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

                             No. ACM S32566
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Dillon R. WISEMAN
          Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 4 August 2020
                         ________________________

Military Judge: Jennifer E. Powell (motions); John C. Degnan.
Approved sentence: Bad-conduct discharge, confinement for 40 days, and
reduction to E-2. Sentence adjudged 27 November 2018 by SpCM con-
vened at Edwards Air Force Base, California.
For Appellant: Major Yolanda D. Miller, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge D. JOHNSON delivered the opinion of the court, in which Senior
Judge MINK and Senior Judge LEWIS joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                           ________________________

D. JOHNSON, Judge:
    A special court-martial composed of a military judge convicted Appellant,
in accordance with his pleas and a pretrial agreement (PTA), of one specifica-
tion of wrongful use of tetrahydrocannabinol (THC) on divers occasions in vio-
lation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                    United States v. Wiseman, No. ACM S32566


§ 912a. 1 The adjudged sentence consisted of a bad-conduct discharge, confine-
ment for 45 days, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged, but then pursuant to the military judge’s
order credited Appellant “one stripe” and five days of confinement based upon
a prior nonjudicial punishment (NJP) action under Article 15, UCMJ, 10
U.S.C. § 815. 2 The PTA had no impact on the convening authority’s ability to
approve the adjudged sentence. 3
    Appellant raises four assignments of error on appeal: (1) whether the mili-
tary judge erred in admitting the testimony of the Government’s rebuttal sen-
tencing witness contrary to Rule for Courts-Martial (R.C.M.) 1001(c)(2)(C); (2)
whether the assistant trial counsel erred during the Government’s sentencing
argument; (3) whether the record of trial (ROT) is incomplete; and (4) whether
Appellant is entitled to new post-trial processing because the staff judge advo-
cate’s recommendation (SJAR) failed to correctly advise the convening author-
ity of the maximum imposable sentence and his ability to disapprove, com-
mute, or suspend in whole or in part the term of confinement. 4 Finding no error
materially prejudicial to a substantial right of Appellant, we affirm the find-
ings and sentence.

                                   I. BACKGROUND
   Appellant’s THC use began in approximately December 2017 with Appel-
lant smoking marijuana several times with a fellow Airman in his unit. 5 Dur-
ing the charged timeframe, on divers occasions, Appellant ingested THC by



1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016
ed.).
2 In the NJP action, Appellant was found to have committed the offense of wrongful
use of THC between on or about 19 February 2018 and on or about 19 March 2018,
which overlapped with the charged timeframe before the court-martial. The military
judge awarded Appellant a “one-stripe” credit based on his prior NJP of one reduction
in grade, and five days confinement credit based on the NJP reprimand. See United
States v. Pierce, 27 M.J. 367 (C.A.A.F. 1989).
3The PTA provided that the convening authority would approve no confinement in
excess of 90 days, but included no other limitations on the sentence he could approve.
4   The language of Appellant’s assignments of error have been reworded.
5 The following factual summary is drawn primarily from the stipulation of fact Appel-
lant signed in accordance with his PTA. Appellant stipulated THC is “believed to be
the main ingredient that produces mood-altering effects” in marijuana.




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                  United States v. Wiseman, No. ACM S32566


several methods including: (1) smoking marijuana cigarettes; (2) smoking ma-
rijuana from a bong; and (3) ingesting cannabis oil containing THC using a
handheld vaporizer device or “vape pen.” Appellant facilitated his acquisition
of THC by obtaining a medical marijuana card in the state of California.
    On 19 March 2018, Appellant submitted a urine sample pursuant to a “ran-
dom unit inspection” at Edwards Air Force Base (AFB) which subsequently
tested positive for THC above the Department of Defense (DoD) cutoff level of
15 nanograms per milliliter (ng/ml). On 3 April 2018, after waiving his rights
pursuant to Article 31, UCMJ, 10 U.S.C. § 831, Appellant spoke with Security
Forces investigators at Edwards AFB, provided a sworn statement regarding
his uses, and consented to a search of his dormitory room on base and cellular
telephone. During the search of Appellant’s dormitory room, investigators
seized cannabis oil and a marijuana-grinding device which he received as a free
gift when making his online purchase of the cannabis oil. Later, Appellant
tested positive for THC on six different occasions from samples collected be-
tween 3 April 2018 and 18 July 2018. 6 Appellant’s sample collected on 17 Au-
gust 2018 tested negative.

                                  II. DISCUSSION
A. Government’s Rebuttal Witness
    1. Additional Background
   During the Defense’s presentencing case, Appellant provided both an oral
and written unsworn statement pursuant to R.C.M. 1001(c)(2)(C). Appellant
wrote in his unsworn statement: “Not long after I got back to Edwards [AFB],
there was a mass drug-test. I knew I was going to fail after what I had done.
After I failed, I was called in to be investigated by security forces and [the Air
Force Office of Special Investigations]. I cooperated with them the best that I
could.” (Emphasis added).
    In rebuttal to Appellant’s unsworn statement, the Government called In-
vestigator JS from the Security Forces squadron at Edwards AFB to testify.
The Defense did not object. Investigator JS testified that he interviewed Ap-
pellant about his drug use. The assistant trial counsel then handed Defense
Exhibit E, Appellant’s written unsworn statement, to Investigator JS to re-
view, again without objection.




