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

                               No. ACM 39447
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Harrison T. BELL
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 9 July 2019
                          ________________________

Military Judge: L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 30 days, and
reduction to E-1. Sentence adjudged 16 January 2018 by GCM convened
at Hurlburt Field, Florida.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge LEWIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
DENNIS, Judge:
   Appellant was convicted, in accordance with his pleas and pursuant to a
pretrial agreement, of two specifications of child endangerment in violation of
                        United States v. Bell, No. ACM 39447


Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 A mil-
itary judge sitting alone sentenced Appellant to a bad-conduct discharge, con-
finement for four months, and reduction to the grade of E-1. Pursuant to the
pretrial agreement, the convening authority approved only 30 days of confine-
ment, but otherwise approved the sentence as adjudged.
    Appellant raises two issues on appeal, both regarding the convening au-
thority’s decision to deny Appellant’s request to defer Appellant’s sentence.
Specifically, Appellant alleged that the convening authority erred in denying
Appellant’s request to: (1) defer his reduction in rank to E-1; and (2) waive
automatic forfeitures for the benefit of his spouse. The court sua sponte identi-
fied an error in the Staff Judge Advocate’s Recommendation (SJAR) and con-
sidered whether new post-trial processing was required. We find no prejudicial
error and affirm.

                                   I. BACKGROUND
    Appellant pleaded guilty to endangering the lives of two of his three chil-
dren when they were both under the age of four years. During his plea, Appel-
lant admitted both he and his spouse failed to provide sanitary living condi-
tions for the children. Friends and neighbors initially reported the conditions
to the Florida Department of Children and Families (Department). After sev-
eral inspections, the Department removed both children from Appellant’s
home. Appellant continued to care for his spouse who, for reasons that need
not be discussed in this opinion, was unable to obtain employment.
   Following the announcement of sentence, Appellant submitted a request to
the convening authority to defer the adjudged reduction in rank and waive the
automatic forfeitures, both of which would take effect 14 days after the an-
nouncement of sentence. 2 The convening authority denied both requests in a
written memorandum which included the following rationale for his decision:
          Your request is denied because the nature of the offenses for
          which you were convicted, the sentence adjudged, the interests
          of good order and discipline, and the interests of the community
          outweigh any interest in deferring the sentence imposed.




1All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2016
ed.).
2   See Articles 57, 57a and 58b, UCMJ, 10 U.S.C. §§ 857, 857a, 858b.


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                     United States v. Bell, No. ACM 39447


                                 II. DISCUSSION
A. Denial of Appellant’s Deferment Request
    Rule for Courts-Martial (R.C.M.) 1101(c)(3) provides that when petitioning
the convening authority to defer an adjudged reduction in grade, “[t]he [appel-
lant] shall have the burden of showing that the interests of the [appellant] and
the community in deferral outweigh the community’s interests in imposition of
the punishment on its effective date.” The rule outlines several factors which
the convening authority may consider in determining whether to grant the re-
quest, including the nature of the offenses, the sentence adjudged, and the ef-
fect of deferment on good order and discipline in the command. “When a con-
vening authority acts on an [appellant]’s request for deferment of all or part of
an adjudged sentence, the action must be in writing (with a copy provided to
the [appellant]) and must include the reasons upon which the action is based.”
United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds
by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); see also R.C.M.
1101(c)(3), Discussion (“If the request for deferment is denied, the basis for the
denial should be in writing and attached to the record of trial.”). We review a
convening authority’s denial of a deferment request for an abuse of discretion.
Sloan, 35 M.J. at 6 (citing R.C.M. 1101(c)(3)).
    The facts regarding this issue are not in dispute. Appellant sought a defer-
ment of his adjudged reduction in grade from the convening authority, the con-
vening authority denied the request and provided written notice of his denial
to Appellant. Appellant concedes that the convening authority complied with
the plain language of R.C.M. 1101(c)(3), but claims that the rationale was too
“generic” and therefore arbitrary. Specifically, Appellant argues that the “con-
vening authority’s denial was a generic denial letter using the ‘magic language’
required by court precedent and R.C.M. 1101(c)(3),” but nevertheless unrea-
sonable because it failed to articulate “why or how the stated factors warranted
denial of Appellant’s deferment.” We disagree.
    To begin with, R.C.M. 1101(c)(3) does not require the convening authority
to articulate “why or how” the stated factors warranted denial of a deferment
request. The convening authority was only required to identify the reasons for
the denial. We have often addressed a convening authority’s failure to provide
any reason for denying a deferment request, 3 but here, the convening authority
identified four: (1) the nature of the offenses for which Appellant was convicted;
(2) the sentence adjudged; (3) the interests of good order and discipline; and (4)
the interests of the community outweigh any interest in deferment. Though


