UNITED STATES, Appellee

                                     v.

                  Raphelito G. WELLINGTON, Sergeant
                         U.S. Army, Appellant


                               No. 02-0955


                         Crim. App. No. 9900782



       United States Court of Appeals for the Armed Forces

                         Argued April 30, 2003

                          Decided July 7, 2003

    GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.

                                  Counsel
For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
   D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
   Major Imogene M. Jamison (on brief).

For Appellee: Captain Janine P. Felsman (argued); Colonel Lauren
   B. Leeker, and Major Jennifer H. McGee (on brief).

Military Judge:    J. P. Galligan


  This opinion is subject to editorial correction before final publication.
United States v. Wellington, No. 02-0955/AR


      Judge GIERKE delivered the opinion of the Court.

      Appellant was charged with raping and forcibly sodomizing

his 16-year-old stepdaughter, CT, on divers occasions between

November 1, 1998 and February 10, 1999, in violation of Articles

120 and 125, Uniform Code of Military Justice [hereinafter UCMJ],

10 U.S.C. §§ 920 and 925 (2000), respectively; and committing an

indecent assault on CT between February 11, 1999 and March 18,

1999, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).

A military judge sitting as a general court-martial convicted

Appellant, contrary to his pleas, of the indecent assault and the

lesser-included offenses of attempted rape and attempted forcible

sodomy, in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000).

The adjudged and approved sentence provides for a dishonorable

discharge, confinement for six years, total forfeitures, and

reduction to the lowest enlisted grade.           The Court of Criminal

Appeals summarily affirmed the findings and sentence.

      This Court granted review of the following issues:

      I. WHETHER THE MILITARY JUDGE           ABUSED HIS DISCRETION IN
      DENYING THE DEFENSE MOTION FOR          A CONTINUANCE WHERE THE
      CONTINUANCE WAS NEEDED BECAUSE          OF THE GOVERNMENT’S FAILURE
      TO DELIVER DISCOVERY DOCUMENTS          THAT IT HAD PROMISED TO
      PROVIDE TO THE DEFENSE.

      II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE
      STATEMENTS OF CT UNDER THE RESIDUAL HEARSAY EXCEPTION,
      MILITARY RULE OF EVIDENCE 807, WHEN THE STATEMENTS WERE
      NEITHER RELIABLE NOR NECESSARY GIVEN THE FACT THAT CT WAS
      FEVER-RIDDEN AND ON MULTIPLE NARCOTICS AT THE TIME SHE GAVE
      THE STATEMENTS AND GIVEN THE FACT THAT SHE WAS PRESENT TO
      TESTIFY AT TRIAL.

      III. WHETHER THE STAFF JUDGE ADVOCATE’S POST-TRIAL
      RECOMMENDATION AND ITS ADDENDUM PREJUDICED THE APPELLANT
      WHEN THE CONVENING AUTHORITY CONSIDERED CLEMENCY BECAUSE
      THEY CONTAINED ERRONEOUS INFORMATION AS TO THE APPELLANT’S
      DISCIPLINARY RECORD AND HISTORY OF RESTRAINT AND FAILED TO
      ADDRESS LEGAL ERROR RAISED IN THE DEFENSE RULE FOR COURTS-
      MARTIAL 1105 MATTERS.


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United States v. Wellington, No. 02-0955/AR



For the reasons set out below, we affirm so much of the decision

below as affirms the findings of guilty, but we return the record

for a new staff judge advocate recommendation (SJAR) and

convening authority action.

                         I.   Factual Background

                              A.   The Offenses

      The victim, CT, was diagnosed as having leukemia in 1994.

She died on November 27, 1999, some four months after Appellant’s

trial.

      CT spent significant periods of time in the hospital, and

she underwent bone marrow treatment in the summer of 1998.              After

being released from the hospital, she was “very debilitated,” but

gradually became stronger.         She suffered a relapse and was again

hospitalized on February 12, 1999.            Dr. Linda Shaffer, one of

CT’s doctors, believed that there was no hope for CT’s recovery.

