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

                                   No. ACM 39261
                              ________________________

                                 UNITED STATES
                                     Appellee
                                           v.
                            Linley B. LEMBURG 1
                 Staff Sergeant (E-5), U.S. Air Force, Appellant
                              ________________________

           Appeal from the United States Air Force Trial Judiciary
                              Decided 30 August 2018
                              ________________________

Military Judge: Ryan A. Hendricks.
Approved sentence: Dishonorable discharge, confinement for 30 days,
forfeiture of $1,066.00 pay per month until execution of the discharge,
reduction to the grade of E-1, and a reprimand. Sentence adjudged 10
April 2017 by GCM convened at MacDill Air Force Base, Florida.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Anne M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, HARDING, and POSCH, Appellate Military
Judges.
Judge POSCH delivered the opinion of the court, in which Chief Judge
MAYBERRY and Senior Judge HARDING joined.
                              ________________________

       This is an unpublished opinion and, as such, does not serve as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


1   In re Linley Benson Lemburg, Case No. 2017-DR-3176 (Fla. Cir. Ct. 5th Cir. Sep. 25,
2017) (granting Petition for Change of Name to William Michael Robertson).
                     United States v. Lemburg, No. ACM 39261


                              ________________________

POSCH, Judge:
    In accordance with Appellant’s plea pursuant to a pretrial agreement, a
general court-martial composed of a military judge found Appellant guilty of
desertion in time of war in violation of Article 85, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 885. The military judge sentenced Appellant to a
dishonorable discharge, confinement for 15 years, forfeiture of all pay and al-
lowances, reduction to the grade of E-1, a reprimand, a fine in the amount of
$2,250.00, and in the event the fine is not paid, to be confined for an additional
six months. Consistent with the terms of the pretrial agreement, the convening
authority approved only 30 days of confinement and credited Appellant for the
21 days he had been restricted to MacDill Air Force Base (AFB), Florida, under
conditions tantamount to confinement. 2 The convening authority approved the
dishonorable discharge, forfeiture of $1,066.00 pay per month until execution
of the discharge, reduction to the grade of E-1, and a reprimand. The convening
authority did not approve the fine.
    Appellant raises two issues on appeal: (1) that conditions of his post-trial
confinement warrant sentence relief and (2) that incomplete and inaccurate
advice to the convening authority in the Staff Judge Advocate’s Recommenda-
tion (SJAR) and the Addendum to the SJAR warrant set aside of the punitive
discharge, or in the alternative, remand for new post-trial processing. Finding
no error materially prejudicial to Appellant’s substantial rights, we affirm.

                                   I. BACKGROUND
    Appellant enlisted in the Air Force on 16 May 1960. He received training
in radio repair, and subsequently began duty in education and training. In
1970, Appellant was accepted into the Air Force Office of Special Investigations
(AFOSI) career field, and cross-trained to be a Special Agent. He performed
training at Bolling AFB in Washington, D.C., and was assigned to a detach-
ment in a suburb of Philadelphia, Pennsylvania, where he moved with his wife.
    Appellant and his wife struggled with marital and financial problems. They
separated pending divorce, and Appellant took a second job as a security man-
ager at a department store where Appellant met his current wife. Although he
was due to separate from the Air Force within just three months, Appellant
felt overwhelmed balancing two jobs, his marriage, and a new relationship.
After completing 11 years and 9 months on active duty, on or about 14 Febru-
ary 1972, at age 30, Appellant absented himself from the AFOSI detachment


2   See United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (mem.).


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                    United States v. Lemburg, No. ACM 39261


