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

                             No. 201600056
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                        v.

                          CODY L. BANNISTER
                          Seaman (E-3), U.S. Navy
                                 Appellant
                          _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
      For Appellant: Commander Brian L. Mizer, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
           USN; Lieutenant Jetti L. Gibson, JAGC, USN.
                      _________________________

                        Decided 30 November 2016
                         _________________________

  Before C AMPBELL , FULTON, and HUTCHISON, and 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.
                       _________________________

HUTCHISON, Judge:

   A panel of members with enlisted representation sitting as a special
court-martial convicted the appellant, contrary to his pleas, of one
specification of violating a lawful general order1, two specifications of
abusive sexual contact, and one specification of assault consummated


   1  Secretary of the Navy Instruction 5300.26D, “Department of the Navy (DON)
Policy on Sexual Harassment” (3 Jan 2006).
by battery in violation of Articles 92, 120, and 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, and 928. The members
sentenced the appellant to 45 days’ restriction and a bad-conduct
discharge. The convening authority (CA) approved only the bad-
conduct discharge.
   The appellant raises four assignments of error (AOE):
   (1) Is the evidence factually sufficient to prove appellant
   committed abusive sexual contact?
   (2) Is a bad-conduct discharge an inappropriately severe
   sentence?
   (3) During their deliberations on sentence, the members
   asked the military judge if “an alternate option of
   admin[strative] sep[aration] or O[ther ]T[han ]H[onorable]
   besides the B[ad ]C[onduct ]D[ischarge] listed” was an
   available sentencing option. Did the military judge err when
   he failed to inform the members of their power to recommend
   clemency and simply answered “no?”; and
   (4) Is the appellant entitled to meaningful relief or remand
   for post-trial processing where his trial defense counsel
   erroneously informed the CA in matters submitted pursuant
   to R.C.M. 1105 that Article 60, UCMJ, restricted her ability
   to grant clemency and the appointed Staff Judge Advocate
   failed to submit an addendum to the CA correcting this
   error?
    In addition, we specified the issue of whether the military judge
erred when he instructed the members, “if based on your consideration
of the evidence, you are firmly convinced that the accused is guilty of
the crime charged, you must find him guilty. . . . [h]owever, if on the
whole of the evidence, you are satisfied beyond a reasonable doubt of
the truth of each and every element of an offense, then you should find
the accused guilty of that offense.”2
   After careful consideration of the record of trial, the appellant’s
assignments of error, and the pleadings of the parties, we find merit in
the appellant’s fourth AOE, direct corrective action in our decretal

   2  Record at 257-58. Subsequent to specifying this issue, this court upheld
identical instructional language in United States v. Rendon, __ M.J. __, No.
201500408, 2016 CCA LEXIS 643, at *26 (N-M. Ct. Crim. App. 1 Nov 2016). We find,
therefore, that this instruction was not erroneous. United States v. Clifton, 35 M.J.
79, 81-82 (C.M.A. 1992).


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paragraph, and consequently, do not reach the remaining AOEs. See
Art. 66 (c), UCMJ; United States v. Alexander, 63 M.J. 269, 274
(C.A.A.F. 2006) (“[A] Court of Criminal Appeals may act only with
respect to the findings and sentence as approved by the convening
authority.”) (citation and internal quotation marks omitted).
                                   I. BACKGROUND
   The charges in this case all stem from the appellant’s interactions
with Seaman Recruit (SR) ELC, while they were both students at
Hospital Corpsman “A” School in Fort Sam Houston, Texas. They met
at the beginning of April 2014 through a mutual friend, and the
appellant eventually asked SR ELC out on a date. SR ELC declined
the invitation and noticed a change in the way the appellant treated
her. Thereafter, the appellant began calling her names like “slut” and
“whore.”3
    Between the end of April 2014 and July 2014, the appellant’s
behavior included touching SR ELC: coming up behind and grabbing
her right breast while she was returning to her barracks room;4
“slapp[ing] [ELC’s] butt” and cupping both of her breasts while
standing around the “smoke pit;”5 “smack[ing] [ELC’s] butt” as she
returned from the “smoke pit” to her barracks room;6 placing his hand
on, and then moving it up, ELC’s thigh while seated in the computer
lab;7 “flick[ing] [ELC’s] breast” in the computer lab after being told to
stop;8 and “grabb[ing] [ELC’s] breast again” while she was standing in
line at the Java Nook café.9
   The National Defense Authorization Act for Fiscal Year 2014 10
(FY14 NDAA) substantially changed the authority of CAs to take
action on findings and sentences under Article 60, UCMJ. Under the
changes, a CA can no longer, except for only the most minor offenses,
dismiss any charge or specification or change any finding of guilty to a


