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

                              No. ACM S32570
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                         Vincent M. KERR
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 20 August 2020
                          ________________________

Military Judge: Matthew D. Talcott.
Approved sentence: Bad-conduct discharge, confinement for 35 days, re-
duction to E-1, and a reprimand. Sentence adjudged 16 October 2018 by
SpCM convened at Tinker Air Force Base, Oklahoma.
For Appellant: Major Kirk W. Albertson, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Dayle P. Percle, USAF; Captain
Kelsey B. Shust, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Senior Judge POSCH delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

POSCH, Senior Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas and pursuant to a pretrial agree-
ment (PTA), of one charge and one specification of fraudulent enlistment
                    United States v. Kerr, No. ACM S32570


(Charge I) and one charge and three specifications of wrongful use of a con-
trolled substance (Charge II), in violation of Articles 83 and 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 883, 912a. 1 The military judge
sentenced Appellant to a bad-conduct discharge, confinement for two months,
reduction to the grade of E-1, and a reprimand. Consistent with the terms of
the PTA, the convening authority approved only 35 days of confinement but
otherwise approved the sentence as adjudged.
    Appellant raises one assignment of error on appeal: whether he is entitled
to new post-trial processing because the staff judge advocate’s recommendation
(SJAR) misstated the authority of the convening authority to grant clemency
and the addendum to the SJAR failed to correct the error. We find the errors
do not require new post-trial processing and action, and affirm.

                                  I. DISCUSSION
    The National Defense Authorization Act for Fiscal Year 2014 modified Ar-
ticle 60, UCMJ, 10 U.S.C. § 860, and limited the convening authority’s ability
to grant clemency. Pub. L. No. 113–66, § 1702, 127 Stat. 672, 955–58 (2013).
The effective date of the change was 24 June 2014. Id. at 958. However, where
a court-martial conviction involves an offense committed before 24 June 2014
or includes a date range where the earliest date in the range for that offense is
before 24 June 2014, the convening authority has the same authority under
Article 60 as was in effect before 24 June 2014, except with respect to a man-
datory minimum sentence under Article 56(b), UCMJ, 10 U.S.C. § 856(b). Carl
Levin and Howard P. “Buck” McKeon National Defense Authorization Act for
Fiscal Year 2015, Pub. L. No. 113–291, § 531, 128 Stat. 3292, 3365 (2014);
United States v. Rogers, 76 M.J. 621, 624 (A.F. Ct. Crim. App. 2017) (citation
omitted).
    Appellant’s conviction for fraudulent enlistment is based on charged con-
duct that occurred before 24 June 2014. Consequently, the convening authority
who took action retained the full authority to set aside any finding of guilty, to
change any finding of guilty in accordance with Appellant’s pleas to a finding
of guilty to a lesser included offense, to disapprove or mitigate the sentence in
whole or in part, or to change Appellant’s punishment to one of a different na-
ture so long as the severity is not increased. Exec. Order 13,730, 81 Fed. Reg.
33,331, 33,337 (20 May 2016) (amending “Note located immediately following
the title of R.C.M. 1107”).




1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).


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                   United States v. Kerr, No. ACM S32570


A. Error in the SJAR
   After Appellant’s court-martial, the convening authority’s staff judge advo-
cate, Lieutenant Colonel (Lt Col) AM, signed an SJAR that, in reliance on the
PTA, recommended the convening authority approve only 35 days of the sen-
tence to confinement. Although this aspect of Lt Col AM’s recommendation
was proper advice as it comported with the limitation on sentence in the PTA,
Lt Col AM misadvised the convening authority on his power to affect the find-
ings and the bad-conduct discharge. The erroneous advice was as follows:
       For Charge I and II, and all their specifications, you only have
       the authority to approve the findings of guilt and cannot dismiss
       the findings of guilt.
       ....
       . . . You do not have the authority to disapprove, commute, or
       suspend in whole or in part the punitive discharge.
    The proper completion of post-trial processing is a question of law the court
reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing
United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to comment
in a timely manner on matters in the SJAR or matters attached to the SJAR
waives in the absence of plain error, or forfeits, any later claim of error. Rule
for Courts-Martial 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005). Analyzing for plain error, we assess whether “(1) there was an error; (2)
it was plain or obvious; and (3) the error materially prejudiced a substantial
right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65).
    To be sure, Appellant forfeited a claim of error in the post-trial processing
of his case when he chose not to respond to the SJAR before the convening
authority took action, and in fact waived his right to submit matters in clem-
ency. However, the legal advice in the SJAR that preceded the waiver was
plainly incorrect. The conduct underlying Appellant’s conviction for fraudulent
enlistment occurred “on or about 18 March 2014.” Thus, even though the con-
duct underlying the conviction for wrongful use of controlled substances in-
volves conduct that occurred after June 24, 2014, the convening authority re-
tained the full authority to affect the findings of guilty and the bad-conduct
discharge. This is so because the date range of the offenses of which Appellant
was convicted “straddles” 24 June 2014, the effective date of the changes to
Article 60, UCMJ. See Rogers, 76 M.J. at 626. Therefore, contrary to the advice
in the SJAR, the convening authority in this case had the power to set aside
the findings of guilty and to disapprove, mitigate, or modify the sentence in
whole or in part. The advice in the SJAR that the convening authority did not
have the power to modify the findings or the adjudged bad-conduct discharge
was clearly and obviously erroneous.


