              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                   Before
               J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                       JEFFREY D. SAGER
          AVIATION ORDNANCEMAN AIRMAN (E-3), U.S. NAVY

                           NMCCA 201400356
                       GENERAL COURT-MARTIAL

Sentence Adjudge: 13 May 2014.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Force Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT David Warning, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Amy
Freyermuth, JAGC, USN.

                           29 December 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

FISCHER, Senior Judge:

     A general court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his plea, of a single specification of abusive sexual contact,
in violation of Article 120, Uniform Code of Military Justice.1

1
  The charge was alleged as the “Additional Charge,” and is referenced as such
throughout this opinion.
The convening authority (CA) approved the adjudged sentence of
24 months’ confinement and a bad-conduct discharge.

      The appellant asserts six assignments of error (AOE): (1)
his charges were referred to a different court-martial than the
one that adjudicated his case; (2) the CA systematically
excluded E-5 personnel as potential members;2 (3) the
convictions are factually and legally insufficient; (4) the
military judge abused his discretion by giving a curative
instruction vice declaring a mistrial after he excluded the
entire testimony of a Government witness heard by the members;
(5) the Additional Charge was unconstitutionally vague, as
applied in the appellant’s case; and (6) the staff judge
advocate (SJA) failed to comply with RULE FOR COURTS-MARTIAL 1106,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) when making his
recommendation to the CA. After carefully considering the
record of trial and the parties’ submissions, we conclude the
findings and sentence are correct in law and fact, and there is
no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     Airman (AN) TK and the appellant were assigned to the same
Division aboard USS GEORGE WASHINGTON, homeported in Yokosuka,
Japan.3 On the evening of 8 March 2013, AN TK visited several
bars with a group of shipmates in an area outside the base
referred to as “the Honch.”4 AN TK testified that after visiting
several bars, he left that group of friends and went to another
nearby bar to charge his cellphone. AN TK understood the
appellant would be at this bar and planned to use him as his
“liberty buddy.”5 Once he arrived at the bar, AN TK found the
appellant and joined him and his friends for the remainder of
the evening.6 This group of six Sailors left the bar around 2300

2
  In light of the affidavit submitted by the Rear Admiral Terry Kraft, USN,
regarding the member selection process for the appellant’s court-martial and
in view of United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015), we find no
merit to this AOE.
3
    Record at 502.
4
    Id. at 505-06.
5
  Id. at 513. At the time of the incident, USS GEORGE WASHINGTON’s policy
required Sailors to have a “liberty buddy” when traveling off-base.
6
    Id. at 1033-34.


                                      2
and walked to Fire Control Technician Second Class (FC2) DS’s
apartment where they all spent the night.7

     Witnesses from the group described AN TK as exhibiting
signs of intoxication while walking to the apartment.8 In a
statement to the Naval Criminal Investigative Service (NCIS),
the appellant described AN TK’s level of intoxication as
“plastered.” But he later testified that AN TK was stumbling
and slurring his words “a little bit” while walking to the
apartment.9 Once inside the apartment, AN TK vomited into a
bucket the appellant provided him.10

     The accounts of AN TK and the appellant diverge at this
point. According to AN TK’s testimony, after vomiting he
“passed out” on a futon in the living room and then awoke to the
appellant manually stimulating his (AN TK’s) penis.11 His penis
was erect after about 5-10 minutes of manual stimulation, and
the appellant then performed oral sex on him until he
ejaculated. He did not open his eyes during this encounter, but
maintained that he knew it was the appellant because “[the
appellant] was the only other one in the room.”12 In describing
why he did not respond during the sexual encounter, AN TK stated
he was frustrated, confused, and “wasn’t really sure what was
going on.”13 He described himself as “too intoxicated,” and that
he was unable to move, talk, or think of a way out of the
encounter.14 When the encounter was over, AN TK fell back
asleep.15

     In his testimony, the appellant provided a different
account of the incident. He stated that after AN TK vomited, he

7
     Id. at 1034-35.
8
   A Government expert witness estimated AN TK’s blood alcohol content (BAC)
peaked at approximately .226 on the night in question. Id. at 657.
9
     Id. at 1035, 1056; Prosecution Exhibit 16 at 1.
10
     Id. at 527, 1036, 1075.
11
     Id. at 528, 604.
12
     Id. at 529.
13
     Id. at 533.
14
     Id.
15
     Id. at 535.


