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

                              No. ACM 39399
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                           Nolan M. DAMM
              Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 21 June 2019
                         ________________________

Military Judge: Jennifer E. Powell.
Approved sentence: Dishonorable discharge, confinement for 18
months, reduction to E-1, and a reprimand. Sentence adjudged 3 Octo-
ber 2017 by GCM convened at Holloman Air Force Base, New Mexico.
For Appellant: Major Christopher C. Newton, USAF; Major Mark J.
Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge POSCH joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

KEY, Judge:
    A general court-martial composed of a military judge convicted Appellant,
in accordance with his pleas and pursuant to a pretrial agreement, of 13 spec-
ifications pertaining to controlled substances, including: divers instances of
                    United States v. Damm, No. ACM 39399


possessing—with intent to distribute—3,4-methylenedioxymethamphetamine
(MDMA or “ecstasy”), lysergic acid diethylamide (LSD), and alprazolam
(Xanax); divers instances of importing MDMA; divers instances of distrib-
uting psilocybin and cocaine; divers instances of using MDMA, cocaine, and
marijuana; and a single instance of using LSD and dimethyltryptamine
(DMT), each, all in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a. 1 The court-martial sentenced Appellant to a dis-
honorable discharge, confinement for 18 months, reduction to the grade of E-
1, and a reprimand. The convening authority approved the sentence as ad-
judged.
    Appellant raises the following issues on appeal: (1) whether he is entitled
to sentence relief on account of the conditions of the first 28 days of his post-
trial confinement when he was housed at a civilian confinement facility, and
(2) whether the convening authority’s staff judge advocate (SJA) provided in-
adequate advice to the convening authority in the addendum to the staff
judge advocate’s recommendation (SJAR) prior to action. We find no error
and affirm the findings and sentence.

                                 I. BACKGROUND
   In April 2016, Homeland Security Investigations agents intercepted a
package from the United States Postal Service addressed to Appellant. The
package, which originated in Germany, contained 103 MDMA tablets. The
ensuing investigation uncovered Appellant’s wide-reaching involvement with
controlled substances, which included him buying drugs online and then both
using them and selling them to other military members and civilians.
     Once convicted and sentenced on 3 October 2017, Appellant was ordered
into confinement and incarcerated at New Mexico’s Otero County Prison Fa-
cility (Otero County) for 28 days until he was transferred to a military con-
finement facility on 30 October 2017. While at Otero County, Appellant was
housed in the facility’s Restricted Housing Unit. According to Appellant’s con-
finement order, Appellant arrived at Otero County shortly before midnight on
Tuesday, 3 October 2017.
    At some point on Wednesday, 4 October 2017, Appellant was issued two
sets of prison uniforms, to include two pairs of underwear. Laundry service at
Otero County is available Monday through Friday, but not on Saturdays or

1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.), App.
2, pt. II.




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                   United States v. Damm, No. ACM 39399


Sundays. Appellant was also issued a bar of soap, toothbrush, toothpaste, and
two rolls of toilet paper.
    During his time at Otero County, Appellant was housed in a cell by him-
self. The door to his cell contained a small window, through which Appellant
was provided food on a tray for him to consume in his cell. The slot was also
used to put handcuffs on Appellant, as he was restrained when escorted to
the shower. Military prisoners at Otero County are allowed showers three
times a week—Monday, Wednesday, and Friday.
    Because he was in the Restricted Housing Unit, Appellant was allowed
outside of his cell for recreation purposes five hours per week—one hour a
day, Monday through Friday. Appellant was not allowed outside of his cell on
weekends. Appellant’s recreation time could be spent either in an inside room
with a television and a telephone, or outside in an open-air cell. The open-air
recreation cell consisted of three brick walls, a fenced fourth wall, and a
fenced ceiling. Appellant was not permitted to interact with other inmates
during his recreation time, and his recreation time was spent alone.
   Appellant’s cell was lit by fluorescent lights that were dimmed but not
completely turned off at night.
    Otero County assigns different colors of prisoner uniforms depending on
the prisoners’ status and the nature of the offense for which they were con-
victed. By virtue of being a military prisoner, Appellant’s uniform was
striped, black and white.
    On 12 January 2018—more than two months after being transferred to a
military confinement facility—Appellant submitted matters in clemency to
the convening authority, asserting his confinement conditions violated “estab-
lished case law” and provisions of Air Force Instruction (AFI) 31-105, Air
Force Corrections System (15 Jun. 2015, as amended by AFGM 2017-01, 28
Jun. 2017). In this submission, Appellant provided a memorandum in which
he complained that he was unable to have laundry done the first four days of
his confinement; there were ants in his cell; the showers “had only scalding
hot water several times;” he was not able to exercise his commissary privileg-
es for the first eight days, which meant he had no deodorant and could not
make phone calls during that time; and no one from his unit visited him. Ap-
pellant’s trial defense counsel submitted a memorandum supporting Appel-
lant’s clemency request in which he complained of these confinement condi-
tions and added that Appellant would have to walk by the area where child
sex offenders were confined on his way to the shower. Appellant’s trial de-
fense counsel asked the convening authority to approve a “reduced service
characterization and a lessened term of confinement.”




