United States v. SMITH

This opinion is subject to administrative correction before final disposition.

Before KISOR, ATTANASIO, and HARRELL Appellate Military Judges

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UNITED STATES Appellee

v.

Nathanial C. SMITH Culinary Specialist (Submarine) Petty Officer Third Class (E-4) U.S. Navy Appellant

No. 202400053

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Decided: 16 January 2024

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Derek Butler (Arraignment) Michael F. Whitican (Trial)

Sentence adjudged 12 December 2023 by a general court-martial con- vened at Naval Submarine Base New London, Groton, Connecticut, con- sisting of a military judge sitting alone. Sentence in the Entry of Judg- ment: reduction to E-1, confinement for fourteen months, and a bad- conduct discharge.

For Appellant: Commander Kyle C. Kneese, JAGC, USN

United States v. Smith, NMCCA No. 202400053 Opinion of the Court

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

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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. 1 However, we note that the Entry of Judgment does not accurately reflect the disposition of the charges as required by Rule for Courts-Martial (R.C.M.) 1111(b)(1), as it fails to include the dates alleged in the specifications. 2 Alt- hough we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. 3 In accordance with R.C.M. 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. During our review of the record, we noted that the pretrial advice letter required by Article 34, Uniform Code of Military Justice, was not included in the record as required by Rule for Courts-Martial 1112(f)(1)(B). Despite this omission, no objection or motion concerning the absence of this document was raised at trial, during the post-trial review process, or in this appeal. Addition- ally, Appellant does not allege that the pretrial advice was not prepared as part of the referral process. “If no such [Article 34 pretrial] advice was ever prepared . . . the referral of this case to a general court-martial was erroneous. However, the error is not a jurisdictional flaw, is not per se prejudicial error, and mandates reversal only

United States v. Smith, NMCCA No. 202400053 Opinion of the Court

if appellant suffered actual prejudice.” 4 Appellant has alleged no specific prej- udice related to this issue, and, after a thorough review of the entire record, we find none. Although it was error to omit the pretrial advice from the record, we conclude that no relief is warranted in the absence of prejudice. 5 The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

UNITED STATES NMCCA NO. 202400053

v. ENTRY OF Nathanial C. SMITH JUDGMENT Culinary Specialist (Submarine) Petty Officer Third Class (E-4) As Modified on Appeal U.S. Navy Accused 16 January 2025

On 12 December 2023, the Accused was tried at Naval Submarine Base New London, Groton, Connecticut, by a general court-martial, consisting of a military judge sitting alone. Military Judge Michael F. Whitican presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all of- fenses the convening authority referred to trial:

Charge I: Violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. Plea: Guilty. Finding: Guilty.

Specification: Possession of child pornography on or about September 2021 through January 2022. Plea: Guilty. Finding: Guilty.

Charge II: Violation of Article 131b, UCMJ, 10 U.S.C. § 931b. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.

United States v. Smith, NMCCA No. 202400053 Modified Entry of Judgment

Specification: Obstruction of justice on or about 19 January 2022. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.

SENTENCE

On 12 December 2023, a military judge sentenced the Accused to the fol- lowing: Reduction to pay grade E-1. Confinement for fourteen months. Bad-Conduct Discharge.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

Footnotes

[1] Articles 59 & 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 859, 866.

[2] See also United States v. Wadaa, 84 M.J. 652, 653 (N-M. Ct. Crim. App. 2024) (propounding minimum requirements for EOJs: 1. the Article of the UCMJ for each charge; 2. the applicable subsection, if any, for each specification; 3. the nature of the offense in the specification; and, 4. the date of the offense).

[3] United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

[4] United States v. Madigan, 54 M.J. 518, 520 (N.M.Ct.Crim.App. 2000) (quoting United States v. Blaine, 50 M.J. 854, 856 (N.M.Ct.Crim.App. 1999)) (emphasis in orig- inal); see also United States v. Murray, 25 M.J. 445 (C.M.A. 1988).

[5] See Madigan, 54 M.J. at 520. While we find no prejudicial error, we do not coun- tenance the Government’s failure to attach to the record the Article 34 advice. We re- mind the Government that the requirements set forth in Article 34, UCMJ, R.C.M. 1106, and, R.C.M. 1112, are mandatory and must be strictly followed.