United States v. Hunt

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

No. ACM S32513
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UNITED STATES
Appellee
v.
Jacquan E. HUNT
Airman (E-2), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 15 October 2019
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Military Judge: Mark F. Rosenow.
Approved sentence: Bad-conduct discharge and reduction to E-1. Sen-
tence adjudged 13 December 2017 by SpCM convened at Holloman Air
Force Base, New Mexico.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF; Major Jar-
ett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
KEY and Judge D. JOHNSON joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MINK, Senior Judge:
Appellant was found guilty by a military judge, in accordance with his
pleas, of two specifications of wrongful use of a controlled substance (marijuana
and Methylenedioxy-Amphetamine) both on divers occasions in violation of
 United States v. Hunt, No. ACM S32513

Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 A
panel of officer members sentenced Appellant to a bad-conduct discharge and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.
Appellant raises three issues on appeal: (1) whether Appellant’s plea to di-
vers use of Methylenedioxy-Amphetamine (MDA) 2 is improvident because the
military judge did not elicit sufficient facts to establish that Appellant was
aware that the pills he was ingesting were a controlled or contraband sub-
stance prior to their ingestion, or in the alternative, that Appellant’s use of
MDA should be deemed one continuous transaction rather than divers use; (2)
whether the military judge erred when he admitted a letter of reprimand
(LOR) as sentencing evidence when Appellant’s commander admitted that one
of the main purposes for its issuance was for general deterrence purposes for
the squadron; and (3) whether trial defense counsel was ineffective when he
requested that the convening authority set aside Appellant’s bad-conduct dis-
charge, which was beyond the convening authority’s power under Article 60,
UCMJ, 10 U.S.C. § 860, or in the alternative, whether an error in the staff
judge advocate’s recommendation (SJAR) regarding the maximum punishment
and the failure of the SJAR addendum to address trial defense counsel’s error
in the clemency request requires new post-trial processing. 3 We find no preju-
dicial error and affirm the findings and sentence.

I. BACKGROUND
On 2 September 2017, during the Labor Day holiday weekend, Appellant
attended an off-base party with civilian friends in Las Cruces, New Mexico.
While walking around in the house where the party was occurring, Appellant
was offered a “hookah,” which Appellant described to the military judge as a

1All references in this opinion to the Uniform Code of Military Justice, Rules for
Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2016 ed.).
2 MDA is also known as 3, 4-methylenedioxyamphetamine. At various times in the
record of trial, the terms “Methylenedioxy-Amphetamine,” “MDA,” and “3, 4-meth-
ylenedioxyamphetamine” are used to refer to the illegal substance consumed by Appel-
lant. Appellant also referred to MDA as “molly” even though that term is generally
used to refer to 3, 4-menthylenedioxymethamphetamine or MDMA, which was de-
scribed by the Government’s expert witness as a “sister drug” to MDA. Both MDA and
MDMA are Schedule I controlled substances. The record is clear that Appellant
pleaded guilty to and was found guilty of the wrongful use of MDA.
3Although Appellant raises the post-trial processing errors “in the alternative” to his
assertion of ineffective assistance of counsel, for clarity we address these issues sepa-
rately below.

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device from which tobacco or other substances could be smoked. Appellant be-
gan to smoke from the hookah and discovered it contained marijuana. Appel-
lant then chose to continue to smoke from the hookah. Approximately one hour
later, while still at the party, Appellant was approached by a civilian male that
he did not know. The individual gave Appellant two round white pills, which
Appellant accepted. Appellant stated that although he did not know specifi-
cally what the pills were before he used either of them, he “knew it was an
illegal substance.” He took one of the pills shortly after midnight and took the
second pill approximately thirty minutes later. He subsequently learned that
both of the pills were MDA.
Approximately two weeks later, on or about 16 September 2017, while at-
tending another party in Las Cruces, Appellant smoked marijuana in the form
of a joint he was provided by someone at the party.

