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

                               No. ACM 39480
                           ________________________

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

        Appeal from the United States Air Force Trial Judiciary
                         Decided 20 November 2019
                          ________________________

Military Judge: Patricia E. Gruen.
Approved sentence: Dishonorable discharge, confinement for 2 years and
8 months, and reduction to E-1. Sentence adjudged 3 April 2018 by GCM
convened at Kadena Air Base, Japan.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Clay-
ton H. O’Connor, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
LEWIS and Judge D. JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                            ________________________
MINK, Senior Judge:
    Appellant was found guilty by a military judge, in accordance with his pleas
pursuant to a pretrial agreement (PTA), of two specifications of sexual abuse
of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920b, and one specification of attempting to commit a sexual act on
a child and one specification of attempting to commit lewd acts with a child
both in violation of Article 80, 10 U.S.C. § 880. 1 The military judge sentenced
Appellant to a dishonorable discharge, confinement for two years and eight
months, and reduction to the grade of E-1. Before taking action, the conven-
ing authority deferred the reduction in grade and mandatory forfeitures of
Appellant’s pay and allowances until action. Upon action, the convening au-
thority approved the adjudged sentence, but waived the mandatory forfei-
tures for a period of six months or release from confinement, whichever was
sooner, for the benefit of Appellant’s spouse.
    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant raises the sole issue of whether he is entitled to new post-trial processing
because of errors in the staff judge advocate’s recommendation (SJAR) and in
the SJAR addendum. Finding no error materially prejudicial to a substantial
right of Appellant, we affirm the findings and sentence.

                                 I. BACKGROUND
    The victim of Appellant’s two sexual abuse offenses was LS, who submitted
a written, unsworn victim impact statement for consideration by the court-
martial. Because LS was overcome with emotion and unable to read the state-
ment herself, her Special Victims’ Counsel read the written statement aloud in
court to the military judge. Trial defense counsel did not object to any portion
of LS’s statement during the court-martial and the written statement was ad-
mitted as a court exhibit by the military judge pursuant to Rule for Court-
Martial (R.C.M.) 1001A. In her statement, LS made the following comment:
       Not only did [Appellant’s] actions hurt me, but I watched it hurt
       my mom, too. It hurt her when she found out. That was one of
       the hardest things about what he did. To see the hurt in her
       knowing this happened to her little girl. In her own house.
    During the post-trial processing of Appellant’s case, the staff judge advo-
cate (SJA) notified LS of her right to submit matters for the convening author-
ity’s consideration in taking action. LS submitted a copy of the identical writ-
ten unsworn statement that she had provided at trial for consideration by the
convening authority. LS’s statement was attached to the SJAR and served on
both Appellant and his trial defense counsel. In her Clemency Submission of
Matters memorandum, trial defense counsel did not object or comment on any
portion of LS’s unsworn statement, including the above-quoted portion refer-
encing LS’s mother. The SJA did not comment on LS’s statement in the SJAR
or the SJAR addendum, other than to advise the convening authority that

1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).


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“[p]ursuant to R.C.M. 1105A, the victim submitted matters for [his] consider-
ation.”
    Additionally, in the SJAR, the SJA correctly advised the convening author-
ity that the military judge sentenced Appellant to a dishonorable discharge,
confinement for two years and eight months, and a reduction to the grade of
E-1. The Report of Result of Trial attached to the SJAR also correctly stated
the adjudged sentence. However, in her clemency memorandum, trial defense
counsel erroneously stated that Appellant’s adjudged sentence also included
the forfeiture of all pay and allowances and a reprimand. In his addendum to
the SJAR, the SJA did not comment on trial defense counsel’s misstatement of
the adjudged sentence, instead noting that after a review of Appellant’s clem-
ency matters, his recommendation to approve the adjudged sentence remained
“unchanged.”

                                II. DISCUSSION
A. Law
    Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted). “Failure to timely comment on matters in the
SJAR, or matters attached to the recommendation, forfeits any later claim of
error in the absence of plain error.” United States v. LeBlanc, 74 M.J. 650, 660
(A.F. Ct. Crim. App. 2015) (en banc) (citing R.C.M. 1106(f)(6); United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analy-
sis, an appellant must show “(1) there was an error; (2) [the error] was plain or
obvious; and (3) the error materially prejudiced a substantial right.” Id. (quot-
ing Scalo, 60 M.J. at 436). The threshold for establishing prejudice from errors
impacting an appellant’s request for clemency from the convening authority is
low, even in the context of plain error analysis, but there must be “some ‘color-
able showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at 437).
    Both Article 6b(b), UCMJ, detailing the rights of crime victims, and Article
60(d)(5), UCMJ, governing action by the convening authority, define a “victim”
as a person “who has suffered direct physical, emotional, or pecuniary harm as
a result of the commission of an offense” under the UCMJ. 10 U.S.C. §§ 806b(b),
860(d)(5). R.C.M. 1105A(b) contains a similar definition, adding that the ac-
cused must have been found guilty of the offense on which the convening au-
thority is taking action. Article 60(d)(1), UCMJ, requires that a victim of an
offense for which an accused has been found guilty and sentenced “shall be
provided an opportunity to submit matters for consideration by the convening
authority” before the convening authority takes action on the court-martial. 10
U.S.C. § 860(d)(1). Similarly, R.C.M. 1105A(a) provides that a victim “shall
have the right to submit a written statement to the convening authority after


