UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           KERN, ALDYKIEWICZ, and MARTIN
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Sergeant RICHARD MARTINEZ, JR.
                          United States Army, Appellant

                                      ARMY 20110570

                      Headquarters, 10th Mountain Division
                        Michael J. Hargis, Military Judge
   Lieutenant Colonel Olga M. Anderson, Acting Staff Judge Advocate (pretrial)
           Colonel Michael O. Lacey, Staff Judge Advocate (post-trial)
Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate (new recommendation
                                  & addendum)


For Appellant: Lieutenant Colonel Jonathan Potter, JA; Captain A. Jason Nef, JA;
Captain Robert Feldmeier, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on
brief).


                                          2 July 2013

                   ---------------------------------------------------------------
                    SUMMARY DISPOSITION ON FURTHER REVIEW
                   ---------------------------------------------------------------

ALDYKIEWICZ, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas of possessing child pornography, in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, reduction to the grade
of E-1, and confinement for fifteen months. Pursuant to a pretrial agreement, the
convening authority approved only so much of the sentence extending to a bad-
conduct discharge, confinement for twelve months, and reduction to the grade E-1.

       The case is again before the court for review under Article 66, UCMJ. During
this court’s first review, the court was presented with two records, an “original” and
a “reconstructed” record. Neither record was a complete, properly authenticated
MARTINEZ—ARMY 20110570

record of trial. Additionally, the 27 March 2012 staff judge advocate’s addendum
preceding the convening authority’s initial action stated, in part:

             3. The defense counsel alleges that clemency is justified
             due to the fact that the case had taken more than 120 days.
             I disagree that post-trial processing time in this case has
             been unreasonable, but still recommend some additional
             clemency to ameliorate any mistaken impression that the
             accused has been prejudiced by delay. In my opinion, no
             further corrective action is required.

             4. RECOMMENDATION: After having fully reviewed
             the defense submissions, only so much of the sentence
             extending to reduction to Private (E1), confinement for 12
             months, and a bad-conduct discharge be approved and,
             except for the bad-conduct discharge, ordered executed.
             An action to accomplish this is attached (Tab A).

Appellant was sentenced to 15 months confinement and his pretrial agreement
limited the period of confinement the convening authority could approve to 12
months; any other lawfully adjudged punishment could be approved. The above
quoted language is ambiguous at best and misleading at worst, making it appear as if
the reduction from 15 months to 12 months, a reduction required by the pretrial
agreement in the case, amounts to clemency.

        On 5 March 2013, this court set aside the convening authority’s action and
directed assembly of one complete, accurate, and properly authenticated record of
trial in accordance with Rule for Courts-Martial [hereinafter R.C.M.] 1103 and 1104
after which the record would be processed in the normal course of business in
accordance with R.C.M. 1105 et. seq. United States v. Martinez, ARMY 20110570,

(Army Ct. Crim. App. 5 March 2013) (summ. disp.).

        On 7 June 2013, this court again received appellant’s case for review under
Article 66, UCMJ. Both appellate and appellee counsel were afforded fifteen days
to file supplemental pleadings in the case. Upon receipt of the pleadings from both
sides it became immediately apparent that this court’s 5 March 2013 directive was
ignored.  A review of the record submitted to this court as the authenticated record


  Appellant’s supplemental filing before this court again raises the “incomplete”
nature of the record of trial, in essence renewing inter alia the same assignment of
error previously raised before this court, specifically alleging “The record of trial
remains substantially incomplete because it was not reauthenticated in accordance
with the order of this court.”




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MARTINEZ—ARMY 20110570

of trial reveals the same deficient record of trial previously submitted. For example,
Defense Exhibits A, B, and C, and Prosecution Exhibit 19 are once again omitted
from the record; counsel’s errata changes were never incorporated; and, the
stipulation of fact appears to be the pretrial version without modifications made at
time of trial, just to name a few of the previously noted deficiencies that went
unanswered. Similarly, the previously ambiguous and arguably misleading advice
provided to the convening authority was unaddressed and unresolved in the new staff
judge advocate’s recommendation and addendum thereto.

        We find ourselves once again exactly where we were when this court issued
its 5 March 2013 decision. The processing of appellant’s case reflects a
fundamental “lack of understanding as to proper post-trial processing requirements,”
a “lack of attention to detail,” and, simply put, “sloppy work.” United States v.
Collazo, 

, 725 n. 4 (Army Ct. Crim. App. 2000). However, after the
government’s second strike, we again decline to avail ourselves of the drastic
remedy of approving a limited sentence for an incomplete record. See generally
United States v. Lashley, 

, 9 (C.M.A. 1982). Appellant’s case is returned
to the convening authority to assemble a single, properly authenticated, and accurate
record of trial. See United States v. Johnston, 

, 229 (C.A.A.F. 1999);
United States v. Napier, 20 U.S.C.M.A. 422, 424, 

, 264 (1971). The
staff judge advocate recommendation and any addendum thereto shall clarify and
resolve any ambiguity created by the multiple staff judge advocate recommendations
and addenda thereto previously published in appellant’s case, most notably the
27 March 2012 addendum recommending clemency while simultaneously
recommending approval of the pretrial agreement term of confinement. Our return
of this case also affords the convening authority the opportunity to address
appellant’s allegation of dilatory post-trial processing associated with his case.

                                  CONCLUSION

      The action of the convening authority, dated 21 May 2013, is set aside. The
record of trial is returned to The Judge Advocate General for authentication of the
record of trial in accordance with Article 54(a), UCMJ, and new staff judge advocate
recommendation and action by the same or different convening authority in
accordance with Article 60(c)-(e), UCMJ.

      Senior Judge KERN and Judge MARTIN concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court


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