UNITED STATES, Appellee 

v. 

John B. CARY Jr., Airman First Class 

U.S. Air Force, Appellant 

No. 05-0403 

Crim. App. No. S30146 

United States Court of Appeals for the Armed Forces 

Argued October 20, 2005 

Decided January 12, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a 

separate opinion, concurring in the result. 

Counsel

For Appellant: Major Sandra K. Whittington (argued). 

 

 

For Appellee: Major Lane A. Thurgood (argued); Lieutenant 

Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer

(on brief); Major Kevin P. Stiens. 

 

 

 

 

Military Judge: David F. Brash 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Cary, No. 05-0403/AF 

2

Judge EFFRON delivered the opinion of the Court. 

At a special court-martial composed of a military judge 

sitting alone, Appellant was convicted, pursuant to his pleas, 

of dereliction of duty (two specifications), carnal knowledge, 

and obstruction of justice, in violation of Articles 92, 120, 

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 

892, 920, 934 (2000). He was sentenced to a bad-conduct 

discharge, confinement for six months, forfeiture of $500.00 pay 

per month for six months, and reduction to the lowest enlisted 

grade. The convening authority approved these results, and the 

United States Air Force Court of Criminal Appeals affirmed the 

findings and the sentence. United States v. Cary, 2005 CCA 

LEXIS 73; 2005 WL 486140 (A.F. Ct. Crim. App. Feb. 8, 2005). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER PRESENTING EVIDENCE TO THE MILITARY 

JUDGE THAT APPELLANT HAD PREVIOUSLY RECEIVED 

NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, 

UNIFORM CODE OF MILITARY JUSTICE, WAS PLAIN 

ERROR WHEN APPELLANT HAD NOT IN FACT EVER 

RECEIVED NONJUDICIAL PUNISHMENT UNDER 

ARTICLE 15. 

II. WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED 

INEFFECTIVE ASSISTANCE OF COUNSEL IN 

SENTENCING AND POST-TRIAL PROCESSING BY 

FAILING TO OBJECT TO THE REFERENCE TO 

NONJUDICIAL PUNISHMENT ON THE PERSONAL DATA 

SHEET. 

For the reasons set forth below, we affirm. 
United States v. Cary, No. 05-0403/AF 

3

I. BACKGROUND 

 Appellant was convicted of offenses pertaining to sexual 

activity with minor female dependents. Two of the offenses 

involved violating a base regulation against having under age 

dependents in his dormitory room; one offense pertained to 

sexual intercourse with one of the dependents, who was under the 

age of sixteen; and the third offense concerned obstruction of 

justice by asking one of the dependents to lie to investigators. 

 During the sentencing proceeding in this judge-alone trial, 

trial counsel provided the defense with a document that the 

prosecution intended to introduce, a personal data sheet 

summarizing Appellant’s service. The document was admitted 

without objection. In the midst of data summarizing Appellant’s 

personal records, the document contained the following entry: 

“NO. OF PREVIOUS ARTICLE 15 ACTIONS: 1.” See Article 15, UCMJ, 

10 U.S.C. § 815 (2000) (nonjudicial punishment). The entry did 

not describe the basis for or result of any nonjudicial 

punishment proceeding. Trial counsel specifically introduced 

two administrative records reflecting negatively on Appellant, 

but did not introduce any record of a nonjudicial punishment 

proceeding, nor did trial counsel refer to nonjudicial 

punishment in his sentencing argument or otherwise. The 

military judge made no mention of nonjudicial punishment. The 

reference to Article 15 on the personal data sheet appears to 
United States v. Cary, No. 05-0403/AF 

4

have been a clerical error, as neither party contends that 

Appellant ever received nonjudicial punishment. 

 Following the trial, the convening authority, upon 

recommendation of the staff judge advocate, approved the 

sentence as adjudged. See Article 60, UCMJ, 10 U.S.C. § 860 

(2000). Although the staff judge advocate’s recommendation 

referred to the attached personal data sheet, the recommendation 

described Appellant’s prior service as “satisfactory” and did 

not mention nonjudicial punishment. Prior to consideration by 

the convening authority, the staff judge advocate’s 

recommendation was served on defense counsel, who offered no 

objection. 

II. DISCUSSION 

 In the absence of objection in the circumstances of this 

case, we proceed under the “plain error” standard set forth in 

United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998). 