                                         3
and AN TK laid down on the futon together and discussed AN TK’s
problems with his girlfriend and the difficulty the appellant, a
homosexual, had in a previous relationship with a heterosexual
male.16 The appellant described this conversation as “intimate”
and stated that at one point AN TK began crying, then rested his
head on the appellant’s chest.17 He interpreted the conversation
and AN TK’s actions as an invitation for sexual contact and put
his hand on AN TK’s stomach to “test the waters.”18 When AN TK
did not resist, the appellant moved his hand to AN TK’s pants,
pulled his penis out of his underwear, and began to manually
stimulate it.19 After a short time AN TK’s penis became erect
and the appellant performed oral sex until AN TK ejaculated.20

     The next morning, AN TK awoke after the appellant had left
the apartment.21 AN TK testified that his penis was tucked into
his waistband, his pants were undone, and he had ejaculated on
his stomach.22 Sometime after leaving the apartment, AN TK
called his mother. Based in part on her advice, he decided to
go to the hospital and report the incident.23

     At the hospital, AN TK underwent a sexual assault
examination and then was connected with an NCIS agent.24 At the
request of NCIS Special Agent (SA) SC, AN TK participated in a
“pretext” Facebook messenger conversation with the appellant.25
During this conversation the appellant initially stated he did
not remember having a sexual encounter with AN TK. Eventually,
however, the appellant acknowledged the encounter, writing: “It
was me it had to be I’m not lying when I say I really don’t
remember doing that to you . . . It’s inexcusable and I will say

16
     Id. at 1037-38.
17
     Id.
18
     Id. at 1038.
19
     Id. at 1081.
20
     Id. at 1043.
21
     Id. at 535.
22
     Id. at 536.
23
     Id. at 546.
24
     Id. at 547.
25
     Id. at 549, 788.


                                4
I am so sorry . . . .”26 DNA testing identified AN TK’s semen
and the appellant’s saliva from the crotch of AN TK’s boxer
shorts worn on the night in question.27

                               Analysis

Constitutional Challenge to Article 120 as Applied

     We first address the appellant’s contention that his
conviction based on the element that AN TK was “otherwise
unaware the sexual act was occurring” is unconstitutionally
vague as applied in his case.

     We review the constitutionality of statutes de novo.
United States v. Wright, 53 M.J. 476, 478 (C.A.A.F. 2000). Laws
must “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited so that he may act
accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). Prior to prosecution, due process requires that a
person have fair notice that an act is criminal. United States
v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003). Therefore, when “a
statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application,” it is
unconstitutional.   Connally v. General Construction Co., 269
U.S. 385, 391 (1926) (citation omitted). In assessing a
vagueness challenge, we must examine the statute “in light of
the conduct with which the defendant is charged.” Parker v.
Levy, 417 U.S. 733, 757 (1974) (citation omitted). “Criminal
statutes are presumed constitutionally valid, and the party
attacking the constitutionality of a statute has the burden of
proving otherwise.” United States v. Mansfield, 33 M.J. 972,
989 (A.F.C.M.R. 1991) (citation omitted), aff'd, 38 M.J. 415
(C.M.A. 1993).

        The Specification of the Additional Charge is:

        Specification: In that [appellant], on active duty, did, at
        or near [location], on or about 9 March 2013, touch the
        penis of [AN TK] with his hand when he knew or reasonably
        should have known that [AN TK] was asleep, unconscious, or
        otherwise unaware that the sexual contact was occurring,


26
     PE 14 at 22.
27
     Record at 708.


                                   5
        with an intent to arouse the sexual desires of either
        himself or [AN TK].

The findings work sheet presented to the members read as
follows:

        (b) Guilty in that [the appellant] committed a sexual
        contact upon [AN TK] when [the appellant] (knew) (or)
        (reasonably should have known) that [AN TK] was (asleep),
        (unconscious), (or) (otherwise unaware) that the sexual act
        was occurring.28

The military judge instructed the members that if they voted to
convict they were required to both choose the Government theory
under which they found guilt and reflect that choice on the
findings worksheet by circling the applicable language contained
in parentheses.

