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

                           UNITED STATES, Appellee
                                        v.
                          Captain STEVEN W. GILLROY
                          United States Army, Appellant

                                    ARMY 20111112

         Headquarters, U.S. Army Maneuver Support Center of Excellence
                        Jeffery R. Nance, Military Judge
                Colonel James R. Agar II, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA; Captain E. Patrick Gilman, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).


                                       23 May 2012

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                                SUMMARY DISPOSITION
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YOB, Judge:

       A military judge, sitting as a general court-martial, found appellant guilty,
pursuant to his pleas, of three specifications of wrongful use of controlled
substances, one specification of larceny of prescription medications of a value less
than $500.00, two specifications of conduct unbecoming an officer, and two
specifications of soliciting another to wrongfully distribute controlled substances, in
violation of Articles 112a, 121, 133, and 134, Uniform Code of Military Justice,
10 U.S.C. § 912a, 921, 933, and 934 (2006) [hereinafter UCMJ], respectively. The
convening authority approved the adjudged sentence to dismissal and three years
confinement.

      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raised no assignments of error on appeal, but pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), alleges that a substantial basis exists in law
and fact to question his plea to Charge II, Specification 1 (wrongful use of
oxycodone, a controlled substance). Appellant argues that during the providence
GILLROY—20111112

inquiry he raised a matter inconsistent with his guilty plea when he asserted that he
had a valid prescription for oxycodone during the charged time period.

        We disagree that matters raised in the providence inquiry contradicted the
plea. Appellant stated during the providence inquiry that he had a prescription for
oxycodone, but admitted he knowingly consumed oxycodone in amounts in excess of
the amount prescribed, and that this extra oxycodone was not prescribed but was
instead obtained by appellant through fraudulent prescriptions he wrote to other
soldiers that his wife filled at a pharmacy for him. Appellant also admitted during
the providence inquiry that during the time period described in the charge, he
consumed oxycodone after his prescription expired, and that this oxycodone was the
illicit oxycodone he obtained through his wife. Under these circumstances, there is
no substantial basis in law or fact to question apellant’s plea to Specification 1 of
Charge II. United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

       We also note that when the military judge announced the adjudged sentence,
he recommended the convening authority provide clemency in the form of waiving
appellant’s automatic forfeitures for the benefit of appellant’s three-year-old son. *
However, the staff judge advocate’s recommendation (SJAR) and its addendum
failed to advise the convening authority of the military judge’s clemency
recommendation. See R.C.M. 1106(d)(3). In responding to the SJAR, appellant’s
trial defense counsel did not comment on the omission, nor did appellant ever
indicate any desire for a waiver of automatic forfeitures in any post-trial document.

       In the absence of any objection, we review SJAR deficiencies for plain error.
R.C.M. 1106(f)(6). See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000);
United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998). See also United
States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). We find the SJA’s failure to
apprise the convening authority of the military judge’s clemency recommendation
was error that was plain and obvious. Ultimately, however, we hold that based on
the evidence in the record, appellant cannot make “some colorable showing of
possible prejudice” due to this error. United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998). See United States v. Capers, 62 M.J. 268, 269–270 (C.A.A.F.
2005).

       Appellant was present at trial when the military judge made his clemency
recommendation. Despite the military judge’s recommendation, appellant completed
a Post-Trial and Appellate Rights Form, indicating that he did not want to request
*
 An accused is subject to automatic forfeitures if sentenced to more than six months
of confinement. UCMJ art. 58b(a). Under Article 58b(b), UCMJ, if an accused has
dependents, a convening authority “may waive any or all of the [automatic]
forfeitures of pay and allowances . . . for a period not to exceed six months,” and
such money “shall be paid . . . to the dependents of the accused.” See also Rule for
Courts-Martial [hereinafter R.C.M.] 1101(d)(1).


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GILLROY—20111112

waiver of any automatic forfeitures. Instead, appellant submitted clemency matters
via R.C.M. 1105 and R.C.M. 1106, requesting other forms of relief. At no time did
appellant submit a request for waiver of automatic forfeitures for the benefit of his
son or otherwise seek to leverage the clemency recommendation of the military
judge. Furthermore, after receiving the SJAR, appellant had the opportunity to
respond to the SJA’s failure to identify the military judge’s clemency
recommendation, but he did not do so.

        Given the facts of the case, it is not at all clear that appellant would desire a
waiver of the automatic forfeiture of his pay. Evidence presented at trial indicated
appellant and his wife were in the midst of a pending divorce. Appellant’s wife
testified during the pre-sentencing portion of the trial that she had been a drug
abuser for the past two years and was on probation for burglary offenses involving
her attempts to steal drugs. Prior to appellant being charged with the offenses at
issue in this case, he had lived separately from his wife and had sole custody of his
young son per agreement with his wife. In his post-trial submissions to the
convening authority, however, appellant noted that after his conviction his wife had
taken custody of his son and had removed him from Missouri to live with her in
Florida. He also indicated his wife was in a dispute with his parents over custody of
their son. Therefore, given that a waiver of automatic forfeitures could lead to his
wife taking control of these assets as the custodial parent of his son at a time when
appellant’s parents were battling with her for custody of the child, the record
supports appellant’s expressed desire to forego waiver of his automatic forfeitures in
his case.

       On consideration of the entire record, to include matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we
hold the findings of guilty and the sentence as approved by the convening authority
correct in law and fact. Accordingly, those findings of guilty and the sentence are
AFFIRMED.

      Senior Judge KERN and Judge ALDYKIEWICZ concur.

                                         FOR THE
                                         FOR THE COURT:
                                                 COURT:




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




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