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

                              No. ACM S32369
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                           Joseph S. BOOKS
             Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

           Appeal from the United States Air Force Trial Judiciary
                           Decided 31 March 2017
                          ________________________

Military Judge: Natalie D. Richardson.
Approved sentence: Bad-conduct discharge, confinement for 21 days, and re-
duction to E-1. Sentence adjudged 27 October 2015 by SpCM convened at Luke
Air Force Base, Arizona.
For Appellant: Captain Patricia Encarnación Miranda, USAF.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne, USAF;
Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge SPERANZA joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

JOHNSON, Senior Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas, of one specification of wrong-
fully using cocaine on divers occasions and one specification of wrongfully us-
ing promethazine with codeine, both in violation of Article 112a of the Uniform
                   United States v. Books, No. ACM S32369


Code of Military Justice (UCMJ), 10 U.S.C. § 912a. Appellant’s adjudged and
approved sentence included a bad-conduct discharge, confinement for 21 days,
and reduction to the grade of E-1. 1
    Appellant raises a single assignment of error on appeal: that the staff judge
advocate’s recommendation (SJAR) provided erroneous advice to the convening
authority regarding the maximum imposable punishment and the convening
authority’s ability to reduce Appellant’s term of confinement. In addition, al-
though not raised by the parties, we address a facially unreasonable delay in
the post-trial processing of Appellant’s case. Finding no relief is warranted, we
affirm the findings and sentence.

                                I. BACKGROUND
    At some point in 2014, Appellant and another servicemember, Airman First
Class (A1C) KH, met a civilian at a nightclub in Scottsdale, Arizona, who of-
fered them cocaine. The Airmen followed the civilian into the club’s restroom
where they both inhaled cocaine off of a house key. On 5 July 2015, Appellant
used cocaine with A1C KH again, this time in A1C KH’s dorm room on Luke
Air Force Base.
    The following day, Appellant was selected to provide a urine sample for
drug testing. Not surprisingly, his sample tested positive for benzoylecgonine,
the metabolite of cocaine. On 16 July 2015, Appellant was interviewed by
agents of the Air Force Office of Special Investigations (AFOSI) and admitted
to using cocaine in A1C KH’s dorm room earlier in the month.
    Later on 16 July 2015, after the AFOSI interview, another Airman, A1C
CM, brought Appellant a mixture of promethazine and codeine. A1C CM sug-
gested they drink this “drug cocktail” to “take the edge off.” Appellant agreed.
The following day Appellant consented to provide another urine sample, which
tested positive for morphine, a metabolite of codeine with promethazine.
    This new positive urinalysis result prompted another interview with
AFOSI on 12 August 2015. Appellant admitted drinking the promethazine/co-
deine mixture in July, but denied using any other illegal substances. He con-
sented to another urinalysis, which again tested positive for benzoylecgonine,
the metabolite of cocaine. At trial, Appellant acknowledged he may have used
cocaine prior to providing the 12 August 2015 urine sample without being able
to remember doing so due to an alcohol-induced memory blackout.


1 A pretrial agreement (PTA) between Appellant and the convening authority provided
the latter would approve no confinement in excess of 60 days, but included no other
limitations on the sentence he could approve. Accordingly, the PTA had no impact on
the convening authority’s ability to approve the adjudged sentence.


