United States v. Harrington

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39112
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UNITED STATES
Appellee
v.
Mary M. HARRINGTON
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 December 2017
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Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 75 days, and re-
duction to E-1. Sentence adjudged 20 May 2016 by GCM convened at Tinker
Air Force Base, Oklahoma.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior Judge
HARDING and Judge SPERANZA joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
HUYGEN, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
sistent with her plea and a pretrial agreement (PTA), of one specification of
desertion in violation of Article 85, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 885. The military judge sentenced Appellant to a bad-conduct dis-
United States v. Harrington, No. ACM 39112
charge, confinement for 94 days, and reduction to the grade of E-1. The con-
vening authority approved the bad-conduct discharge and reduction to the
grade of E-1 but approved only so much of the sentence as provided for confine-
ment for 75 days pursuant to the PTA.
Appellant raises on appeal the single issue of whether Appellant is entitled
to new post-trial processing due to errors in the staff judge advocate’s recom-
mendation (SJAR). We find no prejudicial error and affirm.
I. BACKGROUND
Appellant entered active duty on 10 December 1979, a fact stipulated by
the parties at trial. On 27 May 1983, she failed to report to her appointed place
of duty at Randolph Air Force Base, Texas, and was placed in “Absent Without
Leave” duty status. On 27 June 1983, her status was changed to “Deserter.”
On 5 June 1984, police in Great Falls, Montana, apprehended her, and she was
returned to military control at Malmstrom Air Force Base, Montana. She en-
tered pretrial confinement and remained there until 28 June 1984, when she
was released and ordered restricted to base. Although a charge was preferred
and referred and an additional charge preferred, Appellant was never tried for
the desertion that began on 27 May 1983 at Randolph Air Force Base, Texas,
and ended on 5 June 1984 at Malmstrom Air Force Base. On 23 July 1984,
Appellant failed to report to her place of duty at Malmstrom Air Force Base
and was placed in “Desertion” status on 24 July 1984.
In August 2015, some 31 years later, the Air Force Office of Special Inves-
tigations (AFOSI) “Cold Case Unit” received information related to Appellant’s
case. In February 2016, the AFOSI detachment at Tinker Air Force Base, Ok-
lahoma, began an investigation. On 11 March 2016, AFOSI agents surveilled
locations in Tulsa and coordinated with the Oklahoma Highway Patrol (OHP).
An OHP officer conducted a traffic stop of a vehicle in which Appellant was
traveling, apprehended her, and transferred custody of her to AFOSI agents.
The AFOSI agents transported her to Tinker Air Force Base, where she en-
tered pretrial confinement.
A charge for the desertion that began on 23 July 1984 at Malmstrom
Air Force Base was preferred on 25 March 2016 and referred for trial by gen-
eral court-martial on 9 May 2016. Appellant entered into a PTA with the con-
vening authority whereby Appellant agreed, inter alia, to plead guilty as
charged in exchange for the convening authority agreeing to approve no con-
finement in excess of 75 days.
At trial on 20 May 2016, the Prosecution offered as Prosecution Exhibit 2 a
Personal Data Sheet (PDS) dated 20 May 2016. When asked, the Defense had
no objection, and the military judge admitted it. The military judge found Ap-
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United States v. Harrington, No. ACM 39112
pellant guilty of desertion in accordance with her plea. The military judge cred-
ited Appellant for 94 days of pretrial confinement: 70 days for the pretrial con-
finement that followed the 1984–2016 desertion and 24 days for the pretrial
confinement that followed the 1983–1984 desertion.
The SJAR accurately stated the convening authority’s clemency power un-
der Article 60, UCMJ, 10 U.S.C. § 860, including his authority to disapprove,
commute, or suspend the adjudged sentence in whole or in part. Attached to
the SJAR was a PDS dated 25 March 2016. The SJA recommended the conven-
ing authority approve the confinement for 75 days pursuant to the PTA, bad-
conduct discharge, and reduction to E-1.
