UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                            Airman First Class RYAN T. CLARK
                                  United States Air Force

                                             ACM S32201

                                          11September 2014

         Sentence adjudged 2 October 2013 by SPCM convened at Dyess Air Force
         Base, Texas. Military Judge: Matthew S. Ward (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 3 months,
         forfeiture of $1,010.00 pay per month for 3 months, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Nicholas D. Carter.

         Appellate Counsel for the United States: Lieutenant Colonel Katherine E.
         Oler.

                                                  Before

                          MITCHELL, WEBER, and CONTOVEROS
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



WEBER, Judge:

       A military judge sitting as a special court-martial accepted the appellant’s guilty
pleas to one specification of violating a lawful general regulation by using spice, and one
specification of making a false official statement regarding his spice use, in violation of
Articles 92 and 107, UCMJ, 10 U.S.C. §§ 892, 907. The military judge sentenced the
appellant to a bad-conduct discharge, confinement for 3 months, forfeiture of $1,010 pay
per month for 3 months, and reduction to E-1. A pretrial agreement limited the
appellant’s term of confinement to 2 months if a punitive discharge was adjudged.
      The appellant submitted this case without assigning any specific error. We note
one obvious error in post-trial processing that requires correction.

       After adjudging the sentence, the military judge examined the quantum portion of
the pretrial agreement and appropriately noted that, since a bad-conduct discharge was
adjudged, the convening authority could approve no more than 2 months of confinement.
Counsel for both sides agreed with the military judge’s interpretation. The staff judge
advocate’s recommendation (SJAR) also correctly noted this limitation and
recommended the convening authority approve confinement for 2 months along with the
remainder of the adjudged sentence.

       Following the defense’s clemency submission, the SJAR addendum inexplicably
advised, “I recommend that you approve the findings and sentence as adjudged.” Acting
upon the addendum’s recommendation, the convening authority’s action approved the
sentence as adjudged. A subsequent court-martial order also stated the sentence was
approved as adjudged.

       We find no evidence in the record that the appellant actually served more than two
months of confinement as a result of this plain error. To the contrary, the appellant’s
clemency submission states, “I have completed my seven weeks of incarceration.”
Nonetheless, the appellant is entitled to the benefit of his bargain and to accurate
court-martial records. In addition, the servicing legal office should be afforded another
opportunity to accurately complete post-trial processing in this matter. We are disturbed
by the lack of attention given to the post-trial processing of this case. It does not take a
trained eye to immediately notice the disparity between the SJAR and its addendum.
This causes us to question how closely the acting staff judge advocate examined the
addendum he signed, and how closely the convening authority read both documents.
This is also the second time we have recently seen the Government commit this same
error. See United States v. Watts, ACM S32146 (A.F. Ct. Crim. App. 17 June 2014)
(unpub. op.). In this case, we elect to merely order a new action. Should we find
additional indications that staff judge advocates and convening authorities are not closely
reading important post-trial processing documents, we will not hesitate to order entirely
new post-trial processing or even sentence relief. See generally United States v. Finster,

(C.A.A.F. 1999).




                                             2                                   ACM S32201
                                        Conclusion

       We return the record of trial to The Judge Advocate General for remand to the
convening authority to withdraw the erroneous action and substitute a corrected one.
See Rule for Courts-Martial 1107(g). Thereafter, Article 66, UCMJ, 10 U.S.C. § 866,
shall apply.




            FOR THE COURT


            LEAH M. CALAHAN
            Deputy Clerk of the Court




                                            3                            ACM S32201