Adrienne M. HALL, Captain
U.S. Air Force, Appellant
Crim. App. No. 31483
United States Court of Appeals for the Armed Forces
Submitted March 5, 1997
Decided June 9, 1997
For Appellant: Lieutenant Colonel Kim L. Sheffield and Major Carol L. Hubbard (on brief); Colonel David W. Madsen and Captain Todi S. Carnes.
For Appellee: Colonel Theodore J. Fink, Lieutenant Colonel Michael J. Breslin, and Captain Libby A. Brown (on brief).
Military Judge: Dennis E. Kansala.
This opinion is subject to editorial correction before final publication.
COX, Chief Judge:
Captain Hall was tried by a general court-martial with members at Offutt Air Force Base, Nebraska. Pursuant to her pleas, she was found guilty of wrongful use of methamphetamines, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. During deliberations on sentence, the members posed the following question to the military judge, "Should the accused be dismissed from the Air Force, what benefits would she be entitled to as a dependent?" Captain Hall is the spouse of a military retiree. The military judge instructed the members as follows:
Captain Hall was sentenced to dismissal from the Air Force, without any other punishment. We granted review of the following issue:
Captain Hall was tried on August 18, 1994. She made an unsworn statement to the members that she had prior enlisted service, had obtained a commission through ROTC, had married an individual who was then retired from the Air Force, and was eligible to retire from the Air Force on December 4, 1994. She asked the court members to impose punishment only on herself and not on her family. The military judge, without objection, instructed the members that a dismissal could deprive appellant "of substantially all benefits administered by the Veterans Administration and the Air Force establishment."
We have recently addressed the issue of instructing on retirement benefits in United States v. Sumrall, 45 MJ 207 (1996); see United States v. Greaves, No. 96-0715, ___ MJ ___ (June 9, 1997). It is clear that members of courts-martial, military judges, and the parties do not consider loss of these benefits to be collateral or immaterial. However, we need not address this issue, because we conclude that objections to the military judge’s instruction were waived by failure of appellant to object or seek a curative instruction. See McElroy, supra at 372 (waiver by failure to object); United States v. Griffin, supra. The sentence will be set aside only if the instruction by the military judge constituted plain error.
Plain error is a doctrine that "is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Strachan, 35 MJ 362, 364 (CMA 1992), quoting United States v. Fisher, 21 MJ 327, 328-29 (CMA 1986), quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d. 816 (1982). "To establish plain error, appellant must demonstrate: that there was 'error'; that such error was 'plain, clear, or obvious'; and that the error 'affect[ed]' appellant’s 'substantial rights.'" United States v. Czekala, 42 MJ 168, 170 (1995), quoting United States v. Olano, 507U.S. 725, 732, 734, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Appellant has failed to satisfy her burden of showing that an obvious, substantial error occurred and that the error had an unfairly prejudicial impact on her case. United States v. Strachan, supra.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
Judges SULLIVAN, CRAWFORD, GIERKE, and EFFRON concur.