U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32713
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UNITED STATES
Appellee
v.
Kevin M. ROSALES GOMEZ
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 30 November 2022
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Military Judge: Charles G. Warren.
Sentence: Sentence adjudged 28 July 2021 by SpCM convened at
Fairchild Air Force Base, Washington. Sentence entered by military
judge on 18 August 2021: Bad-conduct discharge, confinement for 80
days, reduction to E-1, and a reprimand.
For Appellant: Major David L. Bosner, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Es-
quire.
Before KEY, ANNEXSTAD, and MENDELSON, Appellate Military
Judges.
Judge MENDELSON delivered the opinion of the court, in which Senior
Judge KEY and Judge ANNEXSTAD 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This is an unpublished opinion and, as such, does not serve as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 30.4.
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United States v. Rosales Gomez, No. ACM S32713
MENDELSON, Judge:
In accordance with Appellant’s pleas and pursuant to a plea agreement, a
special court-martial comprised of a military judge sitting alone convicted Ap-
pellant of 11 specifications of absence without leave, in violation of Article 86,
Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 886; two specifications
of dereliction of duty, in violation of Article 92, UCMJ,
10 U.S.C. § 892; and
two specifications of making a false official statement, in violation of Article
107, UCMJ,
10 U.S.C. § 907.1 The court-martial sentenced Appellant to a bad-
conduct discharge, 80 days of confinement, reduction to the grade of E-1, and
a reprimand. The convening authority took no action on the sentence.
Appellant raises two assignments of error: (1) whether the convening au-
thority’s error in failing to take action on the sentence materially prejudiced
Appellant’s substantial rights; and (2) whether the confinement facility’s dep-
rivation of Appellant’s First Amendment2 right to free exercise of religion ren-
ders the sentence incorrect in law or otherwise inappropriately severe. We find
no error materially prejudicial to Appellant’s substantial rights and affirm the
findings and sentence.
I. BACKGROUND
Appellant was convicted of five specifications involving offenses that were
committed prior to 1 January 2019. After the conclusion of the court-martial,
on 9 August 2021, Appellant’s trial defense counsel submitted a clemency re-
quest asking the convening authority to reduce the adjudged term of confine-
ment. Appellant’s defense counsel explained the request was based on the lim-
itations the post-trial confinement facility imposed upon Appellant’s ability to
practice his faith, specifically because religious services were not readily avail-
able, and Appellant could not attend a weekly service that was an obligation
of his faith. Trial defense counsel further explained, “The purpose for granting
clemency in this case is . . . to hasten the restoration of [Appellant]’s First
Amendment rights.”
1 Specifications 3, 4, and 5 of Charge I, absence without leave, charge offenses commit-
ted in 2018; and Specifications 1 and 2 of Charge III, false official statement, charge
offenses committed in 2018. Accordingly, for these specifications, the punitive articles
in Articles 86 and 107, UCMJ,
10 U.S.C. §§ 886 and 907, Manual for Courts-Martial,
United States (2016 ed.), apply. Unless otherwise specified, all other references to the
UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.). Pursuant to the plea agreement, two specifications of absence
without leave, two specifications of dereliction of duty, and two specifications of false
official statement were withdrawn and dismissed with prejudice.
2 U.S. CONST. amend. I.
2
United States v. Rosales Gomez, No. ACM S32713
On 10 August 2021, the convening authority signed a Decision on Action
memorandum stating, “I take no action on the sentence in this case” and pre-
scribed language for the reprimand. In the memorandum, the convening au-
thority also stated: “Prior to coming to this decision, I consulted with my Staff
Judge Advocate. Before declining to take action, I considered matters timely
submitted by [Appellant] under [Rule for Courts-Martial (R.C.M.)] 1106.” Trial
defense counsel received the Decision on Action memorandum on 11 August
2021, and Appellant did not file a motion with the military judge alleging con-
vening authority error, as permitted under R.C.M. 1104(b)(1)(F).
II. DISCUSSION
A. Convening Authority’s Decision on Action
Appellant claims prejudice from the convening authority’s failure to take
action on the sentence. He urges the court to remand his case for “another op-
portunity at clemency.” We are not persuaded relief is warranted.
1. Law
[I]n any court-martial where an accused is found guilty of at
least one specification involving an offense that was committed
before January 1, 2019, a convening authority errs if he fails to
take one of the following post-trial actions: approve, disapprove,
commute, or suspend the sentence of the court-martial in whole
or in part.