   3   Record at 98.
   4   Id. at 99.
   5   Id. at 101.
   6   Id. at 103.
   7   Id. at 105.
   8   Id. at 107.
   9   Id. at 109.
   10   Pub. L. No. 113-66, 127 Stat. 672 (2013).


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finding of guilty to a lesser included offense.11 In acting on sentences,
CAs can no longer “disapprove, commute, or suspend in whole or in
part an adjudged sentence of confinement for more than six months or
a sentence of dismissal, dishonorable discharge, or bad conduct
discharge” unless certain exceptions exist.12 The President signed the
FY14 NDAA on 26 December 2013, and the Article 60, UCMJ, changes
became effective on 24 June 2014. The National Defense Authorization
Act for Fiscal Year 2015 provided clarification for courts-martial
involving offenses which straddled that effective date:
         With respect to the findings and sentence of a court-
         martial that includes both a conviction for an offense
         committed before [24 June 2014] and a conviction for an
         offense committed on or after that effective date, the
         convening authority shall have the same authority to take
         action on such findings and sentence as was in effect on
         the day before such effective date[.]13
   On 14 January 2016, the CA’s staff judge advocate (SJA), in
apparent recognition of the inapplicability of the Article 60, UCMJ,
changes to the appellant’s offenses, correctly advised the CA that
“action on the guilty findings or sentence is a matter within your
discretion.”14 The Staff Judge Advocate’s Recommendation (SJAR) also
instructed the CA that she “must consider . . . any post-trial matters
submitted by the defense.”15 In response to the SJAR, on 28 January
2016, trial defense counsel submitted matters pursuant to RULE FOR
COURTS-MARTIAL (R.C.M.) 1105(b), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.), erroneously stating that changes to Article
60, UCMJ and RCM 1107 “have removed most, but not all of the
Convening Authority’s discretion to grant clemency . . . . [h]owever,
although these limitations restrict you from correcting the findings in
this case based on a lack of factual sufficiency, you are still authorized
to grant clemency in regards to some portions of the adjudged
sentence.”16 Trial defense counsel asked the CA to disapprove the
adjudged 45 days’ restriction. The SJA did not submit an addendum to

   11   Id. at 956.
   12   Id. at 956-57.
   13   Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014).
   14   Staff Judge Advocate’s Recommendation at 1.
   15   Id.
   16   Trial Defense Counsel ltr Ser 5815 of 28 Jan 2016 at 1.


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her recommendation, and on 16 February 2016 the CA granted the
requested clemency and approved only the bad-conduct discharge.
                                  II. DISCUSSION
    “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. Roller, 75 M.J. 659, 661 (N-M. Ct. Crim. App. 2016) (quoting
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)) (additional
citation omitted).
    The appellant’s trial defense counsel provided a legally defective
argument in his clemency submission by stating the CA had limited
ability to act upon the findings and sentence due to recent
amendments to Article 60, UCMJ.17 Since the appellant’s offenses
“straddled” the effective date of the changes to Article 60, UCMJ, the
CA had the unfettered ability to disapprove findings or grant relief in
clemency.
    Our sister court recently upheld an airman’s convictions for
offenses which occurred prior to the effective date for changes to
Article 60, UCMJ—despite the fact that trial defense counsel
submitted clemency erroneously conceding that the CA’s power was
limited by the change in the law. United States v. Addison, No.
S32287, 2016 CCA LEXIS 288, unpublished op. (A.F. Ct. Crim. App. 6
May 2016). The Air Force Court of Criminal Appeals found no plain
error in post-trial processing, reasoning that although trial defense
counsel erroneously interpreted the FY14 NDAA changes to Article 60,
UCMJ, he did not allege any legal errors, the SJAR correctly indicated
no corrective action on the findings or sentence was required, and the
SJAR and its addendum otherwise complied with the requirements of
R.C.M. 1106(d)(4). Id. at *4-5.
   The Court of Appeals for the Armed Forces (CAAF) granted review
on “whether appellant is entitled to new post-trial processing because


