standard of review.
See United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005).
    The Government’s reliance on Haynes is misplaced. Haynes dealt with an
appellant who sought appellate relief for purported double punishment for
his criminal acts. Haynes, 79 M.J. at 19. The CAAF found waiver because
when the military judge asked trial defense counsel whether based on the in-


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                   United States v. Smith, No. ACM 39596


formation on the charge sheet the accused was “to be credited with 107 days
of pretrial confinement credit,” trial defense counsel answered, “Yes, Your
Honor.” Id. The court explained that the appellant in Haynes “affirmatively
acknowledged that he was not entitled to any additional confinement credit.”
Id. The CAAF did not see this as “simply a case where defense counsel failed
to lodge an objection.” Id. Rather, the trial defense counsel’s actions in
Haynes amounted to an affirmative waiver, leading to the appellant ultimate-
ly requesting additional credit for the first time on appeal. Id. As opposed to
Haynes, Appellant here requested, and was granted, additional pretrial con-
finement credit at his court-martial.
    In Zarbatany, the CAAF found “the issue of meaningful relief [for an Arti-
cle 13, UCMJ, violation] must be reviewed” by this court, without reference to
any defense request or objection at trial, and returned the record to this court
for further Article 66(c), UCMJ, review. Id. at 177. Accordingly, we continue
with our analysis.
    We now move to Appellant’s position concerning Parris. We agree that
both cases are similar in certain aspects. In Parris, the military judge sen-
tenced the appellant to a “bad-conduct discharge, confinement for 210 days,
and reduction to the grade of E-1.” Parris, unpub. op. at *1. At the time of
sentencing, the appellant in Parris “had 246 days of pretrial confinement
credit—a result of 87 days spent in pretrial confinement and 159 days of
credit awarded for illegal pretrial confinement in violation of Article 13,
UCMJ.” Id. at *1–2. Because of a pretrial agreement, the “convening authori-
ty approved only 180 days of confinement but otherwise approved the ad-
judged sentence.” Id. at *1. Of those 246 days, 180 were credited against the
sentence to confinement. Id. at *2. However, the record did not show that the
military judge or the convening authority considered whether the excess cred-
it of 66 days should be applied against any other aspect of the adjudged sen-
tence “to ensure meaningful relief for the illegal pretrial confinement.” Id.
This court applied the 66-day Article 13 credit to disapprove the adjudged re-
duction in grade, similar to Appellant’s request in this case.
   However, there are significant differences between Appellant’s case and
Parris. The military judge awarded Appellant only 14 days of illegal pretrial
confinement credit, substantially less than the 66 uncredited days at issue in
Parris. In addition, in Parris we noted that the appellant was convicted of
nonviolent drug offenses, whereas Appellant was convicted of violently as-
saulting his fiancée, as well as obstructing justice and violating a no-contact
order many times over. Id.
   There is no question that Appellant was subjected to certain temporary
conditions of confinement that were significantly uncomfortable, as well as
more rigorous than necessary to secure his presence at trial. However, when

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                     United States v. Smith, No. ACM 39596


we consider these conditions and the additional 14 days of illegal pretrial
punishment credit that the military judge awarded as relief, we find further
relief would be disproportionate to the nature of the offenses, particularly the
harm suffered by AB at Appellant’s hands. The evidence showed Appellant,
in a drunken state, went to his fiancée’s house, grabbed and pulled her by her
hair, then continued assaulting her by pinning her against the wall by press-
ing his forearm against her shoulder blade. When we consider the record, in-
cluding sentencing evidence of multiple prior disciplinary actions for alcohol-
related misconduct that reflect adversely on Appellant’s rehabilitative poten-
tial, we find relief is not warranted.
B. Meaningful Opportunity for Clemency
    1. Additional Background
    On 5 November 2018, the staff judge advocate (SJA) sent the convening
authority the SJAR, which included a Report of Result of Trial (RRT) memo-
randum and personal data sheet. The SJA informed the convening authority
that pursuant to Article 60, UCMJ, 10 U.S.C. § 860, the convening authority
did “not have the authority to disapprove, commute, or suspend in whole or in
part the punitive discharge or adjudged confinement,” but he did “have the
authority to disapprove, commute, or suspend in whole or in part the reduc-
tion in rank.” The SJA recommended the convening “approve the sentence as
adjudged.”
    On 15 November 2018, Appellant, through counsel, filed a request for
clemency. In his clemency submission, Appellant informed the convening au-
thority that he had already served his time in confinement, that he had been
credited with 204 days of pretrial confinement credit, and that the 204 days
included the additional 14 days the military judge awarded Appellant due to
illegal confinement conditions. Appellant informed the convening authority
that he could provide meaningful relief in terms of setting aside or disapprov-
ing the reduction to the grade of E-1. Among other requests, 3 Appellant asked




3 Along with the relief Appellant requested as clemency, Appellant asked the conven-
ing authority to write a memorandum recommending the Secretary of the Air Force
(SECAF) give Appellant an administrative discharge rather than a punitive dis-
charge, and that the convening authority include in the memorandum that he would
have set aside the punitive discharge if he had the power to do so. There is no evi-
dence in the record or reason to believe that the convening authority wrote the letter
to the SECAF that Appellant requested, much less favored the outcome Appellant
sought.