United States v. Brubaker-Escobar,
81 M.J. 471, 472 (C.A.A.F. 2021) (per cu-
riam); see also Article 60, UCMJ,
10 U.S.C. § 860 (Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM)). The convening authority’s failure to ex-
plicitly take one of those actions is a “procedural” error. Brubaker-Escobar, 81
M.J. at 475. “Pursuant to Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2018), pro-
cedural errors are ‘test[ed] for material prejudice to a substantial right to de-
termine whether relief is warranted.’”
Id. (alteration in original) (quoting
United States v. Alexander,
61 M.J. 266, 269 (C.A.A.F. 2005)).
2. Analysis
Because Appellant was found guilty of at least one specification involving
an offense committed before 1 January 2019, the convening authority was re-
quired to approve, disapprove, commute, or suspend the sentence of the court-
martial in whole or in part. See Brubaker-Escobar, 81 M.J. at 472. Because the
convening authority did not take one of these required actions, and instead
took “no action on the sentence in this case,” the convening authority commit-
ted a procedural error.
3
United States v. Rosales Gomez, No. ACM S32713
Citing United States v. Scalo,
60 M.J. 435 (C.A.A.F. 2005), Appellant ar-
gues he need only show “some colorable showing of possible prejudice” to
demonstrate relief is warranted. See
id. at 436–37 (“To meet this burden in the
context of a post-trial recommendation error, whether that error is preserved
or is otherwise considered under the plain error doctrine, an appellant must
make ‘some colorable showing of possible prejudice.’” (quoting United States v.
Kho,
54 M.J. 63, 65 (C.A.A.F. 2000))). The Government, citing to Brubaker-
Escobar, asserts this court tests procedural errors “for material prejudice to a
substantial right to determine whether relief is warranted,” 81 M.J. at 475,
and contends the lower prejudicial threshold of “some colorable showing of pos-
sible prejudice,” Scalo, 60 M.J. at 436-37, does not apply in this context.
We find the “some colorable showing of possible prejudice” standard does
not apply when evaluating procedural error, like the one here, in the announce-
ment of the convening authority’s decision. Id. The convening authority’s deci-
sion memorandum suffers from the same procedural defect as the one in Bru-
baker-Escobar, and in that case the United States Court of Appeals for the
Armed Forces (CAAF) tested for material prejudice to a substantial right of the
appellant to determine if relief was warranted. 81 M.J. at 475. In applying this
test, the CAAF relied upon Alexander in which the Court held “we will not
order relief absent a showing of prejudice.” 61 M.J. at 270. The procedural error
in Brubaker-Escobar and in the present case is a defect in the form of the an-
nouncement of a convening authority’s decision, and not a post-trial recom-
mendation error where the prejudicial threshold is low, requiring only some
colorable showing of possible prejudice.3 For these reasons, we follow the text
and plain meaning of Article 59(a), UCMJ.
Testing for material prejudice to Appellant’s substantial rights, we find no
relief is warranted. To begin, the convening authority was not authorized to
disapprove, commute, or suspend the adjudged bad-conduct discharge. See Ar-
ticle 60(c)(4)(A), UCMJ,
10 U.S.C. § 860(c)(4)(A) (2016 MCM). While the con-
vening authority did have power to disapprove, commute, or suspend the ad-
judged reduction in grade and reprimand, Appellant did not request such re-
lief. The only relief Appellant requested was for the convening authority to
reduce the adjudged term of confinement. Appellant justified the request based
3 “[I]n the context of a post-trial recommendation error,” the proper standard is “some
colorable showing of possible prejudice.” United States v. Miller,
82 M.J. 204, 208
(C.A.A.F. 2022) (quoting Scalo, 60 M.J. at 436–37); see also Kho, 54 M.J. at 64–65 (er-
rors and omissions in staff judge advocate’s recommendation (SJAR)); United States v.
Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998) (defect in SJAR); United States v. Chatman,
46 M.J. 321, 323–24 (C.A.A.F. 1997) (defect in addendum to the SJAR).
4
United States v. Rosales Gomez, No. ACM S32713
on the conditions of his post-trial confinement, specifically, his assertion that
the confinement facility imposed limitations on his ability to practice his faith.
