## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

No. ACM S32426

_______ _______ __________

UNITED STATES Appellee

v.

Paul N. SMALL Staff Sergeant (E

- 5 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 6 March 2018

_______ _______ __________ Military Judge: Francisco Mendez

. Approved sentence: Bad

- con duct discharge, reduction to E

- 3 , and a reprimand. Sentence adjudged 26 May 2016 by SpCM convened at Joint
Base Andrews, Maryland

. For Appellant: Major Kevin R. Cayton, USAF ; Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Major Mary Ellen Payne, USAF; M ajor Meredith L. Steer , USAF; Gerald R. Bruce , Esquire

. Before JOHNSON, MINK, and DENNIS

, Appellate Military Judges

. Senior Judge JOHNSON del ivered the opinion of the c ourt, in which Judge MINK and Judge DENNIS joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Procedure 18.4.

_______ _______ __________United States v. Small , No. ACM S32426

2 JOHNSO N, Senior Judge:
A military judge found Appel l ant guilty, in accordance with his pleas, oftwo specifications of absenting himself from his place of duty, two specifications of failure to go to his place of duty, one specification of dereliction of duty, one specification of making a false official st atement, one specification of drunk driving, one specification of wrongful appropriation of nonmilitary property of a value of under $500.00 on divers occasions, one specification of disorderly conduct, and one specification of incapacitation for the perfo rmance of his duties due to previous overindulgence in alcohol or drugs, in violation of Article s 86, 92, 107, 111, 121 , and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 886, 892, 907, 911, 921 , 934. 1 A speci al court

- martial composed of officer members sentenced Appellant to a bad

- conduct discharge, reduction to the grade of E

- 2, restriction to Joint Base Andrews , Maryland for tw o months, and a reprimand. The c onvening authority approved only the bad

- conduct discharge, reduction to the g rade of E

- 3, and reprimand.
Appellant’s assignments of error enumerate the following issues for our consideration on appeal: (1) Whether Appellant was subjected to unlawful pretrial and post

- trial restraint in violation of Article 13, UCMJ, 10 U.S.C. § 813

, Rule for Courts

- Martial (R.C.M.) 304, and his constitutional rights, and whether the record of trial is complete; (2) Whether the court

- martial promulgating order (CMO) contains an incorrect summary of the charges; 2 and (3) Whether the military judge provided an improper sentencing instruction to thecourt members. We find no error materially prejudicial to Appellant’s substantial rights

, and we affirm the findings and sentence.

I. B ACKGROUND
Appellant served effectivel y in the emergency management career field until an acrimonious and protracted divorce led to financial and emotional difficulties that culminated in a series of financ e

- , alcohol

- , and absence

- related offenses. From March 2015 until August 2015, Appellant repeatedly misused

1 The wrongful appropriation was a lesser

- included offense of a specification alleging larceny of nonmilitary property of a value of under $500.00 on divers occasions in violation of Article 121, UCMJ, to which Appellant pleaded not guilty. The Government declined to proceed on the greater charge of larceny, and the military judge entered a finding of not guilty as to that offense.

2 Appellant notes the CMO misidentifies the location from which Appellant absented himself as alleged in Specification 1 of the Additional Charge as “building 2565” vice “building 3465,” as charged, and contends a new CMO is required. T he Government concurs, as do we. We direct corrective action in our decretal p aragraph, and the issue requires no fur ther discussion.United States v. Small , No. ACM S32426

3 his Government Travel Card (GTC), apparently to pay for rou tine personal expenses. When Appellant’s first sergeant later questioned him about these transactions, Appellant falsely claimed he had not seen his GTC since he last traveled f

or temporary duty in the spring of 2015.
In August 2015, Appellant was stopped by a civilian police officer whiledriving under the influence of alcohol. Although initially cooperative, Appellant became noncompliant, struggled briefly with the officer, and was placed in handcuffs. Appellant then spat on the hood of the officer’s car.
In September 2015, Appellant reported for duty

— specifically, to attend an Alcohol and Drug Abuse Prevention and Treatment Program appointment

— under the influence of alcohol. Ap pellant’s first sergeant took him first to security f orces and then to the medical group to have his blood dr awn. The first sergeant then took Appellant to Appellant’s work area and told him to remain there pending further instructions. However, s hortly th ereafter Appellant departed his work center and walked several miles to his off