    17 The appellant does not raise as an assignment of error that his trial defense
counsel was ineffective, but rather avers that the SJA should have submitted an
addendum to her SJAR correcting trial defense counsel’s erroneous assertions
regarding the CA’s post-trial authorities. We are not required to first find counsel
ineffective to order new post-trial processing, even if the error might be in part due to
trial defense counsel. See, e.g. United States v. Fordyce, 69 M.J. 501, 504 (A. Ct. Crim.
App. 2010) (en banc) (ordering new post-trial processing for trial defense counsel’s
failure to inform her client of the post-trial right to request deferral or waiver of
automatic forfeitures from the CA, without finding ineffective assistance of counsel).


                                           5
the addendum to the staff judge advocate’s recommendation failed to
correct an error in appellant’s clemency submission” and summarily
set aside the Air Force court’s opinion, remanding the case for a new
SJAR and CA’s action, with the appellant to “be represented by a new
and conflict-free trial defense counsel.” United States v. Addison, 75
M.J. 405 (C.A.A.F. 2016).
   The appellee urges us to distinguish the facts of this case from
Addison, arguing that CAAF’s decision to remand Addison turned on
the Addison SJA having submitted an addendum to his SJAR which
did not comment on trial defense counsel’s inaccurate analysis of the
CA’s Article 60 authority.18 That addendum SJAR, the government
contends, had the effect of ratifying trial defense counsel’s
misstatement of the law.19 Conversely, the SJA here did not submit
any addendum to her SJAR and therefore did not ratify trial defense
counsel’s error.
    We find no distinction between the Addison addendum SJAR that
did not correct trial defense counsel’s misinterpretation of Article 60,
UCMJ, and the lack of any such addendum in this case. Indeed, in
both cases, while the SJARs correctly advised the respective CAs on
their unfettered authority to act on the findings and sentence, they
also instructed the CAs they were “required to consider” post-trial
matters submitted by the defense.20 As a practical matter, the SJA
placed the CA here in the same position as the Addison CA, requiring
her to consider an uncorrected, affirmative misstatement of the law as
to her authority to act on the findings and sentence.
   Having found error in the post-trial processing, we next test for
prejudice and conclude that the appellant has made “some colorable
showing of possible prejudice.” Wheelus, 49 M.J. at 289. Trial defense
counsel argued strenuously against a bad-conduct discharge in
sentencing,21 and when questioned by the SJA regarding whether he
had additional matters to present to the CA following submission of a
statement by the victim, trial defense counsel reluctantly, albeit
erroneously, conceded that he could not “really challenge the validity of
the findings or BCD[.]”22 Given trial defense counsel’s stated

   18   Appellee’s Brief of 23 Sep 2016 at 33.
   19   Id.
   20   SJAR at 1.
   21 Record   at 331.
   22 Trial   Defense Counsel’s E-mail of 29 Jan 2016.


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misunderstanding of the law and that the CA granted the only
clemency requested by disapproving the adjudged restriction, we
conclude the CA might have structured “an alternative form of
clemency,” such as bad-conduct discharge relief or disapproval of
findings had trial defense counsel not misstated the CA’s Article 60,
UCMJ, authority, and had that misstatement not gone uncorrected by
the SJA.
                           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 with the appellant represented by conflict-free counsel.
   Senior Judge CAMPBELL and Judge FULTON concur.
                                    For the Court




                                    R.H. TROIDL
                                    Clerk of Court




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