UNITED STATES, Appellee 

v. 

Dustin A. STEFAN, Private 

U.S. Army, Appellant 

No. 10-0349 

Crim. App. No. 20081097 

United States Court of Appeals for the Armed Forces

Argued November 9, 2010 

Decided December 29, 2010 

STUCKY, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and RYAN, JJ., joined. 

Counsel

For Appellant: Captain Jess B. Roberts (argued); Colonel Mark 

Tellitocci, Lieutenant Colonel Jonathan F. Potter, and Major 

Laura R. Kesler (on brief); Lieutenant Colonel Matthew M. 

Miller, Major Grace M. Gallagher, and Major Timothy W. Thomas. 

For Appellee: Captain Benjamin M. Owens-Filice (argued); Major 

Christopher B. Burgess and Major LaJohnne A. White (on brief); 

Lieutenant Colonel Martha L. Foss. 

Military Judge: Gary J. Brockington 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Stefan, No. 10-0349/AR 

2

 Judge STUCKY delivered the opinion of the Court. 

 We granted review to determine whether the chief of 

military justice was disqualified from preparing the addendum to 

the staff judge advocate’s recommendation (SJAR) because, before 

trial, she had caused the charges to be served on the accused. 

We hold that she was disqualified under Article 6(c), Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 806(c) (2006), and 

Rule for Courts-Martial (R.C.M.) 1106(b), but Appellant was not 

prejudiced.1

 

I. 

A. 

On August 20, 2008, Appellant damaged a door and some 

ceiling tiles, among other things, to obtain keys to the 

barracks rooms from the First Sergeant’s office. With the keys, 

Appellant entered seven rooms and stole numerous personal items 

from fellow soldiers, including iPods, game systems, DVD 

players, laptop computers, and other property. While being 

questioned by military police about the thefts, Appellant was 

ordered to stand fast, but he disobeyed that order and left. 

This was not the first time Appellant had been in trouble with 

 

1

 The Government has submitted a motion for this Court to 

consider an affidavit from the disqualified staff judge 

advocate. “The Court will normally not consider any facts 

outside of the record established at the trial and the Court of 

Criminal Appeals,” unless good cause is shown. C.A.A.F. R. 
United States v. Stefan, No. 10-0349/AR 

3

military authorities. Before the barracks larceny, Appellant 

had possessed marijuana once and missed morning formations twice 

-- once to be with a woman in his room, contrary to orders. 

Based on the above conduct, Appellant pled guilty at a 

general court-martial to failure to go to his appointed place of 

duty (two specifications), disobeying a noncommissioned officer 

(NCO), failure to obey an order, damaging military property, 

possessing marijuana, larceny (seven specifications), and 

burglary, in violation of Articles 86, 91, 92, 108, 112a, 121, 

129, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 

891, 892, 908, 912a, 921, 929 (2006). The military judge 

accepted Appellant’s pleas and sentenced him to a dishonorable 

discharge, confinement for twenty-two months, and forfeiture of 

all pay and allowances. 

B. 

After trial, Major Van Eck drafted and signed the SJAR as 

the acting SJA. He recommended that the convening authority 

approve Appellant’s sentence without clemency. Without comment 

on the SJAR, Appellant provided post-trial matters pursuant to 

R.C.M. 1105 and R.C.M. 1106. In his clemency submission, 

Appellant’s only request was to reduce his dishonorable 

discharge to a bad-conduct discharge. 

 

30A(a). Good cause has not been shown; therefore, the motion is 

denied. 
United States v. Stefan, No. 10-0349/AR 

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Following this submission, Major Wright, the chief of 

military justice, acting as the SJA, signed the addendum to the 

SJAR, in which she stated that “clemency [was] not warranted.” 

On June 2, 2009, the convening authority reduced the time of 

confinement to eighteen months in accordance with the pretrial 

agreement, but otherwise approved the adjudged sentence. 

Appellant submitted the case on its merits to the United States 

Army Court of Criminal Appeals (CCA), which affirmed in a 

summary disposition. United States v. Stefan, No. 20081097, 

2010 CCA LEXIS 12, at *1 (A. Ct. Crim. App. Jan. 29, 2010) 

(unpublished). 

Judge Ham dissented, arguing that Article 6(c) disqualified 

Major Wright from preparing the addendum to the SJAR because of 

her position as chief of military justice and because she had 

acted as trial counsel in Appellant’s case. Id. at *10-*11. 

Judge Ham reached this conclusion because, inter alia, Major 

Wright had signed the original and additional charge sheets, 

indicating that she had caused the charges to be served on 

Appellant as trial counsel. Id. at *18. 

II. 

A. 

 Article 6(c) provides that “[n]o person who has acted as 

member, military judge, trial counsel, assistant trial counsel, 

defense counsel, assistant defense counsel, or investigating 
United States v. Stefan, No. 10-0349/AR 

5

officer in any case may later act as a staff judge advocate or 

legal officer to any reviewing authority upon the same case.” 

R.C.M. 1106(b) echoes this sentiment in similar language. 

Whether Article 6(c) and R.C.M. 1106(b) disqualify an individual 

from acting as the SJA is a question of law, which we review de 

novo. See United States v. Taylor, 60 M.J. 190, 194 (C.A.A.F. 

