United States v. Jalos

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39138
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UNITED STATES
Appellee
v.
Danreddy L. JALOS
Master Sergeant (E-7), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 5 September 2017
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Military Judge: Charles E. Wiedie, Jr.
Approved sentence: Bad-conduct discharge, confinement for 12 months,
and reduction to E-1. Sentence adjudged 20 June 2016 by GCM con-
vened at Andersen Air Force Base, Guam.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judges
MAYBERRY and JOHNSON 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This is an unpublished opinion and, as such, does not serve as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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MINK, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
sistent with his plea and a pretrial agreement (PTA), of one specification of
desertion in violation of Article 85, Uniform Code of Military Justice (UCMJ),
United States v. Jalos, No. ACM 38138
10 U.S.C. § 885. The military judge sentenced Appellant to a bad-conduct dis-
charge, confinement for 12 months, and reduction to E-1. The convening au-
thority approved the sentence as adjudged. 1
Appellant raises one assignment of error: Whether the convening authority
erred by summarily denying Appellant’s request to defer and waive forfeitures.
Finding no error materially prejudicial to a substantial right of Appellant, we
affirm the findings and sentence.
I. BACKGROUND
In June 2014, Appellant, a 34-year-old Master Sergeant, received perma-
nent change of station orders from his duty assignment at Yongsan, Republic
of Korea to Joint Base Pearl Harbor-Hickam, Hawaii. His report no later than
date was 24 September 2014. In preparation for his move to Hawaii, Appellant
returned to Suisun City, California, where his wife, family, and household
goods were located. Appellant and his wife were having marital difficulties
during this time. After being home for eight days, Appellant told his wife that
he needed to drive his truck to the vehicle processing center in Los Angeles,
California to have it shipped to Hawaii.
On 16 September 2014, while driving towards Los Angeles, Appellant be-
came emotionally distraught to the point of contemplating suicide. Instead of
driving to Los Angeles, Appellant turned his vehicle around and drove to Can-
ada. He bought bus tickets to Toronto and Mexico, but actually boarded a flight
to his birth country of the Philippines. He arrived in the Philippines on 19
September 2014. After being in the Philippines for a few weeks, Appellant con-
tacted EC, a woman originally from the Philippines who was living in Korea
and with whom he had developed a relationship while stationed at Yongsan.
Appellant never reported for his assignment to Hawaii, and at some point
during his time in the Philippines he developed an intent to permanently re-
main away from his place of duty. In April 2016, after coordination among Ca-
nadian law enforcement, the Air Force Office of Special Investigations, the U.S.
State Department, and Philippine law enforcement, Appellant was appre-
hended in the Philippines, deported, and returned to the custody of the Air
Force.
On 20 June 2106, pursuant his PTA, Appellant pleaded guilty to desertion
terminated by apprehension and was tried by a military judge sitting alone.
1The adjudged sentence was not affected by the PTA to approve no more than 19
months of confinement.
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United States v. Jalos, No. ACM 38138
The military judge sentenced Appellant to a bad-conduct discharge, confine-
ment for 12 months, and reduction to the grade of E-1.
Four days after Appellant’s court-martial, his area defense counsel submit-
ted a one-page request to the convening authority asking for the deferment and
waiver of automatic forfeitures of Appellant’s pay and allowances, in accord-
ance with Articles 57(a) and 57b, UCMJ, 10 U.S.C. §§ 857(a), 858b, and Rule
for Courts-Martial (R.C.M.) 1101(c), (d). His defense counsel noted that Appel-
lant’s “family situation and service record favor deferment” and added that by
waiving the automatic forfeitures, Appellant’s E-1 pay “could be helpful to [Ap-
pellant’s] wife and children,” but provided no further elaboration. Six days
later, on 30 June 2016, the convening authority denied Appellant’s request. In
its entirety, the written denial stated, “The request for deferment and waiver
of automatic forfeitures is denied.” In his clemency submission, Appellant
noted his earlier request for deferment and waiver of forfeitures, but stated
that he “d[id] not desire to make any additional clemency request, and waive[d]
any further submission of clemency matters.” The convening authority ap-
proved the adjudged sentence on 25 August 2016.
II. DISCUSSION
In his single assignment of error, Appellant asserts that the convening au-
thority erred by denying the request for deferment and waiver of automatic
forfeitures when the convening authority failed to explain the reasons for the
denial.
Although framed by Appellant as a single issue, Appellant’s request actu-
ally contained two separate components: (1) the request to defer forfeitures,
governed by Article 57(a) and R.C.M. 1101(c); and (2) the request to waive for-
feitures, governed by Article 58b and R.C.M. 1101(d). Since a convening au-
thority is not required to articulate the reasons for denial of a waiver request,
the failure to do so was not error. See R.C.M. 1101(d); United States v. Gentry,
No. ACM S31361, 2008 CCA LEXIS 454, at *8–9 (A.F. Ct. Crim. App. 30 Oct.