The Defense submitted a petition for clemency, which discussed the bad-
conduct discharge but not the confinement or reduction in grade. In a memo-
randum dated 1 July 2016, trial defense counsel stated the convening author-
ity did not have the authority to disapprove the bad-conduct discharge because
of “changes in Article 60, UCMJ.” On 11 July 2016, after being alerted to issues
with the memorandum, trial defense counsel submitted an updated memoran-
dum, which was also dated 1 July 2016. In the updated memorandum, trial
defense counsel requested that the convening authority grant Appellant’s
clemency request by “not approving the bad conduct discharge.” The clemency
submission made no comment on, did not object to, and did not allege any legal
error regarding the SJAR or any SJAR attachment, including the PDS dated
25 March 2016.
The addendum to the SJAR, dated 12 July 2016, stated that the convening
authority must consider Appellant’s clemency submission; reiterated that the
convening authority could “disapprove, commute, or suspend the sentence, in
whole or in part;” and again recommended approval of the bad-conduct dis-
charge, confinement for 75 days, and reduction to E-1. On 18 July 2016, the
convening authority signed the action approving “only so much of the sentence
as provides for a bad conduct discharge, confinement for 75 days, and reduction
to the grade of Airman Basic” and acknowledged having “received, reviewed
and considered the aforementioned attachments,” which included Appellant’s
clemency submission. On 29 July 2016, the convening authority signed another
action, withdrawing the previous action but still approving the 75-day confine-
ment, reduction to the grade of E-1, and 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). 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). We conduct a three-step analysis for plain error,
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United States v. Harrington, No. ACM 39112
addressing 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). “To meet this burden in the context of a post-trial
recommendation error . . . an appellant must make ‘some colorable showing of
possible prejudice.’” Id. at 436–37 (quoting Kho, 54 M.J. at 65). “The threshold
is low, but there must be some colorable showing of possible prejudice . . . in
terms of how the [error] potentially affected an appellant’s opportunity for
clemency.” Id. at 437.
Appellant asserts error in several respects but all related to the SJAR. Spe-
cifically, Appellant asserts that the PDS attached to the SJAR was not the PDS
admitted at trial and differed on Basic Pay and Initial Date of Current Service;
that the PDS attached to the SJAR was wrong on Total Active Federal Military
Service Date (TAFMSD), Length of Service, and Nature of Pretrial Restraint;
that the SJAR mischaracterized Appellant’s service prior to the charge; and
that the addendum to the SJAR failed to address trial defense counsel’s mis-
statement of the convening authority’s clemency power. The Defense failed to
comment on the following: the PDS at trial, the SJAR, the PDS attached to the
SJAR, and the addendum to the SJAR. Because of Defense’s forfeiture, we an-
alyze for plain error. While we agree with Appellant that there were multiple
errors related to the SJAR and that some of those errors were plain or obvious,
we find that Appellant has not met her burden to make some colorable showing
of possible prejudice attributable to those errors.
A. No Error: Characterization of Service and Addendum
We find no error regarding the SJAR’s characterization of Appellant’s ser-
vice prior to the charge. Air Force Instruction (AFI) 51-201, Administration of
Military Justice, (6 Jun. 2013), requires the SJAR to include a description of
the character of the accused’s service prior to the charges, although R.C.M.
1106(d)(3) does not. AFI 51-201 Air Force Guidance Memorandum 2015-01, ¶
9.16.3 (30 Jul. 2015). In Appellant’s case, the SJAR stated that, according to
Appellant’s commander, her service prior to the charge was “unsatisfactory.”
Contrary to Appellant’s assertions on appeal, the SJAR’s characterization of
service is not limited to select words in performance reports and court-martial
convictions. The SJA satisfied the SJAR requirement when he chose to describe
Appellant’s service by reference to her commander’s characterization. In turn,
that characterization took into account the entirety of Appellant’s service prior
to the charge, including nonjudicial punishment, her first period of desertion,
and other documented misconduct. Thus, there was no error regarding the
SJAR’s characterization of Appellant’s service prior to the charge.
Even if the SJAR’s characterization constituted plain or obvious error, Ap-
pellant failed to make a colorable showing of possible prejudice. Appellant
pleaded and was found guilty of deserting for more than 30 years, a charge
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United States v. Harrington, No. ACM 39112
carrying a maximum punishment of dishonorable discharge, three years of con-
finement, total forfeiture of pay and allowances, and reduction to the grade of
E-1. The adjudged sentence was a bad-conduct discharge, 94 days of confine-
ment, and reduction to E-1. Appellant was credited with 94 days of confine-
ment, and the convening authority could approve no more than 75 days of con-
finement pursuant to the PTA. Appellant’s request for clemency focused on the
bad-conduct discharge. 1 In this context, the SJAR’s characterization of Appel-
lant’s service prior to the charge as “unsatisfactory,” even if a mischaracteriza-
tion, did not suffice for a colorable showing of possible prejudice.
