This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Chase T. MILLER,

Interior Communications Electrician Seaman

United States Navy, Appellee

No. 21-0222

Crim. App. No. 201900234

Argued December 8, 2021—Decided April 4, 2022

Military Judge: Roger E. Mattioli

For Appellant: Lieutenant Catherine M. Crochetiere, JAGC, 

USN (argued); Lieutenant Colonel Christopher G. Blosser, 

USMC, Major Kerry E. Friedewald, USMC, and Brian K. 

Keller, Esq. (on brief); Lieutenant Colonel Nicholas L. 

Gannon, USMC.

For Appellee: Lieutenant Megan E. Horst, JAGC, USN 

(argued).

Judge SPARKS delivered the opinion of the Court, in 

which Chief Judge OHLSON, Judge MAGGS, Judge 

HARDY, and Senior Judge CRAWFORD joined. 

_______________

Judge SPARKS delivered the opinion of the Court.

A military judge sitting as a special court-martial 

convicted Appellee, pursuant to his pleas, of one specification 

of violating a general order, three specifications of making a 

false official statement, and one specification of wrongful use 

of a controlled substance, in violation of Articles 92, 107, and 

112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 892, 907, 912a (2018). The military judge sentenced 

Appellee to confinement for twelve months, reduction to E-1, 

and a bad-conduct discharge. The military judge awarded 

Appellee 224 days of confinement credit: 201 of those days 

were for pretrial confinement and twenty-three days for 

nonjudicial punishment. The military judge subsequently 

awarded an additional fifteen days of credit and the 
United States v. Miller, No. 21-0222/NA

Opinion of the Court

2

convening authority approved the sentence subject to these 

additional fifteen days of credit. The United States NavyMarine Corps Court of Criminal Appeals set aside the 

convening authority’s action and the entry of judgment due to 

premature convening authority action. The Judge Advocate 

General of the Navy then certified the following issues 

pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) 

(2018):

I. Did the lower court err in finding the convening 

authority abused his discretion under R.C.M. 1109 by 

acting after Appellee submitted R.C.M. 1106 clemency 

matters but before the military judge issued his written 

post-trial ruling?

II. Did the lower court err in finding that the staff judge 

advocate’s review was uninformed under R.C.M. 1109 

where the review was completed after Appellee 

submitted R.C.M. 1106 clemency matters and review of 

the military judge’s post-trial ruling was not required 

under R.C.M. 1109?

III. Did the lower court err in finding that the post-action 

written ruling was a substantial omission where the 

ruling was not an R.C.M. 1106 matter and nothing in 

the new rules required the convening authority to 

consider the ruling prior to taking action under R.C.M. 

1109 even if included in the record of trial?

We answer all three certified questions in the affirmative.

Background

On May 8, 2019, Appellee’s court-martial adjourned, and 

the military judge signed the Statement of Trial Results. 

Appellee was then placed in a post-trial “protective custody” 

status in a civilian correctional facility for thirty-three days. 

On May 16, 2019, trial defense counsel discovered Appellee’s 

placement in post-trial “protective custody.” The next day,

trial defense counsel submitted written clemency and deferral 

requests to the convening authority. Neither clemency 

request raised Appellee’s post-trial “protective custody” 

status. 

On June 28, 2019, Appellee submitted a post-trial motion, 

in accordance with Rule for Courts-Martial (R.C.M.) 1104 

(2019 ed.), to the military judge alleging illegal post-trial 

confinement based on his post-trial placement in “protective 

custody.” On Tuesday, July 9, 2019, the military judge held 
United States v. Miller, No. 21-0222/NA

Opinion of the Court

3

an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018), session and 

heard the parties’ arguments on the motion. Following the 

arguments, the military judge stated he would “do [his] best 

to get a ruling out to the parties hopefully Thursday, Friday 

at the latest” but that he might just inform the parties of the 

decision and then follow up with written findings of fact and 

conclusions of law at another time. Two days later, the 

military judge corrected the original Statement of Trial 

Results by adding an additional fifteen days of confinement 

credit.