      On the night of March 17-18, 1999, CT began experiencing

“excruciating pain” in her abdomen.            At about 4:00 a.m. on March

18, Dr. Shaffer was summoned to the hospital.            CT asked Dr.

Shaffer if she was dying, and Dr. Shaffer replied in the

affirmative.    At the time, CT had a fever of 103.4 degrees.           CT

asked to see her mother.       Dr. Shaffer contacted the family and

asked them to come to the hospital.

      During a private conversation with her mother during the

early morning of March 18, CT admitted that she and her aunt had

molested her brother.      CT was crying and talking and then fell

asleep.   CT’s mother called her brother into the room.           CT awoke




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United States v. Wellington, No. 02-0955/AR


and told her brother, “I did something bad to you,” and they

cried.

      After her brother left the room, CT told her mother that

Appellant had kissed her and touched her breasts.         CT told her

mother that Appellant would come into her room at night and would

“put his ‘private’ against her ‘private’ and rub.”         While CT was

talking, she “was falling asleep during a lot of it and not

finishing her sentences.”       CT told her mother that Appellant got

in bed with her in the hospital and “was rubbing on her.”         CT

told her mother that she did not tell her about Appellant’s acts

because she was afraid that her mother would not love her.

      CT’s mother became angry and told Dr. Shaffer that she was

going to kill the Appellant.        Dr. Shaffer reported the threat to

her supervisor, Dr. Reginald Moore, who also was one of CT’s

doctors.

      Later that same day, Ms. Brenda Fenner, an “investigative

worker” for the state of Texas, interviewed CT, accompanied by

Dr. Moore, Criminal Investigative Command (CID) Special Agent

(SA) Hawthorne, and CT’s mother.          The interview was videotaped by

SA Hawthorne.

      During this interview, CT told Ms. Fenner that shortly after

her 16th birthday on November 7, 1998, Appellant began rubbing

her legs underneath her pajamas.          CT told Ms. Fenner that she did

not tell her mother about the incident because she thought that

her mother would not love her any more.

      CT said that the family had to move out of their home

because of a defective heater that was causing carbon monoxide

poisoning.    While they were temporarily living in a guest house,


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United States v. Wellington, No. 02-0955/AR


Appellant came into her room at about 2:00 a.m. and got in her

bed.    He began kissing her and putting his tongue in her mouth.

CT pretended to be asleep and Appellant stopped.           “Maybe about an

hour later” he began rubbing her breast and touching her buttocks

and her “private part” under her clothing.

       CT said that, after the family moved back into their home,

Appellant came into her room at night, sucked on her breasts,

pulled off her underpants, and tried to “penetrate” her.           On a

“couple of other nights” Appellant removed CT’s underwear and

rubbed his penis against her buttocks.

       CT told Ms. Fenner that while her mother was in the hospital

having a baby, Appellant tried to have sex with her in her

mother’s bed.     At that point in the interview, CT began crying

uncontrollably and said, “I don’t want to talk anymore right

now.”    The interview was terminated.

       On the next day, March 19, Dr. Shaffer was conducting a

gynecological exam of CT in an effort to determine the sources of

her multiple infections.       Dr. Shaffer explained to CT that the

exam was necessary to determine if she had an infection that had

not been treated.     Dr. Shaffer testified that after this

explanation, CT spontaneously said, “after ‘he’ was done, she

would go to the bathroom to get all the ‘yuckie stuff’ out, and

that when she wiped there would be blood on her tissue, and it

would hurt really bad when she [urinated].”

       Dr. Shaffer testified that CT was mentally “normal” when she

made the spontaneous statement.           CT knew who Dr. Shaffer was,

where she was, and what they were talking about.           CT had been




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United States v. Wellington, No. 02-0955/AR


“very involved” in making choices of narcotics and medical

procedures, and she was mentally alert.

      On March 26, Ms. Fenner, accompanied by Dr. Moore, Dr.

