          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                         Senior Airman CHRISTOPHER L. OLIVER
                                   United States Air Force

                                               ACM 38481

                                              15 April 2015

         Sentence adjudged 26 June 2013 by GCM convened at Joint Base
         San Antonio-Lackland, Texas. Military Judge: Donald R. Eller, Jr. (sitting
         alone).

         Approved Sentence: Dishonorable discharge, confinement for 24 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Major Christopher D. James.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Meredith L. Steer and Gerald R. Bruce, Esquire.

                                                  Before

                                HECKER, SANTORO, and TELLER
                                    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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



SANTORO, Judge:

       A military judge sitting as a general court-martial convicted the appellant,
pursuant to his pleas, of two specifications of violating a general regulation, one
specification of dereliction of duty, and three specifications of adultery, in violation of
Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934. Contrary to his pleas, the appellant
was convicted of five additional specifications of violating a general regulation, one
specification of wrongful sexual contact, and one specification of consensual sodomy, in
violation of Articles 92, 120, and 125, UCMJ, 10 U.S.C. §§ 892, 920, 925.1 The
adjudged and approved sentence consisted of a dishonorable discharge, confinement for
24 months, and reduction to E-1.

       The appellant argues: (1) he is entitled to new post-trial processing because the
staff judge advocate’s recommendation (SJAR) contained significant errors; (2) the
military judge abused his discretion in admitting a prosecution sentencing exhibit;
(3) several specifications are multiplicious or represent an unreasonable multiplication of
charges; (4) several specifications are legally insufficient; (5) his guilty plea to two
specifications was improvident; (6) the evidence relating to one of the specifications
alleging a violation of a general regulation is legally and factually insufficient;
(7) unlawful command influence undermined his substantial rights; (8) his sentence is
inappropriately severe; and (9) his trial defense counsel were ineffective.2 As we agree
that the staff judge advocate’s erroneous recommendation prejudiced the appellant, we
order new post-trial processing and do not reach the remaining issues at this time.

                                                  Background

       The appellant was a military training instructor at Lackland Air Force Base. The
charges and specifications arose from his efforts to develop, conduct, and maintain
personal and intimate relationships with four female trainees and his use of abusive
training methods against a member of a flight under his supervision.

       The appellant notes three errors in the SJAR. First, the recommendation advised
the convening authority that the maximum confinement authorized was 7 years and
6 months compared to the actual maximum sentence of 23 years and 6 months. Second,
the SJAR stated that the “primary evidence against the accused consisted of a guilty plea”
when in fact the appellant only pled guilty to 6 of the 16 specifications on the charge
sheet. Third, the SJAR erroneously stated that there was a pretrial agreement in the case.
Not noted by the appellant, but also error, was the SJAR’s statement at one point that the
accused was convicted of an offense (singular).

                                                  SJAR Errors

        Rule for Courts-Martial (R.C.M.) 1106 requires that before the convening
authority takes action on the findings and sentence of a court-martial, he or she is to
receive a recommendation from the staff judge advocate. The purpose of the SJAR is to
assist the convening authority, who is generally not legally trained, in exercising his
command prerogative. R.C.M. 1106(d)(1). The appellant alleges that the SJAR

1
  The appellant was found not guilty of one specification alleging abusive sexual contact, one specification alleging
aggravated sexual assault, and one specification alleging obstruction of justice. He was also acquitted of greater
offenses charged in connection with his convictions of wrongful sexual contact and consensual sodomy.
2
  Issues 6–9 are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                         2                                              ACM 38481
contained significant errors that impacted his opportunity to receive meaningful clemency
consideration.

       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.; 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 United States v.
Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

       Because of the highly discretionary nature of the convening authority’s action on a
sentence, we may grant relief if an appellant presents “some colorable showing of
possible prejudice” affecting his opportunity for clemency. Kho, 54 M.J. at 65 (quoting
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). This low threshold exists
because 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 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). However, an SJAR 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).

        We have no trouble concluding that each of the three errors noted by the appellant
was plain and obvious. The Government argues, however, that the appellant can show no
colorable claim of possible prejudice as a result of these obvious errors. The Government
asserts that the errors made the appellant’s offenses appear less severe, benefitted the
appellant by showing that he had taken the first step toward rehabilitation by his plea of
guilty, and would have been evident because the convening authority would have known
that there was no pretrial agreement. We reject the Government’s position, particularly
in light of the low threshold of prejudice required in this area and the significant errors in
the SJAR. In particular, we are unwilling to presume that the misstatement concerning
the maximum imposable punishment did not affect the convening authority’s clemency
decision. A statement in the SJAR about the maximum punishment an accused faced
provides important information to the convening authority to be used in the convening
authority’s clemency decision. We reject the apparent assertion by the Government that
the staff judge advocate’s error was less egregious merely because he understated the


                                              3                                    ACM 38481
maximum punishment instead of overstating it. Rather, it could just as easily be argued
that the staff judge advocate’s error harmed the appellant’s chances for clemency by
implying that the members imposed a sentence closer to the maximum, signaling to the
convening authority that the members found the appellant’s conduct more severe. 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 about a third 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. The pervasive nature of the errors in this SJAR
reinforces our decision.3

        We recently observed what staff judge advocates should already know:

                 [I]t behooves SJAs to pay attention to what they are sending
                 to a convening authority and take the time to get it right the
                 first time. More importantly, however, the integrity of our
                 military justice system demands careful attention in each and
                 every case. While any given court-martial may seem routine
                 to a legal office with a busy docket, rest assured it is not
                 routine to the accused. With rare exception, it will be the
                 single most important event in that military member’s life.
                 Nor is it routine to the members of the accused’s unit, or to
                 the friends, family members, or victims watching carefully to
                 see that justice is served. Slip-shod treatment of the
                 court-martial process, whether at the pre-trial, trial, or
                 post-trial stage, cannot help but undermine faith in the system
                 itself, making it less effective overall as a tool for maintaining
                 military discipline. If 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 921–22 (quoting Lavoie, ACM S31453 at 4) (internal quotation marks
omitted). The appellant’s case was not only important to him, but it also involved
significant misconduct toward several trainees. Attention to detail is important in every
case, but particularly so in a case of this magnitude and notoriety. The servicing legal
office will now have another opportunity to demonstrate its ability to properly administer
a case through post-trial processing. A new, correct SJAR will be issued, and the

3
  The Government’s argument that the convening authority would have known of any pretrial agreement is based on
the Government’s assumption that the convening authority is a party to any pretrial agreement and thus would be
aware that no pretrial agreement existed. This argument is particularly questionable given that the convening
authority who took action had taken command only weeks prior to this trial. His predecessor in command referred
charges and was the convening authority who would have acted on any pretrial agreement offer.


                                                      4                                            ACM 38481
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).4

                                                   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
  Additionally, we note that this represents the third case we have reviewed in recent weeks involving similar errors
in the recommendation from this staff judge advocate. See United States v. LeBlanc, __ M.J. ___ (A.F. Ct. Crim.
App. 2015); United States v. Rodriguez, ACM 38519 (A.F. Ct. Crim. App. 14 April 2015) (unpub. op.).


                                                         5                                              ACM 38481
