           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Senior Airman DONALD M. SHIRREFFS
                                    United States Air Force

                                              ACM S32248

                                               7 May 2015

          Sentence adjudged 19 May 2014 by SPCM convened at McConnell
          Air Force Base, Kansas. Military Judge: Michael J. Coco (sitting alone).

          Approved Sentence: Bad-conduct discharge, confinement for 160 days, and
          reduction to E-1.

          Appellate Counsel for the Appellant:                Major Isaac C. Kennen and
          Major Jeffrey A. Davis.

          Appellate Counsel for the United States:              Major Roberto Ramirez and
          Gerald R. Bruce, Esquire.

                                                  Before

                          MITCHELL, SANTORO, and CONTOVEROS
                                 Appellate Military Judges

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



PER CURIAM:

        A military judge sitting as a special court-martial convicted the appellant, pursuant
to his pleas, of two specifications of wrongful use of a controlled substance in violation
of Article 112a, UCMJ, 10 U.S.C. § 912a. The adjudged sentence was a bad-conduct
discharge, confinement for 160 days, reduction to E-1, and forfeitures of $861 pay per
month for six months. The convening authority approved the bad conduct discharge,
confinement, and reduction, but directed that the mandatory forfeitures be directed to the
appellant’s wife and son. The appellant argues that the staff judge advocate erred in his
post-trial advice. Finding no error that materially prejudices the appellant’s substantial
rights, we affirm.
                                                  Background

       The appellant pled guilty to using lorazepam, a Schedule IV controlled substance,
on divers occasions. He also pled guilty to using hydrocodone, a Schedule II controlled
substance. During his Care inquiry, the appellant told the military judge that he began
using lorazepam without a prescription following a back injury. See United States v.
Care, 40 C.M.R. 247 (C.M.A. 1969). He ingested lorazepam approximately ten to
twelve times over a three-week period. The appellant’s lorazepam use was initially
uncovered when he tested positive on a random urinalysis; however, despite receiving
punishment under Article 15, UCMJ, 10 U.S.C. § 815, he continued to use lorazepam.

       A subsequent urinalysis test, conducted pursuant to his wing commander’s Bickel
policy, detected hydrocodone use. See United States v. Bickel, 30 M.J. 277 (C.M.A.
1990). In the Care inquiry relating to this offense, the appellant told the military judge
that when he realized his military career was over after the lorazepam use was detected,
he became depressed and began taking hydrocodone.

                                Staff Judge Advocate’s Recommendation

        Rule for Courts-Martial (R.C.M.) 1106 required that before the convening
authority took action on the findings and sentence of this court-martial, he received a
recommendation from his staff judge advocate (SJA). The purpose of the staff judge
advocate’s recommendation (SJAR) is to assist the convening authority, who is often not
legally trained, exercise his command prerogative. R.C.M. 1106(d)(1). The appellant
alleges that the SJAR erroneously stated that the character of his service prior to the
preferral of charges was “satisfactory,” whereas his squadron commander’s indorsement
to the charge sheet said that his “duty performance was excellent.”

        Proper completion of post-trial processing is a question of law which 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, 65 (C.A.A.F. 2000)). Failure to comment in a
timely manner on matters in the SJAR, or on matters attached to the SJAR, forfeits1 any
later claim of error in the absence of plain error. R.C.M. 1106(f)(6); United States v.

1
  Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005), both indicate that
waiver occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation. However,
our superior court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009), recognizes that military
courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that waiver
is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue,
while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal. Id.
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Following Gladue,
the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in the staff
judge advocate’s recommendation. See United States v. Parker, 73 M.J. 914 (A.F. Ct. Crim. App. 2014) (stating
that the appellant forfeited, rather than waived, a claim that erroneous information was attached to the staff judge
advocate’s recommendation).


                                                          2                                         ACM S32248
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). “To prevail under a plain error analysis, [the
appellant bears the burden of showing] that: ‘(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). Because of the highly discretionary nature of the
convening authority’s action on a sentence, we may grant relief if an 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 (C.A.A.F. 1998)).

       An error in a post-trial SJAR to the convening authority, however, “does not result
in an automatic return by the appellate court of the case to the convening authority.
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.”
United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).

       Assuming without deciding that “satisfactory” is materially different from
“excellent,” we discern no prejudice to the appellant from the staff judge advocate’s
characterization. The convening authority had before him evidence of the appellant’s
multiple combat deployments, above-average (or better) enlisted performance reports, as
well as evidence that the appellant continued his drug use after being investigated for that
same offense. Additionally, the convening authority granted the appellant’s only
requests: to defer, and then disapprove, the adjudged forfeitures, and to redirect the
mandatory forfeitures for the benefit of the appellant’s family. The appellant therefore
has not met his burden to establish a colorable showing of possible prejudice.

                                          Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are

                                      AFFIRMED.




              FOR THE COURT



              LEAH M. CALAHAN
              Deputy Clerk of the Court



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