        UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                   v.

                        Technical Sergeant JAIME R. RODRIGUEZ
                                  United States Air Force

                                             ACM 38519

                                            14 April 2015

       Sentence adjudged 14 June 2013 by GCM convened at Joint Base
       San Antonio-Lackland, Texas. Military Judge: Donald R. Eller, Jr.

       Approved Sentence: Dishonorable discharge, confinement for 27 years, and
       reduction to E-1.

       Appellate Counsel for the Appellant: Major Christopher D. James and
       Michael C. Gross, Esquire.

       Appellate Counsel for the United States: Major Daniel J. Breen;
       Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.

                                                Before

                          MITCHELL, WEBER, and CONTOVEROS
                                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        This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



WEBER, Judge:

     The appellant pled guilty at a general court-martial to the following offenses:

     (1) Fourteen specifications of violating a lawful general regulation by wrongfully
     attempting to develop and maintain personal and intimate relationships with
     various Air Force applicants, recruits, and recruiter’s assistants;
        (2) One specification of violating a lawful general regulation by wrongfully
        attempting to develop and maintain a personal and intimate relationship with an
        Air Force applicant, and by using his grade or position, threats, pressure, or
        promise of return of favors or favorable treatment in an attempt to gain sexual
        favors from the applicant;

        (3) One specification of violating a lawful order by wrongfully sending an
        Air Force applicant an e-mail from his personal e-mail account;

        (4) One specification of making a false official statement;

        (5) One specification of sodomy;

        (6) Two specifications of obstructing justice by wrongfully endeavoring to
        impede an investigation; and

        (7) Two specifications of adultery.

       The appellant pled not guilty to several remaining charges and specifications. A
panel of officer members convicted him, contrary to his pleas, of the following offenses:

        (1) One specification of aggravated sexual assault by causing bodily harm;1

        (2) One specification of abusive sexual contact by causing bodily harm;2

        (3) One specification of sodomy;3

        (4) One specification of aggravated sexual contact by using strength;

        (5) One specification of wrongful sexual contact; and

        (6) One specification of indecent exposure.

       The members acquitted the appellant of one remaining charge and specification
alleging assault consummated by a battery. The members sentenced the appellant to a
dishonorable discharge, confinement for 27 years, forfeiture of all pay and allowances,
and reduction to E-1. The convening authority disapproved the adjudged forfeitures but
otherwise approved the sentence as adjudged.

       Before this court, the appellant raises 15 assignments of error covering several
rulings by the military judge, the sufficiency of the evidence concerning his conviction of
certain offenses, the providence of his guilty plea to violating a lawful general regulation,
1
  The members acquitted the appellant of the charged greater offense of rape by using strength and power.
2
  The members acquitted the appellant of the charged greater offense of aggravated sexual contact by using strength,
power, and restraint.
3
  The members acquitted the appellant of the charged greater offense of forcible sodomy.


                                                         2                                            ACM 38519
the performance of his trial defense counsel, the post-trial processing of his case, and the
actions of one member of the court-martial. One of these issues alleges the staff judge
advocate’s recommendation (SJAR) was erroneous in three respects. We address only
the issue concerning the SJAR, and order new post-trial processing.

                                       Background

       The appellant was an Air Force recruiter who was convicted of various types of
improper conduct toward Air Force applicants, recruits, and recruiter’s assistants. When
he came under investigation, he lied about his activities and took actions to impede the
investigation.

        The appellant pled guilty to several of the charges and specifications. The
maximum imposable punishment for the offenses of which he pled guilty included
confinement for 54 years and 6 months. Following the appellant’s conviction on a
number of charges and specifications to which he pled not guilty, his maximum sentence
to confinement increased to 115 years and 6 months. However, the staff judge advocate’s
post-trial recommendation to the convening authority erroneously stated that the
maximum imposable sentence to confinement was 54 years and 6 months, the maximum
punishment for only his pleas of guilty.

       No pretrial agreement existed in the appellant’s case. However, the SJAR
ambiguously stated, “There was not a pretrial agreement in this case. No further action is
required on your part regarding the pretrial agreement.” In addition, despite the fact that
the appellant pled not guilty to a number of charges and specifications and although no
stipulation of fact existed, the SJAR stated, “The primary evidence against the accused
consisted of a guilty plea and stipulation of fact.” The SJAR also advised the convening
authority that the appellant’s character of service before the charges was poor. Trial
defense counsel objected to this service characterization in his clemency submission, and
the SJAR addendum accordingly noted that the appellant’s character of service should
have been characterized as adequate instead of poor.

                                       SJAR Errors

       We normally review the correctness of post-trial processing de novo.
United States v. Parker, 73 M.J. 914, 920 (A.F. Ct. Crim. App. 2014). However, failure
to timely comment on matters in an SJAR forfeits any later claim of error in the absence
of plain error. Id.; Rule for Courts-Martial 1106(f)(6); United States v. Scalo; 60 M.J.
435, 436 (C.A.A.F. 2005). “To prevail under a plain error analysis, [the appellant bears
the burden of showing] that: ‘(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 (quoting
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).



