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

                              No. ACM S32553
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Donovan L. JACKSON
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 29 August 2019
                          ________________________

Military Judge: W. Shane Cohen.
Approved sentence: Bad-conduct discharge, confinement for 40 days, re-
duction to E-1, and a reprimand. Sentence adjudged 24 September 2018
by SpCM convened at Shaw Air Force Base, South Carolina.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Major Anne M. Delmare, USAF; Mary Ellen Payne, Es-
quire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________


PER CURIAM:
    Appellant was convicted, in accordance with his pleas and pursuant to a
pretrial agreement (PTA), of two specifications of assault consummated by a
battery of Airman First Class (A1C) TH, by unlawfully touching her buttocks,
in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                   United States v. Jackson, No. ACM S32553


§ 928.1 A military judge sitting alone sentenced Appellant to a bad-conduct
discharge, confinement for 40 days, reduction to the grade of E-1, and a repri-
mand. The PTA did not affect the sentence adjudged as it contained no sen-
tence cap provisions. The convening authority approved the sentence as ad-
judged.

                                 I. BACKGROUND
    This case was submitted for our review on its merits without assignment
of error. Upon our review, we noted two issues that warrant discussion: (1)
whether the staff judge advocate’s recommendation (SJAR) misstated the max-
imum punishment in a special court-martial; and (2) whether the addendum
to the SJAR contained new matter that was not properly served upon Appel-
lant and his counsel. We briefly address each issue.

                                 II. DISCUSSION
A. Law
   Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted).
    “Failure to timely comment on matters in the SJAR, or matters attached to
the recommendation, forfeits any later claim of error in the absence of plain
error.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App. 2015)
(en banc) (citing Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analy-
sis, an appellant must show “(1) there was an error; (2) [the error] was plain or
obvious; and (3) the error materially prejudiced a substantial right.” Id. (quot-
ing Scalo, 60 M.J. at 436). The threshold for establishing prejudice from errors
impacting an appellant’s request for clemency from the convening authority is
low, even in the context of plain error analysis, but there must be “some ‘color-
able showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at 437).
B. Maximum Punishment
  The staff judge advocate (SJA) advised the convening authority that the
maximum punishment in Appellant’s case was “a bad conduct discharge, 12
months confinement, 3 months of hard labor without confinement, reduction




1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are found in the Manual for Courts-Martial, United States (2016 ed.)
(MCM).


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                   United States v. Jackson, No. ACM S32553


to E-1, forfeiture of 2/3 pay and allowances for 12 months and a fine” (emphasis
added). We discuss two errors in this statement.
   First, “[a] special court-martial may not order forfeiture of allowances.”
United States v. Lavoie, No. ACM S31453 (recon), 2009 CCA LEXIS 16, at *5
(A.F. Ct. Crim. App. 21 Jan. 2009) (unpub. op.); see also Article 19, UCMJ, 10
U.S.C. § 819. Second, Appellant “could not have been sentenced to a fine in
addition to forfeiture of two-thirds pay per month2 for 12 months.” United
States v. Books, No. ACM S32369, 2017 CCA LEXIS 226, at *7 (A.F. Ct. Crim.
App. 31 Mar. 2017) (unpub. op.).
    The Defense’s clemency submission failed to address these two errors.
Therefore, we test for plain error. We find both errors obvious based on the law
cited above. We also note the military judge correctly announced the maximum
punishment prior to accepting Appellant’s plea of guilty, and counsel for both
sides concurred in the military judge’s announcement.
    Despite the obvious errors, as Appellant raised no error for our considera-
tion, he has not attempted to make a colorable showing of possible prejudice.
We note the adjudged sentence did not include forfeitures or a fine and Appel-
lant requested no financial relief from his adjudged sentence in his clemency
submission. Under these circumstances, we find no colorable showing of possi-
ble prejudice from the misstatements in the maximum punishment in a special
court-martial. See Scalo, 60 M.J. at 437.
C. Victim Submission at Clemency
    1. Additional Background
   On the day of trial, the trial counsel signed a memorandum advising A1C
TH of her right to submit matters to the convening authority as a crime victim.
See R.C.M. 1105A. We list the important post-trial processing dates below:
       22 October 2018:      SJAR signed.
       24 October 2018:      Appellant served SJAR. A1C TH served record of
                              trial.
       29 October 2018:      A1C TH signs a letter to the convening authority.
       31 October 2018:      Defense counsel served with SJAR, record of
                              trial. Appellant and defense counsel separately
                              served A1C TH’s letter.
       9 November 2018:      Clemency submitted.


2In this case, the SJAR also omitted the words “per month.” This omission warrants
no further discussion given the other errors in the SJAR. We do note that Article 19,
UCMJ, does not allow a special court-martial to adjudge “forfeiture of pay exceeding
two-thirds pay per month or forfeiture of pay for more than one year.”


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                      United States v. Jackson, No. ACM S32553