II. DISCUSSION
A. Appellant’s Conviction for Divers Use of MDA
Appellant asks us to set aside his conviction for wrongful use of MDA on
divers occasions. Appellant asserts his guilty plea was improvident as a result
of the military judge’s failure to elicit a sufficient factual basis to establish Ap-
pellant was aware that the pills he ingested were a controlled or contraband
substance prior to his ingesting each of them. Appellant argues that a substan-
tial basis exists to question the providence of his guilty plea and that, as a
result, the military judge abused his discretion in accepting his plea. Alterna-
tively, Appellant argues that his use of MDA should be considered a continu-
ous, rather than divers use. We disagree and find that Appellant entered a
provident plea to divers use, and the military judge did not abuse his discretion
by accepting it.
1. Additional Background
Appellant pleaded guilty to the wrongful use of MDA on divers occasions.
During the providence inquiry, the military judge explained the elements and
definitions of the offense of wrongful use of a controlled substance to Appellant
and then asked Appellant a number of specific questions to determine whether
to accept his plea of guilty. The military judge defined “use” of a controlled
substance and the circumstances that make the use of a controlled substance
“wrongful.” The military judge advised Appellant that use of the controlled
substance must be “knowing and conscious” and that “divers occasions” meant
“on more than one occasion.” The military judge also told Appellant that
knowledge of the exact identity of the contraband substance is not required,
only that Appellant knew the substance was prohibited.

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The military judge then asked Appellant to explain why he was guilty of
the wrongful use of MDA on divers occasions. Appellant stated that after he
smoked marijuana from the hookah, he was walking around at the party and
a civilian male that he did not know offered him two white circular pills, which
he accepted. Appellant stated that he “didn’t know what the pill was, but [he]
knew it was an illegal substance.” Appellant stated he swallowed the first pill
shortly after midnight, and that his “body felt weird,” he “couldn’t stand still,”
and his “body was shaking.” Appellant stated that approximately thirty
minutes later, after the effects of the first pill had worn off, he swallowed the
second pill and experienced effects similar to those he had after taking the first
pill.
The military judge then questioned Appellant specifically about the circum-
stances of his use of MDA. Appellant explained that the effects of the mariju-
ana he had smoked earlier from the hookah had mostly dissipated by the time
he was given the pills. Appellant stated that he believed the pills were contra-
band based on the setting of the party and due to fact that he knew that no one
just gives away medication at a party. Appellant explained that even though
he did not learn what the pills were until after he had taken them, he knew
that they were illegal before he did so. Appellant stated he later heard others
at the party discussing the use of MDA or MDMA, and the results from his
urinalysis test a few days later confirmed that the substance he used was
MDA.
2. Law and Analysis
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (cita-
tions omitted). In discharging this duty, we review whether the record before
us contains a substantial basis in law and fact to question the plea. United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). Appellant argues that he did
not establish a sufficient factual basis for the acceptance of his guilty plea, and
the military judge had a duty to inquire further before accepting Appellant’s
plea. We disagree.
When reviewing a military judge’s acceptance of a guilty plea, we deter-
mine “the factual circumstances admitted by the accused which ‘objectively’
support his plea.” United States v. Shearer, 44 M.J. 330, 334 (C.A.A.F. 1996)
(quoting United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994)). Here, Appel-
lant himself provided the factual basis upon which to accept his plea when he
admitted that he knew the pills were an illegal or contraband substance before
he used either one. Contrary to Appellant’s assertion that he did not suffi-
ciently indicate that he knew the pills were contraband or a controlled sub-
stance at the time he ingested either pill, Appellant told the military judge why
he believed the pills were contraband, to include the setting of the party and