The convening authority evaluated Appellant’s clemency request, stating
he “considered matters timely submitted by [Appellant] under R.C.M. 1106”
and also consulted with his staff judge advocate (SJA). After Appellant submit-
ted assignments of error to this court, the Government submitted a declaration
from the SJA who advised the convening authority.4 In the declaration, the
SJA explained the convening authority’s intent was to provide no relief on the
sentence:
As the SJA, I advise the [Special Court-Martial Convening Au-
thority], in every case, on post-trial proceedings, including the
Convening Authority Decision on Action. On 9 August 2021, [Ap-
pellant] submitted matters to the convening authority stating
that he was unable to practice his religious beliefs at the Lincoln
County Correctional Facility, because they did not offer weekly
Catholic services. It was a one-page submission without any at-
tachments submitted by his counsel requesting that [the conven-
ing authority] reduce his sentence to confinement. After consid-
ering the submission, [the convening authority] consulted with
me and determined that the sentence, as adjudged, was appro-
priate. He memorialized his decision in the 10 August 2021 Con-
vening Authority Decision on Action for United States v. Senior
Airman Kevin M. Rosales Gomez. In taking “no action,” his in-
tent was to provide no relief on the sentence.
Appellant argues the convening authority’s error in announcing “no action”
on his sentence creates uncertainty as to whether “the convening authority
even knew he could reduce the terms of confinement.” We find no support for
this argument. Appellant’s own clemency submission informed the convening
authority of his “authority to amend [Appellant’s] sentence with downward ad-
justments” and urged the convening authority to use his authority to grant
clemency by reducing the term of confinement. The convening authority, as
stated in his decision memorandum, considered Appellant’s clemency submis-
sion and consulted with his SJA before making his decision. Under these cir-
cumstances, we have no reason to doubt the convening authority was aware of
4 We granted the Government’s unopposed motion to attach the SJA’s declaration. We
find that consideration given by the convening authority to Appellant’s clemency re-
quest is raised by the record, and thus we are not prohibited from considering the dec-
laration in conducting our review. See United States v. Jessie,
79 M.J. 437, 444
(C.A.A.F. 2020) (holding Courts of Criminal Appeals (CCAs) may consider affidavits
when doing so is necessary to resolve issues raised by materials in the record).
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United States v. Rosales Gomez, No. ACM S32713
his authority to grant clemency, to include a reduction of the term of confine-
ment. We are satisfied by the SJA’s declaration that the convening authority
decided to provide no relief.
Accordingly, we find the procedural error in the convening authority’s De-
cision on Action memorandum did not result in material prejudice to Appel-
lant’s substantial rights.
B. Conditions of Post-Trial Confinement
Appellant argues he is entitled to sentence relief due to the conditions of
his post-trial confinement. Specifically, he asserts the confinement facility im-
posed limitations on his ability to practice his faith because it did not offer
weekly religious services. Appellant maintains the denial of his free exercise of
religion while in post-trial confinement rendered his sentence, as executed in
the confinement facility, incorrect in law and inappropriately severe. We find
Appellant failed to exhaust his administrative remedies prior to raising his
conditions of post-trial confinement with this court, which precludes his claim.5
We also find the sentence as entered under Article 60c, UCMJ, 10 U.S.C. §
860c, is both correct in law and not inappropriately severe.
1. Law
This court reviews sentence appropriateness de novo. United States v.
Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only . . . the sentence or
such part or amount of the sentence, as [we find] correct in law and fact and
determine[ ], on the basis of the entire record, should be approved.” Article
66(d)(1), UCMJ,
10 U.S.C. § 866(d)(1). “We assess sentence appropriateness
by considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson,
67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009) (citations omitted). We consider whether an appellant’s sentence was ap-
propriate “judged by ‘individualized consideration’ of the particular [appellant]
‘on the basis of the nature and seriousness of the offense and the character of
the offender.’” United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982) (quot-
ing United States v. Mamaluy,
27 C.M.R. 176, 180–81 (C.M.A. 1959)). Although
we have broad discretion in determining whether a particular sentence is ap-
propriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
5 We note Appellant does not allege the sentence as entered is inappropriately severe,
but rather alleges that the post-trial confinement conditions operated to unlawfully
increase the severity of the sentence or render the sentence inappropriate.
6
United States v. Rosales Gomez, No. ACM S32713
With respect to our review of the sentence, our superior court has explained
this court has two responsibilities:
The first is to ensure that the sentence imposed on an appellant
is “correct in law.” As an example of this mandate, [Courts of
Criminal Appeals (CCAs)] are required to ensure that the ad-
judged and approved sentence in a particular case does not ex-
ceed the maximum penalty authorized under the applicable pu-
nitive article. The second relevant CCA responsibility under Ar-
ticle 66 is to determine whether the sentence imposed on an ap-
pellant “should be approved.” As an example, CCAs must deter-
mine the appropriateness of an adjudged and approved sentence
in light of the underlying facts adduced at trial, to include all
extenuating and mitigating circumstances.