                                        2
                   United States v. Books, No. ACM S32369


                                II. DISCUSSION
A. Staff Judge Advocate Recommendation
    Following Appellant’s trial, and after he was released from confinement,
the staff judge advocate (SJA) prepared the SJAR to guide the convening au-
thority’s action on the results of the court-martial. The SJAR provided, inter
alia, the following advice:
       The maximum imposable sentence for the offenses for which
       [Appellant] was convicted is reduction to the grade of E-1, forfei-
       ture of two-thirds pay per month for twelve months, 12 months
       confinement, a bad conduct discharge, and a fine.
       ....
       As the convening authority, you do not have the authority to dis-
       approve, commute, or suspend, in whole or in part, the bad con-
       duct discharge. The 21 days of confinement have already been
       served by [Appellant]. You have the authority to disapprove,
       commute or suspend, in whole or in part, the reduction to the
       grade of E-1.
(Emphasis added). The SJAR concludes with a recommendation that the con-
vening authority approve the sentence as adjudged.
    In accordance with Rule for Courts-Martial (R.C.M.) 1106(f)(1), trial de-
fense counsel was served with a copy of the SJAR prior to submitting matters
on behalf of Appellant for the convening authority’s consideration pursuant to
R.C.M. 1105. The Defense did not object to any portion of the SJAR. Trial de-
fense counsel submitted a memo with several attachments that acknowledged
the convening authority was not authorized to disapprove the bad-conduct dis-
charge, and instead asked that he disapprove the reduction to E-1. Appellant
also submitted a statement noting that he had already served his time in con-
finement and would be leaving the Air Force with a bad-conduct discharge, but
requesting the convening authority restore his rank to E-3.
    The SJA subsequently prepared an addendum to the SJAR that advised,
inter alia, that the convening authority must consider the matters submitted
by the Defense and again recommended approval of the sentence as adjudged.
The convening authority approved the adjudged sentence. Appellant now con-
tends the SJAR was erroneous in two respects: first, it misstated the maximum
punishment as including the possibility of forfeiture of two-thirds of Appel-
lant’s pay for twelve months and a fine; and second, it incorrectly advised the
convening authority regarding his authority to reduce Appellant’s term of con-
finement.



                                       3
                   United States v. Books, No. ACM S32369


    The proper completion of post-trial processing is a question of law which
this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct.
Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004) (citation omitted)). If the Defense does not make a timely
comment on an error in the SJAR, the error is forfeited “unless it is prejudicial
under a plain error analysis.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005) (citing R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)). Under a plain error analysis, Appellant must persuade this court that:
“(1) there was an error; (2) it was plain or obvious; and (3) the error materially
prejudiced a substantial right.” Id. (quoting Kho, 54 M.J. at 65).
    To meet the third prong of the plain error test in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise consid-
ered under the plain error doctrine, Appellant must make “some colorable
showing of possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at 65). “The
low threshold for material prejudice with respect to an erroneous post-trial
recommendation . . . is designed to avoid undue speculation as to how certain
information might impact the convening authority’s exercise of such broad dis-
cretion.” Id. at 437. While the threshold is low, there must be some colorable
showing of possible prejudice. Id.
   Because Appellant did not object to the SJAR, we test the allegedly im-
proper advice for plain error. We consider each asserted error in turn.
   1. Maximum Punishment
   R.C.M. 1003(b)(3) provides, in pertinent part:
       Any court-martial may adjudge a fine in lieu of or in addition to
       forfeitures. In the case of a member of the armed forces, sum-
       mary and special courts-martial may not adjudge any fine or
       combination of fine and forfeitures in excess of the total amount
       of forfeitures that may be adjudged in that case.
    The maximum forfeiture that a special court-martial may adjudge is two-
thirds of the accused’s pay per month for 12 months. R.C.M. 201(f)(2)(B)(i).
Thus, Appellant could not have been sentenced to a fine in addition to forfei-
ture of two-thirds pay per month for 12 months. Contrary to the Government’s
position that the SJA merely accurately listed authorized punishments, the
SJAR plainly represented that the maximum imposable punishment included
both forfeiture of two-thirds pay per month for 12 months and a fine. This was
a clear error.
    However, Appellant has not made a colorable showing of possible prejudice
arising from this error. At trial, the Government conceded a fine was not ap-
propriate in this case, and the military judge did not include the possibility of
a fine when she informed Appellant of the maximum punishment she could

