UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600056

_________________________

UNITED STATES OF AMERICA

Appellee

v.

CODY L. BANNISTER

Seaman (E-3), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.

For Appellant: Commander Brian L. Mizer, JAGC, USN.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant Jetti L. Gibson, JAGC, USN.

_________________________

Decided 30 November 2016

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Before CAMPBELL, FULTON, and HUTCHISON, and Appellate Military 

Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

HUTCHISON, Judge:

A panel of members with enlisted representation sitting as a special 

court-martial convicted the appellant, contrary to his pleas, of one 

specification of violating a lawful general order1, two specifications of 

abusive sexual contact, and one specification of assault consummated 

 

1 Secretary of the Navy Instruction 5300.26D, “Department of the Navy (DON) 

Policy on Sexual Harassment” (3 Jan 2006).
2

by battery in violation of Articles 92, 120, and 128, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, and 928. The members 

sentenced the appellant to 45 days’ restriction and a bad-conduct 

discharge. The convening authority (CA) approved only the badconduct discharge. 

The appellant raises four assignments of error (AOE): 

(1) Is the evidence factually sufficient to prove appellant 

committed abusive sexual contact?

(2) Is a bad-conduct discharge an inappropriately severe 

sentence?

(3) During their deliberations on sentence, the members 

asked the military judge if “an alternate option of 

admin[strative] sep[aration] or O[ther ]T[han ]H[onorable] 

besides the B[ad ]C[onduct ]D[ischarge] listed” was an 

available sentencing option. Did the military judge err when 

he failed to inform the members of their power to recommend 

clemency and simply answered “no?”; and

(4) Is the appellant entitled to meaningful relief or remand 

for post-trial processing where his trial defense counsel 

erroneously informed the CA in matters submitted pursuant 

to R.C.M. 1105 that Article 60, UCMJ, restricted her ability 

to grant clemency and the appointed Staff Judge Advocate 

failed to submit an addendum to the CA correcting this 

error?

In addition, we specified the issue of whether the military judge 

erred when he instructed the members, “if based on your consideration 

of the evidence, you are firmly convinced that the accused is guilty of 

the crime charged, you must find him guilty. . . . [h]owever, if on the 

whole of the evidence, you are satisfied beyond a reasonable doubt of 

the truth of each and every element of an offense, then you should find 

the accused guilty of that offense.”2 

After careful consideration of the record of trial, the appellant’s 

assignments of error, and the pleadings of the parties, we find merit in 

the appellant’s fourth AOE, direct corrective action in our decretal 

 

2 Record at 257-58. Subsequent to specifying this issue, this court upheld 

identical instructional language in United States v. Rendon, __ M.J. __, No. 

201500408, 2016 CCA LEXIS 643, at *26 (N-M. Ct. Crim. App. 1 Nov 2016). We find, 

therefore, that this instruction was not erroneous. United States v. Clifton, 35 M.J. 

79, 81-82 (C.M.A. 1992). 
3

paragraph, and consequently, do not reach the remaining AOEs. See 

Art. 66 (c), UCMJ; United States v. Alexander, 63 M.J. 269, 274 

(C.A.A.F. 2006) (“[A] Court of Criminal Appeals may act only with 

respect to the findings and sentence as approved by the convening 

authority.”) (citation and internal quotation marks omitted).

I. BACKGROUND

The charges in this case all stem from the appellant’s interactions 

with Seaman Recruit (SR) ELC, while they were both students at 

Hospital Corpsman “A” School in Fort Sam Houston, Texas. They met 

at the beginning of April 2014 through a mutual friend, and the 

appellant eventually asked SR ELC out on a date. SR ELC declined 

the invitation and noticed a change in the way the appellant treated 

her. Thereafter, the appellant began calling her names like “slut” and 

“whore.”3

Between the end of April 2014 and July 2014, the appellant’s 

behavior included touching SR ELC: coming up behind and grabbing 

her right breast while she was returning to her barracks room;4

“slapp[ing] [ELC’s] butt” and cupping both of her breasts while 

standing around the “smoke pit;”5 “smack[ing] [ELC’s] butt” as she 

returned from the “smoke pit” to her barracks room;6 placing his hand 

on, and then moving it up, ELC’s thigh while seated in the computer 

lab;7 “flick[ing] [ELC’s] breast” in the computer lab after being told to 

stop;8 and “grabb[ing] [ELC’s] breast again” while she was standing in 

line at the Java Nook café.9 

The National Defense Authorization Act for Fiscal Year 201410

(FY14 NDAA) substantially changed the authority of CAs to take 

action on findings and sentences under Article 60, UCMJ. Under the 

changes, a CA can no longer, except for only the most minor offenses, 

dismiss any charge or specification or change any finding of guilty to a 

 

