U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32557
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UNITED STATES
Appellee
v.
Jonathan N. CONNORS
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 17 May 2019
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Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-1. Sentence adjudged 29 October 2018 by SpCM
convened at Ellsworth Air Force Base, South Dakota.
For Appellant: Captain David A. Schiavone, USAF.
For Appellee: Major Clayton H. O’Connor, USAF; Mary Ellen Payne,
Esquire.
Before HUYGEN, MINK, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge
HUYGEN 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This is an unpublished opinion and, as such, does not serve as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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KEY, Judge:
A military judge sitting as a special court-martial convicted Appellant, in
accordance with his pleas pursuant to a pretrial agreement, of one specifica-
tion of larceny of military property, in violation of Article 121, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 921. The military judge sentenced
United States v. Connors, No. ACM S32557
Appellant to a bad-conduct discharge, confinement for four months, and re-
duction to the grade of E-1. The convening authority approved the sentence
as adjudged.
On appeal, Appellant asserts new post-trial processing is required be-
cause the personal data sheet (PDS) attached to the staff judge advocate’s
recommendation (SJAR) erroneously noted that Appellant had no overseas or
combat service. We find no error that warrants relief, and we affirm the find-
ings and sentence.
I. BACKGROUND
While assigned as a communication equipment technician, Appellant stole
various computers, computer parts, and other electronic equipment over a
two-year period of time. Appellant sold some of the items online and kept
some of the items for his personal use. With the exception of five laptop com-
puters, all the items Appellant took were no longer being used and were slat-
ed to be disposed of as excess military property. The total value of the items
Appellant sold was between $15,000 and $18,000.
The Government offered into evidence—without defense objection—a PDS
summarizing Appellant’s personal data and service record that read in part:
OVERSEAS SERVICE (OCONUS): None
COMBAT SERVICE: None
Immediately prior to admitting the PDS as a prosecution exhibit for sen-
tencing, the military judge had the following exchange with trial defense
counsel:
MJ [Military Judge]: [Trial Defense Counsel], did you have the
opportunity to review this document?
DC [Trial Defense Counsel]: Yes, Your Honor. But, if I could
just have a moment to verify.
MJ: I’d like you to specifically verify with [Appellant] that the
overseas service and combat service is correct. Just let me
know when you’re finished.
DC: Yes, Your Honor. . . . Your Honor, it appears to be in order.
MJ: I’m sorry, say that again.
DC: It appears to be in order.
MJ: Okay. Do you have any objections then to Prosecution Ex-
hibit 2 for identification?
DC: No, Your Honor.
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United States v. Connors, No. ACM S32557
During the Defense’s sentencing case, Appellant made a verbal unsworn
statement in which he discussed being deployed to Al Dhafra Air Base, Unit-
ed Arab Emirates. After Appellant’s unsworn statement, the Defense rested,
and the military judge said:
I do want to just note that [Appellant] referenced a deployment
to Al Dhafra, and normally that is on the personal data sheet
under the combat service area. So, when I asked counsel if that
information was accurate, you both said yes. I mean, I guess
some people maybe don’t view a deployment to Al Dhafra as a
combat zone, but typically we include those kinds of deploy-
ments in the personal data sheet. I’m not going to require you
to change it, trial counsel, but I just want to note that I note
that he deployed and I will certainly take that into appropriate
consideration.
For post-trial processing, the PDS attached to the SJAR was identical to
the PDS admitted at trial, similarly indicating “none” for overseas and com-
bat service. In Appellant’s clemency submission, he requested that the con-
vening authority mitigate the four-month confinement sentence to three
months of confinement and one month of restriction to base, but neither this
request nor any form of clemency was granted. Although Appellant discussed
his deployment in his clemency request, he did not comment on the omission
of such service from the PDS.
II. DISCUSSION
Proper completion of post-trial processing is a question of law we review
de novo. United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct. Crim. App.
2004) (citing United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to
comment in a timely manner on matters in or attached to the SJAR forfeits
any later claim of error in the absence of plain 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). “To prevail under a plain error analysis, Appellant [bears
the burden of showing] that: ‘(1) there was an error; (2) it was plain or obvi-
ous; 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). “Be-
cause of the highly discretionary nature of the convening authority’s action
on [a] sentence,” we grant relief if Appellant presents “some colorable show-
ing of possible prejudice” affecting his opportunity for clemency.
Kho, 54 M.J.
at 65 (quoting United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998)).
The SJAR is a concise written recommendation “to assist the convening
authority to decide what action to take on the sentence in the exercise of
command prerogative” and contains information such as the findings, sen-
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tence, confinement credit, a copy or summary of any pretrial agreement, and
the staff judge advocate’s “concise recommendation.” R.C.M. 1106(d). The
SJAR “plays a vital role in providing the convening authority with complete
and accurate advice in the exercise of command discretion.”
Scalo, 60 M.J. at
436 (citation omitted). Before taking action on an adjudged sentence, the con-
vening authority must consider the SJAR, along with any matters submitted
by the accused in a clemency submission or in response to the SJAR. R.C.M.
1107(b)(3)(A).