     Following the military judge’s instruction the members
circled “reasonably should have known” and “otherwise unaware”
on the findings worksheet for this specification. The appellant
now argues that through this action the members rejected the
Government theories that AN TK was asleep or unconscious at the
time of the contact and the Government did not provide notice as
to AN TK’s physical state that rendered him “otherwise unaware”
of the sexual act aside from being asleep or unconscious. Thus,
the appellant contends the specification is unconstitutionally
vague in his case. The appellant’s attack is two pronged: (1)
the phrase “otherwise unaware” did not provide the appellant
sufficient notice of the prohibited conduct; and (2) the phrase
“otherwise unaware” encourages arbitrary and discriminatory
enforcement.

     Our sister court in the Air Force (AFCCA) faced a similar
issue in United States v. Chero, No. 38470, 2015 CCA LEXIS 168,
unpublished op. (A.F.Ct.Crim.App. 28 Apr 2015). In that case
the appellant was found guilty of violating Article 120(b)(2)
and the specification stated he committed a sexual act upon a
person who was “unconscious or otherwise unaware,” but the
evidence at trial showed the victim was asleep. On appeal, the
appellant argued he was not on notice because the phrase
“unconscious or otherwise unaware” omitted the term “asleep” and
thus failed to provide notice. The AFCCA expressly rejected the
appellant’s argument, stating: “we do not find [the] omission to
result in a fatal variance; asleep is just one example of how an

28
     Appellate Exhibit XXV.
                                   6
individual may be ‘otherwise unaware’ and is not an alternative
theory.” Id. at *8-9 (citation omitted).29

     So too here, we conclude that asleep or unconscious are
examples of how an individual may be “otherwise unaware” and are
not alternate theories of criminal liability. A plain reading
of the phrase is that a person cannot engage in sexual contact
with another person when he/she knows or reasonably should know
that the recipient of the contact does not know it is happening.
We find that, as applied to the appellant’s case, Article 120(d)
provided sufficient notice of the proscribed conduct and there
is no risk of arbitrary and discriminatory enforcement. We also
note the defense theory at trial was that AN TK was fully aware
of the appellant’s actions and the sexual encounter was either
consensual or the appellant reasonably believed it was
consensual.

Factual and Legal Sufficiency

     The appellant also argues that his conviction was factually
and legally insufficient. We review factual and legal
sufficiency claims de novo. United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency
is whether we are convinced of the appellant’s guilt beyond a
reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987). The test for legal sufficiency is
whether any rational fact-finder could have found that the
evidence met the essential elements of the charged offenses,
viewing the evidence in a light most favorable to the
Government. Id. at 324. Here, we find appellant’s conviction
both factually and legally sufficient.
     Members convicted the appellant of one specification of
abusive sexual contact. They found the appellant committed
sexual contact upon AN TK by touching AN TK’s penis when the
appellant reasonably should have known that AN TK was otherwise
unaware that the sexual act was occurring. In his testimony,
the appellant admitted to the sexual contact and thus focuses
his legal and factual insufficiency argument on the second
element contending “there was no evidence that [AN] TK was
‘otherwise unaware the sexual contact was occurring.’”30

29
  On 13 July 2015 the Court of Appeals for the Armed Forces granted Chero’s
Petition for Review on an unrelated AOE. See United States v. Chero, 2015
CAAF Lexis 682 (C.A.A.F. July 13, 2015).
30
     Appellant’s Brief of 8 Jun 2015 at 19 (footnote omitted).
                                         7
     AN TK testified that when he awoke the appellant was
already manually stimulating his penis. The Government
introduced substantial evidence that AN TK was heavily
intoxicated when he returned to FC2 DS’s apartment and laid on
the futon. Whether AN TK was asleep or unconscious due to
alcohol consumption/exhaustion, or a combination of these things
is only relevant as to whether the appellant reasonably should
have known AN TK was “otherwise unaware” of the sexual contact.
After carefully reviewing the entire record of trial, to include
all testimony and admitted exhibits, and considering the
evidence in the light most favorable to the prosecution, we are
convinced that a reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt. Furthermore,
after weighing all the evidence in the record of trial and
having made allowances for not having personally observed the
witnesses, we are convinced beyond a reasonable doubt that the
appellant reasonably should have known AN TK was otherwise
unware that the sexual act was occurring. Thus, we find the
appellant's conviction on the Additional Charge and
specification is both legally and factually sufficient.

