              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                           v.

                                 Technical Sergeant RONNIE WILSON
                                        United States Air Force

                                                ACM 37486 (reh)

                                                  27 August 2014

            Sentence adjudged 10 June 2013 by GCM convened at Joint Base
            Anacostia-Bolling Air Force Base, Washington D.C. Military Judge: Mark
            L. Allred.

            Approved sentence: Dishonorable discharge, confinement for 33 months,
            total forfeiture of all pay and allowances and reduction to E-1.

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

            Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
            Smith; Major Rhea A. Lagano; and Gerald R. Bruce, Esquire.

                                                        Before

                                    MITCHELL, HECKER, and TELLER
                                        Appellate Military Judges

                                          OPINION OF THE COURT

                          This opinion is subject to editorial correction before final release.



MITCHELL, Chief Judge 1:

      In February 2009, a general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of one specification of wrongful
sexual contact with a child under the age of 16 years and two specifications of
1
 In a memorandum dated 20 May 2014, Major General Robert G. Kenny, then Performing Duties of The Judge
Advocate General, designated Senior Judge Martin T. Mitchell as the Chief Appellate Military Judge in cases where
Chief Judge Mark L. Allred served as the military judge or recused himself under the governing standards of judicial
conduct. In this case, Chief Judge Allred, while serving as a trial judge, presided over the appellant’s court-martial.
Therefore, Chief Judge Mitchell designated the special panel in this case.
committing indecent acts on a child under the age of 16 years, in violation of Articles 120
and 134, UCMJ, 10 U.S.C. §§ 920, 934. The court-martial sentenced the appellant to a
dishonorable discharge, confinement for five years, forfeiture of all pay and allowances,
and reduction to E-1. Initially, the convening authority approved the dishonorable
discharge, confinement for four years and nine months, and reduction to E-1.

        Subsequently, we affirmed the findings and sentence. United States v. Wilson,
ACM 37486 (A.F. Ct. Crim. App. 15 December 2011) (unpub. op.), rev’d in part, 71 M.J.
355 (C.A.A.F. 2012) (mem.). In that decision, we considered several issues, including
the terminal element issue, in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011). Following United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), our superior
court, in a summary disposition, reversed the portion of our Wilson decision which
affirmed the findings of guilty of the two indecent act specifications alleged as a violation
of Article 134, UCMJ; affirmed the remaining finding of guilty of wrongful sexual
contact with a child in violation of Article 120, UCMJ; reversed the sentence; and
remanded the case for further consideration. Wilson, 71 M.J. at 355. Upon remand, we
set aside the sentence and directed that a rehearing on sentence for the remaining charge
and specification be ordered. United States v. Wilson, ACM 37486 (f rev) (A.F. Ct.
Crim. App. 5 February 2013) (unpub. op.).

        The general court-martial convening authority ordered a rehearing, which was
held on 10 June 2013. Prior to the rehearing, the appellant was placed back on active
duty. The appellant entered into a “pre-trial” agreement for the rehearing. The appellant
agreed to enter into a stipulation of expected testimony, waive his right to further
assistance from his appointed forensic psychologist, waive his right to the production of
witnesses at Government expense, and elect a rehearing before a military judge sitting
alone, thereby waiving his right to a panel of members. In exchange, the convening
authority agreed to approve no more than 33 months of confinement should confinement
be adjudged.

       At the rehearing, trial counsel offered into evidence a personal data sheet, dated
10 June 2013. The personal data sheet listed the appellant’s length of service as 21 years,
3 months, and 23 days. The appellant admitted into evidence, without objection,
projected retirement pay charts for ranks E-1 through E-6. After considering all the
evidence, the military judge sentenced the appellant to a dishonorable discharge,
confinement for 36 months, forfeiture of all pay and allowances, and reduction to E-1. In
accordance with the pretrial agreement, the convening authority approved a dishonorable
discharge, 33 months of confinement, and a reduction to E-1. 2



2
  The convening authority also deferred the reduction in rank, adjudged forfeitures and automatic forfeitures until
action. At action, he waived automatic forfeitures while noting that the term of confinement had been served.


                                                        2                                      ACM 37486 (reh)
        The staff judge advocate recommendation (SJAR) is dated 12 July 2013. Attached
to the SJAR is a personal data sheet, dated 14 February 2009. This was the personal data
sheet from the original court-martial. This data sheet stated the appellant’s length of
service was 16 years, 11 months. Neither the appellant nor his trial defense counsel
identified this error in his clemency petition.

        On appeal from his rehearing, the appellant identifies three issues: (1) he is
entitled to new post-trial processing because the personal data sheet attached to the SJAR
is incorrect; (2) he is entitled to relief because he was paid at the E-1 rate when he was
ordered back to active duty, despite the setting aside of his original sentence; and (3) his
approved sentence is inappropriately severe. 3 Because we determine the appellant is
entitled to relief on the first issue, we do not address the other two at this time.

