          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                         Airman First Class ZAVIAN M. T. ADDISON
                                   United States Air Force

                                              ACM S32287

                                               6 May 2016

         Sentence adjudged 3 December 2014 by SPCM convened at Joint Base Pearl
         Harbor-Hickam, Hawaii. Military Judge: Gregory O. Friedland.

         Approved Sentence: Bad-conduct discharge, confinement for 30 days, and
         reduction to the grade of E-1.

         Appellate Counsel for Appellant: Major Jeffrey A. Davis.

         Appellate Counsel for the United States: Captain Rebecca A. Magnone and
         Gerald R. Bruce, Esquire.

                                                  Before

                                ALLRED, TELLER, and BENNETT
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.




 BENNETT, Judge:

      At a special court-martial composed of a military judge sitting alone, Appellant
pleaded guilty to two specifications of physically controlling a passenger car while drunk,
two specifications of assault consummated by a battery, and three specifications of
communicating a threat in violation of Articles 111, 128, and 134, UCMJ, 10 U.S.C. §§
911, 928, and 934. The military judge sentenced him to a bad-conduct discharge,
confinement for 45 days, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only the bad-conduct discharge, confinement
for 30 days, and reduction to the grade of E-1.

        Appellant contends that (1) he is entitled to new post-trial processing because the
staff judge advocate (SJA) failed to correct an error in Appellant’s clemency submission,
and (2) that the trial counsel made an improper sentencing argument. We disagree and
affirm the findings and sentence.

                                       Background

       The crimes that Appellant pleaded guilty to were fueled by alcohol and took place
over the course of approximately five days. On or about 6 April 2014, the trouble started
when two Airmen came upon Appellant who was drunkenly urinating on a vehicle in their
dormitory parking lot. They offered him assistance when they saw how inebriated he was.
In response, Appellant threatened to kill one of the Airmen and rape the other. Then he
assaulted them. Soon after, security forces responded and Appellant was found drunk in
his parked car. After he was apprehended, he threatened to beat one of the officers. On or
about 11 April 2014, Appellant was again apprehended on suspicion of drunk driving on
Joint Base Pearl Harbor-Hickam.

       Additional facts necessary to resolve the assigned errors are included below.

                                  Post-trial Processing

       In his clemency submission, Appellant’s trial defense counsel erroneously
interpreted an amendment to Article 60, UCMJ, 10 U.S.C. § 860—one that limits a
convening authority’s ability to mitigate an accused’s sentence post-trial—to be applicable
in Appellant’s case. This amendment was made pursuant to Section 1702(b) of the
National Defense Authorization Act of Fiscal Year 2014 (2014 NDAA) and was not
effective for crimes committed prior to 24 June 2014. Appellant was convicted of offenses
that occurred on or about 6 and 11 April 2014. Hence, the trial defense counsel’s
interpretation of the amendment’s applicability was mistaken. In his first asserted issue,
Appellant argues that he is entitled to new post-trial processing because the staff judge
advocate (SJA) failed, in his addendum to the staff judge advocate’s recommendation
(SJAR), to correct the trial defense counsel’s mistake.

       We review allegations of error in post-trial processing de novo. United States v.
Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). If defense counsel fails to timely comment on an
error or omission in the SJAR, that error is waived unless it is prejudicial under a plain
error analysis. United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). To prevail, under
plain error review, Appellant must demonstrate: “(1) there was an error; (2) it was plain
or obvious, and (3) the error materially prejudiced a substantial right.” Id. (quoting Kho,
54 M.J. at 65). “[B]ecause of the highly discretionary nature of the convening authority’s


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clemency power, the threshold for showing [post-trial] prejudice is low.” United States v.
Lee, 52 M.J. 51, 53 (C.A.A.F. 1999). Only a colorable showing of possible prejudice is
necessary. Id. Even so, an error in the SJAR “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 determine 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.

        Under Rule for Courts-Martial (R.C.M.) 1106(d)(4), an SJA is only required to state
whether corrective action is needed if the defense makes an allegation of legal error in the
matters submitted under R.C.M. 1105 or it is otherwise deemed appropriate by the SJA.
United States v. Foy, 30 M.J. 664, 666 (A.F.C.M.R. 1990). “[T]he staff judge advocate is
not required to specifically advise the convening authority on issues the appellant raises in
[his] clemency submissions unless those issues are raised as legal error.” United States v.
Taylor, 67 M.J. 578, 580 (A.F. Ct. Crim. App. 2008). While the trial defense counsel may
have erroneously interpreted a 2014 NDAA amendment to Article 60, UCMJ, as being
effective and applicable to the convening authority, he did not allege any legal errors in his
clemency submission. The SJAR in this case correctly indicates that no corrective action
was required with regard to the findings or sentence. The SJAR and addendum complied
with the requirements of R.C.M. 1106(d)(4). Appellant has not met his burden to show
plain error in post-trial processing.