We must determine whether there was error, whether it was plain, 

and whether it materially prejudiced a substantial right of the 

accused. See United States v. Finster, 51 M.J. 185, 187 

(C.A.A.F. 1999). 

 To place this matter in context, we note that a commander 

has considerable discretion in deciding whether an offense is a 

minor offense subject to punishment under Article 15. See
United States v. Cary, No. 05-0403/AF 

5

Manual for Courts-Martial, United States pt. V, para. 1.e (2005 

ed.). Nonjudicial punishment can be used to cover a wide 

variety of offenses, ranging from an incidental infraction 

during initial training to a significant dereliction by a member 

of a command’s permanent party. See generally id. para. 1.d. A 

data entry listing the numeral “1” after “Article 15” -- without 

any reference to the nature of the offense or the type of 

punishment -- is not particularly informative. Military judges, 

staff judge advocates, and convening authorities know this, and 

it is highly unlikely that an official responsible for 

adjudicating or approving a sentence would focus on the term 

“Article 15” without seeking further information about the 

significance of the entry. 

 In that regard, it is noteworthy that trial counsel made no 

mention of the nonjudicial punishment, even though he 

specifically introduced records of less serious administrative 

actions. The staff judge advocate, who likewise did not refer 

to nonjudicial punishment, instead described Appellant’s service 

as satisfactory. In that context, although the error of 

introducing the personnel data sheet that contained the numeral 

“1” after “Article 15” may have been “plain,” Appellant has not 

demonstrated that the military judge or the convening authority 

considered this entry. 
United States v. Cary, No. 05-0403/AF 

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 In the present case, Appellant was charged with offenses 

for which he could have received the jurisdictional maximum at 

his special court-martial of one year of confinement. The 

adjudged and approved confinement was considerably less -- 180 

days. In that context, the absence of any reliance on the 

erroneous information by the prosecution or the staff judge 

advocate underscores the absence of any prejudice under the 

plain error test. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) 

(2000). 

 With respect to Appellant’s claim of ineffective assistance 

of counsel, an even higher standard of prejudice applies. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); United 

States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). In this guilty 

plea case, where the primary concern of the client would be on 

the sentence, defense counsel should have given careful 

attention to the evidence that would be introduced during 

sentencing. Assuming counsel was ineffective in not objecting 

to the data sheet with the incorrect entry, the defense must 

show that absent such error, there is a reasonable probability 

of a different result. United States v. Polk, 32 M.J. 150, 153 

(C.M.A. 1991). In view of our conclusion on the issue of 

prejudice under the plain error analysis, any deficiency here 

does not establish prejudice with respect to the issue of 

ineffective assistance of counsel. 
United States v. Cary, No. 05-0403/AF 

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III. CONCLUSION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed. 
United States v. Cary, No. 05-0403/AF 

 CRAWFORD, Judge (concurring in the result): 

 The plain error issue is not unique to military practice. 

The Rules for Courts-Martial (R.C.M.) are modeled after the 

Federal Rules of Criminal Procedure, and accordingly, we should 

follow the guidance provided by our superior court in applying 

or interpreting our rules. Specifically, we should apply 

Supreme Court precedent in determining whether we should correct 

an error not raised at trial. While I initially agreed with the 

“plain error” standard set forth in United States v. Powell, 49 

M.J. 460 (C.A.A.F. 1998), upon reflection, I have recognized my 

mistake and have since followed Supreme Court precedent. See,

e.g., United States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 

2000)(Crawford, C.J., concurring in the result). In Kho, I 

stated: 

I see no difference between an error that “materially 

prejudices . . . substantial rights” under Article 

59(a), Uniform Code of Military Justice, 10 U.S.C. § 

859(a), or an error that “affects substantial rights” 

under Fed. R. Crim. P. 52(b). As the Court in Johnson

[v. United States, 520 U.S. 461, 466-67 (1997)] 

indicated, an appellate court may “notice a forfeited 

error.” A finding or sentence “may not be held 

incorrect” “unless the error materially prejudices the 

substantial rights of the accused.” Thus, both prong 

four of Johnson and Article 59(a) instruct appellate 

courts as to when they may set aside the findings and 

sentence. The appellate court then analyzes whether 

the error was harmless. That is, it is possible to 

have an error that “materially prejudices . . . 

substantial rights,” such as a constitutional 

violation, i.e., a confession obtained in violation of 

the Fifth Amendment, but still affirm the conviction. 