On July 24, 2019, after considering Appellee’s written 

clemency and deferral requests, the pretrial agreement, the 

original and corrected Statement of Trial Results, and 

consulting with the staff judge advocate, the convening 

authority approved the adjudged sentence. The convening 

authority’s action reflected 239 days of confinement credit, 

inclusive of the fifteen days of credit included in the corrected 

Statement of Trial Results. 

On July 31, 2019, the military judge issued a written 

ruling denying Appellee’s post-trial motion in regards to 

illegal post-trial confinement. The military judge found, sua 

sponte, that Appellee’s pretrial confinement conditions 

violated Article 13, UCMJ, 10 U.S.C. § 813 (2018), and 

awarded Appellee fifteen days of additional confinement 

credit, for a total of 239 days of credit.

On appeal, the United States Navy-Marine Corps Court of 

Criminal Appeals noted that the military judge’s post-trial 

ruling did not exist at the time the convening authority acted.

United States v. Miller, No. NMCCA 201900234, 2021 CCA 

LEXIS 59, at *3–6, 2021 WL 494852, at *2–3 (N-M. Ct. Crim. 

App. Feb. 10, 2021) (per curiam) (unpublished). The lower 

court determined that the military judge’s post-trial written 

ruling was a substantial omission from the record at the time 

of the convening authority’s action. Id. at *5–6, 2021 WL 

494852, at *3. The lower court found that as a result of this 

substantial omission from the record, the convening authority 

was deprived of the ability to review material within his 

discretion to consider, and thus to meaningfully exercise his 

clemency authority. Id. at *8, 2021 WL 494852, at *3. 

Further, because the military judge’s post-trial ruling did not 

exist, the staff judge advocate was unable to provide an 
United States v. Miller, No. 21-0222/NA

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4

informed recommendation to the convening authority. Id., 

2021 WL 494852, at *3. Therefore, the lower court set aside 

the convening authority’s action and the entry of judgment. 

Id. at *10, 2021 WL 494852, at *4.

Discussion

The third certified issue asks whether the lower court 

erred in finding that the absence of the military judge’s postaction written ruling was a substantial omission. As with all 

appellate issues, it is appropriate that we first resolve the 

appropriate framework of analysis.

“A complete record of the proceedings and testimony shall

be prepared . . . in each special court-martial case in which 

the sentence adjudged includes a bad-conduct discharge, 

confinement for more than six months, or forfeiture of pay for 

more than six months.” Article 54(c)(1)(B), UCMJ, 10 U.S.C. 

§ 854(c)(1)(B) (2018). “A substantial omission renders a record 

of trial incomplete and raises a presumption of prejudice that 

the [g]overnment must rebut.” United States v. Henry, 53 M.J. 

108, 111 (C.A.A.F. 2000) (citation omitted). Whether a record 

of trial is complete is a question of law we review de novo. 

United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014).

The charge and specifications were referred to trial after 

January 1, 2019; therefore, the R.C.M. that went into effect 

on January 1, 2019, were generally applicable to the post-trial 

processing of Appellee’s case. See Exec. Order No. 13,825, § 5, 

83 Fed. Reg. 9889, 9890 (Mar. 1, 2018). Under the old 

procedural rules, the convening authority action was the final 

stage before the record was forwarded to the appellate court. 

In general, R.C.M. 1104(b)(1)(A) (2016 ed.) required the 

government to “cause a copy of the record of trial to be served 

on the accused as soon as the record of trial is authenticated.” 

The accused, then, had a minimum of ten days for submission 

of clemency matters. R.C.M. 1105(c)(1) (2016 ed.). Only then 

could the convening authority take action. R.C.M. 1106(f)(5) 

(2016 ed.).