3 Record at 98.

4 Id. at 99.

5 Id. at 101.

6 Id. at 103.

7 Id. at 105.

8 Id. at 107.

9 Id. at 109.

10 Pub. L. No. 113-66, 127 Stat. 672 (2013). 
4

finding of guilty to a lesser included offense.11 In acting on sentences, 

CAs can no longer “disapprove, commute, or suspend in whole or in 

part an adjudged sentence of confinement for more than six months or 

a sentence of dismissal, dishonorable discharge, or bad conduct 

discharge” unless certain exceptions exist.12 The President signed the

FY14 NDAA on 26 December 2013, and the Article 60, UCMJ, changes 

became effective on 24 June 2014. The National Defense Authorization 

Act for Fiscal Year 2015 provided clarification for courts-martial 

involving offenses which straddled that effective date: 

With respect to the findings and sentence of a courtmartial that includes both a conviction for an offense 

committed before [24 June 2014] and a conviction for an 

offense committed on or after that effective date, the 

convening authority shall have the same authority to take 

action on such findings and sentence as was in effect on 

the day before such effective date[.]13

On 14 January 2016, the CA’s staff judge advocate (SJA), in 

apparent recognition of the inapplicability of the Article 60, UCMJ,

changes to the appellant’s offenses, correctly advised the CA that 

“action on the guilty findings or sentence is a matter within your 

discretion.”14 The Staff Judge Advocate’s Recommendation (SJAR) also

instructed the CA that she “must consider . . . any post-trial matters 

submitted by the defense.”15 In response to the SJAR, on 28 January 

2016, trial defense counsel submitted matters pursuant to RULE FOR

COURTS-MARTIAL (R.C.M.) 1105(b), MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.), erroneously stating that changes to Article 

60, UCMJ and RCM 1107 “have removed most, but not all of the 

Convening Authority’s discretion to grant clemency . . . . [h]owever, 

although these limitations restrict you from correcting the findings in 

this case based on a lack of factual sufficiency, you are still authorized 

to grant clemency in regards to some portions of the adjudged 

sentence.”16 Trial defense counsel asked the CA to disapprove the 

adjudged 45 days’ restriction. The SJA did not submit an addendum to 

 

11 Id. at 956.

12 Id. at 956-57. 

13 Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014). 

14 Staff Judge Advocate’s Recommendation at 1.

15 Id.

16 Trial Defense Counsel ltr Ser 5815 of 28 Jan 2016 at 1.
5

her recommendation, and on 16 February 2016 the CA granted the 

requested clemency and approved only the bad-conduct discharge. 

II. DISCUSSION

“Where there is error in post-trial processing and ‘some colorable 

showing of possible prejudice’ thereby, this court must either provide 

meaningful relief or remand for new post-trial processing.” United 

States v. Roller, 75 M.J. 659, 661 (N-M. Ct. Crim. App. 2016) (quoting

United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)) (additional 

citation omitted).

The appellant’s trial defense counsel provided a legally defective 

argument in his clemency submission by stating the CA had limited 

ability to act upon the findings and sentence due to recent 

amendments to Article 60, UCMJ.17 Since the appellant’s offenses 

“straddled” the effective date of the changes to Article 60, UCMJ, the 

CA had the unfettered ability to disapprove findings or grant relief in 

clemency. 

Our sister court recently upheld an airman’s convictions for 

offenses which occurred prior to the effective date for changes to 

Article 60, UCMJ—despite the fact that trial defense counsel 

submitted clemency erroneously conceding that the CA’s power was 

limited by the change in the law. United States v. Addison, No. 