                                             3                                   ACM 38519
        If error in the SJAR occurs, such error “does not result in an automatic return by
the appellate court of the case to the convening authority. Instead, an appellate court may
determine if the accused has been prejudiced by testing whether the alleged error has any
merit and would have led to a favorable recommendation by the SJA or corrective action
by the convening authority.” United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). In
determining whether the error might have affected the convening authority’s action, the
threshold for establishing prejudice is low because the convening authority possesses
significant power to grant clemency. United States v. Parsons, 61 M.J. 550, 551 (A.F.
Ct. Crim. App. 2005). In making this determination, we recognize the convening
authority is an appellant’s “best hope for sentence relief.” United States v. Lee, 50 M.J.
296, 297 (C.A.A.F. 1999) (quoting United States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A.
1988)) (internal quotation marks omitted). “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.’” Kho, 54 M.J. at 65 (quoting
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). “Because the threshold for
showing prejudice is so low, it is the rare case where substantial errors in the SJAR, or
post-trial process in general, do not require return of the case for further processing.”
Parker, 73 M.J. at 921 (quoting United States v. Lavoie, ACM S31453, unpub. op. at 4
(A.F. Ct. Crim. App. 21 January 2009)) (internal quotation marks omitted).

       The service characterization error in the initial recommendation provides the
appellant no basis for relief, as the error was corrected when raised by trial defense
counsel. In addition, we find that standing alone, neither the ambiguity in the SJAR
regarding a pretrial agreement nor the statement concerning the primary evidence against
the appellant provides grounds for relief. Viewed in its entirety, the SJAR and its
attachments sufficiently advised the convening authority that no pretrial agreement
existed and that the appellant did not plead guilty to all charges and specifications.

       The plain and obvious error concerning the maximum punishment causes us
greater concern. The SJAR is the mechanism to advise the convening authority of the
maximum punishment an accused faced, thereby informing the convening authority how
the adjudged sentence compared to what might have been adjudged. Accurate advice in
this regard is a particularly important component of the SJAR. “Complete and accurate
advice in each case provides a convening authority with the guidance necessary to carry
out the responsibilities Article 60(d), UCMJ, imposes. The recommendation is much
more than a ministerial action or mechanical recitation of facts concerning the trial.”
United States v. Cunningham, 44 M.J. 758, 763 (N.M. Ct. Crim. App. 1996).

       In the instant case, the Government argues that the appellant actually benefitted
from the staff judge advocate’s error because the recommendation “unintentionally
minimized the true extent of [the appellant’s] crime spree.” We are unwilling to
subscribe to the Government’s contention that staff judge advocates may err with
impunity in stating the maximum punishment so long as they do so in one direction.


                                             4                                  ACM 38519
Rather, a reasonable argument may be made that the staff judge advocate’s error harmed
the appellant’s chances for clemency by implying that the members believed that a
particularly harsh sentence closer to the maximum was warranted. In addition, the staff
judge advocate’s error was particularly significant in that he misstated the maximum
punishment by a wide margin, representing that it was less than half of what it actually
was. Under the circumstances, recognizing that the standard for establishing prejudice is
low, we find the appellant has met his burden of establishing a colorable showing of
possible prejudice.4

       The fact that the SJAR contained other evidence of a lack of attention to detail
supports our decision to return this case for new post-trial processing. As we recently
reminded staff judge advocates, “[i]f a military member’s offenses are deemed serious
enough to warrant court-martial, they are serious enough to demand the time needed to
carefully and correctly shepherd each aspect of the case to conclusion.” Parker, 73 M.J.
at 922. The appellant’s case was a particularly serious, high-visibility matter. It is not
unreasonable to expect that careful attention will be provided in the post-trial processing
of such a case. We therefore deem it appropriate to afford the servicing legal office
another opportunity to correctly process this case. A new, correct SJAR will be issued,
and the appellant will be afforded the opportunity to respond. See United States v.
Mendoza, 67 M.J. 53, 54 (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).

                                                  Conclusion

       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.
Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, Article 66(b), UCMJ, 10 U.S.C.
§ 866(b), will apply.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court


4
  In finding a colorable showing of possible prejudice, we recognize that the convening authority actually did grant
some clemency by disapproving the adjudged forfeitures. However, it appears the convening authority did so in
order to waive mandatory forfeitures for the benefit of the appellant’s dependents. Article 58b(b), UCMJ, 10 U.S.C.
§ 858b(b); United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002). Under these circumstances, we do not find
that the convening authority’s act of clemency precludes the possibility that further clemency might have been
granted had the staff judge advocate provided accurate advice.


                                                         5                                            ACM 38519