                                        4
                   United States v. Books, No. ACM S32369


adjudge as a result of Appellant’s guilty plea. The military judge did not ad-
judge a fine, nor did she adjudge any forfeiture of pay. Thus the convening
authority was not called upon to make any decisions regarding adjudged for-
feitures or a fine when he acted upon the sentence. We are not persuaded the
erroneous inclusion in the SJAR of the possibility of a fine exaggerated the
severity of Appellant’s conduct or in any other way influenced the convening
authority to Appellant’s detriment. Because Appellant has failed to make a
colorable showing of possible prejudice, he is entitled to no relief.
   2. Confinement Served
    Appellant asserts the SJA’s statement that Appellant had already served
his term of confinement, juxtaposed with his advice that the convening author-
ity could not disapprove, suspend, or modify the bad-conduct discharge but
could change the reduction in grade, “misadvised” the convening authority re-
garding his authority to reduce the term of confinement. We recently rejected
a similar argument in United States v. Carnio-Navarro, No. ACM S32340, 2017
CCA LEXIS 90, *11–13 (A.F. Ct. Crim. App. 9 Feb. 2017), and we reach the
same conclusion here. The statement that Appellant had completed his term
of confinement was accurate. Nowhere does the SJAR state that the convening
authority could not reduce or modify Appellant’s sentence to confinement. At
most, it fails to affirmatively advise the convening authority that he could dis-
approve, commute, or suspend the term of confinement, in whole or in part,
notwithstanding the fact that Appellant had already served it. The omission of
this advice was not plain or obvious error. See id.; see also R.C.M. 1106(d)(3),(4)
(setting forth required SJAR contents).
    Assuming, arguendo, that the omission of this advice was plainly errone-
ous, Appellant has not demonstrated any colorable showing of possible preju-
dice. See Scalo, 60 M.J. at 436. Appellant did not request any reduction in his
term of confinement. Indeed, he cited his completed term of confinement as
part of the “process” that has enabled him to reflect on his mistakes and “re-
habilitated” him. Instead, Appellant requested only that his reduction in grade
be disapproved. As in Carnio-Navarro, we find that the term of confinement
“was not of such unusual duration or severity that there was a reasonable like-
lihood that the term of confinement alone—without any argument or complaint
by Appellant—‘would have attracted the convening authority’s attention for
purposes of clemency.’” Carnio-Navarro, 2017 CCA LEXIS 90 at *13 (quoting
Scalo, 60 M.J. at 437). This is particularly so given that a pretrial agreement
between the convening authority and Appellant provided the convening au-
thority could have approved confinement up to 60 days. Therefore, we are con-
vinced that the omission of affirmative advice to the convening authority re-
garding his authority to modify the term of confinement, even if the omission



                                        5
                     United States v. Books, No. ACM S32369


was erroneous, had no material adverse impact on Appellant’s clemency re-
quest. Because Appellant’s substantial rights were not materially prejudiced,
he is entitled to no relief.
B. Post-Trial Delay
    Although not raised by the parties, we note the convening authority acted
on Appellant’s court-martial on 24 November 2015, but the record of trial was
not docketed with this court until 5 January 2016. This 42-day period exceeded
the 30-day threshold for a presumptively unreasonable post-trial delay estab-
lished by the Court of Appeals for the Armed Forces in United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006). Accordingly, we have considered the four fac-
tors 2 identified in Moreno to assess whether Appellant’s due process right to
timely post-trial and appellate review has been violated. Id. at 135 (citing
United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005), United States v. Toohey,
60 M.J. 100, 102 (C.A.A.F. 2004)). Where, as here, an appellant has not shown
prejudice from the delay, there is no due process violation unless the delay is
so egregious as to “adversely affect the public’s perception of the fairness and
integrity of the military justice system.” United States v. Toohey, 63 M.J. 353,
362 (C.A.A.F. 2006). Significantly, the convening authority took action only 28
days after Appellant’s trial, dramatically faster than the 120-day standard for
presumptively unreasonable delay established in Moreno. 63 M.J. at 142. Con-
sidering the relevant factors together, we conclude the delay was not so egre-
gious as to impugn the fairness and integrity of the military justice system,
and thus we find no due process violation.
   Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002). After considering the factors 3 enumerated in
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.



2These factors include: (1) the length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant.
3 These factors include: (1) how much the delay exceeded the Moreno standards; (2)
what reasons, if any, the Government set forth for the delay, and whether there is
evidence of bad faith or gross indifference to the overall post-trial processing of this
case; (3) keeping in mind that the goal under Tardif is not to analyze for prejudice,
whether there is nonetheless some evidence of harm caused by the delay; (4) whether
the delay has lessened the disciplinary effect of any particular aspect of the sentence,
and whether relief is consistent with the dual goals of justice and good order and dis-
cipline; (5) whether there is any evidence of institutional neglect concerning timely
post-trial processing; and (6) given the passage of time, whether this court can provide
meaningful relief in this particular case.


                                            6
                   United States v. Books, No. ACM S32369


264 (C.A.A.F. 2016), we conclude it is not. On the whole, the processing of Ap-
pellant’s case has not been subjected to excessive post-trial delay, and we can
discern no substantial harm to Appellant, prejudice to the interests of justice
or discipline, or erosion of this court’s ability to conduct our review or grant
appropriate relief that would move us to modify an otherwise proper sentence.

                               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 find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




                                       7