S32287, 2016 CCA LEXIS 288, unpublished op. (A.F. Ct. Crim. App. 6 

May 2016). The Air Force Court of Criminal Appeals found no plain 

error in post-trial processing, reasoning that although trial defense 

counsel erroneously interpreted the FY14 NDAA changes to Article 60, 

UCMJ, he did not allege any legal errors, the SJAR correctly indicated 

no corrective action on the findings or sentence was required, and the 

SJAR and its addendum otherwise complied with the requirements of 

R.C.M. 1106(d)(4). Id. at *4-5. 

The Court of Appeals for the Armed Forces (CAAF) granted review 

on “whether appellant is entitled to new post-trial processing because 

 

17 The appellant does not raise as an assignment of error that his trial defense 

counsel was ineffective, but rather avers that the SJA should have submitted an 

addendum to her SJAR correcting trial defense counsel’s erroneous assertions 

regarding the CA’s post-trial authorities. We are not required to first find counsel 

ineffective to order new post-trial processing, even if the error might be in part due to

trial defense counsel. See, e.g. United States v. Fordyce, 69 M.J. 501, 504 (A. Ct. Crim. 

App. 2010) (en banc) (ordering new post-trial processing for trial defense counsel’s 

failure to inform her client of the post-trial right to request deferral or waiver of 

automatic forfeitures from the CA, without finding ineffective assistance of counsel).
6

the addendum to the staff judge advocate’s recommendation failed to 

correct an error in appellant’s clemency submission” and summarily 

set aside the Air Force court’s opinion, remanding the case for a new 

SJAR and CA’s action, with the appellant to “be represented by a new 

and conflict-free trial defense counsel.” United States v. Addison, 75 

M.J. 405 (C.A.A.F. 2016). 

The appellee urges us to distinguish the facts of this case from 

Addison, arguing that CAAF’s decision to remand Addison turned on 

the Addison SJA having submitted an addendum to his SJAR which 

did not comment on trial defense counsel’s inaccurate analysis of the 

CA’s Article 60 authority.18 That addendum SJAR, the government 

contends, had the effect of ratifying trial defense counsel’s 

misstatement of the law.19 Conversely, the SJA here did not submit 

any addendum to her SJAR and therefore did not ratify trial defense 

counsel’s error. 

We find no distinction between the Addison addendum SJAR that 

did not correct trial defense counsel’s misinterpretation of Article 60, 

UCMJ, and the lack of any such addendum in this case. Indeed, in 

both cases, while the SJARs correctly advised the respective CAs on 

their unfettered authority to act on the findings and sentence, they 

also instructed the CAs they were “required to consider” post-trial 

matters submitted by the defense.20 As a practical matter, the SJA 

placed the CA here in the same position as the Addison CA, requiring 

her to consider an uncorrected, affirmative misstatement of the law as 

to her authority to act on the findings and sentence. 

Having found error in the post-trial processing, we next test for 

prejudice and conclude that the appellant has made “some colorable 

showing of possible prejudice.” Wheelus, 49 M.J. at 289. Trial defense

counsel argued strenuously against a bad-conduct discharge in 

sentencing,21 and when questioned by the SJA regarding whether he 

had additional matters to present to the CA following submission of a 

statement by the victim, trial defense counsel reluctantly, albeit 

erroneously, conceded that he could not “really challenge the validity of 

the findings or BCD[.]”

22 Given trial defense counsel’s stated

 

18 Appellee’s Brief of 23 Sep 2016 at 33.

19 Id.

20 SJAR at 1.

21 Record at 331.

22 Trial Defense Counsel’s E-mail of 29 Jan 2016.
7

misunderstanding of the law and that the CA granted the only 

clemency requested by disapproving the adjudged restriction, we 

conclude the CA might have structured “an alternative form of 

clemency,” such as bad-conduct discharge relief or disapproval of

findings had trial defense counsel not misstated the CA’s Article 60, 

UCMJ, authority, and had that misstatement not gone uncorrected by 

the SJA.

III. CONCLUSION

The CA’s action is set aside. The record of trial is returned to the 

Judge Advocate General for remand to an appropriate CA for new posttrial processing with the appellant represented by conflict-free counsel. 

Senior Judge CAMPBELL and Judge FULTON concur.

For the Court

R.H. TROIDL

Clerk of Court