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the fact that it was not common for individuals to hand out medication at a
party. In addition, earlier at the party Appellant had smoked marijuana pro-
vided to him at no charge.
Under these circumstances, it was clearly reasonable for Appellant to un-
derstand illegal drug use was occurring at the party. It is also clear that the
military judge asked the question and Appellant provided more than just a
conclusory answer as to why he believed the pills were contraband. By Appel-
lant’s own admission, he knew the pills were illegal or contraband before he
used them. We find no substantial basis upon which to question Appellant’s
plea. Therefore, we find the plea provident and find that the military judge did
not abuse his discretion in accepting Appellant’s guilty plea.
Appellant next argues, in the alternative, that he was not guilty of divers
use of MDA but instead his use was a “continuous course of conduct.” We are
not persuaded. In order to determine whether Appellant’s uses were separate
or constituted a continuous course of conduct, we consider “factors such as
time, distance, and the subject of the offenses.” United States v. Jobes, 20 M.J.
506, 508 (A.F.C.M.R. 1985). Appellant pleaded guilty and admitted to two sep-
arate uses of MDA. Appellant explained to the military judge that he consumed
a second pill approximately thirty minutes after he consumed the first pill and
after the effects of the first pill had worn off. Appellant specifically admitted
that he could have chosen not to use the second pill, but did so anyway because
he wanted to experience the effects of the first pill again. We find Appellant’s
two uses of MDA were separate criminal acts and not a continuous course of
conduct. Accordingly, we again conclude that Appellant’s plea to divers use of
MDA was provident.
B. Admission of the LOR
Appellant asserts that the military judge erred by admitting a LOR, dated
5 December 2017, into evidence because Appellant’s commander admitted that
one of the reasons he issued the LOR was for “general deterrence purposes of
the squadron.” We disagree that the military judge erred.
1. Additional Background
The trial in this case was originally scheduled to begin on 11 December
2017. Nine days prior to the scheduled start of his court-martial, on 2 Decem-
ber 2017, Appellant was the passenger in a vehicle stopped by security forces
at the main gate of Holloman Air Force Base. Appellant was apprehended after
a search of the vehicle by security forces personnel resulted in the discovery of
marijuana. In addition, one of the individuals in the vehicle with Appellant
was another Airman with whom Appellant had been ordered to have no con-
tact. Three days later, on 5 December 2017, Appellant’s commander issued Ap-
pellant a LOR addressing Appellant’s presence in the vehicle where marijuana

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was found as well as Appellant’s violation of the no contact order. In his re-
sponse to the LOR, Appellant explained he needed a ride back to base and his
only option was to ride with the Airman with whom he was to have no contact.
Appellant also apologized for his actions.
During the trial, the Government sought to introduce the LOR in the
presentencing case. The Defense objected on the basis that the LOR was is-
sued for an improper purpose and that the LOR should be excluded in ac-
cordance with Military Rule of Evidence (Mil. R. Evid.) 403. The Defense
argued that a LOR is a rehabilitative tool to be used for improvement, cor-
rection, and instruction of subordinates. The Defense asserted that in this
case Appellant’s squadron commander imposed the LOR, not for the purpose
of rehabilitating Appellant, but for good order and discipline in the squad-
ron. Appellant’s commander testified one of the reasons that he issued the
LOR was for “good order and discipline,” but he also testified that this gave
him “another opportunity . . . to have a conversation with [Appellant] and
discuss his future . . . and the things [he] need[ed] to improve on.” The mili-
tary judge admitted the LOR over the Defense’s objection.
2. Law and Analysis
This court reviews a military judge’s decision to admit or exclude evidence
for an abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008) (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “An
abuse of discretion occurs when the trial court’s findings of fact are clearly er-
roneous or if the court’s decision is influenced by an erroneous view of the law.”
Id. (citation omitted).
Under Rule for Courts-Martial (R.C.M.) 1001(b)(2), “evidence of any disci-
plinary actions” are potentially admissible at sentencing. “If the accused objects
to a particular document . . . as containing matter that is not admissible under
the Military Rules of Evidence, the matter shall be determined by the military
judge.” Id.; see also Air Force Instruction (AFI) 51-201, Administration of Mili-
tary Justice, ¶ 7.18 (8 Dec. 2017) (addressing the admissibility of a LOR).
Departmental regulation outlines the authority for and purpose of LORs.
“Commanders . . . can issue administrative . . . reprimands. These actions are
intended to improve, correct, and instruct subordinates who depart from stand-
ards of performance, conduct, bearing, and integrity, on or off duty, and whose
actions degrade the individual and unit’s mission.” AFI 36-2907, Unfavorable
Information File (UIF) Program, ¶ 4.1 (26 Nov. 2014).
In order to be admissible as sentencing evidence, a LOR must perform a
legitimate “corrective” or “management tool” purpose, and cannot merely have
been issued to ensure the underlying misconduct addressed in the LOR is con-
sidered by the sentencing authority at trial. United States v. Williams, 27 M.J.

