Filed: Mar. 06, 2018
Latest Update: Mar. 03, 2020
Summary: Military Judge: Francisco Mendez., At trial, after accepting Appellants pleas but before seating the court mem-, bers, the military judge explored with the Defense whether Appellant had been, subjected to illegal pretrial punishment forbidden by Article 13, UCMJ., B. Sentencing Instruction, 1.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32426
________________________
UNITED STATES
Appellee
v.
Paul N. SMALL
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 March 2018
________________________
Military Judge: Francisco Mendez.
Approved sentence: Bad-conduct discharge, reduction to E-3, and a rep-
rimand. Sentence adjudged 26 May 2016 by SpCM convened at Joint
Base Andrews, Maryland.
For Appellant: Major Kevin R. Cayton, USAF; Major Jarett F. Merk,
USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Mary Ellen Payne, USAF; Major
Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Small, No. ACM S32426
JOHNSON, Senior Judge:
A military judge found Appellant guilty, in accordance with his pleas, of
two specifications of absenting himself from his place of duty, two specifica-
tions of failure to go to his place of duty, one specification of dereliction of duty,
one specification of making a false official statement, one specification of drunk
driving, one specification of wrongful appropriation of nonmilitary property of
a value of under $500.00 on divers occasions, one specification of disorderly
conduct, and one specification of incapacitation for the performance of his du-
ties due to previous overindulgence in alcohol or drugs, in violation of Articles
86, 92, 107, 111, 121, and 134 of the Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886, 892, 907, 911, 921, 934.1 A special court-martial composed of
officer members sentenced Appellant to a bad-conduct discharge, reduction to
the grade of E-2, restriction to Joint Base Andrews, Maryland for two months,
and a reprimand. The convening authority approved only the bad-conduct dis-
charge, reduction to the grade of E-3, and reprimand.
Appellant’s assignments of error enumerate the following issues for our
consideration on appeal: (1) Whether Appellant was subjected to unlawful pre-
trial and post-trial restraint in violation of Article 13, UCMJ, 10 U.S.C. § 813,
Rule for Courts-Martial (R.C.M.) 304, and his constitutional rights, and
whether the record of trial is complete; (2) Whether the court-martial promul-
gating order (CMO) contains an incorrect summary of the charges;2 and (3)
Whether the military judge provided an improper sentencing instruction to the
court members. We find no error materially prejudicial to Appellant’s substan-
tial rights, and we affirm the findings and sentence.
I. BACKGROUND
Appellant served effectively in the emergency management career field un-
til an acrimonious and protracted divorce led to financial and emotional diffi-
culties that culminated in a series of finance-, alcohol-, and absence-related
offenses. From March 2015 until August 2015, Appellant repeatedly misused
1 The wrongful appropriation was a lesser-included offense of a specification alleging
larceny of nonmilitary property of a value of under $500.00 on divers occasions in vio-
lation of Article 121, UCMJ, to which Appellant pleaded not guilty. The Government
declined to proceed on the greater charge of larceny, and the military judge entered a
finding of not guilty as to that offense.
2 Appellant notes the CMO misidentifies the location from which Appellant absented
himself as alleged in Specification 1 of the Additional Charge as “building 2565” vice
“building 3465,” as charged, and contends a new CMO is required. The Government
concurs, as do we. We direct corrective action in our decretal paragraph, and the issue
requires no further discussion.
2
United States v. Small, No. ACM S32426
his Government Travel Card (GTC), apparently to pay for routine personal ex-
penses. When Appellant’s first sergeant later questioned him about these
transactions, Appellant falsely claimed he had not seen his GTC since he last
traveled for temporary duty in the spring of 2015.
In August 2015, Appellant was stopped by a civilian police officer while
driving under the influence of alcohol. Although initially cooperative, Appel-
lant became noncompliant, struggled briefly with the officer, and was placed
in handcuffs. Appellant then spat on the hood of the officer’s car.
