U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32419
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UNITED STATES
Appellee
v.
Sebastian M. AUSTILL
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 4 May 2017
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Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge, confinement for 45 days, and
reduction to E-1. Sentence adjudged 16 June 2016 1 by SpCM convened
at F.E. Warren Air Force Base, Wyoming.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, HARDING, AND C. BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN 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This is an unpublished opinion and, as such, does not serve as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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1Both the CMO and Report of Result of Trial erroneously provide 29 June 2016 as the
date the sentence was adjudged. The correct date is 16 June 2016. We order promul-
gation of a corrected CMO to accurately reflect the correct date.
United States v. Austill, No. ACM S32419
HARDING, Judge:
A military judge sitting alone as a special court-martial convicted Appel-
lant, consistent with his pleas, of one specification each of fraudulent enlist-
ment, violation of a general order by knowingly using a prescription medication
in excess of the prescribed dosage, and wrongful use of marijuana, in violation
of Articles 83, 92, and 112a, Uniform Code of Military Justice (UCMJ),
10
U.S.C. §§ 883, 892, 912a. Appellant was sentenced to a bad-conduct discharge,
45 days of confinement, and reduction to the grade of E-1. The convening au-
thority approved the sentence as adjudged.
This case was initially submitted for our review on its merits; however, af-
ter reviewing the record of trial, the court specified the following issue:
WHETHER THE STAFF JUDGE ADVOCATE FAILED TO
PROVIDE ACCURATE AND PROPER ADVICE TO THE CON-
VENING AUTHORITY REGARDING THE CONVENING AU-
THORITY’S CLEMENCY POWERS UNDER ARTICLE 60,
UCMJ,
10 U.S.C. §860, WHEN THE FINDINGS INCLUDED A
CONVICTION FOR AN OFFENSE COMMITTED BEFORE 24
JUNE 2014. IF SO, WHETHER SUCH FAILURE MATERI-
ALLY PREJUDICED APPELLANT.
As we find no error substantially prejudices a substantial right of Appel-
lant, we now affirm. However, we desire to make clear that the staff judge
advocate failed to provide accurate advice to the convening authority and note
that this was not the first time. As we said in another case originating from
the same command, “[g]reater attention to detail will eliminate unnecessary
errors as found in this case and better facilitate accurate post-trial processing.”
United States v. Demiller, No. ACM S32344,
2017 CCA LEXIS 154, at *6 (A.F.
Ct. Crim. App. 16 Feb. 2017) (unpub. op.).
I. BACKGROUND
The Specification of Charge I alleged Appellant fraudulently enlisted “be-
tween on or about 12 September 2013 and on or about 3 June 2014.” The other
charges and specifications have date ranges that begin after 24 June 2014,
with an earliest date of 1 January 2015. Appellant did not provide a post-trial
submission raising matters in clemency or alleging any error. The staff judge
advocate’s recommendation (SJAR) advised the convening authority, “[f]or
Charges I, II, and III and the respective specifications you only have the au-
thority to approve the finding of guilt and cannot dismiss the finding of guilt.”
The SJAR also advised, “[y]ou do not have the authority to disapprove, com-
mute or suspend in whole or in part the punitive discharge.”
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United States v. Austill, No. ACM S32419
II. DISCUSSION
Although he did not allege legal error post-trial or on appeal, in response
to the specified issue Appellant now alleges the staff judge advocate (SJA) gave
erroneous legal advice when the convening authority was instructed he could
not disapprove, commute, or suspend Appellant’s punitive discharge.
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 establishing preju-
dice 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).
Failure to timely comment on matters in the SJAR or addendum, to include
matters attached to it, forfeits the issue unless there is plain error. Rule for
Courts-Martial (R.C.M.) 1106(f)(6); Scalo,
60 M.J. at 436. Under a plain error
analysis, the appellant bears the burden of showing: (1) there was an error, (2)
it was plain or obvious, and (3) the error materially prejudiced a substantial
right of the appellant. Kho, 54 M.J. at 65.
Article 60, UCMJ, was amended on 24 June 2014. This amendment limited
the convening authority’s ability, in some circumstances, to grant clemency in
whole or in part. The text of Article 60 now reads, “the convening authority or
another person authorized to act under this section 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.” Article 60, UCMJ,
10 U.S.C. § 860 (24 June 2014).
R.C.M. 1107 was amended on 17 June 2015 by Executive Order No. 13696,
80
Fed. Reg. 35810 (22 June 2015), by adding a note to R.C.M. 1107 stating, “if at
least one offense in a case occurred prior to 24 June 2014, then the prior version
of R.C.M. 1107 applies to all offenses in the case . . . .” This was further clarified
a year later on 20 May 2016 by Executive Order 13730, which amended R.C.M.
1107 once again to read “if at least one offense . . . occurred prior to 24 June
2014, or includes a date range where the earliest date in the range for that
offense is before 24 June 2014, then the prior version of R.C.M. 1107 applies to
all offenses in the case . . . .”
81 Fed. Reg. 33338 (26 May 2016).
As Appellant was charged with an offense that occurred prior to 24 June
2014, the Government concedes—and we agree—that the SJA erred in advis-
ing the convening authority that he could not provide clemency relief in the
form of favorable action on Appellant’s punitive discharge. The SJA also erred
in advising the convening authority that he could not dismiss the findings of
guilt.
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United States v. Austill, No. ACM S32419
Yet, finding error does not end our inquiry, as Appellant must still demon-
strate a colorable showing of possible prejudice in order 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 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). Having reviewed the record 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 convening
authority was incorrect. However, the SJA asserted that even with the conven-
ing authority’s broader discretion, she still would have recommended the con-
vening authority approve the sentence as adjudged. More importantly, the con-
vening authority also submitted an affidavit noting that he would not have
provided Appellant with relief on the sentence to a punitive discharge even
with the knowledge now that he had the authority to do so during clemency.
Moreover, Appellant did not request any clemency from the convening author-
ity. As Appellant is unable to demonstrate a colorable showing of possible prej-
udice, 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 er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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