SALINAS ( ARMY 20071435

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

TOZZI, SIMS, and CARLTON

Appellate Military Judges

**UNITED STATES, Appellant**

**v.**

**Sergeant CARLOS R. SALINAS**

**United States Army, Appellee**

ARMY 20071435

Headquarters, 19th Sustainment Command (Expeditionary)

Donna M. Wright, Military Judge

Lieutenant Colonel Imogene M. Jamison, Staff Judge Advocate

For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Brad Voorhees, JA; Captain Michael E. Korte, JA (on brief and petition for new trial). 

For Appellee:  Captain Christopher B. Witwer, JA; Major Lisa L. Gumbs, JA; Lieutenant Colonel Martha L. Foss, JA; Colonel Norman F.J. Allen, III, JA (on brief).

24 March 2010

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SUMMARY DISPOSITION

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Per Curiam:

A military judge panel sitting as a general court-martial convicted appellant, pursuant to his pleas of one specification of violating a lawful general regulation and two specifications of adultery in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 [hereinafter UCMJ].  An officer panel sitting as a general court-martial convicted appellant contrary to his pleas of indecent assault in violation of Article 134, UCMJ.  The panel sentenced appellant to a dishonorable discharge, confinement for nine months, total forfeiture of pay and allowances, and reduction to E1.  The convening authority approved the adjudged sentence.

Appellant raised six assignments of error in his brief to this court.  In his initial assignment of error, he contends the military judge erroneously permitted inadmissible character evidence purporting to show appellant’s plan or modus operandi to commit forceable sexual assault.  His second assignment of error alleges legal and factual insufficiency with respect to the indecent assault offense.  Appellant’s third assignment of error alleges the pretrial advice to the convening authority was inaccurate and misleading under Rule for Court-Martial [hereinafter R.C.M.] 406(c).  The fourth assignment of error alleges dilatory post-trial processing.  Appellant also alleges the military judge erred in excluding constitutionally required evidence under Military Rule of Evidence [hereinafter Mil. R. Evid.] 412.  Finally, appellant alleges the staff judge advocate (SJA) committed prejudicial error when he failed to comment on the legal errors raised by trial defense counsel in his R.C.M. 1105 submission.  Appellant also submitted a petition for new trial, alleging a fraud upon the court-martial.

We have examined the record of trial, appellant’s six assignments of error, the petition for new trial, and the government’s responses.  We find merit in the assignment of error pertaining to the defective post-trial Staff Judge Advocate Recommendation (SJAR) and will take corrective action in our decretal paragraph.  We find the SJAR failed to comment on the numerous legal errors raised by trial defense counsel and remand the case for a new SJAR and action.  Therefore, we will not address the remaining assignments of error or new trial petition at this time.

**Staff Judge Advocate’s Failure to Comment on Alleged Legal Errors**

In evaluating appellant’s sixth assignment of error, we note appellant’s trial defense counsel alleged five prejudicial legal errors in his R.C.M. 1105 submission.  First, he alleged the military judge admitted inadmissible character evidence purporting to show a plan or modus operandi to commit forceable sexual assault.  Second, he asserted the military judge erred in denying appellant’s motion for severance of his offenses.  Next, appellant claimed legal error when the military judge excluded constitutionally required evidence under Mil. R. Evid. 412.  Appellant’s fourth allegation averred the military judge “den[ied] evidence to support the defense theory that [Private First Class L] is a habitual liar.”  Finally, appellant alleged the evidence was legally and factually insufficient to sustain his conviction for indecent assault.  The SJA failed to respond to any of appellant’s allegations of legal error in his addendum to the SJAR and, on 18 June 2008, the convening authority took action on appellant’s case.

The purpose of the SJAR is “to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative.”  R.C.M. 1106(d)(1).  When an accused raises an allegation of legal error before the convening authority has taken action, the SJA must advise the convening authority if “corrective action on the findings or sentence should be taken . . . . The response may consist of a statement of agreement or disagreement with the matter raised by the accused.  An analysis or rationale for the staff judge advocate’s statement is not required.”  R.C.M. 1106(d)(4).  *See United States v. Hill*, 27 M.J. 293, 296 (C.M.A. 1988).

Our superior court stated in *Hill*, “in most instances, failure of the staff judge advocate . . . to prepare a recommendation with the contents required by R.C.M. 1106(d) will be prejudicial and will require remand of the record to the convening authority for preparation of a suitable recommendation.”  *Id.*  The court explained, “[s]ince it is very difficult to determine how a convening authority would have exercised his broad discretion if the staff judge advocate had complied with R.C.M. 1106, a remand will usually be in order.”  *Id.*

Yet, the Court of Appeals for the Armed Forces also held that a Court of Criminal Appeals (CCA) “is free to affirm when a defense allegation of legal error would not foreseeably have led to a favorable recommendation by the staff judge advocate or to corrective action by the convening authority.”  *Id.*at 297.  Conversely, if a CCA determines that the legal error has merit and must be remedied, it can decide whether to grant meaningful relief under its plenary review authority under Article 66(c), UCMJ or remand the case to the appropriate convening authority for corrective action.  *United States v. Wheelus*, 49 M.J. 283, 289 (C.A.A.F. 1998).  

Upon review of the facts in this case, applicable case law, and provisions of the Manual for Courts-Martial, we find the SJA’s failure to comment on the five legal errors raised by the accused in his R.C.M. 1105 clemency submission constituted prejudicial error that resulted in material prejudice to appellant’s substantial right to have his clemency request evaluated by a convening authority who had been properly advised regarding the allegations of legal error in appellant’s court-martial.  We also find under these facts that we must remand this case to the same convening authority to consider appellant’s R.C.M. 1105 submission and raised legal errors.

**Conclusion**

The convening authority’s initial action, dated 18 June 2008, is set aside.  The record of trial is returned to The Judge Advocate General for a new SJAR and a new initial action by the same convening authority in accordance with Article 60(c)-(e), UCMJ.  

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

� Appellant raised three of the legal errors alleged in his R.C.M. 1105 submission as assignments of error to this court.

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