UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600236

_________________________

UNITED STATES OF AMERICA

Appellee

v.

EDDIE C. CARTHAN

Lieutenant (O-3), U.S. Navy 

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Commander Robert P. Monahan, Jr., JAGC, USN.

Convening Authority: Commanding General, Marine Corps 

Warfighting Laboratory, Marine Corps Combat Development 

Command, Marine Corps Base, Quantico, VA.

Staff Judge Advocate’s Recommendation: Colonel Ian D. Brasure, 

USMC; Addendum: Colonel Scott M. Marconda, USMC.

For Appellant: Captain Bree A. Ermentrout, JAGC, USN.

For Appellee: Captain Jacob R. Walker, JAGC, USN; Lieutenant 

Jetti L. Gibson, JAGC, USN.

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Decided 29 August 2017

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Before GLASER-ALLEN, MARKS, and RUGH,

1 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.

 _________________________

GLASER-ALLEN, Chief Judge:

A military judge sitting as a general court-martial convicted the 

appellant, pursuant to his pleas, of one specification of abusive sexual 

 

1 Judge Rugh took final action in this case prior to detaching from the court. 
United States v. Carthan, No. 201600236

2

contact, three specifications of assault consummated by a battery, and one

specification of conduct unbecoming an officer and gentleman, in violation of 

Articles 120, 128, and 133, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 920, 928, and 933 (2012). The military judge sentenced the 

appellant to one year confinement, forfeiture of all pay and allowances, and a 

dismissal. The convening authority (CA) approved the sentence as adjudged

and, except for the dismissal, ordered the sentence executed. 

The appellant raises a single assignment of error (AOE): the staff judge 

advocate erroneously advised the CA that Article 56, UCMJ, restricted his 

ability to grant clemency. After careful consideration of the record of trial, the 

appellant’s assignment of error, and the pleadings of the parties, we find 

merit in the appellant’s AOE and direct corrective action in our decretal 

paragraph.

I. BACKGROUND

The appellant’s offenses occurred between 1 January 2014 and 1 

November 2014. He pleaded guilty and was convicted of an Article 120 

offense—abusive sexual contact. The staff judge advocate’s recommendation 

(SJAR) advised the CA that the appellant’s offenses were subject to a 

mandatory minimum sentence under Article 56, UCMJ, and he could not 

take action on findings pursuant to Article 60, UCMJ.

II. DISCUSSION

A. Applicability of Article 56, UCMJ, and mandatory minimums

We are presented with two separate, but significant, SJAR errors. The 

first is the misapplication of Article 56, UCMJ, regarding mandatory 

minimum sentences and the second is a misunderstanding of the CA’s Article 

60, UCMJ, authority on findings in a straddling offenses case.

“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 SJAR advised the CA:

Straddling Offenses Case. The accused was found guilty of 

offenses occurring both before and on or after 24 June 2014. 

Accordingly, you may take whatever action you deem 

appropriate on the guilty findings and/or on the sentence, 

except that if you approve a finding of guilty for Article 120 and 
United States v. Carthan, No. 201600236

3

120c, which have mandatory minimum sentences under Article 

56(b), UCMJ, those minimum sentences will still apply.

2

Mandatory Minimum Sentence. The accused was found 

guilty of an offense with a mandatory minimum sentence under 

Article 56(b), UCMJ. Therefore, you may not act to disapprove, 

commute, or suspend that portion of the adjudged sentence.3

These paragraphs are misstatements of the law. The appellant pleaded to 

and was convicted of abusive sexual contact—an offense under Article 120(d), 

UCMJ. Abusive sexual contact is not one of the enumerated offenses 

requiring a mandatory minimum sentence including dismissal; therefore the 

CA had unfettered authority to take any action he deemed appropriate on the

sentence in this case.4

B. Article 60, UCMJ, error

Despite the fact the appellant was convicted of offenses which occurred 

both prior to and after the 24 June 2014 FY14 National Defense 

Authorization Act (NDAA) effective date, the SJAR incorrectly advised the 

CA that “the offense will be approved by operation of law upon your action on 

the sentence.”

5 This statement implies the CA was limited to taking action on 

the sentence only. Under the law, however, the CA had unfettered authority 

 

2 SJAR of 3 Jun 2016 at 6, ¶ 12 (emphasis added).

3 Id. at 7, ¶ 14 (emphasis added).

4 Congress amended Article 56, UCMJ, 10 U.S.C. § 856 in 2013 to read, in part, 

that while a person subject to the UCMJ who is found guilty of certain sexual 

offenses shall be punished as a general court-martial may direct, such punishment 

must include, at a minimum, dismissal or a dishonorable discharge, except as 

provided for in Article 60, UCMJ. These sexual offenses include:

(A) An offense in violation of subsection (a) or (b) of section 920 of 

this title (Article 120(a) or (b)) [10 U.S.C. § 920(a) or (b)].

(B) Rape and sexual assault of a child under subsection (a) or (b) 

of section 920b of this title (Article 120b) [10 U.S.C. § 920b].

(C) Forcible sodomy under section 925 of this title (Article 125) 

[10 U.S.C. § 925].

(D) An attempt to commit an offense specified in subparagraph 

(A), (B), or (C) that is punishable under section 880 of this title 

(Article 80) [10 U.S.C. §880]. 

5 SJAR at 7, ¶ 13(b) (emphasis added).
United States v. Carthan, No. 201600236

4

to take action on both findings and sentence because the case contained 

straddling offenses.6

The CA took his action on 6 July 2016 and did not grant the appellant’s 

requested clemency or otherwise modify the findings or sentence. The 

erroneous statements of the law in the SJAR were not challenged by the 

appellant, corrected in the SJAR addendum, or addressed in the CA’s action. 

Here, the SJAR contained affirmative misstatements of the law that 

Article 56, UCMJ, mandatory minimum sentences applied in this case.

Roller, 75 M.J. at 661. It also incorrectly advised the CA that Article 60, 

UCMJ, prevented action on the findings. United States v. Levrie, No. 

201500375, 2016 CCA LEXIS 401, at *3-4, unpublished op. (N-M. Ct. Crim. 

App. 12 Jul 2016) (per curiam). The CA was left with uncorrected 

misstatements of his post-trial authority before taking action, resulting in a 

colorable showing of possible prejudice best remedied by remand for new 

post-trial processing.

7

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 post-trial 

processing. The record shall then be returned to this court for review under 

Article 66(c), UCMJ.

Senior Judge MARKS and Judge RUGH concur.

 For the Court

 R.H. TROIDL

 Clerk of Court

 

6 The changes to Article 60, UCMJ, became effective on 24 June 2014. The FY15 

NDAA provided clarification for courts-martial such as this one, which involve 

offenses occurring before and after that effective date: 

With respect to the findings and sentence of a court-martial 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[.]

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

7 The SJAR also incorrectly provided that the appellant did not make a request 

for deferment of confinement. Similarly, the court martial order contained errors 

regarding conditional dismissal of some language in the offenses.