This opinion is subject to administrative correction before final disposition.

Before TANG, LAWRENCE , and COGLEY Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v. Clayton R. CARMACK Lance Corporal (E

- 3 ), U.S. Marine Corps Appellant

No. 20 2000016

Decided: 8 June 2020
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge: Andrea C. Goode
Sentence adjudged 23 August 2019 by a special court

- martial convened at Marine Corps Base Camp Pendleton , California , consisting of a military judge sitting alone

. Sentence as reflected in the Entry of Judgment : reduc tion to E

- 1, confinement for five months, and a bad

conduct discharge.
For Appellant: Captain Kimberly D. Hinson , JAGC, USN
For Appellee: Brian K. Keller, Esq.

_________________________
This opinion does not serve as binding prece dent under NMCCA Rule of Appellate Procedure 30.2 (a)

.United States v. Carmack , NMCCA No. 202000016 O pinion of the Court

2 _________________________

PER CURIAM : After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to A ppellant’s substantial rights occurred. Articles 59
, 66, Uniform Code of Military Justice [UCMJ] , 10 U.S.C. §§ 859, 866 (2019)

. However, we note that the Entry of Judgment does not accurately reflect the sentence , in that it erroneously omitted the adjudged reduction in rank to E

- 1 , which was announced on the record and included in the Statement of Trial Results

. We find no evidence of modification by reason of any post

- trial action by the convening authority or any ruling, order, or other determination by the military judge. See Article 60c(a)(1)(B), UCMJ

. Hence, we conclude the discrepancy is a scrivener’s error and ultra vires

. Althoug h we find no prejudice, A ppellant is entitled to have court

- martial reco rds that correctly reflect the content of his proceeding. United States v. Crumpley , 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998). In accordance with Rule f or Courts

- Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the r ecord.
T he findings and sentence are AFFIRMED

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Cour tUnited States v. Carmack , NMCCA No. 202000016 M odified Entry of Judgment

1 UNITED STATES



### v.
Clayton R. CARMACK Lance Corporal (E

- 3 ) U.S. Marine Corps
Accused NMCCA NO. 202000016



### ENTRY OF JUDGMENT

As Modified on Appeal

8 June 2020

On 23 August 2019, t he Accused was tried at Marine Corps Base Camp Pendleton, California, by a special court

- martial , consisting of a military judge sitting alone. Military Judge Andrea C. Goode presid ed

.



### FINDINGS

The following are the Ac cused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:

Charge I: Violation of Article 128 , Uniform Code of Military Justice, 10 U.S.C. § 928

. Plea: Guilty. Finding: Guilty

. Specification 1: Assault Consummated by a Battery on or about 22 April 2018

. Plea: Guilty. Finding: Guilty.
Specification 2: Simple Assault on or about 22 April 2018

. Plea: Not Guilty. Finding: Dismissed

.United States v. Carmack , NMCCA No. 202000016 M odified Entry of Judgment

2 Specification 3: Assault Consummated by a Battery on or about 22 April 20 18

. Plea: Guilty By Exceptions and Substitutions

. * Finding: Guilty By Exceptions and Substitutions

. *

* GUILTY, except for the words, “commit an assault on

E.M.L. by putting his hands on her neck and applying pressure, with a means or force likely to produce death or grievous bodily harm, to wit: by applying pressure to her neck with his hands” substituting therefor the words “unlawfully push E.M.L. on her neck with his hand”; of the excepted words, NOT GUILTY, of the substituted words, GUILTY, of the Specifi cation as excepted and substituted, GUILTY.
Specification 4: Aggravated Assault on or about 22 April 2018

. Plea: Not Guilty. Finding: Dismissed

.
Charge II : Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
Plea: N ot Guilty. Finding: Dismissed

. Specification: Obstruction of Justice between on or about 22 April 2018 and 31 July 2018

. Plea: Not Guilty

. Finding: Dismissed

.



### SENTENCE

On 23 August 2019, the military judge sente nced the Accused to the following: Reduction to pay grade E

- 1.
Confinement for five months.
A bad

- conduct discharge.United States v. Carmack , NMCCA No. 202000016 M odified Entry of Judgment

3 FOR THE COURT:

RODGER A. DREW, JR. Clerk of Cour t