Failure to Grant a Mistrial

     NCIS SA AR testified as a Government witness about her
interrogation of the appellant. The Government introduced the
appellant’s written statement into evidence during her direct
examination. The appellant had provided her greater detail
about the sexual encounter than in an earlier statement to SA
SC. Specifically, in his earlier interrogation the appellant
maintained that he did not remember the sexual encounter with AN
TK, but said he must have been involved because he was on the
futon with AN TK and no one else in the apartment that night
would have done it. But in his statement to SA AR, the
appellant said that AN TK was lying on the appellant’s chest,
then rolled off before the appellant performed the sexual acts.
The appellant also told SA AR that there was initially some
kissing before the oral sex, but later admitted to SA AR that he
lied about the kissing. Finally, SA AR testified that the
appellant told her that AN TK “mumbled a couple of times, during
the [sexual activity].”

     After both special agents testified, the Government began
playing the NCIS video recording of the appellant’s
interrogations for the members.31 The trial counsel provided the

31
     Record at 815-18.


                                8
military judge a transcript of the video and based on his
concerns from reading ahead, the military judge sua sponte,
raised a suppression issue in an Article 39(a) session, before
the members viewed the appellant’s interrogation by SA AR. 32

     After identifying the issue for counsel, the military judge
recessed the court-martial and gave the defense an opportunity
to bring a suppression motion the following day.33 While the
members had heard SA AR’s testimony, they had not seen the
appellant’s second written statement because, although it was
admitted into evidence, it had not yet been published.34

     The following day, trial defense counsel moved to suppress
the appellant’s statements to SA AR.35 After considering the
issue, the military judge found that SA AR “substantively
violated the constitutionally based rights of the accused” by
representing to the appellant that he would be compelled to take
a polygraph examination and if found deceptive would face
enhanced punishment.36 The military judge then quashed (1) SA
AR’s testimony; (2) the appellant’s written statement to SA AR;
and (3) the recording of SA AR’s interrogation of the
appellant.37

     After the ruling, the defense moved for a mistrial.38 The
military judge denied the motion, opting instead to give the
following curative instruction:

             During the course of the government’s case, you
        heard from Special Agent [AR] from the Naval Criminal
        Investigative Service, indicating that there was
        essentially a subsequent statement, both orally and
        written, made to her from [the appellant]. Listen
        very carefully to me.




32
     Id. at 887.
33
     Id. at 894.
34
     Id. at 871-86.
35
     Id. at 895.
36
     Id. at 909-10.
37
     Id. at 911.
38
     Id. at 917.
                                   9
      In your mind, as you go forward in this case,
Special Agent [AR] never testified. She has no place
in this trial. Her opinions, her recollections, her
statements, her sworn testimony do not exist. I have
quashed them in their entirety. Any reference to
Special Agent [AR] does not exist. It has been
eradicated, ab initio, as if it never had been said or
done.

     Special Agent [AR], it has come to the attention
of this court, grossly violated the constitutional
protections of [the appellant]. You can have no level
of trust or reliability in anything said by [the
appellant] to Special Agent [AR]. Thus, I have
eradicated her testimony, the statement, and any
reference to the statement, as though they never had
been uttered.

     Now, Special Agent [AR]’s inappropriateness and
violative conduct was not known by the prosecutors in
this courtroom. Accordingly, you are not to hold them
personally responsible in being unethical attorneys
going forward in this case. I assure you that is not
the case.

     But likewise, I assure you that Special Agent
[AR]’s participation in this matter rendered the
statement made to her grossly unreliable. Nothing in
our system is more important than fairness and equity.

     Because of its incredible unreliability, which is
the fundamental makeup of any participation of Special
Agent [AR] in this case, you can draw no conclusions
whatsoever that anything you formerly heard about what
[the appellant] said, because of certain prompting and
threats made by Special Agent [AR], would be to any
degree truthful in their foundation. Thus, you must
completely, like I have judicially done, quash them
and eradicate them from anywhere in your functioning
medulla oblongata.

