U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32423 (f rev)
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UNITED STATES
Appellee
v.
Sonia E. MOORE
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon further review
Decided 4 March 2019
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Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 60 days,
and reduction to E-1. Sentence adjudged 23 May 2016 by SpCM con-
vened at Pope Army Airfield, North Carolina.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen
Payne, Esquire.
Before MAYBERRY, HUYGEN, and POSCH, Appellate Military Judg-
es.
Senior Judge HUYGEN delivered the opinion of the court, in which
Chief Judge MAYBERRY and Judge POSCH 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This is an unpublished opinion and, as such, does not serve as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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United States v. Moore, No. ACM S32423 (f rev)
HUYGEN, Senior Judge:
We have this case for further review after returning the record of trial to
The Judge Advocate General for remand to the convening authority for new
post-trial processing. See United States v. Moore, No. ACM S32423,
2017 CCA
LEXIS 763, at *12 (A.F. Ct. Crim. App. 19 Dec. 2017) (unpub. op.). New post-
trial processing has been accomplished. Appellant now asserts the convening
authority failed to comply with the court’s remand, and therefore she is enti-
tled to meaningful sentence relief. We find no prejudicial error and affirm the
findings and sentence.
I. BACKGROUND
Appellant and the convening authority entered into a pretrial agreement
(PTA) in which Appellant agreed, inter alia, to plead guilty to charges and
specifications concerning Articles 107 and 112a, Uniform Code of Military
Justice (UCMJ),
10 U.S.C. §§ 907, 912a. In exchange, the convening authority
agreed, inter alia, to approve no confinement in excess of 60 days if a bad-
conduct discharge was adjudged. At trial, the military judge sentenced Appel-
lant to a bad-conduct discharge, confinement for four months, and reduction
to the grade of E-1.
During the original post-trial processing of Appellant’s case, the staff
judge advocate signed a recommendation (SJAR) that advised, “In accordance
with the pretrial agreement, I recommend you only approve so much of the
sentence as calls for 60 days confinement, reduction to E-1, and a bad conduct
discharge.” Conversely, the addendum to the SJAR advised, “I recommend
that you approve the findings and sentence as adjudged . . . .” The convening
authority’s action stated, in relevant part, “the sentence is approved and, ex-
cept for the bad conduct discharge, will be executed. The term of confinement
having been served, no place of confinement is designated.”
When Appellant’s case underwent new post-trial processing, the resulting
action approved “only so much of the sentence as provides for 60 days con-
finement, reduction to the grade of E-1, and a bad conduct discharge.”
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) (citations omitted). Analyzing for plain error,
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United States v. Moore, No. ACM S32423 (f rev)
we assess whether “(1) there was an error; (2) it was plain or obvious; and (3)
the error materially prejudiced a substantial right.” Scalo,
60 M.J. at 436
(quoting Kho, 54 M.J. at 65) (additional citation omitted).
When we initially reviewed Appellant’s case, we found several errors in
post-trial processing, including the two-fold failure of the SJAR addendum (1)
to account for the terms of the PTA, specifically, the 60-day cap on confine-
ment, and (2) to correct the incorrect statement in Appellant’s clemency sub-
mission that the convening authority “could only reduce the reduction in
rank” when he could also affect the adjudged four months of confinement,
even beyond honoring the 60-day cap of the PTA. Moore, unpub. op. at *9–11.
We also noted other errors in the SJAR, action, and court-martial order. Id.
at *11–12. Having now reviewed the new post-trial processing of Appellant’s
case, we find no prejudicial error.
With the case returned for our further review, Appellant asserts that the
convening authority failed to comply with the court’s remand because, even
after new post-trial processing, the record still “contains no document that
proves Appellant received the benefit of the PTA and was released from con-
finement no later than 60 days after entering.” We find there is no failure of
compliance because the action was corrected and therefore no such document
was necessary.* New post-trial processing resulted in a new action that with-
drew the original action and substituted for it a correct action that approved
“only so much of the sentence as provides for 60 days confinement, reduction
to the grade of E-1, and a bad conduct discharge.”
The issue concerning Appellant’s clemency submission that we identified
in our earlier opinion was nullified by the absence of a clemency submission
when her case was processed anew. However, we are compelled to note the
absence of a written waiver of her right to submit clemency matters, see Arti-
cle 60(b)(4), UCMJ,
10 U.S.C. § 860(b)(4) (2016); R.C.M. 1105(d)(3), and the
apparent lack of trial defense counsel to advise Appellant during post-trial
processing despite our remand directing “new post-trial processing and con-
flict-free trial defense counsel.” See Moore, unpub. op. at *12. It is not clear
why the legal office responsible for post-trial processing contacted several en-
tities but not the offices that detail trial defense counsel. However, we recog-
nize the multiple efforts made by the legal office over an extended period of
time to contact Appellant, her previously detailed defense counsel, her origi-
*The new, corrected action made unnecessary a document proving Appellant’s timely
release from confinement. However, Appellee provided one, and the court granted the
motion to attach it to the record.
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United States v. Moore, No. ACM S32423 (f rev)
nal appellate defense counsel, and the current area defense counsel at Pope
Army Airfield about post-trial processing. Without resolving the issue of de-
fense counsel, the legal office substantially complied with R.C.M. 1106(f)(1),
served on Appellant a copy of the SJAR, dated 5 March 2018, and received
confirmation of delivery on 7 March 2018. Appellant was given significantly
more time than the 10 days provided by R.C.M. 1105(c)(1), and, on 12 October
2018, the staff judge advocate continued post-trial processing with an SJAR
addendum that indicated Appellant could have but “did not submit clemency
matters.” See R.C.M. 1105(d)(1) (“Failure to submit matters within the time
prescribed by this rule shall be deemed a waiver of the right to submit such
matters.”). While we reviewed this issue of an apparent lack of trial defense
counsel for post-trial processing, it was not raised by the appellate defense
counsel representing Appellant in the case now before us. Assuming without
deciding that the issue involved error, we discern no resulting prejudice to
Appellant.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Arti-
cles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c) (2016). Accordingly,
the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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