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

                        No. ACM 38669 (reh)
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                      Brandur G. JENSEN
         Airman First Class (E-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 23 March 2017
                      ________________________

Military Judge: Matthew S. Ward (original trial); Matthew P. Stoffel
(rehearing arraignment); J. Wesley Moore (rehearing).
Approved sentence: Bad-conduct discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 17 February 2016 by GCM con-
vened at Sheppard Air Force Base, Texas.
For Appellant: Major Mark C. Bruegger, USAF; Major Jeffrey A. Davis,
USAF.
For Appellee: Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, SPERANZA and JOHNSON, Appellate Military
Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Judges SPERANZA and JOHNSON joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                    United States v. Jensen, No. ACM 38669 (reh)


MAYBERRY, Senior Judge:

                                 I. BACKGROUND
    In May 2014, Appellant was convicted in accordance with his pleas and
pursuant to a pretrial agreement (PTA) by a military judge sitting alone of one
specification of sexual assault of a child and two specifications of attempting to
persuade a minor to engage in sexual activity of a criminal nature, in violation
of Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920b, 934. The adjudged and approved sentence included a bad-conduct dis-
charge, confinement for six months, forfeiture of all pay and allowances, and
reduction to E-1.
    This court initially affirmed the finding of sexual assault of a child (Charge
I), but found Appellant’s pleas improvident as to the two specifications of at-
tempting to persuade a minor to engage in sexual activity of a criminal nature
(Charge II). Accordingly, this court set aside the conviction of Charge II and
the sentence and authorized a rehearing or other action under Rule for Courts-
Martial (R.C.M). 1107(e)(1)(B). United States v. Jensen, No. ACM 38669, 2015
CCA LEXIS 377 (A.F. Ct. Crim. App. 3 Sep. 2015) (unpub. op.).
    On 17 February 2016, a military judge sitting alone convicted Appellant in
accordance with his pleas and pursuant to a PTA of one charge and two speci-
fications of attempting to persuade a minor to engage in sexual activity of a
criminal nature, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The mili-
tary judge then sentenced Appellant for this conviction and the previous con-
viction in violation of Article 120b (Charge I). The adjudged and approved sen-
tence included a bad-conduct discharge, confinement for six months, and re-
duction to E-1.
    Appellant did not raise any error on appeal. After reviewing the record of
trial (ROT), this court specified an issue regarding the impact of the erroneous
contents of the report of result of trial (RRT), staff judge advocate’s recommen-
dation (SJAR), addendum, and personal data sheet (PDS). 1 Appellant’s re-
sponse to the specified issue asserts that the omission of sentence limitations


1   The specified issue was:

IN THE ABSENCE OF ANY OBJECTION BY DEFENSE COUNSEL, DOES:

          THE ABSENCE OF ANY REFERENCE TO CHARGE I AND ITS
          SPECIFICATIONS AND THE ABSENCE OF ANY MENTION OF
          CREDIT FOR ANY PORTION OF PUNISHMENT PREVIOUSLY




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                United States v. Jensen, No. ACM 38669 (reh)


under R.C.M. 810(d)(1) and the erroneous advice regarding the maximum pun-
ishment contained within the SJAR constitute plain error and consequently
deprived Appellant of accurate clemency consideration. The Government as-
serts that the only likely error was the erroneous SJAR statement regarding
the maximum punishment and the omission as to the limitation on the sen-
tence as a result of the first trial, but these did not prejudice Appellant.