In September 2015, Appellant reported for duty—specifically, to attend an
Alcohol and Drug Abuse Prevention and Treatment Program appointment—
under the influence of alcohol. Appellant’s first sergeant took him first to secu-
rity forces and then to the medical group to have his blood drawn. The first
sergeant then took Appellant to Appellant’s work area and told him to remain
there pending further instructions. However, shortly thereafter Appellant de-
parted his work center and walked several miles to his off-base residence, evad-
ing his superiors’ efforts to find him. Appellant’s command finally located him
that evening at his residence.
On 15 January 2016, Appellant failed to report for duty, remaining at his
residence and refusing to answer the door for a supervisor until the supervisor
gained entry with the assistance of the apartment manager. After this inci-
dent, Appellant’s first sergeant, with authority delegated by Appellant’s com-
mander, issued Appellant a written order restricting him to Joint Base An-
drews. Specifically, the order restricted Appellant to a particular dormitory
room on the base until the conclusion of his pending court-martial. The order
included a number of exceptions, including: performing official duties; going to
the dining facility for a meal; going to the base exchange or commissary; going
to the base fitness center; obtaining medical care, including dental and mental
health services; meeting with his defense counsel; attending religious services
on base or meeting with a chaplain; and meeting with the inspector general.
The order further provided that other travel required approval from the first
sergeant. The stated reasons for the order were “concern for [Appellant’s] well-
being” and “concern that [he] may engage in further criminal misconduct, to
include the failure to appear at [his] trial.” The restriction was to last “until
the conclusion of [Appellant’s] pending trial” unless Appellant was notified it
was lifted or extended.
On both 11 and 12 February 2016, Appellant failed to report on time for his
fitness assessment. Nevertheless, he was permitted to travel to New York for
emergency leave from 8 to 24 March 2016 related to the terminal illness and
funeral of his mother. Appellant returned from this leave on time and without
incident and remained under the restriction until his court-martial 23–26 May
2016.
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United States v. Small, No. ACM S32426
The Defense filed a pretrial motion for appropriate relief requesting the
military judge grant some unspecified amount of credit against Appellant’s
sentence because of the pretrial restriction. The Government opposed the mo-
tion. The military judge issued a written ruling denying the motion on 23 May
2016, the first day of Appellant’s trial. The military judge concluded that the
imposition of the restriction, contrary to the Defense’s argument, was not a
violation of Appellant’s rights to due process, nor did it constitute illegal pre-
trial punishment, nor was Appellant entitled to administrative credit against
his sentence for restriction short of physical restraint.
At trial, after accepting Appellant’s pleas but before seating the court mem-
bers, the military judge explored with the Defense whether Appellant had been
subjected to illegal pretrial punishment forbidden by Article 13, UCMJ. Trial
defense counsel affirmed that Appellant had not been so punished. Appellant
agreed.
On 31 May 2016, five days after the conclusion of Appellant’s court-martial,
trial defense counsel sent the convening authority a “Request for Speedy Post-
trial Processing & Termination of Unlawful Post-trial restraint, and to Defer
Reduction in Rank.” Therein, trial defense counsel asserted, inter alia, that
Appellant was being unlawfully restricted to base pursuant to the adjudged
sentence because that punishment had not yet been approved by the convening
authority. Therefore, Appellant requested day-for-day administrative credit
for each day of restriction beginning 26 May 2016, the date his trial ended,
through 31 May 2016, the date of his request, as well as two-for-one credit for
any further days of restriction on or after 1 June 2016 until convening author-
ity action. On 3 June 2016, the convening authority denied the request for re-
lief from unlawful post-trial restraint. The convening authority found Appel-
lant “was not unlawfully restrained after the trial and there is no basis for this
request.”3
On 27 July 2016, pursuant to R.C.M. 1105, the Defense submitted matters
for the convening authority’s consideration prior to taking action on the results
of Appellant’s court-martial. Trial defense counsel requested, inter alia, that
Appellant “be given six days of credit for the restriction to his dorm room im-
posed by [Appellant’s] unit subsequent to the sentence.” However, trial defense
counsel acknowledged the convening authority’s “predecessor in command dis-
agreed with my assertion that [Appellant] was restricted to his dorm room for
six days after his trial . . . .” Ultimately, the convening authority disapproved
3 The convening authority also denied Appellant’s request for deferment of his reduc-
tion in rank.