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529, 530 (C.M.R. 1988) (citation omitted). The focus is on the intent of the is-
suing commander; specifically, “whether a commander employed a [LOR] with
the primary purpose of addressing the misconduct and not in order to influence
the court-martial.” United States v. Raschke, No. ACM S32364, 2017 CCA
LEXIS 218, at *6 (A.F. Ct. Crim. App. 24 Mar. 2017) (unpub. op.) (citation
omitted).
A military judge “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of,” inter alia, “unfair prejudice, confus-
ing the issues, [or] misleading the members.” Mil. R. Evid. 403. Sentencing
evidence, like all other evidence, is subject to the balancing test of Mil. R. Evid.
403. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citation omit-
ted). A military judge enjoys “wide discretion” in applying Mil. R. Evid. 403.
Id. (citation omitted). When a military judge conducts a proper balancing test
under Mil. R. Evid. 403, the ruling will not be overturned unless there is a
“clear abuse of discretion.” Id. (citation omitted). A military judge abuses his
discretion when (1) the findings of fact upon which he bases his ruling are not
supported by the evidence of record; (2) he uses incorrect legal principles; or (3)
his application of the correct legal principles to the facts is clearly unreasona-
ble. United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United
States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
Relying on the testimony of Appellant’s squadron commander, the Defense
essentially argued at trial that the commander issuing the LOR had no inten-
tion to rehabilitate Appellant. The Defense argued instead that the commander
issued the LOR because he was concerned about good order and discipline in
the squadron and wanted to send the message to the other members of the
squadron that disciplinary action had been taken against Appellant. Concomi-
tantly, Appellant contended that the admission of a LOR issued for such a pur-
pose was improper. Implicit in the Defense’s argument was that the LOR was
being issued immediately preceding Appellant’s court-martial to bolster the
Government’s sentencing case. The Defense’s objection focused on the reason
for issuing the LOR, not the inherent validity of the LOR for addressing the
underlying misconduct committed by Appellant.
In a detailed oral ruling, the military judge discussed the evidence he con-
sidered regarding the issuance of the LOR as well as the applicable case law.
The military judge noted that military members facing trial by court-martial
are not exempt from disciplinary action and that a reprimand issued within
days before a court-martial can still serve a rehabilitative purpose. Based on
the testimony of Appellant’s commander, the military judge stated that he had
no concern that the LOR was issued for an improper purpose, such as increasing
the punishment Appellant might receive at the court-martial. To the contrary,
the military judge ruled that the preponderance of the evidence established that

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Appellant’s commander issued the LOR with the intent “consistent with his re-
sponsibilities as a commander to maintain good order and discipline, and to do
so through intervention with [Appellant].” In his ruling, the military judge also
discussed his application of the balancing test under Mil. R. Evid. 403, conclud-
ing that the probative value of the LOR was “relatively high” and not out-
weighed by the risk of unfair prejudice, confusion of the members, cumulative
with other evidence, or a waste of time.
We find that the military judge’s findings of fact are fully supported by the
record and that the military judge applied the correct legal principles to the
facts of this case. We also find that the military judge correctly applied the Mil.
R. Evid. 403 balancing test. Accordingly, we conclude that the military judge
did not abuse his discretion in admitting the LOR over the Defense’s objection
that the LOR was created for an improper purpose or that it should be excluded
under Mil. R. Evid. 403.
Even assuming arguendo that the admission of the LOR was error in this
case, we are convinced that any error was harmless and would not have had a
substantial influence on the sentence. See United States v. Barker, 77 M.J. 377,
384 (C.A.A.F. 2018). At the time of his court-martial, Appellant had been on
active duty in the Air Force for one year and five months. The sentencing evi-
dence available for consideration by the court members included Appellant’s
conviction for multiple uses of two different illegal substances as well as previ-
ous administrative and disciplinary actions, including a letter of counseling for
being late to work repeatedly, a LOR for failing to report for duty on multiple
occasions, and nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. §
815, for drunk driving and underage drinking. We find that the LOR address-
ing Appellant’s misconduct on 2 December 2017 did not have a substantial in-
fluence on the sentence adjudged by the court-members.
C. Ineffective Assistance of Counsel
Appellant asserts that he received ineffective assistance of counsel during
the post-trial processing of his case because his trial defense counsel (1) re-
quested the convening authority set aside the bad-conduct discharge even
though the convening authority had no power to do so, and (2) failed to properly
advise Appellant on what to seek in clemency. Appellant submitted no affidavit
or declaration in support of this allegation. Under the facts of this case, and
due to the absence of a colorable showing of possible prejudice, we find that the
claim of ineffective assistance of counsel must fail.
1. Additional Background
The National Defense Authorization Act (NDAA) for Fiscal Year 2014 mod-
ified Article 60, UCMJ, and limited the convening authority’s ability to grant
clemency. Pub. L. No. 113–66, sec. 1702, § 860(c)(4)(A), 127 Stat. 672, 954–58