Shaffer, and SA Hawthorne, conducted a second videotaped

interview.    In this interview, CT said that at least one of the

incidents occurred while she was in the hospital.        Appellant had

agreed to watch CT overnight, and sometime during the night, he

got in the hospital bed with CT and rubbed her vagina, buttocks,

and breasts.    When SA Hawthorne asked CT if Appellant actually

touched her with his penis, CT said that she was lying on her

back and “He tried to go in.”        CT told him “stop, it hurts.”   On

another occasion, she was on her stomach and he tried to “get in”

her anus.    She was “scooting” away from Appellant but could not

get away.    CT said, “And if I moved anywhere, it would go, it

would – it – the penis would go in, or something --.”        At this

point in the interview, CT began crying and the interview was

terminated.

      Although CT’s mother testified that CT “was definitely not

‘with it’” during the period from March 17-31, CT’s mother found

CT’s accusations sufficiently credible to cause her to threaten

to kill Appellant.      Dr. Moore and Dr. Shaffer testified that CT

was properly oriented and “very coherent” during the videotaped

interviews, and they opined that she was not experiencing “any

hallucination, disorientation, confusion, or anything of that

nature.”

      Appellant was interviewed by agents of the CID on March 18

and 19.    He provided a sworn written statement in which he




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United States v. Wellington, No. 02-0955/AR


admitted that he had kissed and fondled CT, and rubbed his penis

against her.    He denied any sexual penetration.

                      B.    Request for Continuance
      On June 21, four days after the referral of charges, the

defense requested CT’s medical records.         On July 17, the

prosecution responded that many of the documents were available

for review at various agencies at or in the vicinity of Fort Sam

Houston, Texas.     On July 23, the defense asked for copies of the

records.    The prosecution promised to copy the records and send

them to defense counsel by overnight Federal Express; however,

the records were never sent.

      On July 28, the defense filed a written motion to dismiss

the charges with prejudice for lack of speedy trial in violation

of Rule for Courts-Martial 707 [hereinafter R.C.M.], Articles 10

and 33, UCMJ, 10 U.S.C. §§ 810, 833 (2000) and the Sixth

Amendment.

      When the defense counsel arrived at Fort Sam Houston on

August 3, the day before trial, he was offered the opportunity to

view and copy the requested documents, “a nearly 12-inch stack of

mostly double sided medical records.”         On the same day, the

defense counsel filed a written motion for a two-week

continuance, citing the Government’s failure to send the medical

records as promised.       The defense argued that the medical records

were essential to the defense “because they pertain to [CT’s]

physical and mental condition, as well as medications received by

her, at the time of the statements which the Government is

attempting to introduce.”




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United States v. Wellington, No. 02-0955/AR


      The prosecution opposed both motions, but conceded that the

records were not provided to the defense until noon on August 3.

At a pretrial hearing on the afternoon of August 4, defense

counsel argued that he needed CT’s medical records to show

“medications, indications of her mental status, [and] the times

that she was hallucinating.”        The military judge noted that CT’s

doctors had testified at the hearing pursuant to Article 32,

UCMJ, 10 U.S.C. § 832 (2000), and that the defense had

interviewed them.     The military judge asked defense counsel,

“[D]o you have any reason to believe that the doctors haven’t

told you forthrightly, exactly, what types of medication she has

been taking?”     Defense counsel responded:

            Actually, your Honor, I have very good reason to
            believe that the doctors are reluctant to say anything
            that may be seen as favorable to the defense. So,
            therefore, I believe it will be necessary to confront
            them with their own medical records in order to do that
            effectively.

      After ascertaining that the defense adhered to its earlier

motion to dismiss for lack of speedy trial, the military judge

denied the request for a continuance.         The military judge then

stated:

            I will permit the defense, however, broad latitude in
            any cross-examination of the physicians on the matters
            associated with the types of drugs that the victim has
            been taking, and any type of pharmacological [effect]
            that those might have on an individual, to the extent
            that it would be [sic] appear relevant.

