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

                               No. ACM 39288
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Phillip H. AIKEN
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 20 July 2018
                          ________________________

Military Judge: Patricia A. Gruen.
Approved sentence: Bad-conduct discharge, confinement for 13 months,
and reduction to E-1. Sentence adjudged 9 May 2017 by GCM convened
at Andersen Air Force Base, Guam.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

HARDING, Senior Judge:
    Appellant, in accordance with a pretrial agreement, pleaded guilty to a sin-
gle specification of knowingly and wrongfully viewing child pornography in vi-
olation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
                    United States v. Aiken, No. ACM 39288


934. The military judge sentenced Appellant to a bad-conduct discharge, con-
finement for 13 months, and reduction to E-1. The convening authority ap-
proved the sentence as adjudged.
   Appellant submitted his case on its merits with no specific assignment of
error. The court specified the following issue.
       WHETHER APPELLANT IS ENTITLED TO NEW POST-
       TRIAL PROCESSING CONSISTENT WITH THE DECISION
       OF THE UNITED STATES COURT OF APPEALS FOR THE
       ARMED FORCES (CAAF) IN UNITED STATES V. ADDISON,
       75 M.J. 405 (C.A.A.F. 2016) (MEM.), BECAUSE THE STAFF
       JUDGE ADVOCATE’S RECOMMENDATION (SJAR) MIS-
       STATED THE AUTHORITY OF THE CONVENING AUTHOR-
       ITY AND THE ADDENDUM TO THE SJAR FAILED TO COR-
       RECT AN ERROR IN APPELLANT’S CLEMENCY SUBMIS-
       SION.
   We find Appellant is so entitled and thus order new post-trial processing.

                                I. BACKGROUND
    Notwithstanding that Appellant’s offense occurred “between on or about 2
February 2014 and on or about 9 September 2015” and, thus, the convening
authority had the discretion to disapprove the finding of guilty and the entirety
of the sentence for any or no reason, the SJAR advised the convening authority
as follows: (1) “[f]or the offense of which [Appellant] was found guilty, Article
134, you only have the authority to approve the finding of guilt and cannot
dismiss the finding of guilt,” (2) “[y]ou do not have the authority to disapprove,
commute or suspend in whole or part the confinement or the punitive dis-
charge,” and (3) “[y]ou do have the authority to disapprove, commute or sus-
pend in whole or part the reduction in rank.” In Appellant’s clemency submis-
sion, consistent with the erroneous limitations on the convening authority’s
discretion as explained in the SJAR, Appellant requested relief limited to res-
toration of rank. Appellant specifically stated he would have requested con-
finement relief, but, consistent with the SJAR, Appellant believed the conven-
ing authority did not have the authority to grant such relief.
       Sir, I respectfully ask you to consider granting me relief by al-
       lowing me to retain some of the rank I earned while serving. I
       know this is a lot to ask, and since I’ve lost all my pay, I ask it
       more as a symbol that I did, in fact serve honorably for at least
       a period of time. It would mean a great deal to me. I know that
       you do not have the authority to change my confinement sen-
       tence, or I would ask for that as well, since I believe the nearly


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                    United States v. Aiken, No. ACM 39288


       two years of honorable and devoted service I gave after I came
       to be under investigation showed I can be trusted.
    The addendum to the SJAR did not correct the error in the SJAR or Appel-
lant’s clemency submission. The SJA recommended and the convening author-
ity approved the sentence as adjudged. In a declaration provided to address
the specified issue, the convening authority stated that “[e]ven if I was advised
that I had the authority to commute his confinement, I would have denied his
request.” Likewise, the SJA stated in his declaration that he would have rec-
ommended denial of a request for confinement relief, and, notwithstanding the
error, he would still recommend the sentence be approved as adjudged.

                                 II. DISCUSSION
    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. Rule
for Courts-Martial (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 sub-
stantial 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 (quot-
ing 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] potentially affected
an appellant’s opportunity for clemency.” Id. at 437 (alteration in original).
    In this case, there are two distinct errors—the incorrect advice in the SJAR
itself and the failure to address the error in Appellant’s clemency submission—
both rooted in misstatements of the convening authority’s discretion to act on
the adjudged finding and sentence. The National Defense Authorization Act
(NDAA) for Fiscal Year 2014 modified Article 60, UCMJ, 10 U.S.C. § 860, and
limited the convening authority’s ability to grant clemency. Pub. L. No. 113–
66, sec. 1702, § 860(c)(4)(A), 127 Stat. 954–58 (2013). The effective date of the
change was 24 June 2014. Id. at 958. The pertinent text of the modified Article
60, UCMJ, providing for substantially less convening authority discretion to
act on an adjudged sentence now reads, “[T]he convening authority or another
person authorized to act under this section may not disapprove, commute, or
suspend in whole or in part an adjudged sentence of confinement for more than
six months or a sentence of dismissal, dishonorable discharge, or bad conduct
discharge.” 10 U.S.C. § 860(c)(4)(A) (24 Jun. 2014).