                               II. DISCUSSION
    The proper completion of post-trial processing is a question of law, which
this court reviews 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


       SERVED AS A RESULT OF THE ORIGINAL TRIAL IN THIS CASE
       IN THE REPORT OF RESULT OF TRIAL;

       OMISSION OF CHARGE I AND ITS SPECIFICATIONS, INCLU-
       SION OF AN ERRONEOUS MAXIMUM PUNISHMENT, AND AB-
       SENCE OF ADVICE AS TO THE IMPACT OF THE SENTENCE IM-
       POSED AT THE ORIGINAL TRIAL ON THE MAXIMUM SEN-
       TENCE THAT THE CONVENING AUTHORITY COULD APPROVE
       IN THE STAFF JUDGE ADVOCATE RECOMMENDATION (SJAR);

       THE ABSENCE OF ANY CREDIT FOR CONFINEMENT SERVED
       AS A RESULT OF THE SENTENCE IMPOSED AT THE ORIGINAL
       TRIAL ON THE CHARGE SHEET OR THE PERSONAL DATA
       SHEET OFFERED AT TRIAL AND ATTACHED TO THE SJAR AND
       ADDENDUM;

INDIVIDUALLY OR CUMULATIVELY CONSTITUTE PLAIN ERROR MA-
TERIALLY PREJUDICIAL TO A SUBSTANTIAL RIGHT OF APPELLANT,
AND IF SO, WHAT IF ANY REMEDY SHOULD THIS COURT PROVIDE?
SEE 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, WAIVES ANY LATER CLAIM OF
ERROR IN THE ABSENCE OF PLAIN ERROR); UNITED STATES V.
SCALO, 60 M.J. 435, 436 (C.A.A.F. 2005) (TO PREVAIL UNDER A PLAIN
ERROR ANALYSIS, THE APPELLANT BEARS THE BURDEN OF SHOW-
ING THAT: (1) THERE WAS AN ERROR; (2) IT WAS PLAIN OR OBVIOUS;
AND (3) THE ERROR MATERIALLY PREJUDICED A SUBSTANTIAL
RIGHT); RULE FOR COURTS-MARTIAL 1101(f)(6)).




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                    United States v. Jensen, No. ACM 38669 (reh)


omission [or error] in the SJAR, the error is waived unless it is prejudicial un-
der a plain error analysis.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005) (citing R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)). As there was no objection filed by trial defense counsel, 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).
A. Staff Judge Advocate’s Recommendation (SJAR)
    The SJAR shall be a concise written communication, setting forth, inter
alia, the findings, sentence, and confinement credit to be applied; a copy or
summary of the PTA; and the staff judge advocate’s (SJA’s) concise recommen-
dation. R.C.M. 1106(d)(3). The SJAR should also contain the maximum sen-
tence for the guilty specifications/charges as well as any previously approved
request for deferral of confinement. Air Force Instruction (AFI) 51-201, Admin-
istration of Military Justice, ¶ 9.16 (6 Jun. 2013). Before a convening authority
may take action on a sentence, he must consider the SJAR. R.C.M
1107(b)(3)(ii); R.C.M. 1107(b)(3)(ii) Discussion.
    In the present case, the SJAR: includes an erroneous maximum punish-
ment; 2 does not indicate that the guilty plea was pursuant to a PTA or other-
wise summarize the terms of the PTA; 3 does not include the duration of con-
finement served as a result of the prior hearing in this case; 4 and does not
advise the convening authority as to the limitation of what sentence he can
approve pursuant to Article 63, UCMJ, 10 U.S.C. § 863, and R.C.M. 810(d).
The addendum does not correct these deficiencies. The Government asserts
that the only possible error was the erroneous statement of the maximum pun-
ishment and the omission of the limitation of the sentence imposed at the orig-
inal trial on the sentence which the convening authority could approve. We
disagree. As listed above, the SJAR and addendum contained plain and obvi-
ous errors.
B. Court Martial Order (CMO)
    After taking action under R.C.M. 1107, the convening authority issues an
initial promulgating order that publishes the result of the court-martial and


2The Government pleading mistakenly indicates life in prison was the maximum au-
thorized confinement when in fact it was 50 years.
3This information is contained, accurately, in the RRT attached to the SJAR but it is
not separately listed pursuant to AFI 51-201, paragraph 9.16 and Figure 9.7.
4   Neither the charge sheet nor the PDS reflect the duration of confinement served.