- base residence, evading his superiors’ efforts to find him . Appellant’s command finally located him that evening at his residence.
On 15 January 2016, Appellant failed to report for duty, remaining at his residence and refusing to answer the door for a supervisor until the supervisorgained entry with the assistance of the apartment manager. After this incident, Appellant’s first sergeant , with authority delegated by Appell ant’s commander, issued Appellant a written order restricting him to Joint Base Andrews. Specifically, the order restricted Appellant to a particular dormitory room on the base until the conclusion of his pe nding court

- martial. T he order
included a number of exceptions, including: performing official duties; going to the dining facility for a meal; going to the base exchange or commissary; going to the base fitness center; obtaining medical care, including dental and mental health services; meeting with his defense counsel; attending religious services on base or meeting with a chap lain; and meeting with the in spector general.
The order further provided that other travel required approval from the first sergeant. The stated reason s for the order were “concer n for [Appellant’s] well

being” and “concern that [he] may engage in further criminal misconduct, to include the failure to appear at [his] trial.” The restriction was to last “until the conclusion of [Appellant’s] pending trial” unless Appellant was notif ied it was lifted or extended.

On both 11 and 12 February 2016, Appellant failed to report on time for hi s fitness assessment . Nevertheless , he was permitted to travel to New York for emergency leave from 8 to 24 March 2016 related to the terminal illness and
f uneral of his mother . Appellant returned from this leave on time and without
incident and remained under the restriction until his court

- martial 23

– 26 May
2016.United States v. Small , No. ACM S32426

4 The Defense filed a pretrial motion for appropriate relief requesting the military judge g rant some unspecified amount of credit against Appellant’s
sentence because of the pretrial restriction. The Government opposed the motion. The military judge issued a written ruling denying the motion on 23 May 2016, the first day of Appellant’s trial. Th e military judge concluded that the imposition of the restriction, contrary to the Defense ’s argument, was not aviolation of Appellant’s rights to due process, nor did it constitute illegal pretrial punishment, nor was Appellant entitled to administrative credit against his sentence for restriction short of physical restraint.

At trial, after ac cepting Appellant’s pleas but before seating the court members, the military judge explored with the Defense whether Appellant had been subjected to illegal pretrial punishment forbidden by Article 13, UCMJ. Trial defense co unsel affirmed that Appellant ha d not been so punished. Appellant agreed.
On 31 May 2016, five days after the conclusion of Appellant’s court

- martial

, trial defense counsel sent the convening authority a “Request for Speedy Post

trial Processing & Termination of Unlawful Post

- trial restr aint, and to Defer Reduction in Rank.” Therein, trial defense counsel asserted

, inter alia

, that Appellant was being unlawfully restricted to base pursuant to the adjudged
sentence becaus e that punishment had not yet been approved by the convening
authorit y. Therefore, Appellant requested day

- for

- day administrative credit for each day of restriction beginning 26 May 2016, the date his trial ended, through 31 May 2016, the date of his request, as well as two

- for

- one credit for any further days of restriction on or after 1 June 2016 until convening authority action . On 3 June 2016, the convening authority denied the request for relief from unlawful post

- trial restraint. The convening authority found Appellant “was not unlawfully restrained after the trial and there is no basis for this request.” 3
On 27 July 2016, pursuant to R.C.M. 1105, the Defense submitted matters for the convening authority’s consideration prior to taking action on the results of Appellant’s court

- martial. Trial defense counsel requested, i nter alia , thatAppellant “be given six days of credit for the restriction to his dorm room imposed by [Appellant’s] unit subsequent to the sentence.” However, trial defensecounsel acknowledged the convening authority’s “predecessor in command disagreed w ith my assertion that [Appellant] was restricted to his dorm room for six days after his trial .

. . .” Ultimately, the convening authority disapproved

3 The convening authority also denied Appellant’s request for deferment of his reduction in rank.United States v. Small , No. ACM S32426

5the entirety of Appellant’s adjudged restriction to base for 60 days, and approved a reduction in rank t o E

- 3 rather than E

- 2 “due to the member’s good duty performance while awaiting trial.”