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                     United States v. Smith, No. ACM 39596


the convening authority to reduce or set aside the adjudged reduction in
grade.
    On 16 November 2018, the SJA sent the convening authority an adden-
dum to the SJAR that addressed Appellant’s clemency submission. Specifical-
ly, the SJA explained that Rule for Courts-Martial (R.C.M.) 1107(b)(3)(A)(iii)
requires the convening authority to consider Appellant’s clemency submission
before taking action. The SJA summarized Appellant’s requests and recom-
mended the convening authority “approve the findings and sentence as ad-
judged.”
   On 20 November 2018, the SJA sent the convening authority a second ad-
dendum to the SJAR as the convening authority had taken action in this case
based on an erroneous RRT. The SJA’s recommendation remained the same. 4
On 24 November 2018 Appellant, again through counsel, filed a second re-
quest for clemency claiming that the SJA was incorrect in his advice that the
convening authority had no power to reduce the adjudged confinement be-
cause the adjudged confinement did not exceed six months. The SJA did not
respond to this point, and again informed the convening authority that he
had the power to reduce or disapprove the reduction in grade only.
   On 26 November 2018, the SJA sent the convening authority a third ad-
dendum to the SJAR. The SJA once again reiterated the requirements of
R.C.M. 1107(b)(3)(A)(iii) and summarized Appellant’s clemency request; how-
ever, he now conceded the advice in the previous SJARs that the convening
authority could not disapprove, commute, or suspend the adjudged six-month
term of confinement was erroneous. 5 Nevertheless, the SJA again recom-
mended that the convening authority approve the findings and sentence as
adjudged.
    On 28 November 2018, the convening authority took action and approved
the sentence as adjudged, thereby disapproving Appellant’s request to reduce
or set aside the adjudged reduction in grade.
    2. Law

4 The SJA does not explain in the second addendum what the erroneous entry was in
the Report of Result of Trial that caused a corrected one to be prepared. Additionally,
it does not address the conflict between the SJA’s advice to the convening authority
regarding his authority as to confinement and Appellant’s statement to the conven-
ing authority as to confinement.
5 See 10 U.S.C. § 860(c)(4)(A) (“[T]he convening authority . . . may not disapprove,
commute, or suspend in whole or in part an adjudged sentence of confinement for
more than six months . . . .” (Emphasis added).).




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                   United States v. Smith, No. ACM 39596


    We review post-trial processing issues de novo. United States v. Bakcsi, 64
M.J. 544, 544 (A.F. Ct. Crim. App. 2006) (citation omitted). In order to obtain
relief for an error in the clemency process, an appellant must make a “colora-
ble showing of possible prejudice.” United States v. Scalo, 60 M.J. 435, 436–
37 (C.A.A.F. 2005) (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)).
    Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶
8.2.1.4.3 (8 Dec. 2017), explains that
       [T]he Staff Judge Advocate . . . includes any pretrial confine-
       ment credit awarded to the accused on the Report of Result of
       Trial memorandum, along with the source of each portion of
       credit and total days of credit awarded (e.g., “310 days of con-
       finement credit based upon 10 days of credit for restriction tan-
       tamount to confinement, 100 days of credit for military pretrial
       confinement, and 200 days of administrative credit for illegal
       pretrial confinement.”)
    “Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2), requires the convening au-
thority to consider matters submitted by an accused before taking action on a
sentence.” United States v. Briscoe, 56 M.J. 903, 909 (A.F. Ct. Crim. App.
2002). “Appellate courts will not speculate on whether a convening authority
considered these materials.” Id. (citing United States v. Craig, 28 M.J. 321,
325 (C.M.A. 1989)). “This [c]ourt presumes a convening authority has done so
if the SJA prepared an addendum to the SJAR that (1) tells the convening
authority of the matters submitted, (2) advises the convening authority that
he or she must consider the matters, and (3) the addendum listed the at-
tachments, indicating they were actually provided.” Id. (citing United States
v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990)).
   3. Analysis
    On appeal, Appellant claims that while the RRT properly reflects his 204
days of pretrial confinement credit, the Government “failed to specify the por-
tion of the credit attributable to illegal pretrial confinement in accordance
with the applicable [Air Force Instruction (AFI) 51-201, Administration of
Military Justice (8 Dec. 2017)].” Specifically, Appellant argues that the SJA’s
advice to the convening authority was incomplete and misinformed the con-
vening authority about the nature of Appellant’s confinement. See AFI 51-
201, ¶ 8.2.1.4.3. As such, Appellant claims that this court should set aside the
reduction to the grade of E-1.
     We agree with Appellant that the SJAR did not discuss the significance of
the pretrial confinement credit awarded by the military judge. Additionally,
it is clear that even the corrected RRT, while referencing the 204 total days of


