UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DOUGLAS A. ALLEN IV
United States Army, Appellant
ARMY 20110584
Headquarters, 1st Sustainment Command (Theater)
Michael Hargis, Military Judge
Lieutenant Colonel Juan A. Pyfrom, Staff Judge Advocate
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Robert A. Feldmeier, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).
26 June 2012
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of wrongful possession of controlled
substances, one specification of wrongful possession with the intent distribute a
controlled substance, and one specification of wrongful use of a controlled
substance, all in violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for ten months, and reduction to
the grade of E-1. Pursuant to a pretrial agreement, the convening authority approved
only so much of the sentence as provided for a bad-conduct discharge, confinement
for 225 days, and reduction to the grade of E-1. The convening authority also
awarded appellant thirty days of confinement credit.
This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error to this court, both of which merit
discussion but no relief.
ALLEN—20110584
In his first assignment of error, appellant alleges he was prejudiced when the
staff judge advocate (SJA) failed to inform the convening authority, in his post-trial
recommendation (SJAR) and addendum, of the military judge’s recommendation for
clemency in appellant’s case.
Rule for Courts-Martial 1106(d)(3) requires that the SJA’s post-trial
recommendation (SJAR) inform the convening authority of “any recommendation for
clemency by the sentencing authority, made in conjunction with the announced
sentence.” When announcing the sentence in appellant’s case, the military judge
recommended the convening authority suspend any confinement in excess of five
months on the condition appellant satisfactorily complete an inpatient drug treatment
program. However, the SJAR and the addendum failed to advise the convening
authority of the military judge’s clemency recommendation. See Rule For Courts-
Martial [hereinafter R.C.M.] 1106(d)(3). Instead, both documents expressly stated
no clemency recommendation had been made by the military judge at trial.
Accordingly, we find the SJA’s failure to apprise the convening authority in the
SJAR of the military judge’s clemency recommendation was error. See R.C.M. 1106
(d)(3).
However, we hold that based on the evidence in the record, there is not “some
colorable showing of possible prejudice” due to this error. United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998). See United States v. Capers, 62 M.J. 268, 269–
270 (C.A.A.F. 2005). While both the SJAR and the Addendum failed to reflect the
military judge’s recommendation, the SJA verbally informed the convening authority
of the recommendation. In fact, in his post-trial affidavit submitted in response to
this allegation of error, the SJA maintains he and the convening authority “had a
very detailed discussion” regarding the military judge’s recommendation for
clemency in appellant’s case. Further, in his memorandum to the convening
authority, submitted pursuant to R.C.M. 1105/1106, appellant’s defense counsel
specifically mentioned the recommendation provided by the military judge. Thus,
we are convinced the convening authority was informed of the military judge’s
recommendation and considered it prior to taking action in appellant’s case.
Moreover, in his submission to the convening authority, appellant did not raise the
issue as an error but, instead, included the military judge’s recommendation as part
of the procedural history of his case. Therefore, appellant has failed to show
prejudice in this case. Wheelus, 49 M.J. at 289.
In his second assignment of error, appellant argues it is unclear from the
record of trial whether the convening authority reviewed all of appellant’s clemency
matters prior to taking action on his case. Specifically, appellant avers that because
the enclosures to his clemency matters were not included in the original record of
trial, this court cannot be confident the documents were reviewed by the convening
authority prior to action. We disagree.
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ALLEN—20110584
Under R.C.M. 1107(b)(3)(A)(iii), a convening authority must consider “[a]ny
matters submitted by the accused under R.C.M. 1105 or . . . 1106” prior to taking
action in a case. Here, Government Appellate Exhibit 1, the post-trial affidavits
submitted by the SJA and the chief of military justice in response to this allegation
of error, establish the convening authority reviewed all of appellant’s clemency
matters prior to taking action in appellant’s case. In his affidavit, the SJA provides,
“[w]hile the statements were not present in the record of trial, their omission must
have been the result of clerical error . . . . [t]he documents were provided to the
convening authority as enclosures to the 1105 matters [and were] reviewed by the
convening authority.” Similarly, the chief of military justice accounts, “[t]he post-
trial action included the complete 1105 submission, including the sworn statement
and memorandum for record, which are enclosed.”
The post-trial affidavits “now serve as the written instrument” establishing the
convening authority reviewed the enclosures to appellant’s post-trial clemency
submission. “As such, any error has been addressed and relief is not warranted.”
United States v. Bean, 2012 WL 831451, ARMY 20100362 (Army Ct. Crim. App. 6
Mar. 2012) (summ. disp.).
On consideration of the entire record and the briefs submitted by the parties,
we hold the findings of guilty and the sentence as approved by the convening
authority correct in law and fact. Accordingly, those findings of guilty and the
sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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