II. D ISCUSSION

A. Pretrial and Post

- Trial Restraint
Appellant’s first assignment of error incorporates three distinct issues, which we address in turn: the completeness of the record; unlawful pretrial restraint; and unlawful post

- trial restraint.
1. Completeness of the Record
a. Additional Background
The military judge directed that his written ruling on the Defense’s motion for appropriate relief seeking sentence credit for Appellant’s pretrial restraint would be marked as Appellate Exhibit XIV. However, this 23 May 2016 ruling was missing from the original record of trial. Instead

, a duplicate copy of the military judge’s 14 March 2016 ruling on a request for continuance (al so inserted as Appellate Exhibit VII) was marked and inserted as Appellate Exhibit
XIV.
On 22 September 2017, the Government moved to attach a copy of the military judge’s 23 May 2016 ruling to the record of trial. This court granted the
motion on 2 Octob er 2017.

b. Law
A complete record of the proceedings and testimony shall be prepared in each special court

- martial where the adjudged sentence includes, inter alia , a bad

- conduct discharge. Article 54, UCMJ, 10 U.S.C. § 854. A complete record of trial inc ludes all appellate exhibits

, or an adequate substitute with the permission of the military judge. R.C.M. 1103(b)(2)(D)(v), (c)(1); United States v. Gaskins , 72 M.J. 225, 230 (C.A.A.F. 2013). However, neither Article 54, UCMJ, nor R.C.M. 1103 limits the di scretion of a court of criminal appeals to “remedy an error in compiling a complete record.” Gas k ins , 72 M.J. at 230. The proper completion of post

- trial processing and w hether an omission from a record of
trial is substantial are question s of law we review de novo. United States v. Stoffer , 53 M.J. 26, 27 (C.A.A.F. 2000) ; United States v. LeBlanc , 74 M.J. 650, 660 ( A.F. Ct. Crim. App. 2015) (citations omitted)

. c. Analysis

Because the missin g ruling has now been attached to the record of trial, the record includes all exhibits and is no longer incomplete. However, AppellantUnited States v. Small , No. ACM S32426

6 contends he remains unfairly prejudiced b y the error and his bad

- conduct discharge should be set aside . We disagree.
First, Appellant argues that

, because Appellate Exh ibit XIV was missingfrom the record of trial when the convening authority took action, the convening authority was denied the opportunity to consider the entire record in accordance with R.C.M. 1107(b)(3)(B). Appellant acknowledges, however, that
the conv ening authority is not required to consider the record of trial, much less every appellate exhibit therein . Moreover, both the Defense motion for appropriate relief and the Government response were included in the record of trial, and the transcript of the proceedings makes clear the military judge denied the motion. Therefore, the substance of Appellant’s motion , the Government response, and the fact that the military judge denied the motion were all available to the convening authority. Furthermore, in contrast to Appellant’s alleged post

- trial restriction, the Defense clemency submission to the convening authority did not challenge the lawfulness of his pretrial restriction , whic h was the subject of the missing ruling . Appellant fails to explain how either his clemency submission or the convening authority’s action might have been anydifferent had the erroneous omission of the military judge’s ruling not occurred.

Second

, Appella nt argues that the delay in adding the military judge’ s ruling to the record unfairly limited the time available to the Defense to review, research, and analyze the ruling to prepare his appeal. Appellant contends this placed him at a disadvantage with res pect to the Government, which was responsible for creating a complete record. The court received Appellant’s reply brief on 4 October 2017, 12 days after the Government provided the missing exhibit. The ruling is only five pages long. Moreover, the Defense motion andGovernment response were included in the record and address the same evidence and issues. We are confident that Appellant has had an adequate opportunity to prepare the issue and that our ability to fully consider the issue has
not been adverse ly affected. Accordingly, we deny Appellant’s request to set
aside the bad

- conduct discharge on this basis.

2. Pretrial Restraint

a. Law
We review de novo the question of whether an appellant is entitled to credit for a violation of Article 13, UCMJ. Unit ed States v. Fischer , 61 M.J. 415, 418 (C.A.A.F. 2005) (citing United States v. Mosby , 56 M.J. 309, 310 (C.A.A.F. 2002) ) . “Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pre trial con finement that are more rigorous than necessary to ensure the ac cused’s presence for trial.” United States v. King , 61 M.J. 225, 227 (C.A.A.F. 2005).United States v. Small , No. ACM S32426

7 R.C.M . 304(a) identifies various form s of pretrial restraint that may lawfully be imposed on a member’s liberty before and during disposition of court

martial offenses. One authorized form of pretrial restraint is “restriction in lieuof arrest” by “oral or written orders directing the person to remain within specified l imits.” R.C.M. 304(a)(2). Any commissioned officer may order the pretrial restraint of an enlisted member, and a commanding officer may delegate such authority to noncommissioned officers within the officer’s command. R.C.M. 304(b)(2 )

