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

                               No. ACM S32391
                           ________________________

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

        Appeal from the United States Air Force Trial Judiciary
                            Decided 30 May 2017
                           ________________________

Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
forfeiture of $1,000.00 pay per month for 6 months, and reduction to E-
1. Sentence adjudged 25 January 2016 by SpCM convened at Seymour
Johnson Air Force Base, North Carolina.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

HARDING, Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas, of four specifications under Article
                     United States v. Kyc, No. ACM S32391


112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a—specifically,
both wrongful use and introduction of cocaine on divers occasions, wrongful
use of hydrocodone, and wrongful possession of heroin. 1 The military judge
sentenced Appellant to a bad-conduct discharge, six months of confinement,
forfeiture of $1,000.00 pay per month for six months, and reduction to the
grade of E-1.
   Appellant raises three assignments of error: (1) the staff judge advocate’s
recommendation (SJAR) misadvised the convening authority of the maximum
imposable punishment; (2) the SJAR failed to address an allegation of legal
error raised in the clemency submission; and (3) he should be provided sen-
tence relief for the conditions of post-trial confinement under Article 66(c),
UCMJ, 10 U.S.C. § 866(c). As we find no error substantially prejudices a sub-
stantial right of Appellant, we now affirm.

                                  I. BACKGROUND
    The SJAR for this special court-martial advised the convening authority
that “[t]he maximum imposable sentence for the offenses for which the accused
was convicted is reduction to E-1, two-thirds forfeiture of pay per month for 12
months, hard labor without confinement for 3 months, restriction for two
months, a fine, a reprimand, confinement for 12 months, and a bad conduct
discharge.” (Emphasis added). The SJAR also provided a summary of the pre-
trial agreement specifically detailing that, in exchange for Appellant’s guilty
plea, “confinement would be limited to 6 months if a bad conduct discharge was
adjudged, and no more than 8 months confinement if a bad conduct discharge
was not adjudged.”
    Appellant’s clemency matters consisted of a memorandum from his defense
counsel, Appellant’s hand-written submission entitled “Living Conditions,”
and a copy of a book review about the psychological impacts of incarceration.
Appellant’s counsel requested Appellant be “let out of jail early” in recognition
of his cooperation in the prosecution of other Airmen involved in the drug of-
fenses. His defense counsel also averred that Appellant “was incarcerated in a
state facility with shoddy conditions” and that counsel “couldn’t even talk to
him without someone else in the room.” Appellant, in his hand-written submis-
sion, requested that the convening authority “relieve some time off [his] sen-
tence for living in these poor conditions here at the Sampson County Detention



1The convening authority agreed to dismiss with prejudice a specification alleging dis-
tribution of cocaine.




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                      United States v. Kyc, No. ACM S32391


Center.” The clemency matters did not allege that the SJAR had provided er-
roneous advice regarding the maximum punishment. Nor did the matters spe-
cifically allege that the conditions of post-trial confinement violated the Eighth
Amendment, 2 Article 55, UCMJ, 10 U.S.C. § 855, or otherwise expressly allege
that the conditions of post-trial confinement constituted legal error for which
Appellant was due relief.
    Appellant’s clemency matters were attached to an addendum to the SJAR
advising the convening authority that he must consider them prior to taking
action. The addendum also provided that the staff judge advocate (SJA) had
reviewed Appellant’s clemency matters and that her “earlier recommendation
remain[ed] unchanged.” She recommended that the convening authority ap-
prove the findings and sentence as adjudged. In his indorsement to the SJAR
addendum, the convening authority indicated that he had considered Appel-
lant’s clemency matters before taking action in the case.