            . . . .

            . . . And again, if you need additional time, if time
            is required for you to be able to sit down and go over
            some of these in greater detail with the doctor, bring
            that to the court’s attention. But to the extent, that
            it is the only basis of the defense’s request for
            continuance – motion for continuance by the defense is
            denied.


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United States v. Wellington, No. 02-0955/AR



      Finally, the military judge explained that it was important

to proceed with the trial as originally docketed in light of

Appellant’s “continuing demand for a speedy trial” and “the very

unique tenuous medical condition of the victim.”

                        C.   Residual Hearsay

      CT testified at Appellant’s court-martial.    She testified

that Appellant had “French kissed” her, rubbed her breasts and

legs, and rubbed his penis between her legs near her vagina.      She

described the incidents as “fooling around.”    She also testified

that Appellant rubbed his finger on her vagina.

      CT testified that she had no recollection of saying that

Appellant touched her buttocks with his penis.     She did not

remember making any statements to Dr. Moore or Ms. Fenner.       She

testified that she remembered nothing that happened in the

hospital in late March because she “was under a lot of

medication.”

      She testified that she loved Appellant but believed that he

had to be punished because he did something wrong.     Finally, she

testified that she did not report Appellant’s sexual abuse to her

mother because she was afraid that her mother would not love her

any more.

      The prosecution offered four statements under Military Rule

of Evidence 807 [hereinafter M.R.E.], the residual hearsay

exception: (1) CT’s statements to her mother on March 18; (2) the

videotaped interview on March 18; (3) CT’s spontaneous statement

to Dr. Shaffer during the gynecological examination on March 19;

and (4) the videotaped interview on March 26.    The defense



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United States v. Wellington, No. 02-0955/AR


objected, asserting that the statements were unreliable because

at the time CT made them she was under the influence of multiple

drugs, hallucinating, in and out of consciousness, and running a

high fever.    The defense also pointed out that none of the

statements were under oath.       The military judge admitted the four

statements.    He left open the possibility that further detailed

findings would be appended to the record if necessary, but no

further findings were appended.

                             D. The SJAR
      The SJAR stated that Appellant received nonjudicial

punishment under Article 15, UCMJ, 10 U.S.C. § 815 (2000) on

two occasions.     The SJAR recited the following:

      Prior Art. 15s: Field Grade Article 15 for underage
      drinking, assault consummated by battery, and drunk and
      disorderly at Travis Air Force Base. Punishment
      imposed on 24 Jul 98. Field Grade Article 15 for
      failure to obey lawful order. Punishment imposed on 14
      Dec 98.

The Government concedes that this entry is incorrect, and

that Appellant did not receive nonjudicial punishment at any

time during his career.
      The SJAR also advised the convening authority that

Appellant was not subjected to any pretrial restraint.      This

entry was incorrect because Appellant was restricted.      In

fact, during the trial Appellant contended that the

restriction was so onerous that it was tantamount to

confinement.

      Based on the recommendation of the military judge, the

staff judge advocate (SJA) advised the convening authority

to suspend the adjudged total forfeitures.      She advised that



                                      10
United States v. Wellington, No. 02-0955/AR


total forfeitures could be suspended “for a maximum period

of two years” under Army regulations and R.C.M. 1108.        In

his clemency petition, Appellant asked the convening

authority to “suspend his forfeitures, both adjudged and

automatic, to the fullest extent permitted by law.”

      In his post-trial submission to the convening authority

under R.C.M. 1105 he repeated his assertion that his

restriction was tantamount to confinement, but he did not

point out that the SJAR was incorrect.        The SJA submitted an

addendum, but no corrections were noted in the addendum.

                           II.   Discussion
                           A. Continuance

      Article 40, UCMJ, 10 U.S.C. § 840 (2000) empowers

military judges, to “for reasonable cause, grant a

continuance to any party for such time, and as often, as may

appear to be just.”      “Reasonable cause” includes

insufficient opportunity to prepare for trial.        See R.C.M.