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                  United States v. Damm, No. ACM 39399


   The same day Appellant submitted his matters in clemency, the conven-
ing authority’s SJA signed an addendum to the SJAR, advising in relevant
part:
      The defense alleges legal error in that, for 28 days of [Appel-
      lant]’s post-trial confinement at Otero County Prison Facility,
      he was held in violation of established case law and Air Force
      Instruction 31-105, Air Force Corrections System, by being
      placed in administrative segregation. I considered carefully
      this allegation of error, and find it to be without merit.
   The SJA recommended the convening authority approve the sentence as
adjudged, which the convening authority did.
    On appeal, Appellant argues the conditions of his confinement warrant
relief. Appellant submitted a declaration reiterating the complaints he made
during the clemency process, and concludes:
      The 28 days I spent in administrative segregation caused me
      terrible stress. I felt humiliated being singled out by other in-
      mates due to my prison uniform being different and having to
      walk by registered sex offenders when I went to shower. I had
      virtually no human interaction, spent nearly all of the time in
      my cell, and for at least awhile [sic], was not able to make
      phone calls. It was the worst experience of my life.
    In response to Appellant’s appeal, the Government obtained an affidavit
from Otero County’s chief of security, Captain (Capt) RO, who disputes sev-
eral of Appellant’s claims. Regarding Appellant’s assertion he was not per-
mitted to have his clothes washed for his first four days at Otero County,
Capt RO says Appellant was afforded the opportunity to send his clothing out
for laundry beginning Thursday, 5 October 2017, but that laundry service
was unavailable on weekends, to include 7–8 October 2017.
    Regarding Appellant’s complaint he was not given phone access or com-
missary privileges for the first eight days, thereby preventing him from pur-
chasing deodorant, Capt RO asserts Appellant arrived with $100, which was
deposited into his account. Because Appellant was housed in the Restricted
Housing Unit, Appellant was allowed to order commissary items on Wednes-
days, with the delivery of those items scheduled for the following Tuesdays.
Capt RO states in his declaration that inmates are provided telephone access
daily, Monday through Friday, and that Appellant both was given access to a
telephone on 4 October 2017 and attempted to place a call on 6 October 2017.
   Capt RO asserts all military inmates are housed in the Restricted Hous-
ing Unit “[d]ue to the complexity of the multi-agency prison facility.” Lieu-
tenant Colonel (Lt Col) TC, the Holloman Air Force Base SJA at the time of

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                      United States v. Damm, No. ACM 39399


Appellant’s incarceration at Otero County, also provided a declaration in
which he explains that military prisoners were placed in the Restricted Hous-
ing Unit to ensure they are not “commingled with foreign nationals.” 2
    On appeal, Appellant argues he did not file any previous complaints about
his confinement, whether via Article 138, UCMJ, 10 U.S.C. § 938, or a prison
grievance system, but that “the conditions were known to the Government
due to prior cases.” Appellant argues filing an Article 138, UCMJ, complaint
would have been “futile” in this case due to Appellant’s command sending
him to Otero County in spite of their knowledge of Otero County’s policies. 3