. . . .

[T]hat includes any reference to this statement, which
no longer exists, or that witness, who no longer
exists in this trial, by the government in their


                          10
        opening statement. So you literally subtract that
        from their opening statement and go forward.39

     The military judge gave the instruction immediately after
he ruled on the mistrial.40 He inquired with each member
individually to see if they could abide by his instruction and
all members replied in the affirmative.41 He then advised the
members a second time using similar language during findings
instructions before the members deliberated on the merits of the
case.42 The appellant argues the military judge abused his
discretion in denying the motion for a mistrial. We disagree.

     This court reviews a military judge’s decision on whether
to grant a mistrial for abuse of discretion. United States v.
Dancy, 38 M.J. 1, 6 (C.M.A. 1993). “[A] mistrial is a drastic
remedy” and should be used “only to prevent a manifest injustice
against the accused.” Id. (citation and internal quotation
marks omitted). A military judge’s decision to grant a mistrial
“is appropriate only whenever circumstances arise that cast
substantial doubt upon the fairness or impartiality of the
trial.” Id. (citation and internal quotation marks omitted).
When the members have heard inadmissible evidence, a curative
instruction is the preferred remedy as opposed to declaring a
mistrial, so long as the curative instruction avoids prejudice
to the accused. United States v. Rushatz, 31 M.J. 450, 456
(C.M.A. 1990). Absent evidence to the contrary, this court may
presume that members follow a military judge's instructions.
See United States v. Loving, 41 M.J. 213, 235 (C.A.A.F. 1994);
United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991).

     Here, the military judge did not abuse his discretion in
giving a curative instruction and denying the defense motion for
a mistrial. The military judge gave a timely, specific, and
lengthy curative instruction, which ultimately advised the
members that they were required to “completely . . . quash [the
appellant’s statement to SA AR and SA AR’s testimony] and
eradicate them from anywhere in [their] functioning medulla
oblongata.”43 He reviewed the curative instruction with each

39
     Id. at 933-34, 939.
40
     Id. at 932.
41
     Id. at 934-35.
42
     Id. at 1187, 1194.
43
     Id. at 934.


                                 11
member individually. Every member individually agreed to abide
by his instruction. The military judge expressed great
confidence in the members’ ability to follow his instructions.
He then went on to give the instruction a second time prior to
findings. At no time did the members see the appellant’s
written statement to SA AR or watch the video of SA AR’s
interrogation of the appellant. Therefore, taking all of these
circumstances into account, we find the curative instruction
avoided prejudice to the accused and the military judge did not
abuse his discretion in deciding to give a curative instruction
vice declaring a mistrial.

     Moreover, we find no reasonable possibility that the
appellant suffered prejudice from the members having heard SA
AR’s inadmissible testimony. The appellant gave substantially
the same account of the incident in his testimony that SA AR
previously indicated in her quashed testimony.

Court-Martial Convening Orders

     On 5 September 2013, the CA referred a charge and two
specifications, alleging the appellant violated Article 120,
UCMJ, to a court-martial consisting of five officer members
convened by General Court-Martial Convening Order (GCMCO) 2-13,
signed that same day. At the appellant’s arraignment on 17
September 2013, the trial counsel stated the general court-
martial was “convened by Commander, U.S. Naval Forces Japan, by
[GCMCO] 2-13[.]”44 During this session, the appellant elected to
be tried by a court-martial composed of members with enlisted
representation.45

     On 6 January 2014, the CA signed GCMCO 1-14. It does not
reference a specific case and lists five officers as members.
The CA selected additional members and detailed them to the
appellant’s court-martial in modifications to GCMCO 1-14. The
members that ultimately heard the appellant’s case were detailed
in GCMCO 1A-14 and 1B-14. The court-martial assembled on 15
January 2014.46 Prior to assembly, the appellant repeated his
forum selection-a court composed of members with enlisted
representation—and entered a plea of not guilty to the charge