                                 Errors in Post-Trial Processing

       Proper completion of post-trial processing is a question of law, which we review
de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Failure to timely
comment on matters in the SJAR, to include matters attached to it, waives the issue
unless there is plain error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005). 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. Although the threshold for
establishing prejudice in this context is low, the appellant must nonetheless make at least
“some colorable showing of possible prejudice.” Scalo, 60 at 437.

       When reviewing post-trial errors, we recognize the convening authority is an
appellant’s “best hope for sentence relief.” United States v. Lee, 50 M.J. 296, 297
(C.A.A.F. 1999) (quoting United States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988)).
The convening authority, not the courts of criminal appeals, is empowered to grant
clemency for equitable reasons. United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F.
2010). “Because of the highly discretionary nature of the convening authority’s action on
the sentence, we will grant relief if an appellant presents ‘some colorable showing of
possible prejudice.’” Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 M.J. 283,
289 (C.A.A.F. 1998)); see also United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005).

        The appellant argues the information found on the personal data sheet submitted at
trial shows he was retirement eligible and that the convening authority should have been
advised of this fact. The Government contends there is no error because the appellant is
not retirement eligible as any time he spent in confinement pursuant to his original


3
  This last issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) through a
supplemental assignment of error.


                                                   3                                  ACM 37486 (reh)
court-martial sentence is non-creditable service, citing Air Force Instruction 36-2134,
Air Force Duty Status Program, ¶ 3.2.10. (8 October 2004). 4

        However, that instruction also states that service dates, to include the pay date,
will be automatically adjusted when a member is returned to a “present for duty” status.
Id. at ¶ 3.2.10. It appears the appellant was returned to this status for at least some period
of time after his court-martial. On 2 May 2013, the SJA signed a pretrial advice to the
convening authority which stated, “Upon release from confinement, TSgt Wilson was
assigned to the 4th Force Support Squadron, Seymour Johnson AFB, North Carolina, on
active duty, pending appellate review of his case.” (emphasis added). He was also
placed on active duty for the rehearing. His leave and earning statements state, as of July
2013, that he has 21 years of service and his pay date was “920218.” This information
indicates, at a minimum, that the length of service date on his original personal data sheet
was no longer accurate at the time of the sentence rehearing. We also note that trial
counsel offered and submitted an updated personal data sheet at the rehearing which
included a “length of service” amount that indicated the appellant would be retirement
eligible. 5

       Given this, we conclude that it was a plain and obvious error to attach the personal
data sheet from the appellant’s original court-martial in 2009 to the SJAR provided to the
convening authority following the rehearing in 2013. The information provided to the
convening authority substantially and inexplicably varied from the information provided
to the military judge at the rehearing, and we cannot determine from the record before us
whether the appellant is retirement eligible. We conclude the appellant has made a
colorable showing of potential prejudice that materially prejudiced his substantial right to
have the convening authority consider accurate information about his potential eligibility
for retirement benefits when deciding upon clemency. See United States v. Griffin,
25 M.J. 423, 424 (C.M.A. 1988) (“[I]n reality, the impact of an adjudged punishment on
the benefits due an accused who is eligible to retire is often the single most important
sentencing matter to that accused and the sentencing authority.”). We will not speculate
on what the convening authority would have done in this case had he reviewed the
personal data sheet entered into evidence by trial counsel at the rehearing and/or been
provided complete information about the appellant’s retirement eligibility.
See United States v. Gilbreath, 57 M.J. 57, 62 (C.A.A.F. 2002).


4
  “Any time a member (enlisted or officer) spends in AWOL status, desertion, or any confinement whether it is pre
or post-trial confinement status is considered non-creditable service--also referred to as ‘lost’ time or ‘bad’ time.
When lost time is charged, a member’s service dates are adjusted forward by the number of days of lost time
charged. Air Force Instruction (AFI) 36-2134, Air Force Duty Status Program, ¶ 3.2.10.1 (8 October 2004). “Time
spent in confinement is considered to be non-creditable service and must be charged as lost time (DoD Financial
Management Regulation, Volume 7A, table 1.1. and U.S. Code, Title 10, Section 972). Exception: If the member is
released without trial, acquitted, or the conviction is set aside on legal grounds, please contact HQ AFPC/DPWROP
at DSN 665-3483 for procedures.” Id at ¶ 3.2.10.1 (emphasis added).
5
  We note that the military test scores differ on the two personal data sheets.


                                                         4                                      ACM 37486 (reh)
                                      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




                                            5                            ACM 37486 (reh)
