UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, BERG, and YOB
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JOSHUA D. PROCTOR
United States Army, Appellant
ARMY 20100289
Seventh U.S. Army Joint Multi-National Training Command
Christopher T. Fredrikson, Military Judge
Lieutenant Colonel Frank A. Vila, Staff Judge Advocate (advice and
recommendation)
Major Jerrett W. Dunlap, Acting Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Jonathan Potter, JA; Captain Kristen McGrory,
JA (on brief).
For Appellee: Major Amber Williams, JA; Major LaJohnne A. White, JA; Lieutenant
Colonel Paul J. Cucuzzella, JA (on brief).
7 December 2011
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SUMMARY DISPOSITION
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BERG, Judge:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of violating a lawful general regulation, physically controlling
a vehicle while impaired by marijuana, wrongful use of marijuana, wrongful
possession of marijuana, wrongful use of dextroamephetamine, wrongful possession
of destroamphetamine, wrongful distribution of 1-(3 chlorophenl)piperazine,
wrongful distribution of 1-(3 chlorophenl)piperazine, wrongful possession with
intent to distribute 1-(3 chlorophenl)piperazine, and wrongful possession of 1-
Pentyl-3-(1-Naphthoyl)indol, in violation of Articles 92, 111, 112a, and 134,
Uniformed Code of Military Justice, 10 U.S.C. §§ 892, 911, 912a and 934 (2008)
[hereinafter UCMJ]. The military judge sentenced appellant to be reduced to the
grade of Private (E1), confinement for twenty-seven months and a bad-conduct
discharge. A pretrial agreement between the convening authority and the appellant
limited confinement to twenty-four months. The convening authority approved only
PROCTOR – ARMY 20100289
so much of the adjudged sentence as extended to twenty-four months confinement,
and a bad-conduct discharge.
This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which merits discussion and relief. This
assignment of error notes an ambiguity in the addendum to the staff judge advocate’s
recommendation (SJAR). In paragraph 6 of the addendum, the acting staff judge
advocate (SJA) recommended disapproval of the adjudged reduction to the grade of
E-1, reasoning that it would be “duplicative” because appellant had already been
reduced to E-1 two days before trial commenced as a result of Article 15, UCMJ
punishment. In paragraph 7 of the Addendum the acting SJA stated that after
carefully considering appellant’s matters submitted under Rule for Court Martial
(RCM) 1105, clemency was warranted. Nonetheless, the acting SJA recommended
approval of the confinement to twenty-four months and the bad-conduct discharge,
i.e., no effective reduction in any component of the sentence. The convening
authority’s action approved the recommendation and directed that, except for the
bad-conduct discharge, it be executed.
DISCUSSION
The government invites us to construe the acting SJA’s recommendation and
the convening authority’s action disapproving the reduction to pay grade E-1 as a
kind of “clemency.” Alternatively, the government suggests that there may have
been the mere typographical omission of the word “no” before “clemency.”
Appellant contends he was prejudiced by the acting SJA’s misleading
recommendation and thereby deprived of a “fair look.”Appellant asks us to either
grant “clemency” by reducing appellant’s sentence to confinement only or remand
the case for a new recommendation and action.
We note that appellant sought reduction of his sentence to confinement to
twelve months and a setting aside of his punitive discharge but made no mention of
his pay grade in his RCM 1105 submissions. Even without the adjudged reduction to
E1, appellant would have remained at that grade because he had already been
reduced to that grade by virtue of the earlier Article 15, UCMJ, punishment. 1
The more rational course is to view the disapproval of the redundant reduction
to E1 as correction of a legal error, albeit a modest one. We reject the government
suggestion that this correction was clemency. “Clemency” is defined as:
1
Article 58a, UCMJ, 10 U.S.C. 858a, has no impact in this case because its
automatic, administrative reduction to E-1 applies only to an enlisted member “in a
pay grade above E-1” who has a sentence approved by the convening authority that
includes a punitive discharge or confinement.
2
PROCTOR – ARMY 20100289
1. A disposition to show mercy, especially toward an offender or enemy. See
Synonyms at mercy.
2. A merciful, kind, or lenient act. 2
Accord, United States v. Healy, 26 M.J. 394, 396 (C.M.A. 1988)
(“[C]onvening authority may grant mercy . . .”). We cannot reconcile the correction
of a minor legal error that has no significant impact on the sentence with the kind of
mercy contemplated in RCM 1105(b)(2)(D) or the unfettered discretion accorded the
convening authority to mitigate or disapprove a sentence under RCM 1107(d). We
are somewhat more persuaded that a typographical error occurred or the acting staff
judge advocate was confused in his characterization.
In response to appellant’s prayer for relief we reiterate that we are not a court
of clemency; Congress placed that authority fully in the hands of the convening
authority as a “command prerogative.” Healy, supra. Nor does it seem useful to set
aside the recommendation and action on this sort of post-trial error and return the
case for further action by a convening authority and staff judge advocate no longer
familiar with appellant. See RCM 1106(d)(6). The guidance of our higher court
suggests that we resolve this error by our discretionary authority under Article 66(c),
UCMJ, to affirm only that portion of the sentence that we find correct. 3
DECISION
The findings of guilty are affirmed. Reassessing the sentence on the basis of
the errors noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms only so much of the sentence as provides for
twenty-three months confinement and a bad-conduct discharge. We have also
considered the matters personally raised by the appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.
2
The American Heritage® Dictionary of the English Language, (4th Ed. 2010
Houghton Mifflin Harcourt Publishing Company).
3
Appellant’s claim of colorable prejudice is arguable insofar as he received the
benefit of his pretrial agreement and the convening authority had appellant’s
complete RCM 1105 matters before him before taking action but the threshold for
prejudice is also correspondingly low. United States v. Chatman, 46 M.J.321, 323-
24 (C.A.A.F. 1997).
3
PROCTOR – ARMY 20100289
Senior Judge Kern and Associate Judge Yob concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
4