            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                            UNITED STATES

                                                        v.

                         Airman First Class CLAYTON A. BIEHUNKO
                                    United States Air Force

                                                ACM S32117

                                             04 February 2014

           Sentence adjudged 28 November 2012 by SPCM convened at Holloman Air
           Force Base, New Mexico. Military Judge: J. Wesley Moore (sitting alone).

           Approved Sentence: Bad-conduct discharge, confinement for 6 months,
           forfeiture of $994.00 pay per month for 6 months, reduction to E-1, and a
           reprimand.

           Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

           Appellate Counsel for the United States: Colonel Don M. Christensen;
           Major Jason S. Osborne; and Gerald R. Bruce, Esquire.

                                                     Before

                               ROAN, MARKSTEINER, and WIEDIE
                                   Appellate Military Judges

                                       OPINION OF THE COURT

                       This opinion is subject to editorial correction before final release.



WIEDIE, Judge:

       A special court-martial composed of a military judge sitting alone convicted the
appellant, contrary to his pleas, of two specifications of attempted use of
3,4-methylenedioxymethamphetamine (hereinafter “Ecstasy”), and two specifications of
attempted distribution of Ecstasy, in violation of Article 80, UCMJ, 10 U.S.C. § 880.1
The adjudged and approved sentence consists of a bad-conduct discharge, confinement

1
  The appellant was found not guilty of the greater offenses of wrongful use and wrongful distribution of
3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.
for 6 months, forfeiture of $994.00 pay per month for 6 months, reduction to E-1, and a
reprimand.

       On appeal, the appellant asserts that a new Action is required because the deputy
staff judge advocate (DSJA) rather than the staff judge advocate (SJA) signed the
addendum to the Staff Judge Advocate’s Recommendation (SJAR) in contravention of
Article 60(d), UCMJ, 10 U.S.C. § 860(d). Finding no error that materially prejudices the
appellant, we affirm.

                                 Post-Trial Processing

       The SJAR was signed 21 December 2012 by the SJA. The appellant submitted
clemency matters on 2 January 2013. An addendum to the SJAR was prepared and
signed by the DSJA on 2 January 2013. The signature block on the addendum to the
SJAR identified the DSJA as the “Deputy Staff Judge Advocate.” The convening
authority took action on the findings and sentence on 3 January 2013.

       We review post-trial processing issues de novo. United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citing United States v. Kho, 54 M.J. 63
(C.A.A.F. 2000)). Failure to timely comment on matters in the SJAR or on matters
attached to the SJAR waives any later claim of error in the absence of plain error. Rule
for Court-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005). Because of the highly discretionary nature of the convening authority’s
action on the sentence, we will grant relief if an appellant presents “some colorable
showing of possible prejudice.” United States v. Wheelus, 49 M.J. 283, 289 (C.M.A.
1998) (quoting United States v. Chatman, 46 M.J. 321, 324 (C.A.A.F. 1997)) (internal
quotations omitted).

       Article 60(d), UCMJ, requires the convening authority to “obtain and consider the
written recommendation of his staff judge advocate or legal officer.” Similarly,
R.C.M. 1107(b)(3)(A)(ii) requires the convening authority to consider “[t]he
recommendation of the staff judge advocate or legal officer under R.C.M. 1106, if
applicable.”

       Our sister service courts have held that it is error for someone other than the SJA
or acting SJA to sign the SJAR or an addendum thereto. See United States v. Averill,
Army 20090491 (A. Ct. Crim. App. 30 July 2012) (unpub. op.) (finding it was plain error
for the DSJA to sign the SJAR addendum); United States v. Hudgins,
69 M.J. 630, 631 (A. Ct. Crim. App. 2010) (holding that an addendum to the SJAR
signed by the “Deputy Staff Judge Advocate” was error); United States v. Ramirez,
NMCM 97 01265 (N-M. Ct. Crim. App. 30 October 1998) (unpub. op.) (holding that an
SJAR signed by the DSJA violated the terms of Article 60, UCMJ, 10 U.S.C. § 860 and
R.C.M. 1106(a)); See also United States v. Aquino, 48 M.J. 842 (N-M. Ct. Crim. App.


