            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                      ________________________
                          No. ACM S32463
                      ________________________
                         UNITED STATES
                             Appellee
                                   v.
                       Landon M. PARRIS
         Technical Sergeant (E-6), U.S. Air Force, Appellant
                      ________________________
       Appeal from the United States Air Force Trial Judiciary
                      Decided 14 August 2018
                      ________________________
Military Judge: James R. Dorman.
Approved sentence: Bad-conduct discharge, confinement for 180 days,
and reduction to E-1. Sentence adjudged 25 January 2017 by SpCM
convened at Dyess Air Force Base, Texas.
For Appellant: Major Melissa Biedermann, USAF; Major Patricia En-
carnación Miranda, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Lieutenant
Colonel Joseph J. Kubler, USAF; Mary Ellen Payne, Esquire.
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges HUYGEN and POSCH joined.
                      ________________________
   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                    United States v. Parris, No. ACM S32463



HARDING, Senior Judge:
    In accordance with his pleas made pursuant to a pretrial agreement
(PTA), Appellant was found guilty of three specifications of wrongful use of
methamphetamine, in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a. 1 The military judge sentenced Appellant to
a bad-conduct discharge, confinement for 210 days, and reduction to the
grade of E-1. In accordance with the limitation of the PTA, the convening au-
thority approved only 180 days of confinement but otherwise approved the
adjudged sentence. Appellant had 246 days of pretrial confinement credit—a
result of 87 days spent in pretrial confinement and 159 days of credit award-
ed for illegal pretrial confinement in violation of Article 13, UCMJ, 10 U.S.C.
§ 813. Of those 246 days, 180 were credited against the sentence to confine-
ment, but the record does not show that either the military judge or the con-
vening authority considered whether the excess credit of 66 days should be
applied against another aspect of the adjudged sentence to ensure meaning-
ful relief for the illegal pretrial confinement. Additionally, the convening au-
thority denied Appellant’s request to defer the reduction in grade until the
date of action. Other than the deferment request, Appellant did not request
clemency.
    Appellant asserts two matters on appeal: (1) Appellant was denied mean-
ingful relief for 66 days of illegal pretrial confinement credit in excess of his
approved sentence to confinement that should have been applied against an-
other component of the adjudged sentence, specifically, the bad-conduct dis-
charge and (2) Appellant was denied a meaningful opportunity for clemency
when the staff judge advocate’s recommendation contained a number of er-
rors. While we decline to set aside the bad-conduct discharge as requested by
Appellant, we do set aside the reduction in grade to E-1 to provide meaning-
ful relief for the violations of Article 13, UCMJ, in this case. We find no other
prejudicial error and affirm.

                                    I. BACKGROUND
    On 31 October 2016, Appellant was placed in pretrial confinement at a ci-
vilian facility in Abilene, Texas. In accordance with Air Force policy at the
time, 2 Appellant was classified as a maximum custody confinee upon entry


1Appellant pleaded and was found not guilty of conspiracy to wrongfully distribute
methamphetamine in violation of Article 81, UCMJ, 10 U.S.C. § 881.
2Air Force Instruction (AFI) 31-105, Air Force Corrections System, ¶ 5.3 (15 Jun.
2015), provided that “pretrial detainees [were] automatically classified as maximum
(Footnote continues on next page)


                                          2
                    United States v. Parris, No. ACM S32463



and remained in that custody classification until the announcement of his
sentence and release from confinement on 25 January 2017. Under this same
Air Force policy, Appellant’s confinement custody classification was never re-
evaluated while he was in pretrial confinement. Had Appellant been a post-
trial confinee, individualized reconsideration of Appellant’s maximum custo-
dy classification would have occurred. The Dyess Air Force Base confinement
officer opined that, but for the mandatory maximum custody provisions of the
governing Air Force regulation with respect to custody classifications of pre-
trial confinees, application of the individualized criteria would have resulted
in Appellant’s classification as minimum custody for the duration of his pre-
trial confinement. By virtue of being classified as maximum custody, Appel-
lant was required to be handcuffed, shackled, and escorted by guards while
he was outside of his cell. Appellant was kept in segregation 24 hours a day,
wore an orange jumpsuit, and ate his meals in his cell. Appellant was permit-
ted to leave his cell for just one hour after midnight each day.
    In addition to the maximum custody classification, a disruption in Appel-
lant’s pay while he was confined caused financial hardship for Appellant.
Specifically, Appellant’s pay and allowances were improperly withheld for a
period of six weeks. The pay issue was eventually corrected in part while Ap-
pellant was still in pretrial confinement, and Appellant received his base pay
and basic allowance for housing. However, he did not receive basic allowance
for subsistence from 15 November 2016 to 25 January 2017.
    Appellant’s trial defense counsel made a motion for appropriate relief for
illegal pretrial punishment alleging the maximum custody classification of
Appellant and lack of pay, inter alia, violated Article 13, UCMJ. After review-
ing the conditions of Appellant’s pretrial confinement, the military judge
found “the restrictions imposed upon [Appellant were] more rigorous than
necessary under the circumstances, and [were] sufficiently egregious as to
constitute illegal pretrial punishment.” Although the military judge did not
find there was an intent to punish Appellant, the military judge also conclud-
ed the withholding of Appellant’s basic allowance for subsistence was im-
proper. As a result of these violations, the military judge awarded Appellant


custody classification.” This policy changed as of 26 April 2018. Currently, during the
first 72 hours or first duty (whichever is later), also referred to as an acclimation pe-
riod, pretrial detainees are classified as maximum custody. Within 24 hours following
completion of an acclimation period, all facts and circumstances in making an appro-
priate custody classification are considered, and reclassification review is to be com-
pleted within one duty day of receipt of a completed mental health evaluation post-
acclimation. AFI 31-105 AFGM 2018-01, ¶ 5.4.5.1 (26 Apr. 2018).