– (3). Such restraint m ay be ordered when there is probable cause

— that is, a reasonable belief

— that an offense triable by court

- martial has beencommitted, that the person restrained committed it, and that the restraint ordered is required by the circumstances. R.C.M. 304( c ). Pr etrial restraint other than confinement is imposed by notifying the member orally or in writing of the restraint and its terms and limits. R.C.M. 304(d). Pretrial restraint lasts until the person is released by someone authorized to impose the restraint, a sentence is adjudged, the accused is acquitted of all charges, or all charges are dismissed. R.C.M. 304(g).
b. Analysis
Appellant advances several theories as to why his pretrial restraint entitles him to sentence relief. We find none of them persuasive.
First, Appellant argue s that his re s triction to his quarters and certain other locations on base amounted to illegal pretrial punishment in violation of Article 13, UCMJ . He compares the terms of his restriction to the form of restriction that may be imp osed on members as a result of nonjudicial punishment proceedings. See Manual for Courts

- Martial , United States (2016 ed.), p t V, ¶ 5.c.(2). He further contends the excessive nature of the restriction indicate s an intent to punish him

. N otwithstanding the availability of restriction as a nonjudicial punishment under Article 15, UCMJ, R.C.M. 304 plainly authorizes

non

- punitive use of restriction as a form of pretrial restraint

. See R.C.M. 304(f) (“Pretrial restra int is not punishment .

. . .”) Furthermore, in light of Appellant’s history of alcohol

- related offenses, unauthorized absence from duty, and evasion of contact with his superiors while so absent , the first sergeant’s testimony regarding the purpose of the restriction, as well as the terms and implem entation of the restriction itself, we are satisfied Appellant’s command did not intend it as a punishment

, but as a necessary means to control Appellant’s
misbehavior and ensure his presence for duty

. See United States v. Palmiter

, 20 M.J. 90, 95 (C.M.A. 1985) (“[W]e must look to the intent behind the imposition of the condition to resolve the punishment inquiry.”)
Second, Appellant contends the restriction failed to comply with R.C.M. 304 itself because it was not “required by the circumstances.” R.C.M. 3 04(c)(3). As described above, lawful pretrial restriction requires, inter alia , probable cause,United States v. Small , No. ACM S32426

8that is, a “reasonable belief” on the part of the individual imposing the res triction that the restraint ordered is required by the circumstances. Id. Based

on the record before us, we are satisfied the first sergeant had such a reasonable belief. Appellant argues the fact that his 8

– 24 March 2016 release from
restriction was unmarred by additional misconduct and the convening authority ’s approval of a reduction only to E

- 3 rather than E

- 2 in recognition of his“good duty performance while awaiting trial” indicate his restriction was unnecessary and excessive. However, the fact that Appellant’s behavior from the imposition of the restraint until his trial was larg ely, although not entirely, free of additional misconduct does not prove the restriction was unnecessary.Rather, it suggests that these measures were effective in curbing his prior pattern of misconduct. Moreover, that his first sergeant temporarily lifte d the restriction to permit him to travel for family purposes underscores the absence of punitive intent and that the restriction was reasonably applied.
Finally, Appellant appears to argue, as the Defense did in its pretrial motion, that the criteria for pretrial restriction under R.C.M. 304 are inadequate to protect Appellant’s “basic due process rights guaranteed by the Fifth Amendment to the United States Constitution.” Appellant contends the Rules for Courts

- Martial provide no avenue to challenge his p retrial restriction before trial. The military judge rejected this argument, and so do we. First, we note Appellant’s command correctly followed the procedures for implementing pretrial restriction in accordance with the rule. Second , as the military judge noted, Appellant might have resorted to Article 138, UCMJ, 10 U.S.C. § 938, to challenge his continued restriction if he felt it was unjustified. 4 Appellant cites no decision of this or any court that stands for the proposition that the pretrial restraint procedures established in R.C.M. 304 are unconstitutional

, or even that such restriction short of physical restraint warrants credit against an accused’s sentence. Cf. United States v. Rendon , 58 M.J. 221, 224 (C.A.A.F. 2003) (finding the procedural prote ctions and sentence credit provided for pretrial confinement in R.C.M. 305 inapplicable to lesser forms of restraint). Like the military judge, we decline to impose additional procedural requirements by

“ judicial fiat. ” Accordingly, we find Appellant is no t entitled to relief as a result of his pretrial restriction.

