U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                             No. ACM S32421
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                          Jesse T. SMITH
          Airman First Class (E-3), U.S. Air Force, Appellant
                         ________________________

       Appeal from the United States Air Force Trial Judiciary
                          Decided 25 July 2017
                         ________________________

Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, reduction to E-1, and a
reprimand. Sentence adjudged 8 April 2016 by SpCM convened at Da-
vis-Monthan Air Force Base, Arizona.
For Appellant: Captain Patricia Encarnación Miranda, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, HARDING, and C.BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the Court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
HARDING, Judge:
   A special court-martial convicted Appellant of a single specification of
wrongful use of amphetamine and a single specification of wrongful use of
cocaine, both in violation of Article 112a, Uniform Code of Military Justice
                    United States v. Smith, No. ACM S32421


(UCMJ), 10 U.S.C. § 912a. 1 Officer members sentenced Appellant to a bad-
conduct discharge, reduction to E-1, and a reprimand. The convening authori-
ty approved the sentence as adjudged.
    This case was submitted for our review on its merits and we find no prej-
udicial error. However, after reviewing the record of trial, and in particular
the post-trial processing as it regards the application of Article 60(c), UCMJ,
10 U.S.C. § 860(c), we a have concern about one aspect of the staff judge ad-
vocate’s recommendation (SJAR). We note that the offenses occurred after 24
June 2014 and therefore the limitations on convening authority action under
the amended Article 60(c) apply. The SJAR, however, did not address in any
meaningful way whether Article 60(c), UCMJ, limited the convening authori-
ty’s discretion in taking action on this case. While the current version of Rule
for Courts-Martial (R.C.M.) 1106 does not strictly require that an SJAR ad-
dress those limitations, 2 we find wisdom in the guidance provided in Air
Force Instruction 51-201, Administration of Military Justice, ¶ 9.16.3 that an
“SJAR should contain a statement informing the convening authority what
he/she cannot do under Article 60(c), UCMJ, for offenses committed on or af-
ter 24 June 2014 per Fiscal Year 2014 National Defense Authorization Act
§ 1702(b).”
    It strikes us as axiomatic that a convening authority needs to understand
what he/she can do before deciding what to do in taking action on a court-
martial result. Indeed, the overarching purpose of the SJAR “is to assist the
convening authority to decide what action to take on the sentence in the exer-
cise of command prerogative.” R.C.M. 1106(d)(1). So while R.C.M. 1106 does
not strictly require the SJAR to address limitations on convening authority
action, it does entrust the staff judge advocate with the discretion to include

1Appellant initially entered pleas of guilty to both specifications. In accordance with
his plea to the wrongful use of cocaine, the military judge found Appellant guilty. The
military judge, however, found Appellant’s plea to the wrongful use of amphetamine
improvident and entered a finding of not guilty. Subsequent to a trial on the amphet-
amine specification, the members found Appellant guilty.
2 An SJAR at a minimum “shall provide the convening authority . . . the report of re-
sults of trial . . .; a copy or summary of the pretrial agreement; a copy of any state-
ment submitted by a crime victim pursuant to R.C.M. 1105A; any recommendation
for clemency by the sentencing authority made in conjunction with the announced
sentence; and the staff judge advocate’s concise recommendation.” The SJAR shall
also “state whether, corrective action on the findings or sentence should be taken
when an allegation of legal error is raised in matters submitted” by an accused “or
when otherwise deemed appropriate by the staff judge advocate.” R.C.M. 1106(d)(3–
4)




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                    United States v. Smith, No. ACM S32421


“any additional matters deemed appropriate by the staff judge advocate.”
R.C.M. 1106(d)(5). In light of the stated purpose of an SJAR, we deem the
impact of Article 60(c), if any, on a convening authority’s command preroga-
tive an appropriate matter to include in every SJAR.
    In this case, a bad-conduct discharge was adjudged. In accordance with
Article 60(c), unless an exception applied, the convening authority did not
have the authority to disapprove, commute, or suspend, in whole or part, the
bad-conduct discharge. Appellant in his clemency submission acknowledged
this limitation and requested the bad-conduct discharge be disapproved
based on the substantial assistance exception of Article 60(c)(4)(B), 10 U.S.C.
§ 860(c)(4)(B). Appellant averred that he did provide substantial assistance. 3
The SJAR addendum generally advised the convening authority of the re-
quirement to consider the matters submitted by Appellant, that the SJA had
reviewed them, and that the SJA’s recommendation to approve the findings
and sentence as adjudged had not changed. The addendum did not, however,
directly address whether the substantial assistance exception applied and, if
it did, what the implications were.
    Based on our review of the record, we have our doubts as to whether the
convening authority truly understood the Article 60(c) limitations on his
clemency authority or the potential applicability of the substantial assistance
exception. While both the SJAR and addendum met the letter of the rules in
terms of required contents, the absence of information regarding Article 60(c)
is concerning. Nevertheless, we find that as trial counsel did not provide a
recommendation in recognition of substantial assistance by Appellant in the
investigation or prosecution of another person who had committed an offense
as required by Article 60(c)(4), the exception did not apply. Therefore the con-
vening authority did not have the authority to disapprove, commute, or sus-
pend in whole or part, the bad-conduct discharge. The absence of Article 60(c)
advice did not prejudice the appellant in this case.
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred, Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).



3 In his clemency matters Appellant states that he assisted in the investigation of two
civilian drug dealers in Tucson, Arizona and the prosecution of another military
member. His matters also included a request that the trial counsel “consider recom-
mending, in recognition of substantial assistance by [Appellant]…that the adjudged
bad conduct discharge be disapproved by the convening authority.” Trial counsel did
not provide the recommendation.




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             United States v. Smith, No. ACM S32421


Accordingly, the approved findings and sentence are AFFIRMED.


            FOR THE COURT



            KURT J. BRUBAKER
            Clerk of the Court




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