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(2013). The effective date of the change was 24 June 2014. Id. at 958. Thus, at
the time of Appellant’s offenses and trial, the pertinent text of the modified
Article 60, UCMJ, read, “the convening authority . . . may not disapprove, com-
mute, 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).
In the SJAR, the staff judge advocate (SJA) correctly advised the convening
authority that he did not have the “authority to disapprove, commute or sus-
pend in whole or in part the bad conduct discharge” adjudged in Appellant’s
case. The SJA also correctly advised the convening authority that he did have
the authority to “disapprove, commute or suspend in whole or in part the re-
duction in rank.” 4
However, in his clemency submission on behalf of Appellant, trial defense
counsel, Captain (Capt) AT, submitted a letter to the convening authority that
incorrectly stated that Article 60, UCMJ, empowered the convening authority
to “approve, disapprove, commute, or suspend the sentence of a court-martial
in whole or in part.” Trial defense counsel then stated that Appellant was re-
questing that the convening authority disapprove the adjudged bad-conduct
discharge and only approve the reduction to E-1. Attached to the trial defense
counsel’s letter was a letter from Appellant, in which he asked the convening
authority to “grant me clemency by upgrading my bad conduct discharge (BCD)
to an administrative or general discharge.” Appellant then describes the im-
pact the punitive discharge will have on his life, apologizes for his actions, and
again asks the convening authority to “disapprove my BCD so that I can sepa-
rate administratively . . . .”
At the Government’s request, this court ordered and received from Capt AT
a declaration responsive to Appellant’s claim of ineffective assistance. In his
uncontroverted declaration, Capt AT stated that he was aware of the signifi-
cant limitations on the convening authority’s clemency power, and he advised
Appellant that the convening authority “essentially had no other option than
the approval of the punitive discharge.” While discussing the preparation of
his clemency submission with Appellant in March 2018, Capt AT told Appel-
lant that he had discussed with the legal office the possibility that Appellant
might be granted immunity to testify in another court-martial and, that under

4 Appellant does not assert that the SJAR error regarding the maximum punishment
addressed in Section D below contributed to or constituted ineffective assistance of
counsel. As a result, we consider the issue of SJAR error waived as it relates to the
claim of ineffective assistance of counsel.

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“extreme circumstances” and upon the recommendation of the trial counsel in
that case based on substantial assistance to the Government, the convening
authority could grant greater relief such as disapproval of the punitive dis-
charge, referring to the provisions of R.C.M. 1107(d)(1)(C). Capt AT stated that
he then advised Appellant again that this was not a “likely option for the con-
vening authority at the time because no immunity had been granted and there
was no certainty immunity would be granted.” 5
Capt AT stated he advised Appellant that it was “more prudent” to request
disapproval of the reduction in grade rather than disapproval of the punitive
discharge. Capt AT stated that it was still Appellant’s desire to request disap-
proval of the punitive discharge even in light of this advice. Capt AT stated he
then prepared his letter in support of Appellant’s clemency request. He stated
that his rationale for requesting relief he knew was not within convening au-
thority’s power was two-fold:
. . . First, I believed that if I did not tell the convening authority
that he had the ability to disapprove the punitive discharge,
then such statement could in a way constitute constructive
waiver of disapproval of the discharge if the trial counsel had
later made a recommendation in light of the investigative/pros-
ecutorial assistance of [Appellant] under immunity. Second, I
did not lay out all conditions of the immunity request because
such grant had not yet been given. My client’s wishes were to
request disapproval of the discharge. I was confident that he un-
derstood the risks associated with that request and I echoed that
request in my response. Writing as an advocate and with the
understanding that [Appellant] wanted to request disapproval
of the discharge, despite my advice, I believed my words were
prudent to meet my client’s interests under the unique circum-
stances.
In the addendum to the SJAR, the SJA failed to address trial defense coun-
sel’s erroneous statement of the law. The SJA recommended and the convening
authority approved the sentence as adjudged. In response to this allegation of
error, the Government submitted a declaration from the convening authority,
who stated that “[w]hile the Addendum to the SJAR did not correct defense