United States v. Guinn,
81 M.J. 195, 199 (C.A.A.F. 2021) (citations omitted).
The CAAF further found that these responsibilities include granting sentenc-
ing relief based on post-trial confinement conditions that unlawfully increase
the severity of the sentence or render the sentence inappropriate.
Id. at 200.
However, in Guinn, the CAAF “fully recognize[d] that CCAs ‘are not a clear-
inghouse for post-trial confinement complaints or grievances.’”
Id. at 203 (quot-
ing United States v. Ferrando,
77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017)).
The court continued:
[I]t still remains the case that “[a]n appellant who asks [a CCA]
to review prison conditions . . . must establish” the following: (1)
a record demonstrating exhaustion of administrative remedies
(i.e., exhaustion of the prisoner grievance system and a petition
for relief under Article 138, UCMJ,
10 U.S.C. § 938 (2012), ex-
cept in “unusual or egregious circumstances that would justify
[the] failure” to exhaust); (2) “a clear record demonstrating . . .
the jurisdictional basis for [the CCA’s] action”; and (3) “a clear
record demonstrating . . . the legal deficiency in administration
of the prison.”
Id. at 203 (alterations and omissions in original) (quoting United States v. Mil-
ler,
46 M.J. 248, 250 (C.A.A.F. 1997)).
“[A]bsent some unusual or egregious circumstance,” an appellant must
demonstrate “he has exhausted the prisoner-grievance system” at the confine-
ment facility “and that he has petitioned for relief under Article 138, [UCMJ].”
United States v. Wise,
64 M.J. 468, 471 (C.A.A.F. 2007) (internal quotation
marks and citation omitted). “This requirement ‘promot[es] resolution of griev-
ances at the lowest possible level [and ensures] that an adequate record has
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United States v. Rosales Gomez, No. ACM S32713
been developed [to aid appellate review].’”
Id. (alterations in original) (quoting
Miller, 46 M.J. at 250).
2. Analysis
Appellant does not contend that he exhausted administrative remedies by
using the jail grievance system or petitioning for relief under Article 138,
UCMJ, nor does the record suggest he exhausted those remedies. After receiv-
ing Appellant’s assignments of error, the Government submitted declarations
from the confinement facility superintendent and the chief of military justice
at the base legal office averring there is no record of Appellant filing a request
with the confinement facility to attend religious services, filing a grievance
with the confinement facility, or filing an Article 138, UCMJ, complaint.6
Nor does Appellant claim, much less explain, “unusual or egregious circum-
stances that would justify his failure” to exhaust or render such efforts futile.
Miller, 46 M.J. at 250. While Appellant argues he raised the conditions of his
post-trial confinement in his clemency submission, the clemency submission
alone is insufficient to satisfy Appellant’s duty to exhaust administrative rem-
edies, which is designed to promote resolution of grievances at the lowest pos-
sible level and to ensure the development of an adequate record to aid appellate
review. See Wise, 64 M.J. at 471. In fact, Appellant was advised by his trial
defense counsel in a Post-Trial and Appellate Rights Advisement memoran-
dum, signed by Appellant on 24 July 2021, that “[i]n order to get relief for the
poor conditions of your confinement, [he] ordinarily must first exhaust every
administrative avenue available to try to correct the issue.” The memorandum
goes on to explain:
To exhaust administrative avenues for relief, you should do each
of the following; (1) submit a complaint to the confinement facil-
ity, preferably in writing; (2) request relief through clemency, if
known at that time; and (3) file a complaint with the commander
who ordered your confinement under Article 138, UCMJ, which
needs to be done within 90 days of your discovery of the improper
confinement conditions.
Accordingly, we find Appellant’s claim fails because he did not exhaust ad-
ministrative remedies before petitioning this court for relief, and the record
6 We granted the Government’s unopposed motion to attach the declarations. We find
the conditions of post-trial confinement were raised by the record, and thus we are not
prohibited from considering the declarations in conducting our review. See Jessie, 79
M.J. at 444 (holding CCAs may consider affidavits when doing so is necessary to re-
solve issues raised by materials in the record). The confinement facility superinten-
dent’s declaration explains the limitation on religious services was due to health con-
cerns related to the COVID-19 global pandemic.
8
United States v. Rosales Gomez, No. ACM S32713
does not establish any unusual or egregious circumstances that would justify
the failure to exhaust administrative remedies or render exhaustion futile.7
We have also given individualized consideration to Appellant, the nature
and seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. In doing so, we find the sentence as entered under
Article 60c, UCMJ, is both correct in law and not inappropriately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
7 We note the confinement facility superintendent’s declaration avers that requests for
religious services were considered on a case-by-case basis.
9
