## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, HAM, and SIMS Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 WILLIAM M. HUDGINS United States Army, Appellant

ARMY 20090737

Headquarters, United States Army Maneuver Center of Excellenc e and Fort Benning James S. Pohl, Military Judge Colonel Tracy A. Ba rnes, Staff Judge Ad vocate (pretrial a nd recommendation) Lieutenant Colonel Jeffery D. Lippert, Deputy Staff Judge Advocate (addendum)

For Appellant: Colone l Mark Tellitocci, JA; Lieutena nt Colonel Matt hew M. Miller, JA; Major Timothy W. Thomas, JA; Captai n Jennifer A. Parker , JA (on brief);
Colonel Mark Tellitoc ci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Ca ptain Jennifer A. Parker , JA (on reply brief).

For Appellee: Colonel Norman F.J. Allen, III, JA; Lieu tenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA (on brief).

25 March 2010

------------------------------- OPINION OF THE COURT

------------------------------- Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one specification each of conspiracy to commit maiming and maiming, in violation of Articles 81 and 124, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 924 [her einafter UCMJ]. The conv ening authority approved the adjudged sentence of a bad-conduct discharge and c onfinement for ten months. The military judge credited appellant with four days of confinement credit.

This case is before the court for review pursuant to Article 66, UCMJ. We
have considered the record of tria l, appellant’s assignment of error, 1 the matters

1 Appellant alleged one assignment of error:

(continued . . .)HUDGINS – ARMY 20090737

2 personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and the governm ent’s response and conclude they warrant no relief. While not raised by a ppellant as an assignment of error, we note an additional matter that warrants discussion, but no relief.

Lieutenant Colonel (LTC) Lippert signed the Adden dum to the Staff Judge Advocate Recommendation (SJAR) as the “D eputy Staff Judge A dvocate.” Article 60(d), UCMJ, requires a convening authority to “o btain and consider the written recommendation of his staff judge advocate or legal officer.” See also Rule for Courts-Martial [hereinafter R.C.M.] 1106(a ); 10 U.S.C. §801(1 2) (defining “legal officer” as “any commissioned officer of the Navy, Mari ne Corps, or Coast Guard designated to perform legal du ties for a command”). Th e staff judge advocate or legal officer may also prepare an adde ndum to the recommendation. R.C.M. 1106(f)(7).

Our superior court has recognized that “Congress contem plated that the convening authority receive the recommendati on of the SJA, not an assistant SJA.”
United States v. Wilson , 54 M.J. 57, 59 (C.A .A.F. 2000) (citing United States v.

Kema , 10 U.S.C.M.A. 272, 27 C. M.R. 346 (1959)). Th e “Deputy Staff Judge Advocate” signed the addendum which, we find, constitutes error. Our superior court previously analyzed an SJAR erroneously signed by the “assistant staff judge advocate” for plain error and declined to grant relief. Id. at 59. See also United States v. Hensley , 52 M.J. 391, 393 (C.A .A.F. 2000) (holding in a case involving “more than a passive waiver,” “irregular designation of [otherwise qualified legal officer who prepared SJAR] . . . did not materially prejudic e a substantial right”).

While appellant did not raise this issue to this court either pe rsonally or as an assignment of error, we decline to apply waiv er here. The error in this case appears in the addendum, rather than in the SJAR. As such, appellant did not have the opportunity to comment on the error in his post-trial subm ission, distingu ishing this
case from Wilson and Hensley

.

(. . . continued)
THE OMISSION OF DEFENSE SENTENCING WITNESS
TESTIMONY AND THE MILITARY JUDGE’S COLLOQUY WITH APPELLANT MAKES THIS
RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE IN CONTRAVENTION OF [ARTICLE] 54(c), UCMJ, AND RULE FOR COURTS-MARTIAL 1103(b)(3)(c),
AND IS A SUBSTANTIAL ERROR.

Subsequent to appellant’s brief, the military judge completed a certificate of correction. As a result, the r ecord of trial is now complete.HUDGINS – ARMY 20090737

3 Regardless, we can discer n no prejudice to appell ant under the facts and
circumstances of this case. This is particularly tr ue where the deputy staff judge advocate was an officer and experienced judge advocate a nd was statutorily qualified to sign the ad dendum as the acting SJ A in the SJA’s absence. 2 These facts
are distinct from United States v. Finster , in which our superior court found plain
error when a statutoril y unqualified enlisted sailor pr epared the SJAR. 51 M.J. 185, 187 (C.A.A.F. 1999). See also United States v. Stefan , ARMY 20081097 (Army Ct. Crim. App. 29 Jan. 2010) (unpub .) (Ham, J., dissenting) (o fficer acting in courtmartial as chief of military justice shou ld be disqualified fro m later signing the addendum as acting SJA). Additionally, appe llant failed to allege error to this court or make any “colorable showin g of possible prejudice.” See United States v.
Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998); Finster , 51 M.J. at 1 88 (“Courts of Criminal Appeals in appropri ate cases may rely on the failure of an accused to identity prejudicial er ror as a basis for denyi ng relief . . .”).

CONCLUSION

On consideration of the entire recor d, including considerat ion of the issues personally specified by the ap pellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in la w and fact. Ac cordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

2 Because the signature block was unambiguou s, we declined to order an affidavit from LTC Lippert addressing whether he was actu ally the acting staff judge advocate when he signed the a ddendum as the Deputy Staff Judge Advocate , and the signature block was merely a t ypographical error. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: