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

                             No. ACM S32520
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                              Kyle B. HART
              Staff Sergeant (E-5), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 24 July 2019
                         ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 1 month,
forfeiture of $1,093.00 pay per month for 1 month, reduction to E-1,
and a reprimand. Sentence adjudged 7 March 2018 by SpCM convened
at Joint Base Pearl Harbor-Hickam, Hawaii.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Captain Peter F. Kellett, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge J.
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    This is an unpublished opinion and, as such, does not serve as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:
   Appellant was found guilty by a military judge, in accordance with his
pleas and pursuant to a pretrial agreement, of four specifications of wrongful
                    United States v. Hart, No. ACM S32520


use of controlled substances in violation of Article 112a, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 912a.1 A panel of officer members an-
nounced a sentence of a bad-conduct discharge, confinement for one month,
forfeiture of $1,092.002 pay per month for one month, reduction to the grade
of E-1, and a reprimand. The convening authority approved the sentence as
adjudged.
    Appellant raises two issues for our consideration: (1) whether the military
judge committed plain error by not instructing the members how to consider
evidence that Appellant inhaled methamphetamine smoke twice in succes-
sion, when he was charged with only a single use, and (2) whether the con-
vening authority failed to consider Appellant’s complete clemency submis-
sion. In addition, although not raised as an issue, we address an error in the
record with respect to the announcement of the sentence. We affirm the find-
ings and modify the sentence.

                                I. BACKGROUND
    On 4 November 2017, Appellant invited a new civilian acquaintance to his
home. This new acquaintance invited five other civilians to Appellant’s house,
some of whom brought drugs with them. One of the visitors began smoking
methamphetamine with a pipe and offered some to Appellant. Appellant in-
gested the methamphetamine via a method he called “shotgunning,” in which
the visitor with the pipe first inhaled smoke from the pipe and then exhaled
the smoke into Appellant’s mouth. Appellant inhaled methamphetamine
smoke twice in this fashion. Appellant testified these two instances of “shot-
gunning” were “back to back” and in “pretty quick[ ]” succession. To counter-
act the anxiety he felt from smoking methamphetamine, Appellant ingested
three marijuana-laced gummy candies he received from another visitor. Later
in the evening, Appellant consumed a liquid brought by one of the visitors
that contained “ecstasy.” At some point after consuming the infused liquid, a
visitor offered Appellant cocaine, which Appellant snorted twice with about
three minutes between ingestions.



1All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial are to the UCMJ and rules found in the Manual for Courts-
Martial, United States (2016 ed.).
2 As explained in further detail later in this opinion, the members announced a sen-
tence to forfeitures of $1,092.00, but the number was errantly recorded in the trial
transcript as $1,093.00. Post-trial processing documents indicate the convening au-
thority intended to approve a sentence to the lower amount.




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                  United States v. Hart, No. ACM S32520


    On 8 November 2017, Appellant was randomly selected for urinalysis
testing. The subsequent analysis of Appellant’s urine disclosed evidence of
Appellant’s ingestion of methamphetamine, marijuana, 3,4-methylenedioxy-
methamphetamine (ecstasy), and cocaine. Appellant was charged with a sin-
gle use of each drug.

                              II. DISCUSSION
A. Number of Uses of Methamphetamine
   1. Additional Background
   During Appellant’s providence inquiry—after Appellant said he inhaled
methamphetamine twice using the “shotgunning” method—the following col-
loquy occurred:
       MJ [military judge]: You’ve only been charged with using
       methamphetamine one time. Is that your understanding? A
       single use?
       ACC [Accused]: Yes, Your Honor.
      MJ: What you described to me were essentially two use[s] . . .
      arguably. They’re not charged as two uses. It seems like the
      government has chosen to treat this as one single transaction.
      So you’re not charged with divers uses, even though you’ve de-
      scribed to me two times when this other individual blew the
      meth into you; into your lungs. Do you understand that distinc-
      tion?
      ACC: Yes, sir.
      MJ: So I’m not finding you guilty of using methamphetamine
      on divers occasions. “Divers occasion” meaning more than one
      time. Do you understand that?
      ACC: Yes, Your Honor.
      MJ: So for the purposes of this trial, we’re treating those two as
      one use. So when I ask you questions about your use, I’m—
      despite the fact there’s only one—I’m kind of talking about both
      of those two ingestions. You understand that distinction?
      ACC: Yes, Your Honor.
   Neither trial counsel nor trial defense counsel raised any objections or
concerns with respect to the above colloquy, and the colloquy was included in
the providence inquiry recording later played for the members.




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                       United States v. Hart, No. ACM S32520


    After the providence inquiry recording was played, one member—Colonel
(Col) JK—asked, “Are you admitting to wrongful use of drugs on 10 October,
4 November, and 8 November?”3 The military judge responded to the question
as follows:
          The short answer to that is “No.” The issue with the charged
          time period and you have multiple dates—this is a date range
          during which the accused has been alleged to have used that
          substance on one occasion. So, the accused has been charged
          with a single use of all four of these drugs at some point during
          that charged time period. The end of the charged time period is
          tied to the urinalysis that was collected; the urine sample that
          was collected. And then you “backdate from there” is kind of
          how the charging window is created. And then you heard the
          accused, as the Care4 inquiry was played back to you, explain
          to you when that one occasion was.
(Footnote added.)
      2. Law
    Rule for Courts-Martial (R.C.M.) 1005(a) requires the military judge to
“give the members appropriate instructions on sentence.” We review a mili-
tary judge’s sentencing instructions for abuse of discretion. United States v.
Hopkins, 56 M.J. 393, 395 (C.A.A.F. 2002) (citing United States v. Greaves, 46
M.J. 133, 138 (C.A.A.F. 1997)). “The military judge has considerable discre-
tion in tailoring instructions to the evidence and law.” Id. “Failure to object to
an instruction or to omission of an instruction before the members close to
deliberate on the sentence constitutes waiver of the objection in the absence
of plain error.” R.C.M. 1005(f).
   Appellant did not request or object to any instructions at trial pertaining
to whether his drug use consisted of single or multiple uses. As a result, we
review for plain error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F.
2018). To prevail, Appellant bears the burden of establishing (1) error, (2)
that is clear or obvious, (3) that results in material prejudice to a substantial


3 Appellant was charged in Specifications 1, 2, and 3 with wrongful use of 3,4-
methylenedioxymethamphetamine, cocaine, and methamphetamine, respectively,
“between on or about 4 November 2017 and on or about 8 November 2017.” He was
charged in Specification 4 of wrongfully using marijuana “between on or about 10
October 2017 and on or about 8 November 2017.”
4   United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).




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                    United States v. Hart, No. ACM S32520


right of his. Id. at 401. “[A]ll three prongs must be satisfied.” United States v.
Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018) (citation and internal quotation
marks omitted). Material prejudice is “a reasonable probability that, but for
the error [claimed], the outcome of the proceeding would have been differ-
ent.” Id. (citation and internal quotation marks omitted).
    3. Analysis
    With respect to the military judge’s colloquy regarding the number of
times Appellant used methamphetamine, Appellant has failed to demon-
strate any error, plain or otherwise. During Appellant’s providence inquiry,
the military judge explained that Appellant was not charged with multiple
uses of methamphetamine and that Appellant’s back-to-back inhalations of
the drug would be treated as one use. That inquiry was recorded and played
back for the members. Prior to the members’ sentencing deliberations, the
military judge instructed the panel members that their duty was “to vote for
a proper sentence for the offenses of which the accused has been found
guilty.”
   Appellant was charged with and convicted of a single use of methamphet-
amine, and the military judge explained both that Appellant had not been
charged with divers uses and that the two inhalations would be treated as a
single transaction.5 The military judge accurately stated the charged offense,
and he accurately explained how the facts of the case applied to the offense as
charged. The military judge’s discussion of the issue instructed that Appel-
lant’s two inhalations were to be treated as a single use. To the extent the
members may have misunderstood the military judge’s comments during the
providence inquiry, the military judge further clarified the evidence and
charged offenses when he answered Col JK’s question by explaining, “the ac-
cused has been charged with a single use of all four of these drugs at some
point during that charged time period. . . . [Y]ou heard the accused, as the
Care inquiry was played back to you, explain to you when that one occasion
was.”6 The members were thus advised Appellant had pleaded guilty to a sin-


5 Although not addressed by Appellant, his cocaine use similarly involved two inges-
tions separated by a brief period of time. The military judge characterized Appel-
lant’s cocaine use as “kind of like a continual thing.” We agree, and our analysis of
Appellant’s methamphetamine use applies equally to his cocaine use.
6 The stipulation of fact admitted at trial provided that all of Appellant’s drug use
occurred the night of 4 November 2017 and in the early morning of 5 November 2017.
Appellant verbally stated the same during his providence inquiry. The written stipu-
lation was provided to the members.




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                     United States v. Hart, No. ACM S32520


gle use of four different drugs—multiple ingestions notwithstanding—and
that the court was to consider the use of each drug as a single use. Appellant
has failed to demonstrate that there was anything incorrect or prejudicial
with the military judge’s comments or instructions, and we are convinced the
members were not left with a misunderstanding of either the scope of Appel-
lant’s drug use or how that use was to be considered for purposes of sentenc-
ing.7 Appellant has not identified error, much less plain error, with respect to
the instructions given by the military judge.
B. Completeness of Clemency Submission
    1. Additional Background
    Appellant’s trial concluded on 7 March 2018. The record of trial forwarded
for our review includes a staff judge advocate’s recommendation (SJAR) dat-
ed 17 April 2018 explaining that the convening authority had the authority to
disapprove, commute, or suspend any part of the sentence except the bad-
conduct discharge. The staff judge advocate (SJA) recommended the conven-
ing authority approve the sentence as adjudged. The next document in the
record of trial is an addendum to the SJAR, dated 1 May 2018, which lists
“Accused’s Clemency Submission, dtd 26 Apr 18” as the second attachment.
This addendum advised the convening authority that Appellant had submit-
ted clemency matters requesting disapproval of the adjudged bad-conduct
discharge and that the convening authority “must consider these matters [in
Attachment 2] before taking final action in this case.” The attachment con-
sists of a one-page letter from Appellant and three character statements. Ap-
pellant’s letter ends mid-sentence at the end of the page and has no signature
or signature block.
    Following the addendum is a second addendum, dated 2 May 2018, ex-
plaining that the first addendum had been served on Appellant and that Ap-
pellant declined to submit additional matters. The second addendum lists the
clemency submission as an attachment, but the second addendum’s attach-
ments are not included in the record of trial (rather, the reader is referred to
the attachments to the first addendum). The second addendum reminded the
convening authority that he must consider Appellant’s clemency submission,



7 Appellant has not explained what instruction he believes the military judge should
have given, arguing only that the military judge should have either: (1) directed the
colloquy pertaining to the multiple uses be redacted from the recorded providence
inquiry, or (2) instructed the members “as to how they could consider those ‘two uses’
in their deliberations on sentence.”




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                   United States v. Hart, No. ACM S32520


and the convening authority signed a statement that he had considered the
second addendum’s attachments before taking action.
    We ordered the Government to show cause why new post-trial processing
or other corrective action was not required due to the apparent missing por-
tion of Appellant’s clemency letter. The Government conceded that the record
of trial was incomplete insofar as it was missing the second page of Appel-
lant’s clemency memorandum. The Government argued that the error was
administrative and that the convening authority actually did review a com-
plete clemency submission. In support of its arguments, the Government
submitted declarations from the legal office’s noncommissioned officer in
charge (NCOIC) of military justice, the SJA, and the convening authority,
along with the complete clemency package including the second page of Ap-
pellant’s letter.
    The NCOIC asserts in his declaration that the legal office’s electronic files
contain both a complete clemency package and one missing the second page
of Appellant’s clemency letter. He surmises that the complete package was
provided to the convening authority prior to action being taken on the case,
but that the incomplete version was included in the record of trial when that
record was later assembled. The SJA recalls identifying an incomplete clem-
ency submission in one court-martial, but he does not recall if it was Appel-
lant’s court-martial or some other case. He says he would have noticed any
incomplete clemency package, because he specifically reviews those submis-
sions before sending them to the convening authority. The convening authori-
ty states that he does not recall Appellant’s clemency submission, but that he
always reviews such submissions, and he believes he would have noticed a
missing page. Both the SJA and the convening authority state that after re-
viewing the second page of the clemency memorandum, they would not
change their respective advice and action.
    Regarding the document at issue here—Appellant’s clemency letter—the
first page summarizes Appellant’s duty achievements and asks the convening
authority to disapprove the adjudged bad-conduct discharge. The last, incom-
plete, line on the page is: “Through everything that has transpired, I still de-
fend the Air Force and the Military Justice System, though it pains me deep-
ly;” the second page reads, in its entirety:
       to know that it views me as a criminal now. I trusted my attor-
       neys, I trusted the panel members, and now I am trusting you.
       I am attaching character letters for you to read that were at-
       tached to my sentencing package, all from leaders who have
       worked with me. I hope that you will find it worth your time to
       go over these, so you can see that I am more than a violation of
       Article 112a.