3See, e.g., United States v. Jalos, No. ACM 39138, 2017 CCA LEXIS 607, at *5–6 (A.F.
Ct. Crim. App. 5 Sep. 2017) (unpub. op.).


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                    United States v. Bell, No. ACM 39447


Appellant does not agree with the convening authority’s reasoning, he has pro-
vided no evidence—and we find none—that the convening authority denied
Appellant’s request for an unlawful purpose.
    We are unpersuaded by Appellant’s argument that the factors cited by the
convening authority were unreasonable in Appellant’s case. Notably, Appel-
lant asserts that his spouse bore “significant responsibility” in the crimes Ap-
pellant committed. We find this reason alone sufficient to warrant the conven-
ing authority’s decision to deny Appellant’s requested deferment. The nature
of Appellant’s crimes was serious. By Appellant’s own admission, he and his
spouse consistently left spoiled food and milk as well as human and animal
waste within arms’ reach of their children. Appellant stipulated to the fact that
the unsanitary conditions led to various insect infestations and exposed the
children to a variety of harmful bacteria and diseases. The convening authority
did not abuse his discretion in denying Appellant’s requested deferment.
B. Denial of Appellant’s Waiver Request
   As previously discussed, the convening authority denied Appellant’s re-
quest to defer the adjudged reduction in grade and waive the automatic forfei-
tures in a single memorandum given to Appellant. Appellant claims the con-
vening authority erred by mistakenly applying the law governing deferment
requests to Appellant’s waiver request. We disagree.
    Appellant correctly points out that waiver requests are governed by a sep-
arate rule than the rule governing deferment requests. R.C.M. 1101(d)(1) pro-
vides that “[w]ith respect to forfeiture of pay and allowances resulting only by
operation of law and not adjudged by the court, the convening authority may
waive, for a period not to exceed six months, all or part of the forfeitures for
the purpose of providing support to the accused’s dependent(s).” R.C.M.
1101(d)(2) provides its own non-exhaustive set of factors to be considered
“when determining the amount of forfeitures, if any, to be waived.” These in-
clude, inter alia, the length of Appellant’s confinement and the ability of Ap-
pellant’s family members to find employment.
    For purposes of this appeal, the most significant difference between the
rule governing deferment requests and the rule governing waiver requests is
that the convening authority is not required to provide any reason for his de-
nial of a waiver request. See United States v. Gentry, No. ACM S31361, 2008
CCA LEXIS 454, at *8–9 (A.F. Ct. Crim. App. 30 Oct. 2008). In Gentry, we
found no error in the convening authority’s failure to include a reason for deny-
ing the appellant’s waiver request. Here, the convening authority identified
several reasons for denying Appellant’s waiver request, but failed to identify
any of the factors contained in the rule governing waiver requests. Though not
textbook, the convening authority did not err in using the same reasons to deny


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                    United States v. Bell, No. ACM 39447