44
     Id. at 2.
45
     Id. at 12.
46
     Id. at 108.


                                 12
and specifications.47 Following the entry of pleas, the trial
defense counsel moved to dismiss Specification 1 for failing to
state an offense.48 The military judge heard argument on the
issue, but did not immediately rule on the motion.49 Instead, he
elected to proceed with the assembly of members and voir dire.50

           Prior to the assembly of members, trial counsel stated:

               This court is convened by Commander, U.S.
               Naval Forces Japan, by General Court-Martial
               Convening Order 1-14, dated 6 January 2014,
               as amended by 1A-14, dated 9 January 2014,
               as amended by 1B-14, copies of which have
               been furnished to each member. And 1B-14 is
               dated 14 January 2014, your honor.51

     Contrary to her original jurisdictional statement, trial
counsel pointed to GCMCO 1-14 as the original convening order.
GCMCO 1-14, however, did not amend GCMCO 2-13, and GCMCO 2-13
was actually the convening order listed on the charge sheet.52

     Regardless, none of the members listed in GCMCO 1-14 or 2-
13 actually appeared at court on 15 January 2014.53 The CA
issued GCMCOs 1A-14 and 1B-14 to detail members specifically for
the appellant’s court-martial, and those members assembled for
the court-martial.54

     After assembly, during voir dire, the military judge
revisited and granted trial defense counsel’s motion to dismiss
Specification 1,55 but without prejudice. He also granted a



47
     Id. at 110.
48
     Id. at 111.
49
     Id. at 111-23.
50
     Id. at 127.
51
     Id.
52
     GCMCO 1-14; Charge Sheet dated 29 Aug 2013.
53
     Record at 127-28.
54
     GCMCO 1A-14 and GCMCO 1B-14; Record at 127-28, 130.
55
     Id. at 164.
                                        13
recess to afford the Government time to correct the
specification, and prefer and refer it anew.56

     The Government accomplished these tasks that same day. The
CA referred the “Additional Charge” — one specification of
abusive sexual contact — to a general court-martial convened by
“[GCMCO] 2-13 dtd 5 Sep 13, as amended by [GCMCO] 1A-14 dtd 9
Jan 14, as amended by [GCMCO] 1B-14 dtd 14 Jan 14.”57 The CA
also provided the following special instructions: “to be tried
in conjunction with the remaining charge and specification
before the court convened by [GMCCO] 2-13 dtd 5 Sep 13, as
amended by [GCMCO] 1A-14 dtd 9 Jan 14, as amended by [GCMCO] 1B-
14 dtd 14 Jan 14.”58

     The court-martial reconvened on 21 January 2014.59 In light
of the CA’s special instruction to try the Additional Charge at
the same proceeding as the remaining specification on the
original charge sheet, the military judge reviewed with the
appellant his ability to have two separate trials.60 After
consulting with counsel, the appellant advised that he wanted to
have one trial encompassing both the Charge and the Additional
Charge.61 The Government arraigned the appellant on the
Additional Charge, and he again elected to have a panel of
members with enlisted representation decide his case.62

     Prior to entry of the appellant’s pleas on the Additional
Charge, trial counsel described several corrections to the
GCMCO:

             There are three dates that need to be changed in
         1A-14 and we just need to reflect that the court was
         originally convened by 2-13 dated 5 September 2013, as
         opposed to 1-14 dated 6 January 2014. So there are
         three separate paragraphs that have the wrong
         convening order number in them, and we would like them

56
     Id. at 164-67, 173.
57
     Charge sheet dated 15 Jan 2014.
58
     Charge sheet dated 15 Jan 2014; Record at 176.
59
     Record at 175.
60
     Id. at 176.
61
     Id. at 177.
62
     Id. at 189.
                                        14
           all to reflect Convening Order 2-13 dated 5 September
           2013.63

           . . . .

               And then on the second Amending Order 1B-14,
           there are two places where 1-14 is referenced—excuse
           me, just one where 1-14 is referenced and that needs
           to be changed to 2-13 dated 5 September.64

           . . . .