                                  II. DISCUSSION
A. Confinement Conditions
    Appellant argues his confinement conditions at Otero County were cruel
and unusual under the Eighth Amendment to the United States Constitu-
tion 4 and Article 55, UCMJ, 10 U.S.C. § 855. He further argues those condi-
tions violated Article 58, UCMJ, 10 U.S.C. § 858, because he was treated dif-
ferently from civilian confinees at Otero County and not in accordance with
Air Force guidance. Finally, Appellant argues that even in the absence of an
Eighth Amendment or Article 55 violation, his confinement conditions ren-
dered his sentence inappropriately severe, warranting relief under Article
66(c), UCMJ, 10 U.S.C. § 866(c).
    To the extent there are contradictions between Appellant’s declaration
and those of Lt Col TC and Capt RO, we considered whether a post-trial evi-
dentiary hearing was required to resolve a factual dispute. United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). We are convinced such a hearing is
unnecessary. Even if we resolve the contradictions in Appellant’s favor, the
alleged conditions would not result in our granting relief. Id.




2 In his declaration, Lt Col TC refers to the Restricted Housing Unit as “the adminis-
trative segregation unit.”
3 In support of this contention, Appellant submitted clemency matters from the cases
of three other Airmen who were held in similar conditions at Otero County during
2017. All three submissions complained of the conditions, and all three were submit-
ted to the same special court-martial convening authority who was Appellant’s wing
commander.
4   U.S. CONST. amend. VIII.




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                     United States v. Damm, No. ACM 39399


    1. Eighth Amendment and Article 55, UCMJ—Cruel and Unusual
    Punishment
     We review de novo whether an appellant has been subjected to imper-
missible post-trial confinement conditions in violation of the Eighth Amend-
ment or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F.
2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)). Both
the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual
punishment. In general, we apply “the Supreme Court’s interpretation of
the Eighth Amendment to claims raised under Article 55, except in circum-
stances where . . . legislative intent to provide greater protections under [Ar-
ticle 55]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F.
2000) (citation omitted). “[T]he Eighth Amendment prohibits two types of
punishments: (1) those ‘incompatible with the evolving standards of decency
that mark the progress of a maturing society’ or (2) those ‘which involve the
unnecessary and wanton infliction of pain.’” United States v. Lovett, 63 M.J.
211, 215 (C.A.A.F. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 102–03
(1976)). As the Supreme Court has explained, “[t]he Constitution ‘does not
mandate comfortable prisons,’ but neither does it permit inhumane ones.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman,
452 U.S. 337, 349 (1981)).
    A violation of the Eighth Amendment is shown by demonstrating:
        (1) an objectively, sufficiently serious act or omission resulting
        in the denial of necessities; (2) a culpable state of mind on the
        part of prison officials amounting to deliberate indifference to
        [an appellant]’s health and safety; and (3) that [an appellant]
        “has exhausted the prisoner-grievance system . . . and that he
        has petitioned for relief under Article 138, UCMJ . . . .”
Lovett, 63 M.J. at 215 (footnotes omitted) (quoting United States v. Miller, 46
M.J. 248, 250 (C.A.A.F. 1997)).
   Solitary confinement 5 is not a per se Eighth Amendment violation. Avila,
53 M.J. at 101 (citing Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971)).


5 The Government challenges Appellant’s assertion he was placed in “solitary con-
finement.” Our review of case law has failed to identify a consistent or useful defini-
tion of “solitary confinement.” It also appears the term has largely fallen out of favor
in the corrections community, likely due to its imprecision and concern about the
perceptions and controversy the term carries with it. See, e.g., U.S. Dep’t of Justice,
Report and Recommendations Concerning the Use of Restrictive Housing, Final Re-
port (2016); Natasha A. Frost & Carlos E. Monteiro, Administrative Segregation in
(Footnote continues on next page)


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                    United States v. Damm, No. ACM 39399


