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

                             No. ACM S32402
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                      Dennis FERNANDEZ, Jr.
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 8 November 2017
                         ________________________

Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
and reduction to E-1. Sentence adjudged 25 March 2016 by SpCM con-
vened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Allen S. Abrams, USAF; Major Melissa Bieder-
mann, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Gerald R. Bruce,
Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge HARDING and Judge HUYGEN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
SPERANZA, Judge:
   A military judge sitting as a special court-martial convicted Appellant,
consistent with Appellant’s pleas pursuant to a pretrial agreement, of wrong-
                United States v. Fernandez, No. ACM S32402


fully using methamphetamine in violation of Article 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 912a. The military judge sentenced Ap-
pellant to a bad-conduct discharge, 30 days of confinement, and reduction to
E-1. The convening authority approved the adjudged sentence.
   On appeal, Appellant claims that (1) trial counsel’s sentencing argument
was improper and (2) an erroneous personal data sheet (PDS) denied him
meaningful opportunity for clemency. We find no prejudicial error and affirm.

                              I. BACKGROUND
     When the San Antonio (Texas) Police Department responded to an inci-
dent involving Appellant, Appellant admitted to the responding officer that
he was high on “crystal meth.” A urinalysis conducted pursuant to a search
authorization confirmed that Appellant ingested a potentially lethal dose of
methamphetamine. Appellant later told investigators that he used one gram
of methamphetamine after arguing with his wife and stating to her, “F[**]ck
it, I’m going to do this whole gram of meth.”

                               II. DISCUSSION
A. Improper Argument
    At trial, Appellant stipulated to not only ingesting the one gram of meth-
amphetamine at one time but also using—mostly snorting—
methamphetamine multiple times while enlisted in the Air Force. In the
stipulation of fact, Appellant described participating in physical training
while “high,” where and from whom he purchased methamphetamine, the
amount he typically purchased, and how he funded his drug habit.
   Trial counsel began his sentencing argument with the following:
       Your Honor, you might have heard the parade music playing
       outside when you came in today at BMT graduation. Each
       Airman walking across that parade field is beginning a new ca-
       reer of opportunities. And, like them, the accused had that op-
       portunity. They understand that being an Airman is a privilege
       and not a right. They understand that being an Airman brings
       a responsibility to live according to higher standards. Every
       time we put on our uniform, every time we come on the base,
       every time we go out in public, we are Airmen and we accept
       that higher responsibility.
       Your Honor, the government is asking you to revoke that privi-
       lege from [Appellant] today by sentencing him to a bad conduct



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                United States v. Fernandez, No. ACM S32402


       discharge, 90 days confinement, reduction in rank to E-1, and
       two-thirds forfeiture of pay for his time in confinement.
       Your Honor, the accused does not deserve the privilege of being
       a part of this Air Force anymore. The accused has admitted to a
       history of meth use; he has admitted to meeting some man
       named Rebel at the Whataburger for his normal buy of be-
       tween lines and a gram of meth; to making large cash with-
       drawals from the ATM; selling his Air Jordan sneakers, his
       computer, and his musical keyboard all for money to buy meth.
       You understand, Your Honor, that meth is no joke.
    Trial counsel next explained the nature and effects of methamphetamine,
drawing a “facts not in evidence” objection from trial defense counsel that
was overruled by the military judge. Trial defense counsel did not object to
trial counsel’s argument advocating a bad-conduct discharge.
    Nonetheless, Appellant now claims “it was plain error for the assistant
trial counsel to blur the lines between a punitive discharge and an adminis-
trative separation.” Appellant further contends the error amounted to such
obvious and severe prosecutorial misconduct as to overcome the legal pre-
sumption of military judges knowing the law. Appellant concludes that the
adjudged bad-conduct discharge and the military judge’s failure to take sua
sponte remedial action “is evidence the military judge did not know the law
and the presumption normally applied to military judges should not apply in
this case.” Consequently, Appellant asks us to set aside his punitive dis-
charge.
    A claim of improper argument involves a question of law we review de no-
vo. United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). “The legal test for
improper argument is whether the argument was erroneous and whether it
materially prejudiced the substantial rights of the accused.” Id. (quoting
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). We assess Appel-
lant’s complaint and request for relief in accordance with the recent decision
of the Court of Appeals for the Armed Forces (CAAF) in United States v.
Pabelona, 76 M.J. 9 (C.A.A.F. 2017). See United States v. Motsenbocker, No.
201600285 (recon), 2017 CCA LEXIS 651 (N-M. Ct. Crim. App. 17 Oct. 2017)
(unpub. op.); cf. United States v. Kelly, 76 M.J. 793 (A. Ct. Crim. App. 2017)
(en banc), pet. granted on other grounds, 76 M.J. ___, 2017 CAAF LEXIS 1038
(C.A.A.F. 12 Oct. 2017) (order). “Because defense counsel failed to object to
the arguments at the time of trial, we review for plain error.” Pabelona, 76
M.J. at 11 (citing United States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004)).
   Appellant bears the burden of establishing plain error. Id. Accordingly,
Appellant must demonstrate that “(1) an error was committed; (2) the error