4
United States v. Small, No. ACM S32426
the entirety of Appellant’s adjudged restriction to base for 60 days, and ap-
proved a reduction in rank to E-3 rather than E-2 “due to the member’s good
duty performance while awaiting trial.”
II. DISCUSSION
A. Pretrial and Post-Trial Restraint
Appellant’s first assignment of error incorporates three distinct issues,
which we address in turn: the completeness of the record; unlawful pretrial
restraint; and unlawful post-trial restraint.
1. Completeness of the Record
a. Additional Background
The military judge directed that his written ruling on the Defense’s motion
for appropriate relief seeking sentence credit for Appellant’s pretrial restraint
would be marked as Appellate Exhibit XIV. However, this 23 May 2016 ruling
was missing from the original record of trial. Instead, a duplicate copy of the
military judge’s 14 March 2016 ruling on a request for continuance (also in-
serted as Appellate Exhibit VII) was marked and inserted as Appellate Exhibit
XIV.
On 22 September 2017, the Government moved to attach a copy of the mil-
itary judge’s 23 May 2016 ruling to the record of trial. This court granted the
motion on 2 October 2017.
b. Law
A complete record of the proceedings and testimony shall be prepared in
each special court-martial where the adjudged sentence includes, inter alia, a
bad-conduct discharge. Article 54, UCMJ, 10 U.S.C. § 854. A complete record
of trial includes all appellate exhibits, or an adequate substitute with the per-
mission of the military judge. R.C.M. 1103(b)(2)(D)(v), (c)(1); United States v.
Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013). However, neither Article 54, UCMJ,
nor R.C.M. 1103 limits the discretion of a court of criminal appeals to “remedy
an error in compiling a complete record.”
Gaskins, 72 M.J. at 230. The proper
completion of post-trial processing and whether an omission from a record of
trial is substantial are questions of law we review de novo. United States v.
Stoffer,
53 M.J. 26, 27 (C.A.A.F. 2000); United States v. LeBlanc,
74 M.J. 650,
660 (A.F. Ct. Crim. App. 2015) (citations omitted).
c. Analysis
Because the missing ruling has now been attached to the record of trial, the
record includes all exhibits and is no longer incomplete. However, Appellant
5
United States v. Small, No. ACM S32426
contends he remains unfairly prejudiced by the error and his bad-conduct dis-
charge should be set aside. We disagree.
First, Appellant argues that, because Appellate Exhibit XIV was missing
from the record of trial when the convening authority took action, the conven-
ing authority was denied the opportunity to consider the entire record in ac-
cordance with R.C.M. 1107(b)(3)(B). Appellant acknowledges, however, that
the convening authority is not required to consider the record of trial, much
less every appellate exhibit therein. Moreover, both the Defense motion for ap-
propriate relief and the Government response were included in the record of
trial, and the transcript of the proceedings makes clear the military judge de-
nied the motion. Therefore, the substance of Appellant’s motion, the Govern-
ment response, and the fact that the military judge denied the motion were all
available to the convening authority. Furthermore, in contrast to Appellant’s
alleged post-trial restriction, the Defense clemency submission to the conven-
ing authority did not challenge the lawfulness of his pretrial restriction, which
was the subject of the missing ruling. Appellant fails to explain how either his
clemency submission or the convening authority’s action might have been any
different had the erroneous omission of the military judge’s ruling not oc-
curred.