and began a new life in Maine. Appellant discarded all his military belongings
and destroyed his military identification card and AFOSI credentials. At the
time Appellant deserted, the United States was at war in Southeast Asia; how-
ever, avoiding combat service played no part in Appellant’s decision to leave. 3
    Forty-five years later, on 21 March 2017, after Appellant worked different
jobs in several states, Special Agents of the AFOSI apprehended Appellant at
his home in Ocala, Florida. Appellant, now aged 75, was restricted to quarters
on MacDill AFB, where he remained until his court-martial. Appellant uncon-
ditionally waived his right to a preliminary hearing pursuant to Article 32,
UCMJ, 10 U.S.C. § 832, and on 10 April 2017, was arraigned, pleaded guilty,
and was sentenced in a military judge-alone trial.
    The same day that Appellant's court-martial adjourned, he was examined
by a base flight surgeon, Dr. JS, and found medically fit for confinement. Dr.
JS signed the medical certificate on the confinement order, Department of De-
fense Form 2707, 4 certifying that the sentence to confinement will not produce
serious injury to the prisoner’s health. She added a handwritten caution, “[Pa-
tient] must take prescription medication for the member’s safety.” Due to con-
cerns about Appellant’s age, fitness for duty, and whether the Hillsborough
County Jail (HCJ), in Tampa, Florida, would administer Appellant’s medica-
tions, the decision was made to confine Appellant to the quarters on MacDill
AFB that he had occupied during his restriction to base. MacDill AFB person-
nel held off transferring Appellant to the custody of the county until the base
had received assurances from the HCJ that Appellant would continue to re-
ceive required medications.
   The day after Appellant’s court-martial, Appellant had yet to in-process at
the county jail when trial defense counsel moved for appropriate relief, and
asked the military judge to order that Appellant not be confined at HCJ under
conditions that would violate Appellant’s post-trial confinement rights under
Articles 12, 55, and 58, UCMJ, 10 U.S.C. §§ 812, 855, 858. Additionally, the
Defense asked the military judge to order three days confinement credit for
each day that Appellant would be subjected to unlawful post-trial confinement.
That afternoon, at a post-trial hearing on this motion, Dr. JS testified that she
observed Appellant to be very dehydrated and “fragile,” and noted that he


3 The Paris Peace Accords, Agreement on Ending the War and Restoring Peace in Vi-
etnam, signed 27 January 1973, called for a cease fire and an end to military activities.
See United States v. Reyes, 48 C.M.R. 832, 835 (A.C.M.R. 1974); see also, United States
v. Robertson, 1 M.J. 934 (N.C.M.R. 1976).
4   Department of Defense Form 2707, Confinement Order (Mar. 2006).




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                  United States v. Lemburg, No. ACM 39261


should have been in a wheelchair when she performed his confinement physi-
cal the previous afternoon. She testified that placing Appellant in confinement
without properly administered medications would be a “significant risk,” med-
ically negligent, and at worst, Appellant could have a coronary event, a stroke,
or die. However, Dr. JS also noted, “I think the risk can be mitigated with
proper communication, with his medications, with keeping a careful eye on him
and making sure that he gets plenty of fluids to drink and not overstressing
him cardiovasculary [sic] . . . .” Unaware that Appellant had been confined
overnight on base, Dr. JS relayed that earlier that day she had called the phy-
sician at HCJ on her own accord to make sure Appellant was getting his med-
ications. The physician expressed concern about Appellant’s age and medical
condition, and wanted to know when he would arrive at the county jail. Dr. JS
further testified that she had no reason to be concerned that the HCJ would be
incapable of providing Appellant medical care as a result of the conversation.
    Next, Staff Sergeant (SSgt) LM, who served as the noncommissioned officer
in charge (NCOIC) of confinement at MacDill AFB, testified that because of
Appellant’s military status, the HCJ would place Appellant in administrative
segregation where Appellant would be confined to a cell separate from the gen-
eral population. The HCJ would do this to avoid the prohibition against hous-
ing Appellant with foreign nationals in violation of Article 12, UCMJ, 10 U.S.C.
§ 812. She testified that Appellant would have one hour of recreation time out-
side his cell every 24 hours, and that even if Appellant were to be incarcerated
in a military confinement facility he would, similarly, be placed in administra-
tive segregation for a minimum of 24 hours. SSgt LM testified that she had
spoken to the charge nurse that morning who relayed that the HCJ had Appel-
lant’s required medications on hand and could accommodate Appellant’s med-
ication needs.
    At the conclusion of the hearing, the military judge ruled that Appellant
failed to meet his burden to show a violation of Articles 12, 55, or 58, UCMJ,
and that neither unusual nor egregious circumstances excused Appellant’s fail-
ure to exhaust administrative remedies before seeking judicial relief for un-
lawful post-trial punishment. In clemency, Appellant and his trial defense
counsel cited the conditions of Appellant’s post-trial confinement as among the
reasons why the convening authority should disapprove the adjudged fine, and
disapprove the dishonorable discharge or, in the alternative, that it be miti-
gated to a bad-conduct discharge. The convening authority approved the dis-
honorable discharge and granted clemency by disapproving the fine.