                                           3
                   United States v. Parris, No. ACM S32463



72 days of confinement credit for the withholding of pay or allowances and 87
days for the unnecessarily rigorous conditions—one for each day Appellant
was held in maximum custody. In total, Appellant received 246 days of pre-
trial confinement credit at the time his sentence was adjudged—87 days for
actual time spent in pretrial confinement, 87 days for the unnecessarily se-
vere conditions of his pretrial confinement, and 72 days for the improper
withholding of basic allowance for subsistence.

                                II. DISCUSSION
A. Meaningful Relief for Violation of Article 13, UCMJ
    Appellant asserts this court should set aside the bad-conduct discharge to
remedy the Article 13, UCMJ, violations in this case. We decline to do so and
instead grant meaningful relief and set aside the reduction in grade to E-1.
   “The proper application of credit for illegal pretrial punishment . . . [is a]
question[ ] of law, reviewed de novo.” United States v. Spaustat, 57 M.J. 256,
260 (C.A.A.F. 2002) (citations omitted). The Court of Appeals for the Armed
Forces (CAAF)
       [has not] interpreted R.C.M. 305(k) as exclusively delimiting
       the form of relief lawfully available for violations of Article 13,
       UCMJ.
       . . . Article 13, UCMJ, relief can range from dismissal of the
       charges, to confinement credit or to the setting aside of a puni-
       tive discharge. Where relief is available, meaningful relief must
       be given for violations of Article 13, UCMJ. However, relief is
       not warranted or required where it would be disproportionate
       to the harm suffered or the nature of the offense.
United States v. Zarbatany, 70 M.J. 169, 170 (C.A.A.F. 2011).
    While the conditions of Appellant’s pretrial confinement were unneces-
sarily severe and the pay errors unnecessary and harmful, there was not an
intent to punish him. We considered the adjudged and approved bad-conduct
discharge, and we find it wholly appropriate for the offenses committed by
Appellant. His multiple drug use offenses justify the bad-conduct discharge.
While we do not condone the arbitrary imposition of a regulation dictating
maximum custody for an Airman who, if individually considered, would have
been held in minimum custody, relief in the form of setting aside the punitive
discharge would be disproportionate to the harm suffered by Appellant and
the nature of Appellant’s offenses. We do not, however, reach the same con-
clusion with regard to the reduction in grade to E-1.



                                       4
                   United States v. Parris, No. ACM S32463



    In Zarbatany, the CAAF remanded the case to this court for a new review
under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to determine whether the cir-
cumstances of that appellant’s case warranted additional sentence relief for
illegal pretrial confinement or whether such relief would be disproportionate.
The offenses in Zarbatany, much like this case, were primarily drug offenses
and the appellant both in Zarbatany and in this case had illegal pretrial con-
finement credit applied against an adjudged sentence to confinement. As in
this case, we found in Zarbatany that “granting additional relief by disap-
proving the punitive discharge would be disproportionate in the context of
[that] case.” United States v. Zarbatany, No. ACM 37448 (rem), 2012 CCA
LEXIS 8, *5 (A.F. Ct. Crim. App. 9 Jan. 2012) (unpub. op.). We, however, also
noted in Zarbatany that “[i]n acting on the sentence, the convening authority
referenced the credit, [and] disapproved the adjudged forfeiture . . . .” Id. at *4
(emphasis added). In Appellant’s case, the record contains no indication that
either the military judge or the convening authority considered whether the
excess confinement credit of 66 days should have been applied against anoth-
er component of the sentence. Having considered the nature of Appellant’s
offenses and the harm Appellant suffered as a result of the violations of Arti-
cle 13, UCMJ, we find that additional sentence relief is warranted and that
setting aside the reduction to the grade of E-1 is proportionate. Therefore, in
order to ensure meaningful relief for the Government’s violations of Article
13, UCMJ, we modify the approved sentence by setting aside the reduction to
the grade of E-1.
B. Post -Trial Processing Errors
    Appellant asserts multiple errors were made in the post-trial processing
of his case “that could have impacted the convening authority’s desire to
grant clemency.” Specifically, Appellant notes the following: (1) the staff
judge advocate’s recommendation (SJAR) and the attached personal data
sheet (PDS) provided conflicting information regarding Appellant’s pretrial
confinement; (2) the SJAR misstated a reason why Appellant was awarded
confinement credit for illegal pretrial confinement; (3) the PDS did not accu-
rately reflect Appellant’s overseas and combat service; and (4) the SJAR did
not inform the convening authority that he must consider the matters sub-
mitted by Appellant. Appellant thus argues he has made “some colorable
showing of possible prejudice” to Appellant’s opportunity for clemency. Addi-
tionally, the convening authority did not explain in writing the basis for the
denial of the deferment request. Assuming arguendo that the litany of defects
listed by Appellant were plain and obvious errors, we find no prejudice to Ap-
pellant’s opportunity for clemency in light of the set-aside of the reduction in
grade to E-1.



                                        5
                      United States v. Parris, No. ACM S32463



    The proper completion of post-trial processing is a question of law the
court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)
(citing United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to
comment in a timely manner on matters in the SJAR or matters attached to
the SJAR waives in the absence of plain error, or forfeits, any later claim of
error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005). Analyzing for plain error, we assess whether “(1) there was an error;
(2) it was plain or obvious; and (3) the error materially prejudiced a substan-
tial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65). “To meet this
burden in the context of a post-trial recommendation error . . . an appellant
must make ‘some colorable showing of possible prejudice.’” Id. at 436–37
(quoting Kho, 54 M.J. at 65). “The threshold is low, but there must be some
colorable showing of possible prejudice. . . . in terms of how the [error] poten-
tially affected an appellant’s opportunity for clemency.” Id. at 437.
    The sentence in Appellant’s case was announced on 25 January 2017. In
accordance with Article 57(a)(1)(A), UCMJ, 10 U.S.C. § 857(a)(1)(A), the ad-
judged sentence to reduction to the grade of E-1 became effective 14 days af-
ter the announcement of sentence. On 1 March 2017, Appellant requested the
reduction in grade be deferred until action for the benefit of his wife and
daughter. Appellant also highlighted the financial hardships that the im-
proper withholding of his pay and allowances caused for him and his family.
The SJAR in this case is dated 15 March 2017 and included Appellant’s de-
ferment request as an attachment. After service of the SJAR, Appellant’s tri-
al defense counsel notified the Government that the deferment request was
the only requested clemency and waived the right to submit further matters
prior to the convening authority’s action. The SJAR informed the convening
authority that the deferment request served as Appellant’s clemency request,
that the convening authority was obligated to act upon the deferment re-
quest, and that the SJA recommended denial. 3 Neither the convening author-
ity’s action nor any document signed by the convening authority mentioned
the deferment request; thus, it was effectively denied with no written expla-
nation. This was error.
    Noting that a decision to deny a deferment request is subject to judicial
review, our superior court in United States v. Sloan, 35 M.J. 4 (C.M.A. 1992),
rev’d on other grounds, United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018),
made clear the requirement that a convening authority reduce to writing his
rationale for denial of a request for deferment of a sentence component.


3
    There is no addendum to the SJAR in the record of this case.




                                            6
                   United States v. Parris, No. ACM S32463



“When a convening authority acts on an accused's request for deferment of all
or part of an adjudged sentence, the action must be in writing (with a copy
provided to the accused) and must include the reasons upon which the action
is based.” Sloan, 35 M.J. at 7; see Rule for Courts-Martial (R.C.M.) 1101(c)(3).
In Appellant’s case, the convening authority failed to explain in writing the
basis for the denial of the deferment request. For other reasons as discussed
above, we set aside the reduction in grade. Thus, there is no longer a reduc-
tion in grade subject to possible deferment. As judicial review of the denied
deferment is now moot, there is no need for us to address further the failure
to memorialize the reason for denial. C.f. Seeto v. Levy, Misc. Dkt. No. 2016–
15, 2017 CCA LEXIS 136 (A.F. Ct. Crim. App. 22 Feb. 2017) (unpub. op.) (the
convening authority failed to identify reasons for denial of a deferment, and
we vacated the denial and directed the convening authority to re-accomplish
the action in accordance with Article 57a, UCMJ, 10 U.S.C. § 857a, and
R.C.M. 1101(c)(3)).
    In addition to the failure to document the basis for deferment denial,
there were other errors in the post-trial processing of this case. In terms of
how these errors potentially affected Appellant’s opportunity for clemency,
we note the effect of the set aside of the reduction in grade. With the reduc-
tion in grade set aside, the remaining sentence consists of a bad-conduct dis-
charge and 180 days of confinement; neither of which the convening authority
had the authority to disapprove, commute or suspend. The convening author-
ity’s discretion to provide sentence relief was limited to the reduction in grade
which we have set aside. Through our set aside of the reduction in grade, Ap-
pellant has received the equivalent of the full measure of the clemency relief
that was available to him from the convening authority. Thus, we conclude
that the possible prejudice of post-trial processing errors to Appellant’s op-
portunity for the clemency has been mooted.

                               III. CONCLUSION
    We SET ASIDE the reduction in grade to E-1. The approved findings and
sentence, as modified, are correct in law and fact and no other error material-
ly prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and
sentence, as modified, are AFFIRMED.


                 FOR THE COURT


                 CAROL K. JOYCE
                 Clerk of the Court

                                       7
