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

                          No. ACM S32370
                      ________________________

                         UNITED STATES
                            Appellee

                                   v.

                      Cameron D. JELKS
            Airman Basic (E-1), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 28 April 2017
                      ________________________

Military Judge: Marvin W. Tubbs.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
and forfeiture of $1,000.00 pay per month for 7 months. Sentence
adjudged 3 November 2015 by SpCM convened at Dyess Air Force
Base, Texas.
For Appellant: Major Virginia M. Bare, USAF; Captain Patricia
Encarnación-Miranda.
For Appellee: Major Amanda L.K. Linares, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, C. BROWN, and CARRILLO, Appellate Military
Judges.
Judge CARRILLO delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                       United States v. Jelks, No. ACM S32370


CARRILLO, Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas, of one charge and three
specifications of wrongful use of marijuana, in violation of Article 112a,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The military
judge sentenced Appellant to a bad-conduct discharge, confinement for seven
months, and forfeitures of $1,000.00 pay per month for seven months. In
accordance with the terms of a pretrial agreement, the convening authority
approved the bad-conduct discharge, confinement for five months, and the
forfeitures.
    Appellant raises two assignments of error: (1) that the personal data
sheet attached to the staff judge advocate’s recommendation (SJAR) to the
convening authority was incorrect; and (2) that he is entitled to sentence
appropriateness relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c), because
of the conditions in the civilian facility where he was confined post trial. 1
Appellant requests we order new post-trial processing or provide meaningful
sentence relief. Finding no error materially prejudicial to a substantial right,
we affirm the findings and sentence.

                                 I. BACKGROUND
   Appellant used marijuana three times between 1 August 2015 and 21
September 2015, while he was stationed at Dyess Air Force Base (AFB),
Texas. His drug use was confirmed by three separate urinalysis tests.
   Appellant was also convicted at a summary court-martial and received
nonjudicial punishment for wrongful marijuana use immediately prior to the
charged time frame. The parties stipulated that Appellant’s urine tested
positive for tetrahydrocannabinol, the active ingredient in marijuana, on six
occasions between 15 February 2015 and 21 September 2015.

                                  II. DISCUSSION
A. Post-trial Processing
    Although he did not object during clemency, Appellant now alleges the
SJAR contained an incorrect personal data sheet (PDS). The PDS presented
at trial stated the nature of pretrial restraint to be “military confinement.” At
trial, trial defense counsel objected, stating that he would rather the words
“confinement facility” be used, because there was no confinement facility on


1   The second issue is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).


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                     United States v. Jelks, No. ACM S32370


Dyess AFB and Appellant was in a county-run facility. The military judge
overruled the objection, because the confinement was pursuant to a military
order. The staff judge advocate (SJA) presented the same PDS to the
convening authority, without comment on the pretrial restraint. Appellant
did not object to the PDS at that time.
    Proper completion of post-trial processing is a question of law, which this
court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).
Failure to timely comment on matters in the SJAR, or on matters attached to
the SJAR, forfeits any later claim of error in the absence of plain 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). “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 Kho, 54 M.J. at 65).
    In this case, Appellant failed to timely comment on the SJAR and
attachments. As a result, we review the asserted deficiency for plain error.
   Appellant argues that the SJA attached an incorrect PDS to the SJAR.
Appellant is correct in stating that Air Force Instruction (AFI) 51-201,
Administration of Military Justice, Figure 3.7 (6 June 2013), requires the
PDS to include the “NATURE OF PRETRIAL RESTRAINT: (See Note 5).”
Note 5 requires the inclusion of the “type of restraint (see [R.C.M.] 304(a)),
date imposed, location, and number of days. Include restraint by civil
authorities at the behest of the Air Force.” AFI 51-201, Fig. 3.7 n.5 (emphasis
added).
   There are four different types of pretrial restraint:
       (1) Conditions on liberty. Conditions on liberty are imposed by
       orders directing a person to do or refrain from doing specified
       acts. Such conditions may be imposed in conjunction with other
       forms of restraint or separately.
       (2) Restriction in lieu of arrest. Restriction in lieu of arrest is
       the restraint of a person by oral or written orders directing the
       person to remain within specified limits; a restricted person
       shall, unless otherwise directed, perform full military duties
       while restricted.
       (3) Arrest. Arrest is the restraint of a person by oral or written
       order not imposed as punishment, directing the person to
       remain within specified limits; a person in the status of arrest
       may not be required to perform full military duties such as
       commanding or supervising personnel, serving as guard, or
       bearing arms. The status of arrest automatically ends when the

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                     United States v. Jelks, No. ACM S32370


