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

                               No. ACM 38959
                            ________________________

                               UNITED STATES
                                   Appellee
                                         v.
                        Mark A. ANDERSON
           Lieutenant Colonel (O-5), U.S. Air Force, Appellant
                            ________________________

        Appeal from the United States Air Force Trial Judiciary
                             Decided 20 April 2017
                            ________________________

Military Judge: Gregory O. Friedland (arraignment) and Charles E.
Wiedie (trial).
Approved sentence: Dismissal and a reprimand. Sentence adjudged 7
August 2015 by GCM convened at Kadena Air Base, Okinawa, Japan.
For Appellant: Major Jarett Merk, USAF; Frank J. Spinner, Esquire.
For Appellee: Major G. Matt Osborn, USAF; Gerald R. Bruce, Esquire.
Before J. BROWN, SANTORO, and MINK, Appellate Military Judges. 1
Judge SANTORO delivered the opinion of the court, in which Senior
Judge J. BROWN and Judge MINK joined.
                            ________________________

    This is an unpublished opinion and, as such, does not serve as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




1 Even though Chief Judge Drew was listed on the original Special Panel order, as the
former Staff Judge Advocate for Air Force Special Operations Command with prior
knowledge of the case, he did not participate in this decision.
                  United States v. Anderson, No. ACM 38959


SANTORO, Judge:
    At a general court-martial, Appellant pleaded guilty to disobeying an order
and adultery in violation of Articles 92 and 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 892, 934. Officer members sentenced him to a dis-
missal and a reprimand. The convening authority approved the sentence as
adjudged.
    Appellant raises four assignments of error: (1) the military judge abused
his discretion by accepting the guilty plea to adultery, (2) the military judge
abused his discretion by admitting testimony during the pre-sentencing pro-
ceedings, (3) Appellant’s sentence is inappropriately severe, and (4) the staff
judge advocate (SJA) erred by advising the convening authority to consider
changes to Article 60, UCMJ, 10 U.S.C. § 860, which did not apply to Appel-
lant’s case, when deciding whether to approve the findings and sentence. We
affirm.

                                I. BACKGROUND
    Appellant, a married man, was on a temporary duty (TDY) assignment to
Thailand as part of Air Force joint combined exchange training exercise. While
on that deployment, Appellant allowed SN, a civilian Thai national, into his
quarters in violation of the mission commander’s order prohibiting unauthor-
ized guests in government-procured lodging. Appellant also engaged in sexual
intercourse with SN on multiple occasions.

                                II. DISCUSSION
A. Acceptance of Guilty Plea
    Appellant argues that his plea to adultery was improvident because the
military judge erroneously described the elements of the offense and failed to
develop fully the factual basis to support the guilty plea. We review a military
judge’s decision to accept a guilty plea for an abuse of discretion. United States
v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “A military judge abuses this dis-
cretion if he fails to obtain from the accused an adequate factual basis to sup-
port the plea—an area in which we afford significant deference.” United States
v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “The test for an abuse of dis-
cretion in accepting a guilty plea is whether the record shows a substantial
basis in law or fact for questioning the plea.” United States v. Moon, 73 M.J.
382, 386 (C.A.A.F. 2014); see Inabinette, 66 M.J. at 322. “Appellant has the
burden to demonstrate a substantial basis in law and fact for questioning the
plea.” United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014) (quoting United
States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004)).




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                   United States v. Anderson, No. ACM 38959


    The military judge conducted the inquiry required by United States v. Care,
40 C.M.R. 247 (C.M.A. 1969), and correctly advised Appellant that the ele-
ments of the offense of adultery were: (1) at the times and places alleged, he
wrongfully had sexual intercourse with SN, (2) at the time Appellant was mar-
ried to another, and (3) under the circumstances the conduct was prejudicial
to good order and discipline or of a nature to bring discredit upon the armed
forces. Appellant acknowledged understanding of those elements and admitted
facts that both he and his trial defense counsel (the same counsel who repre-
sents him in this appeal) acknowledged were sufficient to establish the factual
basis of the plea.
   Now, however, Appellant challenges the sufficiency of the Care inquiry on
two bases, the first of which relates to words used by the military judge when
he offered definitions related to the elements. We compare the words the mili-
tary judge used with those Appellant believes he should have used: 2
       Transcript: “‘Service discrediting conduct’ is conduct which tends to
       harm the reputation of the service or lower it in public esteem.”
       Asserted as correct: “Service discrediting conduct” is conduct which
       tends directly to harm the reputation of the service or lower it in public
       esteem.
       Transcript: “‘Conduct prejudicial to good order and discipline’ includes
       adultery that has an obvious and measurably diverse effect on the dis-
       cipline, morale, or cohesion of a military unit or organization . . . .”
       Asserted as correct: “Conduct prejudicial to good order and discipline”
       includes adultery that has an obvious and measurably divisive effect on
       the discipline, morale, or cohesion of a military unit or organization . . . .
    Appellant does not claim that he was confused by the military judge’s in-
structions or that had he received the “asserted as correct” definitions above,
he would not have pleaded guilty. Rather, his only argument is that the mili-
tary judge’s use of definitions that were not taken verbatim from either the
Military Judges’ Benchbook, Department of the Army Pamphlet 27-9, or the
Manual for Courts-Martial “undermines confidence in the conclusion” that he
understood the offenses to which he pleaded guilty.
   We have reviewed the entirety of the Care inquiry and see nothing that
causes us to believe Appellant was in any way misled or confused about the
elements of the offense to which he pled guilty. Moreover, Appellant admitted


