             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
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                           No. ACM S32344
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                          UNITED STATES
                              Appellee
                                  v.
                      Ethan A. DEMILLER
               Airman (E-2), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                      Decided 16 February 2017
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Military Judge: Brendon K. Tukey.
Approved sentence: Bad-conduct discharge, confinement for 30 days, for-
feiture of $1,000.00 pay per month for one month, and reduction to E-1.
Sentence adjudged 12 June 2015 by SpCM convened at F.E. Warren Air
Force Base, Wyoming.
For Appellant: Major Lauren A. Shure, USAF, and Captain Annie W.
Morgan, USAF.
For Appellee: Major J. Ronald Steelman III, USAF, and Gerald R. Bruce,
Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military
Judges
Senior Judge DUBRISKE delivered the opinion of the Court, in which
Judges HARDING and 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   This is an unpublished opinion and, as such, does not serve as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.
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                 United States v. Demiller, No. ACM S32344


DUBRISKE, Senior Judge:
    Consistent with his pleas pursuant to a pretrial agreement, Appellant was
convicted by a military judge sitting alone of dereliction of duty, driving while
intoxicated, wrongful use of marijuana on divers occasions, and wrongful pos-
session of marijuana, in violation of Articles 92, 111, and 112a, UCMJ, 10
U.S.C. §§ 892, 911, 912a. Appellant was initially charged with wrongful intro-
duction of marijuana onto a military installation, but pleaded guilty by excep-
tions and substitutions to the lesser included offense of wrongful possession of
marijuana. The Government declined to prove up the greater offense after the
military judge accepted Appellant’s guilty plea in accordance with the pretrial
agreement.
    Appellant was sentenced to a bad-conduct discharge, 30 days of confine-
ment, forfeiture of $1,000.00 pay per month for one month, and reduction to E-
1. The convening authority approved the sentence as adjudged.
   Appellant raises two issues on appeal. First, he argues the military judge
erred in accepting Appellant’s plea to wrongful possession of marijuana by ex-
ceptions and substitutions. Second, Appellant claims the staff judge advocate
(SJA) failed to provide accurate legal advice to the convening authority during
the post-trial processing of his case. Appellant requests we set aside his sen-
tence to confinement to remedy this error.
    As we find no error substantially prejudices a substantial right of this Ap-
pellant, we now affirm.

                                I. DISCUSSION
A. Acceptance of Appellant’s Guilty Plea to a Lesser Included Offense.
    Citing Rule for Courts-Martial (R.C.M.) 918(a)(1), Appellant argues the
military judge erred by accepting Appellant’s plea to wrongful possession of
marijuana as exceptions and substitutions cannot be used to substantially
change the nature of a charged offense. In making this argument, Appellant
acknowledges the offense of possession of marijuana is a lesser included offense
of the wrongful introduction of marijuana specification originally charged by
the Government. Appellant also concedes his plea to the lesser offense was
provident.
    Appellant’s argument is misplaced. When a convening authority refers a
charge to a court-martial, any lesser included offense of that charge is referred
with it, and need not be separately charged and referred. United States v.
Nealy, 71 M.J. 73, 76 (C.A.A.F. 2012). As to the appropriateness of the military
judge’s acceptance of Appellant’s plea to a lesser included offense, we note Ar-
ticle 79, UCMJ, 10 U.S.C. § 879, provides the following guidance:


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                  United States v. Demiller, No. ACM S32344


       Findings of guilty to a lesser included offense. A court-martial
       may find an accused not guilty of the offense charged, but guilty
       of a lesser included offense by the process of exception and sub-
       stitution. The court-martial may except (that is, delete) the
       words in the specification that pertain to the offense charged
       and, if necessary, substitute language appropriate to the lesser
       included offense. . . .
Manual for Courts-Martial, United States (2012 ed.), Pt. IV, ¶ 3.b.(3); see also
R.C.M. 910(a)(1), Discussion (noting a different process when an accused
pleads guilty to a lesser included offense without using exceptions and substi-
tutions). As such, we find the military judge’s handling of Appellant’s plea was
appropriate.
B. Erroneous Post-Trial Processing Advice.
   Although he did not object during clemency, Appellant now alleges the SJA
gave erroneous legal advice when the convening authority was instructed he
could not disapprove, commute, or suspend Appellant’s sentence to confine-
ment. Appellant requests this court set aside his 30-day sentence to confine-
ment to correct this error.
    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 staff judge advocate’s recom-
mendation (SJAR) or addendum, to include matters attached to it, forfeits the
issue unless there is plain error. 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.
   As Appellant was sentenced to less than six months of confinement, the
Government concedes—and we agree—that the SJA erred in advising the con-
vening authority that he could not provide clemency relief in the form of a re-
duced term of confinement. See Article 60(c)(4)(A), UCMJ, 10 U.S.C. §
860(c)(4)(A).
    Yet finding error does not end our inquiry, as Appellant must still demon-
strate a colorable showing of possible prejudice in order to prevail on this issue.
Whether an appellant was prejudiced by a mistake in the SJAR generally re-
quires a court to consider whether the convening authority “plausibly may
have taken action more favorable to” the appellant had he or she been provided

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                 United States v. Demiller, No. ACM S32344


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). Given Appellant was released from con-
finement prior to the convening authority’s action and his clemency request
only asked that his punitive discharge be aside, we find Appellant has not met
his burden of establishing prejudice.
   Moreover, the Government has been able to demonstrate that any error did
not prejudice Appellant. The SJA submitted an affidavit conceding the advice
given to the convening authority was incorrect. However, the SJA asserted that
even with the convening authority’s broader discretion, she still would have
recommended the convening authority approve the sentence as adjudged.
   More importantly, the convening authority also submitted an affidavit not-
ing that he would not have provided Appellant with relief on the sentence to
confinement even with the knowledge now that he had the authority to do so
during clemency. As Appellant is unable to demonstrate a colorable showing of
possible prejudice, he cannot prevail on this issue. Scalo, 60 M.J. at 436–37.
   Although we find no prejudice to this particular Appellant, we also note the
SJAR failed to include a bad-conduct discharge as a possible punishment when
advising the convening authority on the maximum punishment for this special
court-martial. Greater attention to detail will eliminate unnecessary errors as
found in this case and better facilitate accurate post-trial processing.

                               II. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially 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 the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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