                                            2                                  ACM S32117
1998); United States v. Miller, NMCM 98 00882 (N-M. Ct. Crim. App. 11 September
1998) (unpub. op.). Our superior court, in United States v. Wilson, 54 M.J. 57, 59
(C.A.A.F. 2000), stated “Congress contemplated that the convening authority receive the
recommendation of the SJA, not an assistant SJA,” but did not find plain error because
there was nothing in the record showing that the individual who signed the SJAR was not
the senior judge advocate present for duty.

        As a preliminary matter, we do not find that the appellant failed to timely
comment on the matter and, therefore, plain error is not the applicable standard of review.
This case is distinguishable from Wilson where the error related to the SJAR and the
appellant could have raised the error in a clemency submission. The error in this case
occurred in an addendum to the SJAR, after clemency was submitted. See Hudgins,
69 M.J. at 631 (declining to apply waiver because the error appeared in the addendum,
rather than in the SJAR, and thus, the appellant did not have the opportunity to comment
on the error in his post-trial submission).

       There exist two possibilities in this case concerning the capacity in which the
DSJA signed the addendum to the SJAR. First, the DSJA may have been the acting SJA
and it was merely an administrative error in failing to properly identify that he was acting
in that capacity. On the other hand, the DSJA may have signed the addendum to the
SJAR in his capacity as the DSJA which would be legal error in that the addendum to the
SJAR was not signed by the senior judge advocate present for duty.

        In Wilson, our superior court presumed the DSJA was signing in the capacity of
the acting SJA despite the fact his signature block indicated he was the “Deputy Staff
Judge Advocate.” 54 M.J. at 59. The Wilson court concluded that any error did not rise
to the level of plain error. Id. Because we are not analyzing this issue under plain error,
we decline to make a similar presumption. The Government had the opportunity to seek
permission from this Court to submit a post-trial affidavit to clarify the issue but chose
not to do so. In light of the failure of the Government to submit such an affidavit, we rely
on the unambiguous signature block in this case and find there is no evidence the DSJA
was actually the acting SJA when he signed the addendum as the “Deputy Staff Judge
Advocate,” or that the signature block was merely a typographical error.

       Our sister service courts have reached different conclusions when determining
whether the failure of the SJA to personally sign the SJAR or an addendum to the SJAR
resulted in prejudice to the appellant. In Hudgins, the Army Court of Criminal Appeals
found they were unable to determine any prejudice to appellant where the DSJA was an
officer and experienced judge advocate and was statutorily qualified to sign the
addendum as the acting SJA in the SJA’s absence.2 69 M.J. at 631. See also Averill,
2
  The court in United States v. Hudgins, 69 M.J. 630, 631 (A. Ct. Crim. App. 2010), reached this conclusion despite
the fact there was no evidence the deputy staff judge advocate was acting in that capacity when he signed the
addendum.


                                                        3                                            ACM S32117
unpub. op. at 1 n.*. In Ramirez, unpub. op. at 4, however, the Navy-Marine Corps Court
of Criminal Appeals found the appellant’s substantial rights had been materially
prejudiced under similar facts.

       In the present case, the appellant argues he suffered prejudice because there is no
way to know whether the matters he submitted in clemency would have impacted the
previous opinion of the SJA and caused him to change that opinion. We do not agree
that, under the facts of this case, this rises to the level of “some colorable showing of
possible prejudice.” Chatman, 46 M.J. at 324. Here, the appellant’s clemency
submission focused entirely on the disparate sentences between himself and a co-actor.
The co-actor’s court-martial was convened by the same convening authority and handled
by the same servicing legal office. The co-actor’s trial concluded in advance of the
appellant’s trial and before the SJA signed the SJAR in appellant’s case. Undoubtedly,
the SJA was aware of the sentence in the co-actor’s case, which concluded just two
months before the appellant’s court-martial, when he prepared the SJAR. Despite this
knowledge, he did not see fit to recommend clemency for the appellant. There was no
change in circumstance, nor did the appellant raise any new matter which would
reasonably cause the SJA to reconsider his position. While different facts might have led
to a reasonable likelihood of a more favorable recommendation from the SJA, that
likelihood is purely speculative in this case and it belies the facts before us. Recognizing
the highly discretionary nature of the convening authority’s clemency powers, we are,
nonetheless, “convinced that there is no reasonable likelihood that the SJA would have
recommended clemency in this case, or that the convening authority would have granted
it.” Wilson, 54 M.J. at 60.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                       AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             4                                   ACM S32117
