United States v. Private First Class JOSHUA K. WILL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI, SIMS, and GALLAGHER Appellate Military Judges UNITED STATES, Appellee v. Private First Class JOSHUA K. WILL United States Army, Appellant ARMY 20100273 United States Army Military District of Washington Denise Lind, Military Judge Colonel Mark A. Rivest, Staff Judge Advocate (pretrial and recommendation) Colonel Corey L. Bradley, Staff Judge Advocate (addendum)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.

Jamison, JA; Major Laura R. Kesler, JA; Captain Matthew T. Grady, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Adam Kazin, JA; Major James A. Ewing, JA (on brief).

24 May 2011 ---------------------------------- SUMMARY DISPOSITION ---------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempting to distribute a controlled substance, failure to obey an order, false official statement, wrongful use of a controlled substance (four specifications), wrongful possession of a controlled substance, wrongful introduction of a controlled substance onto an installation used by the armed forces, and wrongful distribution of a controlled substance in violation of Articles 80, 92, 107, and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§880, 892, 907, and 912a [hereinafter UCMJ]. The military judge sentenced appellant to a bad- conduct discharge, confinement for thirty-three months, and reduction to the grade of E1. In accordance with a pretrial agreement, the convening authority approved only so much of the sentence as provided for confinement for sixteen months and a bad-conduct discharge and otherwise approved the adjudged sentence. This case is before us for review pursuant to Article 66, UCMJ.

Appellant claims that he is entitled to a new review and action because the staff judge advocate’s addendum raised a “new matter” under Rule for Courts-Martial [hereinafter R.C.M.] 1106(f)(7) that was not served on appellant prior to the convening authority’s initial action. Upon our review of the entire record, including those issues personally specified by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find that the staff judge advocate provided erroneous legal advice to the convening authority and provide relief in our decretal paragraph.

Appellant was sentenced at his general court-martial on 7 April 2009.

The staff judge advocate (SJA) submitted his recommendation to the convening authority on 30 April 2010. On 17 May 2010, appellant submitted his post-trial R.C.M. 1105/1106 response requesting the convening authority to “disapprove thirty (30) days of PFC Will’s confinement sentence and upgrade the characterization of his discharge to Other Than Honorable.”

The addendum to the staff judge advocate’s recommendation (SJAR), dated 21 July 2010, contained a footnote that provided two interpretations of appellant’s request. Appellant alleges that the contents of this footnote contained incorrect legal advice. We agree.

Our superior court has often noted an accused’s best chance for clemency rests with the convening authority. See United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). We find prejudicial error in the addendum to the SJAR. In this case the SJA mischaracterized appellant’s discharge request by stating that appellant requested a “General Discharge under Other than Honorable Conditions” rather than a discharge upgrade of “Other Than Honorable.” Army Reg. 635-200, Active Duty Enlisted Separation [hereinafter AR 635-200], para. 3-7 (6 June 2005) allows for three types of discharges, including honorable discharge, general discharge, and under other-than honorable-conditions discharge. The discharge referenced by the SJA is not one that is found in AR 635-200.

The SJA also cited AR 635-200, para. 3-8 (e), and gave inaccurate legal advice by stating that only Headquarters, Department of the Army (HQDA) could approve an other-than-honorable-conditions discharge under the facts of this case. Army Reg. 635-200 para. 3-8 (e) states that, “[w]hen the sole basis for separation is a serious offense that resulted in a conviction by a court-martial authorized to impose, but not imposing, a punitive discharge, the Soldier’s service may not be characterized as under other than honorable conditions unless such characterization is approved by HQDA (AHRC-EPR-F).” In this case, a punitive discharge was imposed by the court-martial, thus, this SJA provided incorrect and misleading advice to the convening authority.

This incorrect information was prejudicial to appellant and we hold that appellant has made a colorable showing of prejudice requiring a new SJAR and convening authority’s action.

Conclusion The convening authority’s initial action, dated 21 July 2010, is set aside. The record of trial is returned to the Judge Advocate General for a new SJAR and new initial action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court