We also find no error regarding the addendum. In Appellant’s case, both
the SJAR and the addendum correctly stated the convening authority’s options
for action under the relevant provisions of Article 60, UCMJ (as well as pursu-
ant to the PTA). Because Appellant was convicted of an offense with a charged
time period before and after 24 June 2014, the convening authority could ap-
prove or disapprove the finding of guilt and approve, disapprove, commute, or
suspend the sentence in whole or in part (other than approving no more than
75 days of confinement pursuant to the PTA). Pub. L. No. 113-291, 128 Stat.
3292, 3365 (2014); R.C.M. 1107. Had trial defense counsel’s misstatement that
the convening authority could not disapprove the bad-conduct discharge been
left uncorrected, the addendum would have had to address it. If the addendum
did not do so, we would consider remanding the case for new post-trial pro-
cessing in accordance with the decision of the Court of Appeals for the Armed
Forces in United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016). Instead, trial
defense counsel was alerted to the misstatement and submitted a corrected
memorandum, which requested disapproval of the bad-conduct discharge and
was duly considered by the convening authority. 2 The SJAR and addendum
also made clear that the convening authority could disapprove the bad-conduct
discharge. Thus, there was no error regarding the addendum.
1 Appellant’s clemency submission made one reference without elaboration to receiving
“back pay for her time in confinement.” The Defense Finance and Accounting Services
is responsible for the final accounting of pay after a court-martial conviction and per-
forms this duty upon receipt of the final court-martial order. The payment of “back
pay” is not subject to the clemency power of the convening authority and is not within
the purview of this court.
2 The addendum included in the record purported to have attached the clemency sub-
mission, including an “ADC email, dated 11 July 2016.” The email, which explained
the misstatement and subsequent correction by trial defense counsel, was not actually
in the record. This opinion was delayed while the court issued an order that prompted
the Government to produce the email. Both memoranda and the email were provided
to and considered by the convening authority.
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United States v. Harrington, No. ACM 39112
B. Error: Basic Pay, Length of Service, and Nature of Pretrial Re-
straint
We find error but not plain or obvious error regarding the Basic Pay,
Length of Service, and Nature of Pretrial Restraint listed on the PDS attached
to the SJAR. On that PDS, Basic Pay was listed as $2,483.40. The 2016 Mili-
tary Pay Chart lists basic pay for an E-4 with over six years of service as
$2,483.40. Assuming Appellant entered active duty on 10 December 1979, as
stipulated by both parties at trial, 3 she deserted on 23 July 1984 before com-
pleting six years of service, even if one credits her first period of desertion as
service time. Thus, the Basic Pay listed on the PDS attached to the SJAR was
likely wrong but not obviously so, unlike the Basic Pay of $0.00 listed on the
PDS admitted at trial, which was patently incorrect. Even if the Basic Pay
listed on the PDS attached to the SJAR constituted plain or obvious error, Ap-
pellant failed to make a colorable showing of possible prejudice.
The PDS attached to the SJAR listed Length of Service as “52 months at
time of desertion” (as did the PDS admitted at trial). Assuming Appellant en-
tered active duty on 10 December 1979, Appellant calculated Length of Service
as 55 months at the time of desertion or 57 months at the time of trial. In fact,
Length of Service should have been listed as 46 months at the time of the
charged desertion because of Appellant’s first period of desertion. Thus, the
Length of Service listed on the PDS was wrong but not obviously so. Even if
the Length of Service listed on the PDS constituted plain or obvious error, Ap-
pellant failed to make a colorable showing of possible prejudice. Moreover, the
PDS’s failure to list Length of Service in accordance with AFI 51-201 likely
operated to Appellant’s benefit. AFI 51-201 stipulates that Length of Service
on the PDS is to list in years and months and exclude and identify lost time,
including periods of desertion but not including pretrial confinement. AFI 51-
201, Fig. 3.7. Instead of the 52 months listed on the PDS or the 55 or 57 months
calculated by Appellant, Length of Service for 46 months should have been
listed on the PDS as “3 years, 10 months Lost time: 33 years, 1 month,” which
would have made apparent the lengthy duration of Appellant’s desertion.
The PDS attached to the SJAR listed Nature of Pretrial Restraint as “Pre-
trial confinement, civil confinement facility, 11 March 2016 - Present” (as did
the PDS admitted at trial). In and of itself as a statement of fact, this was not
wrong. However, AFI 51-201 instructs that the PDS should include the type of
restraint, date imposed, location, and number of days. AFI 51-201, Fig. 3.7.
The PDS could have been more specific as to the location of confinement and
should have specified 70 days, which was the number of days of Appellant’s
pretrial confinement as of the date of trial. These omissions constituted error
310 December 1979 is likely incorrect, as Appellant’s earliest Airman Performance
Report covered the period 16 January to 16 December 1979.