4 Article 138, UCMJ , pro vides any servicemember “who believes himself wronged byhis commanding officer, and who, upon application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exe rcising general court

- martial jurisdiction over the officer against whom it is made. The officer exercising general court

- martial jurisdiction shall examine into the complaint and shall take proper measures for redressing the wrong complained of; and he sh all, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.” 10 U.S.C. § 938.United States v. Small , No. ACM S32426

9 3. Post

- T rial Restraint
Appellant renews the claim he made to the convening auth ority after trial
that his restriction was unlawfully continued after his court

- martial. Appellant correctly notes that pretrial restriction imposed under R.C.M. 304 “shall terminate” when a sentence is adjudged. R.C.M. 304(g). However, Appellant has offered no evidence, apart from the bare assertion in post

- trial memoranda from his trial defense counsel to the conven ing authority, that his pretrial restriction was actually continued post

- trial . After receiving trial defense counsel’s complaint, the convening authority determined there was no unlawful post

- trial restriction

. The restriction order plainly informs Appell ant that the restriction ends upon the conclusion of his court

- martial unless he is notified of its extension. On this record

, we find Appellant has failed to demonst rate a factual basis for relief for unlawful post

- trial punishment.

B. Sentencing Instruction
1. Additional Background
During sentencing proceedings, the military judge instruct ed the court
members with respect to the effect of a bad

- conduct discharge as follows : You are advised that the stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will placelimitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that he has served honorably. A puni tive discharge will affect an accused’s future with regardto his legal rights, economic opportunities, and social acceptability.
This court may adjudge a bad conduct discharge. Such a discharge deprives one of substantially all benefits administered by
th e Department of Veterans Affairs and the Air Force establishment. However, vested benefits from a prior period of honorable service are not forfeited by receipt of a bad conduct discharge that would terminate the accused’s current term of service. A
bad co nduct discharge is a severe punishment and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct even though such bad conduct may not include the commission of serious offenses of a military or
civil nature.

In the course of their deliberations on a sentence

, the court members asked the military judge whether they could impose an under other than honorable conditions administrative discharge and whether Appellant’s guilty plea would result in Appellant being a “convicted felon.” The military judge answeredUnited States v. Small , No. ACM S32426

10 these questions without objection by either party. The president of the court
then indicated he had an addit ional question

, which led to the following exchange:
PRES [President of the Court]: Could you please clarify for us, Your Honor, the periods of service when you talked about the bad conduct discharge only applying to this period of service; does it only apply to this specific enlistment, which I think started in maybe 2011 .

. . [o]r does it apply across his service with the United States Air Force since his first enlistment?
MJ [Military Judge]: I’m going to read that specific one to you and then if you need additional clarification I may just have to recess to get my wording correctly for you.

This cour t may adjudge a bad conduct discharge. Such a discharge deprives one of substantially all benefits administered bythe Department of Veterans Affairs and the Air Force establishment. I think this is the portion that the members are asking me
about.

PRES: Y es, sir, I think so.
MJ: However, vested benefits from a prior period of honorable service are not forfeited by receipt of a bad conduct discharge that would terminate the accused’s current term of service.
Sir, does that answer your question?

PRES: No, th at causes it.
The military judge then held an Article 39(a) , UCMJ, session outside the presence of the court members. After a brief discussion with counsel for both sides, the military judge took a recess during which he composed the following proposed ins truction:

You are advised that the accused is a second

- term Airman, however, no evidence is before you regarding the characterization of this prior discharge. You are further advised that the stigma of a punitive discharge is commonly recognized in our soc iety and thus it is the most severe punishment this court may adjudge. In deciding [ ] on whether a punitive discharge is warranted in this case, your focus should be on whether the offense committed by this accused and all the other evidence, both mitigat ing an daggravating, warrant such severe punishment, not on other matters not properly before this court

- martial.United States v. Small , No. ACM S32426

11 The military judge asked counsel for both sides whether there were objections. Trial defense counsel responded:

DC [Defense Counsel] : Your Hon or, just in terms of the .

. . the very beginning instruction there was just one thing that caught my attention. It was the phrase “second

- term Airman” it maybe suggests a certain number of enlistments. Just maybe rephrase to “he is no longer serving out h is first enlistment.” And I don’t know if that makes it awkward. I know the negatives here, we’re all cautious about the negatives.

