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

                              No. ACM 38911
                         ________________________

                           UNITED STATES
                                  Appellee
                                     v.
                           James A. KESTER
                     Airman First Class, USAF, Appellant
                         ________________________

            Appeal from the United States Air Force Trial Judiciary
                            Decided 7 February 2017
                         ________________________

Military Judges: Gregory O. Friedland (arraignment); Shelly W. Schools (sit-
ting alone).
Approved sentence: Bad-conduct discharge, confinement for 100 days, and re-
duction to E-1. Sentence adjudged 22 June 2015 by SpCM convened at
Kadena Air Base, Okinawa, Japan.
For Appellant: Major Thomas A. Smith, USAF and Captain Jarett F. Merk,
USAF.
For Appellee: Major Mary Ellen Payne, USAF; Captain Matthew L. Tusing,
USAF; and 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    This is an unpublished opinion and, as such, does not serve as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 plea, of an attempted lewd act by communicating sexually explicit
                       United States v. Kester, No. ACM 38911


language to a child whom he believed was between 12 and 15 years old, in
violation of Article 80, UCMJ, 10 U.S.C. § 880. 1 The military judge sentenced
Appellant to a bad-conduct discharge, confinement for 100 days, and reduction
to E-1. The convening authority approved the sentence as adjudged.
    On appeal, Appellant asserts that the staff judge advocate’s recommenda-
tion (SJAR) incorrectly advised the convening authority to follow the revised
Article 60, UCMJ, 10 U.S.C. § 860, even though the offenses occurred prior to
24 June 2014. Finding no error, we affirm the findings and sentence.

                                   I. BACKGROUND
    Appellant, a 19-year-old Airman First Class, was perusing Craigslist in
April 2014 when he found an advertisement for a female in the “personals”
section of the Okinawa portion of the website. In the advertisement, the person
identified herself as 18 years old. He responded to the advertisement by email
and told her he wanted to meet her and hang out. During the exchange of in-
troductory emails, “Savanah” told Appellant that she was actually 15 years
old. They continued to communicate with each other through email.
   The following month, Appellant directed the conversation to topics of a sex-
ually explicit nature and described what he would do to her sexually if given
an opportunity. “Savanah” provided him with an on-base address. Appellant
knocked on the door and discovered that “Savanah” was, in fact, a special agent
with the Air Force Office of Special Investigations.

                                    II. DISCUSSION
    Appellant asserts that it was error for the staff judge advocate to advise the
convening authority that, although it was not applicable to this case, he con-
sider and follow the new version of Article 60 when determining whether to
grant clemency. We find that, under these facts, the staff judge advocate’s ad-
vice did not constitute plain error.
    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).



1   He was acquitted of wrongfully possessing child pornography. In addition, as a con-
dition of the pretrial agreement, the Government dismissed an additional specification
of wrongfully using lysergic acid diethylamide (LSD).


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                      United States v. Kester, No. ACM 38911


    Failure to timely comment on matters in the SJAR, to include matters at-
tached to it, forfeits the issue unless there is plain error. Rule for Courts-Mar-
tial (R.C.M.) 1106(f)(6); Scalo, 60 M.J. at 436. Under a plain error analysis, the
appellant bears the burden of showing: (1) there was an error, (2) it was plain
or obvious, and (3) the error materially prejudiced a substantial right of the
appellant. Kho, 54 M.J. at 65.
    For offenses occurring prior to 24 June 2014, a convening authority has
the unfettered discretion to set aside findings or reduce adjudged sentences.
Article 60(c)(4)(A), UCMJ, 10 U.S.C. §860(c)(4)(A) (2013). 2 For offenses occur-
ring on or after that date, a convening authority’s power to grant clemency is
significantly reduced. Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A)
(2014).
    The sole offense for which Appellant was convicted occurred on 13 May
2014, so the convening authority had unfettered discretion to set aside the find-
ing or reduce any portion of the sentence. The SJAR correctly advised the con-
vening authority that the offense for which Appellant was convicted occurred
“six weeks before statutory changes to the Uniform Code of Military justice
became effective.” The SJAR further advised:
         Had the offense occurred later, those changes would have re-
         moved your authority to disapprove the findings on his offense
         or the adjudged punitive discharge he received, and you would
         be required to provide a written explanation of the reasons for
         any other action taken on the adjudged sentence. I advise that
         you consider and follow Congress’s new guidance, though not
         technically applicable, in future determinations for this case.
   The SJAR then recommended that the convening authority approve the
sentence as adjudged.
   The SJAR was provided to both Appellant and his counsel. Appellant re-
quested that the convening authority set aside the punitive discharge. In re-
sponse to the SJAR, Appellant’s trial defense counsel informed the convening
authority that:
         As the law applies to this case, you are permitted to set aside the
         bad conduct discharge as [Appellant] requested. In fact, the Staff