           And then one final issue, sir, we discussed this last
           week. But the members that were listed on 2-13, we
           would ask that the court relieve those members. That
           was the—65

The military judge responded:

           They stand relieved, so ordered.66

     When asked by the military judge, the trial defense counsel
raised no objections to the convening orders.67 The trial
counsel then re-stated the jurisdictional data as follows:

           [T]his general court-martial is convened by Commander,
           U.S. Naval Forces Japan by General Court-Martial
           Convening Order 2-13 dated 5 September 2013, as
           amended by order 1A-14 dated 9 January 2014, as
           amended by order 1B-14 dated 14 January 2014[.]68

     The military judge then announced that the court-martial
was assembled, both with respect to the original charge and
specification as well as the Additional Charge.69 The appellant

63
     Id. at 180.
64
     Id.
65
     Id. at 181.
66
     Id.
67
     Id. at 180-82.
68
     Id. at 184.
69
     Id. at 185.


                                     15
entered a plea of not guilty to the Additional Charge and the
parties moved forward with voir dire.70

     The appellant now asserts his court-martial lacked
jurisdiction to hear his case because the CA referred the
charges to GCMCO 2-13—a panel that never assembled. We disagree
with the appellant’s contention.

     When convening a court-martial, it is the CA’s convening
order which brings the court-martial into existence. United
States v. Glover, 15 M.J. 419, 421 (C.M.A. 1983). Court-martial
jurisdiction thus “depends upon a properly convened court,
composed of qualified members chosen by a proper convening
authority, and with charges properly referred.” United States v.
Adams, 66 M.J. 255, 258 (C.A.A.F. 2008) (citations omitted).
The convening order itself, however, is “merely a formal
recordation of [the CA’s] expressed intent.” Glover, 15 M.J. at
421. In those cases where the order itself, or conflicting
orders, create doubt about the composition of the court-martial,
the courts may attempt to give effect to the CA’s intent,
bearing in mind that “[a]dministrative errors in the drafting of
a convening order are not necessarily fatal to jurisdiction.”
Adams, 66 M.J. at 259; see also United States v. Padilla, 5
C.M.R. 31 (C.M.A. 1952) (“[W]e should give weight to substance,
and should not unduly emphasize matters of form”); United States
v. Mack, 58 M.J. 413, 416 (C.A.A.F. 2003). Furthermore, our
superior court has recognized that the process of excusing
members and adding substitute members is an administrative vice
jurisdictional matter. Mack, 58 M.J. at 417.

     The appellant correctly identifies several convening order
errors reflecting a lack of attention to proper court-martial
procedure which cannot be condoned. The GCMCO modifications
erroneously reference and relieve detailed members in GCMCO 1-14
vice GCMCO 2-13. However, those modifications, along with the
special referral instructions for the Additional Charge, also
clearly evince the CA’s intent to relieve all the members in a
standing panel and detail members, including enlisted members as
required following the appellant’s forum selection, solely for
the appellant’s court-martial.

     The CA selected all of the members listed in General   Court-
Martial Amending Orders 1A-14 and 1B-14 and detailed them   as the
members for the appellant’s trial. The parties agreed at    trial
that the CA intended for the appellant’s panel of members   to be

70
     Id. at 189.
                               16
comprised of the members listed in the amending orders. The
appellant had the opportunity to voir dire all of the members
the CA detailed to the court-martial, and none of the members
listed in GCMCOs 2-13 or 1-14 were actually present on the day
of assembly. In fact, the convening authority clarified his
intent when he referred the Additional Charge on 15 January 15,
stating that he referred the Additional Charge to “[GCMCO] 2-13
dtd 5 Sep 13, as amended by Order 1A-14 dtd 9 Jan 14, as amended
by Order 1B-14 dtd 14 Jan 14.”

     While these administrative errors reflect a less than ideal
practice, we find no prejudice to the appellant’s substantial
rights and do not find jurisdictional error. Nonetheless, the
appellant is entitled to a promulgating order that references
the correct convening orders and we direct the required
corrective action in our decretal paragraph. United States v.
Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998).