906(b)(1) discussion.      In Morris v. Slappy, 

, 11
(1983), the Supreme Court recognized that “broad discretion
must be granted trial courts on matters of continuances.”

Accordingly, the Supreme Court adopted a very deferential

standard of review, stating that “only an unreasoning and

arbitrary ‘insistence upon expeditiousness in the face of a

justifiable request for delay’” will result in reversal.

See also United States v. Weisbeck, 

, 464 (C.A.A.F. 1999)(abuse of discretion to deny

continuance to obtain expert witness).        On the other hand,

possible loss of witnesses is a valid consideration in


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United States v. Wellington, No. 02-0955/AR


deciding whether to deny a continuance.         See United States

v. Royster, 

, 490-91 (C.A.A.F. 1995)(no abuse of

discretion to deny continuance to prevent possible loss of

witnesses).

      In this case, we need not decide if the military judge

abused his discretion, because Appellant has not established

that he was prejudiced.       His counsel cross-examined Dr.

Shaffer and Dr. Moore about CT’s medications, the effect of

her medications on her mental status, and the incidents of

hallucination.     To this day, Appellant has not shown what he

would have done differently at his trial if the Government

had responded to the request for discovery in a timely

manner.

                        B.   Residual Hearsay
      The military judge admitted CT’s statement to her

mother, the two videotaped interviews conducted by Ms.

Fenner, and CT’s statement to Dr. Shaffer as residual

hearsay under M.R.E. 807.       The rule provides:

            A statement not specifically covered by Rule 803
            or 804 but having equivalent circumstantial
            guarantees of truthworthiness, is not excluded by
            the hearsay rule, if the court determines that (A)
            the statement is offered as evidence of a material
            fact; (B) the statement is more probative on the
            point for which it is offered than other evidence
            which the proponent can procure through reasonable
            efforts; and (C) the general purposes of these
            rules and the interests of justice will best be
            served by admission of the statement into
            evidence.

      The residual-hearsay exception is “intended to apply

[only] to highly reliable and necessary evidence.”         United




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United States v. Wellington, No. 02-0955/AR


States v. Giambra, 

, 334 (C.M.A. 1991)(citing S.

Saltzburg, et al., Military Rules of Evidence Manual 659

(2 ed. 1986).     A military judge’s decision to admit residual

hearsay is entitled to “considerable discretion” on

appellate review.     United States v. Pollard, 

, 49

(C.M.A. 1993).     Where, as in this case, the declarant

testifies and the Sixth Amendment’s Confrontation Clause is

satisfied, reliability of the residual-hearsay evidence may

be established by the circumstances that immediately and

directly surround the making of the declaration as well as

corroboration by other evidence extrinsic to the

declaration.    United States v. Morgan, 

, 409
(C.M.A. 1994); United States v. McGrath, 

, 167

(C.M.A. 1994).

      The necessity prong “essentially creates a ‘best

evidence’ requirement.”       United States v. Kelley, 

, 280 (C.A.A.F. 1996)(citing Larez v. City of Los

Angeles, 

, 644 (9th Cir. 1991)).           This prong may
be satisfied where a witness cannot remember or refuses to
testify about a material fact and there is no other more

probative evidence of that fact.           See United States v.

Owens, 

(1988)(witness could not remember

identifying his attacker because of memory loss caused by

injuries suffered in the attack); United States v.

Martindale, 

(C.M.A. 1990), aff’d after remand by

(C.M.A. 1994)(learning-disabled minor victim

unable or unwilling to testify).




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United States v. Wellington, No. 02-0955/AR


      In this case, there is no dispute about the materiality

of the evidence.     Appellant contends, however, the evidence

was not reliable because CT was under the influence of drugs

and possibly hallucinating.       Appellant also contends that

the evidence was not necessary because CT testified.        The

military judge determined that the four statements were

reliable, having “circumstantial guarantees of

truthworthiness” equivalent to M.R.E.s 803 and 804.        For the

following reasons, we hold that the military judge did not

abuse his discretion by admitting the four statements as

residual hearsay.

