              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________
                              No. ACM S32436
                          ________________________
                            UNITED STATES
                                Appellee
                                      v.
                         Jacob B. GODDARD
                   Airman (E-2), U.S. Air Force, Appellant
                          ________________________
           Appeal from the United States Air Force Trial Judiciary
                          Decided 15 March 2018
                          ________________________
Military Judge: Mark F. Rosenow.
Approved sentence: Bad-conduct discharge, confinement for 4 months, forfei-
ture of $1,400.00 pay per month for 4 months, reduction to E-1, and a repri-
mand. Sentence adjudged 26 September 2016 by SpCM convened at Davis-
Monthan Air Force Base, Arizona.
For Appellant: Major Ann W. Morgan, USAF; Major Patricia Encarnación Mi-
randa, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel
G. Matt Osborn, USAF; Major Mary Ellen Payne, USAF; Major Matthew L.
Tusing, USAF.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military Judges.
Senior Judge HARDING delivered the opinion of the court, in which Judges
SPERANZA and HUYGEN joined.
                          ________________________
This is an unpublished opinion and, as such, does not serve as prece-
       dent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________

HARDING, Senior Judge:
    A special court-martial composed of a military judge convicted Appellant in
accordance with his pleas of two specifications of divers wrongful use of con-
trolled substances (marijuana and 3,4-methylenedioxymethamphetamine) and
                 United States v. Goddard, No. ACM S32436



one specification of divers wrongful introduction of a controlled substance (ma-
rijuana) onto/into an installation, all in violation of Article 112a, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 912a. The military judge sentenced
Appellant to a bad-conduct discharge, confinement for four months, forfeiture
of $1,044.00 pay per month for four months, reduction to E-1, and a reprimand.
The convening authority approved the sentence as adjudged.
    Appellant raises a single issue on appeal: Whether the staff judge advo-
cate’s recommendation (SJAR) and its addendum failed to provide accurate
and proper advice to the convening authority regarding the convening author-
ity’s clemency powers under Article 60, UCMJ, 10 U.S.C. § 860. We find no
prejudicial error and affirm.

                                I. BACKGROUND
    As the result of another Airman’s positive random urinalysis, an investiga-
tion was opened that revealed wrongful drug use and introduction onto/into an
installation by Appellant. In a statement made to security forces investigators,
Appellant confessed to multiple uses of both marijuana and 3,4-methylenedi-
oxymethamphetamine. He also admitted to bringing drugs onto Davis-Mon-
than Air Force Base, Arizona. Appellant’s urine was subsequently collected
and tested positive for marijuana. A search of Appellant’s vehicle yielded ap-
proximately three grams of marijuana. In accordance with a pretrial agree-
ment, Appellant pleaded guilty to the Charge and its specifications in exchange
for no “additional charges based on evidence [then] within the government’s
control” and no approved confinement in excess of ten months.

                                II. DISCUSSION
    Although Appellant waived his right to submit clemency matters and did
not object to the SJAR, Appellant now complains that the SJAR erroneously
omitted a statement that the convening authority could disapprove, commute,
or suspend Appellant’s sentence to confinement. Appellant asserts the conven-
ing authority’s action should be set aside and his case be remanded for new
post-trial processing. We disagree.
    We review de novo alleged errors in post-trial processing. 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 addendum, to include matters attached to it, forfeits
the issue unless there is plain error. Rule for Courts-Martial 1106(f)(6); United
States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). Under a plain error analysis,
the Appellant bears the burden of showing: (1) there was an error, (2) it was
plain or obvious, and (3) the error materially prejudiced a substantial right of



                                        2
                 United States v. Goddard, No. ACM S32436



the appellant. Kho, 54 M.J. at 65. Although the threshold for establishing prej-
udice in this context is low, the appellant must nonetheless make at least
“some colorable showing of possible prejudice.” Scalo, 60 M.J. at 436–37 (quot-
ing Kho, 54 M.J. at 65).
    We note that the offenses occurred after 24 June 2014 and therefore the
limitations on convening authority action under the amended Article 60(c),
UCMJ, apply to this case. In that regard, the SJAR accurately advised the
convening authority that he could only approve the findings and the punitive
discharge, but could disapprove, commute, or suspend, in whole or part, the
forfeitures, reduction in grade, and reprimand. The SJAR did not, however,
address the convening authority’s discretion to act on the adjudged confine-
ment other than noting that the pretrial agreement provided that no more than
ten months of confinement would be approved. As Appellant was sentenced to
less than six months of confinement, the convening authority had discretion to
grant clemency in the form of confinement less than the six months adjudged.
Article 60(c)(4)(A), UCMJ.
    Appellant argues the omission regarding the convening authority’s discre-
tion as to the adjudged confinement erroneously implied the convening author-
ity did not have the discretion to grant confinement relief. Assuming arguendo
the SJAR omission was error, we determine whether an appellant was preju-
diced by a mistake in the SJAR by considering whether the convening author-
ity “plausibly may have taken action more favorable to” the appellant had he
or she been provided accurate or more complete information. United States v.
Johnson, 26 M.J. 686, 689 (A.C.M.R. 1988), aff'd, 28 M.J. 452 (C.M.A. 1989);
see also United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). We do not find
more favorable action plausible in Appellant’s case. Appellant waived his right
to submit clemency matters. In his pretrial agreement, Appellant received not
only the benefit of a limit on confinement, but also an agreement from the con-
vening authority not to prosecute other offenses. We find it implausible that a
fully advised convening authority would have provided confinement relief sua
sponte.
    Moreover, the Government has demonstrated that the SJAR omission did
not prejudice Appellant. The staff judge advocate submitted an affidavit
providing that, even with complete advice on clemency options, he still would
have recommended the convening authority approve the sentence as adjudged.
More importantly, the convening authority submitted an affidavit stating that
he would not have provided Appellant with relief on the sentence to confine-
ment, even if he had been expressly advised that he had the authority to do so.
As Appellant is unable to demonstrate a colorable showing of possible preju-
dice, he cannot prevail on this issue. Scalo, 60 M.J. at 436–37.



                                       3
                 United States v. Goddard, No. ACM S32436



                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




                                      4