2   The convening authority’s power under Article 60, UCMJ, 10 U.S.C. § 860, was re-
stricted as part of the National Defense Authorization Act for Fiscal Year 2014 (FY 14
NDAA), Pub. L. No. 113-66, § 1702(b), 127 Stat. 672, 955–57 (2013). Pursuant to sec-
tion 1702(d)(2), this amendment did not take effect until 24 June 2014, 180 days after
the FY 14 NDAA was enacted.


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                   United States v. Kester, No. ACM 38911


       Judge Advocate legal review dated 2 September 2015 supports
       the fact that you have the authority to set aside the bad conduct
       discharge. The [staff judge advocate] even asked that you con-
       sider the intent of Congress and the defense also asks you to
       consider Congress’ intent.
    The convening authority, after considering Appellant’s clemency submis-
sion and signing a memorandum to that effect, approved the sentence as ad-
judged.
    The SJAR correctly informed the convening authority that the prior version
of Article 60 was in effect and that, because of the date of the offense, the new
Article 60, which would have restricted his clemency authority, was not appli-
cable to Appellant’s case. Despite making this clear, the SJAR recommended
that the convening authority consider and follow the new guidance in deter-
mining whether to apply his highly discretionary clemency authority. This
could be interpreted in one of two ways: (1) that the convening authority was
required to follow the new guidance even though it was not applicable to this
case; or (2) that the convening authority could consider the reasoning behind
the change in the law in determining whether to grant clemency in this case.
Appellant’s counsel apparently read the SJAR as advising the convening au-
thority that he could and should deny the clemency request, but was not re-
quired to do so. This belief was further reinforced by the SJAR when it re-
stated that the new limitations on clemency were “not technically applicable”
to this case. Appellant reiterated this very point, by reaffirming for the con-
vening authority that the SJAR advised that he did have the authority to grant
the requested clemency in this case. The convening authority was advised of
both the old and new versions of Article 60, the differences between them, and
which one applied to this case. Accordingly, there is nothing in the advice to
the convening authority that suggested the convening authority was not au-
thorized to grant Appellant’s request to disapprove the punitive discharge.
    The SJAR used the change in the law as an additional argument that the
convening authority should hesitate to grant clemency in this case. As to this
particular use of the changed law, Appellant chose not to object. There is noth-
ing patently incorrect with a convening authority considering that similarly
situated offenders that committed the crime six weeks after Appellant would
be deprived of the same chance for clemency enjoyed by Appellant. Appellant
had an opportunity to argue why the convening authority should use his broad
clemency authority in this case. He did so when his counsel emphasized that
the convening authority had the power to set aside the punitive discharge and
set forth the reasons why the convening authority should do so.
   We conclude that the convening authority was correctly advised as to his
authority to disapprove the punitive discharge as requested by Appellant. We

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                    United States v. Kester, No. ACM 38911


also conclude that, although unwise, it was not plain error for the staff judge
advocate to advise the convening authority that the change in the law, while
not in effect in this case, could be a reason for the convening authority to choose
not to invoke his broad clemency authority. Furthermore, as the convening au-
thority was aware that he had broad discretion, yet personally chose not to use
that authority, Appellant was not prejudiced.

                                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




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