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                     United States v. Lemburg, No. ACM 39261


                                  II. DISCUSSION
A. Conditions of post-trial confinement
    Before us, Appellant renews his claim made at the post-trial hearing and
again in clemency that the conditions of post-trial confinement at HCJ violated
his rights in three respects. First, he claims that the HCJ deliberately withheld
his prescribed medications, thereby denying him his right to necessary medical
care under the Eighth Amendment to the United States Constitution 5 and Ar-
ticle 55, UCMJ. Second, Appellant confirms he was placed in solitary confine-
ment to avoid immediate association with foreign nationals in the general
prison population. As a consequence, Appellant claims he was provided with
less comforts than an inmate in the general population in violation of Article
58, UCMJ. Third, Appellant avers that this court should grant relief as part of
our sentence appropriateness determination under Article 66(c), UCMJ, 10
U.S.C. § 866(c). See United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016) (providing sentence relief for post-trial
confinement conditions that did not constitute a violation of either the Consti-
tution of the United States or Article 55, UCMJ). Appellant asks us to disap-
prove his dishonorable discharge as meaningful relief and to motivate the Gov-
ernment to ensure proper treatment of military members in civilian confine-
ment facilities. We conclude that even if the facts as asserted by Appellant are
true, he failed to meet his burden to establish grounds for relief, and we decline
to grant Article 66(c) relief.
    In a sworn declaration, Appellant describes the 37 hours 6 he was confined
at the HCJ. He states that at the time he in-processed the jail on 11 April 2017
he was a 75-year-old cancer survivor who had suffered two heart attacks. He
had been prescribed medication to control his blood pressure after double-by-
pass, open-heart surgery in 1997. He informed the clerk of the dosages and
times that were written on the prescription bottles before surrendering them.
Appellant declares he was placed in a cold, solitary confinement cell with 24-
hour illumination, and given a thin, hard mattress, and no pillow. He claims
he was denied reading material because he was in solitary confinement. Ap-
pellant avers he was never given his prescription medications—ordered to be
taken in the morning and evening—despite repeated requests. He states that
at 0900 on 12 April 2017, a guard gave him water and a ground-up substance,


5   U.S. CONST. amend. VIII.
6 Appellant had begun serving his second day of confinement when he in-processed the
HCJ on 11 April 2017. He had received 21 days credit for pretrial restriction tanta-
mount to confinement, which combined with credit for good time, resulted in his re-
lease on 13 April 2017. All told, Appellant spent about 37 hours confined at the county
jail over the course of three days.


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                  United States v. Lemburg, No. ACM 39261


and told him to swallow it. The substance tasted terrible and Appellant could
not ingest it. In the afternoon another guard came to his door and gave Appel-
lant aspirin. Appellant declares he feared that he might suffer a heart attack,
stroke, or death because of his age, frail health, sleepless nights, stress, and
above all, not being able to take his medications. Appellant completed his sen-
tence to confinement on 13 April 2017, and at 0730, was released to his unit.
    In response, the Government has provided a sworn statement from a de-
tention corporal for the Hillsborough County Sheriff’s Office. He states that
per agreement with MacDill AFB, Appellant was confined separate from the
general population in a single-person cell. The cell has a bed, desk, toilet/sink
combination, and a window looking out into a common area consisting of an
enclosed shower, telephone, information kiosk, and mounted television. Appel-
lant’s type of cell is also used to confine other inmates that need to be separated
from the general population for various reasons that could include inmates in
protective custody, high profile inmates, and disciplinary inmates. He declares
all inmates held in single cells, like Appellant, are provided day room access
and the opportunity to shower at a minimum of three times weekly. They may
also participate in outdoor recreation three times a week. According to Appel-
lant’s medical records, he was evaluated by medical personnel during the book-
ing process and “[p]rescription medication requirements were noted, and sub-
sequent medication was distributed and recorded.” The detention corporal
states that the facility maintains a grievance process by which inmates may
lodge complaints, and during his stay, Appellant did not file a complaint about
the conditions of his confinement.
    The Government also provided a sworn declaration from SSgt LM who had
testified at the post-trial hearing. SSgt LM repeated that in discussions with
the HCJ, “we felt assured that [Appellant] would receive his medications while
confined . . . .” SSgt LM states that Appellant never complained to her about
his care and treatment at the HCJ while confined or after release.
   1. Relief under the Eighth Amendment and Article 55, UCMJ
    We first address Appellant’s claim that the HCJ deliberately failed to
properly administer his prescribed medications for a heart condition and to
control high blood pressure, thereby denying him his right to necessary medi-
cal care under the Eighth Amendment and Article 55, UCMJ. We conclude that




