          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                          Airman First Class WILLIAM J. BURTON
                                   United States Air Force

                                              ACM S32253

                                            1 February 2016

         Sentence adjudged 16 April 2014 by SPCM convened at Pope Army Air
         Field, Fort Bragg, North Carolina. Military Judge: Francisco Mendez.

         Approved Sentence: Bad-conduct discharge, confinement for 9 months,
         forfeiture of $1021.00 pay per month for 9 months, and reduction to E-1.

         Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli.

         Appellate Counsel for the United States: Major Thomas J. Alford; Captain
         Jason M. Kellhofer; and Gerald R. Bruce, Esquire.

                                                  Before

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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



KIEFER, Judge:

        Pursuant to his pleas, Appellant was convicted of seven specifications of wrongful
use of cocaine in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. A panel of officer
members sentenced Appellant to a bad-conduct discharge, confinement for 9 months,
forfeiture of $1021.00 pay per month for 9 months, reduction to E-1, and a reprimand.
The convening authority approved all aspects of the sentence except for the reprimand.
                                       Background

        Between 14 October 2013 and 4 March 2014, Appellant used cocaine on seven
occasions with friends near his hometown. Generally, Appellant would go home on
weekends, meet up with former classmates, and go to bars or parties where Appellant and
his friends used cocaine. These wrongful uses of cocaine resulted in multiple positive
urinalysis results.

        After the preferral of charges for a positive urinalysis, Appellant cried as he told
his commander he had a drug problem and needed treatment. Appellant was provided
treatment through the Air Force. Following Appellant’s entry into treatment, his
commander was informed that he had a fifth positive urinalysis. Shortly thereafter, on
4 March 2014, Appellant’s commander restricted Appellant to base. On 7 March, the
commander received notice of a sixth positive urinalysis. Following this sixth positive
result the commander ordered Appellant into pretrial confinement on 11 March 2014. A
pretrial confinement review officer (PCRO) reviewed the commander’s action and
affirmed the decision to order pretrial confinement.

       Appellant alleges four assignments of error: (1) the military judge erroneously
failed to grant him additional pretrial confinement credit for illegal pretrial punishment
under Article 13, UCMJ, 10 U.S.C. § 813; (2) the sentence is inappropriately severe;
(3) the staff judge advocate’s recommendation (SJAR) failed to inform the convening
authority of 36 days of pretrial confinement credit; and (4) the SJAR failed to comment
on legal errors.

                               Illegal Pretrial Punishment

        Pursuant to Article 13, UCMJ, and Rule for Courts-Martial (R.C.M.) 305,
Appellant alleges that the military judge erroneously failed to grant him additional credit
against his term of confinement based on the commander improperly ordering him into
pretrial confinement following a period of base restriction. Appellant cites to multiple
reasons why the commander’s and PCRO’s decisions to order pretrial confinement were
erroneous, including the fact that his sixth positive urinalysis result did not reflect
additional misconduct after the ordering of base restriction and the commander’s basis for
ordering pretrial confinement was to send a message to the unit.

       Article 13, UCMJ, reads:

                    No person, while being held for trial, may be subjected
              to punishment or penalty other than arrest or confinement
              upon the charges pending against him, nor shall the arrest or
              confinement imposed upon him be any more rigorous than the
              circumstances required to insure his presence . . . .


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        The question of intent to punish is “one significant factor in [the] judicial
calculus” for determining whether there has been an Article 13 violation. United States v.
Huffman, 40 M.J. 225, 227 (C.M.A. 1994) (citing Bell v. Wolfish, 441 U.S. 520 (1979)).
We will not overturn a military judge’s findings of fact, including a finding of no intent
to punish, unless they are clearly erroneous. United States v. Smith, 53 M.J. 168, 170
(C.A.A.F. 2000). “We will review de novo the ultimate question whether an appellant is
entitled to credit for a violation of Article 13.” United States v. Mosby, 56 M.J. 309, 310
(C.A.A.F. 2002)

        Essentially, Article 13, UCMJ, prohibits two things: (1) the imposition of
punishment prior to trial and (2) conditions of arrest or pretrial confinement that are more
rigorous than necessary to ensure the accused’s presence for trial. The commander’s
intent and basis for ordering pretrial confinement are important aspects of the analysis.

