          ****CORRECTED COPY – DESTROY ALL OTHERS****



                UNITED STATES AIR FORCE
               COURT OF CRIMINAL APPEALS
                         ________________________

                             No. ACM S32353
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Ianna A. BELTRAN
                  Airman (E-2), U.S. Air Force, Appellant
                         ________________________

          Appeal from the United States Air Force Trial Judiciary
                           Decided 19 April 2017
                         ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 2 months, and
reduction to E-1. Sentence adjudged 28 August 2015 by SpCM convened at
Nellis Air Force Base, Nevada.
For Appellant: Captain Annie W. Morgan, USAF.
For Appellee: Lieutenant Colonel Jennifer A. Porter, USAF; Gerald R. Bruce,
Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Chief Judge DREW
and Senior Judge J. BROWN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

MINK, Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with her pleas and in accordance with a pretrial
agreement (PTA), of wrongful distribution of Tylenol with codeine, a Schedule
                     United States v. Beltran, No. ACM S32353
                 (reh)

III controlled substance, on divers occasions, wrongful use of lysergic acid di-
ethylamide (LSD), and wrongful use of psilocybin, each in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The ad-
judged and approved sentence included a bad-conduct discharge, confinement
for two months, and reduction to the grade of E-1.1
    Appellant raises two issues on appeal: (1) that Appellant was denied a
meaningful opportunity for clemency when a personal data sheet, containing
the incorrect amount of Appellant’s basic pay, was attached to the staff judge
advocate’s recommendation (SJAR) for review by the convening authority,
and (2) that the sentence is inappropriately severe.2 In addition, although not
raised by the parties, we also address an error in the SJAR regarding the
convening authority’s ability to disapprove the adjudged confinement. Find-
ing no relief is warranted, we affirm the findings and sentence as approved
by the convening authority.

                               I. BACKGROUND
    From on or about 15 December 2014 until on or about 15 February 2015,
Appellant sold 40 Tylenol with codeine pills, which she had been prescribed,
to A1C AS and AB KP. These sales took place on five or six separate occa-
sions at Appellant’s apartment in Las Vegas, Nevada. Appellant received a
total of approximately $100.00 from A1C AS and AB KP in exchange for the
pills.
    On 6 March 2015 in Appellant’s apartment, A1C AS and Appellant’s civil-
ian friend provided Appellant LSD, commonly known as “acid,” and psilocy-
bin, in the form of mushrooms. Appellant consumed both LSD and psilocybin.

                                II. DISCUSSION
A. Staff Judge Advocate’s Recommendation (SJAR)
    The SJAR shall be a concise written communication, setting forth, inter
alia, the findings, sentence, and confinement credit to be applied; a copy or
summary of the PTA; and the staff judge advocate’s (SJA’s) concise recom-
mendation. R.C.M. 1106(d)(3). The SJAR should also contain, as an attach-
ment, a copy of the personal data sheet (PDS) of the accused admitted at tri-


1The PTA between Appellant and the convening authority provided the latter would
approve no confinement in excess of two months, but included no other limitations on
the sentence that could be approved. Accordingly, the PTA had no impact on the con-
vening authority’s ability to approve the adjudged sentence.
2 The second issue was raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).


                                         2
                    United States v. Beltran, No. ACM S32353
                (reh)

al. Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶
9.16 (6 Jun 2013). Before taking action on a sentence, a convening authority
must consider the SJAR. R.C.M 1107(b)(3)(ii).
    In this case, the SJAR contained two errors: first, the SJA attached a PDS
to the SJAR that was not a copy of the one admitted at trial and which stated
the wrong amount for Appellant’s basic pay, and second, the SJAR incorrectly
advised the convening authority regarding his power to reduce Appellant’s
term of confinement. Even though the SJAR was served on Appellant and her
counsel, she did not note these discrepancies in her clemency submission and
the SJAR addendum did not correct either of these errors.
    The “proper completion of post-trial processing is a question of law, which
this court reviews de novo.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F.
Ct. Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F.
Ct. Crim. App. 2004)). “If defense counsel does not make a timely comment on
an omission [or error] in the [SJAR], the error is waived unless it is prejudi-
cial under a plain error analysis.” United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005) (citing R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)). Under a plain error analysis, Appellant must persuade this
court that: “(1) there was an error; (2) it was plain or obvious; and (3) the er-
ror materially prejudiced a substantial right.” Id. (quoting Kho, 54 M.J. at
65).
     The standard for meeting the test of prejudice is low, requiring only “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)). “The low threshold for
material prejudice with respect to an erroneous post-trial recommendation
. . . is designed to avoid undue speculation as to how certain information
might impact the convening authority’s exercise of such broad discretion.”
Scalo, 60 M.J. at 437. While the threshold is low, there must be some colora-
ble showing of possible prejudice. Id.
    Because Appellant did not object to the SJAR, we test the erroneous ad-
vice for plain error. We consider each error in turn.
   1. Personal Data Sheet Error
    The fact that the PDS attached to the SJAR was not a copy of the one in-
troduced at trial was clear error, as was the fact that Appellant’s basic pay
was incorrect on the PDS attached to the SJAR. Even a cursory review of the
PDS and the information contained thereon should have revealed that it was
not the correct PDS.
   However, we do not find a colorable showing of possible prejudice. First,
even though the PDS attached to the SJAR was not a copy of the one intro-
duced at trial, all of the information on the PDS, except for the basic pay, was


