United States v. Sergeant First Class JAMES J. PHILPOT

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and CARLTON Appellate Military Judges

UNITED STATES, Appellee v. Sergeant First Class JAMES J. PHILPOT United States Army, Appellant

ARMY 20081068

Headquarters, United States Army Special Forces Command Patrick J. Parrish, Military Judge Lieutenant Colonel John S.T. Irgens, Staff Judge Advocate

For Appellant: Major Grace M. Gallagher, JA; Captain Todd Lindquist, JA (on brief).

For Appellee: Lieutenant Colonel Martha L. Foss, JA (on brief).

29 March 2010

-------------------------------- SUMMARY DISPOSITION --------------------------------

Per Curiam:

This case was submitted to the court on its merits, without assignment of error. The court notes that the staff judge advocate recommendation (SJAR) was signed by Major (MAJ) James A. Bagwell “for” Lieutenant Colonel (LTC) John S.T. Irgens, the staff judge advocate (SJA). MAJ Bagwell also signed a memorandum granting the defense additional time to submit Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters. On the extension authorization, MAJ Bagwell’s signature block makes clear that he served as the deputy staff judge advocate (DSJA). In his R.C.M. 1105 matters, appellant did not object to, or comment, on MAJ Bagwell signing for LTC Irgens.

Article 60(d), Uniform Code of Military Justice [hereinafter UCMJ], states that the SJA or legal officer[1] shall review certain cases and provide a written recommendation to the convening authority concerning disposition. See R.C.M. 1106(a). An “acting staff judge advocate” may also prepare the SJAR.

When a judge advocate serves as the assistant to the Staff Judge Advocate (SJA), and his or her duties include acting as the SJA in the absence of that officer, the assistant has been placed in the type of command-staff organizational relationship contemplated by Article 60(d), UCMJ. In that context, even if the assistant SJA was not formally serving as the acting SJA at the time the recommendation was submitted, any error in the preparation of the post-trial recommendation by the assistant SJA would not constitute structural error or otherwise constitute prejudicial plain error.

United States v. Wilson, 54 M.J. 57, 60 (C.A.A.F. 2000) (Effron, J., concurring) (citations omitted).

In this case, MAJ Bagwell indicated he was signing “for” the SJA, LTC Irgens, which could indicate that he was “acting” for LTC Irgens and was the acting SJA. Certainly, however, it would have been far better for MAJ Bagwell to affirm that he was the “acting staff judge advocate” in his signature block, rather than merely indicating as much by signing for LTC Irgens.

While we encourage those in the position of acting for the SJA in the preparation of the SJAR to clearly reflect their position by signing as “Acting Staff Judge Advocate,” in this case we find, similar to United States v. Hudgins ___ M.J. ___, slip op. at 3 (Army Ct. Crim. App. 25 March 2010), that there was no prejudice to appellant. See Article 59, UCMJ.

The findings of guilty and the sentence are affirmed.

FOR THE COURT:

MARY B. CHAPMAN Acting Clerk of Court ----------------------- [1] Article 1, UCMJ, defines “legal officer” as “any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.”