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                   United States v. Lemburg, No. ACM 39261


even if the facts as asserted by Appellant are true, he failed to meet his burden
of establishing grounds for relief. 7
    We review de novo whether the facts alleged establish cruel and unusual
punishment, including where that punishment allegedly occurred in a civilian
facility. United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (citation omit-
ted). “Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
unusual punishment. In general, we apply the Supreme Court’s interpretation
of the Eighth Amendment to claims raised under Article 55, UCMJ, except
where legislative intent to provide greater protections under Article 55, UCMJ,
is apparent.” Gay, 74 M.J. at 740 (citing United States v. Avila, 53 M.J. 99, 101
(C.A.A.F. 2000)).
    The Eighth Amendment prohibits “deliberate indifference to serious medi-
cal needs of prisoners,” whether manifested by prison guards “intentionally
denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (ci-
tation omitted). However, “[m]edical malpractice does not become a constitu-
tional violation merely because the victim is a prisoner. In order to state a cog-
nizable claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Id. at 106. “Deliber-
ate indifference” requires that the responsible official must be aware of an ex-
cessive risk to an inmate’s health or safety and disregard that risk. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). “[I]t is enough that the official acted or
failed to act despite his knowledge of a substantial risk of serious harm.” Id. at
842 (citation omitted). However, “prison officials who lack[ ] knowledge of a
risk cannot be said to have inflicted punishment . . . .” Id. at 844.
    In the present case, Appellant claims he did not receive necessary heart
and blood pressure medications during the 37 hours he was confined at the
HCJ. We have considered Appellant’s claim of a lack of responsiveness on the
part of prison officials—apparent from Appellant’s declaration—that may have
caused an unwarranted neglect of Appellant’s medical needs even for the brief
time that he was confined. However, the record lacks evidence that any prison
official was aware of a substantial risk of serious harm to Appellant’s health
or safety and disregarded that risk. We find that Appellant has not presented
evidence to establish wrongful intent, namely, that any official failed to
properly administer his prescription medications for the purpose of increasing
Appellant’s suffering or the severity of his sentence. Even if we were to accept


7Having applied the decisional framework announced in United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997), for evaluating conditions of post-trial confinement, and con-
sidered the entire record, we find we can resolve the issues raised by Appellant without
additional factfinding. See United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004).


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                  United States v. Lemburg, No. ACM 39261


Appellant’s assertions as true, the conduct of prison officials in the record does
not rise to the level of “deliberate indifference to serious medical needs of pris-
oners” proscribed by the Eighth Amendment whether manifested by prison
guards “intentionally denying or delaying access to medical care or intention-
ally interfering with the treatment once prescribed.” Estelle at 104–05. Fur-
ther, Appellant makes no claim that he suffered any physical harm, and on
this record we find none.
    Moreover, Appellant’s case does not demonstrate any evidence to suggest
that he attempted to use any grievance process to address the complaint he
now puts forward. The Court of Appeals for the Armed Forces emphasized, “A
prisoner must seek administrative relief prior to invoking judicial intervention
to redress concerns regarding post-trial confinement conditions.” United States
v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007) (citing United States v. White, 54 M.J.
469, 472 (C.A.A.F. 2001)). This requirement “promot[es] resolution of griev-
ances at the lowest possible level [and ensures] that an adequate record has
been developed [to aid appellate review].” Id. at 471 (alteration in original)
(quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). Except un-
der some unusual or egregious circumstance, an appellant must demonstrate
he or she has exhausted the prisoner grievance process provided by the con-
finement facility and the right to petition for relief under Article 138, UCMJ,
10 U.S.C. § 938. White, 54 M.J. at 471 (citations omitted).
    Appellant sought relief from the military judge before he was confined at
the HCJ. We are satisfied on this record that neither the military judge nor
any Government personnel had reason to conclude that the HCJ would not
accommodate Appellant’s medication needs while confined. The Defense mo-
tion for appropriate relief, though prescient perhaps, did not establish a ripe
factual basis for the military judge to grant relief. Consequently, we find that
the hearing held before Appellant’s transfer was not an exhaustion of admin-
istrative remedies required by law. Renewing the concern in Appellant’s clem-
ency submission was also inadequate to satisfy this requirement. See United
States v. White, No. ACM 33583, 1999 CCA LEXIS 220, at *4 (A.F. Ct. Crim.
App. 23 Jul. 1999) (unpub. op.), aff’d, 54 M.J. 469 (C.A.A.F. 2001). Appellant
did not utilize the prison’s grievance process or complain to the NCOIC of con-
finement, and we have no evidence that Appellant petitioned for relief under
Article 138, UCMJ. Appellant was required to exhaust his administrative rem-
edies, which he did not do. Appellant argues that he should be excused because
he was released before any grievance or complaint could have run its course.
However, we are not persuaded that sentence length is sufficiently unusual to
excuse compliance. Accordingly, we conclude that Appellant does not warrant
relief under the Eighth Amendment or Article 55, UCMJ.