2While these may be transcription errors that were not identified during the parties’
review of the record, we will assume that the military judge’s words are accurately
reflected above.


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                   United States v. Anderson, No. ACM 38959


under oath that his conduct was both prejudicial to good order and discipline
and service discrediting, and he explained in detail to the military judge why
that was so.
    Appellant’s admissions also undermine his second attack on the sufficiency
of his plea: that the military judge failed to elicit facts to support a finding that
his actions were prejudicial to good order and discipline or service discrediting.
As Appellant told the military judge:
       [The adulterous] conduct was prejudicial to good order and dis-
       cipline and of a nature to bring discredit to the armed forces for
       the following reasons:
       I used a government procured room for the sexual encounter
       during a period in which I was TDY to Thailand. By bringing her
       to my room, I violated an order to not have unauthorized guests
       in my room. Additionally, I shared information about [SN] with
       Major [M], a subordinate in my unit, implying that I had a sex-
       ual relationship with her and suggesting that he could too. Fi-
       nally, my involvement with [SN] became known to other mem-
       bers of my unit and to personnel in the U.S. Embassy in Thai-
       land. I could have refrained from engaging in sex with [SN], and
       have no legal justification or excuse for my behavior.
    When the military judge asked for additional detail about why Appellant
believed his conduct was prejudicial or service discrediting, he admitted that
he was a lieutenant colonel on a military deployment, his subordinates learned
about the relationship, and he facilitated his adultery by violating his com-
mander’s order not to have guests in his billeting room. Finally, Appellant ad-
mitted that had his conduct with SN, a Thai national, become known to the
local population, it would have undermined the deployment.
   There is no substantial basis in law or fact to question Appellant’s plea.
The military judge did not abuse his discretion in accepting it.
B. Sentencing Testimony
   There was no stipulation of fact to accompany Appellant’s plea. SN testified
through an interpreter about the facts and circumstances of Appellant’s of-
fenses, including the following exchange:
       Q. Okay. And did you go back to Mark’s house—or to Mark’s—
       the hotel that night?
       A. Yes.
       Q. What did you do when you got to his hotel?
       A. I lay down.


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                   United States v. Anderson, No. ACM 38959


       Q. Okay. Did you go to sleep?
       A. Yes.
       Q. Okay. Later that night did you have sex with Mark?
       A. Yes.
       Q. Did you have sex on his bed?
       A. Yes.
       Q. Was he on top of you?
       A. Yes.
       Q. Did you have sex on the coffee table?
       A. Yes.
       Q. Did you have sex in the bathroom?
       A. Yes.
       Q. Why were you in the bathroom?
       A. Vomit.
       Q. Okay. Did he have sex with you while you were vomiting?
       A. Yes.
    Trial defense counsel objected to the final two questions based on Rule for
Court-Martial (R.C.M.) 1001(b)(4) and Mil. R. Evid. 403, arguing that the chal-
lenged testimony (1) related to an event not admitted by Appellant during the
Care inquiry, (2) was not proper victim-impact evidence, and (3) was “just too
close to the line of suggesting that this was a nonconsensual event.” 3 The mil-
itary judge overruled the objection, finding that the testimony was “describing
the actual adultery . . . it is directly related to the offense of adultery, involves
the facts and circumstances of the adultery. It gives the charge context, and so
I believe it is a proper matter for consideration by the members under R.C.M.
1001.”
   We review a military judge’s decision to admit sentencing evidence for an
abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).
Such a review implicitly acknowledges a military judge has a range of choices
and we will not overturn an action taken within that range. United States v.




3Appellant had initially been charged with sexually assaulting SN. That charge was
withdrawn and dismissed after arraignment but before entry of pleas. The members
were unaware of that allegation.