5Capt AT also indicated that Appellant was granted immunity to testify against an-
other Airman on 8 May 2018 and assisted in the investigation of that Airman. How-
ever, Capt AT does not state that the trial counsel in that case ever made a recommen-
dation on behalf of Appellant for substantial assistance.

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counsel’s misstatement of my authority in clemency, I would not have changed
the adjudged sentence even if the Addendum to the SJAR addressed the error.”
2. Law and Analysis
The Sixth Amendment 6 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001)). We review allegations of ineffective assistance de novo.
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J.
at 474).
We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasona-
ble explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of
advocacy “fall measurably below the performance . . . [ordinarily
expected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable
probability that, absent the errors,” there would have been a dif-
ferent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)). The burden is on the appellant to demonstrate
both deficient performance and prejudice. United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012) (citation omitted). Given “the highly discretionary nature
of the convening authority’s clemency power, the threshold for showing preju-
dice is low.” United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999). However, an
appellant must “make some colorable showing of possible prejudice.” Id. (quot-
ing United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).
Appellant contends Capt AT failed to provide him effective assistance of
counsel during post-trial processing by misinterpreting the law regarding the
convening authority’s clemency power and asking the convening authority to
disapprove the bad-conduct discharge, which he had no power to do. As noted

6 U.S. CONST. amend. VI.

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above, this court ordered and received from Capt AT a declaration responsive
to Appellant’s claim of ineffective assistance. Because the declaration of Capt
AT does not raise any factual disputes, we find no post-trial evidentiary hear-
ing is required to resolve this assignment of error. See United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413
(C.M.A. 1967) (per curiam).
We find Capt AT’s explanation of his rationale for requesting relief he knew
was not within convening authority’s power to grant very troubling, and we
disagree that the words of his clemency submission to the convening authority
in which he misstated the law were “prudent.” While Appellant may have
wanted to request disapproval of the punitive discharge contrary to Capt AT’s
advice and the possibility of receiving some sort of trial counsel recommenda-
tion for assistance in the other investigation may have been viable at the time
of the clemency submission, Capt AT’s intentional misstatement of the law and
his failure to explain the basis upon which he was attempting to prevent any
“constructive waiver” in his letter to the convening authority defies logic. Con-
sequently, we conclude that Appellant has demonstrated the first two elements
of the three-pronged test for ineffective assistance articulated in Gooch, 69 M.J.
at 362: (1) there was not a reasonable explanation for trial defense counsel’s
decision to misstate the law in his clemency request to the convening authority
and (2) that in doing so, his advocacy did fall below the performance expected
of competent defense counsel.
Nevertheless, Appellant’s claim of ineffective assistance must fail because
Appellant has not demonstrated any prejudice as required by the third element
of the Gooch test. The convening authority received correct advice in the SJAR
as to his power in clemency. As noted above, in his declaration the convening
authority stated that even if the SJAR addendum had addressed the error in
Appellant’s clemency submission, he would have still approved the adjudged
sentence. The convening authority stated:
While the Addendum to the SJAR did not correct defense coun-
sel’s misstatement of my authority in clemency, I would not have
changed the adjudged sentence even if the Addendum had ad-
dressed the error. Having now been informed of the misstate-
ment of my authority in the clemency request, I stand by my
original decision. The sentence [Appellant] received was con-
sistent with the charge and specifications of which he was con-
victed. Additionally, I believed then, and still believe today, that
there were no mitigating circumstances presented in his clem-
ency request that supported a lesser sentence.