                                       3
                    United States v. Beltran, No. ACM S32353
                (reh)

the same information on the PDS introduced at trial. Second, as noted above,
the only incorrect information on the PDS attached to the SJAR was Appel-
lant’s basic pay. Appellant’s basic pay was incorrectly stated as “$1938.00”
instead of the correct amount of “$1734.00.” Since the sentence approved by
the convening authority included no forfeiture of pay, it is highly unlikely the
difference in the amount of basic pay on the PDS would have had any impact
on the convening authority’s decision. Finally, the only restriction imposed by
the PTA on the convening authority’s ability to approve any adjudged sen-
tence up to the jurisdictional maximum imposable in a special court-martial,
was a limitation of two months on any confinement. Given that the sentence
adjudged by the court-martial included only two months of confinement, re-
duction to E-1, and a bad-conduct discharge, the convening authority was un-
likely to find the sentence oppressive or deem clemency appropriate. Consid-
ering these circumstances together, we find no colorable showing the PDS
error may have prejudiced the result of Appellant’s clemency request, and
therefore we find no plain error that warrants relief.
   2. Authority to Disapprove Confinement
   Though not raised by Appellant, we note that the SJAR also erroneously
advised the convening authority that he had no authority to “disapprove,
commute, or suspend in whole or in part [the] confinement” adjudged by the
court-martial. This statement was clear error.
    The National Defense Authorization Act for Fiscal Year 2014 (FY14
NDAA) substantially modified the convening authority’s ability to approve
findings and sentences under Article 60, UCMJ, 10 U.S.C. § 860. FY14
NDAA, Pub. L. No. 113-66, § 1702, 127 Stat. 955–58 (2013). The convening
authority can no longer “disapprove, commute, or suspend in whole or in part
an adjudged sentence of confinement for more than six months or a sentence
of dismissal, dishonorable discharge, or bad conduct discharge” except in cer-
tain circumstances not present here. Id. at 956. These changes became effec-
tive on 24 June 2014 and were applicable to Appellant since her offenses oc-
curred after the act’s effective date. Id. at 958.
    While Appellant’s adjudged bad-conduct discharge could not be disap-
proved by the convening authority, the FY14 NDAA provisions placed no re-
strictions on the convening authority’s ability to disapprove the confinement
portion of Appellant’s sentence since the confinement adjudged by the court-
martial was less than six months.
   Again, however, we do not find a colorable showing of possible prejudice.
Significantly, Appellant does not claim any prejudice as a result of this error.
In Appellant’s clemency submission, she requested disapproval of the ad-
judged reduction in rank, but she did not request disapproval of the adjudged
confinement. Appellant’s trial defense counsel advised the convening authori-

                                       4
                    United States v. Beltran, No. ACM S32353
                (reh)

ty that Appellant “would have simply asked that [the convening authority]
disapprove confinement in excess of one month” as “justifiable and appropri-
ate on its own merits,” but then observed that such request would “offer[ ] no
meaningful opportunity for relief” for Appellant since she would have served
her period of confinement prior to action by the convening authority. Instead,
Appellant only requested that the convening authority disapprove the reduc-
tion in rank. Given the fact that the term of confinement was “not of such
unusual duration or severity” and that the PTA between the convening au-
thority and Appellant provided the convening authority could have approved
confinement up to two months, we are not persuaded there was a reasonable
likelihood that the convening authority would have exercised his clemency
powers to disapprove any portion of the confinement, even had he been cor-
rectly advised that he could do so. See United States v. Carnio-Navarro, No.
ACM S32340, 2017 CCA LEXIS 90 (A.F. Ct. Crim. App. 9 Feb. 2017) (unpub.
op.); United States v. Books, No. ACM S32369, 2017 CCA LEXIS 226 (A.F. Ct.
Crim. App. 31 Mar. 2017 (unpub. op.). We find this of particular import since
Appellant did not specifically request disapproval of any portion of confine-
ment. Considering all of these factors, we find no colorable showing that the
SJA’s erroneous advice regarding the ability to disapprove any confinement
may have prejudiced the result of Appellant’s clemency request, and there-
fore, we find no plain error that warrants relief.
B. Sentence Appropriateness
   Appellant also asserts that her sentence was inappropriately severe. We
disagree.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant was convicted of selling her prescription medicine to two other
Airmen over a period of two months, resulting in her financial gain. She also
used two different illegal drugs in an attempt to celebrate her upcoming
birthday. Both at trial and on appeal, Appellant focused on the tragic circum-
stances of her childhood. She also points to mental health issues and alcohol
abuse as additional mitigating factors.
    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other mat-
ters contained in the record of trial, including Appellant’s history of discipli-

                                       5
                   United States v. Beltran, No. ACM S32353
               (reh)

nary infractions. Appellant was subject to the statutory maximum of a special
court-martial: 12 months of confinement, reduction to E-1, forfeiture of two-
thirds’ pay per month for 12 months, and a bad-conduct discharge. However,
her PTA limited the amount of confinement that the convening authority
would approve to two months. The approved sentence of a bad-conduct dis-
charge, two months of confinement, and reduction to E-1, was within the
terms of the PTA. While we acknowledge the tragic circumstances of Appel-
lant’s childhood, the sentence properly addressed Appellant’s serious miscon-
duct, was legally appropriate based on the facts and circumstances of this
particular case, and was not inappropriately severe.

                            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). Accordingly, the
findings and the sentence are AFFIRMED.


                FOR THE COURT



                MICAH L. SMITH
                Deputy Clerk of the Court




                                     6