6According to the stipulation of fact, Appellant’s urine tested positive for THC, above
the DoD cutoff level, six additional times including: 3 April at 226 ng/ml; 26 April at
201 ng/ml; 9 May at 26 ng/ml; 24 May at 166 ng/ml; 11 June at 418 ng/ml; and 18 June
at 375 ng/ml.


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                 United States v. Wiseman, No. ACM S32566


    After Investigator JS reviewed the last page of Appellant’s written unsworn
statement, the following dialogue occurred:
       [ATC (assistant trial counsel):] Investigator [JS], although [Ap-
       pellant] eventually cooperated with you during that investiga-
       tion, did he do it to the best of his ability at first?
       [Investigator JS:] No.
       DC [trial defense counsel]: Objection, Your Honor. I don’t know
       how you could determine whether someone has cooperated to the
       best of their ability. I don’t know if there is a foundation neces-
       sarily for that determination.
       MJ [military judge]: So you need the foundation, correct, de-
       fense?
       DC: Yes, sir.
       MJ: All right. Government, what is your response?
       ATC: May I have minute, Your Honor?
       MJ: Yes, you may have a moment.
       [The assistant trial counsel conferred with co-counsel.]
       MJ: Government, what is your response?
       ATC: Your Honor, the government can ask a few more questions.
       MJ: All right. I will sustain the defense’s objection. Government,
       you may lay a foundation. You may continue, government.
       [STC (senior trial counsel):] All right. Investigator [JS], during
       this investigation, was [Appellant] cooperative with you?
       [Investigator JS:] At time [sic], yes.
       [STC:] And what about those other times?
       [Investigator JS:] He was asked specifically if he knew about an-
       other Airman who he potentially was smoking with. He initially
       had denied the allegation, but then admitted that he did smoke
       with the other Airman and knew about it.
       [STC:] Okay. And was there any amount of resistance to coming
       forth with this information?
       [Investigator JS:] Yes.
       [STC:] Can you describe that?
       [Investigator JS:] So during the course of the interview, I had
       asked him again about the other Airman that he potentially had

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                 United States v. Wiseman, No. ACM S32566


       smoked with. He did resist and said that he didn’t know any-
       thing about [sic]. I then asked for consent to look at his tele-
       phone—at his cell phone to look at messages between this other
       Airman. He had consented to this. After looking through the
       messages, I found messages between him and this other Airman,
       and did talk about a number of different things in code words for
       what is marijuana to include the words “green” and things of
       that nature. After confronting him more, he then later admitted,
       yes, he did know the Airman that was in question and that he
       did smoke with him.
(Emphasis added).
    Appellant argues the military judge abused his discretion because Appel-
lant’s statement that he “cooperated with [law enforcement] the best that I
could” was the expression of an opinion and therefore not a rebuttable fact in
accordance with R.C.M. 1001(c)(2)(C). Appellant contends that “the most In-
vestigator JS was able to do was rebut Appellant’s opinion with a speculative
opinion of his own.” Appellant avers that “Investigator JS would never have
the personal knowledge necessary to rebut an opinion except to lay foundation
and supply his own opinion,” which Appellant avers is not permissible. Finally,
Appellant contends that he was prejudiced by this error because it substan-
tially influenced his adjudged sentence.
    The Government responds that the correct standard of review is plain er-
ror—not abuse of discretion—and the statement made by Appellant was a
statement of fact and was properly rebutted. The Government also contends
that even if this court finds error, Appellant did not suffer material prejudice.
We agree with the Government that the standard of review is plain error; that
Appellant’s statement was a properly rebutted statement of fact; and that Ap-
pellant suffered no material prejudice.
   2. Law
    R.C.M. 1001(c)(2)(C) states “[t]he accused may make an unsworn statement
and may not be cross-examined by the trial counsel upon it or examined upon
it by the court-martial. The prosecution may, however, rebut any statement of
facts therein.”
    We review “a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Barker, 77 M.J. 377, 383 (C.A.A.F. 2018) (quoting
United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)). Military judges
abuse their discretion when their “factual findings are clearly erroneous, view
of the law is erroneous, or decision is outside of the range of reasonable
choices.” United States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019) (citing
United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016)). However, in the absence


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                  United States v. Wiseman, No. ACM S32566


of an objection at trial, we review claims of erroneous admission of evidence for
plain error, which is established when: (1) there was error; (2) the error was
plain, clear, or obvious; and (3) the error resulted in material prejudice to the
appellant’s substantial rights. See United States v. Hardison, 64 M.J. 279, 281
(C.A.A.F. 2007) (citation omitted). An appellant “has the burden of persuading
the court that the three prongs of the plain error test are satisfied.” Id. (citation
omitted).
    If evidence is improperly admitted during sentencing proceedings, “the test
for prejudice is whether the error substantially influenced the adjudged sen-
tence.” Barker, 77 M.J. at 384 (internal quotation marks and citation omitted).
We evaluate the relative strength of the parties’ cases along with the materi-
ality and quality of the evidence in question. Id. (citation omitted). “An error is
more likely to be prejudicial if the fact was not already obvious from the other
evidence presented at trial and would have provided new ammunition against
an appellant.” Id. (citation omitted).
    “When the issue of plain error involves a judge-alone trial, an appellant
faces a particularly high hurdle.” United States v. Robbins, 52 M.J. 455, 457
(C.A.A.F. 2000). As the sentencing authority, military judges are presumed to
know the law and apply it correctly. United States v. Sanders, 67 M.J. 344, 346
(C.A.A.F. 2009) (citations omitted). That presumption holds absent clear evi-
dence to the contrary. Id. (citations omitted).
    In United States v. Cleveland, the appellant made an oral unsworn state-
ment and told the court members, “Although I have not been perfect, I feel that
I have served well and would like an opportunity to remain in service, regain
the trust and respect of my co-workers and supervisors.” 29 M.J. 361, 362
(C.M.A. 1990) (emphasis added). The United States Court of Military Appeals
(CMA), the predecessor to the United States Court of Appeals for the Armed
Forces (CAAF), held that the accused’s statement was not a statement of fact,
but “more in the nature of an opinion—indeed, an argument.” Id. at 363–64.
Additionally, the CMA was “unable to conclude that the evidence of appellant’s
uncharged misconduct tended to ‘explain’ the remark that he had made in his
unsworn statement.” Id. at 364.
    In United States v. Manns, the appellant made an oral unsworn statement
and told the military judge, “I have tried throughout my life, even during child-
hood, to stay within the laws and regulations of this country.” 54 M.J. 164, 165
(C.A.A.F. 2000). The CAAF distinguished this statement from that made in
Cleveland, stating, “Unlike Cleveland . . . this case involves appellant’s asser-
tion of fact that he had tried to obey the law. Thus, we hold that the prosecution
was entitled to produce evidence that appellant had not tried, or at least had
not tried very hard.” Id. at 166.



