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

                          No. ACM S32469 (f rev)
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Morgan C. HILL
          Airman First Class (E-3), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Upon Further Review
                         Decided 21 August 2018
                         ________________________

Military Judge: Michael D. Schag.
Approved sentence: Bad-conduct discharge, confinement for 75 days, and
reduction to E-1. Sentence adjudged 23 March 2017 by SpCM convened
at McConnell Air Force Base, Kansas.
For Appellant: Patrick A. Clary, Major, USAF.
For Appellee: Mary Ellen Payne, Major, USAF.
Before MAYBERRY, MINK, and DENNIS, Appellate Military Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge MINK and Judge DENNIS joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Chief Judge:
   We have this case for further review because we ordered new post-trial pro-
cessing because of errors in the addendum to the staff judge advocate’s recom-
mendation (SJAR), which misstated the amount of adjudged forfeiture of pay
and erroneously recommended the convening authority (CA) disapprove the
                United States v. Hill, No. ACM S32469 (f rev)


automatic forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b. United
States v. Hill, No. ACM S32469, 2017 CCA LEXIS 718 (A.F. Ct. Crim. App. 21
Nov. 2017) (unpub. op.).
    The military judge sentenced Appellant to confinement for six months, for-
feitures of $900.00 pay for six months, reduction to the grade of E-1, and a bad-
conduct discharge. On 6 April 2017, the original CA deferred the automatic
and adjudged forfeitures until action pursuant to Article 57a, UCMJ, 10 U.S.C.
§ 857a. The original action taken on 10 May 2017 disapproved the adjudged
forfeitures. In our previous opinion, we found there were no material errors
associated with the pleas, findings, or adjudged sentence but remanded for new
post-trial processing in light of the erroneous SJAR addendum. Id. at *5, *7.
Appellant submitted no supplemental pleading but we address additional er-
rors in the new post-trial process. Finding no error materially prejudicial to
the substantial rights of Appellant, we affirm the findings and sentence.

                               I. BACKGROUND
    On remand, Appellant’s case underwent new post-trial processing and the
staff judge advocate (SJA) prepared a new SJAR that included an accurate
recitation of the adjudged punishment and maximum allowable punishment.
Additionally, the SJAR correctly stated the CA could not disapprove, commute,
or suspend, in whole or in part, the punitive discharge or automatic forfeitures
but did have the authority to disapprove, commute, or suspend, in whole or in
part, Appellant’s term of confinement, reduction in rank, and adjudged forfei-
tures. The SJA recommended the CA approve only so much of the sentence
that included a bad-conduct discharge, confinement for 75 days, and reduction
to the grade of E-1—explicitly recommending the CA disapprove the adjudged
forfeitures.
    The matters submitted by Appellant’s counsel include a comment on “an
additional limitation” on the CA’s authority not covered by the SJAR. It goes
on to state:
       Although the addendum to the first [SJA’s] recommendation en-
       dorsed the disapproval of the adjudged forfeitures, and the first
       [CA] action did not approve this portion of the punishment, your
       [SJA’s] current recommendation advises you to approve the ad-
       judged forfeitures. For the following reasons, any convening au-
       thority action purporting to approve the adjudged forefeitures
       [sic] would not be legally sufficient. . . . [N]ew processing . . .
       cannot lead to a worse outcome for the accused [citing to Article
       60(f)(2)(C) and Article 63, UCMJ]. In other words, you are free
       to provide relief in addition to what was granted by the first [CA]
       action, but any [CA] action that leaves [Appellant] in a worse

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                 United States v. Hill, No. ACM S32469 (f rev)


       position than the original action would be outside of your discre-
       tion.
    The 9 April 2018 SJAR addendum does not correct the defense counsel’s
misstatement as to the 10 January 2018 recommendation to disapprove the
adjudged forfeitures and goes so far as to “amend” the recommendation, stat-
ing:
       Defense counsel asserts you may not approve the adjudged for-
       feitures in this case. I concur. Accordingly, my earlier recommen-
       dation has changed. I recommend you approve the findings as
       adjudged and only so much of the sentence as calls for a bad con-
       duct discharge, confinement for 75 days, and reduction to the
       grade of E-1.

                                 II. DISCUSSION
A. Law
   Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citing United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000)). If we find
error, Appellant must nevertheless make some “colorable showing of possible
prejudice” to his opportunity for clemency from the CA in order to secure relief.
United States v. LeBlanc, 74 M.J. 650, 660 (C.A.A.F. 2015) (quoting United
States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005)).
   R.C.M. 1107(f)(2) provides in pertinent part:
       When so directed by a higher reviewing authority . . . the con-
       vening authority shall modify any incomplete, ambiguous, void,
       or inaccurate action noted in review of the record of trial under
       Article[ ] . . . 66 . . . . The convening authority shall personally
       sign any supplementary or corrective action.
B. Analysis
    The errors associated with the new post-trial processing of this case may
not have huge financial consequences or persuade this court to exercise its au-
thority to grant relief. They do, however, illustrate a pervasive lack of attention
to detail and the importance of correctly documenting the particularities of an
appellant’s sentence and the applicable law, by both parties.
    Under certain circumstances pursuant to R.C.M. 1107(f)(2), the CA’s ability
to modify an action is expressly restricted in that it cannot “result in action
less favorable to the accused than the earlier action.” This language is con-
tained in neither the subsequent verbiage of R.C.M. 1107(f)(2) nor R.C.M.
1107(g) authorizing a higher reviewing authority to direct a new action. As

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                United States v. Hill, No. ACM S32469 (f rev)


such, defense counsel’s reliance on Articles 60(f)(2)(C) and 63, UCMJ, 10 U.S.C.
§§ 860(f)(2)(C), 863, is misplaced. Those provisions address proceedings in re-
vision or rehearing, not new post-trial processing. See also United States v.
Garza, 61 M.J. 799, 802 (A. Ct. Crim. App. 2005).
    Appellant has not asserted, and we do not find, any colorable showing of
possible prejudice in his opportunity to receive clemency. In the end, Appellant
requested and received deferment and ultimately disapproval of the adjudged
forfeitures totaling $900.00.

                               III. 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 sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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