      With regard to CT’s statements to her mother on March

18, the military judge noted that: (1) the statements

occurred shortly after Dr. Shaffer told CT that she was

dying; (2) they were similar to a dying declaration under

M.R.E. 804(b)(2); and (3) they were made to her mother, for

whom she professed deep love, in a non-coercive, private

setting.    The record also reflects that CT preceded her

accusations against Appellant with a confession to her

mother that she had abused her brother.       See M.R.E.
804(b)(3)(statements against interest).

      By viewing the videotapes, the military judge was able

to observe CT’s demeanor, evaluate the questioning

techniques, observe the physical surroundings, and evaluate

CT’s clarity of thought at the time she made the statements.

Regarding the first videotaped interview on March 18, the

military judge considered that it took place in the same

non-coercive environment on the same day as CT’s


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United States v. Wellington, No. 02-0955/AR


conversation with her mother; (2) it occurred shortly after

CT was informed that she was dying; (3) CT’s mother was

present during the interview; and (4) Dr. Shaffer, whom she

trusted, also was present.       With respect to the the second

videotaped interview on March 26, the military judge noted

that it took place under conditions similar to the first

videotaped interview, with Dr. Shaffer and Dr. Moore

present.    See United States v. Ureta, 

, 297
(C.A.A.F. 1996)(potentially coercive atmosphere attenuated

by presence of mother and trusted friend).       According to Dr.

Shaffer and Dr. Moore, CT was mentally alert, coherent, and

not hallucinating during the videotaped interviews.       See

Idaho v. Wright, 

, 821 (1990)(listing mental

state as a factor).

      Regarding CT’s statement to Dr. Shaffer on March 19,

the military judge considered that: (1) it was spontaneous

(see 

as factor)); (2) made during a

gynecological examination, immediately after Dr. Shaffer

told CT that she was looking for sources of infection; and
(3) similar to a statement made for purposes of medical

diagnosis under M.R.E. 803(4).

      Finally, the military judge considered several

additional factors in determining that all four statements

were reliable: (1) their proximity in time to the events

described; (2) their internal consistency; (3) their

consistency with each other; (4) CT’s apparent intelligence

and use of terminology appropriate to her age; (5) CT’s lack

of bias or motivation to lie; and (6) the absence of


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United States v. Wellington, No. 02-0955/AR


evidence of efforts to cause her to fabricate, lie, or

embellish.    See 

(listing appropriate

terminology and consistent repetition as factors); see also

.

      The military judge took into account that none of the

statements were sworn, although he did not expressly address

the defense assertion that CT’s declarations were unreliable

because she was heavily medicated and hallucinating, he had

before him the uncontroverted testimony of Dr. Moore and Dr.

Shaffer that CT was “very coherent” and was not experiencing

“any hallucination, disorientation, confusion, or anything

of that nature” before or during the videotaped interviews.

In addition, he was able to view the videotape and make his

own independent evaluation of her mental condition.         He

concluded that the totality of the circumstances provided

the requisite indicia of reliability.         Based on the evidence

of record, we hold that the military judge did not abuse his

discretion by determining that the four statements met the

reliability prong of M.R.E. 807.

      We turn next to the question whether the statements

were necessary.     CT’s trial testimony corroborated

Appellant’s confession to various indecent acts, but she

consistently testified that she could not remember the

sexual assaults in the hospital and could not remember

telling her mother, Dr. Shaffer, or Dr. Moore about

Appellant’s sexual abuse.       CT attributed her lack of memory

to the massive medication she received during a period when

her doctors believed that her death was imminent.         CT’s four


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United States v. Wellington, No. 02-0955/AR


statements were the only evidence supporting the charges of

rape and forcible sodomy and the only evidence corroborating

Appellant’s confession to committing indecent acts.        See

(need for corroboration made residual

hearsay necessary).      The videotape was the best evidence

available to the military judge to evaluate the clarity of

CT’s thought processes during the two videotaped interviews

and to resolve the issues raised by the defense regarding

her mental condition.      Thus, we hold that the military judge

did not abuse his discretion when he determined that the

residual hearsay was necessary.