       person is placed, by the authority who ordered the arrest or a
       superior authority, on duty inconsistent with the status of
       arrest, but this shall not prevent requiring the person arrested
       to do ordinary cleaning or policing, or to take part in routine
       training and duties.
       (4) Confinement. Pretrial confinement is physical restraint,
       imposed by order of competent authority, depriving a person of
       freedom pending disposition of offenses. See R.C.M. 305.
R.C.M. 304(a).
    Thus, on the PDS, under “NATURE OF PRETRIAL RESTRAINT,” the
choices are dictated by what type of restraint is actually imposed. In this
case, Appellant was confined. The question is not where; rather, the question
is what is the specific nature of the restraint. Thus, the use of the term
“military confinement” was satisfactory to show that he was in confinement,
and not simply restricted in lieu of arrest or any of the other (less restrictive)
restraints. Pertinently, any “restraint by civil authorities at the behest of the
Air Force” needs to be included in this section on the PDS. AFI 51-201, Fig.
3.7 n.5. Because Appellant was confined at the Taylor County Adult
Correctional Facility, it was proper for the PDS to include his confinement on
the PDS. While the word “military” (as well as the Defense-requested
“facility”) may be superfluous, the entry comports with AFI 51-201’s
requirement to include the type of R.C.M. 304(a) pretrial restraint.
    In addition to providing the PDS to the convening authority, Appellant
also avers that the SJA should have explained in the SJAR “the conditions in
which Appellant would be confined, or had already been confined . . . where
he was subject to different conditions than the ones he would have been
subjected to in a military facility” because knowing this “may have affected
the convening authority’s clemency decision.” R.C.M. 1106(d)(5) provides the
SJA the opportunity to provide optional relevant information in the SJAR.
However, Appellant does not explicitly claim this omission of optional
information was error.
  Because we do not find error in how the confinement was described on the
PDS, Appellant does not prevail under plain error analysis.
B. Complaint of Post-trial Confinement Conditions
    After his conviction, Appellant remained confined at the Taylor County
Adult Correctional Facility. He complains for the first time in an affidavit
submitted to this court about his post-trial confinement conditions. Appellant
states that while he was confined at the Taylor County Adult Correctional
Facility: (1) he was confined to a one-man cell for 23 hours a day; (2) he was
not allowed contact with other inmates; (3) he was allowed out of his cell for

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                     United States v. Jelks, No. ACM S32370


one hour a day to shower, make phone calls, and watch television; (4) his
meals were passed to him through the door by another inmate and he ate
alone in his cell; (5) he was allowed out of his cell three days a week for
solitary recreation; (6) he had to pay for phone calls at the rate of ten cents a
minute plus a $3.50 connecting fee. Although he provides no case law or
analysis for his claim, he is requesting “meaningful sentence relief.”
Appellant explains he did not “know [he] had an option to complain [about
the conditions], because [he] was told the conditions were like this because of
Air Force policy.” He does not state who told him this information. Appellant
does not claim he was prohibited in any manner from actually making a
complaint about how he was housed, just that he was ignorant of the fact he
could.
    “‘[A] prisoner must seek administrative relief prior to invoking judicial
intervention’ to redress concerns regarding post-trial confinement
conditions.” United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007) (citing
United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). This requirement
“promot[es] resolution of grievances at the lowest possible level [and ensures]
that an adequate record has been developed [to aid appellate review].” Id.
(alterations in original) (quoting United States v. Miller, 46 M.J. 248, 250
(C.A.A.F. 1997)).
    This court “review[s] factual findings under a clearly erroneous standard,
but the ‘ultimate determination’ of whether an Appellant exhausted
administrative remedies is reviewed de novo, as a mixed question of law and
fact.” Id. (citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)).
    The “[e]xhaustion [of administrative relief] requires Appellant to
demonstrate that two paths of redress have been attempted, each without
satisfactory result. Appellant must show that ‘absent some unusual or
egregious circumstance . . . he has exhausted the prisoner-grievance system
[in his detention facility] and that he has petitioned for relief under Article
138.’” Id. (first two brackets added, final brackets and ellipses in original)
(quoting White, 54 M.J. at 472). Additionally, because a “prime purpose of
ensuring administrative exhaustion is the prompt amelioration of a prisoner’s
conditions of confinement, courts have required that these complaints be
made while an appellant is [still] incarcerated.” Id. at 471–72 (citing United
States v. White, No. ACM 33583, 1999 CCA LEXIS 220, at *4, (A.F. Ct. Crim.
App. 23 Jul. 1999) (unpub. op.) (holding that solely raising conditions of
confinement complaints in post-release clemency submissions is inadequate
to fulfill the requirement of exhausting administrative remedies and “after
the appellant has been released from confinement . . . we have no remedy to
provide”), aff’d, 54 M.J. 469).



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                     United States v. Jelks, No. ACM S32370


    Appellant filed his affidavit with this court on 27 January 2017, well after
he was out of confinement. There is no record of Appellant filing a complaint
about his confinement conditions while he was incarcerated either through
the Taylor County Adult Correctional facility grievance process, or through
his chain of command under Article 138, UCMJ, 10 U.S.C. § 938.
Furthermore, Appellant has failed to identify any “unusual or egregious
circumstance” that prohibited him from exhausting those remedies while
incarcerated. The only reason he gives is that he did not know he had the
“option to complain,” which does not rise to the level of an unusual or
egregious circumstance.
    Appellant’s claim fails because he did not exhaust his administrative
remedies. His failure to fulfill the requirement stymies its purpose. Had he
lodged a timely complaint to the confinement facility or pursuant to Article
138, UCMJ, there would have been an opportunity to investigate and
ameliorate any violations. We note the particular conditions of Appellant’s
post-trial confinement are not so oppressive or disgraceful as to warrant
sentence relief. There is no evidence he was subjected to physical or mental
abuse, singled out for unusual treatment, or refused other necessities.
Similarly, there is no evidence the conditions of his confinement impacted his
access to counsel or any other post-trial due process right. Therefore, we find
the extraordinary use of our Article 66(c) power to grant sentence relief is not
warranted in this case. See United States v. Gay, 75 M.J. 264, 269 (C.A.A.F.
2016) (this court may employ its Article 66(c) authority to grant sentencing
relief even in the absence of cruel or unusual punishment in violation of the
Eighth Amendment and Article 55); United States v. Milner, No. ACM
S32338, 2017 CCA LEXIS 84 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.)
(noting that this court will likely only exercise its Article 66(c) authority to
grant sentence relief based upon conditions of post-trial confinement in very
rare circumstances).

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

                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court


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