Appellant’s waiver request that he used to deny Appellant’s deferment request.
In addition to the fact the convening authority was not required to provide any
reason for his denial, we note the factors contained in R.C.M. 1101(d)(2) are
non-exhaustive. We find the reasons justifying the convening authority’s deci-
sion to deny Appellant’s deferment request are equally appropriate to Appel-
lant’s waiver request, even when taking into account Appellant’s spouse’s ina-
bility to find work. In the absence of any credible evidence that the convening
authority’s decision was based on an unlawful reason, we decline to grant the
requested relief. See United States v. Zimmer, 56 M.J. 869, 874 (A. Ct. Crim.
App. 2002).
C. Erroneous Advice to the Convening Authority
   Finally, we address whether new post-trial processing is warranted due to
an error we identified in the SJAR.
   1. Additional Facts
    Appellant was convicted, inter alia, of one specification of child endanger-
ment on divers occasions between on or about 18 October 2013 and on or about
7 July 2016. During that same period, Congress changed the law governing
what relief a convening authority could grant an appellant in clemency. See
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66,
§ 1702, 127 Stat. 954–58 (2013) (codified at 10 U.S.C. § 860(c)(4)(A)). For cases
before 24 June 2014, convening authorities had unfettered discretion to grant
clemency, including setting aside a finding of guilt. For cases on or after 24
June 2014, convening authority discretion was limited to a prescribed set of
circumstances. Because the specification for which Appellant was convicted in-
cluded dates both before and after 24 June 2014, Appellant was entitled to the
convening authority’s unfettered discretion in clemency. See National Defense
Authorization Act for Fiscal Year 2015, Pub. L. No. 113–291, § 531(g)(2)(A),
128 Stat. 3292, 3365–66 (2014).
    Despite the fact that one of the specifications was dated before 24 June
2014, the SJAR advised the convening authority, “you only have the authority
to approve the finding of guilt and cannot dismiss the finding of guilt” and “you
do not have the authority to disapprove, commute, or suspend in whole or in
part the punitive discharge.” Neither Appellant’s clemency matters nor the ad-
dendum to the SJAR made any reference to the erroneous advice. In accord-
ance with Appellant’s pretrial agreement, the convening authority approved
only 30 days of confinement and otherwise approved the sentence as adjudged.
    Upon identifying the error, we ordered the Government to show cause as
to why this court should not order new post-trial processing. In response to our
order, the Government successfully moved to attach two affidavits to the record
of trial. The first affidavit was from the Staff Judge Advocate. In it, she


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                    United States v. Bell, No. ACM 39447


acknowledged the error but stated that even with the knowledge that the con-
vening authority had full discretion to grant clemency, her recommendation
would not have changed. The second affidavit was from the convening author-
ity. He similarly stated that even with the knowledge he had “the authority to
dismiss the findings of guilt and/or disapprove, commute, in whole or in part,
the punitive discharge” his decision would not have changed. He added: “I dis-
approved three months of confinement in accordance with the pretrial agree-
ment.”
   2. Law and Analysis
    The “[p]roper 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) (en banc) (citing United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004)). Failure to comment in a timely manner on
matters in the SJAR or matters attached to the SJAR waives or forfeits any
later claim of error unless there was plain error. R.C.M. 1106(f)(6); United
States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). In 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.” Kho, 54 M.J. at 65 (citations
omitted). “There must be a colorable showing of possible prejudice in terms of
how the omission potentially affected an appellant’s opportunity for clemency.”
United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005).
    The Government concedes the plain and obvious error in the SJAR so our
analysis focuses solely on whether Appellant suffered prejudice. In conducting
our analysis, we find it notable that the court raised this issue sua sponte. At
no point during Appellant’s post-trial processing or appeal has he identified
the erroneous advice, let alone any prejudice resulting from the erroneous ad-
vice to the convening authority. Instead, what we do have are affidavits from
the Staff Judge Advocate and the convening authority, respectively, stating
their recommendation and decision “would not have changed” even with the
knowledge the convening authority had unfettered discretion to grant clem-
ency.
    Though we are generally skeptical of post hoc affidavits created with the
end in mind, we are persuaded by the particular circumstances of this case
that the convening authority would not have granted additional relief. Appel-
lant was adjudged four months confinement, but received only 30 days in ac-
cordance with the pretrial agreement. The reasons why Appellant claimed he
deserved clemency had been well established throughout the course of the in-
vestigation and were presumably considered by the convening authority in
reaching a pretrial agreement. The convening authority’s statement that he
had already “disapproved three months of confinement” and “would not have
altered the findings or the remainder of the sentence” was bolstered by the fact

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                      United States v. Bell, No. ACM 39447


that he denied Appellant’s modest clemency request to disapprove the ad-
judged reduction in grade. Under the particular facts of this case, we find that
Appellant has failed to make a colorable showing of possible prejudice from the
error.

                                 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. 4


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




4We note that the Court-Martial Order (CMO) dated 30 March 2018 failed to specify
that Specification 3 of the Charge and the Additional Charge and its Specification were
dismissed with prejudice. We order the promulgation of a corrected CMO.


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