This opinion is subject to administrative correction before final disposition.

11 February 2021:

Administrative correction to footnote 1 to add the missing quotation mark.

Before 

GASTON, STEWART, and HOUTZ

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Chase T. MILLER

Interior Communications Electrician Seaman (E-2), U.S. Navy

Appellant

No. 201900234

Decided: 10 February 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

upon reconsideration

Military Judge: 

Roger Mattioli

Sentence adjudged 8 May 2019 by a special court-martial convened at

Naval Station Great Lakes, Illinois, consisting of a military judge 

sitting alone. Sentence in the Entry of Judgment: reduction to E-1, 

confinement for twelve months, and a bad-conduct discharge.

For Appellant:

Commander C. Eric Roper, JAGC, USN

For Appellee: 

Lieutenant Catherine M. Crochetiere, JAGC, USN

Lieutenant Joshua C. Fiveson, JAGC, USN

Lieutenant Kevin G. Edwards II, JAGC, USN
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM:

Appellant was found guilty, in accordance with his pleas, of violation of a 

lawful general order by possessing drug paraphernalia, making a false official 

statement, and wrongful use of a controlled substance, in violation of Articles 

92, 107, and 112a, Uniform Code of Military Justice [UCMJ], 10 U.S.C. 

§§ 892, 907, 912a. The convening authority approved the adjudged sentence 

of confinement for twelve months, reduction to E-1, and a bad-conduct 

discharge.

On 28 December 2020, we issued an order in this case remanding this for 

new post-trial processing. On 27 January 2021, within thirty days of our 

order, the Government filed a motion for en banc consideration or panel 

reconsideration. We hereby withdraw our 28 December 2020 opinion and 

issue this opinion in its stead.

I. BACKGROUND

Appellant began his post-trial confinement the day he was sentenced, 8

May 2019. He was placed in post-trial “protective custody” at Lake County 

Correctional Facility for thirty-three days and during that time made two 

requests to be transferred to the general population, which were denied. 

Appellant also submitted two clemency requests to the convening authority

requesting, among other things, suspension of the adjudged and automatic 

reduction in paygrade. On 10 June 2019 Appellant was transferred to the 

Chesapeake Brig where he was placed in medical segregation pending a 

medical evaluation. On 28 June 2019 Appellant submitted a post-trial motion 

to the military judge alleging illegal post-trial confinement and asking for a 

sentence reduction and additional confinement credit. The military judge 

conducted a post-trial hearing on 9 July 2019 to hear Appellant’s motion 

based on allegations that his post-trial “protective custody” in civilian jail 

violated the Eighth Amendment of the Constitution, Article 55, UCMJ, and 

Rule for Courts-Marital [R.C.M.] 1104. At the conclusion of the post-trial 

hearing, the military judge reserved ruling on the motion and informed 

counsel he would issue a written ruling within a week. 
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

3

On 24 July, 2019, the convening authority took action on Appellant’s 

court-martial, denying Appellant’s clemency requests. A week later, on 31 

July 2019, the military judge issued his written ruling in which he denied the 

Defense motion for sentencing relief but found, sua sponte, a violation of 

Article 13, UCMJ, and awarded an additional fifteen days of confinement 

credit. Based upon the dates and omitted documents in the record of trial, it 

is clear that the convening authority did not have access to the military 

judge’s written ruling when he took action on Appellant’s case. Despite this, 

somehow the convening authority’s action (signed a week before the military 

judge’s ruling) accounts for the additional fifteen days of pre-trial confinement credit eventually awarded by the military judge. In fact, the date stamp 

on the military judge’s written ruling suggests that in addition to not being 

issued by the time of the convening authority’s action, or present in the 

record of trial, the military judge’s ruling did not even exist prior to that 

time.1 We are thus unable to determine from the record how the convening 

authority’s action was able to reflect the additional fifteen days of credit

granted a week later by the military judge. Below is a synopsis of the time 

line in this case:

8 May 2019 Appellant sentenced 

17 May 2019 Appellant submits clemency requests

9 Jul 2019 Post-trial hearing on 8th Amendment claims

11 Jul 2019 Statement of Trial Results

24 Jul 2019 Convening Authority Action

31 Jul 2019 Ruling on post-trial motion 

31 Jul 2019 Entry of Judgment 

II. LAW AND ANALYSIS

Whether a record of trial is incomplete is a question of law which we 

review de novo. “The requirement that a record of trial be complete and 

substantially verbatim in order to uphold the validity of a verbatim record 

 