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                  United States v. Anderson, No. ACM 38959


Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013). Rule for Courts-Martial 1001 author-
izes admission of evidence in aggravation, which includes the facts and circum-
stances of the underlying offense. R.C.M. 1001(b)(4).
    Appellant’s first challenge to the testimony, that it described an incident
not admitted by Appellant during the Care inquiry, provides him no relief for
two reasons. First, because his objection at trial was not to testimony about
the incident itself but rather to SN’s statement she was vomiting, he has failed
to preserve that objection for appellate review. Second, even had the objection
been preserved, he would still be entitled to no relief because the Government
may introduce evidence about the facts and circumstances surrounding Appel-
lant’s offenses. United States v. Gogas, 55 M.J. 521, 523 (A.F. Ct. Crim. App.
2001), aff’d, 58 M.J. 96 (C.A.A.F. 2003).
    His second challenge, that the testimony was not proper victim-impact ev-
idence, also fails. The testimony was admitted to demonstrate the facts and
circumstances of the offense itself, not its impact upon the victim or anyone
else.
   The military judge also addressed Appellant’s third challenge, that the tes-
timony suggested that the event was non-consensual, as part of his Mil. R.
Evid. 403 analysis:
       Now, the fact that the witness felt that she was going to be sick
       or that she actually was sick before, that alone this court does
       not find to be unfairly prejudicial, and it’s certainly not that the
       probative [sic] of the evidence is substantially outweighed by the
       danger of unfair prejudice. There are numerous reasons why an
       individual might have gotten sick. It could have been bad food;
       it could have been a stomach bug. As long as—and again, this is
       based on the proffer that’s been made, there’s not going to be
       talk of alcohol so it raises an issue of whether it was incapacita-
       tion or not, as long as that’s not done, as long as it’s not being
       raised about it being nonconsensual, just simply the fact that
       she got sick is not unfairly prejudicial in this court’s opinion.
    The military judge did not abuse his discretion by admitting the challenged
testimony.
C. Sentence Severity
    Appellant contends that a dismissal is inappropriately severe for his of-
fenses. This court “may affirm only . . . the sentence or such part or amount of
the sentence, as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c).
In determining whether a sentence should be approved, our authority is “not
legality alone, but legality limited by appropriateness.” United States v. Nerad,

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                  United States v. Anderson, No. ACM 38959


69 M.J. 138, 141 (C.A.A.F. 2010) (quoting United States v. Atkins, 23 C.M.R.
301, 303 (C.M.A. 1957)). This authority is “a sweeping congressional mandate
to ensure a fair and just punishment for every accused.” United States v. Baier,
60 M.J. 382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach, 55 M.J.
501, 504 (Army Ct. Crim. App. 2001)). This task requires “‘individualized con-
sideration’ of the particular accused ‘on the basis of the nature and seriousness
of the offense and the character of the offender.’” United States v. Snelling, 14
M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R. 176,
180–81 (C.M.A. 1959)). In conducting this review, we must also be sensitive to
considerations of uniformity and evenhandedness. United States v. Sothen, 54
M.J. 294, 296 (C.A.A.F. 2001) (citing United States v. Lacy, 50 M.J. 286, 287–
88 (C.A.A.F. 1999)). However, while we have a great deal of discretion in de-
termining whether a particular sentence is appropriate, we are not authorized
to engage in exercises of clemency. Lacy, 50 M.J. at 288; United States v. Healy,
26 M.J. 394, 395–96 (C.M.A. 1988).
   Appellant had 16 years of service: 11 as a commissioned officer in the Air
Force and 5 as an enlisted member of the Army. He provided significant evi-
dence of his career accomplishments and several senior officers offered evi-
dence on his behalf.
     Conversely, Appellant was the flight commander on a foreign-exchange de-
ployment. He knowingly violated his mission commander’s order not to bring
guests into the hotel in which his subordinates were also staying. Appellant
had also received a letter of reprimand and had an unfavorable information
file established against him for creating or contributing to a hostile work envi-
ronment by (a) being absent during the duty day without taking leave, (b) in-
tentionally scheduling himself and selected non-commissioned officers for de-
sirable temporary duty assignments, and (c) failing to fulfill his obligations
relating to the medical provider credentialing process.
    The maximum sentence for the offenses to which Appellant pled guilty was
a dismissal and confinement for 18 months. The sentence was well within the
authority of the convening authority to approve. In arguing that a dismissal is
inappropriately severe, Appellant renews an argument he made at trial: that
his adultery does not warrant the punishment imposed. This argument misses
the critical point that Appellant, a senior officer and flight commander, know-
ingly violated an order while on a deployment in a foreign country, his disobe-
dience was solely to satisfy his personal desires, his disobedience became
known to his subordinates, and jeopardized the interests of the United States
the deployment was intended to serve. While the dismissal is certainly a severe
punishment, we cannot say that it is inappropriately severe, and any action we
took to mitigate the dismissal would be more akin to an act of clemency. Clem-