                                II. DISCUSSION
A. The Staff Judge Advocate’s Recommendation and Addendum
    Although he did not allege error during the post-trial processing of his case,
Appellant now alleges the SJA gave erroneous legal advice when the convening
authority was instructed on the maximum punishment and that the addendum
to the SJAR failed to address an allegation of legal error in Appellant’s clem-
ency submission. Appellant requests that we order new post-trial processing
in his case. We decline to do so.
    We review de novo alleged errors in post-trial processing. See United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004). Although the threshold for establishing preju-
dice in this context is low, the appellant must nonetheless make at least “some
colorable showing of possible prejudice.” United States v. Scalo, 60 M.J. 435,
436–37 (C.A.A.F. 2005) (quoting Kho, 54 M.J. at 65).
    Failure to timely comment on matters in the SJAR or addendum, to include
matters attached to it, forfeits the issue unless there is plain error. Rule for
Courts-Martial (R.C.M.) 1106(f)(6); Scalo, 60 M.J. at 436. 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.




2   U.S. CONST. amend. VIII


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                     United States v. Kyc, No. ACM S32391


    1. Erroneous Advisement of Maximum Imposable Sentence
    The Government readily concedes that the SJAR mistakenly stated that,
in addition to confinement of 12 months, the maximum imposable sentence
also included “hard labor without confinement for 3 months and restriction for
2 months.” We agree. While, indeed, confinement for up to 12 months, re-
striction for up to two months and hard labor without confinement for up to
three months were each authorized punishments, they could not, when aggre-
gated and applying equivalency standards, exceed the total maximum author-
ized period of confinement—here, 12 months. R.C.M. 1003(b)(5)-(6). The
SJAR’s failure to acknowledge this limitation was plain or obvious error. Al-
though not raised by Appellant, we note a similar error in the SJAR with re-
gard to a fine as part of the maximum imposable sentence in addition to forfei-
ture of two-thirds’ pay per month for 12 months. 3 This was also a plain and
obvious error.
    Yet finding error does not end our inquiry, as Appellant must still demon-
strate a colorable showing of possible prejudice to prevail. Whether an appel-
lant was prejudiced by a mistake in the SJAR generally requires a court to
consider whether the convening authority “plausibly may have taken action
more favorable 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), 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). Having reviewed the record in this case, we find Appel-
lant has not met his burden of establishing prejudice.
    Appellant avers that when deciding to grant clemency, the convening au-
thority “should take the true maximum punishment into account” and that in
this case “there is a colorable argument that the convening authority did not
grant clemency because he believed Appellant’s crimes to warrant more severe
punishment than authorized.” While we agree that the correct maximum pun-
ishment is an appropriate factor to be considered and the SJA has an obligation
to ensure the accuracy of the matters in her SJAR, the overstatement of the
maximum imposable punishment in this case was relatively minor. Even ap-
plying the lower standard, we find it implausible that a mistaken belief regard-
ing aggregation of forms of restraint and forfeitures and fines would have
caused the convening authority to conclude the offenses were more serious.
    We further note that the convening authority had already made two deci-
sions, both in favor of Appellant, requiring him to consider the seriousness of


3Any combination of a fine and forfeitures may not exceed the total amount of forfei-
ture that may be adjudged—here, forfeiture of two-thirds’ pay per month for 12
months. R.C.M. 1003(b)(3).


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                    United States v. Kyc, No. ACM S32391