      R.C.M. 305(d) indicates that there is probable cause to order pretrial confinement
when there is a reasonable belief that:

              (1) An offense triable by court-martial has been committed;
              (2) The person confined committed it; and
              (3) Confinement is required by the circumstances.

      R.C.M. 305(h)(2)(B) lists factors the commander may consider in ordering or
maintaining a person in pretrial confinement, including that:

              (iii) Confinement is necessary because it is foreseeable that:

                     (a) The prisoner will not appear at trial, pretrial
                     hearing, or investigation, or
                     (b) The prisoner will engage in serious criminal
                     misconduct . . . .

       Under R.C.M. 305(h)(2)(B), the commander must also determine that “[l]ess
severe forms of restraint are inadequate.” The discussion to R.C.M. 305(h) lists factors
the commander may consider in determining the appropriate level of restraint, to include
the accused’s character and mental condition, the nature and circumstances of the
charged offenses, and the weight of the evidence.

        In this case, the military judge determined that the commander’s intent in ordering
pretrial confinement was to deter continued serious misconduct and to ensure Appellant’s
presence at trial. The military judge cited evidence of Appellant’s repeated violations of
military law. The sixth positive urinalysis was collected before Appellant was placed on
restriction; however, it caused the commander to reevaluate Appellant’s likelihood of


                                             3                                  ACM S32253
engaging in further serious misconduct by continuing to use cocaine. This belief was
supported by later evidence that a urine sample obtained from Appellant on the day he
was placed on restriction resulted in his seventh cocaine positive test result. The military
judge also found the commander had legitimate concerns about Appellant’s attendance at
the court-martial.

      We find the conclusions of the military judge were not clearly erroneous, and there
was no error in the military judge denying Appellant’s motion for additional pretrial
confinement credit pursuant to Article 13, UCMJ.

                                Sentence Appropriateness

        Appellant also argues that his sentence is inappropriately severe. This court “may
affirm only such findings of guilty and the sentence or such part or amount of the
sentence, as [we find] correct in law and fact and determine[], on the basis of the entire
record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review
sentence appropriateness de novo, employing “a sweeping congressional mandate to
ensure a fair and just punishment for every accused.” United States v. Baier, 60 M.J.
382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach, 55 M.J. 501, 504 (Army
Ct. Crim. App. 2001)) (internal quotation marks omitted). “We assess sentence
appropriateness by considering the particular appellant, the nature and seriousness of the
offense[s], the appellant’s record of service, and all matters contained in the record of
trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citing
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)). Although we are accorded
great discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

       The military judge convicted Appellant of wrongful use of cocaine on seven
occasions. At this special court-martial, Appellant faced a maximum sentence of a bad-
conduct discharge, 12 months of confinement, forfeiture of two-thirds pay per month for
12 months, and a reduction to E-1. A panel of officer members sentenced Appellant to a
bad-conduct discharge, confinement for 9 months, forfeiture of $1021.00 pay per month
for 9 months, reduction to E-1, and a reprimand.

       We have reviewed the entire record of trial including all evidence in mitigation
and extenuation as well as evidence in aggravation. Appellant was convicted of seven
distinct wrongful uses of cocaine in less than five months. Appellant’s conduct did not
represent an isolated incident but demonstrated regular and repeated violations of military
law. Based on the facts of this case, including the nature of the offenses and Appellant’s
background, service record, and character, there is nothing that indicates Appellant’s
sentence was inappropriately severe.



                                             4                                  ACM S32253
          Failure to Inform Convening Authority of Pretrial Confinement Credit

      In his third assignment of error, Appellant alleges that the personal data sheet
(PDS) and SJAR failed to properly note his 36 days of pretrial confinement credit.

       R.C.M. 1106(d)(3) governs the content of the SJAR and requires, in part, a copy
of the report of the results of trial, setting forth the findings, sentence, and confinement
credit. Pursuant to R.C.M. 1106(d)(3), the report of the results of trial is part of the
SJAR.