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                  United States v. Wiseman, No. ACM S32566


   3. Analysis
       a. Standard of Review
    As an initial matter we must resolve the discrepancy between the parties
on the correct standard of review. Appellant argues abuse of discretion is ap-
plicable and the Government argues plain error is the correct standard of re-
view. As noted above, Appellant’s initial objection to foundation was sustained
by the military judge, and there were no further defense objections during the
testimony of JS. As such, the applicable standard is plain error.
       b. Rebuttal Testimony
    We disagree with Appellant’s contention that Investigator JS was unable
to rebut whether Appellant “cooperated with law enforcement the best that
[he] could.”
    We find Appellant’s claim of cooperation to the best of his ability constitutes
an assertion of fact. We agree with the Government that Appellant’s statement
that he cooperated the best that [he] could is analogous to the appellant’s state-
ment in Manns that he tried to obey the law. 54 M.J. at 165. And unlike the
statement by the appellant in Cleveland, Appellant’s statement of his limited
ability to cooperate was more contrary to the rebuttal evidence that the CMA
found was improper rebuttal. Investigator JS explained that Appellant re-
sisted assisting in the investigation of another Airman because he was initially
unwilling to do so, not because he was incapable due to some circumstance
beyond his ability to control. Appellant initially denied knowing of another Air-
man’s drug use and smoking with that Airman. It was not until Investigator
JS confronted Appellant with messages with this other Airman on his phone
with code words indicating marijuana that Appellant admitted he knew of this
Airman’s drug use and had in fact smoked with him. This testimony directly
rebuts the statement of fact that Appellant “cooperated with [law enforcement]
the best that [he] could.” If Appellant had stated “I feel” or “I believe I cooper-
ated” that might have been indicative of an opinion, not a fact—but he did not.
The Government was entitled to produce evidence that initially lying to law
enforcement is not cooperating to the best of one’s ability. Since the testimony
was proper rebuttal pursuant to R.C.M. 1001(c)(2)(C) the military judge did
not commit error in allowing the testimony, much less plain error.
       c. Prejudice
    Assuming arguendo that it was plain error to consider the testimony, we
disagree with Appellant that the testimony had a substantial influence on his
adjudged sentence. We apply the factors cited in Barker—the relative strength
of the parties’ cases, along with the materiality and quality of the evidence—
below. See 77 M.J. at 384 (citations omitted).



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                 United States v. Wiseman, No. ACM S32566


    The Government’s case was strong. Appellant’s misconduct could have ex-
posed him to the jurisdictional maximum of a special court-martial consisting
of a bad-conduct discharge, 12 months’ confinement, forfeiture of two-thirds
pay per month for 12 months, and reduction to the grade of E-1. Trial defense
counsel successfully negotiated a pretrial agreement which limited Appellant's
confinement exposure to 90 days. Appellant’s adjudged sentence, before the
Pierce credit, was a bad-conduct discharge, 45 days confinement, and reduction
to the grade of E-1. United States v. Pierce, 27 M.J. 367 (C.A.A.F. 1989).
    Appellant’s guilt was laid out in detail in the stipulation of fact which
demonstrated that Appellant tested positive for THC on six occasions after his
initial positive drug test from the unit inspection on 19 March 2018, and five
occasions after his interview with investigators on 3 April 2018. Appellant’s
last positive urinalysis was from a sample collected on 18 July 2018. Appel-
lant’s commander testified that Appellant had low to medium rehabilitation
potential, and testified concerning the impact of Appellant’s THC use on the
unit. His commander further testified that his duty performance was “right in
the middle of the line” and elaborated further “he wasn’t the sharpest Airman
but he certainly wasn’t the worst performance wise.” Finally, the Government
admitted two letters of reprimand for Appellant’s failure to attend mandatory
fitness formations and three enlisted performance reports which all contained
negative performance indicators.
    The Defense’s case, which was comparatively weak, consisted of Appel-
lant’s oral and written unsworn statements; two character statements; and
various pictures of Appellant during his military service and with his family.
We acknowledge the mitigating testimony from Appellant’s commander that
“[Appellant’s] mental health history, to me, started well before preferring
charges or even testing positive for THC.” We also recognize that Appellant
stated he used THC only after seeking mental health treatment, and Appel-
lant’s cooperation with law enforcement as noted in Investigator JS’s testi-
mony. However, despite this information from Appellant before the military
judge, the Government’s evidence in aggravation—including the impact on Ap-
pellant’s unit, Appellant’s rehabilitation potential, and testing positive for
THC six times after the initial unit urinalysis test and five times after his in-
terview with law enforcement—overpowers the Defense’s case.
    The final two factors of the prejudice analysis, materiality and quality, re-
quire us to essentially assess “how much the erroneously admitted evidence
may have affected the court-martial.” See United States v. Washington, ___
M.J. ___, No. 19-0252, 2020 CAAF LEXIS 296, at *12 (C.A.A.F. 29 May 2020).
We are to consider the particular factual circumstances of each case. Two con-
siderations CAAF discussed in Washington that also are relevant here include
the extent to which (1) the Government referred to the evidence in argument



