                         UNITED STATES, Appellee

                                         v.

            Jessie R. CAPERS, Interior Communications
                     Electrician First Class
                       U.S. Navy, Appellant

                                  No. 05-0341
                        Crim. App. No. 200300245

       United States Court of Appeals for the Armed Forces

                         Argued November 8, 2005

                       Decided December 22, 2005


EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                     Counsel

For Appellant: Lieutenant Steven C. Reyes, JAGC, USNR (argued);
Lieutenant Colin A. Kisor, JAGC, USNR.


For Appellee: Lieutenant Kathleen A. Helmann, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Christopher J. Hajec, JAGC, USNR.



Military Judge:    Nels H. Kelstrom




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Capers, No. 05-0341/NA


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer members,

Appellant was convicted, contrary to his pleas, of rape, in

violation of Article 120, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920 (2000).   He was sentenced to confinement

for three years, forfeiture of all pay and allowances, and

reduction to pay grade E-1.   The convening authority approved

the sentence and suspended forfeiture of pay for six months.

The convening authority also waived automatic forfeitures for

six months on the condition that the money be paid to the

Appellant’s wife.   The Court of Criminal Appeals affirmed the

findings and sentence in an unpublished opinion.   United States

v. Capers, No. NMCCA 200300245, 2005 CCA LEXIS 52, 2005 WL

408054, (N-M. Ct. Crim. App. Feb. 22, 2005).

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE LOWER APPELLATE COURT ERRED IN
          CONCLUDING THAT DEFENSE COUNSEL’S ERRONEOUS
          REQUEST TO SUSPEND FORFEITURES AND THE STAFF
          JUDGE ADVOCATE’S ERRONEOUS ADVICE
          RECOMMENDING SUCH ACTION DID NOT PREJUDICE
          APPELLANT WHEN HE WAS NOT ENTITLED TO PAY.

For the reasons set forth below, we affirm.




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                            I. BACKGROUND

     Prior to the convening authority’s action on the results of

trial, Appellant submitted a clemency request under Rule for

Courts-Martial (R.C.M.) 1105, asking the convening authority to

set aside the verdict.   In the alternative, Appellant asked the

convening authority to “suspend confinement over 1 year and/or

suspend the reduction in rate and forfeiture.”   The staff judge

advocate (SJA) prepared a recommendation to the convening

authority under R.C.M. 1106(d)(1), which recommended disapproval

of the accused’s clemency request.

     Following service of the SJA’s recommendation on Appellant

and his counsel, the defense counsel submitted a supplemental

clemency request, asking the convening authority to suspend

forfeitures for six months for the benefit of Appellant’s

family.   See R.C.M. 1106(f).   The supplemental request included

a letter from Appellant’s wife, who noted that she was barely

able to support their three children, and that they depended on

Appellant’s salary for basic necessities.

     The SJA recommended that the convening authority grant the

supplemental request.    The convening authority agreed, ordering:

(1) suspension of forfeitures for six months, and (2) waiver of

automatic forfeitures for six months for the benefit of

Appellant’s family.




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     The clemency action was based on the erroneous premise that

Appellant was entitled to pay.    Because Appellant had completed

his period of obligated service and was sentenced to

confinement, he was not entitled to compensation.   See Dep’t of

Defense, Financial Management Regulation vol. 7A, para. 480802

(2005).    As a result, there was no pay to forfeit, which meant

that no funds were available for Appellant’s dependents, either

through waived or suspended forfeitures.    See United States v.

Smith, 56 M.J. 271, 275 (C.A.A.F. 2002).



                           II. DISCUSSION

     Both the SJA and the defense counsel failed to consider the

fact that Appellant was not entitled to pay.   Appellant has not

raised the issue of whether defense counsel’s error constituted

ineffective assistance of counsel.    See United States v. Scott,

24 M.J. 186, 188 (C.M.A. 1987).   Accordingly, we shall focus on

the impact of the advice provided to the convening authority by

the SJA.

     If defense counsel does not make a timely comment on an

error or omission in the SJA’s recommendation, “the error is

waived unless it is prejudicial 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)).    Because Appellant did not object to the recommendation


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of the SJA, we must determine whether there was error, whether

it was plain, and whether it materially prejudiced a substantial

right of the accused.   Scalo, 60 M.J. at 436 (citing Kho, 54

M.J. at 65; United States v. Powell, 49 M.J. 460, 463, 465

(C.A.A.F. 1998)).   With respect to an error in an SJA’s post-

trial recommendation, the prejudice prong involves a relatively

low threshold -- a demonstration of “some colorable showing of

possible prejudice.”    Scalo, 60 M.J. at 436-37 (quoting Kho, 54

M.J. at 65; citing United States v. Wheelus, 49 M.J. 283, 289

(C.A.A.F. 1998)).   Our review is de novo.   Kho, 54 M.J. at 65.

In that context, and under the circumstances of this case, we

shall analyze the issue of prejudice directly, without regard to

whether the lower court correctly applied the applicable

standard.

     The end of a person’s period of obligated service is a fact

readily available from service records routinely used in

sentencing and post-trial action.     Review of such records would

have informed the SJA that Appellant was not entitled to

compensation, and that there were no funds available to benefit

Appellant’s dependents.   See, e.g., Smith, 56 M.J. at 275.

Accordingly, the SJA’s recommendation -- that the convening

authority suspend adjudged forfeitures and waive automatic

forfeitures to assist Appellant’s family -- constituted a plain




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and obvious error.   The critical issue before us is whether

there has been a colorable showing of possible prejudice.

       The colorable showing threshold is low, but the prejudice

must bear a reasonable relationship to the error, and it must

involve a reasonably available remedy.    See Scalo, 60 M.J. at

437.   Here, the convening authority sought to provide immediate,

but limited assistance to the family during Appellant’s first

six months of imprisonment by diverting funds from compensation

to which the Appellant might otherwise have been entitled.

       Appellant has referred vaguely to the possibility that a

properly informed convening authority might have provided an

undefined amount of “reduced confinement” so that the Appellant,

unconfined, could have assisted his family with their financial

needs.   Appellant, who was convicted of forcible rape, was

sentenced to confinement for three years.    Appellant does not

identify any length of reduction that might reasonably have been

provided by the convening authority under these circumstances.

In particular, Appellant does not suggest that the convening

authority would have considered freeing Appellant from

confinement for a specific period of time at the outset of his

sentence -- the period that was the focus of Appellant’s

supplemental request and the convening authority’s attempt to

provide assistance to the family.     Given the nature of

Appellant’s offense, the period of adjudged confinement, and


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Appellant’s inability to identify a remedy with reasonable

precision, Appellant has not provided an adequate description of

what a properly advised convening authority might have done to

structure an alternative form of clemency.   This is not a case

in which a reasonably available remedy related to the

identifiable error is otherwise readily apparent.   Compare

United States v. Finster, 51 M.J. 185 (C.A.A.F. 1999).   Under

these circumstances, we conclude that there has not been a

colorable showing of possible prejudice.



                         III. CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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