Rather, the totality of the circumstances of the confinement conditions are
considered in determining whether a “sufficiently serious” deprivation under
the Eighth Amendment has been shown. Id. at 102. Noncompliance with ser-
vice regulations may support a finding of such deprivation, “but is not deter-
minative of the issue of punishment.” Id. (citation omitted).
    “[A] prisoner must seek administrative relief prior to invoking judicial in-
tervention” with respect to concerns about post-trial confinement conditions.
Wise, 64 M.J. at 471 (alteration in original) (quoting White, 54 M.J. at 472).
“This requirement ‘promot[es] resolution of grievances at the lowest possible
level [and ensures] that an adequate record has been developed [to aid appel-
late review].’” Id. (alterations in original) (quoting Miller, 46 M.J. at 250); see
also United States v. McPherson, 73 M.J. 393, 397 (C.A.A.F. 2014). “Absent
some unusual or egregious circumstance,” an appellant must both exhaust
the grievance system at the confinement facility as well as petition for relief
under Article 138, UCMJ. Wise, 64 M.J. at 469 (quoting White, 54 M.J. at
472).
    In this case, Appellant concedes he did not attempt to seek administrative
relief regarding his confinement conditions. Appellant’s claim that doing so
would have been “futile” is both conclusory and speculative. Without present-
ing his claims to either the confinement facility or his chain of command, we
have no way to determine what remedial action—if any—might have been
taken. Had remedial action not been taken, we would have a more developed
record that would explain the circumstances. Although we acknowledge Ap-
pellant may have viewed any attempt at securing relief to be futile, we are
unwilling to reach this conclusion, especially considering that certain aspects
of his complaints (e.g., lack of commissary privileges, scalding shower water,
and access to a phone) are of the sort ripe for action by confinement officials
at the time the problems presented. Similarly, had Appellant alerted his
chain of command as to his specific concerns about being placed in the Re-
stricted Housing Unit at a time when his command could have taken mean-
ingful action, Appellant’s command may have sought an exception to the poli-
cy of placing military members in that unit, identified an alternative con-
finement facility, or taken other corrective action. Whether his command
would have taken such action or how his command would have justified not
taking such action are questions we cannot answer because Appellant did not
raise his concerns until after he had been released from Otero County. Far



U.S. Prisons, Nat’l Inst. of Justice, NCJ 249749 (2016). We focus on the attributes of
Appellant’s confinement rather than the title applied to it.




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                   United States v. Damm, No. ACM 39399


from exhausting the prisoner-grievance system and the Article 138, UCMJ,
complaint process, Appellant did not attempt to utilize either. In failing to do
so, Appellant deprived both Otero County and his command the opportunity
to address his concerns while he was suffering them. We find no “unusual or
egregious circumstance” excusing Appellant’s failure to exhaust his adminis-
trative remedies. See Wise, 64 M.J. at 471). Therefore, Appellant is entitled to
no relief under either the Eighth Amendment or Article 55.
   2. Article 58, UCMJ—Execution of Confinement
    Under Article 58(a), UCMJ, sentences to confinement may be served in
military or non-military correctional institutions “[u]nder such instructions
as the Secretary concerned may prescribe.” 10 U.S.C. § 858. Military mem-
bers incarcerated in non-military institutions “are subject to the same disci-
pline and treatment” as non-military inmates. Id. Our superior court has
held the prohibition against commingling military prisoners with foreign na-
tionals under Article 12, UCMJ, is not inconsistent with Article 58(a) re-
quirements, and “[m]ilitary confinees can—and must—receive treatment
equal to civilians confined in the same institution, while being confined sepa-
rately from foreign nationals.” McPherson, 73 M.J. at 396.
    As with alleged violations of the Eighth Amendment and Article 55, pris-
oners must first exhaust administrative remedies before invoking judicial in-
tervention to remedy alleged violations of Article 58(a). See, e.g., United
States v. Lemburg, No. ACM 39261, 2018 CCA LEXIS 424, at *17–18 (A.F.
Ct. Crim. App. 30 Aug. 2018) (unpub. op.); United States v. Hamric, No. ACM
39096, 2018 CCA LEXIS 3, at *11–12 (A.F. Ct. Crim. App. 5 Jan. 2018) (un-
pub. op.), rev. denied, 77 M.J. 369 (C.A.A.F. 2018); United States v. Monahan,
No. ACM 38084, 2013 CCA LEXIS 748, at *23–24 (A.F. Ct. Crim. App. 28
Aug. 2013) (unpub. op.). Because we determine that Appellant failed to ex-
haust his administrative remedies, we will not now consider Appellant’s
claims cast as violations of Article 58, UCMJ.
   3. Article 66, UCMJ—Sentence Appropriateness Review
    Under Article 66(c), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find appropriate in law and fact
and may, therefore, grant sentence relief, without finding a violation of
the Eighth Amendment or Article 55, UCMJ. United States v. Gay, 74 M.J.
736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016); see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). In con-
sidering Article 66(c)-based claims, we have declined to require appellants to
demonstrate they have previously exhausted administrative remedies prior
to seeking judicial relief. See United States v. Henry, 76 M.J. 595, 610 (A. F.
Ct. Crim. App. 2017). We instead consider the entire record and typically give