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                 United States v. Jensen, No. ACM 38669 (reh)


the convening authority’s action. R.C.M. 1114(a)(2) and (b)(1). The promulgat-
ing order must include, inter alia, the charges and specifications, or a summary
thereof, the findings, the sentence, and the action of the convening authority,
or a summary thereof. R.C.M. 1114(c)(1).
   AFI 51-201, paragraph 11.14.4. states that the promulgating order must
indicate the case is a rehearing and refers to Figure 10.5 for the appropriate
language to be included. The CMO in this case does not comply with these
requirements. 5
     Here, the CMO does not include the results of the decision of this court
affirming the findings of guilt as to Charge I but setting aside the findings of
guilt as to Charge II and the sentence, or the fact that a rehearing on Charge
II and the sentence was ordered by General Court Martial Order No. 1, Head-
quarters Second Air Force (AETC), dated 29 October 2015. Additionally, the
action does not mention that the adjudged confinement was deferred and it
does not state the number of days of confinement previously served, nor does
it indicate the dates of confinement to establish the basis of confinement credit.
Additionally, the action states “the term of confinement having been served
pursuant to the sentence of a previous court-martial . . . .” and this is mislead-
ing. The confinement for which Appellant must receive credit is a result of the
sentence adjudged at the former trial of this case.
C. Prejudice
    The standard for meeting the test of prejudice is low, requiring only “some
colorable showing of possible prejudice.” Kho, 54 M.J. at 65 (quoting United
States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). “The low threshold for
material prejudice with respect to an erroneous post-trial recommendation . . .
is designed to avoid undue speculation as to how certain information might
impact the convening authority’s exercise of such broad discretion.” Scalo, 60
M.J. at 437. While the threshold is low, there must be some colorable showing
of possible prejudice. Id.
    Appellant asserts he was prejudiced by the SJAR’s omission of advice to
the convening authority of the sentence limitations pursuant to Article 63,
UCMJ, and R.C.M. 810(d). Acknowledging that the convening authority was
the same individual who had denied him clemency at his original trial, he now
asserts that he was denied meaningful clemency consideration due to the fact
that the content of his post-rehearing clemency request was different (e.g., fi-
nancial hardships associated with his recall to active duty and not getting paid


5 The portion of the specified issue concerning the omission of any reference to Charge
I in the RRT and SJAR would have been resolved had the CMO in this case contained
the language found in AFI 51-201, Figure 10.5.


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                United States v. Jensen, No. ACM 38669 (reh)


for over four months, and the character statement provided by his current su-
pervisor regarding his positive attitude and willingness to serve with him) and
he was requesting a different form of clemency: disapproval of the discharge or
restoration of his rank. Appellant requests this court return the case to the
convening authority for new post-trial processing.
    The Government submitted affidavits from both the convening authority’s
SJA and the convening authority. These affidavits do not concede any error,
but acknowledge the possibility. They do establish the convening authority’s
knowledge that the sentence allowable by law was the one actually adjudged
at the rehearing and the adjudged confinement was deferred immediately after
trial because Appellant had already served his sentence of six months. The SJA
pointed out to the convening authority the portion of the ROT where the mili-
tary judge discussed with Appellant that the maximum sentence that could be
approved was that adjudged at the previous hearing (but the articulated max-
imum omits the adjudged forfeitures in his recitation of that sentence). The
convening authority unequivocally states that had the SJAR included this in-
formation, his decision to approve the sentence as adjudged would not have
changed.
    We are mindful that the same convening authority was involved in the re-
ferrals, PTAs, and post-trial actions associated with both trials and the defer-
ment of confinement in the second trial. The information provided in the affi-
davits, but not otherwise contained within the record, allows us to make rea-
sonable inferences of what happened during the post-trial process. We find that
Appellant has not met the threshold of establishing a colorable showing of pos-
sible prejudice and that we need not return this case for new post-trial pro-
cessing. However, we are compelled to order a new action and correspondingly
a new CMO.

                               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 the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court



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