U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32381
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UNITED STATES
Appellee
v.
Prachit V. PARIKH
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 7 July 2017
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Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 180 days,
and reduction to E-1. Sentence adjudged 8 December 2015 by SpCM
convened at Francis E. Warren Air Force Base, Wyoming.
For Appellant: Major Virginia M. Bare, USAF; Captain Allen S.
Abrams, USAF.
For Appellee: Major Meredith L. Steer, USAF; Major Tyler B. Mussel-
man, USAF; Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Es-
quire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge MINK joined.
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This is an unpublished opinion and, as such, does not serve as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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J. BROWN, Senior Judge:
A military judge sitting alone as a special court-martial convicted Appel-
lant, consistent with his pleas, of divers use of marijuana, three specifications
United States v. Parikh, No. ACM S32381
of larceny, and a specification of unlawful entry, in violation of Articles 112a,
121, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a,
921, 934. Appellant was sentenced to a bad-conduct discharge, six months of
confinement, and reduction to the grade of E-1. In accordance with the terms
of the pretrial agreement, the convening authority approved only so much of
the sentence as provides for a bad-conduct discharge, 180 days of confine-
ment, and reduction to the grade of E-1.
On appeal, Appellant asserts that the staff judge advocate’s recommenda-
tion (SJAR) contained erroneous advice regarding the convening authority’s
ability to grant clemency. As we find the error did not materially prejudice a
substantial right of Appellant, we now affirm.
I. BACKGROUND
In clemency, Appellant requested that the convening authority reduce the
length of confinement from six months to three months. The addendum to the
SJAR, however, erroneously advised the convening authority: “You do not
have the authority to disapprove, commute or suspend in whole or in part the
confinement.” The staff judge advocate recommended approval of a bad-
conduct discharge, confinement for 180 days, and reduction to the grade of E-
1.
The addendum was served on Appellant, and his counsel submitted an
additional response disagreeing with the staff judge advocate’s assertion that
the convening authority was not authorized to reduce the confinement. In a
second addendum to the SJAR, the staff judge advocate advised the conven-
ing authority that her earlier recommendation remained unchanged. The
convening authority ultimately approved that portion of the sentence as rec-
ommended by the staff judge advocate.
II. DISCUSSION
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 estab-
lishing prejudice 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).
The National Defense Authorization Act for Fiscal Year 2014 modified Ar-
ticle 60, UCMJ, 10 U.S.C. § 860, limiting the convening authority’s ability to
grant clemency. Pub. L. No. 113-66, § 1702, 127 Stat. 955–58 (2013). The ef-
fective date of the change was 24 June 2014.
Id. at 958. As Appellant was
charged with offenses that occurred after 24 June 2014, those changes apply
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United States v. Parikh, No. ACM S32381
in his case. The pertinent text of Article 60 now reads, “[T]he convening au-
thority or another person authorized to act under this section may not disap-
prove, commute, or suspend in whole or in part an adjudged sentence of con-
finement for more than six months or a sentence of dismissal, dishonorable
discharge, or bad conduct discharge.” Article 60(c)(4)(A), UCMJ.
The addendum to the SJAR erroneously advised the convening authority
that he could not disapprove, commute, or suspend in whole or in part the six
months of confinement beyond the terms of the pretrial agreement. Regard-
ing confinement, the clemency limitation of Article 60(c)(4)(A), UCMJ, applies
to adjudged sentences of confinement for more than six months. As the ad-
judged confinement was six months, the convening authority had plenary au-
thority as to the confinement element of Appellant’s sentence. See United
States v. Holt, No. ACM S32409, 2017 CCA LEXIS 413 (A.F. Ct. Crim. App.
21 Jun. 2017) (unpub. op.); United States v. Jones, No. ACM 39140, 2017 CCA
LEXIS 310 (A.F. Ct. Crim. App. 28 Apr. 2017) (unpub. op.).
Yet, finding error does not end our inquiry, as Appellant must still
demonstrate a colorable showing of possible prejudice 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 pro-
vided 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 Unit-
ed States v. Green,
44 M.J. 93, 95 (C.A.A.F. 1996). Having reviewed the rec-
ord in this case, we find Appellant has not met his burden of establishing
prejudice.
The SJA submitted an affidavit conceding the advice given to the conven-
ing authority was incorrect. However, the SJA asserted that even with the
convening authority’s broader discretion, her recommendation would have
remained the same. More importantly, the convening authority also submit-
ted an affidavit noting that he would not have provided Appellant with addi-
tional 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.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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United States v. Parikh, No. ACM S32381
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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