2004). 

 The plain text of Article 6(c) states that an individual 

who acted as trial counsel is disqualified from acting as the 

SJA. We reject the Government’s argument “that only those 

persons that were detailed as trial counsel in accordance with 

Article 27, UCMJ[, 10 U.S.C. § 827 (2006),] are disqualified” 

under Article 6(c). The text does not support such a narrow 

reading of the statute, as disqualification does not require 

that a person be detailed as trial counsel, only that the person 

act as such. 

 Therefore, a person will be disqualified from acting as the 

SJA if that person performed the duties of a disqualifying 

position. See United States v. Mallicote, 13 C.M.A. 374, 376, 

32 C.M.R. 374, 376 (1962) (“although the staff judge advocate or 

his assistant are not, by reason of their office and ordinary 

pretrial activities, barred by Article 6(c) from subsequently 

advising the reviewing authority, the implication and reason why 

he must be when he acts -- directly or indirectly -- as trial 
United States v. Stefan, No. 10-0349/AR 

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counsel, are clear”). As for when a person has performed the 

duties of a disqualifying position, some relevant considerations 

include the action taken, the position of the person that would 

normally take that action, and the capacity in which the action 

is claimed to have been taken. 

B. 

 In this case, Major Wright performed some duties of -- and 

thus acted as -- trial counsel. She not only caused the charges 

to be served on Appellant, a task traditionally reserved for 

detailed trial counsel, see R.C.M. 602 (“The trial counsel 

detailed to the court-martial . . . shall cause to be served 

upon each accused a copy of the charge sheet.”), but she also 

acknowledged performing that act as trial counsel in block 15 of 

the two charge sheets. As such, she was disqualified by Article 

6(c) from acting as the SJA in Appellant’s case. 

III. 

A. 

 Although we find error, we do not find that Appellant was 

prejudiced. We have not held that “recommendations prepared by 

a disqualified officer [are] void.” United States v. Edwards, 

45 M.J. 114, 115 (C.A.A.F. 1996). Rather, we test for prejudice 

under Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006), which 

requires material prejudice to the substantial rights of the 

accused. Appellant asks that we presume prejudice when Article 
United States v. Stefan, No. 10-0349/AR 

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6(c) is violated, but we find that these kinds of errors are 

amenable to being tested for prejudice. To find reversible 

error, an appellant must, inter alia, “make[] ‘some colorable 

showing of possible prejudice.’” Taylor, 60 M.J. at 195 

(quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 

1998)). 

B. 

 At the outset, we note that Appellant did not even raise 

this issue on appeal to the CCA; the case was submitted to that 

court on its merits. Instead, Judge Ham raised it sua sponte. 

Stefan, 2010 CCA LEXIS 12, at *1. Regardless of whether 

Appellant raised the issue below, other facts substantiate that 

Appellant has not made a colorable showing of prejudice. 

 Candidly, Major Wright’s involvement in Appellant’s case 

was minimal. While minimal conduct can contravene Article 6(c), 

it is obvious that when the conduct is relatively minimal, the 

likelihood of actual prejudice is substantially diminished. In 

this case, Major Wright’s actions simply did not rise to the 

level that traditionally has been found to cause prejudice. 

See, e.g., United States v. Johnson-Saunders, 48 M.J. 74, 74-75 

(C.A.A.F. 1998) (finding prejudice when the acting SJA had been 

detailed as the assistant trial counsel, had actively prosecuted 

the case, and had requested a harsher sentence than adjudged); 

United States v. Coulter, 3 C.M.A. 657, 658-59, 14 C.M.R. 75, 
United States v. Stefan, No. 10-0349/AR 

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76-77 (1954) (finding prejudice when the acting SJA had been 

detailed as trial counsel, actively prosecuted the case, and 

called the accused a “worthless individual” in a report to the 

convening authority). 

 In this case, nothing indicates that Major Wright actively 

prosecuted the case or took a firm stance on sentencing. Her 

addendum to the SJAR merely echoed Major Van Eck’s succinct 

recommendation of no clemency without further elaboration of 

Appellant’s case. See United States v. Hamilton, 47 M.J. 32, 35 

(C.A.A.F. 1997) (noting, inter alia, that a recommendation, 

which was “plain-vanilla in substance,” did not prejudice the 

appellant). Considering the circumstances of this case, 

including the host of offenses committed by Appellant and the 

seriousness of some of his crimes,2

 there is nothing that would 

suggest that another SJA would have made a different 

recommendation on Appellant’s clemency request. We conclude 

that Appellant was not prejudiced. 

 

2

 One should not underestimate the seriousness of barracks 

larceny. From basic training onwards, servicemembers are taught 

to trust their fellow servicemembers with their life, and 

barracks theft substantially damages that trust. See United 

States v. Usry, 9 M.J. 701, 703 (N.C.M.R. 1980); accord United 

States v. Hampton, 40 M.J. 457, 460 (C.M.A. 1994). 
United States v. Stefan, No. 10-0349/AR 

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IV. 

 The judgment of the United States Army Court of Criminal 

Appeals is affirmed.