This opinion is subject to administrative correction before final disposition.




                             Before
              MONAHAN, STEPHENS, and DEERWESTER
                    Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                         Caleb R. STANLEY
                        Seaman (E-3), U.S. Navy
                              Appellant

                             No. 202000116

                         Decided: 27 October 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                              Military Judge:
                             W. Arthur Record

 Sentence adjudged 12 February 2020 by a special court-martial con-
 vened at Naval Air Station Jacksonville, Florida, consisting of a mili-
 tary judge sitting alone. Sentence in the Entry of Judgment: reduction
 to E-1, confinement for 7 months, and a bad-conduct discharge.

                             For Appellant:
                 Captain W. Scott Stoebner, JAGC, USNR

                               For Appellee:
                            Brian K. Keller, Esq.

                        _________________________

      This opinion does not serve as binding precedent under
            NMCCA Rule of Appellate Procedure 30.2(a).
               United States v. Stanley, NMCCA No. 202000116
                             Opinion of the Court

                           _________________________

PER CURIAM:
    After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Uniform Code of Military Justice [UCMJ] arts. 59, 66, 10
U.S.C. §§ 859, 866.
   The findings and sentence are AFFIRMED 1.


                                  FOR THE COURT:




                                  RODGER A. DREW, JR.
                                  Clerk of Court




   1  In affirming the findings and sentence, we note that the only clemency request-
ed by trial defense counsel on behalf of Appellant was disapproval or suspension of
his remaining confinement. Because the adjudged sentence included a bad-conduct
discharge, this requested relief was not possible by operation of law and, thus,
outside the convening authority’s authority. See UCMJ art. 60(c). In a case where
trial defense counsel could have requested clemency that was within the authority of
the convening authority, but instead requested clemency that was not possible by
operation of law, we have remanded for new post-trial processing with conflict-free
counsel. See United States v. Marquardt, No. 201600265, 2017 CCA Lexis 95 (N-M.
Ct. Crim. App. Feb. 14, 2017) (unpublished op.). However, because the only possible
clemency available for Appellant was suspension or disapproval of the adjudged
reduction from E-3 to E-1, and due to the seriousness and breadth of the offenses in
this case, we find there was no “reasonable probability of succeeding” that clemency
would have been granted on that basis. United States v. Jameson, 

, 164
(C.A.A.F. 2007) (internal quotations omitted). Therefore, under the unique
circumstances of this case, we discern no prejudice and no need to remand for new
post-trial processing.


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