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                   United States v. Lemburg, No. ACM 39261


    2. Relief under Article 58, UCMJ
    Next, we address Appellant’s claim that he was placed in solitary confine-
ment to avoid immediate association with foreign nationals in the general
prison population, and as a consequence the conditions were harsher compared
to an inmate in the general prison population. Appellant asserts he is due sen-
tence relief for being placed in administrative segregation to avoid a violation
of Article 12, UCMJ. We disagree.
    At the outset we note that there is no dispute about the material facts in
the record. The base confinement NCOIC testified at the post-trial hearing that
the county jail would place Appellant in administrative segregation in a cell
separate from the general population because of Appellant’s military status,
and to avoid the prohibition against housing Appellant with foreign nationals
in violation of Article 12, UCMJ. Similarly, the county detention corporal
states in his sworn declaration that per agreement with MacDill AFB, Appel-
lant was confined separate from the general population in a single person cell.
Appellant does not argue that the conditions violated the Eighth Amendment
or Article 55, UCMJ. Instead, he claims his Article 58, UCMJ, rights were vio-
lated when he was held in solitary confinement because he was a military
member. 8
    “No member of the armed forces may be placed in confinement in immedi-
ate association with enemy prisoners or other foreign nationals not members
of the armed forces.” 10 U.S.C. § 812 (2016). Article 12 applies to military mem-
bers held in civilian state or federal confinement facilities in the United States.
United States v. McPherson, 73 M.J. 393, 394 (C.A.A.F. 2014). Article 58(a),
UCMJ, provides that military members serving a sentence to confinement may
be confined in a civilian facility, but persons so confined “are subject to the
same discipline and treatment as persons confined or committed by the courts
of the United States or of the State, District of Columbia, or place in which the
institution is situated.” 10 U.S.C. § 858(a). “Military confinees can--and must-
-receive treatment equal to civilians confined in the same institution, while
being confined separately from foreign nationals . . . .” McPherson, 73 M.J. at
396.
   The crux of Appellant’s claim for relief is that civilian prisoners of compa-
rable lot received better treatment, and that the conditions of Appellant’s con-



8Though not dispositive to how this court rules, we note that Appellant did not include
in his assignment of error, as he alleged at the post-trial hearing and again in clem-
ency, that action by officials to avoid Appellant’s immediate association with foreign
nationals in the general population was cruel and unusual punishment in violation of
the Eighth Amendment and Article 55, UCMJ.