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                United States v. Fernandez, No. ACM S32402


was plain, or clear, or obvious; and (3) the error resulted in material prejudice
to substantial rights.” United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.
2008).
    “Prosecutorial misconduct is ‘action or inaction by a prosecutor in viola-
tion of some legal norm or standard, e.g., a constitutional provision, a statute,
a Manual rule, or an applicable professional ethics canon.’” Pabelona, 76 M.J.
at 11 (quoting United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)). Trial
counsel commits prosecutorial misconduct by “overstep[ping] the bounds of
that propriety and fairness which should characterize the conduct of such an
officer in the prosecution of a criminal offense.” Berger v. United States, 295
U.S. 78, 84 (1935). Even if trial counsel oversteps these bounds, relief is only
merited if the misconduct “actually impacted on a substantial right of an ac-
cused (i.e., resulted in prejudice).” United States v. Fletcher, 62 M.J. 175, 178
(C.A.A.F. 2005). “Where improper argument occurs during the sentencing
portion of the trial, we determine whether or not we can be confident that
[the appellant] was sentenced on the basis of the evidence alone.” Frey, 73
M.J. at 248 (alteration in original) (internal quotation marks omitted) (cita-
tion omitted).
    We need not determine whether trial counsel’s sentencing argument
amounted to prosecutorial misconduct in this guilty plea, military judge alone
case. We are convinced that the military judge, who we presume knew the
law and the difference between an administrative and a punitive discharge,
did not improperly consider trial counsel’s argument for a punitive discharge
to arrive at, what is in our view, an appropriate sentence in this case. We are
also convinced the military judge sentenced Appellant on the basis of the evi-
dence alone, which included Appellant’s use of a potentially lethal dose of
methamphetamine among his other admitted uses of methamphetamine. Any
potential prosecutorial misconduct that could be found in trial counsel’s sen-
tencing argument did not prejudice Appellant’s substantial rights.
B. Erroneous Personal Data Sheet
    Within ten minutes of adjournment, Appellant certified that, after consid-
ering the advice of his trial defense counsel, he was waiving his right to sub-
mit clemency matters and would not submit such matters for the convening
authority’s consideration. Appellant received the staff judge advocate’s rec-
ommendation (SJAR) and the record of trial less than two months later. The
SJAR included an erroneous PDS that failed to list Appellant’s overseas ser-
vice at Andersen Air Force Base, Guam, and his combat service (deployment)
in Saudi Arabia and one device on the Air Force Achievement Medal. Appel-
lant did not object to the SJAR or attached PDS or in any way seek to correct
the error. Instead, Appellant’s trial defense counsel confirmed Appellant’s
earlier election to waive his right to submit clemency matters and certified

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                 United States v. Fernandez, No. ACM S32402


counsel’s belief that the Government fully complied with the pretrial agree-
ment. Nonetheless, Appellant now claims the erroneous PDS denied him
meaningful opportunity for clemency and demands new post-trial processing.
    The proper completion of post-trial processing is a question of law we re-
view de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App.
2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004)). “If defense counsel does not make a timely comment on an omission
[or error] in the [SJAR], the error is waived 1 unless it is prejudicial under a
plain error analysis.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)
(citing Rule for Courts-Martial 1106(f); United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)). Under a plain error analysis, Appellant must persuade this
court that “(1) there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right.” Id. (quoting Kho, 54 M.J. at 65).
    To meet the third prong of the plain error test in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise con-
sidered under the plain error doctrine, Appellant must make “some colora-
ble showing of possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
“The low threshold for material prejudice with respect to an erroneous post-
trial recommendation reflects the convening authority’s vast power in grant-
ing clemency and is designed to avoid undue speculation as to how certain
information might impact the convening authority’s exercise of such broad
discretion.” Id. at 437. While the threshold is low, there must be some colora-
ble showing of possible prejudice. Id.
    While the PDS attached to the SJAR was plainly erroneous due to the
omission of Appellant’s overseas and combat service, we find that Appellant
failed to make some colorable showing of possible prejudice. Appellant waived
his right to submit clemency matters and did not comment on the SJAR. Ac-
cordingly, Appellant did not submit any matters for the convening authority’s
consideration or request any relief from the convening authority. Further-
more, Appellant benefited from a pretrial agreement that limited any ap-
proved confinement to no more than 60 days, disapproved any adjudged for-
feitures, and waived mandatory forfeitures. Appellant also received an ad-
judged period of confinement half of that bargained for in the agreement. Ap-
pellant’s conclusory statements that “the [PDS] error prejudiced Appellant’s
substantial rights” and “[t]he low threshold of material prejudice has been


1 Because we consider the issue using a plain error analysis, the failure to make a
timely comment on an omission or error in the SJAR actually constitutes forfeiture,
rather than waiver.




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                  United States v. Fernandez, No. ACM S32402


met” because “some of Appellant’s most admirable aspects of his service were
left off of the [PDS]” fail to show how he was denied meaningful opportunity
for clemency or otherwise prejudiced. Appellant offers no explanation how the
omission of what he simply deems “pertinent information” prejudiced him.
Appellant does not now, understandably, make the incredible claim that he
would have submitted matters and requested relief but for the erroneous
PDS. Appellant instead implicitly argues that the missing information would
have compelled the convening authority, in the absence of any matters sub-
mitted by Appellant detailing the admirable aspects of his service and a cor-
responding request for relief, to sua sponte grant Appellant sentencing relief
above and beyond the terms of the pretrial agreement. While the threshold is
indeed low, Appellant is required to at least explain how these alleged errors
potentially affected his opportunity for clemency. See Scalo, 60 M.J. at 437.
Appellant failed to meet this threshold showing and we discern no material
prejudice of Appellant’s substantial rights given the record in this case.

                                 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.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED. 2


                   FOR THE COURT


                   KATHLEEN M. POTTER
                   Acting Clerk of the Court




2 Appellant could not forfeit allowances as the result of a sentence at a special court-
martial. Moreover, Appellant had already served his term of confinement before ac-
tion. The action and corresponding court-martial order (CMO) erroneously reference
“allowances” and designate the Air Force Corrections System as Appellant’s confine-
ment location. We order a corrected CMO and action to remedy these errors.




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