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

                              No. ACM S32502
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Brandon A. LEIDIGH
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 30 April 2019
                          ________________________

Military Judge: Tiffany J. Williams.
Approved sentence: Bad-conduct discharge, confinement for 90 days, and
reduction to E-1. Sentence adjudged 30 October 2017 by SpCM convened
at Joint Base Andrews, Maryland.
For Appellant: Major Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge LEWIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge DENNIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                            ________________________
LEWIS, Judge:
    A military judge convicted Appellant, in accordance with his pleas and
pursuant to a pretrial agreement (PTA), of one specification of divers wrongful
use of cocaine and one specification each of divers wrongful use and wrongful
distribution of 3, 4 methylenedioxymethamphetamine (MDMA), in violation of
                  United States v. Leidigh, No. ACM S32502


Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The
military judge sentenced Appellant to a bad-conduct discharge, five months of
confinement, and reduction to the grade of E-1. The convening authority
reduced the confinement to 90 days pursuant to the PTA and approved the
remainder of the adjudged sentence.
    Appellant raises one issue on appeal of whether the conditions of his post-
trial confinement warrant relief. Additionally, we address whether errors in
the staff judge advocate’s recommendation (SJAR) warrant relief. We find no
error that warrants relief and we affirm the findings and sentence.

                                I. BACKGROUND
    In early March 2017, Appellant’s involvement with illegal drugs came to
the attention of the Air Force Office of Special Investigations (AFOSI) at Joint
Base Andrews, Maryland. The AFOSI agents seized Appellant’s cell phone
pursuant to a probable cause search authorization and discovered text
messages with civilians and military members indicating Appellant used and
distributed illegal drugs. Additionally, a sample of Appellant’s hair seized
pursuant to a probable cause search authorization tested positive for cocaine
and MDMA. At trial, Appellant admitted to using cocaine and MDMA on divers
occasions and to distributing MDMA on divers occasions between 1 March 2016
and 24 March 2017.
    After Appellant’s trial concluded on 30 October 2017, he spent two full days
and part of two days in post-trial confinement at the Prince George’s County
(Maryland) Detention Center (PGCDC) prior to his transfer to a military
confinement facility. Appellant first complained about his post-trial
confinement conditions on 18 December 2017 when he submitted matters in
clemency to the convening authority. Appellant described his post-trial
confinement at PGCDC as follows: (1) his cell had profanity and racial epithets
scribbled all over the walls; (2) his cell was filthy with food crumbs all over the
bed and floor; (3) his toilet did not work for most of his confinement time, which
made the cell smell awful; (4) the water from the sink had a film on it; (5) the
food was terrible; (6) he did not receive a pillow, which caused him back pain;
(7) he spent approximately one hour in total outside of his cell; (8) he was
permitted to take only one shower; (9) unapproachable guards denied his
requests to use a phone; and (10) other incarcerated persons constantly
screamed insults and profanities at him. Appellant’s trial defense counsel
wrote a letter to the convening authority and noted other military members
confined at PGCDC received confinement credit or early release because of




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                   United States v. Leidigh, No. ACM S32502


similar confinement conditions. 1 Appellant requested the convening authority
reduce his confinement to 81 days. The convening authority declined to do so
and only reduced Appellant’s confinement to 90 days as required by the PTA.