Appellant’s offenses. First, the convening authority made a disposition decision
on both the Charge and its three specifications and the Additional Charge and
its two specifications. The maximum sentence to confinement based on the
charges that had been preferred without regard to the type of court-martial
was 35 years. The convening authority decided to refer all the charges and
specifications to a special court-martial instead of ordering an Article 32,
UCMJ, 10 U.S.C. § 832, preliminary hearing with a view toward recommend-
ing a general court-martial. Second, as part of the pretrial agreement, the con-
vening authority agreed to dismiss with prejudice a specification alleging dis-
tribution of cocaine and also agreed to limit the amount of confinement he
would approve if confinement was adjudged. In both instances the convening
authority would have necessarily become familiar with the circumstances sur-
rounding Appellant’s offenses and the possible sentencing outcomes in the case
given the referral to a special court-martial and the pretrial agreement. We do
not believe the misstatement of the maximum imposable punishment in the
SJAR effected a significant shift in how the convening authority viewed the
seriousness of Appellant’s offenses or affected Appellant’s chances for clem-
ency. As we are confident that stating the proper maximum imposable sen-
tence would not have led to a more favorable recommendation by the SJA or
clemency by the convening authority, we find no colorable showing of prejudice
in this case.
   2. Failure to Address Allegation of Legal Error in the Addendum
    Appellant next alleges the addendum to the SJAR failed to adequately ad-
dress an allegation of legal error regarding the conditions of his post-trial con-
finement. Appellant asserts that having mentioned poor confinement condi-
tions in his clemency submission, the SJA erred in not advising the convening
authority whether corrective action was necessary as required by R.C.M.
1106(d)(4). We disagree.
    The SJA is not required to examine the record for legal errors; however,
among the various required contents of the SJAR is the requirement that “[t]he
staff judge advocate shall state whether, in the staff judge advocate’s opinion,
corrective action on the findings or sentence should be taken when an allega-
tion of legal error is raised in matters submitted under R.C.M. 1105 or when
otherwise deemed appropriate by the staff judge advocate.” R.C.M. 1106(d)(4).
As we said in United States v. Branch, No. ACM S31691, 2010 CCA LEXIS
403, at *5 (A.F. Ct. Crim. App. 13 Dec. 2010), “[t]he threshold question is
whether the appellant raised legal error in his clemency submissions.” While
Appellant did generally describe the conditions of the state confinement facility
as “shoddy” and “poor,” nowhere in his matters does he cite those as evidence
of a violation of the Eighth Amendment or Article 55, UCMJ, or otherwise ex-
pressly allege that the conditions of post-trial confinement constituted legal


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                    United States v. Kyc, No. ACM S32391


error for which he was due relief. Instead, those conditions were marshalled as
a matter in mitigation in support of a plea that Appellant receive clemency in
the form of time off his sentence to confinement. We conclude that Appellant's
claims did not amount to an allegation of legal error and thus the SJA was not
obliged to address it.
    Assuming arguendo that Appellant’s post-trial claims were enough to raise
legal error regarding the conditions of post-trial confinement, the SJA’s re-
sponse in the SJAR addendum was adequate to address it. In addressing
whether corrective action should be taken because of legal error, R.C.M. 1006
does not require an extensive response from the SJA. “The response may con-
sist of a statement of agreement or disagreement with matter raised by the
accused. An analysis or rationale for the staff judge advocate’s statement, if
any, concerning legal errors is not required.” R.C.M. 1106(d)(4).
   Here, the SJA did not specifically say whether corrective action was neces-
sary. She did state, however, that she had considered the clemency submission
and her original recommendation remained unchanged. In a similar case,
United States v. Catrett, 55 M.J. 400, 408 (C.A.A.F. 2001), our superior court
found that the statement “[n]othing contained in the defense submissions war-
rants further modification of the opinions and recommendations expressed in
the Staff Judge Advocate's Recommendations” met the minimal response re-
quired by R.C.M. 1106(d)(4). We find the statement in the SJA’s addendum
meets the minimum requirements.
B. Post-Trial Confinement Conditions and Sentence Appropriateness
    Appellant now raises the issue of post-trial confinement conditions with
this court. Appellant does not argue that the conditions of his post-trial con-
finement violated the Eighth Amendment or Article 55, UCMJ. Instead, he
urges this court to exercise its authority under Article 66(c), UCMJ, to provide
sentence relief for the conditions of post-trial confinement. Having reviewed
the entire record, we decline to do so.
    This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the
entire record, should be approved.” Article 66(c), UCMJ. In determining
whether a sentence should be approved, our authority is “not legality alone,
but legality limited by appropriateness.” United States v. Nerad, 69 M.J. 138,
141 (C.A.A.F. 2010) (quoting United States v. Atkins, 23 C.M.R. 301, 303
(C.M.A. 1957)). This authority is “a sweeping congressional mandate to ensure
a fair and just punishment for every accused.” United States v. Baier, 60 M.J.
382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach, 55 M.J. 501, 504
(Army Ct. Crim. App. 2001)). This task requires “‘individualized consideration’