        Review of the record shows that the PDS indicates “Nature of Pretrial Restraint:
N/A.” This document was a prosecution exhibit at trial, and Appellant did not object to
its admission. The report of the results of trial submitted as part of the SJAR shows
“Pretrial Confinement Credit: 36.” Consequently, the SJAR properly noted the period of
pretrial confinement credit. Additionally, trial defense counsel in his clemency request
specifically mentioned that Appellant was placed in pretrial confinement.

        Even if we determined that there was error or confusion by the failure to indicate
pretrial confinement credit on the PDS while including it on the SJAR, Appellant did not
raise this error within his clemency submission. If Appellant does not make a timely
comment on an error or omission in the SJAR, the error is waived unless it is prejudicial
under a plain error analysis. United States v. Capers, 62 M.J. 268, 269 (C.A.A.F. 2005).
Under a plain error analysis, we must determine whether there was error, whether it was
plain, and whether it materially prejudiced a substantial right of the appellant. Id. With
respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a
relatively low threshold—a demonstration of some colorable showing of possible
prejudice. Id. Our review is de novo. Id.

        In this case, the report of the results of trial properly reflected the period of pretrial
confinement credit. The “N/A” on the PDS regarding pretrial confinement was error and
it was plain on its face. There is no evidence that Appellant did not receive the 36 days
of pretrial confinement credit. Appellant has not produced any evidence that the
convening authority was confused by the discrepancy between the report of the results of
trial and the PDS. Appellant has not made a colorable showing of possible prejudice.
We determine that Appellant has failed to surmount the low threshold for error in post-
trial processing and deny him any relief on this issue.




                                                5                                    ACM S32253
    Addendum to SJAR and Purported Legal Errors Raised in Appellant’s Submissions

       In his fourth assignment of error, Appellant asserts that the SJA failed to note legal
errors raised in defense clemency submissions. We disagree. The thrust of Appellant’s
clemency matters was to seek a reduced sentence based on sentence comparisons to other
courts-martial and evidence in mitigation and extenuation. Appellant did not allege any
legal errors. We do not regard a straightforward request for clemency as raising a legal
error. R.C.M. 1106(d)(4) states that the SJA does not need to examine the record for
legal errors and is only required to address whether corrective action is needed if the
defense makes an allegation of legal error in the matters submitted under R.C.M. 1105 or
otherwise deemed appropriate by the SJA. United States v. Foy, 30 M.J. 664 (A.F. Ct.
Crim. App. 1990). “[T]he staff judge advocate is not required to specifically advise the
convening authority on issues the appellant raises in her clemency submissions unless
those issues are raised as legal error.” United States v. Taylor, 67 M.J. 578, 580 (A.F. Ct.
Crim. App. 2008). The SJAR in this case indicates that no corrective action was required
with regard to the findings or sentence. The SJAR and addendum complied with R.C.M.
1106(d)(4).

       Due to an unrelated error in the staff judge advocate’s advice to the convening
authority about limitations on his ability to grant clemency, Appellant was afforded an
opportunity to submit additional matters in clemency. Appellant did not raise the matter
of the original addendum failing to address any other legal errors. “Because Appellant
did not object to the recommendation of the SJA, we must determine [under a de novo
review] whether there was error, whether it was plain, and whether it materially
prejudiced a substantial right of the accused.” Capers, 62 M.J. at 269. We find no error
and no colorable showing of possible prejudice under the facts of this case.

                                                Conclusion

       The 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), 10
U.S.C. §§ 859(a), 866(c), UCMJ.




*
 The court-martial order (CMO) incorrectly abbreviates the specifications by including an uncharged location for
each offense “at or near Pope Air Force Base, North Carolina,” along with the charged location of “within the
continental United States.” We order a corrected CMO.


                                                       6                                         ACM S32253
Accordingly, the findings and the sentence are AFFIRMED.




            FOR THE COURT


            LEAH M. CALAHAN
            Clerk of the Court




                                        7                  ACM S32253