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United States v. Harrington, No. ACM 39112
but not plain or obvious error, as the Nature of Pretrial Restraint was correct
on its face, albeit not compliant with AFI 51-201. Despite Appellant’s assertion,
it was not error for the PDS to omit Appellant’s 1984 pretrial confinement re-
lated to her 1983–1984 desertion. Appellant was not charged with or tried for
that earlier desertion in the 2016 trial. When the parties and military judge
discussed the 1984 pretrial confinement during the 2016 trial, it was apparent
that there was no known guidance on how to deal with it. Nevertheless, the
military judge decided to credit Appellant for the 24 days of pretrial confine-
ment in 1984 “as a matter of equity.” Finally, the Report of Result of Trial,
which was attached to the SJAR, specifically indicated “94 days of confinement
credit based upon 94 days of credit for military pretrial confinement.” Even if
the Nature of Pretrial Restraint listed on the PDS constituted plain or obvious
error, Appellant failed to make a colorable showing of possible prejudice.
C. Plain or Obvious Error: PDS, Initial Date of Current Service, and
TAFMSD
We find plain or obvious error but no colorable showing of possible prejudice
regarding the PDS attached to the SJAR not being the PDS admitted at trial
and the Initial Date of Current Service and TAFMSD listed on the PDS at-
tached to the SJAR. The Government concedes that the PDS attached to the
SJAR is not the PDS admitted at trial and that the two differ. The PDS at-
tached to the SJAR is dated 25 March 2016 and appears to be the PDS pre-
pared for preferral, which occurred on 25 March 2016. It differs from the PDS
admitted at trial and dated 20 May 2016 with regard to Basic Pay and Initial
Date of Current Service. 4 AFI 51-201 requires that the PDS admitted at trial
be attached to the SJAR. AFI 51-201, ¶ 9.16 (6 Jun. 2013). The PDS attached
to the SJAR listed Basic Pay of $2,483.40; the PDS admitted at trial listed
Basic Pay of $0.00. 5 The PDS attached to the SJAR listed an Initial Date of
Current Service of 19 January 1985, which was effectively impossible as the
date fell almost six months after Appellant’s second desertion. The PDS admit-
ted at trial listed 1 November 1982, which was possible but not verifiable, as
the record does not contain any document that confirms the start date of the
enlistment Appellant was serving when she deserted on 23 July 1984. Thus,
we can determine only that the Initial Date of Current Service differed between
the two PDSes and was wrong on the PDS attached to the SJAR. While it was
4The Charge Sheet originally listed Basic Pay and Initial Date of Current Service as
they were listed on the PDS dated 25 March 2016. Before trial, pen-and-ink changes
revised both to appear as they were listed on the PDS dated 20 May 2016.
5While Basic Pay of $2,483.40 may not have been wholly accurate, as discussed above,
Basic Pay of $0.00 was patently wrong. Once returned to military control and even
while in pretrial confinement, Appellant was accruing service time and entitled to pay.
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United States v. Harrington, No. ACM 39112
plain or obvious error to attach to the SJAR a different PDS than the one ad-
mitted at trial, Appellant failed to make a colorable showing of possible preju-
dice regarding the differences between the two PDS, specifically, Basic Pay and
Initial Date of Current Service.
Similarly, we find plain or obvious error with regard to the TAFMSD of
18 January 1980 listed on the PDS. As stipulated by the parties at trial, Ap-
pellant entered active duty on 10 December 1979. Although the stipulation
rendered the TAFMSD of 18 January 1980 obviously wrong, Appellant did not
make a colorable showing of possible prejudice resulting from the error.
In summary, where we find plain or obvious error regarding the PDS at-
tached to the SJAR, we find no colorable showing of possible prejudice to Ap-
pellant’s substantial right for clemency consideration. With regard to the SJAR
and addendum, we find no error. Even if we were to find plain or obvious error
with the items raised by Appellant, she failed to make a colorable showing of
possible prejudice. Still, we find it appropriate to reiterate the frustration ex-
pressed by the court in an earlier case:
In another case, this kind of simple error could have resulted in,
at a minimum, the need to remand the case for a new post-trial
action and significant time and effort by very busy individuals.
The Air Force’s scarce resources should not be wasted due to le-
gal professionals’ failure to apply sufficient attention to detail
and exercise due diligence in processing post-trial matters.
United States v. Myers, No. ACM 39234, 2017 CCA LEXIS 597, at *12 (A.F. Ct.
Crim. App. 30 Aug. 2017) (unpub. op.).
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 sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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