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                   United States v. Hart, No. ACM S32520


       I know that you are a busy man and I am sorry that my mis-
       take has made you even busier. I just make one final plea, Sir,
       on behalf of someone who would do anything for their country.
       Please don’t make me an example for what can happen to of-
       fenders, ruining any chance I have at putting my life back to-
       gether again. May God guide and lead you to a just decision.
       Thank you.
   2. Law
   Proper completion of post-trial processing is a question of law we review
de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
    An accused may submit written matters to the convening authority for
consideration with respect to the findings and sentence of a given case. Arti-
cle 60(b)(1), UCMJ, 10 U.S.C. § 860(b)(1); R.C.M. 1105. Before taking action
on the findings or sentence in a case, the convening authority must consider
any matters submitted by the accused under R.C.M. 1105. See R.C.M.
1107(b)(3)(iii). The record of trial must demonstrate that the convening au-
thority did in fact consider post-trial matters submitted by Appellant before
taking action. United States v. Craig, 28 M.J. 321, 324–25 (C.M.A. 1989).
    The convening authority is also required to obtain and consider the SJA’s
written recommendation before taking action on any general court-martial
case or any special court-martial case in which a bad-conduct discharge has
been adjudged. Article 60(e), UCMJ, 10 U.S.C. § 860(e). This recommendation
must be served on the accused. Id. Air Force practice is to serve the SJAR on
the accused and then attach any matters submitted by an accused or defense
counsel to an addendum to the SJAR, which is then provided to the conven-
ing authority. Air Force Instruction (AFI) 51-201, Administration of Military
Justice, ¶¶ 8.19, 8.20 (18 Dec. 2017). When an SJA prepares an addendum to
an SJAR “stating that matters submitted by the defense are attached to the
addendum and the convening authority must consider these matters before
taking action on the case,” the Government is “entitled to rely on a presump-
tion of regularity with respect to whether the convening authority has per-
formed his responsibilities in a proper manner.” United States v. Foy, 30 M.J.
664, 665–66 (A.F.C.M.R. 1990).
    “Because of the highly discretionary nature of the convening authority’s
action on [a] sentence,” we grant relief for errors in the clemency process if
Appellant presents “some colorable showing of possible prejudice” affecting
his opportunity for clemency. Kho, 54 M.J. at 65 (quoting United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).




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                   United States v. Hart, No. ACM S32520