The President made substantial changes to post-trial 

processing with the 2019 R.C.M. (The relevant R.C.M. are 

summarized in the Appendix to this opinion.) Under the new 

procedural rules, an accused’s time line for submitting 

clemency matters begins when the sentence is announced, not 
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Opinion of the Court

5

when the record of trial is served on him or her, as the accused

now has ten days from the announcement of sentence to 

submit matters for convening authority review. R.C.M. 

1106(d)(1) (2019 ed.). The record of trial is no longer a trigger 

for the time line to submit post-trial matters by the accused. 

Instead, the only restrictions to the timing of the convening 

authority’s action, under the new rules, is that the convening 

authority consult with the staff judge advocate and consider 

any timely R.C.M. 1106 clemency matters. R.C.M. 1109(d)(2), 

(3) (2019 ed.).1 Any action by the convening authority must 

occur before entry of judgment by the military judge, R.C.M. 

1109(d)(3),2 1111(e)(2) (2019 ed.), and entry of judgment must 

occur before the court reporter certifies the record of trial, 

R.C.M. 1112(c)(1) (2019 ed.). The convening authority’s 

decision on action can occur before the record of trial is 

complete. Because the convening authority was not required 

to consider a complete record of trial, the nonexistence of the 

military judge’s post-trial ruling at the time the convening 

authority acted is more properly analyzed as a post-trial 

processing error than as a substantial omission from the 

record.

The standard of review for determining whether post-trial 

processing was properly completed is de novo. United States 

v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). R.C.M. 1104(b)(2)(B)

(2019 ed.) provides that either party may file a post-trial 

motion within five days of receiving the convening authority’s 

action to address an asserted error in the convening 

authority’s action. Trial defense counsel was served with a 

copy of the convening authority’s action on July 25, 2019, but 

made no motion alleging error within five days. An accused’s 

failure to file a post-trial motion within the allotted time 

forfeits his or her right to object to the accuracy of the 

 1 R.C.M. 1109(d) (2019 ed.) has an apparent codification error 

because it includes two paragraphs designated as paragraph “(3).” 

The first paragraph (3) addresses the convening authority’s 

“Consideration of matters,” while the second paragraph (3) 

addresses the “Timing” of the convening authority’s action. The 

instant citation refers to the first paragraph (d)(3) in R.C.M. 1109

(2019 ed.).

2 This citation refers to the second paragraph (d)(3) in R.C.M. 

1109 (2019 ed.).
United States v. Miller, No. 21-0222/NA

Opinion of the Court

6

convening authority’s decision on an action, absent plain 

error.3 Plain error occurs when (1) there is error, (2) the error 

is plain or obvious, and (3) the error results in material 

prejudice to a substantial right of the accused. United States 

v. McPherson, 81 M.J. 372, 377 (C.A.A.F. 2021). “To meet this 

burden in the context of a post-trial recommendation error, 

whether [the] error is preserved or is otherwise considered 

under the plain error doctrine, an [accused] must make ‘some 

colorable showing of possible prejudice.’ ” United States v. 

Scalo, 60 MJ. 435, 436–37 (C.A.A.F. 2005) (quoting Kho, 54 

M.J. at 65).

The first two certified issues question the lower court’s 

underlying finding that all substantive rulings of the military 

judge should exist before a staff judge advocate makes a 

recommendation and the convening authority takes action.

Miller, 2021 CCA LEXIS 59, at *8–9, 2021 WL 494852, at *3. 

“In determining whether to take action, or to decline taking 

action under [R.C.M. 1109], the convening authority shall 

consult with the staff judge advocate or legal advisor.” R.C.M. 

1109(d)(2) (2019 ed.). Before taking or declining to take action 

on the sentence, the convening authority shall consider 

matters timely submitted by the accused, and may consider, 

 3 Appellee contends that he had no “meaningful opportunity” to 

allege error in the convening authority’s action because the military 

judge issued the post-trial ruling the same day he entered 

judgment, “thereby initiating the appellate process.” 