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                      United States v. Kyc, No. ACM S32391


of the particular accused ‘on the basis of the nature and seriousness of the of-
fense and the character of the offender.’” United States v. Snelling, 14 M.J. 267,
268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81
(C.M.A. 1959)). In conducting this review, we must also be sensitive to consid-
erations of uniformity and evenhandedness. United States v. Sothen, 54 M.J.
294, 296 (C.A.A.F. 2001) (citing United States v. Lacy, 50 M.J. 286, 287–88
(C.A.A.F. 1999)).
    As a threshold matter in this case, where the claim for sentence appropri-
ateness relief relies upon a claim of poor post-trial confinement conditions, the
Government urges we hold that, absent unusual or egregious circumstances,
failure to exhaust administrative remedies 4 is a bar to Article 66(c), UCMJ,
consideration. To be sure, imposition of a requirement that an appellant ex-
haust administrative remedies before petitioning for relief under Article 66(c),
UCMJ, for post-trial confinement conditions would promote a system where
the government would be able to promptly investigate confinement condition
allegations, document the conditions as they actually exist, and immediately
address them if necessary. Not only would such a system encourage the timely
correction of inadequate confinement conditions, it would result in a more com-
plete record for appellate review.
     Such a requirement, however, runs counter to the essential Article 66(c),
UCMJ, inquiry of “appropriateness in light of all circumstances” wherein “no
single predicate criteria . . . should be erected to foreclose application
of . . . consideration or relief.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). Under Article 66(c), UCMJ, our sentence appropriateness au-
thority is to be based on our review of the “entire record,” which necessarily
includes the appellant’s allegation of the conditions of his post-trial confine-
ment. See United States v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. App. 2000)
(noting that matters submitted to the convening authority for clemency pur-
poses are available to this court to aid us in determining the appropriateness


4 For claims of an Eighth Amendment or Article 55, UCMJ, violation, “a prisoner must
seek administrative relief prior to invoking judicial intervention to redress concerns
regarding post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 471
(C.A.A.F. 2007) (citing United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001));
United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997) (quoting United States v.
Coffey, 38 M.J. 290, 291 (C.M.A. 1993)). This requirement “promot[es] resolution of
grievances at the lowest possible level [and ensures] that an adequate record has been
developed [to aid appellate review].” Wise, 64 M.J. at 471 (citing Miller, 46 M.J. at 250).
In United States v. McPhearson, 73 M.J. 393, 397 (C.A.A.F. 2014), this exhaustion-of-
remedies requirement was made applicable to claims brought under Article 12, UCMJ
for violation on prohibition of placement in confinement in immediate association with
enemy prisoners or other foreign nationals who are not members of the armed forces.


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                      United States v. Kyc, No. ACM S32391


