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

                            No. ACM 39140
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                         Darius M. JONES
          Airman First Class (E-3), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 28 April 2017
                        ________________________

Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 22 June 2016 by GCM convened at Joint Base Elmendorf-Rich-
ardson, Alaska.
For Appellant: Major Lauren A. Shure, USAF; Captain Travis L.
Vaughan, USAF.
For Appellee: Colonel Martin J. Hindel, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judges MAYBERRY and JOHNSON joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                   United States v. Jones, No. ACM 39140


SPERANZA, Judge:
    A general court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas pursuant to a pretrial agreement,
of wrongfully using 3,4 methylenedioxymethamphetamine (MDMA), lysergic
acid diethylamide (LSD), and marijuana on divers occasions, and wrongfully
endeavoring to impede his urinalysis inspection by submitting urine from a
flask rather than his body, in violation of Articles 112a and 134 Uniform Code
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, for-
feiture of all pay and allowances, and reduction to E-1. The convening author-
ity approved the adjudged sentence consistent with the terms of the pretrial
agreement.
   On appeal, Appellant claims the staff judge advocate’s erroneous recom-
mendation to the convening authority entitles him to “meaningful relief.” We
agree.

                              I. BACKGROUND
   Approximately one month after arriving at his first duty station in Alaska,
Appellant was using either MDMA, LSD, or marijuana at least every other
weekend with other Airmen over at least a two-month period. Appellant and
these Airmen were determined not to let Appellant’s random selection for uri-
nalysis end this prolific streak. Accordingly, Appellant’s friends—other Air-
men—provided him with a plastic “flask” filled with online-purchased urine
that Appellant used to circumvent the urinalysis inspection.

                               II. DISCUSSION
    Less than one month after his court-martial and prior to receiving the au-
thenticated record of trial and SJAR, Appellant submitted a clemency request
to the convening authority in which he specifically sought a two-month reduc-
tion of his adjudged confinement. Appellant requested no other relief.
   In the SJAR, the convening authority’s staff judge advocate (SJA) did not
address Appellant’s request and advised the convening authority, in pertinent
part, “You do not have the authority to disapprove, commute or suspend in
whole or in part confinement or the punitive discharge.” The SJA concluded by
recommending the convening authority approve the adjudged sentence.
    After receiving the SJAR, Appellant waived the time requirements to sub-
mit matters and Appellant’s trial defense counsel reiterated Appellant’s origi-
nal request, as follows:




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                   United States v. Jones, No. ACM 39140


       [In accordance with Rules for Courts-Martial (R.C.M.)
       1107(d)(1)(A)] and acting on behalf of [Appellant], I submitted a
       clemency request . . . wherein [Appellant] requested that his 6-
       month sentence be mitigated by two months to four months. This
       was and is his only request.
Appellant’s trial defense counsel further explained,
       Although the [R.C.M.] have changed in regards to the authority
       the convening authority has over sentences with confinement,
       the convening authority is still authorized to commute, in whole
       or in part, any portion of an adjudged sentence of confinement of
       six months or less.
Accordingly, Appellant “renew[ed] his request to shorten his sentence to four
months, and waive[d] any additional clemency so the convening authority
[could] make the decision as soon as possible.”
    The SJA attached Appellant’s original clemency request and the “renewed”
request to the SJAR Addendum. In the Addendum, the SJA advised the con-
vening authority that attached matters submitted by Appellant must be con-
sidered before action is taken. The SJA maintained no legal errors had been
raised and addressed Appellant’s clemency request, as follows:
       I also reviewed the attached clemency matters submitted by [Ap-
       pellant’s] defense counsel, whereby [Appellant] requested you
       mitigate his sentence to confinement to four months. My earlier
       recommendation remains unchanged. I recommend that you ap-
       prove the finding and sentence as adjudged.
   The convening authority concurred with the SJA’s recommendation and
approved the adjudged sentence.
    Appellant now identifies the SJA’s advice—that the convening authority
could not disapprove, commute, or suspend, in whole or in part, Appellant’s
confinement—as a prejudicial error that precluded any “meaningful review” of
his clemency request. Appellant specifically asserts that “[h]ad the convening
authority known of [his] power, he may well have commuted the mere two
months of Appellant’s confinement which Appellant requested, at the least he
would have fairly considered the option.” Therefore, Appellant claims that he
“can never retrieve the two months spent in confinement deprived of liberty,
and no remedy can make him truly whole.” Despite his proclamation that no
remedy can make him whole, Appellant asks us to set aside either two months
of confinement or his punitive discharge, or in the alternative, remand his case
for new post-trial processing.




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                        United States v. Jones, No. ACM 39140


    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.
    Here, the SJA plainly erred in advising the convening authority that he
lacked the authority to provide Appellant the specific relief Appellant sought
in clemency. 1 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 Consequently, Appellant’s trial defense counsel cor-
rectly informed the convening authority that he was “still authorized” to grant
Appellant the relief Appellant twice requested. This contradictory advice was
not discussed or resolved by the SJA in the Addendum. Instead, the SJA cur-
sorily acknowledged Appellant’s requests and reiterated the previous recom-
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. Thus,


1 Once again, the Government asks us to read Article 60(c)(4)(A), UCMJ, 10 U.S.C. §
860(c)(4)(A), as prohibiting the convening authority from disapproving, commuting, or
suspending any part of a six-month or less term of confinement, if the sentence also
includes a punitive discharge. Once again, we reject such an interpretation of this par-
ticular statutory provision and find that the convening authority may disapprove, com-
mute, or suspend in whole or in part an adjudged sentence of confinement for six
months or less when a punitive discharge is also adjudged. See Article 60(c)(1)(3)–(4),
UCMJ.
2   As all offenses occurred after 24 June 2014, the current version of Article 60 applies.




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                     United States v. Jones, No. ACM 39140


Appellant has made a colorable showing of possible prejudice and his claim
merits relief. 3

                                 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




3We decline Appellant’s invitation to grant appropriate sentence relief by setting aside
a portion of his confinement or his punitive discharge “[i]n order to emphasize the im-
portance of accurate advice to convening authorities, and to avoid further post-trial
delay in this case.” The facts of this case, and indeed the law, do not demand such an
extraordinary exercise of this court’s authority.


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