                              Improper Sentencing Argument

       Assistant trial counsel argued, during presentencing and without objection, that
Appellant deserved a bad-conduct discharge because it was like a brand and it was the best
characterization of his service in the Air Force. Appellant now cites our decision in United
States v. Gehlhausen, ACM 35280 (A.F. Ct. Crim. App. 14 October 2004) (unpub. op.),
for the proposition that it was improper for the assistant trial counsel to argue that a bad-
conduct discharge was an appropriate punishment because it was the best characterization
of Appellant’s service. Because there was no objection, we review the propriety of the
assistant trial counsel’s argument for plain error. United States v. Halpin, 71 M.J. 477, 479
(C.A.A.F. 2013). To prevail under plain error analysis, Appellant must show “(1) there
was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a
substantial right.” United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (quoting
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

       Gelhausen is distinguishable from the present case. In Gelhausen, we cited our
superior court’s decision in United States v. Ohrt, 28 M.J. 301 (C.A.A.F. 1989), and we
agreed with Appellant that it was “improper to describe a punitive discharge as a service
characterization.” Gelhausen, unpub. op. at 11. At first blush, this language from
Gelhausen seems to support Appellant’s argument. However, the Ohrt decision is rooted


                                             3                                   ACM S32287
in R.C.M. 1001(b)(5) which is the procedural rule that governs the admission of evidence
of rehabilitative potential. In Ohrt, our superior court was faced with the question of
whether it was improper for the prosecution to elicit testimony from the appellant’s
squadron commander concerning whether the appellant should be retained or separated.
Ohrt, 28 M.J. at 304–305. The court concluded that:

                    RCM 1001(b)(5) was not designed to give the prosecutor an
                    opportunity to influence court members to punish the accused
                    by imposing a punitive discharge. It also was not intended to
                    be a vehicle to make an administrative decision about whether
                    an accused should be retained or separated.

Id. at 306.

       The court reasoned that the line of questioning employed by trial counsel during
sentencing had “misplac[ed] the role of the punitive discharge in the military justice
sentence model.” Id. at 305. A punitive discharge serves a different purpose than an
administrative discharge. Id. The former is a punishment that a court-martial is convened
to consider. Id. The latter is an administrative termination of employment.1 Moreover,
the court held that the question of how to punish an accused—including whether to punish
an accused with a punitive discharge—was a decision reserved solely for the sentencing
authority. Id. Thus, it was wrong for the Government to offer testimony that could
improperly influence the sentencing authority, such as testimony from the accused’s
squadron commander that he should be punitively discharged. Id. The holding in Ohrt
was not about what should or should not be argued by trial counsel during sentencing.

       If there were any questions about the meaning of our holding in Gelhausen, they
should have been laid to rest by our more recent decision in United States v. Lozano, ACM
S32043 (A.F. Ct. Crim. App. 19 September 2013) (unpub. op.). In that case we found no
error where the trial counsel repeatedly argued that a bad-conduct discharge would be the
appropriate service characterization for the appellant.

       There is nothing wrong with describing a bad-conduct discharge as a negative
service characterization. It is, after all, a discharge one becomes eligible for after
committing some type of bad conduct.2 How, then, could it be improper for a trial counsel

1
 It is worth noting that, for administrative discharges, there are three different discharge characterizations: Honorable,
Under Honorable Conditions (General), Under Other than Honorable Conditions. Air Force Instruction (AFI) 36-
3208, Administration Separation of Airmen, ¶ 1.16.1 (9 July 2004).

2
    R.C.M. 1003(b)(8)(C) describes the nature of this type of punitive discharge as follows:

                    A bad-conduct discharge is less severe than a dishonorable discharge and is
                    designed as a punishment for bad-conduct rather than as a punishment for serious
                    offenses of either a civilian or military nature. It is also appropriate for an accused


                                                             4                                                ACM S32287
to argue that an accused deserves a bad-conduct discharge because he or she behaved badly,
broke the law, or did anything else that, arguably, would call for a negative service
characterization?

         As noted by our superior court:

                  The punitive discharge was designed to sever a servicemember
                  from the military community and to put a mark upon him
                  which would make it difficult for him to reenter the civilian
                  society and economy. The punitive discharge thus had two
                  effects by design: first, it punished by ejection from a familiar
                  society and by imposing social and economic hardships; and,
                  second, it deterred others by its visible, swift, effective and
                  harsh character.

                  The punitive discharge is a stigma. It is a badge of dishonor,
                  and it has a significant historical background and basis.
                  Importantly, it can be adjudged with or without regard to
                  whether an accused has rehabilitative potential.

Ohrt, 28 M.J. at 306 (internal citation omitted) (emphasis added).

        Nevertheless, a problem does arise when a trial counsel blurs the lines between
punitive and administrative discharge. Lozano, unpub. op. at 7–8 (citing United States v.
Motsinger, 34 M.J. 255, 256 (C.A.A.F. 1992)). However, that did not happen in the case
at bar. Thus, there was no error, plain or otherwise.3

       Furthermore, we “may affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on
the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. §

                  who has been convicted repeatedly of minor offenses and whose punitive
                  separation appears to be necessary . . . .

(Emphasis added). See also Department of the Army Pamphlet 27-9, Military Judges' Benchbook, ¶ 8-3-23 (10
September 2014) (“The stigma of a punitive discharge is commonly recognized by our society. A punitive discharge
will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by
one whose discharge characterization indicates that (he) (she) has served honorably.”) (emphasis added).
3
  Even if the assistant trial counsel’s argument had been improper, Appellant’s case was tried before a military judge
sitting alone, and “[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the
contrary.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483,
484 (C.A.A.F. 1997)). The Court of Appeals for the Armed Forces has also recognized, “[a]s part of this presumption
we further presume that the military judge is able to distinguish between proper and improper sentencing arguments.”
Id.; see also United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (“As the sentencing authority, a military
judge is presumed to know the law and apply it correctly absent clear evidence to the contrary.”).



                                                        5                                             ACM S32287
866(c). “We assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offenses, the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim.
App. 2006); see also United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). We have
considered this particular appellant, the nature and seriousness of his offense, his record of
service, all matters contained in the record of trial, and his arguments on appeal and we
find the approved sentence is appropriate.

                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant 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


              LEAH M. CALAHAN
              Clerk of the Court




                                             6                                   ACM S32287