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                  United States v. Lemburg, No. ACM 39261


finement were made comparatively harsh because of his military status. How-
ever, the record does not allow this court to evaluate the conditions of any in-
mate’s confinement other than Appellant’s own; we are left to speculate what
comparable “discipline and treatment” a civilian of like circumstances—tem-
perament, age, physical and mental condition, rehabilitation potential, book-
ing and release dates, etc.—would have experienced in the same 37 hours of
confinement. Thus, we cannot conclude that Appellant did not receive treat-
ment that was comparable to civilians confined in the same institution, if there
were comparable civilians. Further, Appellant has not shown that he has ex-
hausted the prisoner-grievance system and petitioned for relief under Article
138, UCMJ. Wise, 64 M.J at 469. Accordingly, we find that Appellant’s confine-
ment conditions do not warrant relief under Article 58, UCMJ.
   3. Relief under Article 66(c), UCMJ
    Appellant also urges this court to exercise its authority under Article 66(c),
UCMJ, to provide sentence relief for the same conditions of post-trial confine-
ment. Under Article 66(c), we have broad authority and the mandate to ap-
prove only so much of the sentence as we find appropriate in law and fact, and
we could grant sentence relief even without finding an Eighth Amendment,
Article 55, or Article 58 violation. Gay, 74 M.J. at 742–43; see United States v.
Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). When this court considers judicial
relief under Article 66(c), UCMJ, for conditions of post-trial confinement, we
have not required an appellant to demonstrate that he has, absent unusual or
egregious circumstances, previously exhausted administrative remedies. See
United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS 376, at *13–14 (A.F.
Ct. Crim. App. 30 May 2017) (unpub. op.). We will instead consider the entire
record, and give “significant weight” to an appellant’s failure to seek adminis-
trative relief prior to invoking judicial intervention, while recognizing the lim-
its of our authority. Id.; United States v. Bailey, No. ACM S32389, 2017 CCA
LEXIS 604, at *11 (A.F. Ct. Crim. App. 11 Sep. 2017).
    However, after considering the facts and circumstances, and for all the rea-
sons previously stated, we do not conclude that Appellant should receive sen-
tence relief under Article 66(c), UCMJ. “Only in very rare circumstances do we
anticipate granting sentence relief when there is no violation of the Eighth
Amendment or Article 55, UCMJ.” United States v. Ferrando, 77 M.J. 506, 517
(A.F. Ct. Crim. App. 2017) (citations omitted); cf. United States v. Nerad, 69
M.J. 138, 145–47 (C.A.A.F. 2010) (holding that despite our significant discre-
tion in reviewing the appropriateness of a sentence, this court may not engage
in acts of clemency).




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                  United States v. Lemburg, No. ACM 39261


B. The Staff Judge Advocate’s Recommendation and Addendum
    Appellant sought clemency from the convening authority for the same con-
ditions of post-trial confinement at the HCJ which this court considered on
appeal. In his Addendum to the SJAR, the Acting Staff Judge Advocate (ASJA)
made the following remark concerning Appellant’s clemency submission:
       [Appellant] requests that you disapprove the fine and either dis-
       approve the dishonorable discharge or reduce it to a bad conduct
       discharge. Part of the justification for that request is the allega-
       tion that [Appellant’s] rights were violated during his approxi-
       mately 37-hour period of confinement at the Hillsborough
       County Jail. As part of that argument, the defense alleged that
       the military judge erred when he denied their post-trial motion
       regarding [Appellant’s] confinement. I have carefully considered
       these allegations and find them to be without merit.
    Appellant argues that the Addendum to the SJAR contained error that ma-
terially prejudiced him in that the ASJA incorrectly commented that Appel-
lant’s complaints about his conditions of confinement, made in his clemency
request, were without merit.
    We review de novo alleged errors in post-trial processing. See United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004). The threshold for establishing prejudice in
post-trial processing is low, but an appellant must make at least “some colora-
ble showing of possible prejudice.” United States v. Scalo, 60 M.J. 435, 436–37
(C.A.A.F. 2005) (quoting Kho, 54 M.J. at 65).
    Whether Appellant’s confinement conditions violated the Eighth Amend-
ment, or Articles 55 or 58, UCMJ, is a question of law. Therefore, it was not
error for the ASJA to disagree with Appellant and summarize the claim as
being “without merit.” Rule for Courts-Martial (R.C.M.) 1106(d)(4) requires the
staff judge advocate to state whether corrective action on the findings or sen-
tence should be taken when the defense clemency submissions allege legal er-
ror. Such response “may consist of a statement of agreement or disagreement
with the matter raised by the accused. An analysis or rationale for the staff
judge advocate’s statement, if any, concerning legal error is not required.”
R.C.M. 1106(d)(4). Finding no error in either the SJAR or its Addendum, we
decline to grant relief.




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                  United States v. Lemburg, No. ACM 39261


                               III. CONCLUSION
    The finding of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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