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                   United States v. Wiseman, No. ACM S32566


and (2) the evidence contributed to the Government’s case. See id. (citations
omitted).
    As for the first consideration—the extent to which the Government referred
to the evidence in argument—the Government did not argue the rebuttal evi-
dence at all during its sentencing argument. The assistant trial counsel pro-
vided other justifications for her sentencing recommendation focusing mainly
on Appellant’s continued use of marijuana after his interview with law enforce-
ment. As to the second consideration—the extent to which the evidence con-
tributed to the Government’s case—any contribution it made was marginal in
this judge-alone case.
    As the CAAF did in Barker, we find it “highly relevant” that this case was
tried before a military judge who is presumed to know the law. 77 M.J. at 384
(citations omitted). After evaluating Appellant’s case using the four factors
from Barker, we do not find that the assumed error substantially influenced
the adjudged sentence. See id. (citation omitted).
B. Improper Argument
    Appellant alleges assistant trial counsel’s argument was improper because
(1) the Government argued for double punishment by asking the military judge
to punish Appellant for the same offense for which he had received NJP which
was improper and (2) the Government argued facts not in evidence. 7 For the
purpose of analysis we assume the Government argued for double punishment
and that it was plain or obvious error. Further, we find the Government argued
facts that were not in evidence during its sentencing argument and it was plain
or obvious error. However, we do not find Appellant suffered material preju-
dice.
    1. Additional Background
        a. Double Punishment
   Appellant pleaded guilty to using THC on divers occasions between on or
about 1 December 2017 and on or about 31 July 2018 in violation of Article
112a, UCMJ. During presentencing, the Government offered into evidence


7 Appellant contends that the Government should not have offered the NJP action be-
cause they are not the gatekeeper of that evidence. This contention does not account
for trial defense counsel’s statement that he did not object to the admissibility of the
NJP action “for the purposes of getting the credit for the Article 15 punishment” which
we find waived the issue of the NJP’s admissibility. See United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009). We acknowledge our discretion to pierce waiver to cor-
rect a legal error under Article 66, UCMJ, 10 U.S.C. § 866. See generally United States
v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018). We decline to disturb Appellant’s
waiver.


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                 United States v. Wiseman, No. ACM S32566


Prosecution Exhibit (P.E.) 4 for identification which was Appellant’s “person-
nel information file.” Included in P.E. 4 was an NJP action in which Appellant’s
commander found he used THC between on or about 19 February 2018 and on
or about 19 March 2018 in violation of Article 112a, UCMJ. After finding Ap-
pellant committed the offense, his commander reduced Appellant one grade
from Senior Airman to Airman First Class, and issued a reprimand. Prosecu-
tion exhibit 4 was admitted into evidence by the military judge without objec-
tion.
    After the NJP was admitted, the Government assured the military judge
that it was not seeking to punish Appellant for the timeframe included within
the NJP action. Prior to argument on sentencing, the military judge stated,
“Government, I won’t consider double punishment in this case, and I appreci-
ate that concern and bringing that to my attention.”
    Assistant trial counsel began her sentencing argument by stating, “Your
Honor, this isn’t just a case about at least eight months of marijuana use . . . .
We are here because [Appellant] flagrantly ignored the military standards and
broke the law for at least eight months.” (Emphasis added). Later she argued
that Appellant broke the law repeatedly for at least eight months and “[e]ight
months is a long moment.” (Emphasis added). Finally, she argued that Appel-
lant “needs to feel the consequences of his actions. [Appellant] broke the law
for almost a year.” (Emphasis added). Assistant trial counsel’s argument failed
to exclude, or clarify, from the eight-month calculation the one-month
timeframe for which Appellant received the NJP action.
    There was no objection from trial defense counsel to any portion of assistant
trial counsel’s argument. The Government argued for one month of confine-
ment, reduction to the grade of E-1, and a bad-conduct discharge as an appro-
priate sentence.
       b. Facts Not in Evidence
    Assistant trial counsel argued during her sentencing argument, “[Appel-
lant’s] commander told you she didn’t know what else to do in order to get [Ap-
pellant] to stop using drugs; and that when she restricted [Appellant] to base
on August 9th that is why she restricted him to base . . . .” Although Appellant’s
squadron commander testified during presentencing, she did not testify about
Appellant’s restriction to base or her rationale for restricting Appellant. The
transcript demonstrates that it was Appellant who discussed his restriction to
base during his oral unsworn statement while explaining the time period of
the restriction and the fact he never violated the restriction. Appellant never
discussed the commander’s rationale for the restriction.




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                  United States v. Wiseman, No. ACM S32566


   2. Law
     Improper argument is a question of law that this court reviews de novo.
United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011) (citation omitted). If
a proper objection is not made we test for plain error. United States v. Halpin,
71 M.J. 477, 479 (C.A.A.F. 2013) (citation omitted). “Plain error occurs when
(1) there is error, (2) the error is plain or obvious, and (3) the error results in
material prejudice to a substantial right of the accused.” United States v.
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citation omitted). The burden of
proof under a plain error review is on the appellant. See United States v. Sew-
ell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citation omitted).
    “Improper argument is one facet of prosecutorial misconduct.” Sewell, 76
M.J. at 18 (citation omitted). “Prosecutorial misconduct occurs when trial coun-
sel ‘overstep[s] the bounds of that propriety and fairness which should charac-
terize the conduct of such an officer in the prosecution of a criminal offense.’”
United States v. Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014) (alteration in orig-
inal) (quoting Fletcher, 62 M.J. at 179). Such misconduct “can be generally de-
fined as action or inaction by a prosecutor in violation of some legal norm or
standard, [for example], a constitutional provision, a statute, a [Manual for
Courts-Martial] rule, or an applicable professional ethics canon.” Id. at 160
(quoting United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)).
   Improper argument does not automatically require a new trial or the dis-
missal of the charges against the accused. Fletcher, 62 M.J. at 178 (citation
omitted). Relief will be granted only if the trial counsel’s misconduct “actually
impacted on a substantial right of an accused (i.e., resulted in prejudice).” Id.
(quoting Meek, 44 M.J. at 5).
    The CAAF recommended balancing three factors to assess whether miscon-
duct impacted the appellant’s substantial rights and the integrity of his trial:
“(1) the severity of the misconduct, (2) the measures adopted to cure the mis-
conduct, and (3) the weight of the evidence supporting the conviction.” Id. at
184. The Fletcher court did not articulate how much weight to give each factor.
United States v. Pabelona, 76 M.J. 9, 12 (C.A.A.F. 2017).
    The CAAF extended the Fletcher test to improper sentencing argument in
Halpin, 71 M.J. at 480. In applying the Fletcher factors in the context of an
allegedly improper sentencing argument, we consider whether “‘trial counsel’s
comments, taken as a whole, were so damaging that we cannot be confident’
that [the appellant] was sentenced ‘on the basis of the evidence alone.’” Id. at
480 (alteration in original) (quoting United States v. Erickson, 65 M.J. 221, 223
(C.A.A.F. 2007)). The CAAF in United States v. Frey framed the third Fletcher
factor as “the weight of the evidence supporting the sentence.” 73 M.J. 245, 249
(C.A.A.F. 2014) (citation omitted).



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                  United States v. Wiseman, No. ACM S32566


    Trial counsel is entitled “to argue the evidence of record, as well as all rea-
sonable inferences fairly derived from such evidence.” United States v. Baer,
53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel may also ar-
gue for an appropriate sentence, recommend a specific lawful sentence, and
may also refer to generally accepted sentencing philosophies, including reha-
bilitation of the accused, general deterrence, specific deterrence of misconduct
by the accused, and social retribution. R.C.M. 1001(g).
   As the CAAF has explained:
       When the issue of plain error involves a judge alone trial, an ap-
       pellant faces a particularly high hurdle. A military judge is pre-
       sumed to know the law and apply it correctly, is presumed capa-
       ble of filtering out inadmissible evidence, and is presumed not to
       have relied on such evidence on the question of guilt or inno-
       cence. . . . As a result, “plain error before a military judge sitting
       alone is rare indeed.”
Robbins, 52 M.J. at 457 (quoting United States v. Raya, 45 M.J. 251, 253
(C.A.A.F. 1996) (citations omitted)). Similarly, we presume the military judge
is able to filter out improper argument in the absence of evidence to the con-
trary. United States v. McCall, No. ACM 39548, 2020 CCA LEXIS 97, at *20
(A.F. Ct. Crim. App. 26 Mar. 2020) (unpub. op.).
    The CAAF, in Pierce, addressed the requirement in Article 15(f), UCMJ, 10
U.S.C. § 815(f), to consider in mitigation of the sentence any prior NJP action
for the same offense introduced into evidence by the accused. Such considera-
tion is designed to ensure the accused is not punished twice for the same of-
fense. 27 M.J. at 369.
   3. Analysis
       a. Double Punishment
    We assume without deciding that assistant trial counsel improperly argued
for double punishment. We will address whether Appellant suffered prejudice
from this improper argument after discussing Appellant’s contention that as-
sistant trial counsel also improperly argued facts not in evidence.
       b. Facts Not in Evidence
    We find that the assistant trial counsel argued facts not in evidence. Ap-
pellant’s squadron commander never testified concerning Appellant’s re-
striction to base. Although Appellant discussed the topic in his oral unsworn
statement, he did not address his commander’s rationale for the restriction.
Assistant trial counsel’s argument that Appellant’s commander restricted him
to base in order to stop him from using drugs was erroneous; it was plain or
obvious; and therefore we test for prejudice.


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                 United States v. Wiseman, No. ACM S32566


       c. Prejudice
    “Though Fletcher recommended a balancing of all three factors, it did not
assign a particular value to each or comment on whether they should be
weighed equally.” Frey, 73 M.J. at 251. In this case, considering the cumulative
impact of arguing for double punishment and facts not in evidence in the con-
text of the trial as a whole, we find as the CAAF did in Halpin that the third
Fletcher factor—the weight of the evidence— weighs so heavily in favor of the
Government that we are confident that Appellant was sentenced on the basis
of the evidence alone. See Halpin, 71 M.J. at 480.
    Appellant’s misconduct could have exposed him to the jurisdictional maxi-
mum of a special court-martial including a bad-conduct discharge, 12 months’
confinement, forfeiture of two-thirds pay per month for 12 months, and reduc-
tion to the grade of E-1. Trial defense counsel successfully negotiated a pretrial
agreement which limited Appellant’s confinement exposure to 90 days. Appel-
lant’s adjudged sentence, before the Pierce credit, was a bad-conduct discharge,
45 days’ confinement, and reduction to the grade of E-1.
    As stated above, the uncontroverted evidence against Appellant, as admit-
ted in his stipulation of fact, showed that Appellant tested positive five addi-
tional times for THC for over three months after his 3 April 2018 interview
with law enforcement investigators. In recommending a sentence of a bad-con-
duct discharge, at least one month of confinement, and reduction to the grade
of E-1, assistant trial counsel focused her argument on Appellant’s continuing
positive urinalysis results. Trial defense counsel in his own argument recom-
mended a sentence of up to two months’ confinement, one month of hard labor
without confinement, and a reduction in grade that the military judge felt was
appropriate. Trial defense counsel focused his argument on Appellant’s “clini-
cal decision” to medicate himself after other efforts failed rather than “killing
himself.”
    Finally, and quite importantly, this was a military judge-alone trial and
the military judge is presumed to know what portions of argument are imper-
missible absent clear evidence to the contrary. See United States v. Bridges, 66
M.J. 246, 248 (C.A.A.F. 2008) (citations omitted). In this case, the military
judge stated on the record he was not going to doubly punish Appellant. Even
if each statement Appellant takes issue with was plain or obvious error, Ap-
pellant failed to establish that the weight of the evidence did not clearly sup-
port the adjudged sentence and is therefore not entitled to relief.
C. Record of Trial
   Appellant next asserts that the ROT is incomplete because two items were
missing: (1) a motion for release filed by Appellant’s initial trial defense coun-




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                   United States v. Wiseman, No. ACM S32566


sel, Captain (Capt) AD; and (2) an appellate exhibit consisting of slides assis-
tant trial counsel used in her sentencing argument. Appellant claims each of
these missing items are substantial—rendering the ROT incomplete—and as
a result requests this court set aside his bad-conduct discharge. While we find
the appellate exhibit of the sentencing argument slides is missing from the
authenticated record, we are not persuaded that the ROT is incomplete.
   1. Additional Background
       a. Motion
    According to the parties at trial, prior to his court-martial, Appellant re-
quested release of his trial defense counsel, Capt AD. Capt AD subsequently
filed a motion for release on 31 October 2018. That same day, the initial mili-
tary judge on Appellant’s case granted the motion.
    During Appellant’s court-martial the military judge informed Appellant of
his rights to counsel. When the military judge inquired by whom Appellant
wished to be represented, Appellant replied “By Capt [LL], sir.” The military
judge then asked, “And by Capt [LL] alone,” and Appellant replied, “Yes, sir.”
    Shortly afterwards while summarizing a previous conference held pursu-
ant to R.C.M. 802, the military judge asked Capt LL, “[I]t is also my under-
standing that you are not going to put into the record Capt [AD’s] motion; is
that correct?” Capt LL responded, “Yes, Your Honor.” The military judge then
said, “If you want to put that in the record that is fine defense, and if you don’t
that is fine as well. All right?” Capt LL then responded, “Thank you, Your
Honor.” There is no evidence in the record that Capt LL requested the motion
be marked as an appellate exhibit.
       b. Slides
   During trial, while still discussing the R.C.M. 802 conference referenced
above, the military judge stated the following:
       The [G]overnment also informed me that they had requested a
       break prior to their sentencing argument, which you may have,
       to set up your slides. I also requested the [G]overnment just to
       consult with the court reporter to ensure that the slide is marked
       as an appropriate appellate exhibit for the record. I have a copy
       of the slide, [G]overnment, so I don’t need a copy, but please pro-
       vide a copy to the [D]efense if you have not already done so.
   2. Law
   A complete record of the proceedings and testimony shall be prepared in
each special court-martial where the adjudged sentence includes, inter alia, a
bad-conduct discharge. Article 54, UCMJ, 10 U.S.C. § 854. A complete record



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                 United States v. Wiseman, No. ACM S32566


of trial includes all appellate exhibits, or an adequate substitute with the per-
mission of the military judge. R.C.M. 1103(b)(2)(D)(v), (c)(1) (emphasis added);
United States v. Gaskins, 72 M.J. 225, 230 (C.A.A.F. 2013).
    Whether an omission from a ROT is substantial is a question of law we
review de novo. United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). A rec-
ord of trial that is missing exhibits may be substantially incomplete. Id. at 26
(holding that the record was substantially incomplete for sentencing when all
three defense sentencing exhibits were missing). However, “[i]nsubstantial
omissions from a record of trial do not raise a presumption of prejudice or affect
that record’s characterization as a complete one.” United States v. Henry, 53
M.J. 108, 111 (C.A.A.F. 2000) (holding that four missing prosecution exhibits
were insubstantial omissions when other exhibits of similar sexually explicit
material were included). “[A] substantial omission renders a record of trial in-
complete and raises a presumption of prejudice that the government must re-
but.” United States v. Harrow, 62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006)
(citation omitted), aff’d, 65 M.J. 190 (C.A.A.F. 2007). We must approach the
question of what constitutes a substantial omission on a case-by-case basis.
United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) (citation omitted).
   3. Analysis
    There is no question that the authenticated record of trial does not contain
either (1) Capt AD’s motion or (2) assistant trial counsel’s slides used during
argument. However, the analysis does not end there. First, we must determine
if the document is indeed an omission, and second, if actually an omission,
whether the omission is substantial—requiring the Government to rebut a pre-
sumption of prejudice. We will examine each document separately.
       a. Motion
   This document, although not contained in the ROT, is not an omission from
the record. Nothing in the record before us indicates this motion was ever
marked as an appellate exhibit requiring inclusion into the record. Appellant
avers that the military judge was required to have the exhibit marked as an
appellate exhibit, but does not cite any authority for this position. The military
judge gave the trial defense counsel the option to include the motion in the
record, and he chose not to have the exhibit marked as an appellate exhibit.
The absence of the motion in the record is not just insubstantial, it is not an
omission at all.
       b. Slides
    This court granted a motion to attach, over Appellant’s objection, a decla-
ration from assistant trial counsel and three slides, one of which has data and
the other two of which are solid black. Assistant trial counsel avers the slides,
which are not marked as an appellate exhibit, are the slides she used during


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                 United States v. Wiseman, No. ACM S32566


her sentencing argument. The writing on the one slide has the date December
2017 to the far left and then a bar graph with dates from 3 April to 18 July
with nanogram levels which match the dates and nanogram levels contained
in the stipulation of fact indicating when Appellant provided urine samples
and the concentration of THC in those samples. In addition, the slide depicts
the statement “I know it was wrong when I did it. For some reason, I justified
it in my mind, even though I knew it was wrong while I was doing it.”
    As an initial matter, we must decide whether we can consider the slides
under United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020). Jessie was decided
after we granted the Government’s motion to attach. We find we can consider
the slides for the purpose of our analysis as the slides were clearly raised in
the record when the military judge ordered them marked as an appellate ex-
hibit. See id. at 444.
     We next turn to whether the missing slides are an omission and, if so,
whether it was substantial. We find that the absence of a document that the
military judge ordered into the record is an omission. Finding an omission, our
next step is to determine if the omission is substantial, and we conclude it was
not. Of the three slides attached to the record, only one has any type of data on
it; the other two are solid black. The first slide has dates indicating when Ap-
pellant tested positive and his nanogram level for each test. This information
is identical to the information contained in the stipulation of fact. Further, the
nearly identical quotation from Appellant was provided by Appellant during
the providence inquiry.
    After a review of the entire ROT, we are confident that the missing slides
are an insubstantial omission and the record is complete under Article 54,
UCMJ. The missing slides have no impact on the underlying evidence or the
providence of Appellant’s guilty plea. This is not just a case where other exhib-
its contained similar information and the omission was therefore insubstan-
tial; in this case the record contains nearly identical information. Appellant
used almost identical language under oath during his providency inquiry as
quoted on the slide; and the stipulation of fact contains an identical listing of
Appellant’s positive drug test results by date and the nanogram levels as rep-
resented on the slide. Furthermore, unlike in Stoffer and Henry where the
missing documents were evidence, the slides were a demonstrative aide for an
argument that is not evidence. See Fletcher, 62 M.J. at 183.
D. SJAR
    Appellant next argues that the SJAR contained two errors requiring new
post-trial processing: (1) the SJAR inaccurately advised the convening author-
ity of the maximum punishment for a special court-martial; and (2) the SJAR




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                  United States v. Wiseman, No. ACM S32566


failed to inform the convening authority that he had the authority to disap-
prove, commute, or suspend in whole or part the term of confinement. We dis-
agree that new post-trial processing is required.
   1. Additional Background
    Following Appellant’s trial, the staff judge advocate (SJA) prepared the
SJAR to guide the convening authority’s action on the results of the court-mar-
tial. The SJAR provided, inter alia, the following advice:
       The maximum imposable sentence for the offense for which the
       accused was convicted is a bad conduct discharge, forfeiture of
       all pay and allowances, and confinement for twelve (12) months.
       . . . You do not have the authority to disapprove, commute or
       suspend in whole or part the punitive discharge. You do have the
       authority to disapprove, commute, or suspend in whole or in part
       the reduction in rank.
(Emphasis added). The SJAR initially recommended the convening authority
only approve “so much of the sentence as calls for confinement” but later con-
cluded with a recommendation that the convening authority “approve the sen-
tence as adjudged.”
    In accordance with R.C.M. 1106(f)(1), trial defense counsel was served with
a copy of the SJAR prior to a decision whether to submit matters on behalf of
Appellant for the convening authority’s consideration pursuant to R.C.M. 1105.
Appellant subsequently waived in writing his right to submit clemency mat-
ters and his trial defense counsel submitted a separate memorandum indicat-
ing that Appellant was advised of his right to submit matters.
    After Appellant waived his right to submit matters, the SJA prepared an
addendum to the SJAR that again recommended approval of the sentence as
adjudged but advised the convening authority the military judge awarded “one
(1) stripe credit based upon a one (1) stripe reduction as a result of a previously
issued nonjudicial punishment and awarded five (5) days of confinement credit
based upon a reprimand given as a result of a previously issued nonjudicial
punishment.” The convening authority approved the adjudged sentence, but
instructed that Appellant would be credited with the “one stripe” and five days
of confinement credit. The action from the convening authority states inter
alia: “The term of confinement having been served, no place of confinement is
designated.”
   Appellant contends there is a colorable showing of possible prejudice be-
cause stating the incorrect maximum punishment made it seem as if Appellant
received a more lenient sentence than possible. Appellant also believes the two
errors “provide a misleading juxtaposition of Appellant’s sentence and what



