            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                       v.

                                      Airman BROCK A. BOREN
                                        United States Air Force

                                                ACM S32206

                                              08 January 2015

           Sentence adjudged 21 November 2013 by SPCM convened at Sheppard
           Air Force Base, Texas. Military Judge: Matthew S. Ward (sitting alone).

           Approved Sentence: Bad-conduct discharge, confinement for 3 months,
           forfeiture of $1,010.00 pay per month for 3 months, and reduction to E-1.

           Appellate Counsel for the Appellant: Captain Travis L. Vaughan.

           Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;
           Major Daniel J. Breen; and Gerald R. Bruce, Esquire.

                                                     Before

                              MITCHELL, WEBER, and CONTOVEROS
                                    Appellate Military Judges

                                       OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent under Air Force Rule of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



WEBER, Judge:

       A military judge sitting as a special court-martial convicted the appellant, pursuant
to his pleas, of one specification of violating a lawful general regulation for possessing
Spice on divers occasions, one specification of using marijuana, and one specification of
using methamphetamine on divers occasions, in violation of Articles 92 and 112a,
UCMJ, 10 U.S.C. §§ 892, 912a. The adjudged and approved sentence consisted of a
bad-conduct discharge, confinement for 3 months, forfeiture of $1,010.00 pay per month
for 3 months, and reduction to E-1.
        The appellant asserts he is entitled to new post-trial processing because the
staff judge advocate (SJA) failed to advise the convening authority of the military judge’s
statement concerning the appellant’s suitability for the return to duty program. We
disagree and affirm.

                                Staff Judge Advocate’s Recommendation

       The record reveals the appellant’s military service record was positive until he
returned from a deployment in early 2012, when personal problems affected him and his
misconduct that formed the basis for this court-martial began. The appellant pled guilty
to the various drug offenses outlined above. Following announcement of the sentence,
the military judge noted, “The Court would add that based on the accused’s record while
deployed and reflected in his Enlisted Performance Reports prior to 4 July 2012, the
Court believes that Airman Boren would make an excellent candidate for the Return to
Duty Program if he chose to apply.”

        Following completion of the record of trial, the appellant was provided the staff
judge advocate’s recommendation (SJAR), which did not mention the military judge’s
statement about the appellant’s suitability for the return to duty program. Neither the
submission by the appellant nor that of his trial defense counsel requested the appellant
be considered for this program, nor did either allege any error in the SJAR. The appellant
expressed no desire to continue his military service, but in fact outlined his plans to
attend school following his release from confinement. After considering the appellant’s
clemency submission, the convening authority approved the sentence as adjudged. A
pretrial agreement had no effect on the convening authority’s ability to approve the
adjudged sentence. The appellant alleges the SJA should have advised the convening
authority of the military judge’s statement concerning the return to duty program.

        “A recommendation by a military judge must be brought to the attention of the
convening authority to assist him in considering the action to take on the sentence.”
United States v. Lee, 50 M.J. 296, 297 (C.A.A.F. 1999) (citing United States v. Clear,
34 M.J. 129, 134 (C.M.A. 1992)). Failure to comment in a timely manner on matters in
the SJAR, or on matters attached to the SJAR, forfeits1 any later claim of error,
resulting in plain error review on appeal. Rule for Courts-Martial 1106(f)(6);

1
  Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005), both indicate that
waiver occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation (SJAR).
However, our superior court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009), recognizes
that military courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held
that waiver is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review
of an issue, while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on
appeal (quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Following
Gladue, the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in
the SJAR. See United States v. Parker, __ M.J. __ ACM 38384 (A.F. Ct. Crim. App. 15 October 2014) (stating that
the appellant forfeited, rather than waived, a claim that erroneous information was attached to the SJAR).


                                                          2                                        ACM S32206
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009); United States v. Scalo,
60 M.J. 435, 436 (C.A.A.F. 2005). “To prevail under a plain error analysis, [the
appellant bears the burden of showing] that: ‘(1) there was an error; (2) it was plain or
obvious; and (3) the error materially prejudiced a substantial right.’” Scalo, 60 M.J. at
436 (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Because of the
highly discretionary nature of the convening authority’s action on a sentence, we may
grant relief if an 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 MJ 283, 289 (C.A.A.F. 1998)).

        The military judge’s statement after announcement of sentence covered only the
appellant’s suitability for the return to duty program, not any aspect of the adjudged
sentence. The Government concedes the SJA committed error that was plain or obvious
in failing to advise the convening authority of the military judge’s statement. We accept
the Government’s concession and turn to the question of prejudice.

        We find no colorable showing of possible prejudice by this omission. The military
judge’s statement did not concern an aspect of the adjudged sentence, and therefore
would not have prompted the convening authority to disapprove some portion of the
adjudged sentence. More importantly, the appellant did not apply for the return to duty
program. His clemency submission made no mention of a desire to participate in this
program, and he plainly indicated he had other plans after his release from confinement.
Even in his brief to this court, the appellant indicates no desire to actually participate in
the return to duty program. Because the military judge’s statement only concerned the
return to duty program, there is no reasonable possibility that the convening authority
would have granted clemency on any aspect of the adjudged sentence had this matter
been raised to his attention. Additionally, because the appellant elected not to apply for
this program, there is no colorable showing that he might have been granted entry into
this program had the SJA advised the convening authority of this matter.

                                        Conclusion

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




                                              3                              ACM S32206
Accordingly, the approved findings and sentence are AFFIRMED.




            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                        4                       ACM S32206
