               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM S32342
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                         Corey R. ROGERS
           Airman First Class (E-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 8 February 2017
                           ________________________

Military Judge: Wendy L. Sherman (sitting alone).
Approved sentence: Bad-conduct discharge, confinement for 4 months,
forfeiture of $1,031 pay per month for 4 months, and reduction to E-1.
Sentence adjudged 29 June 2015 by SpCM convened at Barksdale Air
Force Base, Louisiana.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF; Major Lau-
ren A. Shure, USAF.
For Appellee: Colonel Laura J. Megan-Posch, USAF; Gerald R. Bruce,
Esquire.
Before DREW, J. BROWN, and SANTORO, Appellate Military Judges.
Judge SANTORO delivered the opinion of the Court, in which Chief
Judge DREW and Senior Judge J. BROWN joined.
                           ________________________

                 PUBLISHED OPINION OF THE COURT
                           ________________________
SANTORO, Judge:
    A military judge sitting as a special court-martial convicted Appellant, con-
sistent with his pleas, of one specification of making a false official statement,
nine specifications of forgery, and one specification of submitting a fraudulent
                   United States v. Rogers, No. ACM S32342


document to the Air Force, in violation of Articles 107, 123, and 134, UCMJ,
10 U.S.C. §§ 907, 923, 934. The adjudged sentence was a bad-conduct dis-
charge, confinement for four months, forfeiture of $1,370 pay per month for
four months, and reduction to E-1. The convening authority reduced the forfei-
tures to $1,031 pay per month for four months (the jurisdictional limit of the
special court-martial) but otherwise approved the sentence as adjudged. 1
   Appellant asserts that the post-trial processing of this case was defective.
We agree.

                                I. BACKGROUND
    Appellant’s four-month marriage had deteriorated, and his wife and her
son from a prior relationship moved out of their shared residence while Appel-
lant was out of town. Upon his return, Appellant decided to divorce his wife
but thought she would not agree without a protracted battle. To speed the pro-
cess, Appellant forged various signatures on the forms necessary to obtain a
divorce, including signatures of his wife, his wife’s father, and a notary public
(an active-duty paralegal) from the Barksdale Air Force Base legal office. Ap-
pellant filed the forged documents with the Caddo Parish, Louisiana, superior
court; attended court hearings; and obtained a default judgment of divorce
when his wife failed to attend the final hearing.
   After fraudulently obtaining his divorce decree, Appellant filed it with the
mission support squadron at Barksdale, which resulted in his wife’s and her
son’s loss of military benefits. Appellant’s wife learned of his actions when she
was denied medical care.

                 II. DISCUSSION - POST-TRIAL PROCESSING
    Rule for Court-Martial (R.C.M.) 1106 requires that before the convening
authority takes action on the findings and sentence of a court-martial, she re-
ceive a recommendation from her staff judge advocate (SJA). The purpose of
the staff judge advocate’s recommendation (SJAR) is to assist the convening
authority, who is often not legally trained, exercise her command prerogative.
R.C.M. 1106(d)(1).
    Appellant alleges that the SJAR contains significant errors that materially
prejudiced his opportunity to receive meaningful clemency consideration.
First, he alleges that the SJA incorrectly advised the convening authority
about the maximum imposable punishment. Second, he alleges that the SJA
failed to advise the convening authority of Appellant’s clemency request. Third,


1A pretrial agreement limiting the term of confinement to five months had no effect
on the sentence.


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                    United States v. Rogers, No. ACM S32342


