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

                              No. ACM 39188
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                       Benjamin L. TEN EYCK
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 17 April 2018
                         ________________________

Military Judge: James E. Key III.
Approved sentence: Bad-conduct discharge, confinement for 8 months,
and reduction to E-1. Sentence adjudged 29 August 2016 by GCM con-
vened at Tyndall Air Force Base, Florida.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel J.
Joseph Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Ma-
jor Meredith L. Steer, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

HARDING, Senior Judge:
   A general court-martial composed of a military judge convicted Appellant
in accordance with his pleas of one specification each of dereliction of duty
                   United States v. Ten Eyck, No. ACM 39188


through neglect (failure to maintain proof of motor vehicle insurance) and reck-
less operation of a vehicle (failure to stop at a red traffic light and thereby cause
personal injury) in violation of Articles 92 and 111, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 892, 911. The military judge sentenced Appellant
to a bad-conduct discharge, confinement for 12 months, and reduction to E-1.
In accordance with a pretrial agreement (PTA), the convening authority ap-
proved only eight months of confinement. He approved the remainder of the
sentence as adjudged.
    Appellant raises two issues on appeal: (1) whether Appellant’s plea to neg-
ligent dereliction of duty based on the mens rea of simple negligence was im-
provident; 1 and (2) whether, in light of United States v. Addison, 75 M.J. 405
(C.A.A.F. 2016), Appellant is entitled to new post-trial processing due to the
staff judge advocate’s failure to correct an error in Appellant’s clemency sub-
mission. We find no prejudicial error and affirm.

                                  I. BACKGROUND
    On 21 June 2015, Appellant failed to stop at a red light as he was leaving
Tyndall Air Force Base, Florida. When Appellant entered the intersection, his
truck collided with a motorcycle operated by First Lieutenant NS. Lieutenant
NS suffered substantial injuries, including severe brain trauma that resulted
in the loss of motor and cognitive function. At the time of the collision Appel-
lant did not have liability insurance coverage for his truck. Appellant was tried
and convicted of two charges from this one incident.
   The staff judge advocate’s recommendation (SJAR) in Appellant’s case
summarized the PTA terms and advised the convening authority that he did
not have authority to “disapprove, commute or suspend in whole or in part the
punitive discharge or the confinement.” Likewise, he was advised that he did
have the authority to “disapprove, commute or suspend in whole or in part” the



1Appellant asserts that recklessness is the lowest mens rea for dereliction of duty and
that precedent holding simple negligence sufficient should be overturned. Subsequent
to the filing of Appellant’s brief, our superior court resolved this issue adversely to
Appellant. See United States v. Blanks, ___ M.J. ___, No. 17-0404, 2018 CAAF LEXIS
111, at *2 (C.A.A.F. 28 Feb. 2018) (finding no basis to disturb prior precedent that
negligence is an appropriate mens rea for certain dereliction offenses). We further note
that as part of the consideration for the PTA, the convening authority agreed to accept
Appellant’s offer to plead guilty to negligent vice willful dereliction of duty. Having
reviewed the entire record, we find no substantial basis in law or fact for questioning
the providency of Appellant’s guilty plea.




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                   United States v. Ten Eyck, No. ACM 39188


reduction in rank. In accordance with these limitations 2 and the PTA, the SJA
recommended approval of the bad-conduct discharge, confinement for eight
months, and reduction to E-1.
    Appellant’s trial defense counsel submitted a memorandum for Appellant’s
clemency submission wherein she acknowledged the adjudged sentence and
PTA and wrote, “[Appellant] respectfully petitions you to exercise your discre-
tion as the General Court-Martial Convening Authority under Rule for Courts-
Martial 1107, Manual for Courts-Martial, to grant clemency in this case.” The
trial defense counsel requested that the convening authority further reduce by
three months the sentence to confinement and “consider restoring [Appellant]
to a higher rank.” Appellant reiterated this plea for clemency in his own letter
and asked that his sentence to eight months be lessened to “a more manageable
5 months confinement.” Appellant’s primary reason for the requested relief
was so Appellant could assist his mother in caring for his father who was in
poor health. Appellant also asked the convening authority to “change that bad
conduct discharge to a general discharge.”
   The addendum to the SJAR stated that Appellant’s clemency matters had
been reviewed with no change to the SJA’s recommendation. Otherwise, the
addendum did not address Appellant’s specific requests or whether the con-
vening authority had the authority to grant all, some, or none of the relief re-
quested.

                                 II. DISCUSSION
    The proper completion of post-trial processing is a question of law the court
reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing
United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to comment
in a timely manner on matters in the SJAR or matters attached to the SJAR
waives or forfeits any later claim of error unless there was plain error. R.C.M.
1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). Analyzing
for plain error, we assess whether “(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). “To meet this burden in the context
of a post-trial recommendation error . . . an appellant must make ‘some color-
able showing of possible prejudice.’” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
“The threshold is low, but there must be some colorable showing of possible




2 Although not expressly stated in the SJAR, an exception for PTAs allowed the con-
vening authority to approve only 8 of the 12 months of confinement adjudged. See Rule
for Courts-Martial (R.C.M.) 1107(d)(1)(C)(ii).