Second, Appellant argues that the delay in adding the military judge’s rul-
ing to the record unfairly limited the time available to the Defense to review,
research, and analyze the ruling to prepare his appeal. Appellant contends this
placed him at a disadvantage with respect to the Government, which was re-
sponsible for creating a complete record. The court received Appellant’s reply
brief on 4 October 2017, 12 days after the Government provided the missing
exhibit. The ruling is only five pages long. Moreover, the Defense motion and
Government response were included in the record and address the same evi-
dence and issues. We are confident that Appellant has had an adequate oppor-
tunity to prepare the issue and that our ability to fully consider the issue has
not been adversely affected. Accordingly, we deny Appellant’s request to set
aside the bad-conduct discharge on this basis.
2. Pretrial Restraint
a. Law
We review de novo the question of whether an appellant is entitled to credit
for a violation of Article 13, UCMJ. United States v. Fischer, 61 M.J. 415, 418
(C.A.A.F. 2005) (citing United States v. Mosby,
56 M.J. 309, 310 (C.A.A.F.
2002)). “Article 13, UCMJ, prohibits two things: (1) the imposition of punish-
ment prior to trial, and (2) conditions of arrest or pretrial confinement that are
more rigorous than necessary to ensure the accused’s presence for trial.”
United States v. King,
61 M.J. 225, 227 (C.A.A.F. 2005).
6
United States v. Small, No. ACM S32426
R.C.M. 304(a) identifies various forms of pretrial restraint that may law-
fully be imposed on a member’s liberty before and during disposition of court-
martial offenses. One authorized form of pretrial restraint is “restriction in lieu
of arrest” by “oral or written orders directing the person to remain within spec-
ified limits.” R.C.M. 304(a)(2). Any commissioned officer may order the pretrial
restraint of an enlisted member, and a commanding officer may delegate such
authority to noncommissioned officers within the officer’s command. R.C.M.
304(b)(2)–(3). Such restraint may be ordered when there is probable cause—
that is, a reasonable belief—that an offense triable by court-martial has been
committed, that the person restrained committed it, and that the restraint or-
dered is required by the circumstances. R.C.M. 304(c). Pretrial restraint other
than confinement is imposed by notifying the member orally or in writing of
the restraint and its terms and limits. R.C.M. 304(d). Pretrial restraint lasts
until the person is released by someone authorized to impose the restraint, a
sentence is adjudged, the accused is acquitted of all charges, or all charges are
dismissed. R.C.M. 304(g).
b. Analysis
Appellant advances several theories as to why his pretrial restraint entitles
him to sentence relief. We find none of them persuasive.
First, Appellant argues that his restriction to his quarters and certain other
locations on base amounted to illegal pretrial punishment in violation of Article
13, UCMJ. He compares the terms of his restriction to the form of restriction
that may be imposed on members as a result of nonjudicial punishment pro-
ceedings. See Manual for Courts-Martial, United States (2016 ed.), pt V, ¶
5.c.(2). He further contends the excessive nature of the restriction indicates an
intent to punish him. Notwithstanding the availability of restriction as a non-
judicial punishment under Article 15, UCMJ, R.C.M. 304 plainly authorizes
non-punitive use of restriction as a form of pretrial restraint. See R.C.M. 304(f)
(“Pretrial restraint is not punishment . . . .”) Furthermore, in light of Appel-
lant’s history of alcohol-related offenses, unauthorized absence from duty, and
evasion of contact with his superiors while so absent, the first sergeant’s testi-
mony regarding the purpose of the restriction, as well as the terms and imple-
mentation of the restriction itself, we are satisfied Appellant’s command did
not intend it as a punishment, but as a necessary means to control Appellant’s
misbehavior and ensure his presence for duty. See United States v. Palmiter,
20 M.J. 90, 95 (C.M.A. 1985) (“[W]e must look to the intent behind the imposi-
tion of the condition to resolve the punishment inquiry.”)