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                    United States v. Damm, No. ACM 39399


“significant weight” to an appellant’s failure to exhaust those remedies before
requesting judicial intervention. Id.
    For 28 days, Appellant was kept in Otero County’s Restricted Housing
Unit segregated from the other inmates. Because he was not permitted to
leave his cell on weekends, Appellant averaged less than one hour a day each
week outside of his cell for recreation. When he was allowed recreation time,
Appellant was required to spend that time alone. Appellant was given his
meals through an opening in his cell door, and he consumed his meals alone
in his cell. The record does not disclose any interaction between Appellant
and Otero County staff other than Appellant’s initial in-processing and being
escorted while restrained to and from the shower three times a week. The
sole reason advanced by the Government for placing Appellant in the Re-
stricted Housing Unit was to avoid commingling Appellant with foreign na-
tionals incarcerated at Otero County. No evidence has been presented that
either Air Force or Otero County officials considered less-restrictive confine-
ment conditions for Appellant.
    Air Force Instruction 31-105 defines the term “restrictive housing” as hav-
ing three basic elements—a confinee being: separated from the general popu-
lation; being housed in a cell or locked room; and unable to leave the cell “for
a vast majority of the day, typically 22[ ]hours or more.” ¶ A.19.1 (emphasis in
original). 6 In general, the AFI conditions the use of restrictive housing to very
limited circumstances and—when it is imposed—confinees are to receive no
less than two hours outside of their cells per day. Id. ¶¶ A.19.1.2–3, A.19.10.
These provisions pertain to the Air Force Corrections System. Id. ¶ 2.6.2.20.
   The relevant question under Article 66(c) is whether Appellant’s confine-
ment conditions rendered his sentence inappropriately severe. We have pre-
viously held that a policy of segregating military prisoners from the general
population at a non-military confinement facility to prevent commingling
with foreign nationals does not constitute cruel and unusual punishment un-
der an Eighth Amendment analysis, absent evidence the prison officials acted
with deliberate indifference towards a prisoner’s health and safety. See, e.g.,
United States v. Wilson, 73 M.J. 529, 535 (A.F. Ct. Crim. App. 2014); United
States v. Luckado, No. ACM 37962, 2014 CCA LEXIS 397, at *11 (A.F. Ct.
Crim. App. 15 Jul. 2014) (unpub. op.). Appellant argues our decision in Unit-
ed States v. Gay entitles him to relief by virtue of being in segregated con-


6 Guidance regarding restrictive housing is set out in Attachment 19 to AFI 31-105,
titled, “Limiting the Use of Restrictive Housing.” The AFI does not use the term “soli-
tary confinement.”




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                    United States v. Damm, No. ACM 39399


finement conditions solely to prevent him from being housed with foreign na-
tionals. Staff Sergeant (SSgt) Gay was confined to a segregated cell for 23
hours a day, similar to Appellant. See Gay, 74 M.J. at 739. However, SSgt
Gay was segregated at the request of Air Force officials in spite of the fact
that the confinement facility would have kept SSgt Gay in the general popu-
lation without commingling him with foreign nationals but for the Air Force’s
request. Id. at 739, 743. Unlike the facts in Gay, Appellant was placed in the
Restricted Housing Unit by operation of Otero County’s policy of placing all
military confinees there. Although Appellant’s command acquiesced to Otero
County’s policy, we find such acquiescence is demonstrably different from af-
firmative action by military officials to override a civilian confinement facili-
ty’s policies with the resulting consequence of making the conditions of con-
finement more severe. The United States Court of Appeals for the Armed
Forces (CAAF) has held that this court did not abuse its discretion in grant-
ing relief in Gay, but pointed to the unique facts and legal errors in that case
and explained, “[i]n reaching this conclusion, we do not recognize unlimited
authority of the Courts of Criminal Appeals to grant sentence appropriate-
ness relief for any conditions of post-trial confinement of which they disap-
prove.” 75 M.J. at 269.
    Appellant’s confinement conditions at Otero County were sparse and un-
pleasant. They did not, however, rise to the level of an Eighth Amendment or
Article 55, UCMJ, violation which requires a denial of “the minimal civilized
measure of life’s necessities” or “‘deliberate indifference’ to inmate health or
safety.” Avila, 53 M.J. at 101 (quoting Farmer, 511 U.S. at 834). In Avila, the
CAAF found conditions substantially similar to Appellant’s did not amount to
a violation under either the Eighth Amendment or Article 55, UCMJ. 7 Cor-
poral Avila also complained he should have been placed in less-restrictive
confinement based on a Navy regulation; the CAAF determined “[t]he fact
that regulations were not followed does not demonstrate a ‘sufficiently seri-
ous’ deprivation under the Eighth Amendment.” Id. at 102.
    Appellant argues the Air Force violated the provisions of AFI 31-105 by
failing to adhere to the limitations on the use of restrictive housing in that
instruction. By its terms, the AFI governs Air Force confinement facilities.
Appellant has failed to establish what application, if any, the AFI has to non-


