U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600397
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UNITED STATES OF AMERICA
Appellee
v.
ARTHUR W. MILLER, JR.
Electronics Technician (Non-Nuclear, Submarine Navigation)
Second Class (E-5), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Major Robert D. Merrill, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, DC.
Staff Judge Advocate’s Recommendation: Commander James A.
Link, JAGC, USN.
For Appellant: Commander Robert D. Evans, Jr., JAGC, USN.
For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
USN; Captain Sean M. Monks, USMC.
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Decided 15 August 2017
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Before C AMPBELL , 1 F ULTON , and L OCHNER , Appellate Military
Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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1Former Senior Judge Campbell took final action in this case prior to detaching from
the court.
United States v. Miller, No. 201600397
PER CURIAM:
At an uncontested general court-martial, a military judge convicted the
appellant of committing sexual acts upon a child between 12 and 16 years old
and producing and viewing child pornography—violations of Articles 120b
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 930b and
934 (2012). The military judge sentenced the appellant to 18 months’
confinement, reduction to pay grade E-1, total forfeiture of pay and
allowances for 18 months, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged.
The appellant raises two assignments of error: (1) new post-trial
processing is required because the record does not prove that the staff judge
advocate’s recommendation (SJAR) and two SJAR addenda were served on
the appellant or his defense counsel, and (2) “the [c]ourt should enter an
order directing the government to redact the victim’s and her family’s
personally identifying information or it should otherwise limit public access
to the record and associated papers.”2 We conclude the findings and sentence
are correct in law and fact and that no error materially prejudicial to the
appellant’s substantial rights occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
1. SJAR Error
The appellant received the SJAR on 30 September 2016 and signed an
acknowledgement of service, with the subject line, “STAFF JUDGE
ADVOCATE’S RECOMMENDATION ICO UNITED STATES V. ETV2
ARTHUR W. MILLER, JR., USN.”3 On 28 October 2016, his trial defense
counsel, LT C, submitted a request for deferment of the adjudged and
automatic forfeitures and rank-reduction.
A first addendum to the SJAR, dated 8 November 2016, addressed the
victim’s legal counsel’s request to seal a page of the trial record’s allied
papers, and it advised the CA to order that page sealed. LT C received the
SJAR’s first addendum on 8 November 2016 and forwarded the document to
the appellant’s substitute defense counsel, LT P. In an email to both LT P
and the Deputy SJA, LT C explained, in part, “I’m just forwarding the revised
SJAR to [LT P] and roping him in, since he’s the active duty JAG detailed to
[the appellant] given that I’m [now] off active duty. Please include him on
future emails just in case I’m out or don’t get it right away.”4
2 Appellant’s Brief of 30 Jan 2017 at 17.
3 Government’s Motion to Attach of 22 Mar 2017, Appendix 4 at 5.
4 Id., Appendix 1 at 2.
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United States v. Miller, No. 201600397
On 18 November 2016, the Deputy SJA emailed LT P, “Today is the 10
day expiration for DC to comment on the correction and sealing of the
victim’s image as new matters ICO U.S. v. Miller. I am writing to confirm you
do not desire to comment on the military judge’s certificate of correction.”5 LT
P sent an email response on 21 November 2016, advising the Deputy SJA
that the appellant “does not object to the correction and sealing of portions of
the clemency request and SJAR. We don’t have any further comments.”6
Afterward, a second addendum to the SJAR explained to the CA that the
appellant had an opportunity and declined to comment on the “new matters”
raised in the first addendum.7
In taking action on the case, the CA noted:
Per the accused’s request on the record, a copy of the
[SJAR] was served on the accused’s detailed defense counsel on
30 September 2016 in accordance with [RULE FOR COURTS-
MARTIAL (R.C.M.) 1106(f), MANUAL FOR COURTS-MARTIAL,
UNITED STATES, (2012 ed.) and the Manual for Courts-Martial.
The defense counsel submitted a petition for clemency on 28
October 2016 requesting deferment of the adjudged and
automatic forfeitures and rank reduction until [CA]’s action. . .
.
[A] copy of the [SJAR] Addendum was served on defense
counsel on 8 November 2016. The [record of trial (ROT)] was
corrected on 9 November 2016 and a portion of the ROT was
placed under seal. No comments or objections were submitted
by defense counsel to the correction and sealing of the ROT
pursuant to R.C.M. 1106(f)(7). A copy of the Second [SJAR]
Addendum was served on defense counsel on 23 November
2016.8
2. Personal information in the record of trial
Only the victim’s initials appear on the charge sheet and throughout most
of the trial, but various portions of the record contain the victim’s full name,
the victim’s family member’s names, their address, and other phone and
social media details. A single document that included pictures of the victim
5 Id., Appendix 2 at 1.
6 Id.
7 SJAR, Second Addendum of 23 Nov 2016 at 1.
8 General Court-Martial Order No. 1-15 dated 23 Nov 2016 at 3.
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United States v. Miller, No. 201600397
was sealed—the subject of the victim’s legal counsel’s request for correction of
the authenticated record.
II. DISCUSSION
“A complete record of the proceeding and testimony must be prepared . . .
in each general court-martial case in which the sentence adjudged includes . .
. a discharge[.]” Article 54(c), UCMJ, 10 U.S.C. § 854(c). Completeness of a
record of trial is reviewed de novo. United States v. Henry, 53 M.J. 108, 110
(C.A.A.F. 2000).
“A complete record is defined as a verbatim transcript.” United States v.
Sewell, No. 201300432, 2014 CCA LEXIS 644, at *9-10 (N-M. Ct. Crim. App.
28 Aug 2014) (citations and internal quotation marks omitted). A “substantial
omission” renders a record “incomplete and raises a presumption of prejudice
that the Government must rebut;” but “[i]nsubstantial omissions . . . do not
raise a presumption of prejudice or affect that record’s characterization as a
complete one.” Henry, 53 M.J. at 111.
Pursuant to R.C.M. 1103(b)(3)(G), “[t]he post-trial recommendation of the
staff judge advocate or legal officer and proof of service on defense counsel in
accordance with R.C.M. 1106(f)(1)” must be attached to a record of trial. “The
method of service and the form of the proof of service are not prescribed and
may be by any appropriate means.” R.C.M. 1106(f)(7) Discussion.
Beyond the statements within the second addendum to the SJAR and the
CA’s action here, proof that the defense received the SJAR and both SJAR
addenda was not attached to the record as forwarded for appellate review.
The appellant’s signed SJAR service acknowledgement and the Deputy SJA’s
email correspondence on the SJAR addenda with the appellant’s two defense
counsel were provided in the government’s motion to attach—part of the
response to the appellant’s assignments of error. Yet, those attachments now
make clear that the appellant suffered no possible prejudice, as he was,
indeed, afforded opportunities to respond to the SJAR and its addenda.
Additionally, lack of the certificate of service was an insubstantial omission
in the verbatim transcript in this case. See United States v. Smith, 59 M.J.
604, 613 (N-M. Ct. Crim. App. 2003).
The appellant’s second assignment of error invites the same departure of
our judicial role that we have already recently considered and rejected. See
United States v. Helbert, No. 201600371, 2017 CCA LEXIS 205, at *4 (N-M.
Ct. Crim. App. 30 Mar 2017). We do so again as we agree with the
government that the “[a]ppellant identifies no mishandling of [personally
4
United States v. Miller, No. 201600397
identifiable information] that would require this [c]ourt to remand the
[r]ecord for redaction or order that the [entire r]ecord be sealed.”9
III. CONCLUSION
The findings and the sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
9 Appellee’s Brief of 31 Mar 2017 at 15.
5