1 Appellee’s motion for reconsideration states that “[o]n July 9, 2019 the Military 

Judge held a post-trial 39(a) hearing on Appellant’s post-trial Motion.” The following 

sentence then states that the “[m]ilitary judge awarded Appellant additional pre-trial 

confinement credit. (R. 170.)” However, the record at page 170 only reflects the 

military judge’s analysis of Pierce credit for a prior nonjudicial punishment for which 

he awarded Appellant 23 days of credit. See United States v. Pierce, 27 M.J. 367, 369

(C.M.A. 1989).
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

4

sentence is one of jurisdictional proportion that cannot be waived.” United 

States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); see also R.C.M. 1112(b)(1) 

(2019).2 Whether an omission is substantial can be a question of quality as 

well as quantity. See United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982). 

Substantial omissions render a record of trial incomplete, raising a presumption of prejudice. Id. at 8. Insubstantial omissions do not raise a presumption 

of prejudice or affect the record’s characterization as a complete one. Henry, 

53 M.J. at 111. 

A. The Record Contains Substantial Omissions That Give Rise to a

Presumption of Prejudice

We have previously discussed that there are “two primary points in the 

post-trial process during which prejudice could result from a record of trial 

that has substantial omissions: (1) the [Convening Authority’s] action, and 

(2) appellate review.” United States v. Underhill, No. 200700144, 2007 CCA 

LEXIS 306, at *8-*9 (N-M. Ct. Crim. App. Aug. 9, 2007) (unpublished). 

Because the military judge’s ruling was attached to the record during 

appellate review, we focus solely on the impact of its omission by virtue of its 

nonexistence at the convening authority’s action stage of the post-trial 

process. Specifically, we will examine whether there was a substantial 

omission at the convening authority’s action stage and, if so, whether the 

Government has rebutted any presumption of prejudice that arose from the 

convening authority acting on a record with a substantial omission. 

In this case, the military judge’s written ruling is seven pages and details 

thorough findings of fact and conclusions of law regarding his decision to 

deny the trial defense counsel’s post-trial motion but to sua sponte determine 

that the government violated Article 13, UCMJ. We view this omission from 

the record at the time of the convening authority’s action as significant in 

terms of quality and quantity, and find that it was substantial. The bottom 

line is that the military judge’s ruling did not exist, in either written or oral 

 

2 Henry was based on a pre-Military Justice Act of 2016 version of the Rules for 

Courts-Martial. See, e.g., R.C.M. 1103(b)(2)(B) (2016). The prior rule required a 

verbatim transcript whenever “[t]he sentence adjudged includes confinement for 

twelve months or more or any punishment that may not be adjudged by a special 

court-martial.” R.C.M. 1103(b)(2)(B)(i) (2016). The rule that applies to this case 

requires that the “record of trial in every general and special court-martial shall 

include . . . [a] substantially verbatim recording of the court-martial proceedings 

. . . .” R.C.M. 1112(b)(1) (2019). Thus, a substantially verbatim record of trial was 

required in this case, even if under a different rule than that applied in Henry.
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

5

form, at the time of the convening authority’s action and it addressed a 

significant issue that was ultimately resolved in favor of Appellant. As a 

result, this omission created a presumption of prejudice that the Government 

may rebut. 

B. The Government Did Not Rebut the Presumption of Prejudice

The Government argues that the omission was irrelevant to the convening authority’s review and therefore there was no prejudice to Appellant. We 

disagree and find that the Government has not rebutted the presumption of 

prejudice for the following reasons. 

The first part of the analysis begins with examining what authority and 

duty rested with the convening authority at the time of his action. Because 

all the charges in this case occurred prior to 1 January 2019, but after 24 

June 2014, the version of Article 60, UCMJ, from 2016 provides the relevant

limits of the convening authority’s clemency authority. 10 U.S.C. § 860 (Supp. 

IV 2017). Under that version of Article 60, and the implementing Rules for 

Courts-Martial, the convening authority could not disapprove, commute, or 

suspend, in whole or in part, that portion of an adjudged sentence that 

included “(i) confinement for more than six months; or (ii) dismissal, 

dishonorable discharge, or bad-conduct discharge.” R.C.M. 1107(d)(1)(B) 

(2016). However, the convening authority could disapprove, commute, or 

suspend, in whole or in part, any portion of an adjudged sentence not 

explicitly prohibited by the rule, to include reduction in paygrade. R.C.M. 