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                    United States v. Kerr, No. ACM S32570


B. Appellant’s Waiver
    Appellant received the SJAR with the erroneous advice on 14 January
2019. On 22 January 2019, Appellant waived his right to submit matters in
clemency. Appellant’s waiver stated, inter alia, that Appellant “understand[s]
that the convening authority may in certain cases permitted by law disapprove
findings of guilt to any charge and/or specification, but may not change a find-
ing of not guilty to guilty.” (Emphasis added). Appellant stated he further un-
derstood “that the convening authority may in certain cases permitted by law
disapprove a legal sentence, mitigate [lessen] the sentence, or change a pun-
ishment to one of a different [but not more severe] nature.” (Alterations in orig-
inal) (emphasis added).
    Upon receipt of Appellant’s waiver, Lt Col AM signed an addendum to the
SJAR that failed to address the errors in the SJAR. The addendum addressed
Appellant’s waiver of clemency, and concluded that his “earlier recommenda-
tion remains unchanged . . . [and] [i]n accordance with the [PTA], [Lt Col AM]
recommend[ed the convening authority] approve so much of the sentence that
calls for reduction to the grade of E-1, confinement for 35 days, a reprimand,
and a bad conduct discharge.” The convening authority followed this advice.
C. Alleged Prejudice
    To meet the burden to show error materially prejudicial to a substantial
right “in the context of a post-trial recommendation error . . . an appellant
must make ‘some colorable showing of possible prejudice.’” Scalo, 60 M.J. at
436–37 (quoting Kho, 54 M.J. at 65). “The threshold is low, but there must be
some colorable showing of possible prejudice. . . . in terms of how the [error]
potentially affected an appellant’s opportunity for clemency.” Id. at 437.
   Despite the errors in the SJAR and the addendum, we are not persuaded
that Appellant has met his burden even with the “low threshold for material
prejudice.” Id. (citation omitted). Appellant was sentenced to two months of
confinement and received the benefit of his PTA with the convening authority
by having his term of confinement reduced from two months to 35 days. With
the benefit of advice Appellant received from his trial defense counsel, Appel-
lant made the decision to waive clemency and to not submit any matters for
the convening authority to consider. The convening authority who took action
on Appellant’s sentence submitted a declaration stating that his “action in this
case would not have changed” after considering his broader authority, the fact
that Appellant waived clemency, and the PTA, which already offered favorable
terms to Appellant.




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                     United States v. Kerr, No. ACM S32570


    We acknowledge the importance of avoiding unwarranted post hoc specu-
lation that may be caused by this court’s reliance on such a declaration. 2 How-
ever, Appellant does not claim on appeal that he relied to his detriment on the
SJAR or that his trial defense counsel was deficient in the advice Appellant
received on the convening authority’s power to grant clemency. In his appeal,
Appellant claims prejudice only from a “missed opportunity to request clem-
ency,” and does not specify what relief he may have sought much less whether
he would have asked for relief if the SJAR was not deficient. Furthermore,
Appellant makes no claim that he would not have waived clemency had he
known of the error in the SJAR, just that his waiver was in some unspecified
manner the “natural result” of Lt Col AM’s erroneous advice.
    Appellant’s claim of prejudice rests on an assumption that the matters in
extenuation and mitigation, “particularly in light of the nature of the case and
the charges,” would have compelled a different result. Appellant argues “[t]he
charges were relatively minor in nature and were tried by a special court-mar-
tial,” and that “[i]t is therefore entirely plausible that the convening authority
may have chosen to grant clemency had he been properly advised.” We disagree
and find it implausible that the convening authority would have provided con-
finement or other relief sua sponte if he had not been misadvised by Lt Col AM.
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.

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


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




2 We find the convening authority’s declaration is not necessary to determine if Appel-
lant was prejudiced by the errors in the staff judge advocate’s recommendation and the
addendum. Cf. United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020) (observing
precedents that allow courts “to consider affidavits . . . when doing so is necessary for
resolving issues raised by materials in the record”).


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