Notwithstanding the written post-trial ruling still forthcoming, 

Appellee failed to object and did not move to correct the decision on 

action or entry of judgment. See R.C.M. 1104(b)(1)(F) (2019 ed.)

(permitting parties to file a post-trial motion alleging “error in the 

convening authority’s action under R.C.M. 1109 or 1110”); R.C.M. 

1104(b)(2)(B) (2019 ed.) (“A motion to correct an error in the action 

of the convening authority shall be filed within five days after the 

party receives the convening authority’s action.”). The convening 

authority acted on July 24, 2019, after the post-trial motion was 

litigated, and before the Entry of Judgment on July 31, 2019. 

Appellee had the facts at hand to allege error in the convening 

authority’s action based on his failure to consider the conditions of 

Appellee’s post-trial confinement. Under the facts of this case, 

Appellee’s failure to file a R.C.M. 1104(b)(2)(B) (2019 ed.) motion 

forfeited his right to object to the accuracy of the convening 

authority’s action, absent plain error.
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Opinion of the Court

7

inter alia, “[s]uch other matters as the convening authority

deems appropriate.” R.C.M. 1109(d)(3)(A), (B)(iv) (2019 ed.).

In United States v. Clear, 34 M.J. 129, 130 (C.M.A. 1992), 

after announcing the sentence, the military judge had 

recommended that the accused “be afforded an opportunity to 

earn conditional suspension of the discharge.” Id. The staff 

judge advocate failed to mention the military judge’s 

recommendation in his initial recommendation or in the 

addendum. Id. at 130–31. We held that it was generally plain 

error for the staff judge advocate to “fail to call the convening 

authority’s attention to a clemency recommendation made at 

the time of sentencing by the military judge who has adjudged 

the sentence.” Id. at 132.

Appellee contends “Clear is still important precedent 

despite the removal of a mandatory written staff judge 

recommendation under the Military Justice Act of 2016 

because it demonstrates how this Court has dealt with a 

simplification of the post-trial process before.” Appellee 

argues that staff judge advocates still have an implied duty 

to provide pertinent information to the convening authority.

We disagree. The recent amendments have made Clear

inapplicable because they have done away with the staff 

judge advocate’s review of the record and written 

recommendation. Here, the convening authority consulted 

with the staff judge advocate prior to taking action. R.C.M. 

1109(d)(2) (2019 ed.) places no requirement on the staff judge 

advocate to review the record, or wait for a completed record. 

The lower court erred in finding that the omission of the 

military judge’s post-trial written ruling rendered the staff 

judge advocate’s recommendation uninformed.

Relatedly, nothing in the new rules supports the lower 

court’s finding that all substantive rulings of the military 

judge should exist before a convening authority determines 

whether to take action. Miller, 2021 CCA LEXIS 59, at *9, 

2021 WL 494852, at *3. R.C.M. 1109(d)(2), (d)(3) (2019 ed.),

only requires the convening authority to consult with the staff 

judge advocate and consider Appellee’s R.C.M. 1106 clemency 

matters before deciding whether to act. The convening 

authority considered Appellee’s written clemency and 

deferral requests, neither of which raised the conditions of his 
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Opinion of the Court

8

custody, and the convening authority consulted with the staff 

judge advocate before taking action.