                                   II. DISCUSSION
A. Post-trial Confinement Conditions
    1. Additional Background
    On appeal, Appellant characterizes his confinement at PGCDC as “solitary
confinement” and alleges he was held in “isolation for approximately 71 out of
the 72 hours” he spent there. Appellant alleges the PGCDC’s failure to provide
a pillow, working toilet, daily shower time, and other safe and sanitary condi-
tions violated Air Force Instruction (AFI) 31–105, Air Force Correction System,
¶¶ 1.2–1.3, A3.1–A3.3 (15 Jun. 2015), and the terms of the contract between
the Air Force and PGCDC. Appellant acknowledges that he did not file an Ar-
ticle 138, UCMJ, 10 U.S.C. § 938, complaint but states it would have been “fu-
tile” because a commander has several weeks to act on the complaint and his
confinement at PGCDC was too short to process the complaint. Appellant avers
that he informed the PGCDC guards about his confinement conditions, “but
they did not care.”
     We granted the Government’s motion to attach three declarations, which
are relevant to our discussion of Appellant’s post-trial confinement conditions.
The first declaration is from Captain TL of the Joint Base Andrews legal office
and confirms there is no record of an Article 138 complaint from Appellant
related to his post-trial confinement conditions. The second declaration is from
Lieutenant (Lt) SM, the Legal Affairs Section Commander for PGCDC. Lt SM
states that Appellant was placed not in solitary confinement but in an admin-
istrative segregation status where he received one hour outside of his cell for
every 24-hour period. Lt SM also explained that all incarcerated persons have
access to a handbook setting out the process for complaints and grievances. Lt
SM researched and discovered that Appellant did not submit any complaints
regarding his cell conditions, toilet or sink functioning, his ability to take a
shower, his ability to make phone calls, or the amount of time permitted out-
side of his cell. Lt SM stated PGCDC records show Appellant took his one-hour



1Appellant cited a recent example from February 2017 when a military judge awarded
confinement credit for conditions at the PGCDC. During our review of that case on
appeal, we noted the military judge granted two-for-one confinement credit pursuant
to an unopposed post-trial motion by trial defense counsel. United States v. Millhausen,
No. ACM 39273, 2018 CCA LEXIS 387, at *20 (A.F. Ct. Crim. App. 15 Aug. 2018) (un-
pub. op.).


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                  United States v. Leidigh, No. ACM S32502


“recreation time” on 31 October 2017 and 2 November 2017. Finally, Lt SM
explained that all PGCDC mattresses come equipped with a built-in pillow.
    SSgt JG, the noncommissioned officer in charge (NCOIC) of confinement at
Joint Base Andrews, provided the third declaration. SSgt JG stated that Ap-
pellant was housed in the same unit at PGCDC used for political figures and
law enforcement officials. SSgt JG noted that, in his experience, properly filed
grievances at PGCDC, like the working condition of a toilet, are investigated
within 24 hours by the Manager of Population Management. SSgt JG also
noted that Appellant would have been allowed to make collect phone calls
while at PGCDC. Most importantly, SSgt JG stated that he escorted Appellant
from PGCDC when Appellant was transferred to a military confinement facil-
ity. SSgt JG inquired about Appellant’s confinement conditions at PGCDC and
learned of only two complaints Appellant had: (1) another incarcerated person
kept him awake by continuously screaming; and (2) confinement was very bor-
ing.
    2. Law
    On appeal, Appellant raises only Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2016), as grounds for sentence relief. 2 Under Article 66(c), UCMJ, we have
broad authority and the mandate to approve only so much of the sentence as
we find appropriate in law and fact and may therefore grant sentence relief,
even without finding an Eighth Amendment or Article 55, UCMJ, violation.
United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.
264 (C.A.A.F. 2016); see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F.
2002). When this court considers judicial relief under Article 66(c), UCMJ, for
conditions of post-trial confinement, we have not strictly required an appellant
to demonstrate that he has, absent unusual or egregious circumstances, previ-
ously exhausted administrative remedies. See United States v. Kyc, No. ACM
S32391, 2017 CCA LEXIS 376, at *13–14 (A.F. Ct. Crim. App. 30 May 2017)
(unpub. op.). We instead consider the entire record and typically give “signifi-
cant weight” to an appellant’s failure to seek administrative relief prior to in-
voking judicial intervention while recognizing the limits of our authority.
United States v. Bailey, No. ACM S32389, 2017 CCA LEXIS 604, at *11 (A.F.
Ct. Crim. App. 11 Sep. 2017) (unpub. op.), rev. denied, 77 M.J. 264 (C.A.A.F.
2018) (mem.).
    3. Analysis
   To the extent there are contradictions between Appellant’s clemency sub-
mission and the declarations of Lt SM and SSgt JG, we considered whether a


2In clemency, Appellant alleged his confinement conditions violated the Eighth
Amendment, U.S. CONST. amend. VIII, and Article 55, UCMJ, 10 U.S.C. § 855.