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                     United States v. Aiken, No. ACM 39288


    Recognizing that a specification may allege a timeframe that “straddles”
the effective date of the change to Article 60, UCMJ, the NDAA for Fiscal Year
2015 provided that, where a court-martial conviction involves an offense com-
mitted before 24 June 2014 and an offense committed on or after 24 June 2014,
the convening authority has the same authority under Article 60 as was in
effect before 24 June 2014, except with respect to a mandatory minimum sen-
tence under Article 56(b), UCMJ, 10 U.S.C. § 856(b). Pub. L. No. 113-291, §
531, 128 Stat. 3292, 3365 (2014). Before 24 June 2014, the convening authority
had the authority to dismiss any charge or specification by setting aside a find-
ing of guilty or to change a finding of guilty to a finding of guilty to a lesser
included offense. The convening authority also had the authority to disapprove
a sentence in whole or in part, mitigate the sentence, and change a punishment
to one of a different nature so long as the severity of the punishment was not
increased. *
A. SJAR Error
    Whether an appellant 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). The SJA submitted a declaration con-
ceding the advice given to the convening authority was incorrect but asserting
that, even with the convening authority’s broader discretion, the SJA still
would have recommended the convening authority approve the sentence as ad-
judged. More importantly, the convening authority also submitted an affidavit
noting that he would not have provided Appellant with relief on the sentence
to confinement even if he had known that he had the authority to do so. If the
error in this case was limited to just the SJAR and Appellant had submitted
matters in support of a request for confinement relief, we may have concluded
that Appellant is unable to demonstrate a colorable showing of possible preju-
dice and thus cannot prevail on this issue. Scalo, 60 M.J. at 436–37; see United
States v. Demiller, No. ACM S32344, 2017 CCA LEXIS 154 (A.F. Ct. Crim. App.
16 Feb. 2017) (unpub. op.). The error, however, is not limited to the SJAR; Ap-
pellant, mistakenly believing the convening authority could not grant clem-
ency for the adjudged confinement as asserted in the SJAR, did not request or
submit matters for confinement relief.




* This reflects the language of R.C.M. 1107(d)(1) in effect prior to 24 June 2014 and as
it appeared in the Manual for Courts-Martial, United States (2012 ed.).


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                    United States v. Aiken, No. ACM 39288


B. Failure to Correct the Error in Appellant’s Clemency Submission
    The error in Appellant’s clemency submission can be attributed to Appel-
lant’s reliance on the error in the SJAR. Even if it was not, the SJA was still
obligated to correct Appellant’s error in the SJAR addendum and the SJA did
not do so. See Addison, 75 M.J. at 405. The low threshold of some colorable
showing of possible prejudice to Appellant is met in this case. Appellant was
“entitled as a matter of right to a careful and individualized review of his sen-
tence at the convening authority level. It [was Appellant’s] first and perhaps
best opportunity to have his punishment ameliorated . . . .” United States v.
Walker, 56 M.J. 617, 619 (A.F. Ct. Crim. App. 2001). Appellant did not get that
opportunity in this case. When considering the declarations of the convening
authority and SJA that absent the error a request for confinement relief would
have been denied, we are mindful that “[i]t is . . . important to have one’s sen-
tence considered by a convening authority who does not arbitrarily refuse in
advance to mitigate an important part of the sentence, no matter what factors
might be brought to his attention.” Id. We do not discern from the declarations
that either the convening authority or the SJA had closed their minds from the
possibility of granting confinement relief regardless of Appellant’s clemency
request. In other words, we do not find an inelastic attitude. Rather, we take
from the declaration of the convening authority that, based on what he knew
about Appellant’s case, if he had been properly advised about his authority, he
would have denied the request. However the convening authority did not know
what he did not know: the SJAR error deprived him of the opportunity to con-
sider a request for clemency other than the reduction in rank, which could have
been supported by additional information from Appellant in his clemency re-
quest.
    The combination of the SJAR’s erroneous statement that the convening au-
thority could not disapprove confinement; the corresponding clemency submis-
sion that erroneously eschewed requesting relief from confinement even
though it was desired; and the SJA’s failure to correct Appellant’s erroneous
statement resulted in post-trial processing error. Appellant’s missed oppor-
tunity to request and have the convening authority consider a request for con-
finement relief constitutes a colorable showing of possible prejudice to Appel-
lant in light of Addison. See United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct.
Crim. App. 2018).

                               III. CONCLUSION
    The action of the convening authority is SET ASIDE. The record of trial is
returned to The Judge Advocate General for remand to the convening author-
ity for new post-trial processing with conflict-free trial defense counsel con-
sistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter,


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                    United States v. Aiken, No. ACM 39288


the record of trial will be returned to this court for completion of appellate re-
view under Article 66, UCMJ.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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