## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class NICHOLAS E. WHITE United States Army, Appellant

ARMY 20140945

Headquarters, United States Ar my Japan & I Corps (Forward) Mark A. Bridges, Military Judge Colonel Alvin P. Wadsworth Jr., Staff Judge Advocate (pre-trial) Lieutenant Colonel Kent Herring, St aff Judge Advocate (post-trial)

For Appellant: Li eutenant Colonel Char les D. Lozano. JA; Captain Heather L. Tregle, JA; Captain Joshua G. Grubaugh, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Majo r Anne C. Hsieh, JA (on brief).

7 September 2016

---------------------------------- SUMMARY DISPOSITION

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HERRING, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of a ssault consummated by a battery and obstruction of justice, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2012) [herei nafter UCMJ]. The convening authority approved th e adjudged sentence of a bad-conduct discharge, confinement for three months, an d reduction to the grade of E-1.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises two assignments of er ror, one of which requires discussion but no relief. *
Appellant asserts the Sta ff Judge Advocate’s Recommendation (SJAR) was not

served on him or his defense counsel prior to the convening aut hority taking action on appellant’s case. Al though we do find this failure to be erro r, it does not warrant
relief under the facts of this case as appellant suffered no prejudice.

* The assignment of error personall y raised by appell ant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M .A. 1982), is wi thout merit.WHITE—ARMY 20140945

2 BACKGROUND

Appellant was sentenced on 12 December 2014. He was served with the

authenticated record of trial on 18 May 2015. The SJAR, which would normally accompany the authenticated record of trial, does not appear to ha ve been served in

this case at that time.

Defense counsel proceeded as if the SJAR had been prop erly served on appellant, and on 26 May 20 15, he requested an additional twenty days to submit clemency matters “and respond to the Staff Judge Advo cate’s recomme ndation.” Appellant’s case file contai ns no SJAR preceding this request for an extension. Despite this, appellant’s re quest was granted by the Staff Judge Advocate (SJA) and appellant filed his matters pursuant to Ru le for Courts-Martial [hereinafter R.C.M.]

1105 on 18 June 20 15. In addition to other cl emency matters, the submission included a request for a pos t-trial discharge pursuant to Army Reg. 635-200, Personnel Separations: Active Duty Enli sted Administrative Separations, Chapter 10 (6 June 2005)(rapid action revision 6 Sep. 2011). The submission did not contain any express reservation of the right to submit additional matters.

On 19 June 2015 the SJA signed the “SJAR.” There is no evidence in the

record of trial that the SJAR was ever served on appellant or his trial defense counsel. Further, given the sequence of events, there appare ntly was no addendum to the SJAR. The convening authority took action the sa me day, without giving appellant a chance to submit any addition al matters in respon se to the SJAR.

LAW

R.C.M. 1105(a) provides: “A fter a sentence is adjudg ed in any court-martial, the accused may submit matter s to the convening authority in accordance with this

rule.” R.C.M. 1105 (c)(1) further provides, “the accused may submit matters under this rule within the later of 10 days after a copy of the authenti cated record of trial or, if applicable, the recomme ndation of the staff judge ad vocate. . . .” However, R.C.M. 1105(d)(2) states: “[s]ubmission of any matters under th is rule shall be deemed a waiver of the right to submit additional matter s unless the right to submit

additional matters within the prescribed time limit s is expressly reserved in writing.” See e.g. United States v. Tauala , 75 M.J. __, 2016 CC A LEXIS 498, at *13-14 (Army Ct. Crim. App. 17 Aug. 2016).

Although the appellant shou ld have been served with the SJAR, the convening authority committed no error in taking action on 19 June 2015. Appellant waived the right to submit additional matters when he submitted matters on 18 June 2015 without expressly rese rving the right to su bmit additiona l matters.WHITE—ARMY 20140945

3 CONCLUSION

Finding no prejudice to th e appellant by fa iling to serve hi m with the SJAR, the findings and sentence as adjudged and approv ed by the convening authority are

AFFIRMED.

Senior Judge CAMPANELLA and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: