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

                             No. ACM S32396
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                       Rashaad D. Mickens
             Airman Basic (E-1), U.S. Air Force, Appellant
                         ________________________

       Appeal from the United States Air Force Trial Judiciary
                          Decided 18 May 2017
                         ________________________

Military Judge: James R. Dorman.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
and a reprimand. Sentence adjudged 2 March 2016 by SpCM convened
at Offutt Air Force Base, Nebraska.
For Appellant: Captain Travis L. Vaughan, USAF.
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    This is an unpublished opinion and, as such, does not serve as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 his pleas pursuant to a pretrial agreement
(PTA), of wrongfully using marijuana, Alprazolam, and Lorazepam, each on
divers occasions, and being incapacitated for duty due to wrongful previous
overindulgence in drugs, in violation of Articles 112a and 134, Uniform Code
                  United States v. Mickens, No. ACM S32396


of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 934. The military judge sen-
tenced Appellant to a bad-conduct discharge, confinement for six months, and
a reprimand. 1 The convening authority approved the bad-conduct discharge
and the reprimand, but only three months of confinement in accordance with
the terms of the PTA, which limited the confinement the convening authority
would approve to three months if Appellant was adjudged a bad-conduct dis-
charge.
   Though not raised by Appellant, an error in the staff judge advocate’s rec-
ommendation (SJAR) to the convening authority compels us to remand this
case for new post-trial processing.

                                I. BACKGROUND
    At the conclusion of his court-martial, Appellant was sentenced to a bad-
conduct discharge, six months of confinement, and a reprimand. The staff
judge advocate (SJA) then prepared the SJAR for the convening authority. The
SJAR stated, in pertinent part, that the convening authority did not have the
“authority to disapprove, commute, or suspend in whole or in part confinement
or the punitive discharge.” After discussing the provisions of the PTA and its
impact on the convening authority’s power, the SJA concluded by recommend-
ing that the convening authority approve only the bad-conduct discharge and
three months of confinement in compliance with the limitation on confinement
contained in the PTA.
    In Appellant’s clemency request, Appellant’s defense counsel stated that
the convening authority had the power to “disapprove, commute, or suspend,
in whole or in part, among other things, an adjudged term of confinement so
long as the adjudged confinement does not exceed six months” and requested
that the convening authority only approve an amount of confinement equal to
the approximate one and one-half months that Appellant had already served
in confinement. Appellant requested no other relief from the adjudged sen-
tence.
    The addendum to the SJAR did not address Appellant’s statement regard-
ing the convening authority’s power to grant clemency nor the specific request
to approve only the amount of confinement already served by Appellant. The
SJA did attach Appellant’s clemency matters to the SJAR addendum and ad-
vised the convening authority that he must consider those matters submitted
by Appellant before taking action. The SJA addressed Appellant’s clemency



1An additional specification alleging wrongful use of cocaine was withdrawn and dis-
missed in accordance with the pretrial agreement.


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                   United States v. Mickens, No. ACM S32396


request in the SJAR addendum as follows: “I have reviewed the attached clem-
ency matters submitted by the defense. My earlier recommendation remains
unchanged.” The convening authority subsequently approved a bad-conduct
discharge, three months of confinement, and a reprimand.

                                  II. DISCUSSION
    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)). “Absent defense waiver or forfeiture . . . , erroneous advice
on substantial matters of fact or law will invalidate the action when the error
prejudices the accused.” United States v. Kerwin, 46 M.J. 588, 590 (A.F. Ct.
Crim. App. 1996). To establish prejudice due to errors impacting an appellant’s
request for clemency from the convening authority, the appellant must make
“some ‘colorable showing of possible prejudice.’” LeBlanc, 74 M.J. at 660 (quot-
ing United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005)). “The low thresh-
old for material prejudice with respect to an erroneous post-trial recommenda-
tion reflects the convening authority’s vast power in granting clemency and is
designed to avoid undue speculation as to how certain information might im-
pact the convening authority’s exercise of such broad discretion.” Scalo, 60 M.J.
at 437.
    In this case, the SJA plainly erred in advising the convening authority that
he lacked the power to provide Appellant the specific relief Appellant sought
in clemency. Although the convening authority’s power to grant clemency was
significantly curtailed by relatively recent legislation, the convening authority
retained the ability to disapprove, commute, or suspend, in whole or in part,
Appellant’s six-month term of confinement. See Article 60(c)(4)(A), UCMJ, 10
U.S.C. § 860(c)(4)(A); 2 see also United States v. Jones, No. ACM 39140, 2017
CCA LEXIS 310 (A.F. Ct. Crim. App. 28 Apr. 2017). This was true regardless
of the limitation imposed by the PTA on the confinement the convening au-
thority could approve, since the limitation was just that, a maximum and not
a minimum amount of confinement that could be imposed. Consequently, Ap-
pellant’s trial defense counsel correctly informed the convening authority that
he had the discretion to grant the relief Appellant requested. The conflict be-
tween trial defense counsel’s correct statement of the law and the SJA’s advice
was not discussed nor resolved by the SJA in the addendum. Instead, the SJA
cursorily acknowledged Appellant’s request and reiterated her previous recom-



2As all offenses occurred after 24 June 2014, the current version of Article 60, UCMJ,
10 U.S.C. § 860, applies.


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                  United States v. Mickens, No. ACM S32396


mendation. This failure to correct the erroneous advice in the SJAR unavoida-
bly leads to undue speculation as to whether or not the convening authority
believed he was authorized to even consider, let alone grant in whole or in part,
Appellant’s specific and sole clemency request. See Scalo, 60 M.J. at 437.
Therefore, a colorable showing of possible prejudice exists which merits relief.

                               III. CONCLUSION
    The convening authority’s action, dated 29 August 2016, is SET ASIDE.
The record of trial is returned to The Judge Advocate General for new post-
trial processing consistent with this opinion. Thereafter, Article 66, UCMJ, 10
U.S.C. § 866, will apply.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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