7Corporal Avila alleged, and the Government did not dispute, that he was “housed in
a windowless cell; could not communicate with other inmates; was only allowed one
hour of recreation per day, five days per week; had to wear handcuffs and shackles
when escorted outside his cell; and had to remain behind a [plexiglass] partition
when receiving visitors.” Avila, 53 M.J. at 100.




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                   United States v. Damm, No. ACM 39399


military facilities, such as Otero County, where Appellant was initially con-
fined. While we agree the Air Force must not direct confinement in a non-
military facility under conditions that would amount to cruel and unusual
punishment under law, Appellant has not established any requirement that
the Air Force must use only those civilian confinement facilities that meet the
Service’s restrictive housing standards. Accordingly, we find Appellant has
not shown a violation of AFI 31-105 by Air Force officials in his case.
    Even assuming every aspect of Appellant’s declaration is accurate, we
find he has not shown the conditions of his confinement rendered his sen-
tence inappropriately severe, and we decline to provide sentence relief under
Article 66(c), UCMJ.
B. Addendum to the SJAR
   Appellant sought clemency from the convening authority based on the
confinement conditions at Otero County. In his addendum to the SJAR, the
convening authority’s SJA acknowledged Appellant’s complaint and wrote
that he “considered carefully this allegation of error, and find[s] it to be with-
out merit.” Appellant argues the SJA’s comment “provided inadequate and
imprecise advice to the convening authority,” thereby prejudicing Appellant’s
opportunity for obtaining clemency from the convening authority. The gist of
Appellant’s argument is that by describing Appellant’s complaint as being
“without merit,” the SJA implied Appellant had no rational basis for seeking
redress.
    We review de novo alleged errors in post-trial processing. See United
States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citation omitted); United States
v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citation omitted).
The threshold for establishing prejudice in post-trial processing is low, but an
appellant must make at least “some colorable showing of possible preju-
dice.” United States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F.
2005) (quoting Kho, 54 M.J. at 65).
   Rule for Courts-Martial (R.C.M.) 1106(d)(4) requires the SJA to state
whether corrective action on the findings or sentence should be taken when
the defense clemency submissions allege legal error. Whether Appellant’s
confinement conditions violated the Eighth Amendment, or Articles 55 or 58,
UCMJ, is a question of law. Consequently, it was not error for the SJA to
summarize Appellant’s complaint as being “without merit.” The SJA’s re-
sponse “may consist of a statement of agreement or disagreement with the
matter raised by the accused. An analysis or rationale for the staff judge ad-
vocate’s statement, if any, concerning legal error is not required.” R.C.M.
1106(d)(4). Here, the SJA identified Appellant’s allegation of error, consid-




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                    United States v. Damm, No. ACM 39399


ered the matter, and stated his legal opinion about it. Nothing more was re-
quired. 8

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


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




8 We have reached the same conclusion in recent cases raising this same issue. See,
e.g., United States v. Lemburg, No. ACM 39261, 2018 CCA LEXIS 424, at *20–21
(A.F. Ct. Crim. App. 30 Aug. 2018) (unpub. op.); United States v. Chesser, No. ACM
39207, 2018 CCA LEXIS 229, at *19–20 (A.F. Ct. Crim. App. 4 May 2018) (unpub.
op.), rev. denied, 78 M.J. 67 (C.A.A.F. 2018).




                                        12
