UNITED STATES NMCCA N o . 201 900111 Appellee
Panel 2



### v.

Lamaont A. M C CLARY ORDER Lance Corporal (E

- 3 )
U. S. Marine Corps R emanding Case for Appellant New Post

- Trial Processing

At a special court

- martial, the Appellant was convicted of violating Article s 112a and 134

, Uniform Code of Military Justice, 10 U.S.C. §§ 91 2 a and 9 34

. Pursuant to a plea agreement with the convening authority, he entered pleas of guilty. He was sentenced to reduction to paygrade E

- 1, confinement for 12
month s , and a bad

- conduct discharge. As required in the plea agreement, the convening authority suspended a ll confinement over six months.

Although the charge sheet did not reflect any form of pretrial restraint, the Appellant was, in fact, ordered in to pretria l restriction on 16 November 2018. While subject to pretrial restriction, o n or about 3 January 2019, the Appellant

was issued nonjudicial punishment and was ordered to be restricted. Because the trial counsel omitted any reference to pretrial restriction on the chargesheet, the military judge was unaware of the Appellant’s restriction status until he encountered the following term in Part II of the plea agreement, Appellate Exhibit III: “One day of confinement credit will be granted for every two days of pretrial restriction served.”

The military judge failed to calculate how many days of pretrial restriction the Appellant served. Neither the record of trial, the Statement of Trial Results, the Staff Judge Advocate Review, the Convening Authority A ction, nor the Entry of Judgment indicates the number of days of confinement credit to which the Appellant was entitled and had been awarded

. The military judge and convening authority abdicated their duty to calculate the number of days of confinement credit due to the Appell ant and apparently deferred this legal determination to the staff of the military confinement facility. The Appellant
was released from confinement on 12 June 2018.

Furthermore, we note that the Entry of Judgment does not accurately reflect the findings. T he Entry of Judgment reflects that Charge I I and its sole Specification were withdrawn. Pursuant to the plea agreement, the parties agreed the convening authority would withdraw Charge II and its S pecificationafter the military judge accepted the Appellant’s pleas of guilty, and that Charge II and its S pecification would be dismissed without prejudice upon announcement of sentence, with such dismissal to ripen into dismissal with prejudice upon completion of appellate review in which the findings and sentence have been upheld. 1 However, the Entry of Judgment mer ely reflects that the charge and specification were withdrawn.

Accordingly, it is, by the Court, this 30 th day of September 2019,

ORDERED:

1. That the Statement of Trial Results is SET ASIDE

.
2. That the Convening Authority Action is SET ASIDE

.
3 . That the Entry of Judgment is SET ASIDE

.

4. That the record is returned to the Judge Advocate General for remand to
the Navy

- Marine Corps Chief Trial Judge to detail a military judge to re accomplish the Statement of Trial Results in compliance with R ULE F OR C O URTS

M ARTIAL (R.C.M.) 110 1

, M ANUAL F OR C OURTS

- M ARTIAL
, U NITED S TATES (201 9 ed.)

, to indicate the specific number of days of confinement credit. Next, t he
record will be forwarded to the convening authority to reaccomplish the Convening Authority Actio n in compliance with R.C.M. 1109 consistent with this
Order

. Thereafter the record will be forwarded to the military judge to reaccomplish the Entry of Judgment in accordance with R.C.M. 1111 . Finally, the record will be returned to this Court for completion of appellate review.

FOR THE COURT:

RODGER A. DREW, JR.
Clerk of Court

Copy to:
NMC CA (51 .2 ) 45 ( CDR Federico )

46

02

1 Appellate Exhibit II at 4.