I view the application of these four prongs to be the 
United States v. Cary, No. 05-0403/AF 

2

same, whether employed by a court of discretionary 

appeal or a court with mandatory review. 

Id. at 66. 

 Absent articulation of a legitimate military necessity or 

distinction, or a legislative or executive mandate to the 

contrary, this Court has a duty to follow Supreme Court 

precedent. Sadly, this is not an isolated incident where this 

Court has departed from the settled law of the Supreme Court 

when examining a constitutional right,1

 or when interpreting the 

 

1

 See, e.g., United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 

2005)(failed to follow federal precedent and instead held 

constitutional right to a mitigation specialist); United States 

v. Roberts, 59 M.J. 323 (C.A.A.F. 2005)(refused to follow 

Supreme Court’s standard of review for wrongful nondisclosure 

set out in cases such as Strickler v. Greene, 527 U.S. 263 

(1999)); United States v. Mapes, 59 M.J. 60 (C.A.A.F. 

2003)(failed to follow independent source rule set forth in 

Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385 

(1920)); United States v. Walters, 58 M.J. 391 (C.A.A.F. 

2003)(failed to allow a waiver of double jeopardy claim as 

provided in United States v. Tateo, 377 U.S. 463 (1964)); United 

States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003)(failed to require 

the showing of “infliction of punishment [as] a deliberate act 

intended to chastise or deter,” indicated in Wilson v. Seiter, 

501 U.S. 294, 300 (1991)); United States v. Redlinski, 58 M.J. 

117 (C.A.A.F. 2003)(failed to follow Henderson v. Morgan, 426 

U.S. 637 (1976), and Marshall v. Lonberger, 459 U.S. 422 

(1983)); United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 

2001)(refused to follow Supreme Court practice on double 

jeopardy and multiple punishment set forth in Blockburger v. 

United States, 284 U.S. 299 (1932)); United States v. Kelly, 45 

M.J. 259 (C.A.A.F. 1996)(failed to follow Supreme Court 

teachings on the right to counsel articulated in Nichols v.

United States, 511 U.S. 738 (1994), and Middendorf v. Henry, 425 

U.S. 25 (1976)); United States v. Manuel, 43 M.J. 282 (C.A.A.F. 

1995)(failed to follow California v. Trombetta, 467 U.S. 479 

(1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), with 

regard to the destruction of evidence); United States v. 
United States v. Cary, No. 05-0403/AF 

3

same or a similar statute.2 As I recently pointed out in United 

States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), the 

“specialized society” that we serve “is populated not only by 

the uniformed men and women who bravely serve our Nation, but by 

their spouses and children, all of whom have every right to 

expect a measured and rational application of law by trial and 

appellate courts.” Id. at 86-87 (Crawford, J., dissenting). 

Failure to follow Supreme Court precedent not only places the 

jurisprudence of this Court outside the judicial mainstream, but 

also undermines that specialized society’s respect for, and 

confidence in, the military justice system. 

This case should be affirmed because Appellant failed to 

establish that there was a plain error that affected his 

substantial rights. Furthermore, Appellant has failed to 

establish the error “seriously affect[ed] the fairness, 

integrity, or public reputation of [the] judicial proceedings” 

 

Kaliski, 37 M.J. 105 (C.M.A. 1993)(failed to follow independent 

source principle set forth in Silverthorne Lumber Co., Inc.). 

In the past, this Court has refused to follow Purkett v. Elem, 

514 U.S. 765 (1995), with respect to peremptory challenges. 

See, e.g., United States v. Hurn, 55 M.J. 446 (C.A.A.F. 2001); 

United States v. Chaney, 53 M.J. 383 (C.A.A.F. 2000). 

2

 See, e.g., United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003) 

(failed to follow Supreme Court precedent regarding specific 

performance of pretrial agreements, such as Santobello v. New 

York, 404 U.S. 257 (1971)); Cf. United States v. Mizgala, 61 

M.J. 122 (C.A.A.F. 2005)(contrasting Article 10, Uniform Code of 

Military Justice, 10 U.S.C. § 810 (2000), the Speedy Trial Act 

of 1974, Pub. L. No. 93-619, 88 Stat. 2076, and R.C.M. 707). 
United States v. Cary, No. 05-0403/AF 

4

in his case. Johnson, 520 U.S. at 467 (quotation marks and 

citations omitted).