United States v. Miller

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: August 29, 2019
• Docket: 201900093
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before FULTON, HITESMAN, and GERDING, Appellate Military Judges _________________________

UNITED STATES Appellee

v.

Andrew W. MILLER Machinist Mate Nuclear Power Second Class (E-5), U.S. Navy Appellant

No. 201900093

Decided: 29 August 2019. Appeal from the United States Navy-Marine Corps Trial Judiciary. Military Judge: Captain Stephen Reyes, JAGC, USN. Sentence ad- judged 13 December 2018 by a special court-martial convened at Fleet Activity Yokosuka, Japan, consisting of a military judge sitting alone. Sentence approved by the convening authority: reduction to E-1, con- finement for 120 days, and a bad-conduct discharge 1. For Appellant: Captain Bree A. Ermentrout, JAGC, USN. For Appellee: Brian K. Keller, Esq. _________________________

This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a). _________________________

1 The Convening Authority suspended confinement in excess of 30 days and the bad-conduct discharge pursuant to a pretrial agreement. United States v. Miller, No. 201900093

PER CURIAM: After careful consideration of the record, and appellant’s assertion of error in the court-martial order (CMO), we have determined that the approved findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866. However, we agree with appellant that the “Ac- tion” section of the CMO does not accurately reflect that the suspended bad- conduct discharge is to be remitted. Although we find no prejudice from this scrivener’s error, the appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the supplemental CMO shall reflect that the suspended bad-conduct discharge is to be remitted 12 months from the date of the CMO, unless sooner vacated. The findings and sentence as approved by the convening authority are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court