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

                               No. ACM S32482
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                       Rebecca A. MCKINNEY
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 29 October 2018
                          ________________________

Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
and reduction to E-1. Sentence adjudged 11 July 2017 by SpCM con-
vened at MacDill Air Force Base, Florida.
For Appellant: Captain Dustin J. Weisman, 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    This is an unpublished opinion and, as such, does not serve as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 her pleas and pursuant to a
pretrial agreement (PTA), of one specification of wrongful use of marijuana on
divers occasions, one specification of wrongful use of cocaine, one specification
                 United States v. McKinney, No. ACM S32482


of wrongful use of lysergic acid diethylamide (LSD), one specification of wrong-
ful distribution of marijuana, one specification of wrongful introduction of ma-
rijuana, and one specification of wrongful possession of alcohol while under the
age of 21 in violation of Articles 112a and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 912a, 934. A military judge sitting alone sentenced Ap-
pellant to a bad-conduct discharge, confinement for six months, and reduction
to the grade of E-1. Pursuant to the PTA, the convening authority approved
only three months of confinement but otherwise approved the sentence as ad-
judged.
    Appellant raises two issues on appeal, both regarding events that occurred
after her court-martial: (1) whether the staff judge advocate’s recommendation
(SJAR) and its addendum failed to provide accurate and proper advice regard-
ing Appellant’s character of military service; and (2) whether the withholding
of Appellant’s pay, allowances, and accrued leave warrant sentence relief un-
der Article 66(c), UCMJ, 10 U.S.C. § 866(c). We find no prejudicial error and
affirm.

                               I. BACKGROUND
    Appellant began her career in the Air Force as an honor graduate from
basic military training in the summer of 2015. Her career success was short-
lived. By the spring of 2016, Appellant had arrived at MacDill Air Force Base
near Tampa, Florida. She soon befriended another Airman whose familiarity
with both the area and how to access illicit drugs provided an opportunity for
Appellant, along with a group of other Airmen, to regularly abuse drugs. By
the summer of 2017, Appellant found herself pleading guilty to the wrongful
use, possession, introduction, and distribution of drugs.

                                II. DISCUSSION
A. Advice to the Convening Authority
    Appellant alleges that the failure of the acting Staff Judge Advocate (SJA)
to comment in the addendum to the SJAR on her “claim of legal error” regard-
ing the characterization of her service warrants relief. We disagree.
   1. Additional Facts
    As is customary in courts-martial, Appellant’s commander provided an in-
dorsement to Appellant’s charge sheet. In it, he characterized Appellant’s mil-
itary service as “below average.” The SJAR echoed the commander’s character-
ization of Appellant’s service as “below average” in advising the convening au-
thority on what action to take on Appellant’s case. Appellant responded to the
characterization in her clemency submission. She first pointed to the absence
of documentation in the record to support the characterization. Appellant then

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                United States v. McKinney, No. ACM S32482


asked the convening authority to instead consider the character letters she
submitted during the presentencing portion of her trial because those letters
were “from those who actually worked with AB McKinney and attest to her
good duty performance and her positive attitude.”
    The addendum to the SJAR did not expressly reference Appellant’s asser-
tion that the SJAR had mischaracterized her military service. Rather, the act-
ing SJA stated, “I have reviewed the attached clemency matters submitted by
the defense. I concur with the recommendation previously provided by your
SJA.”
   2. Law and Analysis
    “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) (en banc) (citing United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004)). To prevail in a post-trial processing claim, an
appellant must establish that there was error and that the error resulted in
prejudice. United States v. Blodgett, 20 M.J. 756, 758 (A.F.C.M.R. 1985). “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).
    Appellant takes issue with both the SJAR and its addendum. Appellant
first asserts that the SJAR mischaracterized Appellant’s character of service.
Because Appellant identified the purported mischaracterization in her clem-
ency submission, she claims to have asserted legal error which the addendum
failed to acknowledge. At the core of Appellant’s claim is one fundamental
question: does a disagreement regarding an appellant’s character of service
constitute legal error? We have twice answered this question in the negative
and do so again here. “A statement of disagreement as to how to describe Ap-
pellant’s service does not constitute a ‘legal error’ that would require a com-
ment from the SJA in the addendum to the SJAR.” United States v. Marsh, No.
ACM 38688, 2016 CCA LEXIS 244, at *24 (A.F. Ct. Crim. App. 19 Apr. 2016)
(unpub. op.) (citing United States v. Caminiti, No. ACM 34562, 2003 CCA
LEXIS 53, at *21–22 (A.F. Ct. Crim. App. 27 Feb. 2003) (unpub. op.). In
Caminiti, we held there was no legal error alleged where the SJAR described
the appellant’s prior service as “dishonorable” and the defense described the
characterization as “misleading” in its clemency submission. But see United
States v. Loving, No. ACM S30450, 2005 CCA LEXIS 137, at *3–4 (A.F. Ct.
Crim. App. 25 Apr. 2005) (unpub. op.) (holding that it was not prejudicial error
where the addendum failed to comment on the appellant’s objection to the
SJAR, and the SJAR’s service characterization was unexplained in the record
of trial).



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                 United States v. McKinney, No. ACM S32482


    Appellant makes no attempt to distinguish her case from Marsh and
Caminiti. Indeed, her brief is void of any reference to these cases. We see no
distinction. Here, Appellant merely disagreed with her commander’s charac-
terization of her military service and presented alternate matters for the con-
vening authority to consider. Even if the failure to comment on Appellant’s
assertion could be considered error, Appellant has failed to establish prejudice.
The absence of prejudice is particularly apparent where, as here, the record
demonstrates that the convening authority considered Appellant’s rebuttal to
the SJA’s characterization prior to taking action on Appellant’s case. We also
note that the personal data sheet attached to the SJAR specifically referenced
Appellant’s Air Force Basic Military Training Honor Graduate Ribbon and
other awards and decorations. Thus, Appellant has not demonstrated how the
omission affected her opportunity for clemency.
B. Relief under Article 66(c), UCMJ
    Appellant asserts that her sentence was unlawfully severe in two respects:
(1) she was subjected to forfeiture of all pay and allowances for several months
when her adjudged sentence only called for forfeiture of two-thirds pay per
month for three months; and (2) she was denied the value of her accrued leave.
   1. Additional Facts
    Both Appellant and her trial defense counsel submitted declarations to this
court regarding issues with Appellant’s pay arising after trial. Appellant as-
serts that she was entitled to $5,869.80, but only received $2,866.03. When
Appellant noticed the error in her pay, she informed her trial defense counsel
who then contacted the legal office. Trial defense counsel provides an informa-
tive summary of what she learned from the legal office:
       [T]he Finance Office at MacDill . . . improperly coded A1C
       McKinney’s status after the court-martial. It appeared that they
       entered [Appellant]’s sentence as if she had been convicted at a
       General Court-Martial, rather than a Special Court-Martial,
       therefore forfeiting all pay and allowances instead of just two-
       thirds of her pay [per month]. It also appeared that once she was
       released from confinement and returned to MacDill, they did not
       return her pay to E-1 pay and allowances. . . . The [legal office]
       informed me that everything was corrected but it would take
       time for that information to flow to the Defense Finance and Ac-
       counting Service (DFAS).
    Appellant outlined a series of “severe financial and personal consequences”
she suffered due to the lack of pay, including the inability to make payments
for her car insurance, phone, and credit card. As of 23 April 2018, Appellant
had not yet been paid what she claimed she was owed.


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                   United States v. McKinney, No. ACM S32482


      2. Law and Analysis
    We begin with the Government’s assertion that we lack jurisdiction to ad-
dress Appellant’s claims because they involve matters “collateral” to Appel-
lant’s sentence. With regard to Appellant’s claim that she was subjected to ex-
cessive forfeitures, we disagree with the Government’s assertion and find that
we have jurisdiction. See United States v. Promin, 54 M.J. 467, 468 (C.A.A.F.
2001) (citing United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1997)). Conversely,
we find that we lack jurisdiction to address Appellant’s claim that she was de-
nied the value of accrued leave. See United States v. Buford, 77 M.J. 562 (A.F.
Ct. Crim. App. 2017), rev. denied, 77 M.J. 332 (C.A.A.F. 2018) (mem.) (holding
that we lack jurisdiction over a pay dispute absent a nexus to the court-martial
sentence or evidence of punitive intent).
    Appellant does not specifically allege that she was subjected to cruel and
unusual punishment in violation of the Eighth Amendment * or Article 55,
UCMJ, 10 U.S.C. § 855. Rather, she claims that the imposition of excessive
forfeitures “rendered [her sentence] unlawfully severe.” Appellant asks this
court to exercise its power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to set
aside her bad-conduct discharge and issue an order directing that Appellant be
reimbursed for the pay, allowances, and leave that was withheld. But “[o]nly
in very rare circumstances do we anticipate granting sentence relief when
there is no violation of the Eighth Amendment or Article 55, UCMJ.” United
States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omit-
ted), rev. denied, 77 M.J. 277 (C.A.A.F. 2018); cf. United States v. Nerad, 69
M.J. 138, 145–47 (C.A.A.F. 2010) (holding that despite our significant discre-
tion in reviewing the appropriateness of a sentence, this court may not engage
in acts of clemency).
    Whether framed as cruel and unusual punishment or sentence severity,
claims of unlawful post-trial punishment require, at a minimum, a showing of
punitive intent. Buford, 77 M.J. at 566. Here, though Appellant has estab-
lished she was erroneously subjected to greater forfeitures than those war-
ranted by her sentence, she has failed to establish that the excessive forfeitures
were taken with the intent to punish. Appellant asserts only that the forfei-
tures rendered her sentence “unlawfully severe” and warrants relief under Ar-
ticle 66(c), UCMJ. We disagree. The record before us demonstrates that not
only was the error which caused the forfeitures to exceed their adjudged and
approved amount administrative in nature, the Government has taken appro-
priate steps to begin to correct it. Having given individualized consideration of




*   U.S. CONST. amend. VIII.


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                 United States v. McKinney, No. ACM S32482


Appellant on the basis of the nature and seriousness of the offenses, the char-
acter of Appellant, and the entirety of the record, we find her sentence appro-
priate and decline to grant the requested relief.

                               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 findings
and the sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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