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

                               No. ACM 38901
                          ________________________

                             UNITED STATES
                                  Appellee
                                      v.
                               David L. HELM
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                          ________________________

           Appeal from the United States Air Force Trial Judiciary
                         Decided 8 February 2017
                          ________________________

Military Judge: Vance H. Spath (sitting alone).
Approved sentence: Dishonorable discharge, confinement for 25 years, and re-
duction to E-1. Sentence adjudged 24 August 2015 by GCM convened at Scott
Air Force Base, Illinois.
For Appellant: Major Thomas A. Smith, USAF.
For Appellee: Colonel Laura J. Megan-Posch USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Senior Judge J. BROWN delivered the opinion of the Court, in which Chief
Judge DREW and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
J. BROWN, Senior Judge:
    At a judge alone general court-martial, Appellant was convicted, consistent
with his pleas, of desertion, rape of a child, assault consummated by a battery
against that same child, wrongfully filming the private area of an adult with-
out her consent, and wrongfully broadcasting a recording of the private area of
an adult without her consent, in violation of Articles 85, 120b, 128, and 134,
                      United States v. Helm, No. ACM 38901


UCMJ, 10 U.S.C. §§ 885, 920b, 928, 934. 1 The military judge sentenced Appel-
lant to a dishonorable discharge, confinement for 25 years, forfeiture of all pay
and allowances, and reduction to E-1. All of the adjudged and mandatory for-
feitures were deferred until action. The convening authority waived the man-
datory forfeitures for a period of six months for the benefit of Appellant’s de-
pendents, and approved only that portion of the sentence that included a dis-
honorable discharge, confinement for 25 years, and a reduction to E-1.
   On appeal, Appellant’s sole assignment of error is that the staff judge ad-
vocate’s recommendation (SJAR) incorrectly advised the convening authority
that a dishonorable discharge was a mandatory punishment for these offenses.
Finding no prejudice, we affirm the findings and sentence.

                                   I. BACKGROUND
   All of Appellant’s crimes were committed prior to 24 June 2014. The SJAR
advised that a dishonorable discharge was mandatory for his offense under
Article 120, UCMJ. The Government concedes, and we agree, that this advice
was erroneous as a punitive discharge was not a mandatory offense for these
crimes since they were committed prior to 24 June 2014.
    In Appellant’s written clemency response, Appellant’s counsel correctly
told the convening authority that “there is no mandatory minimum sentence
requirement of a dishonorable discharge in this case . . . given the pre-24 June
2014 date of the offenses.” Appellant’s sole request in clemency was to set aside
that part of the sentence which called for a reduction in rank and forfeiture of
all pay and allowances. This request was for the purpose of providing the great-
est amount of financial support for Appellant’s dependents.
    The addendum to the SJAR stated that Appellant did not assert any legal
errors and failed to comment on whether a dishonorable discharge was a man-
datory sentence for these offenses. The convening authority then followed the
SJAR by approving only so much of the punishment that included a dishonor-
able discharge, 25 years of confinement, and reduction in rank to E-1. The con-
vening authority did not grant Appellant’s request to set aside the reduction
in rank. The convening authority did waive the automatic forfeitures for the
benefit of Appellant’s dependents for the maximum allowable time.




1 As a condition of the pretrial agreement, the Government dismissed with prejudice
two specifications of sexual assault upon an adult, a specification of sexual assault of
a child, a specification of sexual abuse of a child, and a specification of assault consum-
mated by a battery against an adult, in violation of Articles 120, 120b, and 128, UCMJ,
10 U.S.C. §§ 920, 920b, 928.


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                    United States v. Helm, No. ACM 38901


                                II. DISCUSSION
    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); United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004). Although the threshold for establishing preju-
dice in this context is low, the appellant must nonetheless make at least “some
colorable showing of possible prejudice.” United States v. Scalo, 60 M.J. 435,
436–37 (C.A.A.F. 2005) (quoting Kho, 54 M.J. at 65).
    The National Defense Authorization Act for Fiscal Year 2014 (FY 14
NDAA) created a mandatory minimum sentence of a dismissal or dishonorable
discharge for rape of a child. Pub. L. No. 113-66, § 1705(a), 127 Stat. 672, 959
(2013). Pursuant to section 1705(c) of the FY 14 NDAA, this amendment did
not take effect until 24 June 2014, 180 days after the FY 14 NDAA was enacted.
Id. at 960. As Appellant’s crimes were committed prior to the effective date of
FY 14 NDAA, the SJAR was incorrect when it advised the convening authority
that a dishonorable discharge was a mandatory portion of the punishment.
This SJAR error was plain and obvious.
   Nevertheless, Appellant must still demonstrate a colorable showing of prej-
udice to prevail on this issue. Whether an appellant was prejudiced by a mis-
take in the SJAR generally requires a court to consider 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).
     The Government was able to demonstrate that the error did not prejudice
Appellant. It is not necessary to speculate about “what could have been” as the
convening authority provided that very information through submission of an
affidavit to this court. In the affidavit, the convening authority stated that he
specifically remembered this case and the action he took in the case. He then
swore as follows:
       In the SJAR, I was advised that given the offenses for which the
       Accused was found guilty, a dishonorable discharge was manda-
       tory. I have since been advised that this was an erroneous state-
       ment. I take my role as the convening authority very seriously.
       Although that statement in the SJAR was erroneous, given the
       gravity and nature of the Accused’s offenses, and reviewing the
       record as a whole, even if that language had not been in the
       SJAR, I would have still approved the dishonorable discharge,
       as adjudged by the military judge.




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                      United States v. Helm, No. ACM 38901


   As Appellant is unable to demonstrate a colorable showing of prejudice, he
cannot prevail on this issue. 2

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


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




2 Appellant also makes a passing reference to the erroneous statement in the adden-
dum to the staff judge advocate’s recommendation (SJAR) that the Defense raised no
legal errors in their clemency submission, despite the clemency submission’s correct
assertion that a punitive discharge was not a mandatory punishment. The failure to
address a defense claim of legal error in an addendum to an SJAR can be remedied
through appellate litigation of the claimed error. United States v. Hamilton, 47 M.J.
32, 35–36 (C.A.A.F. 1997). It is appropriate for this court to consider whether any prej-
udice may have resulted from the failure to address the defense claims of legal error
in the addendum to the SJAR. United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996).
Appellant has raised this issue on appeal and, for the reasons previously stated, Ap-
pellant was not prejudiced by this omission.


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