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                   United States v. Ten Eyck, No. ACM 39188


prejudice . . . in terms of how the [error] potentially affected an appellant’s op-
portunity for clemency.” Id. at 437.
    There was error in the post-trial processing of Appellant’s case. While the
trial defense counsel did not affirmatively assert that the convening authority
had the authority to disapprove the confinement in whole or part beyond what
the PTA provided, the counsel’s citation to R.C.M. 1107 as authority—immedi-
ately followed by a request to reduce confinement by three months—implied
that the rule allowed the convening authority to grant the requested relief.
This was a misstatement of the law in Appellant’s clemency submission.
    R.C.M. 1107(d)(1)(B) explicitly states that unless an exception applies, “the
convening authority may not disapprove, commute, or suspend, in whole or in
part, that portion of an adjudged sentence that includes . . . confinement for
more than six months” or a punitive discharge. See also Article 60(c)(4)(A),
UCMJ, 10 U.S.C. § 860(c)(4)(A). While the PTA exception applies to Appellant’s
case, the convening authority could only disapprove a sentence of more than
six months’ confinement or a punitive discharge “pursuant to the terms of the
pretrial agreement.” Id.; see also R.C.M. 1107(d)(1)(C)(ii). The PTA in Appel-
lant’s case specified, among other things, that the convening authority would
approve no more than eight months confinement; it did not include a term
providing that the convening authority would disapprove a bad-conduct dis-
charge. 3
    Thus, trial defense counsel’s implication—that R.C.M. 1107 allowed the
convening authority to reduce confinement beyond the eight months specified
in the PTA to the five months requested, and to disapprove the bad-conduct
discharge as requested by Appellant—amounted to a misstatement of the law.
As noted above, the addendum to the SJAR failed to correct this error.
    In reliance on United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016)
(mem.), and United States v. Zegarrundo, ___ M.J. ___, No. ACM S32430, 2018
CCA LEXIS 53 (A.F. Ct. Crim. App. 31 Jan. 2018), Appellant claims that the
addendum to the SJAR was erroneous because it failed to correct an error in
his own clemency submission. As a general matter, “[w]here trial defense coun-
sel misstates the law in a clemency submission to the convening authority, the
staff judge advocate is duty-bound to correct it in the [a]ddendum to ensure
that the convening authority exercises that authority in conformity with the
law.” United States v. Troester, No. ACM S32385, 2017 CCA LEXIS 332, at *6
(A.F. Ct. Crim. App. 12 May 2017) (unpub. op.), rev. denied, 76 M.J. 429

3 The PTA did specify that the convening authority would approve a bad-conduct dis-
charge if a dishonorable discharge was adjudged and that Appellant would waive his
right to a board and accept an administrative discharge with an under other than hon-
orable conditions characterization if no bad-conduct discharge was adjudged.


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                  United States v. Ten Eyck, No. ACM 39188


(C.A.A.F. 2017). In Addison and Zegarrundo, the failure of the addendum to
correct the error in the clemency submission resulted in new post-trial pro-
cessing. At first blush, it would appear that the addendum’s failure to correct
the error in this case compels the same result. However, the error in this case
was qualitatively different from that of Addison and Zegarrundo.
    In Addison and Zegarrundo, the appellants’ clemency submissions errone-
ously stated that an amendment to Article 60, UCMJ, limited the discretion of
the convening authority. In other words, those convening authorities were
wrongly informed by the defense they had less discretion than they actually
did have, and correspondingly those appellants failed to request relief that
could have been granted. Prejudice to those appellants manifested itself in
their missed opportunity to ask for available relief and potential confusion for
the convening authority. Both cases were remanded for new post-trial pro-
cessing with conflict-free counsel. By contrast here, the convening authority
was wrongly informed by Appellant that he had more discretion than he actu-
ally did have, and correspondingly Appellant requested relief (reduction to five
months confinement and no bad-conduct discharge) that the convening author-
ity had no power to provide.
    Appellant’s trial defense counsel erroneously cited R.C.M. 1107 to support
the request to the convening authority to approve only five months confine-
ment and disapprove the bad-conduct discharge; a sentence limitation the PTA
did not specify, and thus the convening authority could not approve. However,
Appellant also requested relief that the convening authority could provide: dis-
approving the reduction in rank to E-1 in whole or part. Significantly, Appel-
lant made this request in addition to—not instead of—his request for clemency
on the confinement and discharge. Unlike the appellants in Addison and Ze-
garrundo, who did not ask for relief that the convening authority could have
granted, Appellant asked for everything—both relief that the convening au-
thority could have granted and relief that the convening authority could not.
    Thus, while we conclude that there was error and it was obvious, Appellant
has failed to make “some colorable showing of possible prejudice. . . . in terms
of how the [error] potentially affected [his] opportunity for clemency.” Scalo,
60 M.J. at 437. We determine whether an appellant was prejudiced by a mis-
take in the SJAR or addendum by considering whether the convening authority
“plausibly may have taken action more favorable to” the appellant had he or
she been provided accurate or more complete information. United States v.
Johnson, 26 M.J. 686, 689 (A.C.M.R. 1988), aff’d, 28 M.J. 452 (C.M.A. 1989);
see also United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). Because Appel-
lant asked for every form of sentence relief, including relief on the reduction to
E-1 that the convening authority could have granted, we do not find it plausible



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                 United States v. Ten Eyck, No. ACM 39188


that the convening authority would have taken action more favorable to Ap-
pellant had the convening authority been informed of the misstatement of the
law in the clemency submission.
    While we are generally concerned that Appellant’s trial defense counsel
misapplied R.C.M. 1107 in the clemency submission (and may have provided
incorrect advice to Appellant regarding possible clemency from the convening
authority as to confinement and the bad-conduct discharge), Appellant has
failed to demonstrate a “colorable showing of possible prejudice” attributable
to the failure of the addendum to correct the misstatement in his clemency
submission.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror 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



                 CAROL K. JOYCE
                 Clerk of the Court




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