1107(d)(1)(A) (2016). Appellant’s request for clemency asked for just that.

With respect to clemency, the convening authority “shall consider matters 

timely submitted under R.C.M. 1106 and 1106A” before taking or declining to 

take action. R.C.M. 1109(d)(3)(A). In addition, the convening authority may 

consider additional matters before taking action to include “[t]he evidence 

introduced at the court-martial, and any appellate exhibits, and the recording 

or transcription of the proceedings . . . and . . . [s]uch other matters as the 

convening authority deems appropriate.” R.C.M. 1109(d)(3)(B). Finally, in 

“determining whether to take action, or to decline taking action under this 

rule, the convening authority shall consult with the staff judge advocate or 

legal advisor.” R.C.M 1109(d)(2). 

The record in this case establishes that the convening did consult with the 

staff judge advocate prior to taking action, but neither was able to review or 

consider the military judge’s ruling on the post-trial motion. Indeed, the 

military judge’s written post-trial ruling did not even exist at the time the 

convening authority acted, and nor had the military judge put his ruling on 

this issue on the record orally. As a result of this substantial omission, the 

convening authority was deprived of the ability to review material that was 
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

6

within his discretion to consider, and thus to meaningfully exercise his 

clemency authority. We further find that since the military judge’s ruling did 

not exist, the Staff Judge Advocate Review or legal officer recommendation 

was unable to provide an informed recommendation, such that Appellant was 

deprived of a full opportunity for corrective action or clemency from the 

convening authority. See generally United States v. Wilson, 26 C.M.R. 3, 6 

(C.M.A. 1958) (“It is while the case is at the convening authority level that 

the accused stands the greatest chance of being relieved from the consequences of a harsh finding or a severe sentence.”). Although the Rules for 

Courts-Martial no longer require that the record of trial contain a substantially verbatim transcription,3 we hold the trial should be complete, and all 

substantive rulings of the military judge should exist, either in writing or 

placed orally on the record in open court, before a convening authority 

determines what to consider prior to taking action. We also hold that it is an 

abuse of the discretion conferred upon a convening authority in R.C.M. 

1109(d)(3) for a convening authority take an action on the sentence prior to 

this point in a case.4

We simply do not know and cannot speculate whether the convening 

authority would have granted relief to Appellant had he been fully aware of 

the conditions of his pre and post-trial confinement that resulted in additional confinement credit being awarded by the military judge. Although the 

convening authority was limited by Article 60 with regard to any action he 

could take in this case, the fact remains that the convening authority took 

action before the military judge ruled on a post-trial motion that was 

ultimately resolved in Appellant’s favor. Although the convening authority’s 

action somehow accounts for the additional fifteen days’ credit awarded by 

the military judge, we have no way of determining how he accounted for that 

when the military judge withheld ruling on the motion until a week after the 

convening authority acted. Had the convening authority been aware of the 

 

3 Dep’t of the Navy, Judge Advocate General / Commander Naval Legal Service 

Command Instr. 5814.1D, Post-Trial Processing para. 4.a. (Sept. 6, 2019), requires a 

verbatim transcript in all general and special courts-martial tried in the Department 

of the Navy where a finding of guilty is reached.

4 Taking action on a sentence prior to this point deprives the accused and crime 

victim from being able to submit matters under R.C.M. 1106 and 1106A. By 

definition, if the military judge has not ruled on a substantive motion (in this case 

one involving an alleged Constitutional violation) the accused and crime victim 

cannot address potential issues arising from said ruling that may reasonably tend to 

inform the convening authority’s exercise of discretion under R.C.M. 1109.
United States v. Miller, NMCCA No. 20190234, 

Opinion of the Court

7

judge’s rationale for awarding the additional credit, the convening authority 

may have, consistent with his limited authority, deferred or waived Appellant’s reduction as a matter of clemency that was within his authority to 

grant. Because the convening authority took action on the sentence prematurely, we find that he abused the discretion conferred upon him under 

R.C.M. 1109(d)(3).

III. CONCLUSION

That the Convening Authority’s Action and the Entry of Judgment are

SET ASIDE. The complete record will be forwarded to a suitable convening 

authority for Action in compliance with R.C.M. 1110, and subsequently 

forwarded to the military judge to issue an Entry of Judgment in accordance 

with R.C.M. 1111. Thereafter, the record will be returned to this Court for 

completion of appellate review.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court