he alleges that the SJA erroneously told the convening authority that she did
not have the discretion to disapprove Appellant’s punitive discharge. Upon our
review of the SJAR, we noted a fourth potential error: the SJA told the conven-
ing authority that the adjudged sentence “was not appropriate” for the offenses
of which Appellant was convicted. 2
    Proper completion of post-trial processing is a question of law which we
review de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure
to comment in a timely manner on matters in the SJAR, or on matters attached
to the SJAR, forfeits any later claim of error in the absence of plain error.
R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). “To
prevail under a plain error analysis, [Appellant bears the burden of showing]
that: ‘(1) there was an error; (2) it was plain or obvious; and (3) the error ma-
terially prejudiced a substantial right.’” Scalo, 60 M.J. at 436 (quoting Kho, 54
M.J. at 65). Because of the highly discretionary nature of the convening au-
thority’s action on a sentence, we grant relief if Appellant presents “some col-
orable showing of possible prejudice” affecting his opportunity for clemency.
Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 MJ 283, 289 (1998)).
    An error in the SJAR, however, “does not result in an automatic return by
the appellate court of the case to the convening authority.” United States v.
Green, 44 M.J. 93, 95 (C.A.A.F. 1996). “Instead, an appellate court may deter-
mine if the accused has been prejudiced by testing whether the alleged error
has any merit and would have led to a favorable recommendation by the SJA
or corrective action by the convening authority.” Id.
    The SJAR told the convening authority that the maximum sentence in Ap-
pellant’s case was a dishonorable discharge, confinement for five years, and
forfeiture of two-thirds pay and allowances for one year. The actual maximum
sentence was the jurisdictional limit of the special court-martial: a bad-conduct
discharge, confinement for 12 months, forfeiture of two-thirds pay (not pay and
allowances) per month for 12 months, and reduction to E-1. Article 19, UCMJ,
10 U.S.C. § 819.
    Appellant submitted two separate clemency requests. He submitted the
first approximately one month after trial and before receiving the SJAR. In
that first submission he asked the convening authority not to approve the bad-
conduct discharge. The second clemency submission, filed after Appellant re-
ceived the SJAR, noted that Appellant had previously submitted a clemency
request and supplemented it by asking that the forfeitures be reduced. There


2In context, it appears the SJA may be referring to the fact that the adjudged forfei-
tures exceeded the jurisdictional limit of the court-martial, but that is not clear.


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                  United States v. Rogers, No. ACM S32342


is no evidence in the record that the SJA provided Appellant’s first clemency
request to the convening authority. The Addendum to the SJAR also failed to
note or comment upon Appellant’s request that the punitive discharge not be
approved.
   The Government concedes that the SJA erred in her statement about the
maximum punishment. The Government also concedes there is no evidence
that the SJA advised the convening authority of Appellant’s initial clemency
request. The Government argues, however, that (1) any error is harmless be-
cause there is no reasonable possibility that the erroneous statement about the
maximum punishment swayed the convening authority’s decision to approve
the sentence; and (2) Appellant’s request that the convening authority not ap-
prove the punitive discharge sought something that was not within the con-
vening authority’s power to grant, meaning that there could be no possible
prejudice flowing from her lack of awareness of it.
    This second argument—that the convening authority could not have disap-
proved the punitive discharge even had she wanted to—is also the crux of Ap-
pellant’s third assignment of error. The SJAR explicitly told the convening au-
thority that she was required to approve the bad-conduct discharge. Appellant
contends that this legal advice was erroneous.
   The National Defense Authorization Act for Fiscal Year 2014 (FY14 NDAA)
substantially modified the convening authority’s ability to approve findings
and sentences under Article 60, UCMJ, 10 U.S.C. § 860. FY14 NDAA, Pub. L.
No. 113-66, 127 Stat. 956–57 (2013). A convening authority can no longer, ex-
cept for only the most minor offenses, dismiss any charge or specification or
change any finding of guilty to a finding of guilty to a lesser-included offense.
The convening authority can also no longer “disapprove, commute, or suspend
in whole or in part an adjudged sentence of confinement for more than six
months or a sentence of dismissal, dishonorable discharge, or bad conduct dis-
charge” except in certain circumstances not present here. Id. These changes
became effective on 24 June 2014. Id. at 958. Although the FY14 NDAA did
not address which version of Article 60, UCMJ, applied when offenses strad-
dled the FY14 NDAA’s effective date, the FY15 NDAA did:
       With respect to the findings and sentence of a court-martial that
       includes both a conviction for an offense committed before [24
       June 2014] and a conviction for an offense committed on or after
       that effective date, the convening authority shall have the same
       authority to take action on such findings and sentence as was in
       effect on the day before such effective date[.]
Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act
for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014).