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                  United States v. Anderson, No. ACM 38959


ency is solely within the purview of the convening authority and, as noted be-
low, it is evident from the record that the convening authority took his respon-
sibility seriously and engaged in considerable deliberation before deciding
clemency was not appropriate.
D. Staff Judge Advocate’s Recommendation
    Finally, Appellant contends that the SJA provided erroneous advice to the
convening authority about the factors he should consider when deciding
whether to approve the findings and sentence. Proper completion of post-trial
processing is a question of law which we review de novo. United States v. Shef-
field, 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)). An error in the SJA’s recommendation (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 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. Because of the highly discretionary nature of the con-
vening authority’s action on a sentence, we grant relief if Appellant presents
“some colorable showing of possible prejudice” affecting his opportunity for
clemency. Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 M.J. 283,
289 (1998)).
    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. FY14 NDAA, Pub. L. No. 113-66,
§1702, 127 Stat. 956–57 (2013). A convening authority can no longer, except
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 con-
vening 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 discharge” ex-
cept in certain circumstances not present here. Id. at 956. These changes be-
came effective on 24 June 2014 but were inapplicable to Appellant because his
offenses occurred before the act’s effective date. Id. at 958.
   Despite the FY14 NDAA’s inapplicability, the SJA recommended the con-
vening authority “consider and follow Congress’s new guidance, though tech-
nically not applicable, in future determinations for this case.” The SJA told the
convening authority that Congress’ new “guidance” would have “removed your
authority to disapprove the findings on his offenses or the adjudged punitive
separation he received, and you would be required to provide a written expla-
nation of the reasons for any other action taken on the adjudged sentence.”



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                  United States v. Anderson, No. ACM 38959


    In response, trial defense counsel argued that not only did the FY14 NDAA
not apply to Appellant but that applying that law to him would “arguably [be]
a violation of the law itself” because Congress’ decision regarding the act’s ef-
fective dates was clear. Appellant asked that the convening authority grant
clemency by disposing of his offenses via non-judicial punishment under Arti-
cle 15, UCMJ, 10 U.S.C. § 815, after which Appellant would resign from the
service.
    The SJA provided three addenda to his initial recommendation. In the first,
the SJA acknowledged that Appellant’s position was legally accurate, but “af-
ter reviewing the attached clemency matters submitted by the defense, and the
record of trial,” his “recommendation remains unchanged.” The SJA did not
specify whether the recommendation to which he was referring was the recom-
mendation to approve the findings and sentence as adjudged, to apply the re-
vised Article 60 restrictions, or both.
    A second addendum, dated two weeks later, responded to the several ques-
tions posed by the convening authority. First, the convening authority asked
whether Appellant’s veterans’ benefits would differ if he were separated ad-
ministratively instead of punitively. Second, the convening authority asked for
information on Appellant’s duty status and medical credentials. Third, he
asked for additional information on the officer resignation and separation pro-
cess. Fourth, he asked whether he had the authority to set aside the dismissal
while simultaneously seeking an administrative discharge. Fifth, he asked
whether SN had made a statement.
    A third addendum, dated two weeks after the second, responded to Appel-
lant’s challenges to several of the answers provided in the second addendum.
Specifically, Appellant objected to the SJA’s reference to Article 74(b), UCMJ,
10 U.S.C. § 874(b), (remission and suspension of sentences); paragraph 9.23.2
of Air Force Instruction 51-201 (convening authority’s discretionary authority);
and whether SN provided a statement. After addressing each of these points,
the addendum concluded:
       I agree with the defense that you have full authority to set aside
       the conviction for either or both charges, as well as to approve,
       disapprove, commute or suspend the sentence in whole or in
       part. However, my earlier recommendation that you approve the
       findings and sentence as adjudged remains unchanged.
   The convening authority acknowledged the SJA’s advice and considered it
before taking final action in the case.
    Appellant only challenges that portion of the SJA’s advice that suggested
he should consider Congress’ rationale for amending Article 60. The SJA cured



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                   United States v. Anderson, No. ACM 38959


any possible error in his third addendum. 4 The convening authority was cor-
rectly advised about the law applicable to Appellant’s case. It was evident
based on the questions the convening authority posed that he was seriously
considering whether to take some action other than approve the sentence as
adjudged—questions he would have no reason to ask if he believed he had no
authority to take that action. Appellant has failed to establish that the SJA
erred in his legal advice to the convening authority and, even assuming error,
he has failed to demonstrate a colorable showing of possible prejudice.

                                 III. CONCLUSION
    The findings 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



                   MICAH L. SMITH
                   Deputy Clerk of the Court




4 In an unpublished decision in United States v. Kester, No. ACM 38911, 2017 CCA
LEXIS 85 (A.F. Ct. Crim. App. 7 Feb. 2017), a panel of this court concluded that similar
advice—offered without defense objection—did not constitute plain error under the
facts of that case. Because we conclude that any possible error was corrected by the
SJA’s subsequent advice, we need not decide whether the initial advice constituted
error.


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