M J: Defense Counsel, instead of “ you are advised,” “as the evidence before you indicates the accused is a second

- term Airman ”?
DC: That’s fine, Your Honor.
The military judge proceeded to give the following instruction to the court
members:
As the evidence before you indicates the accused is a second

term Airman; however, no evidence is befo re you regarding the
characteri zation of this prior discharge. You are further advised that the stigma of a punitive discharge is commonly recognized in our society and thus

, it is the most severe punishment this

co urt may adjudge. In deciding on whether a punitive dis charge
is warranted in t his case, your focus should be on whether the offense committed by this accused and all the other evidence, both mitigating and aggravating warrant such severe punishment, not on other matters not properly before this court

- martial.

The court members indic ated t hey had no further questions. Counsel for both parties indicated they had no objections to the instructions, and the members
returned to their deliberations.

2. Law

W hether a panel was properly instructed is a question of law we review de

novo. United States v. McClour , 76 M.J. 23, 25 (C.A.A.F. 2017) (citation s omitted). “ Failure to object to an instruction given or omitted waives the objection absent plain error. ” United States v. Pope , 69 M.J. 328, 333 (C.A.A.F. 2011) (citing R.C.M. 920(f)). “ P lain error is established when : (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.” United States v. Hardison , 6 4 M.J.
2 79 , 2 81 (C.A.A.F. 200 7 ).United States v. Small , No. ACM S32426

12 A military judg e has substantial discretion in deciding whether to give an
instruction to court members. United States v. Maynulet , 68 M.J. 374, 376 (C.A.A.F. 2010). A military judge is required to tailor instructions to the evidence and issues present in a particular ca se. United States v. Staton , 68 M.J. 569, 572 (A.F. Ct. Crim. App. 2009).
Forfeiture is the failure to timely assert a right, whereas waiver is the intentional relinquishment of a known right. Gladue , 67 M.J. at 313. Appellate

courts will review forfeited issues for plain error , but waiver extinguishes an appellant’s right to raise an issue on appeal. Id. (citing Harcrow, 66 M.J. at 156).
3. Analysis
Appellant contends that the military judge’s additional instruction that

“ the evidence before you indicates the accused is a second

- term Airman ” was plainly erroneous . In Appellant’s view, this elaboration upon the standard punitive discharge instructions contained in the Military Judge’s Benchbook (Benchbook) 5 in response to the president’s question “present[e d] to the members that the defendant has already vested benefits,” when in fact Appellant’s specific post

- service benefits were not predictable with any degree of accuracy and the entire topic of collateral consequences of the court

- martial was not a

prope r subject for the members’ consideration in deciding a sentence. The Government counters that Appellant waive d this issue by trial defense counsel’s failure to object to the instruction given , and that, in any event, the instruction

was not erroneous

. Assu ming arguendo that trial defense counsel’s failure to object to the instruction provided to the members did not waive this issue , we find no plainerror. We note the military judge provided the standard punitive discharge instructions from the Benchbook . W hen the members asked a question regardingthe effect of a punitive discharge, the military judge repeated the relevant portion of those instructions. When that failed to satisfy the members, the military judge crafted an a ccurate further instruction tailo red to the facts of the case. Moreover, it was consistent with his prio r instructions, and it also advised the

court members to focus on whether a punitive discharge was an appropriate punishment in this case based on the offenses and the evidence that was before them, “not on other matters not properly before this court

- martial .” That the
mi litary judge might properly have exercised his discretion to give a different instruction, or declined to provide further instructions at all, does not render
the instr uction he gave improper. We are not persuaded that the instruction

5 Department of the Army Pamphlet 27

– 9, at 70

– 72 (10 Sep. 2014)

.United States v. Small , No. ACM S32426

13given was clearly erroneous or that it materially prejudiced Appellant’s substantial rights. See Pope , 69 M.J. at 333.

III. C ONCLUSION
The approved findings and sentence are correct in law and fact, and no er

ror materially prejudicial to the substantial rights of Appellant occurred. 6 Ar

ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Cou rt

6 As noted above, the CMO contains an error w ith respect to Specification 1 of theAdditional Charge, where the CMO incorrectly lists “building 2565” rather than “building 3465” as the location from which Appellant absented himself. We direct the publication of a corrected CMO to remedy this error.