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

                              No. ACM S32573
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                       Matthew G. HEETER
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 12 August 2020
                          ________________________

Military Judge: Jason M. Kellhofer.
Approved sentence: Bad-conduct discharge and reduction to E-1. Sen-
tence adjudged 12 December 2018 by SpCM convened at Shaw Air Force
Base, South Carolina.
For Appellant: Major Yolanda D. Miller, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Jessica
L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, KEY, and RAMÍREZ, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY joined.
                          ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                            ________________________
RAMÍREZ, Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to his pleas, of one charge and one specification of
                    United States v. Heeter, No. ACM S32573


wrongfully using cocaine in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a. 1
   The military judge sentenced Appellant to a bad-conduct discharge and re-
duction to the grade of E-1. The convening authority approved the sentence.
    On appeal, Appellant raises two assignments of error (AOEs): (1) whether
civilian trial defense counsel (JP) was ineffective when he (a) advised Appel-
lant that he had ten days from the date JP received the staff judge advocate’s
recommendation (SJAR) to submit his clemency matters, and (b) requested
that the convening authority set aside Appellant’s bad-conduct discharge,
which was beyond the convening authority’s power; and (2) whether new post-
trial processing is required because (a) the convening authority denied Appel-
lant the required ten days from the date he received the SJAR to submit clem-
ency matters, and (b) the staff judge advocate (SJA) did not address JP’s re-
quest in the addendum to the SJAR. 2 Because we find in favor of Appellant as
to the second AOE, his first issue is moot and is not addressed in this opinion. 3

                                  I. BACKGROUND
    On 22 May 2018, Appellant, a technical sergeant who had been in the Air
Force for over 15 years, contacted a friend to buy either $40.00 or $60.00 worth
of cocaine. They met at a parking lot in Fort Worth, Texas, where Appellant
exchanged money for the drugs. Appellant then went home, rolled up some
paper, and snorted the entirety of the cocaine he had purchased. The next day,
Appellant was selected for urinalysis inspection testing. That urine sample
tested positive for the cocaine metabolite at 143,198 nanograms per milliliter—

1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2 The court notes a separate error in the SJAR. The SJAR states that the maximum
imposable sentence includes 12 months confinement, two-thirds forfeitures of pay per
month for 12 months, reduction to E-1, three months’ hard labor without confinement,
two months’ restriction, a fine, a reprimand, and a bad-conduct discharge. However, at
a special court-martial, Appellant could not have been sentenced to 12 months confine-
ment and either hard labor and/or restriction; nor could he be sentenced to two-thirds
forfeitures of pay per month for 12 months and a fine. See R.C.M. 1003(b)(3), (5), (6);
United States v. Caldwell, No. ACM S32561, 2019 CCA LEXIS 485, at *6-8 (A.F. Ct.
Crim. App. 10 Dec. 2019) (unpub. op.), rev. denied, No. 20-0115, 2020 CAAF LEXIS
151 (C.A.A.F. 19 Mar. 2020). However, because we find in favor of Appellant with re-
gard to the second AOE, the error is moot and we need not address prejudice.
3 See United States v. Datavs, 71 M.J. 420, 426 (C.A.A.F. 2012) (addressing mootness
in the context of ineffective assistance of counsel claims); United States v. Ferris, 72
M.J. 817, 820 (A.F. Ct. Crim. App. 2013) (holding that an issue is moot when an action
of this court would not materially alter the presented issue for either party).


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                  United States v. Heeter, No. ACM S32573


approximately 1,400 times the Department of Defense cutoff for the confirma-
tory test. At trial, Appellant pleaded guilty to wrongfully using cocaine in vio-
lation of Article 112a, UCMJ. His court-martial convened and adjourned on 12
December 2018.
    Immediately following the court-martial on 12 December 2018, Appellant
was notified of his right to submit matters for the convening authority’s con-
sideration before the convening authority took action in his case. Appellant
was advised, inter alia, that he would have ten days to submit matters from
the date he either received a copy of the authenticated record of trial (ROT) or
both he and his trial defense counsel received a copy of the SJAR, whichever
was later. On 25 January 2019, as part of the Appellant’s post-trial clemency
process, the SJA signed the SJAR that advised the convening authority that
he did “not have the authority to disapprove, commute, or suspend in whole or
in part, the bad conduct discharge.”
    On 29 January 2019, detailed military trial defense counsel signed receipts
for copies of the SJAR and the ROT. These documents were also served on JP
on 5 February 2019. The legal office subsequently informed JP that the dead-
line for submission of clemency matters was 15 February 2019, ten days after
JP received both the ROT and SJAR. However, Appellant had not yet been
served with either the ROT or SJAR.
   On 6 February 2019, JP submitted a request for a 20-day extension. On 7
February 2019, the convening authority denied the request in part but granted
an extension to 19 February 2019. Appellant still had not been served with the
ROT or SJAR when the extension was granted.
    On appeal, Appellant submitted a declaration detailing his interactions
with JP in preparing and submitting his clemency matters. Specifically, Ap-
pellant explained that on 7 February 2019, JP emailed Appellant informing
him he had ten days to submit clemency matters. Appellant replied that he
had not yet been served. On 8 February 2019, JP informed Appellant of the 19
February 2019 deadline to submit clemency matters.
    On 13 February 2019, Appellant received his copy of the SJAR and ROT
and asked JP whether they could ask for another extension. JP affirmed that
he would request another extension. On 15 February 2019, Appellant sent JP
a draft of Appellant’s clemency request and informed JP that he was still trying
to gather additional character letters. Additionally, Appellant asked JP
whether the convening authority only had the authority to give him his rank
back. On 15 February 2019, JP prepared his portion of the clemency where he
disagreed with the SJAR, arguing in support of disapproving the bad-conduct
discharge. Appellant had sent his clemency request to JP, which also included
a request to the convening authority to disapprove the bad-conduct discharge