Appellee contends that the convening authority, even 

though he was not required to do so, elected to consider the 

record of trial before taking action, which is within his 

discretion to consider under R.C.M. 1109(d)(3)(B)(iv) (2019

ed.). Appellee is correct that it is within the convening 

authority’s discretion to consider “other matters” he deems 

appropriate. R.C.M. 1109(d)(3)(B)(iv) (2019 ed.). Here, the 

convening authority specified the other matters in the record 

he considered when acting: “Matters Considered[:] In taking 

this action, I have considered the pretrial agreement of 3 

April 2019, Statement of Trial Results of 8 May 2019 and 

correction thereto of 11 July 2019, and the two defense 

counsel letters of 17 May 2019.” The convening authority also 

noted that, “[u]pon review of the record” and “[a]fter carefully 

considering the record,” he denied Appellee’s requests for 

deferment and clemency. Appellee argues that these latter 

statements meant that the convening authority elected to 

consider the entire record, which should have included his 

post-trial motion and the military judge’s ruling thereon. We 

disagree. In context, the convening authority’s statements 

about reviewing “the record” refer to the portions of the record

listed as “Matters Considered” and no more.

Given the significant changes in the post-trial processing 

system that applied to Appellee’s case, we conclude that the 

convening authority’s action was not premature nor was the 

staff judge advocate’s recommendation uninformed. The 

record of trial is not required to be complete at this stage of 

post-trial processing. Appellee had the right to submit 

clemency matters, and the convening authority must, and 

did, consider the clemency matters. If Appellee wanted to 

ensure that the convening authority considered his post-trial 

confinement conditions, the appropriate place was to include

it in his clemency request or to have filed a post-trial motion 

within five days of receiving the convening authority’s action. 

He did not do so. Therefore, there is no error for us to correct.4

 4 Appellee also argues that the convening authority committed 

plain error when he approved fifteen days of confinement credit 

that the military judge had not yet awarded. Such a claim is outside 
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Opinion of the Court

9

Decision

We answer the three certified questions in the affirmative. 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed and the record of trial is 

returned to the Judge Advocate General of the Navy for 

remand to the Court of Criminal Appeals for further 

proceedings under Article 66, UCMJ, 10 U.S.C. § 866 (2018).

 

the scope of the certified issues. Nonetheless, whether or not the 

convening authority committed plain error, the error was not 

prejudicial because the convening authority’s action resulted in 

Appellee’s release from custody fifteen days early.
United States v. Miller, No. 21-0222/NA

Opinion of the Court

10

Appendix

Rules for Courts-Martial (2019 ed.)

Rules for 

Submitting 

Clemency 

Matters

R.C.M. 1106(d)(1): “General and special 

courts-martial. After a trial by general or 

special court-martial, the accused may 

submit matters to the convening authority 

under this rule within ten days after the 

sentence is announced.”

R.C.M. 1106(d)(4)(A): “If, within the [tenday window], the accused shows that 

additional time is required for the accused 

to submit matters, the convening authority 

may, for good cause, extend the period for 

not more than 20 days.”

R.C.M. 1106(e)(1): “Failure to submit 

matters. Failure to submit matters within 

the time prescribed by this rule waives the 

right to submit such matters.”

Rules for 

When and 

How the 

Convening 

Authority

May Take 

Action

R.C.M. 1109(d)(2): “Legal advice. In 

determining whether to take action, or to 

decline taking action under this rule, the 

convening authority shall consult with the 

staff judge advocate or legal advisor.”

R.C.M. 1109(d)(3)(A): “Matters submitted 

by accused and crime victim. Before taking

or declining to take any action on the 

sentence under this rule, the convening 

authority shall consider matters timely 

submitted under R.C.M. 1106 and 1106A, 

if any, by the accused and any crime 

victim.” 

R.C.M. 1109(d)(3)(B): “Additional 

Matters. Before taking action the 

convening authority may consider—

(i) The Statement of Trial Results; 

(ii) The evidence introduced at the courtmartial, any appellate exhibits, and the 
United States v. Miller, No. 21-0222/NA

Opinion of the Court

11

recording or transcription of the 

proceedings . . . ; 

(iii) The personnel records of the accused; 

and

(iv) Such other matters as the convening

authority deems appropriate.” 

R.C.M. 1109(d)[4]: “Timing. . . . [A]ny 

action taken by the convening authority 

under this rule shall be taken prior to 

entry of judgment.”