Second, Appellant contends the restriction failed to comply with R.C.M. 304
itself because it was not “required by the circumstances.” R.C.M. 304(c)(3). As
described above, lawful pretrial restriction requires, inter alia, probable cause,
7
United States v. Small, No. ACM S32426
that is, a “reasonable belief” on the part of the individual imposing the re-
striction that the restraint ordered is required by the circumstances. Id. Based
on the record before us, we are satisfied the first sergeant had such a reasona-
ble belief. Appellant argues the fact that his 8–24 March 2016 release from
restriction was unmarred by additional misconduct and the convening author-
ity’s approval of a reduction only to E-3 rather than E-2 in recognition of his
“good duty performance while awaiting trial” indicate his restriction was un-
necessary and excessive. However, the fact that Appellant’s behavior from the
imposition of the restraint until his trial was largely, although not entirely,
free of additional misconduct does not prove the restriction was unnecessary.
Rather, it suggests that these measures were effective in curbing his prior pat-
tern of misconduct. Moreover, that his first sergeant temporarily lifted the re-
striction to permit him to travel for family purposes underscores the absence
of punitive intent and that the restriction was reasonably applied.
Finally, Appellant appears to argue, as the Defense did in its pretrial mo-
tion, that the criteria for pretrial restriction under R.C.M. 304 are inadequate
to protect Appellant’s “basic due process rights guaranteed by the Fifth
Amendment to the United States Constitution.” Appellant contends the Rules
for Courts-Martial provide no avenue to challenge his pretrial restriction be-
fore trial. The military judge rejected this argument, and so do we. First, we
note Appellant’s command correctly followed the procedures for implementing
pretrial restriction in accordance with the rule. Second, as the military judge
noted, Appellant might have resorted to Article 138, UCMJ, 10 U.S.C. § 938,
to challenge his continued restriction if he felt it was unjustified.4 Appellant
cites no decision of this or any court that stands for the proposition that the
pretrial restraint procedures established in R.C.M. 304 are unconstitutional,
or even that such restriction short of physical restraint warrants credit against
an accused’s sentence. Cf. United States v. Rendon, 58 M.J. 221, 224 (C.A.A.F.
2003) (finding the procedural protections and sentence credit provided for pre-
trial confinement in R.C.M. 305 inapplicable to lesser forms of restraint). Like
the military judge, we decline to impose additional procedural requirements by
“judicial fiat.” Accordingly, we find Appellant is not entitled to relief as a result
of his pretrial restriction.
4 Article 138, UCMJ, provides any servicemember “who believes himself wronged by
his commanding officer, and who, upon application to that commanding officer, is re-
fused redress, may complain to any superior commissioned officer, who shall forward
the complaint to the officer exercising general court-martial jurisdiction over the officer
against whom it is made. The officer exercising general court-martial jurisdiction shall
examine into the complaint and shall take proper measures for redressing the wrong
complained of; and he shall, as soon as possible, send to the Secretary concerned a true
statement of that complaint, with the proceedings had thereon.” 10 U.S.C. § 938.
8
United States v. Small, No. ACM S32426
3. Post-Trial Restraint
Appellant renews the claim he made to the convening authority after trial
that his restriction was unlawfully continued after his court-martial. Appellant
correctly notes that pretrial restriction imposed under R.C.M. 304 “shall ter-
minate” when a sentence is adjudged. R.C.M. 304(g). However, Appellant has
offered no evidence, apart from the bare assertion in post-trial memoranda
from his trial defense counsel to the convening authority, that his pretrial re-
striction was actually continued post-trial. After receiving trial defense coun-
sel’s complaint, the convening authority determined there was no unlawful
post-trial restriction. The restriction order plainly informs Appellant that the
restriction ends upon the conclusion of his court-martial unless he is notified
of its extension. On this record, we find Appellant has failed to demonstrate a
factual basis for relief for unlawful post-trial punishment.