2008) (unpub. op.). 2
However, in accordance with R.C.M. 1101(c)(3), the convening authority is
required to articulate the reasons for the denial of a request to defer forfeitures.
R.C.M. 1101(c)(3) requires a convening authority’s action on a request for de-
ferment of punishment to be made in writing and provides factors a convening
authority may consider:
2We also note that the convening authority’s affidavit submitted during appellate re-
view indicates that he considered the factors listed in R.C.M. 1101(d) when denying
the request.
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United States v. Jalos, No. ACM 38138
[T]he probability of the accused’s flight; the probability of the
accused’s commission of other offenses, intimidation of wit-
nesses, or interference with the administration of justice; the na-
ture of the offenses (including the effect on the victim) of which
the accused was convicted; the sentence adjudged; the com-
mand’s immediate need for the accused; the effect of deferment
on good order and discipline in the command; the accused’s char-
acter, mental condition, family situation, and service record.
Id. “When a convening authority acts on an accused’s request for deferment of
all or part of an adjudged sentence, the action must be in writing . . . and must
include the reasons upon which the action is based.” United States v. Sloan, 35
M.J. 4, 6–7 (C.M.A. 1992) (emphasis added); see also R.C.M. 1103(c)(3), Discus-
sion (“If the request for deferment is denied, the basis for the denial should be
in writing and attached to the record of trial.”).
We review a convening authority’s denial of a request for deferment of for-
feitures for an abuse of discretion. R.C.M. 1101(c)(3); Sloan, 35 M.J. at 6.
Even when there is error in the convening authority’s action on a deferment
request, relief is only warranted if an appellant makes a colorable showing of
possible prejudice. United States v. Brown, 54 M.J. 289, 292 (C.A.A.F. 2000);
United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998); see also United
States v. Eppes, No. ACM 38881, 2017 CCA LEXIS 152, at *41–43 (A.F. Ct.
Crim. App. 21 Feb. 2017) (unpub. op.) (“[T]he convening authority’s error [in
summarily denying a request to defer forfeitures] does not entitle Appellant to
relief unless it materially prejudices his substantial rights.”). “Absent credible
evidence that a convening authority denied a request to defer punishment for
an unlawful or improper reason, an erroneous omission of reasons in a conven-
ing authority’s denial of a deferment request does not entitle an appellant to
relief.” United States v. Zimmer, 56 M.J. 869, 874 (A. Ct. Crim. App. 2002).
By failing to articulate the reasons for denying the deferment, the conven-
ing authority erred. See Seeto v. Levy, Misc. Dkt. No. 2016-15, 2017 CCA LEXIS
136, *6–8 (A.F. Ct. Crim. App. 22 Feb. 2017) (unpub. op.) (granting the peti-
tioner’s request for a writ of mandamus directing the convening authority to
re-accomplish the action on a request to defer confinement because the original
action failed to articulate the reasons for the denial); Eppes, unpub. op. at *41–
43 (finding error in the convening authority’s failure to articulate the reasons
for a denial of a request to defer forfeitures); United States v. Dean, 74 M.J.
608, 611 (A. Ct. Crim. App. 2015) (finding error in the convening authority’s
failure to articulate the reasons for a denial of a request to defer forfeitures
and reduction in rank).
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United States v. Jalos, No. ACM 38138
In this case, Appellant has failed to demonstrate a colorable showing of
possible prejudice. There is no evidence that the denial was for an improper or
unlawful purpose. Moreover, the Government submitted an affidavit from the
convening authority who denied Appellant’s request. See Gentry, unpub. op. at
*7–8 (permitting the Government to “‘enhance the paper trail’ to clarify post-
trial processing issues”) (quoting United States v. Blanch, 29 M.J. 672, 673
(A.F.C.M.R. 1989)). In his affidavit, the convening authority explains the rea-
sons for the denial of the deferment. The convening authority explained that
he considered the R.C.M. 1101(c)(3) factors and denied the request because of
the lack of evidence of Appellant’s family’s financial needs and based on the
serious nature of the crime Appellant was convicted of committing. Ultimately,
the convening authority concluded that relief “was not in the best interests of
good order and discipline.”
Appellant has failed to demonstrate a colorable showing of possible preju-
dice from the convening authority’s error. Appellant’s overly-generalized refer-
ence to his family’s financial needs and the convening authority’s post-trial af-
fidavit articulating his specific consideration of the factors set forth in R.C.M.
1101(c)(3), convincingly establish that there was no demonstrable prejudice
from the failure to articulate the reasons for the denial.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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