          16 November 2018: Addendum signed by SJA. A1C TH’s letter is
                             attached.
          21 November 2018: Action.
      2. Additional Law and Analysis
    “Whether matters contained in an addendum to the SJAR constitute ‘new
matter’ that must be served upon an accused is a question of law that is re-
viewed de novo.” United States v. Scott, 66 M.J. 1, 3 (C.A.A.F. 2008). R.C.M.
1106(f)(7) does not define “new matter” and the United States Court of Appeals
for the Armed Forces (CAAF) has not suggested a comprehensive definition.
United States v. Buller, 46 M.J. 467, 468 (C.A.A.F. 1997). However, the CAAF
cited with approval a portion of the “non-binding” discussion accompanying
R.C.M. 1106(f)(7) which lists a “number of illustrations of new matter” includ-
ing “the effect of new decisions on issues in the case, matter from outside the
record of trial, and issues not previously discussed.” Buller, 46 M.J. at 468 (in-
ternal quotations and citations omitted). Therefore, we apply the portion of
R.C.M. 1106(f)(7)’s Discussion cited with approval by the CAAF to interpret
what is “new matter.” Other portions of R.C.M. 1106(f)(7)’s Discussion that
have not been cited with approval by the CAAF or adopted by our court and
which appear to have no basis in other established legal authority must be
closely examined.
    A1C TH’s statement to the convening authority was not available until af-
ter the SJAR was signed. It contained a “matter from outside the record of
trial,” specifically her reactions to the court-martial and the sentence imposed.
Her statement to the convening authority went beyond her statement at trial
made under R.C.M. 1001A. Accordingly, we find the general rule applicable
that an accused “must be served with the new matter and given 10 days from
service of the addendum in which to submit comments.” R.C.M. 1106(f)(7).
    We closely examine one sentence in the Discussion to R.C.M. 1106(f)(7),
New matter in addendum to recommendation. The sentence reads: “[i]f a victim
statement, submitted under R.C.M. 1105A, is served on the accused prior to
the service of the recommendation, then that statement shall not be considered
a ‘new matter’ when it is again served on the accused as enclosure to the rec-
ommendation.” R.C.M. 1106(f)(7), Discussion. One interpretation of this non-
binding discussion, applied to Appellant’s case, could lead to the conclusion
that A1C TH’s letter was not a “new matter.” We express our concerns with
this portion of the Discussion below.
  First, the word “shall” in the Discussion causes us concern. We question
whether such a directive term belongs in a non-binding discussion at all.3 More


3   The Discussion to the R.C.M.’s “do not constitute rules.” MCM, pt. I, ¶ 4, Discussion.


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                  United States v. Jackson, No. ACM S32553


substantively, the word “shall” appears to limit what may actually be “new
matter” when an R.C.M. 1105A victim statement includes “the effect of new
decisions on issues in the case, matter from outside the record of trial, [or] is-
sues not previously discussed.” See Buller, 46 M.J. at 468 (internal quotations
and citation omitted). We reject the proposition that certain R.C.M. 1105A
statements do not qualify as “new matter” because the Appellant and his de-
fense counsel were served them outside of the SJAR and addendum process.
Matters from an Article 32 preliminary hearing and an SJA’s pretrial advice
in a general court-martial are not exempt from being “new matter” during
clemency simply because the Defense was served the documents earlier in the
court-martial process. See United States v. Chatman, 46 M.J. 321, 322–23
(C.A.A.F. 1997). A better approach, for victim clemency submissions, in the
cases that remain under this version of R.C.M. 1106(f)(7), would be for legal
offices to treat “shall” in the Discussion as “may” and evaluate each R.C.M.
1105A submission on a case-by-case basis.
    In this case, A1C TH’s R.C.M. 1105A statement was due 10 days after she
received the record of trial. See R.C.M. 1105A(d)(1)(A). When the SJA received
A1C TH’s letter, the SJA should have drafted an addendum to the SJAR, at-
tached A1C TH’s letter, and explicitly given Appellant and his defense counsel
an additional 10 days to submit matters. Instead, the legal office chose to serve
A1C TH’s letter on Appellant and his defense counsel outside of the SJAR ad-
dendum process. It is possible the legal office was led astray by R.C.M.
1106(f)(7)’s non-binding discussion but other explanations are certainly possi-
ble as well. Regardless of the source of the error, under these circumstances,
we will assume arguendo that obvious error existed when the 16 November
2018 addendum to the SJAR, with A1C TH’s letter attached, was never served
on Appellant and his defense counsel. See R.C.M. 1106(f)(7).
    By assuming error, we do not find the 31 October 2018 service of A1C TH’s
letter on Appellant and his defense counsel to be irrelevant. While unimportant
to our analysis of what constituted “new matter,” we do find the service of A1C
TH’s letter important to our determination of whether a colorable showing of
possible prejudice exists. Here, the Defense’s 10-day window to submit clem-
ency matters began on 31 October 2018, when Appellant’s defense counsel re-
ceived the record of trial and the SJAR. See R.C.M. 1106(f)(5). This same day,
both Appellant and his defense counsel received A1C TH’s letter. Clemency
was due 10 November 2018. In practical terms, the Defense received a full 10
days, after receiving A1C TH’s letter, to address it in clemency. The Defense
chose not to address A1C TH’s letter at all. Additionally, they signed clemency
letters on 9 November 2018, one day earlier than required. The CAAF de-
scribed the essence of R.C.M. 1106(f)(7) as requiring “fair play.” Buller, 46 M.J.
at 469. On the whole, we observe a fair clemency process in practice, despite
technical noncompliance with R.C.M. 1106(f)(7).

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                 United States v. Jackson, No. ACM S32553


    As noted above, Appellant has not attempted to make a colorable showing
of possible prejudice as he submitted his case to us on its merits. We find no
prejudice for the technical noncompliance with R.C.M. 1106(f)(7). See Scalo, 60
M.J. at 437. Appellant and his counsel only asked the convening authority to
disapprove the bad-conduct discharge. Defense counsel acknowledged the con-
vening authority may not “be able to act on this request” but asked for disap-
proval of the bad-conduct discharge “should it become possible, or if a higher
authority has the ability.” Simply put, the convening authority had no power
to disapprove the bad-conduct discharge and grant Appellant the clemency he
requested. See Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A). Therefore,
we find no colorable showing of possible prejudice by the assumed error of fail-
ing to serve new matter on Appellant and his defense counsel. See Scalo, 60
M.J. at 437.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the approved findings and sentence are AFFIRMED.


                    FOR THE COURT



                    AARON L. JONES
                    Deputy Clerk of the Court




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