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

                              No. ACM S32462
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Andrew J. BRANSON
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 30 August 2018
                          ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
reduction to E-1, and a reprimand. Sentence adjudged 9 December
2016 by SpCM convened at Sheppard Air Force Base, Texas.
For Appellant: Major Jarett Merk, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Major J.
Ronald Steelman III, USAF; Mary Ellen Payne, Esquire.
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior
Judge HARDING and Judge POSCH joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

HUYGEN, Judge:
    Appellant, pursuant to his pleas, was found guilty at a special court-
martial of one specification each of damaging a police car, being drunk and
disorderly, and assaulting a woman, in violation of Articles 109, 134, and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 909, 934, 928. Appel-
                 United States v. Branson, No. ACM S32462


lant pleaded not guilty but a panel of officer and enlisted members found him
guilty of one specification each of assaulting an Airman Basic, assaulting an
Airman First Class, and being derelict in the performance of his duties by
negligently failing to refrain from engaging in conduct that contributed to a
hostile work environment, in violation of Articles 128 and 92, UCMJ, 10
U.S.C. §§ 928, 892. The panel sentenced Appellant to a bad-conduct dis-
charge, confinement for three months, reduction to the grade of E-1, and a
reprimand. The convening authority approved the sentence as adjudged.
    Appellant raises on appeal four issues: (1) whether the charge of negligent
dereliction of duty is unconstitutionally vague; (2) whether the evidence is
factually and legally sufficient to support Appellant’s conviction for negligent
dereliction of duty; and (3)-(4) whether the evidence is factually and legally
sufficient to support Appellant’s conviction for assault consummated by a
battery of the Airman First Class and, separately, the Airman Basic. We also
reviewed the post-trial processing of Appellant’s court-martial. As a result of
that review, we order new post-trial processing and thus do not now address
the assignments of error.

                               I. BACKGROUND
   The errors in the post-trial processing of Appellant’s court-martial include
the following:
   • The Staff Judge Advocate’s Recommendation (SJAR) leaves out
   reduction to E-1 and “per month” after “two-thirds pay” from the max-
   imum imposable sentence. More significantly, it fails to advise the
   convening authority that he could disapprove, commute, or suspend,
   in whole or in part, the reprimand and reduction to E-1.
   • The Report of Result of Trial (RRT) attached to the SJAR omits
   “knew or” before “should have known” from the specification of Second
   Additional Charge II. The mistake is repeated in the court-martial or-
   der.
   • The Personal Data Sheet (PDS) attached to the SJAR is not the
   PDS amended during trial and admitted as Prosecution Exhibit 2. The
   PDS attached to the SJAR has a later TAFMSD (Total Active Federal
   Military Service Date) and omits Appellant’s Prior Service, Overseas
   Service (OCONUS), and at least seven awards, decorations, or devices.
   • The trial defense counsel’s post-trial submission asks the conven-
   ing authority to “consider reducing [Appellant’s] Bad Conduct Dis-
   charge to an administrative characterization,” which the convening
   authority could not do in Appellant’s case. Later in the memorandum,
   the defense counsel acknowledges the “restraints” of R.C.M.

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                  United States v. Branson, No. ACM S32462


   1107(d)(1)(B) on the convening authority’s power to affect the bad-
   conduct discharge and then requests “disapproval of the adjudged re-
   duction in rank or of the automatic forfeitures.” Automatic forfeiture
   of pay during confinement pursuant to Article 58b, UCMJ, 10 U.S.C. §
   858b, cannot be “disapproved.” Appellant himself asks for “some relief”
   but “only” consideration of “upgrading my discharge from a Bad Con-
   duct Discharge.”
   • The addendum to the SJAR makes no mention of the mistakes in
   the SJAR, SJAR attachments, or Appellant’s clemency submission.
   • There is no documentation in the record that Appellant or the con-
   vening authority received the statement submitted by one of Appel-
   lant’s victims, which the convening authority must consider before
   taking action. See R.C.M. 1106(d)(3), 1107(b)(3)(A)(iv).

                                II. DISCUSSION
    The proper completion of post-trial processing is a question of law the
court reviews 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)). Failure to
comment in a timely manner on matters in the SJAR or matters attached to
the SJAR waives in the absence of plain error, or forfeits, any later claim of
error. Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60
M.J. 435, 436 (C.A.A.F. 2005); see also United States v. Ahern, 76 M.J. 194,
197 (C.A.A.F. 2017) (citing United States v. Payne, 73 M.J. 19, 23 & n.3
(C.A.A.F. 2014), to hold that where the rule uses “waiver” but only “in the ab-
sence of plain error,” it means “forfeiture”). Analyzing for plain error, we as-
sess 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 (quot-
ing Kho, 54 M.J. at 65). “To meet this burden in the context of a post-trial
recommendation error . . . an appellant must make ‘some colorable showing
of possible prejudice.’” Id. at 436-37 (quoting Kho, 54 M.J. at 65). “The
threshold is low, but there must be some colorable showing of possible preju-
dice. . . . in terms of how the [error] potentially affected an appellant’s oppor-
tunity for clemency.” Id. at 437.
   There is no doubt Appellant forfeited a claim of error in the post-trial pro-
cessing of his case when he failed to comment on any such error in a timely
manner or at all. However, it is equally clear there were errors and at least
three—the SJAR failure to advise the convening authority of his options for
the reduction to E-1 and reprimand, the PDS omissions regarding Appellant’s
Navy service, and the defense counsel’s misstatement of the convening au-
thority’s clemency power—were obvious. See United States v. Parker, 73 M.J.
914, 921 (A.F. Ct. Crim. App. 2014) (“Although the Rules for Courts-Martial

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                  United States v. Branson, No. ACM S32462


do not explicitly require mention of an accused’s overseas or combat service,
where a summary of the accused’s service record is prepared, that summary
must be accurate.”). We are left to consider whether there has been a colora-
ble showing of possible prejudice to Appellant.
    Thus far in 2018, this court has issued show-cause orders and specified is-
sues requiring the Government and appellants to address error in post-trial
processing. See, e.g., United States v. Hurtado, 2018 CCA LEXIS 402 (A.F. Ct.
Crim. App. 22 Aug. 2018) (unpub. op.); United States v. Aiken, 2018 CCA
LEXIS 366 (A.F. Ct. Crim. App. 20 Jul. 2018) (unpub. op.). In Appellant’s
case, we choose instead to demonstrate judicial efficiency and address the ac-
tion, following the path laid in United States v. Gaters, 2018 CCA LEXIS 364
(A.F. Ct. Crim. App. 20 Jul. 2018) (unpub. op.) (holding that, because the
SJAR and RRT misstated the findings, the action was in error). The conven-
ing authority took action lacking accurate and complete information about
his options to grant clemency, Appellant’s military service, and a victim
statement and might have taken a different action had he been properly ad-
vised. The only clemency Appellant requested–“upgrading” the bad-conduct
discharge–was clemency the convening authority could not grant, and one of
the two alternatives requested by Appellant’s counsel–“disapproval” of the
automatic forfeitures–was not an option. The addendum to the SJAR correct-
ed none of the errors in the SJAR or clemency submission. See United States
v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018) (citing United States v.
Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.)). Thus, we set aside the conven-
ing authority’s action, order new post-trial processing, and direct conflict-free
trial defense counsel.

                               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 au-
thority 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). There-
after, the record of trial will be returned to this court for completion of appel-
late review under Article 66, UCMJ.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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