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As a result, there is no reasonable probability of a more favorable result
had trial defense counsel correctly stated the law when the only other clemency
that the convening authority could have granted was disapproval of the reduc-
tion in rank, in light of the convening authority’s declaration. See Gooch, 69
M.J. at 362 (citation omitted). Therefore, we find Appellant has failed to
demonstrate prejudice. See Datavs, 71 M.J. at 424 (citation omitted).
D. Error in the SJAR and SJAR Addendum
In the alternative to the claim of ineffective assistance of counsel, Appellant
asserts that he is entitled to new post-trial processing because the SJAR incor-
rectly stated the maximum punishment available in Appellant’s case and be-
cause the SJAR addendum failed to correct the trial defense counsel’s errone-
ous statement regarding the convening authority’s power to set aside the bad-
conduct discharge. We disagree.
1. Additional Background
In the SJAR, the SJA advised the convening authority that the maximum
punishment in Appellant’s case was “reduction to E-1, confinement for 12
months, forfeiture of two-thirds pay per month, and a bad conduct discharge.”
This statement contained an error because the jurisdictional limit of a special
court-martial could have been adjudged in this case. As a result, the actual
amount of forfeitures that could have been imposed by the court-martial in-
cluded the forfeiture of two-thirds pay per month for up to 12 months. Article
19, UCMJ, 10 U.S.C. § 819. The Defense clemency submission failed to address
this error. In the SJAR addendum, the SJA neither corrected the error in the
maximum punishment nor addressed the trial defense counsel’s erroneous
statement regarding the convening authority’s clemency power.
2. Law and Analysis
Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted). “Failure to timely comment on matters in the
SJAR, or matters attached to the recommendation, forfeits any later claim of
error in the absence of plain error.” United States v. LeBlanc, 74 M.J. 650, 660
(A.F. Ct. Crim. App. 2015) (en banc) (citing R.C.M. 1106(f)(6); United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analy-
sis, an appellant must show “(1) there was an error; (2) [the error] was plain or
obvious; and (3) the error materially prejudiced a substantial right.” Id. (quot-
ing Scalo, 60 M.J. at 436). Even in the context of plain error analysis, the
threshold for establishing prejudice from errors impacting an appellant’s re-
quest for clemency from the convening authority is low, but there must be
“some ‘colorable showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at
437).

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As noted above, the SJA erroneously advised the convening authority of the
maximum punishment in Appellant’s case and the Defense clemency submis-
sion failed to address this error. Therefore, we test for plain error, and we find
this error plain and obvious based on the jurisdictional limit of a special court-
martial. Despite the plain and obvious error, Appellant has not attempted to
make a colorable showing of possible prejudice for this error. The adjudged
sentence did not include forfeitures, so there were no forfeitures for the con-
vening authority to act on. Further, the convening authority stated in his dec-
laration that even though the SJAR did not state the maximum imposable sen-
tence included the forfeiture of two-thirds pay per month for twelve months, it
would not have changed his decision to deny clemency to Appellant and ap-
prove the sentence as adjudged. Under these circumstances, we find no color-
able showing of possible prejudice from the misstatement in the maximum
punishment in a special court-martial. See Scalo, 60 M.J. at 437.
Next, we consider whether Appellant is entitled to new post-trial pro-
cessing because the addendum to the SJAR did not correct Capt AT’s misstate-
ment of the convening authority’s power. Generally, the SJA was obligated to
correct Appellant’s error in the SJAR addendum and the SJA did not do so. See
United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018). Whether
Appellant was prejudiced by this plain and obvious error 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 threshold of some colorable showing of possible
prejudice to Appellant is low but still not met in this case. Capt AT’s misstate-
ment of the law incorrectly advised the convening authority he had more, ra-
ther than less, authority than he actually had. As a result, we find no colorable
showing of possible prejudice and we decline to order new post-trial processing.
See United States v. Lamica, No. ACM 39423, 2019 CCA Lexis 257, at *16, n.
4 (A.F. Ct. Crim. App. 14 Jun. 2019) (unpub. op.); United States v. Ten Eyck,
No. ACM 39188, 2018 CCA Lexis 193, *6–8 (A.F. Ct. Crim. App. 17 Apr. 2018)
(unpub. op.).

III. CONCLUSION
The approved findings and sentence are correct in fact and law, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-

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 United States v. Hunt, No. ACM S32513

cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are affirmed.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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