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                   United States v. Heeter, No. ACM S32573


so that he could continue serving in the Air Force, or in the alternative, to
“upgrade” the punitive discharge.
    On 19 February 2019, Appellant asked JP if they received an extension and
informed JP that he was still trying to gather character letters in support of
his clemency submission. JP replied in the negative, confirming that clemency
was due that day. The request for clemency included a letter from JP, a letter
from Appellant, and seven character letters.
    On 25 February 2019, the SJA issued an addendum to the SJAR, in which
he did not correct JP’s erroneous request for the convening authority to set
aside the bad-conduct discharge and only remarked that the earlier recommen-
dation remained unchanged. On the same day, the convening authority took
action in the case and denied Appellant’s request.

                                II. DISCUSSION
A. Law
    Whether proper completion of post-trial processing has been accomplished
is reviewed de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing
United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)).
    After a general or special court-martial, the appellant may submit clem-
ency matters within the later of ten days of receiving either the authenticated
ROT or the SJAR. Rule for Courts-Martial (R.C.M.) 1105(c)(1). The appellant
may request an extension of the time period for which to file the clemency, and
it may be granted for up to 20 additional days on top of the original ten-day
period. Id.
    The convening authority may not reduce, commute, or suspend a dishonor-
able discharge or bad-conduct discharge. Article 60(c)(4)(A), UCMJ, 10 U.S.C.
§ 860(c)(4)(A); R.C.M. 1107(d)(1)(B)(ii).
    Failure of counsel for an appellant to comment in a timely manner on mat-
ters in the SJAR or matters attached to the SJAR waives, in the absence of
plain error, any later claim of error. R.C.M. 1106(f)(6); see United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). When 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.” Scalo, 60 M.J. at 436 (quoting
Kho, 54 M.J. at 65). An appellant must make “some colorable showing of pos-
sible prejudice” to meet this burden in the context of a post-trial recommenda-
tion error. Id. at 436–37 (quoting Kho, 54 M.J. at 65). In terms of how the error
potentially affected an appellant’s opportunity for clemency, the threshold is
low, but there must be some colorable showing of possible prejudice. Id. at 437.
“The low threshold for material prejudice with respect to an erroneous post-


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                  United States v. Heeter, No. ACM S32573


trial recommendation . . . 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 (citation omitted).
B. Analysis
    In this case, Appellant claims new post-trial processing is required because
(1) the convening authority denied Appellant the required ten days from the
date Appellant received the SJAR to submit clemency matters, and (2) the SJA
did not correct JP’s erroneous request to set aside the bad-conduct discharge
in the addendum to the SJAR. We agree as to the first basis, and therefore find
it unnecessary to reach the second basis.
    As an initial matter, we considered Appellant’s declaration to resolve the
raised issues. See United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020)
(Courts of Criminal Appeals may consider affidavits when doing so is necessary
for resolving issues raised by materials in the record).
     Appellant received the SJAR and ROT on 13 February 2019 and should
have been given until at least 23 February 2019 to submit clemency matters.
Even considering the partial extension granted by the convening authority, the
Government allowed Appellant until only 19 February 2019 to file clemency.
It is clear that Appellant was not afforded the proper time required by R.C.M.
1105(c)(1).
   The Government’s position that the convening authority did not take action
until after the ten days expired does not nullify the fact that Appellant was
denied his ten-day right to gather and submit clemency matters.
    Appellant has demonstrated a colorable showing of possible prejudice be-
cause, as he explained, he was still working on his submission and trying to
gather additional character letters. Further, Appellant explains that, had he
been afforded his legally protected time, he would have discussed his submis-
sion in more detail with his attorney and used his clemency request more ef-
fectively in an attempt to obtain financial help for his family. Accordingly, we
find that in the specific circumstances of this case Appellant has met the low
threshold for material prejudice. See Scalo, 60 M.J. at 437.

                                III. CONCLUSION
    The action of the convening authority is SET ASIDE. The record of trial is
returned to the Judge Advocate General for remand to the convening authority
for new post-trial processing and conflict-free trial defense counsel consistent
with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e).




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                  United States v. Heeter, No. ACM S32573


    Thereafter, the record of trial will be returned to this court for completion
of appellate review under Article 66, UCMJ, 10 U.S.C. § 866.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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