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                  United States v. Leidigh, No. ACM S32502


post-trial evidentiary hearing was required to resolve a factual dispute. United
States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). We are convinced such a hear-
ing is unnecessary. Even if we resolve the contradictions in Appellant’s favor,
the alleged conditions would not result in relief. Id.
    We agree that Appellant’s post-trial confinement conditions were highly
unpleasant. But we also find Appellant did not use the prisoner grievance sys-
tem in place at PGCDC to resolve his complaints. Appellant does not assert
that he was denied access to the handbook, which explained PGCDC’s process
for grievances and complaints. Additionally, Appellant does not assert that he
complained to SSgt JG about his confinement conditions when he was being
transferred to a military confinement facility and that his complaints went un-
resolved. Not only was SSgt JG the confinement NCOIC, but he was also a
member of Appellant’s squadron and wrote a character letter for Appellant
that was admitted as a defense sentencing exhibit during trial. We
acknowledge that an Article 138 complaint may not have resulted in timely
relief, but Appellant has not shown how the existing PGCDC process for com-
plaints failed him, and he has not shown that his complaints were raised to
and ignored by SSgt JG. If Appellant had complained to PGCDC officials using
their existing complaint process and advised SSgt JG of his complaints, each
would have had an opportunity to make immediate inquiries and, if necessary,
take corrective actions. Using the existing complaint process in a timely fash-
ion would have benefitted the contracting officer, the staff judge advocate
(SJA), the convening authority, and this court.
    After considering the facts and circumstances in the present case, we de-
cline to provide sentence relief under Article 66(c), UCMJ. As this court ob-
served in United States v. Ferrando:
       While we have granted sentence relief based upon conditions of
       post-trial confinement where a legal deficiency existed, we are
       not a clearing house for post-trial confinement complaints or
       grievances. Only in very rare circumstances do we anticipate
       granting sentence relief when there is no violation of the Eighth
       Amendment or Article 55, UCMJ.
77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omitted), rev. denied, 77
M.J. 277 (C.A.A.F. 2018). This case does not present those very rare circum-
stances.
B. SJAR Errors
   1. Additional Background
    During trial, the Prosecution offered Appellant’s personal data sheet (PDS)
into evidence, which listed “N/A” for his combat service. The Defense raised no
objection and the military judge admitted the PDS. Other exhibits admitted

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                  United States v. Leidigh, No. ACM S32502


into evidence, such as an enlisted performance report and a character letter,
reflected Appellant’s deployment to Jordan in the fall of 2015. Finally, Appel-
lant mentioned his deployment in his oral unsworn statement before the mili-
tary judge.
    The PDS attached to the SJAR also listed “N/A” for Appellant’s combat ser-
vice. Appellant raised no objection during clemency, but he did reference the
Jordan deployment in his letter to the convening authority. Also, he attached
to his clemency submission the character letter admitted during trial that ref-
erenced the deployment.
   Finally, Appellant raised no objection to the SJAR’s recitation of maximum
punishment, which stated, inter alia, the following:
       The maximum imposable sentence for the offenses for which the
       accused was convicted is confinement for 1 year, forfeiture of two-
       thirds pay per month for 12 months, reduction to the grade of E-
       1, a fine, and a bad conduct discharge.
(Emphasis added).
   2. Law
   Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted).
    “Failure to timely comment on matters in the SJAR, or matters attached to
the recommendation, forfeits any later claim of error in the absence of plain
error.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App. 2015)
(citing Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60
M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analysis, an ap-
pellant must show (1) there was an error; (2) the error was plain and obvious;
and (3) the error materially prejudiced a substantial right. Id. (citation omit-
ted). The threshold for establishing prejudice from errors impacting an appel-
lant’s request for clemency from the convening authority is low, even in the
context of plain error analysis, but there must be “some colorable showing of
possible prejudice.” Id. (citing Scalo, 60 M.J. at 437).
   3. Analysis
       a. PDS Error
   The required contents of the SJAR include a copy of the report of results of
the trial, setting forth, inter alia, the findings, sentence, and confinement
credit to be applied; a copy or summary of the PTA, if any; and the SJA’s concise




