UNITED STATES ARMY COURT 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 Excellence and Fort Benning 

James S. Pohl, Military Judge 

Colonel Tracy A. Barnes, Staff Judge Advocate (pretrial and recommendation) 

Lieutenant Colonel Jeffery D. Lippert, Deputy Staff Judge Advocate (addendum) 

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, 

JA; Major Timothy W. Thomas, JA; Captain Jennifer A. Parker, JA (on brief); 

Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major 

Grace M. Gallagher, JA; Captain Jennifer A. Parker, JA (on reply brief). 

For Appellee: Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel Martha L. 

Foss, JA; Major Adam S. Kazin, JA (on brief). 

25 March 2010 

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OPINION OF THE COURT 

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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 [hereinafter UCMJ]. The convening authority approved 

the adjudged sentence of a bad-conduct discharge and confinement 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 trial, 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 government’s response and conclude they warrant no relief. 

While not raised by appellant as an assignment of error, we note an additional matter 

that warrants discussion, but no relief. 

Lieutenant Colonel (LTC) Lippert signed the Addendum to the Staff Judge 

Advocate Recommendation (SJAR) as the “Deputy Staff Judge Advocate.” Article 

60(d), UCMJ, requires a convening authority to “obtain 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(12) (defining “legal 

officer” as “any commissioned officer of the Navy, Marine Corps, or Coast Guard 

designated to perform legal duties for a command”). The staff judge advocate or 

legal officer may also prepare an addendum to the recommendation. R.C.M. 

1106(f)(7). 

Our superior court has recognized that “Congress contemplated that the 

convening authority receive the recommendation 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)). The “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 prejudice a substantial right”). 

While appellant did not raise this issue to this court either personally or as an 

assignment of error, we decline to apply waiver 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 submission, distinguishing 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 record of trial is now complete. 
HUDGINS – ARMY 20090737 

3 

Regardless, we can discern no prejudice to appellant under the facts and 

circumstances of this case. This is particularly true where the deputy staff judge 

advocate was an officer and experienced judge advocate and was statutorily 

qualified to sign the addendum as the acting SJA 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 statutorily unqualified enlisted sailor prepared 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) (officer acting in courtmartial as chief of military justice should be disqualified from later signing the 

addendum as acting SJA). Additionally, appellant failed to allege error to this court 

or make any “colorable showing of possible prejudice.” See United States v. 

Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998); Finster, 51 M.J. at 188 (“Courts of 

Criminal Appeals in appropriate cases may rely on the failure of an accused to 

identity prejudicial error as a basis for denying relief . . .”). 

CONCLUSION 

On consideration of the entire record, including consideration of the issues 

personally specified by the appellant, we hold the findings of guilty and the sentence 

as approved by the convening authority correct in law and fact. Accordingly, 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 unambiguous, we declined to order an affidavit 

from LTC Lippert addressing whether he was actually the acting staff judge advocate 

when he signed the addendum as the Deputy Staff Judge Advocate, and the signature 

block was merely a typographical error. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: