          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Senior Airman JOSE H. GALLEGOS
                                     United States Air Force

                                               ACM 38738

                                             31 March 2016

         Sentence adjudged 5 September 2014 by GCM convened at Ellsworth Air
         Force Base, South Dakota. Military Judge: Lyndell M. Powell.

         Approved Sentence: Bad-conduct discharge, confinement for 14 days, and
         reduction to E-2.

         Appellate Counsel for Appellant: Major Jeffrey A. Davis.

         Appellate Counsel for the United States:                Lieutenant Colonel Roberto
         Ramirez and Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, DUBRISKE, and BROWN
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



DUBRISKE, Judge:

       Contrary to his plea at a general court-martial, Appellant was convicted by a panel
of officer and enlisted members of one specification of abusive sexual contact in
violation of Article 120, UCMJ, 10 U.S.C. § 920. Appellant was acquitted of a second
specification of abusive sexual contact, along with two specifications of sexual assault by
causing bodily harm. All of the specifications alleged against Appellant related to his
actions with a civilian friend one evening in his dormitory room.
       Appellant was sentenced to a bad-conduct discharge, 14 days of confinement, and
reduction to E-2. The convening authority approved the sentence as adjudged.

       On appeal, Appellant alleges three assignments of error, one of which argues the
evidence is legally and factually insufficient to support his conviction. Appellant claims
the findings adjudged by the court members were “illogical” as they acquitted him of
other sexual acts occurring the same evening. Appellant specifically notes that the sexual
contact resulting in his only conviction occurred almost simultaneously with the conduct
in which the court members returned a not guilty verdict.

       On 17 February 2016, this court specified an issue related to an erroneous
statement in the staff judge advocate’s recommendation (SJAR). The Government, in
conjunction with its brief, requested this court consider an affidavit from the deputy staff
judge advocate (DSJA) to the general court-martial convening authority (GCMCA). We
now grant the Government’s request to attach this affidavit to the record of proceedings.

      After reviewing briefs from both parties on the specified issue and considering the
Government’s affidavit, we find plain error and order new post-trial processing.

                         Staff Judge Advocate’s Recommendation

       Proper completion of post-trial processing is a question of law, which we review
de novo. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Failure to timely
comment on matters in the SJAR, to include matters attached to it, waives the issue
unless there is plain error. Rule for Courts-Martial 1106(f)(6); United States v. Scalo, 60
M.J. 435, 436 (C.A.A.F. 2005). Under a plain error analysis, the appellant bears the
burden of showing: (1) there was an error, (2) it was plain or obvious, and (3) the error
materially prejudiced a substantial right of the appellant. Kho, 54 M.J. at 65. Although
the threshold for establishing prejudice in this context is low, the appellant must
nonetheless make at least “some colorable showing of possible prejudice.” Scalo, 60 at
436–37.

        After authentication of the record of trial, the GCMCA staff judge advocate (SJA)
prepared his recommendation, noting the primary evidence against Appellant in this
litigated case consisted, in part, of “the accused’s interviews with law enforcement.” The
Government concedes this statement is erroneous as no such evidence was offered at
trial, but argues Appellant suffered no material prejudice. In so claiming, the
Government cites to the affidavit of the DSJA, who opined that accurate information
about the evidence supporting Appellant’s sole conviction would not have changed the
SJA’s recommendation to the convening authority.

      The Government’s argument misses the mark. The SJAR is written for the benefit
of the convening authority, so the pertinent question is whether the error had any


                                             2                                    ACM 38738
potential impact on the clemency decision by the GCMCA––a decision Appellant
correctly notes was rendered the same day that his fairly substantial clemency package
was forwarded by the SJA.

        Based on our review of the record of trial, we believe Appellant has made the
“low” showing of possible prejudice needed to gain a new round of post-trial processing.
Id. at 437. We are cognizant, in making this determination, that the convening authority
remains an appellant’s best opportunity for post-trial relief. See United States v. Wheelus,
49 M.J. 283, 287 (C.A.A.F. 1998). In this case, Appellant submitted a substantial
clemency package, referencing portions of the record of trial to attack his conviction and
sentence. The SJA’s incorrect inference that the conviction was somehow supported by
Appellant’s own statements to investigators provided a strong rebuttal to Appellant’s
position. As we presume in this case that the GCMCA conscientiously reviewed all
matters required by Article 60, UCMJ, 10 U.S.C. § 860, including the SJAR, we cannot
say the SJA’s erroneous statement about the nature of the evidence admitted against
Appellant was harmless to his cause during clemency.

                                        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 consistent with this opinion. A new SJAR will be issued, and Appellant will
be afforded an opportunity to respond prior to action by the convening authority. See
United States v. Mendoza, 67 M.J. 53, 54–55 (C.A.A.F. 2008) (noting that when a court
of criminal appeals sets aside the convening authority’s action, a new SJAR and
opportunity to respond are required). Thereafter, Article 66, UCMJ, 10 U.S.C. § 866,
shall apply.




              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




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