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                   United States v. Rogers, No. ACM S32342


     Many of the specifications to which Appellant pleaded and was found guilty
alleged that his crimes occurred within a range of dates (“between on or about
. . . and on or about . . .”). The earliest date referenced in any specification is
21 February 2014, before the effective date of the FY14 NDAA changes. No
specification with an inception date before the effective date of the FY14 NDAA
contained a terminal date that was also before the effective date of the FY14
NDAA, meaning that several specifications alleged date ranges that began be-
fore, but ended after, the effective date of the FY14 NDAA. On its face, there-
fore, it would appear that the convening authority did have the authority not
to approve Appellant’s punitive discharge and the SJA’s advice in this respect
was erroneous.
    However, as part of his guilty plea allocution and despite pleading guilty to
specifications that alleged his criminal conduct began as early as February
2014, Appellant entered into a stipulation of fact that his criminal conduct oc-
curred no earlier than 16 July 2014. Based on that stipulated offense date, the
Government argues that the FY14 NDAA’s change applied to Appellant, the
convening authority was therefore without authority to disapprove the puni-
tive discharge, and thus the SJA’s legal advice was correct (and Appellant’s
request that the discharge not be approved could not have been granted, moot-
ing the error in the SJA’s failure to bring it to the convening authority’s atten-
tion).
    This procedural history frames the ultimate question: for purposes of de-
termining whether the FY14 NDAA’s changes to Article 60 apply to a particu-
lar offense, do we use the dates alleged in a specification or do we use the actual
offense date? This appears to be a question of first impression for which we
have no legislative history to guide us.
   The Government and Appellant’s briefs, unsurprisingly, adopt the inter-
pretation beneficial to their respective positions. Yet neither provides any legal
analysis or argument as to why their interpretation is correct.
    Using the actual offense date initially seems like it must be the correct ap-
proach. After all, both parties have agreed that none of Appellant’s offenses
occurred before the effective date of the FY14 NDAA. And since we know as a
matter of fact that the offenses occurred after the effective date, it also must
be the case that the convening authority lacked the power to disapprove the
punitive discharge.
    But that approach only works in cases when both sides agree on an actual
offense date.
   The FY14 NDAA changes apply equally to findings resulting from guilty
pleas as well as litigated cases. In some (but certainly not all) guilty plea cases
the parties negotiate a stipulation of fact. That stipulation of fact may or may


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                    United States v. Rogers, No. ACM S32342


not contain an agreed-upon offense date for a myriad of reasons. 3 In the ab-
sence of a stipulation, an accused may admit committing an offense on a cer-
tain date within a charged date range; even if the Government believes the
offense occurred on a different date than that admitted, or on additional dates,
the guilty plea would ordinarily still be provident as long as the admitted date
is within (or close to, if the date range is charged as “on or about”) the specifi-
cation’s start and end dates.
    In a litigated case, if the trier of fact returns a guilty finding to a specifica-
tion alleging that an act or acts occurred during a range of dates, the trier of
fact is ordinarily not required to make a finding that the offense(s) occurred on
a date certain. 4 “Unless the date is an essential element of the offense, an exact
date need not be alleged.” United States v. Williams, 40 M.J. 379, 382 (C.M.A.
1994), (citing Ledbetter v. United States, 170 U.S. 606, 612 (1898)). The trier of
fact may even be unable to determine the exact date on which a crime occurred,
such as in a drug use case resulting from a positive urinalysis or a domestic
abuse case in which the violence occurred regularly (but not daily) during a
certain period.
    The Government’s charging decisions—including date ranges in specifica-
tions—have constitutional effect. An accused who pleads guilty to a specifica-
tion alleging that he committed a crime during a certain date range generally
enjoys protection from prosecution for the same crime during the entire date
range alleged in the specification. U.S. CONST. Amend V; Article 44, UCMJ, 10
U.S.C. § 844; United States v. Francis, 15 M.J. 424, 428–29 (C.M.A. 1983) (cit-
ing United States v. Lynch, 47 C.M.R. 498, 502 (C.M.A. 1973)).
   Had the Government been concerned about the impact of the FY14 NDAA
on Appellant’s case, once they decided to agree to specific offense dates, it could


3 Those reasons may include the parties’ inability to agree on the actual date of the
offense, perhaps because the evidence is insufficient to establish the date with suffi-
cient certainty. An offense may involve a continuing course of conduct such that there
is no single offense date. A victim, particularly one of tender years, may not be able to
pinpoint the date of an offense other than by reference to seasons, birthdays, or other
non-date-specific memories.
4 “Minor variances” to the date of an offense “do not necessarily change the nature of
the offense and in turn are not necessarily fatal,” especially where the Government
has made use of the “on or about” language in the charged specification. United States
v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003) (citing United States v. Hunt, 37 M.J. 344,
347-48 (C.M.A. 1993)). The words “on or about” are “words of art in pleading which
generally connote any time within a few weeks of the ‘on or about’ date.” United States
v. Brown, 34 M.J. 105, 110 (C.M.A. 1992).