SJA’s Failure to Comment on Legal Error

     Following the court-martial, trial defense counsel
submitted two clemency requests—one on 30 June 2014 and another
on 12 September 2014. Trial defense counsel raised several
legal issues in these requests. Notably, she outlined arguments
asserting the military judge erred in denying a defense motion
for a mistrial and that Article 120 was unconstitutionally vague
as applied to the appellant. The latter argument had been the
subject of a post-trial hearing wherein trial defense counsel
moved to dismiss the charge upon which the members convicted the
appellant.71 In a written ruling issued on 25 August 2014, the
military judge denied the defense motion.72

     On 12 September 2014, the CA’s SJA submitted the staff
judge advocate’s recommendation (SJAR) to the CA.73 In the
recommendation, he enclosed both clemency letters from trial
defense counsel.74 The SJA advised that this allowed the CA to
review the raised legal errors in their entirety and “allowed

71
     Record at 1331.
72
     Military Judge’s Order of 25 Aug 2015.
73
  The SJAR is dated 8 September 2014. However, the SJA clarified in his
affidavit that the date was a typographical error and that he actually
submitted the SJAR on 12 September 2014. Government Motion to Attach
Affidavit of CDR Timothy Stone of 9 Apr 2015, filed on 10 Apr 2015.
74
     Id.


                                        17
for a specific discussion on the issues” with the CA.75        In the
text of his recommendation, he stated:

           The Defense raised multiple legal issues during the
           trial and post-trial; these issues are reiterated in
           enclosures (2) and (3). Due to these perceived legal
           errors, Defense requests the finding of guilty be set
           aside, the charge and specification be dismissed, and
           the sentence be disapproved.76

           . . . .

           Having reviewed the results of trial and the record of
           trial, I recommend that you approve the sentence as
           adjudged and order the sentence executed in accordance
           with the UCMJ, MCM, and applicable regulations.77

The SJA advised that he made this recommendation after
“determin[ing] Trial Defense Counsel’s raised legal errors were
without merit and did not require additional action by the CA.”78

     The CA received the SJAR. Prior to approving the sentence
as adjudged, he “considered the results of trial, the
recommendation of the staff judge advocate, and all matters
submitted by the defense and the accused in accordance with
R.C.M. 1105 and 1106.”79

     The appellant asserts the SJA failed to provide an opinion
concerning corrective action on the findings or sentence
following the trial defense counsel’s allegation of legal error
under R.C.M 1105 and requests that we order a new SJAR and CA’s
action. R.C.M. 1106(d)(4) provides that in response to trial
defense counsel’s allegation of legal error in a clemency
request, the SJA is required to advise the CA “whether, in the
staff judge advocate’s opinion, corrective action on the
findings or sentence should be taken[.]” The advice the SJA
provides to the CA, however, may simply “consist of a statement
of agreement or disagreement” and does not require the SJA to


75
     Id.
76
     SJAR at 2.
77
     Id. at 3.
78
     Affidavit of CDR Timothy Stone at 3.
79
     General Court-Marital Order No. 3-14 of 19 Sep 14 at 3.
                                        18
offer “an analysis or rationale.” R.C.M. 1106(d)(4). See also
United States v. Hill, 27 M.J. 293, 295-96 (C.M.A. 1988)

     Here, the SJA enclosed both clemency requests in his SJAR,
acknowledged the trial defense counsel’s assertion of legal
error in the body of his recommendation, discussed the issues
with the CA, and advised the CA to approve the appellant’s
findings and sentence as adjudged. While the SJA did not
explicitly state in his SJAR that the legal errors were without
merit, his recommendation does demonstrate that he neither
agreed with the alleged legal errors nor believed corrective
action was warranted. Therefore, we find the SJAR complied with
the requirements of R.C.M. 1106(d)(4).

     Furthermore, we have already concluded the legal errors
raised in the clemency petition did not warrant relief. Thus,
even if the SJAR did not comply with R.C.M. 1106(d)(4), there
was no prejudice. For these reasons, we decline to grant the
requested relief.

                           Conclusion

     The findings and the sentence are correct in law and fact,
and they are affirmed. The supplemental Court-Martial Order
will reflect that the court-martial was convened by Commander,
U.S. Naval Forces Japan General Court-Martial Convening Order 2-
13 of 5 September 2013, as amended by General Court-Martial
Amending Order 1A-14 of 9 January 2014, as further amended by
General Court-Martial Amending Order 1B-14 of 14 Jan 2014.”

                       For the Court



                       R.H. TROIDL
                       Clerk of Court




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