Under R.C.M. 1001(a)(1)(A)(ii), trial counsel ordinarily presents during
presentencing proceedings “personal data relating to the accused and of the
character of the accused’s prior service as reflected in the personnel records of
the accused.” Such information is obtained and introduced “[u]nder regula-
tions of the Secretary concerned.” R.C.M. 1001(b)(2). Air Force Instruction
(AFI) 51–201, Administration of Military Justice, Figure A3.16 (8 Dec. 2017), 1
sets out a template for the PDS to present a synopsis of an accused’s personal
data and character of prior service. Included in the template are two head-
ings pertinent to this case: “OVERSEAS SERVICE (OCONUS): (See Note 3)”
and “COMBAT SERVICE: (See Note 4).”
Id. Note 3 reads: “Identify service
for which credit for overseas service was awarded per AFI 36-2110, Assign-
ments. Include dates and locations.”
Id. Note 4 reads: “Identify service for
which the member was awarded ‘special pay for duty subject to hostile fire or
imminent danger’ per Department of Defense (DoD) 7000.14-R, Department
of Defense Financial Management Regulation, Volume 7A, Chapter 10. In-
clude dates and locations.”
Id.
In addition to introducing the PDS at trial, AFI 51–201 calls for attaching
the PDS to the SJAR. ¶ 8.16. The purpose of attaching the PDS to the SJAR
is to “ensure[ ] that required information concerning the accused’s service
record is provided to the convening authority.”
Id. ¶ 8.16.1. “Although the
Rules for Courts-Martial do not explicitly require mention of an accused’s
overseas or combat service, where a summary of the accused’s service record
is prepared, that summary must be accurate.” United States v. Parker,
73
M.J. 914, 921 (A.F. Ct. Crim. App. 2014) (footnote omitted).
The initial question is whether Appellant has demonstrated error on the
PDS, plain or otherwise. We conclude he has not. Appellant argues his de-
1 On 18 January 2019, a new version of AFI 51–201 was promulgated. The citations
in this opinion reference the version of AFI 51–201 dated 8 December 2017, which
was in effect at the time of the convening authority’s action in this case.
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United States v. Connors, No. ACM S32557
ployment to Al Dhafra Air Base should be captured on the PDS but cites no
authority for this proposition.
Although R.C.M. 1001 allows for the discretionary introduction of
“[p]ersonal data and character of prior service of the accused,” this is done
“[u]nder regulations of the Secretary concerned.” R.C.M. 1001(b)(2). The
Manual for Courts-Martial does not specify any format for presenting this
information, nor does it specify what particular information is to be included,
leaving these details to the Service Secretaries and discretion of trial counsel.
As purely a service creation, the Air Force’s PDS—and the information con-
tained therein—is subject to Service definitions, criteria, and limitations.
Similarly, the Manual for Courts-Martial does not require personal data or
character-of-service evidence to be presented to the convening authority as
part of the SJAR under R.C.M. 1106. Because AFI 51–201 requires the PDS
to be attached to the SJAR, the convening authority must consider it under
R.C.M. 1107(b)(3)(A)(ii). Absent the AFI requirement, the personal data and
character of prior service of the accused would be matters that are discretion-
ary for the convening authority to consider, particularly as information from
the “personnel records of the accused” under R.C.M. 1107(b)(3)(B)(ii). By di-
recting the preparation of the PDS and its attachment to the SJAR, the Air
Force has created an obligation to produce a document that the convening
authority must consider before taking action.
Turning to the PDS itself, we readily acknowledge that Al Dhafra Air
Base is “overseas” under the plain definition of “overseas,” but AFI 51–201
sets out a more restrictive criterion for inclusion on the PDS of “overseas ser-
vice,” that is, service that has earned “credit for overseas service” under AFI
36–2110. Appellant has not presented any evidence or argued his deployment
earned him such credit under AFI 36–2110, and our review of AFI 36–2110
indicates he was not eligible for the credit based on the length of his deploy-
ment. 2
Similarly, “combat service” on the PDS is defined by AFI 51–201 as ser-
vice for which hostile-fire or imminent-danger pay was awarded under DoD
7000.14–R. Appellant has not presented any evidence or argued that he ei-
ther received or was entitled to such pay. Our review of the regulation indi-
cates servicemembers deployed to Al Dhafra Air Base ceased to be eligible for
2AFI 36–2110 indicates credit for a completed short tour is warranted when an Air-
man deploys for 300 or more days in an 18-month period, but Appellant appears to
have served only a six-month deployment. AFI 36–2110, Assignments, Table 3.4 (22
Sep. 2009, as amended by AFGM 2016–01, 23 Jun. 2016).
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either pay on 31 May 2014, prior to Appellant’s deployment there. See DoD
7000.14–R, Volume 7A, Chapter 10.
Because Appellant has failed to demonstrate his deployment warranted
inclusion on his PDS under the criteria specified in AFI 51–201, he has failed
to identify any error regarding the PDS. As a result, Appellant is entitled to
no relief for the purported omission of his deployment from his PDS, and new
post-trial processing is not warranted.
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) (2016). According-
ly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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