B. Sentencing Instruction
1. Additional Background
During sentencing proceedings, the military judge instructed the court
members with respect to the effect of a bad-conduct discharge as follows:
You are advised that the stigma of a punitive discharge is com-
monly recognized by our society. A punitive discharge will place
limitations on employment opportunities and will deny the ac-
cused other advantages which are enjoyed by one whose dis-
charge characterization indicates that he has served honorably.
A punitive discharge will affect an accused’s future with regard
to his legal rights, economic opportunities, and social acceptabil-
ity.
This court may adjudge a bad conduct discharge. Such a dis-
charge deprives one of substantially all benefits administered by
the Department of Veterans Affairs and the Air Force establish-
ment. However, vested benefits from a prior period of honorable
service are not forfeited by receipt of a bad conduct discharge
that would terminate the accused’s current term of service. A
bad conduct discharge is a severe punishment and may be ad-
judged for one who in the discretion of the court warrants severe
punishment for bad conduct even though such bad conduct may
not include the commission of serious offenses of a military or
civil nature.
In the course of their deliberations on a sentence, the court members asked
the military judge whether they could impose an under other than honorable
conditions administrative discharge and whether Appellant’s guilty plea would
result in Appellant being a “convicted felon.” The military judge answered
9
United States v. Small, No. ACM S32426
these questions without objection by either party. The president of the court
then indicated he had an additional question, which led to the following ex-
change:
PRES [President of the Court]: Could you please clarify for us,
Your Honor, the periods of service when you talked about the
bad conduct discharge only applying to this period of service;
does it only apply to this specific enlistment, which I think
started in maybe 2011 . . . [o]r does it apply across his service
with the United States Air Force since his first enlistment?
MJ [Military Judge]: I’m going to read that specific one to you
and then if you need additional clarification I may just have to
recess to get my wording correctly for you.
This court may adjudge a bad conduct discharge. Such a dis-
charge deprives one of substantially all benefits administered by
the Department of Veterans Affairs and the Air Force establish-
ment. I think this is the portion that the members are asking me
about.
PRES: Yes, sir, I think so.
MJ: However, vested benefits from a prior period of honorable
service are not forfeited by receipt of a bad conduct discharge
that would terminate the accused’s current term of service.
Sir, does that answer your question?
PRES: No, that causes it.
The military judge then held an Article 39(a), UCMJ, session outside the
presence of the court members. After a brief discussion with counsel for both
sides, the military judge took a recess during which he composed the following
proposed instruction:
You are advised that the accused is a second-term Airman, how-
ever, no evidence is before you regarding the characterization of
this prior discharge. You are further advised that the stigma of
a punitive discharge is commonly recognized in our society and
thus it is the most severe punishment this court may adjudge.
In deciding [ ] on whether a punitive discharge is warranted in
this case, your focus should be on whether the offense committed
by this accused and all the other evidence, both mitigating and
aggravating, warrant such severe punishment, not on other mat-
ters not properly before this court-martial.
10
United States v. Small, No. ACM S32426
The military judge asked counsel for both sides whether there were objections.
Trial defense counsel responded:
DC [Defense Counsel]: Your Honor, just in terms of the . . . the
very beginning instruction there was just one thing that caught
my attention. It was the phrase “second-term Airman” it maybe
suggests a certain number of enlistments. Just maybe rephrase
to “he is no longer serving out his first enlistment.” And I don’t
know if that makes it awkward. I know the negatives here, we’re
all cautious about the negatives.
MJ: Defense Counsel, instead of “you are advised,” “as the evi-
dence before you indicates the accused is a second-term Air-
man”?
DC: That’s fine, Your Honor.