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                    United States v. Leidigh, No. ACM S32502


recommendation. R.C.M. 1106(d)(2)–(3). 3 “Although the Rules for Courts-Mar-
tial do not explicitly require mention of an accused’s . . . combat service, where
a summary of the accused’s service record is prepared, that summary must be
accurate.” United States v. Parker, 73 M.J. 914, 921 (A.F. Ct. Crim. App. 2014)
(footnote omitted).
    In an Air Force case, the SJAR should also contain a copy of the PDS ad-
mitted at trial. AFI 51–201, Administration of Military Justice, ¶ 9.16 (6 Jun.
2013, as amended by AFGM 2016-01, 3 Aug. 2016). Before a convening author-
ity may take action on a sentence, the convening authority must consider the
SJAR. R.C.M. 1107(b)(3)(A)(ii). An error in the SJAR “does not result in an
automatic return by the appellate court of the case to the convening authority.”
United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). “Instead, an appellate
court may determine if the accused has been prejudiced by testing whether the
alleged error . . . would have led to a favorable recommendation by the SJA or
corrective action by the convening authority.” Id. (citations omitted).
    The PDS admitted during sentencing at Appellant’s trial did not identify
his deployment to Jordan as combat service. This was error. See AFI 51–201,
Figure 3.7 n.4 (requiring identification of service for which the member was
awarded special pay for duty subject to hostile fire or imminent danger); De-
partment of Defense 7000.14-R, Financial Management Regulation (DoD
FMR), Volume 7A, Chapter 10, Figure 10–1 (November 2016). Our review of
Figure 10–1 of the DoD FMR leads us to conclude that Appellant was entitled
to special pay as the land area of Jordan was designated an imminent danger
pay area during his deployment in the fall of 2015. Therefore, his PDS should
have listed the deployment location and dates under combat service in accord-
ance with AFI 51–201. In Parker, we found the failure to include a deployment
to Al Udeid Air Base, Qatar, on a PDS to be plain and obvious error. Parker,
73 M.J. at 921. We similarly find plain and obvious error here.
    During trial and clemency and on appeal, Appellant consistently raised no
objection to the PDS error of his combat service. He has not attempted to show
that he would have received a favorable recommendation by the SJA or correc-
tive action by the convening authority without the error. As Appellant’s letter
during clemency and the character letter submitted by SSgt JG, both refer-
enced his deployment as a member of security forces and the location of the
deployment as Jordan, we find no colorable showing of possible prejudice from
the PDS error. See Scalo, 60 M.J. at 436–37.



3All references to the Rules for Courts-Martial in this opinion are from the 2016 edition
of the Manual for Courts-Martial, which applied during Appellant’s trial and clemency.
See Manual for Courts-Martial, United States, pt. II (2016 ed.).


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                   United States v. Leidigh, No. ACM S32502


       b. Maximum Punishment
    R.C.M. 1003(b)(3) provides, in pertinent part:
       Any court-martial may adjudge a fine in lieu of or in addition to
       forfeitures. In the case of a member of the armed forces, sum-
       mary and special courts-martial may not adjudge any fine or
       combination of fine and forfeitures in excess of the total amount
       of forfeitures that may be adjudged in that case.
The maximum forfeiture that a special court-martial may adjudge is two-thirds
pay per month for 12 months. R.C.M. 201(f)(2)(B)(i). Therefore, Appellant
“could not have been sentenced to a fine in addition to forfeiture of two-thirds
pay per month for 12 months.” United States v. Books, No. ACM S32369, 2017
CCA LEXIS 226, at *7 (31 Mar. 2017) (unpub. op.). As was the case in Books,
we find this was clear error. See id. Appellant has not asserted and we find no
colorable showing of possible prejudice under the facts of this case. See United
States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). The military judge did not include
a fine when she advised Appellant of the maximum punishment during his
trial. Further, the military judge did not adjudge a fine or forfeiture of pay.
Therefore, the convening authority was not required to make a decision during
clemency to approve a combination of a fine and forfeiture of pay. Accordingly,
we find this error does not warrant relief.

                                 III. CONCLUSION
   The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). Accordingly,
the findings and sentence are AFFIRMED. 4


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




4 We note two errors in the promulgating order. First, the Charge is incorrectly listed
as a violation of Article 112 instead of Article 112a, UCMJ. Second, the words “an un-
known quantity of” are missing from Specification 3 of the Charge. We direct the pub-
lication of a corrected court-martial order to remedy the errors.


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