of a sentence). “While we may not engage in acts of clemency, . . . we may con-
sider post-trial confinement conditions as part of our overall sentence appro-
priateness determination, even where those allegations do not rise to the level
of an Eighth Amendment or Article 55, UCMJ, violation.” United States v. Gay,
74 M.J. 736, 741 (A.F. Ct. Crim. App. 2015), aff’d, United States v. Gay, 75 M.J.
264 (C.A.A.F. 2016). We are also mindful our superior court has emphasized
the Courts of Criminal Appeals do not have “unlimited authority . . . to grant
sentence appropriateness relief for any conditions of post-trial confinement of
which they disapprove.” Gay, 75 M.J. at 269. Given these parameters, we have
previously noted we will likely only exercise our Article 66(c) authority to grant
sentence relief based upon conditions of post-trial confinement in very rare cir-
cumstances. See United States v. Stortz, No. ACM S32377, 2017 CCA LEXIS
266 (A.F. Ct. Crim. App. 17 Apr. 2017), United States v. Milner, No. ACM
S32338, 2017 CCA LEXIS 84 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.)
    We therefore decline to hold that an appellant must demonstrate that he
has, absent unusual or egregious circumstances, previously exhausted admin-
istrative remedies prior to seeking judicial relief under Article 66(c), UCMJ for
post-trial confinement conditions. We will instead consider the entire record,
to include Appellant’s failure to exhaust administrative remedies, while recog-
nizing the limits of our authority.
    We now turn to consideration of the matters raised by Appellant.
     Appellant argues on appeal that this court should grant sentence relief due
to being deprived of basic hygiene and unmonitored access to his attorney at
the Sampson County Detention Center. 5 Appellant did not provide an affidavit
in support of his claim but relies on his clemency matters. In his submission to
the convening authority entitled “Living Conditions,” Appellant provided the
following description of his experience at the Sampson County Detention Cen-
ter:
        It has been rough these past few weeks being in solitary confine-
        ment here at Sampson County Detention Center. I was told I
        would be let out of my cell every day for an hour. I have been
        lucky to been [sic] let out for twice a week for maybe 15 mins. In
        these 15 mins. I would shower and if I had time try to make a
        phone call. Most of my phone calls were cut short by an officer
        telling me to go back in my cell. I sleep on a metal frame bed
        with just a small cushion and no pillow. I often wake with a sore


5 His defense counsel during post-trial processing also averred that Appellant “was
incarcerated in a state facility with shoddy conditions” and that counsel “couldn’t even
talk to him without someone else in the room.”


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                       United States v. Kyc, No. ACM S32391


          back, hips and neck. It is hard to get to sleep due to the other
          inmates talking screaming, laughing, and banging the walls
          through the night. They wash our clothes just once a week which
          gets nasty when I only have one other change of clothes. Espe-
          cially because I like to work out in my cell my clothes get smelly.
          It would be greatly appreciated if you can find it in your good
          graces to relieve some time off my sentence for living in these
          poor conditions here at Sampson County Detention Center.
          Thank you.
    In response to Appellant’s claims, the Government provided five witness
declarations and an inmate disciplinary form which were attached to the rec-
ord. Collectively these affidavits establish that Appellant never complained of
the confinement conditions until his clemency submission by which time he
had already left the Sampson County Detention Center. Specifically, Appellant
did not formally pursue an Article 138, UCMJ, 10 U.S.C. § 938, complaint or
avail himself of a complaint process of the facility itself. Nor did he express any
concerns about the conditions to his First Sergeant who visited him at the
Sampson County Detention Center on two occasions. Further, Appellant was
placed in lockdown for ten days as a disciplinary measure for failing to follow
orders and for lying to staff at the Sampson County Detention Center. 6
    Having given individualized consideration of Appellant on the basis of the
nature and seriousness of the offenses, the character of Appellant, and the con-
ditions of his post-trial confinement based on the entirety of the record, we
decline to grant the requested relief.

                                  III. CONCLUSION
   The approved findings are correct in law and fact, the sentence is not inap-
propriate, and no error materially prejudicial to Appellant’s substantial rights


6   In United States v. Fagan, 59 M.J. 238, 241–42 (C.A.A.F. 2004), our superior court
determined that the framework of United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997),
guides our determination of whether a post-trial fact-finding hearing is necessary to
resolve a claim based on the conditions of post-trial punishment. Applying this frame-
work, we find it unnecessary to remand this case for additional fact-finding. Appel-
lant’s account of his confinement conditions, as described in his clemency submission,
are substantially consistent with the Government declarations concerning Appellant’s
treatment. To the extent there are differences between Appellant’s and the Govern-
ment’s accounts, our resolution of those discrepancies in Appellant’s favor would not
result in granting Appellant relief.




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                   United States v. Kyc, No. ACM S32391


occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accord-
ingly, the approved findings and sentence are AFFIRMED.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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