   3. Analysis
    Neither Appellant nor the Government has conclusively established
whether or not the convening authority received and considered the second
page of Appellant’s clemency letter. Appellant relies on the fact the page is
missing in the record of trial as proof the convening authority never reviewed
it. The Government, meanwhile, points to the SJA’s and convening authori-
ty’s regular practices of reviewing all clemency materials and their beliefs
they would have caught the error at the time they reviewed the matters in
Appellant’s case. Neither the SJA nor the convening authority specifically
recalls the clemency package in this case, and the military justice NCOIC’s
declaration evidences a similar lack of clear recollection.
    Although a close call, we conclude that Appellant has not met his burden
in demonstrating error—that is, that the second page of his clemency state-
ment was not actually provided to the convening authority. First, the SJA
and convening authority have provided declarations explaining their common
practices of reviewing clemency matters submitted by an accused. Second, the
SJA—on two different occasions—advised the convening authority that he
was required to consider these matters. Third, the convening authority at-
tested at the time of taking action that he had considered Appellant’s sub-
mission. And, fourth, even a cursory review of the matters would have re-
vealed a missing second page of Appellant’s letter due to the first page ending
mid-sentence and having no signature or signature block. Considering these
facts, we conclude the NCOIC’s assessment that a complete package was pro-
vided to the convening authority for review, while an incomplete one was er-
rantly included in the record of trial, is what actually occurred. As such, Ap-
pellant has not met his burden of showing error was committed other than in
the administrative post-action assembly of the record of trial.
    Even if we were to conclude that the convening authority was not given
the second page of Appellant’s clemency letter before taking action, Appellant
has not demonstrated a colorable showing of possible prejudice. On the first
page of Appellant’s letter, Appellant asked the convening authority to disap-
prove the adjudged bad-conduct discharge based upon AFI 51-201, ¶ 8.17.1.
This paragraph implements Article 60(c)(4)(B), UCMJ, 10 U.S.C. §
860(c)(4)(B), which operates as an exception to the general rule that a conven-
ing authority may not disapprove, commute, or suspend a bad-conduct dis-
charge. This exception requires—as a prerequisite—a recommendation from
trial counsel for leniency based upon assistance provided by an accused in
investigating or prosecuting other cases. According to the SJAR addendum,
Appellant neither provided such assistance nor did trial counsel make the
required recommendation. Appellant has not demonstrated or argued to the
contrary.


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                    United States v. Hart, No. ACM S32520


     In addition, a careful review of the second page of Appellant’s letter yields
little information likely to sway a reviewer. In essence, Appellant states in
the second page that he trusts the convening authority, he has attached
character letters, and he is sorry for impinging on the convening authority’s
time. Appellant further asks the convening authority to not “make [him] an
example for what can happen to offenders, ruining any chance [he would
have] at putting [his] life back together again.” Considering both pages of
Appellant’s letter, the language on the second page does not provide any ad-
ditional information likely to have resulted in a different action, especially in
light of the fact that the convening authority had no power to grant the one
thing Appellant was asking him to do: disapprove the adjudged bad-conduct
discharge. Thus, Appellant has not established a colorable showing of preju-
dice, even if we were to assume the convening authority never saw the second
page of his letter.
C. Announcement of Sentence
    According to the trial transcript, the court-martial president announced a
sentence including forfeitures of $1,093.00 for one month, but the panel’s
worksheet indicates forfeitures of $1,092.00 for one month. The panel was
instructed that the latter amount was the maximum monthly forfeiture for
an E-1, and all post-trial processing documents in the record of trial—to in-
clude the report of result of trial attached to the SJAR—describe the amount
adjudged as $1,092.00. The convening authority’s action, however, approved
the sentence set out in the authenticated record of trial, which included the
higher forfeiture amount.
    We ordered the Government to show cause why the record should not be
returned for correction. The Government submitted an affidavit from the mil-
itary justice NCOIC indicating that a subsequent review of the audio record-
ing of the proceedings revealed the president of the court announced forfei-
tures in the amount of $1,092.00. Apparently, that number was errantly
transcribed as $1,093.00. Appellant did not object to the Government’s re-
sponse to our order. Due to the minor nature of the error and the lack of dis-
pute over the issue, we will correct the error based upon the Government’s
affidavit by only approving forfeitures of $1,092.00. See United States v.
Solak, 28 C.M.R. 6, 10–11 (C.M.A. 1959).

                               III. CONCLUSION
    We approve only so much of the sentence as provides for a bad-conduct
discharge, confinement for one month, forfeiture of $1,092.00 pay per month
for one month, reduction to the grade of E-1, and a reprimand. Article 66(c),
UCMJ, 10 U.S.C. § 866(c). The findings approved by the convening authority
are correct in law and fact, and no error materially prejudicial to the substan-

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                   United States v. Hart, No. ACM S32520


tial rights of Appellant occurred. Article 59(a), UCMJ, 10 U.S.C. § 859(a). Ac-
cordingly, the approved findings and the modified sentence are AFFIRMED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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