          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                      Airman Basic SIR EDWARD S. THOMAS JR.
                                United States Air Force

                                             ACM S32184

                                           29 October 2014

         Sentence adjudged 23 September 2013 by SPCM convened at Tinker
         Air Force Base, Oklahoma. Military Judge: Natalie D. Richardson (sitting
         alone).

         Approved Sentence: Bad-conduct discharge and confinement for 2 months.

         Appellate Counsel for the Appellant: Major Christopher D. James.

         Appellate Counsel for the United States:               Major Roberto Ramírez and
         Gerald R. Bruce, Esquire.

                                                  Before

                         HECKER, MITCHELL, and CONTOVEROS
                               Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



PER CURIAM:

       A special court-martial composed of a military judge convicted the appellant,
pursuant to his pleas, of wrongfully using marijuana and breaking restriction, in violation
of Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934. The adjudged sentence
consisted of a bad-conduct discharge and confinement for 2 months. The convening
authority approved the sentence as adjudged.

       On appeal, the appellant argues he is entitled to a new convening authority action
where the staff judge advocate failed to advise the convening authority of the military
judge’s recommendation to suspend the bad-conduct discharge.
                               Staff Judge Advocate’s Recommendation

       The appellant pled guilty to using marijuana and breaking restriction—behavior
which caused multiple members of his unit to search for him. Following announcement
of the sentence, the military judge said, “I recommend clemency in the form of
suspension of the execution of the bad-conduct discharge.” Because this clemency
recommendation was not included in the staff judge advocate’s recommendation (SJAR),
the appellant argues he is entitled to a new convening authority action.

        Proper completion of post-trial processing is a question of law which this court
reviews 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)). Failure to comment in a
timely manner on matters in the SJAR, or on matters attached to the SJAR, forfeits* any
later claim of error in the absence of plain error. Rule for Courts-Martial 1106(f)(6);
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 Kho, 54 M.J. at 65). 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
(1998)).

       “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)). The SJAR and addendum plainly omit any reference
to the military judge’s clemency recommendation. This omission constitutes plain and
obvious error.

       We also find the appellant has made a colorable showing of prejudice from this
error. Although the military judge’s recommendation was referenced within the
appellant’s clemency submission, the convening authority should have been informed by

*
  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. 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 staff
judge advocate’s recommendation. 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 staff judge advocate’s recommendation).


                                                         2                                             ACM S32184
his legal advisor of this significant and uncommon recommendation from a military
judge, especially in light of the appellant’s significant medical issues.

                                      Conclusion

       The record of trial is returned to The Judge Advocate General for remand to the
convening authority for withdrawal of the action and for post-trial processing consistent
with this opinion. R.C.M. 1107(g); Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter,
Article 66(c), UCMJ, 10 U.S.C. § 866(c), will apply.



             FOR THE COURT



             STEVEN LUCAS
             Clerk of the Court




                                            3                                 ACM S32184