The military judge proceeded to give the following instruction to the court
members:
As the evidence before you indicates the accused is a second-
term Airman; however, no evidence is before you regarding the
characterization of this prior discharge. You are further advised
that the stigma of a punitive discharge is commonly recognized
in our society and thus, it is the most severe punishment this
court may adjudge. In deciding on whether a punitive discharge
is warranted in this case, your focus should be on whether the
offense committed by this accused and all the other evidence,
both mitigating and aggravating warrant such severe punish-
ment, not on other matters not properly before this court-mar-
tial.
The court members indicated they had no further questions. Counsel for both
parties indicated they had no objections to the instructions, and the members
returned to their deliberations.
2. Law
Whether a panel was properly instructed is a question of law we review de
novo. United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017) (citations omit-
ted). “Failure to object to an instruction given or omitted waives the objection
absent plain error.” United States v. Pope,
69 M.J. 328, 333 (C.A.A.F. 2011)
(citing R.C.M. 920(f)). “Plain error is established when: (1) an error was com-
mitted; (2) the error was plain, or clear, or obvious; and (3) the error resulted
in material prejudice to substantial rights.” United States v. Hardison,
64 M.J.
279, 281 (C.A.A.F. 2007).
11
United States v. Small, No. ACM S32426
A military judge has substantial discretion in deciding whether to give an
instruction to court members. United States v. Maynulet, 68 M.J. 374, 376
(C.A.A.F. 2010). A military judge is required to tailor instructions to the evi-
dence and issues present in a particular case. United States v. Staton,
68 M.J.
569, 572 (A.F. Ct. Crim. App. 2009).
Forfeiture is the failure to timely assert a right, whereas waiver is the in-
tentional relinquishment of a known right.
Gladue, 67 M.J. at 313. Appellate
courts will review forfeited issues for plain error, but waiver extinguishes an
appellant’s right to raise an issue on appeal.
Id. (citing Harcrow, 66 M.J. at
156).
3. Analysis
Appellant contends that the military judge’s additional instruction that
“the evidence before you indicates the accused is a second-term Airman” was
plainly erroneous. In Appellant’s view, this elaboration upon the standard pu-
nitive discharge instructions contained in the Military Judge’s Benchbook
(Benchbook)5 in response to the president’s question “present[ed] to the mem-
bers that the defendant has already vested benefits,” when in fact Appellant’s
specific post-service benefits were not predictable with any degree of accuracy
and the entire topic of collateral consequences of the court-martial was not a
proper subject for the members’ consideration in deciding a sentence. The Gov-
ernment counters that Appellant waived this issue by trial defense counsel’s
failure to object to the instruction given, and that, in any event, the instruction
was not erroneous.
Assuming arguendo that trial defense counsel’s failure to object to the in-
struction provided to the members did not waive this issue, we find no plain
error. We note the military judge provided the standard punitive discharge in-
structions from the Benchbook. When the members asked a question regarding
the effect of a punitive discharge, the military judge repeated the relevant por-
tion of those instructions. When that failed to satisfy the members, the military
judge crafted an accurate further instruction tailored to the facts of the case.
Moreover, it was consistent with his prior instructions, and it also advised the
court members to focus on whether a punitive discharge was an appropriate
punishment in this case based on the offenses and the evidence that was before
them, “not on other matters not properly before this court-martial.” That the
military judge might properly have exercised his discretion to give a different
instruction, or declined to provide further instructions at all, does not render
the instruction he gave improper. We are not persuaded that the instruction
5 Department of the Army Pamphlet 27–9, at 70–72 (10 Sep. 2014).
12
United States v. Small, No. ACM S32426
given was clearly erroneous or that it materially prejudiced Appellant’s sub-
stantial rights. See Pope, 69 M.J. at 333.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred.6 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
6 As noted above, the CMO contains an error with respect to Specification 1 of the
Additional Charge, where the CMO incorrectly lists “building 2565” rather than “build-
ing 3465” as the location from which Appellant absented himself. We direct the publi-
cation of a corrected CMO to remedy this error.
13