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                  United States v. Wiseman, No. ACM S32566


Appellant could have received and what clemency could have been granted by
the Convening Authority.”
   The Government concedes the misstatement of the maximum punishment
was error, but argues Appellant has not made a colorable showing of possible
prejudice. As to the omission of the convening authority’s power with regard to
confinement, the Government argues it is not error, much less plain or obvious
error.
   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) (en banc) (citing 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 analy-
sis, an appellant must show: “(1) there was an error; (2) [the error] was plain
or obvious; and (3) the error materially prejudiced a substantial right.” Id.
(quoting Scalo, 60 M.J. at 436).
    To meet the third prong of the plain error test “in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise consid-
ered under the plain error doctrine, an appellant must make ‘some colorable
showing of possible prejudice.’” Scalo, 60 M.J. at 436–37 (quoting United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). “The low threshold for material preju-
dice with respect to an erroneous post-trial recommendation . . . is designed to
avoid undue speculation as to how certain information might impact the con-
vening authority’s exercise of such broad discretion.” Id. at 437 (citation omit-
ted). While the threshold is low, “there must be some colorable showing of pos-
sible prejudice.” Id. (citing Kho, 54 M.J. at 65). Whether an appellant was prej-
udiced by a mistake in the SJAR generally requires consideration of “whether
the convening authority ‘plausibly may have taken action more favorable to’
the appellant had he or she been provided accurate or more complete infor-
mation.” United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS 376, at *6
(A.F. Ct. Crim. App. 30 May 2017) (unpub. op.) (citing United States v. John-
son, 26 M.J. 686, 689 (A.C.M.R. 1988), aff’d, 28 M.J. 452 (C.M.A. 1989)) (addi-
tional citation omitted).
   Because Appellant did not object to the SJAR, we test for plain error. We
consider each asserted error in turn.




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                 United States v. Wiseman, No. ACM S32566


   3. Analysis
       a. Misstatement of the Maximum Punishment
    The maximum forfeiture that a special court-martial may adjudge is two-
thirds of the accused’s pay per month for 12 months. R.C.M. 201(f)(2)(B)(i).
Thus, Appellant could not have been sentenced to “forfeiture of all pay and
allowances” and the SJAR is plainly erroneous in that respect.
    However, Appellant has not made a colorable showing of possible prejudice
arising from this plain or obvious error. The military judge did not adjudge any
forfeiture of pay. Thus, the convening authority was not called upon to make
any decisions regarding adjudged forfeitures when he acted upon the sentence.
We are not persuaded the misstatement of the jurisdictional maximum pun-
ishment for forfeitures in any way influenced the convening authority to Ap-
pellant’s detriment. Because Appellant has failed to make a “colorable showing
of possible prejudice,” he is entitled to no relief.
       b. Authority to Disapprove the Adjudged Confinement
    As an initial matter, this court granted a motion to attach Appellant’s De-
partment of Defense Form 2718, Prisoner Release Order (Mar. 2013) (DD Form
2718), which we did not consider in our analysis below. See Jessie, 79 M.J. at
444–45.
    R.C.M. 1106(d)(3) does not list a statement of the convening authority’s
power among the “required contents” of an SJAR. We find no plain or obvious
error in the SJAR which complies with R.C.M. 1106 and caselaw.
    Assuming arguendo that it was error for the SJAR to omit the convening
authority’s ability to disapprove the adjudged confinement and that the error
was plain or obvious, we are not persuaded that the omission in any way influ-
enced the convening authority to Appellant’s detriment.
     We agree with Appellant that the SJA plays a “pivotal role in an accused’s
chances for relief.” United States v. Taylor, 60 M.J. 191, 194 (C.A.A.F. 2004)
(citation omitted). However, there is one individual in the clemency process
that arguably plays an even more pivotal role—the appellant. Appellant never
exercised his right to request the convening authority to disapprove his con-
finement, he chose to waive his right to submit matters altogether. Further,
the convening authority that signed the PTA with Appellant is the same con-
vening authority that took action on his case. The PTA between the convening
authority and Appellant limited the amount of confinement the convening au-
thority could approve to 90 days; once Pierce credit was given, Appellant was
sentenced to less than half that amount. Additionally, by the date of the con-
vening authority’s action Appellant already had served his period of confine-
ment. Finally, the SJAR correctly advised the convening authority that he



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                 United States v. Wiseman, No. ACM S32566


could disapprove the reduction in grade and the convening authority declined
to do so.
     We considered whether the convening authority “plausibly may have
taken action more favorable to” Appellant had he been provided more complete
information. Johnson, 26 M.J. at 689; see also United States v. Green, 44 M.J.
93, 95 (C.A.A.F. 1996). Under these circumstances, we find no plausible reason
to conclude that the convening authority would have taken a more favorable
action if he had been explicitly advised that he could disapprove, commute, or
suspend, in whole or in part, the confinement. Because Appellant has failed to
make a colorable showing of possible prejudice, he is entitled to no relief.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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