                                       3
the sentence is adjudged,” and R.C.M. 1107(b)(3)(A)(iv) specifically requires
the convening authority to consider such a statement before taking action.
B. Analysis
    Appellant asserts that he is entitled to new post-trial processing because
the SJAR was inadequate in that LS’s statement did not comply with R.C.M.
1105A and referenced harm to a “third party,” LS’s mother. Additionally, Ap-
pellant asserts that even if the statement was properly before the convening
authority as reflecting pain suffered by LS in observing her mother, the SJA
failed to advise the convening authority to consider only how Appellant’s of-
fenses impacted LS, and not her mother. Appellant also asserts he is entitled
to new post-trial processing because the SJAR addendum failed to correct the
trial defense counsel’s misstatement regarding the adjudged sentence. We dis-
agree with both contentions.
   1. Victim Impact Statement
    On appeal, for the first time, Appellant asserts that LS’s victim impact
statement erroneously referred to harm suffered by her mother. While Appel-
lant does not claim that LS did not meet the definition of a victim under Article
6b(b), UCMJ, Appellant does claim that it was improper for the convening au-
thority to consider that portion of LS’s statement referring to the harm suffered
by her mother. The identical victim impact statement was not objected to at
trial and the defense clemency submission did not comment on or otherwise
object to the convening authority considering this portion of LS’s statement.
Therefore, we test for plain error.
    While LS does refer to “hurt” suffered by her mother, it is clear from the
context of the statement that LS is not only referring to harm suffered by her
mother but also describing “emotional” harm that LS personally suffered as
she witnessed the effect of Appellant’s actions on her mother. Given this read-
ing of LS’s statement to which Appellant now objects, we find no error, plain
or otherwise, and thus we decline to order new post-trial processing.
   2. Clemency Memorandum Error
    We next consider whether Appellant is entitled to new post-trial processing
because the SJAR addendum did not correct the trial defense counsel’s mis-
statement of the adjudged sentence. Relying on the summary disposition in
United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016), Appellant argues that
the SJA was required to correct the trial defense counsel’s error regarding Ap-
pellant’s adjudged sentence. We are not persuaded.
    In view of the decision in Addison, we have, in the past, held that the failure
of an SJA to correct a defense counsel’s erroneous statement of law in a clem-
ency submission may result in plain error and constitute a colorable showing
of possible prejudice. See, e.g., United States v. Zegarrundo, 77 M.J. 612 (A.F.

                                        4
Ct. Crim. App. 2018). However, we have not previously held that an erroneous
statement of fact, such as here in the recital of the adjudged sentence in the
Defense clemency submission, requires correction by the SJA in the SJAR ad-
dendum pursuant to the holding in Addison. 2 Further, under the facts of this
case, we decline to impose such a requirement.
    Even assuming arguendo that the SJA was required to correct such a fac-
tual error in the Defense clemency submission, we still find that such an error
would not require new post-trial processing in this case. Whether Appellant
was prejudiced by such a plain and obvious error requires a court to consider
whether the convening authority “plausibly may have taken action more favor-
able 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), (cita-
tions omitted), aff’d, 28 M.J. 452 (C.M.A. 1989); see also United States v. Green,
44 M.J. 93, 95 (C.A.A.F. 1996) (citations omitted). The threshold of some color-
able showing of possible prejudice to Appellant is low but still not met in this
case. Appellant requested “some relief” from his sentence and Appellant’s trial
defense counsel requested only that the convening authority disapprove the
adjudged reduction in rank. The trial defense counsel’s misstatement of the
adjudged sentence addressed a forfeiture of all pay and allowances and a rep-
rimand, neither of which were adjudged nor could be acted on by the convening
authority. As a result, we find no colorable showing of possible prejudice and
we again decline to order new post-trial processing.

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


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




2This circumstance is obviously different than that presented when the SJA has pro-
vided “[e]rroneous advice on substantial matters of fact or law” that “will invalidate
the action when the error prejudices the [Appellant].” United States v. Fields, 74 M.J.
619, 624 (A.F. Ct. Crim. App. 2015) (citation omitted).


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