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                   United States v. Smith, No. ACM 39596


pretrial confinement credit, does not provide the source of each portion of
credit as required by the AFI. However, the convening authority did not take
action on the case based on just the original SJAR or the RRT. As such, that
does not end our analysis. Assuming arguendo that the attachment to the
SJAR of the RRT that failed to comply with AFI requirements was a cogniza-
ble error in the post-trial process, we do not find a colorable showing of possi-
ble prejudice to Appellant.
    Appellant had informed the convening authority that (1) he had already
served his confinement; (2) he had been credited with 204 days of pretrial
confinement credit; (3) the 204 days included the additional 14 days the mili-
tary judge awarded Appellant because of confinement conditions; and (4) the
convening authority could provide meaningful relief by setting aside or dis-
approving the reduction to the grade of E-1. Additionally, the SJA also agreed
in the SJAR and its addenda that the convening authority had the authority
to set aside or disapprove the reduction to the grade of E-1. More important-
ly, the SJA informed the convening authority on more than one occasion that
R.C.M. 1107 requires the convening authority to consider Appellant’s clemen-
cy submission before taking final action. Thus, Appellant’s clemency submis-
sion included a breakdown of the pretrial confinement credit, that Appellant
contends the SJA was required to include in the SJAR.
    Here we rely on the legal presumption that the convening authority con-
sidered Appellant’s request to provide meaningful relief in terms of setting
aside or disapproving the reduction to the grade of E-1. See Briscoe, 56 M.J.
at 909 (citation omitted). We rely on this presumption because, based on the
record, the SJA prepared an addendum to the SJAR which told the convening
authority of the matters submitted, advised the convening authority that he
must consider the matters, and the addendum listed the attachments, indi-
cating they were actually provided.
    Therefore, we find that while the RRT did not follow the AFI in particu-
larizing he confinement credit, Appellant was not denied consideration by the
convening authority of meaningful sentence relief for 14 days of illegal pre-
trial confinement in excess of his approved sentence as claimed. Accordingly,
Appellant has failed to demonstrate a colorable showing of possible prejudice.
Scalo, 60 M.J. at 436–37 (citation omitted).
C. Incomplete Convening Authority’s Action
   During the sentencing phase of Appellant’s trial, as stated above, Appel-
lant moved for appropriate relief for not receiving an evening meal on three
occasions, not receiving his medications on four occasions, and having to sleep
on a plastic chair with the lights on for two days. The military judge deter-
mined the conditions were more rigorous than necessary to ensure Appel-


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                     United States v. Smith, No. ACM 39596


lant’s presence for trial and determined such conditions constituted illegal
pretrial confinement under Article 13, UCMJ, and ordered an additional 14-
days credit against Appellant’s sentence to confinement. With the exception
of the RRT correctly stating that Appellant was awarded a total of 204 days
confinement credit, the 14 days illegal pretrial confinement credit was not
announced in the RRT nor the SJAR and its three addenda. Of significance,
the credit is omitted in the action of the convening authority and the court-
martial order.
    In United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006), the CAAF held
that if an appellant establishes a violation of Article 13, UCMJ, “then R.C.M.
305(k) provides him additional credit for each day of pretrial confinement
that involves an abuse of discretion or unusually harsh circumstances.”
Crawford, 62 M.J. at 414 (citations and internal quotation marks omitted).
Accordingly, when a military judge orders credit for illegal pretrial confine-
ment under R.C.M. 305(k), the credit shall be included in the convening au-
thority’s action. Rule for Courts-Martial (R.C.M.) 1107(f)(4)(F). “Because of
the importance of the convening authority’s action in the court-martial pro-
cess,” the CAAF requires it to be both “clear and unambiguous.” United
States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (footnote omitted). We may
instruct a convening authority to withdraw an incomplete, ambiguous, or er-
roneous action and substitute a corrected action. 6 R.C.M. 1107(g); see also
R.C.M. 1107(f)(2).
   The convening authority’s action was incomplete because it omitted the
credit ordered by the military judge for illegal pretrial punishment, as re-
quired by R.C.M. 1107(f)(4)(F). We order a corrected action that announces
the 14-days credit ordered by the military judge.
                                 III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED. The record of trial is returned to
The Judge Advocate General for remand to the convening authority to with-
draw the incomplete action, substitute a corrected action, and issue a correct-
ed court-martial order.



6 A “corrected action” ordered pursuant to R.C.M. 1107(g) is not a “new action,” and
unlike a new action, it does not require post-trial processing anew. See United States
v. Mendoza, 67 M.J. 53, 54 (C.A.A.F. 2008).




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                   United States v. Smith, No. ACM 39596


    Thereafter, the record of trial will be returned to this court for completion
of appellate review in accordance with Article 66, UCMJ.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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