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                    United States v. Rogers, No. ACM S32342


have changed the specifications’ start dates either to the actual offense date or
to a date after the FY14 NDAA’s effective date pursuant to R.C.M. 603. They
also could have requested findings by exceptions and substitutions. They did
neither.
    In cases without a stipulated offense date, were we to engage in post-trial
analysis to determine when an offense occurred, if we do not use the dates al-
leged in the specification of conviction, what are we entitled to consider: just
the evidence before the court-martial or the entire record? Do we apply a pre-
ponderance of the evidence standard? Clear and convincing? Proof beyond a
reasonable doubt? The unworkability of such post-trial review was made clear
in a different context in United States v. Walters, 58 M.J. 391, 396 (C.A.A.F.
2003). 5
    After balancing the considerations outlined above, we first conclude that
Congress did not intend, and the military justice system would not be well-
served by, one rule that applies to cases involving stipulations of fact and a
different rule that applies to all other cases. Nor do we believe that requiring
an individualized, case-by-case post-trial effort to determine the specific date
on which an offense (or multiple offenses) occurred is workable in all, or even
most, criminal cases. We decline to adopt a Walters-like requirement that the
court-martial make a special finding with respect to the date of an offense be-
cause, as noted above, the offense date is not an element of the crime. Finally,
in the FY15 NDAA, Congress allowed convening authorities to exercise their
pre-FY14 NDAA discretion in “straddle” or mixed cases, signaling that if both
the old and new rules could apply to a single court-martial action, the Appel-
lant retained the benefit of the more expansive, pre-FY14 NDAA rule.
    We therefore hold that for purposes of determining whether the FY14
NDAA changes to Article 60, UCMJ, apply, we look to the date(s) in the speci-
fication(s) of which an accused is convicted (as alleged or as modified, in the
case of exceptions and substitutions). We will not conduct a post-trial dive be-
low the charged dates to attempt to determine with certitude when an offense
occurred for Article 60, UCMJ, purposes. Although we acknowledge that this
rule may in individual cases (and particularly in Appellant’s case) result in the
convening authority’s having greater discretionary power than the FY14

5 Walters was charged with committing an offense “on divers occasions.” The court-
martial excepted the “on divers occasions” language and found him guilty of only a
single offense during the charged time frame but did not specify which of the incidents
the prosecution sought to prove was the event they found to have occurred. Our supe-
rior court held that such an ambiguous result precluded meaningful appellate review.
United States v. Walters, 58 M.J. 391, 396–97 (C.A.A.F. 2003). After Walters, a court-
martial in such a circumstance must make an explicit finding as to which of the
charged events was proven beyond a reasonable doubt.


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                  United States v. Rogers, No. ACM S32342


NDAA might suggest, we believe that our holding is both consistent with the
FY15 NDAA’s amendment and is the only workable and consistently-applica-
ble rule for the military justice system.
    The SJA therefore erred when she told the convening authority she could
not disapprove Appellant’s punitive discharge. She also erred in failing to no-
tify the convening authority of Appellant’s initial clemency request. As clem-
ency is often “an accused’s best hope for sentence relief,” United States v.
Dresen, 40 M.J. 462, 465 (C.M.A. 1994), (quoting United States v. Stephenson,
33 M.J. 79, 83 (C.M.A. 1991)), and the SJA’s erroneous advice went directly to
Appellant’s clemency request, we cannot say that the SJA’s errors were harm-
less.

                              III. CONCLUSION
    The record of trial is returned to The Judge Advocate General for remand
to the convening authority for new post-trial processing consistent with this
opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, Article 66(b),
UCMJ, 10 U.S.C. § 866(b), will apply.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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