                            C.   The SJAR
      Article 60(d), UCMJ, 10 U.S.C. § 860(d) (2000),

requires the convening authority to “obtain and consider the

written recommendation of his staff judge advocate or legal

officer.”    Consistent with this Congressional intent, the

President has acknowledged that “[t]he purpose of the

recommendation . . . 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).   In United

States v. Mark, 

, 101 (C.A.A.F. 1997), this Court

stated:

      The importance of the SJA’s recommendation with respect
      to a convening authority’s action is long established.
      See e.g., United States v. Leal, 

(1996);
      United States v. Norment, 

(CMA 1992);
      United States v. Narine, 

(CMA 1982); United
      States v. Goode, 

(CMA 1975). Although its
      scope has been narrowed, the significance of the SJA’s
      recommendation and its contents has actually increased.
      This has occurred because the convening authority is no
      longer required to personally review the record of
      trial before taking action. See United States v. Diaz,


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United States v. Wellington, No. 02-0955/AR


      

, 340 (CMA 1994)(explaining 1993 amendments
      to the Code related to the convening authority’s post-
      trial responsibilities).

      Where, as in this case, the SJAR is served on the

defense counsel and accused in accordance with R.C.M.

1106(f)(1), and the defense fails to comment on any matter

in the recommendation, R.C.M. 1106(f)(6) provides that any

error is waived unless it rises to the level of plain error.

      R.C.M. 1106(d)(3)(C) and (D) require that the SJAR

contain a summary of “any records of nonjudicial punishment:

and “[a] statement of the nature and duration of any

pretrial restraint.”      The Government concedes the SJAR

misstates Appellant’s disciplinary record and omits mention

of the pretrial restraint imposed.            We test for plain error,

because Appellant did not comment on these errors.∗           See

generally United States v. Powell, 

(C.A.A.F.

1998).    In our view, the errors are “clear” and “obvious.”

question is whether the errors resulted in

material prejudice to Appellant’s substantial right to have

a request for clemency judged on the basis of an accurate

record.




∗
  In response to Appellant’s request for relief from the adjudged
total forfeitures, the SJA advised the convening authority that
he was authorized to suspend the forfeitures “for a maximum
period of two years as per AR [Army Regulation] 27-10, para. 5-31
and Rule for Courts-Martial 1108.” This advice also appears to
be incorrect, because the version of the Army Regulation in
effect at the time of the convening authority’s action, as well
as the current version (at paragraph 5-34), authorize suspension
for a maximum period of two years or the period of any unexecuted
portion of confinement, whichever is longer. (Emphasis added.)



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United States v. Wellington, No. 02-0955/AR


      In this case Appellant had no disciplinary record prior

to his court-martial, but the SJAR portrayed him as a

mediocre soldier who had twice received punishment from a

field grade officer.      According to the erroneous SJAR, the

first punishment was for underage drinking, drunk and

disorderly conduct, assault and battery; the second

punishment was for disobedience.           Appellant’s “best hope for

sentence relief” was dashed by the inaccurate portrayal of

his service record.      See United States v. Jones, 

, 439 (C.M.A. 1993).       Accordingly, we hold that there was

plain error in the SJAR, and we will not speculate on what

the convening authority would have done if he had been

presented with an accurate record.            

      The decision of the United States Army Court of

Criminal Appeals is affirmed with respect to findings and

reversed as to sentence.       The record is returned to the

Judge Advocate General of the Army for remand to a convening

authority for a new staff judge advocate’s review and
convening authority’s action.        Thereafter, Articles 66 and

67, UCMJ, 10 U.S.C. § 866, 867 (2000), will apply.




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